England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
sitting at STOKE ON TRENT

		23rd May 2014

Re: B (Care; Injured child; HHJ Duggan)

23rd May 2014

JUDGMENT

JUDGE DUGGAN:

1. This is the final hearing of the Local Authority's application for care orders. I am concerned with two children, M, born on 26^th July 2012, and S, born on 29^th August 2013. These proceedings arise from injuries to the head and ribs sustained by S on or about 23^rd November 2013. The parents had a relationship between January 2011 and December 2013. Following the injuries, the children went to live with the maternal grandparents, where they remain. The grandparents have been the subject of a positive assessment and it is the Local Authority's plan that the children should remain in their care. The findings of the court will determine the mother's precise role.
2. The mother's case is that the injuries were inflicted by the father, and accordingly she seeks a gradual process by which the children return to her care.
3. The father has given different accounts of these injuries. The most recent version involves him dropping S during an involuntary panic attack. He is also critical of the care provided by the mother. He accepts that the children could not live in his care and an agreed regime exists by which he is to have contact with the children going forward.
4. I have already distributed a draft order from which the parties can see my decision is that all these injuries were inflicted by the father. The mother did not contribute. She could not have foreseen what he was going to do. There are however other findings which are critical of the mother and I shall return to those later in this judgment.
5. My intended outcome is that under a care order the children should stay with the grandparents, but it is my clear intention that the door should remain open to the possibility of rehabilitation to the mother's care if the mother's approach and her engagement in work indicates to the Local Authority that rehabilitation is appropriate.
6. The law is that the Local Authority bring this case and must therefore prove their allegations. The family need prove nothing. The various allegations must be proved on the balance of probabilities. Suspicion is not enough, and if an allegation has not been proved on the balance of probabilities I treat it as if the alleged event has not happened.
7. The Local Authority's first burden is to establish that the Section 31 criteria are met in order to allow a care order to be made. It is my finding that they do establish those criteria, and in the next stage of the process I make the welfare of the children my paramount concern with the welfare checklist at the forefront of my mind. The Local Authority proposal involves interference with family life. This can only be justified if it is necessary and if it is proportionate.
8. I start by addressing the Local Authority's allegations, which are set out in a schedule at page A5 of the bundle. The primary allegation is that these injuries were inflicted. Secondly it is common ground that S was in the care of her parents, but I must investigate whether it is possible to identify the more probable perpetrator of these injuries. Sometimes it is impossible to achieve identification. The court must not strain to make identification when it is impossible. If it is impossible, the court must be content with a list of those of whom it can be said that there is a real possibility that they were the perpetrator. In this case, it is clear beyond argument that the real possibilities are the mother and the father. The issue for me is whether it is possible to identify which of those two possible perpetrators is more probable than the other.
9. There is medical evidence in the case, but medical evidence is only part of the evidence and it is important that I consider the medical evidence alongside all the evidence in the case, considering in particular the wider social canvas. I have reports from Dr Chapman, the eminent Paediatric Radiologist. His opinion has been challenged on behalf of the parents by the submission of written questions and we have the answers to those questions.
10. There is always a need for caution with medical evidence. I have the cautionary points made by the Court of Appeal in the case of Re U available to me. Prominent is the fact that human knowledge is unfortunately limited. However, in this case the medical evidence is mainstream medical science. I am told that the fracture to the skull and the intracranial haemorrhage must be the result of severe trauma. The fractured ribs must be the result of severe compression to the chest, although the dating of the rib fractures is more difficult. There is no medical factor to predispose S to suffering fractures to her bones. That medical evidence then has to be set alongside the other evidence.
11. In relation to the evidence of the father, it is necessary to exercise caution. I have the psychiatric report of Dr Hodgson which indicates that the father has an emotionally unstable personality disorder. He has other features of mental illness. I was advised that if the father became overwhelmed during the process of giving evidence, he should be allowed a break. In fact, the father managed without apparent difficulty, although I did take the precaution of allowing breaks from time to time. This was particularly relevant at one point where I formed the view that the father was beginning to agree inappropriately with propositions that were put to him by Counsel. After the break, there was no sign of this recurring.
