S-B (Children)

Judgment

Lord Justice Thorpe:

This is an appeal from a judgment of HHJ Lindsey Kushner QC sitting as a deputy judge of the Family Division in the Manchester court, ultimately on 28 January 2009, when she distributed the written judgment that she had signed on 13 January to conclude a final hearing in public law proceedings which she had conducted between 8 and 15 December 2008. At the heart of the public law proceedings were two children, Jake, who was born on 19 May 2007, and Warren, who was born on 12 July 2008.

The chronology is of some significance, so I return to the summer of 2007 when, on 15 June, Jake, then not quite a month old, was taken to the general practitioner who onward referred to the Trafford General Hospital where a specialist registrar in paediatrics concluded that he had been subjected to non-accidental injuries. The local authority were involved and on 25 June issued their application for a care order.

The case has many unusual features, the first of which is that, although Jake’s injuries occurred at a time when he was in the care of both his parents, his father took no part at all in the consequential investigation of the injuries or in the care proceedings initiated by the local authority. The case proceeded to a trial of a preliminary issue to establish 1) whether Jake had indeed suffered non-accidental injuries, and 2) if yes, which of the parents could be identified as the perpetrator.

The mother’s initial litigation stance was to challenge that the injuries sustained by Jake were non-accidental. As the judge was to put it in a judgment of April 2008:

“A main puzzle has been the refusal of the mother, till her final statement, to accept the manifest experts’ opinions that the injuries had been non-accidental in nature. Further, despite their concerns, initially she failed or refused to take the injuries seriously feeling they were of little if any significance.”

Thus the mother’s concession that the injuries were indeed non-accidental, coupled with the father’s abstention from the litigation process, left only limited territory for investigation and decision at the fact-finding hearing which commenced on 28 January and concluded on 20 March 2008. The stance of the local authority was that the judge should find that neither parent could be exculpated and that either of them might have been responsible for the injuries. The Guardian Ad Litem was not represented at that hearing by counsel but supported the position adopted b