Care order - conclusions relating to fact-finding hearing.
Before : |
Sir Michael Birt, Commissioner, and Jurats Nicolle and Pitman. |
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Between |
The Minister for Health and Social Services |
Applicant |
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And |
(1) A, (the mother) (2) B, (the father) |
Respondents |
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IN THE MATTER OF LOUISE, TYLER, CHARLIE AND JAMES (CARE ORDER)
AND IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
Advocate C. R. G. Davies for the Minister.
Advocate H. J. Heath for the Mother.
Advocate N. M. C. Santos-Costa for the Father.
The Guardian appeared on behalf of the Children.
judgment
the commissioner:
1. On 26th October, 2017, the Court granted an interim care order in respect of the four children of the respondents. The children are Louise, Tyler, Charlie and James. Since the granting of the interim care order, they have been in foster care. Louise and James are with one set of foster carers and Tyler and Charlie with another.
2. The Minister instituted proceedings as a result of an incident on 17th October, 2017, when James came into contact with some hydrochloric acid. This acid was in two containers for the collection of urine. These had been collected by the second respondent ("the father") from the hospital for use by the first respondent ("the mother") in order that certain tests ordered by her general practitioner could be carried out. The acid was placed in the urine containers by the hospital as a preservative.
3. When granting the interim care order, the Court ordered that a fact finding hearing take place on 27th and 29th November. The Court was clearly troubled by the fact that the concern for the children appeared to arise almost entirely as a result of this one incident; on the other hand, there were conflicting versions from the parents as to how it had occurred. This judgment contains our conclusions in relation to the fact finding hearing.
4. The mother and the father are the parents of the four children. They are both foreign nationals. The mother was born abroad but moved to Europe with her family when she was about 5. She was educated in Europe up to university level. The parties married in July 2003. They have lived abroad and in the United Kingdom before coming to Jersey in August 2015, since when they have lived here. The father works for a local bank. The three older children have attended a local school since arrival in the Island.
5. We heard evidence from a number of witnesses. They all produced written statements in advance and these were taken as part of their evidence in chief. We also received witness statements and reports from persons who were not required to attend the hearing.
6. We propose to begin by summarising the relevant evidence of the witnesses other than the mother and the father. Save where otherwise specifically stated, we accept such evidence.
7. The "Head Teacher" is the head teacher of the primary school which the three eldest children attend. She said that there had been no particular concerns until recently. The children were polite and had good relationships with their peers. However the children could be very quiet and subdued in school. Tyler and Charlie in particular tend to whisper to each other and will only speak if requested to do so. Louise used to present in that way but her confidence has grown and she now fully engages in discussions with her peers and teachers. She said that the parents engaged fully with the school and were observed as having positive relationships with their children, with the children smiling and looking relaxed in their presence.
8. In December 2015, the mother had telephoned the school and said she was taking the children to Europe for a while. She said she was not being supported by the father. The children remained away until after the February half-term, namely 22nd February, 2016. The father was with them in Europe for about half of that period. The mother had also on occasions talked about being subject to black magic and that this was having an impact on her health.
9. On Monday 9th October, 2017, the mother asked to speak with the Head Teacher. She explained that the children had arrived late for school because they were not listening to her first time. The Head Teacher said that the children seemed a bit upset but went to class.
10. On 12th October, the mother went to see the Head Teacher and shared her worries about the fact that her mother in law was arriving next week. She apologised for the children's behaviour on the Monday and the fact that they were late. The Head Teacher assured her that they were well behaved and very polite children.
11. On 16th October (i.e. the day before the incident) the mother rang the Head Teacher at 8.20am and requested the Head Teacher to attend her house. The Head Teacher explained that this was not possible. The mother said that her husband was a mad man and had been mad for a week. She had left the house and was sitting in the car. The Head Teacher advised that the mother should ring the police to explain the situation to them but the mother said that she had rung the police already and they said it was not a matter for them. The Head Teacher then telephoned the police who said that they would send an officer to the house.
12. The Head Teacher explained that, since the children had been placed in foster care, there had been quite a change in relation to the two boys. They were no longer whispering and were not just speaking when spoken to. They would put their hands up in class and volunteer comments. This was quite a noticeable change.
