England and Wales Family Court Decisions (High Court Judges)

The parents

‘appears interested in advice and information, but presents as a controlling and domineering partner. During contact, he was overpowering in saying what he thought, above [the mother’s] voice, interrupting her at times, to express himself. His verbal presentation was loud, that his opinion was right.’

The parents’ engagement with these proceedings

‘1. Permission to challenge the making of an Interim Care Order on 2 June 2017 is refused on the basis that such claim has no reasonable prospect of success.

2. The claims made by the claimants in relation to the alleged conduct of the defendants are stayed generally, with permission to the claimants to apply on notice to lift the stay on the conclusion of the Family Court proceedings or otherwise on proper grounds…If no such application is made by 4p[m on 13 December 2018 the claim will be struck out.’

‘It follows that neither the fact that the proceedings have lasted well beyond the 26 week deadline nor the fact that, for a period, no advance extension order had been granted, invalidate the current interim care order or mean that the case can no longer proceed to a final hearing.’

‘14. Inside the notebook were three separate pages of notes, relating to families that I work with. This was my own brief notes, detailing information that was confidential and sensitive to those families, although full names were not used and they would not be recognisable or traceable based on the information in my handwritten notes.

15. However, I was also in the process of amending a report I had written, and had temporarily stored it with my notebook to keep it safe. This was a statement prepared for court…and contained highly sensitive information about a child and their parents who are subject to Court Proceedings. It will have been evident from the front sheet of this documents that it was a confidential court report, regarding a child that has no connection to the [the father]. This report was five pages long…’

‘21. …informed us that he was not willing to sign a written undertaking. He confirmed that he had taken copies of the court report and refused to delete the images stating: “I am not condoning this. The information is of public interest. I am a victim of the same situations as that victim. A child is in the system for no reason. There is significant public interest here, it appears to be a pattern.”’

‘observed the Respondent Mother standing outside the Council House at the bottom of the steps on Corporation Street holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”. She wandered quietly up and down the pavement…Later that day the Respondent Father joined the Respondent Mother.’

The parents’ explanation of O’s injuries

‘6. Within the entry time at 17.12 on 27 May 2017 I have typed:-

Father of baby O did ring the department earlier and I took the phone call. Dad said the following “The baby has been dropped and he has got a swelling to his head do I need to bring him down”

Myself “Yes bring him to the Children’s Emergency, as he will need checking over” …

9. The fact that I have used speech marks to document my telephone conversation within the computerised entry at 17.12 would indicate that this was my word for word account of what was said during the conversation.’

‘I reviewed O with his parents…present at around 17.15. On taking a history of events, the father advised that O had fallen from his parents’ bed onto the floor while the father was changing his nappy (this history was also written in the notes at the initial assessment by Staff Nurse Anna-Marie Young). When asked about the mechanism behind the injury, the father then stated “Actually I dropped him” and reported that the baby had fallen from his arms onto the floor whilst he was reaching across the bed for a nappy. The mother stated that she was not in the same room at the time of the incident and therefore could not give any more details.

The father stated that O had been quiet for a few seconds immediately after the event but then had cried as he had bent down to pick him up. Both parents agreed that O was consolable afterwards with a feed and reassurance, but had been crying intermittently since.

On asking about events following head injury the mother stated that O had been “quiet and a bit floppy” but the father disagreed and stated “No, no, he’s been fine – I haven’t been concerned”.

Both parents agreed that he had fed well following his head injury, and had been alert, interacting normally and moving all of his limbs with no vomiting, seizures, unusual behaviour or abnormal movements.’

‘tells me that at approximately 3.30pm on the 27^th May 2017 father was in the bedroom, with O laid on the changing mat on the bed and father was doing nappy change for him. During this process O’s legs were towards the edge of the bed and dad was initially holding O’s legs and then he bent down to the right to get the nappy from the floor. He tells me that O then slipped off the bed onto the floor. The height of the bed is approximately 2½ feet and O fell onto a carpeted floor which has floor boards underneath. The edge of the mattress is flush with the edge of the bed. After O fell on the floor father tells me that he cried immediately and therefore father picked him up and did not see any lump on the back of O’s head at that point. He claims that he called O’s mother, but immediately called 999 even before O’s mother came to see O. Father alleges that O’s mother was not in the room when this happened. O’s mother claims that she was not in the bedroom but she cannot remember where she was and that she was somewhere downstairs. When she came up into the bedroom and picked O up she noted a lump on the back of his head at that point. There is no history of floppiness, no history of vomiting, he was initially crying but settled quite quickly. He has continued to breast feed as usual. There was no loss of consciousness.’

