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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Bournemouth Borough Council v A Mother & Ors [2017] EWFC 18 (28 February 2017) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2017/18.html Cite as: [2017] EWFC 18 |
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Neutral Citation Number:
[2017]
EWFC
18
Case No: BH16C00294
IN THE FAMILY COURT
Sitting at Bournemouth
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF AH, BH AND CH (CHILDREN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28/02/2017
Before :
THE HONOURABLE MR JUSTICE BAKER
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Between :
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Applicant |
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- and – |
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A A FATHER (2) AH (by his children’s guardian) (3) BH (by her children’s guardian) (4) CH (by his children’s guardian) (5) AN UNCLE (6) |
Respondents |
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Anthony Hand (instructed by Local Authority Solicitor) for the Applicant
Rachel Langdale QC and Hari Kaur (instructed by Preston Redman) for the First Respondent
Paul Storey QC and Steven Howard (instructed by Aldridge Brownlee) for the Second Respondent
Mark Tooley (solicitor, of Larcomes) for the Third, Fourth and Fifth Respondents
Darren Howe QC and Emma Harman (instructed by Jacobs and Reeves) for the Sixth Respondent
Hearing dates: 23rd – 27th
January, 30th January – 3rd February, 9th
February 2017
- - - - - - - - - - - - - - - - - - - - -
Judgment Approved
IMPORTANT NOTICE
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 no person other than the advocates or the solicitors instructing
them and other persons named in this
version
of the judgment may be identified
by name or location and that in particular 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.
MR JUSTICE BAKER :
2.
Examination and tests revealed that the baby, hereafter referred to as
“J”, had sustained a number of injuries prior to his collapse. As a result his
three older siblings were taken into the care of the local authority. Care
proceedings were started and transferred to this court. In January and February
2017,
I conducted a fact-finding into the cause of J’s injuries and death and
other matters concerning the treatment of his siblings at home. This judgment
is delivered at the conclusion of that hearing.
Background
3.
The mother
and father come from Poland. They have known each other since
they were children – in his oral evidence, the father described the
mother
as
his childhood sweetheart. They moved to this country in 2006 and were married
two years later. At some point after they were married, the father sustained a
back injury which left him in regular pain, interfered with his work and
sleeping, and, as he acknowledged in evidence, affected his mood. In January
2009, the
mother
gave birth to their first child, a boy, hereafter referred to
as A. In September 2009, the
mother’s
brother, hereafter referred to as “the
uncle”, moved from Poland to this country and thereafter lived with his sister
and her husband and family.
4.
Two years later, in March 2011, the mother
gave birth to a daughter,
hereafter referred to as B. When she was 9 days old, B was taken to hospital
where she was found sustained metaphyseal fractures of the left distal tibia
and fibula. The parents were initially unclear about how she had sustained the
injury but subsequently a history was given to the doctors of how the
mother
had fed B in the night, and gone to the bathroom and the father explained that
he had woken to find the baby underneath him. The hospital doctors accepted
that the account given was consistent with B’s injuries and no further action
was taken.
5.
In March 2014 the mother
gave birth to her third child, another boy,
hereafter referred to as C. By this point, as all parties accept, the father
had started having angry outbursts during which he would shout at the
mother
and the children. The extent of this is disputed and I shall consider the
evidence about it below. The
mother
began recording incidents in which the
father had been aggressive in a diary. In December 2014, for example, she wrote
(in Polish – an English translation has been prepared) “our life is falling
apart. Yesterday I did the worst thing in my life! I hit my husband in the
face. This is the end! He fucking chucked me out of the room and demanded
divorce papers and he was serious. I don’t think I feel anything any more !!!”
In March 2015, she recorded “Christmas/Easter can’t be normal. My husband is
showing yet again how much it matters to him to fucking destroy the family. He
can’t control his fury. Yet again a row front of the children !! A chair
fucking smashed up in the kitchen as result of anger. I can’t control it all. I
ran out of strength for this sort of life.”
6.
In April 2015, the father went to hospital having allegedly taken an
overdose. He claimed to have taken nine amoxicillin capsules. He told medical
staff that he had been feeling low after having multiple teeth extractions. The
family was referred to social services and offered support from an early help
team. In July 2015, however, the case was closed because the family was not
engaging with social services. It seems, however, that difficulties in the
household continued. In September 2015, the mother
made an entry in her diary
in these terms: “Constant argument. CARNAGE !!!”
7.
On 31 December 2015, the mother
gave birth to her fourth child, J.
Thereafter, J was seen regularly by midwives, health
visitors
and doctors. All
medical appointments were kept. Nothing unusual was noted and J was felt to be
thriving and putting on weight. He was seen by a midwife on 5 dates between the
5th and 13th January and by a health
visitor
on 14th
and 19th January and 11th February. On 22nd
February he was seen by a GP and diagnosed with an upper respiratory tract
infection. On 7th March, he was seen by another GP for a health
check which was satisfactory and immunisations were given. On 3rd
April, the
mother’s
friend KS
visited.
She bathed J and noticed nothing wrong.
On the same day, the
mother
made an entry in her diary: “unnecessary anger,
shouting”. Further immunisations were given by a nurse on 6 April.
8.
On the morning of 8th April, according to the mother,
J was
well. There was a family trip to the shops. When they returned, the father went
to rest in the bedroom. The uncle was preparing lunch for the children. At
around 2 pm the
mother
went out to buy potatoes. Before doing so, she fed the
baby and placed him in his cot in the bedroom where the father was resting. She
told the father she was going out leaving the baby with him and he raised his
hand in acknowledgement.
10.
At 15.20, a call was made to the ambulance service by the uncle. In the
background, the father was shouting in a highly agitated fashion about the time
it was taking the ambulance to arrive. The uncle, on the other hand, was
notably calm throughout the call and tried to focus on instructions from the
control operator. The ambulance arrived at about 15.27. The paramedics found J
with no pulse and not breathing. Attempts were made to resuscitate him. It was
noted that he had a boggy area on the back of his head. He was taken by
ambulance to the Royal Bournemouth
Hospital. On examination at hospital, the
boggy swelling was confirmed together with other marks. 4 hours later, he was
transferred to Southampton Gen Hospital. A CT head scan revealed fractures of
both parietal bones together with extensive intracranial bleeding and loss of
grey-white matter differentiation attributable to hypoxic-ischaemic damage, and
brain swelling in both cerebral hemispheres. A CT scan of his chest and abdomen
revealed a fracture of the right clavicle and healing rib fractures. J remained
completely unresponsive. At about 23.15, the father was arrested on the ward
and taken away without being allowed to see J again. At 05.10 on the following
morning, 9th April, J was declared dead.
11.
An extensive police investigation was started. Interviews were conducted
of the mother
of uncle and also of the two older children, A and B, under the
Achieving Best Evidence (“ABE”) procedure. In their interviews, the children
made allegations about the father’s behaviour in the home. I shall consider
their statements during those interviews below. The father was himself
interviewed on several occasions. He consistently denied being responsible for
J’s injuries and death. Subsequently, however, he was charged with murder and
is due to stand trial in a few weeks.
12.
Following the interviews of A and B, the 3 children were placed in
foster care and made subject to an emergency protection order. An initial
post-mortem was carried out which confirmed the injuries identified at
hospital. Further detailed histopathological tests were commissioned. On 12th
April, social worker CL visited
the children in the foster placement. During
conversations with her, A and B made further statements about the father’s
behaviour in the home. Thereafter,
various
conversations took place between the
foster carer and the children, in particular A, in which it is alleged further
statements were made concerning the father’s behaviour. As a result, on 11th
May, A and B were interviewed for a second time by the police under the
Achieving Best Evidence procedure. According to the foster carer, the children
thereafter continued to make further allegations about the father’s behaviour.
She recorded all of the children’s statements in a notebook. I shall consider
all these statements made by the children, and the weight to be attached to
them, later in this judgment.
