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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> MCR (A Child -finding of fact hearing), Re [2016] EWFC B74 (22 June 2016) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B74.html Cite as: [2016] EWFC B74 |
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IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF MCR
B e f o r e :
____________________
A Local Authority | Applicant | |
And | ||
D S | ||
And | ||
N G | ||
And | ||
The child | ||
(Through their children's Guardian) | Respondents | |
And | ||
L M | Intervener |
____________________
Jacqui Thomas for the Respondent Mother
James Goodwin for the Respondent Father
Julie Greenhalgh for the Respondent Child
Roger Price for the intervener
Hearing dates: 13th-17 June 2016
____________________
Crown Copyright ©
Background history
Issues to be determined
The Legal Principles
i. The burden of proof
The burden of proof is on the party making the allegations. In this case that is the LA. The LA has the legal burden of proving that the threshold is passed in accordance with the schedule of findings it invites me to make. It is not for the mother or the intervenor to prove their innocence.
ii. Standard of Proof
I must decide disputed issues of fact by applying the civil standard of proof. Thus a disputed allegation only becomes a proven fact if it is more probable than not that the disputed event occurred. In Re B [2008] UKHL 35, Lord Hoffman said at paragraph 13 of the judgment:
'I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not'.
I must find either that a disputed event did occur or that it did not. Baroness Hale said as follows at paragraph 32 of the Re B judgment: 'In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof'.
iii. Evidence
In determining the facts I have to decide this case on the evidence that is before the court. The issue of speculation was considered by the Court of Appeal in the case of Re A (a child) (fact finding: speculation) [2011] EWCA Civ 12, [2011] 1FCR 141. In that case Munby LJ said at paragraph 26: 'findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) and not on suspicion or speculation'.
iv. The totality of evidence
The need to consider all the evidence before a court reaches a conclusion on a disputed issue of fact was stated by Dame Elizabeth Butler Sloss DBE in Re T (children) [2004] 2 FLR 838. As she said, a judge has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the party bearing the burden of proof has been made out to the appropriate standard of proof. Evidence should not be compartmentalised.
v. Expert evidence
The evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental injury includes expert evidence. In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed:-
"It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision."
Later in the same judgment, Mr Justice Charles added at paragraph 49:-
"In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."
viii. Parents' evidence
The evidence of the mother and the intervenor is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them: see Re W and another (Non-accidental Injury) [2003] FCR 346.
vi. Lies, Multiple Allegations and Cross-relevance
There is clearly an issue in this case in respect of lying as both the mother and the intervenor have accepted that they lied in the initial accounts they gave both to professionals and to the court.
I am invited to find that they have lied to cover up a wrongdoing. I have reminded myself of the direction given in the case of R v Lucas [1981] QB 720 and have considered the two stage analysis I must apply in relation to allegations that a party has lied. First it is necessary to establish whether a lie has been told. If a lie has been told, the court should then, secondly and separately, analyse why any proven lie was told. Within that second limb of the self-direction, a judge should recognise that a witness may lie for many reasons. For example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion, emotional pressure or a desire to conceal other misconduct.
The fact that the witness has lied about some matters does not mean that he or she has lied about everything. A lie is not in itself proof of "guilt".
viii. Identifying a perpetrator
When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator: see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of a non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable where possible for the perpetrator of a non-accidental injury to be identified, both for the public interest and in the interests of the child, although, where it is impossible for a judge to find on a balance of probabilities, for example, that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so: see Re D Children [2009] 2 FLR 668, Re SB Children [2010] 1 FLR 1161".
The evidence
She considers the injuries to the child's face identified on 1 August and concludes that the child had a large area of bruising to her face; medical causes for such bruising have been excluded as have any underlying condition suffered by the child. She concludes that there are a number of factors which point towards these injuries being inflicted rather than accidental injuries, in particular the area of bruising which is not consistent with an accidental fall, inconsistencies in the accounts given by the mother as to the timing of the injury and also the mother's report that the child took a bottle after the injury. She also considers the positioning of the bruises and the appearance of the bruises to be consistent with pressure being applied to the skin through slapping or squeezing and in her view, the bruising is consistent with the child having sustained multiple impacts. She also considers the context of the injury to be important, particularly the family history and the repeated incidence of injuries being noted in the months leading up to this incident.
The mother's evidence
The evidence of the Intervenor
The Children's Guardian
i. the child was presented at hospital on the 1 August 2015 with large areas of bruising to the left hand side of her face measuring 11cm x 9cm, which involved her left forehead, temporal regions, upper eyelid, below her eye, the soft area of her cheek and the upper part of her left ear.
This is a matter of fact and is not disputed by any of the parties. It is clearly supported by the evidence before me and I make this finding as sought.
ii. These injuries are more likely than not inflicted, non-accidental injuries.
The only party that disputes this finding is the intervenor. It is still his case that the injuries occurred when the child suffered some sort of a witnessed fall in her cot on the night of 31 July. Dr Kelly has clearly dealt with this possibility and has firmly rejected it given the appearance of the injuries and in particular the location of the injuries. I find I prefer the evidence of Dr Kelly and make this finding as drafted.
iii. The child suffered both physical and emotional harm when the injuries were inflicted upon her.
Dr Kelly gave clear evidence that the injuries that the child had sustained would have been both painful and frightening. I have no hesitation in accepting that evidence and making this finding as drafted.
iv. The pool of perpetrators for inflicting such injuries is the Mother and the Intervenor. From that pool of perpetrators the person who did not injure the child has failed to protect her from the person who did cause the injuries to her.
