England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		17 July 2014

Mr Justice Peter Jackson:

1. These are care proceedings about R, a boy born on 8 September 2013 and now aged 10 months. His parents, to whom I refer as the mother and the father, are both aged 24. When R was 14 weeks old, his mother took him to hospital, where he was found to have a fracture of his right ankle. No explanation was provided. The parents were arrested on suspicion of causing the injury and R was placed in foster care, where he remains.
2. This is a fact-finding and welfare hearing to determine what happened to R and what orders should be made for his future. It has taken place over the course of two days, during which evidence was given by both parents.
3. The local authority alleges that R's injury was caused by one or other of the parents. Each of them denies this.
4. The burden of proving the allegation remains with the local authority. The standard of proof is the balance of probabilities. All relevant evidence, and not just medical evidence, must be taken into account. Close attention must be paid to the evidence of the parents and their credibility must be assessed. However, the fact that a witness may have lied about one thing does not mean that they are lying about everything.
5. Where it is proved that there has been an inflicted injury, the court should where possible identify the person responsible. If there is no real possibility that a particular person caused the injury, that person can be excluded. If the court cannot identify the person responsible it will have to conclude that the injury was caused by one or other of the people in the pool of perpetrators.

Background

6. The parents met in 2009/10. The father has an eight-year-old child by a previous relationship. Both parents work, the mother in a medical centre and the father in an early-morning job. They lived together at a flat in the father's name and moved to their current address soon after R was born.
7. R was born on 8 September 2013. He is a normal, healthy baby. All outside observations are that the parents have been caring and devoted parents. While R was in their care, reports from health visitors were positive and since R has been in foster care the quality of contact has been good.
8. When R was at home, both parents played a full part in looking after him. By December 2013, the following pattern had developed. R was by then bottle-fed and the mother would do the night feeds. The father would leave for work at about 6.30 am and return at about 10.30 am. Both parents would then look after R until he went to bed. He would have bottles and be changed at about 6 pm, at 10-12 pm and at 5-6 am.
9. The home is a small three-bedroom property. R slept upstairs in a Moses basket in his own room, which is opposite the parents' bedroom. A baby monitor connected the parents' bedroom to wherever R was sleeping.
10. R was admitted to hospital on 19 December and discharged into foster care on 23 December. On 6 January 2014, these proceedings began. The parents both denied any knowledge of how the injury occurred. Neither blamed the other.
11. The parents continued to live together until 30 April, when an incident occurred while they were driving out of a supermarket car park. The mother suffered an injury to her nose. She moved out to live with her parents and reported the incident to the police. The father was charged with assault. The matter came before the magistrates on 24 June. The mother gave evidence; the father was acquitted. The parents left court together and have now resumed their relationship, with the mother effectively returning to live with the father. At this hearing, they present as a couple.

The medical evidence

12. On the day of his admission to hospital, x-rays were taken of R's leg. These show a "bucket handle" metaphyseal fracture of the lower right tibia.
13. Dr Karl Johnson, consultant paediatric radiologist, has reviewed the x-rays. R's bones are normal and there is no sign of any condition that would predispose him to fracturing. The cause of the fracture was severe, excessive, twisting, torsional force applied to the end of the bone. It would not occur from normal domestic handling, over-exuberant play or rough, inexperienced parenting. The perpetrator would have realised that their actions were inappropriate and likely to cause harm, though they may not have realised that they had caused a fracture. At the time of the incident, R would have been in pain and shown signs of distress that would have lasted for some moments.
14. Dr Johnson advises that the fracture was no older than 11 days of age on 19 December. It could have occurred just before the x-ray was taken. The timing of the injury is more accurately determined from observations of R's behaviour.
15. Dr Ian Mecrow, consultant paediatrician, has reviewed the medical records. He considers it likely that the fracture was sustained at most only a few hours before R was first seen to be in discomfort when his leg was moved or handled. Fractures of this kind are strongly linked to the child being "grabbed and yanked". It might be caused by a momentary loss of self-control by a carer. R would have cried and is likely to have been upset for some minutes. After that, he might have appeared to be fine unless the leg was handled. It is difficult to say whether the non-perpetrator would be aware that something had happened.
16. The parents have described incidents when R is said to have fallen from a bed and from his bouncy chair. The mother has described handling his legs when putting him into a pool flotation device. She also describes him being manipulated when the x-rays were taken. Dr Johnson and Dr Mecrow entirely discount these as explaining the fracture. Dr Mecrow describes the suggestion that the fracture was caused by the radiologist when the child was being investigated for an abnormal leg as "close to nonsense".
17. The medical evidence about R's injury is unchallenged and I accept it.

