England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT LEYLAND

		Leyland Courthouse Preston
		10/04/2015

His Honour Judge Duggan :

1. Last week I conducted a fact-finding hearing in care proceedings. I am concerned with the younger of two children of these parents, T who was born on 8th September 2014. She has an older brother L who was born in 2012.
2. The mother and father have been together since 2008. The papers confirm that the parents had been concerned about marks which appeared and disappeared on their children. This caused great anxiety because there was a family history of meningitis. The marks had been mentioned to the health visitor and the general practitioner but neither was unduly concerned. Things came to a head on 24 November 2014. T was not herself. She was unsettled and there were marks on her skin. The parents feared something serious like meningitis so they sought advice. The father telephoned the health visitor who recommended they see their GP. T was taken to the GP who saw marks which he described as a "rash". He recommended the child be taken to Burnley Hospital. The records there show that "bruises" were seen and the child was transferred to Blackburn Hospital. At Blackburn it was agreed that the child had "bruises". A skeletal survey revealed a metaphyseal fracture. There was no acceptable explanation for these injuries so social services were contacted and in due course these proceedings were commenced. The local authority has prepared a schedule of allegations. The relevant material has been assembled in a number of bundles. I am familiar with the evidence and the relevant parts of the records.
3. I have heard oral evidence from the Blackburn paediatrician Dr Belderbos, the independent paediatric radiologist Dr Watts, the independent paediatrician Dr Cartlidge. I then heard from the mother, the father and various family members. The independent paediatric haematologist Dr Keenan provided a written report which was challenged through the submission of written questions.
4. The local authority brings the case and must prove their allegations. There is no burden on the family to provide any explanation. The case must be proved on the balance of probabilities. This must be based on the evidence as the court will not proceed on mere suspicion. If something is not proved to the requisite standard, the court will proceed on the basis that it did not happen. The need for proof on the balance of probabilities applies to the condition of the child, the cause and the identification of any person responsible
5. It is sometimes impossible to identify the person responsible. The court must not strain to do so. The court must then try to list those of whom it can be said there is a real possibility that they were the perpetrator.
6. I have considered all the evidence in the context of the case as a whole and the wider social canvas. The medical evidence is only part of the picture and the final decision is mine. The evidence given by the parents and the family is very important and having heard from them I have formed an assessment as to their credibility and reliability. In the investigation and hearing of these cases it is not uncommon for people to tell lies. I have reminded myself that they may lie for many reasons including shame, panic or distress. The fact that a person may have lied about one thing does not mean that they are lying about everything. It is important to remember that human knowledge is limited. Today's medical certainty they be discarded by the next generation as they learn more. I have considered alongside all possible causes the possibility that the cause of K's injuries is unknown.
7. The local authority seeks to establish that injuries were inflicted by the parents. The issue is whether they have established this to be the case.
8. The mother has the benefit of a psychological report to guide her participation in the proceedings. She has autism and dyspraxia. The report explains the anxiety which arises and, although there is an apparent ability to overcome these difficulties, I have followed advice as to how the mother can be assisted in this.
9. Social Canvas

I start with the social context. The mother clearly had a difficult early life, no doubt associated with her medical condition which then included ADHD. Life was turbulent with her violent episodes directed against her mother. The grandmother's attempt to deny clear records (and her own daughter's account) reveals her to be dishonest in her loyalty to the mother. It is clear that the mother was exploited by others. She says that an incident of sexual exploitation changed her style of life and caused her to settle down. Recent evidence confirms this. A core assessment in 2012 was prepared due to concerns arising from her first pregnancy. The assessment was positive and the case was closed. The reports of the health visitor are favourable. They describe a support network, a bond between parents and children with no reason to be concerned. The evidence includes supportive character evidence. The hospital records show the mother to have been appropriate with T on the ward. The initial section of the current parenting assessment is in favourable terms. It seems that the parents were a well suited couple who lived without domestic strife.

