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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G (a child), Re [2000] EWCA Civ 504 (29 November 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/504.html Cite as: [2001] 1 FLR 872, [2001] 1 FCR 165, [2000] EWCA Civ 504

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Johnson)

		Royal Courts of Justice Strand London WC2
		Wednesday, 29th November 2000

Wednesday, 29th November 2000

1. THE PRESIDENT: There are two preliminary points which I want to make. The first is, of course, that there should be no identification of this little boy or of anybody that might lead to the identification of this little boy, that is to say of the mother, the father, any other relative, local authority, and so on.
2. Secondly, this case has disclosed a situation which is clearly unsatisfactory, although, in the event, with the two extremely experienced High Court judges who tried the case, no-one has suffered, except perhaps Johnson J, from having to take over a case that was to all intents and purposes part-heard.
3. This is a case that for probably quite sensible reasons was turned into a split trial. The first part of that split trial was heard by Mrs Justice Hogg. The second part of that split trial was heard by Johnson J. In my view, it is profoundly unsatisfactory that what is in effect a part-heard case -- the first part dealing, as this was, with whether the mother or the father of a baby boy was the perpetrator of serious physical injuries which led to the death of the baby -- was dealt with by Mrs Justice Hogg as a preliminary issue. It appears that at the preliminary directions hearing it was not suggested that the two parts of the case -- that is to say, whether the threshold criteria were met under section 31 of the Children Act 1989, which Mrs Justice Hogg dealt with, and what I think is sometimes called the disposal part as to what should happen to the child, the child who was alive in this case, which was dealt with later -- should be heard by the same judge. This cannot always be done because High Court judges are expected to go out on circuit and also because people may be away through sickness or for some other reason. But, in principle, it seems to me that it is very important in a case such as this, where a mother gave evidence before Mrs Justice Hogg and again gave evidence before Johnson J, that the same judge dealing with the same child, as it happens, should hear the case throughout if it is possible to do so. I would ask the Bar and solicitors to have this in mind in order to make certain that when directions are given for two parts of a split trial the directions indicate that it should, if possible, be heard by the same judge. The judge should be requested to make sure that the order at the end of the first part of the split trial should indicate that it should be reserved to him or her, if available. The Clerk of the Rules should be told before the second part of a split trial was fixed for hearing that Mr Justice so and so, or Mrs Justice so and so, had dealt with the case in the first half and that it was very important, if possible, that he or she should deal with the second part. I apportion no blame to anyone about this. All I say is that this is an extremely good example of the difficulties, indeed the very great difficulties, for Johnson J in having to do the second part of the case. I would like also to emphasise that although there were difficulties because the split trial was dealt with by two separate judges, it has had absolutely no effect, in my judgment, on the way in which the case was eventually disposed of.
4. The little boy who is the subject of these proceedings, J, was born on 13th September 1996. He is four. At the time of his birth his mother was 17 and a half and his father was 23. They began to live together some time in 1995, before the birth of the child; but by the end of 1997 the relationship between them had run into difficulties and in 1998 they parted. For a variety of reasons that it is not necessary to go into now, there was sporadic contact between the father and his son; and he did not see his son from the early part of 1999 until some later part of this year.
5. In July 1998, when the mother was still, of course, very young, she started her second relationship. The man with whom she was living was the stepfather, in effect, of J. They had a child, R, who was born nearly three months prematurely. R spent a great deal of time in a special baby care unit at the hospital. He died on 13th June 1999. At this time, as I have said, the father of J was no longer seeing his son.
6. During the early part of 1999 R came home from hospital, he went back to hospital, he came back home again and was back in hospital and then returned home two months or so before his death. It is not necessary for the purpose of this appeal to go into the details of R's brief life and his tragic death, save to say that he suffered a number of rib fractures, some of those fractures dating back to a month or more before the death of the child. So we do not have a sudden death from one cause, we have a history of about a month at least of injury to this child. That, of course, was the subject of the investigation before Mrs Justice Hogg. It was not understood exactly what the cause of R's death was, but certainly in June, shortly after the death of R, the local authority was satisfied from medical reports that on death the baby had been suffering from a number of non-accidental injuries. The local authority initiated care proceedings in relation to J. J, of course, had been in the house when the baby died. He was placed with short-term foster parents. His father became a party to the care proceedings. The mother has seen a great deal of the child throughout.
7. Mrs Justice Hogg heard the case and gave judgment on 19th April 2000. She found that she could not come to the conclusion as to which of the parents of R -- that is to say the mother of J and the stepfather of J -- was responsible for the death of the baby. She criticised the parent who was not the perpetrator for failing to recognise that the child must have been in pain or discomfort. She did not accept the evidence either of the mother or of the stepfather: so mother remained as one of the two possible perpetrators. It had to be either herself or the father of R.
8. On 20th June of this year the Court of Appeal, and I was a member of it, heard very well-argued and forceful arguments on behalf of the mother from Mr Jonathan Cohen QC, who represents the mother again today. At the end of his submissions we dismissed the mother's appeal against the finding of significant harm under section 31 of the Children Act 1989 in respect of J.
9. The case came before Johnson J in June, very shortly after the decision of the Court of Appeal. As far as I know, he never saw a copy of the judgment of the Court of Appeal, or, if he did, he certainly did not see it at the hearing because there was no time. He was faced with a very difficult position. The mother was one of the two possible perpetrators of the injuries to the baby, who was the half-brother of J. The local authority sought a care order. Their care plan was that the father of J, who was seeking to come back on the scene, should do so and that he and his partner should take over the care of J. Such a plan would be under the framework of a care order because neither of them would have had the major care of the child before, and they would clearly need considerable help. The father, of course, was, in effect, to a little boy now aged only four, a stranger, if not a complete stranger to his son. He is not so now, but he was at that time a virtual stranger. The mother, on the other hand, had been seeing the little boy on a regular and frequent basis, almost every day of the week. The relationship between mother and child is excellent. The attachment is close. No criticism has ever been made of the mother's care of J. She has demonstrated a loving relationship with him and an ability to care for him well. Nobody, as Mr Cohen has pointed out to us today, has ever suggested that she had acted towards J in an inappropriate way; and he has postulated the proposition that if R had not died or been injured, nobody would have suggested that J should be removed from his mother.
10. It is quite clear from the judgment of Johnson J, which is, as one would expect, careful, conscientious and clear, that he has looked at this case with anxious consideration; indeed he said at the end of his judgment:

