M (A Child) [2015] EWFC B135 (16 April 2015)

HER HONOUR JUDGE MOIR:

1. I am concerned with the welfare of A, who was born on 11^th February 2014, so he is now aged 1 year 2 months. He is the son of M, who was born on 16^th June 1994, so she is 20 years of age, 21 in June, and F, who was born on 25^th December 1993, so he is 21 years of age. The local authority commenced proceedings on 1^st August 2014.

2. A had been taken to the general practitioner and then Sunderland Royal Infirmary by his grandmother, MGM, on 21^st July 2014 and Dr Kumar, the treating consultant paediatrician, noted a number of injuries which are set out within the preliminary documents in the bundle, namely:

(i) a bluish-purple bruise confined to the inner part of the anterior aspect of the left pinna;

(ii) a bruise on the right forearm in the form of a cluster of petechial spots distributed in a band-like manner, measuring 40mm by 7mm on the anterior and inner aspect of the distal forearm, very close to the wrist, placed longitudinally in the axis of the forearm; and

(iii) a cluster of petechiae located on the back of the left upper arm near the shoulder, located in the upper and medial aspect of the upper arm towards the inner aspect, distributed over an area of 21mm by 23mm and clearly arranged in a linear fashion with three to four distinct petechial spots in each line or lines, 5mm to 6mm apart and visible from the back.

Upon further medical investigation, a solitary rib fracture to the left ninth rib at the costovertebral junction was identified.

3. A was discharged from hospital on 24^th July 2014 and accommodated in foster care under section 20. Proceedings were commenced on 1^st August 2014 as a response to the mother withdrawing her consent to the section 20 accommodation. This is a fact finding hearing and the local authority, by way of amended schedule of findings on 14^th January 2015, sets out the findings that it seeks and I read from that amended schedule:

“The injuries set out are most likely to have been caused non-accidentally by an inflicted injury. The injury to the ear may have been caused either by a blow to the ear or by firm pressure exerted upon the ear, probably with a finger or thumb. The level of force required to cause such bruising would have been excessive and outwith that used during the course of normal handling. The injury to A’s ear would be painful at the time of infliction and A would most likely have cried or screamed in pain at the time this injury was caused. A was being cared for by M and/or F and/or MGM and/or PGGM and/or PGGF at all material times. Either M and/or F and/or MGM and/or PGGM and/or PGGF have inflicted the injuries described.

By approximately 11pm on 20^th July 2014, both M and F knew A had sustained a significant injury, yet failed to seek any more prompt medical advice. The parents’ failure continued despite M and F being advised to seek medical advice by MGM on 21^st July 2014. In relation to the rib fracture, the local authority seek findings that:

(i) On 13^th August 2014, following investigations prompted by A’s presentation to hospital on 21^st July 2014, A was confirmed to have sustained a solitary fracture of the left ninth rib of the costovertebral junction.

(ii) The injury set out above is most likely to have been caused non-accidentally as a result of pressure from both the front and back of the chest and, most likely, by adult hands encircling and squeezing A’s chest. The level of force to cause such a fracture is considerable and much more than would normally be used when caring for a baby of this age.

(iii) The fracture most likely occurred sometime between 14^th and 22^nd July 2014 and when A was being cared for by M and/or F and/or MGM and/or PGGM and PGGF. Either M and/or F and/or MGM and/or PGGM or PGGF have inflicted the injury described.

The local authority seek findings in relation to failure to protect and failure to be open and honest:

(a) M and/or F have failed to act so as to protect A, both parents by failing to consistently present and/or act on advice to present A to medical professionals despite having noted injuries of concern; and

(b) M, on the evening of 20^th July 2014. A was left in the sole care of F. During the course of that evening father sent text messages and/or made telephone calls to M whereby he indicated he was struggling to cope and would kill A if A did not stop crying. M failed to respond appropriately or at all to F’s comments and allowed A to remain in F’s sole care for the remainder of the evening.

M and/or F have failed to be open and honest with the professionals:

(a) both parents as to the extent to which they have sought professional advice and/or assistance in respect of A;

(b) F as to the existence of a hereditary blood disorder which he advanced as an explanation for the injuries sustained by A;

(d) both parents as to the status of their relationship. Despite having indicated their separation following A’s admission into care, the parents have maintained or reconciled their relationship and failed to disclose the same.”

4. On Tuesday 27^th January 2015, on the final day of the hearing, Mr Donnelly, on behalf of the local authority, sought to withdraw all the allegations against PGGM and PGGF setting out that they had injured A in any way. Permission was granted to withdraw all the allegations against the paternal great-grandparents. In his written submissions dated 14^4thFebruary 2015, Mr Donnelly sets out that:

“The local authority now seeks to withdraw its allegations that the maternal grandmother had direct involvement in A’s injuries, such application reflecting the fact that ultimately neither parent contended it was even possible that the maternal grandmother had caused the injuries.”

5. I am satisfied, in the case of both the maternal grandmother and paternal great-grandparents, that it became inappropriate to leave any of them in the pool of perpetrators. In North Yorkshire County Council v SA [2003] 2 FLR 849, it is set out:

“A person comes within the pool of possible perpetrators where the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in issue.”

The evidence in this case did not establish either a likelihood or real possibility in respect of PGGM, PGGF or MGM.

6. The local authority, upon the basis of the information available to them before the evidence in the case was heard and in discharging their statutory responsibility to safeguard A, cannot be criticised in any way for including both PGGM and PGGF and MGM in their schedule of threshold findings. Thus, the local authority submit at paragraph 10 of the written submissions:

“Although acknowledging that it is always desirable for a perpetrator of non-accidental injury to be identified, the local authority would submit that the picture remains unclear, such that the best the court can do is find that neither mother nor father can be excluded from the pool of possible perpetrators. With that in mind, the local authority invites the court to make the following findings:

1(a) the injuries detailed at paragraphs 1 and 5 of the amended schedule of findings were caused non-accidentally in the manner set out at paragraph 2 and 6 of the schedule;

1(b) in terms of the timing and causation of those injuries, the parents’ and maternal grandmother’s evidence was such that it is impossible to determine whether these injuries were occasioned as a result of one or more incidents; and

1(c) as to the identification of the perpetrator, the parents’ and maternal grandmother’s evidence renders it impossible to determine which of the parents caused the injuries but, rather, that neither parent can be excluded from the pool of possible perpetrators.

