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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> S (A Child) (Finding of Fact Hearing), Re [2020] EWFC B75 (20 November 2020) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2020/B75.html Cite as: [2020] EWFC B75 |
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Gloucester House, 4 Dukes Green Avenue Feltham, TW14 0LR |
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B e f o r e :
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| THE LONDON BOROUGH OF HILLINGDON |
Applicant |
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| - and – |
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| The Mother The Father S (A Child) (through her Children's Guardian) -and- The Uncle |
Respondent Intervenor |
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Ms Jayne Harill (instructed by IBB Solicitors) for the First Respondent
Ms Fiona Griffin (instructed by Reena Ghai Solicitors) for the Second Respondent
Mr Mark Rawcliffe (instructed by Creighton & Partners) for the Third Respondent
Ms Emily Driver (instructed by Direct Access Barrister) for the Intervenor
Hearing dates: 2-5, 10, 12, 16-20 November 2020
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Crown Copyright ©
His Honour Judge Willans:
Introduction
The findings sought and the party's positions
i) Head TraumaOn presentation at hospital on 15 March 2020 S had the following brain injuries:a) Diffuse subdural/subarachnoid haemorrhageb) Abnormal restricted diffusion to the brain substancec) Clefts within the brain substance with associated swelling tears and lesionsThese injuries are severe/very severe caused most likely by a shaking type mechanism with acceleration/deceleration/rotational forces. On balance the injuries were inflicted jointly or individually by either the mother and/or father. The injuries were most likely occasioned at the time S became noticeably unwell and shortly before 12:28pm on 15 March 2020. All organic causes have been excluded and these injuries would not have been caused in the normal cause of child-care. The injuries are not birth related and neither parent has given an explanation for the injury save that they deny responsibility.ii) Chest injuries
S was found to have suffered multiple fractures to the ribs. Such fractures in infants are exceptionally unusual. S was found to have suffered 9 rib fractures. The 1st, 2nd, 6th, 7th and 8th ribs on S's right side were found to be fractured posteromedially; the 6th rib to the right side was also found to have a fracture posterolaterally; the 3rd, 4th and 5th rib to the right side was fractured anterolaterally[6]. These fractures were most likely inflicted within a short period prior to S's presentation at hospital on 15 March 2020 and possibly on the same day and most likely caused by the same event that caused the head trauma. On balance the injuries were inflicted jointly or individually by either the mother and/or father. There is no organic cause to explain the fractures. They were inflicted 'non-accidentally' after the use of 'obviously excessive force' and not in the course of ordinary handling. They do not date to the birth of the child. They were not the result of CPR being performed or the result of a resuscitative shake. Neither parent has given an explanation for the injury save that they deny responsibility. Additionally there were equivocal left sided posteromedial fractures.iii) Leg Injury
S suffered classic metaphyseal lesion (CML) fractures to both her right and left distal femur (to the thigh bone just above the knee). These most likely occurred as a result of direct shearing or twisting forces but could also have occurred when acceleration/deceleration forces were applied indirectly to the child's limb (i.e. when she was being shaken causing her limbs to flail). On balance the injuries were inflicted at the same time or similar timeframe to the rib fractures and close to the time of presentation at hospital on 15 March 2020 and at the same time as the head injury. There is no organic cause for the fractures; they were not caused during the course of ordinary childcare handling; they were not caused by a resuscitative shake. On balance the injuries were inflicted jointly or individually by either the mother and/or father. Neither parent has given an explanation for the injury save that they deny responsibility.iv) S had no pre-existing medical condition, abnormality, weakness of susceptibility that made her susceptible to the injuries that were inflicted.
Failure to Protectv) The mother and/or the father failed to protect the child from the inflicted injuries.
Legal Considerations
i) It is for the applicant to prove each of the allegations and there is no burden on the parents to disprove anything. The applicant will succeed if it establishes an allegation as being more likely than not. The fact that these are serious allegations does not alter the test to be applied[8]. The inherent probability of an event is a matter to be weighed in the assessment but is not of itself deterministic. As was explained by Peter Jackson J (as then was)[9]It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition.ii) Whilst it is not for the parents to prove an alternative explanation or indeed to provide such an explanation, where an alternative is before the Court the question is
…not 'has that possible alternative explanation been proved' but rather it should ask itself, 'in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability.[10]iii) The Court must remain astute to avoid unconsciously reversing the burden of proof by expecting a plausible explanation as to causation from a parent. Equally in considering all the evidence the Court must be respectful of the medical evidence but must not lose sight that this is but a part of the evidential landscape and that the Court is the ultimate decision maker and that the evidence from the parents will be of particular importance. Again the Court must guard against a medical explanation for causation effectively reversing the burden of proof against the parent(s)[11].
