England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT LANCASTER

		George Street Lancaster
		7th July 2016

JUDGMENT
1. HIS HONOUR JUDGE BOOTH: This case concerns a boy, G, born on 14^th October 2015. In the early minutes of 22^nd November 2015, G sustained injuries to his head of the most severe nature, resulting in him sustaining life-threatening injuries and permanent brain damage. He will never be the boy or the man that he might otherwise have been. He sustained those injuries whilst in the care of his parents at his home. He was five weeks old, helpless, defenceless and utterly dependent on his parents to look after him and keep him safe. Whatever more detailed findings I make, there can be no argument but that in those basic obligations to their son, his parents failed him totally.
2. The hearing I have been conducting is a fact-finding hearing. I have heard evidence over six days, submissions and judgment taking up a seventh day. The proceedings have lasted longer than they otherwise might as both G's parents are Polish Nationals, as is G. Both his parents and his maternal uncle, from whom I have heard evidence, have required the translation of everything that has gone on in court, as well as their own evidence. The Polish authorities are aware of this case but have decided to take no part and have not attended.
3. In these proceedings the Local Authority have been represented by Miss Hobson, the mother by Miss Woodward, the father by Mrs Tankel and G by Miss Bland. I am grateful to all of them for their industry, for the comprehensive way in which they have tackled the evidence in this case and for the sensitive and compassionate way in which they have conducted their questioning.
4. I have heard live evidence from a paramedic who was the first responder on the scene following a call made to the ambulance service by G's uncle. Also from Dr Stivaros, who was the expert Paediatric Neuroradiologist and who gave evidence about the injuries sustained by G and was able to comment on their potential causation and was able to analyse the explanations given by those who were present at the scene.
5. I heard evidence from the mother, spread over three days, from father and from the maternal uncle. For reasons that I will explain in due course, the evidence that I heard from G's mother, his father and his uncle was unreliable, deficient and untruthful.
6. Before I set out the factual background, let me deal with the law that I must apply. These are care proceedings issued by the Local Authority on 15^th January 2016. The Local Authority assert that such are the facts in this case that the threshold for the making of public law orders is crossed. It is accepted by all parties that that threshold is crossed. What falls for me to determine is on what factual basis. I adopt the law as expounded by Sir James Munby, President of the Family Division in a series of cases including Re A (Application for Care & Placement Orders [2016] 1 FLR 1, together with other authorities that I will cite below.
7. The following points are of particular relevance to this case:

(1) The burden of proof lies at all times with the Local Authority.

(2) The standard of proof is the balance of probabilities.

(3) A finding of fact must be based on evidence, including inferences that can be properly drawn from the evidence, but not on suspicion or speculation.

(4) When considering cases of suspected child abuse, the court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. A court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence, to the other evidence and to exercise an overview of a totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.

(5) The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.

(6) It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress and maybe out of fear that the truth will not speak loud enough. The fact that a witness has lied about some matters does not mean that he or she has lied about everything.

(7) The legal concept proved from a balance of probabilities must be applied with common sense.

(8) The court should have regard to the inherent probabilities, but this does not affect the legal standard of proof. That proposition was enunciated by Lord Hoffmann in Re B (Children) (FC) [2008] UKHL 35 where, at paragraph 15, he said this:

"There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely."

(9) The fact that the parents failed to prove, on a balance of probabilities, an affirmative case that they have chosen to set up by way of defence does not of itself establish the Local Authority's case.

(10) Parents may, in some respects, be good parents. That does not necessarily mean that they are willing and able to protect their children in the way that might otherwise be expected.

(11) Where repeated accounts are given of events, the court must think carefully about the significance or otherwise of reported discrepancies. They may arise for many different reasons such as lies, faulty recollection or contamination from other sources. It may simply be the effect of the human reaction of unconsciously filling in the gaps.

(12) I remind myself that the case against each of the adults against whom the Local Authority seek findings has to be considered separately, albeit in the light of all the evidence.

