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W (A Child) [2013] EWCA Civ 662

Appeal by parents against findings of fact in respect of injuries to a ten-month old child. Appeal dismissed.

At the conclusion of a fact-finding hearing in the course of care proceedings, HHJ Brown made findings against the parents that the injuries the child had suffered were non-accidental, that the perpetrator of the injuries was one of the parents and that the parents had failed to seek timely medical attention for some of the injuries.  Permission to appeal had been granted.

The child had injuries to its mouth and the judge rejected the parents' version of events that the child had injured itself.  The mother had noted blood on the child's lip while it was sleeping but did not wish to disturb the child to check the cause of the blood.  The judge found that the injuries, when taken together, allowed him to reject accidental causes for the injuries.  The child also had bruising to the forehead and the judge rejected the explanation given by the parents.

An expert was instructed to consider the possible explanation for the fractures to the skull and back that might be attributed to a bone fragility.  The judge concluded that it was no more than a mere possibility that any condition existed but the parents complained that the judge had gone further than the expert's evidence had allowed him to.

The finding by the judge that the child had suffered fractures was criticised for placing insufficient weight on the totality of the medical evidence in the context of the surrounding circumstantial evidence.  The judge found the father's account unreliable and the parents accepted and regretted failing to obtain medical attention after the falls that were alleged to have caused the fractures.

The judge found that the parents had failed to obtain timely medical attention in respect of the other injuries but the parents complained that the injuries could not be dated, that the child was unwell and did not like to be handled and that there was insufficient reasoning behind the judge's findings.

Hallett LJ stated that there was some force in the disquiet as to the judge findings that the mouth injuries were non-accidental but that in her judgment the mother's account was implausible.  Hallett LJ was not surprised that the judge and expert had rejected the mother's explanation that the child fell with such force from a sitting position onto a toy to cause significant damage.  The injuries to the forehead were similarly dealt with by the Court of Appeal in that it was inherently unlikely that the child would have hit itself twice causing bruising on each occasion.

It was held that the judge had been perfectly entitled to find that the existence of a condition was a mere possibility and that he had not ignored the evidence or misunderstood it.  Hallett LJ agreed with the judge that the parents' explanations for the fractures was unconvincing because it was difficult to accept that the mechanism said to have caused the injuries was in fact capable of doing so.

Appeal dismissed.

Summary by Richard Tambling, barrister, 1 Garden Court

 

Case no: B4/2013/0289
B4/2013/0302

Neutral Citation Number: [2013] EWCA Civ 662
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ... COUNTY COURT

Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday, 8 May 2013

B e f o r e:

LORD JUSTICE THORPE

LADY JUSTICE HALLETT

and

LORD JUSTICE ELIAS 

IN THE MATTER OF W (A CHILD)

(DAR Transcript of
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Mr B Roche and Mr M Robinson (instructed by Messrs Lawrence & Co) appeared on behalf of the Appellant parents.
Mr W Tyler (instructed by the local authority) appeared on behalf of the Respondent local authority.

J U D G M E N T
(As approved by the Court)
Crown copyright©

1. Lady Justice Hallett: 
1. Nothing should be reported which might disclose the identity of the child concerned in this case.

2. The background is as follows. Miss H  and Mr W are the natural parents of A, born in August 2011.  Before 2 June 2012 there were no concerns about their parenting skills or their lifestyle.  Their home was described as immaculate.  However, on the morning of 2 June they presented at the local hospital with concerns about a cut and bruising to his forehead.  When A was examined fully, doctors discovered three other sets of injury.  In all, they found a 5mm laceration to the inside of his top lip which required two stitches, extreme bruising to the upper and lower gums, two circular bruises to his forehead 1cm in diameter, a fracture to the right side of his head above the ear, and a wedge fracture of the 11th thoracic vertebrae.  The doctors were not satisfied with the explanations offered by the parents and the police were involved.

