England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE UPON TYNE
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: C (CHILDREN)

		The Law Courts The Quayside Newcastle upon Tyne NE1 3LA
		3rd September 2015

JUDGMENT

HER HONOUR JUDGE HUDSON:

INTRODUCTION

1. I give this judgment at the conclusion of a fact finding hearing concerning multiple fractures sustained by LO within the first six weeks of his life. LO's parents are M, aged 20, and F, aged 23, who have been in a relationship for over four years and remain together. LO is their second child. Their daughter, LI, was born in November 2013 and was 16 months old when LO was born in March 2015. LI and LO are now aged 21 months and 5 months respectively.
2. LO's injuries were discovered on his admission to hospital on 7^th May 2015. Since then, LI and LO have been living away from their parents. They initially stayed with PGM and PGF, the paternal grandparents, but were moved to foster care on 13^th May 2015 after the Local Authority became aware that PGM had sole care of LO during the period in which his injuries were sustained.
3. The care proceedings were issued on 14^th May 2015 and came before me the following day for an interim care hearing. I have case managed the proceedings since. At a case management hearing on 28^th May 2015, I timetabled the case to a fact finding hearing on 1^st September 2015, allocating a 26 week track for the conclusion of the proceedings. I approved the instruction of Dr Karl Johnson (consultant paediatric radiologist) as necessary in the light of the evidence of multiple fractures to LO of different ages. The children have been subject to interim care orders since 26^th June 2015.
4. The paternal grandparents were joined to the proceedings as respondents. The Local Authority was then including them in the pool of possible perpetrators, at least until all relevant disclosure and evidence was to hand. Beyond the fact finding exercise, the paternal grandparents are putting themselves forward as carers for the children in the event that placement with the parents is not considered to be appropriate. I considered it right in the circumstances of this case that the paternal grandparents should be fully involved as respondents. I made it clear to them that their position as possible perpetrators would be kept under active review.
5. In addition to the directions for the filing of evidence in respect of LO's injuries, I also gave directions for assessments of the parents and paternal grandparents as carers for the children, subject of course to the findings made. Those assessments were completed in advance of the fact finding hearing and have provided additional evidence of the family's parenting skills and their responses to the children.

THE HEARING

6. Police disclosure was received late. Transcripts of the two interviews with each of the parents were received on 28^th August 2015; the statements provided by the paternal grandparents to the police were only available on the morning of the first day of the fact finding hearing on 1^st September 2015. Having considered all the evidence then available, Mr Donnelly (representing the Local Authority) indicated that the Local Authority no longer sought to assert that there was a real possibility that either of LO's paternal grandparents caused any of his injuries. The parents have never implicated the paternal grandparents as responsible for any harm to LO. I agreed with the Local Authority stance and was able to tell the paternal grandparents that they were no longer implicated in respect of any injuries to LO. They nonetheless remained during the hearing and heard the evidence.
7. The medical evidence is not in issue. No oral evidence was required from the social workers at this stage of the proceedings. The only material evidence to be heard in these circumstances was, therefore, that of the parents, who accept that LO was in their joint parental care from birth. I was told that they accepted that they were both in the pool of possible perpetrators of LO's injuries and that neither sought to blame the other. I made it clear that I would, as a matter of course, expect to hear their evidence so that I could make my own judgment as to the extent to which findings could be made. In these circumstances, I heard evidence from M and then from F. No other oral evidence was called.
8. Throughout the questioning, in both examination in-chief and cross-examination, neither parent was able to give any explanation for LO's injuries, other than those previously offered and discounted. They both denied causing any injury to LO and each said repeatedly that they did not believe that the other had caused him any harm. They each presented differently in their evidence. In the case of M, she was well able to respond to the questions put to her. She seemed to well understand the significance of the hearing and the consequences that may follow. She maintained that there was nothing more that she could say about the circumstances in which LO's injuries were sustained. F's evidence was similarly unhelpful. He, however, was often very vague and appeared to function at a lower level than M.
9. Particularly striking in their evidence was the complete lack of any emotion when describing the children and particularly the extremely serious injuries sustained by their infant son. This reflected their responses to the social worker in the parenting assessment, where both were recorded by the social worker as showing no emotional response throughout the assessment when asked about their children. Neither of the parents admitted to any difficulty in caring for either or both of the children. They did not accept that the care of two young children was stressful for them. They did not accept that they had lost their temper or control at any stage, nor did they accept that the demands of caring for a baby and a toddler was unduly frustrating. As will be seen, this does not sit easily with the independent accounts of the situation. Having heard their evidence, the Local Authority does not seek findings as to the identification of the perpetrator of LO's injuries as between M and F, but invites me to identify them both as possible perpetrators, and the only possible perpetrators, of the injuries to LO.

