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(Court of Appeal; Smith and Wall LJJ; 24 June 2009)
The two children, a girl and a boy, were taken into interim care because the boy, aged only a few months old, was found to have multiple fractures during a hospital investigation into the boy's apparent breathlessness. It emerged that one of the father's two children by a previous relationship had died, while the other had been found to have a non-accidental fracture while in hospital because of breathing difficulties. The post mortem report on the death of the first child had given pneumonia plus some bacteraemia as the cause of death; during care proceedings concerning the second child the court had found the second child's injuries were caused by her mother, not by the father. In the care proceedings concerning the girl and the boy, a pathologist was instructed. In his report he identified a number of questions relating to the death of the first child and to similarities in the symptoms displayed by all the injured children, which he felt should be put to a paediatric pathologist, as being outside his area of expertise. The local authority sought permission to instruct a paediatric pathologist, but the judge refused the application, on the basis that this would lead to an extensive investigation, which could not be justified. It took 2 months for the case to be heard by the Court of Appeal.
It was highly regrettable that the appeal in this case had not reached the court more quickly. The capacity of the court to act swiftly was not limited to cases requiring a stay. Although the system was not to be abused and was for issues requiring urgent attention, if there was a particular reason for expedition, or if an advocate wished to engage the Court of Appeal as a matter of urgency, he or she should either speak to a Deputy Master on the telephone, or ask to be put through to a Lord Justice with family experience. In cases of lesser urgency, but which still required expedition, the advocate should invite the office to place the papers before such a Lord Justice as a matter of urgency. The Lord Justice concerned would then, in consultation with the listing office and with colleagues, be able to give directions designed to resolve the application swiftly. It was self-evident that case management decisions by the High Court and the circuit bench were not to be challenged on a whim, or because one party simply happened to disagree with a decision. They were discretionary decisions in which the allocated judge enjoyed a very wide discretion to deal with the case within the confines of the overriding objective, taking into account the best interests of the child. There had to be a point of substance requiring an urgent challenge and speedy resolution. In the overwhelming majority of cases, no such point would arise. If there was, unusually, to be a challenge to a case management decision, particularly a challenge that, if successful, might abort a fixture of a substantive hearing in the case, it was extremely important that it was made promptly. While this had not been an extremely urgent case, there should nonetheless have been an application for expedition by the local authority. Delay, as the Children Act 1989 made clear, was usually contrary to the interests of children, as well as the enemy of justice in most child cases. The authority's appeal would be allowed. The judge's order had been premature: before deciding on the ultimate direction the case was to take, and whether or not it was going to be necessary to embark on an extensive investigation, the judge should have ordered the report sought by the local authority, and decided on the direction of the case only after finding out what the paediatric pathologist had to say. It was a strong thing for a judge to say that a responsible local authority supported by the representatives of the children should not be permitted to pursue a particular line of enquiry. The judge had deprived himself of information that would have enabled him to make an informed decision.
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