‘1. That on Saturday 27^th May, at around 11am, I arrived at the mother’s home to visit with my son O. Upon arriving, I made my way to the bedroom which the mother shares with O. I aided in changing his nappies and indulged in curdles (sic) while his mother attended to housekeeping duties…

3. I’m sure if it’s the case with most kids but O hates nappy changes so he often cries whenever his little feet are tilted in the air. Suffice to say it was time for a nappy change by then it was 3.45pm.

4. I placed the changing mat onto the bed, grabbed the nappies and threw them to the floor, all the while holding O. I then placed O towards the edge of the bed onto the changing mat. I tried reaching for the clean nappies a few feet away from me beside the bed thereby moving at least 1 foot away from the bed, I heard a thump and a cry and saw O on the floor. The bed is approximately 2 and a half feet high.

5. He cried immediately and instinctively I picked him up and curdled (sic) him, at the same time I called out to the mother who was downstairs at the time. As soon as she entered the room she asked what happened and I explained that he slipped off the changing mat. She reached out for O and took hold of him, I called 999 for advice and at the same time the mother observed swelling to O’s head. I explained to the operator what had happened and was told the incident was a non-emergency.

6. In the meantime the mother continued curdling (sic) O and he eventually calmed. I followed up by calling the Royal Derby Hospital for advice. I was told to bring him in.

7. Within 30mins of O falling onto the floor we were already at the hospital. O started feeding shortly after the fall and by the time we got to the hospital he was back to his normal self. O has been in perfect health ever since.’

‘1. That on Saturday 27^th May, at around 9am, O was in my care throughout the day. As per usual his father visited that day around 11am and assisted in bathing and changing Os (sic) nappy while I attended to household chores.

2. During the course of the day while downstairs around 3.45pm, I heard O crying and at the same time the father called out to me to come upstairs.

3. When I got to the room I asked the father what happened. He told me O slipped off the changing mat from on top the bed, while he attempted to reach for a clean nappy at the side of the bed.

4. At that moment O was crying. I inspected his head and observed a bump on the left side. I informed the father of my finding as he was at the time on the phone with 999 to seek medical advise (sic).

5. The father described the accident to the dispatcher and explained that there was a bump to his head. The dispatcher told him the incident was a non-emergency.

6. We then called the Royal Derby Hospital for further advise (sic) and was told to come in. We subsequently called a taxi and made our way to the hospital.

7. I am of the firm belief that O is safe in the care of his father and absolutely no harm will come of him in our or my care.’

‘O did not suffer physical harm from either of his parents. O is perfectly fit and healthy. His welfare is of paramount importance to his parents. Aside from the allegations of “subtle fractures” there is no evidence adduced before the court pointing to ill treatment, in fact the evidence suggests he was well cared for. I do accept that O had a 4cm x 4cm bump to his head but it was because of a low fall while in his father’s care. I do not accept that there were any injuries because of the fall at 2 and a half feet. Any alleged fractures and associated bleed is perfectly consistent with birth related issues in babies…The possibility of any fractures or bleed because of the fall, (and it is our unyielding submission that there isn’t) medical evidence indicated that such injuries are consistent with that explanation.’

‘On 27^th May 2017, 6 week old O sustained a low-level fall (2 and a half feet) during a nappy change while on a changing mat on a bed, resulting in swelling to his head (4cm x 4cm). He was taken to hospital immediately by both his parents. On arrival at the RDH, the paediatric team openly documented a predetermined diagnosis of Non-Accidental injury (NAI) in bad faith. The fabricated NAI diagnosis being a perfunctory step towards Social Services referral.’

O’s admission to hospital

The opinion of the treating clinicians

‘Though the child had had a fall, his Glasgow Coma Scale was 15/15 and he was alert and playful. He had no neurological deficits at the time of referral, and so I advised for the child to be under neuro-observations. There was no need for any acute neurosurgical intervention.

The CT scan did not show any evidence of brain injury. However there was evidence of scalp haematoma on the right side and also evidence of underlying bi-parietal fracture – consistent with trauma. There was a very thin right-sided subdural haematoma underneath the fracture which was not causing any mass effect.

There was a query about NAI (non-accidental injury) from the referring team.

At no point, was it suggested by me, that this injury was non-accidental in nature.’

‘The changing history from the father and the history of fall from a 2½ feet high bed onto a carpeted floor is not compatible with the swelling identified with an underlying bilateral parietal fractures…

The finding on the CT scan with bilateral parietal skull fractures and associated small subdural haemorrhage on the right is not compatible with the history of falling off a bed onto a carpeted floor. As the impact of such a fall from a small height would not be enough to sustain bilateral skull fractures in an immobile infant with normal bone density.

Though he has low vitamin D levels, this does not cause bilateral skull fractures in this child, because the bone density is normal. Hence it is consistent with non-accidental injury.’

