Case No: ZE16C00381
Neutral Citation Number: [2017] EWFC B3 (Fam)
IN THE EAST LONDON FAMILY COURT

11, Westferry Circus,
London
E14 4HD

Date: 12/01/2017

Before :

HER HONOUR JUDGE CAROL ATKINSON

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Between :

	LONDON BOROUGH OF HAVERING	Applicant	
	- and -		
	MOTHER
LV (a child though his Guardian)
	Respondents 	

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Ms Fawzia King for the London Borough of Havering
Ms Frances Judd QC and Ms Susan Quinn for the Mother
Ms McKiernan for LV through his Guardian

Hearing dates: 29th November - 1st December

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JUDGMENT
HER HONOUR JUDGE CAROL ATKINSON : 
1.	On 6 June 2016, a 4 month old baby boy, LV, was taken accident and emergency by his mother.  She reported that she had dropped him after the maternal grandmother’s dog ran into her leg and caused her to lose balance. At hospital he was found to have what appeared to be three separate skull fractures and the admitting physicians expressed the view that these injuries were unlikely to have resulted from a single impact as the mother described.  Three days later on 9th June a second medical opinion confirmed that view.  On 10th June 2016 the London Borough of Havering (the LA) issued its application for a care order in respect of LV and sought an urgent hearing on the same day.  

2.	So it was that late on the afternoon of Friday 10th June 2016 I had to tell this distraught 16 year old mother that I was sanctioning the temporary removal of her child from her care and his placement into foster care in order to keep him safe.

3.	On 1st December, I made an order returning LV to the care of his mother.  This case is a very clear example of how important the testing of evidence can be and how different the picture can become once that evidence is heard.  For LV the stakes could not have been higher.  After testing, the apparently strong LA case has proven not to be so and he has been returned to the care of his mother.  The alternative was permanent separation and adoption.

4.	I have been asked to set out my reasons more fully so that a proper record is kept.  I hope and anticipate that this record will inform the police and CPS in their consideration of the case which I understand remains subject to investigation. Let me set out a little more background.

Essential background

5.	The mother in this case turned 16 years of age a matter of weeks before she presented at hospital with LV.  She is a “looked after child” herself.  She was the subject of proceedings which concluded on 25 March 2015 with a care order to the London Borough of Havering.  
 
6.	LV’s father is believed to me a Romanian man some 10 years her senior.  There has been some prevarication on the part of the mother in confirming this to be the case.  The LA believes that the mother may have been the victim of sexual exploitation.  In any event, in due course an address for this man was obtained by the social worker.  He was written to and invited to undertake DNA testing.  He has not responded to the communication.  I am satisfied that he has been given sufficient opportunity and by his actions has declined to take part.

7.	As I have already set out, the mother is a vulnerable young woman herself: barely an adult.  She has been known to the LA for a number of years, most recently since 2012. She was the subject of care proceedings which ended with the making of a final care order to this LA on 25 March 2015.  The mother was placed in long term foster care. Her relationship with her own mother, the maternal grandmother was reported to be volatile.  The matters which led to the making of orders in respect of the mother included her being exposed to domestic abuse, beyond parental control and absconding/going missing (189 times in 2014). In addition there were concerns that she was associating with Romanian males, and had been since the age of 13, and was known to take drugs and alcohol in their company and was subject to sexual exploitation. 

8.	On 6 October 2015, the LA received a Multi- Agency Referral Form (MARF) from Havering CYPS 12+ Team which reported that the mother was believed to be in a relationship with a Romanian man 10 years her senior.  The mother was 21 weeks pregnant at the time. 

9.	LV was born in Feb 2016 and discharged to the care of the mother who remained in her foster placement. By April 2016, there were concerns regarding the mother being out late with LV, their whereabouts and the persons with whom she was associating being unknown. The mother struggled to return to the placement on time or comply with two written agreements (7 April 2016 and 20 May 2016) 

10.	On 30 April 2016, Police were called by members of the public as mother was reported to have been found intoxicated whilst LV was in her care.  

