A, H, C, & W (Children), Re

As these proceedings are still ongoing I would propose that we impose reporting restrictions on them, and I hope that neither the mother nor the father of the child concerned will be offended if, in the interests of anonymity, I refer to them as the mother and the father respectively. Certainly no lack of consideration or discourtesy is intended by my doing so. This is the father’s appeal against findings of fact made by HHJ Waddicor, sitting in the Brighton County Court as long ago as 6 February 2009. She summarised the issues in the case succinctly in the opening paragraphs of her judgment. The child in question is called JW and he was born at 3.34 on the afternoon of Friday 10 October 2008 at the local hospital. He was discharged from hospital in the late afternoon on the following day, Saturday 11 October. He spent the next two nights at home with his parents. In the afternoon of Monday 13 October JW was taken back to the hospital by his parents who were concerned about the condition of his right thigh. He was examined by a paediatrician; x-rays were taken. X-rays revealed a fracture of the right femur. All the expert evidence diagnosed a fracture as a classic metaphyseal lesion. Those were the essential facts. The judge summarised the issues she had to resolve as follows:

“First, when did J sustain the injury to his thigh? Second, was the injury accidental or non-accidental? There are other related questions, but those are the two primary questions that I have to determine.”

Before I go through the facts I want to say a word or two, particularly to the father. When I saw the case on paper on 10 April of this year I refused permission to appeal in fairly direct terms. I said:

“The ‘approved judgment’ of the judge seems to me immaculate. The findings she made were clearly open to her and depend in no small measure on her assessment of the credibility of the various witnesses. In my view, it is a classic finding of fact exercise: thus the findings the judge made were open to her and she has explained them carefully. It is not suggested that she made an error of law.

Whilst the application for permission to appeal is skilfully presented, it is not for this court to second-guess the judge. I do not, accordingly, think that an appeal will stand any reasonable prospect of success.”

I would quite understand, from the father’s perspective, that he would think that someone like myself, coming to the appeal now when colleagues have given permission, would already have made up his or her mind.

I would like to assure him that that is not how the system works or is the case. When colleagues give permission to appeal, inevitably the person who has refused it looks very carefully at the reasons his colleagues give. He or she rereads all the papers and listens to the argument with particular care. In addition, of course, the person who has refused permission has the advantage of sitting with colleagues who have themselves come to the case afresh, see it for the first time and therefore make up their own minds, independently of him or her, as to what the outcome should be. I propose to take a moment or two, before going to the facts, to look at the judgment given by the two lord justices who gave permission to appeal in this case. We have a transcript of what they said and what was put to them. The first point made by Ward LJ, who gave the leading judgment, was that one of the doctors in the case, to whom I shall have to make further reference in due course, was a trainee. I deal with this point at the outset because it seems to me quite inaccurate to describe the doctor, Dr N, as a trainee. We have both her statement and the oral evidence she gave to the judge, and in her statement she says this:

“I am a speciality trainee year 1 in paediatrics at Worthing and Southlands NHS Trust. I obtained my primary medical degree from the University of Thessalis, Greece, in July 2006. I came to the UK in 2007 and spent three months undertaking a clinical fellowship at Kings College Hospital, London, in Paediatric Hepatology. I then worked as a locum foundation year 2 doctor in General Medicine at Darlington between March and August 2007, before commencing my full foundation year 2 rotation at Newcastle. During that year I worked in Orthopaedics, Haematology and spent four months working in Neonatology. I commenced my speciality training in Paediatrics, at [the local hospital] in September 2008.”

In my judgment, therefore, it would be more accurate to refer to Dr N as a specialist registrar, and in my judgment Ward LJ was mistaken, no doubt quite innocently, in describing her as a trainee. The second point, which obviously influenced Ward LJ, was the fact that the judge had exculpated the paternal grandparents at an early stage in the hearing. This morning, very properly, counsel for the father made it clear that there was no suggestion, and had not been from a very early point in the trial, that the paternal grandparents were, if I can use the colloquialism, “in the frame”. So Ward LJ’s concern that the judge had prematurely exculpated the paternal grandfather was plainly a mistake on the part of the lord justice. The third point relates to the conduct of the trial. Ward LJ was plainly influenced by the fact that the father, who plainly loved the child and who wanted the baby to be born (this was a wanted baby), would not have injured the child within so short a period of his birth. That is a point to which I will, of course, return. Ward LJ then records the points made on behalf of the father: that the baby would have screamed when the injury was inflicted, yet nobody in the household heard it, although it was a small house; the mother was in bed next to him, she is not profoundly deaf, “as perhaps the judge found” (I interpolate: the judge did not so find), and it is surprising she heard nothing. She was a witness whom the judge believed.