13.
Meanwhile, care proceedings were started and the children made subject
of interim care orders. The proceedings were transferred to me and a series of
case management hearings took place at which directions for evidence were
given, including for expert medical evidence. Thereafter, a number of medical
reports were prepared, some under the aegis of the coroner as part of the
post-mortem procedure, others within these proceedings. I shall consider the
medical evidence below. Suffice it to say, however, that a consensus emerged
that the cause of the injuries was trauma and, in the absence of any
explanation, that the likeliest cause was that they had been inflicted
non-accidentally. Evidence from a consultant neuropathologist, Dr du Plessis,
confirmed the presence of “global devastating” hypoxic-ischaemic brain injury
plus intracranial bleeding and bleeding in the spinal subdural space and spinal
nerve root axonal damage. Evidence from a consultant paediatric
ophthalmologist, Mr Newman, confirmed the presence of extensive bleeding in
both eyes. There was no evidence of any underlying medical condition. The
opinion of the paediatric neurosurgeon Mr Peter Richards was that the extensive
skull fractures indicated severe blunt trauma with impact against a hard
surface, or crushing. He considered that the point of injury was likely to have
been very
close to the moment of collapse. He thought that the force used had
been at the severe end of the spectrum.
15.
In his written statement in these proceedings, the father accepted that
he can become angry when he drinks, but stated that he has never been
physically violent
to the
mother.
He asserts that he still loves the
mother
and
all the children deeply. He insisted he has not assaulted any of the children.
He accepted that he has smacked them and on occasions shouted at them, but
denied using any force which would have caused any injuries. He stated: “I am
sure that when the
mother
put J in the court he was okay”. He thought it
possible that he caused some injury as a result of being in a panic. When he
put J on the ground, his hand was on J’s neck and his head hit the ground. He
added, however, that he has gaps in his memory about all of this.
The hearing
16.
The hearing took place over ten days in January and February 2017.
The
documents were uploaded by the local authority onto an electronic bundle using
the local system devised by District Judge David Williams. After some initial
difficulties attributable to judicial technological inadequacy, it worked
very
well. It is undoubtedly the way forward in family cases and will remove many of
the problems caused by paper bundles. It will also save local authorities
very
substantial sums of money and allow hard-pressed staff to be deployed on more
important tasks than photocopying and transporting large lever-arch files. This
was the first occasion when the system had been used for a case of this
complexity, and some important lessons were learnt which will help refine the
process for future cases. One qualification, however, is that the electronic
bundle was not available for use by the witnesses. Further work needs to be
done to see how this problem can be overcome.
17.
Oral evidence was given by nineteen witnesses, culminating in lengthy
evidence from the mother,
father and uncle, given through an interpreter. At
this point I would like to pay tribute to the hard work and proficiency of the
five interpreters who assisted in this hearing. One interpreter was required at
all times for each of the three adults throughout the hearing, and a
court-appointed interpreter for their evidence. Following the evidence written
submissions were submitted by all advocates, supplemented by short oral
submissions at a hearing in Bristol. I am
very
grateful to all the advocates
and their instructing solicitors for their hard work in this case.
The Law
18.
The legal principles governing care proceedings concerning allegations
of child abuse are well established.: see for example the summary in Re JS [2012] EWHC 1370; Re AA (Fact Finding Hearing) [2012] EWHC 2647; and Re IB
and EB (Children) [2014] EWHC 369. At all points, I have had those
principles, and the authorities from which they are derived, firmly in mind.
What follows is a summary of those principles, plus some further comments of
particular relevance to this case, derived in part from counsel’s submissions.
“at the relevant date, the children were suffering or likely to suffer significant harm, as a result of the care given to the child, or likely to be given to the child, not being what it would be reasonable to expect a parent to give.”
If the court finds that the threshold set out in that sub-section is crossed, the court then must determine what order to make and, in reaching that decision, the court will apply s.1 of the Children Act, making the child’s welfare its paramount consideration.
21.
Findings of fact must be based on evidence. Whilst appropriate
inferences may be drawn from evidence, the court must be careful to distinguish
between inference and speculation, which must be avoided. When considering
cases of suspected child abuse, the court surveys a wide canvas and must take
into account all the evidence and consider each piece of evidence in the context
of all the other evidence. Cases involving allegations of child abuse often
involve expert evidence from a variety
of specialists. While appropriate
attention must be paid to the opinion of experts, those opinions need to be
considered in the context of all the other evidence. It is the court that is in
the position to weigh up the expert evidence against its findings on the other
evidence. 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.
23.
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. To this
well-known principle, derived from the criminal case of R v
Lucas [1981]
QB 720, I add two more recent observations by other judges of the Division. In Lancashire
County
Council
v
The Children [2014] EWHC 3 (Fam), para 9, Peter
Jackson J observed:
“To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as ‘story-creep’ – may occur without any necessary inference of bad faith.”
I also bear in mind the observations
of Mostyn J in Lancashire County Council
v
R [2013] EWHC 3064 (Fam)
“The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance”
24. I bear in mind that the obtaining of evidence from children is a specialised task. As Hughes LJ (as he then was) observed in Re B (Allegation of Sexual Abuse: Child’s evidence) [2006] EWCA Civ 773,
“[34]… Painful
past experience has taught that the greatest care needs to be taken if the risk
of obtaining unreliable evidence is to be minimised. Children are often poor
historians. They are likely to view
interviewers as authority figures. Many are
suggestible. Many more wish to please. They do not express themselves clearly
or in adult terms, so that what they say can easily be misinterpreted if the
listeners are not scrupulous to avoid jumping to conclusions. They may not have
understood what was said or done to them or in their presence.
[35] For these
and many other reasons it is of the first importance that the child be given
the maximum possible opportunity to recall freely, uninhibited by questions,
what they are able to say, and equally it is vital
that a careful note is taken
of what they say and also of any questions which are asked. All this and many
other similar propositions, most of them of simple common sense, are set out in
nationally agreed guidelines entitled Achieving Best Evidence…”
26.
Finally, when considering allegations of physical abuse, and in
particular the causes of injuries sustained by a child, it is always important
to bear in mind the possibility of the unknown cause: R v
Henderson-Butler and Oyediran [2010] EWCA Crim 126; Re R (Care Proceedings:
Causation) [2011] EWHC 1715 (Fam). The court’s approach to this issue
wa summarised by Moses LJ in the former case (which was an appeal against a
criminal conviction):
“There remains a temptation to believe that it is always possible to identify the cause of injury to a child. 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”.
The same point applies in care proceedings notwithstanding that the standard of proof is the balance of probabilities.
Medical evidence
Skull fractures
28.
From the CT scans and x-rays, Dr Chapman confirmed the presence of wide
fractures of the left and right parietal bones. The fracture on the left was a
comminuted fracture comprising an additional vertically
oriented fracture
ascending the sagittal suture, and a further short fracture line extending from
the
vertical
fracture. At the confluence of the horizontal and
vertical
fractures, there were two fragments of bone within the soft tissues of the
scalp. Dr. Chapman commented that the larger of these fragments had probably
been displaced upwards from the confluence of the fractures. There were wormian
bones present but not on a scale to be clinically significant. There was
associated scalp swelling.
29.
Dr. Chapman stated that a skull fracture is the result of an impact
against a hard surface or object, either the head moving towards a static
object or an impact from a moving object. He added that bilateral skull
fractures, particularly when predominantly oriented horizontally, as in this
case, also result from a crushing force applied across the head. It is
recognised that skull fractures can occasionally occur from low level falls.
However, Dr. Chapman concluded that the complexity of the skull fractures in
this case, coupled with the extensive intracranial injuries and the eventual
outcome, indicated a very
severe force. It was difficult to state whether the
fractures were the result of one impact or two, or a crushing injury. Given
that the right sided fracture was more extensive than the left (and that the
intracranial injures were more extensive on the right), if the injuries were
attributable to one impact, it was more likely to have occurred on the right
side of the head. Skull fractures cannot be aged from the appearance of the
fracture line. Most heal within 6 weeks. Timing of the injury was best carried
out in conjunction with the other associated injuries. Given the severity of
the fracture, Dr. Chapman thought it most unlikely that J would have seemed
normal after sustaining it.
