This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.	

Case No: LV17C03063
IN THE FAMILY COURT AT LIVERPOOL
35 Vernon Street,
Liverpool, L2 2BX

Date: 01/06/2018
Start Time: 14.53   Finish Time: 15.23

Before:

HIS HONOUR JUDGE GREENSMITH

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RE M and N (Children) (Local authority gathering, preserving and disclosing evidence)

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MISS WAKE appeared for the Applicant Local Authority
MISS MALLON (appeared for the First Respondent
MR. WRIGHT appeared for the Second Respondent
MR. IRO appeared for the Third Respondent
MISS LOMAX appeared for the Fourth Respondent Children
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JUDGMENT
HIS HONOUR JUDGE GREENSMITH : 
1.	The court is concerned with the welfare of M, who was born on [a date in] 2013 and N, who was born on [a date in] 2017.  
2.	This is a fact-finding hearing which was listed over five days.  At the commencement of the case the local authority filed a schedule of facts which it contended would prove that the threshold for making a care order would be crossed.  Whilst the alleged facts seemed quite extensive, they all arose from the same event.  In this sense, this is a single issue case which turns around the question of how a single injury was caused to N.  At the time of the injury, N was 2 months old and immobile. 
Background
3.	The injury with which the court is concerned is a broken right clavicle.  Related to the main injury N suffered, it is accepted at the same time as the break she sustained bruising to her neck on the right hand side.  
4.	There are usually two children living with the mother and the father: N, who is the child of both of them; and M.  The local authority contended that N had sustained a broken clavicle as a result of the care she was being given by either the mother or her partner, whom I will refer to collectively as the parents, and that the injury has been caused either by a deliberate act or an act of negligent care.
5.	It is common ground that N was taken to Alder Hey Hospital on 21st  September 2017 by her mother presenting with a rash on her right shoulder/neck.  It is further common ground that what the mother presented as a rash was, in fact, lineal bruising.  Upon initial X-ray it could not be confirmed that N had a broken right clavicle.  There was a shadow on the X-ray and a CT scan was commissioned which confirmed a non‑displaced fracture. 
6.	The parents put forward two possible explanations.  The first, which was given at the time of admission, was that N was possibly injured when she was a passenger in a car driven by her father which was involved in an emergency stop.  It was suggested that the break could have been caused by the child’s restraining strap on her child seatbelt, which was lacking its cushioning, on her child seat.  After reflection as to the date of the accident, the father confirmed this occurred on 19th September.  The treating paediatrician, Dr. De Soysa, was quick to dismiss this as a cause of the injury as the parents confirmed that N did not wake at the time of the accident despite the inevitable pain she would have suffered.
7.	The parents gave a second suggestion as to the cause of the injury following N’s admission.  The first written record of the second suggestion having been given was at a meeting on Monday 25th September.  I am aware that had the mother given evidence, she would have said that she attempted to bring her concerns to the attention of the hospital and particularly Dr. De Soysa on the Saturday but was unable to do so because it was not an emergency and she had to wait until the Monday.  The second suggestion was that N was injured on Thursday, 20th September in the afternoon when her half-sister, M, tripped and fell on her.  It was suggested that M’s knee made contact with N’s clavicle, thus causing it to break.  The parents say that it was further suggested that M was carrying a plastic toy and that that may have contributed to causation.
8.	It was said that the mother and the maternal grandmother were in the room and that the father was in an adjacent room.  According to the parents, N cried at the time, although she was being changed and was ready for a feed.  The mother and grandmother were in a state of stress as a result of being pressed for time to attend a school event with M and the family had also had the bailiffs call on them that day.  Following the incident, N was left with her father who was able to feed and comfort her.
9.	It was the local authority’s case that neither of the above theories could be proved to sufficient standard to provide an acceptable explanation.  Any broken bone in an immobile child requires an explanation and in default, the cause must have been as a result of the care the parents gave to N, either by way of negligence or deliberate harming.  
10.	Dr. De Soysa, who was present at the meeting on the 25th, discounted the theory of the fall as he was of the opinion that the delay in reporting the event gave rise to sufficient suspicion as to make the explanation unlikely to be true.  He advised the local authority that the injury was not accidental.  The local authority applied for a care order on 27th September.  Both children have been in the care of their maternal great grandmother since then to the present day.  The parents have had supervised contact with the children.
