JUDGE MOIR:
1
I am concerned with the welfare of two children, SS, who was born on [a
date in] 2015 so now aged three years two months, and ES, born on [a date in] 2017
so aged 11 months. Both are the children of AS. SS is the child of DA and ES
the child of AA whom, during the course of this judgment, I will refer to as
“father”. The children were made the subject of police powers of protection
which were exercised on 9 November 2017 and ICOs were granted on 10 November
2017. SS was placed and remains placed with paternal grandparents. ES, on
discharge from hospital, was placed in foster care.
2
North Tyneside Council issued proceedings on 10 November 2017. There
had been no children’s services involvement with any of the parents or either
of the children until 9 November 2017, when ES was admitted to hospital
presenting with acute subdural haemorrhages, extensive bilateral retinal
haemorrhaging and facial bruising. The doctors who treated ES at the RVI
thought at the time that there were two separate intracranial bleeds of
different ages. In fact, upon further investigation and examination, it was
determined that there was only one subdural haemorrhage. The clinicians were
of the view that ES had been shaken. SS was examined but there was no evidence
that she had sustained any injury.
3
At the time that ES was taken to hospital, MC, the paternal grandmother
of ES, was sleeping downstairs at the family property. She had been staying
for a few days to assist the parents in their care of the children and also
because she said it gave her the opportunity to see both the children together.
Mother and father deny that they caused any injury to ES. The evidence
provided by MC was, quite frankly, bizarre and incomprehensible in that
initially she denied any responsibility for causing ES’s injuries but, on 8
March 2018, she filed a statement within these proceedings that, on 17 November
2017 when she had ES in her care overnight, she thought that he was choking and
so she shook him to relieve the choking. She stated that she could not live
with herself thinking she had caused the injuries to ES, which had prompted her
to make the statement.
4
I heard oral evidence over six days from Matthew Clayton, a paramedic,
Helen Buick, the allocated social worker, from mother, AS, father, as I have
called him, AA and from the paternal great-grandmother, MC.
5
DA was represented throughout the proceedings, but it was not necessary
for him to give any oral evidence. The expert witnesses were not required to
give oral evidence. I read with care the reports provided to the court.
Reports were provided by Dr Rylands, consultant paediatrician, Mr Richards,
consultant paediatric neurosurgeon, Mr Newman, consultant paediatric
ophthalmologist and Dr Stivaros, consultant paediatric neuroradiologist. I
also had the opportunity to read the transcript of the experts’ meeting and the
answers to the questions which had been posed to them on behalf of each of the
parties.
6
Mother, father and paternal grandmother all accepted that the injuries
sustained by ES were inflicted injuries. The medical evidence that the retinal
and brain haemorrhaging were caused by a single, forceful shake occurring on 9
November was accepted by mother and father and it seems probably by MC. It is
the local authority who bring this case and thus it is the local authority who
bear the burden of proving it to the required standard of proof, namely the
balance of probability.
7
Findings of fact in these cases must be based on evidence, including
inferences that can properly be drawn from the evidence, and must not be based
on suspicion or speculation. When considering cases of suspected child abuse,
the court must exercise an overview of the totality of the evidence. The
opinion of the experts needs to be considered in the context of all of the
other evidence and the court must be careful to ensure that each expert keeps
within the bounds of their own expertise. There is no question in this case
but that the experts who provided evidence to the court were all distinguished
experts, who were very well aware of the boundaries of their expertise.
8
The evidence of the parents and any other carers is of utmost
importance. It is essential that the court forms a clear assessment of the
credibility and reliability of the parents and of course, in this case, MC. A
witness may lie for many reasons. The fact that a witness has lied about some
matters does not mean that he or she has lied about everything else. I will
make findings in this case that each of the witnesses - namely, mother, father
and MC - have at times told lies within the course of these proceedings. The
legal concept of the balance of probabilities must be applied with common
sense. The court can have regard to inherent probabilities, but that does not
affect the legal standard of proof. The fact that a respondent fails to prove,
on a balance of probabilities, an affirmative case that he or she has chosen to
set up by way of defence does not of itself establish the local authority’s
case.
9
I remind myself that, in addition, the court must guard against what has
been called the insidious reversal of the burden of proof as described by His
Honour Judge Bellamy in Re C & D (Photographs of Injuries) [2011] 1FLR 990 and also Re M (Fact Finding Hearing/Burden of Proof [2012] EWCA Civ 1580, per Ward LJ.
“There is in my judgment an
obvious disadvantage to parents in an approach which requires that they provide
an explanation for even the smallest bruise, failing which there will be an
automatic presumption that the bruise must have been an inflicted injury. Such
an approach subtly changes the burden of proof and puts the onus on the parents
to provide a credible explanation. As a matter of law, it is not for the
parents to disprove the suggestion that the general bruising is non-accidental
but for the local authority to prove it”.
