B4/2005/2537
Neutral Citation Number: [2006] EWCA Civ 714
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(HIS HONOUR JUDGE FINNERTY)
Royal Courts of Justice 
Strand 
London, WC2 

Date: Tuesday, 4th April 2006
 
B E F O R E:
LORD JUSTICE CHADWICK
LORD JUSTICE WALL
LORD JUSTICE MOORE-BICK
Before:
- - - - - - - - - - - - - - - - - - - - -
IN THE MATTER OF A (CHILDREN)
- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
MS L BRASSEE (instructed by Messrs Bindman & Partners, LONDON, WC1X 8QB) appeared on behalf of the Appellant mother.

MS SA GREENAN and MS C GARNHAM (instructed by Bradford Metropolitan District Council) appeared on behalf of the Respondent local authority.

MR C HEATON (instructed by Messrs Switalskis, 19-21 Cheapside, WAKEFIELD, WF1 2DF) appeared on behalf of the Respondent father/guardian.
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	LORD JUSTICE WALL:  Miss A is the mother of two young children, child A born on 3 June 2002 and child B born on 14 May 2003.  She seeks permission to appeal and an extension of time in which to appeal against two orders made in care proceedings relating to the children instituted by the City of Bradford Metropolitan District Council.  The first order is that made by HHJ Grenfell on 15 September 2003 when, at the conclusion of a contested three-day hearing, he placed both children in the interim care of the local authority.  The second is an order made a little over a year later by HHJ Finnerty on 24 September 2004 when, on the final hearing of the care proceedings, she made final care orders in relation to both children.  At that point, the local authority’s care plan, which the judge approved, was that the children should be moved from foster care, in which they had been effectively since the institution of the care proceedings in May 2003, into the care of their father, Mr A, who was a party to the care proceedings and had himself made a concurrent application before HHJ Finnerty for a residence order under section 8 of the Children Act. We understand from counsel that following HHJ Finnerty’s order, the children have indeed gone to live with their father under the care order and that they remain there.

2.	On 2 March 2006, the mother appeared in person before the President at an oral hearing of her permission applications.  The President adjourned the applications to enable her to obtain legal representation and directed an oral hearing of the permission to appeal applications with appeals to follow if permission was granted.  The mother has had the great advantage of securing the services in this court of Miss Gillian Brasse of counsel, who did not appear below at any point, but has presented her case with skill and moderation and has advanced every argument which could properly be advanced on the mother’s behalf.  I would like to express my gratitude to Miss Brasse for the clarity and realism with which she presented the mother’s case.  

3.	It is, of course, immediately apparent that both applications for permission are very substantially out of time.  However, as this is a care case relating to children, we invited Miss Brasse to address us on the merits and that is what she did.  Miss Brasse seeks to identify a point of law arising from the case in the following way:  she says that the local authority took proceedings under Part IV of the Children Act on the basis that child A, the elder of the two children, had suffered a significant injury, a fracture to her skull, for which there was no or no adequate explanation.  A series of interim care orders were then made under the Act, section 38(2).  The court then directed a finding of fact hearing to ascertain how and in what circumstance the child had been injured.  That hearing, conducted by HHJ Grenfell, concluded that the injury was accidental.  That, says Miss Brasse, should have been an end of the matter.  The proceedings should have been discharged at that point and the children returned to their mother’s care.  However, that did not happen.  What happened was that the proceedings, with a further string of interim care orders, went on and concluded with the hearing at which the local authority advanced a wholly different basis for the satisfaction of the threshold criteria.  This was that the mother suffered from a personality disorder which was neither identified nor diagnosed until after the institution of the proceedings.  Miss Brasse invites us to say that not only was such a process unfair, but that the subsequent hearing before HHJ Finnerty was itself tainted by the unfairness.  Plus, in her skeleton argument, she argues that the court, having accepted as it was bound to do that the injury to child A was accidental and thus incapable of fulfilling the threshold criteria under section 31 of the Act, HHJ Finnerty should not have permitted the local authority to seek to satisfy the threshold criteria on a wholly different basis without the commencement of fresh proceedings.  