Evidence
11.	Social worker, (SW1), was charged with investigating the matter on behalf of the local authority.  SW1 spoke with the mother on 22nd September when she was given the seatbelt explanation.  On 25th September, the Monday, SW1 visited the parents’ home and met with the mother and the maternal grandmother.  At this meeting, she was given specific details of the fall explanation.  On 26th September, the following day, SW1 visited M at her school.  Each of these meetings need further expansion but before doing so, I must comment on the way the meetings were recorded.
12.	During her evidence SW1 referred to her formal recording of the meetings which was set out in case notes and notes prepared for the purpose of the local authority section 47 report.  Both sets are very similar as there was clearly a lot of copying and pasting from one to the other.  Significantly, the formal notes were largely made up on 9th October, some two weeks after the meetings took place.  When questioned by Miss Mallon about the potential for these notes being inaccurate because of the delay, the social worker was adamant that they were accurate as she relied on her memory, supported by her handwritten notes taken at the time.  The cross-examination was highly relevant as there was a material dispute as to what was said during the meeting on the 25th.
13.	The handwritten notes had not previously been disclosed by the local authority and did not form part of the bundle.  At the conclusion of SW1’s evidence, the court asked her if the notes existed and if they could be produced.  It transpired the notes did exist and they were produced the following day and circulated.  The contemporaneous notes comprised seven pages of handwritten material.  It is difficult to overstate how unprofessionally prepared these notes were.  They were largely undated, they failed accurately to recall who was present, much of the handwriting is illegible, they were in large part disjointed and had to be translated by SW1 who gave further evidence but despite their unsatisfactory condition, the notes were illuminating.
14.	Until the notes appeared, no plan of the living room of the family home had been prepared.  The notes, however, contained a sketch plan of the room with a faint line which the social worker confirmed denoted the path M was taking when it was alleged that she had tripped falling on to N.  The path is clearly towards N’s head and right shoulder.  It is entirely consistent with the evidence given by the mother and the grandmother and suggests a graphic explanation for how M could have placed her knee on N’s right shoulder causing bruising to her neck but not to the remainder of her torso. 
15.	The significance of this is twofold.  Firstly, the fact that the mother was denied this crucial contemporaneous recording of what she said four days after the event was to deny her the opportunity of supporting her version of events with crucial evidence and left her to rely on her memory many weeks after the event.  Secondly, it deprived the experts of corroborative evidence to explain how the neck could have been bruised but not the body.
16.	The handwritten notes contained a record of SW1’s meeting with M.  They are as illegible and disjointed as the other notes but start with the words, “Naughty step”.  SW1 was unable to explain why these words appear and could only speculate.  The note contains a record of the child saying something and then correcting herself and concludes with the words, “Said never tripped/fell on to N/mat”.  
17.	As a result of this meeting, it is claimed there is formal record supporting the local authority’s case that M has denied falling on to N.  This has been taken up by the experts who have used this in support of their opinion that the event did not happen.  This is not a criticism of the experts as they are entitled to assume M was interviewed in a professional manner.  Unfortunately, she was not.  During the social worker’s evidence she said that she had been ABE trained.  If this is the case, I have grave reservations as to the quality and effectiveness of that training.
18.	Following the social worker’s evidence the court heard from the maternal grandmother, (MGM).  MGM was an excellent witness who did her best to recollect an event she had the misfortune to witness.  MGM has mental health difficulties exacerbated by these proceedings, she says, and her presentation to the court is very much to be admired.  She gave a clear account of the fall incident.  She described how M’s knee made contact first with N’s shoulder and then fell forward towards the baby’s feet.  This is entirely consistent with the plan drawn by the social worker, although at the time of giving evidence this plan was not available to MGM.
19.	She said that immediately upon the fall occurring, N, who was crying anyway (she was hungry) had a different type of cry.  There was mention of a plastic toy.  It was suggested that this might have caused the injury.  I can fully understand why the toy was mentioned but having seen the toy and considered the impact a 4 years old knee would have had on an 8 weeks old clavicle, common sense tells me that the toy is very much a red herring in this case.  That said, the toy is a significant red herring because as a result of the local authority having failed to prepare its case in a way that demonstrates a clear sequence of events supported by contemporaneous notes, the experts were left to consider a possibility which simply did not happen and that is that M hit N with the plastic toy causing the clavicle to break.
