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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> ES (A Child), Re  EWFC B96 (03 November 2017)
Cite as:  EWFC B96
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IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF ES (A CHILD)
B e f o r e :
(sitting as a s.9 Judge)
|A Local Authority||Applicant|
Darren Howe QC Leading Counsel and Hannah Mettam of Counsel for the Mother
Kathryn Skellorn QC Leading Counsel and Greg Pryce of Counsel for the Father
Matthew Stott of Counsel for the Child
25th, 26th, 27th, 28th & 29th September 2017 and
12th, 13th, 16th, 17th, 18th, 19th & 20th October 2017.
Judgment Handed down on 3rd November 2017
HTML VERSION OF JUDGMENT
Crown Copyright ©
Local authority: Oliver Wraight of Counsel
Mother: Darren Howe QC Leading Counsel and Hannah Mettam of Counsel
Father: Kathryn Skellorn QC Leading Counsel and Greg Pryce of Counsel
Child/guardian: Matthew Stott of Counsel
- B, maternal grandmother;
- C, paternal grandmother;
- D, paternal grandfather; and
- E, paternal aunt.
Summary of Background:
Further bruising to A:
(i) On 29th December 2016, the foster carer noted a small red mark on A's stomach. She was seen by the GP who was unsure what the mark was but was not concerned by it.
(ii) On 23rd January 2017, the foster carer noted bruising to A's right leg and right side of her abdomen. She was taken to Watford General Hospital that evening. The report of the consultant paediatrician, who examined her the following day, notes a bruise on the back of each thigh and a bruise on the right side of the abdomen. In the absence of any apparent explanation for the bruise, medical or otherwise, it was suggested that the bruises "would be in keeping with very rough handling." She was discharged back to the care of the foster carer on the following day.
(iii) On 17th February 2017, the foster carer observed two small red marks: one just above the left knee and one above the left hip. No clinical examination took place.
(iv) On 2nd March 2017, the foster carer noticed a bruise to A's right thigh. She was taken to the GP, Dr M, on the following day and then examined at Wycombe General Hospital by Dr N, consultant paediatrician. Dr M recorded a bruise in the right upper inner thigh area just below the nappy line, which he considered was "likely to have been caused by rough handling rather than any bleeding condition."
Dr Joanna Fairhurst, consultant paediatric radiologist.
Dr John Somers, consultant paediatric radiologist
Dr Thomas Lee, consultant paediatrician
Dr Patrick Cartlidge, consultant paediatrician.
Dr Anand Saggar, consultant in clinical genetics.
Expert radiological evidence
• Dr Fairhurst and Dr Somers agree there are fractures of the posterior right 10th and 11th ribs. These two fractures are likely to have occurred between late October and mid-November 2016 and are likely to be inflicted injuries.
• Dr Fairhurst considers there are fractures of the anterior ends of the right 5th, 6th, 7th, 8th, 9th and 10th ribs and the left 6th, 7th, 9th and 10th ribs, although these are likely to have been caused in the same incident as the posterior rib fractures.
• Dr Fairhurst considers there are probable metaphyseal fractures of the distal left radius and proximal left tibia. She considers these to be strongly indicative of inflicted injury.
• Dr Fairhurst and Dr Somers agree that the areas of callus observed on the left 8th-10th ribs in the skeletal survey on 14th March 2017 represent ossification centres of the sternum and not healing fractures.
• Dr Somers does not consider that there are any further fractures beyond the right 10th and 11th ribs.
• The incident on 15th or 17th November when the family dog is reported to have jumped onto a sofa and landed on A, would not account for any fractures.
• Dr Fairhurst and Dr Somers agree that there is no radiological evidence for metabolic bone disease or osteogenesis imperfecta ("OI").
• Dr Saggar indicates that gene testing has excluded OI and that there is no evidence of any genetic condition that might explain or cause the fractures.
• All the experts (save Dr Saggar, as not within his remit) agree that the fractures are not birth-related.
• Dr Saggar considers there is no clinical evidence that A has a significant degree of any connective tissue disorder, however there is such evidence in respect of the mother; there is very clear evidence that she has hypermobility [E135].
• Dr Saggar considers that it is quite possible that A has inherited a susceptibility to Ehlers-Danlos syndrome type 3, however even if this was passed down to A in its full form, it would not be expected to cause fractures.
• Dr Saggar considers that given the mother's history of hypermobility, it is quite conceivable that A may bruise more easily and under normal handling.
• In the light of Dr Saggar's report, Dr Cartlidge considers it most likely that A has hypermobility EDS and that this was a significant factor in the repeated mild bruising.
Expert paediatric evidence
Other Local Authority evidence
a) First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore, the burden of proving the allegations rests with them;
b) Secondly, the standard of proof is the balance of probabilities (Re B  UKHL 35). If the local authority proves on the balance of probabilities that the child has sustained non-accidental injuries inflicted by one of his parents, the court will treat that fact as established and all future decisions concerning the child's future will be based on that finding. Equally, if the local authority fails to prove that the child was injured by one of his parents, the court will disregard the allegation completely;
c) Thirdly, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)  EWCA Civ 12, "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation";
d) Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T  EWCA Civ 558,  2 FLR 838 at 33, "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof";
e) Fifthly, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L  EWHC 144 (Fam);  1 FLR 851 per Charles J). Thus, there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts;
f) Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S  EWHC 2115 Fam). ?
g) Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury)  FCR 346).?
h) Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
i) Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation)  EWHC 1715 Fam, "There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities." The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others  EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child;
j) Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA  2 FLR 849). In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a Judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the Judge should not strain to do so (see Re D (Children)  2 FLR 668, Re SB (Children)  1 FLR 1161).
"The expert advises but the Court decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the Court which throw doubt on the expert evidence, then all of that is all with which the court is left, the court must accept it."
"…Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened…
 In the current case, it is correct that the evidence upon which the local authority relies is circumstantial evidence. No one saw the mother do anything suspicious and numerous nurses and other witnesses have testified that nothing the mother did put them on enquiry. The mother has made no admissions of any kind and has always denied harming her child. The cogency of circumstantial evidence depends on its quality. It can range from the peripheral and unhelpful to compelling and cogent, and therefore it is necessary to test the various elements."
In Lancashire County Council v C, M and F (Children; Fact Finding Hearing)  EWFC 3, Jackson J, after citing Baker J above, added this,
"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."
Perpetrator or joint perpetrators
" In North Yorkshire CC v SA  EWCA Civ 839,  3 FCR 118,  2 FLR 849, the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a 'no possibility' test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at , preferred a test of a 'likelihood or real possibility'.
 Miss Susan Grocott QC, for the local authority, has suggested that this is where confusion has crept in, because in Re H and R  1 FCR 509,  1 All ER 1 this test was adopted in relation to the prediction of the likelihood of future harm for the purpose of the threshold criteria. It was not intended as a test for identification of possible perpetrators.
 That may be so, but there are real advantages in adopting this approach. The cases are littered with references to a 'finding of exculpation' or to 'ruling out' a particular person as responsible for the harm suffered. This is, as the President indicated, to set the bar far too high. It suggests that parents and other carers are expected to prove their innocence beyond reasonable doubt. If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."
Findings in relation to the nature and extent of the injuries