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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Kent County Council v S & M (Fact Finding re multiple bruises & healing fractures) [2016] EWFC B62 (21 July 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B62.html Cite as: [2016] EWFC B62 |
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47-67 High Street, Chatham. |
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B e f o r e :
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KENT COUNTY COUNCIL | Applicant | |
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S & M | Respondents |
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MRS MURKILL of Counsel appeared on behalf of the Mother.
MISS HOWARTH, Solicitor, appeared on behalf of the Father.
MR CRAWLEY of Counsel appeared on behalf of the Intervener, JR.
MISS HARRINGTON of Counsel appeared on behalf of the Guardian, Miss Jenny Lobb.
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Crown Copyright ©
HER HONOUR JUDGE CAMERON:
INTRODUCTION
THE MOTHER'S CONCESSIONS AND HER AND OTHERS' BEHAVIOUR
THE EVIDENCE
A CONFLICT ARISING
"Mother states that the child is predominantly with her and gave some account of the bruising, i.e. child pinches herself, little friend hurts her in play, rough and tumble on the site. She denies deliberately hurting her child and DOES NOT seek to put any other person forward as a suspect, inclusive of her partner. Officer in Charge has canvassed those on site and has gained no information to progress these matters that have come to light. The hypothesis is there could be an element of protecting each other."
"I know it did not happen in my care. I can't say to you they done it. It must be those two. If not me, who else? They asked me to blame someone ."
I interpolate there meaning the Police and/or the Local Authority as I understand it:
" .. as there is no one else to blame."
I found the mother's evidence throughout to be very guarded and self-serving, leading to Miss Burt for the Local Authority understandably to comment at one point:
"To this Court you are saying nobody injured her?"
TURNING TO THE MEDICAL EVIDENCE
"Extensive bruising with the scratch marks could be caused by a fall on the front. This can also be caused by pressure from finger-tips using significant force and the scratch marks could be from finger nails. It is a large bruise and in my opinion a usual carer will be aware of the injury which caused the bruise. The force needed to cause the injury would have been significantly more than that using usual playful activity with children. In my opinion it can be accidental, or non-accidental injury, although a usual carer would be aware of the event which caused such a large bruise and with no plausible history it is likely to be a non-accidental injury.
The bruise on the left cheek, this is the area which is the soft part of the cheek, and less likely to be injured in accidental falls, it can be caused by blunt trauma, finger-tips, using significant force which was more than that used in usual playful activity with children.
Bruise C and D could also be caused by a squeezing injury to the face where the fingers can lead to injury on the right side of the chin and the thumb can cause blunt trauma to the left part of the cheek.
Facial injuries on the soft part of the face are unusual in accidental falls and in my opinion on the balance of probability the bruises on the right cheek, left cheek, and the right chin, are likely to be non-accidental injuries caused by blunt trauma with force significantly more than that used in usual playful activity and handling of children."
"Without a plausible explanation and where here there were multiple injuries, and the injuries were on the soft part of the face, and due to the sheer number of them, they are likely to be non-accidental and arise from blunt head trauma."
"He advised me that it is very unusual to see fractures to a child's rib and advised that for this to have occurred accidentally M would have needed some significant trauma to her body and he would have expected other significant injuries. He advised that this trauma would include things like a fall from a significant height or an accident such as a road traffic collision.
I asked Dr. Williams about M having protruding ribs and bumping into things in her caravan as a possible cause for the rib injury. Dr. Williams advised that this response from M's mother as a possible cause for this fracture was 'bullshit'."
THE LAY EVIDENCE
"I couldn't take M to the hospital because if I did they would blame me and the Social would have taken M off me."
That showed an appalling willingness for her child to continue to suffer.
"Throughout the entire period of time she has denied even seeing LS. I think it is very unlikely that they are not together. I think she is still in a relationship with him."
Indeed the grandmother felt very much the same and they were right.
"I tried to get her to a domestic violence place but she refused. I told her if she goes back to him I won't be helping her again. This was her chance to have a new start. Within the week she went back to him. I haven't had much contact with her since."
The family's disappointment and regret about all of this is palpable from their statements.
"It was not long into us living together that the violence stated. He could be of a fiery nature and I certainly would learn very early on that it was not going to be a good day if he run out of drugs. He pretty much was on a high level of drugs and whilst I have used drugs before in the past I have not used them to the extent he would and certainly did not use all the drugs that he would use except that I found myself increasing my drug taking even when I was just doing it passively. In hindsight this was still not a good enough environment for myself and my child and I should have left probably then. Nonetheless I was still not realising just how far gone LS was and when it came to controlling me and the violence that would then ensue relatively quickly into our relationship. To be quite honest he did not care what people thought of him or what they saw. If he was in a mood then I could cop it."
