WEBSTER V NORFOLK COUNTY COUNCIL AND ANOTHER [2009] EWCA Civ 59
FACTS:-
Mr and Mrs Webster had four children:-
A (a girl born in January 2000)
B (a boy, born in November 2001)
C (a boy born in August 2003)
D (a boy born in May 2006)
In November 2003, B was admitted to the Norfolk and Norwich University Hospital, where he was found to have a number of fractures. He had also had a feeding problem and for at least a year prior to his admission had been having only soya milk. The local authority’s view was that B’s injuries were non-accidental that they had been caused by one or both of his parents. In December 2003, it took out care proceedings in relation to all three children, who by then had been placed with specialist foster parents.
Care orders were made and the three children were put up for adoption. The fourth child was born in the Irish republic, as the parents had gone there in order to avoid his removal. They obtained fresh expert evidence and the upshot was a powerful medical opinion that the injuries of their children were more likely to be iron deficiency/scurvy than abuse.
HELD:-
Lord Justice Wall said that the Family Justice System had a number of critics. However some of that criticism was ill informed, particularly the tendency to propagate or to seize upon the tendentious (and often illicitly disclosed) accounts of the unsuccessful party in the proceedings as was demonstrated in the case of Re H (Freeing Orders: Publicity) [2005] EWCA 1325. There was also a misconception that expert witnesses were “hired guns” for the side that instructed them. This was not the case and that principle was contained in the Practice Direction “Experts in Family Proceedings relating to Children” which came into force on the 1st April 2008.
Wall LJ felt that it would be wrong to criticise any of the social workers or the doctors who advised the family court judge in the care and freeing proceeding relating to the children, A, B and C.
The criteria for appealing against the original decision of the family court was contained in CPR Rule 52.3(6), which was that:-
The Court of Appeal was not a court of review.
The issue of scurvy had been vigorously pursued by the Websters’ counsel before the original family court, although the issue had not been specifically addressed by their solicitors. There was an unfortunate concentration on brittle bone disease, but this may have proved to be a distraction. However the expert evidence in court did not support a finding that nutritional deficit was the cause of the problem, and in fact such a finding was rejected.
One of the children, B had at least 6 fractures and his growth had fallen behind. He was repeatedly described as anxious. A’s teeth were poor, indicating poor diet and oral hygiene. There was evidence from a child psychiatrist about emotional harm.
Wall LJ considered the case of Ladd v Marshall [1954] 1 WLR 1489 which dwelt on the issue of whether fresh evidence could be admitted into court late, either to support an appeal or to support an application for a re-hearing.
In the judgement of Wall LJ, the public policy considerations relating to adoption and the authorities on the point, simply made it impossible for the Court of Appeal to set aside the adoption orders.
Wall LJ also considered Article 6 and Article 8 of the European Convention on Human Rights.
Article 6 stated:-
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 8 stated:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
There had been a valuable discussion of Article 8 in the following cases:-
Pini and Bertani (and others) v Romania [2005] 2 FLR 596
Gorgulu v Germany [2004] 1 FLR 894
Wall LJ also considered a number of other European authorities, but none in his view, assisted Mr and Mrs Webster.
There could be no setting aside of the adoption orders, and therefore there was no point in re-opening the judgment of the family court.
Secondly this case did not meet the criteria in Ladd v Marshall.
There were a number of criticisms that could be made of the original family court judge’s decisions but he could not be criticised on the evidence that he had available to him.
Wall LJ said that the system should provide a remedy for a miscarriage of justice, such as had occurred here. It required determined lawyers and parties. Where there had been a strong parental denial of abuse in combination with the extraordinary fact that Child B had been fed on supermarket soya milk and nothing else for 12 months or so, it seemed to Wall LJ that the parents would be entitled to have the matter investigated at the most expert level.
Moore Bick LJ and Wilson LJ agreed.
FACTS:-
Mr and Mrs Webster had four children:-
A (a girl born in January 2000)
B (a boy, born in November 2001)
C (a boy born in August 2003)
D (a boy born in May 2006)
In November 2003, B was admitted to the Norfolk and Norwich University Hospital, where he was found to have a number of fractures. He had also had a feeding problem and for at least a year prior to his admission had been having only soya milk. The local authority’s view was that B’s injuries were non-accidental that they had been caused by one or both of his parents. In December 2003, it took out care proceedings in relation to all three children, who by then had been placed with specialist foster parents.
Care orders were made and the three children were put up for adoption. The fourth child was born in the Irish republic, as the parents had gone there in order to avoid his removal. They obtained fresh expert evidence and the upshot was a powerful medical opinion that the injuries of their children were more likely to be iron deficiency/scurvy than abuse.
HELD:-
Lord Justice Wall said that the Family Justice System had a number of critics. However some of that criticism was ill informed, particularly the tendency to propagate or to seize upon the tendentious (and often illicitly disclosed) accounts of the unsuccessful party in the proceedings as was demonstrated in the case of Re H (Freeing Orders: Publicity) [2005] EWCA 1325. There was also a misconception that expert witnesses were “hired guns” for the side that instructed them. This was not the case and that principle was contained in the Practice Direction “Experts in Family Proceedings relating to Children” which came into force on the 1st April 2008.
Wall LJ felt that it would be wrong to criticise any of the social workers or the doctors who advised the family court judge in the care and freeing proceeding relating to the children, A, B and C.
The criteria for appealing against the original decision of the family court was contained in CPR Rule 52.3(6), which was that:-
- the court considered that the appeal would have a real prospect of success; or
- there was some other compelling reason why the appeal should be heard and that there was justification for the massive extension of time.
The Court of Appeal was not a court of review.
The issue of scurvy had been vigorously pursued by the Websters’ counsel before the original family court, although the issue had not been specifically addressed by their solicitors. There was an unfortunate concentration on brittle bone disease, but this may have proved to be a distraction. However the expert evidence in court did not support a finding that nutritional deficit was the cause of the problem, and in fact such a finding was rejected.
One of the children, B had at least 6 fractures and his growth had fallen behind. He was repeatedly described as anxious. A’s teeth were poor, indicating poor diet and oral hygiene. There was evidence from a child psychiatrist about emotional harm.
Wall LJ considered the case of Ladd v Marshall [1954] 1 WLR 1489 which dwelt on the issue of whether fresh evidence could be admitted into court late, either to support an appeal or to support an application for a re-hearing.
In the judgement of Wall LJ, the public policy considerations relating to adoption and the authorities on the point, simply made it impossible for the Court of Appeal to set aside the adoption orders.
Wall LJ also considered Article 6 and Article 8 of the European Convention on Human Rights.
Article 6 stated:-
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 8 stated:-
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
There had been a valuable discussion of Article 8 in the following cases:-
Pini and Bertani (and others) v Romania [2005] 2 FLR 596
Gorgulu v Germany [2004] 1 FLR 894
Wall LJ also considered a number of other European authorities, but none in his view, assisted Mr and Mrs Webster.
There could be no setting aside of the adoption orders, and therefore there was no point in re-opening the judgment of the family court.
Secondly this case did not meet the criteria in Ladd v Marshall.
There were a number of criticisms that could be made of the original family court judge’s decisions but he could not be criticised on the evidence that he had available to him.
Wall LJ said that the system should provide a remedy for a miscarriage of justice, such as had occurred here. It required determined lawyers and parties. Where there had been a strong parental denial of abuse in combination with the extraordinary fact that Child B had been fed on supermarket soya milk and nothing else for 12 months or so, it seemed to Wall LJ that the parents would be entitled to have the matter investigated at the most expert level.
Moore Bick LJ and Wilson LJ agreed.