10
I bear this in mind when considering the bruising upon ES’s face which
was seen on 9 November 2017. The court must weigh up all of the evidence,
whether given by an expert or given by lay witnesses. In considering lay
evidence, as per Macur LJ in Re M (Children) [2013] EWCA Civ 1147 at
paras.11 and 12, but specifically where she set out:
“Any judge appraising witnesses
in the emotionally charged atmosphere of a contested family dispute should warn
themselves to guard against an assessment solely by virtue of their behaviour
in the witness box and to expressly indicate that they have done so”.
11
I fully appreciate how difficult it must be for parents particularly,
but also family members, to give evidence in a court which is an unfamiliar
circumstance for them; and also in respect of matters which are so important to
them. It is not uncommon for witnesses to tell lies in the course of an
investigation or hearing. The court must be careful to bear in mind that a
witness may lie for various reasons. The fact that the witness has lied about
some matters does not mean that he or she has lied about everything. R v
Lucas [1981] QB 720. Where witnesses have made mistakes or told lies in
their evidence, there must be an evaluation by the court. In EPI Environmental
Technologies Inc v Symphony Plastic Technologies plc [2004] EWHC 2945 (Ch),
Peter Smith J said that the court should take into account the following:
“1. It is essential to evaluate
a witness’s performance in light of the entirety of his or her evidence.
Witnesses can make mistakes but those mistakes do not necessarily affect other
parts of their evidence.
2. Witnesses can regularly lie.
However, lies by themselves do not mean necessarily that the entirety of that
witness’s evidence is rejected. A witness may lie in a stupid attempt to
bolster the case but the actual case remains good irrespective of the lie. A
witness may lie because the case is a lie.
3. It is essential that
witnesses are challenged with the other side’s case. Often, a witness may face
difficulties in recollection, particularly lay witnesses who do not have the
benefit of being able to consult case records or notes of meetings”.
12
In Lancashire County Council v The Children & Ors [2014] EWFC 3 para.9, Peter Jackson J said:
“… faulty recollection or
confusion at times of stress or when the importance of accuracy is not fully
appreciated, or there may be an inaccuracy or mistaken record-keeping or
recollection of the person hearing that and relaying the account. The possible
effects of delay and repeated questioning upon memory should also be
considered, as should the effect of one person of hearing accounts given by
others. As memory fades, a desire to iron out wrinkles may not be unnatural -
a process that might inelegantly be described as ‘story creep’ may occur
without any necessary inference of bad faith”.
13
Again, I bear the advice of the learned judge in mind in approaching
this matter, particularly when the events with which I am concerned occurred
during a very short period of time when the participants in what was a
traumatic incident were desperate about the welfare of ES.
14
In considering expert evidence, as per Ward LJ in Re B (Care: Expert
Witnesses) [1996] 1FLR 667:
“The expert advises but the judge
decides. The judge decides on the evidence. If there is nothing before the
courts, no facts or no circumstances shown to the court which throw doubt on
the expert evidence, if that is all with which the court is left, the court
must accept it. There is however no rule that the judge suspends judicial
belief simply because the evidence is given by an expert”.
15
Clearly in this case, the evidence of the expert medical witnesses has
not been challenged. In considering the law which this court must apply, I
consider those matters set out by Baker J in Re L & M (Children)
[2013] EWHC 156 and more recently recorded by the President in Re X
(Children) No. 3 [2015] EWHC 3651, which cases set out the various
principles which the court must apply and those various principles to which I
have just referred. As I have already referred to, in this case, no one
disputes the medical evidence which is presented to the court. Neither is the
threshold in dispute, save as to the identity of the perpetrator who caused the
injuries to ES. The threshold is set out by the local authority as follows: in
order to establish that the threshold is crossed, the applicant relies upon the
following.
“(a) Whilst in the care of
mother, AA and MC, ES sustained the following injuries:
(i) acute subdural haemorrhage;
(ii) sub-acute subdural
haemorrhage;
(iii) extensive bilateral
retinal haemorrhages;
(iv) triangular shaped bruise
0.5cm x 0.5cm to the forehead;
(v) roughly circular bruise 1cm
x 1cm to the right cheekbone.
(b) These are all inflicted
injuries.
(c) The retinal and brain
haemorrhaging were caused by a single, forceful shaking episode. This occurred
on 9 November 2017.
(d) The bruising was caused by
blunt impact trauma. This was caused on or between 5 November 2017 and 9
November 2017.
(e) Mother, AA or MC have
inflicted these injuries on ES.
(f) Mother, AA or MC have failed
to protect ES from suffering these injuries.
(g) Mother, AA and/or MC have
all concealed the truth about the injuries inflicted on ES.
(h) As a result of having
witnessed and/or been exposed to the above, SS has suffered emotional harm.
(i) As a result of being removed
from the only home they know and being separated, both ES and SS have suffered
emotional harm”.
16
Although MC does not need to answer to the threshold, she does so as to
the findings sought. Her position, as mentioned already, is confusing.
