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||Neutral Citation Number:  EWCA Civ 59
||Case No: B4/2008/1128/1129/1130
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ BARHAM ON 21st MAY 2004
THE NORWICH COUNTY COURT
||Royal Courts of Justice
London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
LORD JUSTICE MOORE-BICK
LORD JUSTICE WILSON
|| Nicola and Mark Webster (the parents)
||- and -
||Norfolk County Council
The Children by their Children's Guardian
2nd ,3rd & 4th Respondents
Ian Peddie QC and Jane Hoyal (instructed by Messrs Grenville J Walker Solicitors) for the Appellants
Kate Thirlwell QC and Rachel Langdale (instructed by Norfolk County Council) for the 1st Respondent
Charles Howard QC and Anna McKenna (instructed by Messrs T Higgin Solicitors) for the 3rd, 4th, and 5th Respondent
Barbara Connolly acted for the Adoptive Parents of A, B and C.
Hearing date: 4th December 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
This judgment is divided into the following sections
||1 to 17
||The role and function of this court
||18 to 24
||The nature of the fractures sustained by child B: the incidence of scurvy
||25 to 30
||The facts in outline
||31 to 38
||How the applications were dealt with on paper
||39 to 41
||The case for Mr and Mrs Webster
||42 to 66
||The skeleton argument addressing the points raised by Hughes LJ
||67 to 72
||The case for the local authority
||73 to 84
||The case for the guardian
||85 to 91
||The position of the adopters
||The hearing before Judge Barham on 20 May 2004
||93 to 108
||The judgment given by Judge Barham on 21 May 2004
||109 to 116
||The appellants' notices and grounds of appeal against Judge Barham's first order
||The second hearing before Judge Barham
||118 to 121
||Judge Barham's second judgment
||122 to 131
||The adoption orders
||The grounds of appeal against care and the freeing orders
||133 to 134
||Ladd v Marshal (1)
||135 to 139
||140 to 144
||Is it open to this court (in 2008) or 2009 To set aside the adoption orders
||145 to 165
||Does ECHR make any difference?
||166 to 175
||Mr and Mrs Webster's change of heart on the adoption point
||176 to 170
||Ladd v Marshall (2)
||182 to 191
||Lessons for the future: second opinions
||192 to 199
Lord Justice Wall:
- We heard this case on 4 December 2008 and reserved judgment. Unfortunately, it was not possible to put our judgments into writing before Christmas. After further discussion amongst ourselves, however, it became apparent that we were each of the view that Mr and Mrs Webster's applications would have to be refused. We therefore decided that we should communicate our decision to the parties before Christmas, with the reasons for it to follow afterwards. This judgment will give my reasons for the decision I have reached. I apologise to the parties for the delay which has occurred.
- Over the period from 4 December 2008, I have been considering whether there is any one noun or adjective which can properly describe this case. I have come to the conclusion that there is not. The four children concerned, namely Brandon, his sister and his two brothers, have been denied the opportunity to argue that they should grow up together with their parents as a family. That is deeply worrying, and, on the face of it, a clear breach of their rights to respect for their family life under Article 8(1) of the European Convention on Human Rights (ECHR).
- For Mr and Mrs Webster, the parents of the children concerned, the case has been a disaster, quite apart from any breach of their rights under the ECHR. From their perspective, they have been wrongly accused of physically abusing one of their children, and three of their children have been removed wrongly and permanently from their care. The only mitigation, from their point of view is the local authority's belated recognition that they are fit and able to care for Brandon.
- For the Norfolk County Council, despite its forceful forensic stand in this court, the case has been a worrying and deeply regrettable experience, not least because, in the result, a family which might well have been capable of being held together, has been split up.
- For the medical profession, the case has also been a painful learning experience, and a further illustration of the proposition that things may not always be what they seem.
- Finally, both for the Family Justice System (FJS) in general, and for this court in particular, any miscarriage of justice or potential miscarriage of justice is both regrettable and embarrassing, not least when so much multi-disciplinary effort has been put into the promotion of good practice and the creation of procedures designed to ensure that the events which occurred in this case are not repeated.
- The FJS has many critics. This is not a matter of complaint, as I regard myself as being among them. However, one of the dangers of ill-informed criticism of the FJS is the tendency either to propagate or to seize upon the tendentious (and often illicitly disclosed) accounts of the unsuccessful party or parties to the proceedings and publish those accounts as if they contained the only and determinative features of the particular case. A good example of this phenomenon is the case of Re H (Freeing Orders: Publicity)  EWCA Civ 1325,  1 FLR 815.
- A second risk which critics of the FJS run is to cast the blame for the outcome of a case onto one faction usually the social workers or the experts. There is, in particular, a misconception that expert witnesses are "hired guns" for the side which has instructed them. In my experience over many years, both as advocate and judge, this is simply not the case. In my judgment one of the principal achievements of the FJS in the past twenty years or so has been the lead it has taken in discouraging partisan experts, and in advancing the proposition that the overriding duty of the expert witness is to the court and to the children concerned in the case, irrespective of the source of his or her instructions.
- At the time of these proceedings, this principle was embodied in Appendix C of The Protocol for Judicial Case Management in Public Law Children Act Cases  2 FLR 719 at 771: it is now contained in the Practice Direction: Experts in Family Proceedings relating to Children which came into force on 1 April 2008.
- I regard myself as being amongst those critics of the FJS who recognise that it is indeed fallible, but that the overwhelming majority of those working within it are conscientious professionals seeking often with access to wholly inadequate resources to do their best for the disadvantaged children whom they serve. I therefore regard it as my function in this, as in other cases, to examine the case in the round and as a whole - including, of course, the reasoned judgments in the court below. In my judgment this is the best way to promote improvements designed to reduce or eliminate the prospects of repetition. This is a point to which I will return at the end of this judgment.
- I shall, of course, deal with the detail of the case in this judgment. I can, however, say at the outset that, having read all the papers in the case, and having listened carefully to the arguments, I have come to the conclusion that it would be wrong to criticise any of the social workers or the doctors who advised Judge Barham in the care and freeing proceedings relating to A, B and C (the initials by which Mr and Mrs Webster's three eldest children are known). I am satisfied that, in this unhappy case, everybody was doing their conscientious best to give the judge professional advice and to act in what they perceived to be the best interests of A. B and C.
- In particular, as I point out later in this judgment, the type of injuries which child B sustained have a high specificity for non-accidental injury, and cases of scurvy in children are so rare that few of the specialists in practice had ever seen a case let alone a recent case.
- The difficulties faced by the professionals in these proceedings constitute one of the reasons why I am pleased that Mr and Mrs Webster do not seek to disturb the anonymity hitherto afforded to the doctors and to the social workers involved in the case. I appreciate, of course, both that the issue of transparency lies at the heart of the debate about family justice and that this judgment is not the place to pursue it. However, as I have already stated, anonymity has hitherto been afforded to the three children who have been adopted; to the local authority's social workers; and to the doctors who advised the local authority and the court. Should there be any application in due course by any party to remove this anonymity, we can, no doubt re-constitute to hear it, once the parties have had the opportunity to consider our judgments. In the meantime, I propose to preserve it.
- Like all judgments of the Court of Appeal, our judgments in this case will, of course, be handed down in public, and will be available on the internet (www.bailii.org). In my judgment, however, it is perfectly possible to discuss the issues raised by this case without naming individual doctors or social workers. It would, moreover, be quite wrong to seek to scapegoat any individual for what may or may not have been a systemic failure, or what, in particular instances, may not have been a failure at all.
- The structure which this judgment will follow, therefore, will be to summarise without comment, under a series of separate headings, the issues and events making up the case. In the final sections, I will then discuss those issues, and explain my conclusions.
- The result, I fear, is a judgment both full of quotations and much longer then is necessary to resolve the issues debated before us. I have, accordingly, provided an index. This will, I hope, enable those who wish to read selectively to do so. For those minded to be critical of the FJS, however, I unhesitatingly advise a full reading not only of our judgments in this case, but also of all the other documents which are already in the public domain.
- It is, accordingly, worth pointing out that there is already a great deal of material relating to this case in the public domain. I refer, in particular, to the two judgments of Munby J, handed down in public on 2 and 17 November 2006, and available on Bailii as  EWHC 2733 (Fam) and  EWHC 2898 (Fam) respectively; the two judgments of Holman J, dated respectively 23 February and 29 June 2007 and available on Bailii at  EWHC 549 (Fam) and  EWHC 1566 (Fam), together with the two judgments given in the care proceedings by HH Judge Barham, which Munby J released in his judgement handed down on 2 November 2006, also available on Bailii.
The role and function of this court
- It is, I think, important to be clear from the outset that what we have before us are applications by Mr and Mrs Webster for permission to appeal the orders relating to A, B and C out of time, combined with applications to adduce fresh evidence. Our role is limited to deciding these issues.
- Many litigants come to this court wrongly believing that it has powers which it does not possess. In reality, the Court of Appeal is a creature of statute, and its powers are limited by Acts of Parliament, rules of court (notably the Civil Procedure Rules 1998 (CPR)) and its own previous decisions.
- In order to persuade this court that they should have permission to appeal the relevant orders and an extension of time for doing so, Mr and Mrs Webster have to satisfy us, in the words of CPR rule 52.3(6) that:-
(1) the court considers that the appeal(s) would have a real prospect of success; or
(2) there is some other compelling reason why the appeal(s) should be heard and that there is justification for the massive extension of time (as to which see paragraph 23 below).
- Thus, Mr and Mrs Webster must understand that it is not our function to decide whether or not B had scurvy or was injured non-accidentally. This is not a matter of judicial side-stepping: it is simply not within our power or function to make any such decision. Our function is limited to that which I have already identified. If we had decided that they should have permission to appeal, an extension of time for doing so, and indeed permission to adduce fresh evidence, we would I think, have been able to set the orders aside, but we would inevitably have had to direct that the care proceedings be re-heard by a judge at first instance.
- The reasons for this are clear. We have not heard the evidence. We have not seen the witnesses. We see the case at one remove. This court is thus a court of review, not a tribunal which is capable of finding facts. That is why I say that it is not for this court to decide whether or not child B was non-accidentally injured.
- Of course, many questions arise immediately in relation to the re-opening of the previous proceedings. The first, self-evidently, is that the applications are substantially out of time. The normal time for appealing against an order is 21 days from the date of the lower court's decision: - see CPR 52.4(2)(b). Mr and Mrs Webster, of course, say that they only recently received the medical reports which enable them to challenge the findings in relation to child B. This court, however, has to ask itself whether or not that information could have been obtained in time for the hearings before Judge Barham: - see Ladd v Marshall  1 WLR 1489 discussed at paragraphs 135 to 139 below.
- Secondly, and perhaps most importantly, the status of the children has changed. Mr and Mrs Webster have lost parental responsibility for A, B and C, who are, as a matter of law, the children of their respective adoptive parents. No doubt this is a matter which, from their perspective, simply aggravates their sense of injustice, but it is a matter which is at the heart of the case, and one to which Mr Peddie QC and Ms Hoyal, for Mr. and Mrs. Webster, rightly devoted much of their argument.
The nature of the fractures sustained by child B: the incidence of scurvy
- Before turning to the facts, I also think it important to bear in mind throughout the nature of the fractures sustained by child B, and the rarity of scurvy as an illness in the United Kingdom.
- The judge found that child B had a total of six fractures. They were as follows:
(1) a recent fracture of the anterior (back) end of the right tenth rib;
(2) metaphyseal corner fractures of the proximal humerus bilaterally (that is the long bone of the both arms at the shoulders);
(3) further fractures at the distal right femur (i.e. the lower end of the thigh bone), the distal left femur and the distal left tibia (i.e. the lower end of the shin bones).
