England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT DERBY

		August 2014

1. This is an enquiry into how R who was born on the 11 December 2009 sustained multiple injuries in February 2014. R has an older brother E who was born on the 26 June 2008. The two boys have been described as competitive and E can be a little rough with R.
2. In February 2014, the brothers lived with their mother and her partner. The mother is a nursery nurse with other child care qualifications. She has been described as very good at her job.
3. The mother met the intervener in about April 2013 and they obtained a house together on the 10 December 2013 and on the 21 January 2014, the intervener moved in with the mother. Within two months the intervener was undertaking most of the child care whilst the mother worked shift patterns.
4. It is common ground between the mother and the intervener that on the 18 February, the mother was at work and the intervener had the care of the boys. He took the boys to a public house managed by his mother getting back at home about half an hour before the mother. The mother returned at about 5.45 pm at which time R was playing and apparently well. Approximately an hour later, R was taken to hospital by the mother and the intervener.
5. The usual medical examinations were carried out and R was found to have the following injuries.
6. There were multiple bruises all over his body. Some of the bruises, particularly those over bony prominences could have been caused by normal 4 year old play and accidents; the number of bruises is excessive for a child of this age and some identified bruises are unusual and call for more specific explanations.
7. R had suffered a fracture of the right index finger metacarpal which was clearly traumatic in origin and which was unlikely to be more than five days old. The likely mechanism was a forcing back of the finger. R also sustained a head injury resulting in a right sided subdural haematoma and right sided swelling of the right side of the brain, likely to have been traumatic in origin.
8. I have been greatly assisted by evidence from Dr Stephen Chapman, consultant paediatric radiologist, and Dr Peter Morrell, consultant paediatrician.
9. All the lawyers accept the findings of the medical experts, although it emerged in his evidence that the intervener had subjected that evidence to his own particular interpretation which I found to be idiosyncratic and largely unwarranted and which appeared to take his learned counsel somewhat by surprise. If my questioning of him was fair and I understood his response, his case is there is nothing in the evidence which should prevent me, without more, from returning the children to the mother and him.
10. Dr Morrell's written opinion included this passage.

a. lt is difficult to be sure how many episodes of trauma R suffered. However, the head injury is clearly a separate injury from the hand injury although could have been sustained at the same time (but with different mechanisms). The bruising and abrasions are in different parts of the body and are therefore caused by different injuries although again it is possible they could have been caused at about the same time as the head injury and hand injury. The bruising to the right forehead could have been caused by the same mechanism as the head injury.

