SUTTON v GRAY AND OTHERS NO 2  EWHC 2763 (Fam) .pdf
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 1 FLR
SUTTON v GRAY AND OTHERS NO 2
 EWHC 2763 (Fam)
12 October 2012
Fact-finding hearing – Parents exonerated of all culpability in relation to
injuries to their first child – Whether both children should be returned to
their care and proceedings dismissed
When she was 7 weeks old the now 5-year-old child suffered a collapse with
encephalopathy and intracranial and retinal bleedings while in the father’s care. On a
previous occasion she had also suffered burns to her fingers and forehead which the
father claimed was due to him placing her too close to an electric radiator. No
explanation could be provided for the child’s collapse and the presence of the triad of
injuries raised the possibility of this being a non-accidental injury. A fact-finding
hearing found the father responsible for the collapse and the burns and found that the
mother had failed to protect the child. Once she had made a full recovery the child was
placed with the maternal grandparents under a special guardianship order and had
contact with the mother 6 times per year and twice per year with the father. The father
was convicted under s 20 of the Offences Against the Person Act 1861 and s 1 of the
Children and Young Persons Act 1933. He spent 7 months in prison before his
conviction was quashed by the Court of Appeal. While the father was in prison the
mother gave birth to a second child and, in an attempt to avoid local authority
involvement, she relocated to another part of the country. When the younger child was
6 months old the police traced them and she was immediately removed under a police
protection order. The local authority initiated care proceedings asserting that the
threshold of s 31 of the Children Act 1989 had been crossed in relation to the younger
child on the basis of the findings of fact in relation to the older child. The parents
sought a rehearing of the facts due to the father’s conviction being overturned. There
had been some doubt regarding the paternity of the younger child but during
proceedings the parents discovered through DNA testing that he was in fact the father,
but concealed the result from the local authority in the belief that it might have
damaged the mother’s chances of caring for the child. Extensive medical evidence was
given during the hearing but no common consensus as to the cause of the injuries of
the older child could be ascertained. A possibility had arisen that the collapse could
have been caused by an airway obstruction due to the discovery of three laryngeal
abnormalities: a cyst, cleft and laryngomalacia combined with reflux problems. In
addition the flatmate of the father’s who was present at the time of the collapse was
located and gave evidence that there was no commotion or sound of activity just prior
to it and if there had been, he claimed he would have been aware of it. The judge found
the local authority had failed to demonstrate the threshold had been crossed and
completely exonerated both parents of any wrongdoing. Following the judgment the
local authority withdrew all allegations against the parents and assessments had taken
place to plan the placement of the younger child with them.
Held – dismissing the care proceedings in relation to both children; providing
directions for the parents’ application to revoke the special guardianship order –
(1) The maternal grandparents had successfully cared for the older child for the
last 5 1⁄2 years but due to their mature years and periods of ill health combined with the
realisation of what would be best for her they agreed for her to be returned to the care
of her family. Children’s services would now assess how that return should be planned
(see paras –).
 1 FLR
Sutton v Gray & Ors (No 2)
Statutory provisions considered
Children Act 1989, s 31
Tim Parker and James Dove for the applicant
Paul Storey QC and Jonathan Swift for the first respondent
Jo Delahunty QC and Will Tyler for the second respondent
Piers Pressdee QC and Pauline Troy for the guardian
Cur adv vult
Since the hearing in July and my judgment in which I exonerated the
father from injuring E, and the mother from any culpability in respect of E, a
detailed assessment by Services for Children has been carried out to consider
the placement of I with her parents.
That assessment has not revealed any concerns about the abilities of
the parents to provide for I; rather it has shown a warmth in the relationship
between mother and child, and the mother’s ability to empathise with her
daughter. It has also revealed an emerging warm relationship between the
child and her father.
Services for Children are positive in their view that I should return to
the care of her mother supported by her father, and have provided an outline
plan for her early return.
The local authority has obviously considered that report and the
comments about both parents. As a result they have decided to withdraw their
allegations against the mother and additional allegations against the father,
and no longer seek findings against the parents. That approach has been
welcomed and supported by all parties.
