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Tag Archives: non-accidental injury

Parents refusing to participate

 

 

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) [2018] EWFC 48 (29 June 2018)

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/48.html

 

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.

 

 

 

  1.        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.

 

  1. 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.

 

  1. 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.

 

 

 

  1.    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.”’

 

 

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.’

 

 

 

  1. 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.

 

  1. 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’.

 

  1. 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.

 

  1. 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.’

 

 

 

  1. 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.’

 

 

 

  1. The expert medical evidence does not support the robust and unequivocal conclusions arrived at by Dr Kalepu.

 

 

  1. 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.

 

  1. 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.

 

  1. 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

 

  1. 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.’

 

 

 

  1. 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.’

 

 

 

  1. 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.

 

  1. 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.’

 

 

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

 

 

 

  1.        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.

 

  1. 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’

 

 

 

  1. 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.

 

  1. 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.

 

  1. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including:

 

  1. Soft tissue scalp swelling in both parietal regions which is more extensive on the right.

 

  1. Bilateral parietal lucencies consistent with linear fractures in both parietal bones.

 

  1. Very small collection of extra-axial acute blood on the right-side swelling.’

 

 

 

  1. 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) [2014] EWCA Civ 25 at §19 concerning the use of that expression, to which I referred earlier.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

  1. As Baker J aid in Re L and M (Children) [2013] 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?

 

  1. In Re O (Care Proceedings: Evidence) [2003] 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.’

 

  1. 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.

 

  1. I turn next to the third finding sought by the local authority:

 

‘3. The assaults and injuries were inflicted by:

 

  1. The Mother, or

 

  1. The Father, or

 

  1. The Mother and the Father, or

 

  1. The Mother and/or the Father’

 

 

 

  1. 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.

 

  1. 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.

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All is not well with child protection in North Wales

That’s an intriguing hook for a judgment. It comes from a decision of His Honour Judge Jones, sitting in Prestatyn. (For the benefit of David B – not precedent, not binding )

There are two judgments. The first

Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B101.html

discusses a scenario in which a Local Authority sought, and obtained, an Emergency Protection Order on the basis of a medical report that said that a baby had a rib fracture (and a bruise to the face – it being accepted by father that he caused the bruise). The child was removed into care (luckily placed with grandparents) and 13 weeks later a second opinion concluded that the rib fracture was the result of a birth trauma. The child was returned to the parents and the proceedings withdrawn. The judgment explores what went wrong and why the first medical report had not said that birth trauma was a possibility.

The second (annoyingly named) case

Is Re E (A child) 2017
http://www.bailii.org/ew/cases/EWFC/OJ/2017/B100.html

in which, because of the complaints made against third parties in the first judgment, those third parties were represented to make their own representations as to whether those complaints were fair.

So,let’s go to the first judgment and look at the full quotation from the headline

 

 

53. All is not well with child protection in North Wales. I believe there have been significant deficiencies in the joint agency working this case. Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency. A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.

54. Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.

 

I would like to pause now, and just consider for a moment what you take “all is not well with child protection in North Wales” to mean. I know that I had a fairly immediate reaction to the sense of the scale of the problem that the Judge saying that was seeking to convey.

We’ll skip now to the second judgment, where this particular phrase was pecked at by lawyers and the Judge clarified it. The “Third Intervenor” is the hospital where the original doctors were based.

 

59. Accordingly, the first sentence of paragraph 53 is not an exclusive reference to the Third Intervenor. ‘All is not well with child protection in North Wales’ means no more than that. E’s case demonstrated that things could be better. Were it otherwise, no improvements would be required at all. ‘All is not well’ does not mean that ‘everything is bad’. It is not intended to lead to an unnecessary lack of public confidence, and I do not believe that any careful and intelligent member of the public would ascribe to this sentence such a meaning. I have no idea whether anyone will pay any attention whatsoever to the judgments delivered, despite my request in paragraph 53. However, I do not propose to withdraw that first sentence which, at the time it was delivered, was no more than an accurate and measured indication of my honest conclusion at the time.

 

 

My reading of the clarification is something more akin to “There has been a significant problem in this case which needs careful attention to be sure as to whether there is a systemic problem” whereas my original reading of “all is not well with child protection in North Wales” is much more serious.

If I was attributing a scale whereby 0 was perfection and 10 was utterly meltdown disaster, I would say that the “all is not well with child protection in North Wales” would be a 7 or 8, and the clarification would suggest it was more a 4 or 5. So I would, have ascribed to the original remark that the Judge had a lack of confidence in the system’s ability to act properly – I like to think of myself as a careful and intelligent member of the public.

Would be interested to see where readers would place the ‘all is not well with child protection in North Wales” on that 0-10 crisis scale – and where they place the facts of the case too.

 

On my crisis scale, for example,  3 is “I’m at Jurassic Park and the air conditioning doesn’t seem to be functioning as it should”  and 9 is “I’m at Jurassic Park and a beast that is intended to be able to eat a T-Rex has got loose and wants to eat me, also that volcano that I assumed was just a photogenic backdrop is exploding”.   If you don’t know this about me, I would TOTALLY go to a real Jurassic Park, even if there was a sign above the entrance that said  “Four hours since last fatal incident to a guest”.  If you’ve got to go, I want it to be via being impaled on the horns of a Triceratops.    So, is this a glitch in the air con, a gap in a fence, a velociraptor’s claw jiggling the doorhandle from the other side of the door, or the volcano getting jiggy with it?

 

 

The triceratops totally wins this fight. Also, Hammerhead can beat up Chewbacca. And Batman is way way way cooler than Superman (c) most of my childhood

 

Back to the facts.

Dr B,a consultant paediatrician

13. Dr B, in the Child Protection Report dated 21st September 2016, identified the bruising evident upon examination, and he noted also the history. Under the heading “opinion” he indicated:

“… it is possible that the bruise was caused by the father’s over-enthusiastic manipulation of the baby’s cheeks”

as explained by the father, and as noted from an early stage by Dr B in his report.

14. I am puzzled, however, by some aspects of this report. Under its heading it is stated:

“This report does not constitute a witness statement”

and it is described as being:

“Private and confidential – not to be disclosed without the permission of the author”.

It is perfectly true that this report does not comply with the requirements of the Family Procedure Rules for the preparation of witness statements. No permission under Part 25 of the Family Procedure Rules could be given at this early stage of the child protection investigation, because proceedings had not been commenced.

15. However, local authorities inevitably use (and are usually obliged to use) the reports of investigating clinicians, when children are routinely presented at the casualty department of a local general hospital. These reports are often used as the basis of applications for protective Orders at the initial stages of proceedings, under the Children Act 1989.

16. Such a report is not in these circumstances “private nor confidential”. While it may not be a witness statement, it is certainly relied upon by the Court as evidence which may be supportive of the Local Authority’s initial application, which may include an application for a removal of a child from parental care.

17. It may be necessary to clarify this position with the Third Intervenor and its clinicians as a matter of urgency. Child protection is a difficult task but it is a critically necessary task. Medical clinicians are required to provide the relevant medical evidence so that a child may be protected and avoid harm. This may involve the use of reports provided by examining clinicians in Court proceedings. Privacy and confidentiality simply cannot be guaranteed in these circumstances. If clinicians refuse to provide medical reports in these circumstances, then it is up to the Third Intervenor to make the necessary contractual modifications to ensure that this critical medical service is afforded to vulnerable children in North Wales.

 

There was then an internal second opinion, by Dr A, a paediatric radiologist (from a different hospital). Note the passage of time between the two reports – around 3 weeks. It SEEMS that this was intended to be an internal memo from Dr A to another doctor, Dr F, but it was the document produced to the Court at the EPO hearing.

 

18. Dr A’s second opinion, dated 13th October 2016, confirmed:

(i) a radiologically normal bone density;

(ii) a fracture between two to four weeks of age at the time of the skeletal survey;

(iii) that rib fractures resulted from abnormal, excessive squeezing/compressive forces applied to the chest;

(iv) “… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

19. Dr A was subsequently asked to clarify this last opinion. She was “unsure as to what has caused confusion” on 26th October 2016 (see E9). She continued:

“If a satisfactory account of the mechanism of injury has not been offered and there is no evidence of an underlying medical cause for the fracture (as determined by the clinicians) this fracture may have been caused by inflicted or non-accidental injury (interchangeable terms) and this must be excluded by other investigations – not just imaging”.

20. By this stage, the possibility of a birth trauma was evident and had been raised. E was four weeks and four days old at the time of the skeletal survey. Whereas E’s age must have been known to Dr A as part of the background information supplied by Dr F for the review, (it is noted specifically at the head of her report under E’s name) there was no mention of this birth related causation in the initial report dated 13th October 2016. It was this report which led to the granting of the Emergency Protection Order on 19th October 2016.

 

So those were the reports from effectively the treating medics. The Court directed for court-appointed experts to consider the case and give a second opinion. Dr M, a paediatrician and Dr C a radiologist

 

21. Dr C in the report dated 12th December 2016, has confirmed:

(i) E was a heavy baby;

(ii) shoulder dystocia (obstruction by the shoulders) occurred during E’s delivery;

(iii) compression and distortion of the infant chest by the McRoberts manoeuvre ensued.

At paragraph 15:

“Thus the radiological evidence is consistent with a fracture three to five weeks old on a date when E was nearly five weeks old. From a radiological perspective alone it is not possible to exclude an injury sustained at birth”.

22. Dr M, from paragraph 49 of his report of 19th December 2016, stated:

“… there would be little doubt that there is potential for birth to have caused E’s fracture”.

In relation to the facial bruising at paragraph 76 Dr M indicated:

“… it would have been possible for (the father) to have caused bruising to E’s face but I would not imagine that this could have been done without E experiencing pain and becoming distressed if forces sufficient to cause bruising had been involved”.

23. The father has always admitted this injury, which would of itself probably not have merited the removal of E from parental care.

 

Having received those reports, the Local Authority accepted the medical consensus which emerged which was that the rib fracture was caused during birth, and thus was not the fault of either parent, and withdrew their application.

 

The Court identified several matters arising

Matters arising

(a) Photographic evidence

28. I shall provide a summary of Dr W’s reply, on behalf of the Third Intervenor, and then I shall provide my response thereto:

(i) The reply

29. Cameras are available for doctors to take photographs of injuries as “good practice”.

My response

30. I do not know whether these cameras are available at all Third Intervenor hospitals when child protection medicals take place. I have received no confirmation of this by the Third Intervenor.

(ii) The reply

31. Photographs taken by medical practitioners should not be relied upon for evidential purposes.

My response

32. Why not? In children’s cases this evidence would be potentially admissible and it would be relevant. It might be technically preferable for the Police forensic photographer to take good quality photographs, but where this has not occurred I do not understand the basis of Dr W’s assertion, at least in children’s proceedings before the Family Court.

(iii) The reply

33. Doctors need the consent of parents/from the holder of parental responsibility to take photographs. Where this is not forthcoming the Police should have insisted and the photographs should then be taken by the Scenes of Crime Police Officer.

My response

34. There is no indication in the Police chronology that in this instance (since there was a question mark over parental consent) that the Police were alerted, nor did they take photographs as part of their Police investigation. This should, in my judgment, be a matter of routine. Photographs of suspected inflicted child injuries should be taken at the hospital, either by the hospital itself, or alternatively with the assistance of X Police Authority, and if consent is not forthcoming Police involvement is required as a routine procedure. Evidentially these photographs (with any diagrammatic and written recording) is critical for both the Criminal and the Family Courts. The failure to provide this facility potentially compromises the safety of children.

(iv) The reply

35. Body/facial diagrams of relevant injuries must also be included as standard, and routine for the Court and for expert usage.

My response

36. I have no response to make with regard to that reply.

(b) The initial medical evidence

37. I shall summarise the reply given by the Medical Director of Y Hospital [hospital identified] and my response thereto:

38. The reply

(i) The second opinion/review provided by Dr A was a letter between clinicians and not an expert report for the Court;

(ii) The letter of request for this review did not include any clinical information;

(iii) The second opinion reporting service is offered in order to ensure that injuries are not missed by less experienced radiologists. The information provided is included in the patient’s notes, and is available to the parties in the proceedings;

(iv) Dr A was not asked about the possibility of birth trauma in the letter by social workers;

(v) It was acknowledged that while it might be helpful for Dr A to have mentioned the possibility of birth trauma, by giving a dating range for the fracture that included birth, it was expected that the clinicians (presumably locally and not at Y Hospital [hospital identified]) would consider birth trauma as a possible mechanism for injury.

My response

39. If Dr A’s report/review dated 13th October 2016, was intended to be used solely as an intra-medical document confirming the presence/absence of bony injury, then that should have been clarified at the outset. The document went further than merely confirming the existence or absence of a fracture, because it provided an opinion about causation.