17
I turn then to the evidence which has been put before me in this
matter. Findings of fact must be based on evidence. As Munby LJ, as he was
then, observed in Re A (A Child, Fact Finding Hearing, Speculation)
[2011] EWCA Civ 12, it is an elementary proposition that findings of fact must
be based on evidence, including inferences that can properly be drawn from the
evidence and not on suspicion or speculation. Further, in the case of Re A
(A Child) [2015] EWFC 11, he emphasised that, if the local authority’s case
is challenged on some factual point, it must produce proper evidence to
establish what it seeks to prove.
18
In this case, the local authority has provided to the court the evidence
upon which it relies to support the case it puts before the court. When
considering cases of suspected child abuse, the court must take into account
all of the evidence and furthermore consider each piece of evidence in the
context of all the other evidence. As Dame Elizabeth Butler-Sloss, the
President, observed in Re T [2004] EWCA Civ 558, 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 to other
evidence and to exercise an overview of the totality of the evidence in order
to come to the conclusion whether the case put forward by the local authority
has been made out to the appropriate standard of proof.
19
In considering cases of alleged child abuse, the court invariably
surveys a wide canvas of evidence. It must consider all the evidence and take
into account each piece of evidence in the context of all the other evidence.
As Butler-Sloss, P, said in Re T and as was set out in Re U and Re
B, 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 to other evidence and to exercise an overview of the totality of
the evidence in coming to the conclusion whether the case put forward by the
local authority has been made out to the appropriate standard of proof.
20
Mrs Walker, who appeared on behalf of the local authority, makes
reference to the decision by Keehan J in A Local Authority v DB, RB & SM
[2013] EWHC 406 (Fam). She sets out at para.74 within her closing submissions,
referring to the case that Keehan J decided:
“On the other hand and at least
as important as the medical evidence for the judge was his consideration of the
evidence of the mother and father. Both were seen to be kind, loving and
considerate people. This was not a family with a history of violence or drug
abuse. The parents did not present with the sort of chaotic lifestyle that
courts often see. The contact between mother and father and the other children
of the family was seen to be of a very high quality and so the question was how
could this sit with an inflicted injury”.
21
It does seem that the case which Keehan J was faced with was very
similar to this case which I must decide. Mrs Walker continues at para.75:
“However, what the learned judge
went on to find was that mother drank more alcohol than she was willing to
acknowledge. In this case, as will be set out further below, mother and father
were less than open about the problems in their relationship. MC either was
always prepared to be hoodwinked by them or is not being honest either”.
22
I remind myself of the Lucas direction which is of course required.
This case is not about whether an injury was sustained or indeed about the
mechanism which caused the injury, but about who inflicted the injury and the
circumstances surrounding the infliction of the injuries.
23
The test the court must apply in seeking to identify a perpetrator is
clear from the authorities. The test of whether a particular person is in the
pool of perpetrators is whether there is a likelihood or real possibility that
he or she was the perpetrator - North Yorkshire County Council v SA
[2003] 2FLR 849. In order to make a finding that a particular person was the
perpetrator of non-accidental injury, the court must be satisfied on the
balance of probability. It is always desirable where possible for the
perpetrator of non-accidental injuries to be identified, both in the public
interest and in the interests of the child; although where it is impossible for
the judge to find, on the balance of probabilities, for example that parent A
rather than parent B caused the injury, then neither can be excluded from the
pool and the judge should not strain to do so - Re D (Children) [2009] 2FLR 668.
24
Clearly in this case, there is only one of three people who could have
caused the injuries to ES: mother, father or MC. Mother and father seek to
have themselves removed from the pool, although do not actually blame anybody
else. When pressed, each was prepared to say it was not them and therefore
must be the other or MC. At no stage did any of them state that it was one of
the other adults present and that they believed that the other adult caused the
injury. Mother repeated in her evidence that she did not want to believe it
and both mother and father repeated that they did not know how the injuries
were caused.
25
I turn then to the body of the evidence, both written and oral. As I
have just referred to, there is only one of those three people who could have
caused injury to ES. The medical evidence as to timing is crucial. I refer to
the evidence of Mr Richards at E74.
“Timing is dependent on an
accurate picture of his” - i.e., ES’s - “clinical state from carers and as
described it is not entirely clear to me. By the time he was behaving
abnormally in terms of his posturing on the morning of 9 November 2017, the
injury had occurred. Events in the period leading up to this are not clearly
described. Given that there was a sudden, unusual sound, if that is accepted,
then that may be the point of injury with him suddenly changing to a state of
encephalopathy. However, he was described in the early hours of the morning as
not taking a bottle and this may indicate he had been injured at that stage,
with the more acute behaviour that led to the emergency services being summoned
being the first appreciation by the carers who had been in bed that things were
not right. If a point can be determined accurately by the court when he was
behaving and interacting normally and feeding normally, then he would not have
been injured at that point. By the time the 999 call was made to summon
assistance, he clearly had been injured. The point of injury will be somewhere
between the two, although whether it was at the point of change and parental
concern or some hours earlier which, due to them being in bed, had not been
appreciated, is not entirely clear”.