The week R went to hospital

18. On Monday 16 December, R spent a normal day. The mother was unwell in the evening and she says that the father did the night feeding (he does not agree).
19. On Tuesday 17 December, the mother says that the father stayed home from work (he does not agree) and by the afternoon the mother felt better. She took R to the baby clinic, where he was undressed and weighed. He was fine. She looked after him through the night.
20. On Wednesday 18 December, the father went to work as normal. After his return, the mother took R to see colleagues at her workplace for an hour or so. While he was there, he had an extremely dirty nappy and she wondered whether he had caught her bug. She made an appointment and took him to the GP later in the afternoon, where she was reassured.
21. Up to the time that R left the GP at around 4.30 pm, there were plenty of opportunities for a number of people to notice if he was having any difficulty with his leg. I am satisfied that the injury occurred after that point.
22. At home, the parents describe a normal bedtime routine involving them both, saying that neither of them noticed anything unusual. Once R was asleep, they had their meal, watched television and went up to bed at 10 or 10.30 pm. They say that they both went to sleep.
23. The mother says that shortly before midnight, after she had been asleep for about an hour, R woke up. She went and lifted him out of his basket and went to change his nappy. When she lifted up his legs to slip the nappy under him, he cried a bit. She thought it strange, so she lifted him up again and he cried again. She thought that it might be due to discomfort from a hernia in his right groin. She put his nappy on and gave him some Calpol, the first time she had done so for some days. (The mother described this sequence twice in her evidence in chief: in cross-examination she described giving Calpol after feeding R.) She took him downstairs, gave him his bottle, winded him and put him back upstairs in his basket. By the time he was asleep, it had taken about an hour. She went back to bed. She nudged the father, who was half asleep, and told him that R's hernia was giving him a problem. They agreed to see how he was in the morning. The father says he does not remember this conversation -- in his evidence he said he might have been talking in his sleep.
24. The mother says that she woke at about 5 am, got R out of his basket, changed his nappy, gave him a bottle and put him in his bouncy chair downstairs. At that point she saw that he was holding his right leg up, something that he did when he was a newborn baby. He was not crying or upset, he was settled. She thought that it was strange, so she decided to telephone her mother, even though it was only about 5.30 am. She did not get through, so she decided to get medical advice by calling 111. The father was moving around the house getting ready to go to work.
25. The records show that the 111 service notified the on-call doctor at 6.08 am and that the doctor called the mother at 6.32 am. She advised her to take R to hospital.
26. The father said in evidence that there was nothing unusual about the mother making telephone calls at this hour and said that he did not know who she was talking to or what it was about. He was rushing to get to the gym. He left, saying that he would come up to the hospital if necessary. He thought that the problem was to do with R's hernia or him catching a bug.
27. The transcript of the 111 call, which lasted for seven minutes, shows the mother saying that R had been grizzly since the Monday and that she thought he might have caught her bug. "But since last night I have noticed that every time I lift, get his legs do you know together to lift him up to change him or dress him he cries as if he's in pain. And I've noticed this morn… like the middle of the night feed he did it, and this morning he's done it, and I notice he's keeping that leg quite ... you know like scrunched up? He doesn't really wanna kick it around and use it and he normally kicks 'em both round.
28. At the hospital, the mother gave a history to the first doctor at 7.40 am: "R leg problem. Normally happy baby. Irritable and groggy last few days. Yesterday crying on holding legs up to change nappies. Not moving R leg the same as L since last night ... last had paracetamol @ 1 am." R was noted to be holding his right leg flexed and not moving it as much as his left leg and not putting it down when made to stand.
29. R was seen at 9 am by another doctor who recorded this history: "Reduced movements in leg since last night. Worse today. Crying if leg moved. No history of trauma." X-rays were then taken and the fracture discovered.
30. The parents were arrested, interviewed and released on bail.

The incident on 30 April 2014

31. The parents had an argument in the supermarket that spilled over into the car, a Mini driven by the mother with the father in the passenger seat. On the following day, the mother made a police statement in these terms:

I stopped the car and told [him] to get out. He said "What?" And I told him to get out of the car. Without warning [he] back fisted me with his right hand which connected with my nose causing great pain and for it to bleed. [He] also threw his bacon sandwich at me. [He] then got out of the car and walked off. I returned home with my bloody nose and cleaned the blood off. My whole face hurt and [I had] a small cut to the top of my nose. The same day, I went to the [A & E] department where I was treated for the cut and swelling to my nose.

