England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT

		At A Civil Justice Centre
		1st July 2015

INTERIM JUDGMENT FOLLOWING FACT FINDING

MR JUSTICE MOOR:-

1. I am hearing care proceedings and an application for a placement order in relation to a young boy, Y. He is six months old.
2. An application was made for a care order on 10th December 2014. An interim care order was made on 15th December 2014 and Y remains in short term foster care albeit having supervised contact to both his parents.
3. There are a number of issues in the case but I am giving this interim judgment following a fact finding hearing in relation to a discrete issue, namely the cause of a rib injury to his half-brother, R, who was born in 2012 and died in 2013.

The history

4. Y's father is Z (hereafter "the Father"). He is aged 33.
5. Y's mother is X (hereafter "the Mother"). She is aged 30. She has a chronic history of substance and alcohol misuse, although she is making a significant effort to sort out her problems. She has been free of heroin for some years. She takes the substitute, methadone and is gradually reducing her dosage. Unfortunately, she has recently had some liver problems which are being investigated but have caused her further ill-health.
6. There are a number of older children. Their father is T. He has played no part in this litigation. The three eldest children had lived with the Mother but were removed from her care in 2012. Initially, they were placed with Mr T but that placement broke down. The eldest child, B is aged 10. He has his own problems and is long term foster care.
7. C is aged 7. K is aged 5. Final care orders were made in relation to all three children on 10th June 2015. C and K reside with a relative. I should make it clear that the Mother consented to the making of these care orders, recognising that she was not in a position to care for the children. This was a brave decision for which she is entitled to considerable credit.
8. The fourth child, R was born in 2012. He was placed in foster care upon discharge from hospital due to concern as to the Mother's ability to provide him with safe care. His father, Mr T played no part in his life.
9. At the beginning of February 2013, R was placed with different foster carers, P and Q but he had unsupervised contact to the Mother each day, apart from Sundays, from 9 am to 5pm. The Mother's brother, U was resident at the property with the Mother as well.
10. A few days later, P and Q took R to the emergency out of hours GP as he had been constantly crying in a high pitched way and drawing up his knees. They were very concerned about him. He was unable to feed because of pain. Having said that, they suspected colic and, on the way to the appointment, he burped and became more settled. Perhaps as a result, the GP did not do a full investigation although his chest was checked. He looked well and settled with normal colour. The GP reassured the foster mother and gave some advice but no further action was taken.
11. Later in the month, the Mother withdrew her consent to voluntary care of R. The Local Authority considered the position and decided that, as the Mother had cooperated, they would agree to return R to her care rather than seek an interim care order. He therefore left the foster parents' home to reside with the Mother.
12. Thereafter, there were approximately four incidents when it was suspected that that the Mother had been drinking alcohol, although the Mother does not accept the veracity of the accounts.
13. During the spring of 2013, R died. He had been in the care of U in the evening as the Mother was tired but she was caring for him overnight. She woke up to find him lifeless. He could not be resuscitated.
14. A post mortem examination was conducted. I have reports from two pathologists. The cause of death was unascertained. HM Coroner recorded an open verdict.
15. However, the post mortem examination identified a healing fracture (with callus) of the posterior aspect of the left 7th rib. At the time, it was estimated to be between 3-4 weeks and 4-8 weeks old.
16. Following the institution of these proceedings, an order was made for the filing of an expert report as to the rib fracture. The report was undertaken by Dr Stephen Chapman, Consultant Paediatric Radiologist at the Birmingham Children's Hospital NHS Trust. His report is dated 30th March 2015 and is agreed by the parties.
17. He said that the ribs of an infant are soft and pliable and a considerable force is required to cause a fracture. The mechanism of injury is severe squeezing/compression of the chest, typically by adult hands around the chest (although the mechanism does not have to include shaking). The causative event would have been memorable to a competent carer and any observer of the event.
18. Although the doctor says that there are two possibilities, an accident involving significant compression that the carer is choosing to conceal or a non-accidental injury, there is no suggestion whatsoever in this case of an accident.
19. In terms of dating the fracture, he said that the fracture was fully healed (united) but not yet remodelled (which is the stage at which there is no radiological evidence of a fracture having ever occurred). He told me that dating the fracture becomes less exact as the time between causative event and the X-ray increases. He would have expected the fracture to have been fully healed by 5 – 6 weeks but with remodelling usually complete by about 3 months. He estimated the fracture to be no more than 2½ months old and no less than two months old. He therefore put the "radiological window" from early February 2013 to the end of that month or early the next month.
20. He considered that a possible date for the injury was the date that R was taken to the out of hours GP when the child had been "distressed all evening, wanting food but not able to take it. Having bouts of screaming and bringing up his knees." He rejected a birth related fracture and commented that they were rare in any event. He ended by saying that he believed the perpetrator should have known that inappropriate force had been used. He did postulate that the force may have been applied to a child who was already distressed and that it was this distress that provoked the assault. R may have been specifically miserable for hours or days but he acknowledged that this scenario is not uncommon in infancy.
21. It is agreed that, realistically, there are only four people in the pool of potential perpetrators. They are the Mother, the Uncle, U and the foster mother and father.