7. It is submitted on behalf of M at paragraph 2 of the opening submissions:

“As to the causation of the bruise to the ear:

(a) M agrees, given the absence of any other explanation, that the bruise to A’s ear on 20^th July is attributable to the care that was provided to A at the relevant time and that the care fell short of the objective standard of care that it would be reasonable to expect A to be provided as it must have involved a lack of care and/or an intent of a greater or lesser degree that may now amount to negligence, recklessness or deliberate infliction;

(b) M agrees that no acceptable alternative explanation of the bruise to the ear has been put forward. She proposes the formula put forward by Ryder J in Re: S (A Child) [2014] EWCA Civ 25. Whilst that formula puts forward a range of mechanisms, it is clear that:

(i) the standard of care is not acceptable;

(ii) the threshold criteria are made out; and

(iii) the ability to provide safe care needs to be addressed, either by professional work with or placement away from the person found responsible;

and

In relation to the rib fracture, M accepts that A sustained a rib fracture and accepts the likely cause of the mechanism of the rib fracture. She further contends that the most likely time at which the rib fracture was sustained was on the evening of 20^th July while in the direct care of F.

8. Mr O’Sullivan, on behalf of F, submits at paragraph 21:

“Father continues to maintain his innocence of the very serious allegation made against him, while not seeking to identify mother as the likely perpetrator notwithstanding her belated accusation that he was responsible for harming A, yet sensibly accepts the inevitability of his place within the pool unless the court is able to make a specific attribution of responsibility. According to how the local authority ultimately comes to put its case, the question for the court may be whether the evidence allows such attribution to be accomplished safely.”

9. The court must weigh up all of the evidence. The parents do not dispute that A sustained injury to his ear and to his rib and do not dispute the medical evidence filed in respect of A. The medical evidence is, of course, just one part of all the evidence that I have heard. The focus of the evidence was to identify the perpetrator of A’s injuries by consideration of the credibility and reliability of those who gave oral evidence before the court and also, of course, within the written evidence presented to the court. In addition to attempting to identify the perpetrator of the injuries to A, the dynamics of the relationships between the adults and the openness of the adults with the professionals are relevant in future planning for A and form part of the threshold.

10. I heard evidence over nine days from Christine Charlton, the social worker who supervised contact; Joanne Dawes, the community support practitioner; Nicole Baker, the social worker with case responsibility; M, the mother; F, the father; MGM, the maternal grandmother; PGGM, the paternal great-grandmother and PGGF, the paternal great-grandfather. In considering the lay evidence, I have well in mind the guidance given by Lady Justice Macur in Re: M (Children) [2013] EWCA Civ 1147 at paragraphs 11 and 12. In that case, Lady Justice Macur set out:

“The judge's assessment of the parents characters, past behaviour and present attitudes are entirely dependent upon finding primary fact, interpreting and drawing reasonable inference from the same… The judge was obliged to reach her conclusions on the whole of the evidence and was not bound by the opinions of others, however eminent in their field. The judge states the basis of her departure from their views, namely that of her ‘good opportunity not only to hear the witnesses' evidence but to observe their demeanour and credibility’. Conscious that such comment is trite in first instance judgments it is pertinent to note in this one under review that the judge's description of the mother and father when giving evidence before her is analytical and detailed and obviously draws upon more than their performance in court. It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

I am fully aware of just how difficult it must be in giving evidence during the course of a case which is looking at, in great detail, injuries to either the child or grandchild and that the family are, of course, not used to being in a courtroom, not used to being cross-examined and giving evidence and that it is a difficult and, indeed, emotionally-charged experience.

11. I also bear in mind the warning that the court must guard against, what is termed, the insidious reversal of the burden of proof as referred to in Re: C and D (Photographs of Injuries) [2011] 1 FLR 990 when it was set out that:

“There is in my judgment an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise failing which there will be an automatic presumption that that bruise must have been an inflicted injury. Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation. As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove that it is.”

12. I have listened to the oral evidence of each of the witnesses very carefully and also read the statements and reports which are contained within the bundles. I must, of course, consider each piece of evidence in a context of all the other evidence which is before the court. In Re: T (Children) [2004] EWCA Civ 558, Lady Butler-Sloss, who was then the President of the Family Division, stated:

“Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases 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 local authority has been made out to the appropriate standard of proof.”

In Re: D (Children) (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668:

“The court should not, however, strain to identify on the simple balance of probabilities the individual who inflicted the injuries. If it is clear that identification of the perpetrator is not possible, then the judge should reach that conclusion.”

In Re: S-B (Children) [2010] 1 FLR 1161, Lady Hale said:

"If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the ‘attributability’ criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will be desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run."

13. Finally, in my consideration of the law which the court must apply, and very relevant in this case, is the guidance given in relation to the question of how the court should approach the question of lies when assessing the witnesses’ credibility. In Re: M (Children) [2013] EWCA Civ 388, during the course of giving his judgment, Lord Justice Ryder said:

“A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720. It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not of itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons. A witness may lie because she lacks credibility, or because she has an innocent motive for lying. If she lies about the key fact in issue, that is one thing; if she lies about collateral facts, that may be quite another. A judge of fact may not be able to separate out every fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact that the witness has lied about other matters.”

