C v HE/GR [2016] EWFC B109 (14 November 2016)

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URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B109.html
Cite as: [2016] EWFC B109

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		No. PE16C00425

IN THE FAMILY COURT
(Sitting at Peterborough)

Crown Buildings
Rivergate
Peterborough, PE1 1EJ

14th November 2016

B e f o r e :

HIS HONOUR JUDGE GREENE
(In Private)
____________________

	- and -
	(1) HE
	(2) GR	Respondents

____________________

Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
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____________________

MS. D GOLD (instructed by LGSS Law Ltd, Cambridge) appeared on behalf of the Applicant.
MS. S. WALJI (instructed by Duncan Lewis) appeared on behalf of the First Respondent Mother.
MS. M. ELLIOT (instructed by CB4 Law Solicitors) appeared on behalf of the Second Respondent Father.
MS. S. SHACKELFORD (instructed by Janet Thompson Solicitors) appeared on behalf of the Guardian.
____________________

HTML VERSION OF JUDGMENT
____________________

JUDGE GREENE:

These proceedings concern two little boys: B, born in 2014; and BJ, born in 2015.

The proceedings are brought by Cambridgeshire County Council represented by Ms. Gold for care orders and placement orders in respect of each of the boys. All applications are supported by the Guardian for the children, who is represented by Mrs. Shackelford. The mother is HE, represented by Ms. Walji, and she opposes the applications as does the children's father, GR, represented by Ms. Elliot.

The threshold criteria for making of orders is substantially disputed by the parents and so, in dealing with the matter, I have had to consider that as the initial question for me. Of course, the test is the one set out in s.31 of the Children Act 1989 which is quoted in the Local Authority's document (A24). The Local Authority say that the threshold is met on the basis set out in that document. The Guardian also supports the Local Authority's position. Mr. R made some limited concessions. The mother mainly disputes that the threshold is crossed.

After I have considered that, and only if I have found the threshold crossed, then the children's welfare becomes my paramount consideration. As the applications include applications for placement orders, the consideration is as to the children's welfare throughout their lives.

The hearing has proceeded by way of four days of evidence last week in which I heard evidence from Dr. M, Consultant Psychologist, who assessed the mother and father; Dr. H, a Radiologist at Addenbrookes Hospital; JS, Health Visitor; A L, the Specialist Family Support Service worker; SP, the social worker; Dr. W, the Consultant Paediatrian, appointed as an expert in these proceedings; from the mother and her witness, AJ, who she puts forward as a potential carer; from Mr. R and the Guardian.

The proceedings came before me involving these parents not for the first time because I had heard proceedings last year in respect of B when he had suffered a large bruise to his leg when he was some four months old. He had been accommodated away from his parents whilst those proceedings took place from April through to November of 2015.

At the final hearing in October, I made findings that the bruising had been inflicted by Mr. R but unintentionally as a result of using excessive force. I made a number of other findings that fulfilled the threshold criteria and, in particular, in respect of the mother ignoring advice against co-sleeping. In those proceedings, when I considered welfare, I made a twelve months supervision order and B returned home to his parents.

BJ was born a few weeks later in December of that year and, as part of the supervision order, a very intensive package was put in place to support the family to give the family the best prospect of succeeding as parents with both children.

Despite the findings in previous care proceedings that the mother had been reluctant to take advice and had, in particular, ignored advice against co-sleeping, the hospital only two months after those proceedings had ended were reporting that they had real concerns that the mother was rejecting their advice about feeding, that BJ was losing weight as a result and also that she was continually ignoring their advice against having him in bed with her and he was found asleep in her bed on a number of occasions. Their concerns were so great that, rather than allow BJ home after two days as had been originally intended, he was kept in for some two weeks. So a number of the concerns voiced at that stage were very similar to those which had been voiced a year earlier in respect of B.

