ON APPEAL FROM MEDWAY COUNTY COURT
HER HONOUR JUDGE CAMERON
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
|- and -
Miss Diana Murphy (instructed by Medway Council Legal Services) for the 1st Respondent
Mr Lee Arnot (instructed by Pearsons Solicitors) for the 2nd Respondent
Mr John Swales (instructed by Kingsford Solicitors) for 3rd Respondent
Mr Peter Thomas Pedder (instructed by Bassets Solicitors) for 4th Respondent
Hearing date : 26th October 2011
Crown Copyright ©
(i) Hand bruising
"raises the obvious concern as to whether the mother was protecting herself from challenge about the unusual nature of them, challenge by a professional, or was protecting somebody else -- potentially, I suppose, it could be said, RH or ML or anybody else. She is, of course, an experienced mother and any comment about the child catching her fingers in the Moses basket ties or in somebody's hair is inherently implausible. I am satisfied that the mother did not ask the doctors where these marks came from, and that she glibly and readily told her own mother an untruth about that."
(ii) Transverse fracture of left tibia
(iii) The nose injury
(iv) The most recent fractures
The medical evidence as to causation, symptoms etc.
"116. His analysis was that on the 3rd November, Lacey had a tibial and metaphyseal fracture already, causing that fractiousness, caused close to that date, and that the femur fracture occurred at 6 pm as he would not expect a baby who had sustained a serious spiral fracture in this way to behave in the way described, being passed around to different people that afternoon, placed in a baby bouncer and so on. That was not consistent in his mind with a baby who had just sustained such a serious fracture. The history did not add up, he felt.
117. Dr. Robinson's other conclusions were these: on a balance of probabilities he considered that the two buckle fractures of the right radius and ulna, no older than about a week, were caused non-accidentally by a blow to the forearm, direct impact, causing a dull ache at the fracture site and the child being distressed for some hours following on from an initial scream of agony. The fracture to the right middle metacarpal is likely to have resulted from an impact by an implement delivered with considerable force in a blow; non-accidental therefore, the little finger said to have been looking black on 28th October 2009 with no history of an event or its aftermath. The injury to the left tibia may have resulted from an impact injury against a hard surface or direct trauma by an adult hand in a classical typical injury seen in child abuse caused by a pulling or twisting action."
"He said that an injured baby will often scream in pain for several minutes after the event and then sob a bit and then cry itself to sleep if comforted and swaddled in blankets. It may well settle reasonably well after the event. When the limb is next moved, there will be further pain and crying. Symptoms may be reduced with Calpol. The carer should recognise that they were handling the infant with excessive and inappropriate force, and that they had caused pain, while not necessarily appreciating that they had fractured a bone. Symptoms over subsequent days, including a baby being described as non-specifically irritable on handling, dressing, bathing etcetera, may be mis-attributed to colic, earache, teething etcetera, as I find occurred here. There would be "a mask of irritability", as he called it. The limb may appear limp or floppy and kicking or weight-bearing as then 7 year old well-built LA attempted to do with L when bouncing the baby on his knee will produce pain."
"138. The tibial damage would not produce pain on the same level as the femur, and he could understand a caring grandmother or other casual observers missing it, as the child would be simply non-specifically grizzly, uncomfortable and irritable on a colic or earache sort of level after a few days. Calpol would take the edge off that. Therefore, for Mrs. Taylor and Joanna Hall, to state in their statements and evidence as they did that the child was not distressed at all and there was nothing wrong with her leg in their layman's eyes, as it were, on the morning of the 3rd does not carry the day with a child who was said over some days to have been grizzly and unsettled.
139. In Dr. Sprigg's opinion, the guilty inflictor of the injuries had left the child for some time to see if it would settle, and had not taken reasonable steps to obtain medical help. He would have expected the child to have displayed pain and screamed out in agony if being passed around, with a nasty fracture and the leg dangling unsupported, to four different people on the afternoon of 3rd November. The fracture could have occurred at around 6 pm that day. He said it all depends on the truth of the testimony."
The history of 2 and 3 November: preliminary matters concerning the witnesses
The events of 2 and 3 November
"said that she may be wrong and M may be right, but the Court was left with the clear impression that the mother had been notifying her sister of something wrong with the leg before 7.00 p.m. that night, and either when she was waiting for the boys to come out from their party or once back at home that conversation occurred, because certainly RH does not recall hearing her make that call at all. Later, it can be seen that her sister telephoned her at 9.18 from the hospital and told her what the situation was."