14. I turn, then, to the evidence and background of this matter. I should say that I regret very much that this judgment has been so delayed. I had hoped to give it at the beginning of March before my annual leave but was unable to do so and today is the first day that it has been possible to list this matter with the availability of the advocates, or the majority of the advocates, who appeared during the fact finding hearing. It is a matter of regret.

15. The parents’ relationship began in February 2013 and A was born a year later on 11^th February 2014. The parents never formally cohabited. Mother and A spent the first month following the birth of A living with MGM, the maternal grandmother, and then moved to live independently with A in her own tenancy. Mother was A’s main carer but the father frequently visited, spending considerable time with mother and with A and often stayed overnight. Father gave an account, in evidence, that while the mother was the main carer, he carried out certain childcare tasks and, as he put it, he was the main one who played with and entertained A.

16. There were five occasions, I was told, when father looked after A on his own whilst the mother was out. Usually, that was in the evening. There were occasions when A was looked after by the paternal great-grandparents and by the maternal grandmother. For example, when the parents were decorating mother’s property, A was looked after over the course of a fortnight by PGGM and PGGF. The maternal grandmother, MGM, asked to care for A and it was agreed that she would have A for fortnightly overnight stays alternating with the paternal great-grandparents. It is unclear precisely when this arrangement began but it seems that it probably began around or about the beginning of May.

17. It was in May 2014 that marks to A’s body were observed by various members of the family upon a number of different occasions. These different marks were described as a few small purple marks on his body; one mark like a line of joined-up dots just above his knee; A had an inoculation and the next day his arm was all inflamed and reddened and there was a rash on A’s leg. In addition to these marks, there was noticed a mark to A’s lip. The explanation for this was accepted as accidental. On 7^th June 2014, fingermarks to the face were noticed. The explanation given by father was that it was from A lying upon his belt or that these marks were there when A returned from the paternal great-grandparents’ care.

18. Medical advice was not sought immediately after although the maternal grandmother had advised that it should be. The mother told the maternal grandmother that she had an appointment with the general practitioner on a Tuesday. There is a record of attendance on Tuesday, 10^th June but no indication in the records that the general practitioner saw or noted the marks seen by the maternal grandmother on A’s face. The appointment seems to be, from the record, about marks on both wrists. It is unclear whether any marks to A’s face were drawn to the attention of the doctor.

19. The maternal grandmother stated that on Wednesday, 11^th June they went to the hospital at the prompting of the maternal grandmother because she was not happy about the marks. The maternal grandmother states that a nurse told her not to worry and they then went home. There is no record of this attendance which, it must be said, does seem strange if they did attend but the maternal grandmother was clear that they had attended accident and emergency. Marks to the right forearm and shoulder were noted by the maternal grandmother on 16^th July when she met M and A in Starbucks. M told the maternal grandmother that she had not sought medical advice because, “They just send her home.” The maternal grandmother advised that she should seek medical advice.

20. The local authority do not seek findings in respect of these marks and, as Mr O’Sullivan submits, the true focus of the hearing is the injury to the left ear and the rib fracture. He is, of course, correct but, as Mr Gray points out, it is important to consider the previous medical involvement because it provides the background for the consideration of the index injuries. Mr Gray submits that M ensured that the marks to A’s skin were fully investigated and he supports his argument by reference to an attendance at the accident and emergency department of the hospital on 7^th May 2014 and 22^nd May 2014 and attendance at the general practitioner’s on 10^th June when the medical professionals found no cause for concern.

21. Of course, the medical professionals, as always when examining a child, were heavily dependent upon the history given by the parent and if the history was lacking or inaccurate in detail, the medical professional would be severely handicapped in identifying the cause of the marks or rashes. I am aware that mother maintains that she was in the dark as to the causation of the injuries and was not in a position to assist the doctors further.

22. It is clear that the maternal grandmother was very concerned and prompted the mother on more than one occasion to seek medical attention. The maternal grandmother acted appropriately and I accept that she genuinely wished to get to the bottom of what was causing the marks on A and believed, at that stage, that there may be a medical explanation in light of the information relayed to her by M. However, it is clear from her statement dated 1^st September 2014 that she was very anxious as to the causation of the marks and thought the marks observed on 7^th June looked like fingermarks. She urged M to seek a second opinion about the bruising seen on 16^th July in Starbucks. In oral evidence, the mother accepted and regretted that she had failed to seek medical attention as prompted by her mother.

23. In mid-July, there were difficulties with the gas supply at the mother’s home and the paternal great-grandparents cared for A. Father recalls A returning very unsettled and being inexplicably distressed that evening. Whether or not father’s recollection was accurate or just an attempt to implicate the paternal great-grandparents is not clear. The mother did not view A’s presentation on return from the paternal great-grandparents as a cause for concern and thought that he was simply unsettled, perhaps teething, and said that he was not significantly distressed as father contended.

24. Mr O’Sullivan, on behalf of the father, submits that father did not set out to implicate the PGGPs at an early stage and it is right that he did not initially blame them when speaking to the police or Children’s Services. Mr O’Sullivan sets out that, as time and information progressed, the father mused upon who might have had the care of A at the time when the marks occurred or otherwise had a general opportunity to cause them. I find a more feasible explanation is that, as time progressed, he saw the PGGPs as an easy target to deflect blame from himself and M. I will return to this issue later in this judgment. However, the father continued to say in oral evidence before me that, “I can say it was possible that A was suffering the rib injury in the care of PGGF and PGGM.”

25. On 20^th July, mother, father and A were due to attend at the maternal grandmother’s home for Sunday lunch. This was a frequent occurrence. On this occasion, the father told the mother what he described, in evidence, as a fib and said he was playing football. He was not playing football and he went to the paternal great-grandparents. Mother returned to her home at about 2pm and the parents were then alone with A until 5pm. The relationship between the maternal grandmother and the father seems to vary. Father said about the maternal grandmother that he had:

“No concern about her whatsoever. She is a great nana. Our relationship is that we get on each other’s nerves and then we’re fine afterwards.”

