B1/02/0109
Neutral Citation Number: [2002] EWCA Civ 469
IN THE SUPREME COURT OF JUDICATURE                                   
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE JOHNSON)
							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Friday 8 March 2002
B e f o r e:

LORD JUSTICE THORPE

LORD JUSTICE MANCE

MR JUSTICE NEUBERGER

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I N   T H E   M A T T E R  O F

H (A CHILD)

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(Computer Aided Transcript of the Palantype Notes of
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MR IAN PEDDIE QC and MISS ELLEN SAUNDERS (Instructed by Messrs Truemans, Oxford, OX1 1BN) appeared on behalf of the Appellant
MR ANDREW MCFARLANE QC and MS FRANCES JUDD (Instructed by Oxfordshire County Court, Oxford, OX1 1ND) appeared on behalf of the Respondent/County Council
MS ALISON BALL QC and MR DORIAN DAY (Instructed by Messrs Faulkners, Oxford, OX1 1PD) appeared on behalf of the Mother
MR JONATHAN BAKER QC (Instructed by Messrs Gardner Leader, Newbury) appeared on behalf of the Child.
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J U D G M E N T
1.	LORD JUSTICE THORPE: The local authority brought care proceedings in respect of a little boy known as S who was 3½ years of age. The respondents to the application were S's mother and the guardian ad litem. The mother's lover, Mr S, was the intervenor. The case clearly required a split trial with a judicial investigation and determination of responsibility for very serious injuries that S suffered over a period between September 2000 and March 2001. 
2.	The case was set down for a five-day trial in the Family Division before Johnson J commencing on 10 December. He gave an ex tempore judgment on the final day of the trial, 14 December 2001. His conclusions can be briefly summarised. He found that the intervenor was the sole assailant. He exonerated the mother from having inflicted injury on her son but found her to be culpable of knowing of these injuries and the most serious failure to protect S. He also found her culpable of having subsequently sought to protect the intervenor and to conceal from the investigation the reality. The judgment cleared the way for professional evaluation of S's future. 
3.	The guardian obtained the judge's leave to instruct Dr Judith Freedman and the case has been set down for a disposal hearing on 15 May. The mother is obviously profoundly engaged in that, as is the guardian ad litem. The intervenor has no continuing role in the disposal proceedings since, on the judge's findings, he is not a person who will ever have any future relationship with S. There are also criminal proceedings pending in the Crown Court. The intervenor is charged with wilful neglect and assault occasioning actual bodily harm. There is a trial fixed for two weeks to commence at the end of June.
4.	Following the judgment in the Family Division, and probably as a consequence of it, the CPS has accepted the mother's plea to a charge of wilful neglect and has indicated that the charge of assault occasioning actual bodily harm against her will not be proceeded with. 
5.	The proceedings in this court commenced with an application for permission which was received in January 2002. On 17 January I directed that it should be the subject of an oral hearing without notice. That took place on 13 February 2002. Shortly before that date, Mr Peddie QC, who represents the intervenor, filed an amended draft notice of appeal in which he relied upon what was said to be the very recent discovery of a Memorandum video interview, held on a date in April 2001, which was conducted jointly by the police and social services to record S's evidence. As a result of that development, the court adjourned the application for permission to another oral hearing, this time on notice to all the parties, with appeal to follow if permission granted. Manifestly, the fresh evidence, and indeed other contentions raised by Mr Peddie, justify, and indeed demand, the grant of permission. We have treated the listing this morning as the hearing of the appeal. 
6.	I will deal first, and shortly, with the fresh evidence point. Following the intervention of the local authority in March, S was placed with foster carers. On 19 March 2001, in the presence of the first foster carer, S said things to her which clearly suggested that he had been assaulted by the intervenor. Subsequently, on 25 March, he was moved to another carer, Mrs B. Some time thereafter, probably between that date and the end of the month, on a number of occasions he made statements to her which plainly fixed responsibility for his injuries on the intervenor. 
7.	The memorandum interview was conducted some three weeks later in the second half of April. In dealing with the hearsay evidence of the foster carers, the judge properly reminded himself of the fact that S was very young and that he was only receiving S's assertions at second-hand. It was an absolutely crucial assessment since S's reported words were perhaps the strongest evidence against the intervenor. The judge said at page 14 of his judgment: 
