SITTING AT MEDWAY.
IN THE MATTER OF THE CHILDREN ACT 1989
B e f o r e :
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KENT COUNTY COUNCIL |
Applicant |
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- and - |
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A |
1st Respondent |
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- and - |
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B |
2nd Respondent |
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- and - |
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C AND D (Minors acting by their Children's Guardian) |
3rd and 4th Respondents |
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- and - |
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E |
Intervenor |
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Mr Woodward – Carlton KC and Mr Paisley, (Counsel) , on behalf of the Applicant Local Authority.
Mr Storey KC and Miss Slee (Counsel), on behalf of the First Respondent Mother.
Miss May, (Counsel), on behalf of the Second Respondent Father.
Mr Hooker, (Counsel), on behalf of the Step Maternal Grandmother.
Mr Pidduck and Mr Batt, (Counsel), on behalf of the third and fourth Respondent Children.
Mr Goodwin KC and Mr Chippeck, (Counsel), on behalf of the Intervenor.
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Crown Copyright ©
Background facts
Summary of judgment
a. I do not find that on the 8th or the 11th November 2023 E lost momentary control and shook D causing her to suffer a subdural bleed and consequent retinal bleeding.
b. E did not assault A on the 24th December 2023 by grabbing, pinching and yanking her arm.
c. I find that E did in December 2023 threaten to kill everyone in F's house if he was stopped from seeing D.
d. I find that E did between September 2023 and January 2024 threaten to end his life but I do not find that he did this to control or influence the behaviour of A.
e. I do not find that between September 2023 and January 2024, E coerced A into deleting her Snapchat application and some male friends on her social media applications.
f. Even if I had found that E had shaken D on either occasion I would not have found that A failed to protect her daughter.
The findings sought
The alleged inflicted injury
Failure to protect
i. By continuing in a relationship with E, who she knew to be threatening, controlling and abusive.
ii. By continuing in a relationship with E, who she knew misused alcohol and drank every day.
iii. By continuing in a relationship with E, even though she had suspicions that E may have shaken D or handled her roughly.
E was abusive
i. On 24.12.23, E assaulted A by grabbing, pinching and yanking her arm.
ii. In December 2023, E threatened to kill everyone in F's house if he was stopped from seeing D.
iii. Between September 2023 and January 2024, E threatened to end his life, so as to control or influence the behaviour of A.
iv. Between September 2023 and January 2024, E coerced A into deleting her Snapchat application and some male friends on her social media applications".
The evidence
The medical chronology (as set out in the medical records)
8th November 2023
"Patient began crying so dad picked her up to console her and then laid her supine on the sofa, dad states patient became silent and begun gasping for air. Picked patient up and noticed she was limp and floopy, call to 999 C1 response. Call handler guided dad through rescue breaths, pt then reported to take a deep breath and became stiff, arms shaking".
"patient laying on changing mat. Alert . Airway open and self maintained. No dyspnoea. Pt pale in colour. Good tone, not limp or floopy. Good grip. Pt appears lethargic easily consoled after crying. Pt tracking objects with eyes, but few episodes witnessed of eyes rolling. Normal cry. No high pitch or constant cry". (1641).
"Patient was said to be laying in her bed today with the father, when he noticed her shaking her leg and subsequently had upward rolling of the eye and became floppy. Father was said to have given her some breaths and she came round after some minutes. Child has otherwise been well", (984). It was noted that observations in the emergency department had all been within normal limits.
"Dad was with baby, mum went to shop, baby then went floppy and eyes rolles back, dad called mum back and 999 called, advised to give 5 rescue breaths which dad did and baby gasped", (989).
9th November 2023
11th November 2023
"patient was fitting now not breathing effectively. the father was noted as being with D, (1647) the notes read: Possible seizure this evening reported to last approximately 15 minutes, but family cannot be sure. Family report she became rigid, followed by an episode of vomiting. She then became floopy and foaming at the mouth. Family then reported patient to stop breathing Dad then performed 5 minutes of CPR. On arrival this was noted: "tone normal, patient crying but able to be consoled. No abnormal breath sounds, no abnormal positioning, no accessory muscle use/recession. No nasal flaring, no apnoea/gasping, rapid breathing rate pallor and mottling present cap refill of approximately 4 seconds. No cyanosis(1647)".
The medical evidence
Dr Keenan, consultant paediatric haematologist
Dr Olsen, Paediatric Radiologist - report dated the 11th March 2024 and addendum dated the 1st July 2024
Mr Markham, Consultant Ophthalmologist report dated the 23rd April 2024
Dr Hogarth, Consultant Neuroradiologist, report dated the 30th April 2024.
Dr Hogarth's oral evidence.