The judge's conclusions
"…having spent many many hours and days, indeed, exhaustively analysing all the accumulated evidence in very great detail, and having had the opportunity alone of listening to and watching all the witnesses and gauging their characters and credibility and gone on to decide who did this"
she had "no hesitation whatsoever" on a balance of probabilities in identifying M as the one who injured the baby.
"507. I detected no hint at all that RH was the sort of man who would deliberately squeeze or grip a little child's hand or fingers such as to bruise them, let alone would set about yanking the baby's limbs during the short periods of time when he was with her. I received no sense or credible evidence whatsoever that he was capable of harming a young baby. He was a fairly useless but harmless man, if I can call him that, who was perhaps scared of handling this rather sicky baby and would not suddenly be deliberately cruel or violent to her."
"speculate and seek to find that his addiction had returned, such that at the material time he might have been suffering from the classic long-term effects including aggressive behaviour, mood disturbance, irritability, paranoia, cravings for more of the drug or anything else" (§512)
She recorded (§512) that in any event his evidence was that when he was taking it he did not have a "come down" but just felt a bit tired.
"She had the proximity, opportunity and motive in the sense that she was very tired, cooped up with a very young baby who was difficult to settle at night on several occasions, and with a new man whom she wanted to keep interested and happy."
"probably not one or two explosive events by a person in a fury, rather it was likely to be much more subtle and insidious than that, as can be seen from the bruising on the hand dating back to day 17 of [L's] young life".
"It must not be forgotten….that L seemingly started receiving her injuries and displaying those marks on her body as early as 17 days old, when RH really was on the scene very little at all"
"511. It is not to be glossed over that this baby was reportedly unsettled over the rest of the weekend, 1st November, and on the Monday too was seen to be grizzly and unsettled and was stated by the mother to be unwell on the Tuesday morning, 3rd November itself. "
And, referring I think to Monday evening telephone call when RH heard L crying, she said:
"516. This provides real support, in my judgement, that the child, already with the older tibial injury, according to the medical evidence, could have sustained the other more recent injuries during one over-reaction by her carer, most probably on the Monday night or the early morning on the Tuesday, when the mother was perhaps over-tired and overwhelmed, alone in the house with her bar the boys and possibly ML sleeping downstairs."
"517. Alternatively, the damage could have been done during a resentful twisting of her limbs during rough handling at the bath time on the Tuesday evening, as certainly two of the medical experts believed it might have done."
"Within a few minutes [of M leaving at 2.50 p.m.] [RH] has a very distressed child on his hands, whom [JH] hears crying over the 'phone in a way which upsets her.
519. I find that this may be because the leg, already broken, is flexed and painful while the baby is held up over his shoulder, as demonstrated."
"I am satisfied, therefore, that there is a real probability and a strong likelihood that, on certainly two separate occasions in relation to the main injuries, which cannot be precisely dated or timed, but which probably occurred on Sunday 1st November or, more probably, late on Monday 2nd November or early on the Tuesday 3rd November and/or at bath time that evening because the child had been said to be unwell that morning by the mother to [KS], and on an earlier occasion that the mother in a tired, emotional and perhaps confused state dealt with her baby in a way which she would have known was not appropriate and which was likely to cause her child harm and did so."
i) M's "pat and far-fetched explanation" to GM between 6.30 and 7.30 on 3 November that L had dislocated her leg on the baby bouncer, which the judge considered was "very likely a swift fabrication concocted between her and ML when they both saw upstairs that the leg looked worryingly floppy" (§523).
ii) The telephone call to JH at 6.42 p.m. whilst M was waiting for the boys to come out of the party or when they got back after the short car journey (§524).
iii) That L seemed to be nervy, fractious and whingey at home but different elsewhere when handled by loving confident competent people (§525) and that L's needs did not appear to have been the main focus of M's loving attention which was instead directed to RH (§526, 527, 530).
iv) M not being keen to bath L on 3 November (§528).
v) M not responding to L's scream when she was bounced by OA on the afternoon of 3 November whereas JH did (§528 and 530).
vi) M not suspecting or seeking to blame RH until the actual hearing and continuing in a relationship with him for 10 months, which the judge found was because she knew that she alone was responsible for hurting L (§541 and §350).
