Neutral Citation Number: [2007] EWHC 1566 (Fam)
Case No: NR06C00371
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/06/2007

Before :

MR JUSTICE HOLMAN
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Between :

	NORFOLK COUNTY COUNCIL	Applicants	
	 and 		
	The Mother
and
The Father
and
BC
(by his child’s guardian)	1stRespondent

2ndRespondant

3rdRespondant	

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Miss Kate Thirlwall QC and Miss Rachel Langdale for the Norfolk County Council
Mr Ian Peddie QC and Ms Jane Hoyal for the parents
Mr Charles Howard QC and Mr Jonathan Bennett for the child’s guardian
Ms Barbara Connolly for the adoptive parents of children A and B

Hearing dates: 26th – 28th June 2007
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Judgment

Mr Justice Holman: 
1.	This is a judgment in proceedings number NR06C00371 which are solely concerned with BC.   He was born on 29th May 2006 and is now just over one.   His parents are … and … whom I will call the father or the mother, or collectively the parents.   They are married to each other and live in Norfolk.
2.	The parents had three children, known in these proceedings as child A, child B and child C.   Those children are now aged approximately 7½, 5½ and nearly 4.
3.	In November 2003 child B, then aged about 2, was taken to hospital where he was found to have a number of fractures.   The treating doctors considered that they had been caused non accidentally.   The Norfolk County Council, whom I will call Norfolk, applied in the Norwich County Court in proceedings number NR03C00997 for care orders in relation to all of children A, B and C.   There was a contested hearing in May 2004 at which both parents were separately represented.   After hearing oral evidence from two doctors and considering other medical evidence and reports, and hearing oral evidence from the parents,   His Honour Judge Barham held on 21st May 2004 that the injuries to child B had indeed been caused non accidentally and that the only people who could have caused them were one or other of the parents.
4.	There was then a risk assessment and a further hearing in November 2004.   On 24th November 2004 His Honour Judge Barham made further orders placing all three children in the care of Norfolk and freeing them for adoption.   That had the effect that the care orders were immediately automatically discharged.   The children were all adopted during 2005.
5.	When Norfolk learned that the mother was pregnant again they were inevitably and appropriately concerned for the well being of the expected baby in light of the history in relation to children A, B and C.   After the birth of BC they commenced the present proceedings in which they applied for a care order in relation to him as well.   However, they never removed or sought to remove BC from the actual care of his parents.   Rather, they arranged for the parents and BC all to live together at a special residential unit where their parenting capacities could be assessed and they could be given practical help and advice.   They remained there for about five months.   The outcome was so positive that Norfolk then agreed to BC moving with his parents to their own home.   They have lived there together ever since.   Appropriately, Norfolk have continued to monitor and assess BC’s progress and the care given to him by his parents since they have all been at home.
6.	In tandem with that process of assessment, much further medical evidence has been assembled in relation to child B.   As well as further reports from the original treating doctors and a doctor who had given expert evidence in May 2004, the case has been considered and reported on by five further experts from a range of medical disciplines.   Further evidence has also been obtained from child B’s GPs in 2003 and the health visitor.   In 2004 the medical evidence had all been to the same effect, namely that the fractures were non accidental.   Now the evidence is more polarised.   There is a considerable body of evidence from a number of doctors of distinction in different fields to the effect that child B had been suffering from undiagnosed scurvy and iron deficiency as a result of having a diet of nothing except soya milk for almost all of his life until November 2003.   Initially he was given prescribed infant formula soya milk which contains added vitamins and other nutrients.   Later he was given adult soya milk bought in ordinary shops which does not.   Those doctors who consider he was or may have been suffering from scurvy also say that the effect on his skeletal development would have left his bones vulnerable to fracturing in the course of normal, non abusive handling.   However some of the treating doctors continue to say that in their opinion child B was not suffering from scurvy.
7.	This case had been set down a considerable time ago for a hearing starting this week, and ten days had been set aside.   By a judgment and order made by me on 23rd February 2007 I had ruled and made clear that if, within these proceedings concerning BC, Norfolk and/or the child’s guardian wished to allege and prove that either or both his parents non accidentally injured child B, then they must do so “from scratch by fresh evidence given within these proceedings.”   The findings of His Honour Judge Barham shall not be capable of standing as proof.   (My judgment of 23rd February 2007 is publicly available on the internet to anyone who wishes to read it).   I thus expected, and I believe all parties expected, that most or all of the doctors who had reported would attend to give oral evidence at the present hearing, and they had been lined up to do so.
