RSS Feed

Category Archives: assessment of risk

A happy(ish) ending to a sad story

On 1st January 2014, a little boy was rushed to hospital. He was seven months old at the time and had stopped breathing. The hospital examined him and found that he had bleeding inside his brain (what is called a subdural haematoma) and bleeding in his eyes (what are called retinal haemorrhages).  Those things are commonly associated with a child having been shaken.  Older readers may recall the trial of Louise Woodward, an English girl acting as a nanny in America, who was on trial for murder as a result of a baby who died with those presentations.

The hospital at the time made a diagnosis that the boy had suffered injuries to the brain as a result of having been shaken. The Local Authority issued care proceedings (very quickly) and the Court went on to hear the evidence and make the decision.

 

Re N (a minor) 2014

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/54.html

The issue in the case was quite simple  (although the evidence involved in proving it is very complex)

1. Did this child stop breathing and mother then shook him (too hard) in an understandable attempt to revive him?

or

2. Did one of his parents pick him up and shake him, causing the injuries?

 

What happened in this case, when the finding of fact hearing took place, is that the lead medical expert wanted to know more detail about the parents evidence about the night in question, and having done so, gave his opinion that what they described was wholly consistent with explanation 1, which is what they said had happened.

At the end of the evidence, when the Local Authority were making their submissions, they indicated that they were in agreement that what had happened was version 1 – what the parents had said. The Judge told them that he agreed and that they were right to have accepted that.

 

At the outset of this fact-finding hearing the local authority invited the court to find that N had been the subject of an abusive non-accidental injury at the hands of one or other of his parents. Having listened to all of the evidence, in particular that of the Consultant Paediatrician Dr Cartlidge, I was told at the beginning of submissions this afternoon that the local authority had modified its position and now accepted that this was an ill-advised resuscitative shake by the mother of N in circumstances which I shall describe in a moment. I indicated that I wholly agreed with the assessment and conclusions of the local authority, and I applaud the local authority for taking the very realistic and sensible course that it has taken in this case

 

 

The Judge set out that the hospital were right to have acted as they did, and so were the Local Authority

Accordingly, whilst I in no way criticise the hospital for the approach that they took suspecting non-accidental injury, and in no way criticise the local authority for initiating the child protection procedures that it did making N the subject of a care application and placing him in foster care, I am entirely satisfied, particularly on the basis of the evidence of Dr Cartlidge but also on the basis of the evidence of the parents, that this was an accidental injury. The mother may have been ill-advised to shake, but she did it with no malicious intent, quite the reverse, she did it because she thought she was helping her son. Both the mother, with the benefit of hindsight, and the father in the course of their evidence said words to the effect that the mother may have over reacted in terms of the vigour with which she shook N. Given that I accept that this was a resuscitative shake, it is being too critical in my view to criticise the mother for failing to judge to a nicety that which she did in the extreme panic which I accept she was in at that time. So accordingly I find that N’s injuries resulted from an innocent but ill-advised resuscitative shake by his mother in the early hours of 1 January 2014

 

That innocent action, though it had terrible consequences for N, was not something that amounted to threshold, and so N would return home to his parents.

The reason why it is only happy(ish) rather than happy, is that the judgment on this case did not get delivered until the end of November 2014 (published today), and so N was living apart from his family for around eleven months whilst this all got sorted out.  That seems a dreadfully long time.  This is the other side of the coin in the 26 week debate – I grouse all the time about how 26 weeks can be unfair to parents, but if you were these parents, you would really want the case to be finished as soon as possible, because they did nothing wrong but had to live apart from their sick child until the Court could hear the evidence and the truth emerge.

 

It isn’t really clear from the judgment why it all took so long, but these cases are not easy to deal with. Experts have to be identified and to report, all the records have to be tracked down, where the case is in the High Court it can be difficult to find the time for long hearings. It all adds up.

I don’t know whether anyone has ever done follow-up studies on the impact of children on being apart from their family for this sort of length of time and then successfully rehabilitated.  We tend to just walk away thinking of the happy outcome, but it must be really hard for everyone involved to adjust. This young boy of course now has life-altering consequences from his tragic injury, and that’s hard in itself; but you also have two parents who love him who missed out on 11 months of his 17 month life.  Will that just repair itself, or will there be knock-on effects on the family for years to come?

 

I hope not, and I wish them all well.

 

Shepherd’s pie

Long long time ago, when I was young and full of vinegar, and the other thing, I had a case. Private law proceedings. About twenty minutes into the mother’s evidence, the Judge carefully and deliberately closed his bundle, screwed back the cap on his fountain pen, looked at us and said “We are going to be in Court for five days on this. Is the whole case really going to be about shepherd’s pie?”