The Law

22. Mr Abberton who appears on behalf of the Uncle has drafted a document as to the approach to the law in this area. The document is agreed, such that I need only summarise the position.
23. The burden of proof is on he or she who seeks to establish a contested fact. In this case, that is the Local Authority.
24. The standard of proof is the civil standard, namely the balance of probabilities. The seriousness of the allegation makes no difference to the standard of proof to be applied in determining the truth of the allegation. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies (Re B (Children)(FC) [2008] UKHL 35; [2008] 2 FLR 141).
25. It is in the public interest for those who cause non-accidental injuries to be identified whenever such identification is possible within the test (Re K [2005] 1 FLR 285 at Paragraphs 55 – 56) but the court is not required to "strain" to identify a perpetrator. It will not only be in exceptional cases that a perpetrator cannot be identified (Re D [2009] 2 FLR 668 at Paragraph 12 and Re S-B [2010] 1 FLR 1161 at Paragraphs 35 – 38). If it is not possible to identify a perpetrator or perpetrators, it is important to identify the pool of possible perpetrators (Re S-B). The test for whether someone should be included in the pool of perpetrators is whether there is a real possibility that a particular person might have inflicted the injury (North Yorkshire CC v SA [2003] 2 FLR 849 at Paragraphs 22-26 and Re S-B).
26. It is incumbent on the court to analyse the evidence and to give reasons for the inclusion or exclusion of any adult (S and others v Nottingham CC [2014] 1 FLR 739). The test for inclusion is not set high. It therefore acts as an effective protection mechanism for children who have been harmed or whose welfare is still to be determined (S and others v Nottingham CC at Paragraph 27).
27. The absence of an explanation for an injury is but one of the factors in the assessment of whether there is a real possibility that a person should be included in the pool of possible perpetrators (Re BR [2015] EWFC 41 at Paragraphs 13-17). The Local Authority must produce proper evidence of the facts it seeks to prove and must link those facts to the conclusion it invites the court to draw. Those facts and the conclusion must be seen in the context of social reality (A v Darlington BC [2015] EWFC 11 at Paragraphs 9-15).
28. Finally, there is an issue as to the extent to which witnesses may have lied either to this court or to the Police. First, I must decide whether or not anyone has deliberately told lies. If I find that they did, I have to ask myself why they lied. The mere fact that a witness tells a lie is not in itself evidence that the various allegations made against that person are true. A witness may lie for many reasons. They may possibly be "innocent" ones. For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other disreputable conduct; or out of panic, distress or confusion.
29. It follows that, if I find that a witness has lied, I must assess whether or not there is an "innocent" explanation for those lies. However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the truth of the various allegations made in this case.

