England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT LEYLAND

		Leyland Courthouse Preston
		10/07/2015

His Honour Judge Duggan sitting as a High Court judge:

1. Over seven hearing days in the last three weeks I have conducted this fact-finding hearing in care proceedings. In essence the local authority alleges that the mother has fabricated or exaggerated symptoms in her child, an allegation which is denied.
2. The child is S, a girl born in October 2014. She is the youngest of three children and has a brother aged three years and a sister aged five years. To preserve confidentiality names will not appear in this judgement. At the relevant time the parents exercised joint care for the children although the father slept at his parents' home nearby. The mother was a constant carer and the father had a major role alongside her every day. The parents sought medical attention for the child for serious symptoms of reflux. She was admitted to Preston Hospital on 23 December 2014 and was transferred to Royal Manchester Children's Hospital on 28 December 2014. She had surgical interventions on 2 January 2015, 12 January 2015 and 26 January 2015. It was believed that the child had reached an apparently successful position but the mother continued to report symptoms which baffled the doctors. There was an incident on 9 February 2015 when it was alleged that the mother interfered with the child's bile bag and fabricated an allegation that the child had vomited. Following a period of increased observation, on 25 February 2015 it was agreed that the mother would leave the ward. On 12 March 2015 the child was ready for discharge and went home to the father alone. The mother has lived elsewhere, exercising supervised contact. Happily the child is now healthy and well in her father's care.
3. The material has been assembled in a number of bundles. I am familiar with the evidence and the relevant parts of the records. I have heard oral evidence from three treating doctors Mr Khalil, the consultant paediatric surgeon Dr Steggall, the consultant paediatrician and Dr Fagbemi, the consultant paediatric gastroenterologist. I have also heard from the two commissioned experts Prof Taylor who specialises in paediatric gastroenterology and Dr Alexander who is a consultant paediatrician. I have heard from the parents, the social worker, the health visitor and a number of nursing professionals.
4. The local authority has prepared a Schedule setting out the findings for which they contend. I have firmly in mind the principles to be applied in determining the issues before me. The burden of proof at all times lies on the local authority. There is no obligation on parents to prove anything. All allegations must be proved on the balance of probabilities and this must be based on evidence and not on suspicion or speculation. In considering the allegations the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Appropriate attention must be paid to the opinions of the expert medical witnesses but these opinions need to be considered in the context of all the other evidence. It is the judge who makes the final decision, not the medical experts. It is for the judge to set the expert evidence alongside his findings on the other evidence in reaching a conclusion. The evidence of the parents is of the utmost importance to the judge in reaching his conclusions. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must remember that a witness may lie for many reasons and the fact that they must have lied about one matter does not mean that they have lied about everything. It is important to reflect that medical knowledge may develop over time. The court must take into account the possibility of an unknown cause. Even where on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown. The question remains whether the local authority have established their allegations on the balance of probabilities.
5. It is important then to consider this case in its wider social context. There can be no doubt that the three children have a loving, devoted mother and that their needs were well met. As the social worker explained, the family were not previously known to her authority. Agencies that were involved, for example the school, had no concerns. Evidence from the health visitor was that the family home was appropriate in every way. She complimented the mother, particularly on her interaction and patience with her son and her good attachment with the baby. In November 2014 the mother reported to the health visitor low moods and anxiety with particular reference to uncertainty as to the marital relationship. She was actively seeking help for herself from a counsellor and the situation was not thought to require any further referral.
6. The counsellor has written in positive terms confirming that she engaged with the mother over anxiety and low moods. The mother's GP records for 2013 confirm that she was then feeling anxious and low, with her main difficulty being her husband who (29 May 2013) was very unhelpful at home and with the children. Mother felt "like a single parent". In August and October 2013 she reported panic attacks. Later during the last pregnancy she reported vomiting at a level to justify a night in hospital. The history recorded by the GP "vomiting all the time since she was pregnant" is clearly at a more serious level than the current account given by both mother and father. The symptoms in hospital were also modest but diet and medication will have contributed. There is no medical analysis to suggest that mother acted inappropriately. This can be no more than confirmation of the common picture of anxiety.
7. The parents were together from about 2007 and married in 2011. However in 2013 there was a degree of separation in that the father returned to his mother's home each night. Time was spent in evidence examining this development and the causes do seem modest. The father was impressive in his recognition and acceptance of his failure to support the mother in this period, when he believed his daily long visits to the children were enough. He was particularly ashamed to learn the account of her predicament the mother had given to health care professionals. In his favour it seems he is rising to the challenge of providing sole care but the mother was clearly unsupported at an important time. She was also affected by emotional discoveries within her birth family.