(13) Expert evidence has to be viewed against the broad canvas of all the relevant information before the court.

"The expert evidence has to be carefully analysed, fitted in to factual matrix and measured against assessments of witness credibility." ( per Lord Justice Wall in Webster v Norfolk County Council [2009] EWCA Civ 59)

"It is open to the court on the basis of the totality of the evidence to reach a conclusion which does not accord with the conclusions reached by the medical experts." ( A County Council v K, D and L [2005] EWHC 144 (Fam)).

"The court's function is to make the findings of fact that it is able on the evidence, then analyse those findings against the statutory formulation. The gloss imported by the use of legal, clinical or colloquial terms is not helpful to that exercise. 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." (Lord Justice Ryder in Re S (A Child) [2014] EWCA Civ 25)

8. Let me set out a little background to G's parents and his uncle. G's mother moved from Poland to this country in 2004. She has worked for many years. Her brother (G's uncle) moved to live with her in 2011 after their mother died. Following their mother's death, he had been being looked after by his alcoholic father. He moved to this country as a young teenager, having visited his sister on two occasions after she had moved here.
9. G's father has lived in this country for some years. He has a criminal record from his time in Poland and served a prison sentence for robbery. At the time of his move to this country, he was wanted for questioning by the Polish Authorities for an offence related to the circumstances of the death of a teenager. He was and remains the subject of a European arrest warrant. He told me that he had worked in this country, although his circumstances were such that he was without a National Insurance number, was not entitled to benefits and, it is plain, took considerable efforts to remain off the radar of the authorities to avoid the risk of execution of the arrest warrant. G's parents met in a nightclub in October 2013. Mother quickly became aware of father's criminal background and the fact that he was required for questioning by the Polish police.
10. In the lead up to G's birth all was well. G was born by emergency caesarean section, but was delivered in good condition and did not require any special care. Apart from the fact that mother lied about her domestic circumstances, refusing to disclose the identity of G's father and saying that he was off the scene when, in reality, they were living together, the first few weeks of G's life were uneventful. Living at their home, together with his father and mother, was G's maternal uncle. He was at school and had a part time job working on a farm.
11. On 21^st November 2015, G was at home with his parents. In the afternoon and evening, his uncle was working on the farm. His parents tell me – and the police investigation would appear to bear this out – they began drinking vodka at some time in the afternoon and continued through the evening. They both tell me that they were arguing.
12. At around 10 to 10.30 in the evening, G's uncle returned home. He was upset to find that his sister had been drinking, and he was immediately conscious of the atmosphere in the house. He told me that he had a feeling that something bad might happen.
13. I have been given a description of G being upstairs, being fed, there being discussion between his mother and his uncle as to who would finish the feed, about a search for a dummy to help settle him and of him being carried up and down the stairs and in and out of the kitchen by his mother.
14. The police investigation has produced photographs of the home occupied by this family, which show a relatively small space. The events with which I am most immediately concerned are alleged to have occurred in the kitchen diner.
15. As midnight approached, it would appear that things had escalated. I get that evidence from the neighbours. The home occupied by G's family is effectively a terraced house. The neighbours on either side immediately, and one further on, all record noise, both of raised voices arguing and of the sound of what they thought to be furniture being moved.
16. After midnight, the escalation appears to have continued. One of the neighbours was so concerned as to what she was hearing that she sent a text message to her partner at 16 minutes past midnight saying this:

"Sounds like the guy next door is beating the woman. Her child is screaming. Should I call the police?"

A minute later she texted: "There is shouting and banging." A minute later still she texted: "I can't understand a word, but it is really loud and the child is screaming."

