Re P (Findings of Fact)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Sir Stanley Burnton,Pitchford LJ |
| Judgment Date | 06 February 2014 |
| Neutral Citation | [2014] EWCA Civ 89 |
| Date | 06 February 2014 |
| Docket Number | Case No: B4/2013/2153 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 89
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TELFORD DISTRICT REGISTRY
RECORDER JUDD QC (SITTING AS DEPUTY HIGH COURT JUDGE)
SY11P0061
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Lady Justice Black
and
Sir Stanley Burnton
Case No: B4/2013/2153
Miss Samantha King (instructed by Freemans Solicitors) for the Appellant
Miss Victoria Clifford (instructed by Hatchers) for the 1 st Respondent
Mr Lee Arnot (instructed by Rodney King & Partners) for the 2 nd Respondent
On 28 June 2013, at the conclusion of a fact finding hearing in proceedings concerning K (a little girl who was born on 21 October 2009), Ms Recorder Judd QC made findings adverse to the appellant. He now appeals against those findings.
The focus of the fact finding hearing was the events of 30 April 2011. On that day, K had a fit in her cot at home. She was apparently found by the appellant who summoned an ambulance. The ambulance crew noted a red mark (or marks) on the side of K's head and M confirmed the presence of this but there is no note of it having been seen at hospital and no other relevant external marks were found by the doctors. K was discharged the same day but was unwell over the following days, being drowsy and having repeated bouts of vomiting. Eventually investigations were carried out in hospital. An MRI scan which was performed on 17 May 2011 revealed that K had bilateral subdural collections and prominent subarachnoid spaces over both cerebral hemispheres. A small retinal haemorrhage was seen on examination by a consultant ophthalmologist on 20 May 2011; a trainee who had examined K on 18 May 2011 also thought he or she detected some small retinal haemorrhages.
The judge found that K had suffered a non-accidental injury at some point in the later part of the day on 30 April 2011, caused by the appellant. She was invited to make a finding that there had been another non-accidental injury to K which had caused subdural bleeding which resulted in the subdural collections seen on the 17 May 2011 MRI scan, but she declined to do so.
An unusual feature of this case was that the local authority had not brought the proceedings, nor were they a party to them. The proceedings were private law proceedings, brought by K's father (F) against K's mother (M), in which each parent sought residence of K and her older brother, R. The children were parties to the proceedings with a guardian appointed for them under Rule 16.4 of the Family Proceedings Rules 2010 and it was the guardian's representatives who drew up the schedule of findings that the court was invited to make. During the course of the proceedings, the appellant was joined as an intervenor. He did not have the advantage of legal representation at any time during the first instance proceedings and therefore appeared in person, although all other parties were represented. Fortunately, by the time of the appeal hearing before us, he was ably represented by counsel. M and F also appeared by counsel. A skeleton argument for the appeal was filed on behalf of the guardian but, quite properly, the guardian was not represented before us.
Context
For the most part, this judgment will revolve around what happened on and in connection with 30 April but some wider context is required.
M and F were married in 2005 and eventually separated, acrimoniously, at the beginning of 2011. The children remained living with M.
In about February 2011, M met the appellant through the internet. By the end of March 2011, they were in a relationship and he had started to stay at her house on occasions. He was himself going through a difficult divorce and there were problems over his contact with his three children by his marriage. His criminal record shows that he was convicted of harassment of his wife on a number of occasions in 2011 and 2012 and that in August 2011 he was imprisoned because of this.
The appellant stayed overnight with M and the children on the night of 29/30 April 2011 and they went on an outing together during the day on 30 April. It was in the early evening, following their return home, that K had the fit.
The relationship between M and the appellant continued for some time after the events of April and May 2011 and M gave birth to the appellant's child, Z, in April 2012. The relationship is now over, however. We heard little of Z during the appeal. It appears that he is being cared for by M but is not seeing the appellant. The other two children are living with F and M's contact with them is supervised because of the findings made by Ms Recorder Judd QC. As far as M was concerned, the judge found that she had failed to act in a protective manner towards K and R, resolutely refusing to contemplate the possibility that the appellant had injured K (§70) and joining with him "in trying to minimise and mislead others as to the time he was alone with the children on 30 April" (§71).