12. Another note of caution arises from the fact that both mother and father acknowledge that they have been untruthful at different times. I have given close consideration as to whether there is an innocent explanation for the parents lying or whether their lies truly indicate that they did act in the way that is alleged against them.
13. I start then with the injuries. S suffered a major fracture to the skull, which the experienced Doctor had never seen as the consequence of a domestic accident in the past. He did not feel able to exclude the father's final account of S falling from shoulder-height, but he did express the view that the injuries were right at the severe end of the spectrum and he added that the inconsistent history and the presence of rib fractures were indicators of a different cause.
14. The rib fractures may have been suffered at the same time as the head injury or may have been suffered at a different time, it is impossible to say, but the rib fractures are clearly not explicable by anything that the parents have described. These rib fractures need a severe compressive force to the chest, which the parents as carers for the child are quite unable to identify in their care of the child.
15. The parents describe a sudden onset of swelling to the head immediately following the impact which the child sustained. This is the expected, but not invariable timescale in which swelling to the head follows injuries of this kind.
16. The parents both say that the mother was out of the room at the relevant time, upstairs in another part of the house. Mother now describes hearing a cry and a thud. She says that she carried on with her task for a few minutes before going downstairs. She says that S was then crying loudly. She enquired of the father, who denied that anything had happened. Swelling was obvious. She asked the father about it, who indicated that the swelling had apparently happened for no cause, quite spontaneously. An ambulance was called by the father.
17. I will return in due course to inconsistencies in the detail of the account, but the mother's basic account has remained the same throughout. The father has not been so consistent.
18. His first account was that nothing had happened, the swelling had suddenly appeared while he was feeding the child, who he had not dropped.
19. The father's second account was to blame M, who he said was responsible for injuring S by striking her with the controls for the Xbox.
20. The father's third account was that S had fallen from a swinging chair. He confessed that he had failed to strap S into the chair. He persisted with this version even though medical reports advised that a fall from a low level could not be responsible for the injuries which S had suffered.
21. The father then produced his fourth and current version in April 2014 describing a higher fall, a fall from a level which was probably high enough to cause injuries of this kind. He now explains that he was holding the child when he walked into the kitchen. He claims to have been overcome by an anxiety attack, which caused him to freeze and be dizzy. He lost his grip. The child fell away to the floor, letting out an awful scream, with the horrendous swelling following. The father says that he was too ashamed to give this account previously.
22. I reject this account from the father. For me, the manner in which this story has developed is very unsatisfactory. I cannot accept that the father was too ashamed to talk about what is basically an innocent explanation for this fall, an anxiety attack over which the father had no control, even though the father was apparently prepared to accept blame for S falling from a swing chair in which the father had failed to strap her in. I have heard the father's account of the child falling backwards away from his grip and I found it wholly unconvincing.
23. The father claims that anxiety attacks were a common feature of his life at that time, of varying intensity. He gave what was for me an incredible account of problems driving a car while he was affected by panic attacks. His General Practitioner's records both before and since contain nothing of a similar nature. The industry of father's Lawyers found reference at the age of 15 to an unsteady episode, but nothing in my judgment closely resembling what the father tells us now was a regular occurrence in his life. The father told me of unreported incidents with sledgehammers, which he says occurred at work, but which defy belief. Mother was aware of no more than three minor anxiety attacks, but nothing of the level which the father was claiming occurred with some frequency. When the father was in contact with the Ambulance Service, there was no apparent evidence of anxiety attack under the pressure of that event, and certainly in the pressured environment of the courtroom the father managed very well.