"This case is as difficult as any I have tried in my time as a judge."

11. Since he is a senior judge of the Family Division, that is quite some time. He also recognised at pages 18 and 23 of his judgment that the matters to which he referred earlier "constitute if not a certainty then at least a very substantial risk of harm to him", that is to say J, "if he is not restored to his mother". Again the judge said at page 23:

"For J to remain with his mother seems to have enormous advantage to him. She has done well by him, at least since the events of June last year. He has always lived with her or been close to her."

12. He said, at page 24,

"So it seems to me that there is much to be said against the local authority's proposal."

13. There can be no doubt, in my view, that the judge had assessed this little boy's needs. He recognised very, very clearly the love and the good care that this mother had given to her son and his great attachment to her. I find it difficult to accept the criticism of Mr Cohen (to be found in his skeleton argument) that the judge did not adequately assess the effect on J of the order that he eventually made, which was that J should not go to his mother. I have no doubt at all that the judge carefully assessed the immediate adverse impact on J of not going back to his mother.
14. Mr Cohen, in a sustained submission to us, made a number of important points, some of which I have already dealt with, in particular the devoted care by the mother of her son. He dealt with the important evidence of the child psychiatrist and the psychologist. He pointed out that they both concentrated upon future risk but that they differed as to the significance of that future risk. So far as Dr Holt, the psychiatrist, is concerned, he was of the view that the child should return to his mother. He did not say there was no risk: he did not think the risk was a substantial one. He was concerned, and had discussed it with the psychologist, about the possibility that the mother might have an unsuitable relationship in the future, causing stress upon her, with the possibility of an adverse effect on J. He did not think that that was a strong possibility. Dr Van Rooyen, on the other hand, had a far greater concern about the risk to J. She was unable to support the proposal that J should return to his mother.
15. The judge accepted that the major risk for the future was from a future unsuitable relationship following the evidence of both Dr Holt and Dr Van Rooyen. However, he took the view that there was also a risk to J himself. The judge did not accept the assessment by Dr Holt as to the lack of seriousness of the risk. As the judge, he was, of course, entitled to come to that conclusion. It is of some significance that at the time that Dr Holt read the papers and interviewed, possibly even at the time he came to write his report, he had not had a copy of the judgment of Mrs Justice Hogg, which was a long and careful judgment setting out her view of each of the parents of R. It appears that the consultant psychiatrist was sent a carefully drafted letter of joint instructions, no doubt drafted by counsel, as I think Mr Cohen told us it was, and drafted therefore, I have no doubt, with great care and absolute accuracy. I have no criticism that it was in the competent hands of the counsel who is now before me or those who were acting in the court below. He also appears to have received a summarised version of Mrs Justice Hogg's quite long judgment. That will not do, if I may say so. Where a consultant is asked to express an opinion having assessed the parties in the case, that consultant must have all the relevant information in order to be able to give a balanced opinion and not to have that opinion criticised or perhaps sidelined on the basis that the consultant did not have all the relevant information. Johnson J was, quite rightly, very concerned that Dr Holt had received Mrs Justice Hogg's judgment at a late stage and that he should have received it at an earlier stage. However well-meaning the summary was, it is not, and should never be, treated as a substitute for the judgment. I very much hope that that situation will never occur again. It does, however, in my view, raise a question mark over the value of this very experienced psychiatrist, whom otherwise one might have treated with even greater respect. Johnson J was entitled to disagree with him and he did so.
16. Doctor Van Rooyen, as far as know, had far greater access to the documents. In particular, she did see, as far as know, Mrs Justice Hogg's judgment, although she may not have done so. If that is so, all the remarks I have made in respect of Dr Holt are equally applicable, of course, to the psychologist. Dr Van Rooyen was not concerned about the immediate physical risk to J. He is now four, and both she and Dr Holt are conscious of the statistical figures that as children get older the immediate risk to them is less, particularly when they are no longer babies or toddlers. However, she was concerned about a number of matters which came into her long report and to an addendum. She commented that the mother had a history of not being able to maintain interpersonal contact -- by which I assume she meant relationships with others -- that there was a tendency to deny her difficulties and to minimise her situation. She said in conclusion at paragraph 13.10, page 38 of her report:

