AB v BG & Ors

Judgment

Lord Justice Wall :

Introduction

After we had heard this case on 17 December 2008, we announced our decision, but reserved our reasons. We granted permission to appeal; we allowed the appeal to the extent of replacing the schedule of the judge’s recorded findings of fact with an amended schedule in terms which the parties had been able to agree; we directed that the judge’s judgment should henceforth be read in the light of the judgments to be given by this court; and we directed that the welfare limb of the proceedings, due to be heard on 23 February 2009, should be taken by a different judge to be allocated by the Liaison Judge for the North Eastern Circuit.

This judgment now sets out my reasons for reaching the decisions outlined above. As the case is ongoing, I propose to say only that which is necessary for the resolution of the appeal. Nothing in what follows should be taken as expressing any view about the ultimate outcome of the case.

The facts

The father of a small child, supported by the mother of that child, and of an older child sought permission to appeal against findings of fact made by HH Judge Carr QC in care proceedings under Part IV of the Children Act 1989 (the 1989 Act) relating to the two children and currently pending in the Sheffield County Court.

The judge had been conducting what has become known as the first limb of a split hearing of care proceedings, in which the local authority seeks findings of fact sufficient to satisfy the so called threshold criteria under section 31 of the 1989 Act. The findings which the parents sought to impugn in this court relate to a third child born to the parents, whom I will call AB. AB was born on 5 January 2007 and died on 7 August 2007 at the age of 7 months. His death, it should be said, was by no means the sole basis upon which the local authority sought to satisfy the court that the threshold criteria under section 31 of the 1989 Act had been satisfied.

In accordance with the current practice, the local authority had filed a schedule of the findings which it invited the judge to make. That schedule began, under the heading GENERAL FINDINGS with the following five essentially factual and uncontroversial paragraphs:-

AB died on the 7 th August 2007 aged 7 months

AB died from a hypoxic-ischaemic encephalopathy of uncertain aetiology [reference given] report from Dr W forensic pathology – subnormal level of oxygen restricting AB’s blood supply to the brain the cause of which