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X and Y (fact finding), Re  EWFC B15 (23 March 2018)
 EWFC B15
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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.
IN THE FAMILY COURT AT OXFORD
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
||X and Y
||(Acting through Children's Guardian, ID)
Justine Ramsden, instructed by Oxfordshire County Council for the Applicant
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
HTML VERSION OF JUDGMENT
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- I am concerned with X who will be four in May, and Y, who is six months old. Until 31st October 2017 they lived together with their parents, AB and CD. This was a normal, happy family, the mother was the primary carer for the children, the father went out to work as a barber. They were buying a new house and, although at that time they were understandably tired and tested by the demands of looking after an active three-year-old girl and a new born baby, and had the usual money worries and occasional disagreements that come with family life when children are small, their relationship was stable. Life was uncomplicated. Both parents are of good character, there have never been any concerns about their parenting, and there has been no local authority involvement in their lives.
- On the evening of 31st October 2017 Y, who was ten weeks old at the time, sustained two serious injuries; a spiral fracture to the mid-shaft of his left femur, and a torn upper-lip frenulum. He was being looked after by his father. Y was not taken to hospital until the following day, but after having been assessed by treating doctors, they concluded that such injuries in a ten-week old baby were likely to have been non-accidental, referrals were made to social services, and the father was arrested and interviewed by police on suspicion of causing grievous bodily harm to his own child.
- The life of this family has been completely shattered as a result of these events.
- Proceedings were issued on 8th November 2017. I made interim care orders on 13th November 2017, the care plans provided that the children would continue to be cared for by their mother but would live in the maternal grandmother's home. She and her partner have shown a huge commitment to her daughter and grandchildren thus enabling the children to remain in the care of their mother during these proceedings. Y was in hospital for two weeks, his leg in traction.
- The following crucial timings are not in dispute. The father returned home from work at about 6.25 p.m., to find the mother and his children still out, having been with the maternal grandmother. They returned home at about 6.35 p.m. Y was asleep in his car seat. At about 6.45 p.m. the mother took X out trick or treating with friends, leaving Y with his father. The father called the mother at 7.03 p.m. but she didn't answer. The mother returned his call at 7.09 p.m. but he didn't answer. She returned to the house at about 7.15 p.m., with X and her friend P. The father was upstairs with Y in the parents' bedroom, trying to feed him his bottle. Y was crying and seemed inconsolable. The father reassured the mother that things were ok, but Y then continued to cry and the mother came upstairs. The parents saw that there were specks of blood on the teat of the bottle and then discovered that his upper frenulum (referred to by the parties as his upper lip) was bleeding.
- Y had a very troubled night, but both parents say they thought that his pain and distress was because of the injury to the upper frenulum, which was preventing him from feeding as he normally did. It is the local authority's case that the father knew by this time that Y had also sustained an injury to his left leg, but concealed this from the mother, and this led to an unnecessary delay to her seeking medical treatment for him, which put him at risk and caused him unnecessary further pain and distress.
- The next day the mother was still worried about Y; he was not feeding, and she then noticed that he was not using his left leg. She went to the local minor injuries unit and was then referred to hospital, where x-rays were taken and the treating clinicians identified the two injuries. Y stayed in hospital for two weeks, his leg in traction.
Findings sought by the local authority and parties' positions
- The parties have been ably represented in this emotionally charged and difficult case, and I am grateful to all counsel for the diligent but sensitive way in which the evidence has been thoroughly explored with the parties.
- The local authority, represented by Miss Ramsden, has agreed the final threshold document with the mother, and seeks findings only against the father. A copy of that document is annexed to this document. Paragraphs 1, 2, and 3 allege that the father caused the two injuries to Y non-accidentally, and that he knew he had caused the injuries to Y and failed to seek immediate medical attention. Paragraph 5 alleges that the father concealed the true cause of the injuries to Y's upper lip and left leg from the mother, medical professionals, police officers and social services. Paragraph 6 alleges that X and Y are at risk of suffering physical and emotional harm from the father as a result.
- The only paragraph relating to mother is paragraph 4, alleging that she delayed seeking medical attention for Y. She agrees the following paragraph:
'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.'