"there is complexity to this question, we can say that when we perform lumbar punctures, we don't consent for subdural bleeds…there is no known association to require us to consent a patient…you can find case reports where there have been bleeds associated with lumbar punctures…it is difficult to define the casual mechanism if there is one at all. We would not expect taking spinal fluid from the bottom of the spine to produce anything as dramatic as we see on the CT scan….I suppose if there was a preexisting chronic subdural bleed could it be disturbed by a lumbar puncture? Its theoretically possible but you are taking the spinal fluid from a different space…the subarachnoid space does not communicate with the subdural space…if there was a change in pressure of the subarachnoid it could possibly affect the subdural….there is possibly a mechanism but in general we do not expect to cause subdural bleeding with a lumbar puncture".
Dr Saggar, Consultant in Clinical Genetics and Senior Lecturer in Medicine, report dated the 29th July 2024
Dr Cartlidge, Consultant Paediatrician, report dated the 30th July 2024
"The clinical features of acute subdural bleeding typically altered consciousness, pallor, floppiness, impaired breathing and vomiting shortly after the casual event. I think that a casual event was immediately before D suddenly became unwell. If the accounts regarding symptomology are found to be credible, this was shortly before the emergency services received a call 20.20 hours on 11 November 2023. Also, D had similar adverse symptomatology shortly before the emergency services received a call at 16.57 on 8 November 2023. I am concerned that this was an earlier episode of head injury. The alternative is that a single casual event occurred on 8 November 2023, but the apparent return to near normality between 8 and 11 November 2023 causes me to favour there having been two casual events".
Dr Cartlidge's oral evidence
The mechanism of movement
The presence/absence of other medical findings
i. An injury to the cranial cervical juncture,
ii. External and/or internal contusions outside or inside the cranium,
iii. The presence of a cerebral venous thrombosis,
iv. Any metaphyseal fracture,
v. Posterior rib fractures,
vi. Bruising to the body,
vii. Hypoxic Ischaemic Injury.
viii. Axonal damage,
ix. Perimacular folds.
The child's attendance at healthcare appointments prior to November 2023
Evidence of illness on the 9th November
Whether a lumbar puncture can cause subdural bleeding
Whether there was one event on the 8th November or two events on the 8th and 11th November
BRUE and ALTE
E's witness statement of the 21st November 2024
The presence of a brain injury
The clinical note of the 11th November 2023
Mr Jalloh, Consultant Paediatric Neurosurgeon, report dated 12th March 2024
The nature of the injury
The mechanism of injury
The timing of the injury/injuries
The cause of the injury
The alternative explanations for the injury
D's likely response post injury
Mr Jalloh's email of the 3rd May 2024
Mr Jalloh's oral evidence
Police disclosure
"A was asked about her relationship with D stated that her and E have a good relationship. A stated that her and E have been together 2 months, and she did not initially know that E was the father of her child. A looked at a date on her phone when her and E had unprotected sex, put two and two together and found out he was the dad. A stated that E could be heavy handed but had no concerns with D being in the care of E. A also stated that E does not like her son C, she has stated this has caused problems because they have no relationship. A stated that if her and C didn't learn to get on she would have to split up with E(sic) (1836)".
S47 enquiry re C dated the 14th November 2023
"We asked you who you live with. You said mummy. We asked if you thought your mummy was good or bad and you put your thumb up. We asked you if D lives with you. You said yes. We asked if she was good or bad and you put your thumb up to say good. We asked you who else lives with you, and you said E. We asked you if Ewas good or bad. You put your thumbs down and said bad. We asked you why he was bad and you rubbed your eyes and made a 'wa wa' sound as if you was crying. We said does he make you cry, and you shook your head. You said that he makes you sad. We asked why he makes you sad and you said he hits your mummy. We asked you where he hit your mummy, and you pointed to your eye and said in eye. We asked you what your mummy does when Ehits her, and you said that your mummy cries. We asked you if Ehas ever hurt anybody else in the house and you said just Mummy. You then became very agitated and kept looking at your teacher assistant . Your teacher assistant, then said that is enough and that you have come in a little bit uncomfortable now. We said this was fine and that you should go back to class. We said goodbye to you, and you gave us a big smile and wave as you left the room".
Paramedic, Amber Petch, witness statement dated 15th July 2024
Miss Petch's oral evidence.
Paramedic, Miss Judge, witness statement dated 15th July 2024
Miss Judge's oral evidence
DC Tiffany Elliot, witness statement dated the 12th November 2024
DC Elliot's oral evidence
Social worker, Miss Halfpenny witness statement dated the 28th November 2023
"The police have reported that he has a very complex domestic abusive history and has been charged with various domestic abuse offences. Details include previous driving offences, racially aggravated offences, fear of violence offences, controlling and coercive behaviour, criminal damage, breach of Non molestation Order, aggravated vehicle taking, malicious communicates and assaults. The police have reported that Mr E has been cautioned for driving offences, theft and class A drugs. Furthermore, the police have reported that on their system there are 57 crime reports, including lots of domestic abuse with other females including 4th September 2023 for contacting an ex-partner on Instagram thereby breaching a restraining order.
At a Strategy Meeting on 21st November 2023 Debra Williams, probation officer shared that there are concerns about E's behaviour in his past relationships and that there have been threats to harm children and his partners. She stated he has not received any convictions for threats to harm children but that his paperwork states that he has made threats. She stated E is completing his unpaid work and attends when asked to but he is evasive.
