IN THE FAMILY COURT
Case No. BB14C00018
Sitting at Leyland
Leyland Courthouse,
Leyland
Friday, 10th October 2014
Blackburn with Darwen BC v R (Injured child)
Before: HIS HONOUR JUDGE DUGGAN
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
JUDGMENT
1. HIS HONOUR JUDGE DUGGAN: By this judgment, I determine the one outstanding issue in these care proceedings, which is the identity of the perpetrator of the injuries to the child. The child with whom I am concerned was born in April 2011. The parents were together for about four years, until the turn of the year.
2. The other important figure in the case is the mother’s new partner. He has been given the status of intervener in order to defend himself from the allegations that have been made against him. In fact, he was served with an invitation to intervene as long ago as June, but he failed to respond. Instead, he attended on the first day in response to a witness summons and indicated that he was seeking representation. A solicitor rose to the challenge and, at his request, the case was adjourned for two days. On the third day, the solicitor, Mr Jackson, was ready and has made a full contribution to this hearing, for which the court – and I hope the new partner – is very grateful.
3. The outcome of the care proceedings is very largely agreed in that the child should live with the maternal grandmother. I agreed to try this issue, which is very relevant because of the medium-term ambitions held by the father to pursue the care of the child.
4. The relevant material has been assembled in a number of lever arch files, with the contents of which I am familiar. I have heard oral evidence from the mother, from the father and from the new partner.
5. The law that I have applied is familiar: the burden of proof is upon the Local Authority, there is no obligation on the other parties to explain anything. I must not rely on mere suspicion or speculation; I must rely only on evidence. I look for the case to be proved on the balance of probabilities.
6. Medical evidence can be important, but all evidence, including medical evidence, must be considered in the context of all the other evidence, including what has been described as the wider social canvass. Medical evidence can be wrong in that scientific knowledge is still developing and is recognised to be incomplete. However in this case, we are considering medical evidence at the main stream of medical science. The proposition is that bruising needs an appropriate trauma as its cause, which is not controversial between the parties.
7. The evidence given by the parents and by the new partner is of the utmost importance. I have assessed their credibility and reliability. I have reflected that witnesses do sometimes lie for reasons of their own, for example out of fear, and I have reminded myself that this does not necessarily mean that they are lying about everything. The heart of the case remains the central proposition that the Local Authority must establish their allegations.
8. I must identify the perpetrator only if I am satisfied as to identity on the balance of probabilities. It is desirable that I should make this identification if possible, but I recognise that in some cases it is not possible and that the judge should not in those circumstances strain to do so, but instead should identify the real possibilities.
9. I have read all the evidence and heard from the witnesses, and I have reached the clear view, on the balance of probabilities, that these injuries were inflicted by the mother’s new partner. The purpose of this judgment is to explain the reasons that have brought me to that conclusion.
10. I start with the medical evidence. On 6th February 2014, the child was seen to have injuries in and around both ears and to the buttocks. The latter comprised three linear marks suggestive of being caused by impact with an object. The medical evidence was that all these injuries were inconsistent with the falls that were being described; the infliction of these injuries would have required considerable force. It was impossible for the doctors to say whether the injuries occurred on one occasion or more than one occasion, but certainly more than one application of force must be responsible for these injuries to different parts of the body.
11. I turn to the wider social canvass and commence with the mother. I accept that the mother is a lady of limited ability. She has borderline intellectual function and a helpful report advises the best approach to her participation in the proceedings, which has been followed. I make due allowance for the disadvantages under which she labours. She has a difficult history. She is a vulnerable woman, especially in relationships. Her contact with the child shows there to be a loving relationship, but her attendance at contact and her participation when she is there, have not be straightforward unlike the case of the father. The parenting assessment tells me that the problems faced by the mother in relation to childcare are probably insurmountable.
12. The father has impressed in recent contact. He has gone through a period in which he has had problems establishing his sexual identity, but I am inclined to accept his assertion that these problems are now settling down. Sensibly, he acknowledges that he cannot look after his son at the present time. When the time comes, the Local Authority would wish to assess his progress. It is important to record that the mother is happy to concede that he is a good father.