"Thus from my assessment, it was clearly evident that [the mother] was attempting to deal with an enormous amount on an interpersonal and social level as well as on an internal psychological level. In order to be able to take care of herself and the child in her care, [the mother] would have to undergo significant change and growth with regards acknowledging her difficulties, facing difficulties and making use of support systems, seeking out help and support in every area of her life."

17. The psychologist had been very concerned that she had shown a lack of trust in others; that she was psychologically isolated and was not able to seek support from others, particularly from agencies; that she said that she could cope on her own and, as the psychologist put it, she was not coping on her own. What very much concerned Dr Van Rooyen was that when she was under stress she was denying it, that increased conflict would increase stress and that she was not well placed to cope with the consequences of it. She also pointed out the suggestion that the mother would return to her mother, as in fact she has done, and that there had been some difficulties in the relationship between her and her mother, difficulties from matters which it is not necessary to refer to in the judgment in public. But those were matters that would cause problems, in the view of the psychologist; and she wondered how long she would be able to stay as an adult daughter in the home with her mother. That in itself created some elements of stress, quite apart from the very considerable concerns that Dr Van Rooyen had about the sort of relationship that the mother might form in the future. The relationships that she might form in the future were particularly commented on by the judge perhaps more than the matters to which I have just referred, although the judge does refer in his judgment in some detail to the matters about which I have just spoken.
18. Mr Cohen, in taking us with some care through the evidence of the two experts and the fact that both experts were more concerned about the future possible relationships, was concerned as to the way in which the judge dealt with this. But he first suggested that the judge had made factual errors in his understanding of the judgment of Mrs Justice Hogg, and he suggested that in a case that was as finely balanced as the present case, even small factual elements might have such a bearing as to tip the case from one side to the another. I am not by any means certain that I accept that as a general proposition. But, in any event, I do not accept that either of the points raised by Mr Cohen was a crucial one. Secondly, I do not accept that his criticisms of the judge were justified. I do not for my part consider the judge got these facts wrong.
19. I turn therefore to what is clearly the major area of Mr Cohen's criticisms of the judge. He says that the job of the judge in a case like this is to identify the risk, assess the risk and to balance against that assessed risk the safeguards that are offered to see whether those safeguards meet the risk which has been assessed by the judge. He says that the judge in this case did not assess the future prospects of the risk, in particular he did not assess whether those risks were likely to materialise and he relied upon the duty of the judge under section 1(3)(e) of the Children Act, which specifically relates to risk.
20. The judge did not set out the terms of Mr Cohen's submissions, which I have summarised I hope accurately. But he did deal in his judgment with all of those matters.
21. I have no doubt at all, reading through his judgment, that he clearly understood what the risks were. Indeed, he says at page 25, line 7,

"That risk is described, in my view accurately, as 'substantial'. I accept that the risk may be greater due an to an unsuccessful relationship with a violent partner, but there is a risk there even on the basis that R was hurt by [his father]. More properly described, the risk is that if the mother were in a violent or unsatisfactory relationship, J would suffer physically at the hands either of the partner or the mother herself."