11. Dr Morrell considered the explanations put forward by the mother and the intervener. He said "there is no reported accidental head injury of sufficient force which occurs in the relevant time period (i.e. the evening of the 18 February 2014) to cause the intracranial injuries found in R. There is no evidence of any underlying medical disorder which may have caused these injuries. There are also other unexplained injuries including a bony fracture. On the balance of probability it is most likely that the intracranial injuries are non accidental in nature and may involve a shaking mechanism or a shaking with impact mechanism."
12. Dr Morrell also said that the fracture of the metacarpal, unlike some fractures in young children, was the sort of injury that would continue to cause R pain and added "I find it inconceivable that a carer would not be aware of this injury."
13. Dr Chapman said in his letter dated the 25 July 2014, that "The history therefore suggests that the injury was sustained either after R came back downstairs [i.e. after his bath] or shortly prior to this."
14. Dr Chapman gave evidence by telephone. He said that as far as the subdural haemorrhage was concerned, the court was dealing with a single injury.
15. His preferred mechanism was an impact with a firm surface. Speaking theoretically and generally, he said two illustrations of the type of mechanism would be an impact with the padded arm of an armchair or a padded headboard, where the force was not sufficient to leave a mark but was sufficient to bring about the deceleration which would cause the membrane to stretch and bleed.
16. He said the force involved to cause a subdural haematoma would have to be significant because the injury is not seen in normal domestic head banging cases. He said children frequently fall over onto the floor or are shaken during resuscitation and do not suffer subdural haemorrhages and he did not accept either postulation as a mechanism. The severity of the injury shown on the scan suggested the injury was not the result of a fall on to the floor.
17. If R had fallen on to the corner of the hearth which is sharp and pointed, he would have expected a mark (and probably a fracture) on the scalp at the point of impact.
18. He said a shaking mechanism would have been more likely to produce bleeding and swelling on both sides of the head and not, as here, just on the right hand side.
19. Dr Chapman was told of E's suggestion to the police that the intervener used to swing R around (in play) and "throws him on to the ground". He said the added momentum to the impact with the yielding ground could provide the mechanism. Dealing with the fracture to the finger, Dr Chapman said he could not exclude as an explanation the mother treading on the hand in panic.
20. I heard from two witnesses apart from the mother and the intervener.
21. Miss A works at the nursery which the boys attended and where the mother worked. She described the boys as fine but clinging to their mother; she thought that was because the boys were with her at work. She did not think R was clumsy but he did love to play out of doors. She said the mother had been a brilliant nursery nurse. She said that the nursery usually treated a child with a bump with a cold press and cuddles.
22. Mrs D is the mother of the intervener and a licensee. The boys played at her public house prior to the admission to hospital. She said R had fallen over and was quiet. Mrs D did not know the mother well but had no concerns about her interaction with the children. E she described as "hyper" and a boy who needed calming down. Unintentionally, in his enthusiasm to play, he had made both R and her daughter, C (whom she described as "eleven and not small") cry. He was not an unpleasant, just giddy. She described seeing some of the marks on R's back. She told me she had asked the intervener "How the bloody hell did he get that?" When told by falling on to a pole in the garden, she exclaimed "Oh God." That was an interesting reaction of an experienced and capable mother to just a fraction of the total bruising.
23. The mother gave evidence. She supported strongly the position of the intervener whom she described as good with her boys, hands-on and a man used to young children as he came from a large family. She said that very soon after coming to live at the house, he shouldered the lion's share of the childcare while she worked shifts at the nursery. She permitted him to smack the boys (as she did) if he thought they deserved it.
24. The mother was adamant she had not harmed the children and said she believed the intervener had not caused the injuries. As her evidence continued, I formed the view that she was emotionally unable to contemplate he might have harmed the children.
25. She described the relationship between the boys. There was a small age gap between them and they were very competitive, with E taking the lead and getting upset if R would not follow. There were arguments between them but they were soon over. At times, it was necessary to keep the boys separate as E could be rough towards R.
26. The mother said that from time to time the boys had bumps and bruises as a result of playing and normal domestic accidents. When this happened, she would apply a cold press and give the boys cuddles and, if she thought it necessary, sit them down to watch television until she was reassured they were all right.
27. She accepted the thrust of the medical evidence that the subdural haemorrhage had been sustained within about an hour, possibly a little longer, of the presentation at hospital and that, as the broken right finger would have been tender, and R had been showing no signs of tenderness, it was also likely that that injury had been sustained during the same period of time.