- Several uncontentious points can, I think, be made. Firstly, the medical evidence in the case is unanimous that normal children's ribs do not fracture easily, and accidental rib fractures in small children are rare.
- Secondly, the particular nature of child B's other fractures is significant. They are all metaphyseal fractures. The metaphysis is the region either at one or both ends of a growing long bone. The consultant radiologist who gave evidence to the judge was thus simply expressing mainstream medical opinion when he wrote on 11 December 2003, in answer to an enquiry from the local authority:-
These metaphyseal injuries are caused by unacceptably forceful twisting / pulling forces applied to the limbs. They do not occur in the course of normal accidental injuries a child of this age may be subject to in the course of rough and tumble play with other children or adults. The forces brought to bear are unacceptable and would be clearly such to the perpetrator, there is no overlap with acceptable force. These fractures have a high specificity for inflicted non-accidental injury. The rib fracture is likely to have been caused by forceful squeezing.
- Such fractures are often seen in children who have been inappropriately "yanked" by their feet or hands, and that is why they do not usually occur accidentally. Against this background, I also note that the professor of paediatric radiology, who reported at the instance of the guardian on 14 June 2007, and who concluded that the skeletal findings in child B were indicative of scurvy and inconsistent with abuse, nonetheless stated in her report:-
I can entirely understand why the radiological changes initially were thought to represent non-accidental injury given the metaphyseal infractions (fractures) and anterior rib fracture and the greater incidence of non-accidental injury compared to the incidence of scurvy in this country, but I believe that the specific changes of scurvy I have identified and the symmetry of changes would militate against non-accidental injury.
- I also note that in paragraph 318 of the comprehensive report provided by the consultant community paediatrician instructed by the guardian and dated 17 May 2007, that doctor states:-
The fact is that scurvy, although not actually unheard of in the UK is now so rare that the overwhelming majority of paediatricians either will never have seen a case, or will have seen one or two cases, probably long ago, or abroad. Also I suspect that many of them will also have the preconception that purpura and gum bleeding is common in scurvy in children, as in the classic description taught at Medical School.
The facts in outline
- Although these have been stated many times, they need to be examined afresh for the purposes of this judgment. Mr and Mrs Webster are a married couple. Four children have been born to them. The first three are A (a girl, born in January 2000); B (a boy, born in November 2001) and C (also a boy, born in August 2003). Their fourth child is Brandon, who was born on 28 May 2006.
- On 9 November 2003, Child B was admitted to the Norfolk and Norwich University Hospital, where he was found to have a number of fractures. He had also been suffering from a feeding problem, and for at least a year prior to his admission to hospital had been having only soya milk.
- The local authority's view was that B's injuries were non-accidental, and that they had been caused by one or both of his parents. On 9 December 2003, it took care proceedings in relation to all three children, who by then, had been placed with specialist foster parents.
- At a finding of fact hearing on 20 May 2004, a local circuit judge, His Honour Judge Barham, found that B's injuries were non-accidental and had been caused by one or both of his parents. At a subsequent "welfare" hearing lasting some four days and culminating in a judgment given on 24 November 2004. Judge Barham made care orders in relation to all three children. He also freed the children for adoption and in that respect dispensed with the consent of the parents. It will be recalled that these proceedings fell to be dealt with under the Adoption Act 1976, not the Adoption and Children Act 2002, which was not in force in November 2004. The three children were placed in their respective adoptive homes in the summer of 2005, and adopted in two separate placements by orders dated 4 December 2005. Children A and B are in one placement together: child C is in a separate placement.
- On 29 May 2006, Brandon was born in the Republic of Ireland. The parents had gone there with a view to avoiding his immediate removal from their care by the local authority. Despite this, the local authority took care proceedings in relation to Brandon, relying on the evidence relating to child B. However, in Brandon's proceedings, the local authority's case is that it made clear to Mr and Mrs Webster that it wished them to undergo a residential assessment with Brandon. This they completed successfully. In the result, therefore, Brandon has lived with them throughout his life.
- In the interim, Mr and Mrs Webster were given permission to obtain fresh expert evidence relating to B. The eventual upshot was a powerful medical opinion that B's injuries were more likely to be due to iron deficiency/scurvy than to abuse.
- In the event, Holman J on 29 June 2007 by agreement discontinued the care proceedings relating to Brandon, with the result that he now lives with his parents without any form of statutory order relating to him.
- This, in summary, is the background to the application by Mr. and Mrs Webster to set aside all the previous orders relating to A, B and C: that is to say the care orders, the orders freeing the children for adoption and the adoption orders themselves.
How the applications were dealt with on paper
- With the exception of proceedings for Habeas Corpus and Contempt of Court, every appeal to this court in family proceedings requires permission to appeal. The practice, therefore, is for a single member of the court to read the papers and (subject to the appellant's usual right to challenge a written refusal of permission) at an open hearing to decide how the case should proceed. In the instant case, Hughes LJ read the papers and adjourned the applications into court for oral argument. That is how they reach us.
- Having summarised the facts, Hughes LJ commented:-
The critical question is likely to be whether time should be extended (for all or any such applications) given (a) the making of adoption orders nearly three years ago; (b) the state of the present medical evidence which is helpful to the parents but not unanimous; (c) possible debate as to why scurvy was not more fully canvassed at the time; and (d) the passage of time since the orders, the appearance of the new theory in 2006 and a decision not to ventilate the medical evidence before Holman J in care proceedings in June 2007 relating to a subsequently born child.
- As I will record (see paragraphs 67 to 72 below) Mr. Peddie and Ms Hoyal filed a supplemental skeleton argument to address Hughes LJ's four points, all of which are plainly apt.
The case for Mr and Mrs Webster
- This section, from this paragraph to paragraph 67 is devoted to setting out the way in which the case for Mr. and Mrs. Webster was advanced before us by Mr Peddie and Ms Hoyal. It should be so read. Both counsel and those instructing them had clearly done an enormous amount of work on the case, and I am extremely grateful to them for the clarity and force with which it was advanced: indeed, it is difficult to think how it could have been better presented. Most of what follows is taken from the documents they have helpfully provided.
- Mr Peddie and Ms Hoyal also provided a detailed analysis, both of the fresh evidence which they sought to adduce and of the evidence accepted by the judge which they criticised. I mean no disrespect to their industry when I say that I do not intend to reproduce the detail in this judgment. I hope what I report below will provide a sufficient reflection of the fresh material now available. Counsel also provided an additional skeleton argument to deal with the matters raised on behalf of the local authority as well as that addressed to the points made by Hughes LJ.
- The fundamental submission made on behalf of Mr and Mrs Webster is that the making of the care orders by Judge Barham, together with the orders which followed, represent a serious miscarriage of justice, which in the interests of A, B and C and their brother Brandon must be corrected.
- Mr Peddie and Ms Hoyal began by submitting that the medical reports available to Judge Barham could be said to be dogmatic and tended to express opinion in terms of certain fact rather than probability. Furthermore, there was no medical evidence to address the possibility of osteogenesis imperfecta (OI) being the cause of the fractures.
- Counsel provided a detailed and helpful chronology. This showed that prior to his admission to the Norfolk and Norwich University Hospital on 9 November 2003 child B, then aged just 2, had been suffering from a painful and swollen ankle and had been refusing to walk for approximately two weeks. During that time Mr and Mrs Webster had consulted their G.P. Later, child B had been taken to Cromer Minor Injuries Hospital where he had been x-rayed. On 8 November 2003, he was taken to the Norfolk and Norwich Hospital but after further x rays were taken he was discharged. However, on the following day his parents were still worried and contacted NHS Direct, the North Walsham Hospital and finally returned to the Norfolk and Norwich Hospital. The point was made that all this indicated proper parental concern, and did not smack of abuse. Furthermore the detail, it was submitted, had not been considered or weighed by the judge.
- Counsel also pointed out that child B's feeding problem had been known to and discussed with child B's general practitioner. Child B was thus known not to be taking solids, and was only taking soya milk on the advice of the GP. There was no previous history of involvement with Social Services, and Mr and Mrs Webster in their oral evidence had robustly, but in a measured way, denied causing harm to any of their children.
- Mr. Peddie and Ms Hoyal criticised the fact that at the "welfare" hearing in November 2004 additional "threshold" findings were made in relation to physical and emotional neglect of child A. They also criticised the fact that the local authority had relied upon the evidence of a consultant child psychiatrist, who had given evidence that child A had been subject to neglect both physical and psychological, relying in part if not in large measure on a combination of the earlier findings of non-accidental injury in relation to child B and Mr and Mrs Webster's refusal to accept responsibility for his injuries.
- However, the proceedings relating to Brandon had taken a different turn. On 17 July 2006, Holman J. had ordered, inter alia, that Mr and Mrs Webster should have permission to instruct an adult consultant psychiatrist, in order to conduct an assessment of them. Then on 10 August 2006, Wood J ordered, inter alia, that a psychologist be instructed to prepare a risk assessment report on both parents. In addition, permission was given to Mr and Mrs Webster to instruct a consultant paediatric radiologist further to review and to report on the X-rays of child B. Counsel pointed out that there had been no specifically paediatric radiology evidence in the 2004 proceedings.
- On 25 August 2006, the consultant psychiatrist instructed on behalf of Mr and Mrs. Webster filed his reports about them. Both reports were positive. The psychiatrist stated that neither Mr. nor Mrs Webster suffered from a personality disorder. There was no evidence of relationship difficulties between them. The psychiatrist was unable to identify any triggers for abuse in the family. He stated that they "demonstrate a well developed social conscience". Both had a very strong attachment to Brandon. The psychiatrist did not consider Mr. Webster to have a propensity to violence.
- On 29 September 2006, the psychologist instructed on the parents' behalf filed his reports. He opined that: "There is nothing within the current assessment which would preclude (either of the parents) from being viewed as other than competent and capable to care for (their) child".
- On 12 October 2006, the consultant paediatric radiologist filed his report. This confirmed the original diagnosis of non-accidental injury. However, on 3 November 2006, Munby J. continued with the interim care plan, permitting Brandon to live with his parents at the family home, following a successful period of intensive assessment at a residential assessment centre. Munby J also gave permission to Mr & Mrs Webster to instruct a consultant paediatrician, to provide a paediatric overview.
- On January 4 2007, the consultant paediatrician instructed on Mr and Mrs Webster's behalf filed his report. He concluded that "All (child B's) signs and symptoms including the bony lesions can be explained by iron deficiency anaemia and scurvy. I do not believe that he was abused or neglected."
- On 7 February 2007, the consultant paediatric radiologist reported for the second time. He had been asked to reconsider his findings in the light of the consultant paediatrician's opinion that child B was suffering from scurvy and iron deficiency anaemia. He concluded that the consultant paediatrician "has made a convincing case for the presence of scurvy and he states that the diagnosis of scurvy is a clinical finding. If the consensus of opinion is such then the radiographic findings would be revised." The consultant paediatric radiologist then described how the lesions and metaphyseal changes could be due to scurvy although it was important to note that the radiographs showed some but not all features of scurvy. The radiologist was at pains to make the point that his "original report was based on the premise that Child B did not suffer from any nutritional deficiencies and therefore was skeletally normal".
- On 27 February 2007, Holman J ordered that a professor of paediatric nutrition - arguably, it is said, the pre-eminent consultant paediatric nutritionist in the country - be instructed. On 25 April 2007 he reported that "it was highly likely if not inevitable
" that child B suffered from scurvy as the consultant paediatrician had first suggested; and that "this pattern is the classical picture seen in scurvy but not that of non-accidental injury".