31.
The histopathologists expressed the view
that the skull fractures
occurred between 2 and 24 hours (according to Prof Freemont) or between 4 and
24 hours (per Prof Mangham) prior to death.
Intracranial and spinal cord injuries
32.
Dr Chapman on examination of the CT scans identified extensive scalp
swelling; intracranial subdural and subarachnoid haemorrhage, mostly over the
right cerebral hemisphere and along the falx extending onto the tentorium
cerebelli; global loss of hemispheric grey/white matter differentiation,
attenuation of the normal subarachnoid spaces and compression of the ventricles
consistent with severe cerebral oedema, almost certainly the result of
hypoxic-ischaemic injury. The same injuries were noted by Mr Richards when he
examined the CT scans.
(a) global hypoxic-ischaemic brain injury on a “devastating” scale that was incompatible with meaningful higher function or cognition and no realistic prospect of recovery;
(b) brain swelling;
(c) limited extradural haemorrhage;
(d) acute “thin-film” subdural haemorrhage which under the microscope showed an acute character with no associated repair response and was therefore more likely less than 24 hours old – no pathological or radiological evidence was found of earlier subdural bleeding so that the most reasonable and plausible timing of injury would have involved an event also accounting for the other acute brain and spinal cord pathology;
(e) spinal subdural haemorrhage, possibly attributable to tracking down of blood from the intracranial subdural space;
(f) spinal nerve root bleeds, also acute in appearance;
(g) lower brainstem long tract selective axonal injury, considered supportive of a mechanical basis of injury by over-stretching;
(h) spinal-cord and nerve root axonal injury;
(i) cranial subarachnoid haemorrhage
Dr du Plessis found no evidence of
any disease which might explain any of these injuries. He concluded that the
neuropathology, whilst reflecting a very
recent catastrophic event occurring
less than 24 hours before death, did not provide an exact timing of a causative
head injury
viewed
in isolation. Allied with the eye pathology, the history
provided and clinical observations pertaining to fatal infantile head injury in
general, he thought it most likely, if not certain, that the head injury
implicated in J’s collapse and cardiorespiratory arrest occurred
very
close to
those events.
34.
Mr Richards advised that the features were of severe head trauma
involving acceleration and deceleration as well as impact against a hard
surface or crushing. He thought that a mechanism that could explain the whole
clinical presentation was a forceful shake followed by an impact against a hard
surface. The shaking episode could have caused the subdural bleeding (and the
retinal haemorrhages – as to which see below) and led to the cardio respiratory
collapse, with the impact causing the scalp swelling and skull fractures.
Another possibility is that the head was subjected to a severe crushing force
causing bilateral fracturing and intracranial injury. Mr Richards did not
consider it likely that some unknown disease process could have caused the
symptoms. Equally, he did not consider it probable that J was unusually fragile
so that as a result he suffered severe head injuries through normal handling.
It followed that, in Mr Richards’ view,
a significant event had occurred of
which his carers were either unaware or had chosen not to report to the medical
and investigating authorities. Mr Richards rightly observed that this was for
the court to determine.
Eye injuries
36.
Dr. McCarthy’s examination of J’s eyes revealed extensive fresh
haemorrhage in the orbital tissues, the rectus muscles, the subdural spaces of
the optic nerves, and in both retinas. The degree of haemorrhage was at the
most severe end of the spectrum. The pattern of haemorrhage was associated with
damage to vascular
structures around the optic nerves and Dr McCarthy regarded
the pattern of fresh bleeding into these structures as indicative of head
trauma. All anatomical structures seemed to be normally formed. Although there
was some evidence of iron-stained macrophages, this could have been
attributable to birth trauma. Dr McCarthy therefore concluded that it was
likely that there had been one major head trauma event at or close to the point
in time when the child collapsed.
37.
Mr Newman agreed with this analysis. He confirmed the presence of the
significant haemorrhaging observed by Dr McCarthy. He noted that the retinal
bleeding was present through all layers of the retina. He was unable to detect
evidence of any underlying condition and ruled out all causes for the eye
findings (birth, immunisations, vomiting,
seizures, raised intracranial
pressure, resuscitation or minor trauma) except major trauma. In the absence of
an identifiable medical condition or history of trauma, the ocular findings
remained unexplained but, in Mr Newman’s opinion, are most consistent with
those found following a shaking-type injury likely to have involved impact,
which occurred at or around the time J became unwell. In his oral evidence, Mr
Newman accepted in cross-examination by Mr. Storey on behalf of the father that
the eye findings were not inconsistent with one significant impact head trauma.
Other bony injuries
38.
Dr Chapman, inspecting the radiological evidence, identified 7 rib
fractures, a healed fracture of the right clavicle, and what he thought was a
fracture at the distal metaphysis of the left tibia, most of which predated the
head injury. The evidence of the histopathologists, however, has clearly
demonstrated that the number of bony injuries sustained by J was in fact much
greater. From the bone tissue supplied for histological analysis, Prof Mangham
identified “a minimum of 42 fractures … sustained at a minimum of 4 different
time points (several hours, several days, a few weeks, greater than 4 weeks)”.
Prof Freemont identified “approximately 50 fractures affecting 24 different
bones” and concluded that “there were definitely 4 fracturing events affecting
multiple bones. These occurred 6 to 10 weeks, 2 to 3 weeks, 5 to 10 days, and 2
to 24 hours before death.” Both doctors confirmed that there was no
histological evidence of any bone disorder that might have predisposed the
bones to fracture. These figures for the number of fractures include the skull
fractures already mentioned. On any view,
however, they represent a
very
serious number of fractures and/or injuries sustained on at least four
occasions in the course of J’s short life.
39.
In his report, Prof Freemont acknowledged that fractures of the clavicle
and ribs have been known to occur at birth. In this case, however, he was able
to say from examination of the evidence that none of these fractures sustained
by J dated back as far as birth. There was some minor disagreement between the
2 experts as to the precise number and timing of the injuries. In the
circumstances, however, I do not consider this disagreement to be relevant to
the issues arising in these proceedings. Prof Freemont advised that the likely
mechanism by which the rib injuries had been sustained was severe squeezing or
compression of the chest. The compressive force applied in cases involving
small babies typically covers a number of the ribs and Prof Freemont stated
that it is usual for a number of ribs to be fractured during an episode of
compression. Such fractures, particularly posterior rib fractures, are commonly
associated with non-accidental injury. Fractures of the clavicle at the point
of the fracture sustained in this case are usually the result of the
application of compressive force applied along the length of the bone as might
occur in a fall from the shoulder. It is also possible that the fracture could
have been sustained by squeezing around the chest, which in turn could have
occurred at the same time as some of the rib fractures. Mid-clavicle fractures
of this sort by themselves do not discriminate between accidental and
non-accidental injury, although Prof Freemont expressed the view
that, in a
child who was non-mobile, he would expect an account of how an accidental
injury had been sustained.
40.
The metaphysis is the growing end of a long bone where cartilage is
turned into immature bone. Dr Chapman described it as the site of increased bone
fragility in the immature, rapidly growing skeleton. A metaphyseal fracture was
described by Dr Chapman as typically a series of micro fractures running across
the end of the bone rather than what is conventionally understood as a
fracture. Such fractures are regarded as being caused by the application of a
pulling/twisting force to the limb. Dr Chapman observed that they do not occur
in normal or even rough handling and that, because of the mechanism of
causation and the level of force required, metaphyseal fractures have a very
significant association with non-accidental injury at this age.
41.
