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Cite as: [2017] EWFC B34

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IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: .…OX17C0074

IN THE FAMILY COURT AT OXFORD IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF F AND G (CHILDREN)

Date: …..20^th June 2017

Before : HHJ Vincent

Between :

OCC

Applicant –

and

(1) AB

(2) BB

(3) F and G (by their children’s guardian NA)

Respondents

Andrew Leong (instructed by Oxfordshire County Council) for the Applicant

Kelly Webb (instructed by Turpin & Miller solicitors) for the First Respondent mother

Sara Granshaw (instructed by Truemans solicitors) for the Second Respondent mother

Mark Calway (instructed by Reeds solicitors) for the children’s guardian

Hearing dates: 19^th and 20^th June 2017

JUDGMENT

1. AB and BB are the parents of F (nearly three) and G (five months old). They are loving and devoted parents to their sons and there have been no evident concerns about their care of F who is a happy and healthy child. G is also a happy and loved child. Since fairly soon after his birth in January his parents have raised concerns about his health and well-being in particular a concern that he bruises very easily and whether this might be symptomatic of an underlying more worrying concern.

2. In the early hours of 22^nd April 2017 G was admitted to hospital with a rash on his abdomen. His mother was worried it was a sign of meningitis. Following investigations the treating clinicians ruled out meningitis. Dr S, paediatric consultant later concluded there was ‘strongly suggestive of non accidental injury.’

3. Having been given that opinion, the local authority issued proceedings. F and G have remained in their parents’ care, supervised by other family members, and with the agreement of their parents.

4. The hearing today is for me to determine whether the interim threshold for making public law orders is crossed. If so, then I must go on to consider whether the current arrangement can persist or whether some form of public law order is required in the interim, and then consider the further management of this case to its conclusion.

5. If I find that the threshold is not crossed, then the Court has no jurisdiction to entertain the application for interim removal and it must be dismissed. Mr Leong has rightly pointed out that does not automatically bring an end to the proceedings as a whole.

6. I am grateful to counsel for their assistance in this difficult case. Mr Leong represented the local authority, Miss Webb represented the first respondent AB, Miss Granshaw represented the second respondent BB and Mr Calway represented the guardian, NA, who was not in attendance at the hearing but fully briefed by Mr Calway after Dr S’s evidence.

7. The local authority asserts that, within the meaning of section 38 of the Children Act 1989 there are reasonable grounds for believing that at the material date, being the 15^thof May 2017, G was suffering, and G and F were likely to suffer significant harm, and that the harm or likelihood of harm was attributable to the care being given to the children or likely to be given to the children, not being what it would be reasonable to expect a parent to give to them.

8. What is said is that the bruising on G’s abdomen is indicative of some force having been exerted upon it and, absent an explanation from the parents as to how that force was applied, there are reasonable grounds to believe that the bruises resulted from a force being applied by one or presumably both of the parents which was excessive and not what it would be reasonable to expect from a parent.

9. In her response to threshold, drafted I believe by her counsel Ms Webb, the first respondent mother helpfully sets out the approach the Court should take when asked to make findings of fact. This is derived from the judgment of Baker J in Re JS [2012] EWHC 1370, at paragraphs 36-45. While this is a hearing on interim threshold and not a finding of fact, it is very useful to focus the mind for the purposes of this hearing. I adopt her summary:

a. The burden of proof lies with the local authority;

b. The standard of proof is the balance of probabilities;

c. Findings of fact must be based on evidence, not speculation or suspicion;

d. When considering cases of suspected child abuse, the court must consider each piece of evidence in the context of all other evidence. A judge must view the totality of the evidence in order to come to the conclusion whether the case has been made out to the appropriate standard of proof.