- Following the receipt of the reports of the consultant paediatrician and the consultant nutritionist, Brandon's guardian instructed another consultant community paediatrician to undertake a second paediatric overview of the medical evidence. He concluded that "on balance the clinical picture especially the dietary history as given by Mrs Webster, is more typical of scurvy than of abuse". He had mistakenly thought that there were some X-ray findings which were not consistent with scurvy. He therefore recommended a further radiological report. To that end a report was obtained from a professor of paediatric radiology, that radiologist was absolutely clear in her opinion that child B suffered from scurvy. She reported that: "My view of the skeletal findings are that they are indicative of scurvy. I do not believe they are consistent with non-accidental injuries". Earlier, she opined that "the symmetry is highly suggestive that there is an underlying bone disorder".
- Mr Peddie and Ms Hoyal argued that, not surprisingly, the treating clinicians who reported in the 2004 proceedings were reluctant to accept the diagnosis of scurvy, they having failed to make the diagnosis. However, the treating consultant paediatrician ultimately accepted the diagnosis of scurvy, despite the conclusion in her report dated 13 June 2007, in which she opined that:
it is my view that he probably didn't have clinically significant scurvy and that non-accidental injury remains the most probable diagnosis.
However, she deferred to the professor of paediatric radiology.
- In addition to the five new experts from a range of disciplines there was also evidence from the Health Visitor who knew the family well, having been the Health Visitor in respect of all the children. She spoke highly of the care shown to all three older children.
- Following receipt of the new medical evidence, the local authority applied to withdraw the care proceedings referable to Brandon. It was decided by all parties not to call any of the witnesses. On 29 June 2007 the Judge, Holman J., granted the application. He did not give a detailed judgment because the parents had indicated an intention to appeal out of time against the making of the 2004 Orders in relation to A, B and C. Holman J. stated that in those circumstances and because the new medical evidence had not been tested it would be wrong to make any judicial comment about it: see Norfolk CC v Webster  EWHC 1566 (Fam).
- On the merits, Mr Peddie and Ms Hoyal submitted that the principal underlying issue was as to whether child B was suffering form scurvy and/or iron deficiency anaemia, which affected the strength of the bones and made him more susceptible to fractures. If so, the decisions made by Judge Barham were seriously flawed and plainly wrong. The specific findings in the judgments, which were challenged, were as set out in the Grounds of Appeal (see paragraphs 133 to 134 below). The application to adduce fresh evidence set out the evidence which contradicted the findings made.
- Counsel accepted that those seeking a rehearing bore the evidential burden of establishing an arguable case that there was fresh and potentially cogent evidence which might reasonably lead on a re-hearing to a different finding from that reached by Judge Barham. Counsel also asserted that there was a public interest in a child knowing the truth as to why he or she has been removed from his or her parents' care. For that proposition they relied on the decision of this court in Re K (Non-accidental injuries: Perpetrator: New Evidence)  EWCA Civ 1181,  1 FLR 285 (Re K) at paragraphs 56, 60, 61 and 62.
- In summary, counsel asserted that there was fresh and cogent evidence, namely all the recent medical reports together with the evidence of the Health Visitor, which was not presented to the court in 2004, and which might reasonably lead on a re-hearing to very different findings from those reached by Judge Barham in May and November 2004. This evidence was accepted by Holman J in June 2007, although he did not give a reasoned judgment for the reasons set out above.
- Counsel then turned to the proceedings to free the three children for adoption. They acknowledged frankly that this part of their case presented considerable legal difficulties. Adoption, they acknowledged, was the legal process by which a child becomes a permanent and full member of a new family. They rightly referred us to section 67 (1) of the Adoption and Children Act 2002 (the 2002 Act), now in force, which states that "An adopted person is to be treated in law as if born as the child of the adopters or adopter." They equally rightly referred us to the relevant cases on the subject, which are set out at paragraphs 145 to 165 of this judgment. They accepted that this court would be reluctant, as a matter of public policy, to interfere with adoption orders. If prospective adopters thought that the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made, that could have a dramatic adverse effect on the number of prospective adopters. They acknowledged that the courts have stressed the finality of adoption orders.
- However, counsel asserted that the freeing applications should not have been granted. This was for the same reasons as supported the appeal against the making of the care orders. They accordingly submitted that in these exceptional circumstances the freeing for adoption orders should be overturned, and the children in due course returned to their care.
- Counsel argued that there had been circumstances in which successful appeals against adoption orders had been based on mistake, significant procedural irregularities and denial of natural justice. It was their submission that in a case in which the medical evidence was flawed that amounted to a mistake in law and in such a case there had been a denial of justice to all the children.
- In relation to the Human Rights Act and the ECHR, counsel reminded us of the terms of ECHR Article 8, and placed reliance on the case of Pini and Bertani (and others) v Romania  2 FLR 596 (discussed, with the other European authorities, in paragraphs 166 to 175 of this judgment) in which the ECtHR held that the making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. The issue in the instant case was therefore: was the interference with the Websters' family life justified by Article 8 (2)? Counsel asserted that it clearly was not. The children at the very least needed to know that was the case.
The skeleton argument addressing the points raised by Hughes LJ
- On the question of fresh evidence, counsel set out the fresh evidence in detail, and asked a series of questions designed to show that the allegations of repeated non-accidental injury were inherently unlikely. The questions they posed were-
(i) Why was the alleged non-accidental injury, over a few weeks but not months?
(ii) Why in such a limited time-frame?
(iii) Why only one of three children?
(iv) Why over such a wide area of the body, (e.g. ribs, shoulders, both knees, left ankle and possibly left wrist)?
(v) Why was general development/motor development age appropriate?
(vi) Why did the parents consult the GPs and the Health Visitor being concerned as to B's growth and feeding behaviour, if non-accidental injury was the cause of the injuries?
(vii) Why did child B's dietary problems continue after reception into care?
- Counsel also relied on the statements made by Mr and Mrs Webster, and conducted a further detailed analysis of the medical evidence and the evidence of the Health Visitor.
- In relation to Hughes LJ's question: "Why was scurvy not more fully canvassed at the time?," counsel accepted that scurvy was almost unknown in the western world. They also accepted that clinicians were not familiar with the condition and were not looking for it. There was a concentration on the possibility of OI as the cause of the injuries. However, junior counsel for Mrs Webster (not Ms Hoyal) had in cross-examination vigorously pursued the possibility of scurvy being the cause of the injuries.
- Neither Mr Peddie nor Ms Hoyal (nor those currently instructing them) was acting for Mr. or Mrs. Webster (they were separately represented before the judge) in 2003 and 2004. The solicitors then acting on behalf of Mr and Mrs Webster did not appear specifically to address the issue with the experts. There was an unfortunate concentration on the possibility of the causation being brittle bone disease (OI) because of its prevalence in the maternal extended family. This may have proved to be a distraction.
- As to the passage of time since the orders were made, and the decision not to ventilate the medical evidence before Holman J, counsel explained:-
(i) the proceedings related to Brandon only, there could be no definitive findings in relation to the three older children;
(ii) the desire that the children know the truth about all the allegations;
(iii) the order made by Holman J in February 2007 refusing an application to permit a re-hearing of the matters decided by His Honour Judge Barham in 2004;
(iv) there would not have been a judgment in respect of the making of the Care Orders or the Freeing for Adoption orders;
(v) there would not have been a reopening of the important parts of the medical evidence;
(vi) they would have required more than the days available to hear and test the evidence, a factor mentioned to Holman J in a letter dated 22nd June 2007 written to him by them following the advocates meeting on 21st June.
- As to Hughes LJ's fourth question, counsel accepted that this was not a single issue case. They added, however, that whilst there may have been some criticism of the parents' care of the three older children, it was not such as would have led to the care proceedings and their adoption. They pointed out that the Health Visitor was not called to give evidence in the 2004 proceedings. She knew the family well and had no concerns as to the care shown by them to their children. Indeed, she had confirmed the fact that the parents "were both good and loving parents to their children who were all well cared for and clearly loved". She was, moreover, aware of child B's eating disorder and Soya milk diet.
The case for the local authority
- The local authority argued that permission to appeal should not be granted for any of the appeals because; (1) they were too late; (2) none had any real prospect of success; (3) there was no other reason why permission should be granted; and (4) there were powerful reasons why permission should not be granted.
- The local authority made the point that the adoption orders were made as long ago as 8 December 2005. Mr and Mrs Webster were not, and were not entitled to be, parties to them. They thus had no right or status in legal terms "no locus" - to appeal them. They also had no grounds to appeal them. Since 8 December 2005 the children A, B and C had been the legal children of two other families. The court had no inherent power to set aside adoption orders in the absence of procedural irregularity. Our system operates on the basis that adoption is permanent.
- The local authority invited us to read its detailed opening note prepared for the hearing before Holman J in June 2007. Those proceedings concerned only Brandon. The local authority submitted that following points emerged:-
(i) the focus of those proceedings was Brandon, not his siblings;
(ii) the application to withdraw the application for a care order was made because Brandon's parents had made significant strides in their parenting and were able to provide Brandon with a happy home in which he was thriving. This was after very significant resources had been devoted to the family by the local authority. Mrs Webster acknowledged the value of that help and support in her evidence. She accepted that she was now a better parent. There was no question of removing Brandon from his parents. Against that background there was a conflict of medical evidence on the cause of B's fractures: scurvy and anaemia or non-accidental injury. That issue did not need to be resolved in order to determine what was in Brandon's best interests;
(iii) other issues (broadly of neglect emotional and physical) which were of significance in the cases of A B and C were irrelevant, given the progress referred to above, in respect of Brandon.
- The local authority also pointed out that the position of Mr and Mrs. Webster had changed radically since the matter was last before the courts in June 2007. The object now was to overturn the adoption orders. However, throughout the proceedings in respect of Brandon, Mr and Mrs Webster had said in terms that they had no desire to overturn the adoptions, nor was there any reference to their intention to appeal earlier orders until a late stage of the hearing. As is plain from his judgment of 29th June 2007, the news that Mr and Mrs Webster intended to appeal the care orders and the freeing orders took Holman J by surprise. The first time that the local authority and the adopters learned of the appeals against the adoption orders was when the notices of appeal were served in May 2008.
- The adopters were now in law the parents of A, B and C respectively. There was no inherent jurisdiction/power to set the adoption orders aside. There were certain specific statutory provisions for the revocation of an adoption order, none of which applied. Only where there had been procedural irregularity could the order be set aside.
- On the question of the fresh evidence, all the medical reports and related correspondence in respect of child B had been included in the bundle as directed by Hughes LJ. No objection had been taken to the Court reading the "new" evidence for the purposes of these applications.
- The local authority made the point, however, that the evidence had been obtained during late 2006 and 2007 in the proceedings concerning Brandon. All of the experts could have been approached in May 2004 or before. The applications thus did not get past the first requirement in Ladd v Marshall  1 WLR 1489.
- That said, however, the local authority accepted that the outcome of these applications was of some public importance, given that the ultimate aim was to set aside the adoption orders. All of the new evidence had been before Holman J and large sections of it were referred to at the hearing in June 2007. It had been reported in the press and broadcast media. It would be artificial to invite the court to consider the applications without reference to the new evidence and no objection had been taken to that course.
- The medical evidence, taken as a whole, was not all one way. Of the four experts upon whom Judge Barham had relied only one had shifted position in 2007. The outcome of any re-hearing, assuming such a re-hearing to be possible was, by no means certain.