24. I remind myself that even a fall from the height now described by the father is at the less probable end of the probable spectrum for this impact, and in any event the rib fractures just cannot have been caused in this way. In fact, no tenable explanation for the rib fractures has been forthcoming at all.
25. There are a number of points which need to be considered arising from the circumstances of the day under review.
26. The mother was alone with S earlier in the day while the father made a short visit to the gym. Mother says that this period was uneventful. However, it has been argued that an unusual picture emerges immediately after the period in which the mother was in control. The child then slept for a longer period than she normally does, past an anticipated feeding time. When S was fed, unusually she left a small amount in the bottle. Father says that he formed the view that S was rather pale on his return from the gym. He does not make very much of this, and in fact in the final analysis he agreed that the child seemed to him normal on his return from the gym. On analysis, it seems to me that these other elements seem fairly marginal and are perhaps explicable by the late night, which seems to have been the child's lot on the day prior to the injuries.
27. The Ambulancemen remark on the unusual calm of the mother and the father when they attended to deal with this serious injury to the child. This calm was clearly demonstrated in the case of the father by the recording of his telephone call, which I have heard. There are also inconsistencies of detail as to what the Ambulancemen saw on arrival at the premises. In this context, I need to consider the possibility that in truth there was no incident involving the father alone while the mother was upstairs in these premises on 23^rd May. I need to consider the possibility of an entirely different cause involving perhaps the mother, involving perhaps both parents, a possibility involving a conspiracy in the evidence that I have heard.
28. Overall, this seems to me improbable. The mother and the father since the very early days have been in conflict in these proceedings. Each is critical of the other. Each blames the other for the fractured ribs. It seems to me that if the father knew that the mother was responsible for the head injury, he would say so, and since that forms no part of his case it seems to me that is a factor contributing to my decision that it is unlikely that there is such an explanation for these head injuries. This is not to say that the mother's case is free from problems. I have heard the recording of the telephone calls to the Ambulance Service. It is clear that in the background S is emitting a piercing scream. Throughout this case, the mother has been reluctant to acknowledge this level of distress from her child. Initially she told the Police that there was no thud, or bang, then she returned to the Police saying that she now remembered that there was a bang. Subsequently, there was inconsistency and uncertainty whether the cry was before the bang or the bang was before the cry.
29. I do not attach significance to that inconsistency, but I do attach significance to her early insistence that there was no bang at all. Mother's final position is that she thinks she heard the cry first and the bang to follow, but the point is that she says that the cry seemed to her to be nothing out of the ordinary until she went downstairs and S was passed to her. Even then in the course of her evidence she was clearly playing down this piercing scream, and I cannot accept her account is accurate. It seems clear to me that the mother failed properly to respond to a piercing scream from her child and simply carried on for a few minutes with her household tasks. She says that the father was in charge, he would call if help was needed and he did not. However, for me the only conclusion I can reach is that there was certainly at that time a degree of emotional distance between mother and baby. This was reinforced when I heard the recording in court. The mother was invited to comment on the recording of this telephone conversation between the father and the Ambulance Service, together with the scream in the background. It was troubling that when the mother was invited to comment, it was not the terrible scream from the child on which she commented, but rather on the father's calm demeanour. The mother's minimisation of this cry probably reflects her sense of guilt that she failed to respond properly to that cry.
30. The Local Authority seek to make a related point about the emotional relationship between mother and child arising from her text message to the father informing him earlier on the day of the injury that S had woken up. In my judgment, too much can be read into that minor element.
31. The mother has expressed guilt that she left S with the father, but on the evidence she had no reason to anticipate or foresee what would happen to this child at the father's hand. The overall picture is that both mother and father had opportunities alone in which the injuries to S could have been inflicted. They both had to deal with a colic child from September 2013 onwards. The consequence was that the child cried a great deal, which no doubt represented a trial for both parents.
