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11 FEB 2009

ADOPTION/CARE PROCEEDINGS: Webster v Norfolk County Council and the Children (By their Children's Guardian) [2009] EWCA Civ 59

(Court of Appeal; Wall, Moore-Bick and Wilson LJJ; 11 February 2009)

The three children had been removed from the parents' care on the basis that one of the children had been physically abused. The child had presented at hospital with six fractures, including a rib fracture. In the course of the care proceedings it was established that the child, almost two years old, had, because of his feeding difficulties, never had solid food, been fed soya milk only, on the advice of the GP, and for 9 months adult soya milk only (in an planned attempt to stimulate his appetite). However, no separate expert evidence was obtained on this issue. The judge granted the care orders sought, freed the children for adoption, and eventually made adoption orders in relation to all three children. In the course of care proceedings instituted in relation to a fourth child born to the parents, the parents obtained fresh medical reports, which suggested the injuries to the child had been the result of scurvy. The younger child was allowed to remain with the parents, but 3 years after the adoption orders had been made, the parents sought permission to appeal the adoption orders out of time.

The question of the biological parents' status to appeal was a technical point without merit; the court would not have been deterred from making an order in favour of the biological parents by the fact that they were not formally parties to the adoption proceedings or that their children had been freed for adoption. They would plainly have been sufficiently affected by the orders in question to warrant an application for permission to appeal against them. However, public policy considerations meant that it was impossible to set aside the adoption orders, even if the parents had suffered a serious injustice. There was therefore no point in permitting a re-opening of the care judgments. The parents' applications would be dismissed. While there were a number of legitimate criticisms of the care judgments, the care judge could not be criticised for the decisions he had reached on the evidence available to him. With hindsight, the parents should have applied for permission to instruct a nutritionist to prepare a report for the fact-finding hearing. The moral to be drawn was that a hypothesis in relation to the causation of children's injuries must not be dismissed only because such causation would be highly unusual and that, if the child's history contained 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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