- Further "strands leading inexorably to M damaging her child" were highlighted at §537 which I need not set out here.
The arguments advanced on appeal
- For the most part, all parties other than M supported the judge's analysis of the evidence and findings of fact. The one exception to that is in relation to the femur fracture which both the local authority and F submitted the judge may have thought occurred earlier than in reality it must have done. The local authority's position derived from the radiological evidence which (if precise) narrowed the timing of the injury to a 24 hour period commencing with the early evening of Monday 2 November making it unlikely that the femur fracture was caused on the Sunday evening as the judge may have thought. The local authority submitted that whilst the judge may have overlooked that feature of the radiological evidence, it had no significant impact on her overall findings. F's position was based on the symptoms that would be expected in association with a femur fracture. If this court took the view that the judge had concluded that the femur fracture was likely to have been caused before Tuesday 3 November, then F accepted that that was against the weight of the evidence. However, he too submitted that any such error was not fatal to the integrity of the judgment as a whole and in particular to the judge's conclusion that M was solely responsible for L's injuries.
- It does appear to be highly unlikely that L had suffered the femur fracture by the time GM saw her on the morning of 3 November given that the evidence leads one to expect that L's discomfort from that particular injury would have been such that GM, handling L as she did, would inevitably have noticed it and remarked upon it. Accordingly, in so far as the judge thought that there could have been one over-reaction by M on the Monday evening or in the early morning of Tuesday causing all the more recent injuries (§516), it is probably correct to categorise that as against the weight of the evidence. If the judge had gone so far as to make a finding that all the injuries (or at least the femur fracture) were present before GM saw L on Tuesday, such an error may have been capable of undermining her findings overall because it would have pointed her towards M by virtue of the fact that the injuries would have been inflicted when RH was largely not around. However, not surprisingly given the state of the evidence, the judge said a number of times that she was unable to be precise about the timing of the recent injuries and she made no specific findings about it. Her consideration of who was responsible for them was by no means tied to a particular time frame and she set out herself (§517) the alternative that the damage was done during rough handling at bathtime on the Tuesday evening whilst at §539 she appeared to be considering a third possibility, namely that the more recent injuries were inflicted in two stages, the possible timing of which included late Monday/early Tuesday and/or at bath time on Tuesday. No doubt the two stages that she had in mind were the infliction first of the injuries except for the femur fracture (or some of them) leading to the child being out of sorts on the morning of 3 November and secondly of the more acutely painful femur fracture. The medical and other evidence permitted these permutations and I note also that M's counsel conceded in his skeleton that it was proper for the judge to say at §138 that GM and JH would not necessarily have noticed the less painful tibial injury on the morning of 3 November. I therefore accept the submissions of the local authority and F that even if one of the possibilities as to timing that the judge entertained was not in fact feasible, that did not undermine her conclusions.
- Counsel for M very sensibly confined his submissions to what he described as the six better points that he wished to make in support of M's appeal. They were all designed to establish that RH was a more likely candidate than M to have caused L's injuries.
- The first point that he made concerned the timing of the November injuries and built on the improbability of L having sustained the femur fracture prior to parting company with GM at the end of the morning of 3 November. Counsel submitted that the evidence was such that the judge should have found that RH injured the baby in the period during which he looked after her whilst M was away collecting the boys from school that afternoon of 3 November. He sought to focus attention in particular on the 18 minutes between M leaving the house and the first telephone call between her and RH, during which RH reported that L had been sick. It was during that telephone call that JH, who was standing beside M, could hear L screaming in a way she had not heard before. Counsel relied also on RH's account of the baby's eyes rolling during this period (§113 and §460) which Dr Robinson thought a most unusual sign which showed the baby was very distressed. He also pointed out that it was when M and JH returned with the boys that JH heard the dreadful scream from L when she was bounced on OA's lap (§263). In addition, he relied on RH having said in his December 2010 statement that he only had sole care of L for 30 minutes at most. He submitted, as his second main appeal point, that the judge should have classed this as a deliberate lie by RH told in order to protect himself by reducing his opportunity to cause L's injuries and therefore indicative of guilt.
