Case No: B4/2011/0675
Neutral Citation Number: [2011] EWCA Civ 1027
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUGHT DISTRICT REGISTRY
(HIS HONOUR JUDGE BOND)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: Monday, 20 June 2011
Before:
LORD JUSTICE WARD
and
LADY JUSTICE BLACK
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IN THE MATTER OF H-W (Children)

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(DAR Transcript of
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Ms Kate Branigan QC (instructed by Jacobs & Reeves, Solicitors) appeared on behalf of the Appellant Mother.
The Respondent Father did not appear and was not represented.

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Judgment

Lady Justice Black:   

1. In January of this year HHJ Bond gave judgment making findings of fact in a care case concerning a baby girl, 'J', and her older brother, 'L', then nearly five.  Both children have the same mother but different fathers.  I will refer to the father of J, as 'the father' for simplicity and also because L, J and the mother and father have been living together for a considerable period of time as a family and were doing so when the events occurred which gave rise to the care proceedings.

2. The fact-finding hearing focused on two injuries sustained by J.  The first, detected by bronchoscopy on 22 March 2010 when J was less than two weeks old, having been born on 9 March 2010, was "a lobulated mass with multiple bleeding points" at the back of her throat, adjacent to the voicebox on one side, just above the opening into the oesophagus/windpipe.  The mass was too deep to be visible by looking with the naked eye into J's mouth.  The second injury, detected by chest x-ray on 29 March 2010, was a fracture to the left clavicle.  I will give only the briefest of histories of the period from J's birth to the detection of the second injury.

3. She had left hospital with her mother on 2 March 2010 when she was two days old.  On the 16 March 2010 the father found that she had blood around her nostril.  She was seen at the general practitioner's and medical staff noted her to have a burst blood vessel or capillary in her nose.  She went home again and it seems she was reported to be possibly struggling to breathe and having difficulties with feeding.  The possible existence of mucus in her mouth or throat seems to have been the parents' main focus of concern.  J was admitted to hospital where she remained throughout the material period thereafter, apart from a period or periods in an ambulance transferring from one hospital to another.  She had a further episode of bleeding from her nose in hospital in the early hours on 17 March, this time bleeding profusely.  That was before any tubes had been passed down her throat.

4. Investigations were carried out, including the ones I have already mentioned, and in due course it was alleged that the parents had caused the injuries that had been discovered.  They denied that.  I am not going to try and set out the detail of the medical evidence.  The thrust of it was that the throat injury was not something that the doctors had seen before but was thought to be of traumatic origin, and the fracture would have required the application of force beyond normal handling.  The task of finding out what had caused the injuries was complicated by the fact that the throat legion was thought to have occurred before J was admitted to hospital, whereas the fracture had to have taken place between 22 – 29 March, in one of the two hospitals where J was or in the ambulance between the two.  There were other unusual features of J's presentation, notably that she had nodules on her vocal chords and she also had an ulcer on her right soft palette, separate from the throat injury.  There were also curious aspects of the situation in relation to the clavicle fracture.

5. The trial judge accepted that there had never been any cause for concern with regard to the care of the older child in the parents' household before 16 March 2010.  There had been no child protection concerns in relation to the parents prior to the proceedings.  There was therefore a sharp focus on the injuries discovered on J.  The judge had the usual mix of evidence available to him, including the medical evidence, evidence from the midwives, nurses and evidence from the parents.  He found that the parents had not told the whole truth about the events of the 16 March and he gave himself a Lucas direction.  He recognised the "many features and anomalies in J's case which had caused the experts difficulties because they had not come across them before".  He also recognised that because of the mistake in the timing of the clavicle fracture for reasons that I need not go into, for months it was assumed that the case involved "two non-accidental injuries which it was supposed had occurred within the same timing window, and in respect of which there was a search for a unified hypothesis and parental perpetrator", whereas the evidence in fact pointed in "an entirely different direction".  The judge accepted the submission that none of the hospital staff had caused injury to J whether accidentally or otherwise.  He found there was insufficient evidence to find that the injury to her throat was caused by the passing of a feeding tube or that the injury to the clavicle was caused by any act or omission at the hospital.  He determined that the local authority had not discharged the burden of proving that the fracture had a non-accidental cause; it was in his view an inexplicable injury.  He found that if the initial bleeding on the 16 March was caused by trauma, because of the precise sequence of events around that time, it could not have been caused by the mother.  It would necessarily follow that it must have been caused by the father, in whose sole care J was on each of the three occasions when she had bleeding.

