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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B (Care Proceedings : Finding of Fact Hearing : Skull Fractures) [2017] EWFC B30 (5 June 2017)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B30.html
Cite as: [2017] EWFC B30
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IN THE FAMILY COURT
Before His Honour Judge Clifford Bellamy
Re B (Care Proceedings: Finding of Fact Hearing: Skull Fractures)
(judgment handed down on 5 June 2017)
Nicholas Brown – counsel for the local authority
Natalie Cross – counsel for the mother
Stephen Mannering – counsel for the father
Tessa Dunleavy – solicitor for the children
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name and that in particular the anonymity of the children, the adult members of their family and their location must be strictly preserved.
Judge Bellamy:
1. A local authority applies to the court for care orders in respect of two children, W aged 2 and B aged 8 months. The case comes before me for a finding of fact hearing.
The issues
2. On 3rd December 2016 B was taken to the X Hospital. CT head scans disclosed that he had sustained bilateral parietal skull fractures with overlying soft tissue swelling. Initially the local authority sought a finding that the injuries were non-accidental injuries caused by one or other of the parents. On the morning of the first day of this hearing, having reviewed the evidence, the local authority served a re-amended schedule of findings sought. The local authority now seeks a finding that the injuries were inflicted by the father.
3. The father accepts that the injuries were sustained at a time when the children were in his sole care. He accepts that the mother bears no responsibility. Neither parent asserts that B is suffering from a relevant underlying medical condition. The sole issue for determination is whether the skull fractures are non-accidental injuries (the local authority’s case) or the result of the father accidentally dropping B onto the floor (the father’s case).
Background
4. At the time when B sustained his injuries the parents had been living together for around five years. Until a few months before the index incident their relationship appears to have been stable. Children’s Social Care had not been involved in the life of the family.
5. The father, a university graduate, has secure employment working for an engineering and manufacturing company as a technical engineer. He was promoted to that position in January 2017. His previous role was as a quality assurance engineer. He had not been happy in that role. He accepts that he would come home from work quite frustrated. His frustration was eased by caring for and playing with the children.
6. Though not well off the parents were able to manage financially. However, latterly the father developed a gambling habit. He was secretive about the family finances causing the mother to become increasingly concerned. On the day on which B sustained his injuries the mother had challenged the father with her concerns about the family finances. The father confessed his gambling habit. There was a significant argument. The mother was angry that the father had been lying to her. She threatened separation. The father accepts that he needs professional help and says he has taken appropriate steps to obtain it.
7. The father has an older daughter from a previous relationship. She is now aged 10. The father has not had contact with her for some years. The history of his relationship with her mother and of the breakdown in his relationship with his daughter are of no relevance to the issues with which I am concerned. What is of some relevance is that in or around December 2016 the father was made aware that her mother’s partner had applied to the court for an adoption order. The court had appointed a Reporting Officer. The Reporting Officer was in contact with the father to consider with him whether he would be willing to give his consent to the proposed adoption. It is clear that the father found that an anxious decision.
8. The father has suffered from Type 1 diabetes since he was a child. In the latter part of 2016 he was experiencing hypoglycaemic episodes around four times a week. The mother confirms that the father suffered from diabetes throughout their relationship. It was part of their life. She confirms his account of experiencing hypoglycaemic episodes. When he experiences an episode he needs an urgent intake of sugar. He recovers quickly if he is able to have a sugary drink.
9. There is no significant disagreement between the parents as to the events of 3rd December. The mother’s account is concise and is not challenged. That morning they went to her brother’s house to have a look at a sofa he had offered them. They were away from home for around an hour and a half.
10. They decided to throw out their old sofa bed. The father dismantled it and chopped it into small pieces that would fit in their car. They agreed that the mother would take the remains of the sofa bed to the refuse tip. The father stayed at home to look after the children. This was the first time he had cared for the children when both of them were awake. The mother had no concerns about leaving them in his care. Although the father was in full-time work, when not at work he was a hands-on father. He would change nappies, dress the children, feed them, bath them and play with them. He doted on them. The mother said that the father ‘is a good Dad’ and that ‘the children love him’.
11. The mother left home sometime between 2.00pm and 2.30pm. At 3.23pm she rang the father to say she was on the way home. She had not called him to see how he was coping or out of concern that he might not be coping. The father told her that he had been about to call her because he was worried about B. He had been in the kitchen when he heard a thud and a scream. She says, ‘We speculated that he may have fallen on the floor’. The mother asked him whether he thought he should call an ambulance. He said he didn’t know.
12. When she got home the mother noticed that B looked pale. When she tried to wake him he screamed. She noticed a lump on the right side of his head. She called for an ambulance. The ambulance arrived promptly. They were advised that B needed to be taken to hospital.
13. B was admitted to hospital. He was discharged into the care of his mother on 6th December, a condition being latterly imposed on 9th December, in light of further medical opinion, that her care of B be supervised by family members. The father moved out of the family home. The parents have not lived together since then. The father’s contact with the children has been supervised by family members. The contact has been of good quality and has not given rise to any concerns.
Medical evidence
14. Following his arrival at the hospital, B was examined by a consultant paediatrician, Dr A. In his report, after describing the history given by the mother and the results of his examination, Dr A expressed the following conclusions and opinion:
‘No explanation or story of any trauma had been provided. The likely cause of these lesions was non-accidental in nature. On the 5th December 2016 B had further investigations which including (sic) a skeletal survey and ophthalmological assessment. He had also had a full blood count and a clotting screen all of these investigations were normal. In other words, no other injuries on the body were identified.