The hearing and the evidence of the four possible perpetrators

30. I have heard oral evidence from the Mother, the Uncle and both foster carers. All four have also filed statements. Each denies any involvement in causing the injury to R's rib. They all say they did not witness anyone else doing anything that could have caused the injury.
31. The Mother gave evidence first. She had said in her statement that she thought R may have been suffering from trapped wind on the date he was taken to the out of hours doctor. She said she had never done anything to R to cause a broken rib. She was not present when she heard anything happen. She did not hear him crying for a prolonged period.
32. In her oral evidence, she told me that the date R was taken to the out of hours GP was not a particularly difficult day. She said she could not remember a time when she hurt him or anybody around her hurt him. She was always very careful with him. She accepted that, if someone else had caused the injury in her home, she would have heard what was going on.
33. The Uncle was the second person to give oral evidence. In his written statement he said that he had barely ever been alone with R. He did not harm him. He did not handle him in a manner that would have harmed him. He never witnessed anybody else do so.
34. When cross-examined by Mr O'Sullivan for the Father, he gave an extremely detailed account of the day on which R was taken to the out of hours GP. Unlike the Mother, he did at times acknowledge that R was difficult that day. He told me that it was getting on top of him and he needed to get out and have time to himself. I certainly gained the impression at the time that he was talking about during the day but it later emerged that he was saying he had to go out with his friends that evening. He denied that he handled R roughly. He said he always supported his neck.
35. In answer to cross-examination by Ms Erwood for the foster parents, he did admit that R cried any time he held R but that he calmed down when he was taken by the Mother. He said R would settle straight away with her.
36. I also heard evidence from both about an unpleasant incident later in 2013 when the Uncle attended at the Mother's property with his girlfriend, J to recover some of J's belongings even though the Mother had told them not to come. There was a serious incident outside the property when the Mother head-butted the Uncle and he manhandled her. B was present and ended up with a bruise on his leg. It appears that B says the Uncle kicked him. The Uncle said that B had struck J in the stomach with his fist. As B came towards the Uncle, the Uncle stuck out a leg and B hit it.
37. P gave oral evidence third. In her statement, she had said that R was difficult to care for as he had an almost constant high pitched cry. He sneezed constantly. It was difficult to soothe him. She did say that he was a lot calmer on Sundays when there was no contact. I consider she was trying to make the point that this may have been because there was no contact to Mother that day but the Mother saw it as evidence that he was easier during the day time than at night and/or was easier to deal with in her company as his mother.
38. P told me that she twice smelled alcohol on the Mother. Once this was strong. It was less strong on the other occasion, such that she thought it might have been from drinking alcohol the night before. It is fair to say that she did not, on either occasion, consider it wrong to leave R with the Mother.
39. On the day R was taken to the out of hours GP, she had been told by the Mother that R cried all day. He had not fed well. She said the Uncle told her he had tried to soothe R on a couple of occasions but had failed. Once home, his high pitched cry was more intense than she had heard it before. He was crying excessively until late into the night. Nothing would comfort him. She became so concerned that an "out of hours" appointment was made at the hospital but he settled following a burp on the way. In her oral evidence, she told me that she was worried about R but never stressed by the situation.
40. Q gave oral evidence last. He had said in his second written statement that he and his wife were surprised when R went home as they had been struggling with him. He was a very demanding baby.