THE LEGAL FRAMEWORK

10. The Local Authority invites the court to make findings in satisfaction of the threshold criteria. It is for the Local Authority to prove its case. Where one person makes an allegation against the other, it is for the person making the allegation to prove it. The court must guard against any reversal of the burden of proof. It is not necessary to resolve every factual issue, only those which will inform the planning for these children. Where so called non-accidental injury is alleged, the fact of such injury must be proved before any question of perpetration arises.
11. The standard of proof is the simple balance of probabilities: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35. The test to be applied for the identification of the perpetrator of any non-accidental injury is also the balance of probabilities: Re S-B (Children) (Perpetrator: Non-accidental Injury) [2009] UKSC 17. A perpetrator should be identified where that can properly be done on the balance of probabilities. There is, however, no obligation to identify a perpetrator and the court should not strain to do so where the evidence is insufficient to make such a finding. Where the perpetrator cannot be identified on the balance of probabilities, the court must identify who is within the pool of perpetrators. A person is within the pool of perpetrators if there is a real possibility that he or she was responsible: North Yorkshire County Council v SA [2003] EWCA Civ 839.
12. Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence, and not on suspicion or speculation. As I have considered the evidence, I have made my assessment of the evidence I can rely upon and that which I have concluded I cannot. I have weighed the evidence which may implicate a person in relation to any finding against the evidence which points in another direction. I have considered the evidence in relation to each allegation in the context of the evidence as a whole.
13. The evidence before the court includes a report from a jointly instructed expert. In relation to such evidence, the court is not bound to accept the views of an expert witness. Whilst appropriate attention must be paid to their opinions, the evidence of experts is to be weighed in the balance with other relevant evidence. The court must reach its own conclusions on the totality of the evidence, which may vary from those of an expert. The court must be careful to ensure that an expert keeps within the realms of his or her own expertise and defers where appropriate to others. Experience has shown that what are considered medical certainties over time may be seen to be otherwise. It is important to take account, to the extent that is appropriate in any case, the possibility of an unknown cause. Even where on examination of the evidence every possible known cause has been excluded, the cause may still remain unknown.
14. In Cambridgeshire County Council v S [2014] EWCA Civ 25, Lord Justice Ryder considered the term 'non-accidental injury' used frequently by clinicians and courts alike. He said:

'The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction.'

15. He went on to consider the relevance of such an analysis. He said that although it may be helpful to distinguish deliberate infliction from negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied which is not concerned with intent or blame. The threshold is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided.
16. During the course of the fact finding hearing, I heard evidence from both parents. As well as considering the written and oral evidence of them both, I also had the opportunity of seeing them give evidence and observing them during the hearing. In assessing the evidence of the parents, and when considering their demeanour and presentation in court, I am of course mindful that people can present in very different ways in such a stressful situation and have not based my conclusions on their presentation alone. The evidence of the parents is, however, of the utmost importance. It is essential that the court forms a clear assessment of their reliability and credibility.
17. Insofar as I find a person has lied about something, I have taken account of the fact that lies may be told for many different reasons (such as shame, misplaced loyalty, panic, fear and distress) and not necessarily to hide a person's guilt. I have cautioned myself against an assumption that a lie about one aspect of the case renders other evidence from the same person unreliable or untrue. I have, in essence, given myself a Lucas direction. Where, as here, the parents say they simply do not know how LO's injuries were sustained, I have taken account of the prospect that this may, indeed, be true.
18. The findings I make will inform the planning for LI and for LO. They may have wider implications for the involvement of these parents in the lives of other children now and in the future. Against this background, I will make such specific findings as I consider are properly established, applying this legal framework.