- Represented by Mr Turner, the mother's position is not one that actively seeks findings against the father, but she is clear that she does not think he has been telling the truth about Y's injuries, and she wants to have answers. She wants to know what happened to her son in the thirty minutes that she was away from him on 31st October 2017.
- The findings sought against the father have been broken down into a schedule and his responses are set out beneath each constituent part of the allegations.
- The father, represented by Miss Wilkins, accepts the two injuries happened while he was looking after Y. He suggests that Y's leg was broken by him when he was changing Y and putting his leg into his babygro, and that Y tore his frenulum when he was holding him to burp him and Y's head lurched forwards and banged against his collar bone.
- The father says that he was not aware of either injury at the time. He does not accept that either injury was 'inflicted' by which I take him to mean 'deliberately inflicted'. He denies that with regard to either injury, he used 'excessive force, far beyond that used in normal childcare or rough handling', as is alleged.
- The father denies that he concealed Y's injuries from the mother; he says that she and he discovered that Y's mouth was bleeding shortly after she returned home, but did not regard it as an injury needing medical attention. He says that neither he nor she realised that Y had any other more serious injury until the following day.
- The guardian, represented by Mr Leong, takes a neutral stance in the fact-finding but has sought on behalf of the children to explore some parts of the evidence with the parents.
- The Court may only consider whether to make a care or supervision order if satisfied that the threshold test at section 31(2) of the Children Act 1989 is crossed, namely that at the time protective measures were taken, the children had suffered or were likely to suffer significant harm, attributable to the care given to them by their parents, and that this care was not what it would be reasonable to expect from a parent.
- On the basis of father's admission that Y sustained two serious injuries while in his care, there is no doubt that threshold is crossed, but it is important still for the Court to hold this fact-finding enquiry, and to try to identify as precisely as possible, the nature of the harm suffered or risk of harm faced, to inform any subsequent assessments of the risk and how it may be managed.
- In its threshold document, the local authority pleads that the injuries to Y were 'non-accidental'. In Re S (A Child)  EWCA Civ 25, Ryder LJ considered the use of the terms, accidental or non-accidental injury:
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.'
- The burden of proof is on the local authority making the allegations to substantiate them. The standard of proof is a balance of probabilities; disputed allegations only become proven facts if is more probable than not that they occurred.
- Findings of fact must be based on the evidence. In the case of Re A (a child)  EWFC 11 the President of the Family Division emphasises that in any case it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely, and that findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence), and not suspicion or speculation.
- The burden of proof rests with the local authority, there is no requirement upon the parents to satisfy the Court that these injuries were non-accidental. In Re M (fact-finding hearing: burden of proof)  EWCA Civ 1580, the Court of Appeal warned against the dangers of inferring that because the parents had not given an explanation for an injury, the real explanation must be a sinister one.
- I must take account of all the evidence and each piece of evidence in the context of all other evidence:
'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)
- When considering the evidence of the witnesses I must take care to identify those parts of their evidence which is part of their direct recollection, and those parts of their evidence where they are reporting what someone else has said, and to assess the relative weight of such evidence accordingly.
- I remind myself of the direction that, in a criminal case, would be called the 'Lucas' direction because it is based on the case of R v Lucas  QB 720. If proved that a person has lied, the Court must analyse the relevance of the lie to the issues in the case. A lie may be in relation to an issue that has no relevance to the real issues before the court. Lies may be told for many reasons. A person may lie out of a sense of shame, misplaced loyalty, humiliation, embarrassment, panic, fear, confusion, emotional pressure, a desire to conceal other misconduct or for many other reasons.
- The evidence of the parents is very important and the Court must be able to form a clear assessment of their credibility and reliability. I further remind myself that credibility alone cannot decide this case and that, if a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything.
- Any findings of fact are for the Court to make based on the evidence before it. No weight should be given to the opinions of others about the credibility of a particular witness.
- Attention must be paid to the opinion of medical experts, but those opinions must be considered in the context of all the other evidence. I have been referred to the cases of Re U (Serious Injury: Standard of Proof); Re B  EWCA Civ 567,  2 FLR 263 at para , and A County Council v K, D and L  EWHC 144 (Fam),  1 FLR 851 in which Charles J said:
'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.'