13. As just stated, the mother told the Head Teacher that she had already been in touch with the police that morning. We have been shown statements from three police officers who attended the house at 5.30am that morning following a call to police headquarters from the mother. The mother was the only person up when the police arrived and let them into the property. She explained that she and her husband had agreed to separate earlier in the week and that her intentions were to travel to Europe. They were going to catch a ferry that day. However she said that her husband had not helped her and would not help financially. She asked that the police wake her husband and tell him that he had to help financially. There was some suggestion she may have said that she believed her husband was hiding her documents (passport and insurance etc.). The police explained that they had no power to insist that her husband help her financially and that this was really a civil matter. They said that the mother did not present as being upset and was quite 'matter of fact' about the position. The father was apparently asleep upstairs.
14. Following the call to Police HQ from the Head Teacher, other officers paid a second visit to the matrimonial home at about 9am that same day. We heard oral evidence from PC Bell who was one of the officers who attended. She said that on arrival the mother and the four children were there together with the mother's sister ("the sister") although the sister did not speak English and did not engage with the police. PC Bell said that the mother was clearly stressed and emotional referring to her children as being 'abnormal' and 'confused'. She said she wanted them to return to being normal. She told the officers that she had not allowed the children to go to school that day because of their abnormal behaviour, although she could not provide examples of this behaviour. She made these remarks in front of the children. She made reference to being oppressed by her husband and that he had taken her personal documents and stopped her from using the internet on her phone. Whilst speaking with her, the officers found her personal documents, some in her handbag and others on the dining room table. They were also able to confirm that her mobile phone was in 'flight mode' and that was why she was unable to access the internet. When asked how she was oppressed by her husband, she made reference to his being involved in black magic and that the children only did what he told them, not what she asked.
15. At this point the father returned, having gone out to buy croissants for breakfast. The officer explained the reason for the police presence and the father said that he believed his wife to be suffering from depression. He said that the mother had been upset in the morning and had wanted the children to remain home from school.
16. PC Bell spoke to the three older children separately. She said they all appeared polite and well behaved although clearly startled by the mother's behaviour and police attendance; they were keen to attend school. The two boys did not say much but Louise said that she felt worried about the mother and that everything with her father was good.
17. Arrangements were made for the children to attend school. When the father returned, the officer noticed the mother frequently challenged the father and was confrontational towards him, grabbing his face and pointing her finger to his chest and calling him a liar and a cheat. She did not appear in fear of him at any point.
18. The officer said that she had some concerns about the mother's behaviour that morning as she was erratic and distressed for no clear reason, but the officer did not have any immediate concerns relating to the children. She felt it best subsequently to make a report simply to 'flag' it up. The mother did not complain of violence by the father. Finally the officer was shown the CCTV of the condition of the house the next day which showed it to be somewhat untidy. She said that the house had been much tidier when she had attended than appeared in the CCTV, although there were piles of laundry near the stairs.
19. The incident itself appears to have occurred between 19:30 and 19:45 on 17th October. Statements from the ambulance personnel record that the telephone call from the father seeking assistance was at 19:46 on 17th October (the reference on page 6 of the social worker's report to the call being at 20:31 would appear to be an error). The paramedic, one of the ambulance personnel, recalls that when they arrived, the father and the mother were standing outside the front door with the baby in the mother's arms. They were shouting at each other. She told them that they needed to calm down so that they could tell her what happened. The father said that the baby had drunk some liquid from a urine sample collecting bottle. At the paramedic's request, he went to get the bottle. Although described as a bottle, this was in fact one of the containers referred to earlier. The paramedic recorded that because of the mother's strange behaviour, she was unable to establish a coherent version of events but felt it unlikely that the child could remove the lid from the container and coordinate his movements so as to drink liquid from the bottle. The parents accompanied James in the ambulance to the hospital.
20. On examination at the hospital, James was found to have a lesion on the inside of his left lower lip and an ulcerated area on his tongue. It was the doctor's opinion that James's lip and tongue had come into contact with a small amount of concentrated hydrochloric acid. Fortunately, James recovered rapidly and had suffered no other injury.
21. Because of concerns as to how James had come into contact with the hydrochloric acid, the mother was arrested on suspicion of child neglect. However the police, ambulance staff and those at the hospital had expressed concern about her mental condition and accordingly Dr French, a Force Medical Examiner attended Police Headquarters at 2.25am to see whether the mother was fit for interview or detention. The mother told Dr French that the father had hit her in the face about ten minutes before the ambulance arrived. She said that in the recent past she had wanted to return to Europe to see her family but her husband had stopped her. We had the benefit of Dr French's report and her oral evidence but in summary Dr French formed the view that the mother was not fit to be detained or interviewed at that stage. The content of her speech was largely not relevant to the questions asked of her and she was expressing some delusional thoughts. Dr French arranged for her to be transferred to the Accident and Emergency Department for assessment as to whether delirium (i.e. a physical as opposed to a mental cause) was the cause of her altered mental state.
