IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF Q (A CHILD) (FACT-FINDING REHEARING)
Devon EX1 1UH
B e f o r e :
|PLYMOUTH CITY COUNCIL||Applicant|
|- and -|
|ELIZABETH WILKINS (1)|
|ERIK VANSELOW (2)|
|Q (represented by the Children's Guardian) (3)||Respondent|
Lower Ground, 18-22 Furnival Street, London, EC4A 1JS
Tel No: 020 7404 1400
Web: www.epiqglobal.com/en-gb/ Email: email@example.com
(Official Shorthand Writers to the Court)
PAUL STOREY QC and CAROLINE ELFORD appeared on behalf of the Mother
NKUMBE EKANEY QC and JONATHAN WILKINSON appeared on behalf of the Father
CARLA FLEXMAN appeared on behalf of the child, instructed by the Children's Guardian
Crown Copyright ©
LORD JUSTICE BAKER:
(1) on a balance of probabilities, Q sustained the head injuries whilst in the care of the father around 4 am on 22 September;
(2) the head injuries cannot have been sustained in the incident as described by the father but instead were inflicted non-accidentally by the father;
(3) the father did not tell the mother about the alleged incident until some hours later;
(4) the mother did not observe during the morning that Q was unwell because she did not pay sufficient attention to him;
(5) each parent in different ways bore a shared responsibility for the delay in seeking medical attention for Q's head injuries;
(6) that delay which I described as catastrophic had contributed to the significant long-term damage which Q will suffer as a result of his injuries;
(7) the subconjunctival haemorrhages were sustained between the immunisations administered on 1 September and the time on 2 September when the mother sent photographs to the father and on a balance of probabilities were inflicted by the mother;
(8) the mother did not see the father shake the baby as alleged, but instead tried to persuade him that the subconjunctival haemorrhages were attributable to his shaking the baby and to tell the doctors about the shaking in an effort to divert attention from the fact that they had been inflicted by her;
(9) the mother's account of seeing the father throwing the baby on the sofa was fabricated with the aim of incriminating him as the perpetrator of the rib fractures;
(10) there was insufficient evidence for the court to reach any conclusion as to when the rib fractures occurred or as to whether they were inflicted by the mother or the father.
- Count 1 against the mother: assault occasioning actual bodily harm (relating to the eye injuries);
- Count 2 against the father: causing grievous bodily harm with intent relating to the head injuries;
- Count 3 against the father: inflicting grievous bodily harm (alternative count relating to the head injuries);
- Count 4 against the mother: causing grievous bodily harm with intent relating to the head injuries;
- Count 5 against the mother: inflicting grievous bodily harm, alternative count in relation to the head injuries;
- Count 6 against both parents: causing or allowing a child to suffer serious physical harm, either causing Q to suffer serious physical harm or in the circumstances where they were, or ought to have been, aware that Q was at significant risk of serious physical harm, failing to take reasonable steps to protect him from that risk.
"The father seeks to review/reopen the findings of fact pursuant to Re: ZZ and Others  EWFC 9. Findings were made against the father to the effect that he had deliberately inflicted serious head injuries that Q sustained, was with the mother in the pool of perpetrators in respect of the rib injuries, and with the mother responsible for the catastrophic delay in seeking medical advice for Q. In subsequent criminal proceedings based on the same facts and applying the higher criminal standard of proof, the father was acquitted by the jury on all charges against him. The mother was found guilty of having inflicted all the injuries Q sustained and of causing or allowing him to suffer physical harm. The father seeks the adverse findings against him to be set aside in view of the mother's conviction on the grounds that they are unsafe."
"Upon the court determining the first stage of the father's application in accordance with the criteria in Re ZZ, and upon the court considering that the matter should be reviewed by the original trial judge (Baker LJ)…" and under paragraph 2 of the order, that: "the father's application for review of the findings of fact made on 25 October 2017 is granted. The ambit of such review and the review hearing shall be determined by Baker LJ at the hearing currently listed from 3 to 14 June 2019".