3. When interviewed, the parents denied hurting A deliberately.  Essentially their case was that all the injuries must have been caused accidentally, either in a fall from the father's lap (the fractures) or when the child was playing (the injuries to the mouth and forehead).  Further, it was said that an underlying bone condition may have contributed to the fractures.

4. On the basis that A had sustained serious injuries and no plausible explanation had been given by either parent, the local authority applied for a care order.  HHJ Brown was faced with what is always the unenviable task of deciding on the balance of probabilities whether parents had deliberately injured their child.  He held a fact finding hearing in which he heard from the parents, from Dr Cartlidge, a consultant paediatrician, Dr Johnson, a consultant paediatric endocrinologist, and Dr Allgrove, a consultant paediatrician who is also a consultant paediatric endocrinologist.

5. On 18 January 2013 he found that the injuries were non accidental.  He concluded that the perpetrator was either Miss H or Mr W, and that both knew more than they were telling.  He found that neither of the fractures were caused or contributed to by a bone fragility.  The judge could not date the fractures, but found the mouth injury had occurred on the night of 2/3 June 2012.  It is agreed he meant the night of 1/2 June. Further, he found that each parent had failed to seek timely medical attention for the fractures and for the mouth injury.

6. Both the father and the mother have permission to appeal the following findings: that the injuries to the mouth were not caused accidentally; that the bruising to the forehead was not caused accidentally; that the fractures were not due in whole or in part to an underlying bone fragility; that the fractures were not caused accidentally; and that the parents failed to seek timely medical attention for A when the fractures and injuries to his lip and gums were sustained.

7. I shall summarise the evidence, the judge's findings and the complaint in respect of each group of injuries.

Ground 1: The mouth injuries
8. In her police interviews the mother stated that A was put to bed at about 8 o'clock on 1 June with no sign of injury.  He woke at about 11pm.  She checked him and there was nothing apparently wrong, so she gave him his toys to play with.  He was not standing by this stage, but was quite active and would often try to pull himself up.  She and Mr W went to bed only to be woken by A at about 1am.  This time she noted blood on his lip.  She did not examine A closely for fear of disturbing him and left him to settle. 

9. At 8 o'clock the next morning she saw the cut and took him straight to the hospital.  She could only think that he had either damaged himself with one of his toys or had tried to pull himself up, fallen and banged his mouth on a toy.  The father said he also woke at about 1 o'clock in the morning and went to the bathroom.  He heard his partner settling the child, and then she came and told him that A had some blood on his lip as if he had bitten it.  The father said he did not go and check for himself.

10. The only explanation for the bruises to the forehead came from the mother who claimed A had the habit of waving objects around. During the day on 1 June she had seen him hit himself on the forehead with the TV remote control.  Dr Cartlidge accepted that a child of A's age might topple over from a sitting position and bang themselves, and that they might hit themselves with a hard object.  However, he was of the view that each of the explanations proffered by the mother was an unlikely cause of the mouth injuries and the bruising to the forehead.  The injuries to the mouth he described as unusual, and said they were too severe to be caused by A's two incisor teeth in his lower gums.  Similarly, the bruising to the head was said to be too severe to be caused by a baby banging his own head with a TV remote.  Had A done that to himself, he would have expected reddening of the skin at most.  He could not help on the mechanism of the injury causing the bruising, but felt that his failure to be able to do so led credence to the assertion that the injuries must have been non accidental.

11. As for A's reaction to the pain of the injuries, initially the doctor thought A would have suffered mild discomfort from the bruising to the forehead sufficient to cause him to cry briefly, and moderate discomfort when his lip was cut, which would have caused him to cry for several minutes.  Later in evidence he reduced the likely period of crying after the cut lip to a minute or two.

12. It was the length of A's distress after the cut lip which the judge gave as his primary reason for rejecting the mother's account.  He said that he did not accept the child would have settled and fallen back to sleep so soon after such a traumatic injury.  The judge felt he would have cried for several minutes, as Dr Cartlidge had originally opined.  Similarly he did not accept the child was likely to hit his head once hard enough to cause a bruise, let alone twice.