A second opinion on the radiological findings has subsequently been sought and it is in agreement that the two separate skull fractures suggest two separate impacts. This again indicates two separate blows of blunt trauma and in the absence of any plausible explanation this injury is non-accidental in nature.’
15. The court granted permission for the joint instruction of two medical expert witnesses, Dr Andrew Watt and Dr Kate Ward. Dr Watt is a consultant paediatric radiologist at the Royal Hospital for Children, Glasgow. Dr Ward is a consultant paediatrician at Airedale General Hospital. Both experts have prepared one written report. They have attended an experts’ meeting chaired by the Children’s Guardian. A transcript of that meeting has been produced. Both have given oral evidence.
Dr Watt
16. Dr Watt has reviewed the CT scans. He confirms that these disclose bilateral parietal skull fractures. He describes the fractures as being,
‘linear in configuration arising from the junction of the squamosal and coronal sutures extending superiorly and posteriorly towards the sagittal suture but do not meet or reach the midline.’
17. It is not possible to date skull fractures with any degree of precision. On the basis of the imaging the best that can be said is the fractures are recent, probably occurring within the 10 days prior to presentation. The clinical findings of when B was last seen to be ‘normal’ are a better guide to when the fractures are likely to have occurred. There is nothing to suggest that the fractures occurred at different times. Indeed, in the absence of information suggesting otherwise Dr Watt would assume that the fractures were caused ‘at about the same time’.
18. Dr Watt gives an opinion on the likely mechanism for B’s injuries:
‘The mechanism of injury of this injury is most probably a direct blow/blows or impact(s) by or onto a blunt object. This could be by the child’s head hitting a hard surface, or by a blow with a blunt object. It is also possible that the fractures have been caused by a crush injury.
The possible mechanisms for these fractures are:
1. A single episode of trauma from a blow or impact in the midline arising in the vertex or occiput resulting in bilateral fractures. This type of injury where it causes bilateral fractures is usually a high energy or velocity injury and other radiographic features are usually present such as significant depression or comminution of the fractures and significant intracranial abnormality, neither of which are evident in this case…This mechanism is therefore possible but unlikely.
2. Separate right and left sided episodes of trauma resulting in 2 fractures and separate focal areas of scalp swelling. The 2 episodes of trauma could be contemporaneous i.e. a fall with a double impact (furniture then floor for example) or be the result of 2 separate episodes of trauma. This would account for the radiographic findings and is a possible explanation.
3. A single crush injury to the side of the head onto a hard surface resulting in bilateral fractures (i.e. the head is trapped between 2 hard surfaces)…This mechanism could be by a fall onto a hard surface with a heavy load landing onto the head, or without a fall with compressive force being applied to the skull whilst the head is lying on a hard surface such as the floor.’
19. Dr Watt goes on to deal with the force required to cause such fractures. He says that the radiographic features are of a more complicated injury than a simple linear parietal fracture ‘which is the commonest accidental type of skull fracture seen in young children’. These radiographic features suggest a more forcible injury than that equivalent to a simple fall, but I am unable to quantify how much more force’. He goes on to make the point that,
‘observational studies have indicated that skull fractures do occur in children with falls from a height of 1 metre or more, but are infrequent. Fractures as a result of falls of less than this height are very rare but can occur if the head hits a hard or angulated surface with a reduced surface area of impact.’
20. Dr Watt says that a significant traumatic event should have been memorable to any carer present at the time. One would therefore have expected a carer present at the time to have realised that a significant injury had taken place.
21. The father’s evidence is that he was holding B in the crook of his left arm whilst chasing W and that he accidentally dropped him. The father told the police that he is 5 feet 10 inches tall. That implies that B fell from a height of around 4˝ to 5 feet. In Dr Watt’s opinion, if that account is true then it is possible that B ‘bounced’ when hitting the floor sustaining a double impact. He did not regard that as being very likely but he accepted that it is possible. Dr Watt said that in a child of this age he is not able to say for sure that these two fractures were not caused by a single impact.
22. In his written report, Dr Watt concludes that ‘Undisclosed inflicted injuries, either intentional or unintentional, could account for all the fractures identified radiologically.’ At first blush, the use of the words ‘inflicted’ and ‘unintentional’ appear to be contradictory. Dr Watt said that he had not intended the use of the word ‘inflicted’ to mean ‘deliberate’. Dr Watt agreed that an ‘unintentional’ ‘inflicted’ injury could be an accident.
Dr Ward
23. Dr Ward provides a paediatric overview based on a detailed and thorough review of all of the available evidence. She has also surveyed the relevant research literature.
24. Dr Ward agrees with Dr Watt that the dating of skull fractures is very imprecise. If the court accepts that B was completely well before his mother left the home at around 2.30pm on 3rd December and that there was no swelling at this time then it is likely that the fractures occurred after that time ‘although one cannot be more specific in terms of time’. I accept that the injuries were sustained after the mother left the house. No one challenges that proposition.
25. Could these injuries have been caused as a result of B being dropped? In addressing that question Dr Ward refers to the relevant research literature. On the basis of that literature she describes B’s injuries as falling into the ‘minor head injury’ category which is defined as,
‘a history of typical signs of blunt trauma to the scalp, skull or brain in an infant who is alert or awake and responsive to voice or light touch. B’s presentation was consistent with this definition…Difficulty remains in sorting out accidental from abusive injury when head injuries are less severe, as in this case.’
26. Dr Ward refers to research carried out in 1977 which studied the injuries of 264 children younger than six years who had fallen from their beds or sofas. Two of the children sustained linear skull fractures. Dr Ward records that drawing on these findings the research team
‘asserted that serious injuries attributed to an accidental fall from a bed or low height should be considered unlikely and, in most incidences, are due to child abuse.’ (emphasis supplied).
