No B1/2002/0073,   B1/2002/0072, B1/2002/0402, B1/2002/0403
Neutral Citation Number: [2002] EWCA Civ 752
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATIONS FOR PERMISSION TO APPEAL WITH
WITH APPEAL TO FOLLOW IF GRANTED

Royal Courts of Justice
Strand
London WC2

Date: Wednesday, 24th April 2002
B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE BUXTON

MR JUSTICE JACKSON

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B (a child)

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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MR P STOREY QC and MR A WENTWORTH (Instructed by Legal Department, Peterborough City Council) appeared on behalf of the Appellant
MISS S DINES (Instructed by Hazel Chapman of Peterborough) appeared on behalf of the First Respondent
MISS J BAZLEY (Instructed by Kirkpatrick of Peterborough) appeared on behalf of the Second Respondent    
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J U D G M E N T

1.	LORD JUSTICE THORPE: On 19th February an order was made by Lady Justice Hale directing two appeals for oral hearing on notice with appeal to follow if permission granted. Both appeals come from the Peterborough County Court where judgments were given in relation to the same case by His Honour Judge McKittrick on 17th December 2001 and 21st January 2002. The parties to the proceedings are the local authority, Peterborough City Council, which is the unitary authority, the parents of the child in question S and JB and the guardian ad litem who represents their child L.
2.	The parents married in 1992. L was born prematurely in hospital on 15th June 2001. He was discharged on 20th June. On 17th July he was re-admitted to hospital in the morning seriously ill. He was there cared for by two paediatricians, Dr Tuck and Dr Sumner, Dr Sumner replacing Dr Tuck at a relatively early stage when the former went on annual leave. He was subsequently discharged from hospital to foster parents, principally because of paediatric concerns set out by Dr Tuck in a letter of 20th July to the in-take and assessment team of the local authority. He concluded his letter by saying:
“My reason for reporting this case to you is that we do not have an explanation for [L's] sub-dural haemorrhages which appear to be of recent onset. It is known that trauma, including shaking, can often cause these. However, there is no history of injury, and investigations have not shown any other features of non-accidental injury.”
3.	Care proceedings were initiated and as they developed directions were given for a split trial, the first stage of which was designed to establish the causes of L's injury and responsibility for those injuries.
4.	The questions that were drafted for preliminary determination by the judge were these: (1) Was L's illness on 17th July attributable to an injury or injuries or to an organic medical condition? (2) If L's illness was attributable to an injury or injuries was that or were they of a non-accidental nature? (3) If L suffered from non-accidental injury or injuries (a) when was it or were they inflicted; (b) who was responsible for, or inflicted, the injury or injuries?
5.	The case was seen by the local paediatric experts as complex because these subdural haemorrhages were unaccompanied by any other sign of physical injury. Accordingly, the case was sent by way of ultimate referral to Dr de Sousa at Great Ormond Street Hospital. Dr de Sousa is a consultant paediatric neurologist in the Department of Neurology at Great Ormond Street Hospital. But during the course of his oral evidence he established that he had had a general training in paediatrics and paediatric neurology and had been dealing with cases of non-accidental shaking injury as a clinician since 1981. He had held consultant posts at Morley's Hospital and St George's Hospital prior to his appointment at Great Ormond Street Hospital. He was, accordingly, recognised by his paediatric colleagues in Peterborough as being an entirely appropriate person to take an ultimate referral.
6.	There was a suggestion prior to the fixture on 17th December that the judge should decide the three questions posed on the medical report alone supplemented only by such statements as the parties had filed in the case. However in the end he heard oral evidence from Dr de Sousa and from Dr Tuck as well as oral evidence from a social worker, Rachel Sensicle. Mr Storey QC - who, in this appeal, has argued the case for the parents together - emphasises that all other cases of subdural haemorrhage considered in the reports have been buttressed by other recorded physical injury. So he says this is a unique case in that there is no other reported use in which the court has reached positive findings reliant only upon the medical evidence of the subdural injuries.
7.	The feature of the case which struck me more immediately was that this case is to be distinguished from most if not all others in the reports in that the judge heard no oral evidence from the parents. Of course there was no obligation on the parents to give oral evidence. In his judgment the judge dealt with this issue in a way that was more than fair to the parents for he said only this:
“[L's] parents have filed statements in the matter but elected not to give evidence before me, which is, of course, entirely their right and I do not draw any adverse inference against either of them for not so doing.”
8.	The judge, having heard the evidence to which I have referred, delivered a reserved judgment which is relatively brief but comprehensive. He answered the three questions posed as follows. To the first he answered that L's illness was to be attributed to injury or injuries. Secondly, he answered that that injury or injuries was or were non-accidental in nature. To the third question he answered that the injury had, on the balance of probabilities, been inflicted in the six hours up to L's serious deterioration, that is to say, between midnight on 16th July and 7.00 hours on 17th July. He added that the responsibility lay with one or other of the parents but that it was not possible to identify which.