22. However, no physical cause was identified by A&E and accordingly the mother was seen again by Dr French at 7.05am the same morning. She was examined and the only finding of note was that there was a small pigmented area to the left jaw line. Dr French said that she was unable to ascertain whether this was a bruise or not.
23. Shortly afterwards, the mother was examined by Dr French together with Dr James, consultant psychiatrist and Mrs Pasternak, a Duly Authorised Officer from the Mental Health Department. Details of that interview are set out in the papers before us and we do not think it necessary to record the details. Suffice it to say that it was decided she should be admitted for observation and assessment under Article 6 of the Mental Health (Jersey) Law 1969. She was subsequently transferred to Orchard House. Dr French said in her evidence that she was of the opinion that the mother's answers to questions were unreliable because of her altered mental state.
24. Police officers and a social worker had attended at the home on the evening of 17th October shortly after the incident. DC Jagodka had spoken briefly to the father as he returned from hospital to collect some items of clothing and his version was that he had left the container with the liquid in the hallway with the cap on. When the child screamed, they (the statement does not explain who 'they' were but it clearly included the father) had approached and the container was on the side without the cap. The sister was spoken to through an interpreter. She reported they were all eating in the kitchen and that James was in the hallway and had grabbed the product that he drank. However she was unable to explain how she knew this and subsequently said she was in the bathroom and was not sure where the mother was. The oldest child Louise said that they had all been in the kitchen and James had crawled into the hallway. They heard the baby crying and when they went into the hallway the mother and father were trying to give the baby water. The other children were unable to give any relevant evidence.
25. Kiran Sembhi gave evidence before us. She is a mental health social worker for the States of Jersey and has undertaken the role of Duly Authorised Officer.
26. She explained how the mother was kept under observation whilst at Orchard House and how her mental state radically improved from that which had been displayed on 17th and 18th October. On 20th October the mother told Ms Sembhi that she did not know how James had got hold of the container containing the acid. She admitted that perhaps she was at fault for not storing it safely but she did not know how he had got hold of it, nor did she know how he could have opened it. She speculated as to whether one of the other children had got it and given it to the baby.
27. Having initially suggested on 18th October that there had been some domestic violence from the father (although she stated that she managed this herself), the mother then categorically denied any domestic violence at a meeting on 20th October. However, on 23rd October she said that the father had been oppressing her by taking money, passports and encouraging her family members to collude with the abuse against her.
28. The children came to see the mother on occasions while she was at Orchard House and the children were described as having a great relationship with the mother. The mother and daughter were observed to have lots of hugs and cuddles and the boys, although shy initially, were alert, lively, spontaneous and full of mischief. They presented as fun and were able to respond well. Ms Sembhi observed a close bond between the mother and James when the mother fed him.
29. Ms Sembhi said that the mental health authorities concluded that the mother was not mentally unwell and she was discharged from the Article 6 order on 24th October. Ms Sembhi considered that the most likely explanation for the somewhat bizarre behaviour of the mother as reported around about the time of the incident was that it was caused by stress. There appeared to be tensions in the household, the parents in law were coming to stay, which was clearly a point of some concern for the mother, and she was naturally very concerned as to whether James was alright.
30. The father was interviewed under caution by the police on 23rd October. He said that he, the children and the sister were in the kitchen. The sister was feeding some of the children as she had prepared some food. He then heard a scream and they all went out into the hallway. He did not see where the mother had come from but she was there too. James's lip was a bit red and the father felt that he might have taken some of the liquid from the urine container which was open and on the floor. He did not think that James would be capable of undoing the screw top to the container but did not know how it had been opened. The mother immediately took James to wash his face in water and the father phoned for the ambulance.
31. The mother was interviewed by the police on 25th October. She said that she was in the hallway when she noticed the liquid in the urine containers which the father had brought back from the hospital. She was puzzled as she had not used the containers and in Europe they would not contain liquid. She opened the top to see what it was. The father came out from the kitchen thinking that the liquid was dangerous and tried to snatch it from her. She assumes that, in the process, some of the liquid splashed out and came into contact with James who was on the floor in the area. She then took James to the downstairs toilet to wash him with water.
32. The sister was interviewed with the aid of a translation service on 27th October. She said that she had been with the family in the kitchen but had then gone to the upstairs bathroom where she spent approximately 15 minutes. She did not see or hear the incident. When she came out the ambulance was coming. She said that the parents were saying that James had poured the liquid over himself.
