England and Wales Family Court Decisions (High Court Judges)

IN THE BIRMINGHAM COUNTY COURT

		Claim No: LN14C00748 Priory Courts 33 Bull Street Birmingham
		March 2016

21st March 2016

JUDGMENT:

MR JUSTICE KEEHAN:

1. I am concerned with two children, I, who was born 7 February 2011, so she is five years of age, and J, born on 10 April 2014, so he is nearly two years of age. Their mother is K, their father is M.
2. On 2 October 2014 the parents took J to hospital, the A and E Department, because of an incident at home. It was discovered that he had an arm fracture and he had been greatly distressed and the parents acted immediately in seeking medical treatment for him.
3. The following day, 3 October, J having been discharged to the care of his parents that night of the 2, they were asked to return to the hospital, where to their shock and surprise they were told that a subsequent review of the skeletal survey of J revealed older rib fractures.
4. J''s parents were then transported from G Hospital to B Hospital at about 6 p.m. that evening. They had previously been seen by two consultant paediatricians at G Hospital asking them about any events that may have resulted in these rib fractures. They were subsequently seen by a consultant paediatrician at B Hospital, Dr S, and at that stage they told me and I accept that they were in such a state of shock and bewilderment at quite what was happening that they did not give the account to Dr S that they did subsequently.
5. At about between 9 and 10pm the evening of 3 October the mother told a member of the nursing staff about an event that had taken place at a friend''s home in August 2014 whereby one Sunday morning she was walking downstairs with J in her arms when she slipped, she fell, she grabbed J tightly to her, he screamed inconsolably. The fall itself was not witnessed by the father, nor by Mr and Mrs R, the friends with whom the parents were staying, but they were shortly all present in the immediate aftermath.
6. There are various descriptions of the time at which J cried or screamed, but the general consensus is that he was inconsolable and very upset, such as the parents had never heard before that time. He took a period of time to settle and then a further period, probably about 10 minutes more, before he stopped crying.
7. Consideration was given to taking him to the accident and emergency but, not unreasonably, the parents were so shaken by events that they decided immediately to return home and consider when they returned home whether to take J to the A and E close to their home rather than some distance away.
8. After 3 October the police were involved, they interviewed the parents. The local authority were involved. J and I were subsequently placed with their maternal grandparents, where they remain to date.
9. The parents have been supervised in their interactions with and care of their children since this time. I am told that as from Christmas 2015 the parents have moved into an annex in the maternal grandparents'' home in order to play a much more active role in the care of both of the children.
10. The local authority issued proceedings on the basis of medical evidence that asserted that the rib fractures were sustained non-accidentally and were the result of an inflicted injury which had not been explained by one or other of the parents.
11. The matter came for hearing before His Honour Judge Robert Owen, QC, who gave judgment on 3 July 2015, where he rejected the explanation and account given by the parents, found that the rib fractures sustained by J had been caused non-accidentally, and made findings contrary to the parents.
12. That decision was the subject of an appeal. On 13 January this year the matter came before the Court of Appeal, where with the consent of all parties the appeal was allowed and the matter was remitted to be reheard by a different judge. Thus the matter comes before me today.
13. When considering this matter I, of course, have to bear well in mind that the burden of proof throughout is on the local authority; there is no burden upon the parents to prove their innocence. The standard of proof is, as described by the Supreme Court, the simple balance of probabilities.
14. I have to have regard to, of course, not only the expert medical evidence but the much wider canvas. I have the benefit of surveying all that is known socially and otherwise about these parents and these children. In so doing I have well in mind the judgment of Charles J in A County Council v. K, D and L [2005] 1FLR 851, where he set out that because of the wider canvas that the Court has to consider, the Court may come to a conclusion that there is a non-accidental injury contrary to the medical expert evidence. Conversely, it is open to a Court to find that injury has not been caused non-accidentally even though there is a consensus of medical opinion again to the contrary.
15. On the facts of this case I have to be immensely careful and cautious that I do not inadvertently or otherwise reverse the burden of proof and effectively require the parents to satisfy me that this injury was not an inflicted injury.
16. It was agreed that at this rehearing I should solely hear evidence from the mother and the father giving their accounts of the events of the fall at the friends'' home in Tunbridge Wells and to give some more limited evidence about the circumstances which led to J suffering a fractured arm on 2 October 2014. It was agreed by all parties that I did not need to hear evidence from the medical experts, namely Dr Somers, Dr Chapman, Dr Fonfe, who gave evidence at the hearing before His Honour Judge Owen, nor indeed from the geneticist Dr Saggar.
17. In relation to Dr Saggar there was some suggestion, given the father''s history of unusual fractures, that J may have had a genetic disposition to easily fracturing as a result of osteogenesis imperfecta or some other connective tissue disorder, of which there is no sign medically. I am quite satisfied that whatever the explanations may be for J''s rib fractures sustained sometime in August 2014 that they are not explained by either osteogenesis imperfecta, connective tissue disorder, EDS or any unknown medical cause.
18. Dr Chapman, consultant paediatric radiologist, Dr Fonfe and Dr Somers were agreed that accidental rib fractures are exceedingly rare. They are agreed they are exceedingly rare because they require significant force equivalent to that used in cardio-pulmonary resuscitation, depressing the chest by a third. However, they were also agreed that the incident described by the mother in August 2014 would fit the mechanism of rib fractures and significantly the event in August 2014 fell within the timeframe for which these rib fractures were sustained.