40. Reviews sought in the context of an ongoing child protection investigation should be clearly identified as such, so that there is absolute clarity about:

(i) the purpose for which the review document is sought;

(ii) the potential usage (including Court usage) of the document seeking the review and the review document itself provided by the clinician concerned;

(iii) the background information which is provided for the review, and who is responsible for providing the same;

(iv) the precise information sought from the reviewing doctor, and who ultimately is responsible for “joining the dots” and reaching a conclusion about any possible different methods of causation; and

(v) why (since Dr A had been provided with E’s date of birth and it is included in her report) did she not herself consider birth trauma as a possibility, and mention that expressly to Dr F in her reply? Nothing surely could have been more straightforward.

(c) The wording of Dr A’s initial review

(i) The reply

41. Again it is asserted that the 13th October 2016, document was intended solely for a fellow clinician.

My response

42. Greater clarity about this aspect must be secured by the Third Intervenor, the Local Authorities of X region [geographical region identified] and Y Hospital [hospital identified].

43. In child protection terms these documents are of limited benefit if they are not intended for potential Court use, so that protective Orders can be sought in those cases where such Orders are required. A letter restricted to the use of a fellow medical clinician is of little forensic use to the Court in considering the statutory threshold. This issue needs to be resolved as speedily as possible by the relevant agencies. The Court needs to be able to rely upon the relevant medical expertise in order to safeguard vulnerable children.

44. I have referred already to Dr A’s statement in the second paragraph at page two of her report of 13th October 2016. I believe “excluded” to be a typographical error for “included”. The sentence makes no sense otherwise and is, I believe, the only reasonable interpretation of it.

45. In the reply by the Medical Director (on behalf of Dr A) an attempt is made to distinguish between the understanding of clinicians and “non-medics”. In this context I am afraid I do not understand the distinction. Clinicians and non-medics use the English language. The words used have an ordinary meaning, intelligible to both medics and non-medics alike. If Dr A wished to restrict the disclosure of her letter to clinicians only, then it might have been better not to have sought an opinion from her in a child protection investigation, which involved the possibility of proceedings in the Court arena, where inevitably her letter would be considered by “non-medics”.

46. If alternatively, Dr A understood the purpose of the enquiry and the potential use to which her reply might be put (namely as the basis of a Court Order which ultimately led to the removal of a child from parental care for thirteen weeks) then it was incumbent upon her to communicate her opinion in a manner which was capable of being understood clearly by those having recourse to her letter in those proceedings. If, as asserted, she had ten years’ experience as a Consultant Radiologist, and “expert witness” then I would not have expected this to have caused her any difficulty whatsoever.

The other matters raised and replied to by the appropriate agencies

(a) The delay in obtaining the review from 22nd September 2016 (the date of the skeletal survey) and 12th to 13th October 2016

The reply

47. “It is unclear why there was a delay of two weeks between the first and second internal review of the skeletal survey. It is also unclear why the skeletal survey was not routinely reported on (sic) by Y Hospital [hospital identified]”.

My response

48. This situation merits urgent improvement.

(b) The lack of skeletal survey

The reply

49. The Guidance for Radiological Investigation of Suspected Non-accidental Injury, published in 2008, suggests a full skeletal survey should be repeated, save for skull fractures. The risk of radiation to the child must also be considered. The above standards are being reviewed by the Third Intervenor in considering its own standard operating procedures. The Consultant involved in this case believed that a repeat skeletal survey should have been obtained.

My response

50. This situation again merits further urgent review and improvement.

 

I found the second judgment a bit hard-going, not least because the identities of the various Intervenors are not terribly clear – but I’ve linked to it if people want to read that. Nothing within it really alters the first judgment although the thrust of it seems to be that the radiologist, Dr B, had not written the report to be used in court proceedings and the intended recipient was another doctor, Dr F, not lawyers and social workers and Judges.

Under the heading ‘The Second Intervenor’s Involvement’, Mr Sheldon says that the Second Intervenor’ involvement in E’s case was limited to the sending of one letter and one email, in the context of a second opinion service. I have referred to these documents already. This refers to the document of 13th October and 26th October 2016, and the former was relevant to the hearing conducted by me for an application for an emergency protection order. The second was not relevant to a hearing conducted by me.

45. It is asserted: ‘There was no indication that the Second Intervenor’s second opinion would be put to any use, other than assisting Dr F in his assessment of the case’. This is referable of course to the 13th October report. Then, at paragraph 17 of the skeleton, the following appears:

‘On a date unknown to the Second Intervenor, her letter to Dr F was passed to the representatives of the Local Authority, who determined that it should be used as part of the material in support of an application for an emergency protection order. The Second Intervenor was not informed that this was to be done. She was not given an opportunity to consider the terms of her letter, for the purposes of determining whether she would wish to clarify or amplify its terms in light of the use to which it was now to be put, and she was not contacted by the Local Authority to obtain her assistance as to the correct interpretation of her letter, before the application was made. The Second Intervenor was not called as a witness at the application for the emergency protection order, and she has no idea what was said to the court on that occasion about her letter’.

Dr B says that she has learned from this of the need to be clearer in her use of language.

It appears that everyone at the initial hearing had taken the radiologist’s meaning to be that there was a diagnosis that the injury had occurred non-accidentally (or deliberately to use Ryder LJ’s preferred terminology) whereas the radiologist was intending to convey that there was investigation to be carried out to see if a deliberate / non-accidental cause could be EXCLUDED.

(just to refresh our memories, this is the line from the original report – the word ‘excluded’ was used and I believe people read it to be a typo to mean ‘not excluded’ or ‘included’ (hence the (sic).) It was not in fact a typo, and it was meaning excluded in more of a verb sense – ‘to carry out further investigations with a view to whether deliberate injury could be excluded’ – you can see why that was confusing. I lose my grip of understanding this every couple of seconds, it slips out like a bar of soap through wet hands.  Sidebar to this sidebar – that image reminded me of the Lewis Carroll lines

 

He thought he saw a Argument; That proved he was the Pope: He looked again, and found it was; A Bar of Mottled Soap. ‘A fact so dread,’ he faintly said,; ‘Extinguishes all hope!’ )

 

“… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

 

Judgment 2 explanation

 

In paragraph 18(iv) of my March judgment, I quoted from a section of the Second Intervenor’s 13th October report. I am informed, and I accept, that she intended the word ‘excluded’ and that there was no error by her. What was intended to be conveyed was this: ‘If there is no satisfactory account of the mechanism of the injury, and if there is no underlying medical cause, the exclusion of these explanations then dictates the next stage, namely to exclude a non-accidental injury’. I am told, and I accept, that medical clinicians would perfectly well understand this comment by her. However, I repeat that the report of 13th October, whether rightly or wrongly, was being relied upon by the Local Authority as part of its application for removal, and legal requirements were under consideration as well as medical.

53. The Second Intervenor indicated in her 24th January reply “…this statement was included in a letter intended for a fellow clinician”. She is referring there, of course, to Dr F. Later, and I quote her: “However, I have reflected on this case, and I am sorry that my use of language has caused difficulties. In future, I intend to avoid the phrase “must be excluded”, and replace it with “must be considered”’.

54. I understood that Ms Cavanagh on behalf of the First Intervenor accepted, at paragraph 33(h) of her skeleton argument, “that the wording served to create ambiguity in the mind of the non‑clinical reader, and as such, given the use put to such documentation in early stages of court proceedings, clearer words will be used hereafter”.

55. Mr Sheldon, at paragraph 45 of his skeleton argument, indicated that the Second Intervenor ‘now ensures that she does not use the terminology of exclusion when drafting documents which may come to form part of court proceedings. She has also advised her colleagues to do the same’. With that assurance, I am content.

 

 

The Judge is clear that his judgments were not about apportioning individual blame or responsibility, but to explore the systemic problems.

Firstly, I have invited, and I have received, the further submissions after my 6th March judgment. Secondly, this judgment does provide clarification and amplification for that March judgment, which can be supplemented with the publication of any additional appendices. Thirdly, I would be exceeding my remit if I sought to give general guidance with regard to the provision of second opinion evidence in child protection cases. That is a matter either for the High Court or for the Court of Appeal, and for the president of the Family Division. I am only a foot soldier, the designated Family Judge for North Wales, without any further and wider responsibility than that. Cumulatively, these two judgments are designed to alert local agencies to what happened in E’s case, so as to improve practice, and to provide some explanation to E’s parents as well. Silence would not be an option in these unhappy circumstances, as I have said already.

 

  1. Fourthly, neither judgment is intended to attribute individual blame or responsibility. I make it clear I am not dealing with a case of professional negligence or misconduct. I make a plea for systemic improvements (as indicated in paragraph 50 of my original judgment). No more, and no less, than that. If the improvements have all taken place, so much the better. Time, of course, will tell. Fifthly, I will reserve the issue of extended anonymity until I have heard further argument in the light of the President’s Guidance. A combination of different things led to E’s removal from parental care. It was not exclusively referable to the Second Intervenor, as asserted in paragraph 26 of Mr Sheldon’s skeleton argument. Indeed, as I made the emergency protection order, I am ultimately responsible, and I acknowledged that in my apology to the parents, which I have made already. I do not shy away from my responsibility in the least.

 

Low level falls and head injuries

 

This is a case decided by Recorder Howe QC, and it is not binding precedent, and also of course it turns on the individual facts of the case, but it does seem to me to have wider interest and implications on what the medical professionals said about whether a fall from a low level height could cause the sort of bleeding on the brain (subdural haematomas) which are often linked with non-accidental shaking injury.  There was also a skull fracture about a month later.

In this case, the parents account was that the only incident of note was the child, 11 months old, had been standing, holding onto the back of a chair for support and had fallen backwards and banged his head on a laminate floor. The skull fracture they say was caused when the child fell and hit his head on a kerb.

Could that have caused the serious injuries that he sustained?

 

Re N (A child: Low level falls) 2016

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B29.html

Regulars may have picked up that there is a lot of controversy about subdural haematomas and how they might be caused and whether there can, in some cases, be a more benign explanation. The subject even made the national news when Dr Waney Squier was struck off by the GMC for having a view that they considered to be out of step with mainstream thinking.

Here is what the experts said on this case, and I think it is very candid about the limitations of medical science and that the field develops and moves on.  As indicated earlier, much of what is said relates to the very particular set of circumstances of this particular case, but some passages have potential wider interest. I’ve tried to underline these.

 

The Evidence Presented at the Hearing

The Expert Evidence

  1. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  2. I have had the advantage of written and oral evidence (by video link) from 3 very experienced experts who regularly provide reports for family and criminal court proceedings. Dr Patrick Cartlidge is a Consultant Paediatrician, a senior examiner for the Royal College of Paediatricians and Child Health and a senior examiner for Cardiff University. Dr Alan Sprigg is a Consultant Paediatric Radiologist based at Sheffield Children’s Hospital with a special interest in the imaging of suspected non-accidental injury involving cranial and skeletal injury. Mr Peter Richards is a Paediatric Neurosurgeon based at The John Radcliffe Hospital in Oxford hospital. All 3 experts maintain clinical NHS practices in addition to their medico-legal work and are very well placed due to their qualifications, years of experience and current clinical work to provide expert opinion concerning the likely causes of the injuries suffered by N.
  3. The 3 experts participated in an experts’ meeting on 11 th February 2016 and the transcript of that meeting is found at E152 of the court bundle. The transcript records a very large measure of agreement between the experts that can be summarized in relatively short form. All 3 experts accepted that the fall described by the parents on 9 th August 2015 could cause the intracranial injuries discovered [the August injury], although such significant injury from a fall from standing would be very unusual. Mr Richards was of the opinion that the significant interference with the functioning of the brain was also very unusual from such a low fall. Despite the unusual features, the experts would accept the account given for the August injury to be a credible explanation.
  4. Concerning the September injury, the experts agreed that no convincing explanation had been given as to how N had suffered this fracture. They were all of the opinion that the explanations offered by the parents were very unlikely to cause a skull fracture and, in the absence of a credible explanation, this was likely to be an inflicted injury. They were all of the view that, as the September injury was more likely to have been non-accidental, when taken together with the unusual features of the August injury, this increased the likelihood of the August injury also being caused by an inflicted event.
  5. When giving their oral evidence, what had appeared to be a large measure of agreement between the experts did, due to the well targeted and effective questions put to them by all 4 advocates, fall away with respect to a number of important matters. This was not, in my judgment, wholly unsurprising given that each expert answered the questions from the perspective of their own particular specialisms and their own clinical and medico-legal experience. However, the divergence of views produced an additional element of complexity to the determination of the local authority’s allegations against the parents in this already complex case.

 

Head Injuries Caused by Low Level Fall

  1. For the local authority to succeed on the primary threshold findings it seeks, it has to prove on the balance of probabilities that the explanations provided by the parents are not how these injuries were caused. It is not for the parents to prove that the injuries were caused by the low level falls that they have described.
  2. When he gave his oral evidence, Mr Richards said the following [my note]: “This is a debate [whether low level falls can cause intracranial injury] that is lively at the moment. I was recently in a telephone conference involving a number of experts. Dr Cartlidge was involved and making a point about these cases and there were some rather heated exchanges about the possibility of low level falls causing serious injury. The vast majority of low level falls are not imaged. Of those that are, neuro-radiologists will say that low level falls, of the type N had, cannot cause multi-compartment bleeding and, therefore, the story given by the parents must be untrue. I, like Dr Cartlidge, say ‘can you say that on the data we have’? I say we don’t know.