17. By 18 minutes past midnight on 22^nd November 2015 G had sustained his head injuries. At 18 minutes past midnight, his uncle made a call for the emergency services, calling for an ambulance. Whilst he was doing that, he was standing outside the house. He was heard and seen by the neighbours. He was still on the telephone when the ambulance arrived at 26 minutes past the hour.
18. What I have to determine is what happened immediately before 16 minutes past midnight, because it is clear to me that when he sustained his head injuries, G would have screamed, and that is what is recorded by the next door neighbour.
19. Let me set out the injuries that G sustained. I have, in the papers before me, what are inevitably extensive medical records for G following his emergency admission to hospital. All of that material was analysed by Dr Stivaros. His evidence was both straightforward, simple and readily understandable. There were two separate skull fractures. The first was a right sided skull fracture extended upwards to the top of the head and over the sagittal suture. A fragment of bone from that fracture site was lodged within G's brain, two centimetres from the surface into the brain. On the left side of G's skull is what was described as a 'ping pong fracture'. This is a depression of the bone, similar to that created in a ping pong ball when it is depressed by a thumb.
20. There were three areas of bleeding in the brain. Firstly, a subarachnoid haemorrhage on the right side, secondly, a subarachnoid haemorrhage in the ventricles of the brain and, thirdly, bleeding on the brain surface on the left temple, this being a "contrecoup" injury - an injury caused to the surface of the brain when the brain is propelled from one side of the skull to the other and suffers injury as it strikes the skull. That injury was a direct consequence of the forces applied to his skull to generate the right sided fracture. In consequence of all of this damage, G had extensive hypoxic brain injury (that is a significant part of his brain has died). In addition to those injuries identified by Dr Stivaros there was also bruising to the right side of G' cheek and some bruising in the vicinity of his ear.
21. G's parents and his uncle have, during the course of the investigations, by the medical practitioners treating G, by the police in their investigation, by social workers investigating G's circumstances and in documents filed with this court, set out a whole variety of explanations as to what happened in G's home. I am not going to recite all of those explanations. By the time of this hearing, albeit only after mother had given her evidence, the evidence of the three witnesses had coalesced into a single version of events and it was this: that whilst was being cradled by his mother in her left arm so that this head was in the crook of her elbow, she was pushed from behind by G's father against the door from the kitchen leading to the hallway and, having banged against the door, she fell to the floor. Throughout that process, G remained in her arms.
22. Dr Stivaros was asked whether that explanation, or indeed any of the other explanations given by the adults, might explain G's injuries. He was crystal clear that neither that explanation, nor any of the others, could account for the damage he saw to Gs' head. Indeed, on the account that was given to me, it was difficult to see how G's head came into contact with anything hard at all. If the left side of his head had hit the door or the floor, that would not have explained the ping pong fracture, and there was no explanation at all as to how the right side of his head might have come into contact with anything at all.
23. Dr Stivaros' explanation for the right sided injury is of particular significance. In order for a fragment of bone to have been driven into G's brain as far as two centimetres in, there would have to be a mechanism to drive it in. In his view, the most likely explanation was that G's skull came into contact with a hard-edged surface. That might have been, for example, a right-angled edge to a worktop surface, a right-angled edge to a door or something similar. Nevertheless, in order to create a fracture of the size that he saw, extending as it did over the sagittal suture, means that that would also have required very considerable force. The literature on head injuries is extensive. A large number of children are presented at hospital with head injuries. Rarely are children presented alive with the injuries of the type sustained by G. It was Dr Stivaros' view that the right sided injury sustained by G was consistent, not with a domestic fall, but with the forces generated in a road traffic accident or some other serious collision. He was able to provide one other example of a young child sustaining a similar type of injury who had been hit by an old-style cathode ray television dropped down the stairs accidentally but colliding with the head of a child at the bottom of the stairs.
