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Sibling rivalry

 

In Re P (A child) 2015, His Honour Judge Wood had to deal with an application for a Care Order for a girl who was sixteen years and four months old. That in itself is unusual. Even more unusual, the central allegation was that of physical abuse (which was disputed by the family). More unusual still, the allegation was that the girl had been physically assaulted by her older brother.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B101.html

 

Now, if you have a sibling, you might be thinking along similar lines to my initial reactions.  My sister and I fought, not like cat and dog, but like two fighting roosters whose feed had been laced with PCP. We fought about absolutely everything. No topic was too trivial , no imagined slight too minor.  That did occasionally spill into physical conflict. I’m sure that my sister has many dreadful stories about me – many of which would be true, and I will simply indicate that there was a day at Pwllhlei Butlins putting green where she hit me with some degree of force on the nut with a golf club  (from behind) and when it knocked me out, ran off and spent the rest of the afternoon in the arcades playing Burger Time.  She also once hit me full in the face with a tennis racket swung with genuine purpose and intent (but as I recall, that was warranted, though painful).

 

This story, however, goes rather further even than those (admittedly shameful) incidents.

 

At 18.11 hours on Monday, 20th June 2014 P, a girl born on 28th October 1998 and now aged 16 years 4 months, was admitted by ambulance to the emergency department of Hospital A. She was found to have six distinct areas of injury: the first were three red linear marks on the right upper thigh, 1cm by 6cm long; second were two linear marks on the outer aspect of the left forearm, 4cm by 1cm wide; the third was an oblique red mark across the left upper outer thigh, 10cm by 1cm; the fourth was a bruised area, circular in shape, 3cm in diameter with a contusion over the left shoulder tip; the fifth was a linear bruise to the left upper outer arm approximately 4cm by 1cm and the final were a number of red marks across the lower thoracic area, that is to say the back, approximately 3cm by 1cm to the left and right of the midline.

 

 

The fact that the girl had been injured was not therefore in dispute, what was disputed was how these injuries had occurred.

The girl said that she had been at home, watching television and that she and her brother had had an argument (he wanting to turn the channel over to watch football and she wanting to finish watching what she had started), whereupon he started hitting her, escalating to hitting her with an iron bar.

 

The brother said that the girl had come home from school, complained of being hot and fainted from the heat.

It had of course been June when this happened, so perhaps it was hot. However, the girl had grown up in Nigeria and only been in England for a year.   And the family were living in Sunderland. Perhaps the weather in Sunderland that particular day was so hot that a girl who had spent 13 of her 14 years in Nigeria was unaccustomed to such heat and it caused her to faint.

 

The weather in Sunderland on 20th June 2014 was pretty hot for Sunderland. 20 degrees Celsius.  Looking at the weather in Nigeria in the year before, when the girl had been living there, 20 degrees C would represent a brisk chilly day in Nigeria, with a hot day being about 33-36 degrees.

https://weatherspark.com/history/28568/2013/Ikeja-Lagos-Nigeria

 

I have to say that the ‘fainting from heat’ explanation is in need of some work.  I suspect that “Girl Faints from Heat in Sunderland” would be headline news in the North East were it ever to happen.

 

[Actually out of curiosity, I just Googled ‘Sunderland heat wave’ ready to tell you that there were no results, but there were 168,000. Perhaps many of them were along the lines of  “Ed Milliband making a comeback as Labour leader in 2020? That’s about as likely as a Sunderland Heat Wave”]

 

The brother’s evidence became less credible when, for example, he denied that the iron bar was something that he had ever seen before and then retracted this when it was suggested to him that his DNA would be on it.

 

The mother, who had been present, and her father (who had been in Nigeria) both supported the brother’s version of events.

The cultural issue of course raised its head, and the Judge dealt with that

  1. Before considering which evidence I prefer, I want to say a word about cultural issues. This family come from a remote part of Nigeria. English is not their first language, albeit they have a good command of it. They are, as I have said, born again Christians and they seek to live their lives by a strong religious code. Their cultural background is in many ways very different to that which exists in the north east of England. They do things in Nigeria which are acceptable there but not here.
  2. Specifically, physical chastisement of children is normal. The father’s evidence was very clear that for what he called an accountable child, probably from the age of 10 onwards, whipping a child on the legs with African broom or with a cane as part of a process of punishment and learning is normal. It is not so long ago, certainly within the lives of some of the lawyers here, that such was acceptable in this country and so the court has no difficulty at all in accepting that but, given the way that this case has proceeded, its relevance is limited because it is not said either by the mother or R that this is what happened to P. Rather, they say she was not struck at all but I do accept that P and R are likely to have a more benign view of physical chastisement on a child than most British people would have in 2015. All that said, I agree with Mr Donnelly that this is not a case about chastisement in a different culture but a case about significant harm in the care of a mother.
  3. I accept that, further, there is a strict hierarchical structure within families whereby the father of the house, whether he is there or not, has to be consulted on important decisions. That has had significant practical consequences given parental separation here and I accept that it may have played some part in the refusal to consent to P being accommodated, as well as the initial engagement with the Local Authority and possibly even going to court in the early stages which I have no doubt is both a frightening and possibly shameful thing for the mother, in particular, to have experienced. So I have all of these factors very much in mind in making the decisions that I have to and I will return to this in due course.