32. The parents both describe the father sending the mother a text message telling her to remove her belongings from home, which she did later on the day of the incident.
33. On 1 May, the father discovered that the mother had been to the authorities. He sent her a text message:

AV U TOLD [THE SOCIAL WORKER] N THE POLICE

[R] WILL NEVER CUM BACK CUS ITS NOT STABLE

WATCH [M'S NAME] WOT I SAY NOW TO POLICE

34. After the father's criminal acquittal on 24 June, he filed a statement on 1 July saying that, as he did not injure R, the mother must have done. On 2 July, the mother filed a statement saying that, although the father had been acquitted, she stood by her account of what happened in the car park.
35. At this hearing on 16/17 July, the mother and the father both described the injury to the mother as having been an unfortunate accident, caused by the father accidentally banging her with his left (not right) arm while he was reaching into the back of the car to get his jacket.
36. I note that the father has two convictions for violence, one in 2007 and the other in 2011. The latter relates to an incident involving the mother outside a pub. She now says that it was a misunderstanding and that he should not have been convicted.

The parents' credibility as witnesses

37. In the months after R was removed, the parents maintained the position that his injury might be due to some innocent cause. By the time the expert medical reports came in, this was no longer possible. It has for a considerable period of time been obvious that both parents must know who caused the injury. Their response has been striking. Instead of confronting the perpetrator, the non-perpetrator has rekindled their relationship.
38. These are young parents with some good qualities, but I am sorry to say that I found them to be untruthful witnesses from beginning to end. Their only motivation was to avoid getting themselves or their partner into trouble. Neither of them could give a single helpful explanation of how R was injured that night. They both said that they had no idea when or how it happened.
39. In an attempted smokescreen, the parents have alighted on R's hernia as a possible explanation for his pain. They have put forward ridiculous suggestions about the leg having been broken in hospital. They have lied about what happened after they got up on 19 December, suggesting that the early morning phone calls were nothing out of the ordinary and, in the father's case, that he did not even know what the calls were about.
40. Their evidence was equally unsatisfactory in relation to the incident in the car. Their attempts to show how the injury to the mother occurred by accident were pitifully contrived.
41. Neither parent has made any effort to assist the court to understand how their child was injured. It follows that I cannot rely on their evidence when reaching my conclusions.

Conclusions

42. My findings of fact are as follows:

(1) R was injured when his right leg was yanked and twisted by one of his parents.

(2) The injury occurred sometime between 4.30 pm on 18 December and 5.30 am on 19 December, mostly likely in the middle of the night at a time when R was not settling.

(3) When he was hurt, R will have protested loudly and both parents were aware that something had happened to him.

(4) To the mother's credit, she took him to hospital after no more than a few hours, but ever since then she and the father have colluded with each other in an attempt to conceal the truth from the doctors and from everyone else.

(5) The parents are such unreliable witnesses that it is impossible to say which one caused R's injury and which one is covering up for them. I decline to speculate about which is the more likely perpetrator.

(6) In some cases, this conclusion creates the possibility of real unfairness, with a blameless parent being blamed as a result of a lack of clarity in the evidence. That is not the situation here. Both these parents are responsible for the removal of R, because of their joint decision not to tell the truth. Causing a serious injury to a baby is a terrible thing, but experience shows that it can be done by an otherwise good parent in a moment of impatience and loss of control. What is to my mind just as blameworthy, if not more so, is a deliberate cover-up of a kind that has taken place here.

(7) I lastly find that the father assaulted the mother in the car on 30 April in the manner that she described in her statement on 1 May. It may be that the experience of colluding on that occasion to ensure that the father was acquitted has led the parents to believe that they could use that strategy in this court as well.

43. I will now hear from the parties in relation to what orders flow from these findings.

[After further submissions]

44. The parties have sensibly agreed the necessary orders. There will be a care order with a care plan for R to be permanently placed with his maternal grandparents, who have been favourably assessed, once they return from a forthcoming holiday. The parents' contact will be reduced by stages to contact once a month, professionally supervised in the first instance. The details are to be agreed by the parties, with the involvement of the grandparents. A care plan reflecting the resulting arrangements is to be filed within two weeks.
45. The parents have wisely not applied for further assessments of their own ability to look after R: had they done so, I would have refused their application. R needs a clear and stable plan for his future. The outcome of this hearing is that he will grow up in the care of his grandparents. They are not temporary carers. They are being entrusted with R in the long term, and it may be that at some future date they will want to apply for a special guardianship order. That will remain the position unless there is a fundamental change of circumstances of a kind that it not currently foreseeable.