24. I have considered very carefully the weight I should give to Dr Stivaros' evidence. I am acutely aware that current medical certainties can sometimes become tomorrow's controversy, but it strikes me that there was nothing controversial about what Dr Stivaros was explaining to me. The rarity with which children are admitted with injuries of the nature sustained by G tells its own story. These are not the injuries commonly found in children who fall over, or fall over when held by their parents and bang their head. These are not the sort of injuries sustained by children who roll off the bed when being changed, or are accidentally dropped. What happened to G requires a very different sort of explanation.
25. Dr Stivaros was asked about whether these injuries were consistent with one incident or more than one incident. He conceded that it is feasible that the two skull fractures could have been caused at or about the same time but it was difficult to imagine circumstances in which that might be and no plausible suggestion was put to him which might lead to that eventuality.
26. Complicating the picture here is the bruising to G's face that is suggestive of some sort of blow to the front of his face. That inevitably leads me to the conclusion that there is a real possibility that there were a series of injuries sustained by this little boy and that it is unlikely that this all happened in one single incident. I am satisfied I can rely entirely on the evidence of Dr Stivaros, and I do so.
27. Central to my assessment in this case as I weigh up all the evidence is my assessment of G' parents and his uncle and as I compare different pieces of evidence, one with another and try to survey the whole picture and take a realistic overview.
28. G's mother has accepted that she had lied to authorities before G was born about the circumstances in which he was conceived and the circumstances in which she was living whilst pregnant, that she failed to disclose the identity of the father on his birth certificate, that she lied to the health visitor and the midwife who visited her following G's birth and she accepts that she has told lies to those treating G following his injuries and to the police in their investigations, but she wishes me to believe that when she gave her evidence before this court, she was telling the truth. There is no doubt that she loves G. There has been no doubt about her devotion to him since these catastrophic events. She is plainly racked with guilt. Her dearest wish is to turn back the clock and undo what happened to her baby. Sadly, that cannot happen.
29. She has had an ambivalent relationship with alcohol. She has had the experience of being brought up by an alcoholic father. There have plainly been times when she has refrained from drinking, but the impression I have been left with, from her evidence and that of her brother, is that when she drinks she becomes voluble and belligerent. It is clear from the observations of the doctors at the hospital that on the night that G sustained his injuries, she was drunk. I am prepared to give her the benefit of the doubt that she may not have a full and clear recollection of everything that happened that night. It may well be that the sight of her son, with his head rapidly swelling moments after he was injured, had an effect of sobering her up to the extent that it made her concentrate. She accepts that she was arguing with G's father. She accepts that she took the argument to him. She accepts that she was abusive to him in the language that she used. She does not accept that she did anything or was responsible for anything that led to G sustaining his injuries.
30. It is clear to me that in the period immediately following G's injuries, high on her list of priorities was enabling Gs' father to remain anonymous and to effect an escape from the scene to avoid him being apprehended. I struggle to understand why that should feature in her thinking at all at that traumatic time. It is clear that she and her brother have given me evidence about which they are agreed. It is clear that they have both altered their evidence to meet what they understood to be the evidence of the other.
31. I am invited by Miss Woodward to conclude that this mother would be quite incapable of injuring her son. The difficulty I have with that proposition is not knowing just what state she was in from the effects of alcohol and the effects of her belligerent argument with father, and how all that was playing out at a time when she had G in her care.
32. What do I make of G's father? It would be very easy to draw stereotypical conclusions. He is a man who appears to have, at least in the past, gloried in his criminal activities. He has tattoos to reflect the fact that he was a prisoner who served more than three years in prison. He has a tattoo that reflects his status as a high profile prisoner. He was living a lie in this country, hiding from the authorities. He was plainly a man prepared to flout the laws of this country, consuming cannabis and, from time to time, amphetamine. That does not necessarily lead me to the conclusion that he would inflict an injury to his own child.