4.	Miss Brasse submits, following the well-known decision of the House of Lords in Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 App Cases 44, that the date for the establishment of a threshold criteria is the date at which the local authority first takes protective measures in relation to the child.  She accepts that it is open to a court to rely on information acquired after that date if the later events are capable of proving the state of affairs which appertained at the date the proceedings were instituted; see the decision of this court in Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR 1111.  However, she argues that in the instant case, the judge fell into the trap which Hale LJ, as she then was, identified in Re G when she said at paragraph 15:

“There are obvious dangers of retrospectively validating a concern which was not in fact justified at the time.  There may after all be other reasons for things to go badly wrong after proceedings had started.”

5.	Miss Brasse accordingly submits that at the time of the institution of the proceedings, the local authority had conducted an assessment and concluded that it was unnecessary for social services to be involved with the family.  They had closed the case at that point.  Social services were satisfied that child A was thriving and doing well in her mother’s care.  Miss Brasse argues accordingly that it cannot be said that at that time, on the evidence of the appellant’s care of both of her children, there was a real possibility of future harm.  

6.	There is no doubt at all that a court hearing care proceedings under Part IV of the 1989 Act, which has decided to hold what has become known as a split hearing, cannot proceed to a final hearing after the first limb if, at the conclusion of that limb, it concludes that the threshold criteria under section 31(2) have not been satisfied.  Equally, the court cannot make an interim care order at that point if the criteria for making interim care orders have not been satisfied.  In such a case, the proceedings must as Miss Brasse argues, be dismissed, and it would be impermissible to keep them in being.  

7.	However, that is not the end of the matter.  If there is other material upon which the threshold criteria can be satisfied then it is, in my judgment, the duty of the local authority to put that material before the court and for the court to make findings of fact about it, even if that material did not represent the basis upon which the local authority intervened; see Re G.

8.	What is essential, of course, is that the material must represent a proper basis for the institution of care proceedings and must also have been in existence at the time those proceedings were instituted.  The process of introducing that material into the proceedings must also be fair, so that the respondents to the care proceedings, the parents or carers of the children in question, have the opportunity to address it.  

9.	In the instant case, the local authority took proceedings undoubtedly because the elder of the two children suffered a fractured skull for which there was no adequate explanation.  The court directed a hearing to address the question of how the child received that injury.  The result was the finding of fact by HHJ Grenfell, to which I have already referred, on 15 September 2003.  After a full hearing, he held that the injury was accidental.  

10.	HHJ Grenfell, however, apparently without protest from the mother and her advisers, went on to make an interim care order and the children remained in the interim care of the local authority until the final hearing of the care proceedings when again, as I have already related, HHJ Finnerty found the threshold criteria satisfied on a different basis relating to the mother’s personality.  

11.	However, whilst I fully understand Miss Brasse’s argument, on the facts of this case I am unable to accept it.  In order to explain why, I need to examine the facts in a little more detail.  I start with the Emergency Protection Order which the local authority sought on 29 May 2003.  In her statement in support of the application, the local authority’s social worker, Mrs Nicholson, expressed a number of anxieties about the mother’s behaviour.  However, and perhaps more significantly, five days later on 4 June, by which time the local authority had instituted care proceedings in the local family proceedings court, Mrs Nicholson made a statement for the Justices in which she set out the history of the local authority’s dealings with the mother.  This, of course, related to the fact of the injury to child A.  It also contained a great deal of additional material about the mother and set out the local authority’s plan to make a core assessment.  The statement concludes with the following significant paragraph:

“Due to [Mrs A’s] lack of co-operation with social services and the unexplained injury to [child A] social services are of the view that an order is required to safeguard the children.  [Mrs A] appears to have a mental health problem which is a major cause for concern and requires a full psychiatric assessment.  Additionally, [Mrs A] has told a series of untruths to social services, police and medical staff which has hindered the investigation and support available to the family.  The children are at risk of significant harm if left in the care of their mother at this stage.  Therefore, I respectfully request the court to grant interim care orders to enable the children’s safety and allow the relevant medical tests to be undertaken.  Dr Alsaga has left the Bradford Royal Infirmary and the medical reports will be submitted by Dr Lindford, consultant paediatrician.”