His own mother, JR, said to the Court from the witness box that:
"If its not about LS he doesn't care," very much confirming the positives.
"Give me M. I will bring her back when it has all calmed down."
That was no more than 10 to 15 minutes later in her estimation when the fighting had stopped and she returned M. It was significant that she had said to her son:
"LS, you want to leave off."
Many times she had said to him:
"You are turning out like your real dad," who was a violent man, she told the Court.
"She did not want to be with me. She wanted to be with nanny. She was trying to slap me. She did not respect me as a mother. She did not even see me as her mother at that point."
She accepted also that the foul words coming out of this little girl's mouth were the words that LS used to her, the mother, and of course M picked them up and parrot phrased them back and used them in the grandparents' home.
"She kind of knew what was going to happen. She would jump up on her bed and wait for me to get hurt."
That was an enormously poignant and terrifying thing to say about her own little girl.
"I didn't really think about it to tell you the truth,"
That was when asked by her own Counsel how this would be affecting her young child. Sadly there was no prioritisation of her child's welfare at all.
"I did tell him off and sent him home. He did hurt my child."
She stated that K had chucked at toy at M when she had pulled his hair and then he pinched her on the arm and gave her quite a nasty bruise. Other bruises must have been from that two year old pulling back by her clothes her own two year old. She then said that M had tripped over the lead of a radiator, her face smacked against the floor and the radiator smacked against her. M had landed on her front and her chin came up. Other than that, all the other marks she said she just assumed that M was doing it to herself and was bumping into things. She denied that M had ever fallen on to anything or had hurt her ribs and said it was "just her heritage", that she and M had the same ribs and one pokes out a little bit more.
"I would not stand here and lie. I wouldn't."
"I knew there was violence there. I knew there had to be something else and there were no answers for the bruising."
"Kind of. Everyone said you are being too rough, to stop."
She said also that LS does not feel he has to be here in these proceedings:
"Its not his child, so why should he care?"
"I wanted to wait for it to calm down. I did not think it was a break as she was not screaming. A lump, maybe a bite, or banged it. Maybe it might go a bit swollen. It might get really bad and then I would have to do something but I did not want to get blamed."
She accepted that, yes, kind of, she was protecting herself. She said this:
"I was with LS. He was my boyfriend and I loved him and I did not want to think he had done it."
"I think they came to stay with me first in July 2015. During this time I noticed that they were verbally abusive to M, calling her a 'Dimlow' (which I took to mean stupid). There were also a lot of verbal arguments between LS and NS. I asked them to leave due to the arguments between them and I noted things were going missing from my home. A few weeks later they found themselves homeless again and I allowed them to come back to my chalet. During this time they stayed I observed: (1) arguing between LS and NS. LS threatened to punch NS. He also was verbally abusive to NS; (2) I saw LS grab M by the arm and yank her up and drag her through the air by her arm on many occasions, as many as ten times; (3) I saw LS slap M to the back of her legs. This was a full-on slap as if to an adult and not a tap. I saw this a couple of times. (4) NS was also verbally abusive to M by calling her a 'Dimlow'. She called her this a lot. However, I never saw her hit M. (5) When LS was hurting M NS used to tell LS to stop and leave her alone. NS was often in tears at these times. She had on occasions threatened to leave him and pack her bag but she never did leave; (6) I had also heard from four to five other people, including LS's brother and mother, that when they were living in their caravan that LS had fly-kicked M out of the caravan window. I did not witness this myself."
THE LAW AND THE COURT'S APPROACH
"It seems to me that the two most likely outcomes in uncertain perpetrator cases are as follows. The first is that there is sufficient evidence for the Court to positively identify the perpetrator or perpetrators. Second, if there is not sufficient evidence to make such a finding the Court has to apply the test as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused the injury. For this purpose real possibility and likelihood can be treated as the same test."
"There will inevitably be cases where the only conclusion which the Court can properly reach is that one of the two parents, or carers, or both must have inflicted the injuries and that neither can be excluded."
That is exactly what I have found here and what I made plain to the parties last week.
"If there was a lesson to be learned from this appeal it seems to me to be this, that in future Judges should be cautious before amplifying a Judgment in which they have simply reached the conclusion that neither of two possible perpetrators can be exculpated. It is safer to leave it thus."
That is exactly what the Court has found here that both the mother and LS remain in the pool of perpetrators and that neither can be exculpated.
FINDINGS OF FACT
"They were fine with each other two weeks ago."
They were living in that address at Queensborough where she and her husband had driven them back after giving them dinner, and doing their washing for them, and allowing them to have a bath at her home.
THE WAY AHEAD
AVTS REF: 6368/H5205