9.	The applications for permission to appeal those findings were separately lodged with the court by both the mother and the father and they advanced identical grounds which I will cite in full since they are relatively succinct:
“1. Having accepted the medical evidence that a confident diagnosis of non-accidental injury could not be made, the ..... judge was plainly wrong in concluding that the injuries were non-accidental.
2. The ..... judge erred in law in that he made a finding of non-accidental injury in the absence of sufficiently cogent evidence to support such a finding and/or plainly wrong in making such a finding.
3. The ..... judge failed to identify any cause for the injury. Although he found that one of the parents caused the injury he did not say how. The only suggestion made in the evidence as to how they may have caused it in a non-accidental fashion were by shaking or shaking and impact. The agreed medical evidence of all three experts was that these were no more than possible causes.
4. Although the ..... judge set out the relevant law he failed to apply it properly to the evidence and found the parents responsible for the injuries in the absence of any direct evidence as to causation.”
10.	Reverting to the proceedings in the County Court, following his findings the judge went on to give directions to carry the case forward towards the second stage of the split trial. It was agreed that an expert, namely a child psychologist, should carry out a risk assessment of the parents against the background of the judge's findings. It was agreed that the guardian should be responsible for instructing the expert and for acting as the lead solicitor. However there was an issue as to whether the guardian should include in his letter of instruction the evidence of the social worker, Rachel Sensicle. Her evidence was entirely secondary. Its introduction arose in this way. The father had a son - C - who was born I think on 15th September 1984, and who was, by the year 2001, a 17 year old in foster care but having regular contact, including staying contact, with his father and with his present wife Jenine, therefore C's stepmother. The local authority had had considerable involvement with C's management and development over the years, and had accumulated four lever arch files in the course of the discharge of their responsibilities. The evidence of Rachel Sensicle consisted of her summary and distillation of those four lever arch files. She achieved the task over 85 paragraphs of a statement, opening the record with the entry of May 1993 when C had moved to live with his father and stepmother. Her review closed with an entry in December 2000 to the effect that C would remain with his foster parents for the remainder of his minority and that contact with father and stepmother had been renewed and was gradually extending.
11.	In relation to the issues before the judge at the first stage of the split trial, what was the relevance of this material? The general picture presented by Miss Sensicle is by no means all one way. However the prevailing flavour is undoubtedly critical of the father and to a lesser extent of C's stepmother and, accordingly, can be fairly said to be damaging to them in any appraisal of their parental capacity and responsibility. However in assessing what had happened to L and who might be responsible for that, Judge McKittrick concluded thus:
“That evidence is weak, unsubstantiated and hearsay. I place no weight on it and I make no findings on it, other than to say that it has, in my view, no probative value for the purposes of this hearing.”
12.	However the issue as to whether that information should go to Dr Gilham was a very different issue and was set down for a directions hearing on 21st January. The parents' solicitor Mr Davidson sought to exclude that material from Dr Gilham's survey entirely. Alternatively, he sought the judge's ruling that if it was to become part of the case material for the second stage of the trial then all four lever arch files should be disclosed to the parents' litigation team. The judge considered this issue against the background that for the purpose of the first stage of the split trial it had been agreed between the parties that the parents' team would be permitted access to the files to the extent that they should have the opportunity to check those documents that had been expressly summarised by Miss Sensicle in her statement. In addition, the judge decided the issue against the background that the guardian had had the opportunity to inspect the files and had satisfied himself that Miss Sensicle's summary was both accurate and fair. So the judge decided the issues against Mr Davidson's submissions. He said that it was plainly necessary for Dr Gilham to see the material relating to C in order to achieve a balanced assessment of risk. He went on to hold that the files should not be made available to Mr Davidson, partly because the guardian had already carried out some independent survey and partly because he did not regard the material relating to C as having sufficient relevance to future decisions as to L's future.
13.	That judgment was also the subject of applications for permission lodged by both parents, and again they rely upon identical grounds. It is not necessary for me to summarise those grounds, in large part because the case - as presented to us today orally by Mr Storey - has taken a very different shape to that which the grounds sought to make.
14.	It is convenient to consider first of all Mr Storey's submissions on the first appeal. I hope that I do no injustice to him in saying that his principal submission goes thus. First, he says that the issues of fact for determination were to be determined by the judge on the medical evidence. The judge, quite rightly, put the evidence of Miss Sensicle to one side as being of no relevance. Therefore he had to decide the issues on the evidence of the three doctors alone. Secondly, he says that those three doctors were in complete agreement that the conclusion that the illness was caused by injury was never more than a possibility, and all were agreed that it was impossible to elevate it beyond possibility to anything approaching either a confident diagnosis or a convincing diagnosis. All were agreed that it was unusual to find subdural haemorrhages of this character unaccompanied by any other physical injury in non-accidental cases. Mr Storey proceeds to inevitable reliance upon the burden of proof resting on the local authority, and the standard of proof, as established by the decision of the House of Lords in H and R. Inevitably, he refers to the speech of Lord Nicholls that emphasises the requirement for great cogency where the fact asserted is of a life-threatening injury to a neonatal child.
