London, WC2A 2LL
B e f o r e :
| A COUNTY COUNCIL
- and -
(4) THE CHILD
(via his Children's Guardian)
MR M. TWOMEY QC and MS A. DIXON appeared on behalf of the First Respondent.
MS N. CARPENTER appeared on behalf of the Second Respondent.
MR R. HOWLING, QC and MS L CHEETHAM appeared on behalf of the Third Respondent.
MS A. BROOKS appeared on behalf of the Fourth Respondent.
Crown Copyright ©
MR JUSTICE NEWTON:
1. Two complete transverse fractures of the posterior ribs L6 and L7, thought to be between one and three weeks' old, and therefore sustained between 11 and 25 September.
2. A fracture of the anterior rib thought to be between three and seven days' old, and therefore sustained between 26 and 30 September.
3. A non-displaced metaphyseal fracture of the distal femur CML, thought to be between three and seven days' old, and therefore sustained between 26 and 30 September.
4. A partially non-displaced fracture of the tibial diaphysis thought now to be between the ages of five and fourteen days' old, therefore between 18 and 28 September. That was not visible radiologically, but periosteal reaction identified the injury.
5. A resolving small proximal fibula CML, again between five and fourteen days' old, sustained between 18 and 28 September.
All those injuries were observed radiologically save for the anterior rib fracture which was only identified histologically.
THE LEGAL PRINCIPLES
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 2013 UKSC and Re BS 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 v R 2013 EWHC 3064 (fam). As HHJ Bellamy said in Re FM (A Clinical 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 if 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.
vii. I have particularly in mind the words of Dame Butler-Sloss P in Re U: Re B  EWCA Civ 567,  Fam 134, derived from R v Cannings  EWCA 1 Crim,  1 WLR 2607:
1. The cause of an injury or episode that cannot be explained scientifically remains equivocal.
2. Particular caution is necessary where medical experts disagree.
3. 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) EWFC3 referring to "story creep".
x. Very importantly as 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"
The expert evidence:
1. He described the fractures, both the sixth and seventh posterior ribs. He did not, as I have indicated, identify the anterior fracture. He thought that those fractures would have occurred by manual compression, (the most likely cause. ) CPR was a possibility but unlikely. In fact, he gave me the striking figure that CPR can compress the ribs by as much as 50 per cent. His conclusion was based on the periosteal reaction of the fractures, which were not caused therefore on the day of death.
2. In relation to the leg injuries, he concluded that they had been caused by a pulling or a twisting force, that they could have occurred together, later indicating that he thought that they probably did. In relation to both those sets of injuries, there would be obvious signs of pain.
3. In relation to bone density and osteogenesis imperfecta, and dentinogenesis, he advised that those conditions were difficult to diagnose radiologically; that the fractures, when sustained, would have been the result of some trauma; so far as osteogenesis is concerned, radiologically the bones might be normal , but the injuries would still require an incident. In conclusion he did not rule out mild osteogenesis imperfecta, but did not consider it to be a factor in this case. I bear in mind that his evidence is positioned in the context of the other expert evidence , but I have focussed on his own conclusions and professional judgment.
4. The thrust of his evidence and of his conclusions were clear, and he brought together, it seemed to me, the differing factors in a natural, rational, coherent, and balanced way, upon which I rely.
5. Whilst he did not exclude osteogenesis imperfecta, either radiologically or in fact clinically, and was open-minded about it, a factor which seemed to strengthen his evidence, nonetheless he was clear that it was not a matter which the court in the balance of its considerations needed to consider.
6. He was open-minded, but maintained his conclusions.
The approach of the medical witnesses
Conclusions of the medical evidence
1. I have greater difficulty in adopting a conclusion that the medical findings are in whole or in part as a result of some unknown or unidentified condition or combination of conditions. They were not ruled out, but the collective view was that H did not suffer from them;
2. I do not accept that H's condition arose from some identified medical condition;
3. I have greater difficulty in adopting a conclusion that the findings are as a result of osteogenesis imperfecta;
4. There is no other known or overlooked condition;
5. H's condition is not as a result of some unknown pathology;
6. Finally, that H had normal bones.
1. I conclude on the clear evidence of the expert evidence, which I accept, and which is not in conflict, that the anterior and posterior rib fractures are distinct, and could not have occurred at the same time;
2. The leg injuries could have all occurred at the same time;
3. The leg injuries could have occurred at the same time as some of the rib fractures;
4. Therefore, there have been at least three events on at least two occasions;
5. Finally, I do not exclude the possibility that the six injuries could have occurred on six separate occasions;
Dropping, the car seat & collision with railings
1. The medical evidence points to a unified diagnosis of trauma;
2. The mother was the primary carer, assisted occasionally by her own mother;
3. There is no reliable reported mechanism for any of the injuries;
4. There is no explanation as to how H might have sustained the injuries both to the ribs and the twisting injuries to the leg;
5. The mother has been deceitful and delusive in her behaviours, and in particular in relation to: drugs, drink, men and indeed in relation to others - both the Local Authority and her own mother. I bear in mind the difference in her presentation the day she saw the doctor and the social worker.
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