S (A CHILD) V CAMBRIDGESHIRE COUNTY COUNCIL AND OTHERS [2014] EWCA Civ 25
Child Abuse Compensation Claims – Significant Harm and Split Hearings
S:-
FACTS:-
This was an appeal brought by a local authority against the findings of fact made at a hearing in public law children proceedings brought under the Children Act 1989 which took place on 10 September 2013 in the Cambridge County Court. The proceedings concerned a 12 month old baby girl. The local authority was Cambridgeshire County Council and the other parties were S by her children's guardian and S's parents who were separately represented. S was admitted to hospital in April 2013 with a serious head injury. The court had to decide among other questions whether facts existed sufficient to satisfy section 31(2) of the 1989 Act (known as the threshold criteria) namely, whether S was suffering significant harm, whether that harm was attributable to the care given to her and whether that care was not what it would be reasonable to expect a parent to give to her.
"31(2) A court may only make a care order or supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
or
(ii) the child's being beyond parental control."
It was alleged that one of the parents caused the injury and that the other failed to protect S from that harm. It was not alleged that both parents caused the injury nor was any other fact put in issue that would have been relevant to the question of whether the harm suffered was attributable to the care given by the parents, for example, any detail relating to the alleged perpetrator, the failure to protect or the family's upbringing of S. The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury.
The local authority appealed on the following grounds:-
i) the judge was inconsistent in finding that there had been an injury and that the parents had not deliberately inflicted the same;
ii) the judge's conclusion that the injury had been sustained in an unexplained accidental way was inconsistent with the medical evidence and/or his other findings;
iii) the judge was wrong not to draw the inference that the parents' lies were indicative of their culpability;
iv) the judge's reasoning for his finding that the parents had not injured their child was insufficient.
JUDGMENT:-
Lord Justice Ryder said that each of the grounds of appeal was misconceived. The judge was not inconsistent in his findings which were not inconsistent with the expert medical opinion. He did not find that the injury was accidental nor did he find that the parents had not injured their child. The judge cannot be said to have been plainly wrong in the findings he made nor in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence of the adults who were present when the child was injured and no part of that evidence as accepted by the judge has been demonstrated to this court to be logically inconsistent with the judge's findings. The background problem was a failure by the parties to identify the key issues which needed to be determined by the court and then how those issues should be determined.
The theoretical pool of perpetrators if the harm was not accidental included all of the adults in the home with S, who were the parents, the grandmother and her partner. However for some reason, the local authorities limited that pool to the parents. The judge found as a fact, that all of the adults told deliberate untruths about the circumstances in which the harm occurred. and the split hearing was limited to an examination of the responsibility of the parents alone. The limitation on the pool was not tested in evidence before the judge and was an unreasoned position.
The judge found that father, mother and grandmother had conspired to attempt to exculpate the father from what had occurred. The judge found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. He was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult.
Ryder LJ made reference to In re B (Children) [2008] UKHL 35, where the Supreme Court had said that a fact in issue was to be treated as either having happened if it was proved to the civil standard of proof or not having happened if it was not. What appeared to have happened here is that the advocates and judge appeared to have lost sight of the statutory formulation in section 31(2) of the 1989 Act. The term 'non-accidental injury' was a 'catch-all' for everything that was not an accident. The true distinction was between an accident which was unexpected and unintentional and an injury that involved an element of wrong. That element of wrong might involve a lack of care and / or an intent of a greater or lesser degree that might amount to negligence, recklessness or deliberate infliction. While an analysis of that kind might be helpful to distinguish deliberate infliction from, say, negligence, it was unnecessary in any consideration of whether the threshold criteria were satisfied because what the statute required was something different namely, findings of fact that at least satisfied the significant harm, attributability and objective standard of care elements of section 31(2).
It was not necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. The threshold was not concerned with intent or blame; it was concerned with whether the objective standard of care which it would be reasonable to expect for the child in question had not been provided so that the harm suffered was attributable to the care actually provided.
In its review of findings of fact which are challenged, the appellate court's approach was to consider whether they were plainly wrong. Ryder LJ referred to the following cases:-
There was another issue. It was by no means clear why it was thought appropriate to have a 'split hearing' where discrete facts were severed off from their welfare context. Unless the basis for such a decision was reasoned so that the inevitable delay was justified it would be wrong in principle in public law children proceedings. Split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure was inappropriate. The oft repeated but erroneous justification for them that a split hearing enabled a social care assessment to be undertaken was simply poor social work and forensic practice. Social work assessments were not contingent on facts being identified and found to the civil standard. Ryder LJ referred to the following cases:-
On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what had always been the good practice of the court which is to settle the issue to be tried on the face of the order.
Lord Justice Christopher Clarke and Lord Justice Tomlinson agreed.
