Re M (A Child) (Fact-Finding Hearing: Burden of Proof)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Lawrence Collins,Lord Justice Goldring,Lord Justice Wall |
| Judgment Date | 19 November 2008 |
| Neutral Citation | [2008] EWCA Civ 1261,[2008] EWCA Civ 1547 |
| Docket Number | Case No: B4/2008/2079(Z)/PTAP,Case No: B4/2008/0309 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2008 |
[2008] EWCA Civ 1261
The President of the Family Division
Lady Justice Arden and
Lord Justice Wall
Case No: B4/2008/2079(Z)/PTAP
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HER HONOUR SANDRA ANDREW IN THE CANTERBURY COUNTY COURT
Richard Clough (instructed by Messrs. Rootes & Alliott - Solicitors) for the Appellant
Brian Jubb (instructed by Messrs Rixon - Solicitors) for the Respondent
Graham Crosthwaite (instructed by Kent County Council) for the Local Authority
Hearing date: 22nd October 2008
Lord Justice WallIntroduction
This appeal, in which the mother of the child concerned challenges findings of fact made by the judge, arises out of pending care proceedings under Part IV of the Children Act 1989 (the Act) being conducted by Her Honour Sandra Andrew in the Canterbury County Court. The judge has concluded what has commonly become known as the first limb of a split hearing: that is to say a hearing in which she was invited by the applicant in the proceedings, Kent County Council (the local authority), to make findings of fact which, on the local authority's case, would be sufficient to satisfy the so-called threshold criteria under section 31 of the Act and thus enable the case to proceed to a welfare (or, more unattractively, a “disposal”) hearing at which the court would decide what (if any) order to make in relation to the child concerned.
In the instant case, we are concerned with a female child whom I will only identify by the initials LM. LM was born on 15 November 2007 and was thus 8 months old when the judge conducted the hearing on 15 and 17 July 2008. LM is currently living with foster parents, with whom she was placed on 1 February 2008. The parents, who are married to each other and living together, have an older child, a boy, AM, who is currently living with them albeit that he is the subject of a supervision order in favour of the local authority.
The appellant is LM's mother, although, as I shall relate, her father has filed a respondent's notice in which he seeks exoneration from an apparent finding by the judge that he was a perpetrator of LM's injuries. There is also a respondent's notice from the local authority supporting the judge's reasoning.
Having heard evidence on 15 and 17 July 2008, the judge handed down a reserved judgment which is not dated but which we were told was made available to counsel prior to its being perfected on 30 July 2008. On that date, the judge made a number of orders, and refused permission to appeal against her findings of fact.
The judge found that LM had suffered two distinct sets of injuries. The first set had come to light following the child's admission to hospital on 10 December 2007, at the age of under 4 weeks. The second emerged following a further admission to hospital on 20 January 2008, at the age of approximately two months.
We have in this appeal concentrated on the second group of injuries. The reason for this is that there is no appeal against the judge's findings in relation to the first group. In summary, these involved metaphyseal fractures of both of LM's lower limbs. The judge found that these injuries were non-accidental and had been caused by LM's mother. Although the judge's language is not altogether felicitous, her conclusions are, I think, clear enough:—
I find that on balance of probability these injuries occurred between the 4 th and 14 th December, most probably on 10 th December, were by their very nature non-accidental, and occurred whilst the child was in the care of her mother. If it were to be argued that there is no positive identification of the mother as perpetrator, I have no hesitation in finding that there is a real likelihood or real possibility that the mother was the perpetrator of the inflicted injuries resulting in (LM's) admission to hospital on 10 th December 2007.
For the avoidance of doubt, I find that there is no evidence to persuade me that either the dog, or (AM) could have caused such injuries to (LM), nor is there any evidence to implicate the short term baby sitters or (the maternal grandmother). I believe that (the mother) does know what caused the injuries to LM but is too afraid to reveal it. I regret that I do not believe that I have heard the truth from her concerning these injuries. The only evidence there is that the baby had not moved her leg for 24 hours, comes from her, there is no evidence as to that from (the father), and I do not accept that.