- The court must be alive to the possibility of an unknown cause. I have been referred to Re U (Serious Injury: Standard of Proof); Re B  EWCA Civ 567,  2 FLR 263), and the criminal case of R v Henderson and Butler and others  EWCA Crim 126 in which Moses LJ said, 'where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted.'
- In Re R (care proceedings: causation)  EWHC 1715 Fam, at paragraph 19, Hedley J said:
'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.'
- With all this carefully in mind, I turn next to consider the evidence in the case.
- I have read and considered the contents of the bundle, which includes witness statements from X and Y's social worker, from the parents, the maternal grandmother, the mother's friend P, as well as the expert reports, Cafcass analysis and contemporaneous notes, including minutes of safeguarding meetings, medical records including letters from treating clinicians, transcripts of police interviews, and contact records.
- Dr Watt is a consultant paediatric radiologist, with extensive clinical experience and as an expert in non-accidental injury cases. Dr Watt was very clear that he could not give expert evidence about Y's clinical presentation following injury, and deferred to the opinion of Dr Robinson.
- Dr Watt identified the fracture that Y sustained as likely to be caused by either indirect bending or twisting to the femur. He said a direct blow or impact would be a less likely mechanism but still possible. He explained that as well as a twisting force applied directly to the point of fracture, the type of fracture Y had could be caused by pressure applied at each end of the bone, causing it to bend; the femur is fixed into position at the hip joint. If the leg were fully extended and then a pushing and/or twisting force was applied from lower down the leg back towards the hip joint, the bone will 'bow'. If the force continues, the bone will snap in the middle as it bows and then breaks.
- Dr Watt explored the explanation given by the father for the fracture injury. He said in his report that in order for an explanation to be adequate, it must fulfil four criteria; (i) timing, (ii) mechanism, (iii) force, and (iv) identify a memorable incident of significant distress to the child.
- There is no issue about timing; that father accepts injury occurred in the forty-five minutes that Y was in his care. Dr Watt accepted that the mechanism could be a twist of the leg to get into a Babygro.
- However, when it came to force, while Dr Watt was clear that the level of force to cause the fracture could not be specified, he said a fracture to the femur could only have been caused by a force in excess of normal handling. So far as reaction was concerned, he was clear that Y's pain response at the time the fracture was caused would be immediately obvious to his carer. Dr Watt therefore does not consider the causation of the fracture adequately explained by the father's description of rushing to put Y's leg into the babygro, but not using excessive force, and Y not having any noticeable response at the time.
- I asked Dr Watt whether he could say that the fractured bones seen on the x-ray would have moved much from their position when first inflicted – Y did not go to hospital until the afternoon of the next day. Dr Watt said that there would be an immediate muscular reflex to the break, and the leg would pull back causing the bones to overlap, but he seemed confident that the bones would not be displaced significantly over the next twenty-four hours, so the injury seen on the X-ray was likely to be in that position almost immediately after the fracture was caused. The fracture is thus described by Dr Watt, and the treating clinicians as an acute fracture.
- There is no evidence of any underlying medical condition that would suggest Y was more likely to sustain fractures than other babies of his age.
- Dr Watt's oral evidence was consistent with his report, and he gave clear explanations for his opinions which were informed by his thorough knowledge of the evidence in the case and his evident clinical expertise.
- Dr Robinson was also an impressive witness, evidently extremely well qualified to provide expert opinion informed by his training, significant clinical experience, experience as an expert witness and knowledge of relevant research.
- Dr Robinson agreed with Dr Watt that the father's explanation of how the fracture was caused matched up in terms of a twisting or bending mechanism, but not in respect of the force required nor Y's response. Dr Robinson referred to his clinical experience and to research and described the force required as 'considerable'. He said that he was in no doubt that Y would have been in very great pain at the time the fracture was caused and that he would have screamed out in agony.