The maternal grandmother took a photograph of A that lunchtime which seems to show that he was unharmed. Certainly, the maternal grandmother said that she saw nothing untoward during that lunchtime visit.

26. Following the period during which A was in the care of both parents, father went out on his motorbike for a while. There was something wrong with it, apparently, and he called PGGF about it. PGGF and PGGM came to the mother’s home and PGGM, during the course of that visit, held A. It was, she described, red hot and she stripped A down to his vest and nappy. She described M being in the house getting ready. M had made an arrangement with Z, her cousin, to go to Z’s house that evening and the plan was that the father would look after A. PGGM gave oral evidence to the court that she did not see any marks on A at all during the time that she was holding him. She said he was settled and all right.

27. The father described mother as “in a bit of a fettle,” a little upset, because he could not go to Morrisons to get make-up for her as his bike was not working. PGGM said that she did not speak to the mother at all as she was inside getting ready. According to the father, mother went out at about 7.30pm and the PGGPs left at about 8.15pm. Thus, father had sole care of A from 8.15pm until about 11pm, save that PGGM returned at about 9pm and stayed 20 or 30 minutes. She had been baking and brought round pies that she had baked. She said A was fine. He was propped up on the settee. She said, “I didn’t even pick him up. He was fine.” Thus, I find that the injury to A’s ear was most likely sustained at a time after PGGM saw A and described him as fine. That is, after approximately 9pm, 9.20pm or so on the evening of 20^th July 2014.

28. The next occasion A’s ear was seen by anyone other than the mother and father was when the paternal great-grandfather and the maternal grandmother saw A the following morning. The maternal grandmother saw A briefly at 11pm on 20^th July but his head was covered with a woolly hat. Father made a point of telling the police that the grandmother had been drinking, that she was drunk. The grandmother denies being drunk and it is unclear why the father raised this with the police.

29. The court is therefore concerned with what occurred during the timeframe to which I have referred. Father contended that he first noticed some redness to A’s ear after PGGM had left. He said he saw the redness at about 10pm and the bruise was apparent and noted by the parents after mother returned shortly after 11pm. Again, it is unclear whether the father was trying to suggest that PGGM had done something to A at the time that he was upstairs in the toilet while she was present.

30. The court has been able to consider the text messages which passed between mother and father when the mother was out. Father says it was a typical night with a normal level of communication with them texting each other non-stop. The maternal grandmother confirmed that M was on her phone, as she put it, “all night,” as was Z. It seems a strange party or night out but so be it. The content of the texts are somewhat more worrying. At 20.00, which, taking into account British Summer Time, was 9pm, it is recorded by text, “Tried everything and he won’t stop crying. What else can I do?” This was followed by various suggestions made by M. It seems father took A out in an attempt to settle him. At 21.14, and that is, corrected, quarter past ten, there is an exchange:

“Oh, no. He’s awake.”

“Fuck’s sake, is he hungry?”

“I’m going to fucking kill him.”

“Bring him down.”

“No.”

“Walk down with him and I’ll walk home with you.”

Both mother and father maintained it was just a figure of speech to say, “I’m going to fucking kill him,” and did not mean anything. Father denied, in oral evidence, that he was finding looking after A that night difficult. He said:

“I find it takes longer to settle him but I don’t find it difficult. I wasn’t frustrated. It is just a figure of speech.”

31. Father did not mention the phone calls or text messages initially when interviewed by the police on 23^rd July. It is only after the police asked to look at his mobile phone, some 13 minutes after the main interview concluded, that the father asked to speak to the police officer and, quoting from the transcript of the interviews provided at G81 in the bundle, this is F speaking, it is set out:

“I basically wanted to let you know that there is something on my phone because I don’t want you to see it and take it the wrong way. It’s going to sound a bit bad but I didn’t mean it the way it’s going to look because, obviously, you cannot tell emotions and things through texts. There’s basically a text that if, when he was crying, I was joking around with M and there’s at [and a figure given] ‘I’m going to fucking kill him,’ right, not meaning in a literal sense, you know. I wasn’t literally going to hurt him in any way. I just… I just need to make you aware that, like, that text will be there and definitely telling you M took it as a joke. She knew it was a joke and I know it’s going to sound bad. It does. I just didn’t want someone to see it and take it the wrong way.”

32. He explained to the police, and it is recorded at G83:

“Right. I was left to look after my son, like I have a number of times. It was absolutely fine. I fed him, changed him. I just… I just… I let him fall asleep on us. We were just lying there, like, basically just cuddling and he woke up because he lost his dummy. I put his dummy back in; he fell back to sleep. He lost his dummy; he woke up. He started doing his whinge again. I put him in his pram. I texted M saying, ‘He keeps whinging. Is there anything I’ve missed out?’ I took him for a walk. He went off to sleep. I brought him back and I left him in his pram. I dunno how long I went and then M texted us saying she didn’t want to walk home by herself so I, I took him out to get her but I left early cos he was starting to stir. I wouldn’t do anything to my son. I couldn’t. You don’t understand the love I’ve got for that little boy. I would never, ever let anything happen to him. I think M’s [inaudible] to show how I am with him. It’s… I really cannot explain what happened.”

33. The father told the court that he had not mentioned the texts or phone originally to the police because he had a lot on his mind but he did not want it to look as if he was hiding anything. He did not accept that it was a deliberate attempt to withhold evidence, in relation to the text message, from the police. The father must have been aware of what he had said in his text message that evening and, indeed, spoke to the police officers about it very shortly after the main interview. I find that he did not want the text to be disclosed if he could avoid it. I do not accept that he just forgot but it is probable that he thought he might not have to explain anything if the police were not aware of the text. I find that the police asking for the phone made him realise that the text message would be seen by the police and he thought that it was best to explain in advance.