e. The opinion of medical experts must be considered in the context of all other evidence. The court must weigh up expert evidence against other evidence. There may be cases where a court determines that the weight of the evidence is at variance from that reached by medical experts;

f. In assessing the expert evidence, the court is assessing the evidence of a group of specialists, each bringing a different expertise to bear on the issue. Each expert must keep within the bounds of his or her expertise. The expert must defer, where appropriate, to the expertise of others;

g. The evidence of the parents or other carers is of the utmost importance. Credibility and reliability are key issues;

h. Witnesses often tell lies. The court must bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. A fact a witness has lied about some matters does not mean he or she has lied about everything;

i. A court must take into account the possibility that the cause of an injury or condition is simply unknown. This does not affect the burden or the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the party holding the burden of proof is established on the balance of probabilities.

10. In coming to my conclusions I have had regard to all the evidence within the bundle which includes statements from the children’s social worker Sharon Peart, statements from each of the parents, some of G’s typed medical records (but not handwritten notes), correspondence from his treating consultants Dr S (paediatrician) and Dr H (haemotologist), and a number of high quality photographs of G.

11. It was agreed that for the purposes of this hearing I needed to hear evidence from Dr S only, and then following submissions, I would deal with the question first of whether threshold has been crossed.

12. Dr S was on-call and gave her evidence by video-link from a suite at the hospital. I am grateful to her for giving her time to the Court at relatively short notice and I am in no doubt that she has devoted a lot of time and thought to this case.

13. She said this been a very complex case and G had been the subject of much discussion between her and clinicians from a range of different disciplines. She is a paediatric consultant with experience of child protection issues and she explained the reasons for her conclusion in her first report that the bruising was strongly suggestive of non-accidental injury. Dr S’s approach as a doctor is to investigate possible causes, discounting as she goes along if the evidence enables her to do so. In her letter dated 27^th April she sets out the process by which she has come to her conclusions:

‘G’s bruising pattern is strongly suggestive of non-accidental injury. I have considered the possibility of medical conditions leading to easy or spontaneous bruising. The blood results have excluded these. Even if G tends to bruise more easily than other babies, there would still need to be an explanation for the appearance of those unusual bruises. I have considered the possibility of accidental bruising, but his parents give no history of an accident. Any accident causing bruising to this extent in a baby of this age should be a memorable event. I have considered the possibility that bruising could have been caused by his brother however the size of the bruising is not consistent with a child’s hand. That leads me to conclude that the remaining possibilities are an accident which the parents have not disclosed, which in itself would be concerning, or bruising inflicted by an adult i.e. non-accidental injury.’

14. In her oral evidence she no longer described these last two options (a non-disclosed accident or non-accidental injury) as possibilities or that the evidence was ‘strongly suggestive’ but said that she considered this to be the most likely explanation on a balance of probabilities.

15. My approach has to be different. I must look at the facts that are alleged and examine all the evidence that points both towards and away from a finding that the allegation is made out. I must look at all the evidence in its context, and I must evaluate the relevance and weight of each piece of evidence. If I am not satisfied on a balance of probabilities that an allegation is proved, there is no obligation on me to find an alternative explanation, or to rank the various options in order of most likely to least likely. An allegation is either proved or it is not.

16. I have had regard to all the evidence before me, and with all due respect to Dr S, who I have no doubt is working in a very challenging environment and necessarily has a different approach from the Court, in the circumstances of this particular case I have come to the conclusion that her evidence as to causation of G’s bruises is ultimately speculative. I would question the reasoning which led to her being able to exclude some possibilities, not entertain others, and ultimately to fix on parental blame as their likely cause.

17. Dr S says that blood tests have excluded the possibility that G has any medical conditions leading to easy or spontaneous bruising, but there is overwhelming evidence that he is a child who does bruise easily, even if the mechanism is not yet known.