 

So I will reassure the reader now that this whole post is not going to be about shepherd’s pie. But I quite often use shepherd’s pie as an illustrative point when I talk to social workers about ‘good enough’ parenting.

mmmmm. (sorry to any vegetarian reader, but it really is delicious)

mmmmm. (sorry to any vegetarian reader, but it really is delicious)

We all have a pretty reasonable sense of what threshold criteria is – as a lawyer I have to look at a long chronology, or a semi-rambling email and find the bits that might actually amount to threshold.  Social workers understand threshold criteria and what it looks like. That’s what you need to get the child into care. That’s what decides whether the Court has the legal ability to make an order.

 

But what do you need to get the child back?  Well, firstly, there’s a misapprehension that once the child is in care, the onus is on the parent to show they’ve changed, to show that they don’t do heroin any more, to show that the ex-boyfriend really is an ex, to show that they can keep on top of the housework.  Remember that the burden is on the Local Authority, not the parent.  That’s not to say that if the concerns in the case are about heroin, that you are going to be fine if you keep taking heroin (because you’re not).

And then, the second misapprehension is about what is being looked for. Everyone hears and knows the expression – good enough.  We’re not looking for perfection, we’re looking for ‘good enough’.

 

My question, is where are we putting that bar of ‘good enough’ to see if the parent is above it, or below it?  I’ve done this exercise before when training, and we can do it now.

Imagine that you’ve got 1000 children, selected at complete random. How many of them do you think will be receiving care that’s not ‘good enough’ or better ?  Do your answer firstly just on gut. Just what genuinely comes into your head.

If you are honest, it is probably somewhere between 100 and 500.  Because the expression “good enough” immediately makes you think about average, or below average.  The anchor is immediately making you think about ‘good’ parenting.

But ‘good enough’ care isn’t about the care being comparable to an average child’s experience, or even a below average.  It is about the level of care that would mean that the child was suffering significant harm that wasn’t harm that could be realistically managed.

Looking at the care demand by population statistics, the very highest area in the country, currently Torbay, would be in care proceedings for 2 of those 1000 children. There are a handful that would be nearly 2, but most of them would be 1 or less than 1.  Of a million random children, somewhere between 100 and 230 children would be receiving care that was below good enough.

If you said 1 or 2 out of 1000 as your gut answer, either congratulations, or you are a liar, or you have heard me do this routine before.

 

So, if you are looking at the care that a child would be likely to receive and thinking about whether it is ‘good enough’,  it doesn’t help to be anchoring your mental picture as being average, or even in the bottom 10%. You are really talking about lining all of the children up in terms of the quality of care that they get, and only the bottom 0.1% would be getting care that wasn’t “good enough”

 

I’ve worked in many authorities (my current one is not that fixated about it) where the parenting assessments used to feature prominently an attempt to teach the mother how to cook shepherd’s pie from scratch (see, we did get back to it). Go to the shops, buy the ingredients, cook a shepherd’s pie.  It can be quite a nice exercise – it gets the children a nice meal, home cooked and full of good stuff, teaches a parent about planning, budgeting, organising, making time to do something. I can see why people do it.

But line up those 1000 children again – how many of them didn’t get a homemade meal yesterday? Or over the last week?  It can’t be a barometer of ‘good enough’ care, whether someone can cook a shepherd’s pie from scratch.  It is nice, it probably improves the child’s life, but that’s not a test of ‘good enough’ – a parent’s case doesn’t become not ‘good enough’ because they give their kid oven chips and Crispy Pancakes rather than homemade shepherd’s pie.  And if you are wincing at the idea of a child eating that sort of food, ask yourself how you would feel about a child (or an adult) eating Marks and Spencer’s  Chicken Alfredo ready meal, or Tesco’s Finest Boeuf Bourguignon?  It isn’t better, just because it is middle-class. Neither of them are home cooked, both of them are made in ways that you wouldn’t really want to think about.

Of course we want children to eat well. Of course we want a balanced diet with all the food groups, and five a day, and lots of fibre. And of course children who eat crap aren’t going to have such a good quality of life as the ones that do eat well, with parents who make them food from scratch. It just isn’t that relevant in assessing good enough parenting, that’s all.

The other classic meal that we try to teach parents to make from scratch is spaghetti bolognaise.  We’re really into mince in a big way.

It’s quite reminiscent of a 70s childhood, or as Sean Locke puts it in this clip  (terrible quality on the clip, sorry)  – the Seventies were pretty much just a sea of plates of mince in various forms being put in front of him – and he didn’t drink water till he was 15, subsisting on squash  (usually squash that was full of Tartrazine)

 

The thing about ‘good enough’ care being the test is that it is massively subjective.  Someone – a lawyer, a social worker, a Guardian, a Judge, is thinking about ‘good enough’ care and what they are doing it is comparing the parents care, or how they think the parents care would be, against their own notional idea of what ‘good enough’ care would be like.  If those people don’t even agree on how many of those random 1000 children would be receiving care that wasn’t ‘good enough’ or better, then how do they do the next bit which is imagining what care that is not ‘good enough’ would be like?   And your anchoring of what ‘good enough’ care is like is probably comparing what this child’s home might be like with ones that you know – your home, your home as a child, the home of the friend that you had where you never wanted to stay for dinner…   If you are thinking that this child’s home won’t be as nice as those, even the bad ones, then you have a bar that is too high.

