England and Wales High Court (Family Division) Decisions

IN THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION

		First Avenue House 42-49 High Holborn London WC1 6NP
		29th January 2013

SIR MARK HEDLEY:

1. This case concerns a family who live in the London Borough of Lambeth, or rather did at the material time. The mother of the children, who is the first respondent, had two relationships; one of which resulted in the birth of Child A on [a date in] 2003, so she is now nine-and-a-half; and the second in the birth of Child B, who was born on the [a date in] 2010, so that she will shortly be three.
2. That relationship also produced Child C, who lived a tragically short time, from 11^th February 2011 for about 10 weeks until 18^th April 2011 when he died in circumstances that have been central to the consideration of this case.
3. This case is unusual in the sense that this family have been engaged in litigation, really since 12^th May 2010, when the Local Authority sought a care order as a result of injuries that were sustained by Child B that year.
4. The judgment of His Honour Judge Ansell given on 14^th October 2010 made certain findings adverse to the Mother, and they are summarised by counsel at pages I 79 and 80 of the bundle of documents in this case. Basically they attribute responsibility to the Mother for a spiral fracture of Child B's right humerus and metaphyseal fractures to the radius and ulna of the right wrist and a re-fracture of the humerus. There are consequential findings on that which I do not need further to go into.
5. As it happens, at the time of that hearing, the family were already engaged in a residential assessment, and there was a very substantial residential assessment which resulted in the reunification of the family prior to the birth of Child C. It is important to have in mind that the family remained under close scrutiny throughout that time, the contact records in relation to that period show that the family was functioning well and there were no significant concerns in relation to any of the children.
6. Of course, once Child C had died there were inevitably, as I shall recount, proceedings developed and those have been on-going and still are. A number of events have taken place during the course of them. The first was the return home of Child A from foster care; the second was the placement of Child B from foster care with the paternal grandmother on 31^st May 2012. The case was anticipated to be ready for a final hearing in March of last year but because of the development of the medical evidence, to which I will come shortly, that was postponed and indeed was ultimately listed for a five-week hearing due to begin on 21^st January of this year.
7. Clearly had such a hearing been effective it would have had to go to another judge. However, I had maintained the case management of this case and it was apparent from what counsel told me that there were discussions and fresh consideration going on, as it were, up to the last moment as to whether or not the fact-finding hearing should take place. In the event, the Local Authority indicated shortly before the trial was due to start (and I interpolate to say that is no criticism, everyone knew that timescale was going to happen) that they would seek permission to withdraw the finding of fact hearing. In those circumstances it was decided on all sides that the case should remain before me, notwithstanding my retirement, as I knew it and, of course, as no other judge would then have to read into it.
8. As the case has come on today, there are three issues for my determination. The first is the Local Authority's application to withdraw the finding of fact hearing in relation to the causation of death of Child C; the second, as described by Mr Ian Peddie QC, is a request by the Local Authority for guidance as to whether they should pursue a fact-finding in relation to bruising found on Child B on 4^th April 2011; and thirdly, to consider what arrangements need now to be made for a final welfare hearing.
9. The parties have requested a judgment in these circumstances: partly to safeguard the future so that the judgment may travel with and explain the order to be made; partly to provide the basis on which further proceedings herein may be conducted; and partly to provide some account to the children in due course of what has happened to them, and why. I entirely accept that a judgment is necessary for all those purposes and, having formed the view that it was in everyone's interest that I should give this judgment today, I am indeed doing so.
10. In my view, this judgment should be treated as being given in open court, because in my judgment it is essential that such serious matters as the withdrawal of a hearing in to the causation of death of a child where there is conflicting medical evidence is something that should be dealt with in public and should be available to public scrutiny and comment. I will, however, hear submissions at the end of this judgment as to the extent, if any, to which anonymity orders ought to be attached to it.
11. Let me then turn to the permission to withdraw. As Mr Peddie correctly acknowledged in his submissions, the Local Authority have no right to withdraw, nor indeed does any other party, and withdrawal must always be a matter for the court. There is a degree of authority on this, but it appears to speak with one voice, and to this effect: that if the position is that the Local Authority simply have no case in relation to the threshold criteria under Section 31(2) of the Children Act 1989, then probably they should be allowed to withdraw as a matter of course, since unless those criteria are proved, the court has no jurisdiction to make orders regulating the welfare of the children; if, however, there is some evidence that the threshold criteria could be substantiated, then the court is required to consider the matter on a welfare basis, and apply to the decision as to whether to give permission to withdraw the criteria set out in Section 1 of the Act.
12. At the heart of this case and many similar cases lies the vexed question of the standard of proof and the consequences of proof in these cases. Undoubtedly, the burden of proof lies on the Local Authority. Since the decision in the House of Lords in Re B [2008] 2 FLR 141 it is beyond argument that the standard of proof is the ordinary balance of probabilities, and that is clearly articulated by Baroness Hale and in some consequential observations of Lord Hoffman to which I will come back shortly.
13. The standard of proof by itself does not always answer the instant problem in the case, because the issue is not so much what the standard of proof is, but the evidence required to discharge it. In my judgment, a valuable warning note was sounded by the Court of Appeal Criminal Division in the case of Henderson & Others [2010] EWCA Crim 1269, and particularly in the words of Lord Justice Moses which introduce the judgment of the court in those cases, and he said this;