13. The judge concluded that had he been considering each set of injuries in isolation, he would not have been able to conclude with any degree of certainty that any of them were non accidental but taken together he could reject accidental causes. Ground 1 takes exception to this "cumulative" approach.  

14. Counsel also attacked the judge's reasoning on the length of A's distress and his rejection of the parents' accounts. Miss H and Mr W described from interview to trial a period of distress in relation to the cut lip which was consistent with medical opinion.  The father described A as screaming a "disturbed sort of cry", and the mother told police she had been woken by A crying, and unusually he did not settle after a couple of minutes.  Accordingly, we have no idea, for how long the child was crying until the parents were woken from their sleep.

15. Further, in the light of the change in the medical evidence, no one had pursued the suggestion that the child would have cried for several minutes and that the parents would have been aware of that fact.  The judge's reason came as a complete surprise.  It was described as amounting to speculation and as being fundamentally unfair.

Ground 2: Bruising to the forehead head
16. Ground 2 relates to the bruising to A's head.  Counsel described the mother's account as entirely plausible.  A had a habit of waving things around; the doctor could not dismiss the possibility that he had accidentally hit himself twice and thereby caused the bruises.  The judge should not have rejected the mother's account without more.  Further, both the doctor and the judge appear to have ignored the fact that A had suffered facial bruising in September 2012, whilst in foster care, when he accidentally hit himself with a toy.

17. Again, counsel took exception to the "cumulative" approach both in relation to the injuries to the face and head and the fractures to which I shall turn in a moment.

18. Further, they claimed that, despite the judge's acknowledgement of the burden of proof at the outset of his judgment, the parents were in effect being required to prove how the bruises were caused. 

Ground 3: Bone fragility
19. Dr Allgrove was specifically instructed to consider the possible explanations for the fractures to the skull and the back, none of which could be dated.  He was asked to consider whether A might be suffering from osteogenesis imperfect (OI), or some other underlying bone disease.  The situation was far from clear cut because A had an abnormally large number of Wormian bones in his skull, namely eight to ten as opposed to four.  Further, the Wormian bones were quite large. 

20. However, the thoracic compression fracture is very unusual, and it is very rare to see such a fracture occurring in the absence of bone disease. Dr Allgrove could not recall seeing a child with this kind of spinal injury due to a non accidental injury.  Wormian bones are not diagnostic of (OI) but they are consistent with it.  Where they are quite large, there is a stronger association with bone disorders such as OI.

21. On the other hand, gene tests have not revealed any bony weakness or disease, which makes it more unlikely that he was suffering from a condition such as OI.  Such tests are thought to miss 5 to 10 per cent of cases of OI.  Apart from the Wormian bones, A's bones looked normal.

22. Dr Allgrove was driven to the conclusion that there were pointers both ways as to whether or not A was suffering from a bony condition like OI.  He would not rule out the possibility of a weakness, but on balance felt it was unlikely. Having considered the DNA analysis and the family history, which did not indicate a history of fragile bones, Dr Cartlidge opined that A did not suffer from any frailty.  Dr Johnson accepted the radiological findings were consistent with but not diagnostic of OI. 

23. Mr Roche criticises the judge for going further than the medical evidence could take him.  Dr Allgrove had refused to be drawn when asked on whether it was highly unlikely that A suffered from a disease like OI, yet the judge concluded it was no more than a "mere possibility" that he did.  It was the use of the word "mere" to which Mr Roche took exception and which he equated to a finding that it highly unlikely that A suffered from any bony condition. 

24. Mr Roche criticised the judge for taking into account the fact that A had not suffered any fracture in foster care. This was not a fair comparison. A may have been subjected to extra special care given the circumstances of his removal from home, and had he undergone regular x rays more might have been discovered.