The President gave further case management directions to facilitate the review hearing. In addition, he made orders relating to the final welfare decision concerning Q's future. By that stage, as indicated above, the options for Q's future had crystallised into two - either a special guardianship order in favour of his current foster carers or an order placing him in the care of his paternal grandmother and partner in Africa. The President joined the foster carers as respondents to the proceedings and directed the disclosure of court documents to the grandparents. Meanwhile, the father was continuing to have supervised access with Q. The mother, however, was unable to have contact due to difficulties arising out of her imprisonment.
The question then arose as to how the court should proceed, in particular whether the mother should be required to give further oral evidence as had been originally intended. Mr Ekaney on behalf of the father proposed that she should, but those representing the mother and the local authority opposed this course. I concluded that it would not be right to require the mother to give evidence. I accepted the submissions put forward by the mother and local authority that to do so would be unfair in all the circumstances, given that the father would not be giving his evidence. The reasons why I had initially agreed that the parents should give further oral evidence at this hearing was that, in the light of the evidence given at the criminal proceedings, they could both be asked further questions falling within the scope of this review hearing as previously agreed and set out above, namely the events of 22 September 2016 and the perpetrator of Q's rib fractures. Given that I would not be hearing the father cross-examined on those matters, I concluded that it would be inherently unfair to require the mother to be cross-examined and would also risk distorting the forensic process. Furthermore, given the very considerable evidence from both already available to the court from the various proceedings, I accepted the submission that the forensic value of any further evidence would be limited, particularly given the length of the time that had passed since the events in question. Accordingly, the hearing continued on the basis of submissions only.
The Law Governing Review Hearings
"One does not get beyond the first stage unless there is some real reason to believe that the earlier findings require revisiting. Mere speculation and hope are not enough. There must be solid grounds for challenge."
"There is an evidential burden on those who seek to displace an earlier finding - in that sense they have to 'make the running' - but the legal burden remains throughout where it was at the outset. The judge had to consider the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court."
Section 11 of the Civil Evidence Act 1968
"(1) In civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom or by a court martial, there or elsewhere, shall, subject to (3) below [not relevant to this case], be admissible in evidence for the purpose of proving, where to do so is relevant to an issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.
"(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court martial there or elsewhere: (a) he shall be taken to have committed that offence unless the contrary is proved; and (b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted shall be admissible in evidence for that purpose."
"Section 11 makes the conviction prima facie evidence that the person convicted did commit the offence on which he was found guilty. That does not make it conclusive evidence. The defendant is permitted by the statute to prove the contrary if he can. The section covers a wide variety of circumstances. The relevant conviction may be of someone who has not been made a defendant to the civil action and the action defendant may have had no opportunity of determining what evidence should be called on the occasion of the criminal trial. The conviction particularly of a traffic offence may have been entered upon a plea of guilty accompanied by a written explanation in mitigation. Fresh evidence not called on the occasion of his conviction may have been obtained by the defendant's insurers who were not responsible for the conduct of his defence at the criminal trial or may only have become available to the defendant himself since the criminal trial. This wide variety of circumstances in which section 11 may be applicable includes some in which justice would require that no fetters should be imposed upon the means by which a defendant may rebut a statutory presumption that the person committed the offence on which he has been convicted by a court of competent jurisdiction. In particular I respectfully find myself unable to agree with Lord Denning, Master of the Rolls, that the only way in which a defendant can do so is by showing that the conviction was obtained by fraud or collusion, or by adducing fresh evidence (which he could not have obtained by reasonable diligence before) which is conclusive of his innocence. The burden of proof of 'the contrary' that lies upon the defendant under section 11 is the ordinary burden in a civil action: proof on a balance of probabilities; although in the face of a conviction after a full hearing, this is likely to be an uphill task."
