Re R (fact finding) 2015 http://www.bailii.org/ew/cases/EWFC/OJ/2015/B95.html
May I pass my hearty congratulations on to Her Honour Judge Atkinson, who has conducted and reported a case which has allowed me to use a Stevie Wonder reference. Any Judge who is keen to appear on these pages would have a good chance if they name their case Re A (Sir Duke) 2015….
Also, it is a case where the Judge’s summary of the legal principles on a finding of fact hearing is done impeccably and with brevity and verve. I will be lifting this for months to come, and I commend it to others. [It borrows heavily from Re BR, which is also a thing of beauty. https://suesspiciousminds.com/2015/05/21/proof-of-facts-high-court-guidance-on-disputed-injuries/ ]
Look upon her works, ye mighty and erm, hit Ctrl C then Ctrl V :-
- The Law
- The local authority brings this case and it is for the local authority to prove the facts. The standard of proof is the balance of probabilities: I have to be satisfied that it is more likely than not that the event occurred. It is as simple as that. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. To quote Jackson J: Re BR (Proof of Facts) EWFC 41
” 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.”
- Evidence comes in many forms and in my discretion the different forms of evidence will be more or less persuasive. In this case there has been evidence from experts and from lay parties. There is no magic in the evidence of an expert. All witnesses come to the witness box as equals. They may not leave as equals but that is a matter for me to assess. 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. Each piece of evidence must be considered in the context of the whole.
- Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance. To quote Jackson J again (Re BR supra): “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………. 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.”
- It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
- Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA  2 FLR 849). In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children)  2 FLR 668, Re SB (Children)  1 FLR 1161).
Seriously, if you set up a competition to set out the legal principles involving physical injuries, I’d be very impressed if anyone could beat this entry.
Anyway, on to the superstition bit.
Things hadn’t started well for the family when they moved into new accommodation, that had been previously occupied by others.
There has been evidence from each of the parents that on the blinds in the bedroom it looked as if the word “hell” or possibly “help” had been written. The mother joked about it being a sign of something bad in the house. The father undoubtedly found it unsettling.
[okay, the writing was on the blinds, not on the wall, but the case is about superstition, and writing being on something… I’ve been far more tenuous in the past, and will be in the future]
One of the features in the case was the father’s superstitions and his belief in ‘bad spirits’ (and explicitly whether this was an indicator that of the two parents, he was the one responsible for the injuries to the child)
- The concerns expressed regarding father’s belief in “bad spirits”
- A major part of his evidence was directed towards the issue of his religious beliefs. This part of the evidence has troubled others more than it has me. I note that even the Guardian alerted the parenting assessors to his belief in “evil spirits”. It was put to him from early on in his evidence that he had told the police in his interview that he believed his son to be occupied or possessed by the devil/ an evil spirit. This has caused some to insist that he has a possible mental health issue. There is no other evidential basis for this assertion.
- I have found this young man to be completely open and frank about his religious beliefs and from where they emanate. He has been brought up by a mother whose religious beliefs might be considered by some to border on “superstition”. However, when you peel it back and give him the opportunity to explain I have found nothing concerning in his views.
- I am quite satisfied that what he was seeking to explain in his police interview and in his evidence before me was a strongly held belief that something other worldly and possibly disruptive, evil if you like, bringing bad luck could be warded off through prayer. There is nothing unusual in such a belief. Many mainstream Christian faiths have their homes blessed by a priest before occupying. Other faiths have prayers written on paper rolled up into a container and nailed above the door to keep their home safe. The crucifix over the entry to the home. The blessing of a baby by a practising catholic before christening lest anything untoward might happen. Crossing your fingers. In my judgment these are all examples of the same thing.
- He denies that he has been accurately reported by the SW. I have not heard the evidence of the SW – it has not been necessary but I am prepared to believe that even if it she accurately recorded what she believed he was saying it was misunderstood and I am prepared to believe that because of the reaction I have seen to this subject – the excitement that is has caused – just in this hearing.
- In his interview with the police he was questioned for 3 ½ hours without a legal representative. He is led by the officer questioning him on many of these issues such that it is not clear what he might have volunteered. He didn’t have a chance. I am afraid that I consider that he has not been given the chance to explain himself to his partner and her family either. I think it entirely possible that in this case everyone has been looking for an explanation as to how this baby has suffered such significant injuries in the care of a couple about which there have been no contra-indications to date. As a result, those investigating seem to have been prepared to latch onto anything apparently unusual. In my view this issue about extreme religious beliefs is a red herring.
The Court did make findings that the injuries were caused by one of the parents, but that there was not sufficient evidence to identify which or exclude either of them.
To finish off I am going to indulge myself and you, with some of the greatest songs ever [waves at Camilla Wells from 1 Crown Office Row]:-