England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT

Sitting at NEWCASTLE UPON TYNE

The Quayside

Newcastle upon Tyne

NE1 3LA

30th January 2015

B E F O R E:

HER HONOUR JUDGE MOIR

_____________________

Judgment

_____________________

Re C

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1.      Her Honour Judge Moir : I am concerned with the welfare of SC, who was born on 25th September 2014, so she is just over four months old. Sadly, S is a very poorly baby and has a number of complex medical issues, which result in her life expectancy being significantly reduced. Although I had hoped to have some better idea of the prognosis, it has not been possible and may not be possible but it is right I should proceed in any event. The medical opinion is, as I have indicated, that S’s life expectancy may be significantly reduced.

 

2.      On 5th December 2014 an X-ray which had been undertaken in regard to a possible chest infection revealed that S had a healing fracture of the right seventh rib. The timeframe for the occurrence of that fracture was during the best part of November. S was born in London and, following her birth, remained in hospital until she was transferred by air ambulance to Durham on 10th October 2014. She was discharged from hospital on 15th October 2014 into her parents’ care.

 

3.      Since then, she has been seen by numerous health professionals; she has been frequently to the hospital at Durham and health professionals have visited at home. The professional involvement has been considerable, as necessitated by S’s medical requirements. The investigations that have been undertaken in relation to the rib fracture have been extensive and I have seen reports from, in particular, Dr Jackson, the consultant paediatric radiologist and other consultants involved in the care of S. There is no indication that she has unusual or vulnerable bones or any suggestion of any weakness in the ribs, or bone abnormality.

 

4.      Dr Steele’s evidence is that therefore, in those circumstances, it would suggest that excessive force has been applied to the rib cage to cause the fracture. However, Dr Steele also opines, within the report prepared for these proceedings, that her neurological condition needs to be taken into account. She is very floppy, and such a child is difficult to handle and can more easily slip through a carer’s hands, which could result in the need to grasp her more tightly than normal. However, there is no such reported incident currently and her parents state that one of them has always been with the child throughout the period of time when the fracture was sustained. However, in my experience, it is likely that other extended family members and, possibly, professionals, would have been in the room with her alone, albeit maybe momentarily or for longer, without parents actually present in the room.

 

5.      The factual scenario is also complicated by the fact that S seems to have an unusual reaction to pain. There is evidence within the papers that a nurse was able to give S an injection, without waking her up, and the unusual reaction to painful events is something which, of course, feeds into a number of considerations which the court must have, in relation to the knowledge of someone that they may have hurt her, or indeed the knowledge of what I will call a non-perpetrator, that some injury had occurred.

 

6.      The parents, it has been noted by Dr Steele, as well other professionals involved, have been appropriately upset and child-centred and concerned and cooperative with health professionals, throughout all the difficulties and, in particular, this difficult time for S and her family. Mr Stonor says, in submission, that the parents in every way have been observed to be providing care of the highest possible standard for S.

 

7.      The issue before the court today is whether these proceedings should be brought to an end, or whether directions should be given and the matter pursued to a fact finding hearing and thereafter consideration of the welfare requirements of S. No one suggests that the local authority have brought these public law proceedings in anything other than good faith and with a view to discharging its safeguarding responsibilities and duty.

 

8.      As far as the position of the local authority and indeed the Guardian, in respect of the applications made by the mother and father, to effectively end the proceedings today, both the local authority and the Guardian, while helpfully making submissions, both in writing and orally, have quite properly said that it is a decision for the court in pursuance of the court’s case management powers, as set out under the Family Proceedings Rules, at rule 4.3, and the power specifically at 4.3(3M):

 

 “The court can dismiss or give a decision on an application, after a decision on a preliminary issue.”

 

9.      9. No one doubts that the court has the power, if it deems appropriate, to deal with the application at this stage. Mr Stonor has helpfully set out the law which the court has to consider, as set out within the authorities, thus far. The cases which he has brought to my attention are in respect of case management and also cases on permission to withdraw care proceedings which he says, quite rightly, by analogy, are helpful within the scenario with which I have to deal.

 

10. Munby LJ, as he then was, said within Re W [2013] EWCA Civ 1227:

 

 “In family proceedings, where it is fundamental that the judge has essentially an inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration, it has long been recognised an authority need not be quoted for this proposition that, for this reason, a judge exercising in the family jurisdiction has a much broader discretion than he would in the civil jurisdiction, to determine the way an application of the kind being made by the father should be pursued. In an appropriate case, he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter.” 11. He went on to say:

 

 “The judge in such a situation will always be concerned to ask himself is there some solid reason in the interests of the children why I should embark upon or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise.”

 

12. The proceedings in this case have been brought in response to the fact that S sustained an unexplained rib fracture, whilst in the overall care of her parents and the professional evidence is that the fracture was the result either of a deliberately inflicted trauma, or, as Dr Steele puts it, “a concealed accident”. Mr Brown, on behalf of both parents effectively, accepts that there is an unexplained rib fracture and that potentially it was caused by accident or potentially was inflicted. Of course, that concession is made upon the basis of the evidence which is presently available, but I am dealing with this application on the basis of the evidence which is presently available.

