Wednesday, February 20, 2013

Supreme Court hands down judgment in In the matter of L and B (Children) and In the matter of J (Children)

Image: UK Supreme Court
The Supreme Court has today handed down judgment in two care cases: In the matter of L and B (Children) and In the matter of J (Children).

In the matter of L and B (Children) (which for some reason doesn't appear to have a complete case summary on the Supreme Court website) concerned a judge’s power to change her decision where oral judgment had been given but no order had yet been perfected. It was a care case, in which a fact-finding hearing was held to determine whether or not it was possible to identify either of the parents as the sole perpetrator of the serious injuries that the child had sustained. On the 15th of December 2011 the judge gave an oral judgment in which she held that the injuries had been caused by the father. However, on the 15th of February 2012 the judge handed down a written judgment which stated that she had “reconsidered the matter carefully” and decided that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”. Accordingly, the mother could not be excluded from the pool of possible perpetrators.

The mother appealed, and the Court of Appeal held by a majority that the judge was not free to reverse her decision as she had done. The Court had suggested to the mother that she submit that the judge was 'functus officio' and, after having given judgment on the 15th of December 2011, therefore lacked the mandate to re-decide the case. However, it was subsequently discovered that the order recording the judgment had not in fact been sealed until the 28th of February 2012, due to an administrative oversight.

The Supreme Court unanimously allowed the appeal. Lady Hale said that the order had not been perfected, and therefore the judge had power to change her mind.

You can read a press summary of the judgment here, the full judgment here (Bailii (html) version here) and the Court of Appeal judgment here.

In In the matter of J (Children) the issue was whether a previous Court finding that one or both of two individuals caused significant harm to a child constituted a ‘finding of fact’ in subsequent proceedings aimed at determining whether there was a real possibility that other children will suffer harm in the care of one or other of those individuals?

The facts (as set out on the Supreme Court website) were as follows:
"JJ is the mother of three children with her former partner SW. On 29 March 2004 the eldest of those children, T-L, was found dead having suffered numerous injuries. Following the birth of the couple’s second child, S, care proceedings were initiated by the local authority in South Wales in which it was found that JJ and SW were the two possible perpetrators of T-L’s death although the Court found there to be no definite evidence linking one parent or the other to the injuries T-L sustained. S was taken into care and JJ and SW subsequently separated. JJ later went to live in the north of England with a new partner, DJ, and his two children, H and T, from a previous relationship. JJ later had another child, I, again with SW, although both JJ and I continued to live with DJ and his children. In December 2010 the local authority became aware of the previous Court findings in relation to S and instigated a child protection plan under which they required JJ to leave the new family home she shared with DJ, H, T and I. The local authority also issued applications for care orders in respect of H, T and I. The Court dismissed those applications on the grounds that it had not been proven that JJ was the perpetrator of T-L’s injuries and there was binding authority to the effect that findings of fact which did not identify the actual perpetrator had to be ignored in evaluating the likelihood of future harm to other children under section 31(2) of the Children Act 1989. An appeal against this decision was dismissed by the Court of Appeal. However, the Court of Appeal felt that (a) the case law was inconsistent; and (b) there was a substantive difference between cases in which there had been no finding of past harm and cases in which past harm had been established but the identity of the actual perpetrator had not been proven to the civil standard; in the latter category of cases the Court of Appeal was of the view that courts should be able to consider such evidence."
The Supreme Court unanimously dismissed the local authority's appeal.

You can read a press summary of this judgment here, the full judgment here (Bailii (html) version here) and the Court of Appeal judgment here.

I will post the judgment videos of both cases, when (and if) they are published.

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