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England and Wales Family Court Decisions (other Judges)
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Cite as:  EWFC B107
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IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF EF (a child)
B e f o r e :
|London Borough of Newham
|- and -
|- and -
|- and -
(By her Guardian Matthew Jeary)
Mr Leslie Samuels QC and Mr John Ker-Reid for the Mother instructed by Desor & Co Solicitors
Mr Nicholas Goodwin QC and Mr Matthew Stott for the Father instructed by Duncan Lewis Solicitors.
Mr James Shaw for the child instructed by TV Edwards solicitors.
Hearing dates: 7th, 8th, 9th, 12th, 14th and 15th September 2016
Judgment handed down on 15th September 2016
Crown Copyright ©
Miss May on behalf of the local authority
Mr Samuels QC leading Mr Ker- Reid on behalf of mother
Mr Goodwin QC leading Mr Stott on behalf of father
Mr Shaw on behalf of EF taking his instructions from Mr Jeary.
The findings sought
 In determining the issues at this fact finding hearing I apply the following principles. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.
 Secondly, the standard of proof is the balance of probabilities (Re B  UKHL 35). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B:
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."
 Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)  EWCA Civ 12:
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."
 Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T  EWCA Civ 558,  2 FLR 838 at 33:
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
 Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L  EWHC 144 (Fam);  1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.
 Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S  EWHC 2115 Fam).
 Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury)  FCR 346).
 Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
 Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation)  EWHC 1715 Fam:
"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."
The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others  EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.
 Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA  2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children)  2 FLR 668, Re SB (Children)  1 FLR 1161).
"Ninth, as observed by Dame Elizabeth Butler-Sloss in an earlier case "The Judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are presently dark". This principle, inter alia was drawn from the decision of the Court of Appeal in the criminal case of R V Cannings  EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's older two children had experienced apparent life threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between the experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed "what may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge".
Mr Justice Baker continued:
"With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran  EWCA Crim 126 at paragraph 1: "Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown"
In Re R (Care Proceedings; Causation)  EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed: "A temptation there described is ever present in Family proceedings too and in my judgment should be as firmly resisted there as the Courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete 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".
"My observation of joint contact indicates a couple working very well together (sharing their attention with EF in an easy and calm manner, both displaying love and affection, being tactile, giving her positive eye contact, handling her safely and with care, responding appropriately to EF's needs, no sign of irritation or frustration on the part of either parent) and AG responding very appropriately to her parents' overtures, happy and relaxed in their company. The Foster carer refers to AB's very good and independent care of EF (prioritising EF's needs above her own, seeking out advice appropriately, ensuring surroundings are clean and organised), her continuing to meet EF's needs appropriately even when she is tired, and a very strong attachment between AB and EF".
At para 24.23 (E134) he said "CD presented in a calm, relaxed and thoughtful demeanour throughout the assessment, also cooperative and hospitable. He expresses his positivity at being the subject of an independent social work assessment" and at para 24.33 (E137) "my observation of contact suggests positive interaction (including handling EF securely throughout, ensuring safety, demonstrating love and affection and offering praise, providing a variety of stimulation and meeting her basic needs), EF rather quiet but responding happily to her father. He distracted and reassured EF when she became agitated and fed and changed her after recognising those needs. These observations were confirmed by the contact supervisor as being typical".
In his conclusions at para 25.1, E138, "in my assessment practically all the known risk factors associated with maltreatment and physical abuse are absent in this case (i.e. unrealistic expectations of a child, negative attitudes about a child's behaviour, poor relationship between child and parent, substance misuse, employment and financial difficulties, poor parenting skills, inability to access professional support). There are many potential protective factors that can be identified".