As I have set out above, the test as to whether a particular person is in the pool of possible perpetrators is set out in the case of North Yorkshire v SA. The question is whether there is a likelihood or a real possibility that he or she was the perpetrator. Given that I have found that the injuries to the child were inflicted and given that the people caring for her at the time that she was injured while her mother and the intervenor, they are both clearly in the pool of perpetrators. I have considered whether there is anything in the evidence that assists me in determining whether I can find that one person inflicted injuries but given the unsatisfactory nature of both the mother and the intervenor's evidence, I am unable to determine who caused the injuries. I am however satisfied that the person who did not cause the injuries is aware of what occurred and was probably present at the time that the injuries were inflicted. I'm therefore satisfied that there was a real failure to protect and that has continued through a failure to be open and honest with professionals and the court. I therefore make this finding as drafted.
v. the Mother mental health needs have impacted upon the parenting she has provided to the child in that she has repeatedly over-presented the child to health and social work professionals and has exaggerated symptoms in the child for example:-
(a) In June 2015 the Mother reported that the orthoptist had suggested that a brain scan for the child should be considered in respect of her nystagmus and that the nystagmus was worsening and that she would need glasses in the future, which was incorrect;
(b) On various dates the Mother has reported repeated vomiting, including projectile vomiting which has not been witnessed by professionals who have noted the child to be thriving, hydrated and meeting her developmental milestones.
The parties were all aware that I had considerable concerns at the way in which the LA case was pleaded at the outset and in particular the original schedule of findings which invited me to find that the mother had fabricated induced illness in the child. As I have set out above, the LA reflected on this and amended the schedule. I have considered very carefully the evidence that the LA invites me to rely upon in support of this finding.
Dr Kelly raised the concern that there were significant indicators that this mother was over exaggerating symptoms in the child in seeking unnecessary medical attention. I have set out already some concerns I have about the way in which she reached this conclusion is and in particular the lack of a comprehensive chronology detailing the child's presentations and any treatment she had received. I am satisfied that the child was a child who vomited as many babies of her age do. This was witnessed by professionals. It may well be that the mother exaggerated the frequency, volume and force of the vomiting but the LA has produced no evidence to me of any harm suffered by the child if the symptoms were indeed exaggerated in the mother's reporting.
In relation to the nystagmus, again this is a condition that the child did suffer from. The LA invite me to find that the mother misreported the information and advice that are being given to her by the consultant involved in the child's care. The LA do not appear to be saying that the mother was demanding a brain scan but simply reporting that one had been mentioned. Dr Kelly confirmed that brain scans are sometimes considered for this condition. Again it may be that the mother has not accurately reported the information she has been given. However when I come to consider the harm or potential harm that the child has been placed at I am far from satisfied that the threshold criteria is crossed in relation to this matter. The LA have not produced evidence of medication that was prescribed that caused or had the potential to cause the child harm. I accept that if the pattern of over presentation with medics continued then there was a potential that the child would have been harmed by such attention to her medical needs which was perhaps not necessary, however there is no evidence before me that any work been done with the mother to address why she was perhaps overanxious about the child's symptoms or how such anxieties could be managed. In actual fact the LA and health visiting services took no steps despite the fact they had identified this as a potential concern. I have considered again as invited to do on behalf the mother, the decision of the president in in Re A [2015] EWFC 11 and in particular the need to link the alleged facts with the harm or risk of harm it is alleged the child is at risk of suffering. The LA have not satisfied me that the mother's actions in this regard have caused or placed the child at risk of significant harm.
vi. The Mother and the Intervenor have failed to work openly and honestly with professionals as to when the intervenor has been the sole carer for the child.
The mother and the intervenor have both accepted that they were not open and honest with professionals or with the court as to the time that the intervenor was caring for the child on 31st of July. The professionals were concerned in exploring and investigating how the child's injuries had been caused and how she could best be protected. I am satisfied that this failure to work openly and honestly has caused and placed the child at risk of further harm.
Following the oral evidence of the parties, the LA confirmed that it sought two additional findings as set out below: –
vii. There has been domestic violence in the relationship between the Mother and the Intervenor consisting of regular verbal arguments whilst the child was present in the home causing the child emotional harm and placing her at risk of physical harm.
This finding arises largely out of the evidence of the intervenor and were not matters that were put to the Mother. The Mother herself had disclosed in her written statements that the intervenor was adopting a controlling attitude (about which she does not provide any further detail) and also that he was checking her phone, cross-examining her about where she had been. She also told me in her statement about an instant when he lost his temper and punch the bedroom door. She describes how he would get stressed and stroppy reasonably quickly although does not give further detail about this.
In her second statement she tells me "by the time we separated I was quite fearful of him". She also describes an occasion where he kicked the wall repeatedly at her home and repeatedly tried to contact her by telephone.
I have considered the presidents endorsement in the case of Re A of the words of His Honour Judge Jack in the North East Lincolnshire case. The LA have produced no evidence of domestic violence and the allegations that they refer to should in my view be more properly categorised as domestic abuse. It is apparent that the intervenor at times was unable to manage his temper and control his anger. The mother reports that she was frightened by his behaviour. I am satisfied that if he was behaving in a way which she found frightening this would also have been frightening for a young child and would have placed the child at risk of emotional harm. I therefore find that there has been domestic abuse in the relationship between the Mother and the Intervenor consisting of regular verbal arguments whilst the child was present in the home causing the child emotional harm and placing her at risk of further emotional harm.
viii. The Mother and the Intervenor have failed to work openly and honestly with professionals in respect of the domestic violence within their relationship.
As I do not have the LA's assessment of The intervenor or the records of the work done with the mother and The intervenor in respect of domestic abuse, I do not know what was discussed with them as to what would constitute "domestic violence" or more importantly in the light of my above finding, domestic abuse. I do not know what discussion there was with this couple as to how such behaviour may harm a child. I am therefore not satisfied that the LA have produced sufficient evidence to enable me to make this finding and I therefore do not make it.