13. The mother’s new partner is a very different proposition. He saw the independent social worker who assessed the mother and was then described as a damaged and angry young man. He gives a frank account of his problems: he is very prone to stress, he uses cannabis to stay calm and, without cannabis, he is both paranoid and edgy. In the week under review, he had a particularly stressful time, apparently spent in dispute with his own mother. He turned up at the child’s home at the very time when social services and the police were talking to the mother, investigating the father’s report of these injuries, and to borrow his own phrase, when he arrived he was “stoned out of his tree”.
14. It has been appropriate for me to exercise a degree of caution in relation to the new partner’s position. In court, I witnessed the most extraordinary aggressive and angry tirade during really quite moderate cross-examination. If this was to be repeated in a domestic context, it would have the very highest degree of relevance to my task. However, I cannot assume that his reaction to cross-examination would necessarily arise if he was faced with the frustration of a small child, so I look to the evidence at large and I find his record to be troubling.
15. On 21st March 2014, he was involved in an episode in which his angry reaction led to aggression and abuse not only directed towards property but also towards the female occupier of that property. More relevantly and more seriously, the record shows a conviction for offences on 10th December 2012, for which he was ultimately sent to prison. The papers reveal that he was irritated by his then partner’s small child, who had had the temerity to keep him awake. His response was to threaten the child, assault the mother and precipitate a quite extraordinary standoff with the police, who had to organise a siege before he could be arrested.
16. In connection with the present matter, the new partner has been interviewed by the police. Not only was this week in question a particularly difficult week for him on a personal level, but he went on to tell us about life in this home. He gave us an account of being nagged by the child to play and running riot. There was only peace and quiet when the child was asleep. He made it clear that it was not his wish to look after this child.
17. In evidence before me, both the mother and the new partner insist that he was never left alone with the child. This is not the picture that emerges from the police interview and, on analysis, it is quite incredible. Mother would have me believe that not a moment did she spend without the child at her side, even accompanying her when it was necessary for her to visit the toilet. The mother’s account is all the more incredible because she insists that she had no reason to be concerned about the new partner’s relationship with the child. She was not aware of his violent tendencies and so had no reason to put a fence of security around the child in the new partner’s care.
18. When the authorities called at the home on 6th February 2014, following the father’s report of the injuries, the mother denied that she was in a relationship with the new partner. She explains now that this was because she was uncertain as to what the future of that relationship might be. The new partner speculates that she denied the relationship because she knew his past and feared that he would be blamed for the infliction of the injuries to the child. The reality is that, throughout, the mother has been evasive as to whether they have lived together. The new partner gave dates to the police, which are the clearest indication that he was in the household at the relevant time. That is the finding that I make and I infer that the evasion and denial on this topic indicates a desire to conceal something of significance.
19. Overall, mother, father and the new partner all deny inflicting these injuries. Nobody is able to identify a specific incident or the aftermath of a specific incident. They each allege blame on the basis of their own innocence and support this by a number of wider allegations.
20. The mother and the new partner accuse the father of domestic violence, including aggression to the child. I have not found these allegations compelling. The mother was very quick to concede that the father was a good father, enjoying a good relationship with his son, but then she threw into an answer in cross-examination a completely new assertion that the father smacked the child on his bottom when he was naughty. I reject this new proposition as invention. The new partner made various allegations of physical abuse, but he did not make the same allegations of physical abuse in oral evidence that he had made some months ago in his police interview and the inconsistency, for me, left his account far from convincing. Crucially, the social workers in this case have seen no signs of aggression or violent tendencies in either the mother or the father and, for me, this does cast doubt across the mother’s allegation that the father was prone to berate the child verbally from time to time.
21. The mother raises an old allegation that the father groped his young cousin. During the hearing, the papers have been closely analysed and I find this allegation to be vague and unhelpful to my task. She raises another old allegation that the father struck his young brother. Again, analysis of the papers has taken place. I find this evidence to be unsatisfactory and, at the end of the day, this really does not get beyond the stage of suspicion when my task requires me to rely on evidence rather than suspicion. There is suspicion on the papers arising from injury in the past to the area of the ears of the mother’s older child, but that too is in the realm of suspicion, which I disregard for the same reasons.
