This decision of the Family Division of His Honour Judge Bellamy, sitting as a Deputy High Court case has a lot of unusual features.
Ian, you’re going to love this one.
O (A Child : Fact Finding Hearing – Parents Refusing to Participate)  EWFC 48 (29 June 2018)
At risk of spoilers, I’ll give the conclusion of the case, because that sums up why this case has unusual elements
I find that O’s injuries are non-accidental injuries caused by either the mother or the father. In making that finding I acknowledge that had the parents engaged with these proceedings, including giving evidence at this finding of fact hearing, and had they taken advantage of their entitlement to specialist legal representation provided at no cost to themselves, the outcome of this hearing could conceivably have been different. However, the court can only arrive at its conclusions on the basis of the evidence before it. I am satisfied that the decision I have arrived at is the correct decision on the basis of the totality of the evidence before me.
O was less than 6 months old when he was admitted to hospital in Derby. He was found to have suffered bilateral parietal skull fractures with associated swelling of his scalp. The doctors considered this to be a skull fracture caused non-accidentally. Care proceedings were issued and an Interim Care Order made, placing O in foster care.
The parents decided not to instruct solicitors, despite being told that they could have solicitors of their choice without paying a penny for them and the difficulties of representing themselves in hearings that would involve complex medical evidence – and of course because they didn’t have lawyers or legal aid, they were not able to seek their own second opinion of the medical evidence.
During the course of those hearings the parents have attended, for the most part the mother has remained silent. She has spoken when spoken to. She has been monosyllabic. I formed the view that the decision that both parents should be unrepresented was a decision taken by the father and that it was a decision the mother has felt obliged to accept. Although she may understand that her interests would be better served by being legally represented, the father’s domination of her has meant that she has been unable to act in her own best interests.
The parents also, unsuccessfully, issued judicial review proceedings against the Hospital and the Local Authority, naming the Court as an interested party.
They also sought an injunction quashing the interim care order, deploying the unusual argument that once the care proceedings went beyond 26 weeks (someone having forgotten to formally extend them), they were over and the interim care order would cease and there could be no final hearing. That was refused and they appealed that refusal.
- Section 32 of the Children Act 1989 requires the court to draw up a timetable ‘with a view to disposing of the application…within 26 weeks’. The section also gives the court the power, in certain circumstances, to extend the 26 weeks. In this case, as a result of an oversight, notwithstanding that the case has exceed the statutory 26 weeks no order of the court was made authorising that extension. The parents contended that as a result of that oversight the proceedings automatically came to an end when the 26 weeks expired and that as a consequence the interim care order also came to an end. It followed, submitted the parents, that since the 26 weeks had ended the local authority had wrongfully and unlawfully continued to place O in local authority foster care. The sought O’s return to their care immediately.
- I heard the parents’ submissions on 13th March. I concluded that the failure to make an order extending the 26 weeks did not have the effect of bringing the proceedings to an end and that the interim care order therefore remained in force. The parents have not attended any hearing since 13th March.
- The parents applied to the Court of Appeal for permission to appeal against my decision of 13th March. On 18th May, on consideration of the papers, McFarlane LJ refused the parents’ application on the basis that it was ‘wholly misconceived and is based upon a fundamental misunderstanding of Children Act 1989, s 32’. He concluded that,
‘It follows that neither the fact that the proceedings have lasted well beyond the 26 week deadline nor the fact that, for a period, no advance extension order had been granted, invalidate the current interim care order or mean that the case can no longer proceed to a final hearing.’
There was then a curious interlude when O’s social worker, in visiting the family inadvertently left his notebook behind, said notebook including details of other families and having tucked within it a draft statement, heavily annotated, relating to another family. The father returned the notebook, having read it. He was asked to sign an agreement not to distribute the information he had received from reading it and refused to do so.