34. The police officer was clear in his comments, which are recorded within the transcript, that it put a different complexion upon matters. I remind myself that people withhold information for all sorts of reasons, not necessarily because of guilt, and, in this case, father’s failure to be open and honest immediately with the police does not necessarily identify to me who is the perpetrator but, rather, raises very real questions about the father’s reliability and credibility. I find that, while the expression “I’ll fucking kill him,” may not be taken literally, it is, in my view, evidence that the father was finding caring for his son, who would not sleep and was crying, very stressful. Father now contends he “laid it on a bit” as to A becoming distressed. He said that was because he wanted the mother to come home. He said, due to past relationships, he was a bit paranoid. He said he had huge insecurities. He did not like the mother out. I find it is more likely that he was stressed and finding caring for A difficult.

35. The father walked down to meet the mother. She did not want to walk home on her own. It seems he had A out for two walks and he told me just the last time it was pretty cold so he said he put a hat on. MGM described the hat as a winter hat and bought just after the time A was born. MGM did not see A’s ears because A had his hat on and, she said, he was bundled up in blankets. Father strenuously denied that he had put the hat on to hide an injury to the ear. He said suggesting covering up the mark is disgusting. “It wasn’t me. No chance, would I cover it up. I would have dealt with it then and there.” Father said when he was putting the hat on, he saw that there was a slight reddening to A’s ear.

36. There are differing accounts of what happened when the mother and father both returned home at around eleven o’clock. The mother sets out in her statement that she asked father to prepare some milk and, as she cuddled A, she noticed for the first time that there was a significant mark on his ear. In her oral evidence, she said that father did not tell her about the ear. She saw it. She said, “I did ask father, ‘Have you done anything by an accident or something?’” She said in her statement that father’s reaction was one of shock.

37. Father told the police that when they got home, M said, “F, come here,” and said, “What the fuck’s that?” M pointed out the bruise. He told me in oral evidence the same thing, that, “She shouted us in after she noticed the mark.” The account mother gave to Dr Kumar, as recorded, was different, namely, that the father told her that A had come up with a big, blue mark. The mother said that she did not tell Dr Kumar that. She said maybe he misunderstood. Whichever it was, it seems to be the parents’ case that, upon returning to the property at about 11pm, A had a very significant mark to his ear which was seen by both parents.

38. A was not taken to accident and emergency or any advice sought from the maternal grandmother or the paternal great-grandparents. The account given by both the mother and father is that they were shocked and yet A was not presented to the hospital or any advice sought. The parents said that A was all right and settled so they decided to leave it until morning. On their account, they did not know what was wrong with A and the bruising was quite shocking. The mother said that she rang the doctor’s at about 10am. She says that she was told it would be four days before she could get an appointment. I simply do not accept mother’s account if, having told the doctor’s surgery that a child of 6 months had a significant mark to his ear, she was told that she would have to wait four days before the doctor could see her.

39. In her statement of 10^th September 2014, mother made no mention of difficulty in obtaining an appointment. She said she telephoned for an emergency appointment and, thereafter, the mother suggested that she, the maternal grandmother, should take A to the appointment because she was going that way. In her statement dated 1^st September 2014, MGM set out at C45 in the bundle at paragraph 20:

“The next day, on 21^st July, I went up to visit M and F. When I got there, A junior was not there. M was still in her pyjamas. I was told that A had gone out with his dad to PGGM and PGGF’s and I sat and waited. When he came back, A was in the buggy and M asked me to look at his ear, which I did, and I couldn’t believe what I saw. It was all swelled up and looked bruised. This was not like any of the other marks I had seen on A up to now. This was something else. My first thought was that he had been hit. I asked M and F what happened and they said they did not know. They gave me no explanation how it could have happened. They had not already contacted the doctor. I think that this is the occasion when F told us that he had a hereditary blood condition that A could have inherited which might cause it and I told him that I had never seen him with any bruising on him.

I told him he needs to see a doctor and I picked up the phone to ring the GP surgery for an emergency appointment, which I was given for 3.45pm. If it had been my son, I would have already had him down to the doctor’s as soon as finding the injury but M and F did not seem to have the same sense of urgency about it as me. There were going along with it. I just wanted to get A out of the house and asked M if I could take him for a walk until the time of the appointment and she agreed. Neither of them offered to come with me to the GP’s surgery which, again, surprised me but I was more concerned with A and getting him out to his appointment with the GP.”

40. In her oral evidence, MGM gave an account of the events of 21^st July. She said:

“A and dad were not there. M said they had gone to PGGM’s to get the universal remote. I had been there five minutes when they got back. F pushed him and went out to have a cigarette. M went to the buggy and said, ‘Have you seen A’s ear?’ I looked in. I swore. ‘Fucking hell. What’s going on? It looks as if he’s been hit.’ She said she had rung the doctor and had been told it would be four days. She said, ‘I waited till you came. I knew you would get a better appointment.’ I rang and said, ‘My daughter’s just called,’ and they said, ‘Oh, yes.’ I got an appointment for later. I was sick because of the many times A’s getting bruises. I said, ‘I’m not leaving without an answer.’ He was happy as Larry when I took him out. I said I would take him to the doctor’s. I didn’t think anything of it that M nor F came with me.”

41. The maternal grandmother then went on to say in her written statement of 1^st September at paragraph 22:

“The doctor said that the injury to his ear was not medical and that he had been hit. I felt ill when she told me that. The GP told me he had to be taken to the hospital for examination straightaway. I phoned M to let her know what the doctor had said and that she had to take him to the hospital straightaway but, to my total surprise, M told me that she did not want me to take him to the hospital. She became hysterical with me and said I had told the doctor it was child abuse and told me to take him home. I told M she had no choice and had to take him to the hospital but I could not persuade her.

I did not understand why she had reacted in this way and why she would not agree to take him to the hospital. I told the GP what she had told me and I left the surgery with A and, outside the doctor’s, I was physically sick. I took him back to my house to await hearing from Children’s Services. Children’s Services then phoned me, telling me that M had to take him to the hospital. I said I would try to ring her again to persuade her. Before I did, M phoned me to say she was on her way down to mine to take him to the hospital.”