- He was taken to some research suggesting that not all children exhibited a pain response upon fracture, but did not regard it as helpful or relevant; the research covered children who had sustained a wide range of fractures to their upper limbs; it might not be surprising if an older child who sustained a very minor, slow developing fracture was not recorded as crying in response. In Dr Robinson's view, a non-mobile baby like Y sustaining a fracture of this severity would have had a significant pain response that his carer could not have failed to notice.
- The evidence from Y's mother was that since her return home at around 7.15 p.m. and all through the night that followed, Y was crying and she was extremely worried about him. Albeit her very first reaction as she came into the house was that Y's cry was an 'overtired' cry, it is clear from the evidence of texts to her friend P, and her mother, her description to the police in interview a few days later, and her own recollection set out in her witness statement and given to the Court, that Y was screaming and crying in pain, that he could not be consoled, he would settle if she held him in her arms, but as soon as she put him into his Moses basket, he would start crying again. Dr Robinson was clear that her description of Y during this time was that of a child who had sustained a serious injury.
- The father says that Y's torn frenulum could have been caused when he held him against his chest to wind him and Y's head lurched about, his back arched, and his head fell forward and bashed against the father's collar bone. Dr Robinson acknowledged that Y, in a great amount of distress as a result of the fracture, could well lurch around as described, and this could be a possible way in which the frenulum could have been torn. However, he had never seen an instance of this, either in his own clinical practice nor in any research. He also said that the force required to cause such an injury would again need to be considerable, and any carer would immediately be aware that this had been a significant event causing distress to the baby.
- I was more doubtful as to whether the torn frenulum would have bled to the extent Dr Robinson suggested; he said there would have been a lot of blood. But both the mother and father said they saw specks of blood on the teat, and the mother described only traces of blood in Y's saliva making it a bit pink, and they did not see blood except in his mouth at the site of the torn frenulum. The maternal grandmother has also described this in her evidence. On a balance of probabilities, I regard these accounts from the eye witnesses more credible and conclude that there was not a great deal of blood at this injury site as Dr Robinson suggests.
- Otherwise, Dr Robinson's evidence was powerfully persuasive. His report was clear, his conclusions well explained and well-reasoned, based on a thorough analysis of the evidence and his evident clinical expertise.
- The mother's evidence was compelling. She had a good recall for details, her oral evidence and witness statement were consistent with what she said to the police when interviewed shortly after Y was injured, with contemporaneous evidence from Y's medical records and text messages, and with evidence from other witnesses. She was fair, accepting of father's good points, not seeking to put any theory of her own forward, but just trying to provide as much information as she could so as to get answers to her questions about how her son was so seriously injured. She would desperately like to know. I found her to be a reliable witness.
- She has clearly suffered a great deal since 31st October 2017 and no one could have anything but great sympathy for her.
- The night that she spent with Y was clearly a dreadful experience. She was holding him in her arms, trying to settle him, but every time she put him down he cried again. I do not doubt that she has over the past few months felt at times as she described, insane with worry, and that she has felt guilty for not taking him to the hospital sooner, but in my judgment in all the circumstances, she should not blame herself for not discovering Y's injuries sooner. She has done all that she could for her children both then and has continued to provide loving and consistent care to them throughout.
- The father's evidence was characterised by contradictions. There were parts of his evidence that were compelling and persuasive, but other parts of his evidence contained blanks, significant inconsistencies, and explanations that did not seem plausible.
- He has given two statements in these proceedings, one in November and one in January (although I understand prepared on instructions given in December). It is only in the second statement that he describes how he thinks he may have caused Y's leg fracture by being in a rush to put his babygro on.
- The father was interviewed by the police for about two hours on the evening of 1st November 2017. I have watched the DVD recordings of the interview.
- In the police interview, he is often animated, using actions to demonstrate how he lifted Y or held him, or how Y moved, and using his voice to mimic different cries; a 'full-on' cry compared to a gentler, more 'sing-song' cry. At times he appears to be thinking, remembering and re-enacting, using his hands naturally to show how he gently guided Y from under the playmat arch, and gently picked him up, or as he reflects Y's facial expression as he started to cry, sticking his bottom lip out as he recalled him to mind. When he described Y in his car seat he tipped his head to one side, to show how he was sleeping. With these actions he appeared to me to be a man with empathy for his son, able to picture him clearly, to take notice of his every reaction and response, and to be able to hold him in his mind. He knew the details of Y's routines, and seemed perceptive to his needs; for example, he understood Y's mother wanted to leave Y at home while she went out so that Y would not get cold, and, as Y had been asleep in his car seat, she hoped that the father could play with him, stimulate him and keep him awake a bit in the evening, so that he would sleep better that night.