26
Of course, the court has had the benefit of the detailed oral evidence
which the parents gave to the court, which Mr Richards had not had at the time
that he wrote the report. Dr Rylands also deals with the timing at E121 within
the bundle and similarly, when Dr Rylands wrote his report, he had not had the
benefit which the court has had of hearing the oral evidence. At E122,
para.95, Dr Rylands states:
“As clinical change is usually
the best estimate for the time at which a subdural haemorrhage has occurred,
the time of ES’s subdural haemorrhage is most likely to be immediately before
he was first found to scream or make a strange, awful groan, noise, go rigid,
go pale, be not responding normally followed by being drowsy and continuing
unresponsiveness. This was probably about 0430 hours on 9 November 2017. The
crying and unsettledness from 0200 hours to 0430 was described by the mother as
not unusual for him”.
27
Para.97:
“ES changed significantly between
around 0430. His acute subdural haemorrhage almost certainly occurred within
seconds or a minute or two prior to his changed behaviour as described in
paragraph 95 above”.
28
At para.104 within the same report, Dr Rylands stated:
“When ES changed from being
fairly normal to being clearly abnormal with signs of encephalopathy, a carer
would know that there was something significantly wrong with ES. His father
and mother clearly recognised this. Later knowledge that he had suffered a
significant intracranial bleed would link any known inappropriate action and
effect. However, the parents were not able to identify any action of this
type”.
29
Clearly, that position continued in the evidence which I heard in that
none of the adults gave any description of any actions which could have been
responsible for ES’s injuries. At para.105, Dr Rylands states:
“A perpetrator of
non-accidentally inflicted injury would be aware that the force involved and
the nature of the action to cause a subdural haemorrhage was unreasonable in
the context of caring as a reasonable parent for a child of ES’s age”.
30
Thus, I am satisfied that ES was injured immediately prior to his
collapse. The evidence which mother provided to me described ES as being
unsettled, but said that there was nothing to make her think there was
something wrong when she was caring for him. She told me that he was just a
usual, teething baby. She said that he looked perfectly well and agreed that
he was a perfectly functioning baby at 8.15pm when the parents went upstairs. Mother
also agreed that ES looked perfectly well when she and father went to bed at
about 11.30 to 12 o’clock. Father similarly said that, when he went to bed
together with the mother at 11.30, ES looked fine. He was asleep. MC
described that evening as just normal. She saw no difference in ES’s
presentation. Mother and father went to bed about 11.30 to 12, she told me.
She then said she heard not a thing until she was woken up.
31
In her statement dated 12 December 2017 at C39 within the bundle at para.18,
she states:
“Later that evening into the
early hours of Thursday 9 November, I was woken up by AA shouting me. I woke
up quickly and went upstairs. I believe AS said something along the lines of,
‘Something is wrong with ES’. AS appeared hysterical. I believe this was
around 4.30am”.
32
Para.19:
“When I got upstairs, I recall
that AS was standing at the top of the stairs. AS was very upset and it was
difficult to understand her. I went straight into AS and AA’s bedroom to see
what was going on. AA was crying, ‘Mum, what is wrong with him?’ I believe AS
was on the phone to the emergency services at the time”.
33
In her oral evidence to me, at first within that evidence, MC said to me
that she could not recall whether AS came downstairs first and woke her or
whether she heard AA shout, “Mum, mum”. In cross-examination, she said:
“I do recall AS did run down the
stairs, opened the sitting room door and did say, ‘MC, there is something
wrong’.”
34
MC said that she only remembered that this weekend. Unfortunately, it
is difficult to be satisfied that MC was being accurate in what she was saying
to the court or whether she was seeking to align her recollection with the
evidence of the mother and father. Her written statement is clear as to her
recollections. MC said that she woke straight away and ran upstairs. She said,
“AS must have been upstairs first because AS was hysterical and on the phone”.
Save for the record of the time that the phone call was made to summon an
ambulance at 04.44 hours and the arrival of the paramedics at 04.56 hours, the
court is reliant upon what these three adults within the house say as to timing
and what actually happened that evening.
35
During the course of that early morning on the following day, the
parents were asked about what had happened as far as ES was concerned. The
father first gave an account to Matthew Clayton, the paramedic who attended.
The mother apparently “was too distressed to elaborate on the history the male
had provided”. Matthew Clayton, reporting the first account in time in respect
of the injuries to ES, set out:
“The male reported that he was
woken suddenly by the patient crying loudly. When making an ascent to console
him, he noted that the patient’s limbs were rigid and he was not responding
normally. When this episode stopped after approximately two minutes, the
patient became drowsy and unresponsive, prompting the 999 call. The male
informed me that the patient had recently had his 16 week immunisations and had
been seen at the emergency department in recent days, due to the patient’s
parents becoming increasingly concerned that he had reacted abnormally to the
vaccinations and had become dehydrated due to several episodes of vomiting”.