It was on that basis, therefore, that the court gave permission; and therefore of course, although I look at this case afresh and as critically as possible, I do not find anything in the reasons given by this court for granting permission as being conclusive against the preliminary view which I had formed. Inevitably, a judge dealing with a case on paper makes a snapshot judgment and sometimes that judgment is wrong, and it is for that reason that this court does not forbid judges who have refused permission from hearing appeals. Indeed, I myself on several occasions, having refused permission to appeal on paper, have then allowed the subsequent appeal when colleagues have given permission. I hope that goes some way to reassuring the father that I have not approached this appeal with a closed mind. I do, however, think it worthwhile to take a moment simply to reflect on the nature of the injury which this child suffered. A metaphyseallesion is a classic yanking injury, as the judge found. It requires a degree of force, as the judge found (and repeated several times), which is outwith normal parental handling of a child. It is for that reason that the doctors were unanimous that this was a non-accidental injury. All the medical evidence was that way. There was no contrary medical evidence; and it goes slightly further than that, because of the evidence of two of the doctors. The judge had a wealth of medical evidence before her.

Two of the doctors, a consultant paediatric neonatologist and a consultant radiologist, met prior to the hearing, as is good practice, and reached agreement as follows:

“1.

[J] sustained a CML [classic metaphyseal lesion] to his right femur, and that it is extremely unlikely that it was occasioned in utero or during delivery.

2.

It is extremely unlikely that the injury is attributable to the post natal checks carried out at the hospital.

3.

At the time of the injury occurred [J] would have felt and experienced pain.”

That was the unanimous medical evidence, and if a judge conducting a fact-finding hearing is to contradict the medical evidence, or not to follow it, he or she has to have very good reason for so doing. So here all the medical evidence pointed to non-accidental injury and all the medical evidence negatived injury, either in utero or during the birth process, and that is where the judge begins her judgment. She first of all goes to the history and takes us through the chronology of events. She records the evidence that she has heard. She records the sequence of events as they were presented to her. She records representation. She records the fact that she has heard from consultant radiologist, consultant paediatric neonatologist, consultant orthopaedic surgeon. As I have already indicated, the radiologist and neonatologist met. She also had a report from a paediatrician and she heard, of course, from the doctor who had examined the child twice in the hospital. She also had a number of witnesses of fact, including of course mother, father, paternal grandmother, paternal aunts, and the two midwives who attended the baby and the mother both during and after delivery. So the judge had a wealth of evidence, both expert and learned, upon which to draw.

It has to be said at the very outset that it is entirely for the judge to assess that evidence, to assess credibility, to weigh one witness against the other, to assess probability and to reach a conclusion. That is the judge’s function. The judge is on the ground. The judge sees the witnesses, hears them, forms impressions of them and makes findings; and in this court all we can do, and all we can properly do, is to examine the findings which the judge made to see whether or not there was material on which she could properly make them. If there was, and if the judge has performed her function properly, that is the end of the matter as far as this court is concerned.

The judge describes the birth, correctly in my view, as a spontaneous vortex delivery. No use of forceps or ventouse. The mother pushed the baby out. The birth was undoubtedly dramatic, because the placenta followed very rapidly and the baby was not breathing and there was a great deal of blood. I have every sympathy for the father, who was present, who must have been deeply shocked and worried about what was happening. First of all, the baby was not breathing and, secondly, there was a great deal of blood. Help was summoned. A paediatrician arrived. The baby was put onto what is described in the judgment as a resuscitair by the midwives, and within a very short period of time the baby began to breathe and gained warmth and seemed to be well. The paediatrician was called at about 5.30 (that was Dr N to whom reference has already been made) and at that point Dr N examined the baby to make sure that he was all right.