8. In relation to the children it has been identified that there were 95 attendances upon the GP or hospital in a period of little more than a year. Dr Alexander gave theoretical evidence that this seemed excessive but an important letter from the GP at page C 147 accepts that the numerous visits to his surgery were not inappropriate. It seems that over reliance upon the GP is common and I feel unable to go beyond the GP's comment that the mother "can be anxious about children's health".
9. In considering individual allegations I set them in the context of the case as a whole. However it is convenient to address the events which caused the treating doctors first to conclude that they were dealing with fabrication or exaggeration. The final surgery was a gastrojejunostomy on 26 January 2015 which bypassed the stomach and allowed feeding by N J tube directly into the small bowel. The feeding restarted on 6 February 2015 at a minimal level. Mother reported vomiting and distress considered unlikely with minimal feeding by this method. There was some professional support so feeding was suspended. Mr Khalil spoke to the mother and discovered her resistance. Mother insisted that the child would vomit within an hour so he stayed with her for an hour to supervise the feeding. No vomiting occurred but there was discomfort at a level which troubled the mother but which for the doctor had to be accepted. The doctor then withdrew but within minutes the mother states that the child was sick in her arms. A passing nurse summoned Nurse Duffy who attended and saw fluid which was potentially vomit. However her next task had been to change the bag collecting bile from the child as it was getting full. Upon her return the bag had noticeably less fluid in it and there was only 5 mls to be emptied out. I reject the mother's points about quantities. The nurse raised the loss of fluid with the mother who was appropriately concerned about the child. However the mother did not then provide the account she has subsequently given in which she claims to have placed the child below the level of the bag. In fact the nurse checked the tube and describes a free draining bag placed lower down so that gravity would cause the bile to go into it. The mother's account of this has been variable in detail and unconvincing. I prefer the account given by the nurse. In context the mother had just endured a frustrating hour with the doctor in which her assertion that the child would vomit had proved incorrect. In addition the doctor was advising that levels of discomfort which concerned her had to be tolerated. I am driven to conclude that the mother sought to prove her case by manufacturing vomit using the bile bag.
10. In this same period when the proposal to commence feeding so troubled the mother it is alleged that she incorrectly reported the presence of blood in the bile bag. It is common ground that on 8 February 2015 the mother told Nurse Power that earlier in the day she had seen signs of blood in the bile bag. There was nothing then apparent and nothing in the early record. The mother's case is that she told a passing nurse who agreed but was unconcerned. This is an episode which only came to prominence on the day on which the mother gave evidence but she gave her full account and I reject any suggestion that there is a burden on her to identify and call the passing nurse. However it is inconceivable that the presence of blood would be allowed to pass, least of all by the mother. Her account of leaving the ward without the opportunity to speak to Nurse Duffy is inconsistent with the notes. I am driven to conclude that it is more probable than not that the mother's account of spots of blood was a false account.
11. A further allegation is less convincing. On 27 January 2015, the day after it was inserted during surgery, the NJ tube was found to be partially looped inside the child's mouth. Contrary to some reports this only amounted to a very short section of this long tube. The precise length does not matter. Nurse Cooper attended and removed the tube. She was called by a colleague to deal with vomit but could not recall whether there was vomit present. She did recall vomit on other occasions and it would be no surprise so soon after an operation. The mother is clear that the tube was dislodged by vomiting. The experts initially considered the prospects of a tube wholly ejected with vomit but moved to consider the possibility of the emergence of some slack from the stomach. The overall conclusion was that it was possible but unlikely. Witnesses had experienced something similar associated with vomiting. I reject the proposition that there was no significant vomiting and accept as probable the mother's account that it dislodged this short section of tube. This was of course very soon after the operations, before issues over the reintroduction of feeding were established. At the time the incident does not appear to have attracted very much concern which influences my position.
12. The local authority case on the fabrication and exaggeration of symptoms in the hospital environment is inevitably dependent on the quality of the reporting. However in the hospital environment the necessary degree of accuracy is difficult to attain. At one time it was asserted that there were no witnessed vomits. The argument was that unwitnessed vomits were either induced or the subject of a fabricated report. However it is manifestly the case that there were many witnessed vomits. The local authority has faced great difficulty assembling accurate evidence. Before fabrication was suspected nobody was noticing, let alone recording matters of significance. On 10 February 2015 a one to one nursing regime was introduced but the evidence is that this was impossible to achieve at the outset and was never completely reliable. The word of mouth dissemination of requirements left a lot to be desired. The mother continued to be responsible for many feeds. In addition there was uncertainty confirmed by many witnesses as to the volume necessary to amount to a vomit and as to what constituted a "witnessed" vomit. During the hearing many hours were spent collecting examples of reported vomit or distress on the part of the child which may or may not have independent confirmation. There was similar analysis of inconsistencies between the mother's reported words and the records. Bearing in mind the burden of proof, I conclude that no clear overall picture emerges outside the individual episodes which I have addressed.
13. For me the following points emerged:-