11.	On 6 June 2016, LV was taken to hospital at 17.51 hours in the circumstances described above.  The mother reported dropping him after the maternal grandmother’s dog ran into her leg and caused her to lose balance. “I stepped onto the dog’s paw and I fell backwards. As I fell backwards I lost hold of [LV] who fell forward. In falling I instinctively reached forward and managed to hold [LV] by the bottom but I could not stop his falling to the floor. I fell right back onto my bottom so I did not see how [LV] fell” This was the account given by the mother in her first statement.  She has stuck to that account throughout these proceedings.

12.	At the hospital LV was examined by a paediatric registrar and a consultant paediatrician.  Their joint report states:
“The presence of bilateral boggy swellings would be consistent with two different points of impact. The neuroimaging has demonstrated 3 separate fractures”.
“These injuries are unlikely to have occurred from a single impact”.
The consultant paediatrician states:
“The above report is accurate and I agree with its contents. …scalp swellings…felt clinically and demonstrated on neuroimaging along with underlying parietal skull fractures indicate two separate impact injuries. The occipital fracture may indicate a further impact injury...In the absence of a credible history of a memorable event and its aftermath the finding of three separate skull fractures with two scalp swellings is indicative of abusive injury. Since this pattern of injury is found in accidental RTA and other crushing/impact injuries it remains possible that the infant was dropped from the mother’s arms, impacted the skull in three areas during the fall (eg furniture/floor, etc) or that there was an accidental undisclosed crushing injury as the carer fell on the infant. That history has not been provided by the mother.”

13.	On 9 June 2016, Great Ormond Street Hospital provided an opinion that LV had sustained three skull fractures which were not consistent with LV being dropped. 

14.	The proceedings have progressed to a final hearing following a thorough investigation of the child’s injuries by a number of medical experts and assessments of the mother and of the maternal aunt by the LA.  It is right to say that the medical experts appeared united in their view that these injuries could not be explained by the accident described by the mother.  Meanwhile the LA risk assessment of the mother and assessment of the proposed kinship carers were both negative.

15.	So, at this final hearing the LA sought findings in relation to the injuries sustained by LV.  The LA's application was for a care order: the care plan was adoption.  An application for placement order was issued on 22 November 2016.

16.	The mother maintained her denial that any of the injuries to her son had been caused deliberately.  She sought the return of LV to her care in the home of her current foster carer with whom she has remained. In the alternative, she wished for LV to be placed with her sister.

17.	The Guardian’s position turned on the findings as to the injuries inviting me to order a residential assessment should I be unable to find the injuries to be non-accidental. She differed from the LA with respect to the maternal aunt and in the event of a finding that the injuries were non-accidental she supported placement with the maternal aunt and her partner under SGO and supervision order.

18.	 The position of the LA and the Guardian changed substantially at the conclusion of the evidence from the medical experts.  Let me now turn to that crucial evidence.

The medical experts

19.	In addition to the reports from the admitting paediatricians set out above there were two court appointed experts tasked with considering what these injuries were and how they had been caused.  The first was a consultant neuro-radiologist, Dr S and the second a consultant paediatrician, Dr O.

20.	At the commencement of the hearing and before the evidence was tested I can summarise the matters on which these two very experienced and impressive medics agreed as follows:

a.	LV has sustained:
i.	3 fractures: two symmetrical parietal bone fractures at the sides of the head and a smaller left-sided occipital bone fracture at the back of the head.  
ii.	soft tissue swelling/haematomas at the sides of the head centred over the two parietal bone fractures. 
b.	These injuries were not explained by any medical conditions or medical procedures.  
c.	Based on the radiology (Dr O deferring to Dr S on timing) the time window for both fractures was within 10 days of the CT scan which was performed on 6th June 2016 i.e. between 26th May and 6th June 2016. However:
i.	 the presence of the swelling above the two parietal bone fractures was entirely compatible with an injury that occurred on June 6th, 2016
ii.	the occipital bone fracture was likely to be closer to 6 weeks old than 3 months old, although she repeated that it was very difficult to give a more precise timing of that injury

21.	On mechanism the medics disagreed.  Dr S considered that the two parietal fractures were more likely the result of a crushing mechanism and the occipital fracture the result of an impact.  Dr O, however, considered that the neurological signs which would support a crush injury were absent and so she considered it more likely that all three fractures were the result of impact.  

