SITTING AT IPSWICH COUNTY COURT
B e f o r e :
| A Local Authority
|- and -
|P and T
||3rd and 4th Respondents
Paul Storey QC and Alexa Storey-Rea (instructed by Wollens Solicitors ) for the First Respondent
Andrew Bagchi QC and Dorian Day (instructed by Brendan Flemming Solicitors) for the Second Respondent
Fiona Bailey (instructed by Haywards Solicitors) for the Guardian
Hearing dates: 1-12 April 2019
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Justice Newton :
i) The burden of proof lies with the Local Authority. It is the Local Authority which brings the proceedings and identifies the findings that they invite the Court to make. The burden of proving the assertions rests with them. I bear in mind at all times that the burden is fairly and squarely placed on the Local Authority, and not on either parent. Recent case law (such as Re B (A Child)  UKSC 33 and Re B-S (Children) 2013 EWCA 1146) reinforces the importance of proper findings based on proper facts; the principles are the same for whatever the proposed outcome. Here there is, as in many cases, a risk of a shift in the burden to the parents to explain occasions when injuries might have occurred. Whilst that can be an important component for the medical experts, it is not for the parents to explain but for the local authority to establish. There is no pseudo burden as Mostyn J put in Lancashire County Council v R  EWHC 3064 (Fam). As HHJ Bellamy said in Re FM (A Child: Fractures: Bone Density):  EWFC B26.
"Where… there is a degree of medical uncertainty and credible evidence of a possible, alternative explanation to that contended for by the local authority, the question for the Court is not "has that alternative explanation been proved" but rather… "in the light of that possible alternative explanation can the Court be satisfied that the local authority has proved its case on the simple balance of probability."
ii) The standard of proof of course is the balance of probabilities (Re B  UKHL 35). If the Local Authority proves on the balance of probabilities that baby A was killed by the mother or sustained inflicted injuries at her hands the Court treats that facts as established and all future decision concerning the future welfare of B, based on that finding. Equally if the Local Authority fails to prove those facts the Courts disregards the allegations completely.
"the "likelihood of harm" in s31(2) of the Children Act 1989 is a prediction from existing facts or from a multitude of facts about what happened… about the characters and personalities of the people involved and things which they have said and done [Baroness Hale]"
iii) Findings of fact must be based on evidence as Munby LJ (as he was then) observed in Re A (A child) Fact Finding Hearing: (Speculation)  EWCA Civ 12:
"It's elementary proposition that findings of fact must be based on evidence including inferences that can properly be drawn from the evidence, not on suspicion or speculation."
That principle was further emphasised in Darlington Borough Council v MF, GM, GF and A  EWFC 11.
iv) When considering cases of suspected child abuse the Court must inevitably survey a wide canvass and take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T  EWCA Civ 558  2 FLR838.
"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 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."
v) The evidence received in this case includes medical evidence from a variety of specialists. I pay appropriate attention to the opinion of the medical experts, which need to be considered in the context of all other evidence. The roles of the Court and the experts are of course entirely distinct. Only the Court is in a position to weigh up the evidence against all the other evidence (see A County Council v K, D and L  EWHC 1444,  1 FLR 851 and A County Council v M, F and XYZ  EWHC 31,  2 FLR 129). There may well be instances where the medical opinion is that there is nothing diagnostic of a non-accidental injury but where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts, that is on the balance of probability, there has been non-accidental injury or human agency established.
vi) In assessing the expert evidence, and of relevance here, I have been careful to ensure that the experts keep within the bounds of their own expertise and defer where appropriate to the expertise of others (Re S  EWHC 2115 Fam),  1 FLR 1560). I also ensure that the focus of the Court is in fact to concentrate on the facts that are necessary for the determination of the issues. In particular, again of relevance here, not to be side tracked by collateral issues, even if they have some relevance and bearing on the consideration which I have to weigh.
a) The cause of an injury or episode that cannot be explained scientifically remains equivocal.