iv) Findings of fact are to be based on evidence, including inferences that can be properly drawn from the evidence, but not on suspicion, speculation or anecdotal evidence[12]. The applicant must not only prove the facts in dispute but must also establish a causative link associating the findings with the crossing of the legal threshold set out in section 31 of the Children Act 1989. It is the crossing of this threshold, and the finding that the child has suffered significant harm attributable to the care given to the child not being that which would be expected from a reasonable parent which is central to the fact finding. In this case the allegations are of harm suffered and so the Court is not focused on the question of risk of harm as found in the same section.
v) The Court operates a binary system such that if it is found to be more likely than not that an event happened then it is treated as a fact. If the assessment fails to meet this threshold then the allegation is wholly ignored thereafter.
vi) In considering the available evidence the Court must have regard to the broad canvas of evidence and must avoid evaluation and assessment of evidence within restricted compartments. The value of evidence may vary as it is held up and considered alongside other available evidence (even when these derive from different 'compartments'). So the totality of the evidence must be considered, and the Court must ensure it undertakes a proper overview of all the evidence. In doing so it is vitally important to have regard to the 'wide canvas' of evidence available to shed light on the family relationships, home life and other valuable evidence which may inform the Court as to what did or did not occur.
vii) Medical and expert evidence is plainly important as well. In cases of this type it is common for the Court to receive evidence from multi-disciplinary experts. This deserves respect and the Court should be in a position to provide reasons if it intends to disagree with such evidence[13]. But the Court is entitled to disagree[14] and must continue to remember that this evidence is part of the canvas for consideration[15]. The Court will always remember that medical understanding and knowledge develops over time and medical certainty today can be shaken tomorrow just as medical uncertainty is removed over time[16]. The Court in these cases should be careful to ensure each expert properly confines him/herself to the boundaries of their own expertise.
viii) Ultimately the Court has to be open to the potential for the cause to remain unknown[17]:
…there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.ix) In many cases the Court is confronted by more than one potential perpetrator of an injury under investigation. In such cases the Court has to examine the situation relating to each of the potential candidates. In doing so the Court has to ask[18]; (a) is there a list of persons who had the opportunity to cause the injury?; (b) Can the Court identify the actual individual who was responsible for the injury?; (c) if the Court cannot then in respect of each individual on the list the question will be "is there a real possibility that the individual was the perpetrator of the inflicted injury". There are many reasons why it is much better to identify the actual perpetrator, but the Court should not strain to identify an individual if the evidence does not permit this.
x) In considering the evidence the Court may conclude a witness has told lies to the Court. The Court should not use this finding as a basis for concluding the witness has lied about all matters. There are many reasons why a person may tell a lie or lies but this does not mean they have lied about everything. The Court should examine the context of the lie to evaluate its probative value to the overall evaluation[19]. In considering whether the lie is corroborative of responsibility the lie must be deliberate; it must relate to a material issue and the motive for the lie must be a realisation of guilt and a fear of the truth. But even then, the lie does not establish responsibility rather it is then capable of amounting to corroboration of the allegation in question.
xi) Finally in assessing evidence the Court must continue to remember that the purpose of evidence and examination is to understand and test the evidence. The Court reflects on the evidence and considers, among other matters, its content and whether it is logical, consistent and how it fits with other evidence available to the Court. The Court will likely gain far less assistance from the manner or demeanour of the witness when giving the evidence[20]. The Court should be cautious in assuming a confident witness is a truthful witness for example. Also when considering oral testimony the Court should bear in mind the fragility of human memory and where an account has been given on multiple occasions the risk of 'story creep[21]', namely a changing story that arises out of repeated telling rather than intention to mislead. Again this should lead the Court to examine the evidence with care.
Proceedings
Background
[The father] does not meet the criteria for inferring that he has a learning disability (because his non-verbal reasoning skills are in the average range); however, he does present as having significant deficits in a number of key areas. [The father] is a vulnerable adult; he is likely to experience difficulty in keeping up with his peers in a wide variety of situations that require thinking and reasoning abilities, especially those that rely on language.
