England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT MANCHESTER

		Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		26th November 2014

JUDGMENT
1. THE JUDGE: These proceedings concern C, who was born in January 2014 and is now 10 months old. His mother is 29 years old and his father is 25. They are not married but, as a result of appearing on C's birth certificate, the father holds parental responsibility for him.
2. This judgment follows the first half of a combined hearing in which the court is considering an application for a care order and a placement order brought by the Local Authority. That first stage has involved the court in identifying the underlying facts and I deal with those in this judgment. Having done so, I will, with the parties' assistance, move to consider what further orders should follow in C's best interests. This being a fact-finding hearing, the burden of proof is and remains on the Local Authority and the standard of proof is the balance of probabilities.
3. Up to the age of 4 months C lived with his mother and, to an extent, with his father. I say 'to an extent' because, since the later stages of the mother's pregnancy, there had been a child protection plan in effect under which the father was not to be alone with C or to be overnight at the mother's home. This arose from the father's conviction of child pornography offences in 2010.
4. On 16^th May 2014, at the mother's instigation, C was admitted to hospital with a swollen left leg. Following further investigation he was found to have three leg fractures, being a spiral fracture to the shaft of the right tibia, a metaphyseal fracture of the right distal tibia and a fracture of the left tibia. He was also found to have a large tear to the frenulum underneath his tongue. C was discharged into foster care on 24^th May and has been there ever since, having contact with his mother and less frequent contact with his father. Care proceedings have been on foot since 19^th May and, since 30^th May, interim care orders have been in force.
5. At the time that the matter was first investigated, the parents jointly denied causing any injuries to C. They agreed to lie to the police and social services about the father's movements. In truth, starting in March and continuing into April the father was staying overnight on occasions, at weekends with the mother after he finished late shifts, and in the week before C's admission in May he would stay at the mother's home all the time.
6. In August Dr Ian Mecrow, a consultant paediatrician, provided a report into C's injuries. He describes the injury to the frenulum as a severe tear that will have been caused by a hard object and that, although it is difficult to date, is likely from its appearance to have been caused not less than 48 hours before the admission to hospital. At the time it was caused, C will have howled. So far as the leg fractures are concerned, the radiological evidence shows that they were not showing signs of healing and consequently they must have been more recent than seven to ten days old. In the case of the left leg, the swelling shows that the injury must have occurred at least six hours and possibly up to 48 or 72 hours before admission. C would have screamed when his legs were broken. Taking the picture as a whole, Dr Mecrow favours the injury as having occurred within the 24 hours before admission.
7. Dr Mecrow gave evidence of the expected kind about what a non-perpetrator might have known about the existence of injuries. In regard to both the mouth injury and the leg injuries, there might well have been signs but nothing distinctive from which a non-perpetrator must have known that the child had these injuries. However, the non-perpetrator would have been aware progressively that something was wrong with the legs when the child was handled.
8. By 19^th May the mother had informed the authorities that she had not been observing the child protection plan and at that point stated that she had separated from the father. In September, when he was visited by the Children's Guardian, the father confessed to her and subsequently to the police that he had caused the injuries to the legs in a single incident and gave some account of how the injury to the mouth had occurred.
9. At this hearing I heard oral evidence from Dr Mecrow, from the father and from the mother, in each case focusing upon the circumstances and responsibility for C's injuries.
10. I shall give my findings of fact now and, having done so, provide the parties with a paper copy so that they can consider them before the hearing resumes later in the morning.
11. My findings of fact are these.
12. There is nothing in the mother's background to suggest a propensity to harm a child. Professional reports of her care of C before his injuries and since are positive. The evidence suggests that she is a somewhat naïve woman who has a high regard for her own abilities.
13. The father is a troubled young man who has problems with impulse control. His relationship with C has never been a close one.
14. After C was born, the relationship between the parents was unhappy. They did not like the ban on being unable to live together and, once they had solved this problem by ignoring the child protection plan, they argued continuously. C was living in a strained atmosphere. The volatile emotions shown by both parents at this hearing gives some idea of what his home environment must have been like.
15. Before and after C was admitted to hospital, the parents colluded in lying about the amount of time that the father had been spending at home. They were both more concerned to protect themselves than to help the doctors to find out what was wrong with their child.
16. In different ways, both parents have changed their stories since then. Whether and to what extent they are now telling the truth requires careful assessment. Having heard each of the parents give evidence, I find that it is not possible to base reliable conclusions on their word alone. It is necessary to assess their evidence against the background of other evidence and the general circumstances and probabilities. Having said that, I reach clear conclusions about what has occurred in this case.
17. I find that it is unlikely that both parents injured C over this short period of days. It is far more probable that one parent is the perpetrator. Of the two parents, the father is much more likely to have caused injuries of this kind which arose from impatience and loss of self-control. There is no sign that the mother has these characteristics, but the father does.