- The local authority also pointed out the disadvantages of revisiting the medical evidence now as opposed to 2004. It argued that, had the new evidence been obtained timeously, the following steps could have been taken:-
i) a vitamin C blood test could have been performed on the sample of blood taken from child B in November 2003. The level of vitamin C would have been established beyond doubt;
ii) repeat radiological examination could have been carried out several of the radiologists refer to this as useful;
iii) the relevant brands of soya milk could have been identified and tested for vitamin content;
iv) the parents would have been able to be specific about how often, if at all, sweetened, as opposed to unsweetened, milk was given;
v) the health professionals (GP and Health Visitor) would have been in a position to say what advice had been given and when, from recent memory as well as from their notes. In particular it would have been possible to determine at whose suggestion child B was given supermarket soya milk and what was said about orange juice and vitamins;
vi) there would have been greater clarity as to B's precise clinical symptoms, treatment and recovery;
vii) evidence would have been obtained as to child B's diet from Mr and Mrs Webster, the extended family and the health care professionals; and
viii) there would have been a series of experts' meetings, close to the event. A consenus may have emerged.
- It was not in dispute that B had at least 6 fractures, and that his growth was only on the 9th centile. He was described repeatedly as anxious. There had been reports of neglect. Child A's teeth were poor, indicating poor diet and oral hygiene. There was evidence from a child psychiatrist about emotional harm. All of these and other issues would have been considered to see whether there was support for one diagnosis or the other, and also to consider whether the situation at home was such that the local authority should be seeking to remove the children from home. None of that could now happen.
- Finally, the local authority submitted that it was for the adopters to decide when and what the children should be told. That was their role and responsibility. The children and the adopters all had rights under ECHR Article 8: the current applications undermined them.
The case for the guardian
- The case for the guardian was trenchantly but skilfully advanced by Mr. Charles Howard QC and Miss Anna McKenna. The guardian had, of course, the advantage that she had represented all four children throughout. She was, accordingly, the single consistent professional figure in the case.
- Mr Howard, on her behalf, invited us in his oral submissions in effect to start at the end of the process, with the adoption orders. If these were revoked, he argued, legal chaos would prevail as to the status of the children, and the situation would be quite unconscionable. The guardian did not consider it to be in the interests of the children for them to be exposed to the emotional turmoil which would result from the legal uncertainties arising from the reopening of the proceedings.
- Mr. Howard pointed out that, crucially, we were hearing the application listed on the third anniversary of the grant of the adoption orders. He provided us with a chronology which demonstrated that the children had been apart from their parents for more than five years. He emphasised the limited power given to the court to set aside adoption orders, as demonstrated by the reported cases on the point.
- Mr Howard accepted that ECHR Article 8 was engaged. However, Article 8 rights applied to everybody. He argued that when there is legitimate interference with children's article 8 rights by removal pursuant to section 31 of the 1989 Act, it was widely accepted that the children's interests dictated that they should be able to enjoy stable emotional relations in a new family with new parental attachments. It was for that reason that the permanence of adoption rather than the uncertainty of long-term fostering was the preferred outcome for young children.
- Mr Howard added that the need for certainty, stability and permanence by adoption, when adoption was the care plan approved by the court in granting care orders, was usually very great for children. It usually came - as here - after a lengthy period of uncertainty during the care proceedings and then after the care orders pending a placement being identified. These children A, B and C were in the uncertain position of being in foster care from November 2003 until shortly before making of the adoption orders on 4 December 2005. The 2 year period of uncertainty was resolved by the granting of the adoption orders on 4 December 2005. Thereafter, he submitted, their Article 8 rights centred exclusively on their new, permanent family.
- Mr. Howard also accepted that ECHR Article 6 was engaged, but submitted that there was no breach. In particular he submitted that there could no complaint about the fairness of the hearings before Judge Barham. On the European jurisprudence he laid particular emphasis on the case of Kearns v France which I discuss at paragraphs 171 and 172 below.
- Mr. Howard submitted that the fresh evidence, which he agreed we should read, did not meet the criteria identified by Ladd v Marshall (see paragraphs 135 et seq. below). He accepted that issue estoppel (the doctrine that a party was prevented from re-arguing a point because it had already been decided, which Mr Peddie and Ms Hoyal had raised) did not arise. He had a number of anxieties about a re-hearing, which he listed. Finally, he argued that the children could be told the truth sensitively, without the applications being granted and put forward tentative proposals as to how this could be done.
The position of the adopters
- We had a skeleton argument on behalf of the adopters, who were represented before us by the Solicitor for the children and the children's guardian, Mrs Barbara Connolly. They too opposed the applications. Their principal argument was that the children's emotional attachments are now with them. For that position to change now, or even the threat of change, they argued was likely to lead to considerable emotional instability/harm. I will cite simply one paragraph from counsel's skeleton argument:
Given the inordinate delay, there has been and will be considerable injustice to the children and the adopters. It threatens a huge infringement of their right to family life and undoubtedly will cause enormous stress, anxiety, disruption and emotional / psychological harm, particularly to the children. Adoption orders have been made. The adopters are not eligible for public funding. Had Mr and Mrs Webster acted with due diligence, such matters as needed further investigation /litigation should have occurred prior to adoption orders being made.
The hearing before Judge Barham on 20 May 2004
- Before addressing the arguments presented to us, I think it necessary: (1) to examine the hearings before, and the two judgments given by, His Honour Judge Barham; and (2) to identify the various points of law which arise, notably the cases on setting aside adoption order, the European dimension and the rule in Ladd v Marshall.
- I begin therefore with the first hearing before Judge Barham, at which Mr and Mrs Webster were separately represented, and which lasted one day. We have a full transcript of the hearing on 20 May 2004, albeit that there are numerous points at which the word "inaudible" appears.
- Despite its inadequacies, a number of points emerge clearly from the transcript. The first is that this was not a hearing at which the judge was required to decide whether or not the threshold criteria under section 31 of the 1989 Act were satisfied. It was a pure "finding of fact" hearing relating to B's injuries. This emerges clearly from an early exchange between junior counsel for the local authority and the judge:-
HH Judge Barham:-
The only issue is, well, perhaps you (had) better deal with that precisely. What am I being asked to decide?
The issues are how the injuries on (child B) were caused. Were they caused accidentally or non-accidentally? If they were non-accidental, who were the likely perpetrators? Was it either or both parents?
- Although we do not have the antecedent orders, it is also reasonably clear that the time estimate was agreed. I note that the judge specifically asked counsel for Mr. Webster whether or not the case would finish in a day. Similarly, it was plainly a matter of agreement that only two of the medical witnesses would be called, namely a consultant radiologist and a consultant orthopaedic surgeon.
- Even if, however, that assumption is wrong, three points seem to me to emerge clearly from the transcript. The first is that all the medical evidence was, in effect, one way. The doctors were unanimous that these were non-accidental injuries. The second is that the two doctors called to give oral evidence to the judge expressed themselves in conventional terms. When dealing with metaphyseal fractures (as to which see paragraphs 25 to 29 above) I cite only one example: that of the consultant radiologist, who amplified what I have already set out at paragraph 28 above by telling the judge:
I think it's important to understand that fractures are extremely common in children. Children fracture themselves with gay abandon in the course of normal play. We understand from that the degrees of force that are necessary to produce fractures. But in the course of normal play or rough and tumble, or even football matches type injury, we never see corner fractures. Corner fractures just don't occur. That, if you like, in the setting of normal acceptance of force i.e. rough and tumble, forceful play, sporting injuries aren't strong enough to produce these injuries. Therefore, when we do see them, the implication is that is (sic) must have been caused by a degree of force outwith normal activity and therefore unacceptable.
- Thirdly, the questions of nutritional deficit and scurvy were put to the doctors, and rejected by them. Towards the end of the examination in chief of the consultant radiologist there was the following exchange: -
Q. Finally, just in terms of nutrition, or nutritional deficit, did you see any radiological findings that would lead you to consider there was (a) nutritional deficit which might have caused these injuries?
A Well, no. But I think it would have to be pretty severe before it was radiologically apparent. The bones are normal. I don't think I can say he had no nutritional deficit at all. If it had been for longer and severe, it would have shown itself in the x-ray.
- Shortly afterwards, junior counsel then acting for Mrs Webster began her cross-examination: -
Q Just picking up on that last point, if I may. If the child had not been receiving sufficient vitamin C, vitamin D and iron for some 12 months at this stage it came to light when one would be expecting him to be growing a substantial amount, that could have impacted on his bone density, one imagines?
A I have to say, I'm not in a position to comment. I think I'm in danger of straying into areas I can't give a sensible comment.
- Mrs Webster's counsel returns to the question of scurvy slightly later. She is taking the doctor through various physical childhood illnesses in which there are fragile bones:
Q And, indeed, where there is scurvy or rickets it can occur in those situations too?
A If you have scurvy or rickets, yes. Well, they look very similar.
A But [inaudible] you can tell they've got scurvy or rickets.
Q Well, you can tell they've got scurvy or rickets when it is in an advanced stage, that would be obvious radiologically, but not to [inaudible] to know at that stage. Would that be fair?
A Well, yes. Then you wouldn't see the fractures.
Q Can you be sure of that?
A I think you probably can, yes.
Q Sorry to press you, but how certain can you be if the child did have
A Well, I've seen a lot of case(s) of both rickets and osteomyelitis and I've never seen a corner fracture in relation to those.
- At this point, the judge asks the witness to repeat his answer, and the following exchange occurs: -
A During the course of my practice, I've seen a significant number of children with nutritional bone disease like rickets or osteomyelitis, and even those with very florid changes I've never seen a metaphyseal fracture like that present in this case. It can certainly break, and it has been recorded that you can look at [inaudible]. I think the suggestion that they may occur in isolation in the absence of the other findings that would suggest rickets or osteomyelitis, that's the bit I'm taking issue with.
Q But this, of course, is a child we know he has been fed on what apparently is insufficient nutrition in this developing child. So we do not know. He may, of course, have the beginnings of rickets or scurvy, might he not?
A I am not in a position to comment on the beginnings of rickets or [inaudible]
Q But it has certainly been reported and then you could not rule it out [inaudible] experience seen a number of children with rickets or scurvy?
A What I think I can confidently say is this, the child shows absolutely no radiological evidence of rickets or scurvy.
Q That does not mean to say he has not got it.
A No, but he has absolutely no radiological evidence of that it is present (sic).
- When cross-examined by the Solicitor for the children and the children's guardian then acting for the guardian, the radiologist was asked about the likelihood of metaphyseal fractures arising where a child was in the early stages of rickets or scurvy. His answer was "Well, my view would be nil".
- A similar pattern followed in the evidence of the consultant orthopaedic surgeon. Towards the end of his examination in chief he was asked about diet or nutrition. His view was that the overall appearance of the x-rays was normal. He accepted that it could be argued that child B had the beginning of a disease, but added: "if he had not had the right nutrition for a year or so, then you would see something on the x-rays. I think it would be very unlikely for him just having had bad nutrition for a year, not having any changes showing on the x-ray".
- Counsel for Mrs Webster then began her cross-examination by putting to the doctor that child B had indeed been on a diet of only soya milk for about 12 months prior to his admission to hospital. The doctor, however, remained of the view that "if he would have had a deficient diet, you would have seen it after one year".
- Mr and Mrs Webster both gave evidence, and both, of course, denied causing any of the injuries to child B. There was, finally, brief evidence from the guardian going essentially to what Mr and Mrs Webster had told her about who had been caring for child B.