(1) the conviction is prima facie evidence that the convicted person committed the offence;
(2) the conviction is not conclusive and the convicted person is permitted to seek to prove the contrary;
(3) the standard of proof on the convicted person in those circumstances is the balance of probabilities;
(4) in practice, however, a person who has been convicted after a full hearing is likely to face an uphill task in proving he did not commit the offence;
(5) the section covers a wide variety of circumstances;
(6) no fetters should be imposed on a convicted person as to the means by which the statutory presumption may be rebutted.
(1) The criminal proceedings came after the civil proceedings. The issue of the weight to be attached to the conviction only arises in the context of the father's application for the court to set aside its earlier findings.
(2) Although the mother was convicted after trial, the father was acquitted of the offence on the direction of the judge after the prosecution decided not to proceed against him;
(3) This court had already conducted a comprehensive analysis of the evidence and reached its finding before the criminal trial;
(4) A significant point in the criminal proceedings was the prosecution's decision based on its assessment of the evidence. I will return to this point below, but it is clearly relevant to the weight to be attached to the conviction in these proceedings;
(5) This court is engaged in an inquisitorial process to determine findings of fact in order to facilitate future decision making for Q's welfare. It seems to me therefore that rules of court must be interpreted in the light of the paramountcy of the child's welfare.
(1) Mr Richards' evidence;
(2) the father's evidence about the events of 22 September 2016;
(3) the mother's evidence about the events of 22 September 2016;
(4) the evidence about the rib fractures;
(5) the conviction and acquittal.
The Evidence of Mr Richards
"65 …. In his oral evidence, Mr Richards said that he would have expected the baby to have been distressed and crying from the point of injury until such time as the swelling caused the level of consciousness to fall. 'I would have expected at the point of injury that there would have been noise and the baby not settling, crying, distressed and particularly if the baby was handled in any way, and then when the brain swelled and the effect of the injury became worse, then the crying would have got less'.
66: In cross-examination Mr Storey took Mr Richards through the father's account to the police of what happened after the alleged fall onto the kitchen counter. He agreed with Mr Storey's suggestion that, from the beginning of the process, there was evidence consistent with encephalopathy. The high-pitched cry, the refusal to take milk, and later the father's account of how the child alternated between crying and lying quietly, staring and not following with his eyes. Mr Richards described him as being 'in the twilight zone between conscious and unconscious' and agreed with my description of how he was going in and out of consciousness and the more conscious he was, the more aware of the pain.
67: In oral evidence Mr Richards was asked about the consequences of a delayed presentation to hospital. He observed
'if there were a delayed presentation, that could have been avoided. The difference that might have occurred is that the fundamentals of treating a head injury are to keep the patient full of oxygen and keep their blood pressure up and that's what earlier presentation in this case could have achieved. It would not have altered the dural laceration. It may or may not have avoided the need for surgery, because if those things could have reduced the swelling so the brain damage wasn't extended, it might have made a difference, but if earlier oxygenation and correction of the anaemia had occurred, it might have reduced the severity of the underlying brain injury although you cannot be certain.'"
"In the family proceedings you were asked a series of questions about whether, in the light of the reported behaviour of Q between 4 am when Q was said to have been dropped by his father about a foot onto the kitchen worktop and his presentation with the serious injuries noted at the doctors and then at the hospital from 15:16, you thought that the injury could have occurred at 4 am, albeit not in the way described. That is if there had been a history given of a serious blow to Q's head at 4 am, would you have expected Q to have presented as he did some 11 hours later? Can you please confirm if that is a proper reflection of your opinion? Or would the presentation of injuries recorded by the GP/hospital be consistent (more consistent/equally consistent?) with a serious blow having occurred at a time later than 4 am?"
Mr Richards replied as follows:
"You are dependent on an accurate description of his day by carers. I would consider that after his injury he would not have been completely normal. Given that he was described as not being completely [normal] during the day after 4 am and getting worse, this would be consistent with him deteriorating following the events of that night; however, his presentation at hospital would be equally consistent with a more recent event."