33. The father was interviewed for a second time on 7th November. He said that he had been thinking about things and now had some memory of going out into the hallway and that James was sitting there. He tried to take something from his wife's hand because he thought to himself that that was a container and there was some liquid in it. He got worried. He did not know how the liquid came on to James but believed that it was a pure accident.
34. Dr Howden, a paediatrician at the hospital, examined Louise on 20th October. The father was also present. Louise responded well and openly to questions and said that James had drunk something in the hallway and was on his own when it happened. When asked whether anyone had ever hit anyone at home, she did not answer and looked uncomfortable and shrugged. Dr Howden assessed Louise as being well nourished, bright and cheerful and that she interacted well with the father. The only concern of the doctor was as to her hesitancy in answering the question about domestic violence.
35. Dr Howden also examined Tyler and Charlie on 14th November. Both parents were present. The outcome is summarised in an email of 15th November from Dr Howden which makes for very positive reading. It is to be recalled that at this stage the children were in foster care. Dr Howden described Tyler as cuddling up to the mother and that she comforted him in a very natural way. The father, who had Charlie on his lap, also said comforting things and both were very appropriate. Tyler's behaviour around both parents appeared affectionate and appropriate. Dr Howden also noted that the mother was quite happy to admonish the father when he suggested she could cook something for him to bring to his contact sessions because the boys would be disappointed at his contact visits if there were no samosas. Dr Howden said that the mother and father seemed relaxed in each other's company. She summarised the position as follows:-
"Whilst some parents try and put on a good 'act' ... it is impossible to maintain this for two hours, and the child's reaction is usually very telling.
My conclusion on meeting the family, was that this family seemed completely relaxed in each other's company, there was genuine warmth in their interactions, parents were appropriate and displayed emotional intelligence. They could see their children were distressed, they comforted them appropriately, but didn't make promises they knew they wouldn't be able to keep. Their children went to them naturally for hugs and appeared affectionate throughout. Parents were also refreshingly keen to help i.e. mum suggesting she could make food for the children to take home to foster carers, if that helped Tyler with his appetite. Dad when explaining that the boys weren't able to attend after school football due to clashing with contact, rather than being resentful and angry, said he was already looking into a football club they could maybe attend on the weekend instead."
36. Dr Howden described how at the end of the examinations, both boys unprompted gave both parents huge hugs and looked tearful about having to then leave them to go to school with their carer.
37. In passing, Dr Howden explained that she did not know that hydrochloric acid was used as a preservative in 24hr urine collection bottles and she noted that the A&E department had also had to contact the biochemistry lab to ask what the preservative in these particular containers was. Although there was a yellow warning triangle and it said on a sticker in small writing that the bottle contained acid, she thought this could be easily missed, particularly if English was not your first language.
38. The Court was also provided with the report of Rhoda Tembo, the social worker in the Children's Service with responsibility for this matter. That report had been filed for the purposes of applying for the interim care order. Ms Tembo also gave oral evidence. Both the report and her evidence explained that essentially the Children's Service were concerned at the differing explanations which the parents had given for the incident. Coupled with the suggestion of domestic violence and concerns over the mother's mental health, this had led the Children's Service to apply for an interim care order and for the children to be placed in foster care. She dealt in her report and in evidence with some of the inconsistencies in what the parents had said, but we will summarise that later in this judgment. She confirmed in answer to Advocate Santos-Costa that there was no evidence that the three older children had suffered any harm, that they wanted to go back to their parents, and were very pleased to see their parents on contact occasions.
39. We turn now to the evidence of the father and the mother. They both provided witness statements and also gave oral evidence. Their oral evidence was in some respects quite wide ranging. We propose to confine our summary to those matters which we regard as being essential to explain our conclusions.
40. The mother gave evidence first. She said there had been some domestic violence during the course of the marriage but not enough to cause her to leave. She also had a problem with her in-laws.
41. She said that she had gone to Europe with the children for a few weeks in 2015 because of disputes between her and her husband but she had come back at the end of the February half-term.
42. She said that shortly before the incident, the children began to behave strangely and the father was more aggressive towards her. She noted that the father would take the children out of earshot and whisper to them. She attributed their strange behaviour to what he was saying to them. In particular Charlie had touched her breast and she considered the father had caused him to do this. The children were generally behaving rather abnormally. They would listen to the father but not to her. It was in these circumstances that she had telephoned the Head Teacher on 16th October.