“It is to be borne in mind however that S was three. He has not been the subject of a formal interview of any kind. There is no video recording of this conversation. There is no professional evidence from a psychiatrist or someone of similar calling to tell me whether the circumstances in which S said these things makes his statements credible or not. So I approach what S said with caution, great caution.”
8.	To the same effect, two pages later, when reviewing the evidence of Mrs B, he said:
“It seems to me that whilst bearing in mind the absence of a professional interview and professional evidence about S's credibility, the circumstances of these spontaneous disclosures entitle what S says to significant weight in the decision I have to make.”
9.	Finally, at page 19, he refers to the fact that the statements were unsupported by professional evidence.
10.	The judge attached considerable significance to the absence of a video interview, which is the norm in these investigations. The fact that a video interview had been conducted in the second half of April became submerged partly as a result of the fact that the two social workers who were involved in the video interview were not the primary witnesses in the case and did not have primary responsibility for the litigation. There is no doubt that the mother knew of the existence of the video and she informed the intervenor. There is no doubt that he tried to alert his advisers as to its existence. Efforts were made by the department responsible for the criminal proceedings to obtain a copy of the video from the CPS. It would appear that those efforts were not as persistent or as determined as they should have been. It is clear that Mr Peddie, for the intervenor, knew of the existence of the interview some months before the fixture but he tells us that, by the date of the fixture, he had forgotten about its possible existence and of the efforts that were being made to obtain a copy. However his junior, Mr Bagshi, on the second day of the trial, asked counsel for the local authority if there had been a video interview. He was informed that there had not. That is the post mortem examination to establish how the judge came to give his judgment on the false premise that there had been no video interview. 
11.	Mr Peddie inevitably submits that this is a serious irregularity which necessitates a re‑trial. Mr Baker QC, for the guardian has, quite properly, adopted a quite neutral stance. Mr McFarlane QC, for the county council, has submitted that the absence of the video at the trial was the consequence of shared responsibility between those whom he represents and those acting for the intervenor and that it is not necessary to go to the length of ordering a re‑trial, given that the content of the video is essentially neutral. Although questions are asked of the child, nothing the child says in any way elucidates the mystery. 
12.	Miss Ball QC, for the mother, not surprisingly is the advocate who has made most effort to uphold the judge and to resist the appeal. That is perfectly understandable because the outcome for her client, although dire, could have been infinitely more dire. For the mother there must be the prospect that the result of re‑trial would be less favourable to her than the result adopted by the judge. 
13.	However, it seems to me to be absolutely apparent that this conclusion cannot stand given the denial of opportunity to assess the child's direct words as recorded at a formal video interview and to bring that into a comparative appraisal with the reported speech to the short term carers. The consequence for the intervenor of the judge's conclusion is very grave. At the least he is entitled to an investigation and a judgment that is complete. 
14.	That is not the only criticism mounted by Mr Peddie. His original skeleton and original draft notice of appeal stood independently on a number of criticisms of the judge. It is perhaps unnecessary to go into those in any great detail, given that a re‑trial on the basis of the fresh evidence is inevitable. 
15.	However, it does seem to me that there are valid grounds of criticism of a judgment which is understandably expressive of the judge's feelings at the conclusion of nearly five days of evidence in which he had to hear of quite appalling injuries to a comparatively young and utterly defenceless child. He describes those injuries movingly, but what it seems to me the judgment does not contain sufficiently is an intellectual analysis of the case presented by the intervenor to exonerate him from responsibility. The case is not sufficiently recorded in the judgment, nor is there a sufficient analysis of any deficiencies, inconsistencies, contradictions or implausibilities. Whatever is there to justify judicial rejection, is not sufficiently spelt out. 
16.	That seems to me particularly true of the manner in which the judge dealt with the intervenor's case that he could not have been responsible for the arm fractures which the scientific evidence dated to some time between September and December 2000. 