- The judge's findings about this period of time presented an obstacle to counsel's arguments. The judge did not ignore the points counsel made to us but dealt with them in the light of her own assessment of the witnesses, as she was required to do. She was well aware of RH's lack of candour and the cavalier and unhelpful approach he took in his witness statement when he asserted he had had care of L for no more than 30 minutes. However, at §456 she gave her view that RH's account of what he did whilst waiting for M to come back from school "certainly does not sound anything like the aftermath of a man who has lost his temper with a young baby, or dropped her" and she said that she did not find that RH had "the resourcefulness or motive to lie about all of this". She asked pertinently why, if RH had lost control and hurt the baby, he would have wanted M to come home as quickly as possible (§459), acknowledging that panic and fear were possible explanations but setting out her view that RH was frightened at the ferocity of the crying and at his inability to settle L, coupled with disliking the vomit.
- I thought that a further possible difficulty with the submission that the femur fracture had occurred at this time was M's own evidence about the period as recorded by the judge (§348). It was to the effect that L was already screaming when she left the house and also crying when she came back so, as the judge recorded it, "there was nothing weird there". Indeed, M apparently never felt suspicious that something had happened to L in RH's care until, having exhausted the possibility of osteogenesis imperfecta as the culprit, she finally blamed him during the hearing (§340). I do appreciate, however, that counsel's argument was that the reason for M's failure to spot anything when she returned with the boys from school was that the initial period of 30 to 60 minutes of uncontrollable crying from the injury would have been over. The medical evidence (§109 and 119) was that if L was swaddled, comforted and not moved the pain would lessen and she may fall asleep; in addition, Calpol would reduce the pain. Counsel also submitted that when L was held comfortably with her leg well supported she was alright, as was seen between bath time that evening and the pain being aggravated by procedures at the hospital.
- Counsel's third point related to the nose injury undoubtedly caused to L by RH. He argued that it was wrong of the judge to find that RH's accidental explanation for this was adequate. In fact, he said, the judge should have realised that the injury on the other nostril was not explained in this way and should have taken more account of Dr Robinson's evidence that the nose was a most unusual place and uncommon for an injury and of the Maguire study about the infrequency of accidental injury in non-mobile babies. If the judge had found, as it was submitted that she should have done, that this was a non-accidental injury caused by RH, then that would have indicated that the other injuries were also caused by him, given the unlikelihood of there being two different perpetrators.
- The state of affairs with regard to the possible injury on the other side of the nose was not very satisfactory. The thought that there was further injury only emerged during the last week of the trial when enlarged photographs were produced, too late for the doctors to see them. It is not even clear that the judge accepted there was an injury on the other side because, as I said above at paragraph 11, at one point in the judgment she said that the photographs indicated "possible" damage to the other nostril (§82). Nevertheless, there can be no doubt that she had the evidence of it in mind when evaluating RH's explanation. She also had Dr Robinson's evidence in mind (see §81). It did not bind her to reach a conclusion that the nose injury was non-accidental. Appropriately, she took into account the untruths circulating about the injury and treated RH's explanation with caution but ultimately accepted it. It has not been demonstrated that this was a conclusion that was not open to her on the evidence.
- Counsel's fourth point concerned the judge's acceptance of EM as an impressive and honest witness whose evidence contributed to the picture that the judge built up of RH as peace-loving and unlikely to be cruel or violent to the baby. Counsel submitted that EM was not honest. She was party to the events of 2007 when RH was prosecuted for assault and even on her own account she made the situation out to the police to be more serious so as to enable RH to be treated for his cannabis use. The judge knew this; she set it out at §485. Counsel suggested that EM also lied to the court when she denied that RH had taken cocaine once their son was born. He invited our attention to the transcript of RH's evidence in cross-examination which was that he had a cocaine addiction which counsel put to him was "at a time when you had met [EM] in a relationship lasting seven years" to which he replied "Yes". What the judge recorded EM as saying was that once [their son] was born he never took cocaine again to her knowledge (§487). It will be evident that a comparison of these two pieces of evidence does not demonstrate that EM was necessarily lying. It was also submitted that it was significant that EM had denied there had been any incidents of domestic abuse, either physical or verbal, save for the incident at the end of 2007 whereas RH had told the social worker that their son had witnessed a lot of domestic violence (by which, RH said in court, he meant "a lot of arguing" (G8)). Given the flexibility of the description "domestic violence" these days, it is difficult to draw from this feature anything fatal to the judge's acceptance of EM as a truthful witness either.