12.	The justices duly make an interim care order, as they were plainly entitled to do on the evidence before them, and transferred the matter to the county court on the ground of complexity.  On 13 June 2003 the matter came before the district judge for directions.  He directed in paragraph 3 that the local authority should by 4pm on 18 June file and serve on all other parties “A schedule of facts contended for/agreed in satisfaction of the threshold criteria”.  In my judgment, this ambiguous wording sowed the seeds for much of the confusion which was to follow.  

13.	The document which was produced by the local authority is dated 17 June 2003.  It sets out section 31 of the Children Act.  It asserts that there are reasonable grounds for believing that the threshold criteria in respect of both children are made out; that is the test under section 38(2).  It then identifies the injuries which child A has suffered in terms of physical harm and the lack of any explanation for those injuries.  It then concludes, sub-paragraph (F):

“The history of the mother’s unusual behaviour and failure to engage appropriately with social services and health professionals (including the circumstances surrounded the apparently concealed birth of child B at Leeds General Infirmary and false information given to that hospital) increase the concerns.”

14.	On 24 June 2003, the case came back to the district judge for further directions.  This is an important order.  It begins with a recital that a Mr and Mrs Hankey had been heard, and that Mr and Mrs Hankey had made an application to be joined as parties to the proceedings “for the purpose only of finding of fact hearing”.  I interpolate that this was because there was an issue as to whether or not the injury to child A had occurred in the mother’s care or whilst she was being cared for by Mrs Hankey, in particular.  The court, accordingly, duly joined Mr and Mrs Hankey to the proceedings for the purpose identified.  The court went on to identify the evidence which would be called at what was described as the “factual/disposal/final hearing”.  Once again, in my judgment, this wording is singularly unhelpful, but it is clear from the evidence which is then identified that it related to the child’s physical injuries.  The case was then to be listed for a factual hearing before a circuit judge on 5 August 2003 with an estimate of three days and it is indicated in paragraph 11 that the evidence of three doctors was to be adduced, all of which relates to the physical state of child A as opposed to her mother’s psychiatric condition.  

15.	The next order of significance is again the district judge on 22 July 2003.  This order is confusing.  Paragraph 1 gives permission to rely on expert evidence “at the factual hearing”, and was granted in the following terms:

“Permission is granted to mother’s solicitor to instruct Jonathan Mumford, consultant psychiatrist, to produce a report which addresses the issues of mother’s mental health.”

16.	However, it is manifest from the face of the document that Dr Mumford’s report was not to be required for the hearing scheduled for September, because the timetabling of his report envisages that it will be produced by 28 November 2003.  It is patently, therefore, for a different and later hearing; and equally, it is clear from the document itself that there were to be two hearings, one of which was to be the finding of fact hearing.  The next was to be it seems a hearing relating to a contest on the interim order, before a final hearing even came into contemplation.  The reason for the instruction of Dr Mumford appears to have been that the mother had by this stage produced a report from a psychiatrist, Dr Manowich, which was not produced in the context of the proceedings or pursuant to an order of the court, but which gave the mother a clean bill of psychiatric health.  It said, however, that it could not exclude the possibility of the mother suffering from a mild to moderate personality disorder.  However, it concluded by stating, and I think this is probably the reason why the point was flagged up in further orders, that in the opinion of the doctor he could find no evidence to suggest that the mother suffered from any mental disorder, although he assessed her as having at least an unusual personality that had led her into conflict with others, notably health professionals, and in his opinion, having been subject to three sets of ethnic influences, this would have informed her relationships in this country, perhaps leading to misunderstandings and subsequent conflict.  However, in no sense, concluded the doctor, did this suggest that she might be an unfit mother and plainly by that stage, it seems to me, a question of the mother’s mental health and her capacity was moving, if not to centre stage, at least towards centre stage.