25. Ground 3 in summary, therefore, advanced by both Mr Roche and Mr Robinson is that the judge failed to give appropriate weight to Dr Allgrove's opinion.  His conclusions were more nuanced than the judge understood. The judge gave insufficient weight to all the factors which did indicate the presence of bone fragilty.  The judge was obliged to exercise particular caution in the light of medical evidence of this kind following the guidance of the Court of Appeal in Re U; Re B [2004] 2 FLR 263.

Ground 4: the fractures
26. The judge accepted the evidence of Dr Johnson that there were fractures.  At one stage Mr Roche appeared to try and challenge this finding.  It was never clear to me on what basis he could do so.  The evidence before the judge pointed all one way.  I turn, immediately, therefore to the explanation for the fractures. The only event that the parents could recall was a fall from the father's lap.  In his first account to the police, Mr W said that about two months or so before the admission to hospital, he had been sitting on a sofa with A and A had fallen forwards ending up on the floor.  Mr W made no mention of A's crying.

27. In a later account he said that about two to three weeks before A's admission into hospital, A had been sitting on his lap bouncing when A had lunged forward and fell.  As he did so, he rotated onto his side and back, hitting the right side of his head on the floor.  He then cried for about 30 to 40 seconds. His partner was either in the bedroom or the kitchen at the time of the fall, but she came in straight away when there was a loud thud.  Mr W accepted he had failed the child in not seeking medical attention. 

28. The mother said she had heard the thud, A had not cried straight away.  He had looked shocked and cried for about five minutes but then seemed okay.  The next day they noted a bruise behind his ear. By the time of trial she expressed regret for not seeking medical attention after the fall.

29. Dr Cartlidge was of the view the skull fracture would have been painful and would have led to crying for 10 to 15 minutes.  He later changed this opinion after Miss H had given her account and said that he thought that A would have cried for between 5 and 20 minutes.  On any view, considerably longer than the seconds the father described.

30. Dr Cartlidge understood the explanation for the fractures to be a fall onto the head causing the skull fracture, coupled with a twisting motion to cause the compression injury to the spine, in other words an awkward fall.  He had difficulty visualising such a mechanism.  Dr Allgrove could not rule out flexion as a result of a fall onto the child's head with a twist.  Dr Johnson was of the view it was unlikely that both fractures were caused in the same fall.  In the absence of any bone frailty, it would have taken quite a significant event to cause the fractures and accordingly he rejected the father's explanation of a low fall.

31. The judge found that the father's account was unreliable.  He concluded it was inconsistent and untrue.  He recorded that the father had told the police that A had fallen from the sofa, whereas he had written in his statement and told the court that A had been on his lap.  This appeared to him to be a significant distinction.  The judge also noted variations in the father's account of the child's distress.  The judge was satisfied that A would have been in very great distress if he had suffered two fractures in the fall and therefore should have been taken immediately to the doctor.

32. Ground 4 therefore is an attack on the conclusion that the fractures were caused non accidentally.  In particular, the judge is criticised for placing insufficient weight on the totality of the expert medical evidence in the context of the surrounding circumstantial evidence.  Evidence as to the parents' lifestyle and the care and concern they showed for A was positive.  The expert medical evidence in its totality did not rule out an accidental fall from the father's lap as being the cause.  If, as the father claimed, A had fallen from the sofa, it may have been a short fall, but it was onto a very hard floor, a concrete floor covered with linoleum.  Had he fallen awkwardly, this might well have been sufficient to flex the spine forcibly. 

33. In the light of a less than conclusive medical opinion, Mr Robinson argued that the judge was wrong to find that the father's account was unreliable.  He had not, as the judge found, materially changed his account between police interview and filing his witness statement.  There was no inconsistency.  Properly analysed, each of the father 's accounts amounted to the same thing: A had fallen from his lap, rather than direct from the sofa.  Nor was the father's account of the baby's distress inconsistent.  He does not use language precisely.  He is not someone who necessarily draws the distinction that a court might draw between being distressed, being injured, and crying. In any event, the fact that the father failed to mention that the baby cried when he was interviewed does not mean that he was lying or that his account should be rejected.