An intermediary has subsequently been appointed to assist the father.
Parents state he had vomited this morning at 7am, parents feed baby at 12:20pm and put baby down to sleep and then went in to check baby and noticed she wasn't breathing[27]
This did not accord with either parent's account of the ordering of events. The father accepts the truth of the paramedics account (i.e. that the paramedic is reporting what he heard) but believes his own shock and confusion likely led to this mis-report. In any event he stands by the account given above. The mother likewise stands by the account above.
The Expert Evidence
i) What identified trauma was suffered by S?ii) What was the likely timing of such trauma?
iii) What was the likely mechanism or action that caused the same trauma?
iv) Are there other possible explanations which might explain some or all of the items of trauma?
In my assessment the evidence was clear and consistent between the experts. In setting out their summarised conclusions I have regard to their respective expert reports; the experts meeting and their live evidence.
Trauma
Timing
Mechanism
i) The rib fractures would have been caused by a S being firmly gripped whilst shaken. I was asked to have regard to the placment of the fractures in suggesting a common origin (i.e. all in a line down the rib cage)ii) The brain trauma would have arisen from S's head being unsupported and proceeding through a process of rapid acceleration/deceleration / hyperflexion/hyperextension. This creates a shearing process and the related bleeds.
iii) The CML fracture arises as a result of the lower limbs being free to flail with the weight of the foot acting as an anchor to create a force which causes a large number of micro-fractures which accumulate into the CML fracture.
iv) These injuries are known to be associated with shaking type insults and fit together in a logical manner.
v) There is no way of assessing the exact forces used or indeed the number of shakes required but what would be required would be a level of force which fell outside of the normal band of child handling and was such as would alarm an observer. The injuries here are severe and the suggestion was of this likely being a forceful motion to cause the damage to the brain substance.
Other explanations
Analysis of Evidence and Findings
i) Some significant examination time was taken up with consideration of what the father did or did not say to the LAS. It is plain the very short note of this account does not fit with the parents account given to me or to police or in their written evidence. The sense of the examination was that in some way the truth had slipped when speaking to the LAS.Ultimately and by the time of submissions no party was asking me to place weight on this discrepancy. For my part I agree. There are many reasons as to why that short note might represent a misunderstanding or mis-speaking during what was evidently a period of real crisis and emotional shock. It frankly does not fit with the consistent evidence elsewhere found within the papers. I note the account talks about the child being put down to sleep at 12:20pm and then the parents checking her and finding her in a state of collapse. If this were correct, then this would be a highly concertinaed process given the call was made to the LAS at 12:28pm.Having heard the father give evidence it is clear he at times mixes up his explanation of sequencing of events. When questioned by the guardian he mixed together various stages between 10.30 and 12.00 noon. I am in little doubt the evidence of the Mr Shepherd was truthful and a correct account of what the father said to him, but I am unpersuaded it is in fact a correct account of what happened.ii) Some time was taken questioning the parents as to whether the mother was socially isolated in this jurisdiction. Having heard the evidence I was left with the clear impression that the mother had forged a good relationship with the father's family who were offering support. It is true to say the parent's relationship had limited foundations but there is no reliable evidence to suggest disharmony in the relationship let alone controlling or other problematic behaviour. I gained no assistance from the fact the father was not present at the birth. This is by no means a unique situation. Importantly, the submissions appear to proceed on the basis of a suggested loss of control arising from the developing stress and exhaustion of caring for S. Self-evidently such an account does not require a background history of relationship disharmony for it to be established.
The uncle
The mother
i) I accept the evidence of the experts as to the form of trauma experienced by S (the brain/rib and leg fractures).ii) I accept the evidence of the experts as to timing and on balance consider it likely the injuries were caused at the same time. I accept the evidence that this constellation of injuries fits together as a result of a single event. The evidence does not suggest multiple incidents over what was a short period of time at home. There is an inherent probability associated with one event rather than multiple events and my assessment of the evidence is that the event arose following a climax of stress and exhaustion rather than flowing from repeated misconduct. The evidence of multiple rib fractures, located as they are, signify a single event and the CML fracture is best understood through the flailing motion associated with a shake. It is more than coincidence that they are all dated within the same range of time.