- Ms Walker [Social work manager] contacted the father. He confirmed that he had read the documents. She sought to persuade him to sign a written undertaking not to breach the confidentiality of the material he had read. Ms Walker says that the father,
‘21. …informed us that he was not willing to sign a written undertaking. He confirmed that he had taken copies of the court report and refused to delete the images stating: “I am not condoning this. The information is of public interest. I am a victim of the same situations as that victim. A child is in the system for no reason. There is significant public interest here, it appears to be a pattern.”’
- On 21st May the local authority issued proceedings seeking an injunction against the father to restrain him from publishing the material he had wrongly copied. An injunction was granted by Her Honour Judge Coe QC on 29th May
The parents played a very limited role in the care proceedings
27…..I called on the care case. Although the father was still in the court building at that point, and was well aware that the court was about to hear evidence from Dr Keillor, he left the building. The mother was not present at court.
- The father did not attend either of the two hearings listed on 18th June. In the civil proceedings I made a final order. In the care proceedings I continued the hearing in the absence of both parents.
- Not only have the parents failed to attend hearings they have also refused to accept documents served upon them. In a statement dated 14th June 2018 a local authority solicitor sets out the difficulties she has encountered in her attempts to serve documents on the parents. For example, she says that on 5th June she sent letters to both parents enclosing copies of the hearing bundle for use at this finding of fact hearing. The letters were sent by special delivery, guaranteeing delivery the next day and requiring the recipient to sign to acknowledge receipt. The solicitor say that the letter sent to the mother was returned to the local authority with the words ‘return to sender’ written on the package. This is not an isolated occurrence. The father has been equally difficult.
- The parents have also engaged in public protests relating to the actions taken by the local authority. In a second statement the local authority solicitor records that on 14th May she,
‘observed the Respondent Mother standing outside the Council House at the bottom of the steps on Corporation Street holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”. She wandered quietly up and down the pavement…Later that day the Respondent Father joined the Respondent Mother.’
- The solicitor observed the mother walking up and down outside the Council House again on 23rd May. Following liaison between herself and staff at Derby Royal Hospital she believes that the parents have undertaken similar protests at the entrance to the hospital.
- The solicitor goes on to say that the parents’ protest was reported on the website of the Derby Telegraph. She exhibits a copy. The article appears under the headline ‘Protesters with placards vow to stay outside Derby City Council’s HQ all week’. The article names the parents but goes on to say that, ‘The Derby Telegraph has decided not to reveal the exact details of the complaint for legal reasons’.
- On Monday 18th June, effectively the second day of the finding of fact hearing, the father attended at the council offices and returned the hearing bundle for this hearing.
- The hearing on18th and 19th June was in Derby. The final two days of the hearing took place in Chesterfield. This was a late change of venue. The allocated social worker met with the parents on 20th June. He provided them both with travel warrants to enable them to attend the hearing in Chesterfield. Neither of them attended.
HOWEVER, within the care proceedings, there was not unanimity between the instructed experts as to whether the account given by the parents for the injury (O falling off a bed onto the floor from about 2 ½ feet whilst father was bending down to get a nappy) was inconsistent with the injuries, or potentially consistent with them if the Court was satisfied that the account was truthful.
The authorities are very plain that the Court is allowed to take account of the medical evidence and has to give reasons for disagreeing with it, but is not bound to follow the medical evidence slavishly and can take into account the broader factual matrix including the Court’s assessment of the parents and their evidence. That’s even more important where there is a disagreement between the experts as to the explanation given.
Dr Kalepu’s conclusion was unequivocal. In a written report dated 30th May she opines that,
‘The changing history from the father and the history of fall from a 2½ feet high bed onto a carpeted floor is not compatible with the swelling identified with an underlying bilateral parietal fractures…
The finding on the CT scan with bilateral parietal skull fractures and associated small subdural haemorrhage on the right is not compatible with the history of falling off a bed onto a carpeted floor. As the impact of such a fall from a small height would not be enough to sustain bilateral skull fractures in an immobile infant with normal bone density.
Though he has low vitamin D levels, this does not cause bilateral skull fractures in this child, because the bone density is normal. Hence it is consistent with non-accidental injury.’