THE MEDICAL EVIDENCE

19. It is appropriate to address this before turning to the relevant chronology so the events can be seen in the context of LO's injuries and the likely timeframe for them.
20. When LO was taken to hospital on 7^th May 2015, there was an obvious problem with his left arm. An X-ray revealed a fresh spiral fracture of the midshaft of his left humerus and an older healing fracture of the left clavicle. A skeletal survey undertaken the following day confirmed these fractures and also showed a healing metaphyseal fracture of LO's left femur. There were signs of fractures to his ribs, but the findings at that time were difficult to interpret. A repeat X-ray on 18^th May 2015 confirmed healing fractures of the right anterior third, fourth, fifth and sixths ribs and the posterior seventh rib.
21. Investigations revealed no other injuries, nor did they provide any organic explanation for any of LO's injuries. The opinion of the treating medics was that these injuries were non-accidental. The explanation provided by the parents to the hospital in relation to the fracture to LO's arm, that LI had jumped on to it as M was feeding him, was not considered to provide an adequate explanation for that injury and clearly could not account for the multiple injuries of different ages.
22. The report of Dr Johnson confirms the fractures identified following LO's admission to hospital. In relation to causation, Dr Johnson gave the following opinion. The fracture of the left humerus resulted from significant force applied to the left arm with some degree of twisting, torsional or snapping type action. In response to the explanation that LI jumped on LO, Dr Johnson considered this unlikely as the description did not indicate the significant forces which would have been applied to his arm to cause the injury. Dr Johnson said that rib fractures are caused by severe excessive squeezing and compressive forces applied to the chest. He considered the fractures most likely resulted from a single compressive traumatic event to LO's chest. He did not consider LI jumping on LO would cause these injuries.
23. Dr Johnson described the metaphyseal fracture as the result of a pulling, twisting, torsional force applied to the end of the bone. He considered the relatively specific mechanism for causation of a metaphyseal fracture (of a twisting, torsional force) would not occur from a normal accidental fall and impact. The fracture of the clavicle was the result of either a significant blow, impact or fall on to the shoulder or, alternatively, the result of forces transmitted up the arm. In the absence of a suitable history, Dr Johnson's opinion was that these injuries are likely to be inflicted non-accidental injuries.
24. Dr Johnson provided the following windows for the fractures being sustained: the fractured clavicle, between 26^th March and 16^th April 2015; the fractured femur, between 27^th March and 24^th April 2015; the fractured humerus, between 26^th April and 7^th May 2015; and the fractured ribs, between 27^th April and 7^th May 2015. Dr Johnson considered there were at least two separate occasions when injuries were sustained. Each of these four injuries (taking the multiple rib fractures as one) required a different application of force.
25. Dr Johnson considered the possibility that the older injuries could be birth related. In terms of timing, he accepted the clavicular fracture could be birth related, although he said such fractures are relatively infrequent. He said that such an injury was more likely to result from a difficult traumatic delivery, particularly when the shoulder becomes stuck during the birthing process. Dr Johnson also considered that the fracture of LO's left femur could not be excluded totally as being birth related, although he considered it unusual. He said such a fracture could occur as a result of a difficult and traumatic delivery. The medical records, in fact, record that LO was born at full term via planned caesarean section. The records describe it as uncomplicated and that LO was delivered with ease.