42. In oral evidence before me, MGM said that when she phoned M, that she, MGM, was trying to get her words out. She said that she, MGM, was hysterical and M was calm. M had told the court that, when MGM rang, she did not refuse to consent to taking A to the hospital but that she did not understand what the grandmother was saying. When Mr Donnelly asked the grandmother why she was changing her account, the maternal grandmother said, “Six months on, I have remembered more clearly than in my statement.” I comment, memory does not usually work that way. The maternal grandmother’s initial account was clear, that the parents had made no attempt to seek medical assistance, and she, the maternal grandmother, was adamant that A needed to see a doctor and that she, the maternal grandmother, picked the phone up and rang. She set out in her statement that she was surprised that neither parent accompanied her.

43. It is of considerable surprise and concern to the court that when MGM arrived, at about 11.30 on her initial account, no appointment had been made to take A to the doctor’s. It would have been expected that he would have been taken as soon as bruising was noticed if it was, indeed, as shocking, horrific or significant as the parents have described it. To not have secured an appointment the following morning by the time the maternal grandmother arrived is of further concern. I do not believe the mother’s account that she was told to wait four days with a 6-month-old baby.

44. The maternal grandmother’s actions, as set out in her statement rather than her oral evidence, demonstrated a genuine concern for her grandson. It is with sadness that I find that the maternal grandmother later altered her evidence to fit that of her daughter. I do not accept that she could be so mistaken or that, six months on, her recollection was much clearer than when she made her statement in September 2014. I do not accept that hearing her daughter’s evidence caused her to question her own recollection of events but, rather, that she decided to give evidence in accordance with her daughter’s account. I appreciate how difficult it is for a mother to accept that her daughter may have caused harm to her grandchild but, in the case of this grandmother, in September 2014, it is clear that she wished to give an account which she saw as accurate. At that stage, she put A’s interests as her priority rather than her relationship with her daughter. I find that that position changed by the time she gave evidence to the court.

45. I find it quite staggering, bearing in mind the description that mother and father gave of their shock and horror in respect of the injury to A’s ear, that neither of them thought it important enough to accompany MGM to the doctor’s. I accept the account given by MGM initially that M was reluctant and had to be persuaded to take A to the hospital. I do not accept that she failed to understand what the maternal grandmother was saying. At C61 in the bundle, at paragraph 32, the mother, in her statement of 10^th September 2014, set out:

“Also, that morning, father’s step grandfather, PGGF, who had been at the house the night before, visited. He saw A’s ear and showed no reaction to it at all and passed it off as just a bruise. I did think this was odd, as it was not something you would expect to see on a baby. Just after he left, my mother arrived. I cannot remember when this was but she would often pop in on a Monday morning at any time between 10am and 11.30am. I showed her A’s ear and she also got a shock, the same as me, which contrasted significantly with the reaction of PGGF.”

46. M now accepts that she was wrong to suggest that PGGF came round to her house. She attempted to explain her criticism of PGGF when she was giving evidence before me. She said:

“He attended and there was a conversation that it was just a bruise. I can remember it is a conversation I had with the father as to what happened. I was just mistaken.”

47. In fact, PGGF was not at mother’s home that morning but did see A and his father before he left to go to Scarborough. PGGF gave evidence that A asked him about the ear and said M was not happy about it. PGGF said it was the internal part of the ear. “I was looking for an innocent explanation.” He said, “F was unhappy about it. I said to him if he was unhappy to take him to the hospital.” PGGF said:

“A was happy, which is why I had no great fears about it. He was bright, happy and responsive. I did not look closely.”

48. The parents’ failure to seek medical attention and, prompted by the maternal grandmother, their failure to attend at the general practitioner’s with the maternal grandmother and mother’s reluctance to take A to the hospital, all of which I find to be factually accurate, as well as her attempt to fabricate that PGGF had been at her house that morning and to say he passed it off as just a bruise and that she thought it was odd, all raise considerable concern.

49. Mr Donnelly submitted at paragraph 28 in his written submissions:

“Whether the mother ever contacted, or the parents intended to contact the general practitioner, is far from clear. Although father contends that the mother did contact the general practitioner, he describes leaving the property with A as mother went to make the call. The picture is further confused by mother initially struggling to remember father taking A for a walk, as set out in her statement. In any event, the parents were unable to provide a credible explanation as to why father would leave with A before they knew the outcome of mother’s enquiry with the general practitioner. The court may consider it relevant that, having taken A out alone, father did so at a time both parents anticipated the maternal grandmother arriving to take A out for the day and father took A to the paternal great-grandparents’ home, fully expecting it to be empty due to the paternal great-grandparents departing for holiday.”

I do find those matters all relevant.

50. Mother’s initial account to the police was that she considered it pointless taking A for medical attention. Although mother subsequently claimed to have contacted the GP, her account was that an appointment was made later that day and the maternal grandmother suggested she take A to it and this change in oral evidence to mother alleging the earlier medical appointment was four days later and it was the maternal grandmother who eventually secured the appointment that day, I have already dealt with the findings I make with regard to those matters.

51. The maternal grandmother’s initial account was clear; that the parents had made no attempt to secure medical attention. Mr Donnelly then quotes from the statement:

“They gave me no explanation how it could have happened. They had not already contacted the doctor and I told them he needs to see a doctor and I picked up the phone to ring the GP for an emergency appointment, which I was given.”

As I have already set out, she then referred to what she would have done if it had been her son. I have dealt with already my view in relation to the change in the maternal grandmother’s account to support the mother’s case. It was a variation for which the maternal grandmother was unable to provide any credible explanation.