36
At 10.30am on 9 November, a history was given by the parents to Dr
Bellis at the RVI.
“Mother reported ES woke at 2am
and he was unsettled but looked well. The parents were asked directly about
how ES could have sustained injury but they stated that they were unable to
explain it. They denied any history of trauma”.
37
Dr Bellis also asked about the marks which had been noticed on ES’s
face. The parents described that ES’s sister, SS, may have accidentally fallen
on him or dropped a toy on him. The parents were interviewed later that
afternoon by the police and they were again interviewed that evening at about
10pm or thereabouts. They both provided Children Act statements, mother on 22
November 2017 and father on 21 November 2017.
38
When the court has only the accounts given by those persons most readily
implicated as perpetrators, the reliability and credibility of those witnesses
must be looked at very carefully. As there are no independent witnesses as to
the sequence of events concerning ES on that night, the court is reliant upon
looking at the consistency of the evidence, not just in respect of what each
person says occurred when asked to give a history of the matter themselves, but
also as against the accounts which each of the other adults provides.
39
Of course, I recognise that an event of such upset and magnitude could
cause panic and possibly confusion in attempts to recall the sequence of events
later on. Mother’s account in her Children Act statement at para.10 at C19
within the bundle describes:
“ES sleeps in a cot which is
attached to my bed. That night, he slept through until between 2 and 3am. He
was then whingy and making moaning types of noises, but these were normal
noises for him and I assumed that he was teething. I tried to give him a bottle
which he did not want. I tried him with water which he also did not want. I
changed his nappy, gave him some teething powder and his dummy and he then
settled a little. I am unsure whether we both then went back to sleep or
whether he continued to grizzle a little, but he then woke up and was crying.
Whilst it is said in the hospital report that this was about 5am, I think it
must have been earlier than that as I am sure that I called for the ambulance
at 4.44am. As ES was crying, he woke up SS. SS shouted for me. I nudged AA and
said that I was going to settle SS and he would have to see to ES. I then went
into SS’s room and had been with her for two or three minutes when I heard a
terrible noise. This was a groan from ES the like of which I had never heard.
It was an absolutely awful noise. AA then shouted at me to come because it was
ES. When I went back to the bedroom, I looked at ES and ES just did not look
like himself. I panicked and ran downstairs to where AA’s mum, MC, was
asleep on the settee. I woke her up and she ran upstairs and the two of them
shut the door so that I did not have to see ES as I was distraught and to keep SS
out and I then called the ambulance. I did not touch ES until the ambulance arrived
and the paramedics took him to hospital and I sat in the ambulance holding
him”.
40
Father’s account in his Children Act statement at C24, paras.8 and 9,
sets out:
“At about 4.40/4.45, AS woke me.
She said she was going to see to SS who had apparently been woken by ES. AS later
told me that ES had been awake from about 2am and she had not been able to get
him back to sleep. She told me that the noise he had been making had woken SS.
We sleep with our bedroom door open and SS’s bedroom door open. The property
is a two-bedroom property and my mother was sleeping downstairs. AS got up to
see to SS and I brought myself round, but still lying on my side of the bed. I
then heard ES make a strange grunting sound. It was not the usual noise. I
rolled over to look in his cot and was alarmed to see him lying there on his
back with his back arched and his arms held out wide. I immediately picked him
up and he was hot to touch. He continued to hold his arms out rigid. I was
worried that he had had some sort of fit. I panicked and began shouting for my
mother and AS. I cannot be exactly sure but I think AS came in first. I
remember her standing in the doorway in tears asking what was wrong with ES.
She looked in a state of shock. She must have turned up first because I seem
to recall my mother coming into the room past AS. I pushed the door with my
foot to make sure SS could not see what was happening. AS was hysterical by
this time.
By the time I had removed ES’s
baby grow to try and cool him down, my mother took him from my arms and put him
down on the bed. He was still holding his arms out rigid. We keep night
bottles in the bedroom and use water to cool them down. I opened a bottle of
the water and splashed it on ES’s face to try and cool him down. I remember my
mother opening his eyes and I could see that his eyes had rolled to the side.
My mother told me to open his mouth and to check that he had not swallowed his
tongue. I did so and I put my finger into his mouth. I could feel his flat
tongue so at least I knew he had not swallowed his tongue. I then began
rubbing and massaging his arms to try to relax them”.
41
In her police interview, mother described SS as screaming. Then she
wakes father with a nudge and goes to see SS. After one minute, mother says
she heard father screaming, “Amy, it’s ES”. Mother said she could not go
through. She was too scared. ES was still crying and father shouting for
mother to come here. ES was making a horrible noise. Mother went to get MC.
Father, in his police interview, said that mother says that she woke at 2am and
ES was proper screaming. It seems neither father nor MC heard this. Mother
fed ES and he took it all right. Again, if she is correct, he could not have
been injured at that time. Mother woke father. Father said that ES was making
a funny noise. Mother got up, sitting next to him, and said she was going to
see to SS. When on his own, father started to panic. ES’s back was arched and
father picked him up and screamed for mother and MC.