The judge identifies three issues as arising from that first examination. Was the doctor alone when she undertook it? Secondly, what examination did she actually perform? Thirdly, did the baby scream, as the father contends? There was then a conversation with which the judge deals fully between the father and his mother over the telephone in which the father described the doctor as having examined the child and having got the child to do what he described as “the splits”. The judge found as a fact that the father used the words “the splits” and accepted from the grandmother’s evidence that this was the case.

The mother was very keen to be discharged. She stayed in overnight, and on the Saturday there was a second examination by Dr N -- what is called the “discharge examination”, which would include a check on the child’s hips. Again, issues arise as to that. The father was not present when that happened but the mother was. The question which arises in relation to that was whether or not, in conducting that examination, the doctor had in some way or other caused the injury to the child. The child then went home, as I have indicated, and I will come in due course to deal with the events when the child was taken home and the judge’s findings in relation to it.

So, the first question: was this baby injured in utero? The medical evidence was unanimous in saying no: there was no evidence of any kind of abnormality which could conceivably have caused the baby to suffer the fracture in utero. Numerous tests were carried out; they were all negative, and the judge rejected as wholly implausible the possibility of a pre-existing injury at the time of his birth. In my judgment that is an unshakeable finding. It is based on the medical evidence. There is no evidence to the contrary, save, I suppose, that the fact that the child had the injury, but the medical evidence was unanimous, and there is no way, in my judgment, in which the judge could properly reject the medical evidence in concluding, as she did, that it was wholly implausible that the injury was pre-existing and therefore caused in utero.

The next question was: did the injury occur when the baby had been born? It was not breathing and had to be placed on the resuscitair? The only evidence to suggest that that was the cause of the injury really related to a conversation which the trainee midwife was subsequently held to have had with the mother in the school playground. The judge went into that conversation in considerable detail in two paragraphs of the judgment and concluded that, although everyone was being as honest as they could about it, including of course the mother and grandmother and the aunt, the impression was that words had been used but the impression was wrong. Equally, the judge was of the view that, although to the parents (to the father at least) it may have appeared that there was panic at the time the child was born, this is not an accurate description, and indeed nothing occurred in the handling by the midwives which could possibly account for the injury suffered to the child. At that point the judge, considering this issue very carefully, reminded herself twice of the nature of the injury itself and the force that was required to cause it. It required a yanking or a pulling. She says that the injury:

“…would have required force either by gripping and rotation of the leg or by holding the baby perhaps around his torso and vigorously shaking him.”

There was no suggestion, she said, that either of the midwives had done anything of the kind. She heard both of them; she was impressed by both of them, and she was satisfied beyond any doubt that he did not sustain the injury at the hands of either of the midwives immediately after delivery. She said that in reaching that conclusion she had taken into account the trainee midwife’s lack of experience, but she also took into account the fact that the trainee was being trained and supervised by a very experienced midwife, CW, again from whom the judge heard. She said:

“I bear in mind the medical evidence of the type of force required to cause such an injury and the fact that neither parent reported anything untoward at that time.”

There followed an examination by the trained midwife, RC. Again, no suggestion that the baby had been distressed during the course of that examination or let out any cry, and again the judge rejected any possibility that the child had been injured by the trainee midwife. So we come to the first of the examinations by Dr N and here, as I have indicated, the judge identified three questions. Was Dr N on her own or was she accompanied by the midwife? Secondly, what examination did she do? Thirdly, did the child scream? Here an important issue of fact arose as between the father and the doctor and the midwife. The father was adamant that Dr N had been on her own when she did the examination. Dr N and the midwife both said that they were present. Again, a classic issue for the judge; and the judge accepted the evidence of the midwife and the doctor that the father was mistaken and that the child had both the doctor and midwife present. Did the child scream during the course of the examination? The judge found that the child did cry during the examination, but she found as a fact that it was not a scream. She found that he cried because the father mentioned that to his mother, and she found the father was upset at the time and emotional, as well he might be. However, she rejected any suggestion of screaming:

“Firstly, it is not supported by the mother and is something I would have expected her to recall. Secondly, neither [Dr N] nor [RC] said that J screamed. I find that if he had done so it would have left a marked impression on [RC] who, by contrast, would call J an extremely quiet baby.”

