England and Wales Family Court Decisions (other Judges)

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.

 

IN THE FAMILY COURT

SITTING AT DERBY

CASE NO UL14C00273

 

24 July 2014

B e f o r e :

HIS HONOUR JUDGE ORRELL

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DERBYSHIRE COUNTY COUNCIL

V

M, S and B

Finding of Fact Hearing

 

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G. Semple for the Applicant Local Authority

S. Birtles for M, the Mother

D. Woodthorpe for the Father

M. McCluskey for S the First Intervener

B, the Second Intervener appeared in person

T. Dunleavy for the Child

(by their Children’s Guardian)

Judgement handed down on the 23 July 2014

 

 

 

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JUDGEMENT

 

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1.    This is an enquiry into how C, who was born on the [a date in] 2013, sustained injuries on the 14/15 February 2014.

 

2.    C is the daughter of M and is the sister of J, who was born on the [a date in] 2012.

 

3.    In February 2014, the mother was living with her sister, S, in Manchester. It is common ground that during the evening of the 14 February, the mother went out for a meal with her boyfriend, B, leaving S to babysit. Additionally, a neighbour, N visited the house. At approximately 1 am, on Saturday, the 15 February 2014, S called the police and an ambulance and C was admitted to the Royal Manchester Hospital in the early hours suffering from extensive facial bruising. There were marks elsewhere on her body.

 

4.    The four adults who had been in the house were arrested and subsequently interviewed on more than one occasion by the police

 

5.    S, N and B were invited to intervene in the fact finding hearing. Mr B attended court on the 7 May 2014 and said he would see a solicitor; he was handed the names of suitably qualified solicitors. He did not attend on the 13 June and did not instruct solicitors. A witness summons was issued which he ignored and on the first day of the hearing I issued a warrant for his arrest. He was arrested during the second day of the trial at about 11.30am in the North East where he lives and brought in custody to court.

 

6.    On the first day of the trial and before evidence was called, Mr N was discharged as an intervener but remained in order to give evidence.

 

 

7.    Dr Maggie Steggall, consultant Paediatrician, gave evidence. C’s case had been her responsibility from Monday, the 17 February. Prior to then, Dr Gaynor had had responsibility for C, under consultant supervision.

 

8.    Dr Steggall was satisfied the bruising was non accidental and would have been the result of two forceful slaps with the hand to the face. However, she was not sure those two blows would have been sufficient to cause the bruises to the cheeks or the ears.

 

 

9.    What she saw represented extensive bruising for child of this age and the doctor had not seen as extensive bruising even with serious accidents, for example, falling out of a window. She was not able to date the bruises, but agreed the most likely time was just before presentation They could have been caused either over period of time or in sustained attack. Nothing in the evidence was inconsistent with single sustained attack.

 

10. Dr Steggall said she would have expected the blows to have caused immediate and significant distress. C had been in pain and distress when she arrived at the hospital and had been so upset and distressed, the medical staff was worried she might have other injuries.

 

11. Mr N gave evidence. He is a teaching assistant and S’s next door neighbour. At the time he had a shared care agreement with his partner from whom he is separated in respect of their two children aged 4 and 3 years. They were asleep in his house.

 

 

12. Mr N received a text from S at about 8.15 pm inviting him round. After initially hesitating, he went round and had a drink and a chat. By the time he went round C was already upstairs asleep.

 

13. At about 9.00pm he went back home but at 9.45pm he received a further text from S inviting him back. He returned and a few minutes later M and B came in with drinks.

 

 

14. Mr N was unconcerned about their manner, although it was clear everybody had been drinking. Mr N put his tally at 1½ pints of Fosters, 2 Coronas and some “sips of wine.” S and M put on a music channel and began singing some of the tunes. The noise level was not so loud as to disturb C.

 

15. Mr N said S appeared to him to be drunk or 'very merry;' he said he believed she was in control of herself and had no difficulty standing.

 

16. Mr N said of M and B “This was the first time I had met M. She was merry; she was happy; I wouldn’t say she was overly drunk. She was in control of her behaviours. He sat next to me; he was very quiet He didn’t seem that drunk. The girls were bubbly and singing; they were flicking through the music channels and singing to pieces they liked. They were not loud. We could still converse.

 

 

17. There came a time when C started to make noises; they were just stirring noises. B went to check. M and S may not have heard the  noise. B went up normally. He did what a partner would do in those circumstances; he did not appear stressed at all. He was not very long upstairs – about 2-5 minutes. When he came down he said “I think I've made things worse.” He said that to the whole room and was smiling.  M said “C cries 24/7.” I said “mine don’t” and she said “you are lucky”. This was just a normal conversation between parents. C’s cry did get louder but not a scream, more a cry as if to get attention. Then she settled. M was not concerned and said, I think, “let her settle”.