33. The evidence of the paramedic on the scene within minutes of G's injury was, in my judgment, telling. He was greeted outside by G's uncle. He was shown in to the house where G was with his mother in the living room. He describes a man who he assumed from the circumstances was G's father (and he was correct in that assumption), and he describes that man coming from the kitchen area into the living room, not to enquire about his son and what was going to happen, what the plan was, what the paramedic was proposing to do, but simply to protest his innocence. Mother left with G in the ambulance; father did not. Can that be explained away by his reluctance to show his face in circumstances where he would have been identified? If that is the reason why he failed to go with his son to hospital, or indeed to follow later, those are hardly the actions of a concerned parent putting the welfare of his child as his utmost concern. What he did was leave the scene. It was only as a result of the police interrogating mother's telephone that he was identified and arrested.
34. Throughout these proceedings, up to and including when mother gave her evidence, he had maintained a story that mother had fallen with G when they had accidentally bumped into one another in the kitchen. During the course of the hearing he produced a statement said to have been prompted by recognition arising in him having heard mother's evidence of what had really happened, namely that which mother had described. On the night of the incident, he had undoubtedly been drinking. It was his evidence that he and mother had been drinking and that he had drunk more than she had. He too will have undoubtedly have been drunk. Mrs Tankel, on his behalf, told me in her closing submissions that he wished to accept responsibility for what happened to his son. He faces a criminal trial. He has been charged under section 18 of the Offences Against The Person Act 1861. So far, his plea remains that of not guilty. There was nothing in his evidence that persuaded me that he accepts any responsibility for what has happened to his son. His demeanour throughout the trial was of someone largely disinterested. He was a most unimpressive witness.
35. G's uncle is in the unique position of having witnessed what happened to his nephew. I had hoped that when he gave his evidence, he would, at last, feel able to tell me the truth of what happened to G. He is 18 years of age. He plainly has loyalties to his elder sister, who has acted as a mother to him since he came to this country. He told me that he was not frightened of G's father, as I suspect might well be the case. He told me he hated G's father for what he had done in pushing his sister so that she fell into the door with G.
36. I had the benefit of him giving evidence no more than two metres away from me. His hands trembled throughout the time he gave his evidence. I got the impression that he felt he was between a rock and a hard place. That may well be, but that is no excuse for not telling me the truth.
37. I am satisfied that the accounts I have been given by those who were there when G sustained his injuries are untruthful, are deliberately untruthful and are designed to mislead. I have no doubt that G's uncle loves G and cares for him. I have no doubt that he desperately wishes to see G restored to the care of his sister. He has not helped his sister's cause.
38. What did happen to G? I have no direct evidence, and it is difficult for me to draw reliable inferences from the evidence that I have. What I can say, based on the medical evidence, is that G, in all probabilities, sustained three blows to his head. Either his head was brought into contact with an edged object, or an edged object was brought into contact with his head on the right hand side, with significant force sufficient to drive a piece of bone two centimetres into his brain. He suffered a second blow to the left side of his head, which caused an indentation in his skull. The effect of those two blows to his head was to cause the bleeding in his brain that I have previously described and has led to the death of a significant part of his brain. In addition, he sustained, in all probability, a blow to his face. Given the three different sites of injury, I find it unlikely that that occurred in one single instance.
39. One matter I have not yet mentioned is that mother, sometime on the 21^st or 22^nd November 2015, sustained an injury to the inner aspect of her left upper arm, as displayed in the photographs that were taken of it on 23^rd November. That is a very large bruise on an area of her arm that would ordinarily be protected. Her explanation of a fall against the door does not begin to explain that injury. The mechanics of injury to her arm would have had to be very different. She claims to have no recollection of sustaining any injury herself. That would only be compatible with her being so drunk as to be incapable of recognising that she had been hurt. I think that unlikely. More likely is that she sustained that injury at or about the same time that G sustained one of his injuries. The mechanics of how that occurred, I cannot say.
40. I am left in the position that as between his parents I cannot say which of them caused which of the injuries that G sustained. Both are responsible for all his injuries. The Local Authority does not seek a finding against G's uncle. Indeed, the evidence would make it difficult for me to reach such a conclusion in any event. Sadly, whatever happened, G's uncle was unable to intervene to prevent it happening.
41. On that basis, I am satisfied that the threshold document, in its amended form provided to me by Miss Hobson, is made out in its entirety.
(End of judgment)