She goes on to refer to the publication of more recent research which had replicated the findings of the 1977 research,
‘describing 76 children who were injured as a result of a fall whilst in hospital. These children experienced minor injuries and only one patient had a skull fracture…The authors hypothesised that a carpeted floor or thick rug could cushion falls from high places sufficiently that injury was unlikely but that a child falling onto a tiled or concrete surface would be more likely to sustain injury.’ (emphasis supplied)
27. Dr Ward then goes on to say that,
‘It was suggested in this case that B had fallen from his father’s arms whilst moving from one room to another. Apparently, the floor in the living room was carpeted and the floor in the kitchen was ‘hard’. He did not specifically state whether B fell onto carpet or a hard floor. However, while these studies indicate that single skull fractures may occur as a result of a short fall, skull fractures occur in only 1-2% of such injuries and the likelihood of injury partly depends upon the nature of the surface onto which the child falls.’
28. Later in her report, Dr Ward goes on to say that,
‘Bilateral skull fractures are associated with an increased suspicion of non accidental injury unless there is a clear and memorable account of injury…It is possible that a single linear fracture could have resulted from such a fall although it is less likely that bilateral parietal fractures would occur as a result of an accidental mechanism, the nature of which is yet to be disclosed…Bilateral skull fractures either require unusual mechanisms or high velocity/compressive forces…The preponderance of the literature on childhood falls indicates that short falls rarely result in serious or life threatening head injuries despite their frequency…’
29. Dr Ward goes on to consider B’s likely pain response. She says that,
‘There is a spectrum of behaviour associated with head injury and skull fracture. As a pre-mobile young infant of nine weeks, it is likely that B will have responded by screaming/crying for at least a period of minutes; possibly up to thirty minutes after injury. It is possible that a significant injury may be associated with a temporary loss or altered consciousness. After the event, there may be no change in behaviour although vomiting, reduced feeding, sleepiness or irritability may occur in some infants.’
30. Dr Ward concludes her report by saying that:
‘The presence of bilateral skull fractures increase the likelihood of non accidental injury although I cannot exclude the possibility of an accidental mechanism which has yet to be disclosed.’
31. Dr Ward has seen in other children what she described as ‘Alice band’ fractures, bilateral parietal skull fractures which meet at and in effect cross over the sagittal suture. Alice band fractures can be caused by a single impact, for example an infant falling and landing on the crown (vertex) of her head. However, if the point of impact were with part of the skull other than the vertex then she considers it ‘very unlikely’ that that would cause bilateral parietal fractures. In her opinion it is possible that one of the fractures sustained by B could have been caused by the incident described by the father but not both fractures.
The father’s explanation
32. Both children were left in the father’s sole care for around an hour during the early afternoon of 3rd December. The father accepts that when the mother left the house to go to the refuse tip B was fit and well. He accepts that during that hour an incident occurred which caused B to sustain the bilateral parietal skull fractures described in the medical evidence. The injuries were sustained on his watch.
33. At the time, the father suggested that the injuries may have been caused by W whilst the father was in the kitchen cooking pasta. He suggested that W may have hit B with the suction head of a cylinder-type vacuum cleaner or by dropping the suction head onto B. This is speculation on his part. He did not witness such an event. The medical evidence does not support this suggestion as a possible mechanism for B’s injuries. The father accepts the medical evidence on this issue. He no longer advances this hypothesis as the mechanism which caused B’s injuries.
34. The father’s ultimate explanation for these injuries is that he was holding B in the crook of his left arm. He was playing with W, chasing him around the house. He lost his grip on B as a result of which B fell to the ground. Although the father did not see the impact, B ended up lying on his back on the wooden kitchen floor. That was the only incident which occurred whilst the mother was away from the home. He denies that there was a second incident. He denies that this explanation is a smoke-screen behind which lies a more sinister explanation for B’s injuries. He denies causing the injuries either deliberately or recklessly. The injuries occurred as a result of a single accidental fall from his arms onto a hard wooden floor.
35. The father says that after the incident B cried but did not scream. He settled him down and eventually he fell asleep. He checked him to see whether he was injured. He did not see any sign of injuries. In particular he did not notice the emerging swelling at the fracture sites. He said he thought he ‘had got away with it’. That is an unfortunate choice of words. However, I accept that he meant to convey that he was relieved that B appeared not to have suffered injury as a result of the fall.
36. There are a number of difficulties with the father’s explanation. The first and most concerning is his delay in proffering that explanation. As I noted earlier, the father did not tell the mother the truth about what had happened when she returned home. He did not tell her that he had dropped B and that B had fallen onto the wooden floor. He let the mother believe that W may somehow have been responsible. As a result, when the mother took B to hospital the history she gave to the doctors was not an accurate history. The mother did not learn about the fall until the next day when she was informed by a social worker that this is the explanation the father had given the police.
37. The father was interviewed by the police on the afternoon of 4th December, almost 24 hours after the incident he describes. It was a long interview lasting for an hour and thirty-nine minutes. The father declined the offer of assistance from a solicitor. His initial explanation was:
‘I changed B’s nappy and then I left him on the floor while I just went to put W’s tea in a bowl for him…while I was draining the pasta I heard a big thud and B started screaming…I knew somert was wrong because…they have different cries so I knew something was wrong cos I’d never heard this cry before…I did check his head yeah, and I couldn’t see anything to start with…’
38. Discussion around this explanation continued for an hour and eight minutes. It was only then that the father first mentioned that B had fallen:
Officer: …Has there been an accident yesterday? Anything that you’re frightened of telling us about that could’ve caused that injury because if there has…The thing is…we’re both parents, we know accidents happen, ok.
Father: I know, yeah. I do understand that.