43. She had decided that, together with the sister, she would like to take the children to see her family in Europe for a while. She had raised this with the father who had agreed, although she thought he was rather reluctant. She wanted to go to find some space and let everything settle down. She thought they were going to go to Europe on the morning of 17th October but the father was asleep. Later that day the father drove her, the sister and the children to the harbour. He said he would go inside to collect the tickets. He was in a rush as they were apparently late. He went in without the various documents. The mother thought that he was not going to let them go to Europe when he went to get the tickets on his own. He came back shortly afterwards and told them to hurry and she must get in the car. She was outside the car at that stage but he pushed her into the car. Shortly afterwards a woman from the harbour said that it was too late to go to Europe and accordingly they went home. Everyone was very quiet.
44. When they got home she and the father had a quarrel about him not letting them go to Europe. She stayed in the hallway with the father. During the argument he slapped her hard on the face, so much so that the other side of her face started swelling. The children and the sister came into the hallway and it was a stressful situation. The rest of the family then went into the kitchen to eat.
45. She remained in the hallway and noticed on one of the shelves the two urine containers which the husband had brought back from the hospital. She noted that they contained liquid. She thought this was strange as in Europe they were invariably empty. She sat on the floor and opened the lid to see if it was water. She quite often talked to herself and may well have said out loud "is it water?" She noticed that James had crawled into the hallway.
46. She thinks that when the father heard her refer to water, he quickly came through to the hallway in order to grab the container from her. She did not resist and he grabbed it from her. She did not see any liquid actually fall out of the container on to James or the carpet but she immediately noted that his lip had turned red. She took him off and put water on him whilst the father phoned for the ambulance. It all happened very quickly but so far as she was concerned it was nothing more than an accident.
47. It was true that she was arguing with the father when the ambulance came but this was because she was angry with him because of the argument that they had had before the incident and the fact that he had hit her during that argument. She emphasised that when he hit her, he hit the right side of her face but it was the left side which was bruised. She was adamant about this.
48. She was pressed with some of the things she had said initially, which were inconsistent with the version which she was now putting forward. She explained this either as being a misunderstanding of language or by reference to the fact that she was very stressed at the time.
49. She explained that at present she was living in separate accommodation paid for by the father. This was on the advice of her advocate and the Children's Service. The father had been to see her most days. If the children were returned to her, she would plan to go to Europe for a while to let everything settle, but she wished to resume life with the father and the family together. As a result of what had happened she felt more confident of her ability to ask for help. She thought he would not hit her again but if he did, she would be able to ask for help. He had hit her about 10 - 12 times in all during the marriage.
50. She was asked about a report in a strategy meeting of professionals held on 23rd October to the effect that when she had been at the hospital with James on the night of the incident, a police officer had noted that she had two blisters at the side of her mouth and that she had told the police officer she was not sure how she had got them but "the same thing that happened to James has happened to me". She was asked whether this meant that she had also come into contact with acid. She strongly asserted that this was not so. She had cold sores on the night of the incident and was merely commenting that this was the same as had happened to James i.e. blisters to the lip etc.
51. In his evidence, the father said that the mother had become increasingly stressed. This had led to the two visits from the police on 16th October, although he had been asleep during the first one. Although he was not enthusiastic about the mother and children going to Europe, he was not trying to prevent it. He said that, on the day of the incident, they had got to the harbour too late. He had gone in to the office to try and get the tickets. There was hardly any time left. He came out to get the passports etc. but they were then informed that they were too late. He agreed that there had been an argument as a result and that when they were in the hallway following their return home, there had been a physical altercation between him and the mother. So far as he was concerned, it involved pushing and shoving but he did agree it was possible that his hand had come into contact with the mother's face, although he did not remember slapping her. The mother might well have seen this contact as a slap.
52. After that, he and the children were in the kitchen and at some stage he heard James cry out. He immediately came out and saw the mother with something in her hands; he thinks it was the cap from one of the containers. He heard his wife say something about 'water' or 'is it water'. He knew that the liquid in the containers was medical liquid although he did not know it was acid. He tried to take it from her and there was a bit of a tussle. Almost immediately they noticed that James's lip was red. He assumed that James had come into contact with the liquid in the container although he hadn't seen anything go into James's mouth. He immediately telephoned the ambulance and the mother took James to the bathroom to put water on his face.
53. He was pressed about the different versions he had told and put this down variously to misunderstandings, people not asking the right question or his having since had time to think about things more carefully.
54. As to whether there had been any domestic violence during the marriage, he thought there might have been physical arguments some 5 to 6 times within the marriage (not 10 or 12 times) and he did not remember ever hitting her.
55. He described the mother as being the best of mothers, a fantastic mother. She looked after the children well both physically and emotionally and their wellbeing was her top priority. So far as he was concerned, the incident with James had been an unfortunate accident.
