Re CB and JB (Care Proceedings: Guidelines)

Factual and Procedural Background

On 13 February 1998, after a hearing in chambers, care orders were made in favour of a local authority concerning twins, a girl and a boy, aged 2 years. A supervision order was also made for their half-brother, aged 6. The parties were the mother of the three children and the father of the twins; the half-brother's father did not participate. The eldest child, aged 9, lived with the maternal grandmother and was not subject to proceedings. All three children were represented by a guardian ad litem.

The supervision order for the half-brother was uncontroversial and agreed by the mother. The main factual issue concerned two episodes of non-accidental shaking inflicted on the female twin while in parental care. Medical evidence was unanimous and unequivocal on causation and timing. Both parents denied responsibility, raising the issue of which parent inflicted the injuries, to be determined on the civil standard of proof established in Re H and R (Child Sexual Abuse: Standard of Proof).

The court found it was not possible to determine which parent caused the first injury, but found on the balance of probabilities that the mother inflicted the second injury. The father was imprisoned during the proceedings for unrelated offences. Given the findings and ongoing denial by the mother, care orders were inevitable, and the local authority applied to free the twins for adoption, which was granted without the mother's agreement.

The case was unexpectedly complex and voluminous, involving 13 expert witnesses including seven medical doctors and six psychological/psychiatric experts, with multiple reports and experts' meetings. The court found much of the psychological/psychiatric evidence irrelevant and criticized the late and excessive medical evidence, the failure to simplify issues, and the unnecessary prolongation of the hearing.

Care proceedings began when the twins were 9 months old but lasted until they were 2 years old, an unacceptable delay. Initial directions for a split hearing focusing on the key factual issue were not followed, leading to diversion into irrelevant matters, delay, wasted resources, and increased costs. The court emphasized the need for judicial and legal continuity and adherence to focused case management.

Legal Issues Presented

1. Why was the split hearing, aimed at resolving the critical factual issue, not conducted as directed, and should psychiatric or psychological evidence be permitted at the first stage of such a hearing?
2. Is expert psychiatric or psychological evidence on a parent's propensity to injure a child admissible under the principles in Re M and R (Child Abuse: Evidence)?
3. In cases where two children are involved but only one is injured, and the court cannot identify which parent inflicted the injury, can the threshold criteria for care orders be met for both children?
4. Should guidance prohibiting informal discussions between experts be interpreted as preventing experts in the same discipline from conferring?
5. Is it appropriate to require agreement on letters of instruction to experts in child cases?
6. What are the proper practices regarding experts' meetings, including whether they must be face-to-face, which experts should attend, and how meetings should be conducted and recorded?
7. When medical evidence is unanimous on causation and timing, is oral evidence from all medical witnesses justified?
8. What is the role and responsibility of the guardian ad litem and their solicitor in managing the case and expert evidence?
9. What is the court's duty when presented with consent orders, especially regarding directions in care proceedings?
10. What is the importance of judicial continuity and continuity of legal advisers in care proceedings?
11. Given the evidence that one or both parents caused injury, was it necessary to investigate which parent was responsible?

Arguments of the Parties

Father's Arguments

• Expert psychiatric and psychological evidence on propensity is inadmissible or should be excluded as irrelevant or of minimal weight when determining the perpetrator of injury.
• It would be unjust to rely on propensity evidence to fill gaps in the factual proof required to identify the perpetrator.
• If the court cannot identify which parent caused the injury, the threshold criteria for care orders should not be met for the uninjured child, particularly if one parent is absent (imprisoned).

Mother's Arguments

• Psychiatric and psychological evidence is admissible and assists in resolving identity issues and evaluating the mother's evidence, especially given her limited IQ and characteristics.
• There is no discretionary power to exclude admissible evidence.
• If the court cannot find which parent caused the injury, the facts are insufficient to find likelihood of harm to the other child.

Local Authority's Arguments

• Psychiatric and psychological evidence is admissible and the court may give such weight as it sees fit in determining threshold criteria.
• Strict time limits should be imposed on the preparation of further evidence to avoid delay.