On 23rd November 2023 I asked Debra Williams for further information about E's offences. She informed me that E was charged with the following offences spanning a period between August and September 2022: Criminal damage to property valued under £5000, engaging in controlling and coercive behaviour, two counts of Breach of non-molestation order, two counts of Use a motor vehicle on a road/ public place without third party insurance, two counts of drive a motor vehicle otherwise then in accordance with a licence and use of a motor vehicle on a road without a valid test certificate. Debra Williams has explained that the 24 month Community Order E is serving covers the above offences".
Social worker, Miss Stone, witness statement dated the 29th October 2024
"On 15th November 2023, at 11:15am, I spoke to A on the phone. I had to introduce myself and explain who I was to A again, as she explained that she had spoken to lots of professionals over the last two days. During this phone conversation, A explained that she was not happy as E had been arrested for 'GBH of hurting D'. A stated 'E wouldn't hurt a fly and he wouldn't hurt me. A also said that she had spoken to PC Elliot and knows that C had said that E hurts her. A said that her and E play 'slapsises' and this is what she thinks C was talking about. A said that E had never hurt her and she does not believe he would hurt D. A got very emotional during this phone call, and asked if she could call me back at a later time".
Miss Stone's oral evidence
Witness statement of the Health Visitor Miss Sharon Thompson dated the 5th February 2024
Viability assessment of E dated the 3rd May 2024
"E shared that he has ADHD, depression, anxiety and PTSD. He takes the following medication; Concerta XL for ADHD, Omeprazole for acid reflux and Quetiapine which is an anti-psychotic medication which E believes was prescribed for 'split personality disorder'. This was prescribed when he was in prison in 2020. He explained that this is because he can fluctuate between being really happy or being really low and locking himself away".
"E was sentenced to a 24 month Community Order on 21/04/2023 for the offence of Controlling or Coercive Behaviour in an intimate or family relationship. He has requirements attached to the order to attend the Building Better Relationships programme (BBR), 12 months mental health treatment, 40 Rehabilitation Days and undertake 100 hours of Unpaid Work. He currently has 75 hours of the Unpaid Work outstanding. He has yet to undertake the BBR programme. He was referred to Medway Mental Health but as he lives in Swale this was recently closed and a referral was made to Swale Mental Health. He has yet to start treatment. E is very much in denial of any wrong doing…….
E has previous convictions including previous for offences committed within a relationship. He is currently assessed as a high risk of harm to partners and given his current situation in relation to D is assessed as a high risk to known children".
Letter from E'S probation officer, Miss Williams dated the 14th February 2024
Police witness statement dated 14th November 2023
"On Friday last week I was upstairs sorting out C, getting him ready for bed, I was coming down the stairs and E started saying "she is going to go into one, she is going to go into one she tensed up and had a seizure", E was holding D up, he handed her to me and I knelt down….put her into the recovery position…she was sick, she then stopped breathing and E did 5 or 6 breathes for her and chest compressions. He had to do that about 5 or 6 times and then she came round" (1849).
Transcript of police interview with A dated the 17th November 2024
Transcript of police interview with A dated 30th April 2024
"Literally. what happened was, I said, "C, come on, let's go upstairs, put you to bed. I put some TV on for you. You can watch some TV". She's bursting out crying downstairs. And all of a sudden, I hear silent. And I go running down the stairs like, "What's going on?" "Oh, she's gone like this", and I get handed a floppy baby. And then she goes tensed. I'm thinking to myself, "What's going on? She's screaming one minute". I'm thinking to myself, "He's making me feel like she's cried so much that she's tired herself out. She's just gone". Because sometimes when babies cry so much, they just naturally just go to sleep. But not to that extent" (2020).
A's witness statement dated the 4th March 2024
"D was getting better and then when I was upstairs with C getting him ready for bed I could hear crying quite strongly, E was downstairs with her. As I came downstairs and got to the bottom of the stairs I saw she started going funny in her face, her pupils were dilated and as E picked her up her arms and legs went stiff, her legs were crossed. I picked D up …she was being sick and she was stiff. She then went floppy with her eyes closed and seemed to be struggling to breathe and was gasping as she was being sick…..she then stopped being sick and stopped breathing and went pale. E videoed it on his phone, he was trying to unlock my phone to call an ambulance. He unlocked it and I called 999. At this point she had stopped breathing and we laid her on the floor and E tried to breathe into her and did chest compressions" (184).
153. A denied that E was ever violent towards her or physically aggressive in any way. A said that C's report of E hitting her in the eye did not happen and speculated that sometimes she and E would "play slapsies …maybe this is what C saw and heard", (186).
"33. I text him to say the relationship was over and he text me back indicating he would end his life.
34. During the time we were together he slit his throat a few times. The first time I ever saw it I was in hospital looking after D. I went outside for a cigarette and he facetimed me from the summerhouse at his parents home. He said "I can't do this anymore", I don't really know what he meant but he seemed to be gasping for air and he had blood coming from his neck. I immediately hung up and called his Mother and told her.