56. There was no dispute between the parties as to the law. In order to establish that a child is likely to suffer significant harm, the Court must be satisfied on a balance of probabilities that the facts upon which the prediction is based did actually occur. It is not sufficient that they may have done or that there was a real possibility that they did. A convenient summary of the position is to be found in the judgment of Baroness Hale in Re S-B (Children) [2010] 1 FLR 1161 at paragraphs 8 and 9:-
"8. The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is:- "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, at 585F, 23 and 95 respectively).
9. Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm; a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school."
57. On behalf of the Minister, Advocate Davies submitted that the parents had given so many different versions of what had happened that their evidence could not be relied upon. In particular, if, as they were now saying, this was an accidental injury caused as a result of an innocent tussle between the father and the mother as the father sought to take the container or its lid from the mother because he was concerned about the liquid, why did they not say so at the beginning? She submitted that it was therefore more likely that the contact with the acid had been caused by either the mother or the father or both deliberately or that there had been an altercation or series of altercations between the mother and the father which resulted in the acid finding its way onto the child's mouth deliberately or through reckless conduct.
58. She helpfully summarised the different versions given by the parents as follows.
59. In relation to the father:-
(i) The ambulance personnel recorded him as saying to them that James had drunk some liquid from a urine collection bottle.
(ii) The A&E notes of 17th October say " ... the father came into room/hall where child was playing with siblings who were playing with urine bottles and saw child drinking from bottle." Those by Dr Noon at A&E say:- "Query? Ingested preservative from 24hr urine collection bottle. Dad turned round and he was holding the bottle to his lips. He spat out the contents and then started crying. ..."
In relation to these notes, it is right to record, as Advocate Santos Costa pointed out, that they do not specifically say that it is the father which is the source of the information. However, the fact that both refer to what the father saw suggests to us that they gained this information from him.
(iii) On 17th October at about 22:00 he was recorded as saying to Dr Malpas, consultant paediatrician:-
"James's father stated that he had been in the kitchen, adjacent to the hall at around 19.40hrs on 17th October 2017. He heard crying from the hall and found James crying and drooling. He said he had not observed directly James being exposed to the toxic contents of a 24hr urine sample bottle that was apparently in the hall...".
(iv) At 23.20hrs on 17th October at Robin Ward, Detective Sergeant Hayden spoke to the father who informed the officer that "he was eating his dinner in the kitchen and that about 19.40hrs he was aware the children were playing and he believed he had handed James to his sister-in-law. It was shortly after this he heard James scream from the hallway and went out to see James on the floor near to the open urine receptacle and that the lid was off with fluid on the floor. ... He could not state where his wife was at the time that he heard James scream."
(v) On 18th October, according to Ms Tembo, the father said to her and another member of Children's Service that "... he fed James and the other children were also present and eating their dinner. It was around 7.30pm. He thinks his wife must have been in the sitting room. After James had been fed, he thinks his wife's sister picked James up from him and at some point, left him to crawl into the hallway. He reports he started eating his own food. He remembers that the next thing he heard was James crying out and he rushed to the hallway to find his wife picking James up. The container was on the floor. His wife's sister had also rushed to the hallway as well as Louise and Tyler. [The father] is not aware of how the container got to the hallway or how it had become open."
(vi) On 23rd October at his first police interview, as already stated, the father said that he was eating dinner in the kitchen and heard James cry. He went from the kitchen to the hall but did not see where his wife came from into the hall. He saw one bottle on the floor which was open. He did not know how the lid had come off the bottle.
(vii) It was only at the second police interview on 7th November that he brought forward the version which he has now given, namely that there was a tussle with his wife who was holding the container and that some of it may have fallen on James.
60. As to the mother, she has been slightly less inconsistent but has nevertheless given different versions as follows:-
(i) On 18th October at 7.15am, she is recorded as telling Dr James, consultant psychiatrist, Dr French and Ms Pasternak that 'her husband had put the substance in her baby's bottle but he had told the police that she had given it to her baby'.
(ii) As stated at paragraph 26 above, on 20th October the mother said that she did not know how James had got hold of the container or how he could have opened it. She speculated as to whether one of the other children had got it and given it to the baby.
(iii) On the same day, Ms Tembo and Miss Sembi spoke to the mother and pointed out that there was a lack of clarity as to how James had ingested the hydrochloric acid and that different accounts were being given in relation to this matter. The statement of Ms Tembo goes on to say:-
"[the mother] shared that all the children were in the hallway when the incident happened. It was pointed out to her that this is not what I gather from the others. [the mother] seemed shocked and angry, then said that she would not be believed as she had a mental health problem and was inside. She mentioned that now she understood what was happening and from now, she would agree with whatever narrative her husband gave in explaining what had happened."
