AND IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF X and Y
B e f o r e :
|OXFORDSHIRE COUNTY COUNCIL||Applicant|
|X and Y|
|(Acting through Children's Guardian, ID)||3rd Respondent|
James Turner, instructed by Turpin and Miller LLP, solicitors for the First Respondent mother
Chloe Wilkins, instructed by Brethertons, solicitors for the Second Respondent father
Andrew Leong, instructed by the Head Partnership, solicitors for the children's guardian
Hearing dates: 13th, 14th, 15th,16th and 23rd March 2018
Crown Copyright ©
Findings sought by the local authority and parties' positions
'On the evening of 31st October 2017 and overnight to the morning of 1st November 2017, it was evident to mother that Y had suffered an injury to his lip and that he was in some distress. Mother did not seek medical attention for him until 2.30 p.m. when she arrived at Abingdon minor injuries unit. With hindsight mother is distressed that Y endured significant pain and wishes that she had known how seriously he had been injured so she could have sought medical attention for him sooner.'
The term 'non-accidental injury' may be a term of art used by clinicians as a short hand and I make no criticism of its use, but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. …. If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.'
'Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence and exercise a totality of the evidence to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof.'
(Re T  EWCA Civ 558 at para 33, per Butler-Sloss P.)
'A factual decision must be based on all available materials; i.e. be judged in the context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.'
(A County Council v a mother & others  EWHC Fam 31 Ryder J)
'It is important to remember that (1) the roles of the court and expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.'
'In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.'
Conclusions and analysis
'Y suffered an acute spiral/oblique fracture to the midshaft of the left femur with moderate angulation and displacement, causing soft tissue swelling. The fracture was caused non-accidentally:
(i) By bending or twisting to the femur or a direct blow to the femur or a combination of forces;
(ii) Inflicted upon Y by CD between 6.30 p.m. and 7.15 p.m. on 31st October 2017;
(iii) As a result of the use of excessive force, far beyond that used in normal childcare or rough handling.'
- Dr Robinson's opinion is shared by Dr Watt, and the treating clinicians which adds weight to his view;
- This is an acute fracture, there is no evidence of delayed onset;
- There is evidence that Y's response only around ten to fifteen minutes after the fracture occurred was in fact exactly as might be expected, and Dr Robinson was taken carefully through the text messages and mother's evidence about this;
- There is no evidence to suggest that Y is a baby with an abnormal resistance to pain;
- The only evidence to say that he did not scream out is from the father, who has given very inconsistent evidence about Y's level of crying, and there is no other evidence to corroborate what he says;
- It is inherently improbable that Y would sustain an injury and have a significant but delayed reaction to it.
'Y was crying before I put his leg into the babygro because he wanted his bottle. He carried on crying while I got him changed. I was trying to change him quickly and on reflection I may have put his leg in more quickly than I originally thought. This was not intentional but was due to wanting to get him warm and dressed so that I could give him his bottle. I thought I was being over cautious and was doing it quickly so he would not get cold. I think I was probably more speedy than usual but I would not say that I was rougher with Y. I have thought about this carefully and I do not think I intentionally moved his leg any differently to how I would usually change him.'
(i) On balance, the medical evidence is not supportive of Y hitting his father's collar-bone as the probable cause, and points towards a finding that the most likely cause was the bottle being pushed into Y's mouth. It is accepted as a possibility but looking at the four elements of a satisfactory explanation; again, time and mechanism are there, but force and the evidence of it being a significant event and the child's distress evident are not;
(ii) If Y had injured himself when hitting his father's collar bone, one would expect his father to describe him crying out in pain, but he does not;
(iii) Dr Robinson suggested there would have been a lot of blood, but I rely on the eye-witness accounts that there was spotting or specks of blood to be seen on the teat, and a bit of blood in Y's saliva, giving it a pink tinge. Nonetheless, the gum would bleed as soon as the injury occurred. In the circumstances, if after striking his mouth on his father's collar bone, and Y was then playing with the bottle as father suggests, folding over the teat, taking the bottle then spitting it out, one would expect the father to have seen blood, but he says he did not see it until he and the mother saw it together. This would suggest that even if Y did hit his head on his father's collar bone, he did not suffer injury at that time;
(iv) By contrast, in the police interview the father gives a detailed description of Y screaming when the bottle hit his lip, and not before:
'He didn't … he didn't … looked like he was just playing with it, he was … then I think the bottle went and .. he .. moves his head, then the bottle must have hit his lip, then … the screams started and .. mm … [inaudible] having the bottle and he's … gently had the bottle, I think his head's come forward with it, must have touches his lip 'cause he gets quite close to the bottle 'cause tries and … like fold the teat occasionally, and he's taken the bottle then spat it out then he's screaming.'