- In a subsequent report dated 14th June 2017, Dr Kalepu remained equally unequivocal. She says,
‘I would like to clarify that I have not asserted that the injuries were caused by one event in my medical report. The history given by father of O falling off the bed on to carpeted floor was inconsistent with the bilateral parietal skull fractures. To sustain bilateral skull fractures it would need a significant amount of force. A fall on one side of the head would not cause skull fracture on the opposite side. Although a call would involve more than one impact, the force on the second impact during a fall would not be enough to cause a skull fracture.
The skeletal survey did not show any other bone injuries other than the bilateral parietal skull fractures.’
- The expert medical evidence does not support the robust and unequivocal conclusions arrived at by Dr Kalepu.
- Dr Stoodley said that in his view a fall from the bed as described is a possible cause for the fractures, ‘albeit unusual to see such injuries (particularly bilateral skull fractures) as a result of such domestic type trauma’. He agreed that it is possible for a single impact event to give rise to bilateral skull fractures. Though unusual, ‘such an outcome is a recognised outcome of a single impact event’. Dr Stoodley is unable to exclude the explanation given by the father as a reasonable, as opposed to a fanciful or merely theoretical, possible explanation.
- In his oral evidence Dr Stoodley said that the causative event is likely to have occurred during a window beginning 7 to 10 days prior to the date of the CT scan. In other words, the causative event did not necessarily occur on the day of O’s admission to hospital. It could have occurred earlier.
- Dr Stoodley considers the father’s explanation to be a reasonable explanation though in his opinion for that event to cause bilateral parietal fractures would be very unusual. He conceded that doctors do not know all the answers. He referred to an unpublished study undertaken by the biomechanical laboratory at Cardiff University. The study, undertaken using computer modelling, suggests that impact at certain points on the head can create forces within the skull which lead to bilateral parietal fractures.
- Dr Ward’s report is thorough and detailed. Having reviewed the evidence, including Dr Stoodley’s report, and having referred extensively to relevant research literature, Dr Ward opines that,
‘A history of a fall is common in a child presenting with a skull fracture. In this case although there was some initial variation in the history offered (falling off the bed versus being dropped by the father) it was consistently stated that the child fell in the course of changing a nappy. The father stated on one occasion that he dropped the baby but at other times in his statement he said that the child who was on the edge of the bed fell to the floor when he bent down to get a nappy from the floor. The preponderance of literature on childhood falls indicate that short falls rarely result in serious or life-threatening head injuries despite their frequency. Each credible study supports the conclusion that severe head injuries reported to be accidental unless related to a moving vehicle accident or fall from a very significant height are very likely to be the result of abuse particularly if the injuries are ascribed to falls from short heights that occur at home unwitnessed by objective observers. However, fractures may rarely result from short falls onto carpeted floors.’
- Dr Ward later goes on to say that,
‘The clinical findings in O suggested impact more than one would expect as a result of a simple fall onto a carpeted floor. Nevertheless there are examples of fractures resulting from low level falls and the scenario of bilateral skull fractures has been described as a result of a single impact.’
- Research suggests only 1 to 2% of falls from a low height, such as falling off a bed, cause skull fractures. The figure is even lower for such an event causing bilateral parietal skull fractures. For the incident described by the father to have caused these injuries would, therefore, be a highly unusual occurrence. However, as the research indicates, such events do occur. The father’s explanation is, therefore, plausible.
- As I have noted, Dr Stoodley’s opinion is that the window within which these fractures were sustained is during the period between the date of the CT scan and a date between 7 and 10 days before that scan was undertaken. Dr Ward’s evidence on timing is that,
‘It is not possible to accurately date skull fractures on the basis of the radiological appearance of the fractures; skull fractures do not go through the changes associated with callus formation seen in long bone and rib fractures. If one accepts that the soft tissue swelling to the scalp was associated with the fractures this would suggest that the fractures are recent. Soft tissue scalp swelling associated with fractures usually occurs over a period of hours or days after the injury and resolves within around 7-10 days. Therefore in this case it is likely that the fractures occurred no more than around 10 days before presentation. However there is no scientific basis for dating fractures on the basis of scalp swelling and it is not possible to use this as an indicator as to whether the two fractures occurred simultaneously or at different times within the timeframe.’
