Abstract
FAMILY
[2009] EWCA Civ 942
CA (Civ Div) (Wilson LJ, Sullivan) 9 September 2009
M, an eight-month-old girl, had been taken into interim care shortly after her birth. Her sister, S, who was two years her senior, was also the subject of care proceedings, having been taken into interim care at two months of age. The proceedings in respect of the children were consolidated.
The children's mother conceded that in respect of her elder daughter, S, the threshold for making a care order as set out in the Children Act 1989 s.31(2) had been crossed and that S was likely to suffer significant emotional and physical harm. However, in respect of M no such concession was made.
The judge agreed that in respect of M, the threshold had not been met, and ordered that M be returned home. He went on to say that as the children's parents had ‘made such progress in stabilising their lives since S was removed’ that S should also be returned to the family on a trial basis. This was despite care plans in place at the time for both girls to be placed for adoption. Accordingly, the judge requested the submission of amended care plans.
The local authority appealed against the finding that the threshold for making a care order in respect of M had not been met.
It was held that while it was not impossible to find that the threshold for a care order had been met in respect of one sibling but not another, it was unusual for a court to reach opposite conclusions in relation to siblings in circumstances where evidence of gross parenting failures had necessitated the removal of one child a mere 14 months earlier. Further, the judge's decision to return S to the family home due to her parents' progress was not supported by any of the four experts who gave evidence at the hearing. Their evidence suggested that the change undergone was insufficient to allow for S to be returned, thus evidencing the likelihood that M was also likely to suffer significant harm should she be returned to her parents. It was reiterated that the likelihood of significant harm was not measured on a balance of probabilities but need only be a real possibility. Furthermore, in his judgement the judge had referred to a six-month trial placement of the girls with their parents and referred to the need for amended care plans in respect of both children. This requirement was held to be indicative of an ongoing need for local authority input and seemed to be at odds with his former ruling that the threshold test had not been met in respect of M.
Based upon this and the unanimous opinion of the experts involved, it was held that there was a likelihood that M would suffer significant harm if placed with her parents. The threshold test was therefore satisfied in M's case, the appeal was allowed and an interim care order was made in respect of M.
PERSONAL INJURY/CLINICAL NEGLIGENCE
[2009] EWHC 2490 (QB)
QBD (Slade J) 21 August 2009
C, the Claimant, sustained a serious injury to the lower part of his right leg during a road traffic accident. He went on to receive substandard surgical care in relation to his leg, which compounded the injury. C therefore issued proceedings against the first respondent, who had caused the accident, as well as the NHS Trust in respect of the negligent treatment.
As part of his claim, C applied for an order for provisional damages.
There was a chance that C would undergo a fusion operation on his ankle at some point in the future and if he did, there was a serious risk of complications developing, some of which could lead to amputation of his lower leg. C was in possession of medical evidence which asserted that this risk was real and not fanciful.
The Defendants argued that initially C would have to establish that on a balance of probabilities, he would go on to have fusion surgery in the first place, before considering the risk of complications. They argued that given the risks associated with fusion surgery, it was unlikely C would be advised by any surgeon to go ahead with it. Further, they argued that once C knew of the risks associated with fusion surgery, he would be unlikely to have it for fear of losing his lower leg. They added that although there were risks associated with fusion surgery, amputation was ‘an extremely remote possibility’.
It was held that it was for the party applying for provisional damages to establish that there was a chance that at some point in the future, they would suffer a serious deterioration in their condition. The chance ‘need only be measurable rather than fanciful’.
It was concluded that there was a real chance that C's ankle would deteriorate and that if it did, given the large amount of pain he was already in, any increase in pain might well lead C to seek fusion surgery. Indeed, it appeared C was already contemplating fusion surgery as a result of the pain.
Further, if C did undergo surgery, there was a significant risk that complications would develop which, given his poor state of general health, created a serious risk of infection. It was held that the chance of amputation occurring after such an infection might be small but ‘was not negligible’.
C's application for provisional damages was granted and the award was made provisional for a period of three years.