22. There is a report in January 2014, which seems to emanate from the neutral figure of the maternal grandmother. This comprises allegations against the father. The grandmother made it clear at the start of this hearing that she was not enthusiastic about giving controversial evidence, and that was how the issue was left by the parties. On analysis, it seems that the grandmother was largely dependent on what the mother had told her and, of course, the detail seems to increase from the first report to the second report, presumably because as the grandmother had more detail fed to her from her daughter.
23. Independently, the grandmother does seem to be reporting words from the child to the effect that, “Daddy hit my head.” This is a section of the evidence that has caused me to reflect closely. However, on analysis, both mother and her new partner report that the child calls men other than the father “daddy”, including, most notably, the new partner. In these circumstances, it seems unreliable for me to treat this report from the grandmother as a clear complaint by the child of violence at the hands of the father. I conclude that these various allegations made against the father are not established.
24. An important issue is the identification of opportunity for inflicting injury on this child. Correctly, the parties have concentrated on the week leading to the observation of injuries on 6th February 2014. My finding is that the new partner was in and around the mother’s household during this period. Of course, the father was living separately at this time. He had the child to visit on the Saturday, but not on the Sunday. He had him again on the Monday, but returned him home to mother unexpectedly for Monday night. Father had him again on the Tuesday and there is an issue as to whether he then returned to mother on the Wednesday or whether the return was delayed until the Thursday.
25. It seems clear that the child was hurt in the mother’s household on the Sunday. The mother has explained this consistently as involving a fall onto the table, causing a blow to the side of the head in the vicinity of one of the ears. The mother now says that bruising was not caused, but it is clear from the papers that she did tell the authorities a different account, which did involve the development of a bruise. I find that there was a bruise caused on the Sunday. In evidence, the father says that he saw the bruise on the Monday. However, there is an inconsistency here, because the police interview of the father indicates that he did not see bruising until Tuesday, but since it is clear that mother was speaking about bruising on the Sunday, I accept the father’s oral evidence to me that he saw bruising on the Monday too. The mother’s explanation of a fall onto the table is not acceptable to the medical evidence.
26. On analysis, The new partner told the police that, in the run-up to injury on the Sunday, the child was playing up. The medical evidence is not consistent with the fall which the mother describes, and I conclude that there is another cause for that bruise. In all circumstances, I infer that that bruise was an injury inflicted in the mother’s household on the Sunday.
27. On the Monday, the child spent the day with father and returned unexpectedly. It is significant that no new injuries were seen on his return. It is an odd feature that he was returned on the Monday evening. He was returned by an old family friend, who has since disappeared. It seems that she was upset because it was the anniversary of a close bereavement. Mother reports that she was aggressive in her approach to the mother, fed up with her task of bringing the child home. Without any observation of new injury, I am not prepared to bring her into the frame of responsibility for injuries in this case.
28. The child spent time with father, commencing on the Tuesday, and father says that he discovered the remaining bruises during this period, commencing on Tuesday, when the child stayed in his care. Father discovered further bruising around the hairline, close to the ear, and bruising to the buttocks.
29. The reality is that the father gives a hopelessly inconsistent account of conversations with the mother about these injuries. Mother says there were no calls or conversations. Father says there were a huge number of calls, unanswered, to the mother’s telephone. Mother reveals that she had in fact changed her telephone number, which might be an explanation for the absence of an answer. Eventually, according to the father, his friend was able to get hold of the mother and pass back to the father the mother’s explanations for the injuries. One of those accounts was the fall onto the table. This, of course, still is the mother’s assertion, so I am on balance inclined to accept that an exchange did take place in which mother gave that account. The other reported account is an innocent explanation for the bruises to the buttocks. Mother is said to have explained that there was a fall that was responsible for this. On balance, I conclude that it is difficult to believe that the father has made up an innocent explanation for the bruising and chosen to attribute it to the mother.