22. I find it difficult to see how it can be said that the judge did not identify the risk and did not assess what it was. It is quite clear that he thought it was a serious risk. If a risk is serious, one has to be able to deal with it in a very effective way. It seems to me that he has taken all the relevant matters into account. He heard the evidence of the mother. He formed the same view of the mother and the lack of veracity of her evidence as Mrs Justice Hogg did. It seems to me, summarising the risks that are apparent from the papers and taking the judge's findings, that, first of all, there is a real risk, that it is a substantial risk and that it is a risk to J himself.
23. One then looks, as the judge did, at the way in which one should approach this, and he looked at and adopted the way in which Lord Nicholls dealt with it in the decision of the House of Lords in Re H [1996] 1 FLR 80.
24. The judge looked at future relationships. He did not again set out, because he had set it out earlier, but I set it out just for completeness, that the mother has difficulties with relationships. She is now 21. She has already had two failed relationships and by those two relationships she has had two children. The second relationship was disastrous and ended in the death of her baby son. To suggest that a nice looking girl aged 21 is not going to form another partnership in the next few years and is going to remain either with her mother or in a celibate existence on her own is flying in the face of commonsense, in my view. She is most likely to find other relationships: one or more. Mr Cohen was quite upset at my suggesting, perhaps in a rather colloquial way, that her track-record was not good. But, again, to reach the age of 21 and have failed in two relationships is a sad situation.
25. Then one reads what the psychologist has said about her problems of interpersonal relationships and a great deal more about her difficulties, which I have not referred to in this judgment.
26. It seems to me that the judge was perfectly entitled to think that she would be at considerable risk of forming a relationship that was, from her perspective, unsuitable at some stage. The effect of an unsuitable relationship would be to create stress. If the relationship was not only unsuitable but violent, it would create a great deal of distress. It might actively affect J. It might affect him physically. It might affect him emotionally. It is bound to affect him emotionally. There is all too much evidence now about the adverse effect upon children of violent relationships between the adults with whom a child lives. We know from the evidence before Johnson J, and it was almost presciently thought possible by Mrs Justice Hogg in her judgment, that J might actually have suffered from the death of R. He was in the house when R died: he would have seen him dead. He certainly saw the ambulance coming; and there was evidence before Mrs Justice Johnson that he was playing a game around so the sofa with a little car which he called an ambulance, that he was saying that R went to hospital, and where was R and that he wanted R back. The judge found that he had actually suffered significant harm in relation to what had happened to R.
27. As to the dangers for this mother of future relationships, one hopes very much for her sake that she will find a very nice man with whom she will have a peaceful relationship. But that may not be on the cards. It is not necessary in order to assess future risk, as Lord Nicholls pointed out in Re H, to have a 51% percent probability that this will happen. Mr Cohen suggests that the judge failed to consider whether the risk would materialise. You are not going to say there is a substantial risk unless it is going to materialise. What you have to say in relation to risk is: is there a genuine possibility? A real possibility. Some matters upon which it can properly assess the possibility. You do not assess the probability. The judge has gone beyond, it seems to me, the necessary standard that Lord Nicholls required in the way in which he approached this very, very difficult problem; and he has set out, in the passage to which I have already read at page 25, the risks that he saw.
28. The second matter that Mr Cohen raises is that not only did the judge fail properly to identify the risk, to assess the seriousness of the risk and whether it was likely to materialise -- those two, it seems to me, have to go together -- he also did not weigh those risks against the safeguards offered by the mother and her mother, who has come along to support her daughter and provided a package that Mr Cohen suggested was more than adequate. The mother was prepared to accept a supervision order, she was prepared to accept a number of conditions on the residence order and, of course, she would, for the time being, have the support of her mother. But, at page 17 of his judgment, Johnson J said:

"Whilst I accept that the maternal grandmother has the normal instincts for the protection of her grandchild, the fact remains that she does not truly accept that there is a real possibility that it was the mother who inflicted the injuries on R, and it is difficult for anyone, whatever their intention, to be regarded as a wholly reliable guard against a risk the existence of which they are not wholly convinced."