I prefer, to be honest, to use the term ‘barely adequate’ rather than ‘good enough’.  Of course, nobody wants to talk about the outcome for a child of care proceedings being that they go back home for a life that is’barely adequate’ – it feels like we’re letting the child down, like we should have fixed more of the problems, that things ought to be radically improved by the end of care proceedings, not just a smidge better than when we started.  I completely get that. And there’s nothing wrong with aspiring to do those things – there’s absolutely nothing wrong with ending the case with a mum who DOES know how to cook Shepherd’s Pie from scratch. It is just that she doesn’t fail to be ‘good enough’ if she can’t do it.

If we put the bar of ‘good enough’ at home cooked meals from scratch, we’re asking parents to pole vault over that bar, when the reality is that the bar is a really low limbo bar that they just need to step over.  And if you want to know whether the parent is above or below the bar, it really does help to know where that bar is.

 

The President even distilled it in Re S and T today,

 

But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

 

not really, it is mince again! you know you want it

This is a vegetarian shepherd’s pie, to make it up to those poor veg loving readers

composite threshold – a living example

 

I wrote about the difficulties of composite thresholds here http://suesspiciousminds.com/2015/05/28/composite-threshold-documents-in-which-a-tightrope-is-walked/  particularly where a document is produced that sets out what everyone says but doesn’t end up with clarity as the precise way that threshold is said to be met.

 

This judgment by Her Honour Judge Owens  http://www.bailii.org/ew/cases/EWFC/OJ/2015/B73.html  OCC v B and T 2015 is a really good example of that.

Particularly since the Judge includes a suitably anonymised version of the threshold at the end of the judgment. I commend that, I think it makes far more sense when considering what decisions was made by a Court to see the factual background set out.  I really like it.

The version provided is a composite document, set out in tablular form (and again, I like the way that this is produced, it is really helpful in terms of seeing what the allegation is, where the evidence is for it and what the parents say).

 

But it is a composite document. It doesn’t end up by setting out the findings that the Court was either making by agreement or was asked to adjudicate upon. So it isn’t a final threshold.

And then, there’s this bit in the judgment itself

Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule. A copy of that schedule, suitably redacted in relation to the identities of the parties, is appended to this Judgement

 

All very sensible and practical – the LA deciding not to push for additional findings where there is agreement and the concessions are sufficient.

However, when I look at the composite document, I see that whilst mother accepts all of the matters that remain (3 a) and (3b) were the only bits that she disputed, father was disputing just about EVERYTHING.  And the LA were accepting that they did not seek any findings in relation to matters that were disputed, so effectively all of those matters are just crossed out of the threshold.

Here is what father actually concedes, in totality

 

1(b) I accept arguing which can be seen as verbally abusive but not aggressive.  [Really hard to see in the light of Re A and Re J – and even before then, that this amounts to threshold]

1(c) The mother made allegations of domestic abuse against father but then withdrew them.   [Well, that’s not threshold unless the assertion is that the allegations were true OR that the making of false allegations caused emotional harm to the child, neither of which are asserted]

1(d) Both parents sent abusive text messages and Facebook messages to each other

2 The father had an argument with the Health Visitor because she came to the home for an important meeting without a sign language intepreter  (again, that’s not threshold)

4. The father accepts that he had some convictions, the most recent of which was ten years ago.

 

5. The father accepts that his other children were placed on the Child Protection Register but disputes that this was the right decision.

 

As we’ve previously discussed, it is possible that on a line by line basis, each individual allegation in and of itself would not amount to threshold, but that taken as a totality, it would. But that’s also not the case here. [Given that para 5 as drafted by the LA contains reference to his two older children being adopted, the Court could have been asked to find that the threshold relied upon and found in those proceedings was sufficient to establish a risk of harm from father, depending upon what was in it and how historical it was, but that didn’t happen]

 

Given what the Judge says about threshold  – LA don’t invite Court to make findings on any matters in dispute and that those matters which are accepted are how threshold is established, then those are the only concessions that are agreed by both parents.  The Local Authority could have invited the Court to find that the threshold was met on the basis of the mother’s concessions, and the Judge would then have had to rule on the matters that father disputed, but that’s not what happened. The LA invited the Court to make a finding that threshold was met on the basis of father’s concessions.