a) Throughout the period the child had the diagnosis of reflux and at least some of the vomiting and distress which occurred periodically throughout were only to be expected.

b) Improvements started while the mother was present. She applied herself and achieved some improved feeding. It accelerated when she left.

14. The mother was clearly very concerned that the reintroduction of feeding would be harmful. She was particularly concerned about tube feeding which she incorrectly described as forced feeding. I accept the medical evidence that the tube feeding played an important part as the child was not taking enough from the bottle. The mother heard this medical advice but was inconsistent in accepting it. She did try to feed the child and achieved some success. On 18 February 2015 the parents suggested the use of the bottle alone but it was clear then and subsequently that this was not enough. I criticise her refusal to persevere on 23 February 2015 when she refused point blank. I cannot criticise this approach on 24 February 2015 in the face of distress after much fluid had been taken. On 25 February 2015 she actually asked that the NG tube be used. I do accept that on 13 and 25 February 2015 she unnecessarily interrupted successful feeding, apparently nervous that distress would be caused. The mother's removal from the ward followed.
15. My attention is drawn to the dramatic increase in the child's rate of improvement once the mother withdrew. There were factors which contributed to the slow early recovery of this child. Symptoms of reflux remain to this day. There were three surgical interventions in January 2015, with the last delayed by infection. No doubt the inoculations of 20 February 2015 had an effect. I have concluded that the evidence does not establish a general pattern of the inducing of symptoms. No harmful actions or motivation can be identified.
16. The anxiety exhibited by the mother over a long period remained present. Contrary to the mother's evidence I accept that there was a conversation about the anxiety arising from separation from the child on 18 February 2015. It was established that the mother took some breaks away from the ward but well-meaning nurses were right to encourage her to take more than she did. It is independently established that the parents did complain of mixed messages from different departments of the hospital which mother understandably says contributed to her worry. The three surgical interventions would be a worry. As was her entitlement, she was perusing her records and keeping notes for a possible complaint. Her discussions with Dr Khalil reveal her nervousness about the reintroduction of feeding, especially by tube. There was no lack of candour on this subject.
17. Dr Alexander spoke with experience of the impact of an anxious mother upon a dependent child. Like the other doctors, he believed that overall this case tipped over into fabrication but he accepted the real possibility that the agitation of the hands-on carer can be passed to the baby and delay recovery.
18. At the outset the local authority gave two examples of discrepancies between the mother's report of symptoms and those recorded by hospital staff. Both proved innocuous in evidence. On 10 February 2015 the mother described a disturbed night with vomiting at 2am. On handover the nurse said they were settled from midnight to 7am. However the detailed records mentioned four vomits during the night before midnight, distress at 1am and vomits after 7 am. The medicine records did not confirm the mother's reference to the use of paracetamol.
19. On 24 February 2015 Nurse Ellison contradicted the mother's account of a disturbed night by reference to the handover record he had received. When the original records were analysed in cross-examination periods of distress were recorded.
20. The mother was upset by this nurse's strident approach. Other nursing staff were well disposed towards the mother. They were impressive in their professional attention to detail and in the sensible concessions they were prepared to make. I reject the suggestion that their statements of evidence were coloured by their interview with a local authority solicitor. It was an achievement to prepare so many statements following the late demand by the mother's legal team and by starting from records proper statements emerged.
21. I turn to the period before the surgery. I accept that the medical interventions were reasonable and indicated by the medical investigations. It was the medical team in Manchester who made the second referral to the surgical team which meant that the child was not returned to Preston as originally planned. Prof Taylor agrees that it was not unreasonable to seek an obstruction by surgery. It is suggested that only the mother's account of the symptoms encouraged the medical intervention. The picture is complicated by the discovery in surgery of two elements which could have contributed to the presenting symptoms. During the first intervention an abnormality in the form of a mild thickening was found and addressed to ensure the draining of the stomach. Subsequently there was seen to be a stricture at about this location (perhaps caused during the surgery or perhaps present throughout) which was addressed by the final intervention. Dr Steggall, who is technically responsible for the diagnosis of fabricated or induced illness, held back from including this early period due to lack of evidence. Careful analysis of the admission documentation does not drive me to a different conclusion. After admission there was not the degree of observation from which to challenge the mother's reports.
22. Unlike the medical experts I do not find a thread of fabrication throughout this case or even the latter part of its history. My departure arises from the limited nature of the findings of fact that I make, matters clearly in my domain.
23. A number of criticisms are raised on behalf of the mother:-