35. A few weeks later he did it again. We were in bed at his house and he woke me up and had blood on his pillow and saying "I can't do this any more" and was crying.
36. I am now worried that he might be guilty of something and that was why he did it. I really don't know if he did anything to D or not".
A's oral evidence
In response to questions from Mr Hooker A said that she did not take the threat that she alleges E made against F in December 2023 seriously - "I laughed it off it was all words". The only threat that A could identify as a threat against herself was the incident when E told her to choose between seeing him or her twin cousins adding "I don't know if I would call it a threat".
The maternal step grandmother F
Police witness statement dated the 18th April 2024
F' witness statement dated 30th May 2024
F' witness statement dated the 28th October 2024
F's oral evidence
Police transcript dated the 15th November 2023
"I love it. I absolutely love it. I'm getting smiles, like, the majority of the time I'm getting smiles. She's happy, cuddly. She talks to me as babies do. So I can sit there, have a conversation with her and I'm happy. Like, I'm getting to spend time with my first daughter".
Police transcript dated 15th May 2024
E's approved and unsigned witness statement January 2024
"I cannot recall there being any issues with D during this week, but I do recall her being quite fussy. D only seemed to settle for either N or myself. This would be for things like feeding, being changed and going to sleep".
"I was sat on sofa with D on my chest after a feed. I had winded D. A popped out to get something from the shop which is about 2 minutes' walk away. I then noticed about a minute after A left that D went stiff and cold. I phoned A straight away as I didn't know what to do and told her to get back as soon as possible. A came straight back so was at home within a minute of me calling her. When A got back she took D from me and I then phoned 999".
"b. I went back over to A's late afternoon that day. We had dinner. A put C to bed. I had just made up a bottle to feed her whilst D was in her bouncer in the front room. I picked D up, sat on the sofa to feed her. I then needed her muzzie, so I placed her sitting up in the corner of the sofa so she couldn't fall down. I then picked the muzzie up, then picked D up and she went stiff again. By this point I heard A was coming down the stairs, I shouted for her and she came in the room and A picked her up off me and held her on her side as D started to vomit. I started to record the incident so we had something to show the doctors
c. Whilst I was using my phone to record, I used A's phone to call 999. At first I couldn't get onto A's phone as I was getting the code wrong. d. Whilst on the phone to 999, we placed D on the floor, her eyes rolled into the back of her head. I ended up giving CPR to D that day as well. I think it was about 5 minutes before the paramedics arrived. By that point D was breathing slightly so I picked up D and placed her on the sofa so the paramedic could look at her and put an oxygen mask on. I was very upset and distressed so I went outside to have a cigarette and I ended up hitting the wall. Whilst I was smoking a cigarette I was on the phone to my mum".
"The only time I can think of that might have been misinterpreted was when we were messing around one night on the sofa and playing "slapsies" – C was up in his bedroom but I guess could have heard us mucking around".
E'S witness statement dated the 21st November 2024
"I have not caused the injuries on purpose….I think it is entirely possible that I may have accidently moved D after she collapsed in a way that could have contributed to her presentation, my memory is not clear. I think it is possible that A may have mishandled her accidently whilst trying to help her then, (emphasis added). E says that "a lot happened in such a short space of time when D had her seizures as both myself and A were panicking and moving D around and handling her from one to the other".
a. Throughout the following the TV was always on.
b. I fed D holding her in my left arm and held the bottle in my right hand
c. I lifted her up and put her over my left shoulder.
d. I burped her by patting her bum. I managed to get a couple of burps from her.
e. She then got "raggy" whilst I was holding her on my shoulder
f. When I say "raggy" – I mean she started crying and screaming. It was a stressful cry and when she was doing it she was trying to catch her breath.
g. I then brought her down and held her again in my left arm
h. "I went like that" (This is from the police interview – "I was trying to sooth D by rubbing her tummy with my fingers. She wriggles about and she started smiling so I thought, "Ah, lovely"
i. I placed her on the sofa to my left with a cushion behind her so she was sitting upright.
j. I got up to get the remote controller off the TV stand.
k. At this point A and C left to go to the shop. The shop which is about 2 minutes' walk away.
l. I sat back down on the sofa, lifted D onto me and then lay down on the sofa.
m. It didn't take long for D to fall asleep.
n. She was fidgeting in her sleep.
o. I felt her get cold whilst she was on my chest.
p. She then started shaking.
q. Screaming and gasping for breath.
r. I sat up and moved her from on my chest back into my left arm.
s. She continued to struggle for breath and then went limp.
t. I phoned A straight away. D was still in my left arm and I was using my right hand to use my phone.
u. I didn't know what to do and told her to get back as soon as possible.
v. I said something like "there is something wrong with D hurry up and get back".
w. A came straight back so was at home within a minute of me calling her.
x. When A got back D was still in my arms.
• He was not lying on a bed.