Now, just imagine for a moment, drafting a threshold that contains only those matters set out above. As a stand alone document, saying that this is why the children are at risk of significant harm.  It appears to me that this would be very short of threshold.

 

[There are 3 matters that relate chiefly to mother that father does not dispute, so we could add those in. She wasn’t always honest with professionals, she went to a refuge and then went back to father, and refused to go into a refuge just before the Court proceedings were issued.  IF the Court established that father was domestically violent, then those are matters which could add to the threshold, but there isn’t such a finding.  On the threshold that the case has ended up with, the very high point of the findings made is that harsh words were exchanged between mother and father (both verbally and via text messages/facebook) ]

 

I’ll be clear,

(a) The allegations set out by the Local Authority in their original document (the first two columns of the composite document) were more than capable of meeting threshold

(b) From reading the judgment, I would be confident that most, and perhaps all of them, would have been found had the LA pushed for this – the evidence was there to do so

(c) I’m fairly sure that all involved were approaching the case on the basis that it was not in dispute that there had been DV between father and mother and that he posed a risk to the children

(d) But actually there was. Father’s response to threshold disputed this. And that became a live issue as to whether his admissions were sufficient or whether the Court needed to deal with the disputed issues on threshold

(e) In my opinion, the actual concessions made and accepted, are way short of threshold  (particularly threshold for deciding that the children should be permanently separated from their mother – whilst there is only one section 31 threshold criteria it is plain from the Supreme Court in Re B that the Court’s final orders have to be proportionate to the harm suffered or a risk of being suffered.  )

 

I think there was ample evidence for the Court to find that father was a risk to the children and that mother had been subjected to domestic violence and had not been able to protect. And reading the totality of the judgment, I think that’s the basis on which the Court approached the case. Additionally, there were three significant  findings made which could properly go into a finalised threshold, and given that the Judge set these out in passages of her judgment that were explictly considering ‘risk of harm’ I would legitimately be putting them into a final threshold document.  BUT that would have been dependent on the Judge’s paragraph about threshold adding ‘and the specific matters that I found in my judgment in relation to risks of harm to the children’ or something similar.

 

  If they return to the care of their mother, however, I find that the likelihood is that this placement would breakdown due to her inability to apply the required parenting skills to a good enough standard

I find and the only conclusion I can draw is that she is simply not capable of working openly and honestly with the local authority in the best interests of her children.

The stakes are therefore very high indeed for them and the risk of them suffering further disruption and emotional harm is, as I have found, high

 

The Judge also makes comment that mother failed to understand the risk that father poses (and that’s very important, but it is equally important to remember that the Court hasn’t actually made findings about the level of risk father poses, and the adverse findings against him relate to mutual exchanges of harsh words between him and mother. )

 

There is also reference to what was probably the most important incident

On the 9th December 2014 RB moved to a place of safety following an alleged assault on her by ST on 8th December 2014. This assault was witnessed by a member of the public and ST was arrested. The Police records of this assault are at F110-112 and F129 – 144 and I have also seen the DVD recordings of ST’s Police interview and RB’s statement to the Police about this incident.

 

Although that is in the LA threshold document, at 1(d),  it is disputed by the father, and because of the formulation of words in the judgment about threshold (which I’ll repeat here) it is NOT a finding made. The Judge had done sufficient to make a decision about that allegation, and would probably have made the finding if asked, but was not in fact asked to do so.

 

Threshold is no longer in issue in this case. A composite threshold document has been agreed and the Local Authority accepts that the concessions recorded in that document are sufficient for threshold purposes. They do not therefore seek findings in relation to the issues not accepted on that document and I adopt that threshold document as my threshold findings in this case and make no findings in relation to items 1 (e), 3(a) and (b) on that schedule.

 

It is really obvious that the Court is proceeding throughout on the basis that it is established that father is a risk to the children and indeed to the mother.

BUT the threshold findings that were actually made by the Court were astonishingly low – far lower than I suspect anyone involved really grasped. And if there had been a second threshold document, one that went beyond just setting out a Scott Schedule  (we say,she says, he says) and into just setting out the precise allegations that were actually agreed i.e a final threshold, looking at that on a piece of paper would have made it clear that the concessions given were not sufficient to cross threshold and that the Judge would have to be invited to make findings.

IF this father were to be involved in future Court proceedings, someone picking up this judgment might consider that the Court had made findings that he posed a risk to his children and that he had been domestically violent to the mother   (and I’m sure that’s what those involved thought had happened) BUT as a matter of law, the findings against dad that were made were only those things that he admitted to – which amount to an exchange of harsh words with mother and an argument with a Health Visitor.  Would the actual findings that were made by this Court be sufficient to establish a likelihood of harm with future children?