a) I record that the important Royal College Practical Guide to FII and the Government's Safeguarding Guidance were not prominently in the minds of those at the coalface of this investigation. The GP really should have been involved to supplement the social worker's assumption that he would be supportive of the family in the light of the health visitors' reports. However this has no impact on the findings of fact which I make against the mother.

b) There really is a limit to the extent to which the local authority can conduct an independent assessment save by the instruction of experts, who in this case supported the treating team.

c) The President's criticisms of local authorities in the Darlington case have no application here.

24. Findings of the Court

a) The mother is prone to anxiety, particularly when stressed and unsupported.

b) The child developed severe symptoms of reflux which required hospital admission and surgery. Medical uncertainty increased the mother's anxiety.

c) After the third surgical procedure she was very nervous that the reintroduction of feeding would again produce vomiting and distress.

d) On 8 February 2015 she gave a false report of the presence of blood spots in the child's bile bag.

e) On 9 February 2015 she spent an hour with Dr Khalil who was observing the child. When the child did not vomit as she expected, in her frustration the mother manufactured the symptoms of vomiting using the contents of the bile bag.

f) Subsequently the mother participated in the feeding of the child but nervous of the consequences, she was inconsistent, sometimes resisting the use of the tube, and sometimes feeding the child too slowly.

g) Her anxiety communicated itself to the child and made feeding more difficult such that the recovery accelerated in her absence.

h) There was no fabrication or inducing of illness beyond the limited degree set out above, within an overall framework of anxiety.

25. It is premature to reach any conclusion about the position of the father. His reaction to these findings is much more significant than his support for the mother in a period of uncertainty.
26. The threshold under sec 31 Children Act 1989 is clearly satisfied so the welfare of the children requires further consideration. I invite submissions as to the way forward. Although there are serious elements, the findings fall short of those for which the local authority contended and rather down the spectrum of these cases. The reunification of the family is therefore a real possibility, if that remains their considered proposal. I certainly need a quality social work assessment which addresses the parents' response to this judgement, the nature of their relationship, the father's commitment and care and his ability to take responsibility for medical matters. There must be disclosure of the findings to those providing medical services to the family so they can take them into account as necessary in the future.

RD

10.7.15