England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT LEYLAND

		Lancaster Gate Leyland Lancashire PR25 2EX
		6th July 2017

HHJ DUGGAN:

1. This is the final hearing of Local Authority care proceedings. The child with whom I am concerned is P who was born in the autumn of 2016. On 17 November 2016 her parents took her to Royal Lancaster Infirmary with a fractured arm. The parents are a Polish couple who lived and met in the UK, although they have separated since the incident with which I am concerned. At the time of the incident the maternal grandparents were visiting with their young son. In fact, the Local Authority's concern for his safety meant that he too was the subject of care proceedings. However, I determined that this court had no jurisdiction to deal with that child so he returned home to Poland with the grandparents. Those grandparents are intervenors within these proceedings. They are not represented although interpreters have assisted their participation in the hearing. I have made due allowance for the difficulties under which they have laboured.
2. The Local Authority have set out in the form of a schedule the allegations which they make. In essence they contend that the child sustained a spiral fracture to the arm which was inflicted by one of the four adults in the house. In addition to evidence concerning the injury, I have documentary evidence about the full social circumstances of this family including assessments of the parents and the grandparents as potential carers for the child. As it seemed likely that the outcome for the child would fall in line with the findings about the injury, it was accepted that I should prepare a judgment in relation to the injury based on the totality of the evidence and then return to consider care planning and the outcome of the case.
3. Yesterday I was able to intimate to the parties in short form the findings that I had made. That allowed the parties to give their attention to care planning. I know that those conclusions have reached an agreed outcome. I will turn to that question once I have delivered this judgment in relation to the injuries.
4. The Local Authority have assembled all the relevant material in a number of bundles. I have read the evidence in the case and my attention has been drawn to the relevant parts of the supporting material. I have heard oral evidence from the mother, from the grandmother and from the grandfather. The father of the child has been a party to the proceedings from the outset and he has legal representation. He was interviewed by the police and I have that interview at my disposal. He prepared a statement for the purpose of these proceedings which is also in my bundle. It is clear from that material that the father denied that he was responsible for this injury, although the statement was not very helpful and so a direction was made by the court that a supplementary statement be prepared. In fact that was never done because the father was afflicted by mental illness. He was arrested for offences of violence and it would seem that those offences occurred following the deterioration of his mental health. He was remanded in custody and in prison his presentation gave great cause for concern. A psychiatric assessment took place which describes a psychotic disorder and a gentleman who lacks the capacity to conduct this litigation. As a consequence the official solicitor has been appointed to represent his interests and it was clearly out of the question that he give evidence within these proceedings in his present state. Originally this hearing was listed to take place in May but in March it became clear that the father's mental health was going to present a problem so the case was adjourned in order to await the predicted improvement in his health. In fact a further assessment reveals that that improvement has not materialised. He still lacks capacity and there is an uncertain timescale for change.
5. In the meantime, the child has been in foster care since 18 November 2016. This is a Polish child in an English foster placement. The assessments concluded that the future of this child lies in Poland either with Mother, who proposes to return to Poland, or with the grandparents or a maternal aunt, all of whom reside in Poland. The decision as to which of these placements in Poland was appropriate for the child awaited determination of the issues as to the cause of the child's injury. In that context consideration turned to the possible transfer of this Polish case to the Polish courts but it was recognised that that would produce delay which would be very unattractive for this child. I was clear that it was not possible for the father to participate fully in the case at the present time but the parties produced a plan for the case to proceed if necessary without his active involvement. I concluded that it was clearly unfair if findings were to be made as to the father's responsibility for this injury without him having the proper opportunity to defend himself. Nevertheless, I accepted the invitation to hear the evidence and my task has been to determine whether the Local Authority have established that there is a real possibility that the mother or the maternal grandparents inflicted this injury.
6. The outcome of this determination was clearly going to assist in the early placement of the child in her long-term home and so I embarked upon that task. I acknowledge that this has been an unconventional course, a course in which the parties have agreed. It was essentially a case management decision guided by the overriding objective. It was clear to me that the child was being prejudiced by delay, there was no prospect of that delay otherwise coming to an early close and so I embarked upon this course. Throughout the hearing I have taken steps to ensure that the hearing has been a fair hearing, in particular fair to the absent Father. I have reflected that the only assistance I have from him is in the form of a poorly conducted early police interview and a weak initial witness statement. At the conclusion of the evidence I was able to intimate my decision in the following terms:-
7. The child has sustained a spiral fracture to the humerus. This was an inflicted injury which occurred on or shortly before 17 November 2016. It is not established that medical attention was unreasonably delayed. It is not possible to identify the person who inflicted the injury. There is a real possibility that the injury was inflicted by the mother. There is no real possibility that the injury was inflicted by the visiting maternal grandparents with whom the child can now be placed. My decision then contained a narrative explaining the position of the father.