CORONIAL LAW
[2009] EWHC 1605 (Admin)
QBD (Admin) (Silber J) 3 July 2009
X, the deceased father of the Claimant (F), was assaulted and had called emergency services. During the course of the call and upon the arrival of the police and ambulance crew, X had alleged that he had been treated unfairly by the emergency services because he was black. Following the departure of the emergency services, X was hit by a taxi and subsequently died.
An inquest was held in relation to X's death. The inquest was held without a jury and following the verdict, the coroner also gave a judgement. In the judgement, the coroner referred to X as having been ‘overly familiar with customers of a club, particularly young women’.
The coroner also stated in his judgement that X had not been treated differently on the grounds of his race and alleged that F's solicitor's suggestion that this was the case was ‘entirely unprofessional’.
F did not challenge the coroner's verdict but sought judicial review of the judgement. F claimed that the coroner was not entitled to give a judgement as well as a verdict and that the coroner had ‘explored and adjudicated’ upon matters outside of his jurisdiction. The court had to determine whether the coroner was entitled to give a judgement in addition to his verdict, whether the court could strike out comments made in a coroner's judgement accompanying a verdict and whether any of the judgement could be declared unlawful.
It was held that a coroner sitting without a jury was entitled to give a judgement as well as a verdict. It was noted that the judgement could deal with issues including the name of the deceased, how the deceased died and the details that had to be registered in relation to the death as required by the Registration Acts.
It was also held that the court was able to declare comments of a coroner unlawful but that this power was to be used carefully. It was added that where comments did not relate to the specific issues outlined above to be within the remit of a coroner's judgement, were matters of opinion and were ‘unfairly critical or offensive to any part’ to the extent that they justified the court's intervention, such comments could be declared unlawful.
Finally, it was held that in this case it was appropriate to declare the coroner's comments in relation to X's behaviour with female club customers as unlawful. The comment was outside of the remit of a coroner's judgement, did not relate to the circumstances of X's death and was offensive to X's family.
The coroner was not criticized for his comment that denied any evidence of X having been treated unfairly by the emergency services on the grounds of his race. There was no evidence put forward to suggest that this statement was incorrect. However, the coroner's statement that F's solicitors had been ‘entirely unprofessional’ in making such an allegation was held to be unlawful. F's solicitors were entitled and indeed obliged to put forward the allegations of their client and should not be criticized for ‘communicating client's instructions which they had no reason to believe to be inaccurate’.
The Application was, therefore, granted in part.
HUMAN RIGHTS
Unreported
DC (Pill LJ, Silber J) 2 October 2009
C, the Claimant, had been convicted of two counts of rape and two counts of indecent assault. One of C's victims had been his daughter who was a minor.
C was eventually released from prison on a conditional licence that included a polygraph condition, pursuant to the Offender Management Act 2007 s.28(1). The condition required C to submit to polygraph testing at the request of his supervising officer. C was thought to be an appropriate candidate for the polygraph condition having withdrawn admissions made in prison regarding the offences for which he had been convicted and, in addition, because of the seriousness of those crimes. There were also concerns due to the fact that C had relationships with a number of women who had children. At the time, a polygraph condition was only applicable to certain categories of offender living within particular regions of the UK that were taking part in a pilot scheme.
Guidance published by the Secretary of State, which pursuant to s.29(5) of the Act all polygraph supervisors had to have regard to, stated that the objective of polygraph testing was risk management. More specifically, it said that testing was not to be used in isolation and that while results were not conclusive, the failure of a polygraph test by an offender was to be challenged. The guidance also stated that any new material uncovered by such a challenge could be used to monitor whether the offender in question was complying with other conditions attached to their release.
C sought judicial review of the decision to make him the subject of a polygraph condition on the grounds that such a condition violated his rights under Articles 8 and 14 of the ECHR.
It was held that the imposition of a polygraph condition did not violate C's Article 8 rights despite the fact that test results could lead to the discovery of breaches of other conditions of his licence. Given the seriousness of C's convictions and his attitude to those offences, polygraph testing was deemed an appropriate means by which to manage the risk C posed to society. Further, it was held that the polygraph condition did not violate C's Article 14 rights either, as geographical limitations were deemed not to amount to discrimination particularly given the clear objective of crime prevention.