- There is no evidence that the father has ever shown any flash of temper or angry temperament or even been impatient with his children or his partner. He adores X, and she loves him. He has never been in trouble with the police, had a good relationship with his partner, family and friends, had a regular job as a barber, and was doing his best to live life, supporting his family. I fully accept that he is devastated by the injuries that have been caused, and the consequences that have followed for his children, and his family.
- On the other hand, I detected an undercurrent to the father's evidence, which came through particularly in the police interviews and his oral evidence, that he had felt excluded and left out when it came to Y. He said that he had been out working most days. Y was asleep when he left in the morning and often AB had given him a bath and got him ready for bed again by the time he got home, so he had not spent much time with him. Y was a 'mummy's boy', he said AB was in charge so far as the kids were concerned and on a number of occasions he said that he would be 'in trouble' with her, or get shouted at if he did something wrong. The sense was he thought he couldn't do anything right when it came to Y. He told the police that on the evening of 31st October, he had been pleased to have the chance to look after Y and to play with him, to be his father. Both the mother and father described Y as 'difficult' compared to X; he had been put on special milk, and had not been an easy baby to settle. There was a further strand to the father's evidence, drawn out in particular in answer to questions from Mr Turner, that it weighed quite heavily with him that he could not seem do anything to settle Y, but as soon as AB stepped in to help, his perception was that Y would immediately respond to her and settle straight away. In this strand of evidence, the father is less empathetic of Y and there was a sense of frustration there and perhaps a feeling that Y was rejecting him. I should make it clear that I would regard none of these feelings as uncommon or surprising in the father of a new-born baby, but I am doing my best to describe the contrasting elements of the father's evidence.
- The most noticeable contrast in the father's evidence is that he has given very detailed descriptions of many elements of the half hour or so in which he was caring for Y alone, and said to the police repeatedly he wanted to give them all the information he could, but there are very significant gaps, blanks, when it comes to the crucial details about the moments in which the injuries were caused.
- The father was not able to give any explanation at all about how Y's leg injury had happened when asked by AB, or in the police interview, nor in his first witness statement.
- I noticed another significant contrast about half an hour into the police interview, between what the father was saying and his own presentation. The father described getting Y dressed into his babygro after having given him a bath and the police officer asked him how Y was at that point. He said, 'Er .. starting to it of a cry 'cause he wanted his bottle. But he seemed quite happy, he was just like … just wanted his bottle.' He is asked was Y doing anything, and he says, 'Erm just arms in the air and kicking his legs that he wants .. his bottle.' Almost as soon as he said this, his head dropped, he put his hand to his forehead, and to my mind, he looked crushed, and a bit sick. He was asked if he was ok, he said, with his head down, yes, I am just nervous and scared, and I want to give all the information that I can. We watched this on a DVD in the hearing and I asked the father if he could recall what had passed through his mind at this point to bring about such a change in him, but he was unable to help me, he said he was 'not 100% sure.'
- The father was questioned by four barristers for a whole morning, several times he became very distressed. I am in no doubt that he regrets bitterly the events of 31st October, that he loves his children a great deal, and that he has great respect for their mother.
- Under skilful cross-examination from Mr Turner, the father made a number of very significant admissions, and much of what he said departed significantly from his previous statements. He said that he knew AB had told him just to play with Y and she would sort him out for bed when she returned, but he wanted to do something to help AB, to give her a break, and he wanted to spend some time with Y, to be his dad. This was the first time he had bathed Y by himself, although he had been around when AB had done it, and he had experience of bathing X when she was a baby. He accepted that he had been in a rush to get Y dressed after giving him a bath, and he said, which he had never previously admitted, that he had been feeling nervous, a bit panicked and not 100% in control. Contrary to what he said earlier, he said that Y was crying, had been crying since the bath, and he interpreted that as a cry for milk, he carried on crying and he was trying to get him dressed quickly so that he could take him to the bedroom and give him his milk. Far from being happy, it would seem that Y had been grizzly and unsettled, and the father was struggling to calm him, becoming increasingly stressed as Y continued to cry, and he expected the mother back any moment.