A decade ago, apart from the babies that died, it was said that birth did not cause subdural haemorrhages. 3 research projects have now demonstrated that it does and it is now universally accepted that birth causes subdural haemorrhages in about 50% of babies. The medical profession were wrong before. Low-level falls may be similar. We can’t do routine MRI scans of children of this age as they have to be given anaesthetic to keep them still. The reason that these children are not imaged is because the majority just get up from a fall and have no injury. Very few have any disturbance for 1 or 2 days and even fewer for a longer period”.

  1. At paragraph 23 of his report dated 16 th December 2015, Mr Richards said “patients with such low level falls are rarely imaged on the grounds that there is no neurological disturbance from such falls, so we do not really know the number of low level falls which do cause fresh subdural bleeding. In those that are imaged it is extremely rare to identify fresh subdural bleeding.”
  2. In his report to the court, Dr Cartlidge said, at page 19, ” It is probably very unusual for such a short-distance fall to cause subdural bleeding, although I agree with Mr Richards that it could be more common than currently appreciated since neuro-imaging might not be undertaken in such cases. I have professional experience of a similar low-distance fall causing subdural bleeding in two infants (findings of Family Courts). Initial symptoms in my experience are often akin to those seen in reflex­ anoxic episodes.
  3. When he gave his oral evidence, Dr Cartlidge said that children would usually stand with soft knees and if he did have that typical stance, and he had some saving reflexes, he would not perform what Dr Cartlidge described as a ‘matchstick fall’ (a straight fall backwards with a stiff body). Dr Cartlidge was of the opinion that by far the most likely response from a child of this age would be a bending of the knees and a fall onto his bottom. However, Dr Cartlidge went onto describe the circumstances of 3 cases he has encountered in his medico-legal work where the family court accepted that an injury had been caused by an accident or had not found the allegation of non-accidental injury to be proved. The detail given by Dr Cartlidge in his oral evidence was supplemented by a later e-mail that all advocates agreed I should consider. The details of the low-level fall cases referred to by Dr Cartlidge included the following:

1 case involved a 42-week old who fell about 65 cm from a bed. There was a brief acute encephalopathy (interference with the functioning of the brain), subdural bleeding over a cerebral hemisphere and in the posterior fossa (the part of the brain at the top of the brain stem underneath the cerebral hemispheres) and acute traumatic effusion (an acute effusion appears similar to chronic subdural haemorrhage on the initial CT scan (as black fluid) but is due to an acute tear/rent in the arachnoid membrane allowing normal cerebrospinal fluid (seen as black on CT scans) from the subarachnoid space to cross into the potential subdural space. This causes a black fluid collection of cerebrospinal fluid (CSF) in the subdural space due to recent trauma that mimics the appearance of an old subdural haemorrhage from a prior injury). There was subdural blood in the thoracic, lumbar and sacral spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

A second case involved a 35-week old who fell from standing (about 70 cm). There was acute encephalopathy after initial crying for some 2 minutes and a large subdural haematoma (space-occupying). There were also retinal haemorrhages. The Family Court found the injuries to be accidental.

In the 3 rd case a 52-week old fell from standing (about 70-75 cm). There was mild or possibly absent acute encephalopathy. Subdural bleeding was present over a cerebral hemisphere and in the posterior fossa. Acute traumatic effusion was present. There was subdural blood in the lumbar spine and bilateral retinal haemorrhages. The Family Court found the injuries to be accidental.

  1. I must decide the facts in this case on the evidence that I have heard about this child and not be swayed by comparisons to other cases involving different children and different facts. However, Dr Cartlidge’s purpose in highlighting these other cases was to provide clear examples to support his opinion that children can suffer what he described as ‘nasty intracranial injuries’ when falling from standing.
  2. At page 21 of his report, Dr Sprigg says “Subdural haemorrhages may occur following a known traumatic event involving a significant impact, e.g. being dropped forcibly onto the baby’s head from a significant height or hitting a hard object at speed. In older children they can occur during accidents -eg getting knocked over by a car. They are exceptionally rare from low-level domestic falls in infants. The site of bleed in accidental injury is usually physically related to the site of impact over the cerebral hemisphere. Subdural bleeds in non-accidental injury are more often over both hemispheres and may also be seen in the posterior fossa near the cerebellum near to the craniocervical junction. This is a rare site for accidental trauma”.
  3. At page 13 of his report, Dr Sprigg sets out “the finding of posterior fossa bleeding is more commonly seen in non-accidental head injury (NAHI) but it is recognised in significant accidental impact to the back of the head”.
  4. In his oral evidence, Dr Sprigg told me that the bleeding seen on the scans was consistent with a shake or an acceleration/deceleration event. He said that there was bleeding over both sides of brain and at the base of the brain. His evidence was that this is a pattern that is commonly seen in shaking cases but it can also occur if there is a significant bang to the back of the head.
  5. It was Dr Sprigg’s opinion that the bleeds found on 11 th August 2016 [the August injury] could have happened by a short fall but it would be uncommon. When cross-examined by Ms McFadyen, Dr Sprigg told me [my note]

“A fall to the floor as described is acknowledged as a mechanism that can cause this intracranial injury. Most children would not suffer any injury from such a fall. Some may suffer a skull fracture. It is uncommon to find bleeding over both hemispheres and at the cerebellum but it is possible. If the history had been that he fell on his forehead, I wouldn’t agree that the explanation was consistent but as he fell onto the back of his head, where all the veins gather and is an area vulnerable to injury, it is a credible account. Had this occurred at our hospital, it would have been said that this was feasible”.

  1. Having heard all 3 experts give their oral evidence, I formed the clear impression that they were each open to the real possibility of such low level falls, of the kind described by M and F as occurring on 9 th August 2015, causing the intracranial injuries seen on the 11 th August scans. Indeed, Mr Richards and Dr Cartlidge were more open to this kind of mechanism being an accurate account for the causation of such significant bleeding than they would have been in years past. There was no hint of dogmatism from any of the 3 experts; they were open to considering both the rare and the unusual.
  2. Mr Richards, Dr Cartlidge and Dr Sprigg carried this openness to considering the unusual and rare through to their consideration of the potential causes of the skull fracture discovered on 14 th September.
  3. In his report dated 24 th November 2015, Dr Sprigg provides a detailed account of the possible causes of skull fractures. He describes:

“A skull fracture is commonly due to a forceful impact. This may be due to the head hitting something hard, or a hard object hitting the head with significant force. An infant may have an accidental skull fracture but this depends on its level of mobility. For example, a two month old baby is not sufficiently mobile to self inflict a skull fracture, but a ten-month old that is crawling and falls downstairs might self inflict a skull fracture. An infant’s skull is flexible and tends to bend rather than fracture. It takes significant force to fracture an infant’s skull. As a generalisation under 1-2% of infants will sustain a skull fracture if they are dropped from below adult waist height. However, if the fall is from a greater height this is more likely to produce a fracture than a low level fall. When the fall is onto a hard surface (eg concrete or laminate flooring) versus a more compliant surface (eg carpet with under-felt over floorboards) then the harder surface increases the chance of fracture. A free fall (drop) involves less force of impact than if a baby is thrown down. Occasionally skull fractures occur related to birth. They are uncommon, but have a higher incidence in a difficult forceps delivery than ventouse or than in normal vaginal delivery of a normal sized baby”.

  1. When he gave his oral evidence, Dr Sprigg was of the opinion that either fall described by M (from sitting or from standing) [the September injury] would be unlikely to cause this skull fracture but could not be excluded as impossible. When answering questions from Ms McFadyen, he told me “If this was an isolated event and the history was that he had fallen over to the right and had come straight into casualty, it would be accepted as an accidental event. There is a skull fracture rate of below 1 to 2 % if a fall is from below adult waist height but had he been presented quickly with a consistent history, the explanation might have been accepted”.
  2. Mr Richards’ mind was similarly open to the possibility of the fall as described by M being a possible cause of the skull fracture. He told me that a low level fall would be unusual for causing a skull fracture and a drop of about 82 cm is usually required to cause a fracture from research undertaken with deceased infants. However, he would not rule it out as impossible but it would be a very rare event.
  3. Similarly, Dr Cartlidge would not rule-out any event as being impossible but was more sceptical that the simple fall, of either type described by the mother, would cause a skull fracture. It was put to him that it may have been that N fell and hit his head on the kerb. When considering this scenario, Dr Cartlidge said [my note] “the right side of the head is the site of the fracture. The shoulder is in the way and for the shoulder not to be in the way, I struggle to see how the right side of head would bear the full brunt of the force of the fall but if you get over that and the head pivots over his neck and hits the edge of the kerb, that could cause the fracture”. That was about as close as Dr Cartlidge would be drawn toward accepting that the fall described was, of itself, a possible mechanism.
  4. Having considered the fall proposed for the September injury in isolation, each expert relied on important contextual facts as indicating that the fall described on 6 th September 2015 would not have caused the fracture to N’s skull.
  5. Establishing a timeframe for the causation of the skull fracture and identifying whether the evidence reasonably excludes the 6 th September, a date some 8 days before the fracture was discovered on the scans as a day within that timescale, is a crucial matter for the court to consider when determining whether the local authority has proved that this alleged fall was not responsible for the skull fracture.
  6. When looking at the timing of skull fractures, there was no dispute between the experts as to limits of radiological evidence. Dr Sprigg described in his oral evidence that once a skull fracture is present, it can be seen for 3 to 6 months on the x ray, as there is no healing periosteal reaction. He said that the fracture can only be said to be recent if there is swelling present over it and that swelling is present for around 7 to a maximum of 10 days. The identification of scalp swelling, what type of scalp swelling was present and how long a swelling would be present became an issue between the experts upon which they did not agree.
  7. In addition to the identification of swelling, all 3 experts agreed that the clinical presentation and the clinical history was crucial in identifying a reliable timescale for the causation of a skull fracture. The immediate pain reaction of a child was a matter upon which the experts agreed however, the duration of a visible pain reaction when touching the site of injury, and its relevance to the timeframe for the injury, was not a matter upon which Mr Richards and Dr Cartlidge agreed.

 

In this case, the threshold was found to be satisfied in relation to the skull fracture in September 2015 (changed from previous inaccurate year on my part), the evidence of the parents being a relevant factor and the lies that they were found to have told about various matters.

 

There was not a finding that they had caused an injury in August by shaking the child and the Judge was satisfied by the parents explanation for this injury.

141.                      As already described, N was admitted to hospital on 9 th August 2015. M and F gave an account of him falling and hitting his head. The treating doctors at Birmingham Children’s Hospital accepted that the fall described was an acceptable explanation for N’s presentation.

  1. I have heard evidence from Mr Richards, Dr Cartlidge and Dr Sprigg and all 3 experts would accept that the fall described could account for the subdural bleeding found.
  2. Mr Richards says at §2.4 on E66 that there was no evidence of impact either clinically or on neurological imaging and he thought that unusual given that N’s behaviour was disturbed for so many days. He also thought it very unusual that such a low fall would, of itself, cause such significant symptoms. In his oral evidence he said subdural haemorrhages can have no symptoms at all and those seen on N’s scans were very thin and not compressing the brain. He said there was no other brain injury so, would not expect the haemorrhages to cause any symptoms at all, the symptoms have come from the way the brain was functioning and it was not functioning right with for 5 or 6 days. It was Mr Richard’s opinion that such a level of disturbance would require a harder bang on the head. He said that he would only expect to see disturbance of brain function of 24 to 48 hours so disturbance for longer would be consistent with a harder level of force. He said it was very very unusual if this was caused by this the low level fall.
  3. Dr Cartlidge and Dr Sprigg in the expert’s meeting on 11 th February and in their oral evidence acknowledged the unusual features of the case as outlined by Mr Richards but all 3 experts accepted the fall described as a possible mechanism for N’s presentation.

 

 

       I understand the approach taken by the experts that the unsatisfactory nature of the explanation given by the parents for September injury increases the likelihood of the August injury being an inflicted event. However, I have had the advantage of seeing MK give evidence. This was a witnessed fall and not, in my judgment, an event that has been invented. I find that there is no evidence of any other intervening event that has caused this injury and the local authority is simply speculating that M must have injured N at some point overnight or during the day on 10 th August. N’s presentation was consistent with a pattern recognised by Dr Cartlidge and although the experts could not exclude a 2 nd event, they were of opinion that one event was the most likely explanation. I accept their expert opinion and find that the one event that was witnessed by MK caused this August injury.