18. She dismisses the possibility of accidental bruising because ‘his parents give no history of an accident’. She says any accident should be a ‘memorable event’ and earlier in her letter, the bruises and petechiae ‘would have required some force to sustain and G would have cried when this occurred’. However, the evidence is that G was not distressed by his injuries, and presented in hospital as happy and smiley. On 3^rd May 2017 when bloods were taken from him resulting in extensive bruising to his arm, he was reported as being ‘unsettled but was not crying when bloods were taken’ and there are no reports of his being distressed on any other occasions when blood tests taken or immunisations given and bruising resulted. In the light of that evidence, there must in my judgment be concern about Dr S’s conclusion that the parents must have been aware of a memorable event, and G crying, when the pressure was applied so as to cause the bruises.

19. Dr S rejects the possibility that F caused the accident but there is no objective evidence which definitively excludes his hands as being capable of causing the bruise marks on G’s tummy, and there is evidence (from the strategy meeting notes) that Dr H considered this might be a possibility. Dr S seemed fairly sure in her oral evidence that the bruise marks represented four adult finger prints inflicted all at the same time, but there is not clear evidence to support this through measurements or a formal tracking of when each bruise appeared.

20. For these reasons I am concerned that she may have excluded the potential causes on the basis of incomplete or insufficient analysis.

21. Dr S accepted in evidence that she had not considered the further possibilities of (i) an unknown accident when pressure might have been applied to G’s abdomen either by one of his parents or his older brother, and the parents being unaware that bruises and the petechial rash had occurred, or (ii) an as yet unknown medical reason for the bruises and the rash to occur. The Court must take into account the possibility that the cause of an injury or condition is simply unknown, I would expect Dr S also to entertain that thought.

22. Looking at whether Dr S’s conclusions can give me reasonable grounds to believe that G’s injury was inflicted by one or other of his parents either deliberately or accidentally and there has been concealment, I have some difficulties with her analysis for the following reasons:

23. Firstly, in terms of how she reaches her conclusion that the injury would have been caused:

a. There is overwhelming evidence that G is a child who bruises easily, and that before and after this incident (contrary to Dr S’s evidence) he had presented with bruises that were caused by minimal pressure being exerted upon him for a matter of seconds;

b. I cannot understand how it could be said that the petechial rash that appeared in G’s arm at the site where bloods were taken on 3^rd May 2017 was caused by anything other than normal professional handling;

c. Without any objective evidence I am not prepared to accept Dr S’s evidence that when these bloods were taken G would have been held for a sustained period of between three and five minutes;

d. Similarly without objective evidence I do not accept her evidence that the pressure applied to G by trained clinicians when holding him still to take bloods was of a different order of the way a baby might expect to be handled in the home;

e. I reject as frankly a wild guess that a practice nurse carrying out standard immunisations on a baby would take up to three minutes to do it and would hold the baby in the same way as if bloods were being taken. I consider I can take judicial notice that immunisations to babies are usually administered in seconds and that a firm and steady but gentle hold is all that is required to make sure the leg is held still;

f. I do not therefore accept Dr S’s premise that the petechiae on the abdomen could only have arisen after sustained pressure of a number of minutes, or handling that would be beyond what would reasonably be expected of a parent, or that it could not have been the result of a toddler poking or pushing at his younger brother;

g. There is no scientific or logical explanation for Dr S’s view as to the sort of force that would have been required in order for these bruises to arise. Her evidence was that ‘some force’ or ‘sustained pressure’ would have been required but she has not in my judgment been clear about how much force or pressure, nor set out the evidential basis to justify her conclusion that it must in effect have been an unreasonable amount;

h. There would seem to me to be a more significant body of evidence which suggests that this particular child bruises for reasons not yet entirely understood, after relatively mild amounts of pressure are applied.

24. In her oral evidence Dr S appeared to place significant weight on the location of the bruising, and the absence of a clear explanation from the parents as to how the bruising was sustained.

25. So far as the location of the bruising is concerned she said it is an unusual place for babies and children to bruise but I was not so persuaded that it would be an unusual place for a baby to come into frequent contact with hands. Babies are always being tickled on the tummy, held around the waist to be fed, picked up with arms supporting around the trunk.