17.	The intervenor's case was that he had only come into contact with the mother at the end of October and that, thereafter, there had been some passage of time before they had become integrated in the sharing of lives. He relied on evidence to show that the child was not exhibiting any abnormal behaviour, certainly in December, by which time the intervenor was firmly in the mother's life. The medical evidence showed that the arm fractures would for at least a week after their infliction have caused the child acute pain and would inevitably have led to crying and whingeing which would have been apparent to any by‑stander. In my view, all that needed to be carefully set out in the judgment, weighed and either accepted or rejected. 
18.	In the end, the judge rationalises his conclusions in a relatively brief conclusion on page 19 where he says: 
“There is no evidence of harm to S before [the Intervenor's] involvement. Indeed, the evidence of the mother's care is to the contrary. There are the features of [the Intervenor's] responses to police questions, to which I have referred. There are the statements by himself, untested, unsupported by professional evidence, but given spontaneously to foster mothers who were speaking the truth about it. Against that, there is a mother whose word is not likely to be trusted. I am persuaded by the evidence that prime responsibility for these injuries lies upon [the Intervenor] and not upon the mother.”
19.	That was altogether too brief and broad brush an approach to adopt to an issue as grave as this. It is fair to say that the judge explained that he had at first intended an analytical approach, but had then persuaded himself there was too great a risk of losing sight of the wood for the trees. It may be that an exact analysis of each and every injury would have had that danger. But there was a middle way and, in my view, the judge should have taken it. 
20.	Immediately prior to the passage I have cited, the judge records, inaccurately, the submission of the local authority. He records it as improbable that a child would be simultaneously hurt by two adults and that the case had proceeded on the basis that it was either the mother or the intervenor who was responsible. That is not an accurate record of the local authority's case, as is demonstrated by their written closing submissions. 
21.	For all those reasons, perhaps stated at greater length than is necessary, I am in no doubt that the appeal must be allowed and that there must be a direction for a re‑trial before another judge of the Division. There has been some discussion as to the practicalities. There are obvious difficulties given the pressure of work in the Division; given the priority that must be given to the criminal proceedings between now and their listing; given that the disposal fixed for May will obviously have to be vacated; and given that Dr Freedman will not be able to embark on her assessment until she has the outcome of the re‑trial. 
22.	The only compensation is that S is now placed with his maternal grandparents, which is an extremely secure placement. He will be safe there, and can continue to be safe there, throughout this period of unfortunate delay. It is important that, since all the relevant parties are assembled here, the directions to get this re‑trial underway and to ensure that it is prepared and tried economically, should be given this morning. 
23.	I would hope that it would be possible for the Bar to agree directions, to avoid the need for a directions hearing in the Family Division before the end of this term. If directions are agreed now, they can be incorporated in the order of this court, otherwise the order will simply be to grant permission, to allow the appeal and direct a re‑trial.
24.	LORD JUSTICE MANCE: I agree with all my Lord has said on the subject of the videoing. I only add a few words on the subject of reasons. A judge does not have to deal with every peripheral issue, but here he had central issues argued before him relating to a series of different injuries. The child did not mention all of these injuries or attribute them all to his “Daddy”, in such statements as he made. The judge dealt with them in a composite finding without analysing the individual injuries or the circumstances and dates of their occurrence. That is of particular relevance in relation to the injuries pre-Christmas. 
25.	The parties are entitled to know where they stand on main issues which have been argued before the court. That enables them, first, to know the position in so far as it is relevant in other contexts; secondly, to enable them to consider the position regarding appeal; and, thirdly, to enable the Court of Appeal on any application for appeal to know the basis of the judge's judgment. Without that neither the parties nor the Court of Appeal can assess whether the judge's own assessment may have been insufficiently supportive. That does seem to represent a problem, as my Lord has indicated, with the present judgment. 
26.	MR JUSTICE NEUBERGER: I agree with both judgments and do not think there is anything I can usefully add. 
Order: Application for permission to appeal allowed. Appeal allowed. No order as to costs. Retrial before another judge of the Family Division. Directions to be agreed if possible.