Case No: B4/2008/1553
Neutral Citation Number: [2008] EWCA Civ 928
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WARRINGTON COUNTY COURT
(HER HONOUR JUDGE CASE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 8th July 2008

Before:

LORD JUSTICE THORPE
and
LORD JUSTICE TOULSON
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IN THE MATTER OF B (A Child)

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Ms L Sweeney (instructed by ) appeared on behalf of the Applicant Mother.

Ms S Mann (instructed by Messrs Colin Jones Solicitors) appeared on behalf of the Applicant Father.

Mr S Parker (instructed by the Local Authority Legal Department, Legal Services) appeared on behalf of the Respondent Authority.

Ms R Heppenstall (instructed by Susan Howarth & Co) appeared on behalf of the Respondent Guardian.
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Judgment
Lord Justice Thorpe:

1.	On 2 July an application was received in this court for permission to appeal the refusal by HHJ Case of an application by the mother to be assessed between the judgment on the fact-finding hearing, which took place on 4 June in Warrington, and the disposal hearing, which is listed only for issue Resolution Hearing on 10 October.  It seems that the application was considered by my Lord Wall LJ on that very day and he ordered an oral hearing of the application on notice with appeal to follow if permission granted.  He pointed out the considerable difficulties that would confront the mother, but continued that the authorities cited in the provisional skeleton argument justified the opportunity to the mother to persuade the full court that she had an arguable appeal.

2.	Wall LJ was anxious to avoid unnecessary representation so he pointed out that if the guardian adopted the same position as the local authority, one counsel would suffice.  

3.	Unfortunately his order was not served on the parties until 7 May and in those circumstances we have not only the local authority but also the guardian opposing this permission application.  There is also a development quite unforeseen by Wall LJ, namely two days later on 4 July the father issued an application himself for permission to appeal the refusal of his application for an assessment.  So what happened on 4 June was that the judge delivered or handed down a written judgment that contained all her findings on the disputed issues of how the little boy, J, had come to sustain really extremely serious injuries.  The judge’s findings were trenchant.  She was extremely critical of the mother, who she clearly thought to be the more likely of the two perpetrators.  However, that state of mind at the conclusion of the mother’s evidence was shifted by the father’s evidence.  Having heard him, the misgivings that she held concerning the mother, as it were, spread to include the father and by the end of his evidence she was undecided as to who could be held responsible for what.

4.	So it was after she had handed down this highly critical judgment that counsel for the mother rose to apply for an assessment by a specialist consultancy between that day and 10 October next.  Of course, for the mother went the argument that  the agency was ready and willing to take the case and that their report would be ready in good time and would not pose the smallest risk of derailing the IRH hearing.  Furthermore the point was made that no other assessment was contemplated by either the local authority or the guardian.  However, the judge refused both applications in terms as robust as those contained in her judgment.  

5.	In the course of the last 24 hours we have received a perfected skeleton from the mother, a skeleton argument from the local authority and the guardian and a notice of application and skeleton argument by the father.  This afternoon we have heard Ms Sweeney supporting her application for permission but opposing the father’s application.  We have also heard Ms Mann advancing her application on behalf of the father and opposing the mother’s application. So the forensic stance adopted by these two parents, each seeking to heap blame on the other, has been maintained into this court.  It is a forensic position that the judge described as the “cut throat” defence.

6.	So the only question in my mind is whether it could be said that the judge had fallen into error on the facts of this particular case in refusing the assessment.  Well, that question is easily answered by reference to the very cogent skeleton arguments that have been filed by Mr Parker for the local authority and Ms Heppenstall for the guardian.  So cogent are they that it seemed unnecessary to me to invite either to expand their skeleton with oral submissions.  

7.	The foundation of their position is to be found in the judge’s written judgment where at paragraph 21 she said in relation to the mother’s position:

“The mother is a LIAR.  I find as a fact that she invented as she went along.  She was totally unreliable I cannot believe a word she said.  In fact by the end of her evidence sadly I have become quite sure in my mind that she had inflicted these injuries on [J].”