THE RELEVANT CHRONOLOGY

26. F has a number of convictions for offences of violence. In 2007, when he was aged 14, F was convicted of an offence of battery. The parents' relationship began in 2011. The same year, he received a penalty notice in respect of a public order offence. In 2011 F was involved in a serious episode which resulted in him pleading guilty to a section 20 assault. In his oral evidence, F said he stabbed someone with a knife in an altercation in a street. In July 2012 he received a suspended sentence of imprisonment in respect of this.
27. In 2012, M and F started living together. In 2013, M became pregnant. Before LI's birth the parents moved in with the paternal grandparents, apparently as a result of the parents' poor home conditions. Following LI's birth in November 2013, the parents and LI lived at the home of the paternal grandparents until January 2015. On all accounts, the paternal grandparents were closely involved with LI's care during the time she lived with them. This was particularly so in the case of PGM because of PGF's employment, which meant that he was at home less of the time. In January 2015, M, F and LI moved out of the paternal grandparents' home into their own tenancy.
28. In March 2015, some weeks before LO's birth, the parents describe an episode when M was on a bus which performed an emergency stop, causing her to be thrown forward so that her stomach made contact with a handrail. In both his response to the Local Authority's findings and his statement dated 6^th May 2015, F puts this forward as a possible explanation for LO's injuries. It was not, however, mentioned by M as a possible cause of injury when she was asked to provide any explanation at the hospital following LO's admission or during her two lengthy police interviews on 16^th May and 8^th June 2015. The parents say they went as far as to try and obtain CCTV footage from the bus to demonstrate what happened during this episode. This was not put forward as part of the parents' case in the hearing as an explanation for LO's injuries, not least because the episode is well outside the timeframe for the causation of any of the injuries. F still gave this as his only explanation during the course of his oral evidence (other than the account of LI falling on LO's arm). I am satisfied that whatever may have happened on a bus some weeks before LO was born, this did not cause the fractures discovered following LO's admission to hospital.
29. On 12^th March 2015, M was admitted to hospital as a result of complications in her pregnancy. The medical records record that she discharged herself against medical advice, that she went home as LI was not settled without her and that 'dad demanded her home now' (referring to F). Until this was put to him, F's evidence had been that he never had any difficulty caring for LI, or after the birth for LO. When he was challenged in relation to this, he was only willing to say that LI was missing M. He denied that he had demanded that she return home.
30. LO was born on 24^th March 2015. I have already recorded that his birth was uncomplicated. This had not been challenged by the parents at all until, in his oral evidence, F described quite a dramatic scene with the bed shaking because of the trauma of the birth. I did not find this evidence from him to be credible. When LO was discharged from hospital, the family returned to the paternal grandparents' home for a few days as there was a problem with their heating. On 1^st April 2015, they returned to their own home.
31. Until the first day of the fact finding hearing, the next event of significance recorded in the case papers was 14^th April 2015, when the midwife referred LO for examination after two marks were observed on his back which were considered to be possible bruising. On examination the paediatrician described them as:

'Barely visible, extremely faint marks over the middle of the back less than 1cm round with indistinct edges. This may be a birthmark but is definitely not a bruise.'

A strategy meeting led to no further no action in the light of this opinion. These marks have since disappeared.