‘I would like to clarify that I have not asserted that the injuries were caused by one event in my medical report. The history given by father of O falling off the bed on to carpeted floor was inconsistent with the bilateral parietal skull fractures. To sustain bilateral skull fractures it would need a significant amount of force. A fall on one side of the head would not cause skull fracture on the opposite side. Although a call would involve more than one impact, the force on the second impact during a fall would not be enough to cause a skull fracture.

The skeletal survey did not show any other bone injuries other than the bilateral parietal skull fractures.’

Expert medical evidence

Dr Stoodley

‘O’s scan shows that he has sustained bilateral parietal skull fractures. The presence of a skull fracture is evidence that there has been an impact injury to the head of sufficient severity to lead to the fracture. The commonest type of skull fracture seen following accidental or nonaccidental impact head injury is a simple linear parietal skull fracture. More complex fractures such as those that are diastatic (widened) or depressed are seen more commonly in the context of non-accidental head injury but it does not follow that simple fractures are due to accidental mechanisms and more complex fractures non-accidental; the appearance of the fracture is more likely to depend on the degree of force causing it than whether it was accidental or non-accidental.

Whilst the bilateral nature of the fractures might be due to separate impact

events to either side of the head (or an alternative mechanism such as a crush injury), it is possible (although unusual) for a single impact event to give rise to bilateral fractures.

The absolute degree of force required to produce a skull fracture in infants

and children is not known and indeed we do not know the true incidence of skull fractures following impact head trauma in children as not all children who have sustained such injuries have skull x-rays or scans. Everyday clinical experience would however suggest that trivial head trauma is unlikely to lead to skull fractures. However, domestic type impact injuries, such as a possible fall from a bed as described, do sometimes result in skull fractures. My understanding of O’s developmental stage is such that he would not have been able to have manoeuvred himself into a position whereby he could have caused the fracture himself. It follows from the above therefore that the causative event is likely to have occurred whilst O was in the care of another individual.’

Dr Ward

‘A history of a fall is common in a child presenting with a skull fracture. In this case although there was some initial variation in the history offered (falling off the bed versus being dropped by the father) it was consistently stated that the child fell in the course of changing a nappy. The father stated on one occasion that he dropped the baby but at other times in his statement he said that the child who was on the edge of the bed fell to the floor when he bent down to get a nappy from the floor. The preponderance of literature on childhood falls indicate that short falls rarely result in serious or life-threatening head injuries despite their frequency. Each credible study supports the conclusion that severe head injuries reported to be accidental unless related to a moving vehicle accident or fall from a very significant height are very likely to be the result of abuse particularly if the injuries are ascribed to falls from short heights that occur at home unwitnessed by objective observers. However, fractures may rarely result from short falls onto carpeted floors.’

‘The clinical findings in O suggested impact more than one would expect as a result of a simple fall onto a carpeted floor. Nevertheless there are examples of fractures resulting from low level falls and the scenario of bilateral skull fractures has been described as a result of a single impact.’

‘It is not possible to accurately date skull fractures on the basis of the radiological appearance of the fractures; skull fractures do not go through the changes associated with callus formation seen in long bone and rib fractures. If one accepts that the soft tissue swelling to the scalp was associated with the fractures this would suggest that the fractures are recent. Soft tissue scalp swelling associated with fractures usually occurs over a period of hours or days after the injury and resolves within around 7-10 days. Therefore in this case it is likely that the fractures occurred no more than around 10 days before presentation. However there is no scientific basis for dating fractures on the basis of scalp swelling and it is not possible to use this as an indicator as to whether the two fractures occurred simultaneously or at different times within the timeframe.’

‘Biochemical vitamin D deficiency or insufficiency in the absence of radiological features of rickets has not been found to be associated with increased risk of fractures. However biochemical vitamin D deficiency in the presence of radiological changes of rickets is considered to be associated with an increased risk of fracture therefore I would recommend expert paediatric radiological review of O’s skeletal survey.’

Dr Landes

‘these fractures may have occurred as a result of a fall from the height of a bed. I agree that it is also possible that these fractures may have occurred as a result of one or more than one other event.

It is not possible to determine, from the imaging alone, which of these possible scenarios is the more likely.

In the absence of a clear and satisfactory account of the mechanism of trauma or a medical explanation for the fracture, the most likely explanation for the presence of bilateral skull fractures in an infant of this age is non accidental injury,’

Social work evidence

‘It is important to say that the mother, along with the father, appear to have sought appropriate medical attention for O and have consented to examinations and tests. O was also presented as comfortable in the care of the mother who has [confidently] met his basic care needs whilst on the ward.’