 

I don’t mean to be critical of anyone involved – this is just an illustration of how a composite style threshold can pose a problem. Had a second document that sets out, taking into account just those matters that were accepted, it would have been really plain that the LA needed to go above and beyond just the accepted matters and into asking the Court to make findings on the central issue (was father domestically violent towards the mother and was he a risk to the children?).   I am sure that all involved took those matters as a given – I’m sure that if father had been fighting the allegations he would not have succeeded, but the approach that the concessions themselves were sufficient to meet the threshold doesn’t seem to stack up when you look at it with fresh eyes.

 

There’s a lot of other stuff to praise in this judgment, it is just a shame about that one element.

 

 

 

 

“Immigrants who beat their children should get special treatment”

 

This was the headline of a piece in the Daily Telegraph, similar stories in other newspapers.

http://www.telegraph.co.uk/news/uknews/immigration/11663029/Immigrants-who-beat-their-children-should-get-special-treatment-says-judge.html

 

It ticks all of the boxes for a Telegraph story – we have here a High Court Judge (and as she is female, for some reason it is considered appropriate to set out within the story her marital situation and how many children she has), social workers, ‘secret’ family Courts and immigrants being treated more favourably than UK nationals. It’s a great story for the Telegraph.

 

The story leads with this

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday.

and it has some quotations from the Judge, and a bit of rent-a-quote from a politician.

 

Is it accurate?

Well, I don’t think is misleading. I don’t think that the Judge intended to convey that meaning, but the meaning that the Telegraph have derived from it is the fault of the judgment not the fault of the reader. I also don’t think that the Telegraph have sensationalised it or are wrong to report it. I don’t think that it says everything that the Telegraph believes that it says, but I think that their reading of it is one that a common sense reader would derive from it.

 

Re A (A child: Wardship) 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1598.html

 

[I’ll quickly hold up my hands – I read this on Tuesday when it came out and my reading of it was that the case was far too dull to blog about – I missed paragraph 67 when I first read it. I’m like the guy who decided that Fred Astaire ‘can’t sing, can dance a little’ ] 

This is the paragraph that has caused all of the fuss

 

67.I do not believe there was punitively harsh treatment of A of the kind that would merit the term physical abuse. Proper allowance must be made for what is, almost certainly, a different cultural context. Within many communities newly arrived in this country, children are slapped and hit for misbehaviour in a way which at first excites the interest of child protection professionals. In this instance, and on the basis of his ABE interview, A did not appear to have suffered more than sadness and transient pain from what was done to him.

 

A common sense reading of that is that we must make allowances in law for a parent who has just come to this country and that social workers should treat them differently. Which is the Telegraph’s take on it. They aren’t misquoting or misleading – they report what the Judge said and then report how an ordinary person would read those remarks.

 

The allegations were being made in private law proceedings (the argument being between mum and dad , rather than public law proceedings where the argument would be between social workers and parents).

The allegation made by mum was that the father had slapped the child twice. The child  when interviewed by the police said that dad had hit him with a belt, causing him pain and leaving marks which went quickly. Father said that he smacked the child as part of normal discipline.  The job of the Judge therefore was to decide which of these three versions (if any) was correct, and what impact that this would have on any decisions about whether the child should see his father and spend time with him.  [There were also a lot of allegations between mother and father as to domestic violence, and the Judge found that father had been violent to the mother including an attempt at strangulation with a head scarf and a violent push]

 

  1. One of the last matters for discussions arises from A’s physical assault allegations comprised principally within his ABE interview. In the context of a question from the officer about what he did on 17 October – and seemingly out of the blue – A said, “I did my homework … With his belt, he kind of hits me.” A little later, A is asked, “OK and how does he hit you?” A who was by then looking directly at the officer, said, “With a belt … A long belt.” He described being hit on his back and leg and said it was “kind of fast, to hit me.” Asked how he felt, A said “Sad … But I’m little brave … I’m not scared of him… But normally I’m sad.” In response to questions as to whether it hurt, did it leave marks and whether they ‘went quite quickly’, A did not reply verbally but nodded his head to all three inquiries.” Towards the very end of the interview, A responded affirmatively when asked if he missed his father.
  2. The father wholly denies ever striking A with a belt or otherwise. He described with evident emotion that if he could not see A he does not “want to live.” He can “only say (he) never hit A with a belt” and he is “dying to see A.” The father also described what he meant by a “slap or a tap” the words used when he was interviewed by the police in connection with A’s allegations. He said this was not to slap A “badly but to keep him disciplined.”

At the end of my determination on this issue I make the following observations. I did believe the mother when she told me she had not said anything bad about the father although it had been for her “really horrible being separated from her son.” The mother also said that during the time they were together, she had seen the father slap A twice and there had been occasions when he had been pushed and shouted at. She had not told her Solicitor because there had been “so many things.”