iii) As to the mechanism for the injury I am confident the experts are correct when they point to the likely mechanism being a shaking action. As noted above this logically links the constellation of injuries and explains how they might all have been occasioned. The rib fractures fit with a gripping process and the injury to the brain and leg then fits with the child being shaken whilst gripped. It makes intuitive sense. I accept the evidence that this would have been a forceful process but on balance it was likely to have been short-lived and over in seconds.
iv) Whilst having regard to the point that the parents do not have to disprove the allegations, I do bear in mind that there is no alternative history that might explain any (let alone all) of the injuries. As a matter of fact this trauma occurred, and something must have led to it. Yet S is an entirely dependent baby and one would expect the event to have been witnessed by one or other of the parents. Of course it might be that the injuries reflect an underlying disorder. The difficulty with this and the reason I reject it is that alternatives have been properly considered and rejected and further there really is no condition that would explain both a tendency to bleed with associated rib and other fractures.
v) I have considered the point as to an 'unknown cause' and of course bring this into my analysis. But here the medical evidence is clear and cogent. There is no medical doubt held by the experts and they offer a logical and comprehensible explanation based on significant experience. From the expert perspective this case does not touch on areas of uncertainty. There is a settled body of understanding around these issues. To reach a conclusion of 'unknown cause' would in my assessment be perverse on the facts.
vi) I have listened with care to the parental evidence. It is plain to me the mother can shed no light on the cause of the injuries, but she sheds much light on the surrounding circumstances. It is very clear to me that these were anxious new parents who were really struggling with the demands thrown up by a small baby. I have no doubt they remained excited and happy, but they were finding the process draining/exhausting.
The father provides a similar account. I have no hesitation in accepting their evidence as to the challenge this was posing. They were getting little sleep and unfortunately were so dependent on each other that one could not take time off whilst the other provided sole care. As a result both were exhausted. The father was forced to take time off work and felt dizzy. I accept the tiredness was having a significant physical impact upon him.Additionally it seems to me there was a somewhat poor level of communication between the parents as to how they were feeling. I am cautious in how I approach this point, but the evidence was very clear that on the morning of 15 March the father felt out of his depth, scared and worried and wanting the mother to return from the bathroom/telephone call to support S. Yet when she returned he suggested she should have breakfast leaving him alone for a further period. I have a real sense of the father attempting to 'do the right thing' and support the mother when he was in fact on the edge himself. This showed a lack of awareness as to his own vulnerability.vii) I was struck by the father's evidence when questioned as to whether anything might have happened to S whilst in his care. On a number of occasions he answered he did not think so as he could find no image in his mind of anything happening. With due respect to his cognitive challenges I found this a somewhat puzzling response. It is right to note at other points he was clear in his denial of any shake but nonetheless this initial response left a lingering concern in my mind.
viii) But more sigificant is the reality that something did happen to S during this period leading to her serious injuries. No-one else had care of S and the account/description given by the father of soothing her simply fell outside of anything that might have led to the injuries. At most he described rocking and lightly bouncing her in a cradled and fully supported position and without any possibility for chest compression or the forces associated with the brain injury. If I were to accept this account I would be in the territory of the unknown cause which I have rejected for the reasons already given.
ix) Having considered the evidence I find that S did suffer the trauma in question whilst being cared for by her father and that this arose out of a shaking mechanism as described by the experts. I consider it most likely this arose out of a loss of control derived from exhaustion and an inability to otherwise stop S crying. I can find nothing in the evidence to suggest a motive other than loss of control.
x) I do wonder whether the father's cognitive difficulties provide some level of explanation for what happened. It may be that he struggled to find a reasoned way through the challenge he faced and found the situation overwhelming and with no solution acted as he did. On the evidence it is most likely the shake occurred whilst S was still upstairs with the father and that her collapse followed shortly afterwards. I do not accept the father's account of a change in presentation on the final few steps as he came downstairs. I find it most unlikely this was the point at which she was shaken. It is clear she was in a state of collapse seconds later when seen by the mother.
xi) My strong sense is that the father realised he had acted wrongly and that S might have suffered some harm as a consequence. I consider it likely this is why he came downstairs and gave S to the mother. It seems likely he realised matters had gone too far and he needed help. In reality this realisation likely led to S's circumstances being discovered quickly and this decision assisted in her receiving the prompt care she needed.
xii) I find it striking that the mother was immediately conscious that something was wrong. It seems clear S's condition was readily apparent (she was going blue and was lifeless). On the father's case he was cradling her in his arms when walking down the stairs and considered she needed her nappy changed. I find this account difficult to accept. As set out above I consider he had a developing realisation of what he had done and recognised he needed help.
i) The applicant has proven the allegations contained within the modified threshold save with respect to the failure to protectii) S suffered the said injuries whilst in the care of the father and as a result of a likely vigorous shake. This was a single event over a short period and likely arose in a moment of loss of self-control.
