B1/2000/3260

Neutral Citation Number: [2001] EWCA Civ 142 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DERBY COUNTY COURT
(His Honour Judge Stretton)
	Royal Courts of Justice
	Strand
	London WC2

	Wednesday, 7th February 2001

B e f o r e :

LORD JUSTICE THORPE and
LORD JUSTICE LAWS

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RE:  "E" (Children)

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Miss L Newton (instructed by Messrs Susan Howarth & Co, Northwich, Cheshire) appeared on behalf of the Applicant/Appellant Father.

Miss J Drew (instructed by the Legal Department, Derbyshire County Council) appeared on behalf of the Respondent Local Authority.

Mr C Eastwood (instructed by Messrs Bromley Hyde & Robinson, Ashton under Lyne) appeared on behalf of the Respondent Mother.

Miss C Nicholes (instructed by Messrs Timms, Derby) appeared on behalf of the Respondent Guardian ad litem.

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J U D G M E N T
1.	LORD JUSTICE THORPE:This is an application for permission to appeal an order and finding of His Honour Judge Stretton made on 29th September 2000 in the Derby County Court. On 24th October I directed an oral hearing of the application on notice. That direction has had the effect of bringing the parties into broad consensus. 
2.	The applicant is the father of a child, B, who suffered relatively serious injuries in both April and May 2000. There was provision in the County Court for a split hearing. That arrangement was ordered by the district judge on 30th June. He said that the causation hearing should be fixed, with a time estimate of one and a half days, on 29th September and 5th October. A further direction was made in August by the district judge that the parties should identify the issues in advance of that hearing; and that, I take it, was done prior to the final directions hearing on 22nd September. 
3.	There was a good deal of expert evidence prepared for the causation hearing. That expert evidence could be summarised, in very general terms, by saying that it established that the little boy had suffered injuries that were plainly not accidental and that there were probably three separate episodes or incidents. Obviously the real question that the court had to decide was whether the mother was responsible, whether the father was responsible or whether they were jointly responsible. To enable the court to perform that task it was obviously essential that the parents should be separately represented and that each should give evidence. Why that was not picked up during the course of these many directions hearings before the district judge I do not understand. 
4.	However, when the case came on before His Honour Judge Stretton both parents were represented by one solicitor. The solicitor called the father to give oral evidence, but did not call the mother, although the mother had submitted a statement. At the end of the evidence (that is to say, not only the evidence of the father, but the evidence of the experts) the judge asked counsel for the local authority what it was that she was seeking by way of findings. She made submissions. The solicitor for the parents made submissions. The judge seemingly did not seek any submission from the guardian ad litem. He then delivered a brief judgment in which he rejected the father's evidence. He did not believe the father and he concluded that the father was responsible for the injuries. 
5.	The consensus which has emerged between the parties since the direction of 24th October is that the finding should not stand. The local authority have helpfully defined the concession which they seek from the parents if the finding of 29th September is to be set aside. What the local authority require is a formal concession, to be recorded in the judgment of this court, that: 
(1)B suffered non‑accidental injury in or about April 2000 when he sustained subdural haematomas whilst in the care of either or both of his parents. There is a possibility that either or both of the parents were responsible for inflicting those injuries. 
	(2)B suffered one or two incidents of non-accidental injury on or about 6th or 7th May 2000 when he sustained two skull fractures whilst in the care of either or both his parents. There is a possibility that either or both of the parents were responsible for inflicting those injuries. 
6.	I interpolate that the words “one or” preceding the word “two” in the second paragraph have been inserted this morning by an amendment proposed by Miss Newton and agreed by all parties.
7.	On that basis there can be no question but that permission is granted to the father, that his appeal is allowed and that the order of 29th September is set aside on the concessions which I have just read out. The only remaining question is what should happen to the case on remission to the Derby County Court. 
8.	There seems to have been some anxiety on the part of Mr Eastwood that, by allowing the father's appeal, this court was implicitly making some sort of finding against his client. I cannot, for my part, understand why he should have that anxiety. It seems to have no rational foundation. Obviously this court would be leaving open for determination in the court of trial which, if either, of the parents bears responsibility for any of these injuries sustained by B. 
9.	We have also spent a good deal of time investigating whether the case should be remitted for a further causation hearing, followed by a disposal hearing, or whether we should simply take advantage of the existing listing in the Derby County Court, which is for four days commencing 25th June before the designated judge, His Honour Judge Orrell. We have ascertained that there are assessments in progress by Mr Beaton and Mrs Johnson, each of whom has been jointly instructed by the parties and each of whom has a deadline in March for the delivery of their assessment reports. 
10.	It seems to me that there would be no advantage in trying to build into the existing structure a preliminary causation hearing some time between now and June. It is quite evident that the experts are content to carry out their instructions without having a prior judicial determination of the uncertain issue of responsibility. This court obviously has to be cautious of directing hearings in a court of trial without preliminary investigation of the practicality. Nobody has made any inquiries of the Derby County Court as to whether they could accommodate an additional hearing in advance of that set for 25th June. Miss Drew, whose local authority client is obviously a major user of the Derby County Court, is extremely pessimistic of the possibility of obtaining additional time. 
11.	Clearly the sensible course is to direct a determination of all outstanding issues by His Honour Judge Orrell at the existing fixture on 25th June. Plainly Miss Newton's suggestion of a directions hearing before that judge to enable him to put his stamp on the case is wise. The parties must seek immediately a date for a directions hearing before Judge Orrell as soon as is convenient after the submission of the assessments. There would be a brief opportunity, perhaps, in the week preceding Easter, if not immediately after Easter. Certainly the directions hearing should, if at all possible, take place in April, so that if fine tuning is required opportunity will not be precluded by the imminence of the fixture. 
12.	There is nothing more that seems to me necessary to say about this case. 
13.	LORD JUSTICE LAWS:I agree with the orders and directions proposed by my Lord and the reasons he has given for making them. 
Order:permission to appeal granted, appeal allowed and order of 29th September 2000 set aside on the concessions set out herein; case remitted for determination to His Honour Judge Orrell at Derby County Court on 25th June 2001 (parties to seek a directions hearing in advance of that fixture as soon as possible after submission of assessments); detailed funded client assessment. 
[DOES NOT FORM PART OF APPROVED JUDGMENT]