 

The conclusion of the judgment is that what father did to the child was not something that amounted to physical abuse (and thus, that it would not amount to any criminal offence).

 

The law in this country is that it is lawful to lawfully chastise a child (that’s a bit redundant, but I was trying to use the emotive word ‘smack’). The line is crossed where the physical discipline becomes a criminal offence.

The Telegraph piece says:-

The Children’s Act 2004 made it illegal for parents in England and Wales to chastise children if blows led to bruising, swelling, cuts, grazes or scratches, with the offence carrying up to five years’ imprisonment.

This is what the Children Act 2004 actually says (it is much, much much less clear cut than the Telegraph summary ) – picking through all of the legal jargon, what it says is “If you have hit a child in such a way that a criminal offence may have resulted, it is not a defence to cite reasonable punishment’  – for most of those offences, the impact on the child would be that the injury caused bruises, marks or fractures (ABH, GBH) or cuts or breaks to the skin (Wounding), but the offence of cruelty or battery don’t require those things.

If you were thinking that the Telegraph has given you legal advice that you can beat your child as long as you don’t leave marks or break the skin, you’d be wrong.  [For example, the sack of oranges scene in the Grifters]

 

 

58Reasonable punishment

(1)In relation to any offence specified in subsection (2), battery of a child cannot be justified on the ground that it constituted reasonable punishment.

(2)The offences referred to in subsection (1) are

(a)an offence under section 18 or 20 of the Offences against the Person Act 1861 (c. 100) (wounding and causing grievous bodily harm);

(b)an offence under section 47 of that Act (assault occasioning actual bodily harm);

(c)an offence under section 1 of the Children and Young Persons Act 1933 (c. 12) (cruelty to persons under 16).

(3)Battery of a child causing actual bodily harm to the child cannot be justified in any civil proceedings on the ground that it constituted reasonable punishment.

(4)For the purposes of subsection (3) actual bodily harm has the same meaning as it has for the purposes of section 47 of the Offences against the Person Act 1861.

(5)In section 1 of the Children and Young Persons Act 1933, omit subsection (7).

 

 

Right, so let’s get back to that first paragraph of the Telegraph story – the lead of the whole article

Immigrants should be allowed to “slap and hit” their children because of a “different cultural context” when they are new arrivals in Britain, a High Court judge suggested yesterday

 

I think that it is a fair reading of the case that the Judge suggested that. I don’t think it is quite what she meant, but it is a common-sense reading of what paragraph 67 says.

If, however, someone reads this to mean that immigrant parents have a ‘get out of jail card’ or that they can hurt their children in a way that would get a British parent into trouble but they would get off scot-free, and that this is now the law in this country, that wouldn’t be right.

Firstly, as the case was not decided on that particular point, the remarks would not be binding on any other Court.

Secondly, the Judge wasn’t deciding here that as a matter of principle different standards apply. She was taking into account the individual circumstances of the parents in deciding whether what happened to this child constituted something that would be a barrier to the father having contact with him.

 

I can’t defend the case entirely. I think it is significantly flawed. When I read it, I can’t ascertain whether the Judge found that

a) As the child said in the police interview, father hit him with a belt on his back and legs and that it hurt, it left marks but the marks went quite quickly; OR

b) as the mother said, she had seen father slap the child twice; OR

c) as the father said, that he slapped or tapped  the child as reasonable discipline

 

It is such an important point that it is really quite problematic that the Judge doesn’t say whether she concluded that the child’s account was right or that father’s account was right.

For example, if the Judge had said :-

I find that the father did smack his child on the back of the leg for being naughty, but that this caused no lasting harm to the child.

 

I suspect that it wouldn’t really be in the Press to the extent that it is. I certainly think that the majority of the Telegraph’s readers (and possibly mine too) would nod in agreement with that sentiment.

Whereas the reading of

The father hit his child with a belt, but that’s okay because he was an immigrant

is obviously newsworthy.  [And the readership of the Telegraph and my readers would not be nodding in agreement, but reaching for either a pen, a keyboard or a revolver]

 

And because such an important piece of information is not clear in the judgment (we know that the Judge concluded that WHAT happened to the child was not that serious, but not WHAT she concluded had happened), it does cause legitimate confusion.

The inference has to be that it was the hitting with a belt that she believed happened (since if it was the smack for reasonable punishment, then most of paragraph 67 doesn’t need to be said at all, since this would be within the boundaries of acceptable parental behaviour, whether the parent was from Clapham or Calcutta)

and that then leads to the Press reporting that the Judge is suggesting that a parent from Calcutta in this situation is to be treated differently to a parent from Clapham.

 

Going back to my original question – is the Telegraph piece accurate?  Well, it isn’t inaccurate. The judgment here is unclear about what father was found to have done, but then goes on to excuse what he has done. Part of that is because the effect on the child was very temporary and transient * , but part is the cultural issue set out in paragraph 67.