17.	HHJ Grenfell’s judgment is extremely clear.  He goes through the facts.  He exonerates the Hankeys entirely from any responsibility for the injuries which occurred to child A and he concludes in paragraph 65 of his judgment as follows:

“For those reasons I make the following findings.  That is, and of course this is common ground, that [child A] suffered an actual physical injury in the form of a linear fracture through the right parietal region of the skull.  Secondly, that the injury occurred whilst the child was in the care of either her mother or Maureen and David Hankey, but none of the incidents described by Mrs Hankey accounts for there being a likely cause of the injury.  I can find that even without an explanation, it is possible to say, as I do, that the original of the injury was accidental.  Accordingly, I do not find a lack of explanation increases the probability of a non-accidental injury.  I do find that the features displayed by [child A] immediately following the injury and during the last at least hour or so, would be sufficiently significant for the carer to recall the incident with some clarity, at least once the skull fracture diagnosis had been made.”

18.	In my judgment, if the purpose of the hearing which concluded with HHJ Grenfell’s judgment on 15 September 2003 was to determine the threshold criteria and nothing else, there would have been an application by the mother’s lawyers for the proceedings to be discharged and the judge would have discharged the proceedings then and there.  Such a course could not have been resisted by the local authority and would, I anticipate, inevitably have been supported by the guardian.  But no such application was made.  To my mind, therefore, the overwhelming inferences from all the facts which I have related is that the hearing which concluded on 15 September 2003 was not designed to determine the threshold criteria; it was a finding of fact hearing designed to determine whether or not the injury to child A was or was not accidental.  The threshold criteria were to be determined at the final hearing.  

19.	This conclusion is reinforced by the draft letter of instruction to Dr Mumford which is dated 8 August 2003 and appears to have reached him on the same day.  Dr Mumford was instructed to undertake a detailed psychiatric assessment of the mother.  The mother’s solicitor was to be the lead solicitor in the instruction.  The doctor was told in terms that the mother was seeking the return of both children to her care:

“…and the situation in this regard is currently being assessed.  At a relatively early stage in the proceedings, it was felt that a psychiatric assessment of the mother ought to be undertaken to deal with a number of issues surrounding the mother’s presentation.  Leave was given for the disclosure of the relevant papers to yourself with a further direction that any report prepared be filed with the court no later than 28 November 2003.  Any detailed psychiatric assessment of the respondent mother should cover all issues that you consider relevant for the purpose of the preparation of your report as it is believed that your observations will assist the court in determining the future of the children.  Within your general assessment of the mother, consideration should be given to the following issues.”

20.	A number of issues are then set out including whether or not the mother suffers from any prescribable form of mental illness, whether she has a personality disorder, and whether there are any implications of her personality for her ability to relate to or parent her children.  In sub‑paragraph (D), the doctor is asked in terms:

“Do you consider that [Mrs A’s] mental illness/personality disorder if any poses a risk, either to herself or the children, were they to be returned to her care?”

21.	Once again, the timescale which is dealt with in the letter says: 

“The court anticipates that you will file your report as indicated above by 28 November 2003 and you may also be required to give evidence at the final hearing of this matter that is yet to be time tabled.  If you are unable to comply with the time scale for the preparation of filing of your report, would you please say so immediately so that alternative arrangements can be made.”

22.	There is no doubt in my judgment that the mother, who parted from her solicitor shortly after the hearing before the judge, wished to appeal.  We have her homemade notice in our papers.  It is dated 21 September 2003.  It is not altogether an easy document to follow.  It shows that the mother had a number of grievances, but it concludes with these words:

“NB.  Social Services are attempting to qualify and justify their involvement by trying to stigmatise [Mrs A] as having a mental illness and are now trying to engage the court to instruct a psychiatrist and psychologist to evaluate her.”