Ground 5: the failure to seek medical assistance
34. I turn to the judge's findings on the failure to seek medical attention.  When pressed by the local authority, the judge found that each parent had failed to seek medical attention and after the fractures were caused and after the mouth injuries became apparent.

35. Ground 5 is that the judge erred in so finding.  We were invited to note that the fractures could not be dated.  Little was asked of the parents about what happened thereafter and the court had no clear picture of the time period between the fractures being caused and A's admission to hospital. 

36. Further, Dr Cartlidge's evidence was that A's distress at the fractures might well have been non specific and a carer who had not seen the event in which the fractures were caused would not necessarily have known the reason for A's discomfort.  A suffered from a number of colds and chest infections, was teething at the time, and in any event was a baby who did not like to be handled.

37. Further, the distress occasioned by the moderate discomfort attributed to the mouth injuries by Dr Cartlidge would not have raised sufficient concern to warrant taking a child of A's age to hospital and in the middle of the night.  On that basis, there was insufficient evidence to support the judge's findings.

38. Rhetorically counsel asked the question: why was it unreasonable to leave until morning a child with a speck of blood on his mouth, who was settling down to sleep?  The judge has not explained his finding. Litigants are entitled to a proper evaluation of their case and a reasoned judgment justifying the decision made.  This judgment was said to fail on every score.

The Guardian and the Local authority
39. The guardian submitted helpful written submissions to this court but did not appear. Her approach was to support the judge's conclusion that the injuries were inflicted deliberately but accept there was some force in the criticisms made of the judge.  First, she doubted the rationale for the finding in relation to the mouth injuries.  She saw force in the argument that if one does not know when an injury is caused, it is difficult to conclude a child must have been crying for longing than the mother described, to the mother's knowledge.  She accepted that, taken in isolation, another Tribunal may well have come to a different conclusion on this issue.

40. As to the fractures, the guardian construed the medical consensus as follows: the father's explanation could account for the skull fracture, but it could not account for the fracture to the vertebra.  Despite Dr Johnson's evidence  that he had never seen a wedge fracture of this kind have a non accidental cause, the guardian felt that the judge was entitled to reject the father's explanation that the spine and skull must have been broken together in one fall. 

41. The guardian rejected the judge's analysis of the alleged failure to get medical evidence, but proffered an alternative basis for the finding of neglect. The judge had firmly concluded that the injuries were caused deliberately, one of the parents was responsible, the other must have known bout the event, the baby would have been in real distress and therefore they both failed to get help as they should have done.

42. The approach of the local authority, represented before us by Mr William Tyler, was supportive of the judge's findings, albeit the reasons given by the local authority may have differed in some respects.

Conclusions
43. I turn to my conclusions.  As far as the injuries to the mouth are concerned, I see some force in the disquiet as to the judge's reasons for finding that the mouth injuries were non accidental.  A was put to sleep in a different room from his parents.  His cries would not necessarily have woken his parents immediately.  One cannot know how long A had been crying before they awoke.  It is somewhat harsh therefore to criticise the mother's account on the basis that he must have been crying for longer than she said.  Had this issue been raised in the course of the evidence or submissions, no doubt counsel would have made a valiant effort at answering it. 

44. However, in my judgment, the finding could have been justified on an alternative basis, and that is that the mother's account was simply implausible. This was a baby who was not yet even toddling yet it is said he fell with sufficient force from a sitting position onto a toy in his cot to cause significant damage. I am not surprised the doctor and the judge rejected it. Thus, one has an unexplained injury which was more likely than not caused deliberately. The question arises to what extent do the inadequate reasons for what would have been a permissible finding undermine that finding and the other findings that followed?

45. I turn to the forehead injuries.  Any parent would confirm that a child, even of A's age, may harm himself with a toy.  Indeed, A has done just that since being in foster care.  However, the mother's explanation was that he hit himself not just once hard enough to cause a bruise but a second time immediately afterwards again hard enough to cause a bruise.  This seems inherently unlikely. The most likely cause was that they were non accidental. The judge was entitled so to find.

