A Council v H
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Judd |
| Judgment Date | 29 March 2023 |
| Neutral Citation | [2023] EWFC 47 |
| Court | Family Court |
| Year | 2023 |
and
and
and
[2023] EWFC 47
Mrs Justice Judd
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Philimore (instructed by the Council) for the Applicant
John Vater KC and Jonathan Wilkinson (instructed by Pardoes) for the 1 st Respondent
Galina Labworth (instructed by The Family Law Company) for the 2 nd Respondent
Gemma Chapman and Nichola Bayliss (instructed by KSFLP) for the 3 rd Respondent
Aidan Vine KC and Ryan Morgan (instructed by Daniells Family Law Company) for the 4 th and 5 th Respondent
Hearing dates: 27 th March 2023
Approved Judgment
This judgment was given at 10.30am on 29 th March 2023 and later circulated to the parties or their representatives by e-mail.
This judgment was delivered in private.
Introduction
These are care proceedings relating to two children, a baby (S) who is eight months old and an older child (B) who is five. The baby is the child of the first and second respondents who I will call the mother and father for the purposes of this judgment which relates to the threshold only, following a short fact-finding hearing. B has a different father, Mr B.
Background
The background to this case is a very sad one. In October 2020 S's older brother, O, aged just five weeks, died in the night from unknown causes, otherwise known as a Sudden Unexplained Death in Infancy (SUDI). There is a possibility of overlaying, but this would not be anything other than a tragic accident.
A post mortem examination revealed that O had metaphyseal fractures to the medial and lateral aspect of the left distal tibia. At first it was thought that these could have been caused either post mortem or during the delivery. There was an investigation which concluded that, subject to the results of the forensic post mortem, there were no suspicious circumstances surrounding O's death.
The full results of the post mortem took a very long time to be obtained (this is undoubtedly the result of a shortage of experts which has been the subject of comment by other judges including the President of the Family Division). No cause of death was found, but Professor Mangham, Consultant Osteoarticular Pathologist confirmed the presence of the metaphyseal fractures. He dated them, however, as having occurred between 2 and 5 days before O died which meant that they could not have occurred during the birth or after he had died. This meant that they occurred in the care of the parents (or one of them).
Once the dating of the fractures was identified the parents were interviewed by the police. This was in March 2022, eighteen months after O had died. As a consequence these proceedings were commenced at S's birth.
The proceedings
Proceedings would not have been brought in this case were it not for the dating of the fractures as identified by Professor Mangham. At first the local authority and Guardian considered whether the proceedings should include an investigation as to whether O's death had been caused by one other of his parents. After careful assessment of the post mortem, the outcome of the hospital investigation and other evidence they concluded that it should not, a stance approved by the court.
Dr. Rylance, Consultant Paediatrician was appointed to provide a report as to the aetiology and mechanism of the fractures, and O's likely response. The parents have filed statements.
The local authority schedule of findings sought
The local authority seeks findings that O suffered the fractures as found by Professor Mangham, and that they were caused by the use of force considerably in excess of normal handling. It is alleged that this would have been recognised as being unreasonable by a carer, and as highly likely to cause distress and injury to a baby.
The parents are the only possible perpetrators and the local authority does not suggest it is possible to identify either of them as the perpetrator on the balance of probabilities. It does not seek findings (nor would such be justified on the evidence) that there has been any failure to protect by the non-perpetrator or any failure to seek medical attention for O.
The local authority's case is that it would intend to work with the family whatever the outcome of this exercise, and to start to stand down the level of supervision of this family. Currently there are social workers in the family home supervising the care of B and S 24 hours a day.
The parents
Both parents deny using excessive force in their care of O, or apart from one incident recounted by the mother, of being aware of any incident in which this could have happened. In her written evidence the mother recalled an incident when she put O into his chair swing and, as she described it, his leg ‘caught the metal bar’ and his leg flopped under him. She said that he cried after this but was soothed quickly.
The Guardian
The Guardian adopted a neutral stance. There was some criticism of the approach she had taken during these proceedings, criticism I do not share. The guardian's job is different to that of the social workers and for my part I think it important that the Guardian scrutinises the way in which the local authority frames the case, as well as having an independent oversight of welfare matters.
The law
I will not set out the law in detail in this short judgment. The burden of proof is on the local authority. The standard of proof is the balance of probabilities. I must have regard to the relevance of each piece of the evidence to the other evidence and to exercise an overview of the totality of what I have heard and read in order to come to a conclusion as to whether the case has been made out. The role of the court and the expert are distinct, and I must weigh up the expert evidence together with everything else. I must guard against a belief that it is always possible to identify the cause of an injury to a child. Some things remain unknown.
When seeking to identify a perpetrator of a non-accidental injury I must consider the list of people who could be responsible and determine if it is possible to identify an individual on the balance of probabilities. If it is not, then I must ask myself whether there is a likelihood or real possibility of each of those individuals having been the perpetrator.
I take all these propositions from well-known case law, the core principles which were summarised in Re JS [2012] EWHC 1370 (Fam) and in subsequent cases such as Re A (Pool of Perpetrators) [2022] EWCA Civ 1348, and Re A(A Child) [2020] EWCA Civ 1230, There is extensive case law too as to the approach that judges should take to lies told by witnesses and/or of changing accounts. These have not been a feature of this case, nor has the issue of failure to protect.
A likelihood of significant harm does not mean that such is more likely than not but a real possibility that cannot sensibly be ignored; Re B (Children)(Care Proceedings: Standard of Proof)(CAFCASS intervening); [2008] UKHL 35. The assessment of likelihood must be based on fact, proven on the balance of probability.
The hearing
I read all the statements, reports and other documents in the main bundles provided to me. I was also provided with extensive notes from Purple Elephant, the agency which provided the 24 hour supervision of the family for the last six months. I have not read those notes save as directed by the parties.
I heard oral evidence from Dr. Rylance, the mother and the father.
The medical evidence
Professor Mangham identified metaphyseal fractures of the distal left tibia. Although there are two fractures identified, one which is medial and one lateral, they would have been caused at the same time and can be considered as one. They were sustained no less than 2 days and no more than about 5 before O died.
There is no evidence that O suffered from any medical condition that would have predisposed him to suffering fractures. According to Dr. Rylance only rare genetic causes, each of which could possibly have become apparent if O had lived longer and could not be excluded by the comprehensive investigation already undertaken remain as remote possibilities.
Dr. Rylance stated that metaphyseal fractures of long bones in children of O's age do not occur in normal handling. Nor, in his view, do they occur with rough handling when that description applies to a carer who is appropriately concerned about the wellbeing of a baby. Evidence of this, he says is available by way of exclusion in that such fractures do not tend to be discovered incidentally in routine x rays of children who are screened for reasons other than suspected injury.
Fractures do not seem to occur when doctors handle children confidently (sometimes interpreted by parents as more robust than they would be themselves), or when children get their legs or arms stuck through furniture such as cot bars.
The mechanism for these sorts of fractures is a pull combined with a twist or torsion. Dr. Rylance said that a sudden jerking movement has been described to him by two perpetrators. He said that the perpetrator would be aware that the force they had used would be excessive, but not that they had caused a fracture.
The child is likely to cry but the duration cannot be predicted. A non perpetrator would likely not have realised that anything had happened because babies behave as usual after such fractures – a baby of this age would cry so frequently anyway anything amiss would not necessarily be noticed.
The mother
The...
To continue reading
Request your trial