England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEEDS DISTRICT REGISTRY
(Mr Justice Coleridge)

		Royal Courts of Justice Strand London WC2
		29th May 2002

1. LORD JUSTICE THORPE: D B is 31 years of age. When she was about 22 she gave birth to her daughter, Y. She and the newborn went to live with her mother, and there she cared conscientiously for her daughter until moving into her own home in 1999. There were no criticisms of her standards of care for Y, either prior to or after that move. It seems that she had formed a relationship with a man named D C, of which we have made little investigation at this hearing. A son was born to them on 8th November 1999 named K. It seems that the couple cohabited at about that date. But at some time thereafter they separated, making way for the development of a relationship between D B and K R which commenced in the spring of 2000. It seems that a sexual relationship developed between them quickly and that by September 2000 K R was more or less living full-time with D, although he maintained his own home in a neighbouring town.
2. There is no doubt at all that K first suffered serious injury in that month of September 2000. He was taken to the local hospital on 20th September because his mother was worried about possible injury to his right arm. She said that he had screamed in pain earlier that day when picked up. He was examined by a doctor at the hospital who did not detect any treatable injury. He was seen on the next day by the mother's general practitioner, who again carried out an examination without detecting any treatable injury. It was not until he was seen again on 27th September that an X-ray revealed a healing fracture of the arm, and that was put into plaster on 4th October.
3. Thereafter K suffered an appalling series of injuries which were fully detailed in the judgment of Coleridge J which concluded the preliminary issue hearing. The injuries were medically recorded and identified numerically 94 in total. They consisted of fractures to the right leg; to the ribs; to the left big toe; internal injuries to the liver and pancreas; extensive bruising all over the body; and other internal injuries. It would be hard to draw up a more serious catalogue of injuries to a very young child.
4. The judge made some clear findings as to the date upon which these injuries were sustained. He said in relation to the right arm fracture that it was likely to have occurred in the week of 14th September. Of the fracture to the right distal tibia and the multiple old rib fractures, he found that they were most likely to have taken place in the week of 24th November 2000 - although it was possible that the rib injuries had been inflicted during the previous week. He said that the fracture of the toe, the internal injuries to the liver and pancreas (described as old), the old bruises and the second lot of rib injuries seemed to have occurred in the period between 6th December and, at the latest, 12th December. Then in relation to 14th December, the judge said that K had suffered bruising to his face, further fractures to the ribs and very significant internal injuries. Finally, he considered a particularly significant bruise, which had been given the number 18 on the medical schedule. He said that it was a very important and very visible large bruise in the middle of K's back, for which no explanation had properly been provided. He said that he would return later in his judgment to the dating of that bruise, which was crucial to his findings of culpability.
5. These very serious injuries, sustained in the months of November and December, were neither reported nor treated and the first medical intervention came when K was already dead. He was admitted to the local hospital in the early hours of 15th December, where he was examined by a doctor who subsequently recorded his findings. The coroner's pathologist carried out a post-mortem on the morning of the 15th, and at his first examination he was assisted by the consultant paediatrician from the hospital in the neighbouring city.
6. These very serious and fatal injuries were obviously the subject of police investigation. Statements were taken from both the mother and Mr R, as well as members of the extended family and others who had been in contact with K.
7. Obviously for the local authority it posed a very difficult question as to the protection and management of Y. Although she had been put on the At Risk Register in the immediate aftermath, she was left with her mother and K R pending the initiation of proceedings on 30th March 2001. The local authority's care application was subsequently transferred to the County Court. In April Y moved to live with her maternal aunt, where all acknowledge that she is safe. There she remains.
8. After the transfer to the County Court, directions were given for a split hearing and that was set down before a judge of the Family Division to commence on 4th December. Obviously a good deal of work was done in advance. The local authority marshalled its case, filing statements from other experts as well as Prof Rutty, the coroner, and Dr Ball, the paediatrician. There was a meeting of experts in which broad agreement was reached on all issues. There were no experts instructed on behalf of either the mother or K R, and a series of questions were settled for the judge's determination. They are set out in full at pages 4 and 5 of his judgment.
9. The relationship between the mother and K R apparently ended on 2nd December when he left her home. The judge recorded their position statements at the preliminary hearing at pages 6 and 7 of his judgment. By paragraph 2 of her position statement the mother accepted that K had the fractures and internal injuries as described by the doctors. She said she had no knowledge of these, save for the arm injury for which she sought treatment. She further accepted that K had died as a result of non-accidental injury inflicted on him in the hours before his death. She continued that she did not know when the injuries were sustained. She did not inflict them and she did not see anyone else inflict them. She denied that she failed to protect K, as she was unaware of the risk to him. She said that she accepted, in view of the medical opinions as to the timing of the injuries causing death, that K R must be the perpetrator of the injuries to K. She said that they had separated.