An unusual feature of this case was the presence of evidence of a
fracture to one of the vertebrae
(L2). This was noted in the radiological
evidence by Dr Chapman and the reporting radiologist. From his examination of
samples from this
vertebra,
Prof Mangham found no histological evidence to
support any fracture, although as I understand Prof Freemont’s evidence, the
histological samples taken from the
vertebra
did not include that portion of
the bone where the fracture was thought by the radiologist to have occurred. In
all the circumstances, I do not think that the evidence on this aspect is
sufficiently strong to conclude that a fracture was in fact present.
42.
There are a number of other minor differences between the various
experts on the details of these fractures. There was also some debate as to
whether some of the injuries to the bones could properly be described as
“fractures”. I do not consider it necessary to analyse these aspects in any
further detail. It is plain beyond any doubt that there were multiple rib
fractures/injuries and metaphyseal fractures sustained on at least four
occasions.
Paediatric evidence
43.
Dr Cartlidge concluded that the skull fractures, intracranial bleeding,
retinal haemorrhages and spinal lesions were caused primarily by severe
crushing or impact, with possible additional shaking, immediately before he
collapsed. In his view,
severe trauma was the only plausible explanation for
these injuries. He thought that the other fractures sustained by J had been
inflicted non-accidentally on a number of earlier occasions. He considered
various
possible medical explanations (for example, osteogenesis imperfecta,
rickets, copper deficiency,
vitamin
D deficiency,) but concluded that there was
no evidence for any such explanation.
45.
According to Dr Cartlidge, rib fractures are initially painful for about
5 to 10 minutes but thereafter the pain would have lessened although deep
breaths, crying and handling around the chest would have exacerbated ongoing
discomfort causing J to be more fractious than usual for some time. He added,
however, that young infants cry so frequently that the cause of additional
crying would not have been known to someone unaware of the cause of the trauma.
Similarly, he advised that metaphyseal fractures are initially painful, usually
for about 5 to 10 minutes. Thereafter, the pain would have lessened, but
passive movement of the joint adjacent to each fracture (hips, knees and
ankles) would have caused pain. He thought that J would have been likely to
have moved his legs less easily in the days after the fractures were sustained,
although in such a young infant this was unlikely to have been noticed by
someone unaware of the causal trauma. Visible
swelling is sometimes noted in these
cases but no such history was recorded here. Dr Cartlidge gave a similar
analysis of the likely symptoms of the clavicle fracture. Thus, it was his
overall analysis that a carer who did not witness the events which caused the
various
injuries would not necessarily have realised that such injuries had
been sustained.
48.
In his analysis of the medical records, Dr Cartlidge confirmed that J had
been seen by a number of health professionals in accordance with normal
procedures during the early weeks of his life. No abnormality had been detected
at any stage. On the contrary, it seemed that the baby was thriving and putting
on weight. He received immunisations on the due dates. He was plainly handled
by a number of different doctors and nurses in the course of these various
examinations, and was seen naked on a number of occasions.
The children’s accounts
49.
I now turn to consider the evidence of the family members. I start with
the various
accounts given by the older children, A and B. Their accounts fall
into the following categories (1) the first ABE interviews carried out on 9th
April 2016 (2) statements made to the social worker CL on 12th April
(3) statements recorded by the foster carer in a diary and (4) the second ABE
interviews on 11th May.
50.
In his first ABE interview, A gave an account of what he had seen on 8th
April. He stated that his mother
had gone out to buy potatoes and described what
he had seen after J collapsed when the father had shouted out to call an
ambulance. In the course of the interview, he was asked about this father. He
said he was “sometimes angry, sometimes good … sometimes a bit rude, bit angry
… shouting at us … would kick us on the bottom”. He said he would shout at
everyone in the house except J “because he’s really good”. When asked if dad
had been angry on the day before, the 8th, he said yes, when J
couldn’t breathe, but not before – “he was only angry that J can’t breathe”. In
her interview, B said that she did things with her
mother
but not with her
father “because Daddy is angry … naughty.” She said he used naughty words.
Asked if her father had said naughty words to J, she said he only did so when J
cried. She said that he had been angry on the day before, adding “because J he
died”. She said that “Daddy be naughty to my Mummy … he fight with my Mummy
…and then um her tummy was hurting”. She explained that this had occurred when
J was in her Mummy’s tummy.
“B discussed her father and shared that her father gets really angry, when her dad gets angry B stated that [he] fights with her mum, B said like this and stood up and started to punch the cushions on the sofa. B said that her mum is really sad when this happens and she does not like it. I asked B how she feels when this happened and she said sad, B said that she tells her father to stop”
52.
In his conversation with CL, A repeated his account of how his father had
come out of his bedroom “very
angry and sad shouting that J was not breathing”.
He gave an account of the attempts to resuscitate J and of what had happened
when the ambulance arrived. CL’s recording of her conversation with A also
includes the following passage:
“in talking about
his father A stated that his father gets very
angry a lot. He stated that when
his father gets angry shouts and hits him and B, he said that C also gets hit …
A demonstrated on himself being hit on his bottom, A additionally stated that
his father kicks him and his sister and sometimes …C. We discussed being hit
some more and A disclosed that he and B have also been hit by his father with
‘the thing around his waist’ [indicating that he meant a belt] …A stated that B
had also been hit with this a lot and stated that it hurts and he cries and
showed me how he keeps really still (A stood upright squeezing himself in
tightly.) A said that sometimes he falls over and just stays. C had never been
hit with the belt but has been kicked in the leg, pushed and hit on his bottom.
I asked A how he feels about his father and A said scared sometimes.”
Further on in this note is this additional passage:
“A stated that
his father says to J ‘you fucking shut up’ and stated that he shouts this, A said
that this does not stop J crying and said that his mum said to his dad to stop
saying that … When he and his siblings are being hit, A stated that his mother
tells his father to stop, which makes his dad angry.”
A gave further details of hearing his parents argue.
54.
These conversations did not take place within an ABE interview. I must
therefore treat them with considerable caution. On behalf of the uncle, Mr.
Howe submits that there were serious breaches of the guidelines in these
conversations. The purpose of the meetings was to build a rapport with the
children, not to ask questions about what had happened at home, and CL had made
no preparations for any such questions. It is further submitted that the
recording is manifestly not a complete or comprehensive record of what the
children said. It is really only a summary of what was said. The record shows
that CL asked some questions, although it was her evidence that the allegations
made by the children were in the form of a free narrative. I take all these
points into account and have considered them carefully. Listening to CL’s
evidence, however, I formed the view
that she was a careful and responsible
social worker who was trained in ABE interviewing and was aware of the pitfalls
likely to arise when speaking to children in such circumstances.
55.
The foster carer Miss K also gave evidence about things that the
children had said to her. Her evidence was principally set out in a notebook
that she kept to record the children’s progress and in particular anything
relevant said by the children including about their experiences at home. The
notebook records a number of conversations in which the children made a series
of statements about how they were treated. The statements include comments
about the father hitting the mother,
the father hitting B’s ear making it
bleed, about the father hitting then with a belt and about the
mother
intervening when the father did this, about the father hitting the
mother
in
the tummy and about the father shouting and swearing at J. In her oral
evidence, Miss K described A as being like a little scared dog when he was
telling her and spoke of B using an anxious baby
voice.
These conversations culminated
with an occasion on 17th January
2017
when B had alleged that she
had looked through the keyhole and seen the father punching J on the bed and in
the cot. At Miss K’s request, B had then made some drawings of what she said
she had seen. A social worker had subsequently written on the drawings
describing what the drawings were intended to portray.
56.
The question therefore arises as to what weight can be placed on Miss
K’s notes of statements made to her by the children. In her oral evidence, Miss
K described how she had been on various
courses in which she had learned,
amongst other things, about speaking to children. Listening to her evidence,
however, it was plain that she had not received extensive training on this
subject. Reading the notebook and listening to her account of the
conversations, I was increasingly concerned that her lack of training and
understanding about the dangers when speaking to children about things that had
allegedly happened to them may have caused her inadvertently to lead the
children into saying things. One example will suffice to illustrate this. At
one point in her notebook, referring to advice she said she had been given, she
records that she said to A that “I know that in your home people hurt people
but when you live with me we don’t hurt people.” She records A replying: “yes
at home daddy hurt him and when people annoyed him he would go mad”.