- The judge then heard submissions. Counsel for Mr Webster went first. He sought to persuade the judge that he could not be satisfied on the balance of probabilities that the injuries had been caused by Mr and Mrs Webster. He submitted that their inability to provide an explanation was not itself probative against them. He also made the point that the children, including child B, had reacted warmly to their parents, and that this was not consistent with abuse.
- Counsel for Mrs Webster made the same point particularly with regard to child B. She pointed out that Mrs. Webster had been "fair and reasonable, calm and collected" in her presentation in court and throughout. Mrs Webster "simply could not absorb what had happened". Counsel emphasised child B's poor diet, and made a specific reference to the possibility of scurvy or rickets. She submitted that "it seems inescapable that this child was suffering from a lack of a number of vitamins and / or minerals".
- Counsel for the local authority and the Solicitor acting for the guardian then addressed the court. During the former's address the judge re-confirmed that he was not concerned with any question of the threshold criteria, simply the findings of fact.
The judgment given by Judge Barham on 21 May 2004
- The judge began by identifying the two issues which he had to decide, namely; (1) did child B suffer non-accidental injuries?; and (2) who were the likely perpetrators of these injuries?
- The judge then directed himself correctly as to the burden and standard of proof, applying the law as it then stood in the case of Re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563. He continued:
I do not propose to go through the history of this family in any detail. However, it is significant to note that (child B) suffers from what is described by one of the experts as severe aversive feeding behaviour. It seems that he had never eaten solid food and this has been a matter of concern to his parents.
- The judge then recorded the fact that Mr and Mrs. Webster had been living apart between April and November 2003, albeit that the separation was financially driven and "more apparent than real". The judge then dealt with the events leading to the investigation of child B's injuries by saying:-
on 6 November 2003 (child B) was taken by his parents to the GP. He was not using his legs and shuffling along on his bottom. On 8 November 2003 he was seen at the hospital. X-rays of his hips were taken. There was nothing abnormal.
On 9 November 2003 his mother was concerned because his left leg was swollen and once again he was taken to hospital. He was treated initially for osteomyelitis. It was felt there might be a bone infection. Fractures were discovered, as a result of which an emergency protection order was obtained in respect of (children A and C) on 14 November, and on 19 November they went to the current specialist foster carers where they live. (Child B) joined them after he left hospital.
- The judge then turned to the expert evidence which he had heard. He accurately reported the two experts' descriptions of the fractures. The judge accepted the evidence of the consultant radiologist that there were a total of six fractures inflicted on at last two occasions and possibly on more than two occasions. I have already set out the judge's findings at paragraph 26 above.
- The judge then continued:-
I turn to consider the various alternative possibilities put forward as being the cause of these injuries. They are these; one, osteomyelitis, two brittle bone disease, three poor nutrition, four, scurvy or rickets, five, inflicted by (child A).
Each of the experts who gave evidence rejected these suggestions. Mr M said there was nothing to suggest osteomyelitis, a nutritional deficit, rickets or scurvy or brittle bone disease. He said the density of the bones would not make features of the type found in (child B) more likely or easier to cause. He excluded as a possible cause of fractures parental restraint or the child getting a leg caught in a stair gate.
(The consultant orthopaedic surgeon) agreed with the consultant radiologist but not in quite such emphatic terms. He couched his evidence in terms such as it was very unlikely, for example, that diet affected the bone quality and is was speculation to suggest so.
- The judge then considered the evidence relating to OI in other members of Mrs Webster's family and accepted the evidence of the consultant orthopaedic surgeon that it was very unlikely that child B was suffering from OI.
- The judge then referred to the written evidence of two other specialists, both paediatricians. One had stated that the X-rays and blood tests did not suggest either nutritional deficiency causing bones which were easily fractured, or OI: the other was of the opinion that child B was not at risk from the nutritional point of view and that he did not have either OI or evidence of any other bone disorder.
- The judge then considered and rejected the possibility that the injuries or any of them were caused by child A. He thus concluded that the injuries were non-accidental. He then turned to the question of the perpetration of the injuries. He excluded everybody except Mr and Mrs Webster. He did not, however, distinguish between them and expressed his conclusion succinctly in the following terms:-
Accordingly, I find that (child B) has suffered non-accidental injuries, namely those identified by (the consultant radiologist) and I find that the mother and the father are the only possible perpetrators of these injuries.
The appellants' notices and grounds of appeal against Judge Barham's first order
- The grounds of appeal embrace both judgments given by Judge Barham. However, in relation to his judgment on 21 May 2004, Mr and Mrs Webster assert that Judge Barham was plainly wrong to conclude that the multiple injuries sustained by B in about October / November 2003 were caused non-accidentally by one or other of his parents. The injuries, they assert, were caused as a result of his bone fragility in consequence of the fact that he was then suffering from scurvy and / or iron deficiency. They criticise the judge's findings in relation to specific matters based on the expert evidence before him, and criticise both the judge and the experts for failing to give sufficient consideration to the fact that child B suffered from a nutritionally inadequate diet. They also criticise the judge for "failing to encourage a more detailed medical assessment and evidential challenge to the alleged non-accidental injuries". They point once again to the fact that the documentation exceeded 1000 pages whereas the case finished in one day. They add that "despite the volume of documentation and reports, there was no specific consultant status expert evidence in respect of (child B's) nutrition, his eating disorder and the effects thereof".
The second hearing before Judge Barham
- The transcript of this hearing, which lasted some four days, runs to a total of nearly 250 pages. It would, I think, be impossible to attempt a summary, notwithstanding the fact that it was the hearing not only at which care orders were made, but at which the children were freed for adoption.
- The difficulty which Mr and Mrs Webster faced, at the second hearing of course, was that they were fixed by the findings made by Judge Barham at the May hearing. Furthermore, there had been an approach to a child protection consultancy (the Consultancy) with a view to the Consultancy carrying out an assessment of Mr and Mrs Webster. Shortly before the hearing began, the Consultancy (which had dealt with the matter entirely as a paper exercise) stated that there was little or no prospect of success in any assessment designed to bring about the reunification of the children with their parents.
- Accordingly, at the outset of the hearing the position of Mr. and Mrs Webster appears to have been that if, as seemed likely, there was no prospect of the three children living with them, they should instead live with Mrs Webster's parents, the children's maternal grandparents. Failing that, they should be placed in long term foster care, with contact between the children and Mr and Mrs Webster. This was the basis upon which the hearing was conducted.
- The judge heard from a consultant psychiatrist instructed by the local authority, two social workers (including the author of the care plan), Mrs Webster, the maternal grandparents, Mr Webster and the guardian.
Judge Barham's second judgment
- I bear in mind that this judgment is also in the public domain see paragraph 17 above.
- Having identified the children and their parents, the judge directed himself in the following way: -
In considering the applications for care orders I have first to be satisfied that the threshold criteria were satisfied. I then have to consider whether care orders should be made. In so doing I bear in mind the paramountcy principle, the welfare checklist, the no order principle and the care plan. An order, I accept, should only be made if it is both necessary and proportionate.
- The judge then recorded the fact that the position of Mr and Mrs Webster had changed as a result of the report from the Consultancy which had concluded that there was little or no prospect of success in an assessment of them for the purposes of reunification with A, B and C. As a consequence, Mr and Mrs Webster accepted that the court would not make an order returning the children to their care, and instead sought an order whereby the children would live with their maternal grandparents, thereby remaining within their wider natural family.
- Having dealt briefly with the history, the judge referred to the findings of fact which he had made in May 2004. He then addressed the threshold criteria. In relation to child B his findings sufficed to establish significant harm. In relation to child A he referred to the fact that she had been found to have "extensive dental decay" and held that Mr and Mrs Webster were "guilty of neglect" in failing to take her to the dentist. He made no finding in respect of B's eating disorder or, to put the matter another way, he did not think child B's eating disorder was a factor in the threshold criteria.
- The judge then turned to emotional harm, and relied on the evidence of the child psychiatrist, who had described child A as "suffering from relative emotional deprivations and a troubled girl". The judge concluded the question of threshold by saying:-
24. B, in my judgment, must have suffered emotional harm as a result of his injuries. In addition, he is described as being "intensely anxious and a wary child", and as having a sense of uncertainty and fearfulness when with his parents.
25. The guardian submits that both (B and A) have suffered emotional harm in the care of the parents. I agree that this is so.
26. Accordingly, the threshold criteria are satisfied in the case of B, on the grounds of physical and emotional harm and, in the case of A, clinical and emotional harm. Each has suffered significant harm. All three children are at risk of suffering significant harm in the form of physical abuse or emotional harm if returned to their parents.
- The judge was critical of Mr and Mrs Webster's attitude to his May findings, and accepted the evidence of the guardian that it would not be possible for them to make any "essential changes" in order to safeguard the children's wellbeing and welfare. That also, of course, was the conclusion of the consultancy.
- The judge then went on to reject the maternal grandparents as carers for the three children, not least because they too found it difficult to accept the May findings, coupled with the confusion which would be caused to the children if they were living with their grandparents, but continuing to see their parents. The judge agreed with the guardian's assessment that:-
Without an understanding of what the children have experienced, both physically and emotionally, and what they require protection from, they will be unable properly to meet the needs of the children.
- The judge then rejected, principally on the ground of delay, the proposal that there should be a further assessment of the grandparents. Since placements within the family were ruled out, the only alternative available was for there to be care orders in relation to each child.
- The judge then turned to the application to free the children for adoption. He said:
71 I am asked to make an order dispensing with the consent of the parents to the making of adoption orders on the grounds that such consent is being unreasonably being withheld and to order that the three children are free for adoption. I must be satisfied that adoption is in the best interests of the children. I must have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the children throughout their childhood. I must then be satisfied, on the balance of probabilities, that the grounds for dispensation are made out. I must also be satisfied that the children are likely to be placed for adoption within 12 months.
- The judge found that the statutory criteria had been satisfied, and made the freeing orders.
The adoption orders
- We do not have any papers relating to the adoption orders themselves, to which Mr and Mrs Webster would not have been parties. Nobody has suggested, however, that there was any procedural irregularity or other defect in the adoption proceedings, and the applications have proceeded in this court on the basis that the adoption orders were properly and lawfully made.
The grounds of appeal against the care and the freeing orders
- The grounds of appeal relating to the second judgment also criticised a number of the findings made by the judge in November 2004, notably the finding that the threshold criteria under section 31(2) of the Children Act 1989 were satisfied in relation to child A on the basis of clinical and emotional harm, the finding that the separation between Mr and Mrs Webster in 2003 had been caused in part by relationship difficulties and the finding that Mr and Mrs. Webster's failure to take child A to the dentist amounted to neglect. They also argued that the judge was wrong to find the children A and B had suffered emotional harm. The judge had been wrong not to recognise the positive relationship the children had with their parents.
- In relation to the freeing orders, the judge had been wrong to support care plans which denied the prospect of reunification between the children and their parents. Orders freeing the children for adoption would not have been made if the medical evidence available and before the court in 2007 had been before the court in 2004. A real injustice had occurred in which the circumstances were exceptional and made it appropriate to set aside the orders.
Ladd v Marshall (1)
- Although decided more than 50 years ago, this remains the leading case on the admissibility of fresh evidence either to support an appeal or to support an application for a re-hearing. It has survived the introduction of the Civil Procedure Rules, and its approach is binding on us, although it is, I think, generally accepted that in cases relating to children, the rules it lays down are less strictly applied.
- The facts of the case are, of course, a long way from the facts of the instant case. The plaintiff in an action called the defendant's wife. She said she could not remember a particular transaction. The plaintiff and his witnesses were disbelieved, and judgment was entered for the defendant. Some time later, after she had obtained a decree nisi of divorce from her husband, the defendant's wife gave a statement to the plaintiff's solicitors, accepting, in effect, that she had lied to the judge. The plaintiff sought to appeal out of time, and also asked for a re-trial. He was unsuccessful in both applications.
