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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> M and N (Children : Local authority gathering, preserving and disclosing evidence) [2018] EWFC B74 (1 June 2018) URL: https://www.bailii.org/ew/cases/EWFC/OJ/2018/B74.html Cite as: [2018] EWFC B74 |
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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 the anonymity of the
children and members of their family must be strictly preserved. All persons,
including |
Case No: LV17C03063
IN THE FAMILY COURT AT LIVERPOOL
35 Vernon Street,
Liverpool, L2 2BX
Date: 01/06/2018
Start Time: 14.53 Finish Time: 15.23
Before:
HIS HONOUR JUDGE GREENSMITH
- - - - - - - - - - - - - - - - - - - - -
RE
M and N (Children) (Local authority gathering,
preserving and disclosing evidence)
- - - - - - - - - - - - - - - - - - - - -
Digital Transcription by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
- - - - - - - - - - - - - - - - - - - - -
MISS WAKE appeared for the Applicant Local Authority
MISS MALLON (appeared for the First Respondent
MR. WRIGHT appeared for the Second Respondent
MR. IRO appeared for the Third Respondent
MISS LOMAX appeared for the Fourth Respondent
style='letter-spacing:-.15pt'> Children
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
1. The court is concerned with the welfare of M, who was born on [a date in] 2013 and N, who was born on [a date in] 2017.
2. This is a fact-finding hearing which was listed over five days. At the commencement of the case the local authority filed a schedule of facts which it contended would prove that the threshold for making a care order would be crossed. Whilst the alleged facts seemed quite extensive, they all arose from the same event. In this sense, this is a single issue case which turns around the question of how a single injury was caused to N. At the time of the injury, N was 2 months old and immobile.
Background
3.
The injury with which the court is concerned is a broken right
clavicle.
Related
to the main injury N suffered, it is accepted at the same
time as the break she sustained bruising to her neck on the
right
hand side.
4.
There are usually two children living with the mother and the father: N,
who is the child of both of them; and M. The local authority contended that N
had sustained a broken clavicle as a result
of the care she was being given by
either the mother or her partner, whom I will
refer
to collectively as the
parents, and that the injury has been caused either by a deliberate act or an
act of negligent care.
5.
It is common ground that N was taken to Alder Hey Hospital on 21st
September 2017 by her mother presenting with a rash
on her
right
shoulder/neck. It is further common ground that what the mother presented as a
rash
was, in fact, lineal bruising. Upon initial X-
ray
it could not be
confirmed that N had a broken
right
clavicle. There was a shadow on the X-
ray
and a CT scan was commissioned which confirmed a non‑displaced fracture.
6.
The parents put forward two possible explanations. The first, which was
given at the time of admission, was that N was possibly injured when she was a
passenger in a car driven by her father which was involved in an emergency
stop. It was suggested that the break could have been caused by the child’s
restraining
strap on her child seatbelt, which was lacking its cushioning, on
her child seat. After
reflection
as to the date of the accident, the father
confirmed this occurred on 19th September. The treating
paediatrician, Dr. De Soysa, was quick to dismiss this as a cause of the
injury as the parents confirmed that N did not wake at the time of the accident
despite the inevitable pain she would have suffered.
7.
The parents gave a second suggestion as to the cause of the injury
following N’s admission. The first written record
of the second suggestion
having been given was at a meeting on Monday 25th September. I am
aware that had the mother given evidence, she would have said that she
attempted to bring her concerns to the attention of the hospital and
particularly Dr. De Soysa on the Saturday but was unable to do so because
it was not an emergency and she had to wait until the Monday. The second
suggestion was that N was injured on Thursday, 20th September in the
afternoon when her half-sister, M, tripped and fell on her. It was suggested
that M’s knee made contact with N’s clavicle, thus causing it to break. The
parents say that it was further suggested that M was carrying a plastic toy and
that that may have contributed to causation.
8.
It was said that the mother and the maternal grandmother were in the
room
and that the father was in an adjacent
room.
According to the parents, N
cried at the time, although she was being changed and was
ready
for a feed.
The mother and grandmother were in a state of stress as a
result
of being
pressed for time to attend a school event with M and the family had also had
the bailiffs call on them that day. Following the incident, N was left with
her father who was able to feed and comfort her.
9.
It was the local authority’s case that neither of the above theories
could be proved to sufficient standard to provide an acceptable explanation.
Any broken bone in an immobile child requires
an explanation and in default,
the cause must have been as a
result
of the care the parents gave to N, either
by way of negligence or deliberate harming.
10.
Dr. De Soysa, who was present at the meeting on the 25th,
discounted the theory of the fall as he was of the opinion that the delay in
reporting
the event gave
rise
to sufficient suspicion as to make the
explanation unlikely to be true. He advised the local authority that the
injury was not accidental. The local authority applied for a care order on 27th
September. Both children have been in the care of their maternal great
grandmother since then to the present day. The parents have had supervised
contact with the children.