Child Abuse Compensation Claims – Significant Harm and Split Hearings
S:-
FACTS:-
This was an appeal brought by a local authority against the findings of fact made at a hearing in public law children proceedings brought under the Children Act 1989 which took place on 10 September 2013 in the Cambridge County Court. The proceedings concerned a 12 month old baby girl. The local authority was Cambridgeshire County Council and the other parties were S by her children's guardian and S's parents who were separately represented. S was admitted to hospital in April 2013 with a serious head injury. The court had to decide among other questions whether facts existed sufficient to satisfy section 31(2) of the 1989 Act (known as the threshold criteria) namely, whether S was suffering significant harm, whether that harm was attributable to the care given to her and whether that care was not what it would be reasonable to expect a parent to give to her.
"31(2) A court may only make a care order or supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
or
(ii) the child's being beyond parental control."
It was alleged that one of the parents caused the injury and that the other failed to protect S from that harm. It was not alleged that both parents caused the injury nor was any other fact put in issue that would have been relevant to the question of whether the harm suffered was attributable to the care given by the parents, for example, any detail relating to the alleged perpetrator, the failure to protect or the family's upbringing of S. The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury.
The local authority appealed on the following grounds:-
i) the judge was inconsistent in finding that there had been an injury and that the parents had not deliberately inflicted the same;
ii) the judge's conclusion that the injury had been sustained in an unexplained accidental way was inconsistent with the medical evidence and/or his other findings;
iii) the judge was wrong not to draw the inference that the parents' lies were indicative of their culpability;
iv) the judge's reasoning for his finding that the parents had not injured their child was insufficient.
JUDGMENT:-
Lord Justice Ryder said that each of the grounds of appeal was misconceived. The judge was not inconsistent in his findings which were not inconsistent with the expert medical opinion. He did not find that the injury was accidental nor did he find that the parents had not injured their child. The judge cannot be said to have been plainly wrong in the findings he made nor in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence of the adults who were present when the child was injured and no part of that evidence as accepted by the judge has been demonstrated to this court to be logically inconsistent with the judge's findings. The background problem was a failure by the parties to identify the key issues which needed to be determined by the court and then how those issues should be determined.
The theoretical pool of perpetrators if the harm was not accidental included all of the adults in the home with S, who were the parents, the grandmother and her partner. However for some reason, the local authorities limited that pool to the parents. The judge found as a fact, that all of the adults told deliberate untruths about the circumstances in which the harm occurred. and the split hearing was limited to an examination of the responsibility of the parents alone. The limitation on the pool was not tested in evidence before the judge and was an unreasoned position.
The judge found that father, mother and grandmother had conspired to attempt to exculpate the father from what had occurred. The judge found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. He was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult.
Ryder LJ made reference to In re B (Children) [2008] UKHL 35, where the Supreme Court had said that a fact in issue was to be treated as either having happened if it was proved to the civil standard of proof or not having happened if it was not. What appeared to have happened here is that the advocates and judge appeared to have lost sight of the statutory formulation in section 31(2) of the 1989 Act. The term 'non-accidental injury' was a 'catch-all' for everything that was not an accident. The true distinction was between an accident which was unexpected and unintentional and an injury that involved an element of wrong. That element of wrong might involve a lack of care and / or an intent of a greater or lesser degree that might amount to negligence, recklessness or deliberate infliction. While an analysis of that kind might be helpful to distinguish deliberate infliction from, say, negligence, it was unnecessary in any consideration of whether the threshold criteria were satisfied because what the statute required was something different namely, findings of fact that at least satisfied the significant harm, attributability and objective standard of care elements of section 31(2).
It was not necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. The threshold was not concerned with intent or blame; it was concerned with whether the objective standard of care which it would be reasonable to expect for the child in question had not been provided so that the harm suffered was attributable to the care actually provided.
In its review of findings of fact which are challenged, the appellate court's approach was to consider whether they were plainly wrong. Ryder LJ referred to the following cases:-
- Re A (Children) [2013] EWCA Civ 1026
- Re B-S (Children) [2013] EWCA Civ 1146
- In the matter of B (A Child) [2013] UKSC 33
- Piglowska v Piglowski [1999] 1 WLR 1360
There was another issue. It was by no means clear why it was thought appropriate to have a 'split hearing' where discrete facts were severed off from their welfare context. Unless the basis for such a decision was reasoned so that the inevitable delay was justified it would be wrong in principle in public law children proceedings. Split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure was inappropriate. The oft repeated but erroneous justification for them that a split hearing enabled a social care assessment to be undertaken was simply poor social work and forensic practice. Social work assessments were not contingent on facts being identified and found to the civil standard. Ryder LJ referred to the following cases:-
- Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597
- Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776
- Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14
On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what had always been the good practice of the court which is to settle the issue to be tried on the face of the order.
Lord Justice Christopher Clarke and Lord Justice Tomlinson agreed.