SITTING AT LIVERPOOL CIVIL AND FAMILY CENTRE
B e f o r e :
(sitting in public)
|BLACKPOOL BOROUGH COUNCIL||Applicants|
|A (A CHILD)||Respondent|
AVR Transcription Ltd
Turton Suite, Paragon Business Park, Chorley New Road, Horwich, Bolton, BL6 6HG
Telephone: 01204 693645 - Fax 01204 693669
Counsel for the Mother: MR PETER ROTHERY
Counsel for the Father: MR MARK STEWARD
Counsel for the Child: MISS SAMANTHA BOWCOCK
Counsel for the First Intervenor: MISS HEATHER HOBSON
Crown Copyright ©
MR JUSTICE HOLMAN;
Kacey was brutally attacked on 10 April 2014. She died two days later at the age of just over two. These are care proceedings in relation to her surviving younger sister who is now aged 21 months. The person who killed Kacey was her mother's then boyfriend, Connor Gibson, who is now serving a prison sentence. The essential issues in this fact finding hearing are: (i) whether the mother herself directly caused any of the multiple injuries suffered by Kacey; and (ii) in any event, whether the harm suffered by Kacey and the likelihood of harm to her sister was attributable to the care given to the children by their mother not being what it would be reasonable to expect a parent to give to them. I heard the oral evidence of the mother and Connor Gibson in private (i.e. in the ordinary courtroom but with any public excluded). I did so in the hope that it would assist them to give their evidence as frankly and without inhibition as possible in the search for the real truth as to what happened. I heard the rest of the case in public, including the oral evidence by video link of the jointly instructed expert, Professor Timothy David. I now deliver this judgment in public. When it has been transcribed, it will be placed upon the BAILII website on the internet and may be freely quoted.
The father was born in December 1986 and is now aged 28. The mother was born in December 1990 and is now aged 24. She was just 23 at the time of the critical events. The parents married in 2011. Their elder daughter, Kacey, was born on 1st March 2012. Their younger daughter, to whom these proceedings relate, was born in April 2013. She is now aged about 21 months. She was about one year old during April 2014. I will call her A (which is not any actual initial of hers). Following the birth of A, the mother remained on maternity leave until 19 January 2014, when she resumed work. Sadly, the marriage between the parents became unhappy and the father moved out from the rented family house at the beginning of September 2013.
There are extensive documentation and reports in relation to injuries observed upon Kacey externally and internally before her death and during post-mortem examinations. A schedule dated 19 January 2015 has been prepared for the purpose of this hearing by Miss Julia Cheetham QC, who appears on behalf of the local authority. It is not necessary to what I have to decide to give a detailed list. Kacey died as a result of severe haemorrhage and bleeding in her brain. The precise mechanism by which that was caused in this case is not known, but it required acceleration and deceleration forces within her head. Her head and body must have been violently shaken and/or struck an object with a sudden impact. That fatal harm must have been caused only shortly before the ambulance arrived or she would already have been dead.
The mother could not have caused the fatal brain injuries for she had left for work at 7.30 am and has, in effect, an alibi. The story of Connor Gibson was, for many months, that he had left Kacey having a shower. He heard a bang and found that she had fallen over in the shower. She appeared motionless and he shook her vigorously in a well-meaning and lawful attempt to revive her. He said that he had not caused any of the bruising or other injuries. At paragraphs 37 and 38 of his statement in these proceedings, signed on 8 August 2014 (now at bundle page C76) he said:
"Initially, I refused to believe it could have been [the mother] that had harmed Kacey, but if it is a choice between [the mother] and me, I know it wasn't me, then there can only be one answer ... I have not murdered Kacey. I have not harmed her in any way ... I wish I could assist the court further in what happened to Kacey. I only wish I knew. I am extremely saddened by Kacey's tragic death, and I myself wish to know exactly what has happened to her."
"I say here and now, my Lady, that nothing I say is either directly or obliquely intended to cast any blame at all on [the mother]. She is clearly devoid of any blame in these matters and Mr Gibson is very anxious that nothing is said that can even remotely be taken to be any criticism of her."
Mr Fish submitted that this was a case of sudden loss of temper. There was no "build up". His temper must have flared up suddenly. He was devoted to both girls and there was no premeditation at all. Mr Fish referred to:
"... relationships that involve episodes of violence going back over a period, where the violence frequently escalates prior to either a fatal attack or a very serious attack. That is not the case here. On the contrary, his behaviour towards the children is exemplary up until that morning of the 10th April."