- The principles to be applied for the introduction of fresh evidence are summarised by Denning LJ at  1 WLR 1489 at 1491 as follows:-
The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
- The rationale for the relaxation of the rule in children's cases is explained by Waite LJ in Re S (Discharge of Care Order)  2 FLR 639 at 646, where he says:-
The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.
- Speaking for myself, I have no particular difficulty, certainly on a permission application, with the application of the second and the third of the principles enunciated by Denning LJ to the facts of the present case. In my judgment, however, the first of the principles does present a difficulty for Mr. and Mrs. Webster, which I discuss later in this judgment at paragraphs 180 et seq. below.
- I say at once that I am unimpressed by a number of the arguments advanced by the local authority and, in some cases, adopted by the guardian. I deal first with the submission that Mr and Mrs Webster have no status to appeal - in particular against the adoption orders, to which they were not parties.
- In my judgment, this is a technical point without merit. Although there appears to be no direct authority on the point, I am in no doubt at all that if I was otherwise satisfied that Mr and Mrs Webster should be given permission to appeal, I would not be deterred from making an order in their favour by the fact that they were not formally parties to the adoption proceedings or that their children had been freed for adoption. Whatever their legal status in relation to A, B and C the simple facts remain that the three children were born to them, and that they have been both removed from their care and adopted by third parties. In my judgment, they would plainly have sufficient interest in the adoption orders or, to put the matter another way, they would be sufficiently affected by the orders - to warrant an application for permission to appeal against them.
- It is now well established that the court has a discretion to order costs against a non-party to the proceedings before it: see Aiden Shipping Limited v. Interbulk Ltd  AC 965. A person or entity who had been ordered to pay such costs would be able to appeal against the order, even though he, she or it was not a party to the original action. I can see no reason in principle why, in appropriate circumstances, the court should not join a person to proceedings for the purposes of allowing that person to make an application for permission to appeal.
- In Re K, cited in paragraph 61 above, Neuberger LJ and I set aside freeing orders on the application of an Indian mother who argued that she had been coerced by her husband and his family into silence in care and freeing proceedings relating to her elder child who had undoubtedly suffered non-accidental injuries. I resile from nothing which I said in that case. However, the critical distinction between Re K and the case currently under discussion is that in Re K the children in question had not been adopted. Here, they have. That, in my judgment, is a vital distinction.
- Before turning to examine the cases on setting adoption orders aside, I wish also to make it clear that I am equally unimpressed by the argument that it is now too late to reopen the events of 2004 and before, and that it would not in practice be possible to do so. I recall very clearly as a judge of first instance going out of London on standby to various regional centres to re-hear cases which had gone wrong. Judges frequently have to deal with events which took place years ago. In the instant case, much of the evidence has been carefully preserved in the form of medical notes and x-rays. I have no doubt that the case could be re-opened. In my judgment, however, there is a much more formidable obstacle in Mr and Mrs Webster's path.
Is it open to this court in 2009 to set aside the adoption orders?
- This, in my judgment, is the critical question and the basis upon which the applications fall to be decided. Mr Peddie and Ms Hoyal sensibly acknowledged the difficulties which they face on this part of the case. They recognise that adoption is the process whereby a child becomes a permanent and full member of a new family, and is treated for all purposes as if born to the adopters see section 67(1) of the 2002 Act, which, very properly, they cited to us.
- Counsel further recognised that this court would be reluctant as a matter of public policy to set aside adoption orders. This, they accepted, was because if prospective adopters thought that natural parents could, even in limited circumstances, secure the return of a child after an adoption order had been made, this could have a dramatic effect on the number of people putting themselves forward as prospective adopters. Adoption orders have been perceived, counsel accepted, as final, and as putting the adoptive parents fully in control.
- So Mr Peddie and Ms Hoyal are constrained to fall back on the facts. If the true facts had been known, A, B and C would not have been freed for adoption, and would not have been adopted. The injustice, therefore, remains.
- In my judgment, however, the public policy considerations relating to adoption, and the authorities on the point which are binding on this court - simply make it impossible for this court to set aside the adoption orders even if, as Mr and Mrs Webster argue, they have suffered a serious injustice.
- This is a case in which the court has to go back to first principles. Adoption is a statutory process. The law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once orders for adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside.
- We were taken to a number of decisions on the topic. They are nearly all decisions of this court, and thus binding on us. Perhaps the most important is the decision of this court in Re B (Adoption: Jurisdiction to Set Aside)  Fam 239. In that case, the appellant was an adult in his mid thirties. He had been adopted at the age of 3 months by an orthodox Jewish couple, and brought up as a Jew. In reality, his father was a Muslim Arab from Kuwait, and his mother was a Roman Catholic. The appellant wished to settle in Israel, but was suspected of being an Arab spy and was asked to leave. He was also unable to settle in Kuwait. Having discovered his true origins, he applied to have the adoption order set aside. Both the trial judge (the then President of the Family Division, Sir Stephen Brown P.) and this court refused.
- The leading judgment in this court was given by Swinton Thomas LJ, and I propose to cite extensively from it. Swinton Thomas LJ first relates the history. He notes that during the appellant's minority his adoptive parents had become aware of the truth. He comments ( Fam 239 at 244E-F):-
Nonetheless, it is my view, and it may have relevance to the present application, that had the (adopters) applied to set aside the adoption order following the information that they received in 1968, they would have had no prospect whatsoever of doing so. Equally the mother, had she been appraised of all the facts in 1968, would have had no prospects of setting the order aside, then, let alone in 1994. The order had been made and the mother had been given proper notice of the proceedings. (the appellant) had by then been living with the (the adopters) for 11 years as their adopted son, and misinformation given to them, whether innocently or deliberately, as to the religious background of the baby could not, in my view, have amounted then to a ground for setting aside the order made on 20 July 1959. In the event, far from attempting to set aside the order, they approbated it, and continued to bring up B as their son.
- Swinton Thomas LJ then turned to the application to set aside the adoption order. This is what he said (  Fam 239 at 245C):-
In my judgment such an application faces insuperable hurdles. An adoption order has a quite different standing to almost every other order made by a court. It provides the status of the adopted child and of the adoptive parents. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parents and becomes the child for all purposes of the adopters as though he were their legitimate child.
There are certain specific statutory provisions for the revocation of an adoption order. Section 52 of the Adoption Act 1976 provides for the revocation of an adoption or legitimation. Section 53 provides for the annulment of overseas adoptions. Those exceptions provide for specific cases. Unlike certain other jurisdictions, there are no other statutory provisions for revoking a validly made adoption order. Parliament could have so provided if it had wished to do so. Accordingly Mr Levy is compelled to submit that the court has an inherent power to set aside an adoption order made in circumstances such as these where, as he puts it, the order was made under a fundamental mistake of fact.
There are cases where an adoption order has been set aside by reason of what is known as a procedural irregularity: see Re F (R) (An Infant)  1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182 and Re F (Infants) (Adoption Order: Validity)  Fam 165. Those cases concern a failure to effect proper service of the adoption proceedings on a natural parent or ignorance of the parent of the existence of the adoption proceedings. In each case the application to set aside the order was made reasonably expeditiously. It is fundamental to the making of an adoption order that the natural parent should be informed of the application so that she can give or withhold her consent. If she has no knowledge at all of the application then, obviously, a fundamental injustice is perpetrated. I would prefer myself to regard those cases not as cases where the order has been set aside by reason of a procedural irregularity, although that has certainly occurred, but as cases where natural justice has been denied because the natural parent who may wish to challenge the adoption has never been told that it is going to happen. Whether an adoption order can be set aside by reason of fraud which is unrelated to a natural parent's ignorance of the proceedings was not a subject which was relevant to the present appeal.
- Swinton Thomas LJ then spends some time examining another case (Re M (Minors) (adoption)  1 FLR 458) (Re M), to which I will return) before concluding ( Fam 239 at 249B): -
There is no case which has been brought to our attention in which it has been held that the court has an inherent power to set aside an adoption order by reason of misapprehension or mistake. To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child. In my judgment, Mr Holman, who appeared as amicus curiae, is right when he submits that it would gravely damage the lifelong commitment of adopters to their adoptive children if there is a possibility of the child, or indeed the parents, subsequently challenging the validity of the order. I am satisfied that there is no inherent power in the courts in circumstances such as arise in this case to set aside an adoption order. Nobody could have other than the greatest sympathy with the applicant but, in my judgment, the circumstances of this case do not provide any ground for setting aside an adoption order which was regularly made. Accordingly, I would dismiss this appeal.
- Both Simon Brown LJ and Sir Thomas Bingham MR (as they then were) share Swinton Thomas LJ's sympathy with the appellant. I do not, I think, need to cite any passages from Simon Brown LJ's judgment. However, there are two passages from Sir Thomas Bingham's judgment which are, I think, relevant. Firstly, at  Fam 239 at 251G-H, he says:-
The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.
- Secondly, at  Fam 239 at 252E-F, Sir Thomas Bingham says: -
An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud.
None of these situations pertains here.
- In my judgment, Re B places a formidable obstacle in the path of Mr. and Mrs. Webster. It is, therefore, necessary to look at the cases in which adoption order have been set aside to see if it is open to a court to set aside the adoption orders relating to A, B and C.
- Re M, cited at paragraph 153 above, was a case in which an adoption order was set aside. Two girls had been adopted by their mother and stepfather following the former's re-marriage. However, when giving his consent to the adoption, their father had not been told, and did not know, that their mother was suffering from terminal cancer. Following their mother's death, and when their step-father had difficulty caring for them, they went to live with their father and his new wife. Everyone was agreed that this was in the best interests of the children. The father then appealed against the making of the adoption order, on the ground that his agreement had been given in ignorance of his former wife's condition. This court granted permission to appeal out of time, and set aside the adoption order.
- In giving the leading judgment in this court, Glidewell LJ emphasised the highly unusual nature of the case  1 FLR 458 at 459F-G:-
In my view, this is, as Butler-Sloss, LJ said during the course of argument, a classic case of mistake. It is quite clear that the present appellant was wholly ignorant of his former wife's condition and, had he known of it, he obviously would not have consented to the adoption. That ignorance vitiates his consent and means that it was of no effect. In the absence of that consent it is very doubtful whether the adoption order would have been made. Since it is clearly in the best interest of the children that the adoption order should be set aside, for those reasons, I would extend the time for both these appeals, because formally they are separate appeals, and allow both appeals.
I should say, as a postscript, that this is, if not unique, at the very least a wholly exceptional case. I say that because I do not want the setting aside of this adoption order in these circumstances to be thought of as being some precedent for any related set of facts in some other case. This is, happily, a most unusual case and, in the circumstances and for the reasons I have sought to give, I think it right that the appeals should be allowed.
- In adding her agreement, Butler-Sloss LJ (as she then was) likewise emphasised the unusual features of the case and added that it was"in no way a precedent for any other adoption case, and these are quite exceptional circumstances." (  1 FLR 456 at 460B).
- The cases to which Swinton Thomas LJ refers in the passage of his judgment in Re B which I have cited in paragraph 152 above accurately reflect his summary that adoption orders have been set aside where there has been a procedural irregularity. Thus in Re F (R) (An Infant) this court set aside an adoption order on the application of a mother who had not been served with the adoption proceedings. In Re RA (Minors) adoption orders were set aside where they had been obtained by fraud. In Re F (Infants)(Adoption Order: Validity) this court refused an application for permission to appeal out of time made by adopters who had obtained adoption orders at a time when they were not lawfully married. This court held that the orders were valid on their face, voidable not void, and should stand.