This led, I infer, in due course to the following exchange in Mr Richards' examination at the criminal trial by counsel for the prosecution:
"Q. If the injury had occurred between 11.30 in the morning and midday, that would fit with what you had seen just as much as if it had been at 4 am."
"A. Yes, but it's dependent on the history because whatever happens, the baby would not have been completely normal between the injury and the attendance at the GPs."
In other words, Mr Richards was saying that it was impossible to say from the child's clinical presentation alone at the GPs and subsequently at the hospital whether he had been injured at 4 am or later in the morning. As he said both in the email and in his evidence: "You are dependent on the description of his state given by his carers". It is to that aspect of the case that I now turn.
Father's evidence about 22 September 2016
"I tried to console him for about an hour and then I tried to give him milk, but he was having none of it. Every time the teat touched his mouth, he just went into this high squeal crying, but it was continuous so rather than it being like every so often out of nowhere, it was continuous."
Then a little later when the child was in his bouncer he describes him as follows:
"I was kind of monitoring him, seeing how he was doing then while he was there, while he was sat in his bouncer. I could see because generally he loves being in the bouncer. He wasn't himself at all because normally he will sit in there and be looking at you and sort of trying to interact and hitting the things around him on the bouncer, but he was just sort of sat there almost vacant, staring, if you will. He was not following me at all."
That is in the two to three hours after the alleged incident at 4 am. Then he put Q back in the Moses basket and the father's description continues as follows:
"For like two or three hours kind of no sound. Nothing was coming from him and I found that quite weird, but then I noticed around 9, 9.30 he would be in that state and every now again squeal really loud and then be back into that state again, then really, really loud, then back into it again, almost like he was having a really bad dream, it seems."
"Yes, so, and I know this sounds very naïve but I was giving an account of that, that time period so he cried a little bit earlier on in the morning but in the afternoon the cry was very, very distinct and I, I don't know why I said it was for the whole day. That, that's my mistake. He cried, the the cry I was describing, it was later on in the day."
"ended up merging a lot of the events of the day as one … because I felt so bad, so awful about what had happened at 4 am. I'd merged all these things together as a way of trying to describe how Q was."
A little later he said:
"I was merging some of the events together and it's not until I really gave it a lot of thought that I was able to separate exactly when and where all those other incidents happened."
Later, he added,
"I was trying to say all the things I could remember but knew for sure that I was quite confused about the exact details and timings."
"combined two things there together … I hadn't really given it much thought. I just thought I'm trying to be as helpful as I can, these are the things that have happened."
"Q. In this interview you told the police that, following the bump, there had been a marked change in Q's presentation, hadn't you?
A. Yes, and what I was describing there is overall. So, yes, that had happened, he was slightly more irritable than usual
Q. No, what you describe …
A. But it wasn't anything like what we came to see.
Q. What you're describing to the police is not overall, what you're describing to the police is specific. When you put the teat to his mouth to try and feed him, what happened, did you tell the police?
A. That he would scream and that was the combination of events I was seeing that afternoon.
Q. You have changed that since your account, fresh on 22 September, because you now realise the significance of high-pitched screaming shortly after 4 o'clock in the morning.
A. No, not at all.
Q. That is why you are now lying about what happened?
A. I'm not lying.
Q. That is why you have told your counsel and this jury that you have conflated the timings on this day.
A. No, I had done. It was a very stressful time, there was an awful lot going on, I don't know how Q is, I was worried about [the mother] as well, I was worried about myself, I certainly didn't understand the gravity of the situation. All I knew was something is clearly very wrong. Q is very unwell and I am still no closer as to knowing what happened or why he was looking like that."
"Q. And in your interview on the 22nd that the jury will remember watching, you talk about how Q had been. Now in your evidence to this jury, you say that that was a conflation of time, yes, that you merged everything into one. Is that right?