29. The judge, in my judgment, was entirely justified in looking at the grandmother as a not entirely strong safeguard when she could not -- as I can perfectly well understand as a grandmother -- accept that her daughter had killed her grandson. Her daughter may or may not have done it, but Mrs Justice Hogg has left it that she may have done. Consequently, there is a serious flaw in the immediate safeguards that are provided.
30. Mr Cohen, quite understandably, made play, as he was entitled to do, of the fact that mother was prepared to accept a supervision order. It seems to me that there are considerable problems about a supervision order, the first of which is that neither the local authority nor the guardian ad litem accepted that that would be adequate; and indeed the proposal is that the father and his partner should have this child under a care order. The supervision cannot be to the extent of a care order, even if under a care order the child is placed back with the natural parent. There are statutory requirements to a care order which are far more stringent than statutory requirements for supervision, and a supervision order may take place on a frequent or infrequent basis, but what you require with a supervision order is the cooperation of the mother.
31. To come back to Dr Van Rooyen, whose concern was that the mother would be psychologically isolated, not find it easy to trust, not seek the help and support of others, particularly professionals, since with a supervision order it would be necessary to have a very close and good relationship between the local authority and the mother in case something went wrong in the meantime. But it does not appear to me that it would be likely that the mother would rush to tell the social worker about it.
32. The judge, in my view, was entitled to come to the conclusion that the safeguards put forward, which might be adequate in some circumstances, were not adequate in the present case. The judge also pointed out at the bottom of page 25 that the mother's relationship with her own mother was extremely poor a couple of years ago, and he sets out some of the reasons for it, which, as I say, I do not think it is appropriate to set out or to say anything about in open court. But those are factors which the judge was entitled to take into account. The judge said at page 26:

"I am to put in place a regime that must last not simply for a matter of weeks but for months or even years. At the end of the day one comes back to the position that two judges who have listened to and watched the mother give evidence have found that she represents a substantial physical risk to any child in her care, that she has not been wholly frank and that she has withheld information about R's death."

33. I have already pointed to the fact that if, as she would have the court believe, it was the father who hurt R, it was surely alarming that she did not bring her relationship with that man to an end. I ought, in fairness to Mr Cohen to say that he criticised the judge about that. It is true to say the relationship with the father of R was not on particularly good terms in the last six months that they were together, but she did continue to live under the same roof as him, with occasional sexual intercourse with him, and she did continue to cook and clean for him. That was the point that the judge was referring to.
34. The judge then concluded:

"I have decided that my duty to J, in the light of the evidence that I have heard, leads me to make a care order."

