Withdrawing care proceedings

Re J, A, M and X (Children) 2013

Cobb J gave a judgment in this case which would now be your go-to place to see the law on a Local Authority’s application to withdraw care proceedings.  [There’s a potentially important bit at para 63 of the judgment, where the Judge gives a view as to whether an injury deliberately caused by a sibling could be capable of crossing the threshold even if the parents had done nothing wrong]

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4648.html

The long and the short of the case was that it involved a head injury to X, who was 18 months old. This head injury presented with subdural haematoma and retinal haemorrhages.  That, ten years ago, would have had shaking injury written all over it. The Courts and experts are a bit more cautious these days, but it is still a concerning set of injuries and the possibility of deliberate harm is one that is explored by the Court.

The parents explanation is that they were in an adjacent room, J (their 16 year old) was in a room with the other children, and M who was 3 1/2 had pushed X, who had fallen over.

The medical opinion:

• In this case, the parties have been fortunate to garner the expertise of some of the finest medical experts currently available to the family courts. I have read their reports with care, and the transcript of the meeting at which they were able to share their views. There is some measure of professional consensus about the medical evidence, and I attempt to do no more than to distil some of the key aspects of their evidence as follows.

• Mr. E, Consultant Ophthalmologist, has opined that, taken with the other findings in the case, the retinal haemorrhages provide strong evidence that X was subjected to a shaking injury. He describes him fulfilling the “characteristic profile” and refers to the triad of features which includes encephalopathy and subdural haemorrhage; he considers that unilateral retinal haemorrhage is not unusual in NAHI. He concludes that by reference to his expertise on ophthalmological features alone, the fall described cannot be considered a plausible explanation for the retinal findings. I remind myself that I do not consider one aspect of the medical evidence in isolation from other aspects.

• Mr. R Consultant neurosurgeon, suggests that on current medical understanding a low level fall of the type described would not be expected to cause an acute subdural bleed and that developing a subdural haematoma from such a fall would therefore be a very unusual event. The account of X being pushed over and hitting his head could explain the acute subdural haematoma although it would be an unusual event in these circumstances. The appearances of the bleeding do not assist in determining the explanation, and can be explained by a single localised impact to the top of the left cerebral hemisphere. He opines that the accidental event described causing this haemorrhage is a possibility although it would be unusual. Another event involving greater force that has not been reported remains a possibility but this cannot be definitively stated on the appearance of the subdural haematoma alone.

• Dr. SA, Consultant Paediatrician, reminded the Court that there are exceptions to the rules that generally short falls do not give rise to significant cranial or intracranial injury whereas large falls and severe impacts will do. He considers that X did not simply fall to the ground, he was pushed and although this was by a small child this will have increased his velocity and impact. He concludes that the injuries found are consistent with the fall and that this is consistent with an accidental event. The injuries are more likely due to the reported fall.

• Dr. ST, Consultant Neuroradiologist, concluded that on imaging grounds alone he could not exclude shaking as a cause for the subdural bleeding. The inter-hemispheric component and the bleeding in the posterior fossa are somewhat unusual in the context of being secondary to head trauma. However, because of the unusual nature of the fall in his view it is possible to explain the imaging features as having occurred as a result of that event. He does not exclude the event as a reasonable possible cause.

• The experts have met, and I have a transcript of their discussions; this reflects the expert view that the constellation of injuries was caused by the same event which occurred shortly before X’s collapse; that there are a whole series of atypical features in this case; that the experts cannot from their respective areas of expertise reasonably exclude any of the possibilities that were debated, and that it is a matter for the Court to “put all the pieces of the jigsaw together”.

• A Schedule of Concurrence (of expert views) has been helpfully prepared by Mr Rothery arising from the meeting. The Local Authority relies upon this analysis and summary of the expert medical evidence. The document summarises the nature of the injuries; there is agreement that the injuries are a result of trauma on a single occasion, and more likely to be impact than shaking alone.

• The doctors conclude (para.4.1) that it is not possible on the medical evidence alone to determine whether the injuries were accidental or non-accidental. The summary discloses that the experts considered a range of possible mechanisms which may account for X’s injuries (para.2.4). Paragraph 4.2 reads:

“the explanation given by J that X fell over having been pushed by M is a possible explanation of all Xs injuries“.

What that means is that medically speaking, the experts considered that the accidental explanation could account for the injuries. What of course they could not say, is whether this explanation happened. That would be ultimately a matter for the Judge.  The Local Authority COULD have pressed on with the finding of fact hearing, and asked the Judge to hear the evidence and reach a decision. They decided instead that they would accept that the injury had been caused accidentally by M pushing X over.

The application for leave to withdraw

 

• The Local Authority, upon whom the burden of proof falls at this essentially adversarial stage of these proceedings, does not seek to prove that the injury sustained by X was non-accidental.

 

 

• It takes as its starting point the unanimous expert medical opinion that the accident described by J “is a possible explanation of all X’s injuries“.