10. The mother has a weak right arm. She will not pick up the baby and although she can hold her in her arms, she lacks confidence. The father is technically the carer for the mother. He is not employed and receives benefits on this basis. He performs the majority of the household tasks with the mother helping as she can, for example working alongside the father at bath time. The wider family live in close proximity and were seen daily.
11. I conclude that the mother has moved on from a turbulent, violent past. Her physical difficulties are real and forced the couple to adapt.
12. Injuries

The doctors have explained that it is important to distinguish skin marks from bruises. Skin marks have many causes and they can come and go. Bruises are different and involve bleeding under the skin after trauma. The position has become clearer as the case proceeded. T clearly did have marks from time to time. They were reported and seen. Initially the parents suggested that all the visible signs on the child were mere skin marks. They have now heard and accept expert evidence that there were in fact three areas of bruising:- in the right ear, at the right ankle and behind the right shoulder. This has to be correct. The bruises persisted from the father's call to the health visitor on 24 November through the medical examinations on 25th and 26th of November to the photography which probably took place on 26 November. The mother said that the marks disappeared on the morning of 25 November but they were clearly there later in the day. The records suggest that the nurse agreed with the mother but she cannot be right.

13. The GP used the word rash but this was clearly a loose use of terminology. Otherwise professionals have consistently said these were bruises.
14. T has had extensive tests to see if any known medical abnormality has contributed. The experts are clear that there is none. They say that the cause is the application of excessive force and I shall return to causation later in this judgement.
15. The buttocks present a more complex picture. Dr Belderbos conducted an examination at about 1030 am on 25th of November and she describes linear bruises on the buttocks. However these were not reported by any of the three medical examinations during the previous day even though these examiners did see the Mongolian blue spot in the area of the buttocks. This raises doubt as to the cause of the marks on the buttocks. I cannot accept that they were simply missed by the previous medical examinations so I conclude that they were not then apparent. This would be surprising if the cause was an earlier impact. The examinations do not even report the redness associated with a recent slap prior to the emergence of bruises. There are a number of unsatisfactory elements in the evidence concerning the buttocks. Dr Belderbos revised her view after speaking to a colleague, adding her reference to a possible slap mark. Dr Belderbos own diagram is not very clear to me, even after her attempted explanation. It is not crucial but an inexperienced junior colleague produced something different. However the photographs provide no support and certainly Dr Cartlidge saw no pattern of linear impact. My conclusion is that it is not established on the balance of probabilities that the marks to the buttocks represent an inflicted injury.
16. Fractures

The diagnosis by the local doctors has been challenged by the instruction of independent evidence. Dr.Watt had no doubt that they were right in describing a metaphyseal fracture to the right leg. His reliance on research was challenged and he accepted the need for caution when no other injuries were present. However he gave solid and supported analysis that these injuries are rare and associated with non-accidental injury. They require a pulling/twisting mechanism of significant force

17. The mother demonstrated for Drs. Watt and Cartlidge a potential cause which they were prepared to accept as consistent with the injury. The timing she gave and the distressed reaction of the child were also acceptable. The mother described L falling on to T on the bed such that both children were sliding off. She said that she grabbed both children and pulled them back. The key element is her grabbing of T. I do not accept that this happened.

a) The very first mention of the mother grabbing T occurred during the mother's demonstration in court. It occurred immediately after Dr Watt said in evidence that the fall alone did not explain the injury because it needed the twisting and pulling of the limb. The mother obliged with her new account including this element.

b) The mother's statement gave a detailed account of the fall which included the mother grabbing L but not grabbing T. Her concern was any harm done by the impact of L on T. In evidence the mother explained that she was upset and failed to make herself clear. She explained that it was easier to demonstrate than to explain. There is support from the psychologist who describes difficulties of verbal expression and the benefit to the mother of being prompted.

c) It was argued that the mother was not aware of the true nature of the allegation at the time she made her statement. I cannot accept this proposition in the face of this statement, carefully prepared with experienced solicitors. They were allowed to wait for the guidance of the psychological report before taking the statement. Paragraphs 34 and 36 reveal that the mother did know that the issue concerned the twisting and pulling of the leg. However in paragraph 38 she produced a detailed account omitting the one important item of relevance. The reason can only be that this is not true.

d) The father was apparently not in a position to see and he relies on what the mother told him. His account does not include any reference to the grabbing of T and I infer he was not told of this by the mother.

e) There is a very odd element in the case. An uncle recalled that the father told him that T was hurt when she was grabbed by L. He did seem very vague in his recollection. He also reported that the father said that T was hurt when L fell onto her, an account which is easier to understand.

f) There were inconsistencies in the parents' account of the incident, in particular their accounts of T's reaction. The mother described a much longer, serious reaction. The father described distress for a short while after which the child settled down. If the mother's account is right I would have expected the parents to seek hospital treatment.

g) The mother says that she used her right arm. However this is her weak arm which lacks coordination. She explained things she was unable to do with her right hand e.g. using knife and fork, washing hair, catching a ball. It seems improbable that the mother would be able to grab T's limb with the force necessary to cause a fracture.

