Case No: (1) B4/2007/0151, (2) B4/2007/0245

Neutral Citation Number: [2007] EWCA Civ 576
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOKE ON TRENT COUNTY COURT
(HIS HONOUR JUDGE DUGGAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 15th May 2007
Before:

LORD JUSTICE THORPE
LORD JUSTICE GAGE
and
LORD JUSTICE TOULSON

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	IN THE MATTER OF C (a Child)

	
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(DAR Transcript of 
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Miss H Erwood (instructed by Messrs Poole Alcock LLP)  appeared on behalf of the Appellant Mother in (2).

Mr R Hornby (instructed by Messrs Durrad Moxon LLP) appeared on behalf of the Appellant Father in (1).

Ms D Goslin (Children’s guardian) and Mr E Timpson (Local authority) (instructed by Messrs Cheshire County Council in (1) & (2), Messrs Hibbert Durrad Moxon in (1), Messrs SAS Daniels in (1) & (2) and Messrs Poole Alcock LLP in (2)) appeared on behalf of the Respondents.

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Judgment

Lord Justice Thorpe:
1.	The appellants in the present case are the parents of C, who was born on 26 June 2006, seemingly slightly premature, so mother and child were not discharged from hospital until 3 July.  On 30 July, there was an incident at the family home in the early hours. There is no doubt at all that the mother was the victim of domestic violence.  She turned at once to her sister, telephoning for help. Her sister in turn telephoned the police and, within a short time, her sister, a police constable, and then in due course a police inspector, arrived at the home.  They found a distraught mother but fortunately C safe and well, asleep in his bed.
2.	In her distress the mother undoubtedly told her sister, and indeed the two police officers, that not only had she been the victim of domestic violence but that the father had shaken the baby and as a consequence the baby had been returned to her in a floppy state.  Indeed in her complaint to the police inspector, she said in dramatic terms: 
“He shook my baby, my baby’s dead.”
3.	There was inevitably then intervention.  First of all, the criminal justice system was involved.  Proceedings were brought against the father, which resulted in a sentence for common assault, I think on a guilty plea. On 13 October, the magistrates imposed an 18-month supervision order and required him to attend a domestic violence course.  The local authorities were, of course, involved and the father was excluded from the home and his contact to his child reduced to a weekly one-hour supervised visit.  
4.	The judge in the care proceedings, initiated some 16 weeks after the event, was subsequently to find that the local authority had handled the situation with excessive zeal, a zeal which I think he described as “crusading”.  Inevitably in these cases social workers are vulnerable to criticism; either for being insufficiently interventionist or excessively interventionist.  Given that a five‑week old baby is a very vulnerable human being and, given the dramatic statements or accusations of the mother in the heat of the moment, the local authority was understandably bound to act with great caution and if to err in any direction to err on the side of caution.  
5.	The first issue that was tried out in the Children Act proceedings was the question of whether section 31 of the Children Act 1989 had been satisfied; namely, whether in practitioner parlance the threshold under that section had been crossed.  The issue was tried before HHJ Duggan sitting in the Stoke on Trent County Court and he delivered his judgment on 10 January. He considered carefully a schedule prepared by the local authority.  He heard oral evidence from the parents and from the guardian and ultimately he arrived at a clear conclusion that the threshold had been crossed.  As he said in his judgment at paragraph 30: 
“At the start of the local authority’s protective measures, immediately after 30 July 2006, C was likely to suffer significant emotional and physical harm by exposure to the repetition of the incidence which are proved to have occurred on 30 July and at the end of April. The repetition of these incidents is likely because the father lacks the parenting skill necessary to deal with a crying child and the couple minimised the incidents and rejected voluntary help with the issues of parenting and domestic violence.”
6.	The parents were separately represented at the hearing and counsel applied for permission to appeal, which the judge refused.  He made a very sensible order that the case should return to him on 25 January.  He was particularly keen to ensure that the child was not the victim of protracted proceedings during the course of which the family would be unnecessarily disrupted and obstructed from reunion. So on the 25th he made an interim supervision order and recorded the parties agreement to cooperate with social work visits, to be open with professionals, to engage in the support package that the local authority were providing, to engage in a health visiting service package, to engage in the domestic violence programme ‑‑ particularly a commitment from the mother since the father was already engaged in the programme as a result of the criminal conviction -- and finally to engage in parenting classes.  The judge clearly hoped that he would be able to discharge intervention at a further hearing on 30 March, for which he gave a time estimate of only two hours.  
7.	However, the application for permission was renewed to this court, each of the parents seeking permission. The papers were put before Wilson LJ, who on 21 March granted permission.  He clearly anticipated that a consequence of the grant would be the adjournment of the hearing on 30 March.  We have been told today that that was the outcome but that happily the judge has set a further hearing for 26 June.  We have enquired briefly as to the progress of the range of supports to which the parties agreed on 25 January.  It appears that there has been some hiccup over the commencement of the parenting classes because after 25 January the mother had second thoughts and withdrew her consent.  It is reassuring to learn this morning that she has come back on side and that the parenting classes are now underway.  No doubt all share the guardian’s hope that this family can be held in reunion and that the intervention and the continuation of public law proceedings can be brought to a close on 26 June.