M's position in relation to the appeal
M has not sought to appeal against the judge's findings herself. She accepted that if the findings against the appellant were upheld, she could not challenge the finding that she failed to protect the children. However, she supported the appellant's appeal, arguing that the finding that K had suffered a non-accidental injury on 30 April 2011 was unsafe and that, on the balance of probabilities, K's presentation between 30 April and 20 May 2011 is unexplained.
The evidence in the case: general
The evidence in the case comprised a significant body of medical evidence plus other more general evidence, including evidence about, and from, the appellant and M.
The medical evidence
In terms of medical evidence, the court had written and oral expert evidence from Mr Richards (a consultant paediatric neurosurgeon), Dr Anslow (a consultant neuroradiologist) and Mr Elston (a consultant ophthalmic surgeon). Material was available from Dr Hinde (a consultant paediatrician) but he did not attend court. In addition, the papers included material from the various doctors who treated K in April and May 2011.
The evidence was that subdural collections such as those seen on the first MRI scan can result from disease but can also follow from acute subdural haemorrhages. It was established that when these subdural collections were first seen on 17 May 2011, they were already weeks, if not months, old. The judge proceeded on the basis that, whatever their cause, they predated 30 April and had not resulted from an event on that date. She found that the probable cause was trauma but she did not find that this was non-accidental. She accepted that the trauma could have happened, for example, when K accidentally fell down the stairs in 2010. No criticism was made of the judge in relation to any of this.
The judge accepted that there was at least one retinal haemorrhage in K's eye as seen on 20 May 2011. Mr Elston dealt with the issue of causation and the judge summarised his evidence at §§32 and 33 of the judgment, upon which I draw for the balance of this paragraph. Mr Elston's view had evolved as the medical picture became clearer as a result of the various doctors giving the case detailed consideration and discussing it. His oral evidence was that the haemorrhage was consistent with a traumatic event on 30 April but that he did not exclude other, unknown causes. He noted that K was not a "normal" child because she had subdural collections at that time and it was possible for those to have caused a rise in intra-cranial pressure which could have led to retinal haemorrhages or for there to have been abnormal dynamics in the brain which could have had an effect on the circulation within the eye. He also noted that any traumatic event on 30 April had not apparently caused any fresh subdural bleeding even though it is known that bleeding into a chronic subdural can occur with minimal trauma.
The doctors' evidence was that the fit could have had a number of causes. As summarised by the judge at §34, they said that it would be consistent with a traumatic episode which also caused the retinal haemorrhage(s) but it could have been caused by something else. The judge recorded that Dr Hinde "did state that it would be relatively unusual for a child of this age to suffer an afebrile fit for the first time" but she went on to say:
"That a fit in a child such as this is not a specific symptom in itself is clear from what happened at the hospital that night. K was examined, a history was taken and she was discharged."
It seems likely that the judge was here taking account of Mr Richard's view (see the minutes of the experts' meeting at C111) that from a neurosurgical perspective a fit is non-specific and does not in itself indicate a second event.
The judge reviewed all of the medical evidence together and said that, "as Mr Richards observed, this case does not fit into an easy pattern". She particularly commented that in relation to the events of 30 April, "it is surprising that an episode of trauma sufficient to cause retinal haemorrhaging did not cause subdural bleeding given the pre-existing subdural collections" (§35). She noted Mr Richards' evidence that he thought it unlikely that a fall down the stairs on that day would have left no signs of recent subdural bleeding, but observed that on the other hand ordinary day to day knocks had not led to bleeding into the subdural collections in the weeks before the end of April 2011. She reached the view (§37) that:
"if there was an episode of trauma on 30 April, the medical evidence does not...
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