 

Genuinely shocking

 

The Court of Appeal in Re A-S (children) 2015 had to deal with an appeal, the facts of which were genuinely shocking to me. And that is as a lawyer who has been dealing with Children Act 1989 cases for over twenty years now.

http://www.bailii.org/ew/cases/EWCA/Civ/2015/748.html

 

Within care proceedings, a range of findings were made against the mother, the most serious of which was that she had deliberately drowned her baby (who survived and is fine now). The mother’s case, including her case on appeal, was that she had been negligent in leaving her child unattended in the bath, where he became submerged, but that it was an accident.

 

You may be thinking that it must be very difficult to establish to the requisite standard of proof whether the incident of drowning was deliberate or accidental. The shocking thing about this case is not merely the incident itself, but that the whole thing was recorded by way of a 999 call.

 

The call lasted for around 15 minutes.  The mother telephoned 999 to say that there had been an accident, that her baby had been left unattended in a bath and had slipped under the water.  However, that 999 call is recorded, and the medical experts (and indeed the Judges) who listened to it had three major concerns :-

 

1. That up until around the nine minute mark, the baby can be heard making normal baby noises that would not be consistent with a child who had nearly drowned.

2. That at around the nine minute mark, the mother stops speaking although the paramedics can be heard trying to talk to her and engage with her. And the sound of running water is heard.

3. That after that period, a scream is heard from the mother, and thereafter, the noises made by the baby are consistent with a child having been immersed under water –  the baby is heard again grunting and coughing then in further respiratory distress and suddenly stops breathing at 10 minutes 48 seconds  – and he was in this position until the paramedic arrived and resuscitated him at around the 15 minute mark.

 

There was also evidence from several medical professionals that it was just not possible that a child would have nearly drowned, showed no ill effects for nine minutes, then stopped breathing and required resuscitation by a paramedic. The sequence of events is just wrong.

“Diana Howlett … is a consultant paediatrician of 20 years. She and two of her colleagues of similar experience, Dr Goldsworthy and Dr Linton, who had been asked to listen to the recording of the call. Her report is at G87. Putting its contents very simply all the three doctors say there is a disparity in their view between the history given by the mother (the child had been found drowned a few minutes prior to the phone call) and the “auditory history” of the child on the call, ie the crying and other sounds L was making in the first 10 minutes of the call and his presentation when medical help arrived at the house. They concluded that they can hear the sound of running water after 10 minutes and the explanation is that it is at this point the child is being drowned. In their written submissions Mr Ekaney QC and Miss Evans ask me to treat this evidence very carefully. The doctor said in cross-examination “we were asked to give an opinion but none of us would consider ourselves experts in this area. It raises more questions really”. I do not intend to put any significant weight on this evidence. They heard what they heard, the baby appeared to be crying while mother was shouting things like “don’t die”, “stand up”, and in particular “wake up, wake up” when from the noise he was making he appeared to be awake. I have to say I heard that too.”

 

  1. I turn to the report of Dr D S James of the Wales Institute of Forensic Medicine at Cardiff University. It was accurately and sufficiently summarised by Judge Marston in his judgment as follows:

    “He says if you ignore the content of the 999 call M’s description of immersion, apparent respiratory arrest, gradual recovery after rescue breaths and presentation to paramedics after 10-15 minutes wet, cold and in respiratory distress but responding well to oxygen with an eventual good recovery is in keeping with the pathology of near drowning. If the child was not in respiratory distress and apparently vocalising normally for an infant of his age ie “well”, the description of a very unwell infant, cold, quiet and collapsed raises the question why there has been a significant and sudden deterioration in his condition. In his report the doctor puts two possibilities, either it is a complication of the immersion or “there has been a further episode of immersion causing L to collapse”. In his conclusions he says the baby would not usually be normal for 10 minutes prior to a sudden deterioration but the consequences of near drowning are complex and variable and there are pathophysiological mechanisms which merit consideration by paediatric clinicians.”

  2. Finally, I go to the report of Dr Stephen Playfor, Consultant Paediatric Intensivist in the Paediatric Intensive Care Unit at the Royal Manchester Children’s Hospital. Dr Playfor’s report contains a very careful and detailed analysis of what can be heard on the recording of the 999 call. He constructed what he called “a robust timeline of events”. His opinion, on the balance of probability, was that L was drowned during the interval of 49 seconds between 21.43:28 and 21.44:17. (Since the recording started at 21.34:48, this corresponds with the interval between 8 minutes 40 seconds and 9 minutes 29 seconds.) He opined that the likelihood of the respiratory distress which can be heard subsequently on the recording occurring as a physiological response to an episode of drowning before the making of the 999 call is “very small (<5% chance).” He said:

    “A single episode of drowning occurring before the recorded 999 call … is not compatible with the sounds contained within that recording.”

    He added:

    “L can be heard to vocalise and cry normally during the first 8 minutes and 40 seconds of the recorded 999 call without any sign of respiratory distress. During this period I am confident that he was conscious, ‘near normal’ and not in any need of resuscitation.”

 

 

The conclusion that the Judge was inexorably drawn to was that the mother had made a 999 call when there was nothing wrong with the child, but during the course of the call had done deliberately to the child what she was claiming had happened accidentally.

 

About the only argument that mother could deploy is that this seems unbelievably improbable, and so she deployed it.

“I now turn to consider the final part of [the] jigsaw, M’s evidence. She deploys a number of powerful points before she even gets into the witness box. First there is the inherently unlikely nature of the allegation that a mother would drown her own child. Her father, for example, thought such a possibility here as absurd. That does not of course change the standard of proof but it is something I must have strongly in mind when considering the case. Next there is something called the wider canvass. Here I am dealing with the loving, kind mother who it is said was without external stressors and who gave a consistent account throughout.”

 

 

It was, of course, a very significant finding for the Judge to make, particularly in a case where there’s nothing in the background features of the case that would cast any light on why the mother would do something as peculiar and harmful as this.

The judge’s conclusion is in a passage which I must set out in full:

“The medical evidence all points in the same direction. The baby was normal until about 8/9 minutes into the 999 call. There is no reason related to an earlier drowning incident that would cause the post 10 minutes in collapse. The Mother’s evidence of what happened is not substantiated by any external matters eg a pan of burned food or a full baby bath, there is some evidence of what might be brown flecks of faeces in the bath but no other bit of the Mother’s story is supported The Mother’s evidence is shot through with so many lies and so much vagueness that I am forced to conclude she is trying to hide something. The only thing that she can possibly be attempting to hide is that there was no incident of drowning in the bath and that she is responsible for attempting to drown the child after 8 minutes and 40 seconds of the phone call for about 47 seconds. Most likely this was under the tap in the conservatory. I cannot speculate on why she made the call in the first place or why she did what she did. It seems to me that at the point where she seeks reassurance from Mr Mahony that the baby will be alright and he says the child is seriously ill she becomes hysterical because she realises what she has done. It may be that she did not intend to kill the baby. Until the mother tells the truth we are left with speculation.

I find [the] allegation proved on the balance of probabilities.”

The Judge added a clarification about the mother’s motivation for making the 999 call

“With regard to the 999 call I have to conclude that the 999 call was instigated for a reason I can only speculate about, and I do not think it is appropriate for me to speculate. My finding is that at the start of that call the child had not been subject to an incident of drowning. I made that finding specifically on all of the evidence that I heard; the medical evidence; the evidence from all of the parties who gave evidence; and the witnesses that were called. I do not know why the mother was distressed during the first part of the call. She was certainly at the time of the arrival of the paramedic in a calm condition, and became distressed – in fact hysterical according to the paramedic – after she was told, as I pointed out in my judgment, the condition of her baby was very serious. I rely on the totality of the evidence about the 999 call. I gave only marginal weight to the three paediatricians who were not jointly instructed experts and who, one of whom in Mr Kenny’s cross-examination, conceded that they were only again marginally connected with the case. I obviously give a great deal more weight to the jointly instructed experts, and I have listened to the call myself and read the transcript.”

This is one of the sad truths about Court hearings – sometimes even after every scrap of paper is obtained and every witness is scoured in cross-examination, the Court doesn’t get to the Truth, the Whole Truth and Nothing But the Truth.  We will never know what made the mother do what she did here, and speculation was quite rightly put out of the picture by the Judge.

The appeal was on the basis largely that the Judge had gone too far in making a finding that the mother had deliberately injured the baby by drowing it, after making a 999 call.

The problem that mother’s team had to overcome was that the 999 recording was not only compelling evidence for the medical experts, but that it was striking and easy to follow for anyone listening to it, including the Court of Appeal Judges.

  1. This appeal comes before us in forensically unusual circumstances. As I have already remarked, at the heart of the appeal is the question of what it is that can be heard on the recording of the 999 call; crucially, what exactly it is that can be heard of L. Each of us has listened to the recording. I have listened to the recording more than once. We are therefore in almost as good a position as the judge to come to a conclusion.
  2. The experts described what they had heard on the tape during the first nine minutes or so of the recording. It is apparent from his judgment and his subsequent clarification that their descriptions accorded with what Judge Marston heard. It accords with what I heard when I listened to the recording.
  3. Two points emerge:

    i) First, during the first nine minutes or so of the recording one hears what Dr Howlett and her colleagues described in their report as “Normal baby vocalisations”including “polysyllabic babble and normal multi-tonal crying.” Equally important is what one does not hear: coughing, grunting, wheezing or other sounds of respiratory distress.ii) Secondly, the layman’s impression is confirmed by expert opinion: what can be heard is not compatible – the words used both by Dr Howlett and her colleagues and by Dr Playfor – with a previous drowning.

    Put very simply, a baby who presented as L did to Mr Mahoney when he arrived, would not have been vocalising, indeed would not have been capable of vocalising, as L was during the first nine minutes or so of the recording, if he had drowned before the 999 call was made.

  4. It was this which drove Judge Marston to his conclusion as to the timing of L’s drowning. That was plainly a conclusion properly open to him. Indeed, I would without hesitation have reached the same conclusion. L was not drowned before the 999 was made; he was drowned some nine minutes or so after the recording began.
  5. That being so, the only remaining question is whether this drowning was itself accidental or, as the judge found, deliberate. Judge Marston inferred that it was deliberate. In my judgment hewas entitled to come to that conclusion. Mr Ekaney submits that the judge was here in the realm of mere speculation. I do not, with respect, agree. Two factors point compellingly in this direction. First, it follows from the ascertainment of the true timing of the drowning, that the mother’s 999 call was false. L had not at that time “fallen in the water”. There had been no negligence on the mother’s part. What an astonishing coincidence that, some ten minutes later, L should actually have suffered an accidental drowning, that precisely what the mother had fabricated should so soon become reality. Secondly, if this drowning was in truth accidental, then why on earth did the mother not say so? Why should she persist in her lies? It would of course expose her to the charge that she had made a false 999 call, and wasted the time of the emergency services, but surely better that than being found to havedeliberately drowned her own baby.
  6. Where Judge Marston did, correctly, say that he would be entering into the realm of speculation was in relation to two matters: first, the mother’s reasons for making the false 999 call and then deliberately drowning L; and, secondly, as to the mechanism she adopted. The fact that, in relation to these crucial matters, he could only speculate no doubt gave Judge Marston pause for thought, just as they have me.
  7. Given his, and my, inability to provide anything except the most speculative answers, could he be confident, can I be confident, in relation to the timing of the drowning? That, at the end of the day, as it seems to me, is what this appeal really comes down to.

 

The appeal was dismissed, but the Court of Appeal went further than saying that His Honour Judge Marston was not shown to be wrong.

 

  1. So far as concerns Judge Marston, I have no doubt that the appeal must be dismissed, essentially for the reasons so succinctly articulated by McFarlane LJ. Despite all Mr Ekaney’s very considerable and very skilful endeavours, Judge Marston’s ultimate conclusion is, in my judgment, unassailable. In the light of all the evidence, and in particular in the light of what he heard when listening to the recording, he was entitled to conclude as he did and for the reasons he gave.
  2. That suffices to dispose of the appeal, but in these very unusual circumstances I can, and should, go further. As I have said, having listened to the recording, I am convinced that the judge was right. What I was listening to during the first nine minutes or so was a baby who had not then been drowned. From this it follows inexorably, given all the other evidence, that the mother’s 999 call was false and that the drowning which took place at some point thereafter but before Mr Mahoney arrived was indeed deliberate. I have anxiously asked myself whether I can truly be that confident, given that I am left speculating, as was Judge Marston, on important matters to which such a finding necessarily invites attention. I can only say that, despite my inability to provide more than speculative answers to those questions, I am convinced by what I heard. The recording is, to anyone who has heard it, extraordinarily compelling. It drives one inexorably to the conclusion at which Judge Marston arrived.

 

This must have been a very terrible case to deal with. I’m sure that in order to deal with it properly, those involved had to listen to that harrowing tape many many times. Having had to listen to that sort of tape myself , I know that it stays with you very vividly for many years, and never completely leaves you.