26. I have gone over my note of Dr S’s evidence and in my judgment she was saying not just that the parents had not provided a description of a witnessed event involving F which could provide an explanation for that theory, but was making a wider point that if no explanation were given then this is an important part of her analysis and assessment, and that because she had not received a clear explanation from the parents to explain bruising in an exceptionally unusual place then she remained suspicious of non-accidental injury as a cause. This is also how the local authority puts its case on interim threshold.

27. I fully accept that part of the clinician’s assessment is to look at the parents and the explanation given. However, the fact of no explanation should be looked at in its wider context and in all the circumstances of the particular case. The fact is doctors are no better than judges or the rest of the population at finding out a liar; some parents who have deliberately inflicted injury come up with incredibly plausible alternative explanations at a very early stage. Some parents do not offer an explanation because they are concealing a sinister truth. However this was not an injury which begged an explanation in the first place. The context in which these parents found themselves was entirely different. In the first instance they were panicking about the rash being a sign of meningitis, and on the basis of the history apparently given on the 111 and 999 calls they were justifiably concerned -so there would have been no question of them thinking up alternative explanations at that stage. After they had been told the doctors were concerned there had been a physical injury they did rack their brains and they did come up with possible explanations. Thirdly, this couple had been raising concerns for some weeks by that point about the ease with which he was bruising and were worried about their son. By their actions they appear to be desperately wanting to work with the doctors to discover what might have happened, volunteering information if they had it, seeking out advice from knowledgeable friends and doing everything to keep investigatory paths open. I do not share the concerns of the local authority or Dr S that the lack of a clear or definitive explanation in this case tends towards a finding of some sort of attempt to conceal on the part of the parents.

28. There is no obligation upon the parents to provide an explanation to the Court but as a matter of fact, they have offered a number of potential theories and in my judgment, given the whole context of the case, it would seem to me that there is reasonable foundation in what they say.

29. There is substantial evidence in the case that G’s skin bruises and marks very easily. From the chronology:

14.3.17 G is noted at his 6 week check to have small petechiae under both eyes;

28.3.17 G has his first set of routine vaccinations and his parents noticed bruising on his thigh where he was held. Dr H subsequently noticed finger tip bruising on the photograph taken at this time;

serif'>14.

30.3.17 G’s parents noticed a small bruise on his cheek after he was held to be winded;

24.4.17 G has blood tests for a full clotting screen. The registrar noticed a bruise across his wrist where she had held him and petechiae across his shins (8 on the right and 2 on the left);

3.5.17 G had a blood test in Dr H’s haemotology clinic. He developed a bruise and substantial petechiae on his forearm below the site of the tourniquet;

12.5.17 G had a blood test on his left arm in the ‘easy bruisers’ clinic and later three small bruises appear on his arm where the nurse held it;

13.5.17 G’s parents reported that G had a small bruise and some petechial spots on his left shin after playing on his playmat and kicking a rattle;

19.5.17 Dr S reports that G developed bruises following being held for phlebotomy over the area where he was held.

26.5.17 G had a blood test and developed bruising and petechiae on the wrist thereafter.

13.6.17 G has his routine 4 monthly immunisations and his mother reports on leaving the treatment room that she noticed petechiae on his legs, red marks on his feet and bruising on his thigh where the nurse held him.

30. Other professionals have noted that G’s skin easily goes red or marks upon handling. Dr B, paediatric rheumatologist found a fit and healthy thriving baby with normal development. She noted his skin was normal but did become red easily with handling. On admission Dr L also recorded an alert, active and smiley baby but noted ‘transient marks left by clothing creases/fastenings and also by my hand when ventrally suspended.’

