England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
Sitting at Leyland

		3 July 2020

His Honour Judge Duggan 3 July 2020

1. This is the final hearing of local authority care proceedings. The case concerns two boys aged 5 years and 3 years who have been with their paternal grandmother since 30 December 2019. After extensive assessment it has been agreed that the boys should stay there under Care Orders. The threshold is largely agreed. They were with their mother until July 2018 but were exposed to poor supervision and neglect with substance misuse making a contribution. They moved to their father where poor supervision and neglect continued. Outside these areas of agreement are the cause of injuries sustained by the younger child at Christmas 2019 which were the trigger for the removal of the children to the grandmother. The only issues remaining for my determination are the local authority's allegation that the father inflicted these injuries and their allegations concerning his activities at this time. The final version of the threshold allegations is a comprehensive document.
2. All the relevant material has been assembled in a bundle with which I am familiar. During case management the representatives of the parties agreed that the limited remaining issues should be tried during this remote hearing conducted by video using Teams. It was also agreed that the only oral evidence to be heard was from the father. Unfortunately his engagement in the proceedings has been sporadic and he explains that he has been in a bad place suffering with depression. I have his police interview but he never complied with directions to produce a statement. This did not deter me from agreeing to hear him.
3. The burden of proof lies on the local authority who must prove their allegations on the balance of probabilities. There is no burden on the father to prove anything. Findings must be based on evidence including inferences that can properly be drawn from evidence but not on mere suspicion or speculation. The court must take into account all the evidence, including the wider social canvas, and must consider each piece of evidence in the context of all the other evidence. This approach extends to the medical evidence. The evidence of the father is of the utmost importance and I must form a clear assessment of his credibility and reliability. The courts know that witnesses sometimes tell lies in these cases. It is recognised that a witness may lie for many reasons for example shame or panic. The fact that a witness has lied about one matter does not mean that they have lied about everything let alone mean that they inflicted injury to the child. I must take into account the possibility that the cause of this injury is just not known as medical knowledge is improving all the time. Similarly I must take into account the possibility that I cannot identify the probable perpetrator and should not strain to do so.
4. The basic facts are clearly established. On Christmas Day 2019 the grandfather visited between 1030 and 1330 and there was no sign of injury. The grandmother visited to collect the father and two children at 1430 but only took the older child. She was not in a position to see whether the younger child was by then injured. She returned at 1730 when the injuries were very apparent. At the relevant time the father and the children were the only people in the premises. The injury was a large bruise to the side of the face, including the ear. There was no medical abnormality and the medical opinion is that this was an injury requiring significant force, not caused by an accident.
5. The father does not provide an explanation for this injury. Initially and for some time he suggested that it was a rash rather than a bruise but he now accepts the medical opinion. He accepts the timetable and says he was shocked to see the bruising. He was asleep 10 feet from the child and was not disturbed.
6. I note that the child was not in pain when examined. He had a good rapport with his father at the hospital and there is no history of the father causing or any child sustaining injuries of relevance. The father insists that he did not inflict this injury and does not know the cause.
7. It is clear that this injury occurred between the departure of the grandfather at 1330 and the second arrival of the grandmother at 1730. The father was present in the small flat throughout and should know what happened. It is difficult to believe that he would sleep through an occurrence responsible for a large injury of this kind and he cannot assist with any suggestion. For example a fall from bed is unlikely given the presence of guards.
8. I conclude on the balance of probabilities that the father struck the child during this period. He failed to seek medical treatment which would expose the injury in spite of persistent advice from the grandmother. He raised and persisted with a bizarre explanation that the marks were caused by oil he placed on the child's pillow. The oil had never had this effect before and was in any event covered by a pillow slip. The photographs show a very significant and troubling injury. An innocent parent would be expected to seek medical advice especially when urged by the grandmother whose advice he respected. There must have been a motive to conceal.
9. It is clear that the father's childcare was impeded by the activities of the night before. He had friends around until the early hours when alcohol was consumed. One of the photographs in the bundle was clearly taken at this time and it indicates that one of the visitors was probably using drugs in the house at this time. The chaotic scene described by the grandmother contributes to the picture. The father had little sleep before he was awakened early by the excited children. All this will have undermined his tolerance.
10. In this period the father's life was not straightforward. The grandmother gives a picture of recent neglect. I accept the word "struggling" was used at school. The grandfather is more supportive but even he indicates that he would have liked the father to change his lifestyle.
11. Within these proceedings the father failed to comply with a direction for drug testing. Until the door of the court he denied cannabis use in the relevant period but he told me that he now accepts that this was a period of use which would have been revealed by any test he had undertaken.
12. It is strange that when the grandmother arrived at 1430 to collect the family for their Christmas dinner she found the younger child asleep in bed and the father lying exhausted on the sofa. The accounts are illuminating.

•    The grandmother says that the father said that the boy had been very naughty and had been sent to bed because he had emptied a potty with poo into the sink.

•    The older child told the grandmother that his brother had emptied the potty in the sink and that the father had got angry. Caution is needed as to the words of the child.

•    The grandfather says that the father told him that his son had been naughty emptying a nappy into the sink and had been sent to bed.

13. In evidence the father insists that the child was not naughty and did not make him angry. He indicated that filling the sink was acceptable to him, particularly if the toilet was blocked. He says this incident occurred on the previous day. The mother agrees that this occurred during her visit the previous evening although it was not then cleaned up. This leaves open the real possibility that the sink remained in this state and was not discovered by the father until later.
14. It is impossible to accept the father's account of placid acceptance of the soiled sink. His account is inconsistent with elements of the other accounts to which I have referred. I recognise that subsequently the children have not been forthcoming.
15. My finding is that the child was punished between 1330 and 1730 and sent to bed. The father's lifestyle involved stress. His late-night made him intolerant and he struck the child in anger. Medical attention was needed and urged upon him but he did not wish to expose what he had done.
16. I turn to the other contested elements. The use of alcohol and cannabis is accepted but the father claims that it did not interfere with childcare. He has spoken of regular, even daily use of cannabis. The evidence does not establish that childcare was thereby actually undermined but I find that use occurred while the children were in bed, creating potential for harm.
17. On the father's own account he has associates attracting the serious attention of the police. However I know insufficient about the arrest on 15 January 2020 to make any finding that it was relevant. The collection of photographs show posturing and cultural bravado when the father had a visitor in the flat. I have made a finding about Christmas Eve. It is established that the visitor had drugs in the premises. It is not established that the father's use extended beyond cannabis.
18. I have distributed in draft the threshold document adjusted to reflect the findings I have made. The final outcome of the case is agreed to be the placement of the boys with their grandmother under Care Orders. My findings underpin orders and will be added to the final order.

Approved 3.7.20

RD