 

Cases like this are of course, very very rare.  When children are injured, it is more usually a momentary lapse, a loss of self-control or careless handling without thought to the strength that an adult can bring to bear.  Sometimes, as in this case   Cumbria CC v Q 2015http://www.bailii.org/ew/cases/EWFC/HCJ/2015/59.html , something that looks like horrific abuse can actually have an innocent explanation.  That case took 18 medical witnesses to arrive at the juidicial finding that the baby had rickets and thus had a propensity to fracture more easily than an average child.  Up until that point, there had been features  that would have led anyone to be deeply suspicious (both parents had convictions for violent offences, the parents had given inconsistent evidence and lied about things, the injuries were multiple, serious and ‘classic’ nai type injuries)

 

It really is very rare, that as here, something happens that leads a parent to deliberately set out to harm their child.

 

From what is reported here, there was nothing that could have led anyone to predict that this might happen, and so we are fortunate that mother made the 999 call and that a paramedic arrived. This does not appear to have been something that could have been predicted or prevented before it happened.  If someone had ever alleged that such a risk was likely, or even theoretically possible, before it happened, they would have looked a fool.  Hopefully nothing like this will ever happen again.

 

 

 

 

 

Reversing the burden of proof – injury to a child

 

There have been a few reported cases where the higher Courts have said or hinted that a fairly traditional medical formulation “that in the absence of the parent providing a benign explanation, this injury was caused deliberately” is a reversal of the burden of proof and not acceptable in law.

 

The decision of the Court of Appeal in Re M (a Child) 2012 comes out very badly and explicitly says it, and the decision is exactly on this point, and for that reason I think it is the best authority for the principle.

 

[In fact, looking at this again, I think this is the exact very same case that established the point that I had come across in summaries, and we have waited 2 years for the actual transcript of judgment. That’s pretty shocking, given the importance of it as a principle for other cases. I had momentarily forgotten that we were STILL waiting for this judgment, because the original summaries came out 2 years ago.   This might be a big deal, because if it had been reported earlier other families might have made use of the principle]

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1580.html

 

The appeal begins with Ward LJ identifying that as ever, there was not an order produced following the finding of fact which was strictly capable of being appealed

 

 

As is so typical with fact-finding matters coming from the Family Division, no order has been drawn which is strictly capable of being appealed, because nobody bothers to formulate preliminary issues which the judge can then decide and encapsulate in an order which is the proper subject of the appeal. Instead, what frequently happens, and has happened, the order simply recites:

 

 

“And upon HHJ Hammerton handing down a written judgment following a fact finding hearing, in which the court found that the child had suffered non-accidental injuries and that the parents are both possible perpetrators of those injuries

The Court Orders…”

 

And then there were a series of directions being made. But I have said that before; nobody takes any notice. The rantings of an old man are simply passing into the ether

 

 

People do always seem to forget this, and Ward LJ is right to remind practitioners. What is appealed is the ORDER, not the judgment. The thrust and focus of the appeal might well be on why the analysis of the judgment shows that the Judge was wrong to make that order (or in these post Re B-S days does not show sufficiently clearly why the Judge was RIGHT to make the order, which itself is sufficient to make the order wrong)

 

There ought to be a draft order produced to the Judge (ideally one prepared by the LA at the outset of the hearing, but probably adjusted post judgment to reflect the findings that were made) setting out each of the discrete issues on which the Court was asked to make a determination and the determination that was reached. The findings need to be on the face of an order   (or more accurately in our new standard template order regime somewhere on page 6 of the order) not just tucked away in a judgment.

 

 

Anyway, on to the real matter. This was a case involving a total of nine bruises to a child, the child being around eight weeks old at the time.

 

Ward LJ summarises the basic legal principles in the crispest way I have ever seen it done. He should patent this.

 

I have no intention of elaborating on the law, because the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed. Whilst it is necessary to establish that the injuries are, as has been described in this case, non-accidental, it is not necessary to identify the perpetrator, and it is permissible for the court to say that those who are within the pool of possible perpetrators remain possible perpetrators, and the local authority must then manage the case as best it can in the light of those findings.

 

 

The Court of Appeal summarise the medical evidence given by two experts in the case

 

 

  1. The injuries to the left forearm were really divided into three. There was, firstly, the circumferential mark around nearly all of the forearm, with two small, almost parallel marks perpendicular to it. Dr Essex said of that mark in his written report that it was:

 

 

“…consistent with some restriction or pressure effect from something causing pressure on the skin of the forearm. I cannot explain the two additional marks perpendicular to the circumferential mark. The linear and angular nature of the marks on the forearm looks like the effect of something ‘mechanical’. In other words, an object having pressed on the skin.” (His emphasis)

 

In an addendum to the report, he spoke of the child coming into contact with a firm/hard inanimate object. I interpose by stating the obvious: these are not marks consistent with finger pressure or the use of the hand, save perhaps for holding the object pressed against the child’s left arm.

 

 

  1. The second category of injury to the left forearm was the red, circular bruise below the elbow. Dr Essex did not know how that was caused. The third injury was the bruise to the left wrist, which again Dr Essex could not explain, save that he observed it was a very unusual place for a baby of that age to get a bruise. The judge recorded in paragraph 34 that Dr Rouse agreed with Dr Essex about the mark on the left forearm. He, too, was unable to explain the marks. He agreed they seemed to have some mechanical cause. Dr Rouse stressed these were an imprint type of injury. He agreed it was impossible to say how the bruise below the elbow had been caused. He agreed the bruise on the inside of the left wrist was a very unusual place for a bruise given that it is a naturally protected area, and that the underlying tissues are tightly bound down with little space for a bruise to develop. The judge noted that there was agreement in respect of the linear bruises to the right arm, and Dr Rouse emphasised that, where the general impact is with a body, a round or oval-shaped bruise will develop; where there is a pronounced V-shape, it implies something with an angled edge which must be mechanical, in other words man-made. In respect of the bruise on the inside of the left thigh, both experts agreed this was an unusual case for a bruise. Dr Rouse regarded it as a different type of bruise to the ones on the arm; he described it as being a more diffuse injury. He described it as having a pronounced rhomboidal outline; the straight line suggested more of an impact which is associated with a traditional bruise.

 

 10. Various explanations were proffered for those bruises, and the judge went through each and every one of them. First, it was suggested that M’s arms may have been trapped under the straps of the baby seat; for reasons given, that was rejected. It was suggested that swaddling may have been responsible; that, too, did not find favour. Although Dr Rouse felt that possibly the bars of the cot may have been responsible, Dr Essex did not. Both dismissed the baby bath as the object which could have caused the injury; it had been suggested that the baby had been thrashing around in the bath, which was highly unlikely. There was a suggestion that perhaps the family dog had jumped on poor little M, but nothing in the injuries was compatible with that. The judge’s conclusion was that, insofar as Dr Essex and Dr Rouse held different views, she preferred the evidence of Dr Essex. The possibility of some cotton thread explaining the injury around the child’s arm was raised; Dr Essex thought it unlikely and he did not agree about the cot being a possible instrument for harm.

 

 

11 So the judge came to the conclusion, which she expressed in paragraph 51 in these terms:

 

 

“Apart from the two issues identified above [that is the cotton thread and the cot], there was a consensus between the experts. In their view the injuries were unexplained. Dr Rouse described the injuries as being unusual for non-accidental injury [but] he confirmed to counsel for the guardian that they were unusual for accidental injuries.”

 

The judge recited Dr Essex’s view when asked for his overall conclusion. She said at paragraph 56:

 

 

“He said he reached this having looked at ‘all reasonable and unreasonable possibilities and explanations. It was against the overall picture, the age of the child, the number of injuries and the site of the injuries. Putting all these together he could not find a benign explanation.’ I found that his opinion was a considered opinion. I reject the submission that his conclusion was predicated on the fact that if there was no explanation, the injury must be non accidental.

 

57. The suggestion that Dr Essex has overstepped the line which demarcates the field of responsibility of the expert from that of the court is not in my judgment made out. Dr Essex was asked in specific terms whether the marks shown in the photographs are likely to be accidental or non accidental. He provided an answer that in his professional opinion they were non accidental.

58. I did not form the impression that there was a great difference between the evidence of the experts, it seems to me there was broad consensus. I am not persuaded that the evidence of Dr Essex was in any way unreliable, to the contrary I found his evidence compelling.”

 

 

 

[The underlining here is mine for emphasis – you will note that the trial Judge specifically considered whether Dr Essex had reversed the burden of proof in his evidence and concluded that he had not. This had obviously been an argument run by parents counsel at the time, and the trap had been set ]

 

 

Having then heard the parents evidence, the Judge reached the following conclusions about the injuries (again, underlining is mine for emphasis)

 

“86. Weighing all the evidence in the balance I return to the fact that the medical evidence is clear, the distribution and number of bruises could not have been caused by the baby himself and there was no medical explanation. It was submitted that unless the doctors can provide an explanation of the precise mechanism of injury, it is impermissible to infer that the injury must have been non accidental. I find that statement to be too sweeping. The doctors are agreed that pressure has been applied to the skin which has been sufficient to cause bruising. Whilst these are described by Dr Rouse as being towards the lower end of the scale for the amount of force used, the marks are to be distinguished from the superficial marks caused by, for example, the elasticated edge of a sock. The marks were described as vivid red; they remained clearly visible for 3-4 days. Further and importantly, the marks were unusual in their number, in their distribution and position.

 

87. In the face of medical evidence where there is no substantive disagreement between the experts, this is a case where I am satisfied that the injuries sustained by M were non accidental. I am not persuaded by the evidence of the parents. The impression I gained was that I was not being told the entire truth as to the events of Friday evening and Saturday morning.

 88. In terms of identifying the perpetrator I am unable to do so. There is evidence that the mother was the principal carer for M. She did the lion’s share of the tasks of feeding and changing and clearly took the lead in decision making. The father did some of the tasks, he would make up bottles and comfort M while bottles were being made up. He was responsible for swaddling. It was clearly the mother’s decision to delay taking M to the doctor until the Monday, having said that it was she who was proactive in asking questions and significantly providing photographs which showed the bruises as being more serious than their presentation on Monday. During the material time frame when the injury must have been sustained, both parents were present in the home. Save for the period during Saturday morning when M was downstairs in his baby chair, he was in the bedroom with his parents. The father emphasised there were no carpets upstairs and accordingly it was possible to hear what was happening downstairs. This is a case where if one parent injured M the other parent would be aware. Both deny there was any incident. In the circumstances both must remain in the pool of potential perpetrators.”

 

 

This is what the Court of Appeal had to say about the Judge’s reasoning (Ms Scriven QC was representing the Local Authority)

 

 

14…The harm must be attributable to the care given to the child not being what it would be reasonable to expect a parent to him. That is the language of section 31 of the Children Act. So Ms Scriven mounts a very persuasive argument that the constellation of injury, and site of the injury, the mechanism for the injury, and the narrow timeframe of perhaps up to 18 hours or less during which these injuries were inflicted, all lead ineluctably to the conclusion that this was non-accidental injury.

 

 

15. The elements I have outlined do give establish a case to answer that the care given to this baby was not reasonable care, but outside the ordinary course of events, and that justified the inference that the threshold had been crossed unless the parents could discharge the evidential burden which would have shifted to them. It was a persuasive argument, but the difficulty I find in accepting it is that that was not the case the court was required to consider. The judge was not considering, as might have been the case, whether there was some general failure to provide proper care. She was being invited to find, and she did find, that these injuries were deliberately inflicted by one or other, or both, of the parents.

 

 

16. On the medical evidence, at least some of those marks were imprint or pressure marks made by some inanimate object coming into contact with the child’s arm. But what object, or even what sort of object, remains unexplained. Also unexplained is how that pressure was exerted. Was it a hard jab, causing the momentary infliction of pain, which might have caused the baby to cry, or was it more sustained and consistent pressure, which may not have been as painful to M? The truth, as acknowledged by the experts, is that we simply do not know. This is not a case like a child with a broken leg, or a shaken baby, or a cigarette burn, or finger pressure marks. We simply do not know what happened to M and we do not know how it happened. The conclusion that it must have been non-accidental injury was formulated by Dr Essex, and it was that which was accepted by the judge and formed the basis of her judgment. Dr Essex put his case, it seems to me, at its best under cross-examination of Miss Topping for the guardian, and this exchange seems to me to encapsulate what this case is about, at page 25 of the transcript of his evidence:

 

 

“Question: You conclude, Dr Essex, that in the absence of any plausible explanation for the injuries you see on [M] you would have to consider them to be non accidental. You say, [and this is quoting from his addendum report] ‘As no satisfactory explanation has been put forward on the balance of probabilities I must consider these injuries non-accidental’, at E28.

Answer: Yes. I am afraid, having looked at the possibilities, at the explanations, and at the reasonable possibilities, and even the unreasonable possibilities, I cannot find a satisfactory explanation, your Honour.

Question: Are you fortified in that by the fact that there were so many suddenly presenting bruises?