31. Dr H wrote in a letter to Dr S on 6^th May that ‘it would appear that G … does seem to bruise more easily. …. There are people who do bruise more easily in whom we can never detect a haematological defect. Such people can after any form of increased pressure either vomiting, coughing, application of tourniquets, standing up for long periods or running develop petechiae in areas related to increased venous pressure and it assumed such people have “fragile capillaries”’. In an email of the previous day, Dr H said that G’s sort of bruising ‘fits much more with fragile capillaries bursting under pressure to produce petechiae.’

32. Dr H, a haemotologist has entertained the idea that the fingertip bruising seen could be a child’s rather than an adult’s and one explanation is that F, who liked to stick his fingers through the cot bars to poke his brother may have unintentionally hurt him. Another explanation is that when feeding him, F ran towards his mother and she instinctively clutched G a little closer to her. Dr S said this would not fit with how she understood G to have been held at that point and dismissed this as an option. I can see it would be dismissed if the premise was that the injuries took minutes to inflict, but for reasons given above, I do not consider this is a sound basis on which to proceed.

33. The wider context is important, and while it may not be scientific to include views about the parents in the overall analysis, Dr S said that her approach was holistic. If the context of no explanation being given is afforded weight, then I would have thought that the context of the child’s and parent’s presentation should also be taken into account. These are exemplary parents, they have co-operated with doctors and the local authority, they are engaged with the local authority process, their children are well, there are no other concerns. All the clinical notes which record interaction between parents and G describe it in glowing terms. He is noticed to be happy, thriving, well-kempt, and the parents are noted as being appropriately concerned, and evidently keen to investigate all possible causes of G’s bruising.

34. I now turn to each of the items on the threshold document.

G suffered a significant bruising injury to his abdomen on or around the 21^st of April.

35. The parents accept there has been harm. When I look at the photos there is perhaps the ‘gasp’ factor; it is a significant rash and there are clear bruises to be seen. My reaction to the abdomen bruises is exactly the same as my reaction to the photos of the arm from 3^rd May. I would describe both of those as a bruising injury that was of significance. ‘Significant’ is hard to define. Dr H wrote to the First Respondent on 1^st June to reassure her that at the moment no underlying haematological cause had been found and therefore she regarded the bruises and petechiae to be ‘superficial’ i.e. skin deep, no injury to soft tissue or internal organs. None of the records describe G being evidently sore or grizzly about his bruises, but presenting as a happy and smiley baby.

36. I do not accept Dr S’s evidence that when the pressure was exerted to cause these injuries that it would have been a memorable event, and Dr S did accept it could have been no more than the force required in order to ensure that G stayed still while bloods were being taken.

37. While it is arguable that in all the particular circumstances and for this child, the bruises on the abdomen were not significant, on balance in my judgment they do represent significant harm. I consider that the injuries on his arm following the blood taking on 3^rd May would also be described as significant harm. Family lawyers define significant as more than trivial, something of note, and plainly in this case, the injuries to the abdomen caused serious concern in G’s parents and treating clinicians, concerns which needed to be investigated further.

G suffered this injury whilst he was in the care of his parents or one of them.

38. Plainly G sustained the bruising while in the care of one or other of his parents.

G was examined and assessed by the treating medical professionals at hospital on the 22^nd of April 2017 and it was noted that G presented with an area of petechial bruising measuring 10cm x 8cm in diameter on the right hand side of his abdomen above the umbilicus. Within the area of petechiae were four separate bruises in a curvilinear pattern. These bruises had the appearance of fingertip bruising from an adult hand.

39. The description of the bruising is accepted. I am not able to find on a balance of probabilities that the bruising was from an adult hand and consider that Dr S was perhaps too quick to exclude the possibility of this being a child’s hand without further investigation of the bruising.

Tests carried out by the paediatric treating clinicians at the hospital have ruled out any medical cause that would sufficiently explain the extent and location of the bruising seen on G’s abdomen.