The position of the parties

41. Mr Abberton prepared a written document headed "Evidential Submissions on behalf of the Maternal Uncle". In essence, he submitted that the foster parents should be excluded from the pool of perpetrators. He went on to submit that the court should find that a proper analysis of the evidence militates overwhelmingly in favour of finding that there was no real possibility that the Uncle was responsible for the injury and that, by a process of deduction, sadly, the Mother must have been responsible for the fracture.
42. Ms Erwood for the foster carers adopted his analysis. She submitted that Mr and P were truthful, honest and candid and should be excluded from the pool of potential perpetrators. Mr Lloyd for the Local Authority also agreed with Mr Abberton.
43. Ms Anslow for the Mother reminded me that I do not have to strain to find a perpetrator. I must carefully scrutinise the evidence. The Mother had made a number of appropriate concessions whilst maintaining her instructions that she did not recall anything. She appeared to be honest when she gave this evidence. There was no question of injuries to her older children. Her contact to Y has been positive. There was no concern as to her handling of Y or any loss of temper. She reminded me of the Mother's desire to have R returned to her which did not indicate that she was having difficulties in handling him or had recently assaulted him. The health visitor referred to her as loving and caring. Given their falling out, her brother had no motive to lie on her behalf but he did not say she had handled R inappropriately. In fact, he said she was very good at handling him and better at consoling him. There was no evidence that she was intoxicated due to alcohol. The brother was well aware of her difficulties but he did not see her inebriated during this time. She has been shown to be difficult to wake at times, including in hospital. She was not asserting a positive case against either the foster carers or her brother. It was not for her to prove anything. She did, however, note that the Uncle was in the house for most of the time. He had the opportunity. He did care for R at times, including when she was sleeping. Turning to the foster carers, Ms Anslow said that the Mother does not know them and has had no opportunities to observe them handling R but they had significant periods of time caring for him and they found him an immensely difficult child to care for. This was not something they had any experience of before. Even good people can behave in this way in the middle of the night.
44. Finally, Ms Lloyd for the Guardian submitted that there were a number of concerning aspects to the evidence of both the Mother and the Uncle. She mentioned one particular aspect where both were adamant that neither had handled R's ribs. She contrasted this to the evidence of P who said immediately that, of course, she handled his ribs. An example would have been when changing his nappy. She further submitted to me that the Uncle was less than frank about the incident when he went to the Mother's property, saying that he only stuck out a leg and B tripped over it. She did acknowledge that all four could potentially have had a momentary loss of control. She mentioned the way in which the foster carers sought medical help whereas the Uncle seemed to be making his account of that day up as he went along.

My findings

45. I start by my findings as to the cause of the rib injury. I reject any suggestion that this was accidental. I find it hard to see how it could be accidental in the absence of a cogent explanation. There is absolutely no such explanation in this case.
46. I accept the evidence of Dr Chapman that it takes a lot to break a child's rib. I am satisfied that this rib was broken by severe squeezing of the rib cage by an adult with hands around the baby's chest. This was therefore a non-accidental injury.
47. I further accept the evidence of the foster carers that R was a difficult baby. I consider, on the balance of probabilities, that he was very fractious whilst being looked after by the perpetrator of the injury. The perpetrator got frustrated and lost his or her temper. I am prepared to accept that this was momentary but the loss of temper was severe and led to a serious injury to this baby. I find that the perpetrator knew very well what he or she had done. The only one who might not have done so would have been the Mother if drunk but she cannot have it both ways. She denies being drunk in charge of this baby and I accept that she was not drunk, given that it is corroborated by the Uncle and to a certain extent by the foster mother. It follows that one of the four witnesses has lied to me. It does that person no credit that he or she is not prepared to admit it. It is particularly reprehensible when it means that other, entirely innocent people are accused of this serious matter.
48. I am prepared, just, to accept that it is possible that another adult in the household might not have known what had happened. Given that I am finding that R was particularly fractious in general and that the injury is likely to have occurred whilst he was engaged in his high-pitched screaming, an innocent party might not have realised that additional crying caused by the rib injury was anything more than his normal behaviour.
49. On the balance of probabilities, I find that this injury took place on the date R was taken to the out of hours GP. It is well within Dr Chapman's time line for the injury. Having accepted the foster parents' evidence that he was a particularly difficult baby, I find that the reason why they were so concerned about him that they took him to the out of hours GP was because there was something wrong on that day over and above his normal behaviour. It was so bad that I do not consider it was simply colic. I am fortified in this by the evidence given to the foster mother on the day by both the Mother and the Uncle that R had been particularly difficult during the day. It was just bad luck that R settled finally just before the GP saw him such that the rib injury was not identified until the post mortem.