32. The father has repeatedly described the pressure and stress that he was under. His redundancy three weeks before the day of the injuries made it worse. On the day he was troubled by decorating plans and what he seems to have perceived to be a lack of cooperation from the grandparents on that day. During assessment, the mother made it clear to the assessing Social Worker that the care for these two small babies was difficult. She valued the father's support and assistance.
33. The mother must be given credit for her acknowledgement during assessment that she texted the father at work expressing her difficulty on a particularly bad day. However, I do find that the mother has tried to play down this difficult period, trying to deflect criticism of herself. It was put to her that the day of the text message was a possible day in which she inflicted the fracture to the ribs. For me, the fact that the mother revealed the difficulties of that day herself has to be taken into account and in the overall picture the possibility of the mother fracturing the ribs on that day does not achieve the status of the most probable explanation of what has happened.
34. The father has argued that the mother's bond with S was less than it was with M. It is clearly the case that the father's bond with M was seriously deficient. To their credit, the couple recognised this and sought and obtained help with the problem. The father's relationship with S was not affected in the same way and so inevitably in this household the mother spent more time with M while the father spent more time with S. I have found the father's criticism of the mother's care to be unconvincing. For example, he threw into his evidence a new reference to the mother shouting at the child, calling her a stupid cow, throwing things and breaking things. He made complaints which were completely inconsistent with what he had said previously, for example he told the Police that S was "dead good" with the mother. I remind myself that in the relevant period father was unemployed at home while the mother was studying at the local university, so perhaps it was not to be unexpected that a degree of responsibility would fall on the father's shoulders.
35. The father's defective bond with M is clear. In assessment, the mother was clear that she did not trust him to have M in his sole care. It was troubling that in the course of evidence the mother clearly retreated from this position and gave a whole string of inconsistent explanations. Eventually I think the proper analysis emerged from the mother's own lips. She said that she did trust him at the time, but she should have done more. My conclusion then is that she did leave M in the father's care when she should not have done.
36. To put this in its proper context, it is of course impressive that the couple got help with the poor relationship between father and M. The evidence about father not always complying with that help is I am afraid rather too vague for me to feel able to criticise him or to feel able to criticise the mother for failing to report this non-compliance. There is of course no evidence that actual harm was caused to M directly as a consequence, and certainly there was no reason to believe that S was at physical risk in the father's care.
37. There is some evidence that M suffered injuries when she was very small. Firstly, the mother says that father marked M's cheeks in the course of rough play. If this is right, the play must have been very inappropriate to cause the bruising which the mother is describing. However, the father denies this allegation and no independent party ever saw the bruising in question. In these circumstances, I conclude that there is cause for suspicion, but I do not feel able to find this allegation proved on the balance of probabilities.
38. Secondly, both mother and father accept that M fell off the sofa on one occasion and fell against the TV stand on another occasion, both as a consequence of poor supervision on the father's part.
39. Thirdly, the Health Visitor on 16^th April 2013 saw bruising to M's face which the mother attributed to contact with the cot. The parents agree, but they are inconsistent between themselves as to quite what it was that they saw or heard using the baby monitor. Again, without adverse comment from the Health Visitor I do not feel able to reject the parent's account. This is another occurrence of suspicion which falls short of the necessary proof to establish it as a fact. These allegations arise in the context of the argument that the mother failed properly to protect M against the father. My conclusion is that she did fail to protect M from the father's lack of bonding. She did allow M time alone with the father, but on the evidence this did not extend to the inflicting of injury by father on M.
40. In the overall picture, it is important that I take into account the recent experience of contact. Father's contact with both children has been praised. Similarly, in mother's case it is establish that she is able to meet the basic needs of the children, she loves them both, although there has been occasional fleeting criticism for failing to share her time equally between the children in contact.

