England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT
SITTING AT LEYLAND

		Leyland Courthouse Preston
		24/04/2015

His Honour Judge Duggan sitting as a High Court judge:

1. This is the final hearing of the local authority application for Care and Placement Orders. These applications are granted and in fact no active opposition is raised. The contest has been the trial of allegations that the child suffered physical abuse and in particular the issue of the identification of the person responsible. On the 21 April 2014 the mother sought medical advice by telephone. The child was taken to Preston Hospital and was found to have suffered burns and extensive other injuries to soft tissue.
2. The child A was born in 2012. Her mother has come to the difficult but correct and inevitable conclusion that she cannot care for her daughter. No alternative carer is available so she has agreed with the plan for adoption. The father did ask to care for his daughter but the assessments were negative. He then failed to participate in a drug test. He has missed contact sessions without explanation. He has failed to attend this hearing. His solicitor's efforts to contact him have been explained to me and I am driven to the conclusion that in the face of the negative assessment he has given up. I have read the assessment and the outcome was inevitable.
3. The other important figure is Mr C, who was the mother's partner in April 2014 when A's injuries were seen. He has been made an Intervener, he is represented and he has filed a statement. A witness summons was served to ensure his attendance but he was absent on the first day of this hearing. A warrant was issued for his arrest which procured his voluntary attendance and his oral evidence.
4. The local authority has prepared a Schedule of their allegations. The evidence has been assembled in a number of bundles. I have studied the evidence and relevant extracts from the other material. I have heard oral evidence from the burns specialist Mr Phipps, the social workers Mr Howarth and Ms McGuinness, the mother and Mr C.
5. The Law

The principles that I have applied are these. The burden of proof is on the local authority. They must prove their case on the balance of probabilities. My findings are based on the evidence and not on suspicion or speculation. I have taken into account all the evidence, putting each piece in the context of all the other evidence. I have set the medical evidence alongside all the other evidence, remembering that the role of the medical expert is different from the role of the judge. I have weighed all the evidence, of which the medical evidence is only part, in reaching my final decision. I have paid the closest attention to the evidence of the child's carers, forming a view as to their credibility and reliability. It is common in this type of case for a witness to lie during investigations or during the hearing. However they may lie for many reasons, for example out of fear or a sense of shame, so this does not mean that they have lied about everything. Human knowledge is limited and in future medical evidence may be different to that I have today. I have taken into account the possibility that the cause of these injuries is just not known. My task is to try to identify any perpetrator on the balance of probabilities. However if this is not possible I must not strain to do so. In these circumstances my task is to identify those of whom it is proved that there is a real possibility they were responsible.

6. Wider social canvas

The mother was in care herself and had a particularly difficult upbringing. She continues to have mental health problems including emotionally unstable personality disorder. The psychiatrist goes on to describe unpredictable moods and emotions which have no doubt contributed to the history of self harming. The mother has found herself in a number of violent relationships. In 2013 she broke away from one of these and social services identified that she made significant progress such that the child in need plan was terminated. The papers contain praise for her participation with Sure Start. The Health Visitor described her as a perfect mother. In January 2014 domestic violence was again reported and a new assessment commenced. Mr C was said to be a new friend. In particular a social worker visited between January 2014 and April 2014 and reported no significant concerns. However all was not well:-

•    On 6.3.14 the health visitor reported serious concern including concern about deteriorating mental health.

•    On 7.4.15 there was an unconfirmed report that the mother had thrown her child across the room in anger.

•    On 8.4.15 there was an incident with troublesome neighbours which ended with mother and child locked in their own home needing assistance.

•    On 9.4.15 the mother had a benefits issue such that she had no money and needed social services to produce supplies.

•    On 17.4.14 the mother reported that A had cuts to her lip caused by her poor supervision of the child playing with a razor. The social worker visited and mother's account was accepted.

•    Later in the same day Sure Start sent a message of concern. Natalie Eccles gave an account of mother behaving in an erratic, strange way towards the child that day. She described more facial injuries. This triggered a second social work visit with supplies but the child was then asleep.

•    The mother was never seen to be under the influence of drugs although drug use clearly was a feature. Tests subsequently revealed the consistent use of both cocaine and cannabis during the relevant period.

At the same time, contact sessions reveal a warm, positive relationship between mother and child. A is an energetic child and can be difficult, with tantrums and a propensity to explore.

