1 Oxford Row
B e f o r e :
(sitting throughout in public)
| Re: C (a child)
(Serious physical injuries; fact finding)
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MISS KERRY BARKER appeared for the mother
MISS CATHERINE SMITH appeared for the father
MISS JANE CURNIN appeared for the guardian
Crown Copyright ©
MR JUSTICE HOLMAN :
Introduction and overview
a) causation by the legs flailing during the admitted shake on 18 August; or
b) the alleged but denied pulling of the child's legs by the mother; or
c) some other undisclosed incident.
"It is unusual for a small and non-mobile baby to present with any form of bruising. Research studies which have looked at this question indicate that only one or two percent of non-mobile infants present with any bruising at all. If an infant does have bruising, this is most commonly a solitary bruise and there is usually an adequate explanation for that bruising. It is therefore very concerning indeed when any infant presents with multiple bruising."
The agreed medical schedule accordingly records that:
"The bruising was caused by some form of impact injury; a fall or a blow or pressure applied with a hard object, including fingers… In a non-mobile child inflicted injury is [the] more likely explanation for most [of] the bruising."
The parents as witnesses
The essential facts
"c/o crying more than normal now and coughs, also feverish today, dad had tonsillitis, mum is worried, bottle-fed,… sometimes vomits after food…"
The allegations of domestic abuse and control
"During the parents' relationship the mother was subjected to domestic violence perpetrated by the father. This is demonstrated by:—
(a) the father coercively controlling the mother by:—
(i) isolating her from her family by limiting when she could see and speak to her family;
(ii) controlling and monitoring her Facebook account and other social media accounts from November 2016 by either deleting the accounts, checking who she spoke to and sending messages supposedly from the mother to her friends.
(b) the father being physically violent to the mother including:—
(i) on 18 August 2017 hitting the mother's arm and head causing a bruise and took her car keys off her and in doing so prevented the mother from taking [the child] to obtain medical treatment;
(ii) in February 2017 grabbing the mother by the neck and hitting her arm causing her to suffer a bruise. This bruise was seen by Casey Murray and a referral to social services made.
(c) the father being verbally abusive and degrading towards the mother throughout the relationship."
By his pleaded response, the father effectively denies all the allegations, although he does admit and aver that:
"… due to the pressures on their relationship in relation to money and significant debts, this was a mutual source of arguments between them which at times were heated."
"Just to clear the air about what other people may think, he does not control me in any way, shape or form, he literally runs around the house for me, if I'm throwing up he's there in a heartbeat rubbing my back, he is constantly trying to work on things to make my life easier and I fully understand that you don't see me much any more. This is due to settling into the house and getting things for baby and also my choice but it would be nice to know that you at least were happy for me and that I'm safe and loved by him xxx."
On the face of it, that text strongly contradicts the account the mother now gives of abuse and control. The mother asserts, but the father denies, that it was the father who composed and sent the text, deliberately using the mother's mobile 'phone, so that the text appeared to come from her.
"Just say things like
if you think [the father] hit me, he never would. He can't wait for this baby.
And [the father's] mum doesn't know me like you don't know [the father] and she really cares for me.
I don't talk to certain people any more because I'm pregnant and want to concentrate on settlin [sic] down.
Just say obviously no one will be happy till [the father] is gone."
Again, each parent was specifically asked in whose writing that was written, and each said, via instructions taken in the court room, that it is that of the other. It is obviously a mark of how entrenched and polarised these parents now are that one of them (but I do not know which) can so brazenly lie (not on oath) as to deny his or her own handwriting. There being no expert handwriting evidence, I am quite unable to say who wrote those words. I have no idea whether the mother was writing down thoughts or reminders for herself of what to say; or whether the father was writing down instructions to her of what to say.
Analysis and findings as to who caused the fractures and bruises
i) the fact that he carried out the internet searches into baby eyes rolling, seizures, etc and acquired brain injury, starting at 7.34 a.m. on the morning of 18 August; and
ii) the fact that he made the video at 7.43 a.m. on the morning of 18 August and then continued with more internet searches at 7.46 a.m., 8.57 a.m. and later that day.
As the mother was asleep upstairs at the time, these were patently the acts of a very anxious person who obviously realised that he had abused the baby and was very worried by the signs she was showing and that he may have seriously harmed her.
"If the court cannot find on a balance of probabilities it was, for example, the mother who caused the rib fractures, it does not follow that it was the father and vice versa. Each proposition is to be decided on the evidence. It is necessary to approach the issue in this way to avoid inadvertently reversing the burden of proof. The parents do not have to show that they did not do something."
I agree with that approach and warning, and I direct myself by it. Although I have just stated that I do not find on the balance of probability that the mother caused the injuries, it does not follow that the father probably did so. If it did, there could be no "pool" outcomes in cases such as this, although, as I have described, the law recognises that in some cases there have to be. So I must give quite separate and discrete consideration to whether I consider that the father probably caused the injuries, no higher standard of proof being required.