Conclusion

41. Drawing all these factors together, the most probable cause for S's head injury arose in the father's sole care on 23^rd November 2013. However, I reject his account of an accident during an anxiety attack. If this injury had been caused by an accident, it would require a fall from an unusual height. Dr Chapman says it represents the severe end of the spectrum for a domestic fall. It seems to me if there was such an accident sustained by S, who was not yet three months old, the father must know about it and would reveal it. I have seen and heard the father and for me it is more probable that this head injury was inflicted by the father by way of an assault, an assault which occurred probably under domestic pressure.
42. Turning to the fractured ribs, there is no acceptable explanation proffered from any source. The carers of this three month old baby must know the cause. If the cause was some unlikely accident I would expect to have been told about it. I have seen and heard both parents. No accidental explanation has been given. I infer from that and from all the evidence that the fractured ribs represent another inflicted injury. I ask myself whether I can readily determine the probable perpetrator of this injury. The fractured ribs could have occurred on the same day or another day. Both parents had an opportunity to inflict the injury. Both had pressures of different sorts, mother of course has revealed that she struggled sometimes with the care of two small babies. I do not find clear indications of guilt in the other evidence about the mother, critical though it is about many aspects of her childcare. For me, the determining factor is the father's assault on S on 23^rd November 2013. The fractured ribs could well be associated with a grip on the child's body accompanying the infliction of the head injury. Of course, fracture to the rib represents a different force to a different part of the body, but in my judgment is likely to have been part of the same episode. I have seen and heard the father and the mother. It seems to me improbable that there were two assailants and I conclude that it is more probable that the person responsible for both assaults, both injuries sustained during assaults, was the father.

Mother's Failure to Protect

43. There was no failure to secure speedy medical treatment. There was no failure to protect from injury in the sense that there was no reason to anticipate that the father would assault S. Inflicted injury to M is not established. I have dealt with the mother's failure to protect M from time alone with the father at a time when he had a defective relationship with her and at a time when he was failing adequately to supervise her.
44. The other significant failure on the mother's part occurred in the immediate aftermath of the injury to S. By 24^th November, the mother was being forthcoming with the Social Worker, speaking fairly frankly about the relationship between father and M, speaking about the cry and the bang that she had heard, which must have been the assault. The mother's gross failure occurred during the previous day. She told the Police that the father was not aggressive when we know that earlier in the year she had reported to the Health Visitor domestic abuse by the father, albeit at a moderate level. Overall the mother painted an unduly rosy picture of life in the home. When speaking to the Police, she actually said that she heard no thud, whereas we now know that she did hear the noise which must have constituted the assault. She actively misled the ambulance crew when they so urgently needed to know whether the child had suffered an impact. The mother helped the father conceal from the ambulance and medical authorities the fact of the blow to the head. Mother, like father, were unusually calm when providing this misleading picture. It is clear to me that the mother's motivation was to protect the father. She must have known, or suspected, that he was responsible for the blow and the injuries sustained. Her deception was short-lived, but it was clearly contrary to the best interests of the child.
45. That concludes my findings. I turn now briefly to issues of welfare. I can say a great deal more about issues of welfare if it is necessary for me to do so, but it seems to me that a consensus has emerged which enables me to be very brief. The welfare of the children is my paramount concern and the outcome must be a proportionate one. The assessments revealed many positives in relation to the mother, which have been set against the many clear areas for concern which have been the subject of this judgment. The Local Authority have a care plan for continued placement with the maternal grandparents. That is not controversial. The mother seeks the inclusion in the plan of provisions which keep open the possibility of the rehabilitation of the children to her care. She accepts the need for work to address the many areas of concern identified in this case. The Local Authority have indicated that they are prepared to accommodate this as part of their plan provided the findings of the court are at the lower end of the spectrum.
46. The legal test is as follows. Is it necessary and proportionate to rule out rehabilitation of the children to the mother's care? My brief answer is in the negative. On the other hand, it is necessary and proportionate for the Local Authority to propose that the mother lives elsewhere for the time being, that the mother engages in extensive work leading to assessment and to a decision at a later time. My expectation is that the Local Authority now intend to proceed with a care plan along these lines and on this basis I have no difficulty in granting the care order which they seek. If my interpretation is incorrect, the parties will no doubt return to me for that matter to be addressed in greater detail.

Approved 22/7/14

RD