‘maintains that O slipped from the bed onto the floor whilst changing his nappy causing injuries. He reports that this was an accident and appropriately sought medical attention. The father states that he has not changed his explanation of what happened, rather the hospital staff have misinterpreted what he has said. The father is aware of the conclusions of the Child Protection Medical but dismisses them stating that these are incorrect. It is noteworthy that he had to be removed from the hospital ward by security due to refusing to leave when requested.’

‘The parents have attended contact with O regularly, particularly mother who has come to all contacts offered. Supervised contact between O and parents is of good quality and parents come early to all sessions. The contact between O and mother is of very good quality. She is organised, child focused and attentive to O’s needs. The mother also brings appropriate food and toys and spends contact interacting fully with O. It is clear they retain a bond and that she adores her son. The father comes to fewer contacts due to work commitments and travel. However, he also demonstrates a high level of child focus and positive interaction with O…

While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met.’

The law

(i)            It is the local authority which seeks findings that O’s injuries are non-accidental injuries. The burden of proof rests upon the local authority.

‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father.

‘While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met’

‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father.

2. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including:

a. Soft tissue scalp swelling in both parietal regions which is more extensive on the right.

b. Bilateral parietal lucencies consistent with linear fractures in both parietal bones.

c. Very small collection of extra-axial acute blood on the right-side swelling.’

(i)                 There is research evidence that between 1% and 2% of falls from a low height cause skull fractures. That evidence also suggests that low-level falls have on occasion caused bilateral skull fractures, though the incidence of bilateral fractures is lower than the figure for single fractures. Dr Stoodley and Dr Ward are both agreed that although the parents’ explanation is an unlikely mechanism for the causation of O’s injuries, their explanation provides a possible and not merely a fanciful explanation.

(ii)               A skeletal survey did not disclose any other fractures.

(iii)             At the time of O’s admission to hospital he was noted to be well-cared for, well-nourished, putting on weight at an adequate rate (he was on the 25^th to 50^th centile) and developmentally normal. Save in respect of the head injuries, there was nothing in O’s presentation that gave cause for concern.

(iv)             Both in hospital and subsequently during contact, both parents have been observed to be loving, caring and capable of meeting O’s needs. It is clear that O is the apple of his parents’ eyes.

(v)               Whatever may have happened on 27^th May and whether or not they did, in fact, call 999,  it is clear that the parents contacted the hospital for advice, that they did so promptly and that they acted on the advice they were given by taking O to hospital immediately.

(i)                 The father’s account of O falling onto the floor is not consistent. When he telephoned the hospital he told Staff Nurse Young that he had dropped O. When he gave a history to Dr Keillor, initially he said that O had fallen off the bed. Given that O was a wholly immobile child, that would appear to be an unlikely explanation. Later in that same interview the father said to Dr Keillor ‘actually I dropped him’. Later, when giving a history to Dr Kalepu, he said that O had fallen from the bed onto the floor.

(ii)               The parents say that they called 999 but the East Midlands Ambulance Service has no record of the call. Production of the parents’ mobile phone records may have confirmed their account. Despite being ordered to do so the parents have failed to produce those records.

(iii)             The parents were not wholly cooperative at the hospital. They were asked to give their consent to a skeletal survey being undertaken. Initially they refused. They later consented.

(iv)             The father was not open with the police when interviewed. During his interview the father repeatedly said, ‘I choose not to answer that question at the moment’.

(v)               Notwithstanding their entitlement to non—means and non-merits tested legal aid (i.e. they were entitled to free legal aid) the parents chose to act as litigants in person, a decision that was irrational and counter-productive in equal measure.

(vi)             I have earlier expressed concern that the mother’s decision to act as a litigant in person was a decision imposed upon her by the father and not a decision that was freely made.

(vii)           In issuing proceedings for judicial review and in taking, copying and threatening to publish confidential information which he had obtained in circumstances which bordered on the dishonest, the father demonstrated that he is not focussed on the needs of his child. This impacts on my assessment of his credibility.

(viii)         The expert medical evidence is to the effect that there is a window of time within which these injuries may have occurred and that window began 7 to 10 days before the CT scan was carried out on 27^th May. Dr Ward’s evidence is that the swelling to the scalp ‘usually occurs over a period of hours or days after the injury’. The parents have not provided any account of the events of the days leading up to O’s admission to hospital.

‘3. The assaults and injuries were inflicted by:

a. The Mother, or

b. The Father, or

c. The Mother and the Father, or

d. The Mother and/or the Father’

‘4. The Mother has failed to protect O in so far as if she was not responsible for the assault or assaults to O, she failed to protect him from physical abuse by the Father.

5. The Father has failed to protect O in so far as if he was not responsible for the assault or assaults to O, he failed to protect him from physical abuse by the Mother.’

‘6. O has been exposed to physical neglect within a 10 day period leading up to the time of the scan on 27th May 2017.’

Conclusions

Postscript