As part of its support package the Local Authority instructed Dr. M, a very well respected Consultant Psychologist, to reassess and to advise on the support that could be given. That was implemented by the Local Authority, but when BJ was four months old the health visitor was shown a bruise on his leg by the mother. At that time and subsequently, the mother has given a number of different explanations, initially saying that it was perhaps due to a strap on his swing seat. The injury was a linear bruise on his left calf and, as a result, the Local Authority instigated a s.47 enquiry.

BJ was taken to Addenbrookes Hospital and a full examination was carried out. It was only as a result of that examination that a fracture to his left wrist was diagnosed - it was a trans-metaphyseal fracture - and x-rays were carried out. A bruise on his shoulder was also noted. The medical opinion was that all three of those injuries were likely to have been due to non-accidental causes. Due to the nature of the type of fracture, two further x-rays were carried out and they confirmed the initial diagnosis of the trans-metaphyseal fracture.

The proceedings began. Interim care orders were granted. The parents were asked to provide detailed explanations. Mr. R, in a document filed by his solicitors - because the parents were separately represented - said that he did not know how any of the injuries had been caused, but that he knew that he himself had not caused any of them. In her document filed on 14^th June, the mother said that she did not know how the injuries occurred and she could not remember any incidents at all that could account for any of the injuries.

Due to the allegations of non-accidental injury, the parents were then directed to file more detailed statements setting out each and every incident which they could recall that might account for any injuries. Mr. R, again, said that he did not know how any of them had been caused and that he had complied with the supervision plan, one aspect of which was that his involvement with the children was supervised at all times. It has not been suggested by anyone involved in these proceedings that he has been alone with the children on any occasion or that the parents have failed to comply with that aspect of the supervision plan. Moreover, Mr. R works full time and has done so throughout the relevant period, only returning home in the afternoons.

The mother in her statement again said that she could not think of any incidents at all. She said she was sure she had not injured BJ, but in the second paragraph of that detailed statement, said that the only incident she could think of was one in which Mr. R had picked up BJ and he cried as a result. She said that was in about the second week of April. She went on to say specifically "I have no other explanation". So that is the background.

In considering the factual disputes, of course, it is for the Local Authority to prove the matters which it alleges, the burden is upon them evidentially, and the standard of proof is the balance of probabilities.

So far as the injuries themselves are concerned, turning to the evidence that I heard and read in the bundle - some of which was unchallenged and therefore not called - the medical evidence is very clear and I found the witnesses called to be impressive and convincing. It is clear that the fracture is likely to have occurred sometime between mid-April and BJ's admission to hospital on 3^rd May, that it was caused by a yanking twisting mechanism and that it would have been immediately painful. BJ would have been obviously in pain and cried. As a result, the incident would have been memorable and would have left a carer in no doubt that he had been injured.

The mother's explanations have gone from no explanation at all and no incident to then saying in the next statement that it must have been Mr. R; and, finally, not until the hearing last week, suggesting that it must have been caused by B in an incident that she says she remembers in mid-April where he got hold of BJ's arm and pulled him through his crib, moving the crib across the room.

In considering that explanation and the time at which it was given in these proceedings - taking into account that it had not been put forward earlier, despite evidence that such an incident would have been memorable if it could have caused the injury - I found the mother's evidence to be vague and inconsistent and unconvincing and I did not consider her to be an honest or reliable witness in these proceedings. She went into an elaborate description of an alleged incident in which she said BJ had been pulled by B whilst lying in the crib. I found it remarkable that that had not been put forward at an earlier stage if such an incident did take place. Something along those lines had been mentioned in passing in her second statement, but only as part of her description of how she spent her time with the children. No mention is made in that description of any pain. The description of the incident itself differs in some relevant aspects. She talks about B J's arm being held, whereas in evidence it was very clearly suggested that it was his hand or wrist.

In any event the crib in both the descriptions, in that statement and in her oral evidence, was said to have been on an uncarpeted floor and to have moved very easily. Although Dr. W in her evidence indicated that such a mechanism could possibly (if it took place) have been the right sort of mechanism to cause this type of injury, she did agree that if the cot had moved easily then the forces would have been significantly reduced by that thereby making a fracture in such an incident less likely in any event. However, having considered the way in which the mother gave her evidence, I reject her evidence about this suggested incident. I did not find her evidence credible.

