Coventry City Council v A
| Jurisdiction | England & Wales |
| Judge | Walker |
| Judgment Date | 18 April 2023 |
| Neutral Citation | [2023] EWFC 57 |
| Court | Family Court |
[2023] EWFC 57
HHJ Walker
IN THE FAMILY COURT SITTING IN COVENTRY
In THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF B
Miss Sparrow (instructed by Coventry City Council) for the Applicant
Mr Kingerley KC and Miss Eveleigh-Winstone (instructed by Askews LLP) for the First Respondent
Mr Nuvoloni KC and Miss Gallacher (instructed by Alsters Kelley Solicitors) for the Second Respondent
Miss Mettam (instructed by Jackson West) for the Third Respondent
Hearing dates: 22 nd, 24 th, 28 th, 29 th March, 3 rd, 4 th, 5 th, 18 th April 2023
For the purpose of this judgment, I will refer to the child as B, her mother as A and her father as C. B was born on the 6 th May 2022. These are care proceedings brought by the local authority and I am charged with the task of determining whether the threshold criteria for the making of public law orders is satisfied, as pleaded by the local authority in a document dated the 1 st March 2023. B is represented in these proceedings through her Children's Guardian, Sian Harrison.
The parents met in July 2021, after A had arrived in this country from India in the April of that year. C had been married before to a woman called TT, and they had had a child together, ST. C has not had contact with ST since he separated from TT. The relationship between the parents progressed quickly, and they entered into an Islamic marriage in October.
B was born at 36+5 weeks by caesarean section and was kept in the neonatal intensive care unit for a period of three days. She and her mother were discharged home on the 9 th May 2022. During the first weeks of her life, there were on-going concerns about her failure to put on weight. On the 20 th May 2022, she was taken to A&E and advice was given. In fact, it took B until 22 nd June 2022 to return to her birth weight.
Just after midnight on the 1 st July 2022, the mother presented B to UHCW with a bruise to her right jaw. B was admitted, and subsequent investigations revealed ‘multiple rib fractures of different ages’. The parents were arrested and interviewed, and that investigation is on-going. These proceedings began and B has been in the care of the authority since the 4 th July. She is placed in a foster placement. Contact has been disrupted as a result of this hearing, which has been very hard for both parents, particularly the mother.
The findings sought by the local authority in relation to those injuries are set out under the heading of ‘physical harm’ within the threshold document. It is asserted that B presented with the following injuries—
(1) On or before the 30 th June, B sustained a bruise to her right jaw measuring 1.5cm x 0.5cm
(2) A non-displaced but complete fracture of the left 4 th rib towards the side in the region of her left armpit, which was between 2 weeks and 4 weeks old at the time of admission.
(3) Non-displaced fractures of the left 5 th and 6 th rib at the interface between the bone and cartilage at the front of the rib cage, which were up to two weeks old at the time of admission.
The local authority contends that all those injuries were inflicted by either the mother or the father. Findings are also sought in relation to the father's poor handling of B as seen in various videos obtained from the mobile 'phone analysis. It is also asserted that the parents failed to take advice in relation to safe sleeping and that they failed to adhere to feeding advice leading to B's failure to thrive.
The mother and the father remain in a relationship, and they deny that either of them has ever harmed their child. The existence of the injuries is accepted, but both parents believe that there is an underlying cause for B's presentation. Neither of them accepts that there was poor handling of B (save for that observed in one video, a topic which I will return to in due course). They do not accept that they failed to take advice.
The Law
The starting point is, of course, s.31 Children Act 1989 (‘CA’) which sets the ‘threshold’:
(1) On the application of any local authority, the court may make an order— (a) placing the child with respect to whom the application is made in the care of a local authority; or (b) putting him under the supervision of [one]…
(2) A court may only make a care order or supervision order if it is satisfied—
(a) the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him…
(9)….“harm” means ill-treatment or the impairment of health or development including, impairment suffered from seeing or hearing the ill-treatment of another; “development” means physical, intellectual, emotional, social or behavioural development; “health” means physical or mental health; and “ill-treatment” includes sexual abuse and…ill-treatment which [is] not physical…”.
In respect of the task of determining whether the ‘facts’ have been proven the following points must be borne in mind as referred to in the guidance given by Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam).
The burden of proof is on the local authority. It is for the local authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof.
The standard to which the local authority must satisfy the court is the simple balance of probabilities. There is no room for a finding by the court that something might have happened.
Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and the court should have regard to all of the evidence.
The opinions of medical experts need to be considered in the context of all of the other evidence. The roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.
The evidence of the parents 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 ( Re W and Another (Non-Accidental Injury) [2003] FCR 346).
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 at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything ( R v Lucas [1981] QB 720). In Re A, B and C [2021] EWCA Civ 451, at §55, Macur LJ advised the use by Family Court of this ‘Crown Court Compendium’ guidance:
“1. A defendant's lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D's guilt.
2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure these criteria are satisfied can D's lie be used as some support for the prosecution case, but the lie itself cannot prove guilt.
. The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or the scientific research would throw a light into corners that are at present dark. Particularly, recent case law has emphasised the importance of taking into account the possibility of an unknown cause. The possibility was articulated by Moses J in R v Henderson-Butler and Oyediran [2010] EWCA Crim 126 when he said,
“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. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”
In B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, Jackson LJ clarified the test for identifying the pool of perpetrators. Jackson LJ set his analysis at paragraphs 46 to 49 as follows:
“ Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only ‘unknown’ is which of a number of persons is responsible. So, to state the...
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