Answer: Well, it is always the overall picture: the age of the child, the number of injuries, the site of the injuries, and so on, and the developmental stage of the child. Putting all those pieces together, I do not find a satisfactory benign explanation.”

 

That, too, was the effect of the judge’s view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents are being required to satisfy the court that this is not a non-accidental injury.

 

 

Poor Miss Topping, who was present at the Court of Appeal hearing must have been mortified that what seemed at the time to be solid sound questions ended up destroying the case that she had been building up. I feel for her, there can be no worse moment for an advocate than that.

 

 

With that paragraph ringing in people’s ears, Ward LJ went on to put the nail into the coffin

17. I fear therefore that in this case, despite her careful analysis of the evidence, the judge did fall into that error. The judgment on the lack of protection by the parties is so short of reasoning and in fact, with respect to her, here so difficult to understand that the local authority do not seek to uphold it. We do not know whether the child cried, whether loudly and at length, or whether this was a sustained injury which caused discomfort not noticeable to anybody else. So that part of the finding is, as Ms Morgan submitted, flawed, but in finding as she did that this was a non-accidental injury, I fear the judge has not properly respected the burden which is on the local authority to demonstrate that these parents had deliberately gone about in some unknown way, with some unknown implement, to inflict these injuries on the baby

 

 

This is not, bear in mind, a case being resubmitted for a re-hearing, but the findings just being overturned. That would effectively be the end of the case.

 

It is for the Local Authority to prove, on the balance of probabilities, that it is more likely than not that the parent injured the child and how; and that evidential burden is not satisfied by the absence of evidence of a benign explanation.

 

 

 

What to do in the interim?

Interlocutory orders when the Court is faced with disputed allegations of non-accidental injury

Long term readers of this blog will know of the number of cases that have come before the senior Courts in the last year where what seemed compelling evidence for non-accidental injury perpetrated by the parents turned out to have a medical explanation (the rickets/vitamin D cases)   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/ 

 , a cyst   https://suesspiciousminds.com/2012/10/12/a-tapestry-of-justice/ 

 or where the Judge didn’t like either of the competing theories and fell back on the burden of proof,   https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/  

or where the Court just felt that the injuries just lay outside current medical knowledge and could not be explained   https://suesspiciousminds.com/2012/12/20/what-does-donald-rumsfeld-have-to-do-with-paediatric-head-injuries/ 

and I have speculated about when we might get a case that says what a Court are supposed to do with interlocutory applications for removal, when faced with serious allegations of non-accidental injury and the parents say “well, there’s a whole other possibility, which is that we have done nothing wrong and the child should remain with us”

Well, now we have such an authority, the Court of Appeal considering this very issue in Re B (Children) 2013  

http://www.familylawweek.co.uk/site.aspx?i=ed112720

The Judge at first instance had heard the application for an Interim Care Order and removal, and refused it, and the Local Authority appealed.

There were two fractures, and the radiological evidence was that there was not an organic cause and that they were likely to be non-accidental in nature.

The parents were arguing that the fracture had occurred in hospital during an examination, and marshalled other arguments as well.

The Judge at first instance accepted that there were matters on both sides of the equation and that a finding of fact hearing would be necessary to come to a determination of the causation of the injury, but that [as the Court of Appeal say] a significant body of evidence pointing to the distinct possibility (I deliberately use a relatively neutral description) that L had sustained non-accidental injuries.  

The Judge’s exact wording was

I make it plain that there are plainly on the evidence matters which might be going in the opposite direction.  But it appears to me that both of these fractures and the circumstances surrounding them suggest that there are grounds for believing that one or the other of the parents may have caused those injuries.”

The issue really was, having crossed the interim threshold, for the purposes of section 38 (which with the above formulation was plainly crossed and was not in dispute) ; but mindful that the ultimate issue of causation was not yet resolved and was in considerable dispute,  should the Court go on to make Interim Care Orders, or should he, as he in fact did, make Interim Supervision Orders allowing the two children to be at home pending the finding of fact hearing.

The Court of Appeal were pretty clear that they did not want to strike a new formulation of the test for removal [nonetheless, I like the way that they put it, which is a reset to Re B’s much clearer test than the murkier waters the authorities later dipped a toe into]

23. So, with that caveat that this is not intended to be in any way a reformulation of the test with regard to interim care orders, one might say that it is the welfare of the child that dictates the result, that dictates the order that the judge should impose at the welfare stage of an interim hearing.  The welfare is, as HHJ Murdoch says, the court’s paramount consideration and what the court is looking for is whether the child’s welfare demands that he or she should be removed immediately from his or her parents’ care for his or her safety or whether, putting it another way, removal from their care is a proportionate response to the circumstances as they appear to be to the court.  In carrying out that evaluation the court must, as HHJ Murdoch said, bear in mind the welfare checklist set out in section 1(3) of the Children Act.

The Court of Appeal then look at what the Judge laid on the other side of the scales  [underlining is my own, as that is the key passage]

. When the judge went on to consider the welfare issue, he said this at paragraph 33:

When, however, I come to look at the second stage of the decision making process at this hearing, I must look at the matter in the round.  I must look at the existence of arguments which go in the other direction in respect of the femoral fracture and the possibility that there is that the findings at the fact finding hearing in February may not be to the effect that non accidental injury has been caused.”

40. One might have expected that that passage in the judgment would then have been followed by an enumeration by the judge of the various features which gave the judge reassurance in placing the children with the parents in the interim period or at least a closer examination of the risk that there was to the children in the parents’ care, including the features that gave rise to concern, not just in the shape of the medical evidence available so far but also the other matters such as the existence of the 31 January incident and the absence of injury whilst under the supervision of the grandparent or, subject to a hand swelling which is noted in the clinical records, in the care of the foster parents.

41. In short one would have expected the judge, faced with the seriousness of the injuries which L had suffered so far and which he had found there were grounds for believing had been caused by one or the other of the parents, to go on at that point to explain why nevertheless he felt the risk was one that he could takeOne would have expected him at that stage, I think, to have explained what he thought the risk was and what, if any, he thought was the chance of such harm as the children risked actually happening, whether it was predictable as to whether it would happen and what protective features there were in the case that would guard against it.  The judge does not go on to deal with matters in that way. He sees the matter in terms of a balance between the risk of physical harm and the risk of harm to the children’s bond with their parents.  He clearly arrived at the view that the risk of the harm to the bond was greater than the risk of the physical harm, but he does not explain in his judgment how it was that he arrived at that evaluation.  Given the gravity of the circumstances here I see that as a fundamental flaw in his evaluation of the matter or at least in his articulation of how he saw the respective risks.

42. We were asked to say that no judge could have arrived at the decision that was arrived at in this case.  I am reluctant ever to say never in a family case, because each case depends upon a sophisticated mixture of the particular facts in the particular case.  I may have taken a lot of persuasion to have countenanced a return of children in circumstances such as these, but I would not translate that into saying that no judge could take that course.  But what a judge would need to do in those circumstances is to spell out very clearly why it was that he felt that the risk could be taken.  That is missing from this judgment and I would therefore overturn the decision made by the judge and would hear further submissions, insofar as those are necessary, with regard to what needs to happen next.

 

That is very different, of course, from suggesting that there is a burden on the parent to satisfy the Court that the risks are low or manageable, but of course in reality, given that the Local Authority (and often the Guardian) are putting the case that the risks are not manageable, it will be for the parents advocate to make sure that the Judge is given evidence and reasons for taking that course of action.  The risk of separation and the harm that might cause is not, in and of itself sufficient.

“The purifying ordeal of skilled argument on the specific facts of a contested case”

 

 A discussion of the Court of Appeal decision in Re TG (A Child) 2013, and using that recherche  Victorian novelist style of chapter heading   “In which the Court of Appeal discuss physics, experts, fairness, and bouncy chairs, the art of advocacy is considered, our attention is drawn to the spectre of separate representation without conflict, and in which we say goodbye to a magnificent Judge”

 

The case can be found here:-   

 

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2013/5.html

 

 

[Note to self :- I have realised that I use that formulation far too much, so next time I will just say “Lo” and give the link]

 

 

This is a great case, and a judgment packed full of goodness and crunch for the family law geek – it is resonant of the old 1970s advertising jingle for “Topic”  – it has a hazelnut in every bite, so to speak.

 

 

Firstly, the issues are about a finding of fact, and interesting medical issues. Secondly, it involves a sexy science of biomechanical engineering, and all sorts of interesting theoretical experiments and whether they should be carried out in practice. Then we have the fact that the cost of proposed expert assessment is pretty eye-watering, then a dissection of where the judicial discretion is on allowing or refusing experts, and then a discussion of whether our system is inquisitorial or adversarial (and regular readers will know that I have certain views on that).  The Court of Appeal finish up with some words about parties with common interests being separately represented which have the chime of a broader warning than just in Appeal cases, and then say goodbye to Lord Justice Hedley who retired after delivering this judgment.

 

So much stuff, I am going to break up the chunks, with the proclamation:-

 

“Topic!”

 

 

  1. TG was born in June 2012. When he was just twelve days old he was found to have sustained four left rib fractures, two right rib fractures, two skull fractures and a number of subdural and intraretinal haemorrhages. The latter, we were told, were not as serious as are sometime seen and did not exhibit all the features of the so-called triad.
  1. Care proceedings were commenced in relation to TG and his two older siblings, MG born in May 2011 and CJ born in July 2007. The case was transferred to the High Court, where it has been case-managed by His Honour Judge Bellamy, a very experienced family judge who is the Designated Family Judge for Leicester. The present application arises out of the refusal of Judge Bellamy on 5 December 2012, following a hearing on 3 December 2012, to give the father permission to adduce expert evidence from a biomechanical engineer.
  1. At this point I should interpose the father’s account of an incident which the parents believe may have caused some at least of TG’s injuries. I understand the local authority to point to what are said to be various discrepancies in the parents’ accounts which it will wish to probe at the finding of fact hearing, but for present purposes it suffices to set out the central core of the father’s account. Having explained how he had put TG in his bouncy chair on the floor of the kitchen near the patio doors and then returned to the lounge, he continued:

“I heard a banging noise in the kitchen … I heard TG cry and immediately went into the kitchen to investigate and was horrified to see [his] chair upside down and MG sitting with his back against the patio door facing into the room with his bottom and legs effectively on top of TG.

I can only assume that TG’s chair had tipped forward towards the window obviously with TG in it … He was strapped by the waist into the chair and effectively his bottom area was secured into the upside down chair. MG was in a sitting position with his back against the patio door facing into the room with his bottom and legs on the chair on top of TG’s head and chest area.”

  1. We were shown a photograph of the bouncy chair. It is of a type that will be familiar to many parents. It consists of two metal uprights, each of which, when viewed in vertical section, looks like a V lying on its side. One side of the V rests on the floor, the other reclines backwards at a slope. The two uprights are in fact part of a continuous metal frame, the other parts of which join the outer ends of the two Vs. The baby lies sloping backwards strapped into the fabric seat stretched between the two uprights. Because of the springy nature of the metal frame, the baby can bounce gently backwards and forwards in the seat, either by its own exertions or if someone is rocking the frame. In principle the chair can tip over, either sideways or forwards, but given a baby’s comparatively low centre of gravity and the fact that the baby’s bottom is not very high off the floor the chair is stable when placed on the floor.
  1. At an earlier case management hearing Judge Bellamy had given directions for five medical experts to be instructed: Dr Joanna Fairhurst, a Consultant Paediatric Radiologist, Dr Nicholas Shaw, a Consultant Paediatric Endocrinologist, Dr Philip Anslow, a Consultant Neuro-radiologist, Dr Patrick Cartlidge, a Consultant Paediatrician, and Professor David Taylor, Professor Emeritus of Paediatric Ophthalmology. By the time of the hearing on 3 December 2012, Drs Fairhurst and Shaw had reported. The reports of the other experts were due to be filed shortly before Christmas. Arrangements were in hand for a conference of the medical experts during the week beginning 7 January 2013, the finding of fact hearing having previously been fixed to commence on 28 January 2013 with a time estimate of seven days.

 

 

The Appeal then hinged on the case management decisions of H H Judge Bellamy not to allow the father to instruct an expert biomechanical engineer, Dr Van Ee, who gave some evidence in the Al Alas Wray case.   [I find myself fascinated by how to pronounce the last element of Dr Van Ee’s name, but that’s by the by]

 

Father’s counsel was eventually able to persuade the trial judge to permit an interim report from Dr Van Ee, effectively setting out what a biomechanical engineer could bring to this particular table

 

 

  1. “Biomechanics: the level of force caused by the baby bouncer incident as described is a biomechanical question, what forces would have been generated and how do they compare to the alternative posited by the Local Authority? – the biomechanical evidence in London Borough of Islington v Al Alas [2012] EWHC 865 (Fam), Theis J at para 186 was that shaking is unlikely to result in the angular accelerations necessary to tear cranial blood vessels resulting in intradural haemorrhage but may result in neck and torso injuries and that trauma is associated with Subdural Haemorrhage.”