- The fifth point advanced on behalf of M concerned RH's demonstrated untruthfulness in connection with his use of drugs. His evidence was that he had not used cannabis whilst with M and witnesses were cross-examined on that basis. It was only some way into the case that he admitted that that was a lie although he continued to maintain that his cannabis use was less than others said it was. The judge had RH's position firmly in mind throughout her judgment, for example referring at §14 to his "frank lies about his taking of drugs", at §253 to the fact that he was clearly lying about being abstinent from drugs for two years, and reverting to the topic again in her conclusions at §538. Counsel complained that this recognition of RH's lies was not sufficient in that it did not take into account that RH continued to lie about the extent of his drug use and also that the judge failed to recognise the significance of his drug taking. He pointed out that RH had told a social worker in the course of a viability assessment at the end of 2007/beginning of 2008 that cannabis affected his moods and that he had snapped and begun smashing up the house at the time of the purported punch to EM which counsel submitted was of significance in indicating propensity to cause injuries to L. Counsel also reminded us that there had been other examples of unpleasant behaviour on the part of RH such as his approach to GM on Halloween night.
- RH's unpleasant behaviour was recorded in the judgment just as were his lies about drug use and there is nothing to suggest that either was ignored. Even if the judgment itself were to leave any doubt as to the attention paid by the judge to these features (which it does not), one has only to look at the transcript which shows that she herself asked RH a considerable number of very searching questions on diverse aspects of his behaviour, including in relation to his drug taking and his lies about it (see G126 to G139).
- Counsel's final point on M's behalf was that the judge came to a premature conclusion about who was responsible before considering the arguments about it. This was based upon the judge's §350 in which she said that from matters such as M's lack of suspicion on RH and her absence of soul searching, it could be concluded, on the balance of probabilities, that M knew she herself had injured L. It was submitted that not only was this premature, it was also unfounded because M's approach was explicable by her conviction that osteogenesis imperfecta was to blame.
- I am not persuaded by this submission. Whilst a judgment inevitably has to be set out in a linear fashion, the thought processes that underlie it are not linear. The judge would not have begun upon a long judgment such as this one, given at the conclusion of a lengthy hearing, without a very considerable amount of preparation, preparation which is evident in the detail included in the final product and to which the judge referred explicitly when refusing permission to appeal. It was only relatively shortly before §350 (at §294) that she herself observed that her picture of M had been built up from numerous strands and hallmarks as is indeed apparent from reading her judgment as a whole. As well as the matters she identified expressly in §§349 and 350, all those strands no doubt also properly supported her conclusion about the reason for M's lack of suspicions about others. I do not accept that the mere position of §350 within the judgment tells us anything significant about the path of the judge's reasoning or gives rise to any suspicion that it was flawed. What matters is the integrity of the reasoning process in relation to her conclusion and as a whole and that is not undermined in this case by this feature of the geography of the judgment.
- Having considered all the points made on behalf of M, both separately and together, I have not been persuaded that the judge fell into error in the conclusions that she drew from the evidence before her or that she failed to explain them sufficiently. There was, in fact, no shortage of evidence upon which the judge was entitled to conclude that M was responsible for L's injuries. Relevant features were identified in the body of the judgment and in the judge's conclusions, such as M's personality and circumstances, the way in which she focussed her attention on RH rather than L, her lying and obfuscating, the "febrile weekend" commencing on Halloween when M was in charge and the child had been heard crying, M's explanation to GM that L had dislocated her leg in the baby bouncer, the fact that it was not M who was really disturbed by L's crying on 3 November but JH, the matters set out in §537, and so on.
- Counsel for M rightly acknowledged the difficulty in appealing successfully against a finding of fact made by a judge who had heard evidence for many days. There are bound to be matters to which reference cannot be made in the judgment, either because they are hard to describe (such as a sense gained from the way in which a witness gives evidence) or because it is impossible to set out every last detail in a judgment of manageable size. Furthermore, it is not at all uncommon for loose ends to remain at the conclusion of such a hearing and for there to be unresolved contradictions in the evidence. One obvious reason for this is that inevitably not everyone has told the judge the truth.
- Judge Cameron reflected the difficulties in this case when she remarked (§17) that "notwithstanding that wealth of evidence and exploration, this remains a difficult detective story, 'a conundrum', as one Counsel rightly put it". It is the judge who is in a position to assemble the jigsaw of facts and impressions in order to arrive at findings on the balance of probability. As it has not been demonstrated that Judge Cameron fell into error in so doing here, I would dismiss the appeal.
- I agree.