28. She said that on Tuesday, 16 February, she was at work and the intervener had the care of the boys. She returned home at about 5:45 pm and together they made tea. R had wet himself and had been changed before she returned home. He then soiled himself. She wondered whether he had thought he was in trouble when he was not. However, she and the intervener had noticed that this problem had been prevalent and they both attributed it to the change in his regime, that is, the move to the new house and the introduction of a new adult in his life.
29. The intervener took R upstairs for a bath. She remained in the kitchen. The kitchen door was open but the extractor fan may have been on and the television was on in the living room and she heard nothing untoward from upstairs. She did agree that had something been going on she would have head it.
30. R came down and stood by the kitchen door. She told him to join his brother in the living room for tea. The boys sat on a rug to eat off a low Chinese style coffee table. The mother brought in chicken soup for R which he began to eat and then went back to the kitchen to get something different for E.
31. In the kitchen, she heard E shout that R had fallen on the floor. Her immediate reaction was that the boys were playing. She thought the intervener was the first to go into the room. When she entered, she found R on the floor, all but unconscious. She picked him up and put him over her knee and shook him to try to arouse him. She was in a panic and wondered whether, as she approached R on the floor, she had accidentally trodden on his hand.
32. The intervener gave evidence. It was quickly apparent that he was not his own best advocate. He had an irritating tendency to argue his interpretation of aspects of the medical evidence which he thought helped his and the mother's position rather than answer straightforward factual questions. He also tended to be flippant. At one point in his cross examination by learned counsel on behalf of the local authority, I asked him if he was taking the trial seriously and he answered with emphatic deliberateness, that he was taking it very seriously. I know that he is recorded as having been somewhat aggressive when questioned in the hospital and his mother said that when he is defensive he can appear "cocky". I think his manner was merely the result of nervousness and nothing else.
33. He described how he looked after the boys when the mother was working. He said he was very used to dealing with young children. He tried to deal with the boys fairly. At first he thought they regarded the mother and perhaps him as a "soft touch" and he was intent on setting proper boundaries.
34. On the 16 February, he took the boys to his mother's public house where they played. The premises were being converted and parts of the area were a building site. R was fine when he was playing although he did fall over and he was quiet at meals and on the way home.
35. They got home 30 to 40 minutes before the mother. He stood R in the sink and washed him and then put him in clean clothes. They then went and played in the garden whilst E stayed inside.
36. When the mother returned, R went to see her and it was then it was discovered he had soiled himself. The intervener took him upstairs and gave him a bath. He was resolute that the soiling episode was not annoying and that R was not injured upstairs.
37. The intervener said that downstairs both the mother and he were in sight of each other virtually the whole time and neither hurt R in any way.
38. He agreed with the mother that the first thing they knew anything was wrong was when E shouted. They went into the living room and his instinctive response was to ring his mother. On the telephone, his father said to call an ambulance but the mother and he decided it would be quicker to take R to hospital in the car. They did that immediately.
39. At the end of his evidence, I was left with the impression the intervener had not accepted the implications of the medical evidence. Mr Mason, who has put his case extremely well, in his closing address, confirmed that the intervener had difficulty in accepting the medical evidence, in particular, that the subdural haemorrhage was an inflicted injury and, relying on his own experiences, he did not accept that the fracture necessarily caused R continuing tenderness.
40. Mrs Dhadli addressed me on behalf of the mother. She first dealt with the bruising. She argued very attractively that there were solid grounds to expect an increase in accidental bruising in February. The boys had recently moved from a flat to a house with a garden in which they played a great deal; they were learning to ride bicycles without stabilisers; they were beginning to play for the first time with children from an older age group; C and E had encouraged R to climb a ladder so he could use a slide in the children's area at the public house; the boys played a game on the stairs in the house in a way that would cause them some bruising.
41. Mrs Dhadli reminded me that this mother was qualified in childcare and no one had ever criticised her parenting skills. She clearly loved her children and was bereft without them and punctilious in her attendance at contact. She had not been under strain either in her private or professional life and she was simply not the sort of mother who was capable of injuring her children.
42. Mr Mason submitted that there was ample evidence that the intervener had had a good relationship with the boys; the exception to that was E's criticism of the way he played with R. The intervener comes from a very large family and nothing has emerged in the course of this trial to suggest he had injured a child in the past. On his own account, he found looking after young children comparatively stress free.
43. I try to put the medical findings in the context of a good mother and her partner who is experienced in looking after children. If either inflicted a particular injury, it would have been out of character.
44. I listened to the cross examination of both doctors and I have come to the conclusion that I accept their evidence; each doctor is distinguished in his field and I have extensive experience of both of them giving evidence. What they said appeared to be sound medical analysis using widely accepted criteria.