7. Injuries

On the 21 April 2014 the mother called the 111 operator who eventually arranged for an ambulance to call. At hospital A was found to have burns to both hands and her cheek. There were widespread bruises and abrasions, the relevant ones of which appear in the local authority schedule. The right hand was burned by liquid when the fist was clenched and the experts prefer a part immersion rather than a spill. As to the left-hand the experts disagreed as to whether the cause was contact with a heat source or hot liquid. The generalist Dr Wilde deferred to the specialist Mr Phipps in favour of the heat source. Their discussion reveals that this is an area which involves a deal of speculation in the absence of a clear history. Overall they preferred a deliberate cause and struggled to understand how an accident could affect both hands. The cheek burn matched the mother's hair dryer nozzle and was said to be caused by momentary contact with a stationary nozzle. By their number and position the other injuries were considered to be the result of forceful blows or squeezing.

8. Mother described A falling on 19 April 2014 after playing out with bare feet. The fall was said to have disturbed the healing scars above the lip caused when the child played with a razor. My attention was drawn to the view of Dr Ehrhardt who assisted the police. The overall conclusion must be that individual marks on her face could be attributed to a fall, but it could not explain the number and widespread position of these injuries. The injuries to the mouth and lip were more likely to be the result of a punch. The position and symmetry of the bruises to the soles of the feet indicated deliberate blows. There were bruises and abrasions to the buttocks which the mother associated with the child bumping down the stairs and being scratched by false nails. The photographs indicate something much more significant and Dr Wild suggested a sharp object had been dragged across the skin. The mother was right to say that the child had impetigo, probably the infection of the small accidental laceration with the razor. The vast majority of the injuries are unexplained and the local authority was right to comment that A was injured from head to foot. In a rare moment of insight Mr C said that A looked like she had been battered.
9. Issues

The mother is clear that she was the sole carer of A. Mr C visited and stayed from time to time but he played no significant part. Under cross-examination Mr C raised the presence of others but this was manifestly incredible. The only realistic potential perpetrators are the mother and Mr C. On analysis a clear picture emerges for me which drives me not only to reject the alternative explanation for the injuries but to find that the probable perpetrator was the mother.

10. Identification

Mr C claimed that the mother was with A when she was burned and that he was in the living room. In the witness box Mr C displayed anger, disinterest and evasion. His main motive was to distance himself from the child and from her injuries. Not only was he uncooperative but he was manifestly dishonest. He is clearly a young man with problems of his own. His criminal record shows violence and he was frank about his use of drugs. His relationship with the mother was more than the supply of drugs for sex as he claimed but the mother acknowledged his very limited role and opportunity. He had a few minutes alone with the child on no more than 8 or 10 occasions before 21 April 2014. Importantly the mother makes no criticism of his attitude to A. She makes no allegation that he caused the wider injuries but must know if he did. Overall he has lied in order to avoid responsibility for events but this does not establish that he was the perpetrator.

11. The mother says that she was away from the home when the burns were sustained. She was warming soup with A sitting on the unit alongside the hob when she remembered the need to collect washing from a neighbour and got Mr C to take over. She returned to find A in distress. However the mother has been dishonest and her lie is at the heart of the case. Consistently for the first six months she asserted that she was present and saw the burns caused accidentally. She says that she lied to avoid being accused of neglecting her child by leaving her with another. She accepts that there was no bar on contact with Mr C. In the witness box the mother displayed anger, disturbance and emotion consistent with the psychiatric report. She was very evasive and defensive. She was inconsistent on important details, for example whether on arrival she challenged Mr C as to what had happened. With the police she was inconsistent as to whether A accompanied her when she collected the washing. It does seem very unlikely that she would act as she now claims. The neighbour she claims to have visited has no recollection.
12. The point at which the mother changed her account is significant. The Children's Guardian insisted that she go through the expert evidence and in the face of expert evidence of abuse she asserted for the first time that she was elsewhere. In this judgement I have dealt with the picture of a developing crisis in the mother's mental health in the days prior to this incident. I prefer Mr C's account of cannabis use by both adults on the day. His account contradicts the mother but is supported by the police photograph and the ambulance crew. After the burns were inflicted the mother attempted treatment at home but she persisted for so long that I infer that she hoped to avoid contact with the authorities. At least 40 minutes elapsed before she went to the telephone and even then she sought advice from a 111 call rather than immediate attention from calling 999.
13. Cheeks

The burns of the cheek occurred at about the same time as the burns to the hands although the precise sequence is not established. In the absence of any real alternative, the matching hairdryer is established as the cause. The mother is the more likely user of a hairdryer which was found to be downstairs where the mother was dressing and attending to (she says not drying) her hair at the relevant time. Her evidence that their hairdryer was stored away upstairs was contradicted by the police photograph.