42
MC was interviewed by the police also that evening, when she said she
was woken by father shouting for her. On going upstairs, mother was at the top
of the stairs, outside the toilet. If SS was screaming as mother stated in her
police interview, bearing in mind the geography of the house, it is surprising
that neither father nor MC heard SS screaming or thought to tell the police
that they did.
43
In her Children Act statement, mother described SS as shouting for her.
Father, in his Children Act statement, describes mother telling him that she
was going to see SS, who apparently had been woken by ES. He did not mention SS
shouting.
44
Father is described as a heavy sleeper. On his account, he was unaware
of any problem until he was woken about 4.40 either by AS or, according to his
account to the paramedic, by ES crying loudly. MC initially states that she
was woken by father shouting to her and went upstairs and mother was upstairs
by the toilet. MC’s account remained the same until she gave oral evidence,
when at first she could not recollect the order of things, but then said she
had only just remembered the previous weekend, before giving evidence, that it
was AS who opened the sitting room door to get her.
45
Mother said that, when AA shouted, “Amy, come quick”, she panicked and
ran downstairs to get MC. I found MC to be unreliable as a witness. I found
her account given in her oral evidence of the shake when ES was choking, her
confession in March, because she said she was so ashamed of herself, her
continued castigating of herself, her lack of relief when the doctors had said
she could not have caused ES’s injury because of the timing to be bizarre and
confused. Her repeated claim that she did not think she had done anything to ES
but that “it was eating away at me” made it difficult to accept her as a
witness of truth. As Mrs Walker submitted, she oscillated between wanting to
be in the pool or out of it.
46
MC denied that she, mother and father had colluded in a plan for her to
take the blame so the parents would be able to get the children back. She said
they had never discussed her taking the blame. According to the parents and MC.
They never discussed anything about ES’s injuries or discussed with each other
how they were inflicted, save MC accepted some conversation on 9 November and
the parents agreed that they discussed MC taking the blame.
47
The text sent by mother at C56 within the bundle, which was sent on 19
February 2018, reads as follows:
“Basically, they are saying that
someone has definitely hurt ES and I think he has been hurt 42 hours before him
taking poorly but I have never had him in my care at that time so now I am
going to have to go against MC because she had him in her care and I hope she
hasn’t hurt him. It’s so bad”.
48
This text from mother again is confused and confusing. There was no
mention by the experts of any 42 hour period, but it is right that MC had ES in
her care roundabout 42 hours before the discovery of the injuries to ES. It
could of course be part of a scheme to implicate MC, but it is not for the
court to speculate and I do not do so.
49
Mother said in evidence that she did not want to believe someone had
harmed her child, which is understandable but set against the background that ES
had indeed been harmed and the parents were accepting that ES’s injuries were
inflicted injuries. It is also surprising that, even after the doctors
exculpated MC, the parents maintained their rejection of MC. If she was
correct in her account and thought ES was choking and instinctively gave him a
resuscitative shake which caused him no harm but seems to have stopped him
choking, why then is father saying that his relationship with his mother was
now rocky and not like it used to be? MC had helped both mother and father out
financially. She was giving help and practical assistance when ES had been
poorly. She possibly had stopped him choking. She certainly had not caused
his injuries by the shake that she recorded, so why, it must be asked, was
mother still not speaking to her, father saying that the relationship had been
affected?
50
Mother said she would like to believe that it is her - namely, MC- and
yet the medical evidence and the account given by MC ruled her actions out as a
causative factor of ES’s injuries. The whole scenario concerning MC is
difficult to comprehend or disentangle. Prior to ES sustaining his injuries,
there had been a number of stressful situations and events within the household
of mother and father. ES had his injections on 1 November 2017 and was unwell
thereafter. The parents were so concerned that he was taken to hospital and,
although not kept in, the parents did not return home until after midnight. SS
was not yet sleeping through, I am told, and only mother, according to mother,
could settle her at night. Mother maintained that she did not need help and
liked to do everything herself. Indeed, it seems that she did do everything
herself. She did all the night time feeds and caring without assistance from
father.
51
MC in evidence stated that mother was shattered. The parents both
described ES as unsettled the night of 8/9 November. It took them, according
to the parents, two hours to settle him, so not a particularly relaxing
evening. Father had been working shifts with mother caring for the two small
children, one born prematurely and, at the time the injuries occurred, only a
few months old.
52
When father stopped working, money was an issue, although MC had helped
them out. Father had been found out by mother to be having an affair. He said
it was a one off. Both said that the mother had confronted father. Father
said:
“We sorted it. It was water
under the bridge. We bickered and had arguments and afterwards I was in the
bad books”.
53
Mother said:
“I was upset.
He was upset. We bickered about it but got over it”.
54
She went on to say, when asked why she had not told the social worker:
“We got over it. It was water under
the bridge, quite personal, not a concern at the time”.