Officer: I know accidents happen. Have you dropped him yesterday?
Father: I did drop him, yeah.
Officer: You did drop him.
Father: I did yeah.
39. I have already noted that the kitchen has a wooden floor. The floor of the adjoining room is carpeted. Initially the father said that he had dropped B onto the carpet but when pressed further he said that it was between the hard floor and the carpet ‘so he could’ve hit the hard floor or could’ve hit the carpet.’ His explanation was, ‘I was just chasing [W] and I, I put one arm out to move the door and at that point [B] just slipped out’. Asked whether he had seen B hit the floor, the father said, ‘I heard it, I didn’t, I didn’t, don’t know, I can’t, I don’t know if I saw him, I heard it.’
40. The interview continued:
Officer: And how was he?
Father: He was fine, he was happy, he was chirpy, he was laughing.
Officer: So he didn’t cry when he hit the floor then?
Father: No, no, yeah he was a bit frozen but he didn’t, didn’t cry.
41. The father was asked why he hadn’t told the mother what had happened. He said that he was ‘scared to tell her’. He was asked why he hadn’t told the ambulance crew. He said, ‘At that, at that point I was, I don’t cope under pressure…I can’t think when I’m under pressure…’
42. The timing of events during the hour the mother was away from the home is not entirely clear. The father says that the fall occurred approximately five minutes after the mother had left the house. With respect to hearing the thud and scream he says,
‘Well when [B] first, when I got in there he’d screamed but he was like holding his breath like he was in that much pain and he was holding his breath so I assumed that’s why he was pale. He’d calmed down, I got him to calm down and he was breathing normally and he was alert and reacting to me as he normally does…At that exact time my, my other phoned and just said “I’m on my way back from the tip”.’
That would suggest that the thud and scream occurred close to 3.23pm (the time of the mother’s phone call). In his oral evidence he said that the thud and scream occurred at around 3.15pm and ‘no more than 20 minutes’ before the mother returned home
43. A note of caution needs to be sounded so far as concerns the father’s evidence as to timing. He himself acknowledged his unreliability. He said,
‘With, with the timings I assume the times are right but I’m dyslexic so the numbers may have got mixed up…Sometimes I get, when it says 13, err it’s 1 o’clock sometimes I think it’s 3 o’clock…When it says 15 sometimes I think it’s 5 o’clock.’
44. The father’s next account of the relevant events is to be found in his first witness statement prepared for these proceedings, dated 6th March. He said,
‘16. W and I played with the hoover whilst I was holding B. B didn’t want to be put down as he started crying whenever I put him down and was happy when he was being held. I then played a chasing game with W and as I opened the living room door to chase him through into the dining room/kitchen B slipped out of my left arm where I had cradled him onto the wooden floor next to the doorway. I immediately checked him over to see if he was ok. He was not crying, and there was no immediate marks or bruises. He seemed shocked at first but then began cooing. He seemed to be responding normally. About 5 minutes after dropping B I changed both of the boy’s nappies and I remembered the pasta was on.
17. I left W and B in the living room to see to the pasta and as I was draining the water in the sink I heard B scream in a startled and hurt way. I did not hear any other noise that I can recall. I dropped the pasta and drainer into the sink and ran into the living room to pick him up. I remember W was near to B when I went in but that would have been because he was going to console him as he is very affectionate to his little brother. B would not stop crying and it was a really upset cry. I held him and rocked him from side to side and talked to him softly telling him it was ok. I went to the kitchen to get my phone and as I went there [the mother] rang me. I explained to her I didn’t know what was wrong with B. I was panicking and worried. I did not think it was the fall from earlier as he had seemed fine. [The mother] told me to calm down and that she was nearly home. When she got home she took B from me and immediately saw the lump on the right side of his head. I had not seen it as I had held him as usual in my left arm and that side of his head was against my arm/chest. The lump was from the side of his head just forward of his ear to the back of his head in a diagonal direction with the highest point at the rear of his head.
18. It was 15.23 (from phone records) and as soon as we saw the lump [the mother] rang 999. As the ambulance was on its way I packed a bag for B whilst [the mother] organised for her mum to look after W.
19. I accept that I should have told the hospital and [the mother] sooner about having dropped B but I had thought he had been ok when I checked him over. I also accept that I was panicking and was worried so was not thinking clearly.
45. The father was re-interviewed by the police on 15th March. The father repeated his explanation:
Officer: How do you know you dropped him on the wooden floor?
Father: Because that’s where he was when I picked him up.
Officer: What position was he in when you picked him up.
Father: On his back.
Officer: What was he doing?
Father: Not much, I think he was a little bit shocked.
Officer: So he wasn’t crying or anything?
Father: Not until I picked him up, and then he started crying.
Officer: At the point you’ve dropped him what were you doing?
Father: I was playing with W, I was chasing him about as you do with a toddler.
46. During this interview the father was asked again why he hadn’t immediately been open and honest about what had happened:
Officer: How were things in hospital between you and [the mother]?
Father: …probably we were more concentrating on B than ourselves.
Officer: …And at that point did you have any concerns about the fact you’d dropped him as well?
Father: No, I don’t know why, it was probably a mixture of the fact that I was scared about the current situation with [the mother] and also he was actually fine after…It was more it didn’t cross my mind but at the same time I should have mentioned it and it was a silly mistake not to have mentioned it.
Officer …Why didn’t you tell them at hospital that you’d dropped him?
Father: …I made a stupid decision…
Officer: What did you tell the paramedic about what had happened?
Father: I didn’t. I was running round getting stuff.
