February 2014 Case Law Update
Surrey County Council v Al-Hilli & Others (4)  EWHC 4394 (Fam)
Application by the police (opposed by the local authority and the guardian) to be joined as a party to care proceedings
The subject children’s parents were tragically murdered whilst on holiday in the French Alps in 2012. The children were placed with foster parents with a very high degree of police protection. The police had attended most of the interim hearings to date and it was common ground that their help would continue to be required at all stages in the proceedings. That help included the provision of information concerning the ongoing police investigations, disclosure of documents within their possession or control that were relevant to future decisions about the children’s welfare and information concerning the specific risks to the children. The application was opposed by both the local authority and the guardian.
Granted the application and made the police party to the proceedings noting that:
(1) a substantial proportion of the documents relevant to the proceedings would be either generated by, or distributed through, the Surrey Police;
(2) it would be necessary to consult the Surrey Police at all stages along the way about decisions concerning the welfare of the children, including their placement, their therapy and other treatment, their education and contact to ensure the safety of the children was protected in the decisions made by the Court; and
(3) it was likely in this case that the police may have a positive case to advance on the future placement of the children as part of their responsibility as the law enforcement agency entrusted with the duty of protecting persons within their area, particularly where there may be a threat to life.
Re S (A Child)  EWCA Civ 25
Consideration by the Court of Appeal of the appropriate use of split hearings within public law children proceedings.
This case has already been referred to in relation to split hearings earlier in this newsletter but the judgment is also worth reading in relation to the meaning of ‘non-accidental injury’.
A classic NAI scenario; child presented to hospital with a serious head injury which the local authority alleged was non-accidental, deliberately inflicted and had occurred whilst the child was in the care of the parents. The local authority further alleged that one of the parents had caused the injury and the other had failed to protect the child from that harm. The judge concluded that the child had suffered significant harm whilst in the care of the parents and that the harm was caused by an injury. He was not satisfied that either parent had deliberately inflicted the injury.
On appeal, the Court of Appeal found that the judge cannot be said to have been plainly wrong in the findings he made or in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence.
“ The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).…If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.”
A Local Auth v DG & Others  EWHC 63 (Fam)
Care proceedings where the father of a child, aged 3, has been charged with the murder of the mother. Criticism made by the judge of the parties’ failure to comply with court directions and guidance given as to the interplay between care proceedings and linked and concurrent criminal proceedings.
The father was charged with murder and had been remanded in custody awaiting trial on 22nd April 2014. The local authority had issued care proceedings shortly after the murder of the mother and HL had, since that time, been the subject of interim care orders and living with foster carers. The local authority, in order to meet the threshold criteria, sought findings that the father had murdered the mother and had been violent to her on numerous occasions over the previous three years. This was in accordance with the charges the Crown had laid.
No party in this matter had complied with any of the directions. None of them had applied to have the deadlines extended; none of the parties notified the court of any non-compliance and none of them sought an urgent directions hearing in an attempt to remedy the serious failures by all parties. The father had declined to respond to threshold ‘on advice from his criminal defence team’ until he had prepared his defence statement. The father’s criminal solicitor and counsel also attended the hearing and accepted that this was not appropriate but also advocated for clearer guidance.
reiterated the observations of the President of the Family Division in Re W (A Child)  EWCA Civ 1177:
“It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated….I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made in the family courts.”
He held that the failure to file a response to threshold was wholly unacceptable in the light of s.98 CA 1989 – in family proceedings a party is not excused from giving evidence on the ground of self-incrimination.
Concurrent Public Law and Criminal Proceedings
He referred to the Protocol and Good Practice Model issued by the President of the Family Division, the Senior Presiding Judge and the Director of Public Prosecutions. It came into force on 1 January 2014. It provides comprehensive guidance on the procedures to be followed when there are linked care proceedings and criminal proceedings especially in relation to applications for disclosure between the two sets of proceedings.
He went on to give the following guidance:
(a) A response to threshold/statements must be filed as per the court’s order.
(b) Frank, honest and full accounts must be given.
(c) A client can be advised of the provisions and import of s98 CA 1989 and the ability of police and/or co-defendants to make an application for disclosure into criminal proceedings of relevant documents.
(d) It is wholly inappropriate and a contempt of court for a legal practitioner to advise a client not to comply with court orders.
(e) it is wholly inappropriate and a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response (or any response) to the findings sought in the threshold document.
(f) Dates of service for documents in criminal proceedings will have no effect on the dates for service of any evidence/narratives the family court may order.
(g) The fact that there is an order for filing and serving in the family court before there is in the criminal court is not a ground for failing to comply with the family court order.
(h) To delay service of a document required in family proceedings until after service in the criminal proceedings is not a ground for an application for time to extend the filing and serving of a document.
(i) Any issue about alleged prejudice in criminal proceedings of having to file and serve a response to threshold, inter alia, is only potentially relevant if there is an application by the police or a co-defendant for statements filed in the family proceedings. The court will consider the application for disclosure in accordance with the principles in Re C (A Minor) (Care Proceedings: Disclosure)  Fam 76, sub nom Re EC (Disclosure of Material)  2 FLR 725.
A Local Authority v M & Others  http://www.familylawweek.co.uk/site.aspx?i=ed127031
Second fact-finding concerning injuries to a child who suffered from rickets as a result of Vitamin D deficiency. Medical expert evidence considered. Held that there was insufficient evidence to determine that the injuries to the child were non-accidental.
Following the first fact-finding hearing in November 2011, the judge had concluded that the middle child, M, had suffered a series of non-accidental fractures that had been caused by one of the parents and that the other parent was protecting the perpetrator of the injuries. It was a significant feature of the case that M had, at the material time, suffered from rickets as a result of a vitamin D deficiency. Despite this, it had been the unanimous view of the medical witnesses at the first fact-finding that the injuries to M were non-accidental.
Subsequently, Theis J delivered her judgment in LB of Islington v Al Alas and Wray  EWHC 865 (Fam), a case which also concerned a child with rickets and suspected non-accidental injuries. Following this, the judge in the present case was persuaded that the parents in this case should be able to seek further opinions from Professor Nussey and Professor Barnes, both of whom had featured in the case before Theis J. Having considered their reports, the judge was persuaded to reopen the fact-finding in this case; this judgment arises from that fact-finding hearing.
Essentially the judge was presented with conflicting evidence from the two key experts in the case. Professor Nussey agreed with one who was of the view that children of M’s age suffering from rickets can, and often do, sustain multiple fractures as a result of the disease and not as the result of a non-accidental injury. The parents had been unable to give explanations for the injuries. However, the judge did not regard this as probative of non-accidental injury given the lack of information as to how severe M’s rickets had been prior to the successful treatment. For these reasons, the judge concludes that there was insufficient evidence to determine that the injuries to M were non-accidental and therefore that the threshold for the purposes of section 31, Children Act, had not been crossed in this case.