 

* There might be those who consider that this is not a helpful way of looking at it – a child can recover from the physcial signs of  a bruise on the face in a few days, but the emotional impact can be much more than that. I haven’t been a child for many many years, but I can still vividly recall each and every occasion that an adult struck me in rage as a child.  Whereas the reasonable smacks I got for being naughty are long forgotten. The bruises from a violent assault fade much more easily than the memories.

I think that paragraph 67 is not terribly helpful, and if an argument was being developed in that way it needed more space within the judgment.  I don’t read anyone within the case as having run the argument as “Father did X, but we do X in India”

Father’s case was that what he had done was reasonable chastistment (in Clapham) not, that what happened might have been unreasonable in Clapham but it was reasonable in Calcutta.

 

I’m not sure that the controversial parts of para 67 needed to go in the judgment at all, or play any part of the decision-making. This wasn’t one of those cases (and they do happen) where a parent says “I did do X, and I now know that X is considered wrong in this country, but it isn’t where I’m from”

 

It would be worrying if as a result of the reporting of the story  (and I’ll stress that I don’t think the Press are either inaccurate or irresponsible in their reporting on this), that social workers formed the view that if they are told that a recently arrived immigrant had hit their child with a belt, they should not take that seriously and not take action if they consider it appropriate.  Or that a lawyer thought that as a result of this case, that wouldn’t be capable of establishing threshold.  It would also be worrying if a parent thought that they are being treated more harshly than a parent just arriving from another country would be.  OR that a parent who is in a relationship with someone recently arrived from another country thought that it was okay for their partner to discipline the child with a belt.

For me, the cultural issues are about understanding, rather than condoning. There are parts of the world that tolerate, support, believe in Female Genital Mutilation, and we can understand that parents who have arrived in the UK might have those views, but we can’t condone them acting upon them.  We have to judge all parents on the standards of what is acceptable and lawful in the UK, though we can understand that those standards can be different in other countries.

 

 

 

Who has the burden of proof?

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

http://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

ISIS and children being taken to Syria

I have to say, even after years and years of doing child protection law, I never actually thought I’d see cases in Court where parents were trying to get their children to become terrorists and fight in a war. But we are seeing these cases, and as I understand it, the reported cases are the tip of an iceberg.

If you are advising someone in this situation, or advising a Local Authority where such a thing is suspected, the President’s decision in Re M (Children) 2015 is going to be mandatory reading. It is particularly useful since it sets out in detail the orders made to protect the children and to recover them, and is an excellent route-map for future cases. Rather than drafting from scratch and having to invent what needs to be done  (and I’ve an inkling of just how hard that is in such cases), there’s now a source for how to assemble a workable order that will do the job.

 

https://www.judiciary.gov.uk/wp-content/uploads/2015/05/re_m_20_5_152.pdf

There is one final point I must emphasise in this connection. It is the point made by Hayden J in the Tower Hamlets case (para 18(iv)):
“All involved must recognise that in this particular process it is the interest of the individual child that is paramount. This cannot be eclipsed by wider considerations of counter terrorism policy or operations, but it must be recognised that the decision the court is being asked to take can only be arrived at against an informed understanding of that wider canvas.”

There’s a very good summary by Marilyn Stowe here, and I recommend that also  http://www.marilynstowe.co.uk/2015/05/21/high-court-considers-family-who-vanished-with-their-children/

 

All agencies worked amazingly quickly and creatively to get these children back into the UK and save them from what would really be unthinkable, that they be pushed by their parents into taking up arms in a war zone.

Proof of facts – High Court guidance on disputed injuries

This is a very short judgment, with not a single word wasted, and it sets out not only a helpful summary of the state of the law on resolution of disputed injuries but clarifies some areas where there has been doubt and confusion.

It does not really need my ham-fisted attempt to summarise it, so I will simply alert you to its existence, and recommend heartily that you read it. [I am inferring that this judgment is setting out points of general principle arising from the Poppy Worthington case – that particular judgment of the facts in the case is not going to be published until the Autumn, when the re-hearing is underway]

 

BR (Proof of Facts) 2015

Mr Justice Peter Jackson

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/41.html

Mr Justice Peter Jackson:

 

  • A fact-finding hearing into how a baby came to have a very large number of fractures took place in March and in April I gave a judgment that cannot be published at this stage. This short published judgment touches on three topics of more general relevance, described below.
  • The context is that the local authority alleged that the injuries were inflicted by the parents. They denied this and relied on expert medical opinion that the injuries may have been the manifestation of a condition as yet unknown to medical science that caused transient fragility in the baby’s bones. Other expert medical opinion considered it more probable that the fractures and other appearances were the result of assaults. It was common ground that there is no known medical condition that might explain the fractures, but that the radiological appearances were highly unusual.
  • The topics that I extract from the fact-finding judgment are these:

 

(1) Proof of facts.(2) Evidence about a child’s likely pain response, discussed in a recent decision of HH Judge Bellamy: Re FM (A Child: fractures: bone density) [2015] EWFC B26 (12 March 2015).