Guardian ad Litem's Arguments

• Supported admissibility of psychiatric and psychological evidence, with weight to be determined by the judge.
• Expressed concern about delay and urged strict time limits on further evidence.
• Accepted responsibility for initial decision to instruct forensic psychiatric evidence, which contributed to the case's complexity and delay.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re H and R (Child Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80	Sets the civil standard of proof ('balance of probabilities') for findings of fact in child abuse cases.	The court applied this standard to determine which parent inflicted injury, finding the mother responsible for the second injury but not the first.
Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195	Guidance on the admissibility and use of expert psychiatric and psychological evidence, especially regarding propensity and credibility.	The court ruled most psychiatric/psychological evidence irrelevant and inadmissible for determining perpetrator, emphasizing that credibility is for the judge to assess.
Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773	Endorses the split hearing procedure focusing first on critical factual issues in care proceedings.	The court endorsed the initial direction for a split hearing and criticized the failure to adhere to it, which caused delay and obfuscation.
Re G (Minors) (Expert Witnesses) [1994] 2 FLR 291	Emphasizes the court's proactive duty to control expert evidence and prevent unnecessary proliferation.	The court criticized the excessive expert evidence and failure to control it, stressing the need for judicial management.
Re M (Minors) (Care Proceedings: Child's Wishes) [1994] 1 FLR 749	Highlights the need for co-operative planning among legal advisers for expert availability and conduct of experts' meetings.	Used to stress the importance of cooperation and discipline in expert preparation and evidence presentation.
Re M (Minors) (Judicial Continuity) [1993] 1 FLR 903	Supports the principle of judicial continuity for interlocutory and final hearings in family cases.	The court emphasized the need for judicial continuity to avoid case mismanagement and delays.

Court's Reasoning and Analysis

The court conducted a detailed analysis of the case management failures and legal principles applicable to the factual and procedural issues. It found the case was simple in essence but had become unnecessarily complex due to the introduction of irrelevant psychiatric and psychological evidence and poor case management.

The court reaffirmed that in split hearings focusing on factual issues critical to the threshold criteria under the Children Act 1989, parties and the court must maintain strict focus on those issues, avoiding diversion into irrelevant evidence such as propensity assessments. Psychiatric or psychological evidence is generally inadmissible at the first stage unless directly relevant to the factual issue.

Expert evidence must be properly managed, with clear directions, agreed letters of instruction where experts are jointly instructed, and carefully conducted experts' meetings. Telephone conferencing can be an effective alternative to face-to-face meetings. Experts from different disciplines should attend only when relevant to the issues under consideration.

The court criticized the proliferation of expert witnesses and oral evidence when medical experts were unanimous, noting the waste of limited resources and the burden on the parties. It also highlighted the importance of cooperation between guardians ad litem and their solicitors to avoid unnecessary complications.

Regarding the identification of the perpetrator, the court rejected the argument that inability to find which parent caused the injury negated the threshold criteria for care orders for the uninjured child. It held that the child was at risk from both parents, and that removal of one parent (e.g., imprisonment) did not eliminate risk from the other.

The court stressed the paramount importance of judicial continuity and continuity of legal advisers to ensure effective case management and timely resolution. It also criticized the court's acceptance of consent orders without rigorous scrutiny, emphasizing the court's duty to exercise independent judgment.

The court found that the initial decision to pursue extensive psychiatric assessments was a critical error that diverted the case from its proper focus. It concluded that while an inquiry into which parent caused the injuries was necessary, it should have been conducted strictly as a factual investigation.

Finally, the court held that applications concerning admissibility of evidence should be heard by the judge who will conduct the final hearing, to avoid inconsistent rulings and unnecessary complications.

Holding and Implications

The court upheld the care orders and freeing for adoption of the twins, having found on the balance of probabilities that the mother inflicted one of the injuries and that the threshold criteria under the Children Act 1989 were met for both children.

The decision affirms that in care proceedings, inability to identify the specific perpetrator between two parents does not negate the risk of harm or the court's power to protect the children. It underscores the limited role of psychiatric and psychological evidence at the fact-finding stage and the critical importance of judicial and legal continuity and case management discipline.

The ruling cautions against unnecessary expert evidence proliferation and stresses adherence to split hearing procedures to avoid delay, obfuscation, and resource waste. While no new legal precedent was established, the judgment serves as a comprehensive guide on best practices in managing care proceedings involving disputed child abuse allegations.