8.	So that is the background and we must obviously disregard the subsequent events in judging the submissions of both the parents that the incidents found proved by the judge were simply inadequate to amount to a crossing of the threshold. Of course, the main plank of the appellants’ respective cases is that the judge, having carefully considered the evidence of the parents, reached the clear conclusion that there had been no shaking of the child whatsoever on 30 July.  There was simply an ugly incident of domestic violence as a result of which the mother suffered no significant injuries, as is reflected in a finding of only common assault.  It is therefore contended that since the father was exonerated of the mother’s over-dramatic description of shaking and a child rendered floppy, there was really nothing here that could possibly found state intervention into family life. 
9.	It is not contended by either appellant that the judge misdirected himself in law.  It is simply asserted that he reached a conclusion that was plainly wrong in his application of the law to the facts as he had found them.  I am myself unimpressed by those submissions, although they have been persuasively advanced by Miss Erwood for the mother and Mr Hornby for the father. What is very important, in my judgment, is the context in which the authorities, both police and local authority, were involved in family life.  As the judge describes in paragraph 14 of his judgment: 
“On 30 July it is common ground that these were inexperienced new parents. Father could not cope with a crying baby. He found that he could not console the baby and it would seem that his frustration in his attempts to console the crying baby left him crying himself, according to the mother. From time to time he went out on these occasions in order to calm himself.” 
Then against that background comes the judge’s description: 
“On 30 July at 1 am he returned home. There is no suggestion that he was drunk or had taken alcohol. The mother wanted to go to the kitchen so she handed C to the father and at that point C was crying. The crying developed into screaming. The father could not cope with it and he raised his voice.  The raised voice made the crying worse, the worsening of the crying increased the frustration of the father who began to cry himself and he swore. He swore by telling the child to ‘shut the fuck up’. 
“The mother described those words as having been shouted when she was giving her account to the police, the father has himself admitted that he shouted those words”.
10.	The judge then considered in detail whether the father had also shaken the child and reached the conclusion that that had not been proved to the requisite standard. He said: 
“The only evidence against the father is what the mother has said. She has made the allegation and then withdrawn it in the circumstances that I have analysed. Overall, it is quite impossible for that evidence to prove the allegation of this seriousness against the father.”
The judge, however, described the aftermath thus: 
“The mother took the child from the father and called the father a bastard. The father reacted, he kicked the child’s bottle.  He hit the mother, using the fingers of a clenched fist.  He threw a vase over her shoulder at a cupboard, where it broke.   He struck her on the back and on the back of the head and went to restrain her. That summary is largely accepted the father has, on 13 October 2006, pleaded guilty to common assault.”
11.	The judge also considered a prior episode in April in which there had been earlier domestic violence and the judge reached the conclusion that on the earlier occasion the father had struck the mother, pushed her out and then thrown the family dog on top of her.  So the judge turned, at paragraph 29, to the local authority schedule and made specific findings that were consistent with the earlier paragraphs of his judgment.  In paragraph 33, he looked to subsequent events when he said: 
“I remind myself that there is evidence of only two episodes, this is not a case of a long history to be extracted from the police and medical records.  It is also the case that the mother did complain to the authorities, through the agency of her sister, of what happened on the 30 July.  But in my judgment the 30 July was a serious child related incident - the father could not cope with a crying child.  He shouted and swore at the baby which directly triggered an episode of domestic violence.  The couple then rejected voluntary help that was designed to avoid repetition. They not only rejected the help but minimised the episode itself - not accepting that there was a problem, let alone accepting help towards a solution. So my conclusion is that there was a real possibility of the repetition of incidents of that kind and incidents of that kind, in my judgment, carry with them the real possibility of significant emotional and physical harm.”
12.	On that review of the judgment, I reach the clearest conclusion that the judge was fully entitled to find as he did, having assessed the evidence of the parents as he did.  This was an unusual situation in which inexperienced and relatively elderly new parents were challenged by the demands of a very young baby.  The result seems to have been emotional disorder close to emotional chaos.  The conclusion is essentially for the trial judge, who has the advantage of seeing and assessing the parents not only in relation to the two incidents under the spotlight but also in relation to the prior context and the subsequent reaction to the intervention of authority.  In that respect, I am not only uncritical of the judge but am quite convinced that he arrived at the appropriate conclusion. His subsequent management of the case seems impeccable.  I would share the guardian’s view that these proceedings can be brought to final conclusion on 26 June.  
13.	For those reasons I would dismiss these two appeals.
Lord Justice Gage:  
14.	I agree.
Lord Justice Toulson:  
15.	I also agree.  

Order: Appeal dismissed.