30. There is an issue as to where the child stayed on Wednesday night. Mother says that he did not return until Thursday. On return, she saw the bruises immediately and asked the father about them. She says that he was dismissive and walked out. Father says that he returned his son on the Wednesday. He says that he challenged the mother about the injuries that had become apparent during the stay with him. He says she failed to explain and threatened that, if he went to social services with them, he would not be allowed any further contact with the child.
31. To resolve this issue, I have looked for other evidence. In the police interviews, the new partner suggests that the return was more likely to have been on Wednesday, when he says there were exchanges of mutual recrimination between the parents. At E2 of the bundle is recorded the mother’s account of the child banging his head earlier on 6th February, before the police and social services came to the home. This is another element inconsistent with the mother’s current account. There is a contrary report in which the father is said to have indicated that he saw bruising between 9.15 and 10am on the Thursday morning, but this can only mean some sort of visit to the child between those hours and it is not part of the versions that any party puts before me today.
32. Doing my best, I conclude that the return occurred on the Wednesday. Father reported these injuries to social services between 11 and 11.30 on the Thursday. He presented social services not with the child, which surely would have been the best course, but rather he presented them with photographs of the injuries. I am driven to conclude that he must by then have returned the child to the mother. Mother is clear that the child was not returned to her care first thing in the morning. On return, each parent says that they challenged the other about the injuries and the cause and there really is an irreconcilable conflict there.
33. A very important point for me is that it was the father who reported these injuries to the authorities. Of course, both parents are open to perfectly valid criticism. It seems the father returned an injured child to the source of his injuries and only reported his concerns the following day. However, my finding is that the return did take place on the Wednesday, which means that mother had plenty of time to have reported the injuries to the authorities, but, of course, she never reported the injuries at all. This, for me, is a very important factor in the father’s favour. I reject as far-fetched the proposition that, after inflicting injury himself, he reported the injuries so as to blame the mother.
34. Generally, I found the father to be the most acceptable of the witnesses I have heard. He has been criticised for vagueness and lack of recall, but this was most prominent when he was dealing with questions about the intricacies of the failure of the relationship between himself and the mother. The reality is that it was the mother who left the father and I am inclined to accept that he genuinely does not know what went wrong in their relationship in that last period. His confusion is no doubt wrapped up in his search for his sexual identity, which may or may not have been clear to him as part of the mother’s reason for bringing the relationship to an end.
35. My conclusion, then, is that it is improbable that the father inflicted these injuries. He reported them. On the evidence, it would be out of character for him to have inflicted them and, overall, it is clear to me that there is another who is much more probable as the perpetrator of these injuries. I refer to the mother’s new partner. He was present at the relevant time, he was enduring a stressful week, he has given an account to the police of apparent frustration with the child’s behaviour. We know that the new partner is an angry man and that his anger has in the past produced violent and abusive scenes. He is, on the balance of probabilities, the perpetrator.
36. The mother was also present. The infliction of injury would be out of character for the mother. However, she has lied. Most notably she has lied in her denial of her relationship with her new partner and her insistence that she was present at all time as a protective shield.
37. My task is to identify the perpetrator on the balance of probabilities if that is possible. The evidence has driven me to the clear conclusion that the probable perpetrator is the mother’s new partner. I have considered whether I should infer from the mother’s dishonesty that she is responsible for the infliction of injuries. I have decided that that would not be the correct inference to draw. Instead, I conclude that the mother was acting to protect her new partner. Her failure to protect was at the most serious end of the spectrum. She knew that the new partner was aggressive and subject to angry outbursts. She chose to expose her son to this in order that she could maintain her adult relationship with this man. When the injuries occurred, she continued her failure to protect by shielding her partner and failing to report the injuries. She has continued to lie to protect her partner.
38. At significant times, the mother has observed to be suffering from black eyes. She insists that these have an accidental cause and so it is not possible to reach a conclusion as to whether or not the mother has acted of her own free will in her continuing protection of the new partner.
39. The father too is responsible for a failure to protect. He returned an injured child to the place where he suspected that injuries had been inflicted. He delayed his report to the authorities until the following day, but he did then make the appropriate report and he has not sought to mislead the court. That is manifestly a much lesser degree of fault than that which is attributed by my judgment to the mother.
(End of judgment)
Approved 7.9.15
RD