Judges allow parents to prepare case for risk assessment hearing

The court of appeal has decided that parents should have the
opportunity to make investigations prior to a care hearing. That
was the decision of the court in Re B on 24 April 2002.

The history of the matter was that the mother and father were
married in 1992 and had a child (L) on 15 June 2001, who was born
prematurely but discharged from hospital five days later. On 17
July 2001 L was re-admitted with a serious subdural haemorrhage. He
was discharged to foster parents as a result of the paediatrician’s
concerns that there was no explanation for the haemorrhage. The
paediatrician stated that striking was capable of causing subdural
haemorrhages, but there was no evidence of injury to L.

Care proceedings were initiated by the local authority and
directions were given for a split trial. The first stage was
designed to establish the causes of L’s injury and to decide who
was responsible for the injury. The case was referred to a
consultant paediatric neurologist who gave evidence, as did the
paediatrician and R, a social worker.

The neurologist had concluded that L’s condition was consistent
with non-accidental injury. The parents had had the opportunity to
give evidence but had chosen not to do so. His Honour Judge
McKitrick in December 2001 and January 2002 had drawn no adverse
inferences from their choice not to give evidence. The judge held
that L’s injuries were non-accidental and had been caused some six
hours prior to his admission to hospital, and that the injuries
were caused by the father or the mother but could not identify
specifically which parent was responsible. Following the judge’s
findings, directions were given to carry the case forward to the
second stage of the split hearing. It was agreed that a child
psychologist would carry out a risk assessment relying on the
judge’s findings.

A dispute arose over the information to be provided to the
psychologist in relation to a son of the father (C), aged 17 and in
foster care. He was in regular contact with his father and the
mother of L. The local authority had been involved with C for many
years and had accrued four lever-arch files about him. R’s evidence
had been her summary of those files. The issue was whether the
evidence in the four files was relevant to the first stage of the
split trial. R had been critical of the father and mother and based
her evidence on the past evaluation of their parental capacity and
responsibility. The judge said the psychologist should see
information regarding C’s background in order to achieve a balanced
assessment of risk, but that the files should not be available for
the parents to remove information.

The parents said that the judge was wrong to conclude that the
injuries were non-accidental and that he was mistaken in his
findings in the absence of evidence to support them. They also said
that the judge failed to identify the cause of the injuries and
that the medical evidence suggested that the presence of shaking or
shaking and impact was no more than a possibility. Regarding the
second stage of the care proceedings relating to risk assessment,
the parents said that if the judge had properly directed himself he
would have allowed them or their legal representatives to review
the contents of the four files and to extract unfavourable

The three-man court of appeal allowed the appeal in part:

(1) This case was unusual because the judge had heard no
evidence from the parents. They have no obligation to give evidence
and the judge had dealt with them in a more than fair way.

(2) At the first stage of the split hearing, the task of the
judge was to consider whether the child had suffered or was likely
to suffer harm. The judge had correctly drawn no adverse inferences
from the parents’ refusal to give evidence but there were
consequences because of their failure to explain the events leading
up to L’s admission to hospital on 17 July 2001. Accordingly, the
judge was right to reach the decision he did at the first stage
that L’s condition was consistent with non-accidental injury.

(3) C’s records were highly relevant to L’s future care and as
that point had not been disputed by the local authority, the court
could exercise its discretion on that issue. R had summarised her
findings on the parental capacity of the parents from information
contained within the four files, and their legal representatives
were entitled to see all the files. Even the most careful summary
may not be completely balanced.

(4) C’s files were the only records indicating the parental
capacity of the parents and were evidence of their parental
history. Providing them with the opportunity to extract
unfavourable material was extremely important given the findings
that had already been made against them. Both parents had yet to be

(5) Directions for the format in which their legal
representatives would be granted access to the four files would be
given shortly, as would the way in which ‘unfavourable information’
would be dealt with.

Comment: It is very hard for a local authority to assess parents
who choose not to explain important events, and this case shows how
difficult matters can become. The court decided that it was in the
interests of fairness to allow the parents to conduct all necessary
investigations to prepare for a risk assessment after the judge’s

Because of the injury to L, C’s records in full will now be
available to his father and L’s mother (who is not C’s mother) as
the history of their parenting capacity has been drawn from that
file. Whilst there is the important issue of what is to happen to
L, there are also important issues about (i) C’s right to privacy
and (ii) the parents extracting “unfavourable information”. If the
Court is serious about full disclosure, then it needs to think
about the consequence of not having all information available to
it. L’s future might depend on it.

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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