14. Overall

These factors drive me to accept the medical expert evidence in preference to those explanations which the mother has offered. The injuries other than the burns were inflicted injuries. As to perpetrator, the factors implicating the mother set out above drive me to conclude that she is the more probable perpetrator of all injuries.

15. Burns; deliberate or accidental?

I accept that generally speaking the deliberate infliction of injury is less likely than an accidental occurrence. The burn caused by their hairdryer is said by the experts to be more likely to be the result of a momentary, deliberate application rather than an accidental encounter. The crisp imprint suggests a lack of sideways movement. The burn would be painful and therefore the event would be memorable. A carer who knew of an accidental burn could be relied upon to give their account but I am given no explanation. On the balance of probabilities I accept that this must have been deliberately inflicted by the mother.

16. The experts have indulged in greater debate as to whether the burns to the hands were inflicted deliberately. On balance they believe that they were but there is clearly room for doubt. The only person to give a description of an accident is the mother but she now insists that this account was invented and that she was elsewhere. It is difficult in the circumstances to accept the limited detail she gave. No one suggests that the child was alone. I have already found that the hairdryer burn was a deliberately inflicted injury. I conclude that the mother's crisis was such that, on the balance of probabilities, these injuries too must have been deliberately inflicted by her.
17. Delayed medical treatment

The mother delayed unreasonably in obtaining medical treatment for burns. This criticism extends to the facial injuries caused by a punch. The mother explained that it was difficult to obtain medical treatment for impetigo over a bank holiday weekend but these injuries were of a different nature and demanded urgent attention.

18. Mr C

My finding is that Mr C did not inflict any of these injuries. He was not a carer so I make no wider findings. Nevertheless he has obstructed this enquiry by his dishonest, evasive approach to which heavy drug use may have made a contribution.

19. Outcome

The only parent with parental responsibility is the mother and she supports the care plan and the grant of Care and Placement Orders. The Children's Guardian agrees that there is no alternative. Mother's inconsistency makes it desirable that I proceed to consider the placement application rather than allow the local authority to proceed relying upon the continuing consent of the mother. The father is absent but I have read a compelling assessment in negative terms and he is not a realistic option. He has made a written application for parental responsibility but commitment is a relevant factor in a successful application and this is clearly missing. To grant him parental responsibility would not be in the best interests of the child. More meritorious is his wish clearly to establish paternity which the DNA test has achieved. My order will declare that he is indeed the father of the child which will allow the local authority to take steps to correct the birth certificate.

20. Re B S requires analysis of the options. Adoption has disadvantages. The child is nearly 3 years old so a placement may not be found. Placements can break down, both in the early years and in the difficult teenage years when questions of identity arise. However the element of permanence and security as a full member of the family providing care is crucially important for a child of this age. The theoretical alternative is long-term foster care which allows family relationships to be preserved however it lacks permanence and stability. Under the 2002 Act I make the welfare of the child throughout her life my paramount concern. I have the relevant checklist in mind although I shall not burden this judgement with individual paragraphs in the absence of active opposition. Overriding requirements of welfare make it impossible for the child to be with her family. Her welfare requires (in the sense of demands) that parental consent to placement for adoption be dispensed with. The very high standard to justify adoption is met. Nothing else will do. This is not only necessary but clearly proportionate to the needs of the child and the history of the case.
21. Orders

My findings clearly establish the threshold for orders is met both by the suffering of significant harm and by the clear risk of repetition. I have approved the care plan for adoption and dispensed with parental consent on the statutory ground. I grant Care and Placement Orders to allow the local authority to implement the plan. I have distributed a draft order with findings as below.

FINDINGS

The court found that

a) On or about 21^st April 2014 the child A sustained burns to the hands and cheek and numerous bruises and abrasions to the face and mouth, the trunk, the buttocks and thigh and the feet.

b) These were injuries inflicted deliberately by her mother.

c) The mother failed to obtain medical attention as quickly as was reasonably required, hoping to conceal what she had done.

d) The mother subsequently gave untrue accounts which she has maintained.

e) Mr C did not inflict any injuries but he has also given an untruthful account.

RD 24.4.15