10. In K R's position statement he accepted that K had suffered non-accidental injury in the four weeks prior to his death. He continued that he was not in a position to allege that any particular person was responsible for any particular injury. He said that his understanding was that the local authority acknowledged that other people had care of K in the four weeks prior to his death to a greater degree than himself, and he did not understand why the attack on him was not equally mounted against them.
11. On those position statements the findings that the judge was asked to make, as recorded at pages 4 and 5, were really inapt. Of course they were settled at an earlier stage before the position statements. But once the position statements had been filed, there were really only two issues for the judge: who was responsible for the perpetration of these appalling injuries and who was responsible for failing to protect K from these appalling injuries?
12. The trial before the judge lasted, as we are told, 11 days for evidence and two days for submissions. He delivered his judgment on 20th December. He came to the clear conclusion that K R was the perpetrator of all injuries, that the mother could be exonerated as a perpetrator, and furthermore that she had not failed to protect K at any stage during his life. He was critical of the mother's continuing relationship with K R, certainly after the spring of 2001 when she had sufficient expert evidence to demonstrate that he must have been the perpetrator.
13. This was of course for the mother an extraordinarily satisfactory outcome. For the whole purpose of a preliminary issue hearing is to clear the ground to enable the judge to embark upon his crucial and fundamental task to determine the future of the child in respect of whom the care order is sought. That child was Y, and all the investigation in relation to K was but preparatory to a determination of what steps had to be taken to protect Y to ensure that she never suffered the appalling injuries that her half-brother had suffered.
14. But the outcome was profoundly unsatisfactory to all the other parties. K R sought permission to appeal. His application was founded on the criticism that the judge had arrived at the conclusion that he was the perpetrator by a process of elimination. However, that criticism could not be made good. Since although that was the judge's starting point, he had gone on to make findings and to express conclusions which fully supported the indication given to him by the process of elimination. So Mr R's application was provisionally refused on paper, with a direction that if renewed it should be heard at the same time as the local authority's application for permission to appeal which was more or less contemporaneous.
15. The local authority's application was based on the criticism that on the evidence it had simply not been possible for the judge to exclude the mother as a possible perpetrator, and even more strong was the criticism that the judge could not possibly have exonerated her from a failure to protect. That application was directed in for oral hearing on notice to all parties. Subsequently the guardian ad litem filed a respondent's notice in which he comprehensively and lucidly advanced similar criticisms to those to be found in the local authority's grounds and skeleton argument.
16. At the hearing it was agreed at the Bar that K R should go first. Mr Collier QC on his behalf took us through an analysis of the judgment below. He criticised the judge for having effectively reached the conclusions he did on a comparative assessment of the respective personalities and capacities of the mother and K R. Mr Collier's prospects of shaking the judge's conclusion that K R was the more probable perpetrator had really negligible prospects of success, and he conceded that his real ambition was to arrive at an outcome in this court which simply left open the question, which of the two was responsible for the perpetration of injury.
17. Mrs Armitage, for the local authority, filed a comprehensive skeleton argument which ultimately she was able to fully cross-reference to the transcripts of the evidence below, and particularly the transcripts of the expert evidence. Her submission is essentially that it was simply not open to the judge to exonerate mother, both as a perpetrator and as a protectress, on the basis of the lay evidence when the medical evidence was all one way.
18. She reminded is that there was no challenge to the medical findings as to the injuries, and only limited challenge as to the dating of those injuries. The area of challenge had been as to the symptoms and as to the presentation of K in the weeks preceding his death. The judge had not obviously had to analyse the medical evidence in detail, as so often happens when the prime issue is whether the injuries were accidental or non-accidental. But when he came to review the evidence of the mother and other witnesses who spoke as to K's behaviour and appearance in the relevant weeks, he had to balance that lay evidence against the detailed critical analysis of the expert evidence. She relied heavily on the decision of this court in the case of Re B (Split Hearings: Jurisdiction) [2000] 1 FLR 334.
19. Mr Hayes for the guardian then made his submissions. He had filed in advance a comprehensive skeleton argument, which he too was able to cross-reference during the course of the hearing to the transcripts.
20. Finally, we heard from Mrs Cahill for the mother, who sought to support and uphold the judge.
21. Before I come to consider these submissions, I would like to record the very high standard of advocacy that this case has received. All of the counsel who addressed us filed skeleton arguments of the highest quality, and all of them addressed the court succinctly and tellingly. I would like to pay particular tribute to Mrs Cahill's submissions on behalf of the mother. They were extremely carefully prepared and extremely profoundly thought out. They demonstrate the capacity to make even the most difficult of cases attractive and persuasive to the ear of an appellate court.
22. But in the end it is on the submissions of Mr Hayes for the guardian that I intend to concentrate, partly because of their clarity and partly because, of course, he is not directly either an applicant or a respondent within the proceedings. He represents the child and has thus an objectivity and an independence.
23. Mr Hayes begins by recording the background and he then emphasises the importance of the decision for the child he represents, Y. He then reminds us of the range and quality of the expertise: Prof Rutty, the pathologist to whom I have already referred, Dr Ball, the paediatrician, and in addition Prof Helen Carty, the consultant paediatric radiologist, Dr Keeling, the consultant paediatric pathologist, and Dr Sprigg, another radiologist.