'There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. It is of note that when the Attorney General undertook a review of 297 cases over a 10-year period, following the case of Cannings, 97 were cases of what was known as 'Shaken Baby Syndrome'.

The controversy to which such cases give rise should come as no surprise. A young baby dies whilst under the sole care of a parent or child minder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities and juries must reconstruct, as best they can, what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the Prosecution is able, by advancing an array of experts, to identify a non-accidental injury, and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted.

In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.'

14. Those words apply with equal force in family proceedings, and it is equally important within family proceedings that the court should keep an open mind, should not fall into the temptation of deducing non-accidental injury from the absence of any other identifiable causation but recognise that there may be areas that we do not understand.
15. I venture with all becoming diffidence to quote a passage of my judgment in Re R (Care Proceedings: Causation) [2011] 2 FLR 1384, and I do so, not because of its inherent merit, but because it has recently been approved by the President giving the lead judgment in the Court of Appeal in Re M (Children) [2012] EWCA Civ 1710. I expressed these views:

'I have been impressed over the years by the willingness of the best paediatricians, and those who practise in the specialities of paediatric medicine, to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants.

Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using controlled samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown etiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn, and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.'

16. That then seems to me to be the legal framework within which these two applications relating to findings of fact should be considered. Mr Peddie, of course, drew my attention to the well-known judgment of the previous President as to the circumstances in which fact-finding hearings ought to take place, and in particular whether they were actually necessary for the purposes of the decision making about the child.
17. It is, I think, important to bear that aspect in mind as well, but if we confine ourselves just for the moment to the medical issues, the relevant background is this: all the evidence is that Child C was a loved and well-cared-for child; there is the evidence of his urgent admission and sad and sudden death; there is the discovery at death of the presence of what is often referred to as the 'triad', that is to say, subdural haematoma, hypoxic-ischemic injury and retinal haemorrhage.
18. It is pretty well inevitable, in the current climate, that when that is found, the inquiries will initially focus on non-accidental injury causation and that is precisely what happened in this case, and why, of course, these proceedings were launched. However, as the medical evidence developed, it became apparent that something was not quite right, and very extensive enquiries amongst many disciplines was undertaken. What seems to have emerged in the end was a view on the one side that, notwithstanding the various abnormalities, a diagnosis of non-accidental injury remained the leading possibility, whereas on the other, and in particular in the pathology evidence of Dr Cary, Professor Risdon, Professor Freemont and Professor Scheimberg (which I am told spoke with an unusual expression of unity) that Child C's skull was of a particularly unusual nature, indeed for Dr Cary and Professor Risdon it was unique to their experience, though one pathologist claims to have seen it on other occasions.
19. What made the case difficult was their observation that crucially it was not possible to say how such a skull would react to force at any level applied to it, and, of course, some forces are pretty well inevitable in the course of life. And thus it would not be possible confidently to discern the mechanism of fatal injury, much less to ascribe it to parental culpability, and so the Local Authority and the parties, and, of course, the court were confronted by distinguished, competent, impartial evidence of many disciplines that strongly tended in different directions. Now that clearly raises difficulties.
20. Into that has to be fed certain other matters. First of all, one has to take account of the close supervision and the contact reports in the time of Child C's brief life. On the other hand, that has to be balanced by the findings that Judge Ansell made in relation to Child B. But the court has to acknowledge the wide breadth of medical opinion. Moreover, as Ms Delahunty QC and Miss Scriven QC have pointed out, these kind of proceedings take a heavy toll on the family itself, and that is a factor that should be taken into account in deciding whether a trial that might easily go either way should be undertaken. Moreover, Mr Peddie, in his submissions, made it clear that the Local Authority had independently reached the conclusion that whatever the findings the court may make, the interests of the children required the eventual reunification of the family.
21. So those were the matters that were put before the court for its consideration, in the context of the legal framework that I had endeavoured to set out, as to whether the Local Authority should have permission to withdraw these proceedings, in which, of course, they were supported by the parties, and indeed by the guardian.