6. The local authority put its case on the basis that the throat injury was caused when the father inserted a finger into J's mouth in a misguided attempt to dislodge mucus in her throat.  The parents, or the father, had agreed that he had put a finger into the child's mouth but had not given any account of putting any finger down her throat, but that was nonetheless what the local authority suggested must have happened.  The judge found that the mother had spoken to professionals about the father being rough in handling J, although the mother denied that to the judge and denied that she had any concerns, except for the father not supporting J's head.  This was one aspect of a more general divergence in the evidence about whether adverse things had been said by the mother and her mother about the father's behaviour.  The mother generally denied saying those things, but the judge preferred the evidence of the witnesses who reported those conversations.  He found that in the first week of J's life, the father had handled the baby "roughly or very roughly".  He found that J's presentation on 16 March fitted with how J would have been expected to present following non-accidental injury to her throat of the type that would cause the mass seen at the bronchoscopy on 22 March.

7. The parents had accepted that they had taken some steps to clear mucus from J's mouth and throat, tilting her and then putting her on a cushion face-down on the mother's lap while rubbing her back and raising and lowering her ankles and also, as I have said, the father putting his finger in her mouth.  The judge found in his judgment that the father had also probably placed a finger into J's throat to try to remove the mucus.  The judge described it as "a misguided attempt to clear mucus".  He found that that resulted in non-accidental injury.  He formulated it in his paragraph 268, to be found at page 135 in the bundle, in this way:
"On the basis of the entire evidence submits the Local Authority the most likely explanation is that [J] suffered non-accidental injury on the afternoon on 16 March.  This was inflicted by the Father in a misguided attempt to help the child by inserting his finger down the child's throat in order to remove the mucus.  I accept that submission."
And in paragraph 278, page 139 in the bundle:
"My conclusions on this matter are as follows.  
(i) That on the 16 March 2010 the Father in a misguided attempt to clear mucus from [J's ] throat and in a state of panic inserted his finger into the child's throat and caused an injury which resulted in bleeding on 16 March and ultimately the lobulated mass seen on 22 March"
The fracture having been dispatched in the course of the judge's findings, the throat injury was therefore the only injury which was in contention as the basis for establishing the threshold criteria in relation to either of the children.  It occurred at a time when the mother was unwell, when L, the older child, was ill and the father was under considerable stress in a situation that was unusually difficult for the family.  

8. The only other features found by the judge which might have contributed to the threshold were that the parents had been less than frank about the event on the 16 March; that the mother was jealous and worried about the father after the period she and J first came home from hospital; that the mother had complained to professionals about the father being rough in his handling of J either because she was genuinely concerned or because she was jealous and resentful of the father's role in caring for J.  The trial judge concluded that what had happened in relation to J's throat met the requirements of the threshold.  He set that out in his paragraph 281, page 141 of the bundle as follows:
"On considering the matter and looking at the totality of the events that afternoon and preferring the submissions of Mr Hand on this point, I have come to the conclusion that what the Father did on that occasion to a tiny baby, albeit in a state of anxiety and panic, was dangerous, disproportionate and therefore unreasonable and meets the requirements of the Threshold."
9. Of J he said at paragraph 284:
"[J] has therefore suffered significant emotional and physical harm by virtue of the injury to her throat and was therefore likely to suffer significant emotional and physical harm attributable to the care that was provided to her by her parents."
10. With regard to L, the judge took the view that unless actual physical harm was proved in respect of J the threshold could not be satisfied in relation to L on the basis of likelihood of physical harm (page 115).  But in his paragraph 142 he concluded by saying that L is also likely to suffer significant emotional harm attributable to the care likely to have been provided to him by the mother and the father without giving any details at all as to how that flowed from the finding that he had made in relation to J.  

11. The first ground of appeal challenges the finding that the injury to J's throat was caused by the actions of the father at all.  Ms Branigan QC indicated that she preferred to put the case today on the remaining five grounds of appeal, although we discouraged her from confining her submissions to that and, as will become apparent, I propose to give permission to appeal on the basis of the first ground as well as the other five.

12. The essence of the remaining five grounds of appeal was that what the judge found had happened in relation to J's throat was not capable of founding a finding that the threshold criteria were satisfied in relation to J.  Ms Branigan submits that significant harm has not been established on these facts.  She submits that the trial judge fell into error by looking not at the harm itself but at the actions of the father.  She further submits that those actions could not found a conclusion that J was likely to suffer significant emotional harm and even more so were insufficient to found such a conclusion in relation to L.