I too have considered the report and welcome the local authority’s
decision to withdraw their allegations. Indeed, although in July I adjourned
that issue until this hearing, on all the evidence now before me I would have
been hard pressed to make findings against the parents, and even more hard
pressed to make findings against them that would cross the threshold required
by s 31.
That being the situation, the care proceedings in respect of I fall away
and come to an end, as does the application for a placement order. With all
parties’ agreement I dismiss both those proceedings.
The last 5 1⁄2 years must have been an extraordinarily difficult time for
the parents. They lost the care of their beloved daughter and both have faced
findings against them in the family proceedings, and in the father’s case a
serious criminal conviction and period in prison with child abusers, about
which he told me, before that conviction was quashed. Their second daughter
was taken into care as a consequence of the original findings, and given their
mutual decision to deny her paternity, the father was unable to maintain a
relationship with her.
Fortunately over the years all has not been lost. E has been with her
grandparents, and able to see her parents be it all in a limited way. I has had
regular contact with her mother and has developed a warm, loving
relationship. Until very recently she has been deprived of a relationship with
Sutton v Gray & Ors (No 2)
 1 FLR
And, of course, through no fault of the parents and grandparents, the
little girls have lost the opportunity of being brought up by their parents.
 The parents have weathered the storm. They have each been resilient
and determined, and shown tenacity and courage. I hope now that the record
is put straight, that with their tenacity they will be able to put behind them
those difficulties and look forward to a more positive future.
 There are plans for I to move to her mother’s home in the very near
future. Her foster carer, who has looked after I for nearly 2 1⁄2 years, is
assisting the family and I in making the transition. I note with pleasure that
the parents have expressed their gratitude to the foster mother for looking
after I so well. I would like her to know that I also am very grateful to her, and
for her positive approach to helping I move back to her parents.
 Moving on, the issue of E’s future has been raised. Currently she is
with her maternal grandparents under a special guardianship order.
 Both the parents are hugely grateful to the grandparents for stepping
forward to care for E, and providing her with love and stability over the last
4 years. It has not been easy for the parents to know that someone else was
caring for their little girl, but they know and appreciate that but for
the grandparents she would have been adopted, and lost to them. Without the
grandparents we would not be discussing E’s future today.
 It has not been an easy time for the grandparents either. They are
retired, of mature years and not always in the best of health. Their application
for special guardianship incurred them in considerable expense. But, despite
their own personal difficulties they have provided well for E, and are devoted
 Inevitably the grandparents will have heavy hearts, but they have
recognised the parents’ burning desire to regain the care of their little girl;
they recognise that age and health are not in their favour; they do not wish ‘to
fight’ to keep E; they want the best for her, and for them now to play a more
backseat role in E’s life: to be supportive, loving grandparents. With this in
mind they have accepted and agreed that E should return to live with her
mother, with I and with the support of her father.
 It is a brave and appropriate decision, and one which I am sure the
 As a result it is agreed between the parties that Services for Children
should undertake an assessment of how and when E can be returned to her
mother. Services for Children’s assessment over the summer was focused
upon I, it was not focused upon E, and work needs to be done to understand E,
her wishes and feelings, and to consider the mechanics of a return to her
mother, while taking into account I’s own needs.
 I am satisfied that this assessment and advice is vital to a successful
reintegration of this family.
 Thus while the care proceedings have come to an end I am making
directions in the parents’ proposed application to revoke the special
 It is seldom that I see a ‘happy end’ in public law proceedings. It is a
joy for me to oversee the return of a child to her parents.
 I is returning to her parents. I wish her much love and happiness in
their care, and of course I wish the parents well: they too deserve joy and
 1 FLR
Sutton v Gray & Ors (No 2)
 The story does not end today. There is still work to be done. I very
much hope that in the near future there will be another happy ending.
A local authority solicitor
William Bache for the first respondent
Fisher Meredith for the second respondent
TV Edwards for the guardian
 1 FLR