• D's leg was not shaking,
• One of D's eyes was "all gunky from conjunctivitis so that was shut",
• "D's eyes did not roll into the back of her head – that was the second seizure later in the week".
a. I went back over to A's late afternoon that day. We had dinner. A put C to bed. I made up a bottle to feed D. Whilst I was doing that she was in her bouncer in the front room. I picked D up, sat on the sofa to feed her. I then needed her muzzie, so I placed her sitting up in the corner of the sofa so she couldn't fall down. I then picked the muzzie up, then picked D up and she went stiff again. By this point I heard A was coming down the stairs (she had finished putting C to bed so was coming down from that), I shouted for her and A came flying into the room quickly and took D out of my arms rapidly. She grabbed D and pulled her in, and held her on her side as D started to vomit. I started to record her on my phone so we had something to show the doctors.
b. Whilst I was using my phone to record, I used A's phone to call 999. At first I couldn't get onto A'ss phone as I was getting the code wrong.
c. I couldn't get into the phone so I gave A the phone and I took D from her. A then unlocked the phone. A called 999.
d. Whilst on the phone to 999, we placed D on the floor. Her eyes rolled into the back of her head. I ended up giving CPR to D that day as well. A left the phone with me and left the room. I think it was about 5 – 10 minutes before the paramedics arrived.
e. At some point A phoned F to come up to the house as we needed someone to look after C.
f. By that point D was breathing slightly so I picked up D and placed her on the sofa so the paramedic could look at her and put an oxygen mask on. I was very upset and distressed so I went outside to have a cigarette and I ended up hitting the wall. Whilst I was smoking a cigarette I was on the phone to my mum. Whilst on the phone I saw a fire engine come down the road – it turns out they have come to help the paramedic as an ambulance had not arrived (the paramedic arrived previously in a car on her own). An ambulance turned up eventually to take D to hospital.
g. Whilst they were getting D into the ambulance, A ran to the shop to buy some things. Then when the ambulance was ready to leave, A was stood at the back smoking a cigarette. I remember she insisted on finishing the cigarette before getting in and later I had a go at her about this when we were at the hospital because it delayed the ambulance leaving".
E's oral evidence
231. E denied the suggestion that when D cried he would sometimes snap and say shut up. E said "that is not true …if I had a bad day I wouldn't go there why would I want D to see that….they can still sense it when an adult or parent is frustrated". Mr Woodward – Carlton took E to A's police transcript of the 30th April 2024 where on page 2019 A says "when he hears a screaming baby, he just tells Lilly to shut up". E said that this was not true and that "I may have said it jokingly". E did not accept the suggestion that if he was in a bad mood he would say it more aggressively and said "I hide it away kids don't need to see that".
232. E accepted that when he would feed D he could become frustrated and upset because he could not feed her and that he would then give D to A "she is the mum she knows how to do it". E agreed with the suggestion that D could "play up" - "even for A she would push her bottle out…but that's what kids do". Mr Woodward – Carlton asked E what he would do if A was not there. E said that he would call his own mother. If neither were available "I would wait a few minutes and try again then have to wait to see if she takes the bottle….you've got to be patient with kids". E when asked if he was patient replied, "yes and no" and agreed that it can be challenging when you can't get the response you want. Mr Woodward – Carlton put to E that he can act without thinking and that punching the wall on the 11th November was not a sensible thing to do. E reply was "everyone is different as to how they destress themselves".
233. E denied telling C to "fuck off and come back when you can speak properly". Mr Woodward- Carlton suggested that C was scared and wary of E and that he would stand in the doorway. E said that he did not know if C was wary of him and that "I would just concentrate on D….I didn't speak to him ….I didn't want to interact with him ….my focus was on D". E also denied that he had called C a 'fucking spastic' adding "he has a speech problem I am not going to take the piss out of him". Mr Woodward – Carlton took E to the witness statement of Fiona White a clinical sister at Medway Maritime Hospital dated the 9th November 2024 (65 supplemental bundle). In paragraph 5 Miss White refers to the events of the 13th November 2023 and says this: "I went back into the cubicle and confirmed identity details with E, I do not recall if A was still on the loudspeaker via the phone at this time. Whilst I was still in the cubicle talking to E, he stated that if this was an injury, the only way it could happen was if the 5-year-old sibling did something, as his behaviour was bad, and he has attention deficit hyperactivity disorder (ADHD)/autism. I did not question further as to what he meant by this". Mr Woodward – Carlton put to E that he was trying to blame C. E response was: "I don't remember saying that …..I would not have used big words, [referring to attention deficit hyperactivity disorder] ….he has not got the strength to do anything". Mr Woodward – Carlton reminded E of F's evidence that for months and months the mention of his name caused C to panic. Mr Woodward – Carlton put to E that "you were unpleasant to that little boy and that is why he was scared of you" to which E replied "never". That is why, said Mr Woodward – Carlton, C had given the thumbs down for you to the social worker and the police officer. E's response was "I don't know - I was not there".