"Kacey's mother had no reason whatsoever to think that she could not safely leave her children in your care ... You have now admitted responsibility for all of the injuries caused."
However, said the judge, his earlier lines of defence had implicitly and inevitably implicated the mother, who had suffered so significantly as a result. The judge said that "this was a dreadful thing to do ..." and that "a considerable aggravating feature ... is your implication of Kacey's mother, and inevitable part of your defence assertion." However: "This terrible incident was quite out of character ..." The sentence passed, after giving ten per cent credit for the late plea of guilty, was one of nine years' imprisonment.
On 30 October 2014, only about three weeks after his trial and sentence, Connor Gibson made a further statement in these proceedings, now at bundle page C162 to 164. Despite what had been said so recently by counsel and the judge at his trial, as summarised above, Connor Gibson repeated in this statement that he had shaken Kacey but did not cause any other injury to Kacey. He said that he had only accepted (through counsel) causing all the injuries because he was scared of being convicted of murder. He continued:
"I know that I was admitting to something that I had not done but I felt that I was faced with no other choice. Despite my plea, I did not harm Kacey causing the bruising or internal injuries. I only ever shook Kacey ... I am horrified by what has happened. However, above and beyond the shake, I did not cause the injuries and I do not know how the injuries were caused."
He maintained this position in a yet further statement made as recently as 6 January 2015, now at bundle page C180 to 182.
Those recent statements inevitably necessarily implied once again that it was the mother who had caused all the external and internal bruising and injuries except those necessarily referable to shaking. The first task at this hearing has therefore been to try to establish once and for all whether it was Connor Gibson who caused all the injuries or whether the mother caused any of them. The second task, of relevance to the care proceedings and the future welfare of A, was to examine more critically whether the events of the morning of 10 April 2014 were as out of character as was presented at the criminal trial and whether his behaviour towards the children was "exemplary" until that morning; and whether it is correct to say, as was presented at that trial, that the mother "had no reason whatsoever to think that she could not safely leave her children in [Connor Gibson's] care".
There was also a third task. A was, appropriately, very thoroughly examined on 10 April 2014. Three marks were observed upon her: a small, 0.3 centimetre diameter scab on her forehead with a surrounding light-coloured bruise; a small area of petechiae on the right side of her inner cheek; and a 2 centimetre by 3 centimetre crescent-shaped, brown-coloured bruise over the medial aspect of her right leg, just below the knee. Photographs of these marks and the relevant documentation have all been thoroughly reviewed by Professor David. His conclusion in summary, at paragraph 43 of his report dated 9 December 2014, now at bundle page E218, is that:
"... I do not see sufficient evidence to conclude that [A] was injured by someone, whether intentionally or as a result of an accident."
That remained his position during his oral evidence.
After an immensely thorough review of all the medical photographs and documents, Professor David concluded in paragraphs 177 to 180 of his written report in relation to Kacey, dated 27 December 2014 (now at bundle page E313), as follows:
"In medical terms, it would appear likely that the injuries that caused the bruising (a considerable number, maybe 10 to 20 or more, of extremely violent episodes) preceded the head injury, which in turn is likely to have resulted in the child's immediate collapse ... There is no evidence to suggest that the abdominal trauma had occurred before the mother left home on 10 April. What is the evidence that any other person than the person who caused the fatal injuries was involved in, or was aware of, the cause of this child's multiple and ultimately fatal injuries? I can see none. From a medical point of view, my suggestion is that consideration is given to the probability that Kacey was the victim of a sadistic attack involving multiple extremely violent blows of an undefined nature ..."
[The words in italics above were added by Professor David to paragraph 179 of his written report during the course of his oral evidence.] Professor David gave oral evidence substantially to the same effect.