(3) An analysis of generic risk factors and protective factors.

Proof of facts

 

  • The court acts on evidence, not speculation or assumption. It acts on facts, not worries or concerns.
  • Evidence comes in many forms. It can be live, written, direct, hearsay, electronic, photographic, circumstantial, factual, or by way of expert opinion. It can concern major topics and small details, things that are important and things that are trivial.
  • The burden of proving a fact rests on the person who asserts it.
  • The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this.

 

(1) Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. The court will consider grave allegations with proper care, but evidence is evidence and the approach to analysing it remains the same in every case. In my view, statements of principle (some relied on in this case) that suggest that an enhanced level of evidential cogency or clarity is required in order to prove a very serious allegation do not assist and may lead a fact-finder into error. Despite all disclaimers, reference to qualitative concepts such as cogency and clarity may wrongly be taken to imply that some elevated standard of proof is called for.(2) Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Whether a man was in a London street at a particular time might be of no great consequence if the issue is whether he was rightly issued with a parking ticket, but it might be of huge consequence if he has been charged with a murder that occurred that day in Paris. The evidential standard to which his presence in the street must be proved is nonetheless the same.

(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.

(4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe:

“Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low.”

I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.

 

  • Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility.
  • When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.
  • Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.

 

Evidence about pain response

 

  • In the present case, the medical experts commented upon the absence of an account by the parents of any pain response at the moments when the multiple fractures must have occurred. All the doctors stated that fractures are painful, whether bones are normal or not, and that a distinctive pain reaction would be expected from a baby when a bone breaks. The nature of the acute reaction might vary depending upon the bone. The nature of the chronic reaction in the hours and days afterwards might be confused with other childhood ailments.
  • The cause of the fractures was undoubtedly the application of force to the baby by an adult, who must have been touching the baby at the moments when the bones broke. The fractures did not occur spontaneously and the baby did not cause the injuries to itself. The question was whether the bones could have been weakened so that they fractured on normal handling.
  • On behalf of the parents, reference was made to an aspect of the judgment of HHJ Bellamy in Re FM (above). In that case, the allegation was that a mother was responsible for causing bilateral leg fractures to a child of just under a year of age. Accepting the evidence of Dr Allgrove, who was also a witness in this case, the judge found it possible that excessive use of a mid-strength topical eczema cream might have led to bone demineralisation and a propensity to fracture in a child with some degree of hypotonia and hypermobility of her joints. He concluded that the local authority had not proved its case and dismissed the proceedings.
  • The relevant part of the judgment concerns the judge’s observations on the medical evidence about a child’s likely reaction to a fracture at the moment that it occurs. A paediatrician had given evidence that it must have been “a memorable event”. At paragraph 115, the learned judge said this:

 

“As I have noted, that opinion is frequently given by paediatricians in cases such as this. In my judgment the contention that there must have been a ‘memorable event’ is unhelpful and potentially prejudicial to carers. Not only is it a formulation which invites an inference as to the veracity of any carer unable to describe a ‘memorable event’ [but] in my judgment it also comes perilously close to reversing the burden of proof, suggesting that a carer should be able to describe a ‘memorable event’ if the injury really does have an innocent explanation.”

 

  • Since this passage has been cited to me, and may be cited elsewhere, I will say something about it. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of injury from the carer of a young child, then I respectfully consider that they go too far.
  • Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.
  • In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.

 

Risk factors and protective factors

 

  • On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

 

Risk factors

  • Physical or mental disability in children that may increase caregiver burden
  • Social isolation of families
  • Parents’ lack of understanding of children’s needs and child development
  • Parents’ history of domestic abuse
  • History of physical or sexual abuse (as a child)
  • Past physical or sexual abuse of a child
  • Poverty and other socioeconomic disadvantage
  • Family disorganization, dissolution, and violence, including intimate partner violence
  • Lack of family cohesion
  • Substance abuse in family
  • Parental immaturity
  • Single or non-biological parents
  • Poor parent-child relationships and negative interactions
  • Parental thoughts and emotions supporting maltreatment behaviours
  • Parental stress and distress, including depression or other mental health conditions
  • Community violence

Protective factors

  • Supportive family environment
  • Nurturing parenting skills
  • Stable family relationships
  • Household rules and monitoring of the child
  • Adequate parental finances
  • Adequate housing
  • Access to health care and social services
  • Caring adults who can serve as role models or mentors
  • Community support

 

  • In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

 

Follow

Get every new post delivered to your Inbox.

Join 3,480 other followers