- Dr Ward highlighted a number of positive ‘red flags’ that support the father’s explanation. O had no other injuries. On admission to hospital he appeared to be a healthy, well-cared for baby who was developmentally normal. There were no intra-cranial injuries. There were no retinal haemorrhages. There was no evidence of a shaking injury. There were no rib fractures and no metaphyseal fractures. To Dr Ward’s list it would also be appropriate to add that if the father’s account is true then he sought medical advice promptly and acted immediately on the advice received, taking O to hospital straight away.
- Dr Ward sets out the results of the various tests carried out when O was in hospital. She notes that at the relevant time O had a biochemical deficiency of vitamin D. She says:
‘Biochemical vitamin D deficiency or insufficiency in the absence of radiological features of rickets has not been found to be associated with increased risk of fractures. However biochemical vitamin D deficiency in the presence of radiological changes of rickets is considered to be associated with an increased risk of fracture therefore I would recommend expert paediatric radiological review of O’s skeletal survey.’
Vitamin D deficiency does raise a red flag in a case of suspected non accidental injury, and an expert was instructed to look at that.
As I have just noted, O was found to have a Vitamin D deficiency. That raises a question about the possibility of him suffering from an underlying condition leading to easy fracture. Having examined the imaging, Dr Landes says that, the bone density appears radiographically normal and there are no features to suggest an underlying bone fragility disorder. In particular, Dr Landes is clear that there are no radiological features of rickets or of osteogenesis imperfecta.
- Agreeing with Dr Stoodley, Dr Landes goes on to say that,
‘these fractures may have occurred as a result of a fall from the height of a bed. I agree that it is also possible that these fractures may have occurred as a result of one or more than one other event.
It is not possible to determine, from the imaging alone, which of these possible scenarios is the more likely.
In the absence of a clear and satisfactory account of the mechanism of trauma or a medical explanation for the fracture, the most likely explanation for the presence of bilateral skull fractures in an infant of this age is non accidental injury,
My quick and dirty analysis of the medical evidence is that a fall from a bed is an UNLIKELY but POSSIBLE cause for the skull fracture.
Of course, the parents not being represented (so that the experts could be challenged and perhaps increase the level of possibility of it being an accidental injury, or consider the clinical features that could support that or diminish the counter proposition of it being inflicted) and not giving evidence (so that the Court could assess their credibility and whether they were consistent and honest) makes the Courts task harder.
What we end up with here is the Court making findings that the child on the balance of probabilities suffered non-accidental injury BUT accepting that the outcome might have been different if the parents approach to the care proceedings had been different. That’s very hard to swallow, but I think it is a realistic appraisal. Had these parents been represented by Paul Storey QC or Jo Delahunty QC or John Vater QC or a handful of other top NAI family law experts, I don’t think the findings would have been made.
- Before I consider each of those proposed findings, it is necessary to say something about the way the parents have approached these proceedings. At the hearing on 2nd June 2017, at which the court made an interim care order, the parents, were legally represented. Since that hearing (and, as it would appear, as a result of the outcome of that hearing) the parents have represented themselves. That was an unwise decision. Worse was to come. At the end of the hearing on 13th March 2018 the father indicated that the parents did not intend to take any further part in the court proceedings. The justification for that decision is unclear though according to the ‘Grounds of Claim’ prepared in support of the parents’ application for judicial review it would seem probable that their decision is based upon their conviction that these proceedings (including my oversight of the proceedings as the allocated case management judge) have been unfair and that O has been unlawfully removed from their care.
- Notwithstanding my own efforts and those of O’s social worker, the parents now steadfastly refuse to engage in these proceedings. I echo the sentiment of the social worker, Gideon Zeti, who in his statement dated 30th April 2018 said,
‘While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met’
- The parents’ failure to engage defies all logic. The effect of their failure to engage could prove to be catastrophic for them and for the son whom they clearly love very much indeed. I share Mr Zeti’s sense of sadness.