40. It is right that tests to date have not revealed any underlying medical condition. However, there is objective evidence that this is a child who bruises easily and Dr H is clear that G has “fragile capillaries, bursting under pressure to produce petechiae” (Email 5^th May 2017). Fragile capillaries may or may not be the result of an undiagnosed medical condition. Dr H is clear that connective tissue disorders are ‘difficult to diagnose, particularly in babies “(E5b). The fact that the doctors have not yet identified an underlying medical condition does not prove on a balance of probabilities that there is not one or that non-accidental injury is the likeliest cause.

41. It is not for the parents to provide an explanation or to prove they are not perpetrators but for the local authority to prove that they were. Ruling out a number of options does not mean that the last option standing becomes proved.

The treating paediatric professionals are of the view that the bruising pattern is strongly suggestive of non-accidental injury and these bruises, given the extent and location of the bruising, were caused by handling of G in excess of what would be reasonable.

42. For the reasons given above, I do not accept there is evidence to support the view that G had to have been handled in a way that would be regarded as ‘in excess of what would be reasonable’ in order for his injuries to have been inflicted.

43. Dr H states G bruises easily and acknowledges that bruises were caused to G when he had his immunisations and blood tests. It cannot be suggested that medical staff used excessive force or roughly handled G in order to cause bruising, indeed the registrar told the parents she handled him very carefully, yet bruises were caused.

44. Given that G bruises easily and petechiae appear to be distributed in a fairly widespread way beyond the site of the pressure, I am not able to conclude on the evidence before me that the fact of G’s injuries arising on his abdomen, which is after all an area where babies come into contact with the arms and hands that are holding them all the time, can be relied upon as a ground for believing that he has been handled in a way that is in excess of what is reasonable.

G’s treating consultant paediatrician has expressed the view that the bruises are either as a result of an injury inflicted non-accidentally by an adult or as a result of an accident which has not been disclosed by the adults, which is concerning.

45. For the reasons given above, I do not accept Dr S’s view.

The parents have not provided an explanation that would adequately explain the bruising to the G’s abdomen.

46. For reasons given above I do not accept that the absence of an explanation in the particular circumstances of this case is a ground on which I can form a reasonable belief that interim threshold is made out. As a matter of fact the parents have in my judgment posited some explanations which are reasonable, logical and worthy of consideration, but they were not obliged to do so. In the particular circumstances of this case in my judgment the absence of an explanation does not give rise to concern on my part about the parents, to the contrary - on the evidence I have seen it would seem that they have been open, co-operative and desperate to find an explanation for G’s bruising so that they can respond and care for him as best as they are able.

Given the views of G’s treating clinicians and given the absence of an adequate innocent explanation for the injuries at this stage, the local authority asserts there are reasonable grounds to believe that G was suffering significant harm and that G and F were at risk of suffering significant harm and that the threshold criteria under s.38(2) are made out.

47. The test is ‘reasonable grounds to believe’ which is of course a lower standard than for final threshold where I must be satisfied on a balance of probabilities that threshold is crossed.

48. However, what is asked for is more than just a belief, more than just a gasp in response to a photo, but a belief based on ‘reasonable grounds’. I have listened very carefully to Dr S’s view and I have read and considered all the evidence in the bundle. I recognise and respect the opinions of an experienced paediatric consultant, however, in the particular circumstances of this case, for all the reasons I have given, I am not persuaded that her conclusions form a solid foundation, or reasonable grounds, for a belief that G has been the victim of a deliberately inflicted injury by either of his parents, nor that either one of them might have accidentally injured him then sought to conceal it from each other and from professionals.

49. I am not therefore satisfied on a balance of probabilities that interim threshold is made out.

50. The application for an interim care order/interim supervision order is dismissed. In my view the application for a care order itself should also be dismissed.

Post-script

51. Having given the local authority some time to consider its position in light of my indication, the local authority indicated that it would not oppose the dismissal of its application dated 15^th May 2017.

Joanna Vincent

HHJ Vincent

20^th June 2017