Case Preview: Re J (Children)
13 Thursday Dec 2012
This case concerns care proceedings, and the difficulties faced by the courts and child protection professionals where there has been a past finding of serious non-accidental injuries to a child, but it has not been possible to make a finding of fact as to which individual was responsible for these injuries, but only to say which two (or more) people make up the pool of potential perpetrators. The question at issue is whether such a finding against a person could support a determination under s 31 of the Children Act 1989 that the threshold criteria were satisfied in later care proceedings relating to a different family unit, in which that person was now playing a parental role. In other words, does the previous finding that a person may have caused significant harm to a child constitute a ‘finding of fact’ that can be taken into consideration when determining whether there is a real possibility that other children in their care will suffer harm?
In 2004 T-L, a three-week old baby, was found dead in the bed at the hostel where her parents were staying. The post-mortem examination showed T-L had serious untreated nappy rash, and had sustained bruising to her face, shoulder and arm and multiple fractures to her ribs at least a week or so prior to her death. The examination recorded asphyxiation as the cause of death. JJ was T-L’s mother, and SW her father. T-L was their first child. Their second child, S was born in 2005 and the child was immediately placed for adoption following care proceedings. In the course of those proceedings, HHJ Masterman made the following findings of fact concerning the death of T-L and her injuries;
(a) The week old multiple rib fractures were caused as a result of someone gripping and squeezing the baby’s rib cage with a force which would have been way beyond any normal or even rough handling and were the result of a deliberate act of physical abuse;
(b) As a result of the fractures, T-L would have been in very obvious pain with every breath, cough, sneeze or passing of a motion. The nappy rash would have been inflamed by the passing of urine;
(c) The four rib fractures that were sustained around the time of death probably preceded death and were unlikely to be a consequence of attempts at resuscitation;
(d) The bruises to the face and upper body were non-accidental injuries;
(e) Such explanations as were offered by the parents were not accepted;
(f) The parents had deliberately kept T-L away from appointments with health professionals so that the bruise on her jaw would not attract unwelcome attention;
(g) T-L’s death was as a result of asphyxia by obstruction of her airways, however the judge was not able to determine whether this arose by one parent accidentally overlaying during the night on the baby whilst she was in the parental bed, or as a result of deliberate suffocation.
HHJ Masterman also commented in his judgment that;
“If one parent is innocent of actually abusing T-L, then he or she knows it was the other. If he or she did not know or understand fully at the time, he or she has come to know the truth. Despite this knowledge each maintains their innocence and protests the innocence of the other, only conceding the other’s guilt when forced by logic in cross-examination to do so. The couple remain together as a couple and still plan to marry. To put this starkly, one parent is prepared to marry a person they know to have inflicted deliberate and serious harm on their child and is thereafter, presumably, prepared to allow that person to be in charge of S in the future. There is no doubt in my mind that SW and JJ are colluding with one another to hide the truth from the rest of the world. One is protecting the other or they are both protecting each other. They are putting the continuance of their relationship before the welfare of S.”
JJ and SW later separated, and JJ began a new relationship with DJ, and moved into his house in a different area of the country with his two children from a previous relationship H and T. JJ subsequently had two further children; I in 2008 and R in 2011. In 2010 the Social Services in the area that JJ now lived with DJ became aware of the circumstances surrounding T-L’s death and issued care proceedings with respect of H, T and I (R not having been born at this point). The proceedings were based solely on the findings surrounding T-L’s death, and the local authority raised no other concerns about JJ’s care for the children. The issue was thus whether those findings could form the basis of a decision under s 31 of the Children Act 1989 that the threshold criteria had been met in the context of the new family unit, in which SW played no part. HHJ Hallam, considering herself bound by previous authority that findings of fact that did not identify the actual perpetrator had to be ignored in evaluating the likelihood of future harm to other children, concluded that they could not and the care proceedings were dismissed. The local authority appealed.
The Court of Appeal Decision
The Court of Appeal conducted a careful review of the case law on this issue. The judge at first instance had considered herself bound by the previous judgments of the Court of Appeal and Supreme Court that stated categorically that a finding of a real possibility that a parent or carer had perpetrated harm is not a finding of fact at all and thus can not be relied upon in subsequent proceedings. However, the appellant argued that this was in conflict with the approach to be taken to the threshold criteria in s 31 of the Children Act 1989 as set out by Lord Nicholls in three House of Lords decisions.
Dismissing the appeal, McFarlane LJ gave the lead judgment, with which the Master of the Rolls and the Lord Chief Justice agreed. McFarlane LJ held that whilst Lord Nicholls had drawn a distinction between cases where no past harm had been proved at all and those where past harm was established but the identity of the perpetrator could not be proved on the balance of probabilities, ultimately the Court of Appeal was bound by the earlier authorities. In those circumstances, the judge below was correct to find that JJ’s inclusion in a pool of perpetrators in earlier proceedings involving a different child and a different relationship, could not support a determination that the threshold criteria were satisfied in relation to a different child in subsequent proceedings.
Both McFarlane LJ and the Lord Chief Justice expressed regret that as a result of the artificial and circumscribed manner in which this case had been presented to HHJ Hallam, judicial consideration was limited only to one aspect of the case, the physical injuries sustained by T-L. The findings in relation to JJ’s failure to protect T-L were not submitted for consideration by the circuit judge and no evidence was offered to illuminate the seven year period since T-L’s death, such as social work evidence relating the new family unit or evidence from JJ on what she now says regarding T-L’s care.
In view of the inconsistencies in the case law, and the substantive difference between cases in which there had been no finding of past harm at all and those in which past harm had been established but the identity of the actual perpetrator had not been proven, McFarlane LJ made it clear that there was a ‘pressing need’ for the law in this area to be clarified by the Supreme Court.
The Appeal to the Supreme Court
The Supreme Court, comprising of Lord Hope of Craighead, Lady Hale of Richmond, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath of Notting Hill, will hear this case on 17th December 2012.