32. The events of the early part of April now have to be seen in the context of information which was revealed only through the disclosure of the police statement of PGM. On the first day of the hearing, the disclosure of her statement revealed for the first time that F and LI had spent a night at their home in the week commencing 3^rd April 2015 while M and LO stayed at the maternal grandmother's home. PGM's statement made reference to an argument between the parents, which had not been mentioned by them.
33. The parents were each asked about this in their evidence. They agreed that this happened, although they gave contradictory evidence about the date (whether it was the 4^th or 8^th April 2015) and whether the night they spent apart was the same night or a different night to the disagreement they had, which concerned M's younger sister taking LI to the park on her own. They both agreed that this was the first time they had spent a night apart as a result of disagreement in the four years of their relationship, although it was unclear at times whether they each agreed that they had stayed apart that night or for that reason.
34. I found their evidence about this period confusing, contradictory and unhelpful. I questioned why neither of them had mentioned this previously, when they had been directed to give a full account of the care arrangements for LO since birth and the proceedings and when they had been asked detailed questions by the police about their relationship and arrangements. It was, on their account, an exceptional event in a number of different ways. F and LI spent the night at the paternal grandparents' home. The reason for this was equally unclear, but was ultimately explained by reason of the need for him to go out and get a replacement dummy and bottle after LI's had not returned from the trip to the park.
35. On 16^th April 2015, PGM had LO's care for about one to one and a half hours. She and a friend took the children to Sainsbury's. LO remained in his pram and, on all accounts, was well both before and after this episode. LO had his first immunisations on 17^th April and on 18^th April 2015 was seen by a health visitor who examined him and found no cause for concern.
36. On 26^th April 2015, LO was taken to hospital in the early hours after M had called 111 and reported that LO had blood in his mouth. She and F both say that LO woke that night crying for a feed but would not take his bottle and could not be settled. LO was otherwise described as an easy baby who did not cry a great deal and who would generally settle once his care needs were met. M and F both said that LO was downstairs in M's sole care when the blood in his mouth was first evident. There were, once again, contradictions and inconsistencies in the accounts that each gave about the events overnight. They agreed that, unusually, LI also woke and needed attention.
37. LO was taken to hospital where he was kept in during the day for observation. There was no obvious sign of bleeding in his mouth. Oral thrush was ultimately diagnosed and LO was discharged on the basis that the bleeding may have been secondary to that. In hindsight, Dr Hopper, the treating paediatrician at the time of the admission on 7^th May 2015, raised the prospect that this represented an episode of injury which was not seen as such at the time.
38. The events of that night as described in the accounts of each parent would, in my judgment, have taxed any carer. It was striking, therefore, that neither admitted to finding the events particularly stressful; they were both adamant they had not lost control and that nothing untoward had happened. Once again, I was not satisfied I received a full or truthful account from either of them in relation to this.
39. PGM had the care of LO for a second time on 7^th May 2015. On this occasion F asked her to bath LO (something he says he felt uncomfortable doing) as M was having difficulty following her caesarean section and could not bend. PGM gladly obliged and bathed LO who was then returned to his parents. She noted nothing of concern and the parents described LO being well on his return. In relation to this occasion, M denied that she was experiencing any difficulty in her care of the children despite her obvious discomfort and incapacity.
40. The Local Authority's chronology (taken from the medical records) includes a missed health visitor's appointment on 7^th May 2015. M does not accept an appointment was missed on this day. I did not hear any primary evidence about this and make no finding in relation to it.
41. On 7^th May 2015, LO was taken to hospital with an obvious injury to his arm. PGM's statement to the police records that F rang her in panic, asking for his father to go as there was something wrong with LO. The paternal grandparents immediately went to the parents' house just a few minutes away. There was very obviously something wrong with LO's left arm, as a result of which he was taken to hospital. M and F both say their only explanation is that whilst M was feeding LO shortly before this, LI jumped on to LO seeking her mother's attention. On F's account, he did not see this happen but came in just after.
42. Following a referral by the hospital, the police interviewed both parents on two separate occasions. While M described F having a temper, he sought to portray himself as very mild. It was very difficult to get any sense from the evidence of the parents about the extent to which violence was or was not part of their relationship and at what times in their relationship.
43. They both agree that they were LO's carers in the first six weeks of his life. Although M was described as the primary carer, they both say that F was fully involved, apart from his reluctance to bath LO. There were occasions when LO was in M's sole care: times when F went out to the shops and called into his parents' house and the occasion when he and M were apart overnight. LO was in his mother's care throughout. There were no occasions when LO was in his father's sole care in the absence of M, other than times when she may have been elsewhere in the home.
44. Despite both M and F saying they have spoken frequently about LO's injuries and how they could have been caused, they have no other possible explanation. They both seemed perplexed in their oral evidence that their accounts were considered inadequate, when they each denied causing LO any harm or that the other did so. Neither of them appeared willing to contemplate holding the other responsible. Neither appeared to consider anything more was required of them by way of explanation.
45. M's evidence was striking when, after listening to her in examination in-chief and cross-examination, I asked her finally about LO and what she thought about him having sustained these injuries. She told me she was shocked and worried because she knew she had not caused them. I tried again, focusing the question more closely on the impact on LO and the fact he must have been in pain. She replied that she could not recall him being in pain. With my third attempt, she said she felt upset because his injuries were there but she did not understand where they came from, which she said she found upsetting. There was no evidence whatsoever of empathy for what her baby had experienced, or any sense of responsibility that these injuries were sustained by her child in her care. I found her lack of response and understanding quite remarkable. In the case of F, he showed no greater insight throughout the course of his evidence in the responses that he gave both in his evidence in-chief and cross-examination.

