X, T, A, E and S (Children), Re

Factual and Procedural Background

This judgment concerns two appeals against findings made by HH Judge Clarke in care proceedings involving five children.

The family comprised two adults (the Appellants) who began a relationship in August 2018, each caring for children from previous relationships. The Appellant woman (referred to as SS) had two daughters aged ten and seven. The Appellant man (referred to as DB) had two children aged nine and seven, and was also caring for a twelve-year-old child from a previous relationship whose mother had died by suicide in June 2018.

The children under DB’s care had prior involvement with social services due to concerns about their welfare, including reports of assault and police protection orders. Two of DB’s children were diagnosed with a chromosomal duplication error associated with neurodevelopmental difficulties and had exhibited self-harming behavior.

SS and DB met online in August 2018 and began living together with their children in August 2019 in a two-bedroom property, with the children sharing one bedroom. Following incidents of bruising and self-harm by one child (T), hospital and social services became involved. The child was removed from the home under a police protection order and placed in foster care along with the other children.

Care proceedings were initiated in December 2019, resulting in interim care orders. The case involved multiple interviews of the children under the Achieving Best Evidence procedure and expert assessments regarding the cause of the injuries sustained by T.

The fact-finding hearing before HH Judge Clarke lasted fifteen days over several months, encountering technical and procedural difficulties. The judge made findings against both Appellants concerning the injuries to T and the emotional harm to the other children. Both Appellants sought permission to appeal, which was granted, leading to the current appeal before this Court.

Legal Issues Presented

1. Whether the judge erred in his reasoning and findings regarding the cause of the injuries sustained by T, specifically whether they were self-inflicted or inflicted by one or both Appellants.
2. Whether the judge was correct to find that the Appellants minimised T’s problems and prioritised their relationship over her needs.
3. Whether the judge’s findings concerning the use of the “naughty step” as a disciplinary method were justified.
4. Whether the judge was entitled to find that T’s self-harming behavior was caused by the conduct or neglect of the Appellants.
5. Whether the judge was correct to conclude that both Appellants were in the “pool of perpetrators” responsible for inflicted injuries.
6. Whether the judge was justified in finding that the other children were exposed to emotional harm by witnessing T’s injuries.
7. Whether procedural fairness was compromised by the judge making findings on causation of self-harm without expert evidence and without proper notice to the Appellants.

Arguments of the Parties

Appellant DB's Arguments

• The judge’s reasoning was fundamentally flawed for failing to explain the basis for his findings at paragraph 188 of the judgment.
• The judge was wrong to find some of T’s injuries were inflicted by the Appellants rather than self-inflicted.
• The judge erred in finding that DB minimised T’s problems and prioritised his relationship over her needs, pointing to evidence of his attempts to engage professional support.
• The judge was wrong in his findings about the use of the “naughty step” as a disciplinary measure.
• The judge was not entitled to find that T’s self-harming was caused by the Appellants’ conduct or neglect.
• The judge failed to properly analyse the likelihood of DB inflicting the injuries and erred in including him in the “pool of perpetrators”.
• The judge was wrong to find that the Appellants willingly exposed the other children to emotional harm by allowing them to witness T’s injuries.

Appellant SS's Arguments

• SS did not appeal against the finding that some injuries were inflicted or that both Appellants were in the “pool of perpetrators”.
• SS challenged the judge’s findings related to the cause of T’s self-inflicted injuries, arguing procedural unfairness as these findings were not properly put to her.
• SS contended that many incidents occurred when T was not in her care, and had she been aware of the findings, she would have adduced evidence regarding causation and duration of self-harming.
• SS argued the judge erred in making findings of emotional harm against her when incidents occurred outside her care and that historical concerns predated her involvement.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court acknowledged the complexity and volume of evidence in the case, noting the judge’s detailed and structured approach to setting out background, law, and evidence. Although the judge did not expressly set out reasons for his findings in a discrete section, the Court found it possible to discern the reasoning from the judgment, particularly the "Discussion" section.

The Court accepted the judge’s reliance on the expert evidence of Dr Cleghorn, a court-appointed consultant paediatrician, who distinguished between self-inflicted injuries and those inflicted by others. The judge was entitled to reject the opinion of the hospital consultant who had not examined the child or been instructed as an expert.

The Court found the judge’s conclusions that some injuries were inflicted by either SS or DB (the “pool of perpetrators”) were open to him based on the evidence, despite some structural deficiencies in the judgment.

The Court upheld the judge’s findings that the Appellants minimised T’s difficulties, prioritised their relationship, and used the “naughty step” in a manner that was not responsive to the children’s needs. The evidence supported findings of emotional harm to the other children from witnessing T’s injuries.

However, the Court found that the judge erred in attributing causation of T’s self-harming behavior to the conduct or neglect of the Appellants at the fact-finding stage. This issue had not been part of the local authority’s case, nor was it properly put to the Appellants or supported by expert evidence. The Court held that determining the reasons for T’s self-harming was a matter for the forthcoming welfare hearing where all relevant evidence could be considered.

The Court concluded that the findings attributing causation of self-harm to the Appellants must be set aside, but the remaining findings should stand.

Regarding the future conduct of the proceedings, the Court found no reason to transfer the case to another judge despite concerns expressed by SS, considering the limited scope of the successful appeal and the potential for delay.

Holding and Implications

The Court ALLOWED IN PART the appeals by SS and DB.

The Court set aside the findings that T’s self-harming behavior was caused by the conduct or neglect of the Appellants, as these findings were outside the scope of the local authority’s case and unsupported by evidence at the fact-finding stage.

All other findings, including that some injuries were inflicted by one or both Appellants, that the Appellants minimised T’s difficulties, and that the other children suffered emotional harm, were upheld.

The case was remitted to HH Judge Clarke for determination of the reasons for T’s self-harming behavior at the forthcoming welfare hearing.

No new precedent was established; the decision primarily affects the parties by clarifying the limits of findings permissible at the fact-finding stage and emphasizing procedural fairness regarding issues of causation and evidence.