45. Although many of the submissions were given over to the question of bruising, perhaps because this was a fertile area for submissions, I shall start with the subdural haemorrhage, arguably the most serious injury R sustained.
46. Relying on the evidence of both Dr Morrell and Dr Chapman, whose evidence on the topic was compelling, I find that the subdural haemorrhage was inflicted and was inflicted either shortly before R had his bath or during the time he was having his bath upstairs or, immediately afterwards.
47. At that time, in this relatively speaking, small house, the only adults were the mother and the intervener. According to the intervener, apart from the actual bath time, both adults were in each other's company and, according to the mother, she would have heard anything unusual taking place whilst she was in the kitchen preparing spaghetti. Those concessions accord with common sense.
48. To my mind, it follows inexorably that whatever happened, happened with the knowledge of both the mother and the intervener. In other words, both of them know exactly what took place and each of them has steadfastly declined to reveal that either to the medical people, the social workers, the police or me.
49. A risk in taking that stance is not simply the carers lay themselves open to a finding that each failed to protect, but the trial judge will be deprived of vital evidence to enable him to identify the individual perpetrator of any particular injury.
50. The subdural haematoma occurred at a time when R was in the care of both adults and each adult was in close proximity to the other; the insult was inflicted by one or other of them but to go beyond that would be to decide the issue on a hunch and not on the evidence.
51. A possible accidental explanation has been given for the finger, namely that as she approached R on the floor, in her panic the mother accidentally trod on his hand; Dr Chapman said he could not exclude that explanation as a possible mechanism.
52. I reject this possibility for a number of reasons. The explanation is, as the mother conceded, pure speculation and one put forward for the first time in cross examination when the implications of the medical evidence were being explored with her. I find it impossible to accept that, if this had really happened, the mother had not thought about it sooner. I find it difficult to picture how the mother bending down could have been sufficiently clumsy to have trodden on the hand. People's awareness of what is taking place and their subsequent recollection are affected by panic but I still find it very difficult to see how the mother did not realise at the time what she had done or today have no memory whatsoever of the event. I also find it difficult to understand that not only did the mother not notice what she had done but neither did the intervener. There is an inherent implausibility in R being ill treated either by his mother or with her knowledge so that he sustained a number of non accidental bruises and a brain injury and then the mother accidentally injuring him in an attempt to help him.
53. This was an inflicted injury, probably caused in temper, and it was inflicted by either the mother or the intervener.
54. The medical evidence is that R had too many bruises for them all to have been accidental; the bruising cannot be evaluated in isolation from the fact he had a subdural haematoma and a fractured finger. It is impossible to be precise but some of the bruises would have been accidental and others inflicted.
55. However, there are a number of specific bruises which the doctors said were unusual and called for a specific explanation. I find it impossible to accept that the mother and the intervener are unaware of how these bruises occurred.
56. The bruises which I regard as undoubtedly non accidental are the bruise to the right inner thigh, most if not all the bruises to the back, the three linear marks over the back of the thigh and all the bruises on the right buttock, highly suggestive of chastisement.
57. The mother had known the intervener for about ten months before he moved into the house on the 21 January; by the 16 February, R had sustained multiple serious injuries. During the intervening three weeks, the mother gave the responsibility of caring for the children to the intervener; during this time the number of bruises increased to the point where their extent indicated poor parenting. At the same time R showed signs of regression, wetting and soiling himself frequently. The mother apparently took no serious note of these signs and did nothing to check that the intervener's parenting was sufficiently experienced and accomplished to look after the boys almost full time. In acting in that way the mother failed to protect the boys.
58. I make the following findings.
59. The subdural haemorrhage occurred shortly before presentation when the mother and intervener were present in the house.
60. The injury was inflicted.

a. Both the mother and the intervener knew what happened and have not told the Court or professionals what happened.

b. The fracture to the finger was inflicted and I do not accept the mother's supposition as to an accidental cause.

c. Some, but not all, of the bruising injuries were inflicted.

d. The above injuries were caused by the mother and/or the intervener.

e. If one of either the mother or the intervener did not cause any of the injuries then they signally failed to protect R.

f. Independently of the findings above the mother failed to protect the children in all the circumstances by allowing the intervener to undertake care of the children.

61. It is accepted that, given those findings, it is in the children's best interests to live with their father, to have no contact with the intervener and for the mother's contact with them to be supervised.