username

password

Established
Berkeley Lifford Hall Accountancy Services AlphabiolabsIQ Legal Training

Home > Judgments

CK, Re (A Child: Fact-Finding) [2022] EWCA Civ 952

The Court was concerned with an appeal by the mother of a two-year-old boy, C, against findings made in care proceedings that she inflicted injuries on him.

___

Issues were raised on appeal with respect to the treatment of evidence that C carried gene sequences, one of which was also carried by C's father, associated with a condition known as Loeys-Dietz Syndrome ("LDS"). LDS is a rare autosomal gene disorder, carriers of which may have a propensity to bruise more easily and may have greater skeletal fragility. The connective tissue disorders caused by LDS are similar to those found with Ehlers-Danlos Syndrome, a condition which has featured in a number of cases of suspected child abuse.

The appeal also concerned the making of findings on one set of injuries—in this case fractures—when there is another set other injuries—bruising—on which findings are not made; the treatment of lies; and the identification of a perpetrator based on their demeanour and impressions formed about them as a witness.

Background

C was born with the assistance of forceps, which resulted in extensive bruising and a fractured clavicle. It was the parents' case that in the few weeks after C's birth, various marks were seen on the child by the family. There was no reference to bruising in the medical records.

When C was three months old, a nurse noticed a number of bruises on the baby. The mother told the nurse that he was bruising easily. The nurse referred C to a GP who in turn referred him to hospital. At hospital, marks and bruises were observed on the child which, as he was at that stage non-ambulant, gave rise to a suspicion of non-accidental injury. A radiological examination revealed that C had suffered four fractures.

During his stay in hospital, C was cared for at times by his parents, either together or separately. At several points additional marks and bruises were observed, although the medical records about these marks were incomplete and inconsistent.

The local authority was granted an interim care order and C was placed in foster care. Thereafter, he developed bruising on several further occasions, but there was no evidence he suffered any further fractures.

Genetic testing disclosed that C, carried the gene sequences associated with LDS, one of which was also carried by his father.

At the fact-finding hearing, the local authority invited the court to find that either the mother or the father had inflicted the injuries sustained before the child was admitted to hospital, and that the father had inflicted the injuries sustained while the child was in hospital.

The court heard evidence from experts including a consultant paediatric radiologist, a consultant paediatrician, and a clinical geneticist:

(1) The radiologist ruled out the fractures being caused during delivery.

(2) The paediatrician's opinion was that the evidence pointed towards C's having suffered an inflicted injury, causing bruising and four fractures. His opinion did not change after seeing evidence of C sustaining bruises in foster care. He said there was no clinical evidence that C had a propensity to bruise.

(3) The geneticist advised that the gene variant of which C and his father suffer may be of no clinical significance, or may be causative for the LDS syndrome, or may have some partial effect in which there might be some increased genetic propensity to bone fractures or bruising. The expert's ultimate conclusion was that the identified gene variant was of no causative significance in respect of either the bruises or the fractures. There was insufficient clinical evidence to suggest that either C or his father was suffering from LDS. Neither of them exhibited clinical signs such as the facial features associated with the syndrome. Although the father had suffered fractures, it was the expert's opinion that the history reflected his involvement with contact sport or risk-related activities.

Judgment under appeal

The judge concluded there was no link between the fractures and the birth.

The judge accepted the geneticist's evidence, albeit wrongly stating in her judgment that LDS was not associated with a propensity to suffer bone fractures. She found that there was no genetic predisposition, considering whether there could be a medical explanation beyond the scientific certainties of the current age, but concluding that there was an inherent probability in the four fractures all occurring in the care of the parents between the birth and the onset of foster care and none thereafter, despite the child becoming ambulant.

The judge found that there were a number of substantial problems with the evidence relating to C's time in hospital, in particular with the quality of the records kept by the hospital and found that the bruising was difficult to analyse, in part because of these problems. She noted that C had continued to suffer bruising in foster care, concluding that this suggested that he is a child who develops bruises or marks easily for some unexplained reason, but she concluded that "[a]lthough C may bruise more readily … the observed and recorded bruising is more severe in the care of the parents than during the period of foster care and this is suggestive of some level of heavy handling."

The judge concluded that the mother had lied about a number of matters during the investigation and hearing. In this regards, she said "I give myself a Lucas warning in relation to her" and observed that "[s]ome of her lies as to whether [the father] was living there may be due to obtaining housing, but there is a possibility they could have been to protect him … I gained, however, a strong impression that she was a much stronger personality than the father. … There is a pattern of lying here, especially about seeking medical help when she had not in fact done so … which is indicative of wishing to cover things up."

In contrast, she observed of the father that he "gave me the impression of being by far the weaker of the two personalities. He was clearly very besotted with the mother and he does what the mother tells him … I give myself a Lucas warning in relation to him, but overall I found his evidence much more straightforward".

The judge concluded that the four fractures had been inflicted non-accidentally. She concluded that there was not good enough evidence in relation to the injuries in the hospital to make findings on them, save that they suggest that new marks do arise, and thus that C may bruise more easily.