 

18. The mother gave evidence. She said that B used to stay at weekends. She said she found him a nice man. During the afternoon he she and S took the three children to Little Rascals. She bathed C before she went to bed at about 6:30 pm and noticed no unusual marks on her.

 

19. B and she went out at about 7:50 pm. She is adamant that at the time C was in her cot asleep and unharmed. At the restaurant she drank about three glasses of sparkling wine and on the way home, at S’s request they stopped at a shop and bought a bottle of wine and some Corona beers.

 

20. They got back to the house at about 9:30 pm. She met Mr N for the first time. She remembered that he went next door from time to time but her recollection of whether he ever went upstairs of the house to go to the lavatory is confused. She remembered him leaving the house.

 

 

21. After he had left, C began to stir upstairs which was entirely normal. She went into the kitchen in order to prepare her milk. She said that B went upstairs and at that point C was making a hungry cry. By the time the milk was ready, the cry had started to get louder and turned into a scream. She began to go to the stairs when B came running down. She had poor recollection that he was holding a bag. When she went into the bedroom, C was standing up in the cot holding onto the bars crying. She picked up C and came downstairs. In normal circumstances, she would have fed C downstairs. Downstairs she noticed there was something wrong with C’s face. Her first reaction was to think that C was suffering from an allergy.

 

22. In the living room, she passed C to S and picked up her mobile telephone. S used it to ring for the ambulance and afterwards the mother also telephoned the police because “she felt something was not right”. I have listened to 999 tapes. It is clear that the mother was in panic and the tone of her voice on occasions was very angry. By contrast, S was trying to give useful information to the operator.

 

23. Mr B gave evidence; a good deal of the cross examination centred on the three interviews he had with the police. The first interview took place at 1:37 pm on Saturday, the 15 February 2014. In the course of the interview, Mr B described the injuries as “heartbreaking to see”. He was emphatic that he was never involved in C’s care. He described how he and M went out to the restaurant and then he said they walked back to the house, stopping on the way at a shop to buy drinks.

 

24. He said that he thought Mr N had consumed an excessive amount from the bottles he later saw in the wheelie bin. He said that C would wake up at about 11:30 pm for a feed. He said that on this occasion, M went into the kitchen to put the milk in the microwave. She went upstairs and came down almost immediately with C and screamed. Mr B said that he had just gone upstairs to use the lavatory when he heard M scream and came downstairs immediately.

 

25. He said that no one went upstairs for any reason prior to M going to get C for her feed. He said that M would not have caused the injuries, “No definitely not. She loves that child to bits. Babies might be testing but she’s been through it once; she knew what she was doing the second time.”

 

26. Towards the end of the interview, there comes this passage between DC Yapp and Mr B: “And what do you think about all this then? I think whoever has done it wants shot. Who do you think’s done it? I would stick my neck out and say the next door neighbour ’cos he ran away pretty damn quick and then for someone who had nothing to hide and you don’t answer the front door. It means to me you’ve got something to hide.”

 

27. The second interview took place at 9:25 pm on the 15 February 2014. Again Mr B said he had walked back from the restaurant. He said he could not remember having any sort of disagreement with M. He said he did not go upstairs at all when C was crying, repeating he was not her carer.

 

28. He was told of the suggestion that he had gone upstairs for about five minutes and was then seen to holding a holdall and looking for his car keys. He replied that the holdall should have been next to the children’s table in the living room and that he had not intended going anywhere, merely checking the children had not been playing with the keys.

 

29. The third interview was in the morning of the 3 April 2014. Mr B again described the injuries as “horrible” and “heartbreaking”.

 

30. He accepted he had driven and not walked back from the restaurant.

 

31. He appeared to accept he had been upstairs for about five minutes and when asked exactly what had he been doing upstairs for those five minutes he replied “And we had a little disagreement so I was in the process; I grabbed the bag. I went to the toilet and I came back downstairs and that was the only reason I went upstairs.”

 

 

32. He denied saying anything to the effect he thought he had made matters worse.

 

33. He said the disagreement was because M had told him she would never love him in the same way she had loved her former husband because he was not the father of her children.

 

34. He said when he went upstairs, C was only murmuring in her sleep. He added “I wasn’t up there long enough, I grabbed my bag, didn’t switch any light on.”

 

35. He said the bag had been right next to the bed. He described going into the room, grabbing the bag and going to the lavatory and then downstairs. He added “I was in a little bit of a tantrum with myself”.