57.
My concerns were heightened by a video
recording of a conversation
between Miss K and the two older children on 30th October 2016 in
which they repeat allegations about things their father had done. The recording
plainly shows Miss K making comments such as “I bet that was frightening” and
“I bet your stomach was turning” and complimenting the children on being brave.
At one point she said that “it’s good to talk about things because then you’re
not worrying about them”. She then said that “they’ll find out exactly what
happened” and that “the judge will make his decision” because “he needs to know
exactly what happened that day”. At that point, B gave an account of “sneaking”
into her father’s bedroom and seeing J and her father shouting. A tried to
interrupt and contradict B, but Miss K told him to let her speak because he’d
had his say. As Mr. Howe on behalf of the uncle demonstrated in his written
submissions, this transcript is materially different in a number of respects
from the account of this conversation in the notebook where there is a summary
of what B said but little indication of comments made by Miss K herself.
58.
It is in my view
unnecessary to analyse this part of the evidence in any
greater detail. Having listened to her evidence, and considered in particular
the evidence about the conversation on 30th October, I am satisfied
that no weight can safely be attached to anything recorded in Miss K’s
notebook. There is a substantial risk that her recordings of comments made by
the children were incomplete and that such comments as were made by the
children were influenced to some extent by the well-intended but untrained –
and in some respects misguided – way in which Miss K spoke to them. It seems to
me there is considerable force in Miss Langdale’s submission that, for whatever
reason, Miss K believed she was part of an “evidence gathering” process; that
she should record the children’s conversations about family life and that she
should “be curious” about their past; and that the children’s memory of home
life by now will have been irrevocably influenced by their time in foster care
and discussions with the many and different professionals involved. This case
illustrates again the difficulties of relying on comments made by children
outside the carefully-controlled environment of the ABE interview.
59.
On 11th May 2016, A and B underwent a second ABE interview.
It seems that this was prompted by the conversations they had had with CL on 12th
April. It should be noted, however, that by the time of the second interviews
they had been living with Miss K for five weeks. A described how his father had
got angry and sworn several times a day; smacked them on the bottom with his
arm; hit himself and B (but not C) with a belt; sometimes kicked them on the
bottom; and argued with his mother
which made him sad and scared. The interview
with B was notably more difficult than the first. B was much more distracted,
although she did repeat the account of how her parents had been fighting and
how her ear had been hurt. In the light of my concerns about the impact of Miss
K’s conversations on the children’s accounts, I do not think any weight can be
attached to statements made by the children in these second ABE interviews.
The accounts given by the three adults
62.
He says that he loves the mother
dearly and that she is the love of his
life. They planned to have two children, a boy and girl, and he describes
family life as fun and says that he and the
mother
were happy together as their
family grew. In his oral evidence, the father spoke warmly about the children,
describing all four of them in affectionate terms. He played a full role in
caring for them – feeding them, bathing them, changing nappies, playing with
them.
63.
The father denied assaulting any of the children. It is his case that he
used shouting and smacking to discipline the children but denies that he used
sufficient force to hurt them. He states that in Poland smacking is a normal
form of chastising children. In his statement, he said that sometimes the
mother
thought his punishments were harsh, “both as to cause and content”. He says
that she would stop him shouting too much and that she did not like him
shouting, but adds that he is confident that he never caused any physical harm
to the children. His statement continues:
“They didn’t have
bruises or anything like that. I am also confident that had injured them [the
mother]
would have done something about it. [She] would try to calm me down if
I was shouting. If the smacking was too hard, [she] would tell me to calm down.
In his oral evidence, the father said that his
back injury had made him more sensitive and more easily upset. He said that,
when he wasn’t angry, and when he didn’t shout, the children were happy, but
when he did shout they were definitely afraid. He said that he accepted the
mother’s
diary was an accurate record of his behaviour, although he could not
recall the details. He agreed with Mr. Hand in cross-examination that he was a
bully to the
mother
when he was angry and that he did not control himself when
he was in a fury.
64.
It is the father’s case that he is sure that when the mother
put J in
his cot on the afternoon of 8th April he was okay. When the father
woke, however, he heard J gasping and he wondered whether he was choking on
food or something. The father says he went to the cot, and saw J lying on his
back looking
very
pale. He picked him up by putting his left hand under his
head and his right hand under his bottom. J was floppy and not breathing. He
started mouth-to-mouth resuscitation. In his oral evidence he said he
remembered something happening involving the armchair in the bedroom but could
not recall what it was. He left the bedroom and went to the hallway where he
put J on the floor and started to do CPR. At some point, he recalled yelling to
the uncle to call for an ambulance. It is his case that, in all of this
activity after he found J gasping, it is possible that in his panic he
accidentally caused him some injury. His had been under J’s neck and J’s head
hit the ground first when he put him down. He stated that his memory was
imperfect about what happened.
65.
The father was very
distressed at the way in which he was arrested at
the hospital and separated from the
mother
when J was dying. He was also
extremely distressed at being unable to see his son before he died.
66.
The mother
has given three interviews the police and has filed two
statements in these proceedings. She gave oral evidence before the court which,
like the evidence of the father and uncle, was given through an interpreter.
68.
It is, however, a striking feature of the evidence in this case that the
mother
kept a diary in which she recorded repeated examples of the father’s
anger and abusive behaviour. I have already quoted a number of passages from
the diary earlier in this judgment. In her first statement in these proceedings,
the
mother
asserted that it was only after consulting with her legal team, and
after re-reading the diary in what she describes as “the cold light of day”,
that she came to appreciate what had happened. As a result, she has stated that
her relationship with the father is over, adding “as far as I am concerned he
does not exist for me any more”.
69.
The mother
describes how she and the father had a
very
good relationship
in the early days which deteriorated after he suffered the debilitating back
injury. This affected his ability to sleep and work and also made him more
bad-tempered. She asserts that the problems were exacerbated because he drank
alcohol to excess which increased the number of arguments between them. She
states
“although I did my best to shield the children from the arguments, I have read documents which make clear it that the children were aware of the arguments. There were times when he pushed and shoved me around and the exercise book records the time I hit him because his behaviour was so bad. Also there was a time when my husband broke a chair. The children were present and were upset and crying. I am ashamed that things reached such a level and now I realise and accept I should have done something about this atmosphere because it was not good for the children.”
70.
The mother
accepts that the father shouted at the children a lot and
recalled one occasion when he kicked A but not in a forceful way. She denies
that the father ever physically assaulted the children in her presence.
Although the father threatened to use a belt on the children, the
mother
says
that she never saw him act on this threat. She accepts that on one occasion he
pushed her and believes that this must have been in B’s presence. She said that
she was not aware that the children had heard the arguments between her and the
father although, having now read what the children said, she accepts that this
must have happened.
71.
In her oral evidence, the mother
said that the children did not like the
father shouting. They would go quiet. She said that his reactions to the
children were too harsh and the main reason for the arguments in the house was
that he was shouting at the children. She accepted that, when the father
shouted and swore, J would cry. In her statement, she said that she had never
heard the father tell him to “shut the fuck up”, although in oral evidence she
said that he had told the baby to “shut his mouth”. Although she thought he had
an anger problem, she did not think he was dangerous. He would not attack
anyone apart from shouting at them in a
verbal
way. If the children had been
hit in the way they describe, she would have expected them to tell her. It was
her oral evidence that they never told her that they had been hit by the
father. She did
volunteer,
however, in oral evidence that
very
often the father
would say to A “it’s lucky your
mother
is at home, otherwise you would get a
beating” but she insisted that she had never seen it with her own eyes. It was
put to her in cross-examination that, from what she knew of the father’s anger
and drinking and its effect on the children, she should have acted sooner to
get the children away. Her reply was that, “seeing what I see now, I realise
that, but I didn’t notice it at the time”.