 

13. I have in mind S’s complex health needs and prognosis and also the overwhelmingly positive evidence, otherwise available, in relation to the parenting capacity of these parents. I also have regard to the planning of the local authority which effectively is that, whether or not the court identifies a specific perpetrator, the local authority would, depending on how the family reacted, if there was a positive finding, that the local authority would have a strong desire for S to remain in the care of her parents. Indeed, on invitation, the local authority have provided a very helpful statement from Katie Bromham, the social worker, under the supervision of Josephine Fairless, the team manager, dated 27th January 2015, which sets out the planning of the local authority, the plan of support of the local authority and reference to the health professionals involved with S and the anticipation of their continued involvement.

 

14. The court in listing a fact finding hearing would be looking to identify whether the rib fracture is an inflicted injury and looking to identify, if possible, the perpetrator of such injury. The Threshold is expressed in that way. As Mr Stoner says, the case is not as straight forward in this particular case as saying that there is no possibility of the Threshold being satisfied. Although one can see that there are some difficulties, or possible arguments. As Mr Stoner says, it may be with further expert evidence and, indeed, oral evidence, it may be possible for the court to conclude that the Threshold is met and, indeed, it may be possible for the court to make findings of a specific nature, including a finding as to the perpetrator.

 

15. I accept the submission that it is not as straight forward as saying that there is no possibility of identifying, or crossing the Threshold, or identifying a perpetrator, but it must be recognised that upon the present evidence there are difficulties, which the court must anticipate, in relation to both these aspects which the court would have to consider. In relation to the possible perpetrator, if this is indeed an inflicted injury, the pool is large, because there have been numerous people involved in S’s care and, as Dr Steele set out, although the parents would say that they have been present when other people have been there, it is inevitable that there may have been times when they have been momentarily absent and, bearing in mind S’s unusual reaction to pain, the usual expectation that any infliction of injury would result in very obvious reaction by way of crying, distress and so on, may not be present.

 

16. In relation to looking at the pool of perpetrators, clearly the court is well used to having to consider whether there is a realistic possibility of a particular person being a perpetrator. The exercise in this case would not be simple. Overall, there is a distinct possibility that the court will not be able to be satisfied beyond finding that there is an unexplained rib fracture, which of course presently the parents accept.

 

17. In Re W, Ryder LJ emphasised that the question which a court would be looking at, in relation to an application to withdraw care proceedings, would be whether or not such application and the proposed withdrawal would promote or conflict with the welfare of the child.

 

18. The court cannot ignore that the welfare of S includes, on the basis of the evidence that I have, the dedication of her parents to her care and wellbeing and, undoubtedly, for all the family, the extended family as well as the parents, the continuation of these proceedings is emotionally very draining and the parents need the assistance of the extended family to cope with S’s complex medical needs. The parents and extended family need to be able to concentrate on S’s requirements, health, welfare and such concentration must be affected by reason of ongoing proceedings.

 

19. McFarlane LJ set out in A County Council v DP, RS and BS [2005] EWHC 1593 (Fam) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued. He set those out against a background where it was not an obvious case that proceedings should be withdrawn, and he set out a number of matters, namely the interests of the child, the time the investigation would take, the likely cost to public funds, the evidential result, the necessity of the investigation, the relevance of the potential result to the future care plans for the child, the impact of any fact finding process upon the other parties, the prospects of a fair trial on the issue and the justice of the case.

 

20. Mr Brown raised the likely cost of these proceedings; that is a consideration which is very much peripheral to the decision that I have to make, but cannot be ignored. The time the investigation will take; bearing in mind the complex nature of these proceedings, it is likely that this matter would not come to trial until June/July and then would take up, Mr Brown estimates, at least three weeks of court time. Again, those considerations are peripheral, but are set against the necessity of the investigation and what the investigation is likely to achieve and the emotional costs of the investigation, i.e. the parents’ and extended family’s continuing involvement in very sensitive court proceedings.

 

21. McFarlane LJ indicated that there should be a cross check in relation to any conclusion that the court may reach, having regard to the straight best interests test, under section 1(1).

 

22. I have to consider and can only consider on the basis of what I presently know and the present medical evidence what continuing the proceedings is going to achieve. The likelihood, it seems to me, of identifying a perpetrator, a specific perpetrator, is limited and, in any event, the local authority would seek to do all they could to support S at home. The emotional cost to the parents, their anxiety, the dilution perhaps of their focus upon the needs of S would not be in the interests of S and I weigh that up against what would be achieved, or likely to be achieved, from a full hearing.

 

23. The application that Mr Brown and Ms Thompson make on behalf of the parents if acceded to would be an exceptional course for this court to take. But I have formed the view that this is an exceptional case. It seems to me, bearing in mind all those matters to which I have referred, and most particularly the fact that S needs the undivided attention of her parents and, sadly, it is not known for how long that will be necessary, it seems to me that the appropriate course of action and decision for this court is to indicate that I will make no order in respect of these proceedings and I am satisfied that that is justified upon the facts that have been put before me in this matter.

 

24. Therefore, that is the conclusion which I reach and a conclusion which I am satisfied is justified.

 

25. I ought to make the point, as part of the judgment, that it is S with whom I am concerned; I am not concerned with any other child or the future. It is S with whom I am concerned and I make this decision upon that basis.

 

End of judgment

 

We hereby certify that this judgment has been approved by Her Honour Judge Moir.

 

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