 

36. Later he said “There was no longer crying upstairs when I went up. She was sound asleep. I was having a little chunter to myself, in me little paddy, but that's all it literally was, a tantrum. little It was nothing to go up there and think ‘right, well I’m going to get revenge’.”

 

37. When he gave evidence, Mr B denied emphatically ever hurting C. He accepted that he had no basis to have suggested that Mr N might have been the assailant.

 

38. He said he was not drunk that evening but he was, as Mr N said, very quiet, which is how he always is with a stranger.

 

39. He said that after the disagreement, M went into the kitchen to heat the milk and he went upstairs quickly to grab his holdall and car keys. He had no intention of going out, particularly because he had had too much to drink. The episode was a gesture or pretence.

 

40. He agreed that although he had attended on the earlier occasion and told me he would intervene in the case and instruct a solicitor. He said he did not because he had answered all the police questions and thought that was sufficient. He knew of the existence of the witness summons but he had had work commitments. He apologised for his failure to attend court.

 

41. C would have screamed when she was assaulted. In their varying accounts to the police, the mother, S  and Mr B do not recall hearing a scream. That cannot be the case as this was a small house and the music was not loud enough to disturb the children.

 

42. I found Mr N to be a truthful and reliable witness. He has had a difficult time since leaving the house that night. He was arrested unexpectedly in his own home, in the early hours of the morning and held in police custody. Currently, he has only supervised contact with his own children and he has been off work with stress arising from the investigation and these court proceedings. The principal reason he remained in the pool of potential perpetrators so long was the allegation made against him by Mr B.

 

43. From the account of the evening he gave me, I find it inherently unlikely that the assault would have taken place before he first arrived at the house. The likelihood is it occurred very shortly after he had left.

 

44. I also found S  a reliable witness. She did not show partiality towards her sister; on the contrary, she has said a number of critical things about her in her statements.

 

45. The mother was defensive both to the police and to me. On the other hand, she loves her children dearly and Mr B was at pains to say she was not the sort of person who would assault C.

 

46. Mr B I found an unsatisfactory witness. His presentation was polite and respectful. However, he lied repeatedly to the police. At different times, he said he had walked back to the house lest he be suspected of drink-driving; he denied ever going upstairs before the mother went up to collect C and he denied having an argument with her. I found his explanations for not intervening and, more importantly, not responding to the witness summons unconvincing.

 

47. I do not think he was lying or failing to attend court because of panic or for some “innocent reason” within the meaning of R v Turnbull. I believe he was anxious for the police and the court to be kept in ignorance of facts which might place him in a vulnerable position.

 

48. I accept these facts to be established.

 

a.    C had not been injured when the mother and Mr B left for the restaurant.

 

b.    C had not been injured at the point Mr N left the house.

 

c.    All four adults had been drinking; the quantities consumed were probably ill-advised but not wholly excessive.

 

d.    Following the return of the mother and Mr B, their relationship moved from the affectionate and light-hearted to the argumentative and hurtful.

 

e.    Mr B was affected by what the mother said and he impetuously and in temper went upstairs and into the bedroom where C was beginning to wake for her feed.

 

f.     At the time, C was making attention seeking noises.

 

g.    Mr B came swiftly downstairs carrying his holdall and keys in a childish pretence that he was leaving.

 

h.    The mother went upstairs and collected C and brought her downstairs.

 

i.      The time interval between Mr B going into the bedroom and the mother going into the bedroom would have been very short, in all probability something like 2 to 3 minutes.

 

j.      No one else entered the bedroom.

 

k.    By the time the mother had brought her down, C had been injured.

 

l.      The mother did not inflict the injuries.

 

49. Only the mother and Mr B went upstairs at about the time she was injured. In my judgement the mother was not a perpetrator: I have formed the view that she is not the sort of person who would assault a child; in addition, she is extremely fond of both her children; she was not under stress but doing a routine task and her reaction immediately upon seeing the bruising was inconsistent with being the perpetrator.

 

50. By contrast, Mr B had been affected by the conversation he had had with the mother to the extent of going quickly upstairs grabbing his bag and keys and coming down again. He was in a temper and talking to himself. Since then, he has expressed horror at the assault but he lied in order to keep his distance from incriminating facts. I am satisfied that he went into the bedroom before the mother and I am satisfied that, perhaps completely out of character, and in drink and in temper, he assaulted C and was solely responsible for her injuries.

 

51. On the evidence I have heard, there was no reason for the mother to anticipate that this terrible thing was going to take place and I find she was not a perpetrator and did not fail to protect her daughter.

 

 

Wednesday, the 23 July 2014