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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Essex County Council v C & Ors [2022] EWFC 187 (21 December 2022) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2022/187.html Cite as: [2022] EWFC 187 |
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New London Road Chelmsford |
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B e f o r e :
____________________
ESSEX COUNTY COUNCIL |
(Applicant) |
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- v - |
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(1) C And Others |
(Respondents) |
____________________
Central Court, 25 Southampton Buildings, London WC2A 1AL
Tel: 0330 100 5223 | Email: uk.transcripts@escribers.net | uk.escribers.net
MS L MEYER KC & MR S ABBERLEY appeared on behalf of the First Respondent
MR P STOREY KC & MISS A STOREY-REA appeared on behalf of the Second Respondent
MR D WATTS appeared on behalf of the Third and Fourth Respondents via their Children's Guardian, Deborah Jennings
21st DECEMBER 2022,
12.18-13.32
____________________
Crown Copyright ©
MR JUSTICE NEWTON:
Background
The legal principles
a. The burden of proof lies with the Local Authority. It is the Local Authority which brings the proceedings and identifies the findings that they invite the Court to make. The burden of proving the assertions rests with them. I bear in mind at all times that the burden is fairly and squarely placed on the Local Authority, and not on either parent. Recent case law (such as Re B 2013 UKSC and Re BS 2013 EWCA 1146) reinforces the importance of proper findings based on proper facts; the principles are the same for whatever the proposed outcome. Here there is, as in many cases, a risk of a shift in the burden to the parents to explain occasions when injuries might have occurred. Whilst that can be an important component for the medical experts, it is not for the parents to explain but for the local authority to establish. There is no pseudo burden as Mostyn J put in Lancashire VR 2013 EWHC 3064 (fam). As HJ Bellamy said in Re FM (A Clinical Fractures: Bone Density): [2015]EWFC
B26.
"Where… there is a degree of medical uncertainty and credible evidence of a possible, alternative explanation to that contended for by the local authority, the question for the Court is not "has that alternative explanation been proved" but rather… "in the light of that possible alternative explanation can the Court be satisfied that the local authority has proved its case on the simple balance of probability."
b. The standard of proof of course is the balance of probabilities (Re B [2008] UKHL 35). If the Local Authority proves on the balance of probabilities that baby A was killed by the mother or sustained inflicted injuries at her hands the Court treats that facts as established and all future decision concerning the future welfare of B, based on that finding. Equally if the Local Authority fails to prove those facts the Courts disregards the allegations completely.
"the "likelihood of harm" in s31(2) of the Children Act 1989 is a prediction from existing facts or from a multitude of facts about what happened… about the characters and personalities of the people involved and things which they have said and done [Baroness Hale]"
c. Findings of fact must be based on evidence as Munby LJ (as he was then) observed in Re A (A child) Fact Finding Hearing: (Speculation) [2011] EWCA Civ 12:
"It's elementary proposition that findings of fact must be based on evidence including interferences that can properly be drawn from the evidence, not on suspicion or speculation."
That principle was further emphasised in Darlington Borough Council v MF, GM, GF and A [2015]EWFC
11.
d. When considering cases of suspected child abuse the Court must inevitably survey a wide canvass and 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 [2004] EWCA Civ 558 [2004] 2 FLR838.
"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."
e. The evidence received in this case includes medical evidence from a variety of specialists. I pay appropriate attention to the opinion of the medical experts, which need to be considered in the context of all other evidence. The roles of the Court and the experts are of course entirely distinct. Only the Court is in a position to weigh up the evidence against all the other evidence (see A County Council v K, D and L [2005] EWHC 1444, [2005] 1 FLR 851 and A County Council v M, F and XYZ [2005] EWHC 31, [2005] 2 FLR 129). There may well be instances if the medical opinion is that there is nothing diagnostic of a non-accidental injury but where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts, that is on the balance of probability, there has been non-accidental injury or human agency established.
f. In assessing the expert evidence, and of relevance here, I have been careful to ensure that the experts keep within the bounds of their own expertise and defer where appropriate to the expertise of others (Re S [2009] EWHC 2115 FAV), [2010] 1 FLR 1560). I also ensure that the focus of the Court is in fact to concentrate on the facts that are necessary for the determination of the issues. In particular, again of relevance here, not to be side tracked by collateral issues, even if they have some relevance and bearing on the consideration which I have to weigh.