15.	Mr Storey submits that in those circumstances the judge, properly directing himself, would have stopped the case then and there. He submits that it was quite impossible for a judge to find, on a balance of probability test elevated to reflect the gravity of the charge, that he was satisfied on any of these charges
16.	The submission seems to me to ignore the very different functions of the professionals in a judicial investigation of this sort. It is important to focus on those functions and not to confuse them.
17.	The expert of ultimate referral was there to guide the judge as to the relevant medical and scientific knowledge, inevitably expressing himself in medical language. The judge's function was a very different one. He had to consider the question posed by Section 31 of the Children Act 1989 as to whether L was a child suffering or likely to suffer significant harm and whether that harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him, if the order were not made.
18.	The judge in this case was, in my view, handicapped by the fact that he had no opportunity of assessing either of these parents through the process of examination in-chief, cross-examination and re-examination. He had to discharge his duty on the basis of the evidence that was given by the doctors, and particularly the evidence of Dr de Sousa. Dr de Sousa was called by counsel for the guardian and examined in-chief. His essential opinions in the course of that examination can be extracted from the following passages, the first at the outset of his examination. He was asked by counsel the following question:
“Q. In relation then to your opinion as to shaking or shaking and impact injury, a possible cause, perhaps you can just help me with other possible causes and where they would fall in terms of likelihood or possibility? You obviously have in your report considered other matters that might be relevant in this context. Of the possible causes which is the front runner possible cause, if I can put it that way?
A. The front runner possible cause of subdural haemorrhage is non accidental injury.”
19.	He went on to say that in order to elevate that to a confident diagnosis he would - 
“look for evidence not only of subdural haemorrhage but of some other form of injury as well - [such as] retinal haemorrhage, brain swelling or injuries elsewhere,”
	none of which were present in L's case.
20.	From there he proceeded to this proposition:
“Q. So am I right, you have shaking or shaking and an impact as a possible cause here, but there is no other identified possible cause?
A. That is right.”
21.	Counsel went on to ask whether there were other medical causes known to science. The doctor listed a series of conditions other than injury which could result in subdural haemorrhage. He was asked whether those were within the bounds of realistic possibility, and he said that they were realistic conditions and not conditions to be picked up from far extremes. But he then went on to say that none of those recognised medical causes had any application to L's case. He was asked whether there might be some other possible cause other than non-accidental injury that was as yet unknown to medical science. He conceded that that might obviously be a possibility.
22.	Finally, he was asked to clarify the extent of his review. He said:
“I principally was giving an opinion on the medical information, so I did not include in my opinion anything derived from family information. It was based really on the medical information alone.”
23.	Counsel asked whether that included the immediate history, and he said:
“I would certainly look at the accounts that were given of a child's medical condition before they came to hospital and their general medical condition over the days and weeks before. So those aspects of the history are certainly important and may give additional information. Details of the social background and so on were not part of my medical report.”
24.	Dr de Sousa was further questioned, both by counsel for the local authority and cross-examined by counsel for the parents. But really nothing in his subsequent questioning either added to or detracted from the essential points that had been established in his examination in-chief.
25.	It seems that on that very carefully stated and carefully balanced appraisal the judge would have been failing in his primary protective function if he were to have acceded to some submission that because the doctor had not been prepared to say in medical language that there was a confident diagnosis therefore there was no evidence of risk of harm. The elevation of a medical opinion to the status of a confident medical diagnosis is very much a matter of art and bounded by medical conventions that are fully recognised and, indeed, negotiated at a professional level. What this doctor was saying was that the child's condition was entirely consistent with non-accidental injury and that there was no other more probable explanation. The case, in my view, is as straightforward as that. Although Mr Storey sought to say this is some dangerous invasion of the right of parents to presumptions of innocence and to safeguard from adverse findings absent the strongest and clearest of evidence, those submissions, in my opinion, are not realistic in the facts and circumstances of this particular case. 
26.	The parents had their opportunity to make their contribution to the judicial investigation; they chose not to do so beyond submitting statements. It seems to me that although the judge, rightly, drew no inferences from that, there were inevitably risks of consequences for them in having stood aside.
27.	I would grant permission in this first appeal, but I would myself dismiss it.
28.	The second appeal is much simpler to dispose of in the light of Mr Storey's realistic concession that the judge was obviously right to direct that Miss Sensicle's summary of C's involvement with social services should go to Dr Gilham. Mr Storey makes the forceful point that the judge was plainly wrong to conclude as he did (at page 4 of his second judgment):
“The files that are concerned here are those entirely relating to [C] and have no relevance to the child whose welfare is in issue.”