His Honour Judge Willans
1. I have considered all the evidence provided to me. The parties have agreed the law that applies, and I agree with them.
2. I agree the uncle was not responsible for the injuries. He was not in contact with S at the time she likely suffered her injuries. He had no opportunity to cause the injuries.
3. I accept the expert evidence. I found it provided a clear explanation as to the injuries; as to when the injuries happened and how the injuries likely happened. I agree the injuries were to the S's brain; ribs and leg. I agree it is likely they all happened at the same time and only shortly before the ambulance was called. I agree it is likely the cause of the injury was a shake and that this was behaviour which would have alarmed someone watching. It was a shake which was outside of acceptable parent behaviour. It probably lasted for only a few seconds but was enough to cause the injuries.
4. I do not believe the mother was responsible for the shake. I accept she was downstairs for about 10-15 minutes before the father brought S downstairs. She did not have the opportunity to shake S. By the time S was downstairs the injuries had already occurred. This is clear from the fact that she was lifeless by this time and turning blue.
5. I do not believe the mother could have done anything to stop this from happening. Whilst she knew the father was tired and struggling this was not enough to lead her to believe he posed a risk to S.
6. I find it likely the father shook S. He was caring for S when she went from normal behaviour (crying) to being lifeless. No-one else was present during this period. I consider it likely this happened upstairs when caring for S became too much and the father lost his self-control and shook S.
7. I consider all other reasonable explanations have been considered and none provide an alternative explanation for what happened. The experts provide a clear explanation, and this is not a case in which it is likely the answer is some unknown cause.
8. Having reached this conclusion I will now need to consider what the Court now needs to do to decide what is best for S in the future.
Note 3 I> Separated into main bundle; supplemental bundle and medical bundle. Reference to page number will be as follows: to page A1 in the main bundle [A1]; in the supplemental bundle [SB A1] and in the medical bundle [MB A1] [Back] Note 5 I> This is a slightly modified form of the threshold given no findings being sought against the uncle and given an original allegation 4 was not pursued. [Back] Note 6 I> The ribs comprise an arc type structure with anteriorly meaning to the front of the arc (front of body) and posteriorally meaning to the back of the arc (back of the body). Anterolaterally means a point between the side and front of the arc; posterolaterally means a point between the side and back of the arc; posteromedially means a point at the extreme posterior aspect of the ribs and close to the spine [Back] Note 7 I> §34 [1-42] and repeated in a legal structure document provided with submissions [Back] Note 8 I> See Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141 cited at §3 [Back] Note 9 I> Re BR (Proof of Facts) [2015] EWFC 41 [Back] Note 10 I> Re FM(A Child: fractures: bone density) [2015] EWFC B26 cited at §6 [Back] Note 11 I> See Lancashire County Council v D, E [2008] EWHC 832 (Fam) cited at §7 and Re M (A Child) [2012] EWCA Civ 1580 cited at §8 [Back] Note 12 I> Re A (A Child) [2015] EWFC 11 [Back] Note 13 I> Re B (Care: Expert Witnesses) [1996] 1 FLR 667 cited at §19 [Back] Note 14 I> A County Council v KD and L [2005] 1 FLR 851 cited at §18 [Back] Note 15 I> A County Council v A Mother and others[2005] EWHC Fam 31 cited at §21 [Back] Note 16 I> Re U (Serious Injury; Standard of Proof) [2004] EWCA Civ 567 [Back] Note 17 I> Re R (Care Proceedings: Causation) [2011] EWHC 1715 [Back] Note 18 I> Re B (Children: Uncertain Perpetrators)[2019] EWCA Civ 575 [Back] Note 19 I> R v Lucas [1981] QB 720 [Back] Note 20 I> The Queen on the Application of SS (Sri Lanka) v The Secretary of State for the Home Department [2018] EWCA Civ 1391 [Back] Note 21 I> Lancashire County Council v The Children [2014] EWHC 3 (Fam): [Back] Note 26 I> Mother’s evidence C84 §71 [Back] Note 27 I> See A 70 but variously reported by LAS [Back]