22.	Turning to the explanation given by the mother Dr S rejected that explanation because she considered that “If they were to have resulted from the same fall, they would have emanated from the point of contact at the back of the head near or at the centre of the occipital fracture.”  

23.	Dr O rejected the mother’s explanation for another reason.  She considered it was possible that the two parietal bone fractures resulted from an accidental fall if that fall involved more than one impact.  Dr O suggested that it was possible that LV could have hit his head on any of the nearby obstructions/hard objects as he fell to the floor on the mother’s account. However what troubled her was the presence of the third fracture of the occipital bone.  Proceeding on the basis that Dr S’s evidence was that the occipital fracture was “of a different timing” she formed the view that the fall on 6th June 2016 did not fully explain all the injuries to LV.  She rounds off her report with the following: “In my view, an accidental injury is a likely explanation for the parietal fractures but it does not explain the occipital fracture.”  She concluded that absent an explanation for the occipital fracture it was likely to be non accidental.

The mother’s position on the injuries

24.	The mother’s position with regard to these injuries has never wavered.  There are very subtle differences in the descriptions she gives to the police which may be explained by their note of what she said but even if accurate are in my view of little importance.  It would have been significant for me, had I been in a position where I had to consider her account, that she has maintained this account even in the face of apparently firm evidence that one fall/impact could not explain the injuries.

25.	The essential description that she gives of what happened has remained the same.  She says that she was walking towards the garden doors at her mother’s holding LV in her arms when the dog rushed in from outside and she stumbled having trodden on his paw.  She went backwards but LV flew forwards from her arms.  She tried to get a hand on him and thinks she might have touched him but she did not stop him from falling and she did not see how he fell.  The mother has provided pictures of the other obstacles and surfaces in the doorway.  

26.	Support is available for the mother’s account from her own mother.  Whilst the maternal grandmother did not see the fall her account of the aftermath, the explanation given to her and the development of the swelling which prompted the hospital visit, all support the mother’s account.  In keeping with this both the mother and grandmother presented with the child at hospital within an hour of the incident.

Welfare assessments

27.	A parenting assessment of mother by an ISW was filed and concluded that the mother could not work positively with agencies and professionals, and she had failed to fully engage with the parenting assessment.  A psychologist assessing the mother concluded that “[mother] requires an expansion of her own knowledge and skills, by the way of a parenting programme which highlights positive parenting, such as the Triple P Positive Parenting Programme. She also requires training in safeguarding issues with regards to keeping a baby safe.”  Differing from the ISW he commented that “Her engagement with professionals and compliance will not be an issue in my opinion”

28.	The LA carried out an SGO assessment of the maternal aunt and her partner.  The report was negative.  The reasons are not of importance for the purposes of this Judgment but it is important to record that this assessment was challenged and with the support of the Guardian.

29.	The Children’s Guardian filed two reports. The Guardian’s position turned on the outcome of the fact finding.  However, for the purposes of this Judgment all I need record is that in the event that the injuries were not considered to be non-accidental she did not consider the ISW assessment of the mother to be sufficient to enable the court to exclude her as a potential carer for LV.  She considered therefore that there needed to be a further assessment.  Her proposal was for a residential parenting assessment. 

The evidence as it developed

30.	It is not unreasonable to observe that on the face of it this evidence – certainly the medical evidence – all seemed to be pointing in one direction.  I hope that I will be forgiven for repeating that it has proven to be a very good example of why evidence sometimes needs to be held up to the forensic scrutiny that comes with our current family justice system.  