For these reasons I find that the fracture was not caused in this way.

18. Cycling

Another potential cause for the fracture is the cycling motion which the father learned to deal with T's constipation. In favour of this possibility is the fact that it was only used when T was upset so the additional upset arising from injury would be difficult to detect. After the immediate aftermath it is accepted that this type of fracture is virtually undetectable. However against this possibility is the necessary degree of force to cause injury, in particular a sideways, twisting force so excessive as to amount to abuse, in the view of Dr Cartlidge. The father was criticised by the grandfather on one occasion while he was carrying out this cycling activity. The grandfather told him to calm down a bit. I have heard the grandfather and this was clearly no more than a mild rebuke. It is now known that injury would only rise from an abusive level of force. The father, and probably the grandfather, now thinks it unlikely that the fracture was caused in this way and I agree.

19. Other causes

The remaining potential causes apply to fractures and bruises alike. They were not self inflicted as T was an immobile baby. They are not birth related as they are too recent. In relation to known medical causes, T has had all the necessary tests which revealed no disposition to bruise or fracture. Since discharge from hospital T has received unrelated medical attention and there has been no evidence of more unexplained bruises or fractures. However tests revealed C K to be slightly high so investigations continue. The paediatricians were asked to explain and the investigation concerns the liver and the muscles. I am told that the elevated level of CK has no relevance to bruising or fractures.

20. Sibling

It is accepted by all that L who was aged 2 1/2 years at the relevant time was boisterous. His parents say that he was curious about T, trying to lift her, grabbing and hugging her, pulling her bouncy chair towards him and falling onto her. They explained that there have been occasions when somehow he has caused T to cry although they have not seen him to cause injury. This account contains inconsistencies. The references to causing T to cry do not appear in the parents witness statements. The original history given by the father in December 2014 was that T does not cry with L and they were never left unsupervised together. He now explains that he meant that they were never left together for more than a few seconds. These clearly were attentive parents able to provide one-to-one care. For me the children were perhaps unsupervised for long enough for something to happen but not long enough for the parents to be unaware of it.

21. The bruising must have involved three separate blows to 3 separate parts of the body. It is difficult to believe that the parents missed them all. An object was probably involved in the bruising inside the ear. Other injuries probably involved pinching or gripping. I accept the opinion of Dr Cartlidge that it is possible to imagine the sibling inflicting any one bruise but I agree that the combination is important in that T had three bruises plus the fracture. It is unlikely that these were unobserved accidents with a sibling and more probable that they were inflicted injuries. It is clear that the fracture would need force beyond the scope of a 2 1/2-year-old sibling and again the parents describe no memorable incident involving him for analysis.
22. Carers

It is accepted that T was in constant care of her parents. As I have explained already, the general social picture was favourable. However the mother's disability was a real issue. The household had two children under three and the newborn suffered colic and constipation. The mother was able to make only a limited contribution and she struggled to help the father who was carrying a high burden. Both parents deny the possibility of any unreported accident. They both deny any frustration or loss of temper but surely these were all too possible in the circumstances. I find their account to be unrealistic. The position was made worse because the circumstances deprived the mother and father of outside help they would otherwise have received. At the time of the birth of L both grandmother and aunt played a big part, indeed the latter moved into the house. At the time of the birth of T both ladies were diverted by their own commitments. Other family lived close by, particularly an aunt who was in and out of the house but this was not comparable to the circumstances at the time of the birth of L. At the time of these injuries neither the mother nor the father had any break.

23. I have reflected on the possibility that the cause of these injuries is unknown and cannot be ascertained. However for me on the balance of probabilities a clear picture emerges. The mother has not told the truth about the bedroom incident in that T was not pulled on the leg. This was an attempt to escape responsibility but it does not prove that the parents were responsible. I look to the remaining evidence. Domestic circumstances were clearly very difficult. It is improbable that L was responsible for the fracture and the bruises. T sustained two different types of injury including bruising on three sites and a metaphyseal fracture of a kind associated with inflicted injury. It is improbable that an accident or series of accidents with L explains this picture. It is equally improbable that some unknown cause has produced this pattern. It is much more likely that adult intervention is to blame. I accept that the parents did expose these injuries by seeking medical attention themselves. I am asked to consider whether this was the action of a guilty carer. However their motivation arose from their fear of meningitis which was strongly held in this family. They would not know that an invisible, asymptomatic fracture would be found. There was a family expectation that marks on the body be taken for expert examination and while the perpetrator would have known that some marks had been inflicted, there were others that had not. The local authority has established that the probable cause lies with the carers. They were pressed to provide details of any accident which had occurred but they failed to do so, so I proceed on the basis that there was no accident. If there had been an accident they would have told me. In all the circumstances, especially the nature, number and site of the injuries, I am driven to infer that these were inflicted injuries. They are the injuries of frustration and rough handling which is entirely consistent with the social presentation and personal circumstances of the parents.
24. Identification