- I turn now to the findings sought by the local authority. It is appropriate to deal with the first and second findings together:
‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father.
- As a result of the assault(s) at 1 above, O suffered serious inflicted injury including:
- Soft tissue scalp swelling in both parietal regions which is more extensive on the right.
- Bilateral parietal lucencies consistent with linear fractures in both parietal bones.
- Very small collection of extra-axial acute blood on the right-side swelling.’
- These two paragraphs require the court to answer two questions, First, has O sustained any injuries? Second, if he has sustained injuries, are those injuries accidental or non-accidental in origin? In using the expression ‘non-accidental injury’ I have well in mind the cautionary words of Ryder LJ in Re S (A Child)  EWCA Civ 25 at §19 concerning the use of that expression, to which I referred earlier.
- Has O suffered an injury? More particularly, has he sustained bilateral parietal fractures? In light of the medical evidence referred to earlier in this judgment the answer may seem to be obvious. However, it appears to be the parents’ primary position that O has not sustained any skull fractures.
- Two of the treating clinicians and two of the medical experts have given oral evidence at this hearing. Notwithstanding the absence of the parents, that evidence has been appropriately tested in cross-examination by the solicitor for the child. In my judgment, the medical evidence makes it plain that O has indeed sustained bilateral parietal skull fractures with associated swelling to his scalp and a very small collection of extra-axial acute blood beneath the right-side swelling. I am satisfied on the simple balance of probabilities that that is indeed the case.
- The parents’ secondary position is that the skull fractures are birth-related. Once again, there is nothing in the medical evidence before me to support a finding that these injuries are birth-related. On the contrary, Dr Stoodley is very clear that they are not birth-related. I am satisfied on the simple balance of probabilities that these injuries are not birth-related.
- Either O’s injuries have been caused accidentally or they are non-accidental. The parents’ position appears to be that if the court does not accept their primary and secondary positions (i.e. that O has not sustained bilateral skull fractures or if he has then they are birth-related) then the only other explanation is that they were caused when he accidentally fell onto the floor on 27th May 2017. The mother says that she was downstairs when this incident occurred. She did not witness it. The only witness is the father.
- Were the injuries caused as a result of an accident? There are a number of factors that support the parents’ contention that O’s injuries are the result of the low-level fall described by the father. The positive factors which appear to make the parents’ explanation credible are that,
(i) There is research evidence that between 1% and 2% of falls from a low height cause skull fractures. That evidence also suggests that low-level falls have on occasion caused bilateral skull fractures, though the incidence of bilateral fractures is lower than the figure for single fractures. Dr Stoodley and Dr Ward are both agreed that although the parents’ explanation is an unlikely mechanism for the causation of O’s injuries, their explanation provides a possible and not merely a fanciful explanation.
(ii) A skeletal survey did not disclose any other fractures.
(iii) At the time of O’s admission to hospital he was noted to be well-cared for, well-nourished, putting on weight at an adequate rate (he was on the 25th to 50th centile) and developmentally normal. Save in respect of the head injuries, there was nothing in O’s presentation that gave cause for concern.
(iv) Both in hospital and subsequently during contact, both parents have been observed to be loving, caring and capable of meeting O’s needs. It is clear that O is the apple of his parents’ eyes.
(v) Whatever may have happened on 27th May and whether or not they did, in fact, call 999, it is clear that the parents contacted the hospital for advice, that they did so promptly and that they acted on the advice they were given by taking O to hospital immediately.
- Against those points, there are other issues which raise concerns about the parents’ explanation and their reliability as witnesses.
(i) The father’s account of O falling onto the floor is not consistent. When he telephoned the hospital he told Staff Nurse Young that he had dropped O. When he gave a history to Dr Keillor, initially he said that O had fallen off the bed. Given that O was a wholly immobile child, that would appear to be an unlikely explanation. Later in that same interview the father said to Dr Keillor ‘actually I dropped him’. Later, when giving a history to Dr Kalepu, he said that O had fallen from the bed onto the floor.