18. I find that the severe tear to the lingual frenulum probably arose on 13^th May when C was in the car. It was caused by the father forcefully ramming the dummy into the baby's mouth when he lost patience with the mother and/or the baby. It had nothing to do with the movement of the car or the child. When C's mouth was injured, he screamed. The mother knew that something was wrong with him but despite her closeness to the incident, it has not been proved that she knew that the father had, in fact, injured the child. As Dr Mecrow says, the injury itself would not have been obvious and I am not satisfied that she saw blood in the mouth when she looked at the child on arrival home. However, the mother was not paying attention to C's safety on that occasion. She, herself, was in a bad mood and she knew that the father was not in an appropriate frame of mind to be attending to such a small baby. This is shown by her response to the child's cry, directed at the father: "What the hell are you doing?" She did not stop the car, nor did she inform the police about this incident even though she could not have forgotten it and it was obviously relevant to their enquiry.
19. The three leg fractures could have been caused on one, two or three separate occasions over a period of a few days but, based on the evidence of Dr Mecrow, I conclude that they were probably caused on a single occasion. I accept the father's explanation that he caused the leg injuries on 15^th May. He described becoming increasingly stressed while trying to console C by various means: feeding him, putting him on his shoulder, rocking him in the car seat using the bar, then rocking him by holding his legs. He said he wondered what he was doing wrong and why he did not have that connection with C. At that point, "He kicked his legs out at me. I just snapped" (my emphasis). He shows how he rapidly twisted C's feet in opposite directions. This was followed by a silence and a cry of pain from C. The father then describes himself stepping away. This description, with its focus on the father's feelings, had the quality of a true memory. It is consistent in points of detail with the father's last police interview which also includes the noteworthy description of C kicking out his legs at the father. I accept the evidence of Dr Mecrow that this mechanism could have caused these three injuries.
20. The assaults on 13^th and 15^th May were the result of the father's inability to control a sudden burst of anger when C would not co-operate with him. He momentarily wanted to hurt C, but I accept that he had no intention of injuring him and that when the moment had passed he regretted what he had done.
21. Even though she was close at hand, I find that the mother was not aware of what the father had done to C's legs. I accept that she was upstairs at the time, having entirely given up on supervising the father. Had she known that the father was injuring C she would, in my view, have acted to remove him. She would not have gone to Blackpool with him.
22. I therefore find that the father caused C's injuries.
23. Having further considered whether there is a real possibility that the mother may have caused any or all of the injuries, I find that she did not.
24. The father bears much the greater share of the blame for what has happened. Not only did he injure the child more than once but he then concealed what he had done in a cowardly manner for several months. He has made some amends by confessing at a late stage.
25. However, the mother's behaviour must also give rise to serious criticism. She did not deliberately put C at risk, but she negligently contributed to the situation in which he was injured. Firstly, she abandoned the child protection plan. Next, she allowed the father to be with him unsupervised despite a growing number of warning signs, described in the next paragraph, involving C's physical safety. Then she took part in a cover-up. No doubt the situation was stressful before the injuries and alarming afterwards but that does not excuse her actions.
26. I find that the father did tell C to shut up. His own account of saying, "It's not all about you, C", to a 3-month-old baby is as bad or worse.
27. Next, on two occasions, 12^th and 14^th May, the father had some difficulty with C using his jumperoo and may have become impatient but C was not injured on these occasions. The mother knew about the first of these events but not the second. The incidents were later used by the father to divert attention from what he had done to C's legs on 15^th May.
28. I have referred to the ill-tempered events in the car on 13^th May.
29. The mother knew the father was not bonding with C. The father was, according to the mother, in an angry and stressed state that week, his hands were shaking and he broke a DVD in half in the course of an argument on 14^th May. All this was, in the context of a baby singled out for protection, a significant failure by his mother to protect him. It was caused by her foolishly putting her own needs and her loyalty to the father before her duty to her child. She believed that she knew better than the professionals and she was distracted into prioritising the demands of her emotionally needy partner. She was, as she put it herself, weak.
30. I do not accept that the mother unreasonably failed to seek medical attention for C. When the first unmistakeable sign appeared in the shape of a swollen leg, she took him to hospital. Relying on Dr Mecrow, I do not consider that any previous sign of injury was bound to alert her. I accept that between 16^th and 19^th May the mother asked the father repeatedly about what might have happened to C's legs but he did not tell her.
31. The mother has, to an extent, confronted her own level of responsibility for C's injuries, though she is prone to take refuge in displays of emotion. However, she has, in general, been frank and co-operative with the authorities and separating from the father on 19^th May.
32. I find that the parents have not resumed their relationship since 19^th May and that they are unlikely to do so in the future.
33. Those are my findings.

[Following the judgment, the parties agreed and the court, having heard evidence from the Children's Guardian, approved the phased return of the child to the mother's care under a 9 month supervision order, with very limited supervised contact to the father. The judgment was directed to be disclosed to the police.]