Expert evidence
20.	The court then heard from three of the four experts who prepared reports for this case.  Dr. Johnson, a consultant paediatric radiologist, confirmed the injury was less than eleven days old at the time of the initial X-ray.  He was clear that the seatbelt would not have caused the injury.  This was based on the fact that in his extensive experience he has never come across this before.  This is, in my judgment, an entirely reasonable supposition to make.  He confirmed that the break could have been caused by the fall.  He said that it comes down to the strength and development of M and he would leave that to others to decide.  He refused to speculate on the body mass of a 4-year-old child.
21.	The treating paediatrician, Dr. De Soysa, gave evidence.  It was unfortunate that the local authority had failed to provide copies of the other experts’ evidence before he attended court and this put him in a difficult position.  The hearing was adjourned to allow the doctor to read the other evidence.  Upon resumption, Dr. De Soysa confirmed his opinion that the seatbelt definitely did not cause the injury and that it was unlikely the injury was caused by the fall of M.  The reasoning behind the opinion was his understanding of the parents’ failure to notice that N had been seriously injured during routine handling and their failure to give an account of the fall being a possibility of such injury being caused until the meeting on the 25th September (at which he was present).
22.	Regarding the criticism that the parents had failed to notice that N was in pain, Dr. De Soysa would not alter his position, even when it was pointed out to him that a nurse palpated N’s shoulder and the baby merely appeared unsettled.  Neither would the doctor accept that there was any significance in the fact that upon arrival at hospital the break was not diagnosed until the CT scan following an initial X-ray.  I accept that there is a difference between palpating and handling a baby but it seems to me that where a child is not correctly diagnosed for many hours after arriving at hospital, some latitude must be given to the parents and I am surprised Dr. De Soysa could not do that. 
23.	Dr De Soysa was told that the parents tried to report the further possibility over the weekend but the doctor failed to view that in a balanced way, in my judgment.  Of most significance, Dr. De Soysa said in evidence that if the parents had initially given the explanation of the fall, he would have accepted it as an explanation as to how the injury occurred.  With that established, it seems to me that it is a matter for the court to decide whether the delay in the version being put forward by the parents is significant from an evidential point of view.
24.	The last evidence was given by Dr. Elias-Jones, consultant paediatrician, who has reported within these proceedings.  The doctor remained as dismissive of the seatbelt theory as he was in his report and this, of course, was entirely echoed in the opinions of the other experts.  Regarding the fall theory, there was significant shift in the position of Dr. Elias-Jones during the hearing as to whether the fall could be a plausible mechanism for the injury sustained.  Until the hearing, Dr. Elias-Jones was adamant that the clavicle could not have been broken in the manner suggested because if it had, N would have suffered significant bruising across her torso.  Indeed, during his evidence he used his right hand to show the bruising would have stretched across N’s left chest area.
25.	It became apparent that the doctor was assuming that M had fallen from N’s left side and that her shin would have made contact with N’s left chest before her knee made contact with her right clavicle.  It was put to him by Mr. Wright that perhaps he had misunderstood the alleged mechanism of the cause of the break.  It was put that the first part of M’s body to make contact with N was her right knee.  There was a notable moment of realisation on the part of the doctor that his opinion was not well-founded and Dr. Elias-Jones accepted, in a manner which does him professional credit, that: 
“If she was falling in and hit her with her knee, you would not have had the bruising elsewhere.”
26.	Dr. Elias-Jones maintained that the parents should have reported their concerns that N was in pain before they did but again seemed to be unaware that the parents reported their concerns and their theory as soon as Monday the 25th.  Indeed, during the professional meeting he said:
“There was no attempt to take the child for any sort of medical attention.  That raises your suspicions.”
While the doctor tried to pass this off as a casual observation, it does, in my judgment, have to be regarded as demonstrating an unfortunate lack of understanding of the mother’s case.  In my judgment, it is most unfortunate that the drawing the social worker made on her visit to the parents’ house on 25th September was not made available for Dr. Elias-Jones.  Had it been, I am confident that the doctor would not have reached the conclusion based upon a misunderstanding of what the parents were saying had happened.
27.	On the third day of the five day hearing the local authority took stock of the evidence and, quite rightly, concluded that there was an unrealistic prospect of establishing threshold and asked the court for permission to withdraw its application.  The court ordered the local authority to make its application formally by way of C2, supported by a child-in-need care plan.  These have been filed and the children’s guardian has had the opportunity to consider the way forward.