8. My task now is to deliver a full judgment explaining how I have come to those conclusions. The law to be applied to a fact finding exercise of this nature is now very clear. The burden of proof is on the Local Authority and the family have no need to explain or to prove anything. The standard of proof is the balance of probabilities and any findings made by the court must be based on evidence not on suspicion or speculation. It is important for the court to consider all the evidence and to consider each piece of evidence in the context of all the rest of the evidence. This approach applies to the medical evidence as it applies to all the remaining evidence. Medical evidence must be considered in the context of all the other evidence including the wider social canvas. The Judge's role is to weigh the expert evidence against all the other evidence in the case and to reach the appropriate final conclusion. It is important to reflect that medical science is constantly developing so I have considered the possibility that the cause of this injury just cannot be known. I reject that proposition in this case which clearly is in the realms of mainstream medical science. It really is beyond doubt that a fracture of this nature requires the application of an excessive degree of physical force. The evidence of the parents and of other carers is of the utmost importance to this exercise and in the conduct of the case I have formed my own view as to their credibility and as to their reliability. It is a common experience that witnesses in this situation tell lies either to the investigators or to the court. I remind myself that there are many possible reasons for telling lies. Lies might arise from confusion; they might arise from shame. There are many possible reasons but the fact that a person lies about one matter does not necessarily mean that they lie about everything. It certainly does not mean that they are thereby proved to have inflicted injury to a child.
9. It is desirable if possible for the court to identify the person responsible for injuring the child on the balance of probabilities. However, the law recognises that sometimes this is impossible to achieve and the court is urged not to strain impossibly to achieve that goal. In that situation, which is the situation in which I have found myself, the court must ask of whom the Local Authority have proved that there is a real possibility that they have inflicted the injury.
10. I turn to the wider social canvas. The assessments of the mother are entirely positive. She has been the primary carer for this baby. The hospital commented how well presented the child was on arrival and the health visitor, who had dealings with the mother, was similarly impressed. During the conduct of the proceedings the mother has exercised contact and it is clear to everybody that there is a warm, positive relationship between Mother and baby. She comes from stable background without risk factors and the only issue is whether she has in fact injured this baby, which of course gives rise to concern as to the risk of repetition under stress. Stress there undoubtedly was on this Mother. This was a newly born baby. She was receiving no help from the father. Instead, there were financial and relationship problems. The mother of course had the welcome relief of support from the visiting grandparents but that produced overcrowding in the small family home and the mother had to take refuge in the sofa bed downstairs.
11. Turning to the father, he is, as I have indicated, now ill and this has prevented assessment. However, before the illness struck a picture emerged. It seems that he was disappointed with the birth of a female child and he quickly became disinterested in the child. His own statement agrees that he had no involvement in her care and he asserts that he lacked competence. He did not take up contact with the child. The mother says that any aggression he showed in their relationship was almost entirely of a verbal rather than a physical nature.
12. The grandparents, like the mother, are the subject of positive assessments. I have read reports from English and Polish social workers who agree that these are experienced stable parents. Again, in relation to the grandparents the only real issue arises if they were responsible for inflicting injury on the baby during their visit which of course would carry ramifications for the future.
13. I turn to the medical evidence. This is a case where the views of the treating doctors have been tested through the submission by the parties of written questions. It is clear that the child sustained a spiral fracture to her humerus. Extensive testing has revealed there to be no medical abnormality. An immobile baby like this cannot suffer an injury of this nature without the application of an abnormal, excessive, twisting force by another person. An injury of this kind would be painful at the point of injury and it therefore seems clear that the person responsible for inflicting the injury would know that the child was hurt. It follows that the cause of the injury cannot be an unwitnessed event. Turning to the position of others who may have been in the premises at the time of the injury although not in the child's presence, it is only possible that they would be aware that the child was in pain. The doctors reflect that a child of this age is expected to cry for many reasons and so someone who did not actually witness the infliction of injury may not have been aware of what had happened. Nevertheless, after the child had been injured if she was handled or moved it would be expected that she would display signs of pain and discomfort. This would be particularly the case if the handling or movement involved her injured arm. The medical opinion is that this injury was inflicted in the seven day period prior to 17 November 2016. In fact the health visitor saw the child to be fit and well on 9 November so it seems clear that the injury occurred after that date.