Evidence
11.
Social worker, (SW1), was charged with investigating the matter on
behalf of the local authority. SW1 spoke with the mother on 22nd
September when she was given the seatbelt explanation. On 25th
September, the Monday, SW1 visited the parents’ home and met with the mother
and the maternal grandmother. At this meeting, she was given specific details
of the fall explanation. On 26th September, the following day, SW1
visited M at her school. Each of these meetings need further expansion but
before doing so, I must comment on the way the meetings were recorded.
12.
During her evidence SW1 referred
to her formal
recording
of the meetings
which was set out in case notes and notes prepared for the purpose of the local
authority section 47
report.
Both sets are very similar as there was clearly a
lot of copying and pasting from one to the other. Significantly, the formal
notes were largely made up on 9th October, some two weeks after the
meetings took place. When questioned by Miss Mallon about the potential
for these notes being inaccurate because of the delay, the social worker was
adamant that they were accurate as she
relied
on her memory, supported by her
handwritten notes taken at the time. The cross-examination was highly
relevant
as there was a material dispute as to what was said during the meeting on the
25th.
13.
The handwritten notes had not previously been disclosed by the local
authority and did not form part of the bundle. At the conclusion of SW1’s
evidence, the court asked her if the notes existed and if they could be
produced. It transpired the notes did exist and they were produced the
following day and circulated. The contemporaneous notes comprised seven pages
of handwritten material. It is difficult to overstate how unprofessionally
prepared these notes were. They were largely undated, they failed accurately
to recall
who was present, much of the handwriting is illegible, they were in
large part disjointed and had to be translated by SW1 who gave further evidence
but despite their unsatisfactory condition, the notes were illuminating.
14.
Until the notes appeared, no plan of the living room
of the family home
had been prepared. The notes, however, contained a sketch plan of the
room
with a faint line which the social worker confirmed denoted the path M was
taking when it was alleged that she had tripped falling on to N. The path is
clearly towards N’s head and
right
shoulder. It is entirely consistent with
the evidence given by the mother and the grandmother and suggests a graphic
explanation for how M could have placed her knee on N’s
right
shoulder causing
bruising to her neck but not to the
remainder
of her torso.
15.
The significance of this is twofold. Firstly, the fact that the mother
was denied this crucial contemporaneous recording
of what she said four days
after the event was to deny her the opportunity of supporting her version of
events with crucial evidence and left her to
rely
on her memory many weeks
after the event. Secondly, it deprived the experts of corroborative evidence
to explain how the neck could have been bruised but not the body.
16.
The handwritten notes contained a record
of SW1’s meeting with M. They
are as illegible and disjointed as the other notes but start with the words,
“Naughty step”. SW1 was unable to explain why these words appear and could
only speculate. The note contains a
record
of the child saying something and
then correcting herself and concludes with the words, “Said never
tripped/fell on to N/mat”.
17.
As a result
of this meeting, it is claimed there is formal
record
supporting the local authority’s case that M has denied falling on to N. This
has been taken up by the experts who have used this in support of their opinion
that the event did not happen. This is not a criticism of the experts as they
are entitled to assume M was interviewed in a professional manner.
Unfortunately, she was not. During the social worker’s evidence she said that
she had been ABE trained. If this is the case, I have grave
reservations
as to
the quality and effectiveness of that training.
18.
Following the social worker’s evidence the court heard from the maternal
grandmother, (MGM). MGM was an excellent witness who did her best to recollect
an event she had the misfortune to witness. MGM has mental health difficulties
exacerbated by these proceedings, she says, and her presentation to the court
is very much to be admired. She gave a clear account of the fall incident.
She described how M’s knee made contact first with N’s shoulder and then fell
forward towards the baby’s feet. This is entirely consistent with the plan
drawn by the social worker, although at the time of giving evidence this plan
was not available to MGM.
19.
She said that immediately upon the fall occurring, N, who was crying
anyway (she was hungry) had a different type of cry. There was mention of a
plastic toy. It was suggested that this might have caused the injury. I can
fully understand why the toy was mentioned but having seen the toy and
considered the impact a 4 years old knee would have had on an 8 weeks old
clavicle, common sense tells me that the toy is very much a red
herring in this
case. That said, the toy is a significant
red
herring because as a
result
of
the local authority having failed to prepare its case in a way that
demonstrates a clear sequence of events supported by contemporaneous notes, the
experts were left to consider a possibility which simply did not happen and
that is that M hit N with the plastic toy causing the clavicle to break.
Expert evidence
20.
The court then heard from three of the four experts who prepared reports
for this case. Dr. Johnson, a consultant paediatric
radiologist,
confirmed the injury was less than eleven days old at the time of the initial
X-
ray.
