M v X Borough Council

Hearing date: 21 November 2019

Approved Judgment

This judgment was delivered in public but it is ordered that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment shall be identified by name or location and that in particular the anonymity of the child and members of her family must be strictly preserved .

This is an appeal by a mother against the decision of HH Judge Baker on 25 May 2019 in care proceedings concerning her daughter, hereafter referred to as D, that she had suffered an abusive anal injury inflicted by an unidentified male and that her mother knows both who the individual is and that he was responsible for the injury.

At an earlier hearing in July 2018, the judge had found that the threshold criteria in s.31 of the Children Act 1989 were satisfied and made a care order approving the local authority's plan that D be placed in long-term foster care. On that occasion, the judge made a number of findings about the mother's care of D, including that through a succession of relationships with violent men she had exposed D to a risk of physical and emotional harm. So far as the anal injury was concerned, the judge found at the first hearing that it had been perpetrated by the mother's partner, hereafter referred to as Y. Subsequently, Y obtained further evidence and successfully applied to the judge for a rehearing of the allegation that he had inflicted the injury. It was at the conclusion of this further hearing that the judge made the finding against which the mother now appeals.

Background

D's parents started a relationship in 2013. The father had extensive convictions for violent behaviour and during the relationship was physically abusive to the mother. D was born in November 2014. Following an attack on the mother in 2015, the father was convicted of an offence of wounding and received a 16-month sentence of imprisonment. In January 2017, the father violently attacked the mother again, on this occasion in front of D. As a result of this assault, the mother sustained injuries to her abdomen and a laceration to her liver. Under the father's influence, however, she initially told medical staff that her injuries had been suffered in a road traffic accident. Subsequently the father admitted the assault and was again convicted and imprisoned.

Following this incident, the mother and D moved away to a different area, and the mother had a brief relationship with another man, S, who also had convictions for offences of violence. That relationship ended when S was sent to prison, and the mother and D returned to their home area. In October 2017, the mother started a relationship with another man, Y. He also had convictions for offences of violence, although there have been no allegations that he has been violent towards the mother. The mother and Y did not live together, but Y was a frequent visitor. It was later alleged that on occasions they had sexual intercourse in D's presence.

On Monday 22 January 2018, D, then aged three years two months, started attending a new nursery. On the first day, she was taken to the nursery by her mother and Y. Four days later, on Friday 26 January, D attended the nursery for the second time. On that occasion, she was taken to the nursery by her mother alone. It was the evidence of her mother and Y that Y had not been present at the mother's home on the Thursday night and Friday morning. During the morning on 26 January, a conversation took place between D and L, a member of the nursery staff. L subsequently made the following note of the conversation:

“D came out of the toilet and came over to me. D said … my bum's sore. I asked does she need it wiping. D started to get upset and said I can't tell you the man will kill me. D put her hand on her face and said I can't tell you. I asked why her bum was sore D's said the man did it, it was bleeding he killed me because it had blood in it so he killed me. I told D it was okay she said it's better now the lady made it better and walked away. At that point I walked straight to the office and reported it to [the manager].”

Another record of the conversation, on a form held by the Multi-Agency Safeguarding Hub (“MASH”), reads as follows:

“D disclosed to staff that she had a stomach ache all day. Staff prompted to go to the toilet. 16.10 pm – D came out of the toilet and said she had a sore bum. Staff have asked her whether she has wiped properly and whether she needed some help. D said; ‘It was the man. He made my bum sore and he made it bleed. If I tell you he will kill me.’ D would not let staff look at her bottom and said she was fine. Staff advised that D has only been out of nappies one week and moved to [the local town] two weeks ago. On only second session at [the nursery]. Spoke with staff member L who advised mum's details. Staff member L advised mum did bring D to nursery today with a male who she advised was Y.”

It was later established that this record was incorrect in at least two respects. First, there was no record at the nursery of any staff member asking to look at D's bottom. Secondly, Y had not accompanied the mother and D to the nursery on 26 January, although he had done so on D's first day earlier in the week. It is now accepted by all parties that there is no evidence that the mother was accompanied by a man when she brought D to the nursery that morning.

Later that afternoon, D was seen at the nursery by a social worker and two police officers. A typed record of the conversation was prepared by one of the police officers. He recorded that D had been initially shy but quickly became chatty, speaking to the social worker about a toy baby she was holding. In the note, the officer commented that D seemed to be avoiding the social worker's questioning by talking about the baby. The record continued:

“Is your bum sore? D shook her head to say no.

Remember what happened? ‘It's better’ at this point she pointed to her hip and said ‘here’.

What made it sore? ‘It's better’ ‘the man did it and kill me’

Which man? ‘The police man and they took me away and I was crying and mummy was crying.’

As further questions were asked, D again ignored them and talked about the baby.

D had not been told that I was a police officer.

What happened to your bum? It's better

When happened? It's better

Is it bleeding? No

D then went off topic again saying ‘the man killed me this morning … he took my orange juice away’

Where? ‘My mum's house and on my skateboard. This morning’

Who's the man? ‘the police man’ (of note D had not been told that I was a policeman)

What's his name? ‘Just the police man’

Describe the man? ‘Big man, green face, took my gloves off and took my top off and took my baby away’

Are you sore now? D shook her head

Is it bleeding? Again she shook her head

Told mum? No the man killed me

D then made the following unprompted comments ‘I went to the shop with Y and the man kicked me’

Which man? The green man then the blue man

D then showed us her hand and said it was scratched, she was asked how she got scratched and she said ‘because the man killed me.’”

In the first judgment, the judge observed that “it's fair to say, at the very least, that she does not relate anything that could be safely interpreted as a repeat of what L [the nursery worker] had reported.”

In the light of this conversation, and D's age, it was decided that she should not undergo a recorded interview under the Achieving Best Evidence procedure.

The following day, D underwent a medical examination conducted by Dr Eleanor Thornton, forensic physician and general practitioner. She found an anal laceration at the 5 o'clock position, with no signs of healing. Genital examination was normal. There was a minor abrasion of the left wrist and bruises on the left thigh and the right shin which the doctor concluded could be attributable to everyday activities. In her report, Dr Thornton made the following observations about the anal injury:

“Lacerations may show signs of recent injury, such as moist or dry blood, or signs of healing such as scabs or granulation tissue. Anal lacerations can be caused by penetration of the anus, or by passage to the anus of a hard, constipated stool …. Other causes of anal lacerations, such as constipation with the passage of hard constipated stools, bowel and skin disorders, should always be considered. In the context of an alleged anal assault, with no other causative factors, the presence of an anal laceration provides strong corroborative evidence …. D's mother gave no history of constipation, or any bowel or skin disease. I consider the presence of the anal laceration to be strongly supportive of recent anal trauma such as anal penetration.”

On 1 February 2018, five days after the medical examination, D was spoken to at home by the social worker who had seen her at the nursery, on this occasion with another social work colleague. In a...