72.
In his cross-examination, Mr Tooley on behalf of the guardian drew the
mother’s
attention to a passage in the father’s statement in which he had
admitted that he had smacked the children and said that if the smacking was too
hard, the
mother
would tell him to calm down. The
mother
accepted that there
had been occasions when she had intervened. She said that she did always try to
calm him down and added that “it difficult to comment on whether a smack is too
hard”.
73.
At the conclusion of evidence, in answer to questions from the court,
the mother
said:
“I was trying to
fight for this family. I was trying to fight for a family where the children
would have both a mother
and a father. The children never complained about him.
At that time I did think it was safe to leave the children with him, but I now
know it wasn't.”
74.
The mother
dearly wishes the children to be returned to her care as soon
as possible. She says the children are her world and she knows that she can
give the care that they need.
75.
The uncle gave three interviews to the police. In addition, he has filed
a statement in these proceedings. On his behalf, Mr. Howe rightly submits that
there are no significant inconsistencies in his various
accounts.
76.
The uncle’s case about the events of 8th April 2016 is that
he heard nothing to indicate that J was unwell until he heard the father
shouting at him to call an ambulance. As is clear from the transcript of the
999 call, he then effectively took charge of the situation while the ambulance
was on its way, remaining calm throughout while the father was angry and
hysterical. In his oral evidence, he described how he had burped J after his
feed at lunchtime. At that point, the baby was normal and there was nothing
that made him think that anything was wrong. After the mother
went out, he
continued to prepare lunch. His evidence is that the television was on and the
door between the living room and the hall was closed, but he was unable to say
whether the bedroom door was also shut. After he heard the father shouting, he
went into the hall to find him holding J. He saw the father put J down on the
floor in a manner which in his oral evidence he described as “
very
delicate”
77.
In his statement, he says that he was unaware of any other injuries
sustained by J and, if he had known that J was being hurt by his father, he
would have spoken to the mother
and told her to leave him. He adds that he
witnessed domestic
violence
himself when he was a child and would not want any
other child to go through a similar experience. It is his case that alcohol was
rarely consumed to excess in the household. He smokes cannabis himself about
twice a week but never in front of the children and was unaware of any drugs
being taken in the house.
78.
The uncle says that he heard the father shout regularly at the children
but denies ever seeing him slap or hit them. He believes he once heard the
father slap A’s bottom because he heard a noise and afterwards saw A rubbing
his bottom. He denies ever seeing the father use a belt on any of the children,
although he recalled two occasions when the father threatened them with a belt
and made as if to unbuckle the belt from his trousers. It is his case that the
children had never told him that they are scared of the father. In his
statement, he also denied ever seeing the father being violent
towards the
mother.
79.
In his oral evidence, he said that he did not remember the household as
being a scary place for the children. He said that he did not know about the
existence of the mother’s
diary prior to these proceedings and the picture
painted in the
mother’s
diary did not accord with his recollection. He did not
know about any of these situations she described in the diary. However, in a
revealing passage later in his cross-examination by Mr. Hand on behalf of the
local authority, the uncle described how the father would on several occasions
shout at J to be quiet while he was holding him, using “fuck” as every other
word, shouting “fucking shut up”. In cross-examination by Miss Langdale on
behalf of the
mother,
he added that he saw the father shout at the other
children while holding J. On the other hand, he agreed with Mr. Storey on
behalf of the father that there were many happy days in the household and that
there was a lot of love between the parents.
B’s metaphyseal fractures in 2011
80.
In 2011, when B was only 9 days old, she was taken to hospital. The
account given by her parents was that at 5 o’clock in the morning she had woken
and the mother
had taken her out of the cot and put in the bed next to the
father. The
mother
had gone to the toilet for a few minutes. The father had
dozed off and woken to find B crying. The
mother
then returned from the
bathroom and breastfed the baby. Later that morning, she noted that B’s left
lower leg was swollen and tender and took her to the GP who referred her to hospital.
X-rays revealed the presence of metaphyseal fractures at the distal end of the
left tibia and fibula with no bony healing but some swelling. These findings
were confirmed by a skeletal survey carried out some days later.
82.
In his report for the purposes of these proceedings, Dr Chapman
confirmed the presence of the metaphyseal fractures in the radiological
evidence from 2011. He also confirmed the absence of any evidence of bone
disorder. As stated above in the analysis of J’s injuries, Dr Chapman’s opinion
is that metaphyseal fractures are not found with normal or even rough handling
and have a high association with non-accidental injury at this age. In his
report, Dr Cartlidge also expressed the view
that the metaphyseal fractures
sustained by B in 2011 were likely to have been inflicted non-accidentally. He
considered the father’s account but thought that the act of rolling onto the
baby’s ankle would have pushed it into the mattress rather than cause a
forceful bending of the ankle sufficient to inflict the fractures, unless
something had happened to prevent this happening.
83.
Importantly, however, the treating surgeon who had accepted the father’s
explanation in 2011 was not called to give evidence before me and his opinion
was not tested against that of the experts instructed in these proceedings.
Furthermore, I must bear in mind that a number of years have passed since the
incident and it is very
difficult for the parents to recall in precise detail
what happened before and during B’s hospital admission on that occasion.
Submissions
85.
On behalf of the father, Mr. Storey and Mr. Howard have submitted a
lengthy final document. I have carefully considered all the arguments put
forward. They draw attention to the many positive comments about the father in
the papers – warm observations about him as a father and husband. They rely on
the mother’s
actions in standing by him for several months after J’s death.
They point to the affectionate terms in which she repeatedly wrote to him in
prison, and to her remarks at the end of her evidence that she had wanted above
all else to reunite the family. They submit that, unlike the court and everyone
else in the case, she knew the father inside out. The fact that she stood by
him for so long illustrates her disbelief that he could have been responsible
for J’s collapse and death. Mr. Storey and Mr Howard also point to the
mother’s
strong words of praise for the father in her police interviews. They therefore
contend that the wide canvas in this case is strongly in the father’s favour as
a dedicated, decent husband and father who played a full role in the family
duties.
86.
Mr. Storey acknowledges the contents of the diary give a somewhat
different picture, but submits that in terms of the time period covered and the
number of entries it is relatively limited in scope and significance. He
submits that the mother
and uncle have a heightened awareness about the impact
of alcohol on family life because of their own experiences as children. He relies
on the uncle’s answer in oral evidence that there had only been a handful of
occasions when the father had shouted at the children in his presence.
89.
On behalf of the mother,
it is submitted by Miss Langdale and Miss Kaur
that she is a truthful witness and that she gave her evidence to the court
directly and honestly. Her personal life and feelings have been laid bare
for all to consider – notes in a diary, and letters to father. It is submitted
that the
mother’s
diary is factually accurate and there will have been no
reason for her to fail to make significant entries within it. If the father
had, in fact, hit the
mother
or the children, Miss Langdale submits the court
can reasonably assume it would be reflected in the diary.
90.
Miss Langdale submits that there is a danger that hindsight (and the
knowledge of causation of J’s death) will influence the answer to the question
of whether the mother
should have left the father beforehand. She relies on the
mother’s
answers to the court at the end of her evidence about wanting to keep
the family together. Her relationship with the father was longstanding and
there had been many happy times. Furthermore, it is her case, supported on this
point by the father, that she did take steps to protect the children from his
temper. Miss Langdale submits that there will be many homes where reprehensible
outbursts of shouting and physical chastisement of children occur but whether
the impact of either or both results in ‘significant harm’ is a different
matter. In this case, all of the children were developing well, and A and B
were doing well at school. It is submitted that the death of J influences the
overall analysis of the family background, and the court should be careful not
to judge the
mother
and her responses to the father with the benefit of
hindsight.