He was clear that the seatbelt would not have caused the injury. This
was based on the fact that in his extensive experience he has never come across
this before. This is, in my judgment, an entirely
reasonable
supposition to
make. He confirmed that the break could have been caused by the fall. He said
that it comes down to the strength and development of M and he would leave that
to others to decide. He
refused
to speculate on the body mass of a 4-year-old
child.
21.
The treating paediatrician, Dr. De Soysa, gave evidence. It was
unfortunate that the local authority had failed to provide copies of the other
experts’ evidence before he attended court and this put him in a difficult
position. The hearing was adjourned to allow the doctor to read
the other
evidence. Upon
resumption,
Dr. De Soysa confirmed his opinion that the
seatbelt definitely did not cause the injury and that it was unlikely the
injury was caused by the fall of M. The
reasoning
behind the opinion was his
understanding of the parents’ failure to notice that N had been seriously
injured during
routine
handling and their failure to give an account of the
fall being a possibility of such injury being caused until the meeting on the
25th September (at which he was present).
22.
Regarding
the criticism that the parents had failed to notice that N was
in pain, Dr. De Soysa would not alter his position, even when it was
pointed out to him that a nurse palpated N’s shoulder and the baby merely
appeared unsettled. Neither would the doctor accept that there was any
significance in the fact that upon arrival at hospital the break was not
diagnosed until the CT scan following an initial X-
ray.
I accept that there is
a difference between palpating and handling a baby but it seems to me that
where a child is not correctly diagnosed for many hours after arriving at
hospital, some latitude must be given to the parents and I am surprised
Dr. De Soysa could not do that.
23.
Dr De Soysa was told that the parents tried to report
the further
possibility over the weekend but the doctor failed to view that in a balanced
way, in my judgment. Of most significance, Dr. De Soysa said in evidence
that if the parents had initially given the explanation of the fall, he would
have accepted it as an explanation as to how the injury occurred. With that
established, it seems to me that it is a matter for the court to decide whether
the delay in the version being put forward by the parents is significant from
an evidential point of view.
24.
The last evidence was given by Dr. Elias-Jones, consultant
paediatrician, who has reported
within these proceedings. The doctor
remained
as dismissive of the seatbelt theory as he was in his
report
and this, of
course, was entirely echoed in the opinions of the other experts.
Regarding
the fall theory, there was significant shift in the position of Dr. Elias-Jones
during the hearing as to whether the fall could be a plausible mechanism for
the injury sustained. Until the hearing, Dr. Elias-Jones was adamant that
the clavicle could not have been broken in the manner suggested because if it
had, N would have suffered significant bruising across her torso. Indeed,
during his evidence he used his
right
hand to show the bruising would have
stretched across N’s left chest area.
25.
It became apparent that the doctor was assuming that M had fallen from N’s
left side and that her shin would have made contact with N’s left chest before
her knee made contact with her right
clavicle. It was put to him by
Mr. Wright that perhaps he had misunderstood the alleged mechanism of the
cause of the break. It was put that the first part of M’s body to make contact
with N was her
right
knee. There was a notable moment of
realisation
on the
part of the doctor that his opinion was not well-founded and
Dr. Elias-Jones accepted, in a manner which does him professional credit,
that:
“If she was falling in and hit her with her knee, you would not have had the bruising elsewhere.”
26.
Dr. Elias-Jones maintained that the parents should have reported
their concerns that N was in pain before they did but again seemed to be
unaware that the parents
reported
their concerns and their theory as soon as
Monday the 25th. Indeed, during the professional meeting he said:
“There was no attempt to take the child for any sort of
medical attention. That raises
your suspicions.”
While the doctor tried to pass
this off as a casual observation, it does, in my judgment, have to be regarded
as demonstrating an unfortunate lack of understanding of the mother’s case. In
my judgment, it is most unfortunate that the drawing the social worker made on
her visit to the parents’ house on 25th September was not made
available for Dr. Elias-Jones. Had it been, I am confident that the
doctor would not have
reached
the conclusion based upon a misunderstanding of
what the parents were saying had happened.
27.
On the third day of the five day hearing the local authority took stock
of the evidence and, quite rightly,
concluded that there was an unrealistic
prospect of establishing threshold and asked the court for permission to
withdraw its application. The court ordered the local authority to make its
application formally by way of C2, supported by a child-in-need care plan.
These have been filed and the children’s guardian has had the opportunity to
consider the way forward.
The Law
28.
The law so far as relevant
to this case is the burden of proof in
respect
of any fact it seeks to prove in support of the threshold
rests
squarely on the local authority,
Re
A (A Child) [2105] EWFC 11.