The failure to protect the child and neglect in seeking medical care
1. It is suggested that the relevant applicable principles are as follows:
2. The legal principles relating to finding of fact hearings can be found summarised in any number of recently reported cases. For example, Munby P drew together all the salient legal principles in paragraphs 20 to 24 of his judgment in Re X (Children) (No 3)  EWHC 3651 (Fam), in which Baker J's judgment in Re L and M (children)  EWHC 1569 was cited. Munby J added to these points four further principles in Re Y (Children) (No 3)  EWHC 503 (Fam) paragraphs 17-23. Similarly, at paragraphs 4 to 10 of the Judgment of Jackson J (as he then was) in the case of Re BR (Proof of Facts)  EWFC 41, the principles applicable were set out clearly and concisely.
3. These principles can be summarised as follows:-
4. The law is clear that for an allegation to become a fact, it must be proved applying the legal standard. It is not appropriate to find that something "might" have happened; The "binary approach". As Lord Hoffmann observed in Re B (Care Proceedings: Standard of Proof)  UKHL 35
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."
5. Findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) but not on the basis of suspicion or speculation; Re H and R (Child Sexual Abuse: Standard of Proof)  1 FLR 80; Re A (A Child) (Fact-finding hearing: Speculation)  EWCA Civ 12.
6. Equally, so far as the identification of a perpetrator is concerned, that exercise also simply requires a finding on the balance of probabilities.
7. There are particular benefits in making a finding identifying a perpetrator. The main reason is that it will promote clarity in identifying the future risks to the child and the strategies necessary to protect him from them. Another important reason is that it will enable the professionals to work with the parent and other members of the family on the basis of the judge's findings. There are also arguably long term benefits for the child in knowing the truth as to who injured them [Re SB  UKSC 17] .
8. The Court should therefore firstly consider whether it can be satisfied on the balance of probabilities who is the perpetrator of each of the non-accidental injuries.
9. However, if the evidence does not permit such a finding and the Court is genuinely uncertain after weighing and considering it, the Judge has a duty to say so. Re D (Care Proceedings: Preliminary Hearing)  EWCA Civ 472. The Court should not strain to identify the perpetrator. As Lord Justice Wall stated at para 12 in Re D:
"If an individual perpetrator can be properly identified on the balance of probabilities, then ... it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."
10. If the Court cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators [para 40 Re SB ]. What is the test to identify who should be in the pool of possible perpetrators? The test introduced by North Yorkshire County Council v SA  EWCA Civ 839 and approved in Re SB  is whether there is a "real possibility" that a particular person was involved [para 43 Re SB].
11. In the event that the Court cannot identify the perpetrator to the requisite standard the Court should be cautious about amplifying a judgment in which it has been unable to identify a perpetrator: "better to leave it thus" [para 44 Re SB]. This was in a context where the Judge at first instance had been invited to give an indication of percentages.
12. In the present case it is accepted that in the event the Court cannot identify the perpetrator of the rib fractures and/or metaphyseal fractures, the Mother and Father are within the pool of perpetrators on the basis that they both had care and there is a real possibility that each was responsible.
Implications of a 'pool' finding
13. Having established the facts, the Court will in deciding what order, if any to make, analyse the facts in the context of the welfare checklist and will be assisted by social work and possibly other expert opinion and by the Children's Guardian. A 'pool finding' will be a relevant but not determinative factor.
14. Any 'pool finding' that a parent has possibly caused harm will be a relevant consideration when considering the future care of the child. It is not, as with any finding, determinative of a particular outcome but the first of the three questions in any care case, namely; 1) is there harm, or likelihood of harm 2) what is the harm or likelihood of harm attributable to and 3) what will be best for the child? (Re J (Children)  UKSC 9 paragraph 2).
15. There may be implications for the care of future children of a person identified as being a member of the 'pool of possible perpetrators'. This will be fact specific and the court will be asked to consider whether the threshold is met for such other children based upon facts found in an earlier case.
16. In Re J (Children)  UKSC 9 the Supreme Court confirmed MacFarlane LJ's rationale in Re S-B  1 AC 678 that what is impermissible, was to make a 'pool finding', that there was a real possibility a parent had caused harm, the only basis for predicting that the parent was likely to cause harm to a child in the future. Re J confirmed that it would not be possible to establish possible future harm if predicated upon past possible harm alone. Being consigned to the pool of possible perpetrators falls short of a finding that a person has caused injuries. It is a highly relevant fact that will be considered alongside other findings (if any) made alongside the 'pool finding' and/or other relevant current facts (paragraphs 51-53); a truly 'one point' case is rare.