8.	Recently, Norfolk decided that it was no longer appropriate or justifiable to seek any care or other order at all in relation to BC as his parents are caring for him safely and well.   There was an advocates’ meeting at which all, I stress all, parties, including the parents, agreed that no oral evidence, including any medical evidence, should be called notwithstanding that 10 days had been set aside and the witnesses booked to attend.
9.	I myself read the papers in the case last Monday, 25th June, and the case began in court on Tuesday.   By then, the sole application before me was an application by Norfolk County Council, supported and agreed to by all other parties,   for permission to withdraw their application for a care order and thus end these entire proceedings.   Paragraph 1 of the opening statement on behalf of Norfolk begins “Norfolk County Council do not seek to prove that either parent caused injury to their son, child B in November 2003.”
10.	On Tuesday I formally agreed to all the witnesses being stood down.   I did not consider that I should or could insist on all the medical evidence being heard and tested when no party wished me to hear any such evidence and the stated position of Norfolk was as I have just quoted.
11.	However, until a point in the hearing which I will shortly identify, I personally totally believed and expected that this hearing would be the last occasion upon which the history of this family would be considered in and by any court.   For that reason, I had permitted leading counsel for Norfolk to state their position at considerable length and, in particular, to make much detailed reference to the written medical evidence and records.   Within the very strict limitation that I had not heard any oral evidence at all, I had hoped to say something descriptive of the history, the medical evidence, and the overall state of the case against the parents in relation to child B.
12.	However, just before lunch on the second day (Wednesday 27th June), at the outset of his submissions, Mr Ian Peddie QC on behalf of the parents indicated to me that there was some possibility of an appeal in relation to the 2004 proceedings and findings.   After taking further instructions, he told me yesterday (Thursday 28th June) that the considered position of the parents, upon advice, is that they intend to apply to the Court of Appeal for permission to appeal out of time from the care orders made on 24th November 2004 and, if permission is granted, to seek an order for a full rehearing on oral evidence (including all the medical evidence now assembled in these proceedings) of the proceedings before His Honour Judge Barham in May and November 2004.
13.	I now understand that Mr Peddie had given the other advocates some fore warning of this plan and intention at their recent advocates’ meeting.   But as far as I was concerned, this was a very surprising and unexpected piece of information for several reasons.   First, the parents have repeatedly said that they do not intend in any way to challenge the adoption orders, but those orders are underpinned in turn by the care and freeing orders.   Second, there was no hint in Mr Peddie’s detailed written response dated as recently as 25th June 2007 to the opening statement of Norfolk, that they had this plan and intention in mind.   Rather, there is a tone of finality about the last few paragraphs headed “Conclusion”.   Third, I had assumed that if the parents did indeed still seek a full judicial hearing on oral evidence, they would have seized the opportunity which the present, long booked hearing gave them, albeit in the context of BC and not directly of child B.   It never occurred to me that they would seek, rather, the discretionary remedy of seeking to appeal years out of time when they have not previously attempted to appeal the orders made in 2004.
14.	In light of what Mr Peddie has now said, I now consider that it would be wrong of me to say anything further at all about the medical evidence or the history in relation to child B.   It would be wrong of me to make any judicial comment about that evidence and history when it has not been tested before me and yet, if Mr Peddie and the parents are successful in their proposed application to the Court of Appeal, may later be the subject of a full hearing and adjudication.
15.	My only essential task and duty on the present application is to decide whether I should give Norfolk the permission they seek to withdraw their application for a care order in relation to BC.   The future welfare of BC must dominate my decision.   I unhesitatingly and gladly do give that permission.   There has been, as I have briefly described, an intense assessment of both parents and their care of BC for over a year now.   I have a detailed and recent statement dated 19th June 2007 from the current social worker and her manager.   It describes that BC’s development is age appropriate and he is meeting his milestones.   He has a good appetite and a normal diet for a child of his age.   Both parents are actively involved in his care.   The father as well as the mother is confident and comfortable in caring for his son.   BC responds positively to either parent.   The statement gives express consideration under a series of headings to parenting skills;  BC’s health and development;  feeding;  injuries (there have been none);  emotional wellbeing;  the parental relationship;  the involvement of the extended family;  housing;  and finances, and concludes as follows:-
“Time has passed since [the parents] had the three older children in their care and it would appear that they have considerably matured in many areas, not only their parenting style and abilities but also their approach to life in general.   The local authority now conclude that with the appropriate intervention, support and guidance given to [the parents] since the birth of BC they are now able to demonstrate and evidence that, as parents, they are able to anticipate and meet the needs of their son without the need of a protection plan.”