29.	In so stating, the judge must have been inadvertently putting himself back into the position he held on 17th December when deciding the preliminary issue. Clearly, by January when he was looking on to the disposal hearing the record in relation to C was highly relevant to any decision as to L's future care. The point is not really debated or disputed by Miss Dines for the local authority. That fundamental error having been exposed, it is clearly open to this court to exercise its discretion afresh. How to do so is by no means straightforward. On the one hand, Mr Storey submits that to allow the local authority - the applicants for the care order and the architects of the care plan - to have an unfettered discretion to select from case files what material is considered by the judge in an assessment of these parents' performance in relation to C is fundamentally unfair and breaches their Convention rights. He speaks of his own extensive experience of cases in which the inspection of the full record has revealed that the summary is by no means complete and may even be one-sided. He points to an instance in this case identified by Mr Davidson in his submissions to the judge on 21st January, an example that he had been able to cull from the right of inspection that had been granted to him by order of 16th November.
30.	In opposing the application, Miss Dines makes some quite extensive submissions. She suggests that this would be a floodgate and would be construed by trial courts up and down the land as some sort of right of inspection which would be exercised in almost all cases. She points to the possibility that the files contain material confidential to C. She says that, as a matter of good practice, her clients would have to consult C before making any disclosure of the files. She says that C should therefore have separate representation because of his Convention rights. She says that in any event this is a public immunity situation and the local authority would want to instruct counsel to carry out a review of the file to ensure the protection of the interests of C and possible third parties.
31.	It seems to me that all those submissions range far too wide and, accordingly, fail to persuade. If there were anything within the file that was particularly sensitive either to C or to third parties, then surely it would have been specifically asserted by the local authority either below or here, for, after all, they have carried out a relatively recent review through Miss Sensicle. I think the decision we take in this case is very much fact specific and of little guidance to any other case. The situation is relatively rare in that the file relates to a child for whom both these parents have parental responsibility. The file contains a lot of material that either establishes or illustrates their capacity and responsibility as parents. However unusual, all this history exists only in these retained records. In the generality of cases where the judge takes account of parental performance in relation to older children, the record of their performance is established within earlier litigation processes which will be there in filed statements and reports or there in judgments. Here, these retained records are the best and probably only evidence of this parental history.
32.	I see force in Mr Storey's submission that even the most careful summariser can inadvertently present a picture that is not completely round or balanced. I accept his submission that the liberty to the parents might enable them to extract material that would, to some extent, mitigate passages that, as they are at present recorded, go to their discredit. Above all, I think it is extremely important, given the gravity of the findings that have already been made against these parents and given the fact that they have yet to present themselves to the court for appraisal both as witnesses and as parents, that they should have confidence in the fairness of the process. In this case I have come to the conclusion that we should exercise our discretion to permit that which the judge refused. It is somewhat alarming to hear from the guardian that had he done a complete exercise on these files it would have taken him two days. It does seem to me that there must be a measure of good sense and discretion in the implementation of this permission and we may need to give directions in due course as to how it is to be exercised. Certainly we will need to give directions, as Miss Bazley invites us, to ensure that the fixture -five days commencing on 8th July - is not jeopardised nor the time table set by the judge for the concluding interlocutory stages put at risk.
33.	To that limited extent I would grant permission and allow the second appeal.
34.	LORD JUSTICE BUXTON: I agree with both of the orders proposed by my Lord in respect of the first appeal, and I do not wish to add anything. I also agree with the orders he proposes in respect of the second appeal.
35.	I would only venture to say this. Mr Storey, in his submissions to us today, realistically recognised, and, it is fair to say, stressed, that the history in respect of C may well be at this stage of the proceedings relevant and possibly even important to decisions the court is going to have to make. In those circumstances - particularly bearing in mind the nature of these proceedings - it is important that that history should be before the court in a fair form and also that it is before the court in a form that commands the confidence of the parties. In most cases, as my Lord has said, material in relation to children other than those directly subject to the proceedings, but which is relevant to those proceedings will be available to the court in a form that has already been tested in other proceedings. That is not so in this case.
36.	I could well wish, simply from the point of view of economy and in the interest of these proceedings progressing speedily, that there was some other way of achieving fairness in the case of the C material other than by an extensive survey of it by persons acting on behalf of parents. But, like my Lord, I can see no other solution in the case of this particular material that will achieve the objectives I have set out.
37.	For that reason, with some reluctance though not with any doubt, I agree with the order my Lord proposes and with the reasons he gives.
38.	MR JUSTICE JACKSON: I agree with both judgments, which have been given.
Order: Minute to be prepared and lodged