24. He then records the judge's findings on that evidence, which I have already recorded. He then comes to what is his fundamental submission. On those findings, the judge's conclusion that K had first an unusual and mixed reaction to pain and an unusual pain threshold (a finding made at page 34 of the judgment) and his conclusion that the bruise numbered 18 was fresh and therefore not evident to the mother prior to K's death (page 37 of the judgment), both conclusions were contrary to the expert evidence. He then continues that the judge's subsidiary findings that the mother's conduct in September was a cause of no concern and that the mother was reasonable in not having visited the doctor in the period from mid-November to mid-December were inconsistent with the expert evidence.
25. Mr Hayes made good those submissions in relation to K's unusual and mixed reaction to pain. His essential submission was that there was not a word of medical evidence to support that proposition, and indeed the lay evidence in its totality showed that he was just an ordinary little boy who screamed with pain (as described on 20th September) or who, when suffering ordinary childhood illnesses such as colic as a baby or when suffering ordinary childhood experiences such as falling and bumping himself, was always described as reacting in a perfectly normal fashion.
26. The submission seems to me to be well-founded. It was a judicial theory designed to reconcile the judge's confidence in the mother's evidence with the plain and damning fact that throughout this period in which this child had suffered such appalling injuries nothing had been done to obtain treatment.
27. In relation to bruise number 18, this of course is a critical issue of fact in any assessment of culpability and responsibility. It was on any view an absolutely unmissable bruise, right in the centre of the back, of large dimensions and very clear in colouring at the stage of post-mortem. Both Prof Rutty and Dr Ball, examining the corpse with the naked eye, were clear that it was not a fresh bruise. Subsequently there were histological tests carried out which demonstrated the presence of iron in the skin samples, which scientifically corroborated the visual opinion of Prof Rutty and Dr Ball.
28. The judge had from the mother an inconsistent case. She had in her original statements explained that bruise by advancing a non-accidental origin. The experts had rejected that as credible at their meeting. Immediately prior to the trial, the mother simply said that she had never seen the bruise before and it was certainly not there when she had bathed K and put him to bed on the night of his death.
29. For the judge to accept the mother's case, he had to accept what was a fundamental shift and he had to accept a premise that a fresh bruise overlay an earlier bruise, possibly the one that the mother had described in her first statement, and that the presence of iron in the skin samples was explained by the underlying older bruise. That series of propositions was quite simply inconsistent with the expert medical evidence.
30. The judge's finding in relation to the mother's conduct in September is perhaps not so vulnerable to Mr Hayes' attack, since there can be no doubt at all that she did seek treatment for K both at the local hospital and from the general practitioner. There is no doubt at all that she conscientiously pursued the course of treatment that was offered, not only prior to the diagnosis of fracture but thereafter in regular attendance for continuing check-ups. Of course Mrs Cahill says with very great force: how is a mother to be blamed when one doctor twice and another doctor once failed to detect any fracture on examination?
31. The response to that of course from the local authority is that the injury was undoubtedly sustained some significant time prior to the first medical referral, and that the examining doctors were simply not given a full or helpful history. It seems to me that one of the pitfalls in the conduct of an inquiry of this sort is too much to compartmentalise areas of the case. If the September episodes stood alone, then the judge's conclusion would be hard to undermine. But it is very necessary, it seems to me, to view each of these stages in the history in the light of all the others, and concerns that have to arise in relation to later periods inevitably infect earlier periods. Thus had the judge looked at the September history not in its own watertight compartment but in the light of the whole story, it seems to me it would be difficult to reach the conclusion that there are simply no concerns in relation to that period.
32. Finally, I come to the judge's conclusion that the mother was reasonable in not having otherwise visited a doctor. Here Mr Hayes' assault is inevitably stronger. The catalogue of injuries sustained in the months of mid-November to mid-December, excepting the hours immediately preceding death, is extraordinarily extensive and the medical evidence was all one way as to the symptoms that this little boy would have demonstrated, as to his presentation, as to his general well-being. The mother's explanation was, well there was a flu virus going the rounds, so I naturally thought he was just suffering like every other member of the family. Then she said that she had dosed him with an analgesic. Then she said, well, there were points at which I thought of taking him to the doctor, but then he would perk up; and any way what would the doctor have been able to do?
33. That sort of testimony has to be measured against the compelling evidence of the doctors that no child subjected to these injuries could have presented as other than a child in desperate need of medical attention. The response from Mrs Cahill is, well, this is all speculation and it is speculation to be set against the evidence of fact from the lay witnesses. I do not find that persuasive. It is not evidence of speculation. It is expert evidence as to how seriously injured children react and present. It was simply not to be dismissed on the basis that it was speculation. In my view, it simply was not open to the judge to come to the conclusion that the mother had acted reasonably in not visiting a doctor, given the evidence that had been given particularly by Prof Carty and Dr Ball.
34. That really brings me to the relevant authority of Re B, which has more than a passing similarity to this case on the facts. In her judgment Butler-Sloss LJ said this - and all of this passage is of direct relevance to the present case:

"This is a very experienced judge for whom everyone would have the greatest possible respect. But the judge does have an obligation to give reasons why he should set aside the medical evidence, which was strong, in favour of his view that, because the grandmother and the other witnesses were clearly not lying, the medical evidence could not stand. ...

In a case such as this where the expert evidence, and here the expert evidence of the radiologist was all one way, the judge is certainly entitled, if he has evidence that he can rely upon to the contrary, not to accept that evidence. In my view he did not have that evidence in this case. He did not, in particular, have evidence that made the uncontroverted medical evidence logically insupportable. The judge failed to analyse the evidence and give any reasons. The credibility or otherwise of the lay witnesses on the facts of this case, in my view, cannot stand so high as to make the evidence of the two consultant radiologists of no effect."

35. It would need very little alteration to those words to make them of direct application to the present case.
36. Mr Hayes, having dealt with the judge's exoneration of the mother from the charge of failing to protect K, then goes on in his skeleton argument to consider the issue of perpetration. He says, and rightly says, that in determining the issue of perpetration there were these key factors for the judge:

(1) K had suffered very serious injuries on at least four separate occasions;

(2) neither the mother nor K R admitted to injuring him;

(3) neither the mother nor K R provided any explanation that could satisfactorily explain the injuries;

(4) the mother gave evidence that there was no occasion prior to 14th/15th December, apart from a few hours babysitting on 17th November and perhaps one unidentified Sunday morning, when K was left by her in the care of K R;

(5) it was the mother's evidence prior to the night of K's death there was never any occasion when she witnessed K R injure K, heard anything untoward or found K in a distressed state, or showing signs of pain after K R had been in contact with him.