The mother and the father accepted that T was always in their care. Due to the mother's problems, joint care was a constant feature. For example if father showered, the mother came upstairs with the children as her anxiety dictated that she remained close to hand. Her anxiety meant that the father never went out leaving the mother and children alone. They either all went out together, for example to the shops, or occasionally family members came and joined the mother and children while the father was out alone. On close analysis there was very limited opportunity for harm to occur to the child in the presence of one parent and the absence of the other. There were opportunities for the mother in very short periods while the father was in another room but father agrees there was no real chance for the mother to inflict injury. The opportunities for the father were rather greater in that sometimes he took the crying baby downstairs for feeding or changing, away from the sleeping sibling. He was then downstairs, behind closed doors. The mother did hear crying but this was of course the very reason why father took the baby downstairs in the first place.

25. I have seen and heard the parents. The father was calm and measured. He lived up to his billing as the gentle giant. He was careful to praise the mother as very caring, considerate and patient. To me the mother appeared vulnerable. The frustration of her physical restriction must have been upon her, leading to a risk of a momentary loss of control. For the father the same frustration would be indirect. He bore a greater burden and had a great opportunity but he was for me, a stronger figure. The case law reminds me not to strain to make an identification when this is really not possible.
26. I conclude that it is impossible to determine which of the 2 parents is the more probable perpetrator. Their care was joint with very limited periods apart. It is probable that the non-perpetrator is well aware what the other has done but has allowed their loyalty to their partner to take priority over the protection of the children.
27. Family

I have seen and heard members of the mother's family. The aunt and uncle made short appearances. They are caring for the children. Their limited evidence was impressive. The grandparents had more to say and they have been very vocal in the past in support of the mother. At the hospital the grandparents took a challenging stance, denying the presence of injuries of which they knew little. These injuries are now proved and they are driven to accept that they are a cause for concern. More seriously, the grandmother attempted to mislead the court by seeking to conceal the turbulent and aggressive period in the mother's life. The records, and indeed the mother herself, spoke to the contrary. In a witness statement the grandmother said that she learned of the bed incident about a month before the injuries were found. This changed in the witness box to a shorter period compatible with the medical evidence and she said that T was about nine weeks old. She was silent about learning of any pulling on the child's leg. The grandfather's witness statement also referred to the incident without any reference to hearing of the pulling on the child's leg. In oral evidence he added hearing of the pulling on a limb which by then the mother had demonstrated in court. His statement did not indicate the date but in the witness box he was manifestly anxious to add the same 9 week age as the grandmother had added. In the witness box the grandfather was more laid-back than he had been earlier. However it was obvious that both grandparents were wrapped up in the issues of the case. They knew what was in evidence and were anxious to help their daughter. I regret to say that I was driven to the conclusion that in doing so they acted dishonestly, choosing to protect their vulnerable daughter rather than their grandchildren.

28. My findings have been distributed in advance in terms which will be recorded in today's order. They appear below.
Findings of the Court

1. In November 2014 T sustained the following injuries:-

i) 2 dark red/purple circular bruises on the lateral aspect of the right lower leg above the ankle (one 0.5cm x 1cm, the other 0.5cm x 0.5cm).

ii) 2 dark red/purple bruises on the posterior right shoulder, each measuring 0.5cm x 0.5cm.

iii) a deep purple bruise within the base of the right ear.

iv) a metaphyseal corner fracture of the distal right femur.

2. These injuries were inflicted injuries indicating frustration and rough handling in a difficult domestic setting.

3. They were inflicted by the mother or by the father or by both parents but it is not possible to determine which of the two is the more probable perpetrator.

3. The child was in the joint care of the parents. The non perpetrator knows what the perpetrator has done but by concealment has allowed their loyalty to their partner to take priority over the protection of the children.

RD 10/4/15