(iv) On 23rd October at a meeting with Ms Tembo at Orchard House, the mother for the first time put forward broadly the version which she now alleges. She said there was a domestic incident and that during the altercation between her husband and her, the liquid had got into James's mouth and her husband and she rushed to wash James's face and give him some water. The mother said that she was the one who opened the container and there was a struggle between her husband and her over the container. The mother said that she had been trying to protect the father and he had been giving her reassurances that she would soon be out. She said that while she had been protecting him, he had continued with his life and she now risked losing her children.
(v) In her police interview, as already stated, the mother gave a version of events broadly consistent with that which she had given to the social worker on 23rd October, namely an altercation where she had opened the container and the father tried to take it from her with the consequence that acid had somehow come into contact with James.
(vi) That essentially remains the same version as she has given in Court.
61. In the light of these different versions, the parents have only themselves to blame for the fact that the Children's Service have not known who to believe and have accordingly become sufficiently concerned about the risk of significant harm to James and the other children to apply for an interim care order.
62. Nevertheless, we have come to the conclusion on the balance of probabilities that the incident happened broadly as the father and the mother have said in evidence at the present hearing. In other words, the mother opened the container out of curiosity to see what the liquid was; the father saw this and attempted to take the container from her; this was done out of concern as to the content of the liquid rather than for any other motive; a minor tussle took place as he took the container from her and in the course of this some of the liquid splashed or spilled out of the container; James was by then in the vicinity having crawled there; some of the splashed or spilt acid came into contact with his lip accidentally.
63. We have of course given careful consideration to the fact that each of the parents gave different explanations at an earlier stage. Their attempts (particularly those of the father) to explain away these inconsistencies in evidence were wholly unsatisfactory and did not reflect well on them. We think that the most likely reason for their having given false explanations of what had happened initially was their fear and embarrassment at being thought responsible for the injury to James because it was their actions which were directly responsible for the liquid spilling on to James. However, we are satisfied that it was accidental. We note that the mother has been giving this version since 23rd October i.e. some six days after the incident, albeit that the father only came forward with it for the first time on 7th November. The irony is that, if they had told the truth from the outset, it is highly unlikely that any interim care order would have been applied for by the Minister, let alone granted by the Court.
64. In coming to our conclusion that this is what happened on the balance of probabilities, we have of course considered other possibilities. The first is that the acid was administered deliberately to James by one or both of the parents. However, all the evidence is that these are loving parents who are devoted to their three older children and with whom those children have an excellent relationship. There has been no evidence whatsoever of any earlier concerns in relation to these children. There is no reason to think that the parents' feelings and conduct towards James would be any different from their approach in respect of the other children. Furthermore, we have had the opportunity of seeing the parents give evidence. Whilst, as we have already mentioned, we do not find them to have been wholly truthful in certain respects, we were left in no doubt of their loving feelings towards all of their children. We think it highly unlikely that either of them deliberately harmed their child.
65. The next possibility is that James somehow gained access to the acid himself by getting the container down from the shelf and opening the top. Again, we conclude that this is highly unlikely. James was only 9 months old at the time. Whilst, as Dr French said, it was not inconceivable that a child of that age might be sufficiently advanced to undo a screw top, it would have to be a very simple one and not require much force. We think it highly unlikely that a child of James's age would be able to lift a container down from the shelf and then undo it so that acid could come into contact with his lip. Furthermore, if that had happened, one would expect there also to be evidence of acid damage to his hands, or acid on the floor or elsewhere.
66. The third possibility is that the other children were playing with the urine container and that they opened it with the consequence that some acid spilt onto James. Given the number of times that these children have been seen since the incident and asked about what happened, we think it unlikely that one of them would not have disclosed what had occurred or made some incriminating remark if this were the case. Furthermore, we do not see why the parents would assume responsibility for the injury if it was the other children who caused it.
67. Putting all these matters together, we find on the balance of probabilities that this was an unfortunate accident with acid splashing or spilling from the container onto James during the course of a minor tussle between the parents as described.
68. Having concluded that the injury to James was sustained as we have described, we have given preliminary consideration as to whether the threshold test for an interim care order set out in Article 30(1) of the Children (Jersey) Law 2002 ("the Law") remains satisfied. Apart from the concern as to how James's injury was caused, there were two areas of concern relied upon in the report of Ms Tembo in support of the application for an interim care order.