The judge concluded that the mother, rather than the father, was the perpetrator of the inflicted injuries, for the following reasons:

(1) The mother had a pattern of lying throughout.

(2) She was the carer who had the most time with C.

(3) She used social media a great deal and if she suspected the father and was trying to protect him, that would have come out in the evidence.

(4) The father clearly did not suspect the mother.

The appeal

With regards to the genetic variant, the mother submitted the judge made the following series of errors, which led her to the wrong conclusion:

(1) Wrongly stating that LDS was not associated with a propensity to fracture.

(2) Not descending into the degree of detail required in her analysis of the genetic issue.

(3) Overlooking the fact that there had been no scanning of the child in foster care, so there was no evidence either way about whether or not C had sustained further fractures after being removed from his parents' care.

(4) Failing to attach sufficient weight to the possibility of an unknown cause. The specific variant under consideration had not been identified before this case, and there was therefore inevitably an element of uncertainty about its clinical significance.

(5) Accepting the geneticist's opinion without assessing it in the "broader canvas" of all the other evidence, in particular the evidence of the mother's close relationship with the child and her otherwise exemplary care.

In relation to the bruising, the mother argued that the fact that C had developed bruising in hospital conclusively demonstrated that he had a propensity to bruising for unexplained reasons, which supported the argument that all of C's injuries were attributable to the genetic variant or an unknown medical cause. She also argued that by deciding to make no findings about the injuries sustained in hospital, the judge failed to take into account information which might have been material to identifying the perpetrator of such injuries as were found to be inflicted.

As to the judge's treatment of the mother's alleged lies, the mother argued the judge failed to distinguish between inaccurate statements that were deliberate falsehoods and those that were simply mistakes, and characterised some assertions made by the mother – for example, about the circumstances of C's birth and family medical history – as the former when they were, or may have been, the latter, and failed to carry out any or any adequate analysis of those statements she found to be lies.

Finally, the mother submitted that the judge's treatment of the identification of the perpetrator was superficial, due to attaching too much weight on the mother's demeanour and being based principally on her impression that the mother was by far the dominant partner in the relationship, which was unwarranted.

The judgment on appeal

Baker LJ, with whom Moylan and Phillips LLJ agreed, dismissed the appeal.

Genetic variant

With regards to the genetic variant, the Baker LJ found:

(1) The judge below rightly started her analysis with consideration of whether the four bony fractures sustained by C, which were consistent with being inflicted and for which there was no explanation, were attributable to the genetic variant. The fact that C had sustained those fractures was of greater importance than the bruises he sustained in hospital.

(2) Though the judge wrongly said that there was no evidence of an association between LDS and a propensity to fractures, that error had no bearing on the judge's overall analysis and was ultimately irrelevant. Expert opinion was there was insufficient clinical evidence to suggest that either C or his father was suffering from LDS, and that it was well outside a balance of probability for a gene variant to be responsible for the bone fractures and bruising in the circumstances. This was clear and well-supported evidence which the judge was plainly obliged to take into account and to which she was entitled to attach decisive weight.

(3) The judge's treatment of genetic evidence was sufficiently detailed to explain her reasons for accepting it. There was no need for her to descend to the detail in the geneticist's reports.

(4) There was no evidence of any subsequent fractures and the suggestion that the judge should have attached significant weight to the speculative possibility that C may have suffered later fractures that went undetected has no merit.

(5) The judge did consider the possibility of an unknown case, did not compartmentalise her assessment of witnesses or look at the different strands of the evidence in isolation.

Bruising

Baker LJ found the appellant's criticisms of the judge's approach to the issue of bruising had no merit. The judge made subtle and considered conclusions, which was not indicative of a judge who failed to engage with the evidence. The judge's conclusion that she was unable to make detailed findings about the bruising that occurred in hospital was one that she was entitled to reach. There was no basis on which the appeal court could find that she was wrong in coming to this conclusion.

Lies

With regards to the judge's treatment of lies, Baker LJ noted that when assessing the forensic significance of a lie or lies told by a witness, a judge must do more than merely cite the case of Lucas: he or she must consider the probative weight to be attached to the lies in the context of the totality of the evidence, bearing in mind the Lucas principle. However, he found that in this case, the judge did properly engage with the issue and noting that "[i]t was the pattern of lying that she found particularly compelling … [and] which the judge took into account in reaching her conclusion that the mother was the perpetrator of the injuries".

Perpetrator

Baker LJ found that, although the judge's analysis was less detailed than one might sometimes find, it provided a clear explanation of the reasons for her finding that the mother was the perpetrator of the injuries. At the heart of it was her impression of the parents' characters as they emerged from the evidence, including their oral evidence, which is entirely within the province of the trial judge.

The fact that the judge was unable to reach any conclusion about the cause of the bruising and marks identified in hospital did not mean that she was not in a position to reach a conclusion as to the perpetrator of the injuries.

Case summary by Max Lansman, Barrister, Field Court Chambers

For full case, please see BAILII