91.
On behalf of the uncle, Mr. Howe and Miss Harman submit that there is no
evidence that the level of conflict with the home caused the children
significant harm, that this is not a household that can be characterized as having
the high level of conflict required to cross the s.31 threshold. Mr Howe goes
on to contend that arguments between parents, shouting at children and
occasional smacking are commonplace occurrences within families and that, while
this may not be ideal and may indeed be harmful it is not sufficiently harmful
to meet the s.31 threshold. The degree of shouting that occurred falls short of
establishing the standard of poor parenting required for the court to find that
the uncle failed to protect the children. Although in his evidence the uncle
accepted that with hindsight he should have said something to the mother,
Mr.
Howe submits that this is indeed hindsight and the court should not conclude
that the uncle’s conduct was sufficient to cross the threshold.
Conclusions
93.
In many ways this was a normal household in which the children thrived.
They were not neglected. On the contrary, they were in most respects well cared
for. The health visitor
described them as “a lovely family”. A police officer
gave evidence that a neighbour had described them as a “nice family”. The home
was well furnished, clean and comfortable. The physical appearance of the
children gave no cause for concern. They were well-presented, well-mannered
children. They were taken regularly and appropriately for medical checks and
appointments. With one exception, nothing abnormal was found. The children put
on weight and seemed to be thriving. A and B were popular at school and doing
well academically. With one exception, there had been no previous question
about the parents’ care. On the contrary, all the evidence available to outside
agencies – medical services, nursery and school – was that there was nothing
unusual about this family.
95.
Save for that incident, there was no evidence of any observation by any
outside agency to suggest that there was anything wrong with the care given to
the children. On the contrary, all the evidence available to the outside
agencies was that the children were well looked after and thriving in their
parents’ care. This pattern continued after J was born. He was seen regularly
by midwives, the health visitor
and doctors. Nothing abnormal was seen. No
professional noticed any signs of injury. He was putting on weight and
apparently thriving. Babies who are subjected to repeated physical abuse often
(although not invariably) shows symptoms of failing to thrive. This was not the
case here. All in all, so far as outside agencies were concerned, J seemed to
be doing
very
well in his parents’ care. Importantly, the father played a full
role in caring for the children, including J. All that uncontested evidence
leads Mr Storey to submit that, from that perspective, J’s tragic collapse and
death came out of a clear blue sky.
96.
The forensic analysis undertaken in this court, however, has clearly
demonstrated that this was not the full picture. Unbeknownst to any of the
professional agencies, this was a household in which one adult, the father, had
an unpredictable and aggressive temper, which manifested itself in occasional
outbursts of extreme anger directed at everyone in the house both adults and
children including J. I am satisfied that he regularly subjected everyone to
threats including the children and those threats included threats of violence.
I accept the graphic evidence given by the uncle that the father would shout at
J while holding him. That clearly demonstrates to my mind that he had an
irrational and uncontrollable temper. I also note that the
mother’s
friend KS
gave evidence that she had intervened on two occasions when the father was
angry and shouting at the children. All parents know that caring for small
babies can be frustrating and difficult, but the reaction of this father to
this child went far beyond a reasonable response. On the contrary, it was both
alarming and, in my
view,
dangerous.
97.
I am satisfied beyond doubt that the children in this family suffered
emotional abuse at the hands of their father. I have no doubt that, at other
times, he could be warm and loving, but his outbursts of temper and aggressive
shouting would unquestionably have been emotionally harmful to all the
children, including J. His outbursts clearly included acts of aggression
directed at objects (for example, the kitchen chair he destroyed in temper).
Did it extend to violent
acts perpetrated on the children?
98.
The father plainly used physical chastisement and threatened the
children with more, including the belt. The mother
said that he had threatened
the children with the belt. Her friend KS said that she had heard him threaten
this on two or three occasions. The father also accepted that he had threatened
them with the belt. He acknowledged in his own statement to the court that on
occasions the
mother
had had to intervene because she thought he was punishing
the children too harshly.
100.
On behalf of the three adults, I am urged to take a similar view
of the
comments recorded by the social worker, CL, as having been made by the children
on 12th April. It is correct that the conversations she had with the
two children on that day were not conducted formally in accordance with the
procedures laid down in the ABE guidelines. The social worker did not
visit
the
foster home that day with the intention of questioning the children, but only
for the purpose of building rapport with them. The record of what the children
said is plainly only a summary and does not contain a
verbatim
account of the
exchanges between the social worker and each child. For all those reasons, I
must treat this evidence with caution. I have, however, reached the conclusion
that the social worker’s evidence of what the children said that day is both
reliable and compelling. In particular, I accept that A told CL that the father
hit the children with a belt. A’s description of how the father did this and of
his own reaction to being hit - standing still or on occasions just falling
over – was compelling and plausible. It is also notable that A told CL that,
when he and his siblings were being hit, his
mother
would tell his father to
stop. This is consistent with what the father himself said happened in his
statement in these proceedings. In addition, A told CL that his father shouted
to J ‘you fucking shut up’. This is consistent with what his uncle has stated
in evidence. In those respects, CL’s record of A’s comments on 12th
April is corroborated by other evidence. To my mind, this confirms the overall
reliability of that record.
101.
Both the mother
and the uncle were in many ways plausible witnesses. But
I have concluded that, whilst they were able to acknowledge that the father got
angry and shouted at the children, they have minimised the extent of his
physical
violence.
That physical abuse went far beyond anything that could be
considered reasonable chastisement. I accept that the children have been hit
with a belt by the father and subjected to acts of physical
violence
on
occasions by him when he was angry. I find that both the
mother
and the uncle
were aware of the true extent of his physical abuse of the older children.
102.
There is no evidence that either the mother
or the uncle or any of the
children ever witnessed the father physically abusing J. Nonetheless, looking
at the evidence overall, it cannot in my judgment be said that the events that
caused J’s collapse and ultimate death came out of a clear blue sky. On the
contrary, dark clouds were plainly gathering.
103.
I turn the evidence about the afternoon of 8th April. On this
point, I accept the evidence of both the mother
and the uncle. I accept that it
had been a peaceful and uneventful day. In the morning, there was a trip to the
shops. I accept the
mother’s
account, supported by the father, that while he
was resting on the bed, she put J in the cot so that she could go back to the
shop. I have found it a little puzzling why she went to the shop at that point.
I have considered the possibility that she has fabricated this part of her
account to conceal something, but ultimately concluded that she has not done
soon. I accept her account that she left J in his cot and indicated to the
father that she was going out, the baby was well having just been fed. If she
had thought that there was anything wrong with J when she put him down in his
cot, I find that she would never have left the flat that afternoon.
104.
I also accept the evidence of the uncle that he continued preparing the
meal after the mother
had left the building and that the first sign that he heard
of anything wrong was when he heard the father shouting for an ambulance and
came out of the living room into the hall to see the father holding J in his
arms. I further accept the uncle’s account of seeing the father put J on the
floor gently. I do not accept that there is any possibility that J could have
sustained any of his injuries when being put on the floor in this fashion.
There is to my mind no conceivable way in which he could have sustained the
skull fracture or the devastating intracranial injuries by being placed on the
floor in the way described by the uncle.
105.
It follows, therefore, that J sustained those devastating injuries that
led to his death between the time the mother
left him in his cot and the time
when the uncle saw him in his father’s arms in the hall.
106.
Any accident that had occurred to this 14 week-old baby would have been
observed. No account of any accident that could conceivably explain these
injuries has been put forward. I do not think it possible that an accident
could have occurred which the father has completely forgotten, nor in my
judgment is it likely that there was an accident which he has concealed because
of embarrassment or any other reason. A suggestion that was made at some point
in the evidence that his head might have struck an armchair is to my mind just
speculation and would not in any event have led to injuries on the scale
suffered in this case. Thus the only conceivable explanations for J’s fatal
injuries in my judgment are either that there was an unknown cause or that he
was subjected to a devastating and violent
assault by his father. I do of
course bear in mind the possibility of an unknown cause, but have regard to the
extent of injuries – the skull fractures, the associated rib fractures, the
intracranial bleeding, the eye injuries, the brain damage, leading shortly
thereafter to his death – the chances of there being an unknown cause are to my
mind infinitesimally small.