14. I have carefully considered the evidence available from the family. They describe no episode to explain this injury. I accept the medical evidence and I conclude that there must be a witnessed explanation for this injury. This is a type of injury which does not suggest accident but if there had been some kind of unforeseeable accident I am confident that I would be told of it. I infer that this injury was indeed an inflicted injury.
15. I turn to the identification of the person responsible. It seems to be agreed that bath time at about 8pm on 17 November 2016 was the trigger for the child being taken to hospital. It seems that the father was not convinced that there was anything wrong and he was not in those circumstances very keen to accompany the child with the mother to hospital. In the event he did accompany the mother and the grandparents remained at home in charge of their own young son. The mother and grandparents are clear that the arm was painful. They say it was first noticed earlier at about 5pm. At that time I am told by the mother that she was changing the baby and she discovered that touching her arm produced signs of sharp pain. It seems the grandparents were elsewhere when the changing took place but they were summoned and they were shown by the mother the symptoms of pain she describes. It seems that the child was settled down and went to sleep and remained calm until bath time when of course she came to be moved again and the suspicions about the child suffering pain were confirmed. At that point help was obtained through attendance at hospital.
16. I have been urged to address the possibility that there was delay in obtaining medical attention. If proved, this would constitute evidence of neglect of the child. It would constitute evidence of a guilty mind concealing the injury from scrutiny. The hospital record the examination of the child at 21.55. The times at home are inevitably less certain but the family talk about the bath episode at about 8pm. The mother and father did go to hospital and they did expose this injury to scrutiny. I accept the account of a child settling to sleep and I accept the reasonable human hope at that early stage that it would not be necessary for the child to go to hospital. The experience at bath time of course produced the recurrence of symptoms which, in turn, triggered on the part of this family the attendance at hospital of which we know.
17. I am not prepared to make adverse findings arising from that analysis; of course the reader of this judgment will understand that I have not been able to make a finding on the balance of probabilities as to the precise time in which the injury was inflicted. In that context, it follows that a finding of delay is difficult to make. Similarly, I have not derived assistance from the evidence that the father was apparently reluctant to accompany the child to hospital. There were grandparents present who were closely involved, there was never any suggestion that the mother would have to attend hospital on her own and I do not derive assistance from the impression that the father was reluctant to go.
18. The initial hospital records at G49 contain a clear entry that the mother said that she was first concerned about the child's arm on the morning of the presentation. Elsewhere in the record at G34 there is an entry which seems to be the original source of information from the mother and on that page it becomes clear that the first reference to the morning must in fact be a mistake. I remind myself that the mother's English is not perfect, some confusion of understanding might have intervened, but on any basis I am not persuaded that this entry on G49 assists me in my task.
19. The medical evidence establishes that there must have been a significant incident of force to cause this injury. The mother says that she first saw symptoms at about 5pm on 17 November but she describes no cause for the development of those symptoms. She gives an account of every day childcare activity symptom free up to that point. The reality is that the mother's account just cannot be right. The symptoms that she described seeing at 5pm must have been the symptoms of the fracture. The mother says that the child was handled throughout the earlier part of the day without manifesting these symptoms. She says that she was unaware of any incident to trigger the development of those symptoms. It is clear to me that the symptoms of pain must have been apparent when the child was handled and moved from the point at which the fracture was inflicted. It is equally clear that there must have been an event at that point of time to cause the fracture.
20. The relevant periods need analysis. At 5pm on 17 November, when the mother first describes the symptoms, she was changing the child. It seems that there had been a major bowel accident which made it necessary for the child to have a full change. It seems that the grandparents were absent although they returned to see the symptoms which the child was manifesting by the time of their return. There are factors suggestive that the injury was inflicted by the mother at the point of this change. It does seem to mark the onset of the symptoms. No doubt the mother was under significant stress. Her own early speculation was that the fracture might have occurred, albeit by accident, in the course of a changing process. Dealing with this unexpected need for a full change of clothing would increase the pressure on this mother. Against the possibility that injury was inflicted on this occasion by the mother, is the fact that she is an impressive carer with a close emotional bond with her baby. The father's account of what happened at this point in time is not available to us.