- In my judgment, none of the cases to which I have referred assists Mr. and Mrs. Webster. To the contrary, they seem to me to reinforce the proposition that adoption orders, validly and regularly obtained, will not be disturbed even if, as in Re B they leave the adopted person denied of a proper ethnic identity.
- The most recent case on the subject is the decision of this court Re K (Adoption and Wardship)  2 FLR 221. The case concerned a Bosnian child who had been adopted by an English couple. This court was satisfied that the adoption procedure had been fatally flawed, and that the adoption order should be set aside. Butler-Sloss LJ, who gave the only substantive judgment, conducted a review of the authorities which I have already cited, and concluded ( 1 FLR 221 at 228H):-
The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.
- The question, therefore, is whether or not a substantial miscarriage or justice, assuming that this is what has occurred, is or can be sufficient to enable the adoption orders in the present case to be set aside.
- Finally, we were referred to the decision of this court in Re K cited at paragraph 61 above, Mr. Peddie and Ms Hoyal relied, as they were entitled to rely, on the four points identified in the headnote to the report in Re K, namely:-
(1) It was in the public interest for those who caused serious non-accidental injuries to children to be identified whenever such identification was possible. It was also in the public interest that children knew the truth about who had injured them as children and why.
(2) Had the children not been freed for adoption there would have been no argument about the capacity of the court to undertake a re-hearing or about the propriety of it doing so. The freeing orders should not be viewed as an obstacle to the mother's attempt to re-open the perpetrator issue.
(3) It was sufficient that the fresh evidence might reasonably lead, on a re-hearing, to a finding that the mother could be excluded as a possible perpetrator.
(4) Justice required that the question of perpetration be revisited: against the argument that the resultant delay would prejudice the welfare of the children there was not only the powerful consideration of public interest, but also the possibility that the children might be re-united with the mother.
- As I have already said, I do not resile from anything which I said in Re K. The critical distinction between Re K and the present case, however, remains. In Re K the children concerned had not been adopted.
Does ECHR make any difference?
- Although they are well known it is, I think, necessary to set out the relevant parts of ECHR Articles 6 and 8:-
Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- Mr. Peddie and Ms Hoyal referred us to two decisions of the European Court of Human Rights (ECtHR) namely Pini and Bertani (and others) cited at paragraph 66 above, (Pini) and Gorgulu v Germany  1 FLR 894 (Gorgulu). In Pini adoption orders obtained in Romania by two Italian couples were never enforced, with the result that the children concerned remained in the orphanage in which they had lived for several years, and which they did not wish to leave. The ECtHR found a breach of the Italian adopters' rights under ECHR Article 6, but not 8. The ECtHR was highly critical of the manner in which the adoption proceedings had been conducted, but concluded that there had been no breach of ECHR Article 8.
- The case contains a valuable discussion of ECHR Art 8:-
 The court reiterates that the essential object of Art 8 is to protect the individual against arbitrary action by the public authorities. There are, in addition, positive obligations inherent in effective 'respect' for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation (see Keegan v Ireland (1994) 18 EHRR 342, at para 49).
 As regards the State's obligation to take positive measures, the court has repeatedly held where it has established the existence of family relations based on descent or on existing emotional ties that Art 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, the following judgments: Eriksson, cited above, at para 71; Margareta and Roger Andersson v Sweden (1992) 14 EHRR 615, at para 91; Olsson v Sweden (No 2) (1992) 17 EHRR 134, at para 90; and Hokkanen v Finland (1995) 19 EHRR 139,  1 FLR 289, at para 55).
 However, the obligation on the national authorities to take measures to that end is not absolute even in the case of family relations based on descent especially where the parent and child are still strangers to one another (see Nuutinen v Finland (2002) 34 EHRR 15). The nature and extent of such measures will depend on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient. While the national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests and the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Art 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen, cited above, at para 58; Nuutinen, cited above, at para 128; and Scozzari and Giunta v Italy (2002) 35 EHRR 12, sub nom S and G v Italy  2 FLR 771).
- In relation to ECHR Article 8, however, the conclusion of the ECtHR was in the following terms:-
 in the circumstances of the case, given that the applicants' interests were weaker, as they had been acknowledged as the adoptive parents of children aged almost 10, without having any genuine pre-existing ties with them, there could be no justification for imposing on the Romanian authorities an absolute obligation to ensure that the children went to Italy against their will and irrespective of the pending judicial proceedings instituted with a view to challenging the lawfulness and well-foundedness of the initial adoption orders. The children's interests dictated that their opinions on the subject should have been taken into account once they had attained the necessary maturity to express them. The children's consistent refusal, after they had reached the age of 10, to travel to Italy and join their adoptive parents carries a certain weight in this regard. Their conscious opposition to adoption would make their harmonious integration into their new adoptive family unlikely.
 In the light of the foregoing, the court concludes that the national authorities were legitimately and reasonably entitled to consider that the applicants' right to develop ties with their adopted children was circumscribed by the children's interests, notwithstanding the applicants' legitimate aspirations to found a family.
 There has, therefore, been no violation of Art 8 of the Convention.
- In Gorgulu, cited at paragraph 167 above, the father of a young child, whose mother had placed him for adoption without the father's consent, was refused both custody of, and access to the child. The ECtHR found breaches of ECHR Art 8 in each respect. It appears from the report that adoption proceedings relating to the child were still pending- see  1 FLR 894 at 898/9 para . The ECtHR's general discussion of ECHR Art 8 is contained in paragraphs  to  of the decision:-
41. In determining whether the refusal of custody and access was 'necessary in a democratic society', the court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of art 8(2) of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v Germany  2 FLR 671 (para 64) and Sommerfeld v Germany  2 FLR 671 (para 62) and TP and KM v UK  2 FLR 549 (para 71)).
42. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the court has recognised that the authorities enjoy a wide margin of appreciation. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany  2 FLR 486 (para 49), and Kutzner v Germany  1 FCR 249 at 261 (para 67)).
43. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under art 8 of the Convention to have such measures taken as would harm the child's health and development (Scozzari v Italy  2 FLR 771 (para 169), P, C and S v UK  2 FLR 631 (para 117)).
- Mr. Howard, for the guardian, referred us to the decision of the ECtHR in Kearns v France  1 FLR 888. In this case, a pregnant Irish woman travelled to, and gave birth in France, in order to take advantage of the system of anonymous registration available in that country. She wanted the child adopted, and, following the birth, the system whereby she could request the return of the child within a two month period was twice explained to her. She was told that, after this period, the child would be available for adoption. She duly signed the relevant documents, and did not seek the return of the child within the two month period. However, some five months after she had signed the documents, she sought the return of the child. The child's father had also begun proceedings in Ireland. The French Cour de Cassassion, overruling the local appeal court, made a full adoption order.
- The ECtHR found no breach of the mother's rights under ECHR Article 8. The principal argument centred on the short time-scale for any change of mind permitted by the French legislation. As to this, the ECtHR said:
78. As regards the time limit prescribed by French law, the government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties.
79. As it found in Odievre v France  1 FCR 621 at para 44, the court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (at para 45). In striking a balance between these different interests, the child's best interests should be paramount.
80. In this connection, the court accepts the relevance of the arguments put forward by the government on the basis of studies by child-welfare professionals, which have stressed that it is in the child's interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, 'if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures'.
81. Furthermore, while the two-month time limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth.
82. The court lastly notes that in a recent case (VS v Germany (App no 4261/02) (admissibility decision, 22 May 2007)), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case.
83. Having regard to the margin of appreciation which states must be afforded in view of the diversity in legal systems and traditions and in practice (see Odievre v France  1 FCR 621 at para 49, and Evans v UK  2 FCR 5 at para 77), the court considers that the time limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid; see also, conversely and mutatis mutandis, Mizzi v Malta  1 FCR 256).
84. Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the court.
- In Odievre v France, the ECtHR found no breach of ECHR Article 8 in a case in which a woman who had been adopted pursuant to the system of anonymous registration of births available in France applied to the tribunal for an order for the release of information about her birth certificates, civil-status documents and full copies of her long-form birth certificates. Her application was refused.
- In Evans v UK, the ECtHR upheld the decision of this court to the effect that each party to the proceedings had identical rights under ECHR Article 8, and that the right of a man to withdraw his consent to the use of embryos which he had helped to create did not result in a breach of ECHR Article 8 so far as the woman was concerned. The other references in Kearns do not seem to me to assist, but they are, of course, available to be read.
- In my judgment, the European authorities do not assist Mr and Mrs Webster.
Mr and Mrs Webster's change of heart on the adoption point
- Finally on the adoption point, I have also to say that I do think it significant that Mr and Mrs Webster's first response to this issue was that the adoption orders could not be disturbed. I would like to make it quite clear that I do not criticise them one whit for changing their minds, and I would like to make it equally clear that I would have decided the case the same way even if they had, throughout, been determined upon a revocation of the adoption orders. However, their attitude emerges clearly in the judgment given by Holman J on 23 February 2007, when in paragraphs 16 and 17 he records:
16. Armed with those reports, the parents issued within these proceedings an application dated 13 February 2007 in which they apply for "an order reopening the findings of the Norwich County Court in [the 2004 case] in the respects and on the grounds summarised in the appendix to [the application]." Sometimes, after courts have made findings as to what happened to a particular child or children, a need may arise to reconsider and possibly revise those findings within further or continuing proceedings in relation to the very same child or children. I myself have had experience from time to time of doing just that in the light of fresh medical or other evidence. This, however, is not such a case. I cannot stress too strongly that the previous proceedings, both the care proceedings and the later adoption proceedings, in relation to all three children A, B and C, are now completely over and in the past. Those children have been adopted. They are now, in law, the children of their respective adoptive parents, and, to their credit, Mr and Mrs. Webster have made plain that they do not for one moment seek to upset those adoption orders, nor interfere in any way at all in the new lives of those three children. In any event, it would, in my view, be both unthinkable and, in law, impossible for them to do so, the adoption orders having been validly made a considerable time ago.
17. I have accordingly dismissed that application made on 13 February 2007, and to give effect to that decision paragraph 1 of my order will say that that application
is dismissed, the court making it clear that in, and for all purposes directly connected with, those proceedings and the children the subject of those proceedings and the later adoption proceedings (children A, B and C) the findings of [the judge in those proceedings] must and do stand."
- In my judgment, and by taking that stance, Mr and Mrs Webster were recognising the reality that the adoption orders in relation to A, B and C were made in good faith on the evidence then available, and that, however heartbreaking it may be for Mr and Mrs Webster, those orders must stand.
- If, as I believe to be the case, the adoption orders cannot be set aside there is, in my judgment, no point in permitting a re-opening of Judge Barham's judgments. I appreciate that from Mr and Mrs Webster's point of view this is unsatisfactory, since they will not have had the opportunity to clear their names. But this court has to ask the question: what would be the point of re-opening the proceedings? Brandon is living at home with them. The proceedings in relation to him have been discontinued. The proceedings in relation to A, B and C have resulted in adoption orders which cannot be set aside. There is, accordingly, no further role for the court to play.
- I would, accordingly dismiss Mr and Mrs Webster's applications on this one ground.