234. In her police transcript at page 1922 A had said that E on the 8th November had been a "bit snotty…..he had a bit of dust an all that up his nose…where He's been helping his mate's nan and grandad". E told Mr Woodward – Carlton that he could not remember that and that he was fine. E said that before A went to the shops, he probably had two beers. E did not remember A offering him paracetamols, (1923). Mr Woodward – Carlton put to E that in his January 2024 statement E did not mention that Dwas crying. E's reply was "I can't remember".
235. Mr Woodward – Carlton took E to the medical entry on the 12th November 2023 when D was seen by Dr Ramadan, (the note begins history from mum and dad). Mr Woodward – Carlton said that the note said, "laying on dads belly, started screaming, then went limp, cold and gave mouth to mouth breaths" (1046). E agreed that D was on his belly and that she went limp but "not screaming - it's not right". Mr Woodward – Carlton took E to the ambulance note for the 8th November at page 1640 which records "patient began crying so dad picked her up to console her". E explained that to console D "I tickled her belly with my fingers …[and] it was possible that she started crying". E said that he could not remember if D gasped for air. E said that he remembered D's eyes rolling on the 11th November but that he did not think that they rolled on the 8th November.
237. Mr Woodward – Carlton referred E to paragraph two of the witness statement of the social worker Miss Stone dated the 29th October 2024. Mr Woodward – Carlton pointed out that Miss Stone had observed that neither he nor A were able to remember the details of when D was having her seizures and that they provided different dates and times as to when the seizures had taken place. E agreed with Mr Woodward – Carlton that he found it difficult to remember the details. Mr Woodward – Carlton referred to paragraph 3 of E's statement of the 21st November 2024 where he asserted that his medication adversely affected his memory. E said "I get bits and pieces….some bits are blurry". Mr Woodward – Carlton put to E that most of the accounts that he has given as to the events in November 2023 are quite brief and then he provided real detail in paragraph 7 of his recent statement in which he set out about 30 individual details. Mr Woodward – Carlton asked when E had come up with the list to which he replied, "when they asked me the questions". E accepted that his memory was still a bit blurry and Mr Woodward – Carlton asked should we be cautious that the detail in paragraph 7 may not be right. E replied " I am not able to remember every detail".
The Law.
The s.31(2) threshold criteria
"A court may only make a care order or supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control".
The presence of risk factors and protective factors
"In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed, and the facts established" (paragraph 19).
Findings of fact must be based on evidence
The inherent improbability of an event having taken place
"The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred".
The court should not consider the evidence in separate compartments
Evidence of propensity to cause harm
"59. Such evidence may demonstrate that each parent has been or is capable of being physically aggressive or emotionally abusive to the other. The potential for harm to a child in such circumstances is self evident but in order to ensure that it is considered in every case, Parliament has enacted an amendment to the 1989 Act to provide for the same: by section 31(9) as introduced by section 120 Adoption and Children Act 2002 'harm' explicitly includes impairment suffered from seeing or hearing the ill-treatment of another: in colloquial terms, domestic abuse.
60. However, despite the above, what such incidents do not of themselves demonstrate is that either parent has the propensity to violence towards small children. A clear distinction is to be drawn between the relevance and admissibility of evidence which describes the harmful circumstances in which a child is being cared for and the same evidence when it is used to suggest that a person has a propensity to commit a particular act. In other words, the evidence will be very relevant to harm or its likelihood in section 31(2) and the court's assessment of risk in section 1(3)(e) of the 1989 Act but not necessarily to perpetration. It may be forensically unwise for the court to attach much, if any, weight to this evidence if it is directed only to the question of propensity. This accords with the obiter dicta of Wall J. in Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 @ 218, where he said: "Evidence of propensity … is unlikely to be of any assistance in resolving a purely factual issue", (emphasis added) .
"49. In judging the father's credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here.
50. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely".
"Moreover, and with the greatest diffidence and respect for Wall J, the starting point for consideration of the relevance of such evidence should not be hampered or distorted by a presumption that such evidence is "unlikely" to be of assistance. It will depend on the facts of the individual case".
"There is here an established pattern of F becoming violent and losing control. This is exacerbated with drug and alcohol consumption, which, as I have stated, the evidence establishes as being used in excess at the relevant time. Also, M and F were living in much more confined circumstances, arising from F's injury. Both, I note, had identified their respective needs for privacy and space. The changed situation compromised this. I have concluded that F was behaving, as M asserted in her application, violently and personally out of control. I emphasise that all these are ascertainable facts from which reasonable inferences can be drawn. They also establish a propensity for F to lose control, in an extreme way, and to become violent. By contrast, there is no such evidence relating to M's behaviour. Cumulatively, for the reasons that I have identified throughout this judgment, I consider the evidence points markedly towards F as most likely to have caused R's fractured fourth posterior rib. On the balance of probabilities, I find that he did".
The absence of ancillary injuries in cases where it is alleged that a carer has shaken an infant
Failure to protect
"60. Ms Williams accepted that it cannot be right to say that any woman who fails to separate from a partner who has been violent outside the home in adult situations is failing to protect her children, although in certain circumstances that may be the case. On the judge's findings, GL has a quick and unpleasant temper and is controlling within his personal relationships. This can be very serious and controlling and coercive behaviour is rightly, in certain circumstances, now recognised as a form of domestic abuse which can lead to a criminal conviction (Section 76 Serious Crime Act 2015).