52. I do consider it relevant that both the mother and father seem to have been reluctant to have A examined by anyone, either a medical professional or, indeed, a family member. I find that the mother and father failed to be open and honest with the court about the events of 20^th and 21^st July 2014. There is evidence to support the assertion, which the mother now makes, that the injuries occurred whilst A was in father’s sole care. However, the injuries were not seen by anyone other than the parents until 11.30, or around about then, the following morning when MGM attended at the house. I should say, however, the injuries were not seen and examined by anyone other than the parents until 11.30 or so the following morning when MGM attended at the house. There was no credible explanation why A was so upset on the morning of 21^st July that father took what was a wholly unusual step of taking A out in his pram during that morning to settle him.

53. The court is wholly reliant upon the evidence of the mother and father as to what happened between the paternal great-grandmother seeing A about nine to 9.30 on the evening of 20^th July and the paternal great-grandfather and then the maternal grandmother seeing A with an injured ear at around ten to eleven, 11.30 on 21^st July 2014. The difficulty for the court is that neither the mother nor the father have assisted the court to determine just what had occurred during that time. In fact, quite the contrary.

54. They were unable to provide credible explanations for their failure to seek medical attention and I am satisfied that the mother lied to the court in relation to this aspect of the evidence. They were unable to explain the contradictions in account that they gave on different occasions as to the detail of what was going on such as, for example, mother saying in her statement that the paternal great-grandfather came to her house on the morning of 21^st July. The concerns about these parents did not cease upon A’s admission to hospital and, thereafter, his discharge into foster care.

55. A solitary rib fracture was identified by Dr Halliday when reviewing the imaging. No acceptable accidental explanation has been given and Dr Halliday noted that such injuries, that is, rib fracture, are strongly associated with non-accidental injury caused by pressure from both the front and the back of the chest. The consultant’s opinion was that the fracture occurred sometime between 14^th and 24^th July. Dr Morrell, in his expert report, considered that the rib fracture was highly specific for non-accidental injury.

56. The parents maintained that they ended their relationship the day before the police interview on 23^rd July. The local authority believe that the relationship continued and base that view upon various factors: the parents have been seen kissing at the end of contact; they have arranged to meet following contact; they have been seen walking hand in hand; father has been photographed at mother’s home and they have passed messages to professionals on behalf of the other. The mother and father do not dispute the fact that these matters occurred but they have sought to explain these matters as not supporting a continuing relationship.

57. M insists that she has not sought to deceive others about the status of her relationship with F. Mr Gray submits, on her behalf, at paragraph 10 of his submissions:

“M insists that she has not sought to deceive others about the status of her relationship with F.

(i) Since 23^rd July 2014, she has maintained an amicable and not amatory relationship with him.

(ii) F continued to hold hopes that M would agree to rekindle the relationship.

(iii) M contends that F is a manipulative, controlling and possessive individual:

(a) his attempt to lure M back from rare evenings out on her own are testament to that;

(b) his ability to invoke the financial and practical assistance of the PGGPs, despite his actions towards them, further supports this.

(iv) M naively continued with an amicable relationship with F post-separation. In doing so, she placed herself in a position of being passive to his advances and accepts that she was insufficiently assertive in her rejection of them.

(v) M accepted that she should have resisted F’s advances in the form of brief kisses, all from him to her, holding hands and having occasional access to her house.

(a) More importantly, she should have made her intentions clear and expressly rejected his advances. While Christine Charlton agreed that M did not reciprocate F looking lovingly at her or kissing her, this was plainly not enough.

(b) In failing to do so, she has clearly left herself open to a charge of continuing an amatory relationship but she insists that this is not the case.

(c) F kissing M, not the parents kissing as reported by Nicole Baker, is potentially behaviour that most requires explanation.

(d) This was most intense in the first three to four weeks from mid-September but, again, was one way from F to M.

(e) Joanne Dawes’ evidence was that her understanding or perception was that, ‘I thought the father was trying to win the mother back’.”

58. M’s evidence to the court, effectively, is that she was more kissed against than kissing. She said:

“It was a bit weird. I didn’t have time to dismiss it. It was very quick. His intentions were he wanted to be with me.”

To the question that was posed to her, “Is there any reason why you did not tell him to stop doing it?” M gave the wholly inadequate answer, “I just thought he would.” She said in cross-examination, “It was out of my control.” When the mother was asked about being seen holding hands, she responded:

“It just shouldn’t be taken seriously or to show me and F were in a relationship. We were holding hands, just messing; just carrying on as friends; just joking about, kidding about, swinging and stuff.”

59. The social worker observing the holding of hands said it seemed to her just like any normal couple. As far as the photograph was concerned, mother said that father just came and changed at her house. He had nowhere to go and she gave the same explanation for his having keys to her property: so the assessment could be carried out because he had nowhere else to go. Father said that he was at the mother’s house at Halloween to change and so that the mother could do his Halloween make-up because she was more artistic.

60. The witnesses to the handholding do not describe it as messing about and the mother seems to have done nothing to indicate that the kisses were not wanted. The father repeated the mother’s account and also said that the episode in The Bridges, that M had grabbed him to drag him into a shop to get a Christmas card. It is unlikely, I find, that the parents would be holding hands in a street or in town if they were not in a relationship. The explanations given by both parents for the observations of them together were just not credible. I find the relationship did continue but, because neither parent has been honest about it, I do not know when or whether it ended.

61. The most distasteful element of the parents’ mendacity is their attempt to cast blame upon PGGM and PGGF. There were three separate elements to this attempt to implicate the PGGPs. Firstly, father alleging that the maternal great-grandmother confessed to causing A’s injuries; secondly, the mother disclosing father’s claim that, as a child, he had suffered maltreatment at the hands of PGGF; and, thirdly, the father’s request to the paternal great-grandmother that she should make a false confession.