46. As far as the possibility of an underlying bony condition is concerned, this issue was rightly and thoroughly explored.  The fact it was a possibility does not mean the judge was bound to find that it existed.  The evidence was far from conclusive and arguably far from persuasive.  As I read the judgment, the judge did not ignore important evidence from Dr Allgrove or misunderstand it.  He did not suggest that Dr Allgrove had said it was little more than a mere possibility the child had an underlying weakness; that was his conclusion not the doctor's.  He did note that in the time the child had been in foster care there had been no fractures but also noted there were two fractures suffered in the 40 weeks that the child had been with his parents. 

47. The judge found the parents' explanation for the fractures unconvincing and for good reason.  Somehow the child suffered both a fractured skull and a compressed wedge fracture of the vertebra.  The latter may not be commonly caused in deliberate abuse, but it is difficult to see how it was caused here.  I, too, have struggled, as it seems some of the doctors struggled, with the mechanism suggested.  The doctors remained, despite close and robust examination, unhappy with the suggestion that both the fractures were caused in the same fall from the father's lap.  It is not so much the inconsistencies in the father's account which matter as the inherent improbability that these two very particular and different fractures were caused in a fall as described.

48. In any event, this case is not about a consideration of the injuries individually, it is about their cumulative.  At an age when he could not walk or stand and was solely dependent upon his parents, A suffered several significant injuries and there was no plausible explanation for any of them.  Thus, even if counsel could one by one undermine the assertion that an individual injury must have been caused non accidentally, there remained a total of five sets of injury for which there was no sensible explanation.  The various explanations proffered by the parents, from a fall on to a hard surface, from banging one's head with a remote control and banging one's head on a hard toy did not come close to explaining the series of injuries.

49. As far as the failure to get timely medical help is concerned, both parents seem to have accepted that they were at fault if, as they claimed, the injuries were caused in the fall.  But, even if one rejects their account that the fractures were caused in one fall, one is still left with the fact that the baby suffered two fractures, a fractured skull and a fracture to his spine.  They must have caused A significant distress whenever or however they were caused for at least some time, yet neither parent did anything.  For an unknown length of time a small baby was living with two serious injuries.  In my view the judge was entitled to find that the parents would have realised that some attention was required and they should have sought that attention.

50. Similarly, in relation to the mouth injuries, even on her own account, the mother found her child with blood on his mouth in the middle of the night, yet she did nothing but leave the baby to settle himself. She did not check at all let alone properly.  The father was aware some injury had been caused yet he too did nothing. If the child had bitten through his lip a parent does not just leave a child to sleep.  The child needs checking thoroughly.  If one rejects the mother's account, somehow the baby suffered an obvious physical injury on 1 June, so obvious that it required two stitches.  The parents were there looking after the child that day and they could and should have seen for themselves that the injury required medical attention.  They did nothing.

51. Thus, whether one accepts the parents' accounts or not, to my mind the judge was fully entitled to find that the parents had failed to seek the medical attention for A's mouth injuries and the fractures.

52. I accept it would have been preferable had the judge expressed himself more fully and in a slightly different way, which no doubt he would have done had he had more than a day to collect his thoughts and prepare his notes for what was to all intents and purposes an ex tempore judgment, but I am driven to the conclusion that there is no basis for attacking the judge's actual findings.  His reasons were adequate: the appellants know what they need to know and that is that the judge simply did not believe them.  He preferred the medical evidence and on that basis found the most likely cause of the injuries was non-accidental. Whichever parent inflicted the injuries, the other knew what was going on and neither sought help.

53. For all those reasons, I would uphold the judge's findings of fact and dismiss this appeal. 

Lord Justice Elias: 
54. I agree.

Lord Justice Thorpe: 
55. I also agree, and only stress that the possibility of rehabilitation is under active consideration by the local authority.

Order: Appeal dismissed