The mother said that the father, Mr. R, had been in the kitchen whilst this was going on. She had been in the kitchen too. She said she left it to go to see BJ when she said he was heard to cry. Mr. R could not recall any memorable incident and his evidence did not corroborate mother's version of events in any meaningful way.

When the mother was cross examined about this evidence, she was not able to provide credible explanations for the anomalies in her story nor in her failure to put it forward at an earlier stage. So from her demeanour and her implausible explanations, I was left in no doubt that her evidence was unreliable that the incident did not occur either at all or, if there was an incident along those lines, that it was not an incident of a nature that could possibly have caused any injury to B J.

The injury to the back of BJ's leg is also a significant injury. It would have required considerable force and that became apparent when further photographs produced at the hearing and taken only just before it, indicated that there was still a mark. When Dr. W was asked about that, she described that as still consistent with her original opinion that this was a bruise inflicted by something with a sharp straight edge. She described the mark there now as a scar from that bruise; something which has changed as he has grown, but still shows through his skin.

The mother's explanation was that B was rough with B J and is likely to have caused it with one of his toys. That was her evidence before me. It was not consistent with her earlier explanations. At various occasions, she had said that she could not remember any incident that could have caused such an injury. She then later said that B was rough with B J, that he put various things under him. That did not impress me as a credible explanation. It was clear from the medical evidence that putting things under him, whether they were the right shape and hardness or not, nor climbing over him, would be likely to cause such a serious and deep bruise.

Dr. W was clear in her evidence that the injury would have been inflicted on BJ, either by his being hit by something which would have had a straight flat edge or by his being forcefully put against something. She gave an example of the edge in the witness box, where she was standing, of his being forcefully put against or slammed against something along those lines with a flat edge the top of a piece of furniture. Clearly, B could not have done that.

Despite the mother saying that B had lots of toys, she was not able to specify any particular toy that had that sort of straight hard edge nor was it an explanation which she had come up with earlier in the proceedings when she had been directed to file a statement setting out anything that could have occurred which could account for the injury.

I remind myself that this is a mother facing care proceedings for the second time within a year. She was well aware, and well represented by solicitors so had the benefit of advice, of the need to give detailed statements at an early stage setting out explanations. She failed to do that and instead said she had no explanation she could think of until it came close to the final hearing. The evidence that she gave I found utterly unconvincing and I cannot accept there is any truth in these allegedly late-remembered and vague explanations.

In considering how that incident could have occurred, it seemed to me relevant to take into account evidence I have heard from a number of professionals - including the social worker, a contact supervisor and the Guardian - that the mother is generally abrupt and sudden in her movements with the children, that she gets hold of them forcefully. She has been seen, for example, to grab hold of B by the hand and drag him across the room quicker than his legs could take him on one occasion. So it does seem to me that the sort of forceful movements could well be more consistent with her typical demeanour in how she handles the children.

I heard little evidence about the third injury, the bruise to the shoulder. It is clearly less severe than the other two injuries. There is a suggestion that the mother had mentioned that that had been caused by B prodding BJ on his shoulder. The lack of attention to that particular injury meant that there was really insufficient evidence, in my view, to consider specifically how that might have happened. But I do take into account the fact that, even in respect of that, no explanations were provided in the statements directed to be filed until very late in the day and then simply by vague assertions that B was jealous and rough. Those assertions have become such a theme that they seem to me to beg the question that, if there was any truth in that, why the mother would not have taken steps to protect BJ from that type of behaviour from B. But when one looks at it in the context of the seriousness of the other two injuries, it seems to me that that is an explanation that is not credible.

So I am satisfied that this is not a situation where a little boy, who was only sixteen months old at the time, is responsible for all three of these injuries or indeed for any of them. Even though I accept the evidence of Dr. W that it is theoretically possible in the right circumstances for him to have done so, I do not believe that those circumstances existed here. The evidence leads to the opposite conclusion that it is more likely, and more likely than not, that the injuries were caused by the mother's forceful brusque handling that showed insufficient care for the children's safety.