He was asked when did Y scream, and he answers, 'I know I was on the bed with him, then AB came in, said are you all right and I said, yes, I'm feeding him. Then he screamed …..
I think from AB's come in and said are you all right, I said I'm feeding him. Then he's had a little whinge, then I put the bottle back in and … he's tried a bit more, then I ... bottle must have hit his lip more. He give a big cry and AB's come upstairs to take him off me.'
I note that the father distinguishes between the soft teat coming into contact with Y's mouth and the actual bottle itself touching his lip, and he describes the bottle as 'hitting' Y's lip.
(v) So far as Dr Watt's four criteria for an explanation, this description satisfies the test. The mechanism for the injury is the bottle striking the frenulum, the injury causes bleeding immediately which is noticed on the bottle apparently within moments, the force used is indicated by the use of the word 'hit' or 'hitting' the bottle rather than touching or playing with the teat, and this being a significant and memorable event is marked by Y screaming out in pain;
(vi) The father did not offer the collar bone incident as an explanation to the mother, even when directly questioned by her. Her friend P says she was asking and asking, but he gave no explanation. If the father genuinely thought this was the cause of the injury she was so worried about, I would expect him to have told her, either that evening or the next day;
(vii) While I accept that it is distressing and difficult to look after babies who are persistently crying and even the most experienced parents often cannot work out what on earth is wrong with them, this was a second-time father. His version of events is that Y was just playing with the teat, not taking any milk. In the circumstances, it seems improbable to me that he would decide to stand up and burp a child who had not fed;
(viii) The father called AB at 7.03 p.m., he says to tell her that he was about to give Y a bath. If that is the case, then there were only twelve minutes before the mother returned home. I am not wholly persuaded that the father could have run the bath, given Y a bath, dried him, got him dressed, sat down with him to give him milk, stood up to burp him, then sat down with him again all before AB returned home. It is more likely in my judgment that he is unlikely to have been able to do more than give him the bath, dressed him hurriedly, and sat him down to give him his milk. However, I cannot be sure about timings as I do not know whether the phone call at 7.03 p.m. really was to tell AB he was about to run a bath, he may have started much earlier, and it is not wholly implausible that, particularly if rushing, the father could have done all that in twelve minutes, so this element of the evidence has not carried very great weight with me;
(ix) The father accepted in cross-examination that Y had been crying continuously, that he could not settle him, that it seemed to be that Y would not settle for him, and that the reason he was rushing to get him dressed was in order to give him his milk. The father admits to feeling nervous and panicky, not feeling in control, and expecting the mother back any time and wanting her to see Y settled. Against this background, it is likely that the father would be feeling some urgency to get Y to take the bottle;
(x) Given my finding that the father had just inflicted a serious injury on Y's leg and that he would be presenting as highly distressed and crying, the reaction on the father must have affected his ability to care for Y thereafter, and I think it unlikely that he would have been gently holding him to try and burp him, and on a balance of probabilities, very much more likely that he would have been trying to get him to take a bottle with a degree of panic, loss of control and urgency.
Knowledge and delay in getting medical attention – paragraphs 3 and 5
Risk of harm – paragraph 6
23rd March 2018
Family Court, Oxford