47. The father accepts that he has lied. He lied to the mother about the circumstances concerning B’s presentation when she arrived home on the afternoon of 3rd December. For the first hour of his police interview the next day he lied about what had happened. The issue of him lying was discussed during his second police interview:
Officer: But essentially what you’ve told us has happened is an accident.
Father: Yeah it was an accident.
Officer: So isn’t it better for [the mother] to think you’ve had an accident with B rather than you’ve assaulted him in some way?
Father: Yes it is.
Officer: So I don’t understand why all the lies.
Father: That’s what I’m trying to say, that’s why (inaudible) counselling hence there is no logic behind it.
48. The father was asked whether he had done something to B other than dropping him. He was adamant that he had not.
49. In a statement filed less than a week before this hearing began the father set out details of the hypoglycaemic episodes he experiences as a result of suffering from diabetes. During these episodes he becomes ‘wobbly and light headed and forgetful’. On the morning of 3rd December he had experienced a hypoglycaemic episode when they got back home after visiting the mother’s brother. He says,
‘This was in the late morning. I therefore went to the shop to get Lucozade which immediately made me feel better. I do not remember now if I told [the mother] how I was feeling. I had the Lucozade maybe around half an hour before [the mother] left for the tip but I’m not certain. I do not think I had another hypoglycaemic episode that day.’
50. The father’s final account of the events of 3rd December was given in his oral evidence. He clearly found the experience of giving evidence quite challenging. He was frequently tearful – as had also been the case during his police interviews. At times he mumbled. The relevance of some of his answers to questions was, on occasions, unclear.
51. He again described an event in which he had been holding B but dropped him onto the wooden floor. He had been chasing W at the time. He had tumbled forward and in doing so had dropped B. After this incident there was a second incident. He was alerted to it by hearing a thud and then a scream. He did not witness this incident. It happened at around 3.15pm.
52. The father accepts that he did not initially tell the police the truth about what had happened. He accepts that when he told the police he had dropped B at first he said that B had fallen onto a carpet. He did not know B had been hurt until the mother pointed it out to him when she returned home. He had not told the mother the truth about what had happened whilst she had been out of the house as he was frightened of the consequences of telling the truth. With hindsight he accepts that he should have called an ambulance after dropping B but at the time B did not appear to have been hurt. There was no bruising or other sign of trauma.
53. The father was asked by Mr Brown, for the local authority, whether the causative event occurred because he snapped, because of a momentary loss of control. The father denied that to be the case. He said, “I’m a very calm person. I would never hurt anyone.”
The mother’s evidence
54. The mother was interviewed by the police not as a suspect but as a witness. She was interviewed on 3rd January 2017, a month after the incident which gave rise to the injuries. The following passages from her statement are of particular relevance to the issues I have to determine. She said,
‘During our relationship [the father] has never been violent towards me or the children and I consider him to be a good dad. He has always been very hands on changing nappies, feeding and bathing them. I have never had any concern around [the father’s] care of the children or around leaving him alone with them which I have done from time to time…’
55. The mother then went on to talk about her concerns in respect of the family finances. She described challenging the father on the morning of the events in question. It was then that she discovered that he had been gambling. She says,
‘I felt shocked and angry that he had been lying to me but I also felt better that at last I had seen the [bank] statements so I knew. [The father] was really upset throughout and I think he thought I would leave him. He asked me whether I would leave him and I told him I wouldn’t but things couldn’t go on how they were and he told me he was going to start counselling. He told me he had had an initial assessment.’
56. It was after this exchange that she had left to go to the refuse tip. She had telephoned him when she was on the way back home. She asked him if everything was all right. He said, ‘No not really’. He told her he had heard a thud and heard B scream and then he ran in from the kitchen. He didn’t know what had happened. She asked him whether he thought he should call an ambulance. He said he wasn’t sure. When she arrived home the father was cradling B in his arms. B was asleep. He looked very pale. She spoke to him and tickled his chest at which point he woke up and screamed. It was then that she ‘noticed that B had a huge lump on the right side of his head just above his ear.’ She pointed it out to the father. He said he hadn’t seen it. She then goes on to discuss the father’s demeanour. She says,
‘[The father] did not seem to me to be his usual self. He seemed upset and agitated. I felt he looked nervous, he was not saying a lot and he was teary-eyed.’
57. She also describes the father’s demeanour at the hospital:
‘B had a CT scan at hospital and we were told that because of the seriousness of the injury social services would be informed. [The father] was not surprised by this at all and said that he knew that would happen.’
58. The father had not told her about B’s fall. She found out from the social worker who ‘told me that [the father] had admitted dropping B’. Soon after, she telephoned the father and said, ‘I think you’ve got something to tell me’. She goes on to say,
‘[The father] told me that it happened when he was playing with W and B just slipped out of his arms. He also told me that the rest is true and that he did hear a thud and a scream.
In my heart of hearts I honestly do not believe that [the father] has done anything deliberately to harm B, he’s been careless and then lied about it.’
59. There is one final aspect of the mother’s police witness statement to which should be referred to. She said that after the social worker had told her about the father’s admission that he had dropped B,
‘In my mind I thought things were starting to add up though because only that morning my mum told me that W had been walking around with his dolly and dropping it and that he was then picking it up and say “oh, oh” and patting its back. I thought that maybe W had seen it happen and he was copying it.’
60. The mother confirms the father’s history of diabetes and the regularity of hypoglycaemic episodes. She said that he has suffered these episodes ‘for as long as I have known him’. During such episodes she has witnessed him becoming ‘wobbly, irritable and forgetful’. He also goes very quiet. The episodes affect him differently according to their severity. He normally manages these episodes by having a sugary drink. She said that she was ‘not aware that [he] suffered an episode on the morning of 3 December.’