At para 25.2 "Both parents present as intelligent and articulate individuals openly expressing their views and feelings, engaging well with this assessment, and cooperating well with all professionals. AB has been the primary carer, CD's parenting role very restricted due to his work commitments (although he has a basic understanding of the child's needs). The couple appear to be in a stable and loving relationship and seem to have adjusted well to life in the UK. There is no evidence of any conflict or strain in their relationship. Both parents appear to have experienced positive parenting enabling them to develop an internal working model that should provide a platform for offering EF more than good enough parenting. There appear to be no apparent employment, financial or environmental stresses surrounding family life prior to the incident and both parents have supportive family in their home country. All the evidence supports the couple's strong focus on meeting and prioritising all of EF's needs (particularly in AB's case) and their attachment to her. AB presents as a potentially very competent mother able to provide sole care of EF if necessary"
And para 25.3 "both parents describe the incident in similar terms, seriously question medical opinions and are equally emphatic that neither deliberately harmed their child. AB presents as a strong and open personality and a resilient character meeting and overcoming challenges in her life in a determined and solution-focused approach. CD presents as calm, thoughtful and grounded individual conscious of his family responsibilities. Neither parent appears to be rigid in their thinking or expectations or (notwithstanding CD's previous conviction) prone to violent or aggressive behaviour. There are no indications of any psychological or other mental health issues in respect of either parent. Both parents acknowledge the legal process whilst highlighting the cultural differences in the state response to concern, emphasising the more supportive approach in their home country (I am conscious from my own experience in conducting assessments there of their higher threshold for intervention) in contrast to the UK approach. Both parents (AB in particular) are clear and strongly motivated by the need to meet EF's needs and if necessary to become sole carers if any finding of non- accidental injury is made against the other parent".
Para 25.4 "the contra indicators include concerns about delay in seeking medical attention. The couple have difficulties acknowledging the legitimacy of medical opinions. The couple's informal support networks in the UK appear very limited. CD has a previous offence for violent behaviour and is likely to experience very significant challenges as a sole carer without substantial informal and professional support"
(b) the applicant had no concerns re the couple's relationship re contact
(c) the father engages with the baby
The baby bouncer
The events of 7 November 2015
The events of 8 November 2015
"Normal bone density, no wormian bones. On further inspection there is a soft tissue density localised to the lateral aspect of the left seventh and eighth ribs on the AP chest view, but not seen on other views, and there is no definite underlying rib abnormality. This may just be artefact but it could be related to an occult fracture. Suggest review on the repeat imaging" and "there is irregularity and sclerosis of the left scapular spine which is suspicious of the fracture and in view of the sclerosis it is likely to be healing. Slightly displaced distal right femoral metaphyseal fracture as previously demonstrated on the imaging at the time of admission. No other acute or healing fracture has been identified, the lungs are clear." and under "impression" "In addition to the known right femoral metaphyseal fracture there is a second fracture involving the spine of the left scapula which may be healing. The findings are suggestive of non-accidental injury, a repeat limited skeletal survey will be required in ten days".
"The parents report a plausible mechanism of action for the injury. The fact that they presented the following morning was not unreasonable as she had appeared to settle after the original incident. The account of the accident has remained consistent on repeated questioning. In addition there is further information from the vitamin D levels taken that were done at the Royal London hospital. These are low, measuring 20 nmol/l which is in the deficient category. She does not however have rickets on the basis of her blood tests and x- rays. There is some debate as to whether low vitamin D makes children more prone to fractures in the absence of rickets. At present there is not a clear consensus on this. It is however another factor that complicates this case and should be considered on assessment. If we accept that the femoral fracture could have occurred as a result of the accident, then the only additional indication of non- accidental injury is the reported scapular spine injury. Whilst this is troubling. I am not convinced that it is compelling evidence on the balance of probabilities that non accidental injury has occurred. In the absence of any other concerns raised during the police and social services investigation. Whilst there would be an element of risk in returning EF to her parents unsupervised, this must be balanced against the harm caused by potentially unfounded suspicion of non -accidental injury. I would be concerned if, on the basis of the skeletal survey result alone, steps were taken to remove the baby from the parents as I would be more cautious in my interpretation of this".