 

 

The Court had to consider the evidence given by all parties, and of course the legal framwork, which is all very carefully set out. It is a very well constructed judgment.

  1. So which evidence do I prefer? Unhesitatingly, that of P. There is no more explanation for her lying now than there was in June last year. The lengths to which she went in feigning a faint point to the seriousness of the assault that she suffered. The instincts of the ambulance man first on the scene were, in my judgment, entirely correct. The injuries are entirely consistent with her account. They are all about the same age and fresh. They have the characteristics of being hit with an object such as a table leg in their linear appearance. They affect the outer aspects of both thighs, the outer aspects of the left arm and the back. They are not consistent with a simple collapse to the floor. They are, as Dr Mellon said but the mother, father and R denied, characteristic of defensive injuries. It appeared to be beyond the father and R’s comprehension that P would not fight back. She is described elsewhere as an underweight, 15-year-old girl of slight build pitched against a 19-year-old male who appeared to be over six feet high and who was armed and one might have thought that that was a sufficient reason to adopt a defensive position rather than try and fight back.
  2. There is simply no other explanation for these injuries, just as there is no reason put before the court as to why, as R said, P would want to put herself in care and be separated from her family. I reject her father’s submission that because P has told him that she has been refused permission to go to church and to foster care, to the foster carer has said that she does not want to go, that she is demonstrably untruthful or unreliable. There could be many reasons for two different accounts at different times and there has been no opportunity to investigate the circumstances in which those accounts were given in any event. I also reject R’s submission that because she identified her shoulder to the ambulance man, she was thereby not complaining of being beaten by her brother. The medical evidence, in my judgment, is clear. There is no alternative, credible explanation.
  3. The evidence of the mother and R, far from causing me to question her veracity, confirms that they were neither credible nor reliable. I found R to be evasive, argumentative and unwilling to confront the truth staring us all in the face. I could say more about it but I am satisfied, as it happens, that in her letter P has described her brother to a tee:

    “My brother is not a type of person that says sorry so easily. He is a type of person that is so proud and full of himself.”

    It seemed to me that that was a very accurate description of a rather arrogant and self-centred young man. I am quite satisfied that he is an intelligent and articulate man. Having seen him give his evidence and be cross-examined, I am quite sure that he was generally intent on ensuring that he gave answers which supported and/or did not undermine his case rather than trying to tell the truth, the whole truth and nothing but the truth at all times. Accordingly, I did not find him credible and reliable.

  4. I am satisfied that R lost his temper with his sister over an argument about the television. He wanted to watch the five o’clock football match and would not let her finish the programme that she had been watching for some time since she came in from school and, not for the first time, he responded with violence. I am satisfied he beat her with a table leg and caused the injuries that I have noted and, furthermore, I am satisfied that P’s mother knew that this is what had happened for the very reason that she saw it. I pay due regard to what her husband has said about his belief in her veracity but I do not believe that she intervened but, in seeking to deflect attention at the outset, suggested that very thing to the police only to back away from it, as she did, when the seriousness of the incident became known.
  5. P’s shock and distress at her mother not intervening was marked and entirely understood. Although the mother told me that both R and P are her children and that she loves them equally, by her conduct she has demonstrated that, in fact, she has put R’s interests before her daughter. She has protected him when she knows the truth of what he has done. She has almost inexplicably abandoned – and it is not too strong a word – her daughter by denying her contact, putting up as obstacles the Local Authority’s perfectly reasonable conditions. Most parents would walk over hot coals to see their children, however objectionable the terms, because to do so would be to prioritise the child and to meet the child’s needs to see her family. Furthermore, she is not ignorant of the role of social workers. Her professional training and experience over a period of almost ten years contradicts her claim. She may very well be ashamed at the misfortune that has befallen her and her family but she simply has persistently refused to engage in this process as I will explain.
  6. So looking at the threshold document prepared by the Local Authority in the bundle at A16, I am satisfied it is made out as pleaded. That refers in paragraph 4(a) to the injuries themselves, in paragraph (b) to R being the cause of the injuries, being struck by an iron rod and that it was causing her pain, in subparagraph (e) that the mother has been complicit in that physical abuse perpetrated by her son in that she knew or ought to have known it was happening and had failed to tell anyone so as to protect her own interests. She misled professionals and, indeed, now the court about her son having assaulted her daughter and instead alleged that P is lying about the abuse she has suffered and following P’s admission to hospital and subsequently care has, as I have said, abandoned her daughter preferring to protect her son.

