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BCP Council v A and Ors (Inflicted injuries : Failure to protect) [2020] EWFC B4

HHJ Dancey conducted a 5-day fact-finding hearing regarding injuries to 17-month-old C which were discovered following his admission to hospital on 17th July 2019 for loss of use of his right arm and leg. These injuries consisted of fractures to his right arm, elbow, both clavicles, scapula and right tibia; bruising to the forehead, cheeks and right buttock, a bite shaped bruise to the left elbow, a scratch over the corner of his left eye; and an abrasion under his right nostril. Save the bruise to the right buttock, which was caused by an accidental slip, the Local Authority sought findings that the injuries were caused by the mother's, partner, D. Further findings were sought against the mother ("A") in that she failed to protect in the broadest sense by failing to seek medical attention, leaving C in D's care despite concerns, lying to professionals and failing to end her relationship with D until 20th December 2019. B, C's father, was not involved and no findings were sought against him. He did, however, wish to be considered as a carer for C.

In the lead up to C's admission to hospital, he spent time in D's sole care at D's parents' property whilst A was at work. This progressed to overnight contact where D had C in his sole care and for an extended period. It was during this extended period that C sustained the injuries that led to his hospital admission, though it subsequently became apparent there had been a number of incidents prior to this where D had hurt C; A was in the vicinity for at least one of those occasions. It was clear that even before other incidents were known, D had concerns about his ability to care for C which he made known to A. Others, including A, had noticed some difficulties in C and D's relationship.

Whilst in D's care, the incident where C hit his head on the table, having fallen from D's grip, occurred. D said that when this happened, he closed his eyes and when he opened them C was unconscious, remaining that way for up to 20 minutes. He messaged the mother to inform her that C had banged his head and accompanied it with a photograph. They then joked about blaming the cats for this. It was noted at [97] that the explanations for events on this day were contradictory in the evidence. The next morning, C was said by D to be using his arm and leg properly, although he was grizzly. CCTV shows them shopping and C walking slowly but without any impairment. Later that day he was reluctant to get out of his pushchair and play in the park. That night D says that C was not doing as D wanted and he yanked him, telling him to stop walking away from him, and when he changed C's nappy, he did so pinning him down with excessive force. Being unsettled after these events D tried to calm C by singing "Baby Shark" to him and in the process bit C rather than blowing a raspberry as intended. That night, when A joined them, she asked D about the bruises on C's cheeks and forehead. He terminated their relationship and, when A asked why, she was told "just look at your son". A saisd that he did not expand on this.

C was given pain relief medication on subsequent days, and new shoes were purchased for him in an attempt to address the limp that he was now presenting with, which they temporarily did. The mother accepts that at this point she should have sought medical attention, realising something more was wrong than teething and ill-fitting shoes. It was suggested to her on her return home by her parents that she should take C to receive medical attention; this advice was not followed. Similarly, the nursery C attended raised concerns on the 15th July and A told them that C had had an accident on a slide. Again, she was advised by her father to speak to medical professionals. She did so, taking C to the GP on the 16th July, who did not identify any evidence of an arm or leg injury despite C's initial reluctance to engage with him. He told the mother that he would make a follow up call the following day and to go to A&E if she had any more concerns. In D's care on Wednesday, C was reluctant to use his right arm and leg and D was advised by the Tots Group they attended to seek medical attention. D did this and C's injuries were discovered but not explained by either D or A sufficiently. They were later arrested in connection with the injuries.

There was a substantial amount of evidence before the Court, supplemented by oral evidence from: D; A; both maternal grandparents; C's GP; Dr Halliday, Consultant Paediatric Radiologist; and Dr Nawaz, a Paediatric Medicine specialist. There were several explanations put forward by D including that he bruised C's cheeks feeding him or brushing his teeth; he allowed C to fall from his grip on 10th July,, banging his head on a plate and/or table before he landed on his feet causing the tibia fracture and bruised forehead; and causing the other fractures when he was excessively rough changing C's nappy on 11th July ([16]). There was dispute as to whether two typed statements sent directly to C's social worker were written by D or A, with or without the guidance of D. HHJ Dancey was satisfied that the statements were written with at least the guidance of D. None of the explanations for the injuries were accepted by the medical experts who took the view that the injuries were inflicted injuries and occurred on at least two separate occasions. Dr Halliday noted that it was unlikely that all of the injuries were caused on the 10th and 11th July as D suggested.

A accepted that she failed to protect by not seeking medical attention but said that C's condition did improve and so she decided to wait. She did accept that she should have been aware of the injuries sooner than she was and she should have left D sooner than she did. It was also accepted by her that she lied but not that she colluded with D to set out false explanations for the injuries. It was not her opinion that she failed to protect C by leaving him in D's care when she should have known he was a risk.

In addition to the well-established principles in respect of establishing the findings, lying and failure to protect in fact-finds, regard had to be given to witness fallibility; a matter of reliability not credibility. Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC (Comm) and Lancashire County Council v C, M & F (Children – Fact-Finding) [2014] EWFC 3, set out that the Court has to be aware of the external factors which affect the evidence. These include: stress; recollection ability and reliability; professional intervention; a motivation to give a good impression and/or give a consistent account; and a realisation of the importance of an event at a later time ([48]-[49]). When considering the expert evidence, we are reminded that this should be looked at within the context of the evidence as a whole and the totality of injuries ([42]-[43]). Room must also be made for the possibility of there being medical uncertainty ([45]).

An issue in this case was whether or not the examination of C by his GP the day before his admission to hospital was adequate. It was necessary to consider Re W (A Child) [2016] EWCA Civ 1140 [95]-[96], which suggests that if findings were to be sought against him as a non-party, he should have disclosure of the relevant material and opportunity to answer the case put to him in cross-examination. There should also be consideration as to whether legal representation or support for the non-party is needed and if it is, whether it is made available. The parties and HHJ Dancey agreed that the approach in this case should be to send the GP relevant sections of the judgment and for him to consider his practice rather than seek or make findings about his examination ([54]).

HHJ Dancey concluded that D, beyond any real doubt, inflicted all of the injuries, except the bruised buttock, and that there remained a number of inconsistencies in the explanations given for how this occurred. This included his explanation of C falling from his grip on 11th July. It was not possible to conclude whether or not the infliction was reckless or intentional; it was admitted by D that he lost his temper and control when he inflicted the injuries, but he was also struggling to cope with C at the time. Dr Halliday's view that the injuries were not caused exclusively on the 10th and 11th July was accepted but HHJ Dancey was not able to identify another causative event amongst those presented in the evidence.

It was right that A accepted her failure to seek medical attention sooner and to identify the injuries at an earlier time. She also failed to protect C from risk of harm, and this was said to be "a more serious finding because it impacts directly on the question whether C's injuries could have been avoided in the first place".  C should not have been left in D's sole care due to the incidents that she knew about having occurred in his care previously and his current presentation ([85]). The mother should have rejected D's explanations and prioritised C by leaving D immediately; she did not do this. Her evidence that she had not colluded in creating a false explanation with D was accepted and no finding was made as to this.

Summary by Molly Mifsud, pupil barrister, College Chambers

Read the full judgment of  BCP Council v A and Ors (Inflicted injuries : Failure to protect) [2020] EWFC B4  on BAILII