Factual and Procedural Background
The case concerns care proceedings under Part IV of the Children Act 1989 relating to two children and a third child, referred to as AB, who was born on 5 January 2007 and died on 7 August 2007 at seven months old. The local authority sought findings of fact sufficient to satisfy the threshold criteria under section 31 of the 1989 Act. The parents, supported by the mother, appealed against factual findings made by the trial judge regarding AB's death and the alleged unlawful killing by the father.
The local authority had prepared a schedule of findings, which included general findings about AB's death from hypoxic-ischaemic encephalopathy of uncertain cause and injuries consistent with non-accidental trauma. The schedule also included threshold findings alleging neglectful and harmful parenting and failure to cooperate with professionals. The judge made a disputed finding that AB had been unlawfully killed by suffocation and that the father was more likely than not the perpetrator.
The father appealed on two core grounds: first, that the judge should have allowed an adjournment to obtain medical evidence in response to the allegation of unlawful killing; second, that the judge was plainly wrong to find unlawful killing and implicate the father as a possible perpetrator. The court granted permission to appeal, replaced the schedule of findings with an amended agreed schedule, and directed that the welfare part of the proceedings be heard by a different judge.
Legal Issues Presented
- Whether the trial judge erred in refusing an adjournment to allow the father to obtain medical evidence in response to an unexpected allegation of unlawful killing during a fact-finding hearing.
- Whether the trial judge was plainly wrong to find that AB had been unlawfully killed and that the father was the likely perpetrator.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re M (Residence) [2002] EWCA Civ 1052, [2002] 2 FLR 1059 |
Requirement that a judge must have material to safely reject expert evidence and must fully explain reasons for doing so. |
The court emphasized that disagreement with expert evidence must be founded on material evidence and adequately reasoned; the trial judge failed to meet this standard regarding the pathologist's evidence. |
| Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141 |
Good practice that the same judge should hear both fact-finding and welfare stages of care proceedings in split hearings. |
The court acknowledged this principle but recognized exceptions where the welfare hearing should be before a different judge, such as loss of confidence or appearance of bias. |
| Re G (Care Proceedings: Split Trials) [2001] 1 FLR 872 |
Establishes the rule that the same judge should hear both limbs of split care proceedings. |
The court cited this as the usual rule but allowed departure due to exceptional circumstances in this case. |
Court's Reasoning and Analysis
The court acknowledged the trial judge's experience and entitlement to take a proactive role in care proceedings and to make findings of fact based on all evidence, including assessments of credibility. However, where a local authority has prepared a careful schedule of findings and the parents have agreed not to apply for certain witnesses, the court requires very good reasons to depart from that schedule.
The court held that if a judge departs from the schedule to make additional findings, those findings must be securely founded in evidence and must not compromise fairness. While judges may disagree with expert witnesses, such disagreement must be supported by material evidence and explained fully.
In this case, the court found it regrettable that the judge pursued the "unlawful killing" finding, which was neither signposted by the local authority's schedule nor necessary for the threshold criteria. The medical and pathological evidence did not support this finding.
The court held that the judge was plainly wrong to refuse an adjournment to allow the father to obtain medical evidence once the allegation of unlawful killing was raised, especially given the judge's indication that unlawful killing was "probable."
Overall, the evidence did not justify a finding that AB was unlawfully killed by one or both parents, even considering adverse credibility assessments.
Most of the judge's other findings were supported by evidence and remain valid. The parties agreed on an amended schedule of findings that satisfies the threshold criteria and will form the basis for the welfare stage.
The court rejected attempts to excise parts of the original judgment relating to deleted findings, noting that the welfare judge will read the judgment in light of this ruling and distinguish acceptable from unacceptable parts.
Regarding who should hear the welfare hearing, the court agreed with the principle that the same judge should usually hear both limbs of a split hearing but recognized exceptions such as loss of confidence or appearance of bias. Given the circumstances, the welfare hearing was directed to be heard by a different judge.
Holding and Implications
The court ALLOWED THE APPEAL to the extent of replacing the schedule of findings with an amended schedule agreed by the parties and directed that the welfare hearing be conducted by a different judge.
This decision removes the finding that the father unlawfully killed AB and corrects procedural unfairness by permitting an adjournment that was previously refused. The amended schedule provides the factual basis for continuing the care proceedings. No new precedent was established beyond confirming established principles on fact-finding, expert evidence, and judicial fairness in care proceedings.