Court appointed experts
(a) If the father had swung the baby bouncer and the baby had fallen and hit the floor or a piece of furniture? He considered that "It all depends on whether the impact was on the knee or very close to the knee, if the child was air borne and landed and force of body weight on knee itself, has a potential explanation for the fractures not what described"
(b) If kicked baby bouncer, kicked the baby's thigh through material? "Possible"
(c) If wearing slippers have a bearing on possibility? "make it less likely not impossible"
(d) If father had tripped over and fallen on the baby on her knee be an explanation? If he had fallen on her knee or thigh? "That is theoretically possible explanation would depend on how her thigh was supported able to move or not move"
(e) Hit child on the leg? Punch or hit with an object? "It would be unusual can't exclude it. If child had been struck with a piece of wood, iron bar, sufficiently hard to cause a fracture would have been likely bruise"
(f) If he carried the baby and fell and baby trapped between body and floor? "We know that if adults fall holding a baby more dangerous than if they fall on their own"
(g) If the baby's leg bashed a door frame? Table? "Think it all depends on detail as to whether the leg was moving or immobile when the baby was struck or whether plenty of room to move"
(a) He relied on DJ as to the timings of the rib fractures
(b) He considered that rib fractures were most likely caused by compression
(c) That this was believed to be greater than normal handling
(d) A person not present would not have known that the child had sustained rib fractures
(e) He considered that it was "fanciful" that these occurred at birth.
(f) That the description of EF's presentation on 7 November fitted with the timing (of the femur fracture) but not the mechanism.
(g) That if there had been impact to the knee or the area near the knee in the incident described by the father that it was possible cause of the child's fracture to her femur
(h) That ultimately it would be a matter for the court to decide what had happened as to cause EF's rib fractures and femur fracture.
(i) He did not consider that she had any underlying bone disorder. He considered that she was a healthy infant with normal development.
On the X rays of the 24 November 2015
"The expansion of the anterior aspects of the right 6th and 7th ribs is more obvious and in conjunction with the X ray changes seen on 10 November 2015 the appearances are suspicious of healing rib fractures. There is some cortical irregularity (alteration in the normal outline of the bone) of the right first rib. The appearances of the left shoulder are within normal limits. Overall on the x rays of 10 and 24 November the appearances of the left shoulder are within normal limits.
The appearances of the right and anterior 6th and 7th ribs are suspicious of healing fractures. The appearance of the right 1st rib remains equivocal".
On the CT chest of 4 December 2015
"The presence of the healing fractures of the right sixth and seventh ribs are confirmed. There is obvious periosteal thickening (x ray evidence of bone healing) around the anterior aspects of the 6th and 7th ribs. Periosteal thickening may also be described as callus.
There is an abnormality of the first rib."
Later at E144 "Therefore the CT chest examination of 4 December 2015 confirms the presence of traumatic injury to the chest consisting of fractures of the right 6th and 7th ribs and a possible fracture of the right 1st rib. The radiological dating of fractures is difficult, imprecise and is a subjective estimation. In my opinion, the appearance of these rib fractures, particularly taken into account the previous chest x ray appearances are at least 6 weeks of age on 24 November. I would estimate that these fractures are probably not as old as 14 weeks of age at this time. Therefore they are most likely in the region of 6 to 10 weeks".
Later at E145 he expressed that "on the balance of probabilities these are not birth related" (rib fractures) and at E146 "one could not exclude this event involving the baby bouncer as a possible cause for the femoral fracture, if the impact was the knee".
(a) The lovesett manoeuvre was a procedure carried out to assist EF's delivery by way of caesarean section. Whilst in the medical notes, no expert instructed was able to give me any evidence in relation to it. Whilst Mr Samuels QC and Miss May referred me to it in their written and oral submissions, I have already made the point that I must guard against proceeding on counsel's submissions unsupported by evidence in the case.
(b) Experts draw upon clinical experience and research. No child is alike. No set of circumstances are alike. Events occur. By way of an example If an expert in a particular case accepted a parent's account that a child has been injured from a fall of less than 1 metre because of the particular circumstances that event which the expert may previously have viewed as unlikely becomes accepted as having occurred, it is no longer as unlikely event. Some circumstances and descriptions of events may not have been seen before by an expert in a clinical setting. Thus it would be understandable for such events to be viewed as unlikely until known to have occurred.