Speaking for myself, it is not clear to me why the judge did not say: “I find as a fact that mother was the perpetrator of the inflicted injuries resulting in (LM's) admission to hospital on 10 th December 2007” in the second sentence of the first paragraph of this citation, particularly given that she had in the first sentence made findings as to time, non-accidental injury and perpetration. However, no point is taken by the mother in relation to these injuries and, in my judgment, wisely so. There was clear and unequivocal medical evidence to support the judge's findings, and she was plainly entitled on the evidence to reach the conclusions she did.
The second set of injuries
The mother's appeal relates to the manner in which the judge dealt with the second set of injuries suffered by the child. It will, therefore be necessary to examine several passages from the judgment.
The judge sets the scene in relation to what she describers as “Issue 2” on page 14 of her judgment:
On 21 January 2008 LM was admitted to (A&E) and found to have the following injuries: -
(1) a small bruise to the right side of the soft palate;
(2) a 4 cm x 4 cm swelling over the right fronto-temporal region (just above the front of the ear on the body map) with a depression within the selling;
(3) a 3 cm x 1 cm eurythemateous [i.e. symmetrical] and bluish bruise on the left cheek;
(4) a 1 cm x 0.5cm brownish bruise of the left side of the abdomen 2cm below the costal margin.
A skeletal survey conducted on 21 st January reported by Dr P stated “There is a large right parietal fracture extending from the coronal and lamboid sutures”. (there follows the evidence on the leg injuries). Review of the CT scan 20.01.08 —“there is a right parietal fracture with a large separated bone fragment. In view of these two separate recent injuries (i.e. head and legs), non-accidental injury is suspected”.
The case of both parents was that all the injuries described were innocent, and that LM had fractured her skull in an accident on 20 January 2008 when the mother's knees gave way whilst she was holding the child. As a result, the mother dropped LM, whose head came into forcible contact with a door and, possibly, a brass door handle. There is no dispute that the mother suffers from a long standing and well documented instability of her knees, which derives from a sporting injury. Furthermore, and unlike the metaphyseal fractures to LM's lower limbs, the mother's explanation for LM's fractured skull was accepted by a number of the medical experts. It was, however, rejected by the judge.
It should perhaps be said that the judge had the advantage of written evidence from a number of medical experts comprising two consultant paediatricians and two consultant paediatric radiologists, although only one of the experts, a consultant paediatrician, gave oral evidence —by telephone link. The judge also had reports from the mother's consultant shoulder and orthopaedic surgeon.
In argument, we looked in particular at the following paragraphs of the judge's judgment:—
The evidence of Drs C [one of the paediatricians], C [one of the radiologists] and H [another radiologist] is that the parents' explanation for the injuries sustained to LM and presented at the hospital on 20 th January 2008 is plausible. Plausible it may be, but I have to consider the totality of the evidence. Dr T [another paediatrician] was not convinced. Whilst I accept that there was a fall by mother whilst holding LM, Icannot find on balance of probability, that that fall necessarily caused all the injuries apparent at the hospital on 20th January. (emphasis supplied).
The reported inconsistencies in the parents' evidence coupled with Dr C's [the paediatrician] evidence as to the ability of medical staff to miss a swelling to the skull, persuade me that I cannot dismiss as an inherent probability, that the skull fracture occurred at a different time within 7 days of 20 th January 2008 to the injuries to the left side of LM's face, and that (the father) did not notice any swelling, particularly as LM has a lot of hair. He was not her primary carer, and not pro-active in supporting the mother.
In my judgment the injury to the left side of the face and the graze to her left cheek is more likely to be consistent with mother's description and demonstration in the witness box, of the position of LM in her arms prior to the alleged fall, than her evidence that both sides of the head were injured at the same time.
I bear in mind Dr C's evidence of the likely consequences of a domestic fall from 80–100 cms are far less serious than the fracture recorded here and that none of the doctors were in that court to see a mother to give her a demonstration or her evidence of the mechanism of the fall, which in my view were far from convincing. In particular Dr. C was dealing with the evidence by telephone and trying to visualise mother's description of her movements as described to him by counsel. He was clearly struggling to account for...
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