69. The first was the question of possible domestic violence. Since the incident, the mother has blown hot and cold on this aspect, sometimes saying that it has occurred but on other occasions denying it. We note the contents of page 14 of Ms Tembo's report where the following is stated, which seems to us to be broadly consistent with the evidence the mother gave before us.
"On the 20.10.2017, I spoke to [the mother] in the presence of Ms Sembhi in preparation for her discharge the following week. [The mother] acknowledged that she was a victim of domestic violence from her husband. However, she reported that she did not consider this to be a major concern within her culture. When asked if the abuse was happening in front of the children, [the mother] acknowledged this and stated that this would be an issue if it happened every day and should it happen, she felt able to request a divorce from her husband. The impact of domestic abuse on children was discussed with [the mother] who insisted that this was not [a] concern and there was [a] general sense that this was normalised in her family context. She mentioned that her role was to support her husband and support was discussed with her in relation to safe places where she could seek help if she felt oppressed and controlled. [The mother] was clear that she wanted to go home to her husband and children following discharge while acknowledging that she was a victim of domestic abuse. She declined offers for support and mentioned that she was aware of where she needed to get help should she feel unsafe."
70. In her evidence before us she said that the father had used violence towards her on some 10 - 12 occasions during the course of the marriage. She did not give any details of the level or nature of such violence. However, our assessment from her evidence and from evidence as to how she had behaved towards the father in the presence of others in terms of confronting him or arguing with him was that she was not afraid of or cowed by him. We would refer in this connection to pages 16 and 18 of Ms Tembo's report, to Dr Howden's email of 15th November and to the evidence of PC Bell referred to at paragraph 17 above.
71. The father denied hitting her in his interview with the police. In his evidence before us, he accepted that altercations between them had become physical on about 5 to 6 occasions during the course of the marriage but he did not recall actually hitting her.
72. Because the focus of this hearing was on the incident and the events immediately surrounding it, the question of domestic abuse was not explored in any detail and we are not in a position to make a finding beyond that which we have referred to at paragraph 70 above in respect of the effect at present on the mother.
73. We are however in a position to make a finding in relation to the alleged violence immediately prior to the incident. The mother was adamant that the father had slapped her really hard on the right cheek, so much so that it caused bruising and swelling to her left cheek. Not only is it inherently unlikely that injury would be caused in this way, but there is no evidence of any injury to her right cheek despite the fact that she was seen that evening and during the course of the next few days and was examined by medical practitioners.
74. On the other hand, the father's evidence was that he did not slap her. There had been an altercation with some jostling and it was possible that his hand had touched her face such that she might see it as a slap. He said he did not remember hitting her hard.
75. We find the evidence of both parents unsatisfactory. On the balance of probabilities, we find that there was an altercation (as both parties agree) and that during the course of this the father slapped the mother on her right cheek but this had no great force and was not hard enough to cause any visible injury or mark to the mother.
76. The second area of concern at the time of the application for an interim care order was as to the mother's mental health. It is clear that the mother was behaving somewhat strangely in the days shortly before the incident and in its immediate aftermath. However, she has been assessed by mental health experts at Orchard House following detention for observation and assessment under Article 6 of the Mental Health Law and the evidence is that she does not have a mental health problem. Her conduct was likely to have been caused by stress.
77. Putting these matters together, our provisional view was that there was insufficient evidence to conclude that there were reasonable grounds for believing that the children (or any of them) had suffered or were likely to suffer significant harm. The evidence before us in terms of observations from social workers, the doctors and the school were that the three older children were essentially happy and well-adjusted and had an excellent relationship with their parents, who were in turn concerned with the children's wellbeing and loving towards them. Given the evidence in relation to the three older children, there is no reason to conclude that the position is any different in relation to James.
78. Naturally, there are concerns at the possible existence of domestic violence and the risk of the mother again behaving strangely if stressed but, in the light of the evidence as to their current wellbeing and the other evidence before us, our provisional view was that there was insufficient to satisfy the threshold test for an interim order in accordance with Article 30(1) of the Law.
79. It was in those circumstances that we adjourned the matter in the light of our provisional view in order to allow the parties - and in particular the Minister - to consider the position and whether the Minister wished to maintain his application for a care order.
80. We were informed the next day that the Minister had decided to withdraw his application for a care order, to which the Court consented. The interim care order therefore fell away.
Authorities
Mental Health (Jersey) Law 1969.
Re S-B (Children) [2010] 1 FLR 1161.
Children (Jersey) Law 2002.