23.	However, when the matter came before the court on 17 November 2003 for a further hearing, the mother was represented at that point, although not present, and it was recorded that she did not wish to pursue her notice of appeal.  

24.	I therefore conclude that the hearing which ended on 15 September 2003 was not a hearing to determine the threshold criteria.  Accordingly, HHJ Grenfell had jurisdiction to make an interim care order.  The jurisdiction to make interim care orders continued until such time as the matter came before HHJ Finnerty in September 2004, although the very substantial delay in the final hearing is in my view much to be regretted.  

25.	This conclusion does not, however, address the fairness point which Miss Brasse makes.  I can, however, I think deal with this relatively shortly.  It is plain to my mind that by the time the final hearing arrived in September 2004, the mother knew precisely what case she had to meet.  For this purpose, I think, it is sufficient to record that on 16 March 2004, after the psychiatrist, Dr Mumford, had reported on 23 February, the local authority filed a further threshold criteria statement.  This nails its colours firmly to the personality disorder mast and sets out five grounds for following the opinion which has been given by Dr Mumford.  

26.	Against this background, in my judgment, it cannot be said there was any unfairness in the local authority relying on the report of Dr Mumford at the hearing before HHJ Finnerty.  Plainly the mother’s personality disorder predated the local authority’s intervention in 2003, and although the evidence about it has only emerged at a later stage, it was manifestly relevant to the threshold criteria and the welfare of the children.  

27.	Furthermore, it is plain to me that both expert and judge fully understood and fulfilled their respective functions.  The doctor made it very clear that it was not his function to find the facts and that his diagnosis of the mother was only valid if the judge found the facts as he understood them to be.  Furthermore, the judge specifically addressed the point that the local authority was relying on a different factual substratum to satisfy the threshold criteria from those which had been put forward when the process was initiated.  Having set out the argument addressed to her on this point carefully, Judge Finnerty proceeded to dismiss it in these terms:

“These are Children Act proceedings designed to promote the welfare of children.  I am quite satisfied and find the local authority had concerns about the mother’s mental health at the time intervention was made to remove the children from her care.”

28.	That is clear from the first statement of Mrs Nicholson, to which I have already made reference.  The judge then quoted from Mrs Nicholson’s statement and continued:

“Leave was given for the papers to be released to Dr Mumford at an early stage with instructions to assess the mother’s mental health and its impact on the children.  In my judgment, Dr Mumford’s diagnosis if proved to the requisite standard of proof, explains various behaviours exhibited by the mother which were of concern to the local authority at the time these proceedings were instituted.  I am quite satisfied and find that the local authority are entitled to rely on his evidence in seeking to establish the statutory threshold criteria.”

Judge Finnerty then proceeds to cite from and rely upon a decision of this court in Re G.  

29.	Much of the judge’s judgment is taken up with findings of fact as to the mother’s behaviour.  None of these can be challenged by the mother since they were plainly open to the judge to make, and Miss Brasse does not seek to do so.  The judge’s conclusion, therefore, that Dr Mumford’s diagnosis was validated and that if returned to the mother’s care the children would be likely to suffer significant harm are both, in my judgment, properly made out.  The judge concluded in these words in this context:

“Accordingly, I am satisfied that should I rehabilitate these girls to the care of their mother, their lives increasingly would become dominated by the effect of their mother’s personality disorder and her antipathy towards the father, and I am satisfied and find that the risks to them from those factors outweigh the benefits to them of being reunited with their former primary carer, who loves them dearly and whom they love in return.”

30.	In my judgment, the judgment of the judge reads extremely well.  She emphasised the mother’s positive points.  She made it quite clear that she appreciated the mother’s love for her children and their reciprocation of it.  She dealt immaculately with the facts.  She directed herself appropriately as to the law and, as I say, once it is accepted that she was entitled to proceed as she did, in my judgment no real criticism can be made of HHJ Finnerty’s order.  It follows, in my judgment, that neither of the mother’s applications for permission stand any reasonable prospect of success and I would refuse permission to appeal on that basis.  Since there is, as I perceive it, no substantive merit in the applications I would also refuse permission to extend the time.  