22. In my judgment, after anxious and careful consideration, I am wholly satisfied that the Local Authority were correct to take the view that they have. There is, of course, clearly an issue between the Local Authority on the one hand, and the parents on the other, as to the actual strength of evidence that would have been available to the court. Since I am giving permission to withdraw, it would not be right for me to express a view about that, save to say this: first, my reading of this case merely suggested to me that it may well have all the hallmarks of that kind of case in which the Court of Appeal in Henderson urged the greatest caution; and secondly, there are strong welfare reasons, which I have identified, as to why it may be undesirable or unnecessary to continue with a fact-finding hearing.
23. I am satisfied that when all these matters are viewed together in the round, the Local Authority should, without doubt, have the permission it seeks to withdraw this fact-finding hearing. I appreciate that the granting of such leave, even though unopposed, is a very serious step for the court to take, where what is in issue is the causation of death of a tiny child, but it is important to remember that the function of the court is not to inquire into the death for the purposes of discovering the cause of it, but is more limited: it is an inquiry into whether that death was caused in some part by the parents, or either of them, in terms that would be relevant to Section 31(2) of the Act., that is to say, whether the death is attributable to the care given to the child not being what it would be reasonable to expect a parent to give. That is the inquiry which the statute requires of the court, and it is in those circumstances that I grant the permission that has been sought.
24. Let me then turn, if I may, to the question of the bruising that Child B undoubtedly had on 24 April 2011. I do not need to repeat the background of this because, of course, it overlaps in time with the life of Child C. It is apparent that the parents acknowledge the happening of some accident earlier that day and, whilst the father was present, he did not actually see the accident, nor indeed did anyone else. Child B, at that stage, was a toddler who was a little over one year of age. She was playing with a toy which was used, effectively, as a baby walker, and the belief is that she fell over it, or because of it, and at first it was not believed that this incident was of any significance because toddlers do that kind of thing.
25. Indeed, later that day, Child B was taken to the health visitor and no injuries were seen. Of course that, of itself, tells us nothing because bruising often does not come out immediately, but it does tell us that the parents were certainly justified at that stage in not believing there had been injury. What actually happened was that later still in the day they went to the clinic – actually for the purposes of Child C being seen – but Child B was in the lower deck of a double buggy of the sort with which, no doubt, we are all familiar.
26. Dr Bold was the duty doctor, and asked to see Child B, and observed scratching to the face and bruising over the bony promontory to the cheek. Moreover, she thought that the action of the parents was such as to attempt to conceal the bruising from the doctor. That, of course, is a contentious assertion, but for the purposes of this application, I think I need to assume the truth of it.
27. The Local Authority, in due course, instituted a Section 47 Enquiry as to the bruising, in the course of which they consulted widely, and in particular consulted with Dr Bold and with Dr Jolobe, the community paediatric doctor, and indeed with a more senior community paediatrician, Dr Barnwell, and in due course the Section 47 Enquiry was produced.
28. The conclusions were that the concerns were not substantiated. It may just be worth quoting this from the findings in it, which is to be found on E 216 -

'Dr Bold completed her medical and consulted with the named CP doctor, Dr Jolobe, who saw Child B and then had a further telephone conversation with Dr Barnwell. All agreed that the location of the mark and the time it was said to have happened supported the story given by the parents. It seemed that the parents' presentation was what raised suspicion the most.'

29. Then in the reasons for concluding that concerns were not substantiated, the Section 47 Enquiry contains this:

'The concern that Child B's injury to the left side of her face was non-accidental, purposefully inflicted were not substantiated. The medical view, which so far has not yet been received in writing, is that the location of the injury is in line with the story of how the injury happened, and the suggestion that the mark was not previously noticed by health professionals who saw Child B earlier that morning is consistent with the medical knowledge of how long such marks/bruises take to surface.

My view, and the view that the professionals who know the family, the health visitor, the family support worker, the children's guardian, is that Child B is likely to have suffered an accident and the parents' anxiety about how this might be perceived led them not to volunteer this information with the professional network in place to monitor the children's welfare and safeguard them from any further significant harm.'

