Strand, London, WC2A 2LL
B e f o r e :
| X COUNTY COUNCIL
|- and -
|AB & CD
MISS MORGAN QC and Ms Magennis (instructed by Emery Johnson Astills Solicitors) appeared on behalf of the first respondent mother.
MR TYLER QC and Ms Tompkins (instructed by Dodds Solicitors) appeared on behalf of the second respondent father.
MR ADAMS (instructed by Brethertons Solicitors) appeared on behalf of the third respondent child (by her children's guardian).
Hearing dates: 20th - 29th April & 5th May 2015
Crown Copyright ©
MR JUSTICE KEEHAN :
" … evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases [must] have regard to the relevance of each piece of evidence to [the] other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof…"
" In my judgment it follows from the approach set out in the above citations, which illustrate the judicial function that:
"(i) The court has to take into account and weigh the expertise and speciality of individual experts and is often assisted by an overview from, for example, a paediatrician.
"(ii) In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof.
"(iii) The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury… of the type asserted, is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that on the balance of probability there has been a non accidental injury (or human agency) as asserted and the threshold is established.
"(iv) Such findings have to be based on evidence and findings of fact to the civil standard and reasoning based thereon."
(a) A fracture of the neck of the left second rib at the inferior aspect which was caused between 13 and 20 February 2014, when H was between five days and twelve days old.
(b) Fractures of the posterior ends of the left fourth and fifth rib which was caused between 20 and 27 February 2014, when H was between 12 days and 19 days old.
(c) A metaphyseal fracture of the right proximal tibia and an associated metaphyseal fracture of the right distal femur which were caused on around 5 or 6 March, when H was 25 or 26 days old.
(d) A subperiosteal haemorrhage of the right tibia associated with the metaphyseal fractures.
(e) A greenstick fracture of the right distal radius which was caused in the period of 5 March to 21 March, when H was between 25 and 41 days old.
(f) Subdural haemorrhages along the posterior falx, the tentorium over both cerebral hemispheres and in the posterior fossa which were caused on 19 or 20 March, when H was 39 or 40 days old.
(g) Brain injury, consisting of swelling of the brain, separation of the sutures and severe hypoxic ischemic damage caused in the same event as (f) above.
(h) Spinal injuries involving subdural haemorrhage of the lower lumbar and sacral spinal canal and abnormalities to the paraspinal muscles adjacent to the spine and consistent with inflicted injury, most probably linked to the events at (f) above.
The positions of the parties
"CD referred on a number of occasions to a ghost-like person, a man called M, who has taken over his body since he was a child. Later, on direct questioning, he explained his understanding of M, whom he told me he believed was there to help him deal with his traumatic childhood, in particular physical abuse and emotional neglect from his father. CD's explanation to me about M was consistent with that reported in his medical reports and other filed documents in these proceedings. Apart from CD's report about M, he denied perceptual abnormalities such as hallucinations and delusions…"
Later, she said:
"CD also further explained that he has no memory of what happened to his daughter, H, and felt this was down to his split personality. He explained this meant that he (by this he meant M) can at times take over and control his actions and behaviour without him remembering such actions. He said he is not a violent person by nature but believes that M could be quite violent and could commit violent offences at night when he is asleep and it could be a form of sleepwalking behaviour, though he has no known history of sleepwalking. CD admitted that M usually becomes more prominent when he is anxious and feeling stressed…"
Then a little later:
"In terms of the specific pages of CD's medical records that were said to refer to M, I did not find that to be the case in all. However, in the context of an overview of these records, they have provided insight into how CD has demonstrated a high level of disturbed and disturbing behaviour throughout his childhood. There is a history of childhood abuse by his parents, transient involvement of children's social services, significant concerns about his behavioural problems at home and at school, difficulties with peers, learning difficulties and evidence of a comprehensive (including physical and neuropsychological) inpatient assessment by child and adolescent mental health services when he was 13 years old. The records also show that he presented a diagnostic conundrum in terms of his mental health since childhood and several diagnoses were considered, including autistic spectrum disorder, but apart from the evidence of borderline low intelligence and conduct disorder there was insufficient diagnostic evidence of others…"
Dr Duncan concluded:
"CD is currently receiving treatment for anxiety and depression. He told me that he is currently awaiting psychological treatment (talking therapy) from Mind. There are, however, suggestions that CD is also likely to be suffering from post-traumatic stress disorder. His reports about M may be symptomatic of dissociative disorder, as described in the attached appendix 1, but other mental disorders, including psychoses and the role of personality features and drugs, such as cannabis abuse, need exploring. However, it is likely that a formulation of his mental health history will be more helpful than trying to pigeonhole CD's difficulties into one or two neat diagnostic categories."