35. It was an extremely difficult case. In such a case where the judge was clearly thinking over a number of weeks what was the right thing to do, balancing, as he obviously did, all the factors, it is extremely difficult, if not impossible, for the Court of Appeal to interfere unless the judge misdirected himself in a fundamental manner or, standing back and looking at the decision, he was plainly wrong. I am satisfied that the judge tried this case with great care and most conscientiously. It is not the job of the Court of Appeal on paper to second-guess the judge in such a difficult case. Mr Cohen made a valiant attempt to pick holes in the judge's judgment, but, in my view, he was quite unable to sustain the criticism that he made. In my view that criticism was unjustified.
36. There is no suggestion in the proposals of the local authority and the guardian ad litem that the father and his partner are not suitable. There is no a question of placing this little boy for adoption and removing him from his natural family. He is to be placed with his father. The effect of being placed with his father is that he does not lose a relationship with his mother. It is perhaps the only comfort in this case that because he goes to father he can retain a relationship with his mother. I am sure that his father, and particularly the father's partner, realise how important the mother is to J. When J is settled with the father and his partner I have no doubt that he and she will make it possible for contact to be successful; not just going through the form of contact but actually making it easy for J to move from them to see his mother, because they must realise (and I say it again) just how important the mother is to J. The fact is that two judges have shown, particularly Johnson J, that she does remain a risk to his long term care; but they have not said that she should not have a real and strong continuing relationship with him. The mother, however, will have to come to terms with the fact that she will see J for purposes of contact and that J will not be living with her. She must not seek to undermine J living with his father and partner. If she does, incautiously or without realising it, try and make J feel either that he ought to be living with her or that one day he might go back to live with her, she will make life for J extremely difficult. She will also make life for J's father difficult, and that would have an adverse effect upon the way in which contact continues. The mother would be very silly to let J feel that he ought to be living with her because, let me put it very bluntly, it could sink her contact; and this is very, very important because the only comfort of this case is that J retains both parents.
37. I would dismiss this appeal.
38. LORD JUSTICE LAWS: I agree that this appeal should be dismissed for the reasons given by my Lady, the President. In my judgment Mr Cohen's submissions constitute a considerable measured and elegant attempt to persuade this court to differ from the judge as to the factual merits of the case in circumstances where there was no such weakness in the reasoning or finding of Johnson J as may justify our embarking on such an exercise.
39. LADY JUSTICE HALE: I agree that there is no basis for an appellate court to interfere with the very difficult and delicate decisions that were taken in this case. The fact that they were so difficult and delicate makes it all the more unfortunate that the case was timetabled, as it was, with a fact-finding hearing before one judge and an order-making hearing before another. I am in no position to allocate any blame for that decision; but everyone in these cases has a responsibility - the parties, especially the local authority, who are the applicants, the guardian ad litem, who appears for the child, and the courts as part of their role in actively managing care cases - to ensure that it does not happen unless it is quite unavoidable.
40. Split hearings like this can be very useful when there are early decisions which can be made about factual disputes, for example as to the causation of a child's injuries. Once that has been done, assessments can be made in the light of those findings and this often produces acceptance, understanding and movement on the part of those who will be involved in the child's future. In my experience the later hearing, if that takes place, can often be quite short. But the early hearing has to be early, not many months into the case, and it has to be clearly focused.
41. We have had time-tabling and active case management in care cases for a very long time now. We are proud in the Family Division that we embarked on that process long before it was embarked upon in other areas of the civil law. The best practice, I accept it is not always possible, is that when the decision is taken that there should be a split hearing both should be timetabled together, i.e. at that time. A timetable should be set which includes both hearings and before the same judge. If, for some reason, it is not possible to timetable them both together, the second hearing must be reserved to the judge who is to take the first hearing, and that must be in the order. If that judge finds that he or she cannot meet the timetable, the first solution should be to try and rearrange the second hearing to a time when that judge can undertake it. Thus, unless there is a very good reason for matters to be altered, that should be plain to all concerned.
42. It is vitally important. The Children Act does not expressly provide for split hearings. These are part-heard cases. The assessment of risk comes into both parts of the hearing. If the child cannot yet be shown to be suffering significant harm, the issue in part one is whether he is likely to do so. If the case passes the care threshold, the issue in part two is what order will be in his best interests bearing in mind the check list in section 1(3) of the Children Act, which includes any harm that he has suffered or is at risk of suffering.
43. In this particular case I agree with Mr Cohen that the issue is risk. All the other relevant factors in section 1 of the Children Act point towards reuniting J with his mother, whom he loves, and whose care of him, while not entirely trouble free, was previously thought at least good enough. I agree also with Mr Cohen that any risk assessment involves a careful analysis firstly of the nature of the risk, that is, what may happen to the child; secondly, the likelihood of that risk materialising; and, thirdly, what can be done to safeguard him or her from it.
44. Some cases are very difficult; and they can be made more difficult by the nature of the task confronting the fact-finding court. Even in a case like this where it is clear that a child has suffered non-accidental injury at the hands of one or both parents, it may be impossible for the judge to decide which ones in the light of the guidance given by the House of Lord in the well-known case of Re H, although for my part I would regard the threshold of incredulity that such things can ever take place as being much lower once it is clear that the thing has indeed taken place. But the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator, even though that has not been proven. That is an ironic result of the decision in Re H, because the main thrust of that case was to decide that children should not be subject to care orders on the basis that something may have happened rather than on the basis that it did happen. Perhaps at some time in the future somebody will consider that. But this makes it all the more important that the judge who heard the evidence about those events also hears the evidence about what should now be done, particularly as that later evidence is more likely to include evidence of character and propensity, which may well not have been put before the fact finding hearing for very good reasons.
45. Nevertheless, despite all the difficulties which both judges faced, particularly Johnson J, and despite Mr Cohen's valiant (which in my judgment is exactly the right word) efforts to persuade the court, it is quite clear that Johnson J did conduct that tripartite exercise. He did consider each of those factors and it cannot be shown that he left out of account anything that he should have considered as part of that exercise or that the outcome of the balancing exercise was plainly wrong. Nor, I am bound to say, after looking at the evidence and the careful judgment given after lengthy hearings in this case, could I possibly reach the conclusion that the lack of judicial continuity did any disservice to J and his parents in this case.
46. For those reasons as well as those expressed by my Lady and my Lord, I agree and I dismiss this appeal.
Order: Appeal dismissed. Legal aid assessment.