It is not suggested by anyone that the mother would have deliberately caused harm to the children. In fact, all witnesses were very clear that both the mother and the father love the children very much and would not deliberately hurt them. But the evidence seems to me to be really quite convincing that these injuries are more likely than not to have been caused by careless or negligent handling by the mother.

I am satisfied that the father had no opportunity of causing any of the injuries. As I have said, he was at work full time not returning home until the afternoons and was then, on the evidence of everyone I heard, fully supervised in accordance with the supervision plan.

It is a matter of some concern that the mother has attempted to use B as a scapegoat for these injuries and I am satisfied that he did not cause any of them. I am equally satisfied that no one else could have caused any of the injuries. It has not been suggested that anyone else had the opportunity to do so. So in respect of the injuries, I do find that the mother's rough abrupt manner with rapid forceful movements is likely to have been the cause of all of these injuries.

Moving on to the other aspects of the threshold, I accept the evidence from the hospital and the other witnesses that the mother failed to act on advice in respect of the feeding and in respect of co-sleeping. Those matters are perhaps more significant in this case than they might be otherwise simply because of the fact that it is only a year since very similar concerns were raised. One of the most important aspects of both matters are the mother's failure to accept advice and failure to act on advice. The evidence of the health visitor seemed to sum it up by saying in so many words that the mother always thinks that she knows best.

The other aspect which causes concern is that the proceedings had only concluded a few weeks before. There was already in place a support package and, despite all of that and despite there being a supervision plan in place and threshold findings having been made that the children had been at risk of significant harm, she chose to be argumentative and dismissive rather than listen to and act upon advice. Sadly, it was clear from even her own evidence that in the same way that I found she is brusque and physically forceful with the children, she is also dismissive and self-opinionated in her attitude to professionals who are trying to help her, rejecting advice and preoccupied with her own needs.

So I find the threshold criteria met and turn to consider what, if any, orders should be made and remind myself that the children's welfare is the paramount consideration throughout their lives.

In considering what, if any, orders should be made, the father has taken the commendable step of saying that he accepts that he has difficulties and does not put himself forward as a sole carer. He would like the children to be returned home to himself and the mother. The mother, of course, puts herself forward in any combination with either the father or her friend, Mr. J (who I will mention in a moment) or as a final fall back position puts Mr. J forward as an alternative carer.

Mr. J had been suggested at the Issues Resolution Hearing and a direction was given that, if he was to be put forward as a carer, a statement was to be filed by 20^th September. That was not done. He did not come forward. Neither the mother nor her solicitor pursued that. But at the final hearing, considerably out of time for that direction, the mother announced that her proposal was for Mr. J to move in to the property and that, if necessary, he should do so with the father moving out. At various stages, by both the mother and Mr. J, it was suggested that that is a plan that had been discussed on numerous occasions.

Clearly, it was not a plan that was put forward properly to the court or to the Local Authority in a way that could be considered and, clearly, Mr. R was taken aback by the way the plan was put forward. I was able to see his face when it was suggested that he would move out to enable Mr. J to move in. He clearly seemed to be taken by surprise by that suggestion.

As this had not been put forward in the mother's final statement, she was asked to file another handwritten statement which was written out and signed during the course of the final hearing. A statement from Mr. J was put forward and filed, again, during the course of the final hearing.

Clearly, the mother's initial proposal was on the basis that I would find that the father had caused these injuries as she had originally suggested and that he should, therefore, move out to make the children safe with Mr. J moving in in his place. Of course I have found the opposite to be the case that Mr. R is entirely exonerated from causing any of the injuries, but that they were in fact caused by the mother.