g. I have particularly in mind the words of Dame Butler-Sloss P in Re U: Re B [2004] EWCA Civ 567, [2005] Fam 134, derived from R v Cannings [2004] EWCA 1 Crim, [2004] 1 WLR 2607:
i. The cause of an injury or episode that cannot be explained scientifically remains equivocal.
ii. Particular caution is necessary where medical experts disagree.
iii. The Court must always guard against the over-dogmatic expert, (or) the expert whose reputation is at stake.
h. The evidence of the parents as with any other person connected to the child or children is of the utmost importance. It is essential that the Court form a clear assessment of their reliability and credibility (Re B [2002] EWHC 20). In addition, the parents in particular must have the fullest opportunity to take part in the hearing and the Court is likely to place considerable weight of the evidence and impression it forms of them (Re W and another [2003] FCR 346).
i. It is not uncommon for witnesses in such enquiries, particularly concerning child abuse, to tell untruths and lies in the course of the investigations and indeed in the hearing. The Court bears in mind that individuals may lie for many reasons such as shame, panic, fear and distress, potential criminal proceedings, or some other less than creditable conduct (all of which may arise in a particular highly charged case such as this) and the fact that a witness has lied about anything does not mean that he has lied about everything. Nor, as R v Lucas [1981] 3 WLR 120 makes clear does it mean that the other evidence is unreliable, nor does it mean that the lies are to be equated necessarily with "guilt". If lies are established I do not apply Lucas in a mechanical way but stand back and weigh their actions and evidence in the round. I bear in mind too the passage from the judgment of Jackson J (as he then was) in Lancashire County Council v C, M and F (2014)EWFC3
referring to "story creep".
j. Very importantly, in this case in particular, and observed by Dame Butler-Sloss P in Re U, Re B (supra)
"The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generations of experts, or that scientific research will throw a light into corners that are at present dark"
That principle was brought into sharp relief in the case of R v Cannings (supra). As Judge LJ (as he was then) 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."
As Moses LJ said in R v Henderson Butler and Oyediran [2010] EWCA Crim 126 [2010] 1 FLR 547:
"Where the prosecution is able by advancing an array of experts to identify non-accidental injury and the defence can identify no alternative course, it is tempting to conclude that the prosecution have proved its case. Such temptation must be resisted. In this as in many fields of medicine the evidence may be in sufficient 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."
"A temptation described is ever present in Family Proceedings and in my judgment, should be as firmly resisted as the Courts are required to resist it in the 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… a conclusion of unknown aetiology in respect of an infant represents neither a professional or forensic failure.it simply recognises that we still have much to learn and…it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism"
The expert evidence
(1) A copious acute fresh subdural bleed over each of the cerebral hemispheres of no more than 10 days old;
(2) Low density changes in the cerebral cortices and white matter in keeping with the ischemic injury;
(3) Slight bulging of the fontanelle.
(1) Extensive intraspinal haematoma and large volumes of intraspinal blood and most consistent with being between one and three days old, ie, close to when the CT scan was performed;
(2) Oedema in soft tissues in their mutual ligament;
(3) Bleeding around the thrombosed veins;
(4) Extensive subdural haemorrhage;
(5) Acute hypoxic ischemic injury in both cerebral hemispheres of no more than 10 days old and not compatible with ordinary brain function. He opined that that would have occurred from the point at which she last seemed well and that was a useful marker. He also identified ligamentous injury;
(6) Intraventricular subarachnoid bleeding.
Discussion
The approach of the medical witnesses
The findings on the medical issues
The ophthalmology evidence
hEDS Type 3
(1) A was a child who was unwell requiring previous admissions to hospital. She was a child who was under four weeks old. A displayed many symptoms which could demonstrate that something was very wrong even from birth reflecting repeated concerns by her parents, repeated medical referrals, and repeated admissions to hospital;
(2) The symptoms which she is said to have suffered from include feeding difficulties, reflux, sickness, a small head, irritability, a cat-like cry, a bulging fontanelle, prominent veins, and none of the experts could exclude brain irritation or encephalopathy;
(3) The debate and acknowledgement, as I have said already, that this baby is under 28 days old and could have suffered either from a bleed at birth or a re- bleed;
(4) The identification of a step-change that led to such debate in the hearing. Had it occurred before 21 July? Did it occur on 21 July? It seems to me that the experts, many of them, Dr Cartlidge, for example, did not find there to be a step-change.