55
I do not accept that the issue of the affair was as easily resolved as
both mother and father now maintain. When cross-examined, I find that mother
was more honest and truthful when she said, “I felt my world had fallen
apart”. It was not long after she had given birth. She accepted that there
were heated arguments at first but continued to maintain that the upset was
over in a few days and there were no major concerns about the relationship at
the time; yet, she was texting DA, SS’s father, with whom she had maintained a
friendly relationship, at C47 in the bundle:
“Will you help me? I need out of
this relationship. I really do, but I need to move away without him knowing.
It’s went too far now and I can’t take it any more”.
56
At C49:
“I’m so fed up. I’m basically
being bullied into being with him. He’s so horrible to me”.
57
Mother said that the bullying referred to the cheating and it was the
only way that she could express it. She did not want to tell DA about the
affair. She told me that DA had asked her to have an affair with him. DA
denied that he had done so and said it was the other way round. I did not hear
evidence from DA about this issue and I make no findings.
58
Upon the evidence before me, I cannot accept that the relationship
between mother and father was anything other than troubled. The texts indicate
problems and it is naive to attempt to depict it as without real problems,
referring to the affair as water under the bridge. I am satisfied that the
parents were well aware that it was relevant that there were problems in the
relationship as far as the parenting assessment was concerned, but they
suppressed the truth.
59
The parents lied to the social worker in the parenting assessment that
their relationship was good, supportive and they had not argued. Father stated
that the social worker did not ask the right questions and said, “Shy bairns
get nowt”. It is indicative of the parents’ willingness to be less than honest
in their report to others. The adults were willing to lie about a number of
matters in addition to the lies about their relationship. Father had an affair
and, perhaps unsurprisingly, had lied and concealed it from the mother. All
three adults lied about where father was living so as not to affect the
mother’s benefit position. MC either lied to the police at the outset and in
her first Children Act statement or is lying now that the shake occurred at
all.
60
It is impossible to place reliance upon what is said by any of the
adults involved on that particular evening. Mrs Walker very helpfully sets out
at para.97 within her closing submissions:
“The contradiction was apparent
on the evidence before the court, whether oral, in statement form or within the
police interview”.
61
More particularly, she also identifies the source of each piece of
evidence to which she refers. She sets this out at para.97. I highlight those
contradictions which I think are most relevant.
“Mother stated in her evidence
that, when ES woke about 2am, he did not want his bottle; yet father states
that she told him that she had fed ES and he took it - G68. Mother gave
various times between 2 to 3am that she had woken with ES - medical bundle D85,
G151, G181, G183 - although, when describing events to the police, does not
describe up to two hours 40 minutes of being awake - G187 - and the account
given to the court of trying the dummy, a bottle, checking his nappy, applying teething
powder and checking her phone could not have taken more than a few minutes.
Mother states that ES was fine
when she went to see SS - G188. If this is right, then nothing had happened to
him while she was caring for him. Father states that mother woke him with a
single nudge - G214; yet he is a heavy sleeper and ES was making a funny little
noise - G73 - and was not crying. Mother states that he was still crying when
she left the room - G188 - crying and crying - G195 - screaming and upset -
G216 - and that the crying continued when she had left the room. Then it
stopped - G222 to G223. When mother left the room, father states that she
said, “The bairn will wake up” - G121 to 122. Mother states that SS was
screaming - G150.
Mother states that she was out of
the room for one minute - G150. Then increased this to two to three minutes -
G188. MC stated that she was woken by AA shouting, ‘Mum, Mum, Mum’ - G245,
G246, G252. In evidence, she then went on to say over this weekend, having
heard the evidence and challenge thereto, she had just remembered that mother
woke her by coming downstairs, opening the door and shouting for her. MC
stated that mother was upstairs when she arrived upstairs. Mother stated in
evidence in chief that she followed MC up the stairs. Mother states that AA
and MC then shut the door so she could not see; yet she was able to see father
sprinkling water on ES. She also stated that she saw AA sitting on the side of
the bed, holding ES, and saw his eyes as the bedroom light was on.
AA stated that he had not turned
the light on, at no stage was sitting on the side of the bed and mother could
not see what she stated she had seen from the vantage point she had in cross-examination.
The report from father to the
paramedics was that he woke as ES suddenly began screaming - E33. Father
reported he was woken by a loud cry and went to console him - G47, C2 - and it
was ES becoming drowsy and unresponsive that prompted the 999 call - G47. Yet,
mother and father maintain mother woke father up.
Mother, in evidence in chief,
stated that she had changed SS’s nappy at some point after 4.40am; yet MC had
to change SS’s bed as it was obviously wet from a leaked nappy and must have
changed her nappy. If MC is right, it suggests mother did not change the nappy
or, if she did, she did so paying little heed to SS, as she did not notice the
bed was wet. She may have been paying little heed as she was distracted with
what had happened to ES.
Father first made mention of
hearing loss in an attempt to further distance from a woken child overnight as
in his evidence in chief”.