Ladd v Marshall (2)
- There is, however, a second ground on which, speaking for myself, I would refuse permission to appeal. In my judgment, none of the evidence on which Mr Peddie and Ms Hoyal now relies meets the first of the three tests laid down by Denning LJ in Ladd v Marshall, which I have set out at paragraph 137 above. I anticipate that all the eminent specialists who have given opinions against abuse in 2007 held those opinions in 2003 and 2004. Mr and Mrs Webster could have asked for second opinions then. In short, the evidence could have been obtained with reasonable diligence for use at the trial.
- As I have already acknowledged, neither Mr Peddie nor Ms Hoyal nor those instructing them was acting for Mr and Mrs Webster at the time, and they were, accordingly, unable to provide us with any explanation as to why an application had not been made for permission to obtain second opinions.
- In paragraph 58 of his judgment handed down on 17 November 2006 ( EWHC 2898 (Fam)) Munby J commented: -
Judge Barham's two judgments, if I may be permitted to say so, are models of lucid clarity. Anyone who takes the trouble to read his judgments will be able to understand without difficulty the evidence Judge Barham read and heard will be able to understand what finding
- With great respect to Munby J, I do not share his enthusiasm for Judge Barham's judgments in the proceedings relating to A, B and C. Whilst I agree that they are clear and to the point, I have a number of serious reservations about them. The first is that the judgment given on 21 May 2004 seems to me to lack all context. Equally, it can properly be said that the manner in which the judge introduces the issues he has to determine is unfortunate. He says: -
There are two issues which I have to decide in connection with these proceedings; firstly, did (child B) suffer non-accidental injuries, and, secondly, who are the likely perpetrators of these injuries?
- The reader of these two sentences might be forgiven for thinking that the judge had already made up his mind that the injuries were non-accidental. There can only be a perpetrator if the injuries are non-accidental. Whether or not the injuries were non-accidental was, of course, the very point which the judge had to decide.
- I have cited extensively from the transcript of the hearing before the judge on 20 May 2004, and it is plain that junior counsel for the local authority summarised the issues correctly; see the exchange which I have recorded in paragraph 95 above, The judge would have been wise to follow the same formula.
- As we have already seen, Mr Peddie and Ms Hoyal also criticise the judge for dealing with the case in one day, given the nature of Mr and Mrs Webster's case and the volume of the documentation. That, I have to say, causes me less difficulty. The judge had pre-read, as good practice demands: the time estimate was agreed. The judge cannot, I think, be criticised for adhering to the agreed time-table. Furthermore, where the medical evidence is all one way, it is difficult for a judge to plough his own, different furrow. Indeed, it may well not be appropriate for him to do so.
- In relation to the second judgment, I have to say that the manner in which the judge deals with the questions of dispensation with consent and welfare in the context of freeing the children from adoption is cursory, and I suspect would have been more profound had he had the advantage of the decision of this court relating to welfare under the 2002 Act in Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625 at paragraphs 113 to 117.
- All that said, however, and whilst I remain of the view that a number of legitimate criticisms can be made of Judge Barham's judgments, I do not think he can be criticised for the decisions he reached on the evidence available to him. Furthermore, I am acutely conscious of the fact the he was the judge on the ground; and that the manner of his judgments may well have been calculated to meet the needs of the case as he perceived them.
- I do not, accordingly, think that my criticisms of the judgments are material to the outcome of the case. Although the opening of the first judgment does not read well, there is no suggestion that the judge had made up his mind in advance, and there is nothing in the transcript which gives any indication of judicial bias. The lack of context is readily explained by the limited nature of the factual issues which the judge had to try, and to the fact that this was the first limb of the hearing of care proceedings. The time estimate, as I have already pointed out, appears to have been agreed between the parties. Furthermore, again as I have pointed out, the judge had plainly pre-read as good practice requires. The result was that the case did not have to be opened to the judge by counsel for the local authority, and the court proceeded immediately to hear oral evidence. His directions to himself on the burden and standard of proof, as they applied in care proceedings in May 2004, are plainly correct. His reference to B suffering from "what is described by one of the experts as severe aversive feeding behaviour. It seems that he had never eaten solid food and this has been a matter of concern to his parents" is accurate and fair. He does not appear to take any point against Mr and Mrs Webster in relation to their separation, although it was plainly financially driven and enabled Mrs. Webster to claim benefits. His description of the injuries is accurate, and his analysis of the medical evidence unexceptionable. He lists the possible causes and concludes that the injuries were non-accidental. On the question of perpetration the evidence was that B was essentially cared for by his parents. His finding that the mother and the father were the only possible perpetrators of these injuries, was, accordingly, plainly open to him.
- In relation to the second hearing it must, I think, be borne in mind that Mr and Mrs Webster went into it subject to the previous finding, on the evidence, that B had been non-accidentally injured by one or other of them, and acknowledging that there was no realistic prospect of B or the other children being returned to their care. Once the judge had rejected the maternal grandparents as carers, there was, I think, effectively no alternative to adoption for the three children.
- Thus my misgivings about the second judgment share the fate of my misgivings about the first. The judge was entitled to reach the conclusions he did. He could have gone about it in a different way, but that does not affect the result.
Lessons for the future: second opinions
- There has not been, nor now will there be, future proceedings between Mr and Mrs Webster and the local authority in which there will be a judicial reinvestigation of what happened to child B. We will not, accordingly, ever know what the outcome of any such investigation would have been. For the purposes of what follows, however, I am assuming that there has, indeed, been a miscarriage of justice, as they allege. What, if anything, can be done to avoid a repetition?
- The honest answer must be that in any system operated by human beings, mistakes will occur, whatever systems are put in place to reduce or eliminate them. In the present case, I am satisfied that everybody acted in good faith, and in particular that the doctors who advised Judge Barham gave him their honest, professional opinions.
- The best answer I can give is to repeat the message given by this court in W v Oldham Metropolitan Borough Council  EWCA Civ 1247, 1 FLR 543. In that case, a well-known consultant paediatric neuro-radiologist advised the judge that brain injuries suffered by the child were non-accidental. The other doctors in the case deferred to the consultant paediatric neuro-radiologist, who alone of them had the skills required to read and interpret the relevant scans. Only after a care order had been made on the basis of non-accidental injury did the parents of the child concerned obtain a second opinion on the injuries. This court, by consent, ordered the case to be re-heard, and on the re-hearing, the parents were vindicated: - see Oldham MBC v GW and PW  EWHC 136 (Fam),  2 FLR 597. This was, accordingly, a true miscarriage of justice.
- In remitting the case to be re-heard, this court in W v Oldham MBC accepted a submission made by counsel for the parents in the following terms: -
In many cases (probably the majority) a clear picture will emerge from a constellation of factors (e.g. paediatric, radiological, parental history, medical records) which will cumulatively point the court towards certain conclusions. Though those conclusions may be resisted by parents, it would be both unrealistic and unnecessary to permit parents to obtain "mirror reports" in every discipline. In a certain number of cases, however, e.g. non-accidental head injury (NAHI), or pathologically "unascertained" infant death, certain evidence may become pivotal and by its very nature not easily receptive to a challenge in the absence of any other expert opinion. In our submission, in those cases, the court should be slow to decline an application for a second expert. Strict case management (in accordance with the protocol) should also permit such evidence to be identified within a reasonable timescale.
- This court also followed the case of Daniels v Walker (Practice Note)  1 WLR 1382, in which Lord Woolf MR (as he then was) giving the leading judgment said: -
27 Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
28. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
- In my judgment, therefore, the system provides a remedy. It requires determined lawyers and determined parties. The Legal Services Commission will have to be satisfied that the expenditure is warranted. An application may need to be made to this court. But where, as here, there is a strong parental denial of abuse in combination with the extraordinary fact that child B had been fed on supermarket soya milk and nothing else for 12 months or so, it seems to me that the parents would have been entitled to have the mater investigated at the most expert level.
- It is, in my judgment, idle to pretend that transparency, or the presence of journalists in court, would have made any difference to the outcome in this case. The FJS has demonstrated transparency by putting the case in the public domain, where it belongs.
- However, for all the reasons I have given, I would refuse Mr and Mrs. Webster's applications.
Lord Justice Moore Bick
- I have profound sympathy with Mr & Mrs Webster, but I agree that their applications should be refused for the reason given by Wall LJ.
Lord Justice Wilson
- I also agree with the judgment of Wall L.J.
- Like Wall L.J., I have spent a professional life-time working in our family justice system. With reservations, I remain reasonably content with the way in which it usually operates and I am proud to have a role in it. This application, however, makes me profoundly uncomfortable. For, although the medical evidence remains by no means unanimous, there are substantial grounds for doubting whether, at a re-hearing, Norfolk would again succeed in establishing what they established on 21 May 2004, namely that the injuries suffered by child B in October/November 2003 were non-accidental. There are substantial grounds for considering, on the contrary, that they were accidental in that they were sustained in the course of normal parental handling by a child whose bones had been weakened by a particular diet productive of a gross deficiency of vitamin C (scurvy) and of iron.
- Yet the finding of non-accidental injury to child B was the foundation of the permanent removal from the applicants of himself and indeed of their two other children, achieved by three sets of orders, namely the care orders, the freeing orders and finally the adoption orders.
- Unfortunately for them, it is far too late for the applicants to bring appeals in which to press that these orders be set aside and that the applications for them be reheard. It is far too late at each of two levels. The first is the level at which the interests of the three children fall to be considered: almost four years ago they moved into alternative homes which they were told would be permanent and of which they would be full, legal members; and at that time they ceased even to see the applicants. The second is the level which demands recognition of the vast social importance of not undermining the irrevocability of adoption orders. For a period prior to Mr Peddie's indication to Holman J on 27 June 2007 the applicants themselves expressly accepted that it was too late. But they changed their mind who can blame them? and, albeit following the passage of almost a further year, they filed their applications in this court.
- With hindsight, it seems obvious that the applicants should have applied early in 2004 for permission to instruct a nutritionist to prepare a report for the fact-finding hearing. When injured, child B was aged almost two yet he had never eaten solid food and nine months earlier his diet of formula soya milk for consumption by infants, i.e. with added vitamins, had, on medical advice, been changed to ordinary "supermarket" soya milk, with a view, apparently, to precipitating within his body a demand for more appropriate food. But this highly unusual feature was not energetically pursued. In the weeks following 9 November 2003, when child B was presented to hospital, Norfolk, for their part, were told by an increasing number of experts that his injuries were clearly non-accidental. And the major effort of the lawyers representing the parents seems to have been to steer the diagnosis up what proved to be the blind alley of brittle bone disease. Of course they mentioned child B's diet but not with such force as to lead the judge to refer in his judgment on 21 May 2004 to soya milk at all, still less to the change, nine months prior to the injuries, to ordinary, adult soya milk. Again, with the benefit of hindsight, the judge's judgment as a foundation for the state's permanent removal of children from their parents seems far too cursory; but the evidence before him went all one way and so he presumably considered that there was no need for him, for example, to place the injuries to child B in the context of the parents' apparently good, or at least adequate, care of the children in most other respects nor to stress the absence of any suggestion of other physical or other abuse of any of the children. If the parents were indeed innocent in relation to the injuries suffered by child B, the judge's finding will have seemed outrageous to them. But, for reasons unclear, their outrage was not translated into attempts, with whatever degree of legal difficulty, to persuade this court in 2004, or even perhaps at any time prior to the making of adoption orders in December 2005, to order the fact-finding to be conducted again by reference to the sort of dramatic fresh nutritional and associated evidence ultimately obtained in 2007.
- The moral which I draw from this case and will never forget is that a hypothesis in relation to the causation of a child's injuries must not be dismissed only because such causation would be highly unusual and that, where his history contains a demonstrably rare feature, the possible nexus between that feature and his injuries must be the subject of specialist appraisal at an early stage.
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