 

  1. In an interim report dated 3 November 2012, Dr Van Ee set out details of his experience and expertise, including his co-authorship of what he describes as “the only peer reviewed publication (Prange at al 2004) in which the infant head mechanical response to impact was directly measured experimentally and compared to the CRABI-6 infant crash dummy response”; and his authorship, with others, of two papers published in the proceedings of the 2009 ASME International Mechanical Engineering Congress & Exposition, Van Ee, Moroski-Browne, Raymond, Thibault, Hardy and Plunkett, ‘Evaluation and Refinement of the CRABI-6 Anthropomorphic Test Device Injury Criteria for Skull Fracture’, and Van Ee, Raymond, Thibault, Hardy and Plunkett, ‘Child ATD Reconstruction of a Fatal Pediatric Fall,’ which he says “further refine head injury tolerance for skull fracture and intracranial trauma.” He set out his understanding of the incident described by the father and of the various injuries recorded as having been suffered by TG. He recorded the mother’s suspicion that “MG may have tried to sit in the bouncy chair bending the chair backwards resulting in contact to the back of TG’s head … when MG tried to get off, the chair flipped forward 180 degrees”. He set out a ‘Suggested Plan for Further Analysis’ which I reproduce as an Appendix.
  1. As will be seen, this included experiments using a CRABI-6 infant crash dummy placed in the bouncy chair and fitted with head accelerometers:

“Measure head acceleration (linear and angular) at floor impact when seat is overturned. Compare the results with skull fracture risk probability curve published by Van Ee et al 2009 and published injury reference values associated with subdural hemorrhage.”

Dr Van Ee also contemplated experiments using a number of children of MG’s age “sitting down rambunctiously” to determine whether they can exert sufficient force – have the strength – to overturn the appropriately loaded bouncy chair.

 

Man, those sound like a great set of experiments  – getting a group of toddlers to sit down rambunctiously to see if they can tip a crash test dummy baby out of a bouncy chair…  

 

The next line may well suggest why the trial judge baulked at commissioning an expert based in America to do this experiment

 

Dr Van Ee ended his interim report with an estimate of the cost – between $18,500 and $22,000

 

 

[Even if the video footage of rambunctious toddlers attacking bouncy chairs could be sold to “You’ve been framed” that’s still a high cost left on the taxpayer]

 

 

 

Before the Court of Appeal started their systematic root and branch overview of the role of biomechanics in reported cases (which is in itself great, and hopefully I will get to later), they make this observation

 

The father’s application was supported by the mother. It was opposed by the local authority. The most important point made by Mr William Tyler for the local authority was that the tests which Dr Van Ee proposed to undertake amount to a reconstruction in a case where it is impossible to arrange for a meaningful reconstruction given that no-one – not even the father – witnessed the incident he described. The ‘reconstruction’ would therefore be based upon speculation as to what actually happened. At best, he submitted, biomechanical engineering evidence in this case would be of no more than tangential relevance, so to allow it would offend against the principle of proportionality

 

 

 

And this was pretty pivotal – as whilst a detailed explanation of an observed injury could be unpicked by a biomechanical engineer to see if the forces involved were sufficient and the mechanism itself physically possible, with no observation of the incident itself, all that could be done was a wide range of the possibilities.

 

 

  1. On the central issue Mr Tyler has three submissions. The first is that there is no witnessed incident to reconstruct. Even on the father’s account he did not witness it. Moreover, says Mr Tyler, the father’s account has varied over time. So the crucial question is: what is a biomechanical engineer here to recreate? What, he asks, is being tested? Whether a toddler could overturn the bouncy chair and in doing so create the requisite forces? If so, how: forwards, backwards, sideways? In one movement, or a number? And so on. Thus, even were biomechanics an established and tested scientific discipline with a track record of assisting the family courts, this is not, he says, a case in which any assistance could be gleaned. He also asks rhetorically, what is the purpose of biomechanical testing in relation to the rib fractures, as proposed by Dr Van Ee, when the radiological evidence dates them as having occurred earlier than the incident recounted by the father?
  1. Mr Tyler’s second submission is that in any event biomechanics is not yet established as being of any use in a case such as this. Properly read, he says, the authorities relied upon by Mr Vine do not establish what he seeks to derive from them. He concludes a careful analysis of the cases with the submission that, whilst it is certainly true that various courts have allowed the instruction of experts in the field of biomechanics (including, as we have seen, Dr Van Ee), it is rather less clear that any court has derived any significant assistance from such evidence. Mr Tyler accepts that in a case where there is a single, witnessed and reconstructable incident said to have caused the totality of the suspect injuries there may be a place for such expertise – a proposition which, he suggests, will probably require some degree of ‘case by case’ evaluation in the Family Division over time. But this, he says, is simply not such a case.
  1. Mr Tyler’s third submission is that the court, informed as it will be by the other five experts, has no need of such evidence or assistance as could be obtained by biomechanical reconstruction. This is not, he says, a particularly unusual case, whether as suggested by Mr Vine or otherwise. Given that there are already five other experts, the assertion that the refusal to allow the father to adduce evidence from Dr Van Ee would involve a breach of Article 6 is, he says, simply wrong. He points to the fact that, in contrast to Dr Anslow, Drs Shaw and Cartlidge and Professor Taylor have each, with varying degrees of emphasis, expressed scepticism as to the utility of biomechanical evidence. He ends with a floodgates argument: if biomechanical evidence is permitted in this case, where an unwitnessed incident is said to account for injuries some of which in any event pre-date the incident, then, he says, it is hard to see how such evidence could be disallowed in many, many routine care cases up and down the country.

 

 

 

But on the other side of the coin

 

Mr Vine asserts that the appeal raises a point of law of general importance, namely the admissibility of biomechanical evidence in suspected non-accidental head injury cases. He says that the question of the forces generated by the bouncy chair overturning will be a central issue; it is a question of physics and biomechanical engineering; and one outside the direct experience and expertise of the various medical experts already instructed. He points to the authorities I have referred to as showing, as he would have it, that the criminal division of the Court of Appeal has recognised the importance of biomechanical engineering in this context and that biomechanical evidence has been permitted in both the criminal and the family jurisdictions. He took us to R v Harris, Rock, Cherry and Faulder [2005] EWCA Crim 1980, [2008] 2 FLR 412, [2006] 1 Cr App R 5, [2005] All ER (D) 298 (Jul), para [148], where Gage LJ referred to “the growing science of biomechanics” as having “had the effect of moderating to some extent the conventional view that strong force is required to cause the triad of injuries.”

 

 

And

  1. The judge will need to consider the nature of the particular expert evidence the admission of which is in issue. The evidence of an expert in one discipline may be of marginal use; the evidence of an expert in another discipline may be crucial. The judge will also need to be sensitive to the forensic context. The argument for an expert in a care case where permanent removal is threatened may be significantly stronger than in a case where the stakes are not so high. We strive to avoid miscarriages of justice, but human justice is inevitably fallible and case management judges need to be alert to the risks. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: see W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, [2006] 1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597, and Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378. But although the case management judge must be alert to the risks, the potential for such tragedies does not entitle a parent in care proceedings to an expert for the asking: see Re S; WSP v Hull City Council [2006] EWCA Civ 981, [2007] 1 FLR 90, paras [15]-[18]. Nor does it relieve the case management judge of the duty to exercise his or her discretion in accordance with the various provisions of the Family Procedure Rules to which I have drawn attention.
  1. In every care case, as indeed in every case, the case management judge will need to assess and evaluate the degree of likelihood that a particular expert’s evidence, or the evidence of an expert in a particular discipline, will or will not be of assistance to the parties in exploring, and to the judge in determining, the issues to which the evidence in question is proposed to be directed. It is vital that the case management judge keeps an open mind when deciding whether or not to permit expert evidence. The judge will need to be alert to the risks posed by what may turn out to be ‘bad science’. On the other hand, the judge must always be alert to the possibility that some forensically unfamiliar or even novel expert discipline may provide the key to explaining what at first blush appears to be a familiar type of case: consider, for example, what happened in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378.
  1. In this connection the case management judge will also need to bear in mind what Hedley J said in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384, para [10]:

“there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown.”

My Lord elaborated the point in an important passage (para [19]) which merits quotation in full:

“I have been impressed over the years by the willingness of the best paediatricians and those who practise in the specialities of paediatric medicine to recognise how much we do not know about the growth patterns and what goes wrong in them, particularly in infants. Since they grow at a remarkable speed and cannot themselves give any clue as to what is happening inside them, and since research using control samples is self-evidently impossible in many areas, perhaps we should not be surprised. In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

Sometimes what has happened is medically inexplicable. A striking example is provided by Re M (Children) [2012] EWCA Civ 1710, in which, by coincidence, judgment was handed down on the day we heard the present appeal.

  1. As against all this, we must never forgot the point made by Dame Elizabeth Butler-Sloss P in In re U (A Child) (Department for Education and Skills intervening), In re B (A Child) (Department for Education and Skills intervening) [2004] EWCA Civ 567, [2005] Fam 134, para [23]:

“The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

 

 

 

 

[I suspect that these passages might well be snipped into submissions and skeletons on applications for assessments of a medical nature over the next few months – they are pretty impressive arguments]

 

So, a lot potentially at stake – on the one hand, risks of injustice which could be cleared up by a biomechanical engineer, on the other, the risk of floodgates being opened  (if you need a biomechanical engineer in this case, why not in every case of unexplained physical injury?)

 

“Topic!”

 

The Court of Appeal remind themselves also that the bar for expert assessments is about to be raised, though they were deciding on the previous test. [And they confirm that judicially speaking, the bar has been significantly raised – my underlining]

 

  1. (3) Third, the court has particular case management responsibilities in relation to experts. Rule 25.4(1) provides that:

“No party may call an expert or put in evidence an expert’s report without the court’s permission.”

Rule 25.1 provides that:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.”

  1. Thus the Family Procedure Rules as they are today and as they were when Judge Bellamy had to decide what was to happen in the present case. But they are very shortly to be modified. With effect from 31 January 2013 the amendments made by The Family Procedure (Amendment) (No 5) Rules 2012 come into force. Rule 1.4(2) is re-cast to provide (paragraph (e)) that active case management includes “controlling the use of expert evidence.” Rule 25.4(1) is also re-cast, to provide that:

“In any proceedings, a person may not without the permission of the court put expert evidence (in any form) before the court.”

Rule 25.1 is significantly amended, to provide that:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”

It is a matter for another day to determine what exactly is meant in this context by the word “necessary”, but clearly the new test is intended to be significantly more stringent than the old. The text of what is “necessary” sets a hurdle which is on any view significantly higher that the old test of what is “reasonably required.”

 

 

“Topic!”

 

 

The consideration of how useful biomechanical engineering is as a discipline to the family Courts is a good one. It is all set out in paragraphs 39-44, and if you are seeking such an expert, or opposing it, that is a good place to start.

 

If you want something more pithy, here it is:-

 

44. During the course of argument in the present case, Hedley J asked Mr Vine whether he was aware of any case, criminal or family, in which biomechanical evidence had been found to be of any significant assistance to the court. My Lord added that he was not aware of any such case. No such case was identified at the Bar and we are not aware of one.

 

 

That was clearly a moment when poor Mr Vine for the father felt this case had probably slipped away from him.

 

 

“Topic!”

 

 

The Court stressed that they were not making any decisions as to whether the field of biomechanical engineering was admissible evidence, and it was accepted by all that it was – the issue was whether it was ‘reasonably required’ on the test as it was then, and whether article 6 could be construed as meaning that father was entitled to call the evidence that he was advised was needed to run his case.

 

 

  1. At the outset I should clear two matters out of the way. Mr Vine, as we have seen, suggests that the present appeal raises a point of law of general importance, namely, as he identifies it, the admissibility of biomechanical evidence. With all respect to Mr Vine, it raises no such question. The local authority does not challenge the admissibility of Dr Van Ee’s evidence, any more than it challenges his expert credentials. And in any event the question of admissibility is not determinative, because rule 22.1(2) empowers the court to exclude evidence that would otherwise be admissible. The issue before Judge Bellamy was rather, in accordance with rule 25.1, whether Dr Van Ee’s evidence was “reasonably required” – and it was to that question that Mr Tyler appropriately directed his submissions both here and below.
  1. Mr Vine also mounted an argument based on Article 6. Plainly, Article 6 is engaged, as are the principles set out in the two Strasbourg authorities to which he took us. But this does not, in my judgment, take him anywhere. The relevant statutory scheme, including the relevant provisions of the Family Procedure Rules, is Convention compliant. No-one has suggested the contrary. And a case management judge who properly applies the statutory scheme and the Rules will be acting in a Convention compliant way. There is nothing in the Strasbourg jurisprudence to entitle a litigant to demand that he be permitted to call whatever evidence he wishes. So far as material for present purposes what the Convention requires is a ‘full merits’ investigation by a court and a procedure which ‘taken as a whole’ is fair. The fact finding hearing will involve a ‘full merits’ investigation by the High Court. The refusal to permit the father to adduce evidence from Dr Van Ee involves no unfairness and breaches neither of the principles upon which Mr Vine relies.