62
Clearly, those are the inconsistencies which Mrs Walker identified in
her closing submissions. They are inconsistencies upon which I rely, save that
I do not rely on Mrs Walker’s comment that mother might not have been paying
much attention to SS as she was distracted with what had happened to ES. This
is speculation.
63
While I accept, as I said before, that panic may cause confusion in
remembering thereafter, the contradictions highlighted are significant and not
all explicable by confusion caused by panic. No acceptable explanation has
been given for the bruises to the face. The account of SS causing them was not
accepted. The evidence of Matthew Clayton was persuasive that it was not the
oxygen mask. He was a careful and a patently honest and accurate witness. Of
course, it is not for the parents to provide an explanation or prove the
bruises to be accidental. However, the evidence of Dr Rylands that they were inflicted
injuries was not challenged and thus the court finds that they are
non-accidental bruises to the face which, according to the medical evidence,
are without any explanation as to how they were caused.
64
The ABE interview of SS and her comments in the car and at nursery
cannot be relied upon. The ABE interview was of little probative value and the
comments too vague and uncertain. I do not take any comments or actions by SS
into account in reaching my findings.
65
The medical evidence has not established any clear link between the
bruises and the subdural or retinal haemorrhaging. Therefore, I cannot make a
finding of fact that they are linked.
66
MC’s evidence to the court was that, in a small house, you could hear
everything; yet she says she was not roused from sleep until either father
shouted or mother went downstairs.
67
The distilled and analysed evidence seems to support what Mr Flower set
out at p.6 in his submissions.
“Mother awoke at 2am on 9
November 2017. The father remained asleep. Mother changed and fed ES. She
fell back asleep at some point. Her recollections of this time are unclear.
Mother woke again, roused by SS calling for her and ES crying. She nudged father
into consciousness, left the room to attend to SS and, very shortly after that,
ES made a loud noise and arched in his cot as if having a fit. In these
circumstances, mother would have had care of ES for all or some of the period
from 2am to nearing 04.40. Father would have had care of ES between the period
of mother leaving ES with him as she went to see SS to the time he called
mother and the paternal grandmother for assistance, which was put at a matter
of minutes. Mother’s evidence started at one minute and reached a maximum of
three minutes. The ambulance was called at 04.44”.
68
The difficulty for this court however is that I find each of the adults
has been less than truthful with the court about issues concerning this family
and these children. The court can therefore place no reliance upon what each
of them says and there is no independent evidence. As they were prepared to
lie about their relationship and the benefits, it is difficult to be certain
that they have not lied about events surrounding ES’s injuries, particularly
when there are so many inconsistencies in the evidence provided to the court.
The court should, if at all possible, identify the perpetrator.
69
Both mother and father had the opportunity to cause the injury to ES.
Both had been subject to stress in their lives leading up to 8/9 November
2017. It seems both had been willing to blame MC and yet, on both their
accounts of what occurred on that evening, she did not have the opportunity to
cause harm to ES. She was not left alone with him.
70
Further, I am satisfied that, if she had been left alone with him and
had the opportunity, the parents would have been very quick to identify that
opportunity for MC to have caused the injuries. They did not do so. I find it
unlikely that MC caused ES’s injuries.
71
As between mother and father, I am unable to distinguish the
perpetrator. While mother had a longer period of time caring for ES than
father, a shake violent enough to cause the injury only takes seconds.
Mother’s response to ES’s condition was noted to be strange by the father and MC
and by Matthew Clayton, but people react in different ways to traumatic
events. Thus, it cannot assist me in identifying the perpetrator. It is
unlikely that the perpetrator sought deliberately to harm ES. It is likely to
have been a momentary response arising from frustration and stress. Sadly, it
often results in serious injury or death. Presently, ES is reported as doing
well and hopefully the sequalae to the shaking will be limited. It is not yet
clear.
72
As far as the parents are concerned, ES and indeed SS deserve to know in
due course what and who has caused the disruption to their lives which means
that, for the past six months, they have been separated from each other and
their parents.
73
The local authority and the court need to identify the risk of any child
being placed in the care of AS and AA, whether separately or together. To
assess the risk, the local authority and the court need to know exactly what
happened on that evening. The local authority is able to work with parents if
they know what occurred and what was behind it. I urge both parents, AS and AA,
to think very carefully and provide an accurate account and explanation of what
occurred that night so that the risk to SS and ES can be correctly identified.
If the risk can be identified, it may be able to be managed to the benefit of ES
and SS.
74
Thus, I find the facts as set out and in accordance with the judgment
that I have given. There is also included of course failure to protect. MC’s
evidence and indeed the description of the household is of a very small
household where everything can be heard. I do not accept that mother and
father were unaware of exactly what caused the injuries to ES, whether they
were the actual perpetrators or a bystander. I do not accept that there was
never any discussion about it. MC’s role in any discussions is unclear to me
and I make no specific finding against her in that regard.
__________