Other evidence
61. Following the mother’s call to the ambulance service, a paramedic attended. He made a statement to the police. There are two points on which his evidence is at odds with the evidence given by the parents. He says he ‘remembers seeing a grey coloured hoover. An upright push along hoover’. The father says that the hoover was a cylinder-style hoover. More important is his account of what he was told about the telephone conversation between the parents whilst the mother was on her way home from the refuse tip. He says that the mother told him,
‘that she had been out at the time when she got a phone call from dad and he told her what had happened. She said that he thought that the baby was fine…’
The parents’ evidence to the court was that it was the mother who telephoned the father and not the other way around. The paramedic was warned to attend this hearing but in the event no party wished to challenge his evidence.
62. The local authority also sought to rely upon the evidence of the social worker first allocated to this case. It is unnecessary to burden this judgment with a detailed account of the social worker’s evidence. The primary reason why the local authority called him to give evidence was because of a conversation he had had with the Cafcass officer appointed as Reporting Officer in the adoption proceedings relating to the father’s older daughter. His account of that conversation does not accord with the Reporting Officer’s own notes. In any event, its relevance to the issues I have to determine is tenuous. I am not assisted by the social worker’s evidence.
The law
63. The relevant legal principles are clear. It is the local authority which seeks findings that B’s injuries are non-accidental injuries. The burden of proof rests upon the local authority. The standard of proof is the civil standard; that is the balance of probability. In Re B (Children)(Fc) [2008] UKHL 35. Baroness Hale said that she would
‘70. …announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…’
64. It is also appropriate to note the well-known and oft-quoted observation made in that same case by Lord Hoffman that,
65. The parents, or more particularly in this case, the father, do not have to ‘prove’ anything. The father says that the injuries were caused as a result of him dropping B onto a wooden floor whilst he was chasing W. I do not have to be satisfied on the balance of probability that that explanation does in fact account for B’s injuries. The more appropriate question for the court to ask is whether the father’s explanation is sufficiently credible for the court to be able to say that the local authority has not made out its case to the requisite standard. In Re Y (Children)(No 3) [2016] EWHC 503 (Fam) Sir James Munby P made the point that,
‘20. Thirdly, that the fact, if fact it be, that the respondents (here, the parents) fail 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. As His Honour Judge Clifford Bellamy recently said in Re FM (A Child: fractures: bone density) [2015] EWFC B26, para 122, and I respectfully agree:
"It is the local authority that seeks a finding that FM's injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court's task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not 'has that possible alternative explanation been proved' but rather it should ask itself, 'in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability'."
66. Part of the evidence in this case includes a report from the treating consultant paediatrician and evidence from two independent medical experts. That medical evidence does not stand alone. The court is under a duty to evaluate the totality of the evidence. In Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, at para [33] Butler-Sloss P made the point that evidence,
‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the 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.’
67. A similar point was made by Bracewell J in In Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200:
‘[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.’
68. In the process of forming an assessment of the parent’s credibility and reliability regard should also be had to the observation made by Peter Jackson J in Lancashire County Council v M and F [2014] EWFC 3 (Fam) that:
‘9. …in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith.’
69. In cases such as this a distinction is invariably drawn between an accidental injury and a non-accidental injury. The latter term needs to be used with a degree of caution. I have well in mind the observations of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 concerning the use of the term ‘non-accidental injury’:
70. In this the father admits that he has lied about some issues. It is appropriate that I should remind myself of the observation made by Mr Justice Charles in A County Council v K, D and L [2005] 1 FLR 851 that,
‘[28]…in determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203. As appears therefrom, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. Also I accept that there can be many reasons why a person might not tell the truth to a court concerned with the future upbringing of a child. Further, I of course recognise that witnesses can believe that their evidence contains a correct account of relevant events, but be mistaken because, for example, they misinterpreted the relevant events at the time or because they have over time convinced themselves of the account they now give.’
Submissions
71. On behalf of the local authority, Mr Brown points to the fact that on 3rd December the father was still agonising over whether he should consent to his daughter being adopted by her step-father; that this was the day when the father confessed to the mother that he had been gambling, leading to a significant argument in which the mother had threatened to leave him; that the father admits that he has lied about the events which caused the fractures; that there is no corroboration from the mother of the father’s assertion that he had a hypoglycaemic episode half an hour before she left the house; that he admits he was irritable and was not coping. All of these points are well-made.
72. The father says that at the time he dropped B he was chasing W. Mr Brown makes the point, again correctly in my judgment, that the element of velocity suggested by the use of the description ‘chasing’ cannot have been significant. It is clear from the father’s evidence that he had only just begun to ‘chase’ W when he dropped B. Mr Brown also drew attention to the fact that this is a small house. The father could not possibly have been running at speed.
73. Not only are there inconsistencies and gaps in the father’s evidence, Mr Brown also points to the fact that the father admits that he has lied. He submits that father has not given a true account of how B sustained his injuries. The court must consider whether the injuries were caused by the father as a result of a temporary loss of self-control or as a result of a wholly undisclosed incident. Even if the court were to find that the injuries were the result of B being dropped, chasing a toddler whilst holding a nine-week old child in his arms was reckless.
74. Mr Brown points to the high degree of consensus between the medical witnesses. In so far as the two medical experts accept that a fall could have caused one (Dr Ward) or both (Dr Watt) fractures they talk in terms of possibilities and not likelihood.
75. On the simple balance of probability the local authority has discharged the burden of proof.
76. For the father, Mr Mannering points to the mother’s evidence that when she left the children in the father’s care she had no concerns that he would not be able to cope or that if he couldn’t cope he would cause harm to them. The father has a good relationship with his children. In light of that evidence it is, he submits, inherently unlikely that this father would harm one of his children.
