This observation was made by HHJ Gareth Jones in Wrexham Family Court in March 2017, in a judgment Re E [2017] EWFC 101 published in January 2018.

HHJ Jones is a transparency hero – he is the only judge in Wales whose judgments regularly appear on BAILII, in accordance with the President’s guidance. In this case he makes this point about publication:

‘All is not well with child protection in North Wales.  I believe there have been significant deficiencies in the joint agency working this case.  Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency.  A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.

 Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.’

However, this case is quite difficult to follow, partly because of all the heavy anonymisation of the agencies involved but also because there are two judgments. The second one is his decision on an application by some of the agencies and individuals involved that he amend his first judgment because it will cause them ‘reputational damage’.

The facts that led HHJ Jones to these conclusions are:

  • E was born in August 2016.
  • In October 2016, an emergency protection order, swiftly followed by an interim care order were granted by the court. The local authority had applied for these orders because E had a healing fractured rib and some bruising to one cheek which were unexplained injuries. E was moved to foster care for three weeks, but then into the care of a grandparent.
  • The original court hearings had medical reports by Dr B, a Consultant Community Paediatrician, and Dr F, a Consultant Radiologist, at an unidentified hospital, and Dr A, a Consultant Radiologist at Y Hospital, from whom a further opinion was sought by way of a review by Dr F (the radiologist).
  • The court then instructed Dr M, a Consultant Paediatrician, and Dr C, a Consultant Paediatric Radiologist, as the second opinion experts in the case.
  • The second opinion evidence did not confirm the first medical evidence and the interim care order was discharged in January 2017 and E was returned to his parents.

Part of the problem that led to the baby being removed for 13 weeks seems to have been miscommunication and lack of checks on possible birth trauma at an early stage. The judge says:

‘It is has been the comparatively prompt return of the second opinion medical evidence in this case which has brought the parents’ ordeal to an end.  I have expressed to the parents at an earlier hearing, my apology (on behalf of the child protection system) for the circumstances which have arisen in E’s case.  In essence, the medical confirmation that E’s fracture was birth related, and not a potentially inflicted injury, led to the discharge of these proceedings.’

The judgment contains quite a long list of what went wrong with the medical investigation. While this is all rather technical, it seems that E’s rib injury occurred when he was born and the bruised cheek was accidental. We can’t see a reference to the birth notes having been checked for information about a difficult birth that might have caused the rib fracture, that would probably never have been discovered unless there was an x-ray some weeks later.

One thing that is clear is HHJ Jones’ reason for publication:

‘In providing this judgment I seek to improve child protection practice by key agencies in North Wales, where they have fallen short as in the circumstances of this case.  I have received responses on behalf of Y Hospital [hospital identified], the Third Intervenor, and X Police Authority (by a chronology provided) and further discussion may be necessary at the X Safeguarding Children’s Board between these agencies as a result of the issues which have emerged.’

Some of the medical witnesses did not agree and three ‘intervenors’ applied to have the judgment amended and a doctor be given anonymity. This application was heard by HHJ Jones on 3 July 2017 and is called Re E [2017] EWFC 100’. ‘Intervenors’ are so-called because they were not parties in the original case. We think they are two NHS bodies and one doctor employed by one of those bodies, but it is almost impossible to work this out. This is not because HHJ Jones is being unhelpful but because he is granting them a degree of anonymity.

When it comes to unfairness, the judge points out:

‘It must seem to E’s parents, who perhaps suffered most by E’s removal from their care, that greater unfairness has been done to them by the removal of public funding to enable them to retain their legal representation to put their case in relation to these issues which have been raised.  They have, however, prepared a thoughtful and a detailed response to the applications.  They say, in relation to the March judgment, ‘We do not feel any amendment of this judgment should be made with regards to the points raised, as from this judgment we would hope that lessons can be learnt and families are not placed in the same heart-breaking position to which we were’.

The NHS intervenors are all represented – presumably at public expense. The local authority and the Cafcass Cymru guardian were neutral i.e. did not support nor dispute the applications by the intervenors.

There follows a lengthy explanation of why the judge does not accept that his original judgment was inaccurate or unfair. He had given notice to the NHS bodies and the police of his criticism in December and invited them to attend court in January but they did not do so. He is explicit about his own role as part of the system failure, having been responsible for granting the initial EPO, for which he has apologised to E’s parents.

Responding to the complaint from the NHS, the judge says:

‘All is not well with child protection in North Wales’ means no more than that.  E’s case demonstrated that things could be better.  Were it otherwise, no improvements would be required at all.  ‘All is not well’ does not mean that ‘everything is bad’.  It is not intended to lead to an unnecessary lack of public confidence, and I do not believe that any careful and intelligent member of the public would ascribe to this sentence such a meaning.  I have no idea whether anyone will pay any attention whatsoever to the judgments delivered, despite my request … However, I do not propose to withdraw that first sentence which, at the time it was delivered, was no more than an accurate and measured indication of my honest conclusion at the time.’

We hope that attention will be paid to these judgments and that E’s parents can be assured that practice will improve. We are left, however, wondering how a local authority, Cafcass guardian or judge can be expected to know when hospitals are getting things so catastrophically wrong.

Photo of North Wales coastline by Robert J Heath on flickr