107.
Taking all the evidence into account, and in particular the medical
evidence about the injuries and their likely causation, the evidence given by
the mother
and uncle as to J’s condition prior to his collapse, coupled with
the evidence of the father’s propensity to anger and
violent
outbursts, I
conclude that J sustained his injuries as a result of a
violent
assault by the
father in the bedroom while the
mother
was out of the property. I make this
finding on a balance of probabilities. That is the standard of proof applicable
in this court. I feel compelled to say, however, that in this case I have no
doubt that this is how the injuries were sustained.
108.
It is plain from the evidence of Prof Freemont and Prof Mangham,
supplemented by the evidence from Dr Chapman, that J had a large number of bony
fractures/injuries to his ribs, clavicle and lower limbs of varying
ages which
were inflicted on at least three earlier occasions prior to the assault on 8
April which led to his death. Careful analysis has ruled out the possibility of
any organic, metabolic or genetic explanation for these injuries. If any of
these injuries were attributable to accident sustained by this pre-mobile
child, there would be an account or history from one or other of his carers by
way of explanation. There is no such account. Again, the only explanations for
the
various
bony injuries sustained by J on earlier occasions are unknown cause
or inflicted injury. I take into account again that there is always the
possibility of unknown cause, but in all the circumstances I conclude that the
chances of such a cause being the explanation for any of J’s injuries are
very
small indeed. On a balance of probabilities, the likeliest explanation is that
they were inflicted through squeezing and/or rough handling.
109.
The possible perpetrators of these injuries are the father, mother
and
uncle. Having carefully considered all the evidence, including the evidence
about what happened on 8th April, and everything I know about their
respective characters, I conclude that it is overwhelmingly more likely than
not that the injuries were inflicted by the father.
110.
I turn finally therefore to the allegations that the mother
and uncle
failed to protect the children. As already indicated, I have found that (1) the
father was a man with an aggressive
violent
temper; (2) when angry he has
shouted at the adults and children in the house; (3) on occasions, he has
physically abused the children; (4) he was responsible for inflicting the
injuries on J on a number of occasions prior to 8th April; (5) he
was also responsible for inflicting the catastrophic final injuries on 8 April
which led to J’s death. Both the
mother
and the uncle accept that they knew
about (1) and (2) - in other words that he was a man with an aggressive,
violent
temper who when angry would shout at adults and children in the house.
But both the
mother
and uncle deny that they knew about (3) and (4), further
assert that (5) could not have been foreseen, and therefore contend that they
cannot be criticised for failing to protect the children.
111.
I do not, however, accept their evidence that they did not know that the
father hit the children. On the contrary, I find on a balance of probabilities
that each of them knew that he had hit the children, including that he hit them
with a belt. On a balance of probabilities, I think it more likely than not
that the father hit the children in the presence of both the mother
and the
uncle. To that extent, I find that the uncle and
mother
have both minimised
their knowledge of the father’s dangerous behaviour. I conclude that they have
done so to portray themselves in a more favourable light in the hope that this
will make it more likely that the court will return the children to the
mother’s
care. It is possible that they were unaware of the extent of the
physical abuse of the older children. But in my judgment they knew that he shouted
at the children in a way that was abusive and highly damaging and on a balance
of probabilities I find that each of them knew that he hit the children to an
extent that went beyond normal chastisement.
112.
There is, however, no evidence that either the mother
or the uncle was
aware that J sustained any injuries before 8 April. I bear in mind that the
baby was seen by a number of professionals, experts in helping and treating
children, not one of whom noticed anything to suggest that J had sustained
fractures and injuries which the evidence of Prof Fremont, Prof Mangham and Dr
Chapman has subsequently demonstrated were present at the time of the
various
examinations. I also take into account the evidence of KS, the
mother’s
friend,
who saw J only a few days before his death and noticed nothing wrong. If
experienced professionals and the
mother’s
friend noticed no signs of injury, I
do not think it can fairly be said that the
mother
or uncle should have noticed
anything wrong. The
mother
was of course an experienced parent by this point
who might be expected to notice any change in her baby. But small children are
distressed and discomfited all the time for a wide
variety
of reasons. Of
course, this
mother
had some experience of a child who had sustained injuries.
B had been taken to hospital when only a few days old and found to have two
metaphyseal fractures. But in B’s case there were clear symptoms of the
injuries which alerted the
mother
to the possibility that something was wrong.
I find that in J’s case even an experienced
mother
would not necessarily have
noticed that there was anything wrong.
113.
If the mother
or the uncle had seen the father strike, shake or squeeze
J, they would in my judgment have immediately taken steps to remove the baby
from his care. I am satisfied that the
mother
did not realise that there was
any risk of harm to J when she left him in the father’s care on 8th
April. If the
mother
had thought that there was any prospect of J coming to
harm when she went to buy potatoes that afternoon, she would never have left
the flat. On the other hand, she did know about his anger and aggression and,
in my judgment, she knew of the emotional and physical abuse of the older
children and also that he had shouted at J on a number of occasions. In my
view,
she ought to have realised that the father was capable of
violence
and a man of
unpredictable temper and ought therefore to have realised that it was unsafe to
leave J in his care. The fact that another adult was present in the flat would
not have prevented the father from becoming angry and aggressive towards the
children. Few people would have anticipated the father would inflict injuries
on J on the catastrophic scale which ultimately transpired, but in my judgment
the
mother
ought to have realised that it was unsafe to leave J in the cot in
the bedroom. She knew about the father’s unpredictable and aggressive behaviour
and ought therefore to have realised that there was a risk that J would come to
some harm, even if she could not reasonably have foreseen the scale of harm
that he ultimately suffered.
114.
I conclude that both the mother
and the uncle were culpable of a degree
of failure to protect the children. The uncle’s culpability is less
substantial. I accept that he was
very
fond of the children. As Mr. Hand
concedes, he undoubtedly did his best on 8th April in
very
difficult
circumstances. He did not have parental responsibility for the children, but he
did know of the father’s unpredictable and aggressive behaviour towards
children. He ought to have intervened to help the
mother
get assistance to deal
with this problem. In cross-examination, he fairly acknowledged that he should
and could have done more.
115.
The mother’s
culpability is more substantial. She loves the children
dearly and in all other respects has provided them with
very
good care. But she
knew that the father was unpredictable, angry and aggressive, and that he
directed his aggression at the children and occasionally committed acts of
physical abuse. She ought to have taken steps to encourage the father to seek
help for his anger and to remove the family from his care until such time as
the father had addressed the problem. She did not do so and therefore in my
judgment failed to protect older children from emotional abuse and occasional
acts of physical abuse inflicted by the father. Furthermore, I find that she
ought to have realised that it was not safe to leave J in the father’s care.
Even though the extent of the
violence
inflicted on J on 8th April
was something which few people would have foreseen, the
mother
ought to have
realised that there was a risk that J would suffer some harm and therefore
taken steps to ensure that he was not left with his father.
116.
I therefore find the mother
failed to protect the children by failing to
remove them from the household in which they were suffering emotional and
physical abuse and failed to protect J by leaving him in the care of the father
knowing that he was capable of angry and aggressive behaviour towards children.
Had the
mother
taken any of those steps, J would still be alive today. She will
have to live with that knowledge the rest of her life. I acknowledge that the
positive evidence about the children indicates that in many respects they were
well looked after in the parents’ care. On the other hand, I regard the
mother’s failure to protect her children as significant. Although I do not rule
out the possibility that A B and C may return to her care in due course, it is
essential for this failure to be acknowledged and addressed.