(c) Experts do not determine cases. If they did so the nature of care proceedings would be very different. It seemed to me that there was a perception that crept in at the end of the expert evidence that the expert view meant that something more serious had occurred, thus requiring the parents to meet a case led by expert opinion. I remind myself that such an approach reverses the burden and standard of proof as it almost creates an additional burden for a parent to discharge, when the burden and standard of proof remains throughout on the applicant. It would also remove my judicial function which is to survey the whole of the evidence in the case and reach my conclusions.
The Mother's evidence
The father's evidence
(j) In a momentary loss of control and he lied about the cause or
(ii) on the 7 November in the bouncer incident but that the father minimised the nature of the incident and his handling of the child was reckless or negligent or otherwise fell below the standard expected of a reasonable parent.
(a) I consider that the father was and is a believable witness.
(b) I accept his account that he picked the baby bouncer up at about 7pm on 7 November. EF was in it. EF was 12 weeks old, 3 days old and unstrapped. She weighed just over 6kg. He picked the bouncer up by the toy arm believing that to be a handle. The bouncer was held at about his waist height, about a metre. He took a step and turned. He was left holding the toy arm which became completely detached from the bouncer. The bouncer with EF in it fell about a metre on to the laminate floor. EF bounced up and back down coming to rest further down the bouncer. The event lasted a matter of seconds.
(c) EF immediately cried.
(d) Down in the kitchen the mother heard a crash and her baby crying
(e) The mother rushed upstairs and found the father holding EF in his arms and comforting her.
(f) I consider that the mother was and is a believable witness and accept her account
(g) I consider that in the fall of the bouncer to the ground, with EF unstrapped she sustained an impact to her thigh area around her knee, possibly on the back of her knee.
(h) The baby bouncer has a hard rim covered by fabric. It also had a hard plastic object a music box erroneously assembled at the front of the chair. She was unstrapped and her legs were free. In my view she impacted against a hard surface within her bouncer or on the edge of it that caused her to fracture her right femur.
(i) The impact of the fall was such that the music box fell off the baby bouncer.
(j) On reaching the floor the baby bouncer remained stationary however EF bounced up and back down. Whilst I cannot be clear as to the height she was lifted back up, it was significant for the father to have noticed her movement. She landed further down the bouncer.
(k) In this motion whether up and down or most likely forwards and back she experienced compressive forces on her ribs causing two anterior fractures to her right 6th and 7th ribs. These were on the same side as the fracture to her femur.
(l) The incident happened in a matter of seconds.
(m) The incident was an accident and not reckless or negligent behaviour.
(n) These were loving parents who had given their daughter an exceptional level of care.
(o) Here was no suggestion of loss of temper or irritability
(p) Her parents believed that she had been scared by the incident but was otherwise well.
(q) During the course of the night their concerns were heightened given that she cried on changing. Their concerns crystallised in the morning when her right leg remained in the same position.
(r) They took appropriate action in taking her to hospital. Their actions were reasonable given her presentation after the incident.
(s) EF was a well baby from birth, she thrived and met her developmental milestones.
(t) I do not consider that she suffered from an underlying bone disorder
(u) I do not consider that she sustained two rib fractures at birth.
(v) Having accepted the account of the father and assessing it in the way I do, it follows that I accept that all fractures occurred on 7 November 2015.
(w) In reaching that decision I base my assessment on the evidence of the father, and of the mother and my analysis as to the differences that occurred in relation to timings between the treating paediatric radiologists and DJ.
(x) I bear in mind that DJ could not imagine a scenario which caused both injuries to occur (meaning the two ribs and the femur). He explained that he considered that it required two distinct applications of force. I have identified two as set out above (g) and (k) from my consideration of the evidence overall.
(y) I consider that an analysis of the broad canvas in this case which I unlike the experts was able to do overwhelming points to the fact that the fractures occurred in the accidental manner described by the father.
Anonymised version 14 November 2016