It is now necessary, however, to describe a number of events and circumstances prior to 10 April 2014. Part of the context is that both the mother and Connor Gibson agree that the relationship between Connor Gibson and Kacey was different from the relationship between Connor Gibson and A. This may have been due to the fact that Kacey was older and already well bonded with her own father (she has been described as a "daddy's little girl") and was naturally more wary of Connor Gibson. It may have been due to the fact that Kacey was more boisterous and has been described by her mother as "entering her terrible two's" and becoming quite cheeky. Whatever the reason, both the mother and Connor Gibson say that Connor Gibson found it more difficult to relate with and to handle Kacey. He himself said in his oral evidence that he had some issues with Kacey. She did not warm to him straightaway. She would not let him do anything for her. She would walk off and go and find her mother. She would not take a drink from him. It is clear that Connor Gibson, who had had no previous experience of children or childcare, found this hard to understand and it was a source of frustration to him.
On 20 February 2014 the electricity meter ran out during the late afternoon and the house became dark and cold. The mother and Connor Gibson and both children were there. The key to the meter cupboard was missing. They suspected that Kacey must have removed it and hidden it. They hunted for it for about an hour but could not find it. (It was later found the next day, tucked inside a book, close to the meter cupboard.) The mother then spent about 20 to 30 minutes in the kitchen, ringing the electricity company on her mobile phone to arrange for them urgently to supply another key. During part of the time she went into the back garden, still on the phone, to have a cigarette. She said that she did not smoke inside the house. All this time, the only light was from candles. When the mother went back into the front room, where the children had remained with Connor Gibson, he immediately told her that Kacey had pulled out a clump of her own hair. The mother could see a circular bald patch just behind the crown of Kacey's head, with a diameter of about 1 inch. That bald patch is, in fact, still clearly visible in a photograph that was taken of Kacey sitting in a red pedal car about a month later, and was also noted on the "body map" of injuries when she was admitted to hospital on 10 April. The mother said that Kacey seemed all right. She said that she, the mother, was mortified that Kacey had pulled her hair out because it was dark, but she accepted Connor Gibson's explanation that Kacey had done it herself, although she had never seen Kacey pull her hair out before. The mother was clearly concerned about the incident, for the following day she asked a friend by text whether Kacey might have alopecia, and she consulted a number of other friends and relatives as well, although she did not consult the doctor.
During the afternoon on 25 February 2014, the mother and Connor Gibson and both children were all at Connor Gibson's father's house. The mother and A were in the front room. Connor Gibson found Kacey in the kitchen, eating or playing with food in the dog bowl. He was very angry with her and shouted at her. What followed is dreadful to relate, but both the mother and Connor Gibson agree about the facts, and gave and demonstrated a substantially identical account in the witness box. Connor Gibson picked Kacey up by one ankle and carried her, hanging upside-down, by a single ankle, from the kitchen into the front room, where he deposited her by the mother. He had carried her in that way once before in play. Kacey had not liked it and the mother had told him not to do it again. This time it was not in play. It was in anger because he was annoyed that the mother herself was not disciplining Kacey for eating from the dog bowl. He said in his oral evidence that he was more annoyed with the mother than with Kacey and that he picked Kacey up by the leg to "piss the mother off". He said that the mother was indeed "pissed off", she was furious, and she then left with the kids.
"Take w.e. [whatever] out on me, I'm not arsed, but the kids, that's the second time now!!!!! ..."
In another text, at 15.41, the mother ended that she was "speechless TBH [to be honest] for once". He replied:
"Why you speechless? She don't like me and she not mine. That's the truth."
The mother replied:
"Yer but the way u said it, I hate the way she is with you [...] I told u the other night if this is too much for you, u need to let go before it gets worse or summert."
Connor Gibson replied:
"I don't need to let go. Fucking hell. I made her cry once. It's going to happen a lot and things are going to get said when it gets a bit tough but I'm not arsed, it will get easier when she can talk."
On 2 April 2014 the mother was at work and Kacey at her nursery school. Connor Gibson was caring for A at the mother's house on his own. It appears that he left A in her baby bouncer without securing the strap. She fell out and suffered a minor nosebleed. There is no evidence at all that Connor Gibson in any way deliberately harmed A that day. The significance of the incident is in the ensuing SMS messages. Connor Gibson texted to the mother that A had a nosebleed and then there were the following exchanges. Connor Gibson:
"Every time I look after one of them, they get hurt. I don't wanna do it anymore."
The mother replied, in a message at 12:32:03, which used the vernacular and abbreviations of young people texting, and asked whether he was being serious. He replied:
"She has a scratch on the top of her nose when she fell out that bouncer thing. I feel bad. She asleep in bed anyway."
"We will talk, OMG [oh, my God]. If we av a kids they will b black n blue x."