16.	In her own opening statement on behalf of Norfolk Miss Thirlwall QC says at paragraph 11:
“While the proceedings have continued, the social work picture has become ever clearer and more positive.   It is plain that BC is very well looked after.   His development is normal and he is meeting his milestones.   He was successfully weaned from the age of 6 months and [the mother] provides a varied diet for him.   His emotional attachment to his parents is very good as is theirs to him.   BC should remain where he is.”
During the oral hearing Miss Thirlwall also stressed that the parents have been very co-operative with Norfolk throughout the whole time since BC was born.
17.	The case has also been very thoroughly investigated by BC’s guardian.   She was also the guardian within the previous proceedings for children A, B and C so she has personal experience of the circumstances of the family then as well as now.   In her report dated 21st June 2007 she says that she supports the position of the local authority.   She describes BC as follows:-
“BC presents as a happy, relaxed and sociable little boy.   Despite the significant number of professionals directly involved in his life to date, there is no indication of him having been adversely affected by this intervention.   The fact that his parents, and particularly his mother, have been consistent in his life (and I would note that he has seldom been left even with extended family members) has ensured his sense of security, regardless of any changes around him.   Additionally all the professional intervention which has been provided has been focused on helping and supporting the parents in the care of BC rather than on  him.”
She says that the parents have continued to provide a high standard of physical care to BC since the family’s return to the community, this including recognition of his health needs and ensuring that these have been met.   She says later that BC has not suffered any harm and “there is now no indication that BC is at risk of harm in the care of his parents.”   At paragraph 28 of her report the guardian says:
“Since BC’s birth both [the parents] have demonstrated their capacity to recognise and meet his needs.   At paragraphs 14 and 15 of my first interim report I noted the conclusions of the psychiatric and psychological assessments.   The former confirmed that neither has any diagnosable psychiatric or personality disorder which could affect their parenting capacity.   The latter concluded that both parents have positive attributes indicating the capacity to successfully and competently parent their son although it also identified some issues which resulted in a recommendation for psychological therapy to help them look at past and recent events and the effect of these on them, their views, behaviour and self concept.   I would suggest that this recommendation remains valid and could only further enhance the couple’s future parenting capacity for BC …”
The guardian says at paragraph 49:
“Significant progress has been made in all areas by [the parents].   I agree that they have matured in many areas, not only in their parenting style and abilities but also in their approach to life in general and are now very stable in their relationship and in their lifestyle with their son.   I believe that the changes they have made have been enhanced by the intensive work which has been undertaken with the family.   Additionally, the circumstances are very different to those they faced before in that BC is the only child in their care and can be, and is, the unchallenged focus of their attention.   Taking all these factors into account it is my view that the issues of concern relating to child A, child B and child C which resulted in the additional findings by Judge Barham in November 2004 are not issues of concern in respect of BC and the evidence before the court is that he can be safely and appropriately cared for by his parents.”
	  Finally the guardian said:
“Finally, I would wish to formally record the fact that, despite the pressures they have been under, I have found [the parents] to be entirely co-operative, open and honest and welcoming to me, and indeed other professionals, throughout my involvement with them during the course of these proceedings.   This is something to which I also made reference during my first interim report and for which the parents should be given credit.”
18.	The evidence and material from both Norfolk and the guardian satisfies me that the position of BC has been thoroughly investigated and assessed over a prolonged period ever since his birth.   There is no current basis for considering that he is at any risk of harm, and there is every reason to believe that he is thriving in a caring and loving family unit and home.   There is thus no justification or reason for making a care order or continuing these proceedings and I will formally give to Norfolk permission to withdraw them.
19.	In my view the Norfolk County Council should be thanked for, and congratulated upon, the very great care they have taken in relation to BC and indeed the effort and expense they have incurred in so thoroughly investigating the case of BC.   I thank also the guardian who has investigated the case with considerable thoroughness and responsibility.
20.	I sincerely compliment each parent on the way they have co-operated with Norfolk and others during these highly stressful proceedings;  and I sincerely compliment them upon the excellent way in which they are parenting and caring for BC as described in the reports from which I have briefly quoted.   I thank each of  [the parents] for their patience, courtesy and close attention at the now several hearings before me; and I sincerely wish each of [the parents] and BC every possible happiness and fulfilment as a family together in the years to come.