The foster parents

50. I have no hesitation in excluding the foster parents from the pool of perpetrators. I was impressed by the evidence of both of them. They were entirely honest with the court about the difficulties they had with R. I consider that being able to admit the difficulties is an extremely important aspect in being able to cope with the problem.
51. I accept all the points made by Mr Abberton. The foster carers had passed a rigorous test to be short-term foster carers. They have cared for many children over the years, including their own, without difficulties. They reacted appropriately by taking R to the GP. Their evidence was entirely consistent with one another. They were clearly honest witnesses doing their best to assist me. The Local Authority need have no concerns as to the way in which they cared for R or as to their future care of young children, including babies.

The Mother and Uncle

52. I now turn to the Mother and the Uncle. I have eliminated the foster parents. This means that it is only the Mother and the Uncle that remain in the pool of possible perpetrators.
53. I further accept the evidence of the foster mother as to what was said to her by the Mother and Uncle when she collected R on the date she took him to the GP. It was a particularly bad day. It got worse. I find that R had been playing up during the day. At some point, either the Mother or the Uncle lost their temper with R and assaulted him by grabbing him around his chest and squeezing hard such that his rib was broken.
54. Can I identify which of them was responsible? I have to say that, at times, I found the evidence of both unsatisfactory. This has not made my task easy.

The Uncle

55. I will deal with the Uncle first. In some respects, I was prepared to accept his evidence more readily than that of the Mother. Nevertheless, I accept the submission that I cannot rely on him in all respects.
56. I cannot make findings as to whether he was violent to his previous partner as I have not heard from her. I accept that injunctions may have been made against him without findings as to his culpability, particularly as he was appearing in person and agreeing to orders being made.
57. I do not, however, accept his account of how B came to be injured when he went to the Mother's property later in 2013. I am broadly prepared to accept his account of the rest of this unpleasant incident but B had a bruise on his leg. I do not believe that the Uncle merely stuck out his leg. If he had done so, I consider it unlikely that B would have got a bruise. He told me that B "ran into my foot and hurt himself". I reject this account. If B had run into his foot or leg, I think it would be far more likely that he would have fallen over, possibly leading to him grazing himself. I find that the Uncle did kick him. B may well have hit J but I remind myself that B was only eight at the time. The Uncle admits he was angry by then. I find that the Uncle lost his temper and did kick B as alleged. This shows he does have a temper. It also shows that his evidence is at times unreliable.
58. I was not impressed with much of his evidence of what happened on the date R was taken to the GP. I accept the submission that it sounded like he was making it up as he went along. Nobody could remember the level of detail he gave from over two years ago. He did accept that R was not himself and was crying a lot more than usual when he commenced his evidence. He also said that he tried to soothe him a couple of times but, in answer to Mr O'Sullivan for the Father, he undoubtedly downplayed any difficulties. He suggested that the screaming was only when R first arrived and that, later, he was just his normal self. I cannot accept this.
59. In fairness to him, however, I accept that he did not turn on the Mother. Despite his difficulties with her, he was not blaming her for what happened. If anything, I consider he underplayed her difficulties. He told me that R cried whenever he held him whereas he would calm down when with the Mother, who would settle him straight away. This was against his interests and the more impressive for that.
60. I cannot ignore, however, that he did say to me that "it was getting on top of me so I went out. I needed some time to myself. This was after R came". This admission that it was getting to him is undoubtedly a cause for some concern.