62. The father’s account of the confession of PGGM is just not believable as the basis for saying that the paternal great-grandmother had confessed. Taken from my notes, he said:

“One night, I was in the house and they were talking about the case. It was muffled sounds I was listening to. All I heard was them admitting it. I wasn’t really in a good state of mind. I just wanted my son home. ‘Admitting it’ was the actual words I heard. Speaking after, I realised I missed a lot of the conversation. It was a couple of days before.”

He was asked, “Did you ask PGGM and PGGF anything?”

“Not until a week or two after. I was scared. I didn't know if what I was hearing was right. I didn’t want to believe it. It was why I asked for advice.”

63. Joanne Dawes gave evidence that father asked for advice on Friday, 24^th October and he also stated to Christine Charlton that his grandmother had confessed she had hit A. Joanne Dawes advised the father to go to the police. On Monday, 27^th October, the maternal grandmother told Joanne Dawes that father’s grandmother had confessed to causing the injuries to baby A. The maternal grandmother said that when she and the mother were watching X Factor, the mother got a text message from the father in respect of which she, the mother, gasped. It was accepted that X Factor was televised on the Saturday. The maternal grandmother, then, on 27^th October was able to tell Joanne Dawes that the paternal great-grandmother had confessed.

64. The account of the receiving of the text message then seemed to become extraordinarily complicated. Mother said that the text message on the Saturday just said that the father had something important to tell her and he did not tell her on that occasion or in that text about the confession. He did not tell her until the following week, on 31^st October, when he met with mother at contact. The mother said that she did not really believe it, in any event. The mother could not explain why she only found out on 31^st October but the maternal grandmother was able to tell Joanne Dawes, on 27^th October, about the confession.

65. MGM, when asked about the text in evidence, clearly struggled with her answers and I made a note at the time, which I repeat. MGM just cannot bring herself to say that M is lying. I find that M was, indeed, lying. I do not know why she was lying upon this occasion but MGM could not have gone to contact on Monday 27^th October and said PGGM had confessed if M was not told about it until 31^st October. The father stated, when he was giving evidence-in-chief, that he had told M that he was listening to the paternal great-grandparents’ conversation “last night” before correcting himself and saying it was “a previous night.” Of course, the extraordinary confusion is just continued.

66. The accounts given by the father and mother about this so-called confession are just not credible. There were attempts to implicate the PGGPs by the mother referring to father’s mistreatment by PGGF when he was a child. None of the allegations of mistreatment by PGGF of F stood up to scrutiny. Father talked about just throwing ideas around in looking at the PGGPs being responsible. He said it was the dates that caused him to question things. He said:

“I never used the words mistreatment. I can’t remember having a conversation with M about my upbringing as such. I think it was interpreted wrong. I do not think there was any malice.”

It is the position, however, that the mother was keen to recount what she said that the father had told her about his upbringing.

67. Finally, PGGM told the court that father asked her to confess to causing A’s injuries. My note of her evidence is as follows:

“I had been to my sister’s. I was meeting F and he said, ‘Nana, I need to talk to you.’ He said it looked like they were going to put A up for adoption. He said, ‘If you and PGGF say you done it, all that would happen would be that you wouldn’t get the children in your care. You are old and we will get A back’.”

68. Father denies that he asked the paternal great-grandmother to take the blame. I find that he did. I see no reason to disbelieve the maternal great-grandmother, who I found a credible witness who, amazingly, was still able to tell me that she loved her grandson despite his behaviour towards her and PGGF. I agree with Mr Stonor, who set out in his submissions to the court:

“In relation to the paternal great-grandparents, after the unsatisfactory nature of the oral evidence given by the mother, father and maternal grandmother, the evidence of the paternal great-grandparents was refreshing. It was apparently straightforward and honest. Their affection for the father and willingness to forgive his treatment of them was striking.”

69. Sadly, the same cannot not be said about the maternal grandmother. I have already indicated that I believe she has done nothing directly to harm A. I do not believe that she would directly harm A. In fact, she was the one who insisted on taking steps to protect him but she has shown herself to be unable to contemplate that her daughter, the mother, may have caused the injuries or that her daughter knows a lot more about the cause of the injuries than she, the daughter, is letting on. She cannot bring herself to contradict what the mother may say and Mr Donnelly has even questioned if the maternal grandmother is frightened of the mother and possible repercussions if she did not support her daughter. When considering just how much the maternal grandmother tailored her evidence, I find that she altered her own straightforward and honest account so as to not criticise or contradict her daughter.

70. The difficulty facing this court is that the mother and father have not been truthful with the court and both have attempted to throw blame upon others. The final episode of concern in respect of the truthfulness of the mother and father occurred during the course of the actual hearing. Mother, in her statement dated 9^th January 2015, stated that it was not correct that father was in the habit of texting or making phone calls. She said that this is something that does not happen anymore. She told the court, then, about unwanted texts and communications during the court hearing. It transpired that, as Mr Donnelly put it, she had been an active participant in the exchange, sending some eight texts and making 53 missed calls to father’s phone the night before. Father said, in re-examination, “Thank God I have kept all the texts. Mother has asked me to delete them. I knew this would happen.”

71. It is impossible to assess the status of the relationship between the parents, as it is also impossible, because of their continuing mendacity, to take either the mother or the father out of the pool of perpetrators. I do not know how A sustained his injuries but find that the mother and father do know and that they are the only ones, therefore, who can explain what happened. I urge them both, even at this late stage, to give an open and honest account of what did happen. A deserves to know. Further, it is only when the detail of what did occur is known that the risks to A in his parents’ care can be assessed. Without that knowledge, it is very difficult for the local authority or the court to determine just what the risks are in planning for A’s future which, of course, is the next step as far as the court proceedings are concerned.

72. I have concluded the judgment. It should be apparent from that judgment that I make the findings that the local authority ask me to make and, of course, the threshold is well and truly crossed.

[Judgment ends]

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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) >> M (A Child) [2015] EWFC B135 (16 April 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B135.html Cite as: [2015] EWFC B135

England and Wales Family Court Decisions (other Judges)