On Monday, 7 April 2014, the mother attended the father's father's funeral, leaving the two children in the care of Connor Gibson. She returned home after the funeral and collected the children to take them to the wake. While collecting them, the mother saw that Kacey had a bruise, which she described in her oral evidence as a dirty bruise, on the inside of her right knee. She said that she did not like it. She thought it was unusual for a child to be bruised in that position rather than, say, on the shin or the front of the knee. She said that, again that evening, she did not like the bruise. It was dark and in an odd place. She now thinks that Connor Gibson had done something to Kacey but she did not speak to him about it at the time. Connor Gibson himself agreed that while he was caring for the children during the funeral, Kacey did bruise her right knee, although he said that he could not now recall how it occurred. He said that he did not kick or punch her. I am satisfied that this is the yellow bruise inside the knee that is clearly seen in the photographs taken on 10 April 2014 and which Professor David said must have been sustained at least 18 hours earlier but could have been sustained several days earlier. I am unable to say how it was caused and whether accidentally or not. The significance of this event is that it is the last of a series of events that I have described, and that it occurred only three days before Thursday, 10 April 2014. The mother herself was obviously concerned, and remained concerned, about an unexplained, dirty bruise in an odd or unusual place, which had been sustained while Connor Gibson was caring for the children on his own.
The day after the funeral, namely on Tuesday, 8 April 2014, the mother's employers told her that they were changing her roster and she must work on the early shift, on Thursday 10 April. She says that her own mother was unable to care for the children that day as she had already agreed to dog-sit and house-sit for a friend. She says that she felt unable or unwilling to ask the father or his mother to care for them so soon after the funeral, the more so as there had been an altercation at the wake. There was no one else she could ask, so she asked Connor Gibson and he volunteered to care for them on the Thursday. The mother is adamant that this was agreed and arranged on the Tuesday. Connor Gibson says, by contrast, that she only asked him sometime late on the Wednesday. He said that he did agree to do so but he was "pissed off" because it meant he could not play football on the Thursday morning with his friends as he had planned.
At paragraph 4.3 of his excellent and thoughtful closing written submissions dated 26 January 2015, Mr Peter Rothery on behalf of the mother wrote:
"In considering whether there has been a failure to protect, there is a danger that incidents before 10 April 2014 are viewed through the prism of the fatal assault of that day and invested with a significance which they would not have except with the benefit of hindsight."
That is a very important point and warning to which I am very much alive. The essential matter which I have to address is the reasonableness of the decision of the mother to entrust the children to the care of Connor Gibson that day. That requires consideration of everything that the mother knew or ought to have known up to that day, but must not be influenced at all by anything that actually occurred on or after that day. I expressly caution and guard myself against falling into the danger or trap that Mr Rothery described, of viewing earlier incidents through the prism to which he referred. I stop the clock, as it were, at the moment the mother left for work at about 7.30 am that morning.
Section 31(2) of the Children Act 1989 provides as follows:
"(2) A court may only make a care order or supervision order if it is satisfied
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to –
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
It is not necessary to make detailed reference to high authority. The jurisprudence is clear that the phrase "attributable to" in section 31(2) connotes a causal connection, and clear that a contributory causal connection suffices. The issue is not one of fault or intent or blame. The issue is whether the care given, or likely to be given, is not what it would be reasonable to expect a parent to give.
There was some focus during the hearing upon the content of communications by letter and telephone between the mother and Connor Gibson during May 2014, and upon the fact that she voluntarily visited him in prison on 19 May 2014. I make no reference to them in this judgment, for it is not appropriate to judge her acts, omissions and decisions prior to 10 April by reference to anything she said or did in the period of grief and turmoil after 10 April 2014. If (I stress, if) they have any continuing relevance to decision making in the future, they can be considered as part of the forthcoming assessment of the mother and during the outcome hearing which I must now later conduct.
It is not necessary for the present care proceedings to reach any clear or concluded view as to what actually happened on 10 April 2014 or the reasons why. There is not the slightest prospect of Connor Gibson having anything whatsoever to do with A ever again. However, this judgment would not be complete if I did not give some account and attempt some explanation.
I will now give appropriate directions for appropriate assessments of the mother and the father and any other relevant person. The case will be adjourned to a final outcome hearing before me as soon as possible after those assessments have been completed.