The standard of proof is a simple balance of probabilities,
Re
B
(Children) [2008] UKHL 35. When deciding how much weight to give evidence
obtained from children, the court will be slow to
rely
on any evidence which
has been obtained without full compliance of the guidelines set out in Achieving
Best Evidence in Criminal Proceedings: Guidance for vulnerable and intimidated
witnesses including children 2001. In
Re
E (A Child) [2016] EWCA Civ 473 Lord Justice McFarlane supports this in paragraph 37:
“The departures from the ABE guidance required
the judge to
engage with a thorough analysis of the process in order to evaluate whether any
of the allegations that the children made to the police could be
relied
upon.”
Analysis
29. My analysis is as follows. If N had been injured by her seatbelt, she would have woken up and cried. She did not. It is medically implausible that this event caused the injury and, in my judgment, it did not.
30.
There is unanimity between the experts who attended court that N could
have been injured in the way she was by M’s knee landing on her clavicle. I
accept the evidence of the mother and the grandmother that this event occurred
precisely as they say it did, that M was walking back to N who was lying on her
changing mat, that M tripped, that M’s knee was the first part of her body to
make contact with N and it did so directly on to her right
clavicle. The break
was caused by this mechanism. I am entirely satisfied that this was an
unfortunate accident and that neither parent was in any way
responsible
for its
occurrence.
31.
The local authority was right
to apply for leave to withdraw its application
but we now have a dreadful situation where both children have been separated
from their mother and in N’s case her father’s unsupervised care for over six
months. The parents have separated and it is unknown how much the stress of
these proceedings has contributed to that. M, who we are told cannot
understand why she has to live with her great grandmother, must now be told at
some point and in the most sensitive way possible that the
reason
was because
her parents had been accused of harming her sister when, in fact, the injury
was actually caused by M herself. There is a significant amount of work to do
to put this family back together again.
32.
The local authority has prepared a care plan and I am content that the
care plan meets the children’s needs. Having considered the children’s welfare
and in doing so having had regard
to the welfare checklist, I am satisfied that
it is in the best interests of both children for the proceedings to be
withdrawn and give leave accordingly.
Judicial comment on gathering, preserving and disclosing evidence
33.
I cannot leave this case without making comment on the manner in which
the local authority has conducted itself. I have three main areas of concern.
Firstly, the gathering and recording
of evidence by the social worker was, in
my view, wholly inappropriate. The local authority was investigating an
allegation of serious child abuse where it was thought possible that an
8-week-old baby had been seriously injured by one or other of the parents.
34.
In discharging its duties, the local authority could and should, in my
view, have kept proper notes in a professional way which would have served as a
coherent, contemporaneous record
and this did not happen. To compound the
problem, the notes were not made up into formal case notes until several weeks
after the event, leaving much
room
for error caused by the inadequate
contemporaneous notes and failing memory. If the local authority thought it
appropriate to obtain evidence from a 4-year-old child, and it clearly did, it
should have followed the ABE guidelines. Failure to do so
renders
any evidence
obtained from the child to be of no value.
35.
Secondly, I have concerns over the failure of the local authority to
present a full picture to the experts. If Dr. Elias-Jones had known the
explanation given by the parents days after the event in the manner that it was
given to the social worker, this would have changed his opinion. This is clear
because when he did understand it, his opinion changed but unfortunately this
was four and a half months after he filed his report.
Dr. De Soysa in his
report
dated 27th September, which will have been
read
by the other
experts,
reports:
“SW1 had interviewed M with regard
to this incident. SW1 informed
me that M had no
recollection
of this event.”
36.
There is reasonable
scepticism as to whether a 4-year-old should have
been interviewed at all. However, if she had been interviewed appropriately,
and by that I mean in accordance with the ABE guidelines, the outcome may have
been very different. It may be that she would have given an accurate account
of events which would have meant this whole case could have lasted days
rather
than six months. One can only speculate. In any event, to have given an
account of events of what M said was, in my judgment, irresponsible as the
experts could not be expected to question the basis upon which this information
had been obtained.
37.
My third and final area of concern is on the matter as to whether the
parents and the children have had the benefit of natural justice in this case
and thereby whether their Article 6 rights
have been breached by a local
authority which is, of course, an instrument of the State. These proceedings
are borne out of a serious allegation of child abuse which, if found, would have
had a profound effect upon the parents and the way they would be able to care
for their children in the future.
38.
I have already given my comment upon my interpretation of the local
authority’s duty of care on gathering evidence but I feel obliged to comment on
the local authority’s failure to disclose material evidence in advance of being
required to do so during the final hearing. It is clear that the content of
the social worker’s contemporaneous notes was material in securing the sea‑change
in the professional opinion of Dr. Elias-Jones. The parents should not be
expected to have to go on a search to obtain such important evidence which
supports their case.
39. The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity. It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating. For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings.
END