 

The family in this case had adopted a strategy of not engaging with the assessment or coming to contact, which is the all or nothing approach that only really ever works if the Court find that the threshold is not met. In a case like this, where the Judge found that the brother had caused very serious significant harm to the girl by hitting her with an iron bar, and that the mother had been in the home at the time, had not intervened and had lied about it, that is not really giving the mother much chance of a happy outcome.  They absolutely would not countenance the brother moving out of the home so that the girl could come home.

 

Even then, though, the Judge was holding out a hand and inviting the parents to take it

I want to say this at this stage: it is still not too late for this family, mother and R in particular, to accept the findings of this court, to make a suitable admission and to work with the Local Authority to reduce the risk both to P and any other children with whom they may be concerned – a very particular concern of P as she said in her letter to me

 

The Court had to make the Care Order, there was no other option

 

This is a very, very sad case. It began as a one issue case, the assault. It could, as Mr Rowlands has said, have had a very different outcome. That it has not is entirely due to the family and not their daughter. It has ended up as more than that because of the astonishing and persistent denial in the face of all of the evidence and the near complete rejection of P by her family. The harm to her from the latter is likely to outweigh the harm from the former in the longer term but, I repeat, even now it is not too late to reverse that process. These parents have an attractive, appealing and loving daughter who has shown the Christian virtues of forgiveness and love that they taught her. She really deserves a very much better outcome than this but I am afraid the solution lies entirely in their hands.

 

One particularly worrying feature of this case was the removal of the child by Police Protection. The mother having refused section 20 and the girl at that time not being sixteen so she was not able to accommodate herself using section 20 (11).   However,

I want to register my extreme concern at the level of force which was used when the police recovered P from her home when she ran away from foster care in September. She was handcuffed, under what power is not clear, and the incident is said to have been recorded because of its nature. This incident needs to be noted and taken up by the Local Authority in conjunction with the police. It is ambiguous from the statement as to whether a social worker was actually present when it happened. It has not formed part of the material evidence before me but it was an extremely unfortunate incident, it was harmful to P that her guardian was rightly horrified about. I do not know what the Local Authority response to it was at the time, what its response has been since and I do seek separately an explanation from the Local Authority and the police as to the circumstances that were pertaining and as to what measures have been devised and agreed upon to avoid a repetition of such an event in the future.

 

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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

 

(a) The interests of the child (relevant not paramount) I have to consider whether it is in the interests of the children that the application is pursued. There is, I can acknowledge, nothing in the material which actively supports the contention that it is in the interests of any of the children for the fact-finding hearing to go ahead; I can say with reasonable confidence that it be contrary to J’s interests for it to do so;
(b) The time the investigation would take This fact-finding hearing is listed for 12 days – 10 further court days from now. If the threshold were established, there would be likely to be a second stage hearing some way down the line IF I were to find that the threshold were crossed
(c) The likely cost to public funds The cost to public funds would be highly significant given the estimate for the length of the hearing (above) and the fact that the parties are rightly (given the issues involved) represented by leading and junior counsel
(d) The evidential result It is difficult to assess the evidential result were I to conduct a factual enquiry; I have attempted no more than a rough forecast on the information available, and cannot say with any confidence at all that the picture at the end of a long enquiry would be any clearer from what appears now.
The key components of the account of the incident have been maintained by the protagonists up to now, and are broadly consistent; I would need to be satisfied that there was a real chance of a clearer evidential outcome.
(e) The necessity of the investigation I am not convinced that the investigation is necessary, given that it appears to be the intention of the Local Authority to reconstitute this family sooner rather than later;
(f) The relevance of the potential result to the future care plans for the child; The enquiry is unlikely to have any effect on the future care plans for the child; in this respect the situation can be distinguished from the decision of McFarlane J in A County Council V DP, RS, BS (By The Children’s Guardian)
(g) The impact of any fact finding process upon the other parties I am particularly concerned about the impact of the fact finding process on J. I am aware that only J can provide a direct account of the alleged events. The accounts of the Mother and the Father are, necessarily, secondary, rehearsing what J told them of the event itself and describing only the aftermath directly. The pressure on her of the process would be not inconsiderable.
J’s ability to give a clear and coherent account of the events may be affected not only by her own limitations – such as they are – but also by the shock and panic associated by being in the vicinity of the events.
I have been told that J has already been advised that she may well not have to give evidence; whether that was sensible is a moot point given that this decision was not yet available, but I nonetheless note that she was described as “buoyant” to discover that she may well be spared the process of recounting her events to the court, however sympathetically we were to arrange that for her
(h) The prospects of a fair trial on the issue; I believe that a fair trial is possible; arrangements have been discussed and agreed for J to give evidence
(i) The justice of the case The justice of the case lies in reaching a swift, reliable, welfare-based conclusion for the children.

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.