In relation to the father she said:

“Until he gave evidence I formed the view it was less likely that he had actually inflicted the injuries. 

However I found his evidence also completely unreliable but not as floridly so as the Mothers.  He too pursued a ‘cut throat’ defence. 

In the light of his evidence I cannot rule out the possibility that he too may have been responsible for some of these injuries.  His explanation for accepting the bruising really defies belief. 

I find as a fact that he has colluded with the Mother in an attempt to exculpate both of them.  He at best adopted a callous attitude to the injuries this child sustained doing nothing whatsoever to protect the child when he knew the child was being seriously physically abused.”

8.	The application to the judge for assessment was advanced on the basis of authority, and particularly the case in this court of Re L and H [2007] 1 FLR 1370.  It is to be remarked that that case treats of the difficult area of residential assessment under Section 38(6) of the statute.  It is also to be remarked that in his judgment Wall LJ specifically distinguished between a 38(6) application, which might lead to assessment informing the judge at the final trial, to a Section 38(6) assessment that would serve no purpose.  Such an assessment was illustrated by a case in which assessment would be a waste of time and public funds, eg parents who had inflicted injuries on their child but had failed to acknowledge responsibility.

9.	So whilst Ms Sweeney could rely on Re L and H for a general proposition that assessments should be ordered where they are likely to assist the judge at trial, those opposing the application could draw on this authority to say, well, this is a classic example of the assessment that would be a waste of time and public funds.  The application was resisted below by all parties and was dismissed by the judge, saying, and this is not a transcript but only a note:

“she maintains she is not guilty.  She is in denial.  She is the perpetrator as well as [father].  She is responsible for many of the injuries.  I don’t want delay.  What is the point?  It will hold out hope.  No-one should entrust a child to her.  She needs years of cognitive behavioural therapy.  There is no purpose in raising her hopes.  She has lied completely.”

And later:

“I would not give her care.  She has had a difficult childhood.  Her personality is not mature.  She needs further work.  She needs Cognitive Behavioural Therapy. She needs lengthy therapy.”

The dismissal of the father’s application was trenchant too:

“it is clear that he’s callous.  He played a part and I cannot rule him out.  I refuse.  It is false hope.  They both pose a serious risk to small children.  I can’t distinguish between who did what.  He doubts he is father to [C].  I will order DNA but no assessments.  It would engender hope.  The children need to be adopted.  Assessment is not appropriate as a result of the findings.”

10.	Ms Sweeney criticises this reasoning, saying that there was absolutely no evidence that CBT would be appropriate for this mother, and further that there was no question of delay since the timetable for the consultancy was to deliver well before the IRH.

11.	For the father, Ms Mann points to these considerations: that the judge’s language makes plain that she regarded the mother as the more culpable and, further, his client has demonstrated more commitment to the child in contact.

12.	I find these submissions quite unpersuasive.  The judge was exercising a discretion in a bad case.  We have been handed up the police photographs of the injuries to this child; particularly the bruising to the child’s backside is extreme.  The judge was perfectly entitled to reach the conclusion that she did in the exercise of a discretion.  If we were to interfere in this case it would be tantamount to saying that there is no case in which a judge can refuse an assessment following findings of grave injury to a child, for so to do is to deny them a forensic position at the disposal hearing.  Each case must be fact dependent.  This was an extremely bad case on the facts and the judge was fully entitled to take the robust line that she did. 

13.	I would only add that I completely reject Ms Sweeney’s criticisms of the guardian.  The guardian was plainly entitled to take a view as to the realism of the application and, with regard to the paramount consideration of child welfare, to oppose the application.  The suggestion that a guardian has some sort of unlimited responsibility to pursue rehabilitation and some sort of separate responsibility to support any application for assessment  seems to me completely unsustainable, and for all those reasons I would refuse both these applications for permission.

Lord Justice Toulson: 

14.	I agree.

Order: Applications refused