 

 

• The Local Authority has then weighed into the reckoning what the parents and J have said about the incident. Ms Cross and Ms Hobson have rightly in my view formed the view that where the medical evidence is poised so evenly on the fulcrum of possibility, it is necessary critically to evaluate the other aspects of the case and, in particular, what it is that the parents and J say about the events which may tilt the balance. Only, say the Local Authority, where the forensic process could significantly damage the credibility of the parents or J would the Local Authority be able to contend that the balance tilted against this being an accident. But, Ms Cross continues, there is little in the relevant lay accounts which gives cause for such a conclusion

 

 

• Even the inconsistencies in the accounts, such as they are, lend weight to (rather than detract from) the conclusion that an essentially honest account has been given: there has been sufficient consistency about the incident: It occurred when X was trying to negotiate the sofa; X was not confident or steady on his feet; M ran at him and collided with him; M pushed him over and he fell to the ground; X hit his head and it ‘bounced’; X reacted adversely and immediately, developing symptoms consistent with a seizure; J shouted for her mother; all the children were together in the room; the parents were in an adjacent room; J alerted the parents immediately, indicating her distress and concern for X; upon arriving at the scene the parents witnessed X in a state of collapse.

 

 

• Moreover I note as context to the key events that:

 

(a) No-one gives any hint that there had been any stress or tension within the home immediately prior to the incident

(b) J has never shown any aggressive behaviour towards her younger siblings;

(c) There been no particular health or behavioural issues relating to the children

 

• If I were to embark upon a fact-finding enquiry, it seems to me that I would probably need to reach a position in which I was satisfied that J had been able to maintain quite a sophisticated lie in inventing an account which coincided in some important respects with the expert medical opinion as to key elements of causation of the injuries. I would further need to satisfy myself that J was prepared to blame her little half-sister M for injuring X to protect herself, and that the younger children were able to maintain a consistent and impenetrable wall of silence in relation to a different type of event causing the injury. While I cannot form a concluded view on this point on the papers, the indicators point the other way: I have noted the comments in Ms LM’s report, and note the comments of J’s guardian who (in her recent Analysis document) describes her as a “lovely young person”.

There is an issue of relevance here – the existing case law is that if the Judge is satisfied that the threshold could not be crossed, they can deal with the Local Authority’s application to withdraw on that basis alone (the statutory test for making orders not being met, the proceedings ought to end), whereas if the Judge considers that the threshold COULD be crossed, the Judge then has to consider whether the withdrawal of the proceedings is in the children’s best interests

28.  The Local Authority submitted – per paragraph 44 to 46 of its skeleton argument – that as this is an application to withdraw proceedings at the pre-threshold stage (because it says, it does not believe that it can cross the threshold), then I would be required to “evaluate the application” by reference to that “fact alone” (i.e. that the threshold cannot be crossed), without engaging any consideration of welfare; it is said that my compass of enquiry on this application is accordingly is a narrow one.

Reliance for this proposition was placed on a decision of Hedley J in Redbridge London Borough Council v B C & A [2011] 2 FLR 117 in which he said (at para.9 of the judgment) that:

“If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under s 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A – see London Borough of Southwark v B  [1993] 2 FLR 559 and WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam), [2011] 1 FLR 188.”

(emphasis by underlining added for emphasis).

 In this case, as it is presented before me, I am not in fact being asked to conclude (and indeed I do not conclude) that the Local Authority could not on any view prove the threshold. Plainly on one or more than one construction of events, the threshold could be crossed. To fall into the category of case envisaged by Hedley J in para.9 of his judgment, wherein the court would have no alternative but to permit the withdrawal, it seems to me that the inability of the Local Authority to demonstrate facts to cross threshold ought to be obvious.

• The Local Authority here invites me to adopt their likely construction of the evidence, and on that basis they invite me to say that they will not be likely to cross the threshold. They further maintain that it is not in the interests of the children concerned that an enquiry is embarked upon to establish whether that construction or another construction should be preferred.

• In a case where there is argument whether the threshold could be crossed, I have to remind myself that answers to the questions relating to threshold may also inform the answer on welfare. The crossing of the ‘threshold’ is simply one part of a two-stage process (and the court has two questions to ask i.e. has the threshold been crossed? If so, what will be best for the child?) The same factual issues are often relevant to each question. Just because a hearing is split, does not mean that the evidence relevant to stage 1 may not be just as relevant to stage 2: “the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise” (see Baroness Hale in Re B (supra) at para.74).

• After oral argument before me, all counsel agreed that this was not such an ‘obvious’ case that the Local Authority could not prove the threshold; it was acknowledged by all that on the evidence there were plainly significant difficulties in them achieving this.