The Law
28.	The law so far as relevant to this case is the burden of proof in respect of any fact it seeks to prove in support of the threshold rests squarely on the local authority, Re A (A Child) [2105] EWFC 11.  The standard of proof is a simple balance of probabilities, Re B (Children) [2008] UKHL 35. When deciding how much weight to give evidence obtained from children, the court will be slow to rely on any evidence which has been obtained without full compliance of the guidelines set out in Achieving Best Evidence in Criminal Proceedings: Guidance for vulnerable and intimidated witnesses including children 2001. In Re E (A Child) [2016] EWCA Civ 473 Lord Justice McFarlane supports this in paragraph 37: 
“The departures from the ABE guidance required the judge to engage with a thorough analysis of the process in order to evaluate whether any of the allegations that the children made to the police could be relied upon.”
Analysis
29.	My analysis is as follows.  If N had been injured by her seatbelt, she would have woken up and cried.  She did not.  It is medically implausible that this event caused the injury and, in my judgment, it did not. 
30.	There is unanimity between the experts who attended court that N could have been injured in the way she was by M’s knee landing on her clavicle.  I accept the evidence of the mother and the grandmother that this event occurred precisely as they say it did, that M was walking back to N who was lying on her changing mat, that M tripped, that M’s knee was the first part of her body to make contact with N and it did so directly on to her right clavicle.  The break was caused by this mechanism.  I am entirely satisfied that this was an unfortunate accident and that neither parent was in any way responsible for its occurrence.
31.	The local authority was right to apply for leave to withdraw its application but we now have a dreadful situation where both children have been separated from their mother and in N’s case her father’s unsupervised care for over six months.  The parents have separated and it is unknown how much the stress of these proceedings has contributed to that.  M, who we are told cannot understand why she has to live with her great grandmother, must now be told at some point and in the most sensitive way possible that the reason was because her parents had been accused of harming her sister when, in fact, the injury was actually caused by M herself.  There is a significant amount of work to do to put this family back together again.
32.	The local authority has prepared a care plan and I am content that the care plan meets the children’s needs.  Having considered the children’s welfare and in doing so having had regard to the welfare checklist, I am satisfied that it is in the best interests of both children for the proceedings to be withdrawn and give leave accordingly.
Judicial comment on gathering, preserving and disclosing evidence
33.	I cannot leave this case without making comment on the manner in which the local authority has conducted itself.  I have three main areas of concern.  Firstly, the gathering and recording of evidence by the social worker was, in my view, wholly inappropriate.  The local authority was investigating an allegation of serious child abuse where it was thought possible that an 8-week-old baby had been seriously injured by one or other of the parents.  
34.	In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory.  If the local authority thought it appropriate to obtain evidence from a 4-year-old child, and it clearly did, it should have followed the ABE guidelines.  Failure to do so renders any evidence obtained from the child to be of no value.
35.	Secondly, I have concerns over the failure of the local authority to present a full picture to the experts.  If Dr. Elias-Jones had known the explanation given by the parents days after the event in the manner that it was given to the social worker, this would have changed his opinion.  This is clear because when he did understand it, his opinion changed but unfortunately this was four and a half months after he filed his report.  Dr. De Soysa in his report dated 27th September, which will have been read by the other experts, reports: 
“SW1 had interviewed M with regard to this incident.  SW1 informed me that M had no recollection of this event.” 
36.	There is reasonable scepticism as to whether a 4-year-old should have been interviewed at all.  However, if she had been interviewed appropriately, and by that I mean in accordance with the ABE guidelines, the outcome may have been very different.  It may be that she would have given an accurate account of events which would have meant this whole case could have lasted days rather than six months.  One can only speculate.  In any event, to have given an account of events of what M said was, in my judgment, irresponsible as the experts could not be expected to question the basis upon which this information had been obtained.
37.	My third and final area of concern is on the matter as to whether the parents and the children have had the benefit of natural justice in this case and thereby whether their Article 6 rights have been breached by a local authority which is, of course, an instrument of the State.  These proceedings are borne out of a serious allegation of child abuse which, if found, would have had a profound effect upon the parents and the way they would be able to care for their children in the future.  
38.	I have already given my comment upon my interpretation of the local authority’s duty of care on gathering evidence but I feel obliged to comment on the local authority’s failure to disclose material evidence in advance of being required to do so during the final hearing.  It is clear that the content of the social worker’s contemporaneous notes was material in securing the sea‑change in the professional opinion of Dr. Elias-Jones.  The parents should not be expected to have to go on a search to obtain such important evidence which supports their case.
39.	The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity.  It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating.  For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings.
END