Q. Because of the stress of the, of the moment.
A. Yes, there was --
A. Yes. A lot, a lot going on.
Q. And that the high-pitched scream and the distinct change in Q's head were only things that you were aware of on your return.
Q. Yes. The red mark was only something you were aware of on your return, yes?
Q. Prior to you going out for that hour and a half, what you are saying to the jury, is this right, that there was nothing noticeably wrong with Q?
A. Yeah, I just remember thinking at this time of the morning he can be difficult, he can be distressed and he doesn't always drink his entire milk bottle, so at that time I was just thinking, yes, this bump happened, but it …
Q. Yeah, no …
A: It …
Q. Answer …
A. Wasn't …
Q. The …
Q. …at the time, yeah, when you went out, there was nothing notably differently wrong with Q?
A. Not that I can remember."
"Q. So you're pretty sure, though, aren't you, in your own mind that whatever happened at 4 o'clock in the morning wasn't what had caused Q to behave in the way that he is now? In your own mind, you're pretty sure about that, aren't you?
The Mother's evidence about 22 September
"I find it very surprising that the mother did not observe during the morning that her baby was unwell. On the father's account, Q was manifestly demonstrating symptoms of encephalopathy and it is in my mind very difficult to understand why the mother did not realise that something was wrong."
My conclusion was as follows:
"Having considered all the evidence however, I find that the explanation for this is that she simply did not pay sufficient attention to her baby that morning. On this point I accept her account that she did not look at the baby before she went out because she was in such a rush and did not pay much attention."
- "At this time he was making small noises, not crying or anything, just sort of cooing."
- "He's making noises and things. I picked him up [to feed him] but he seemed to have absolutely no interest."
- "I was holding him and he was sort of like half, he was sort of closing his eyes but just sort of drifting so I thought oh well, if I put him back down I'm sure he will go back to sleep."
- "I remember hearing Q making whimpering noises and I went to make a bottle for Q."
- "I picked up Q and gave him a feed … but he would not take anything.
- "I noticed a slightly red rash in the centre of his forehead which looked like dry skin that he had had before."
- "I couldn't hear him that clearly…. I knew he was crying because the monitor was going off."
- "I couldn't say for definite whether the cry was normal. It didn't seem unusual to me."
- "I picked him up and gave him a cuddle. At this point I think Q gave a sob like a baby sob."
- "When I put Q down he was making small noises but not actually crying, nothing memorable."
- "I tried to feed him for a few minutes but he didn't seem interested. He didn't look distressed and he wasn't crying."
- "Q was not fully crying but enough like cooing and stuff that you could hear him."
- "I tried to give him some milk but he didn't really want it."
- "Q was not visibly upset nor screaming loudly."
- "I picked Q up and he was okay so far as I was aware."
- "I put Q back to bed and wouldn't have done so if I had many major concerns about his presentation." .
- "Q is in his bouncer chair thing. It looks all right. It wasn't anything out of the ordinary. I was popping in and out at the time."
- "Before I left I didn't get Q out of his bouncer cos he looked pretty comfy."
- "He was cooing, patting his -- he had those things that like hang on the bouncer so he was sort of playing with them, like."
- "I held Q when I first went down and had a cup of tea … and he seemed fine"."
- "The swelling to Q's head felt weird when I came back from counselling but not in the morning."
- "I got up and found the father in the lounge on the sofa and Q was in his bouncer chair. I remember the father trying to feed Q and he did not want too much."
- "I don't think I held Q at all that morning."
- "I didn't remember any strange noise while I was there."
- "I wouldn't have been able to see Q's eyes but I don't remember seeing anything strange about, like how late in the day he changed colour."
- "Q made occasional sounds but he certainly wasn't screaming constantly or anything like that."
- "Q was upstairs in the bouncer in the bathroom with me for 45 minutes. He looked asleep."