 

 

“Topic!”

 

 

So, on the issue of whether biomechanical engineering had something to offer in this case, the Court of Appeal concluded that it did not. 

 

What I love here is that we start with science and quite carefully argued science

 

  1. In the present case the hypothesis is that the bouncy chair tipped over forwards, rotating, with TG strapped in, about the fulcrum represented by the two points of the V at floor level. Although no doubt the actual analysis and calculations are more complex, the basic principles of the mathematics and physics which are here engaged will be familiar to many. Simple geometry demonstrates that on this hypothesis TG’s head will have travelled through the arc of a circle, the radius of which is the distance between his head and the points of the V. The first part of the arc is that part of the trajectory as the chair is tipping forwards until the head is vertically above the fulcrum; the second part of the arc is that part of the trajectory where the head rotates forwards through 90º from the vertical until it hits the floor.
  1. It will be appreciated that in a case such as this there are two questions of particular importance. (1) What is the amount of force required to pull (or push) the bouncy chair forwards until it reaches the tipping point at which, if unsupported, it falls forward under the force of gravity until the baby’s head hits the floor? Alternatively, on the mother’s hypothesis, what is the amount of force required to pull the chair backwards as far as it will go before it is released, springs forwards and (assuming this is even possible) reaches the tipping point? (2) What are the forces exerted on the baby’s head and upper body as it hits the floor? In principle, one would expect well known principles of Newtonian physics to be capable of providing at least approximately accurate answers to both these questions once one has fed into the relevant calculations factors such as the radius of the notional circle, the baby’s weight and the location of the baby’s centre of gravity.
  1. But the answer to the second question will depend upon a number of other factors: What is the rotational speed of the baby’s head as it passes the tipping point? This will in turn depend upon the mechanism by which the baby’s head reached that point. On the mother’s hypothesis, the bouncy chair will have acted as a spring, projecting TG forward, potentially at some speed, as MG released his weight from behind. If, on the other hand, the bouncy chair was pulled forwards from the front, then the rotational speed at the tipping point may have been less, possibly much less or even zero. What, if any, forces, other than gravity, were operating once the baby’s head had passed the tipping point? This again will depend upon the mechanism. On the mother’s hypothesis the only forces would seem to be (i) the forces reflecting the rotational speed as TG’s head passed the tipping point and (ii) gravity. If, on the other hand, the bouncy chair was pulled forwards from the front, then there may have been additional forces, either pulling the baby forwards and downwards or, possibly, working in the other direction to restrain its free fall.

 

 

And then the President returns to the non-maths planet most people live on

 

Now one does not, I think, need the expertise of a biomechanical engineer to demonstrate what every parent will know, that an eleven-day old baby strapped into a bouncy chair is simply incapable of generating the forces required to tip the chair over

 

 

And that if what one is instead doing is trying to establish whether the rambunctious toddler, MG, could have tipped the chair over whilst poor TG was in it…

 

  1. entirely accept that a biomechanical engineer will, in principle, be able to obtain values, whether by theoretical calculations and/or by experimental measurements, and in relation to a variety of postulated factual scenarios, for (a) the forces required to tip the bouncy chair over with TG in it (what I will call the ‘tipping forces’) and (b) the forces applied to TG as his body and head hit the floor (what I will call the ‘impact forces’). But that information of itself is of very limited value in the present case. There are three problems.
  1. First, we simply do not know, even on the father’s case, what actually happened. Was the bouncy chair pulled from in front or pushed from behind? Or was it, as the mother hypothesises, pulled back and released like a spring? Was MG’s weight part of the load on the bouncy chair as TG hit the ground, and if so where about on the bouncy chair was his weight operating? Did MG land on top of TG? These different scenarios (and they are not necessarily an exhaustive list) are likely to provide a range of very different values for both the tipping forces and the impact forces. Second, and in the nature of things, we do not know whether MG was capable of exerting the required tipping forces. Dr Van Ee proposes practical experiments using toddlers of the same age, but such experiments, even if feasible, are unlikely to provide compelling answers, given the number of different scenarios that would have to be tested and, not least, the near impossibility of comparing the actual physical strength and other characteristics of the experimental 13-month old subjects with the characteristics at that age of the now 20-month old MG. Third, and even assuming all these difficulties have been overcome, there remains the fundamental problem that, in the nature of things, we have only a very imperfect understanding of how a baby’s body works and, in particular, of how much force is required to produce a particular form of injury in a baby. Let us assume that Dr Van Ee is able to produce values for the impact forces on different scenarios of, let us say, x, y and z. How do we know whether x, y, or z is sufficient to cause any of TG’s injuries? Mr Vine suggested that the answer is to be found in the ‘risk probability curve’ referred to by Dr Van Ee, but he did not explain why, nor does Dr Van Ee in his interim report. Indeed, we were not even shown the curve or the paper in which it was published.
  1. In these circumstances it seems to me that the prospect of Dr Van Ee’s work producing any useful evidence in this particular case is sufficiently slight as to fall well short of the “reasonably required” test. The fundamental problem, as Mr Tyler correctly identifies it, is that there is no witnessed incident to reconstruct. So, as he puts it, what is Dr Van Ee to recreate? The reality is that we are, factually, too far into the realm of speculation in this case for biomechanical engineering to be capable of providing the court with any significant assistance

 

 

So, in this case, biomechanical engineering had nothing of value to add, and the trial judge had been within his judicial discretion to refuse to commission the report.

 

What about cases generally? Does biomechanical engineering have something to offer generally?  Here the President, in stylish language to be sure, gives an answer which is pretty similar to that of a parent when asked by a six year old “Mum, can we have a rabbit?”

 

 

That leaves the more general question of whether, in other cases, biomechanical evidence might in future satisfy the “necessary” test. I would not wish to rule out the possibility, though I suspect that in the present state of the relevant science such cases will be at best infrequent in the family courts. As of today, it remains the fact that there is no case of which we are aware where such evidence has been found to be of any significant assistance. But I emphasise the qualifying words I have just used. We can only operate on the best and most up-to-date science available to us today. But we must always bear in mind that tomorrow may bring about a transformation of scientific knowledge so that, to use Dame Elizabeth Butler-Sloss P’s words, new scientific research will throw light into corners that are at present dark. Whether and if so when this will come about in relation to this particular scientific discipline we cannot say. That is why, as I have already emphasised, case management judges must always keep an open mind when deciding whether or not to permit expert evidence particularly where, as here, the science is both complex and developing.

 

 

Translation   “We’ll see”

 

 

“Topic!”

 

 

The Court then go on to talk about adversarial v inquisitorial, and produce the lovely line which titled this piece.

 

  1. It is a truism that family proceedings are essentially inquisitorial. But in certain respects they are inevitably and necessarily adversarial. Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged. But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish ‘threshold’ they are also necessarily adversarial in the technical sense. If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance of probability that those events did indeed happen. And if it cannot do so, then its case will fail and must be dismissed.
  1. The process of determining whether the local authority has or has not proved its case on threshold takes place under the vigilant eye of the judge. But in our adversarial system the ultimate safeguard for the parent faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. There are some principles that ring down the centuries, and the efficacy of the adversarial process is one of them. It is over 600 years since Hankford J is reported as having said in 1409 (YB 11 Hen 4, Mich fo 37) that:

“Home ne scaveroit de quel metal un campane fuit, si ceo ne fuit bien batu, quasi dicerit, le ley per bon disputacion serra bien conus [one does not know of what metal a bell was made if it has not been well hit, in other words, by good disputation will the law be well known].”

In a world inconceivable to Hankford J and in a forensic context he would find baffling, the point remains as true today as then, and it surely applies as much to the facts as to the law.

  1. In an arresting phrase, Megarry J (to whom I am indebted for the reference to Hankford J), once referred to the aid afforded to the judge by “the purifying ordeal of skilled argument on the specific facts of a contested case”: Cordell v Second Clanfield Properties Ltd [1969] 2 Ch 9, 16. The context there was very different, but the same goes for cases in the family courts. Most family judges will have had the experience of watching a seemingly solid care case brought by a local authority being demolished, crumbling away, at the hands of skilled and determined counsel. So the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. As Wall LJ said in Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [197], “the system provides a remedy. It requires determined lawyers and determined parties.” May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work.

 

 

Translation :- “hooray, lawyers are great!”

 

 

But we move on

 

  1. Yet this is all funded out of the public purse, as it must be if there is to be equality of arms between the citizen and the State. And the public purse is not limitless, least of all in these times of financial stringency. We cannot allow scarce public resources to be frittered away and squandered. Every £100 of public money spent paying for the separate representation of litigants in family cases who do not require to be separately represented is £100 unavailable to pay for representation which is required. If money is allowed to leach away in this way, the consequence will inevitably be, sooner or later, a reduction in the levels of remuneration. That cannot be in the interests of those, often frightened and disadvantaged in so many ways, who find themselves in an unfamiliar situation, critically dependent upon their advocates and other legal representatives.
  1. Not for the first time this court was dismayed by what appeared to be the separate representation of parties who, whatever the position below, in this court stood together in the same interest. The question for us was simple and binary: Should the appeal against Judge Bellamy’s order be allowed, or should his order stand? On that issue, as we have seen, the mother stood behind the father’s appeal and the children’s guardian supported the local authority in resisting the appeal. In each instance, so far as could be seen, the position before us of the supporter was indistinguishable from that of the main protagonist. Yet we had before us four counsel, and no doubt four solicitors, when it might be thought that two of each would have sufficed – and all this at public expense. Included amongst the directions I gave on 14 December 2012 was this:

“The court will be much assisted by submissions from the children’s guardian but does not require the CG to be present or represented if the CG takes the view that filing a skeleton argument will suffice.”

Very often, all that will be needed in such a case is a skeleton argument or even a letter, which may be appropriately brief, setting out the absent party’s stance. Was this not such a case?

  1. This is not a matter which we raise for the first time. Almost twenty years ago, in Birmingham City Council v H (A Minor) [1994] 2 AC 212, 217, the House of Lords made some very pointed comments which seem to have had little effect. More recently, it is a matter on which the then Master of the Rolls expressed himself strongly in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras [44]-[50]. I draw the attention of the profession to what Lord Neuberger of Abbotsbury MR said in a passage which is too long to quote but which should be required reading for every family practitioner. Included in what the Master of the Rolls said was this (para [45]):

“We take this opportunity to emphasise in the strongest possible terms that it is only where it is clear that there is an unavoidable conflict of interest, as a matter of law, between two parties in the same interest that they should have separate legal representation, especially where public money is involved.”

He went on (para [48]) to refer to the possibility of parties confining themselves to written representations and (paras [47], [50]) to warn of the adverse costs consequences that might follow in cases where legal representation is unnecessarily duplicated.

  1. That was said in May 2010. Experience since then suggests that the warning has, too often, fallen on deaf ears. This must stop. The profession must take heed. So too, if I may say so, should the relevant professional bodies.
  1. In fairness to those who appeared before us I should make clear that we did not explore this issue at the hearing. Accordingly, it would be unfair if what we have said was seen as any adverse comment on the lawyers involved in this particular appeal. But in future those in such a situation may find themselves having to explain their position.

 

 

Translation :- “What are you doing here? Aren’t you saying the same as that bloke next to you?”

 

The passage I have underlined is something which has potential consequences for all cases, not just appeal hearings.

 

I do recall, quite vividly, when the Protocol came out, a fleeting moment of crackdown, where tribunals were quizzing advocates on why the mother and father were separately represented when they sought to care for the child together, and the view being that this would be the exception rather than the norm.

 

But this was pretty quickly resolved, advocates worked out that there was a formula of words, along the lines of “potential for conflict to arise at a later stage, and the need for parents to have continuity and for them to have independent advice”  was enough to defuse that, and keep two of them in each case.   

 

[There are, I know, very very many cases where there is genuine potential for conflict, and it is perfectly right and proper for mother and father to be separately represented, but I do also go to many final hearings where you could not put a cigarette paper between the case of the mother and the father, yet they have separate counsel making the same points for each of them, and handing up two forms, resulting in due course in two bills being paid from the public purse. . The Court of Appeal are dropping a pretty heavy hint here that in a time of austerity, that might have to be addressed, and probably that if it is not self-policed, the consequences will be financial squeezes in other areas affecting the professionals]

 

 

All in all a fascinating judgment, and as it is effectively the President’s first, and Lord Justice Hedley’s last, the two of them being very stylish constructors of judgments, I think it is well worth a read.

 

 

[And if you’re my age, you have been wanting throughout this piece to hear the Topic jingle, so I will put you out of your misery.  Next week,  Ordinary Residence and “Nuts, Wh-oh-oh-le  Hazelnuts, Cadbury’s take them and they cover them with chocolate!”   ]

 

 

 

http://www.youtube.com/watch?v=ksxdrMPUAwk