37. He says therefore that this is one those clear cases in which the court is left with no alternative but to say, well, it is one or other, but there is no evidence to show conclusively which. He refers to the decision of the House of Lords in Lancashire County Council v B [2000] 1 FLR 583.
38. Of course in the case of a single possible perpetrator there is no doubt that in deciding whether or not he or she is responsible for a physical assault, the court must apply the civil standard, elevated in accordance with the guidance given by the House of Lords in the case of Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Of course there was evidence of sufficient cogency to lead to the conclusion that K R was a perpetrator. But was there cogent evidence that he was the sole perpetrator of all 94 injuries? In situations like this the trial judge in the Family Division is in a position similar to the position of judge and jury in criminal proceedings. There, when both parents stand in the dock charged with the infliction of injury on a baby, and when their defence is either each to blame the other or to offer no credible explanation, how is it possible to determine which is guilty? The same sort of dilemma faces the judge in a situation such as this, where it is incumbent upon him to apply the elevated civil standard of proof. A degree of heightened cogency is necessary to enable the judge to say that it could not possibly have been the mother. It seems to me that that standard could not possibly have been met given the key factors identified by Mr Hayes in his skeleton argument, particularly the fact that the mother's case was that really there had been no occasion when K R had been alone with this baby, other than the babysitting occasions and, obviously, the hours immediately preceding death when K R was up and about and she was deeply asleep.
39. In approaching these difficult issues the judge had to look at this case in the round. The judge's analytical approach was to consider first whether the mother had herself inflicted any of these injuries, and then to consider whether she had failed to protect. The two issues inevitably infect each other. The judge had to consider a mother who had offered no credible evidence as to the causation of these injuries. In those circumstances, she could not explain how the baby had been injured. He had to consider the issues of protection and perpetration in the round, and adverse findings in relation to failure to protect were inevitably relevant to the findings as to perpetration.
40. The judge was of course entitled to make his assessment of the mother, and in making that assessment to give great weight to the record of her excellent care for Y and to the supportive evidence of her immediate family and the childminder. But in the end how could he view her as being without blemish when he came to the all important disposal hearing, given her failure to offer any trustworthy explanation as to causation?
41. He dismissed the evidence of K R, saying he was quite satisfied that K R had failed to tell him the whole story. It seems to me that it is impossible to separate the mother from K R in that regard. If K R had not told the whole story, how had the mother told the whole story? That was a fundamental flaw in her presentation, and in the judge's acceptance of that presentation I think the judge fell into plain error.
42. So, for all those reasons, I am quite satisfied that the judge was plainly wrong and that the appeal of the local authority must succeed.
43. It seems to me unfortunate that an order was not drawn to reflect the answers that the judge was giving to the questions that were laid before him for preliminary trial. It is a shortcoming that this court sees regularly in appeals brought against the outcome of preliminary issue trials. It is important that the issues to be determined should be carefully drafted and generally set out in the order that directs the preliminary issue trial. The order drawn at the conclusion of the trial should demonstrate the judge's conclusion on each of the specific issues directed. It is understandable why in this case that did not result, since the questions posed in advance of the hearing were largely overtaken by events, as I have already said. Following the filing of the position statements there were really only two questions in relation to K's death. First, who perpetrated the injuries recorded by the experts? The answer to that can only be, "Either the mother or K R". The court is unable to determine to the requisite standard which. Second, who failed to protect K from these injuries? Again, there can be no doubt that the mother failed to protect. K R is not in any way involved in the disposal proceedings which will follow. He is the more probable perpetrator in relation to most of these injuries. But the important factor that the judge must bring into the foundation for the disposal hearing is that he cannot disregard the risk that the mother presents as a primary carer for either Y or a future child.
44. Of course the evidence establishes that as a matter of character, personality and predisposition, all the stigma attaches to K R. Of course it is rightly pointed out that all the evidence in relation to the mother's character, predisposition and personality is the other way, and that is a factor that the judge will take into account. But it cannot be a determinative factor, since her personality and conduct when not in relationship with K R might be of quite a different character. By that I mean that her personality and conduct when not in relationship with K R might offer a poor guide to her conduct when in such a highly-charged relationship. That it was such is suggested by her difficulty in separating from him. So the judge when he comes to the disposal hearing will obviously have to consider anxiously the obvious attraction of rehabilitation against the question mark which certainly attaches to the mother, at least during that period when she was in cohabitation with K R.
45. But all those issues are for the judge and it is not for me to express any view as to how these difficult questions will be resolved. Our only function is to settle the history, as it must inevitably be settled, on the basis of the comprehensive and compelling medical evidence that the local authority laid before the court last December.
46. I would allow this appeal.
47. LORD JUSTICE RIX: I agree and only add a few brief remarks of my own because of the importance of the issues to the parties.
48. In my judgment, the judge erred in two important respects. The first is that he set aside critical aspects of the uncontroverted evidence of a body of distinguished experts. The effect of their evidence was that K would have been as susceptible to pain as any normal child. There was evidence from the mother which supported that expert evidence as to what was to be expected. K was a normal boy who cried when he hurt himself. The experts' evidence was also that the bruise on K's back, bruise number 18, was not a fresh bruise as of the night of his death. In the light of that evidence it was highly likely that the mother must have known more of K's injuries, including of that bruise, than she was willing to accept in her evidence.
49. The judge nevertheless accepted her evidence. In order to do so he had to make two critical findings. First, he found that:

"... [K] has an unusual and mixed reaction to pain, an unusual pain threshold ..." (page 34C)

50. Secondly, he found that bruise number 18:

"... was not visible prior to [K]'s death, that it was indeed more or less fresh. It is one of those exceptional cases where the colour of the bruise does not tell the whole story and where the histology may be distorted by virtue of there having been a previous bruise at the same site ..." (page 37E)

51. In my judgment, those findings were not reasonably open to the judge on the uncontroverted medical evidence. Each finding involved the judge in accepting what he himself described in the one case as an unusual situation and in the other case as an exceptional situation. There was nothing in the medical evidence to justify such speculation.
52. The second important error was in failing to give proper effect to the consequences for the mother's evidence of the expert medical evidence. Once it has to be accepted that K had a normal reaction to pain and that bruise number 18 was there before K was put to bed that night, then it is impossible to regard the mother as a witness who was frank with the court. She could not explain the injuries, despite her own evidence that K was alone with K R on only, I think, two occasions. The judge, however, proceeded the other way around. He accepted her as a witness of truth and then proceeded to make his findings about K's pain threshold and the freshness of the bruise. He did so despite himself finding that even after her child's death the mother had, until very shortly before the hearing, been unable or unwilling to terminate her relationship with K R. The judge was therefore forced himself to find that:

"... her evidence made it clear to me that she has yet to come to terms in her heart with the facts as I have found them to be." (page 40A)

and also:

"She has to make a stark choice between her own emotional satisfaction and the best interests and care of her child." (page 40D)

53. In these circumstances, I am driven to the conclusion that the judge failed to apply the sound advice of the President, Dame Elizabeth Butler-Sloss, in Re B (Split Hearing: Jurisdiction) [2000] 1 FLR 334 at 340, where she said that:

"The credibility or otherwise of the lay witnesses on the facts of this case, in my view, cannot stand so high as to make the evidence of the two consultant radiologists of no effect."

54. In my judgment the judge was compelled on the expert medical evidence to regard the mother's evidence with the most considerable scepticism. Once it is so regarded, it becomes impossible, for the reasons given by my Lord, to exonerate her entirely, in the way the judge did, from all participation and, a fortiori, from a failure to protect K. As it was, the judge said that he was only just able - and he emphasised that word "just" - to find that the mother's protection did not fall below that of a reasonable parent.
55. In conclusion, in full agreement with my Lord's judgment, I too would commend counsel's advocacy and their great assistance to the court in this unhappy case.
56. LADY JUSTICE ARDEN: I agree with both judgments. There is no need for me to add anything.
ORDER: K R's application for permission to appeal granted; the local authority's application for permission to appeal granted; the appeals are allowed to the extent indicated; the papers to be released to an expert to be instructed jointly, with the lead solicitor to be agreed; if the expert is not agreed, then as directed by the District Judge at the hearing in two weeks' time; no order for costs, save for detailed assessment. (Order not part of approved judgment)