- "Q might have made a couple of sorts of cry throughout the whole period but I don't remember him crying loudly or anything like that."
- "I brought Q downstairs when I came back down."
- that Q was in his bouncer,
- that she thought she moved it around with her but was not certain
- that she did not think she had tried to feed him – she thought that he was asleep, or "looked half asleep at the very least".
- that she did not remember if he was making any strange noises.
- I don't think I paid him attention. I'm rushing around. I've less time than usual. Showering was always a very long event. I usually take 45 minutes in the shower."
Evidence about the rib fractures
(1) Dr Watt's evidence about the timing of the earliest rib fracture;
(2) Dr CA's evidence about the possibility that the blood seen on the bib and according to the hospital note in the baby's mouth could have been caused as a result of compression of the chest;
(3) the evidence of Dr Newman, which was available before me at the earlier family proceedings, that the subconjunctival haemorrhages sustained by Q in September, seen in September, and found by this court to have been attributable to the mother, could have been caused by compression of the chest and/or squeezing, i.e. the same mechanism as postulated by Dr CA as a possible cause for the blood seen on 7 August;
(4) the evidence of the mother's stress and frustration over that weekend as demonstrated by the text messages highlighted by Mr Ekaney;
(5) the fact that the mother was alone with Q overnight between 5 and 6 August;
(6) the fact that the mother did not go with Q and the father to hospital on 7 August;
(7) the mother's subsequent behaviour which Mr Ekaney and Mr Wilkinson characterised as an attempt to distance herself from Q so that any injuries found were attributable to father.
(1) Although the blood on the bib and in the mouth seen on 7 August is consistent with chest compression as Dr CA described, it is not diagnostic of that. There are other causes of bleeding from the mouth, including direct injury to the mouth itself. So far as I am aware, chest compression was never suggested as a cause of bleeding at the time of the hospital admission.
(2) The blood was seen at the conclusion of a period when the child had been with the father.
(3) Both parents expressed a degree of frustration about Q in text messages during that weekend. The father, according to the mother, sent messages while he was out with Q at or around the specific period where the bleeding occurred.
The conviction and acquittal
"Perhaps the most fundamental thing that has changed in the evidence is [the father's] acceptance in his evidence that the 4 am incident did not cause the injuries; that his evidence about Q's behaviour that day was conflated in his interview, and in his explanation to the doctors (necessarily conflated the Crown say because he was trying to avoid spilling the beans that [the mother] had been alone with Q for an hour and a half); and thus, having finally come clean about that, that he was only aware of Q's deterioration in health once he returned from university.
Some of that evidence had been given in the family proceedings but was not evidence in the criminal proceedings until given in court.
That evidence [the father] now gives 'fits' with the evidence given by Dr Richards in relation to how the jury can judge the likely timing of the injury from the change in Q's behaviour, which also fits with the evidence given by [the mother] of Q being okay that morning. The cumulation of evidence therefore points to the facts/reasonable inference that Q had not been injured before the father went to university.
With that change of evidence, the 'lie/omission' told by both [the father] and [the mother] in relation to [the mother] being in the flat on her own with Q, the Crown would say can only have been made by them for one reason. It does not seek to exonerate [the father], but it does seek to exonerate [the mother]. The question that we pose to the jury is 'exonerate from what?'
Until [the father] accepted that the 4 am incident he described was not the cause, and until he gave more detailed evidence about Q's health, the Crown could not realistically exclude him as being the culprit. We now believe we can. With respect to [the father] there is in the Crown's view no longer a realistic prospect of conviction. Further to that we would add that the way both gave evidence, and in particular [the mother's] answer to questions both in respect of the incidents on 1 and 2 September and 22 September (and generally) has had an impact on the decision we have taken. Neither have ever been tested to the degree that they have been during this trial.
Whether the Crown is right or not is, of course, ultimately a matter for the jury on the evidence they have heard."