31.	In any event, the mother has a remedy.  She has applied to the court to discharge the care orders and there was a hearing fixed for that purpose in September 2006.  She has also, of course, the right to apply to the court for contact, a topic on which HHJ Finnerty was, in my view, rightly critical of the local authority’s conduct.  

32.	Although this is only in effect a permission application, I anticipate that our judgments will be sent to HHJ Finnerty and HHJ Grenfell, and in those circumstances I would like to add that in my view there are two particular lessons to be learnt from this case.  The first (which is directed to the profession, not the Judiciary) is that applications for permission to appeal to this court in children’s cases must be brought on swiftly.  I fully understand the difficulties this can cause with the Legal Services Commission where the applicant is publicly funded, but delay in bringing such applications is often fatal to their success as well as adding to the effect which the delay has on the children themselves.  In the instant case, if one were to analysis the time point one would see that it is already 18 months since HHJ Finnerty’s order and more than two years since the orders of HHJ Grenfell.  Children’s lives simply do not stand still.  

33.	The second point of importance is that where the court is contemplating a split hearing in a case involving children it is in my view essential that the issues to be resolved in the first limb of the hearing are clearly defined and that the consequences of any such findings are fully understood by the parties.  Thus if the court is dealing with a single-issue case in which the facts found will determine the threshold criteria under section 31(2) of the Act, the directions which are given by the court and which set up the first limb of that hearing must (1) identify precisely the purpose of the hearing, namely to decide whether or not the threshold criteria are established; and (2) identify with as much precision as possible the facts upon which the local authority relies and which it asserts will, if proved, establish the criteria.  

34.	Alternatively, if the purpose of the first limb, as here, is not to decide whether or not the threshold criteria are satisfied, but to resolve an issue of fact which will affect the manner in which subsequent assessments of the parties are to be made, the issues which the court is being asked to resolve once again and the facts which it is being invited to find must, in my judgment, be clearly spelled out.  In either case, this is best done by an order of the court which sets up the first limb of the hearing, and that order should identify clearly the issues which are to be addressed.  

35.	Equally, it seems to me that once the first limb of the hearing has been completed, and the judge has delivered judgment, it would usually be sensible for there to be a short discussion in court between counsel and the judge to clarify the consequences of any findings which the judge has made.  In a genuinely single issue case, for example where a serious injury or an allegation of sexual abuse is the only factor which would enable the threshold to be crossed, a finding that the allegations have not been established to the requisite standard will mean that the threshold had not been established and the proceedings would have to be dismissed.

36.	If on the other hand the allegations are proved and the threshold criteria are established, the court must move on to assessment.  Thus where the purpose of the first limb of a split hearing is not to determine threshold criteria but to give the opportunity of findings of fact to be made which will inform the consequential assessment of the parties and the conduct of the case, it is in my view essential when the judge has made or declined to make relevant findings, that the state of the case consequential on the judge’s judgment on the first limb is clearly understood by everybody and preferably recorded in an order of the court.  

37.	If such a discussion or such orders had occurred in the instant case, it would have been clear, I think, that the injury to child A was not a fact capable of enabling the threshold criterion in section 31(2) to be established, but that the local authority would seek to establish those criteria by other means – that is to say the mother’s personality disorder and its effect on the care of her children.  Had those matters been fully recorded in orders of the court, I very much doubt whether this appeal, or this application for permission to appeal, would or could have been brought.  

38.	In these circumstances, therefore, I would respectfully refuse to grant permission in both applications.

39.	LORD JUSTICE CHADWICK:  I entirely agree and there is nothing that I can usefully add.

40.	LORD JUSTICE MOORE-BICK:  I also agree with all of what my Lord, Lord Justice Wall, has said.  I would just like to add my own appreciation of the assistance which the court has had from counsel for the applicant to that which he has already expressed.  We have been fortunate, indeed, to have had her help in this sensitive matter.

Order: Application refused.