77. Mr Mannering accepts that the father has admitted that he has been addicted to gambling and that he has lied, not least to the mother and to the police. However, he points to the fact that the father openly acknowledges his problems and has taken the initiative in seeking appropriate help.
78. Mr Mannering also accepts that there are some discrepancies in the father’s evidence. However, he reminds the court of the observations of Peter Jackson J in Lancashire County Council v M and F [2014] EWFC 3 (Fam) to which I referred earlier.
79. Mr Mannering reminds the court of the medical evidence that if there had been only one fracture then that could have been caused as described by the father. If the father’s account is correct then Mr Brown submits that the father’s conduct was reckless. Mr Mannering disagrees. The father may have been unwise or foolish to have chased W whilst he had B in his arms but that does not equate to recklessness. It was an accident.
Discussion
80. Some facts are not in dispute. It is accepted that the children were in the sole care of the father for around an hour during the early afternoon of 3rd December. It is accepted that it was during that hour that something happened to B that caused bilateral parietal skull fractures. The central issue is whether the fractures are non-accidental injuries, as contended by the local authority, or whether, as the father claims, they are accidental injuries.
81. The treating consultant paediatrician, Dr A, was clear that the fact that there were two separate skull fractures suggests two separate impacts, ‘two separate blows of blunt trauma’. He qualified that opinion by adding the words, ‘in the absence of any plausible explanation this injury is non-accidental in nature’. At the time of B’s admission to hospital there was no ‘plausible explanation’. The father had not told the mother what had happened whilst she had been away from the house; neither did he tell the ambulance crew or the staff at the hospital.
82. When they prepared their respective reports Dr Watt and Dr Ward were both aware of the father’s explanation that he had dropped B. Both accept the possibility that a fall such as that described by the father could cause a skull fracture. Had there been only one fracture then, as I understand their evidence, the father’s explanation may provide the ‘plausible explanation’ sought by Dr A.
83. But there is not a single fracture; there are bilateral parietal skull fractures. In light of their oral evidence there does appear to be a small – though perhaps important – divergence of opinion between Dr Watt and Dr Ward as to whether it is possible that the mechanism described by the father could have caused the bilateral fractures which B sustained. These fractures do not fit with the ‘Alice band’ pattern of fractures which Dr Ward has seen in other children. In B’s case the fractures do not reach the sagittal suture. If the point of impact were with part of the skull other than the vertex then Dr Ward considers it ‘very unlikely’ that that would cause bilateral parietal fractures. It is for that reason that she discounts the possibility of both fractures being caused by a single impact. Dr Watt, on the other hand, appears to be more open to that possibility. As I noted earlier, Dr Watt was clear that in a child of this age group he is not able to say for sure that these two fractures were not caused by a single impact.
84. I have noted the research evidence referred to by Dr Watt and, in much greater detail, by Dr Ward. Dr Ward acknowledges that studies indicate that single skull fractures may occur as a result of a short fall. She makes the point that skull fractures occur in only 1-2% of such incidents and the likelihood of injury partly depends upon the nature of the surface onto which the child falls. However, the research does not arrive at conclusions that are couched in absolute terms. Thus it is said that, for example, ‘serious injuries attributed to an accidental fall from a bed or low height should be considered unlikely and, in most incidences, are due to child abuse.’ Most cases but not all cases. There is room for exceptions. Whether it is appropriate for a court to conclude that in a particular case there is justifiable reason for considering that the facts may suggest an exception to the general rule is a decision that can only be made by considering the wide canvass of the evidence and not simply the medical evidence.
85. In this case the medical evidence plays a central part in the local authority’s contention that B’s injuries are non-accidental injuries. The statistical research evidence relied upon by the medical experts is powerful. However, the medical and statistical evidence are only part of the evidence in this case. I also have evidence from the parents. It is an essential part of the judicial task to assess their credibility and reliability as witnesses.
86. There are concerns about the father’s behaviour. He delayed in confessing that he had dropped B. Delayed explanation is often considered to be a possible indicator that an injury is non-accidental. He is an intelligent man. It must surely have been clear to him that the doctors treating his son needed as much information as possible to enable them to treat him appropriately. Although there is no evidence that his silence at the hospital of itself caused or had the potential to cause harm to B, it is not difficult to imagine circumstances in which it might have been otherwise.
87. The father is also open to criticism for failing promptly to seek medical assistance but instead waiting for the mother to return home and leaving to her the decision whether or not to call an ambulance. It is the father’s evidence that the incident in which he dropped B occurred around five minutes after the mother had left the house. It was, therefore, around an hour before medical attention was sought. Like delayed explanation, delayed presentation is also often considered to be an indicator that an injury is non-accidental.
88. Also to be considered is the fact that the father admits that he has lied. He lied to the mother about their financial situation, covering up his secret gambling habit. He lied to her again with respect to the causation of the fractures. On that issue he was also untruthful or, at the least, economical with the truth, in his dealings with health care professionals and the police. The fact that the father has lied about some issues does not mean that the entirety of his evidence is untruthful. However, the fact that he has lied about some important issues makes it that much more difficult for a judge to determine which parts of his narrative are true.
89. All of these issues raise concerns about the father’s credibility and reliability as a witness of fact concerning the causation of B’s injuries.
90. It is also right that I should bear in mind that at the time of the incident the father was under stress. He and the mother had just had an argument following his disclosure of his gambling habit, a habit which he had kept secret for some months. He was also agonising over the decision of whether or not to consent to his daughter’s adoption by her step-father. To that must be added the ever-present stress of suffering hypoglycaemic episodes. He had suffered from these episodes throughout his relationship with the mother. They had become a normal part of family life. The fact that they had become normalised does not mean that they were not a cause of stress – on some occasions more than others. Does all of this make it more likely that the explanation for B’s injuries is that the father had a sudden loss of control and inflicted those injuries?
