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Wakefield Metropolitan District Council v R & Ors [2019] EWHC 3581 (Fam)

Judgment following a finding of fact hearing concerning a young child with significant head injuries.

The Hearing
In this case the local authority ('LA') applied for a care order in respect of four children, all of whom were under five years of age. The proceedings began following the fourth child, Child 4, being taken to hospital with significant and serious head injuries, which were suspected to be non-accidental by the treating clinicians in the absence of any other explanation from her parents.

The hearing proceeded before Mrs Justice Leiven as a finding of fact hearing. The parents accepted that should the Court find they had inflicted the injuries, they would not argue the children should return to their care. The outstanding issue to be determined after the decision on the facts, was, if the LA's case was made out, should the children should go to live with a paternal aunt, who lives in a country in Europe, pursuant to a care order.

The Evidence
The comprehensive judgment deals with the following:

• The Child 4's medical history (paras 7-13);
• The family background (paras 14-19);
• The mother's evidence (paras 20-39;
• The father's evidence (para 40-50);
• The evidence of the Paediatric Consultant, Dr Y (paras 51-53);
• The evidence of Paediatric Neurologist, Professor Stivaros (para 54-62);
• The evidence of the Consultant Paediatric Neurosurgeon, Mr Richards (paras 64-69); and
• The appointed Independent social worker's, Ms K, evidence (paras 69-86).

The Law
Mrs Justice Leiven sets out the relevant and applicable law, at paras 87-116, in detail, including key cases in relation to the burden and standard of proof (paras 88-93); the 16 legal principles set out by Baker J in Re L & M Children [2013] EWHC 1569 (Fam) (para 94) and the President's additional points (para 95); the importance of analysing all evidence, medical and non-medical (para 96); the identification of perpetrator(s) (para 97-99); the role of, and approach to, expert evidence (paras 100-104); lies and Lucas (para 105-109); the wider context of the evidence (para 110-112); and, the Human Rights Act 1998 and the ECHR (paras 113-116).

Emphasising the importance of considering and judging the case as a whole, in a holistic manner and taking a broad overview of the evidence, Mrs Justice Leiven reached the following conclusions:

(1) The child suffered the following injuries:

a. Acute subdural haemorrhages at multiple locations overlying her brain, between the two halves of her brain, beneath her brain and in her posterior fossa.

b. Acute traumatic effusions overlying her brain.

c. Acute subarachnoid haemorrhage overlying her brain.

d. Hypoxic ischaemic change within the brain substance.

(2) In relation to the medical evidence:

a. The nature of the injuries seen by Dr Stivaros were highly unlikely to be caused other than by some form of traumatic event; the scans all showed a consistent picture of such a traumatic injury; and, there was no evidence of any impact injury to the brain;

b. Mr Richards' evidence was wholly consistent with that of Professor Stivaros. Mr Richards had considered all alternative known conditions which could either have led to the symptoms which Child 4 exhibited, or which could have given her a susceptibility to brain damage of this type, which might have meant that some lesser action by her carers could have led to the injuries. All the relevant scans, and tests had been carried out and there was no indication of any other condition which could have led to or exacerbated Child 4's condition;

c. No counsel suggested to Mr Richards that there was any other known cause or condition for the injuries;

d. Mother's suggestion that the change in Child 4's milk powder two days before her hospitalisation is rejected as a cause of the injuries, as there being no possible causative link;

e. The shaking that caused the injury would be an acceleration/deceleration movement, and could have been one strong shake, which would have been beyond what any responsible carer would commit, and would plainly amount to inappropriate and unlawful care;

f. It is quite possible to have such injuries without retinal haemorrhages, particularly when the shaking is at the lower end of the scale. It seems probable that Child 4's injuries were at the lower end of the scale, given her apparently good recovery so far;

g. Mr Richards accepted that it was impossible rule out the "unknown unknowns", of some medical cause currently entirely unknown to science. However, it is important that a witness of Mr Richards' experience said that in all his years of examining babies showing symptoms such as those seen in Child 4 and with scans such as hers, he could not see any alternative explanations, given the lack of any reporting by the carers of an explaining event; and

h. The medical evidence all points clearly and unequivocally in one direction.

Noting that the authorities, in particular Re B, make clear that the court should not stop there, but must consider all the evidence, Mrs Justice Leiven states that it seems to her that she would have to find some unusual or unexplained factor, to depart from the unequivocal medical evidence in this case. Her Ladyship went on to conclude:

(a) There is no suggestion that any third party caused the injuries, and there is no third-party evidence or corroborative evidence except the video;

(b) Neither parent gave at all satisfactory evidence, and both made significantly inconsistent statements, both within their own evidence and between each other. Both parents were evasive in their answers at key points. Neither parent was being honest and truthful in their evidence to the court, in a number of material regards;

(c) The clear impression from the parents was that they were trying to conceal matters and this led them to minimise some issues, and to fail disclose or mislead on key matters;

(d) The parents must have been under enormous strain, and this creates risk factors, which following the analysis in Re BR sets the framework for the findings of fact. In particular:

a. the parents were under considerable financial strain, including rent arrears;

b. they had relatively little support with none of the children going to nursery or school and only limited help from the maternal grandmother, who seems to have had a difficult relationship with the father and sometimes the mother;

c. the parents themselves had a difficult childhood, although it is impossible to know how this impacted on their behaviour with the children;

d. mother had had some health issues during the pregnancy with Child 4 and thereafter, having so many children in quick succession must have had some impact on her physical and mental wellbeing;

e. there was potentially stress between the parents as evidenced by the domestic violence incident in 2017; and

f. probably most importantly, the parents must have been exhausted.

(e) Neither parent has given a true description of the stresses and inevitable tensions that must have been taking place after Child 4's birth.

(f) It is neither possible nor necessary to make findings in respect of the alleged domestic abuse incident, but both parents were seeking to minimise the incident.

(g) In relation to the events leading to Child 4's injury, the parents were not being truthful. Having had close regard to the principles in Lucas as further elucidated in the family law context in Re H_C, as to the lie pertaining to whether the father left the family home, reliance is placed on that lie as an indicator of the parents' responsibility for Child 4's injuries.

The Court was unable to determine on the balance of probabilities whether the mother or father was solely responsible for causing the injuries that Child 4 has suffered, therefore the court made a finding that both parents are in the pool of perpetrators and, further, that the parents have deliberately sought to mislead the professionals involved and the court.

Case summary by Emily Ward, Barrister & Deputy Head of Family at Broadway House Chambers.

Read the full judgment of Wakefield Metropolitan District Council v R & Ors [2019] EWHC 3581 (Fam) at BAILII