The Mother

61. I am, however, even more troubled by the evidence of the Mother. Mr Lloyd for the Local Authority began his cross-examination by asking her about evidence that she had been drinking alcohol during this period. She either said she could not remember or she said that her alcohol intake had been very modest. I cannot accept this evidence. I accept that she was never drunk when the foster mother handed B over to her but I am quite sure she did drink to excess at times during this period, although I am prepared to accept that this was primarily in the evenings when R was not with her.
62. I reject her evidence about the day R was taken to the out of hours GP. She told me that she was quite shocked when she heard R had gone to the GP. She said she could not remember him crying when he left. She said it was not a particularly difficult day. This is simply incorrect. She said that, if he had been that difficult, she would have taken him to the GP. Why did she not do so as I am satisfied he was that difficult during the day? She told the truth when she told the foster mother that R had cried all day and had not fed well. Why has she changed her account? Can she really not remember or is she trying to mislead me?
63. In answer to questions by Ms Lloyd for the Guardian, she said she would not have picked R up around the rib-cage. I cannot accept this. I recognise that the Uncle made similar comments but, in fairness to him, he handled R far less. She did say that she would have noticed if somebody else had caused the injury whilst in the house with her, although I am not completely sure about that, particularly if she was in a deep sleep.
64. All in all, I was not satisfied by her account. I have significant reservations as to what she told me.

My conclusions

65. Although it pains me to have to say so, I have come to the conclusion that there is too much that is unsatisfactory about the evidence of both the Mother and the Uncle that I am not able to exclude either from the pool of possible perpetrators. There is a real possibility that each of them inflicted this injury. One of them certainly did so but I cannot say which one.
66. I do not believe that the Uncle cared for R very often. The vast majority of the care was undertaken by the Mother. This does not, however, exclude the Uncle as he accepts he tried to soothe R twice on the day when R was particularly fractious. I consider he could well have lost his temper during this period. Whilst one might have thought that the Mother would have realised something was wrong, she might not have done so if she was in a deep sleep as everyone seems to accept is possible in her case. It could be said that the Uncle might be more likely to lose his temper if he was not experienced in looking after a fractious baby.
67. The vast majority of the care was undertaken by the Mother. I cannot ignore her chronic history of substance and alcohol misuse. I have found her evidence to be very unconvincing as to the day when R was taken to the GP. I recognise it was a long time ago but I consider she was downplaying the difficulties she had with R. I simply cannot accept that he was so difficult with the experienced foster carers and the Uncle but so easy to settle with her. Indeed, that is not what she said to the foster mother on the day.
68. I find that she has a temper as well. She lost it when the Uncle attended at her property when she head-butted him. She was just as capable of doing so on the day R was taken to the GP. She had more opportunity than the Uncle. I cannot therefore exclude her either.
69. I have accepted that this was a momentary loss of control. I do not consider it was in any way premeditated. I am sure that the perpetrator would have immediately felt significant guilt and concern for what he or she had done.
70. I have already indicated that it is a shame that the person responsible will not admit what happened although I do realise that concern as to the position of the Police can be a real problem when it comes to parties giving truthful evidence as to such matters.
71. The Mother has accepted that she will not be able to care for her children. This is a brave but realistic position for her to adopt. My findings will only therefore be relevant in relation to her if she has another baby. I am sure that there will be significant child protection measures put in place in such circumstances in any event regardless of my findings.
72. I have been more troubled about the effect of my findings on the position of the Uncle. I know very little about his current family. I know nothing about the mother of his child.
73. I remind the Local Authority that, although I have not been able to rule him out, I have not made findings that he was responsible. His child is now over the age of one. The child will be growing all the time and increasingly less susceptible to this sort of injury. As I understand it, the child has continued to live with the Uncle and the mother throughout this period even though the Local Authority has known about this issue since before the birth of that child.
74. I realise that the Local Authority may wish to keep a careful eye on the situation but, if there was any attempt to remove the child, I would want to hear the application myself. Without more, I am by no means convinced that an application would be a proportionate reaction at this point.

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