MY CONCLUSIONS

46. I accept the unchallenged medical evidence as to the injuries sustained by LO. I also accept the medical evidence as to their timing and likely causation. I am satisfied that these were not birth related injuries or injuries caused in utero. I do not accept the explanations given by the parents otherwise as providing an acceptable explanation for LO's injuries.
47. I have considered the possibility of as yet undisclosed episodes in the care of the parents which may have given rise to one or more of the injuries accidentally. I have ruled these out. The parents have put forward other accidental explanations. I am satisfied that, if there were anything else to say in this regard, they would have said it. I have also considered the possibility that one or either of them does not know what happened. That must be seen in the context of the care arrangements for LO in these weeks.
48. Having considered the evidence in its totality, I have concluded that the fractures sustained by LO are non-accidental, inflicted injuries. They were sustained on at least two occasions. All four sets of injuries required a separate application of force. In the absence of any credible explanation for these fractures, it has been impossible to determine whether they were sustained through negligence or through some deliberate act. These are the sort of injuries which are characteristically caused to young babies through frustration and an inability of a parent or carer to cope. Each parent was given the opportunity of explaining such a situation; they both denied that any such situation had occurred.
49. The injuries were caused whilst LO was in the care of his parents. I have considered whether there is sufficient evidence to identify a perpetrator. I have considered F's propensity to violence in the past and his temper. I have considered M's opportunities to cause injury to LO as the sole carer and the responsible carer when LO was first seen to have blood in his mouth. I have concluded that the evidence is insufficient to allow me to identify the perpetrator as between them.
50. I was not assisted at all by either of the parents, whose evidence was self serving and protective of each other. They know much more than they have been willing to disclose. One or both of them is responsible for causing LO's injuries. If only one, the other must know that, because there is no other possible perpetrator and no other acceptable explanation. The fact that neither of them was willing to contemplate that situation speaks for itself.
51. It is impossible to determine how or precisely when LO's injuries were caused. On the evidence that I have heard, I consider it likely that an episode took place over the night of 26^th April 2015 which caused injury to LO. In the case of his presentation to the hospital on 7^th May 2015, it is impossible to determine precisely how or when LO's arm was fractured other than it was fractured by one or either of his parents whilst he was in their joint care.
52. M and F have grossly failed LO: in causing injuries, in the case of at least one of them; in putting themselves and their relationship before their children; and in failing to give an honest explanation of the events which caused the fractures. They have failed not only LO but also LI, whose care arrangements have also been compromised significantly as a result.
53. I therefore make the findings sought by the Local Authority, subject only to amendment to replace the age of the injuries with the timeframe within which they were most probably caused (and so at paragraph 2, to insert 26^th April to 7^th May; in paragraph 3, 27^th April to 7^th May; paragraph 4, 27^th March to 24^th April; and in paragraph 5, 26^th March to 16^th April) and in paragraph 11 the findings will be revised to exclude PGF and PGM from implication in any of the injuries sustained by LO. These findings will inform the welfare planning for LI and for LO. Decisions about permanent placement of these two young children must now be addressed without delay.
54. Subject to any matters arising, that concludes my judgment. I will direct a transcript of judgment to be obtained on the application of the Local Authority at the shared expense of each of the represented parties. In circumstances in which I have concluded that PGM and PGF are not implicated in any way in the injuries sustained by LO and the fact finding exercise that I have undertaken, I do not consider that there is any proper basis for them to share the cost of obtaining the transcript of judgment.
[Discussion re directions follows]