- As the mother said, the father had been a loving partner and a fantastic dad, she had never any reason to doubt his abilities to look after the children, or his love for them and her. She did not initially believe that he could have hurt their son. However, she has been asking him repeatedly since the evening of 31st October what happened in that half hour, and got no answers. She knows him very well. In November 2017 she said that she had no doubt in her mind that the father had done something that he was unable to admit to.
- In my judgment this observation of the mother's is insightful, and having had regard to all the evidence in the case, I have come to the conclusion on a balance of probabilities, that she is correct.
- The question for the Court is what has the father done and can it be established, as the local authority asserts, that Y's injuries were caused non-accidentally.
Conclusions and analysis
- I will deal with paragraph 2 of the threshold document first, as that deals with the fracture which occurred first in time:
'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.'
- This fracture can only have been caused by the person caring for Y. Having regard to Dr Watt's and Dr Robinson's evidence, I am satisfied that it was more likely to have been caused by a bending and/or a twisting to the femur than a direct blow.
- The mechanism described by the father of holding Y's leg by the ankle and manoeuvring or manipulating it into the leg of the Babygro would be consistent with the indirect bending with a twisting element described by Dr Watt; the hip holds the bone in a fixed position and when force is exerted at the other end, the bone is bent and eventually snaps in two.
- However, the medical evidence was unequivocal; the force, while not measurable, would have been well in excess of what would be used in normal childcare or rough handling.
- Dr Robinson said that he was in no doubt that this would have been agony for Y, that he would have screamed out in pain and that the person who caused this injury to Y, whether deliberately or otherwise, could not have failed to notice that injury was caused. Dr Robinson's evidence was that a carer may have felt a snap or the leg giving as the fracture happened. Y's presentation from the point his mother returned to the house and for the next twenty-four hours was consistent with a child who had sustained a very serious injury. There is no evidence to suggest that he was a child with an abnormal response to pain. Although Y's leg was not stabilised in traction until nearly twenty-four hours later, the evidence of Dr Watt was that the broken bones would have been in the position seen in the X-ray almost immediately the fracture took place, the muscles retracting protectively and bringing the lower part of the bone back towards the top part so that it overlapped.
- This is described by the experts and treating clinicians as an acute fracture, i.e. caused quickly by a trauma rather than delayed and gradual. Dr Watt was clear that this fracture would not have developed over time. So it is unlikely that Y would have had a slow or delayed onset of pain.
- Miss Wilkins invited me to be cautious about the weight that I give to Dr Robinson's evidence as to Y's presentation and the level of his distress immediately upon his leg being fractured, because he was emphatic about the amount of blood that would have been at the site of the torn frenulum, but that view was inconsistent with the evidence. Miss Wilkins says, he was emphatic about the blood but proved wrong, he is emphatic about Y's pain response and could also be wrong. As to that:
- 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;
The absence of a plausible explanation for an injury is not in itself evidence that the explanation must be a sinister one, but it is a factor that is relevant when assessing all the evidence in its context.
- It is inherently improbable that Y would sustain an injury and have a significant but delayed reaction to it.
The father did not mention anything about this significant event to Y's mother either when she returned home or later in the evening, or when specifically asked by her in a text conversation the next day. When she first discovered Y's leg was broken, she texted the father and told him Y had a really bad break, 'it needed force to break it, and his mouth needed force', she said are 'you sure there is nothing'. His reply was 'Am sure, I've told you everything, I wouldn't lie to you, I would never hurt Y'. Given she had not suggested that he was lying or that he had hurt Y, it was perhaps a curiously defensive comment.