19. What caused those three medical experts to hold back from accepting the account given by the parents was that they each doubted that in the actions described by the mother would have generated sufficient force to J''s chest to have compressed his chest sufficiently to have resulted in the rib fractures. Dr Chapman, however, pointed out and agreed that whether the episode described by the mother did or could have produced sufficient force to cause the rib fractures is solely a matter for the court.
20. The local authority point out that the mother has given various descriptions of how it was that she grabbed and held J during the course of the fall in August 2014. I accept, however, as the mother has described, that it all happened in but a moment and it is very difficult to reconstruct precisely what the mother did instinctively when she was falling and she wanted to take steps to protect her young baby.
21. There is complaint made that it was not until some eight hours after the parents were at hospital on 3 October that the account was first given of a fall as a possible explanation for the rib fractures. I do not consider that to be a significant or material omission. When the parents were called to the hospital at 1 o''clock on 3 October they had no idea why they were being recalled to the hospital. One can only imagine the enormous great concern, surprise and upset to learn that in addition to fracturing his arm their young baby had also suffered multiple rib fractures. They were then told that the police were to be involved and social services were to be involved and one can only imagine what trauma and difficulty that caused for these parents to see, effectively, their lives being turned upside down in very short measure.
22. I entirely accept the father''s account that he probably got side-tracked in trying to assist the doctors by making contact with a clinician with whom he has been involved and going down the route of considering whether there was any genetic or hereditary cause for J sustaining these fractures.
23. Accordingly, I attach no significance whatsoever to the fact that it was at 9 o''clock on the evening of 3 October the parents gave the account of the events of August as a possible explanation to the treating clinicians.
24. In cases such as this one looks for what are considered to be risk factors for the infliction of non-accidental injury in children. The local authority readily concede none are present in this case. It involves two perfectly decent, hardworking parents in a stable relationship until these events occurred, leading a stable, comfortable home life, no previous convictions, no previous involvement with the police or social services, no previous concerns about the care afforded to either of the children, no history of domestic violence, drug use or alcohol misuse, no issues whatsoever of neglect. On the contrary, the care that they afforded their children was seen to be exemplary both prior to and subsequent to the events of August and October 2014. There is a strong support network around them. Accordingly, no adverse factors are known about this family at all.
25. I entirely accept that the absence of those factors and the fact that there are loving, dedicated, devoted parents does not, sadly, mean that a loving, caring parent, under the pressures of day-to-day life, may, albeit rarely, lose control but for a moment, with the result that they inflict injury upon their young children. That, of course, sadly occurs.
26. What I have to be satisfied of is that the local authority has satisfied me that it is more likely than not that one or other of these parents in August or thereabouts of 2014 squeezed their young baby''s chest with such force that it caused rib fractures. It strikes me as remarkably coincidental that the parents put forward an account to the clinicians which as far as the medical experts are subsequently satisfied meets the timeframe and meets the mechanism for the infliction of these injuries. The event that is described, as I have said, was in its immediate aftermath witnessed by the two friends with whom they were staying. The presentation of J crying inconsolably for a period of time before eventually calming and then stopping crying after some 10 minutes is entirely consistent with a child who has sustained rib fractures.
27. It is generally the medical evidence, as it is in this case, that, thereafter, the child may exhibit no outward signs of being in pain or having fractured ribs other than a period being somewhat grizzly or out of sorts. There is nothing in the account of the parents of the events of August which contra-indicates that J sustained his fractured ribs during the course of that fall. The only issue is force and that Dr Chapman asserts is a matter entirely for me.
28. I accept the parents'' account of the events of August that there was a fall, that mother did grab hold of J. She cannot say -- it would be surprising if she could – what was the precise degree of force with which she grabbed hold and clung hold of J. She herself would be in a state of shock and surprise at slipping, worried about herself and more importantly worried for young J. It strikes me as perfectly possible that the degree of force and the unusual circumstances of the fall may well have caused the rib fractures sustained by J.
29. Given all that I know about this family, which is entirely positive, I am extremely unhappy at the prospect of excluding that fall as a possible cause therefore finding myself in a position of having to conclude that there was another undisclosed episode of inflicted injury which these parents are withholding from the court. That might be the case, but I am entirely satisfied that neither of these parents are withholding an undisclosed account.
30. I am satisfied that they have been as frank to me in their short evidence as they were with the treating clinicians, with the police and with the social services. I have rarely, if ever, read and come across a case where in these circumstances parents have cooperated so extremely well with the police and, in particular over a long period of time with the local authority when they felt they had been done a great injustice.
31. Accordingly, I have absolute confidence in concluding that the local authority have not satisfied me that J''s injuries were inflicted non-accidentally by either his mother or his father. I am entirely satisfied that they were inflicted and sustained during the course of a fall down stairs in August 2014. Accordingly, the local authority have failed to satisfy the threshold criteria of section 31(2) of the Children Act 1989. Given that this is a single issue case concerning solely the issue of the cause of J''s fractures, the care proceedings in respect of both children are dismissed.