"I told my solicitors that CD said to me that M is still present in his mind and although he has no memory of it, M may have done something to harm H. CD said to me that he thinks if it wasn't me and it wasn't him then it must have been M. CD also said to me that he couldn't be honest with me because he was scared I would leave him. I told my solicitors I was scared that something happened. I told CD I was going to share the information with my legal team. I reported the conversation to my solicitors because I was worried and I began to doubt him. I thought perhaps he had had some part to play in the injuries and he was starting to admit it. I cannot remember now if this conversation with me was just before or just after he saw his counsel and solicitors in conference. Very shortly afterwards, however, the court gave permission for him to be assessed by a psychiatrist [I interpolate that that is Dr Duncan]…"
A little later, she says:
"There has been one earlier occasion when CD spoke to me about H's injuries. He came in one day - and I cannot remember when this was - and he said to me: 'I've done it'. I asked him what he meant and he said something like: 'I have hurt her' or 'I have hurt H'. I couldn't understand it because ever since her injuries were discovered he had always told me he hadn't done anything, so I asked him what he meant and he said he didn't mean it and he was lying about it but he wanted to see if I would believe him. He said that if I believed him, he would be able to just say he had done it and other people would too and then maybe the judge would let me have H back. I was cross with him and asked him if he had been lying. He said he didn't mean it and that he was lying when he said he had hurt her. I know that CD can behave in ways that are a bit odd and I have caught him out lying before. I didn't believe him at the end of this conversation that he had hurt H and that is why, unlike when he spoke to me about M on 13 March, I didn't tell anyone. In fact I haven't told anyone about it until I was giving instructions to make this statement. I still don't know what to think about what happened to H, but I am coming to think that CD may have hurt her in some way…"
"Since he was around 11 years old, CD has experienced a very real and internal presence, a personality called M. M has mostly been felt to be a protective and benevolent presence, but on two occasions now M has taken control of CD's physical body and behaved violently, instances of which CD says he has no memory. The first of these instances happened many years ago, but the second happened recently and very much shocked and frightened CD. He has recently come to question more and more how real M actually is and has begun to wonder whether he might have created M himself as a way of coping with a very violent and traumatic childhood…"
"He [that is M] took her out of the Moses basket when H was sleeping. H was crying and so he goes to pick her up. He goes to the bottom of the bed and he squeezed her to stop crying. He squeezed with a lot of force. She [H] was kicking her legs. She wasn't able to breathe or cry. He squeezed for a couple of minutes. She started to cry a lot. She would be in discomfort and pain. He put back the distressed baby. [M] [that is the father] found her crying loudly. She cried for 20 or 30 minutes… M did not want me to have a child. It was his attempt to get rid of that child."
"He [M] gets her up out of the basket and goes to the foot of the bed. He let her fall on the mattress. She landed on her back and bounced a little bit. She was still crying. He [M] turns away and looks at the wall. His right hand goes to grab H's leg, he pulls her off the bed and lets her swing and then swings her up into his left hand. She landed with force. Her head was not supported. He knocked the back of her head with his fist five times to make her cry more and she did. He then put his right thumb over her chin and finger over her face to minimise her crying and it worked. She could still breathe through her nose. He did that for a minute and a half or a couple of seconds and then just placed her in the Moses basket when she was crying a bit."
"He [M] took H out of the Moses basket with his left arm. He touched her left hand and then he bent back her right hand to cause her pain and she started crying and screaming. He bent it back too far. H was screaming. He placed her in the Moses basket and covered her up. That's all I can remember. [The mother] was in the front room on the phone. H was screaming for a couple of minutes, then crying. [The mother] came into the room and asked me why she was screaming."
A little later, when asked about that particular incident in cross-examination by the local authority, CD said that he had bent her hand back and then held it and that H was screaming.
"H was asleep. He lifted her by the armpits and went to the kitchen and sat her on the cooker, which was clean. He started to strangle her to stop her crying. Both his hands were around her neck. He used a great amount of force to stop her breathing. She changed colour and was dazed. Then he was thinking 'Oh shit, (he's) hurt her too much'. She started to cry; a weak cry. He lifted her up by the neck, still strangling her, and then shook her by the neck with her body dangling down - really powerful. I [said the father] lost count of how many times she was shaken. She wasn't conscious when I put her back to bed."
(a) On the father's account, he picked up and seriously abused not a distressed child but a baby who was sleeping peacefully.
(b) He shook the child not, as is so often reported to be the case, by holding her around the ribcage but by holding her around the throat.
(c) He admitted in cross-examination by Miss Morgan QC, counsel for the mother, that he abused H that night with the intention to kill her. Chilling evidence indeed.
"She saw me being rough with H putting her in the Moses basket. I think it was I put H in the cot too roughly - that was what AB said - but there was no change in my role. AB never asked me if I had done anything to harm H… I'd never heard H scream with AB or any other person. When I broke her bones and H screamed, I had never heard that scream on any other occasion. AB never asked me what I'd done. There was never any change in my role as a carer."
(a) Although the father has spoken to medical professionals about a presence called M, save for an incident many years ago when he assaulted his brother ED and save for some unknown occasion some years ago, there has not been a time when M is alleged to have taken control of the father.
(b) Save during this hearing, there has never been an occasion when M has spoken directly through the father.
(c) The father did so only when he was in difficulty in answering counsel's questions and when he sought to avoid answering questions.
(d) The account of the father retrieving M's memory only occurred after the father had been told by a psychologist that a "personality" could have its own separate memories.
(e) The father did not show any emotion about what he had done to H until he was asked why he was not showing any emotion. He cried now and then for the balance of his evidence during that first afternoon. None was shown in the following day.
(f) It was the father and not M who told the mother that he had had thoughts of strangling H.
(g) It was the father and not M who admitted to the mother that he may have injured H.
(h) It was the father and not M who abusively and inappropriately handled H in the three video clips.
(i) On the totality of the evidence, I am satisfied that the idea that M had injured H was a construct and a ruse by the father in an ill-conceived attempt to deflect blame from himself: "That's the clever thing. I have no guilt. Not one bit".
(a) When he broke her wrist, he pushed her right hand back so far that the bone fractured but then, as the child screamed out, he held it there, increasing her pain and agony.
(b) On 20 March, he very seriously assaulted a peacefully sleeping 40-day-old baby.
(c) Without any provocation and for no obvious reason, he calmly did what he said he had had thoughts to do and he strangled her.
(d) He then shook her by the neck. I have never heard of a parent shaking a child in that way before.
(e) He did so intending to kill her.
(a) has lied to protect the father;
(b) has always put the father first;
(c) knew that the father had repeatedly harmed H and had caused her pain;
(d) did nothing to protect her baby; and
(e) placed her relationship first and foremost.