The mother records the text conversations between her and the father from 1st November 2017 to 12th November 2017. He repeatedly reassured her that nothing had happened, he was careful with Y and he was telling the truth. On 12th November he gave a longer explanation of bathing Y, getting him dressed and giving him his bottle, of Y hitting his head on his collarbone, but does not mention his leg fracture.
He did not provide any explanation for Y's leg fracture in his interview to the police, nor in his first witness statement.
Having regard to all the evidence, I am satisfied on a balance of probabilities that the father did know that he was responsible for Y's injuries and he was deliberately holding back information from the mother and from the police. Whether this was because he just could not bring himself to admit what he had done to them or to himself, his sense of shame was too great, whether he was thinking of protecting himself first, or for another reason, I cannot say. I remind myself of the Lucas direction that there are many reasons that people may lie.
The father has got closer to telling the truth during the course of proceedings, but has still not been fully honest about what happened.
In his second witness statement prepared around Christmas time but served in January, the father did come to acknowledge his responsibility for the fracture, although he still maintained that he had not noticed anything at the time. He says at paragraph 3:
'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.'
This last phrase is curious; he doesn't think he intentionally moved Y's leg differently, not that he doesn't think he did move him differently. He is inching towards an admission of fault.
In cross-examination the father has given more information to the Court; that he was nervous, feeling panicked, that he was not feeling 100% in control and that he was rushing to get Y dressed so that he could give him his milk. The sense was that he felt under pressure because he might be in trouble with AB, or more simply that he just wanted things to be right before she came back.
I have had regard to all the evidence, in particular the medical evidence, the father's differing accounts, the delay in providing an explanation, and that the explanation when it has come does still not explain how a fracture could have been sustained. I consider it wholly implausible that Y could have sustained this injury and had a delayed onset of response to it; he must have cried out in pain immediately it occurred.
On a balance of probabilities I find that the father found himself in a position where he could not settle Y, that this caused him to feel frustrated, panicked and out of control, such that he handled Y in an excessive and rough manner, far beyond that used in normal childcare, thereby causing him to sustain a fracture injury. To this extent, this injury was inflicted non-accidentally, in the sense that it was not a pure accident that was unexpected and unintentional, but it was an injury that involves an element of wrong.
I am satisfied that the most likely cause of the injury was done by rough or clumsy handling in the course of the father caring for Y. I cannot say the level of force used, nor whether the father intended at that moment to cause harm to Y but at the least he appears to have been blinded as to the consequences of his lack of proper care for his son.
Having regard to all the evidence, I am not satisfied that it has been proved on a balance of probabilities that he deliberately inflicted an injury as any sort of punishment, or sadistically. I do not consider it more likely than not, or even likely at all, that Y's injuries were sustained at the same time by his being thrown against a wall. I have had particular regard to the expert evidence on this point, to the nature of the fracture, the absence of any other bruising on Y, and the evidence of all the witnesses.
I am satisfied that the father's remorse is genuine.
The allegations in respect of the torn frenulum are at paragraph 1 of the threshold document. The father has denied that he forced the bottle into Y's mouth. He has maintained his explanation of Y arching his back and lurching forwards so that his head banged against the father's collar bone as the likely cause of this injury. I have considered this carefully and note that Dr Robinson, while perhaps sceptical, did accept that the mechanism was plausible. If the father had just fractured Y's leg when getting him dressed, then it is certainly possible that Y would be arching his back and lurching around to try and get comfortable, or in response to the pain as his freshly injured leg came into contact with the father's body. Dr Robinson was careful to note that it is no longer the case that torn frenulums are presumed to be non-accidental, and gave examples of how such an injury could be sustained accidentally, albeit his clinical experience was of much older, active children. Dr Robinson did say however that he had never come across a torn frenulum being caused in this way in his clinical practice, nor seen it described in any research.
Having regard to all the evidence I have read and heard, I am not persuaded that Y's frenulum was torn by a collision with his father's collar bone, and I am satisfied that it is more probable than not that the injury was sustained when the father pushed the bottle into Y's mouth. My reasons are as follows:
(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.