13. The judgment was a long and careful one and, as Thorpe LJ said in refusing permission to appeal, "admirably full and clear".  The judge and the doctors were faced with a highly unusual and challenging puzzle to make sense of the evidence in this case.  In my view, however, Ms Branigan's arguments as to whether the threshold was satisfied on the basis of the findings that the judge ultimately made do have a real prospect of success on appeal.  Whether I would have formulated them myself only around a consideration of the meaning of significant harm I am not sure.  As I raised with Ms Branigan in argument, I wonder whether the matter may also be susceptible to consideration in the context of the requirement that the harm or the likelihood of it be attributable to the care given to the child or likely to be given to him were the order not made not being what it would have been reasonable to expect a parent to give.  Of course, it is a matter for the full appeal as to how it is ultimately formulated, but I would give permission for the matter to proceed on all of those five grounds.

14. The medical evidence was sufficiently difficult and uncertain to persuade me that there should also in these circumstances be permission to appeal against the conclusion that the source of the throat bleeding was trauma caused by the father.  This was a child with multiple unusual symptoms as will be apparent from the remainder of this insufficiently short judgment.  Not all of those unusual symptoms were capable of being explained by a unified diagnosis of (putting it neutrally) something done by the father and that was one of the difficulties that faced the court.  So I would give permission to appeal also in relation to the question of causation of the lobulated mass.

15. We are told that the child is now living back at home again under an interim Supervision Order with little debate about whether that is to continue.  It might be thought that this matter has therefore become academic, but I am quite sure that Ms Branigan is right in saying that a set of findings of fact and a finding that the threshold is satisfied in relation to a family cannot be dismissed in that way as simply academic.  Of course if the local authority, upon learning what has happened at court today and that permission has been granted took stock, they have available to them the option of conceding the appeal if they consider that no further purpose would be served by the care proceedings.

16. In the particular circumstances of this case I therefore give permission on all grounds.

Lord Justice Ward:   

17. I agree.  I would have given permission had I been sitting alone because the case is one which troubles me.  I cannot but venture to think that if the case had been presented to the court solely on the ground of this injury to the throat, the court might have taken a very different view of the case than it had to when the issue was also directed towards the fractured clavicle.  Having found that the case was not proved with regard to the shoulder and one excludes that entirely from one's mind and one concentrates only on this extraordinary injury to the throat, given the combination of other unusual symptoms from which the child was and continued to suffer, I think that this case needs a much closer look.

18. On the judge's finding that the father in "a misguided attempt to clear mucus from Jessica's throat and in a state of panic inserted his finger into the child's throat and caused an injury which resulted in bleeding and ultimately the lobulated and globulated mass seen on 22 March", taking that finding just as it is, and accepting the circumstances as he found in paragraph 281 that he acted in a state of anxiety and panic, one can understand the finding, if one reads sticking a finger down the baby's throat literally to be a wholly extraordinary act to perform.

19. If, on the other hand, what this panicked, anxious father was endeavouring to do was ease a breathing or choking problem in this little baby and he put his finger into her mouth as he seems to have admitted, then if the tip of his finger extended the tiny bit into the throat which Ms Branigan demonstrated, then one has a completely different idea of what he was attempting to do, and then it is a question of whether it was an action which was dangerous, disproportionate and therefore unreasonable.  Was it non accidental injury?  What exactly does that mean in the context of this case?  Putting it another way, which, as my Lady has indicated, is equally the question which arises: was that action evidence from which one can draw the conclusion that the child was suffering from harm which was attributable to the care given to the child not being what it would be reasonable to expect a parent to give him?  That question of reasonableness may arise in consideration of both aspects of the case: was there significant harm, and was it as a result of unreasonable behaviour by this father in his panic and in his anxiety?

20. Given that the children are back with the parents, I heartily agree with my Lady's concluding comments that (a) the case is not academic because there is a finding of fact against this father which will remain on his Social Services record  forever; and (b) are the local authority going to contest this appeal in a case which lasted 15 days with two leaders and probably two, four, six, seven, maybe eight counsel on an appeal which will probably take a day and a half/two days.  Is it all worth the candle?

21. But those are matters for the local authority to reflect upon, and it is enough for me to say that I give permission on all grounds as for the reasons my Lady has more fully set out.

Order:  Application granted