61. On the facts of the present case however, these unattractive personality traits and/or the controlling personality of GL did not prevent the mother from acting quickly and appropriately when her child was injured, and she maintained her independence sufficiently wholly to ignore GL's suggestion that L should not be taken to see a doctor. In my judgment, putting together GL's behaviour in the home with his aggression on two occasions a number of years apart on adult men outside the home, do not go anywhere near supporting a causative link such that the mother ought to have known that GL presented a risk of physical abuse to L or the twins".
"41. In relation to evidence which emerges, or events which take place between the date of an application for a Care Order and the final hearing, Hale LJ (as she then was) considered the extent to which such evidence can be taken into account in Re G (Children) [2001] EWCA Civ 968.
42. Hale LJ noted that it is common ground that at the welfare stage, and therefore in an application of the welfare checklist found at section 1(3) Children Act 1989, the Court can take into account all the information available at the date of the hearing in deciding what order to make, the threshold criteria having been established. The question in that case was whether the Local Authority could rely on later events in order to support or prove a particular state of affairs when the proceedings had begun i.e. in relation to threshold, not welfare. Hale LJ said [23]:
"…I would agree with [counsel] that later events cannot be relied upon unless they are capable of showing what the position was at the relevant time. But if they are capable of proving this, then in my view they should be permitted for that purpose. It will then be a matter for the judge to consider how much weight they should be given. This will not always be an easy task."
"That the judge put it in the way that she did in her clarification, seems to suggest that she was saying that the failure to protect arose after the injuries and was consequent upon the mother failing to separate from GL at that stage. With respect to the judge, that cannot be right from either a legal or factual point of view. As Hale LJ pointed out, such factors might well be of significance during the consideration of the checklist under section 1(3) Children Act 1989 at the welfare stage of the proceedings, but not in respect of establishing a failure to protect which predated L's injuries".
The courts' approach to the medical evidence
"It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non – medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other".
"Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility".
"In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion."
"In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities." Jackson J (as he then was) made a similar observation in Re BR (Proof of Facts) [2015] EWFC41: "where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case".
The courts' approach to the medical literature
A Lucas direction
"Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt". A lie can corroborate/support other evidence as to culpability if the lie can be shown to have been deliberate, (with reference to other evidence in the case), the lie must relate to a material issue in the case and the court must find that the only explanation for the lie is the witnesses guilt and fear of the truth and there are no other innocent explanations for the witness lying such as a desire to bolster his case , shame or confusion.
The court's assessment of a witness's credibility
"in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on 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".
Hearsay evidence
Allegations made by children
"For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled Achieving Best Evidence".
Whether the court can make findings that are not advanced by the local authority
"55. The local authority had only sought a finding that the mother was the perpetrator. The alternative finding that the identity of the perpetrator could not be established on a balance of probabilities but there was a real possibility that the mother or another person was the perpetrator was never canvassed during the evidence or in submissions. It is well established that a judge "is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority" but may, if there are good reasons, make findings of fact which are not sought by the local authority, provided "(a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised" (per Wall LJ in Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10 paragraph 16). In Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437, an appeal was allowed against a finding that child had been infected as a result of an act of sexual abuse perpetrated by a mother and her partner acting jointly. That possibility was never raised by any party or the court until after judgment so neither the mother nor her partner had an opportunity to respond, either in evidence or argument. At paragraph 63 of my judgment in that case, I said:
"It is axiomatic that a party against whom findings are sought in care proceedings is entitled to notice of the findings sought, the evidence on which they are based, and a fair opportunity to rebut them."
56. But the obligation to ensure the "fairness of the fact-finding process" is owed to all parties, including the local authority and the children. If the court in assessing the evidence forms a view that the evidence may support findings on a basis which has not been raised or considered during the hearing, it is incumbent on the court to address that possibility if the potential findings are material to the welfare decisions which it is required to make about the children. That may lead to an extension or even an adjournment of the hearing. But where the findings, if made, would have a material impact on decisions about the child's long-term care, the court cannot avoid considering them, whatever the inconvenience that may cause".
Coercive and Controlling behaviour
• "coercive behaviour" means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim;
• "controlling behaviour" means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour".
The parties' submissions
Analysis, discussion and findings
i. My view as to the medical evidence.
ii. Specific allegations/submissions.
a. E's criminal history.
b. E's arrest on the 15th November 2023.
c. E's relationship and interactions with D.
d. E's relationship with C.
e. My assessment of the credibility of A.
f. My assessment of the credibility of F.
g. My assessment of the credibility of E.
h. The significance of the text messages sent on the 9th November 2023.
iii. The pleaded claim.
a. The events on the 8th and or the 11th November 2023.
- Whether E has been threatening, controlling and/or abusive to A in that.
- On 24.12.23, E assaulted A by grabbing, pinching and yanking her arm.