{i.e it is POSSIBLE that the Judge could have heard all of the evidence and found the parents and J’s account of the accident implausible, and made the finding. Well, actually, it goes even further than that, because of paragraph 63, which I think might come up again}

• The Local Authority has further maintained (para.47 and 48 of the Skeleton Argument) that at its highest, the threshold may not have been capable of being crossed even if I were to be satisfied that J injured X (i.e. non-accidentally). I respectfully disagree with the analysis of the law set out in these paragraphs of the skeleton argument. If I were to have found that X had sustained non-accidental injuries, these injuries would unquestioningly have represented ‘significant harm’, and that harm would have been “attributable to the care given to X” not being what it “would be reasonable to expect a parent to give him”. The fact that X was at the critical point being cared for by J does not mean that the threshold is not crossed. I do not consider that there are grounds for distinguishing the situation relating to X (as the injured child) from the situation relating to the parents (as opposed to the childminder) of the parents’ child in the Lancashire v B case in respect; and given that the mother/father and J would all form part of the family unit hereafter, there is no proper basis for considering the other children differently either.

You need to read that carefully – what the Judge is saying is that EVEN if the finding was that it had been J who harmed X (rather than the parents, or the 3 1/2 year old M) the threshold could have been crossed, the Local Authority were saying that it would not have been.

If you do care proceedings regularly, you will come across the explanation that the injuries were caused by a sibling very often, and I think that this paragraph offers a suggestion that if the injuries were caused deliberately rather than accidentally, threshold might still be crossed  – even though the parents had done nothing wrong.   (It isn’t unreasonable, to leave a 16 year old in charge of younger siblings for a short period whilst the parents are in an adjacent room – if it was, there would be an intolerable number of care proceedings)

I’m not sure how I feel about this – my gut feeling was that I agreed with the Local Authority and that I wouldn’t have been saying that threshold was met if the Judge had decided that J (16 year old sibling) had caused the injury and lied about it. But having mulled for a few days, I can see what the Judge is getting at – if  J had injured the infant deliberately and was still going to be a member of the household, then the risk of future injuries isn’t one that could sensibly be ignored.  My suspicion is that if a Judge were to make a finding in relation to threshold on that basis, we would be finding out what the Court of Appeal think.

That’s all something of an academic sidetrack, since there wasn’t evidence that anyone sought to rely on that J had done anything of the kind.

But, having decided that this was a case where threshold COULD have been made out, the Judge had to then consider the application to withdraw on welfare grounds.

• Given that this case does not fall into the realms of what I call the ‘obvious case’ (where I would have no option but to give leave to withdraw), the question of whether or not a particular fact-finding exercise is to be conducted within care proceedings is a question which requires me to look at the whole application. In this respect I have been particularly guided by the judgment of McFarlane J as he then was in A County Council V DP, RS, BS (By The Children’s Guardian) [2005] EWHC 1593 (Fam) [2005] 2FLR 1031 . He set out (in rather different factual circumstances) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued (see [24]):

 

(a) the interests of the child (relevant not paramount);

(b) the time the investigation would take;

(c) the likely cost to public funds;

(d) the evidential result;

(e) the necessity of the investigation;

(f) the relevance of the potential result to the future care plans for the child;

(g) the impact of any fact finding process upon the other parties;

(h) the prospects of a fair trial on the issue;

(i) the justice of the case

Conclusion:

• Having reviewed the material carefully, listened to the views of the parties, their submission as to outcome and their reasons, I have concluded that the Local Authority should indeed be given leave to withdraw the application for a care order.

• I have paid close regard to the checklist of factors set out above. Those factors, many taken individually but certainly taken cumulatively, point firmly against a fact-finding enquiry.

• I have applied an overall welfare test to my decision, and have satisfied myself that it is not in the interests of any of the children to subject the family, the parents and J in particular, to this enquiry. Such a process would be neither proportionate nor in the children’s interests, it is a course which no party wishes, and which the guardians on behalf of the children discourage me from embarking upon.

• Where does that leave the allegations of Non Accidental Injury? And how does that leave the parties?

• I can do no better than to apply the principles most clearly set out in the speech of Lord Hoffman in Re B [2008] UKHL 35, [2009] AC 11:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

• By reason of the withdrawal of the proceedings, the allegation of non-accidental injury now scores a zero.

• It follows that the lives of this family should now proceed on the basis that the injuries to X were no more or less than a terrible, fluke, accident. There is not even room for a suspicion that the injuries were caused in any other way. The family, and the professionals around them, should proceed now on the basis that no-one (and I include in this of course M) is to blame for X’s injuries.

• For the avoidance of doubt, I wish to add that the application for care order was entirely appropriately made in this case on the basis of (a) the presenting features of X at hospital in April 2012 when viewed against (b) the backcloth of concerns about this family, and (c) the medical opinions early expressed about the aetiology of the serious injuries. It is apparent from all that I have read that the social workers have worked conscientiously, not always in the easiest of circumstances, in the interests of the children. The court is, and the family should be, indebted to them for that.