21. The second period that needs particular attention is at about 2pm on 17 November. I am told that the mother and grandmother were upstairs ironing. The child was downstairs with the father and the grandfather. The grandfather went out for a while. The evidence is that the child cried. The father was criticised for not summoning the mother to deal with the crying child which was apparently his approach to these things. The mother came downstairs, made that criticism and she tells me that the father was sitting in his chair at one side of the room ignoring the cry while the child was at the other side of the room apparently showing signs of upset.
22. There are problems with this episode. Nowhere does it appear in any of the original accounts given by the mother and her family. It begins to emerge in the subsequent statements prepared in March 2017. It is suggested that the late emergence of this account should indicate recent invention; of course recent invention would have two consequences. First, it would suggest that this episode never happened. Secondly, it would suggest that witnesses had made up this episode for their own purposes. In those circumstances, it was necessary for me to look closely at the explanation for the late emergence of this account.
23. I have to accept that the original police interviews were very superficial and limited the opportunity for those interviewed to give the fullest account. I also have to accept that the original statements in the case are of poor quality and do not reflect the attention to detail which a solicitor taking a statement would normally give. The mother's second statement contains a proper amount of detail but the preparation of that statement has clearly been intended to provide detail of the days running up to 17 November and no attempt is made to provide the desired additional detail of the events of 17 November itself. Only the mother's third statement descends into that detail and that is of course the subsequent statement of March 2017 under review.
24. On analysis it does seem that the mother does not really believe that the father injured the child at 2pm on 17 November. In evidence close attention was given to the nature of the upset manifested by the child, her demeanour, her position in relation to the position of the father, his demeanour and, importantly, the absence of symptoms of pain during manipulation in the immediate aftermath of this episode. I do not have the advantage of the father's account of this period. However, since it is clear to me that the mother is not seeking to overplay the role of this episode my conclusion, coupled with my knowledge of the circumstances in which statements came to be made, is that I should not reject the maternal family's account of this episode. It follows that I am not persuaded that they have invented an episode for their own purposes. The final word so far as this episode at 2pm on 17 November is concerned is that the evidence does not deflect me from the conclusion that there is a real possibility that the injury to the child was inflicted by the mother at another time.
25. Thirdly, I reflect that within this household childcare can be traced back from the afternoon of 17 November through the morning into the overnight period and through into the previous day. In evidence there has been an attempt to follow the comings and goings of everyday life over that period but inevitably the evidence is rather vague. It is clear that the mother was the primary carer but she was not a constant presence with the child and she certainly was not always accompanied when the child was in her care.
26. Turning to the father, he may have been in and out of the home during this period, his night time activities are particularly unclear. The grandparents were certainly around but they were not a constant presence with their grandchild. Most of their time seems to have been spent with the mother and the child who of course they were visiting and most of that time they seemed to have been at the mother's side.
27. Based on that analysis of the medical evidence, the carers accounts and life in the household, I turn to my task which is to identify of whom the Local Authority have established there is a real possibility that they have inflicted the injury. I set aside the father; the whole approach within this hearing has been predicated on the basis that it would be unfair to reach conclusions as to his role during his present incapacity. The mother has a clear emotional bond with the child. She proved herself to be a skilled and committed carer. However, she had the greatest opportunity to inflict injury on the child and she was under the greatest stress. She was responsible alone for this newborn baby. The father who might have been expected to share that burden provided no support and in fact represented an additional burden on the mother's shoulders.
28. The grandparents are experienced, stable carers. They were visitors; they came to spend time with their newly born granddaughter. In those circumstances, they would be subject to pleasure rather than subject to stress. They had but a limited opportunity in which to inflict injury and it was rare for them to have the child in their care unobserved by the mother. I have of course had the advantage of seeing and hearing the mother and the grandparents but not the advantage of seeing and hearing the father. My clear conclusion is that there is no real possibility that the grandparents are responsible for inflicting this injury. However, my conclusion is that there is a real possibility that the injury was inflicted by the mother.
29. To make an identification on the balance of probabilities is not possible on the available evidence and, in accordance with authority, I avoid the temptation to strain to make that positive identification. Nevertheless, in English law my finding that there is a real possibility that the mother is responsible for inflicting these injuries opens the door for consideration to be given to the compulsory orders to protect the child from future harm at her hands. I know that the Local Authority propose that the child be placed with the grandparents now that it is established that there is no real possibility that the grandparents were responsible for inflicting the injuries.
30. I conclude the judgment and turn to the Local Authority for details as to their plan for the placement of the child with the grandparents and in order to clarify whether there is any dispute which requires my determination.
End of Judgment

Approved 27.3.18

RD