31.	In her oral evidence Dr S was asked why she considered the occipital fracture to be older than the two parietal fractures to which her response was this:  “I don’t think I said it was older.  I say that based on the radiology it could be older.  The soft tissue swelling narrows the time frame but there is a possibility that they occurred on the same date but not from one impact.”  She went on to say that she considered it unlikely that the three fractures could have resulted from one fall with the child’s head hitting different surfaces.  Indeed Dr S maintained her view that the parietal fractures were more likely a crush injury – suggesting a crushing action between the mother’s knees – and she was sceptical (because of the height of the fall) that even the occipital fracture would have been caused in the described fall.

32.	Dr O gave evidence next.  Dr O stood by her opinion that these were not crush injuries explaining what clinical signs she would expect to see had there been a crushing of the skull.  She was asked whether there was any prospect that the 3 fractures could have been caused by impact on more than one surface during the same fall.  Her evidence was that she had previously considered that they could not because of the different ages of the fractures according the radiological evidence.  However if the radiological evidence was that they might have happened on the same date then her evidence was that it was possible that the mother’s account provided an explanation.  Significantly, she did not go on to qualify that by commenting that whilst possible it was unlikely.  In cross examination she confirmed that her opinion that these were non-accidental injuries depended upon the differing dates and “if they all could have occurred at the same time it is possible that they could have happened at the same time”.  

Threshold

33.	It was following this evidence that the LA asked for time to re-consider its position with the result that it amended its threshold, relying on the chaotic behaviour of the mother leading up to the incident and withdrawing its allegation that she had deliberately caused the injuries to LV.  On that basis the threshold was agreed and I need say no more about it save that the final document should be appended to the final order.

34.	It is not for me to decide how the LA runs its case.  However, I have heard this medical evidence and for the sake of completeness I think it right and helpful if I offer my endorsement of that position.  

35.	The medical evidence at its conclusion was in conflict.  Having seen both experts, I preferred the evidence of Dr O. In the first place she was less definitive in her views.  Not weak but willing to consider alternatives. Within parameters drawn by her experience as a community paediatrician she was more open to different possibilities. Her explanation as to why a crushing injury was not indicated here was compelling but unusually in this case the radiologist did not defer to her view even though it was based on sound clinical evidence.  

36.	Dr S’s insistence that crushing was the most likely explanation for the two parietal fractures undermined her evidence as to likely mechanism, in my view.  I am shored up in this by the fact that given this injury was on Dr S’s evidence most likely to have happened on the day of presentation at hospital, it is also likely to have happened in the home of the maternal grandmother.  It is difficult to imagine how and when save that such a conclusion would probably have to involve a finding that the mother and grandmother had conspired to conceal another incident.  Whilst I did not hear from either of them, their consistent accounts together with the fact that they presented so soon after the injury would almost certainly have militated against that finding.  For this reason I confirm that the LA was in difficulty establishing a finding of non-accidental injury.

Welfare 

37.	LV’s welfare is now my paramount concern and I must only make an order if it is in his best interests to do so.  I am guided in my assessment of his best interests by the welfare checklist.  In fact having agreed the threshold the parties then went on to present an agreed way forward on welfare for my approval. I am now invited to endorse the LA plan for a swift rehabilitation of LV to his mother’s care with the support of a supervision order.  The plan is that the mother will remain with the foster carer with whom she has lived since she was made subject to a care order.  There she will receive the advice and assistance of the local authority to prepare her for successful parenting in independent living.  

38.	I should observe that I also heard the evidence of the ISW who had risk assessed this young woman.  Her report gave the clear impression that she had concluded that the mother was not capable of caring for LV or working with professionals.  In another blow to the LA case, during the course of her evidence she said that she was actually unable to make a recommendation as she had not completed her risk assessment of the mother.  On her case this was because the mother had failed to engage but she was prepared to accept that perhaps the expectations placed upon her given her age and vulnerability were a little high.

39.	I have examined the written agreement and the transition plans.  I am delighted to say that I am quite satisfied that the orders that I am invited to make are the most appropriate ones for LV’s welfare.  I consider that all efforts must be made to give this young mother the skills she needs to be a good enough parent to her son.  I am satisfied that this LA has responded appropriately to the developments in the evidence and I endorse their plans.