- In December 2023, E threatened to kill everyone in F's house if he was stopped from seeing D.
- Between September 2023 and January 2024, E threatened to end his life, so as to control or influence the behaviour of A.
- Between September 2023 and January 2024, E coerced A into deleting her Snapchat application and some male friends on her social media applications.
b. Whether A failed to protect D from significant harm by continuing in a relationship with E:-
- Who she knew to be threatening, controlling and abusive.
- Who she knew misused alcohol and drank every day.
- Even though she had suspicions that E may have shaken D or handled her roughly.
The medical evidence
Causation of injury
The timing of injury
"In summary, D's clinical presentation is consistent with an episode of trauma before her presentation on 08 November and after she was last observed to be behaving and feeding normally. This episode of trauma is consistent with causing the subdural bleeds and a fluctuating encephalopathy, responsible for her presentation on 09 November with irritability and vomiting. She may have been subject to an additional episode of trauma on 11 November shortly preceding her second collapse or possibly this was also due to a fluctuating encephalopathy and/or seizures caused by an episode of trauma on or before 08 November".
Alternative explanations for the subdural bleed
a. A blood clotting disorder.
b. A genetic disorder.
c. A subdural bleed sustained during birth.
d. A subdural bleed caused by the lumbar puncture performed on the 12th November 2023, (the subdural haematoma's having been revealed by the CT scan performed on the 13th November 2023).
e. A BRU or an ALTI.
f. Rough handling in particular when D was passed between E and A on the 8th and 11th November 2023.
g. An unknown cause.
A blood clotting disorder/genetic disorder
A subdural bleed sustained during birth
A subdural bleed caused by the lumbar puncture performed on the 12th November 2023
A BRUE or an ALTE
Rough handling in particular when Dwas passed between E and A on the 8th and 11th November 2023
An unknown cause
The lack of any evidence of ancillary injuries
(a) No bruises to D's head or body at all. Not only does this militate against any kind of direct assault, but it points away from an adult gripping her hard to shake her;
(b) No skull fracture;
(c) No metaphyseal limb fractures – these are the fractures at the end of the long bones (i.e. at the metaphyses) caused by flailing limbs when a child is shaken;
(d) No rib fractures, posterior or otherwise – these often accompany an inflicted head injury from shaking because the perpetrator will grip the child around the chest to shake them;
(e) No brain injury (i.e. to the parenchyma or brain substance) – no contusions/bruising to the brain from collision with the skull during a violent shake and no tears or lacerations;
(f) No hypoxic ischaemic injury to the brain i.e. a brain subject to oxygen and/or blood depletion, often seen as a result of a shake;
(g) No axonal damage – shaking injuries can cause shearing injuries to the bundles of axons within the brain;
(h) No thrombosed veins intracranially;
(i) No subarachnoid bleeding or subpial bleeding – bleeding below the arachnoid and pial membranes can often be seen in shaking cases;
(j) No evidence of any subdural bleeding in the spine – construed as a marker of a shaking injury;
(k) No evidence of any damage at the cranio-cervical junction at the top of the neck – this can occur when the head flops from side to side rapidly during a shake. This was not scanned, but there were no signs of external injury that might have prompted an MRI of that area. The absence of evidence must be factored in. Dr. Hogarth indicated that the imaging undertaken or not undertaken in this case at Medway Hospital was not at the expected standard;
(l) Unilateral retinal haemorrhage, not bilateral. There were no other retinal features that might be diagnostic of an abusive shake i.e. no perimacular folds.
Specific allegations/submissions
E's criminal history
E'S arrest on the 15th November 2024
E'S relationship and interactions with D
E's relationship with C
My assessment as to the credibility of A
My assessment as to the credibility of F
My assessment as to the credibility of E
The significance of the text messages sent on the 9th November 2023
The events of the 8th and the 11th November 2023
8th November 2023
11th November 2023
My findings as to the allegation that E shook D on the 8th and/or the 11th November 2023
Whether E has been threatening, controlling and/or abusive to A
On 24.12.23, E assaulted A by grabbing, pinching and yanking her arm
In December 2023, E threatened to kill everyone in F's house if he was stopped from seeing D
Between September 2023 and January 2024, E threatened to end his life, so as to control or influence the behaviour of A
Between September 2023 and January 2024, E coerced A into deleting her Snapchat application and some male friends on her social media applications
Whether A failed to protect D
i. Who she knew to be threatening, controlling and abusive.
ii. Who she knew misused alcohol and drank every day.
iii. Even though she had suspicions that E may have shaken D or handled her roughly.
• The existence of the facts upon which the failure to protect is predicated. In other words, the local authority would have had to establish that E was threatening, controlling and abusive and that he misused alcohol and drank every day.
• That A knew that E was threatening, controlling and abusive and that A suspected that E may have shaken D or handled her roughly.
• If the local authority was able to establish the above it would then have to show that the knowledge of those facts and A's failure to act caused D to suffer harm.
That E was threatening, controlling, abusive and misused alcohol every day
HHJ Clive Thomas.
17th December 2024