My finding in respect of the injuries does not, of course, preclude the possibility of the children returning home; that is what occurred after the last set of proceedings. The difference here is that certainly two of these injuries were more serious and occurred during a period of intense support under a supervision plan very soon after the previous proceedings had concluded. I am satisfied that the Local Authority had done everything it could to support the children and support the family and to make the children as safe as they could have been and that there is nothing that the Local Authority could have done that had not been tried. The injuries occurred in a short timeframe after the conclusion of previous proceedings and despite regular visits and frequent support visits. The rejection of advice, which put BJ's safety and welfare at risk, is a very concerning matter. It is concerning also not only that it occurred so soon after the previous proceedings, but that it was in the supportive setting of the hospital initially.

The consequence of all that, in considering the assessments and the evidence that I have heard, is that I could have no confidence that the children could be safe in the mother's care. Dr. M carried out an assessment in which she concluded that the mother required intensive long term therapy. In particular, Dr. M said that if the mother was found to have caused any of the injuries then she would have concerns about the children being in her care.

The situation therefore is one which causes some anxiety because, of course, it is a very serious matter to consider removing children permanently from their parents' care, so I have given very careful thought to the proposal put forward in respect of Mr. J. Mr. J had been assessed in the course of the previous proceedings and that assessment had been positive. But when one looks behind that headline the situation is very different now compared to the situation then. At that time, he was assessed with his partner (so it was a joint assessment with Mr. L). He had been in a long term relationship with that man. They were in a stable home with suitable accommodation. Mr. J was working full time in a responsible position. That was the situation in the course of the first set of proceedings when the assessment was positive.

Since then almost every aspect that I have just referred to has changed. The relationship ended, Mr. J left, he has no accommodation and he was off work having had a breakdown for a considerable length of time. It would not be an exaggeration really to say that his world had fallen apart and has not yet been properly put back together. He is on medication and he is looking for accommodation. There was some uncertainty about where he would be working and what, if any, his hours would be, what support he would get, whether or not he would be able to take any time off to devote to childcare.

The position put forward as a support package was vague, last minute and in effect cobbled together. It was not the sort of proposal in respect of which I could have any confidence that it would work, that the children could be safe and that their needs could be met. The mother and, through her, Mr. J must have been aware that for the court to give serious consideration, a detailed proper proposal should have been put forward much earlier; but, nevertheless, I have considered the proposal as put forward. It was suggested that for it to be given proper consideration there should be an adjournment for an assessment. I do not consider that to be necessary or appropriate or in the children's interests.

To the extent that an assessment is necessary, that is of course something which I carried out in the course of the hearing. I had the opportunity of listening carefully to Mr. J's evidence and also the plans put forward by the mother. Having carried out my assessment of that evidence and the way in which it was given, I found that I could have no confidence that any of the various unformed proposals put forward could meet the children's needs for safety or security or meet any of their other welfare needs. So I reject that proposal as being entirely unrealistic.

I have already said that Mr. R has not put himself forward as a sole carer. I accept that both parents love the children and contact has been very good and enjoyable in many ways for the children, but, sadly, in respect of the mother, I accept the evidence of Dr. M and Ms. P and the Guardian that the mother requires significant long term therapy to effect the necessary changes without which she will continue to be dismissive of advice and parent children in a way that is likely to cause them attachment disorders and fail to meet their needs or keep them safe.

In all those circumstances and with a heavy heart, I approve the care plan with the only option being for permanency outside the family and make a care order to the Local Authority.

Having approved that care plan with adoption as being the only realistic option for the children, I have to go on to consider the applications for placement orders in respect of both children. Placement orders are required in order for the care plan, which I have just approved, to be implemented. Without it, the care plan cannot be implemented. Of course, the parents do not give their consents to placement orders and those orders can therefore only be made by my dispensing with their consent if I am satisfied that it is necessary to do so. I am satisfied that the children's welfare requires that the parents' consents are dispensed with because otherwise the care plan I have approved cannot be implemented. Accordingly, I dispense with their consents and make placement orders in respect of both B and BJ.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> C v HE/GR [2016] EWFC B109 (14 November 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B109.html Cite as: [2016] EWFC B109

		Crown Buildings Rivergate Peterborough, PE1 1EJ
		14th November 2016