30. It is also worth commenting that the medical evidence was that the bruising was on a bony promontory, and that of itself will have given reassurance, because bony promontories are what small children do usually bruise. The real causes for suspicion lie in soft tissue injuries.
31. I should also add that at no time did anyone entertain anxiety about the scratches, because it was well known that Child B had a tendency to scratch herself.
32. The Section 47 Enquiry would normally have been the end of the matter, but of course it was not, because once Child C had died, and once the view was reached that this might be a non-accidental injury, these matters were, probably inevitably, revisited. Dr Barnwell, supported by Dr Coren, re-examined the reports and the photographs and came to the conclusion that this injury too was potentially a non-accidental injury, and to that view they have since adhered.
33. Now, of course, what they say may be right. Pretty well any injury can be inflicted deliberately if anyone puts their mind to it, but the question here is whether there is any prospect of establishing on the balance of probabilities that this was non-accidentally inflicted in the context of the kind of welfare issues to which I have already adverted in coming to my views about Child C.
34. I have concluded that I think it unlikely that the Local Authority will be able to prove this matter in the way in which they are required to do so if it is to be relevant under Section 31(2) of the Act, and I hold that view, however reasonable and honestly the suspicions of Dr Barnwell and Dr Coren are held.
35. The plain fact of the matter is that the Section 47 Enquiry could not be clearer. The injury matched the history; the bruising was in an area where it is not necessarily surprising a toddler gets bruised; and the only matter that was causative of suspicion was what was described as 'the presentation of the parents', that is to say, the perceived attempt to conceal the bruising.
36. Now, of course there is an issue about whether they did that or not, but there is also to be borne in mind the view in the Section 47 report that even if they did it, there was a non-culpable reason for so acting, given the history of the case and the present circumstances in which everyone found themselves. That a new light should be shone on this, in the aftermath of Child C's death, is of itself entirely unsurprising, but having regard to the matters which I have set out, I am clear in my own mind that the mountain posed by the requisite standard of proof is too high to be climbed on this point, as I say, in the context of the Section 47 Enquiry and the observations of, no doubt, perfectly competent doctors at the time, aware of the possible risks of non-accidental injury.
37. When one adds into that the welfare considerations in relation to the care plans, and the length of time that everyone has been subjected to litigation and the like, I am quite clear in my own mind that a finding of fact in relation to this issue would be disproportionate, unnecessary and unjustifiable, and I am not prepared to list any such finding.
38. I should add in passing that reference is made from time to time in the papers to a scald suffered by Child A really as almost the first incident that ever took place in this case. Child A's father acknowledged that he was caring for Child A at the time this happened. No one has suggested culpability on his part, other than the kind of lack of care that any parent is prone to if unlucky, but the anxiety is that it has been referred to from time to time as part of the history which points to a risk in these parents. Now, that is an accepted fact.
39. So where are we now? Well, the parents are anxious about the dangers of allegations of the sort that have been made in this case being used in risk assessments. They point partly to Dr Coren's report where he has, apparently, done just that, and, of course, to the fact that when risk assessments are made, it is all too easy for allegations to assume the status of fact if the only alternative is ignoring them. One can understand that, in this age of risk-averse caution that is always likely to happen.
40. What is the effect then of the judgment that the court is giving? Well, it does nothing to undermine the findings made by Judge Ansell. It does make it clear that the scalding of Child A has nothing whatever to do with the parents who now care for Child A and Child B. So far as the death of Child C, and the bruising of Child B on 4 April are concerned, that is just a little more complicated.
41. I go back, if I may, to the House of Lords decision in B and return to some observations of Lord Hoffman to which I indicated I would indeed come. In paragraph 2, I think it is, of his speech, he says this:

'If a legal rule requires a fact to be proved, a fact in issue, a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of child Aero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.'

42. Of course, that is a tidy piece of legal philosophy in terms of how a system of law can work. It is, however, inordinately difficult to translate into practice on the ground. A fact may be proved, hopefully if it is, it is true, but it may be nevertheless true even though it has not been proved, simply because the evidence is not of a sufficiency to establish proof. We are all aware of that in every aspect of life, really, but if the law is to function in any way that is fair and just, then Lord Hoffman's position has to be maintained, and accordingly that which is not proved must be treated as something which simply did not happen. This means that in the future this case and this family must in all respects be regarded and managed and, of course, any risk assessments be made on the basis that the Mother and father bear no culpable responsibility for the death of Child C, or for the bruising found on Child B on 4 of April 2011.
43. There is no other basis on which the case can be sensibly and properly managed. I am perfectly content that some statement of that sort should form a recital in the order made to implement this judgment. That leaves the plans for a welfare hearing – and I suspect that some further discussions have taken place and it would be better for me not to say anything further at this stage. I will, however, hear any submissions as to anonymity that ought to be attached to this judgment. Likewise, I will hear submissions about transcripts and the disclosure of transcripts, the order itself, of course, being a public document. That is the judgment I propose to give and I am happy to entertain submissions on those or any related topic.
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