(ii) The parents say that they called 999 but the East Midlands Ambulance Service has no record of the call. Production of the parents’ mobile phone records may have confirmed their account. Despite being ordered to do so the parents have failed to produce those records.
(iii) The parents were not wholly cooperative at the hospital. They were asked to give their consent to a skeletal survey being undertaken. Initially they refused. They later consented.
(iv) The father was not open with the police when interviewed. During his interview the father repeatedly said, ‘I choose not to answer that question at the moment’.
(v) Notwithstanding their entitlement to non—means and non-merits tested legal aid (i.e. they were entitled to free legal aid) the parents chose to act as litigants in person, a decision that was irrational and counter-productive in equal measure.
(vi) I have earlier expressed concern that the mother’s decision to act as a litigant in person was a decision imposed upon her by the father and not a decision that was freely made.
(vii) In issuing proceedings for judicial review and in taking, copying and threatening to publish confidential information which he had obtained in circumstances which bordered on the dishonest, the father demonstrated that he is not focussed on the needs of his child. This impacts on my assessment of his credibility.
(viii) The expert medical evidence is to the effect that there is a window of time within which these injuries may have occurred and that window began 7 to 10 days before the CT scan was carried out on 27th May. Dr Ward’s evidence is that the swelling to the scalp ‘usually occurs over a period of hours or days after the injury’. The parents have not provided any account of the events of the days leading up to O’s admission to hospital.
- In addition to all of the factors outlined in the last two paragraphs is the fact that the parents’ have chosen not to give oral evidence at this hearing. Although the burden of proof rests upon the local authority and although the parents do not have to prove (whether on the simple balance of probability or otherwise) that their account of a low-level fall is the causative event, their failure to give evidence means that their credibility simply cannot be tested.
- As Baker J aid in Re L and M (Children)  EWHC 1569 (Fam), the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. In this case the court has been denied that opportunity. What is the consequence of that failure?
- In Re O (Care Proceedings: Evidence)  EWHC 2011 (Fam). Johnson J was very clear. He said, that ‘As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.’
- I have come to the conclusion that I am satisfied on the simple balance of probabilities that O’s injuries are non-accidental injuries. The expression non-accidental injuries covers a spectrum from the negligence to the deliberate infliction of injuries. Although the parents have not given evidence at this hearing, the totality of the evidence before me leads me to the conclusion that I am satisfied that these injuries are the result of an incident that falls at the lower end of that spectrum.
- I turn next to the third finding sought by the local authority:
‘3. The assaults and injuries were inflicted by:
- The Mother, or
- The Father, or
- The Mother and the Father, or
- The Mother and/or the Father’
- The window of time within which these injuries were sustained commences 7 to 10 days before the CT scan. The parents do not live together. The mother is O’s primary carer. For most of the time during that window O was in her sole care. The father only had care of the child on the days when he visited the mother from his home in Liverpool. Much of that care will have been in the presence of the mother, though it is clear that during those short contact periods there were times when O was in the father’s sole care. The father describes such an occasion on 27th May 2017.
- I have come to the conclusion that it is not possible, on the simple balance of probabilities, to identify the perpetrator. The perpetrator is the mother or the father. The evidence, and not least the parents’ failure to give oral evidence, does not enable me to go further.
I think it is very likely that there will be an appeal of this decision, and it will be very interesting to see how the Court of Appeal approach it. To borrow from criminal law, it seems that this has the hallmarks of an ‘unsafe conviction’ yet the reason for that is the parents unwillingness to participate in the process. That poses a massive and difficult question for the Court of Appeal – do they approach it on the basis that the parents made their bed and must lie in it – which runs the risk of unfairness and the incorrect conclusion OR overturn the decision and send it for re-hearing, which opens the door for any parent to have a second bite of the cherry by stymieing the process by non-engagement, which surely the Court of Appeal would be wary of doing.
It’s a very tricky one. If I knew these parents, I’d be telling them to get lawyered up as soon as possible.