Dr Robinson notes that rough handling during feeding, with the bottle forced into the infant's mouth may be interpreted as accidental, a momentary loss of control or part of a pattern of inflicted injury. I would accept that all of them would be consistent with the father's statement that he would never intentionally hurt his son. Given my findings in respect of the fracture, my conclusion is that this was more likely to be part of the whole picture of panicked, loss of control leading to lack of care so that the father became so focused on getting Y to take the bottle, that he lost sight of Y's needs and the risk of hurting Y.
I am not satisfied on a balance of probabilities that this injury was deliberately inflicted in the sense of him wanting to punish Y or cause him hurt on purpose.
Nonetheless, I am satisfied on a balance of probabilities that this injury was sustained by the father's rough handling of Y, beyond what would be used in normal childcare, and his pushing or forcing the bottle into his mouth to try to get him to feed. The force cannot be measured but exceeds normal care for an infant. I would accept that there was very little blood, and the injury healed relatively quickly; but nonetheless this was a significant injury, prevented Y from feeding properly and would have undoubtedly caused him additional pain and distress.
Knowledge and delay in getting medical attention – paragraphs 3 and 5
Even if the father did not know that Y's leg was broken, for the reasons given, I do not believe him when he says that he did not know he had caused injury either to Y's leg, or to his mouth. I have found that Y did cry out in pain, and his father would have noticed. He may have thought that he did not do lasting damage, and that Y then was screaming for comfort or milk, rather than because he was in pain, but even if that was the case, he must have known there was a significant event and he should have been checking Y to see what was wrong.
Where he was able to give such detailed descriptions to the police of so much of that evening, I do not believe that this event slipped his mind, and in my judgment, it would seem more likely than not that it in fact came vividly back to mind in the section of the DVD to which I have referred above, after he told the police that Y had been happy, waving his arms about, wanting nothing more than his bottle. This, as he has later accepted, was not true. Y at this stage was crying, in pain, and the father should not have pretended otherwise.
As the mother says, the father may be unable to admit to himself, certainly to her, and others exactly what has happened, and of course the reasons may be understandable. He may not understand himself what it was that drove him to treat Y the way that I have found he did, which on any view was wholly out of character, and inconsistent with his genuine love for his children, and his pride in his family and the role he saw for himself as their protector and supporter.
I find that he did know something had happened, that it was on his mind when he had the police interview, that he could not bring himself to tell AB, and then he could not bring himself to admit that he had missed his opportunity. He starts to hint at what happened in his second witness statement, this has now been sensitively explored with Mr Turner, and other advocates in Court. He admitted in Court to his rising sense of loss of control and panic, and that all was not well. Nonetheless, while he has made progress, he has still not in my judgment given the whole truth to the Court.
I am not able to say on a balance of probabilities that the father deliberately concealed the fact of the fracture. The mother did not know how badly Y had been hurt. He is not a doctor. He did not have too much involvement with Y's care after 7.15 p.m. that night. However, I am satisfied on a balance of probabilities, that the father did know something had gone very wrong in that half hour, that he had caused an injury to Y's leg, and then that he caused a further injury to his lip. It was his duty as a partner and a parent to be completely open with AB from the outset, and the consequence of his failure to do so was that there was a delay in seeking appropriate medical treatment for Y, and he suffered unnecessary additional pain, causing him very great distress.
It may be that the phone call from the father to her at 7.03 p.m. was to tell her and that was the first of many missed opportunities. I cannot know and should not speculate.
Risk of harm – paragraph 6
I have found that the local authority has established each of the findings on the threshold document from paragraphs 1 to 5, and as a consequence the finding must follow that X and Y are at risk of physical and emotional harm from their father as a result of the above. It is a matter for assessment what the level of that risk is, and what measures could be taken in order to manage the risk.
I sincerely hope that the father will be able to work with the local authority to participate in any risk assessment, whether carried out by them or another agency, and to learn to understand what led him to act in a way that on any view was so wholly out of character on 31st October. I hope that he will in time be able to find a way to provide reassurance to the local authority, the Court, but most of all to AB and to himself, that despite having caused these very serious injuries to his son and hidden the truth about them, he can once again play a significant role in his children's lives, and build up a loving, trusting and secure relationship with them.
23rd March 2018
Family Court, Oxford