91. I regard the mother as a reliable and truthful witness. She is intelligent and open. Although she and the father have lived separately since these injuries came to light in December, as she gave her evidence it was clear that she continues to have positive feelings for him. She was fulsome in her comments about his commitment to his children, about his love for them and his determination to be a fully-involved father. She spoke positively about his caring skills. Though she is concerned about the fact that he has lied to her about his gambling and, initially, about the causation of B’s fractures, she was nonetheless absolutely clear that she did not think the father had it within him deliberately to cause harm to his children. He is not an aggressive or violent man. There has been no violence or threats of violence within their relationship. He has never been aggressive or heavy-handed in his care of the children. As she puts it, ‘I honestly do not believe that [the father] has done anything deliberately to harm B, he’s been careless and then lied about it’.
92. There is another point that arises from the mother’s evidence. It was dealt with in her police witness statement though she was not asked about it during her oral evidence. She said,
‘In my mind I thought things were starting to add up though because only that morning my mum told me that W had been walking around with his dolly and dropping it and that he was then picking it up and say “oh, oh” and patting its back. I thought that maybe W had seen it happen and he was copying it.’
As an account of what W did and said, the mother’s recounting of what she had been told by B’s maternal grandmother was not challenged. As for the mother’s interpretation of what W is reported as having done and said, I do not regard that to be an attempt on her part to clutch at straws. On the contrary, I regard her observation as insightful and reasonable. If W did see B drop onto the floor and his father pick him up and soothe him, at 20 months of age such copying behaviour is entirely believable. It is the kind of thing that children of that age do – and sometimes much to the embarrassment of their parents.
93. In ignorance of the father’s account of dropping B, Dr A opined that as there were two separate skull fractures there must have been two separate impacts. In his report, Dr Watt suggested three different mechanisms one of which was ‘separate right and left sided episodes of trauma…This would account for the radiographic findings and is a possible explanation.’ Dr Ward agreed.
94. The father refers to two events. His initial explanation to the mother and to the police was that he ‘heard a big thud and B started screaming’. He later confessed that he had dropped B. The two incidents he refers to occurred around 40 minutes apart. He dropped B onto the floor around five minutes after the mother left the house. It was at around 3.15pm that he heard the thud and scream. The father says that at the time that occurred W and B were in a room together. He himself was not in the room. He isn’t able to say what caused the thud and scream. Given that B was pre-mobile the inference is that W did something that caused the thud and scream. There is consensus between the medical experts that it is unlikely that W could have done something to his brother that may have caused a skull fracture. I accept that evidence. If the father is telling the truth when he says he heard a thud and scream I am not persuaded that whatever event caused the thud and scream provides an explanation for one of the skull fractures. In his oral evidence it appeared that the father, too, now accepts that that does not provide an explanation for a skull fracture.
95. The father describes dropping B. It was a memorable event, albeit one that the father initially chose not to disclose. On that issue I find the father’s evidence to be plausible. As a factor in arriving at that conclusion I have in mind the mother’s evidence concerning maternal grandmother’s observation of W picking up a doll, dropping it to the floor and then comforting it.
96. If the father did drop B onto a wooden floor, it is clear from the expert medical evidence that it is possible that that impact caused both fractures. Although in his report Dr Watt described such an event (a single episode of trauma resulting in bilateral fractures) as a mechanism that is ‘possible but unlikely’ (an opinion with which Dr Ward agreed), in his oral evidence he said that in a child of this age he is not able to say for sure that these two fractures were not caused by a single impact.
97. That opinion chimes with the research evidence which clearly leaves open the possibility of exceptions to what one would normally expect as a result of such a fall. It depends upon the height from which the child fell and the surface onto which the child fell. It depends upon whether the adult who drops the child is standing still or moving forwards in which case velocity also becomes a factor. Every incident is different. Every child is different. Research-based statistical evidence is relevant but not determinative. Whilst it is both understandable and appropriate for medical science to talk in terms of likelihood and possibilities, the general must always give way to the particular. The law also talks in terms of likelihood but it does so in the context of a particular set of circumstances. In evaluating likelihood in the context of a particular set of circumstances the court must be assiduous in assessing the totality of the evidence. In a case such as this, only in so doing can the court take account of the fact that the research evidence acknowledges that in 1-2% of cases such injuries are caused by such a fall. In the final analysis, the court’s task is to do justice by making findings that accord with the totality of the evidence.
Conclusion
98. The burden of proof rests on the local authority. Has this local authority discharged that burden? I have set out those parts of the evidence which support the credibility and plausibility of the father’s account. I have also highlighted those parts of the evidence which point in the opposite direction. It is a finely balanced case.
99. It is not for the parents – or more particularly in this case, the father – to prove that B’s injuries were caused accidentally. It is for the local authority to prove its case on the simple balance of probability. The father gives a plausible explanation. In his oral evidence Dr Watt stated that in a child of this age he is not able to say for sure that these two fractures were not caused by a single impact. In her evidence Dr Ward described B’s injuries falling into the category of ‘minor head injury’ and acknowledged that there is difficulty in sorting out accidental from abusive injury when head injuries are less severe as in this case. The mother gives a very positive assessment of the father’s caring abilities. This father has no history of inter-partner violence or of heavy handedness in caring for the children. There is no evidence of any form of substance misuse. I have come to the conclusion that, taking the evidence in the round, the local authority has not discharged the burden of proof. The local authority’s application is therefore dismissed.