b) Particular caution is necessary where medical experts disagree.
c) The Court must always guard against the over-dogmatic expert, (or) the expert whose reputation is at stake.
viii) The evidence of the parents as with any other person connected to the child or children is of the utmost importance. It is essential that the Court form a clear assessment of their reliability and credibility (Re B  EWHC 20). In addition, the parents in particular must have the fullest opportunity to take part in the hearing and the Court is likely to place considerable weight of the evidence and impression it forms of them (Re W and another  FCR 346).
ix) It is not uncommon for witnesses in such enquiries, particularly concerning child abuse, to tell untruths and lies in the course of the investigations and indeed in the hearing. The Court bears in mind that individuals may lie for many reasons such as shame, panic, fear and distress, potential criminal proceedings, or some other less than creditable conduct (all of which may arise in a particular highly charged case such as this) and the fact that a witness has lied about anything does not mean that he has lied about everything. Nor, as R v Lucas  3 WLR 120 makes clear does it mean that the other evidence is unreliable, nor does it mean that the lies are to be equated necessarily with "guilt". If lies are established I do not apply Lucas in a mechanical way but stand back and weigh their actions and evidence in the round. I bear in mind too the passage from the judgment of Jackson J (as he then was) in Lancashire County Council v C, M and F (2014) EWFC 3 referring to "story creep".
x) Very importantly, in this case in particular, and observed by Dame Butler-Sloss P in Re U; Re B (supra):
"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generations of experts, or that scientific research will throw a light into corners that are at present dark"
That principle was brought into sharp relief in the case of R v Cannings (supra). As Judge LJ (as he was then) observed:
"What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
As Moses LJ said in R v Henderson Butler and Oyediran  EWCA Crim 126  1 FLR 547:
"Where the prosecution is able by advancing an array of experts to identify non-accidental injury and the defence can identify no alternative course, it is tempting to conclude that the prosecution have proved its case. Such temptation must be resisted. In this as in many fields of medicine the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."
"A temptation described is ever present in Family Proceedings and in my judgment, should be as firmly resisted as the Courts are required to resist it in the Criminal Law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities… a conclusion of unknown aetiology in respect of an infant represents neither a professional or forensic failure. It simply recognises that we still have much to learn and … it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism."
11 April 2018
The Expert Evidence
The Parents' Evidence
The Approach of the Medical Experts
Connective Tissue Disorder, Hypermobile Elhers-Danlos Syndrome (hEDS), or otherwise
1. That I have greater difficulty in adopting a conclusion that the medical findings are in whole or in part a result of an unknown condition or combination of conditions.
2. That I do not accept that T's condition arose from some unidentified medical cause.
3. That there is no other known overlooked condition or combination of conditions.
4. However, I do accept that what is known about T could make it as equally likely or unlikely, slightly more likely probably – having regard to the wider information – that he has some unidentified but nonetheless increased likelihood of susceptibility to vascular fragility, but which is unlikely to have caused the spontaneous presentations of the injuries.
5. I do not conclude that T's condition is a result of an unknown pathology beyond our current understanding.
What of the Father?
i) The injuries were caused by the father in temper or momentary loss of control.
ii) The injuries were caused by the father in a heightened state of anxiety in effort to calm T.
iii) The injuries were caused by the father, unaware of what he was doing.
iv) The injuries were caused by the father in panic which fell below the level of care that could be reasonably expected.
Options 3 and 4 may well be connected.
i) The father's account is accurate and reliable account, but as I say, as far as it goes.
ii) Having regard to my previous conclusions something injurious occurred whilst T was in his father's arms at the top of the stairs, probably moments before the mother re-entered the house.
iii) There is sufficient evidence to support the proposition that T was more likely than not to be more susceptible to venous fragility.
iv) Whatever happened was caused by the all consuming desperation of the father's panic and vulnerabilities, but was not intentional.
It is that aspect about which I have the greatest anxiety and apprehension.