So she then deals in detail with the examination in question, and I think one has to stand back here a moment, as the judge did, and pause and think: here is a specialist registrar conducting an examination of a baby who is subsequently found to have an issue of an injury that requires force to be used outwith normal parental handling, and the judge had to ask herself: is it probable in these circumstances that this was caused by the specialist registrar in an examination? She was not particularly impressed by the mother’s evidence on this point because, again uniquely in the position of a judge hearing a case of this nature and seeing everything that goes on in court, she noticed that the mother giving evidence about it was looking at the father as if to seek his support in the evidence that she was giving. She noted that in the interview with the police the mother did not mention that she saw Dr N rotating the baby’s legs, and the midwife, RC, was very clear that she was present, that the child had not screamed, but that the examination had been very careful and very thorough. Says the judge:

“I was impressed by [RC]. She struck me as a committed midwife who had been genuinely concerned about the mother. She volunteered that she was pleased to be dealing with the mother on delivery, having met her on her earlier visits to the hospital. She was emphatic that [J] did not have a hip check on that first examination. When asked why she could possibly recall so clearly that she was there, she said it was because she had recently been studying low birth weight babies and was very keen to learn from observations of examination of such a baby.

Dr [N] gave evidence. She too was firm that the midwife was present. She said the midwife, [RC], was present, because she would have needed a midwife with her in order to give instructions. That is inconsistent with what [RC] says about having been on her own choice to be there, but in my judgment, that is not a significant difference. Her contemporaneous notes appear in the bundle. They indicate that she did Barlow and Ortolani check. She was emphatic that [J] did not scream. She was emphatic that she did not turn round to the father and reassure him that babies often cry under these examinations. She said that at the end of the examination, she sat on the bed and completed the form and would have spoke to the parents then.

I find this fact that Dr N was attended by [RC] at that first examination. To find that she carried out that examination on her own would mean that both Dr [N] and [RC] were either mistaken or lying when they said they were both present. I have no hesitation at all in rejecting either of those possibilities. Those witnesses struck me as accurate and balanced in their evidence. Moreover, the father was alone in saying that Dr [N] was on her own.”

This is a point to which I will return later.

“I find as a fact that [J] did cry during that examination but I find as a fact it was not a scream.”

That is a passage to which I have already referred. So the judge was very clear on the facts that the injury had not occurred during the first examination by Dr N of the child at which RC had been present. In my judgment that finding is once again fireproof. It is based on her observation of the witnesses; it is based on her specific findings of fact, and it is based on the clear evidence that she saw and heard; and in this court, in my judgment, it is utterly unassailable.

The next question which the judge had to ask herself was whether or not Dr N had caused the fracture in the discharge examination on the following day. It will, of course, be recalled that before baby is allowed to leave hospital, having been born in hospital, the baby is checked to make sure all is well and that there are no outstanding injuries before a baby is sent home. There was no hip check done at the first examination by Dr N, because Dr N would do a hip check before the baby was discharged; and, in relation to this examination, once again the judge was categorical in accepting Dr N’s evidence that there was nothing unusual occurring during the course of the examination. The consensus of the medical evidence, she found, was that it was not unusual for a child to express discomfort in a hip check because it is the first occasion in which the lower limbs are separated, and once again the judge reminded herself twice during the course of this passage in her judgment that the force which was required to cause this injury was outwith normal parental handling.

She was therefore very clear, and found as a fact that the injury had not been occasioned during the second discharge examination by Dr N. Once again, that seems to me to be a clear finding that the judge was entitled to reach on the evidence. There was plainly evidence to support all those findings and, if one is looking at the matter, as the judge was, on the balance of probabilities, the balance of probabilities must be that when the child left hospital on that Saturday afternoon he was well, otherwise he would not have been discharged.

One then comes to the part of the case which called for attention during the course of this appeal, because the father at that time, as I understand it, was not living with the mother full time; and there was a question, since the mother had other older children who were living with her, how it had come about, if it did, as the judge found, that the injury occurred overnight on the Saturday night before the Sunday, when the injury was discovered by the mother and grandmother? It is said on behalf of the father -- and I have some understanding of this submission -- that here is a man who plainly loves his baby. He had very little experience of children. This is effectively his first child, although the mother had other children. How is it that a man who loves a child so much, and wants a child so much, is nonetheless, it appears, if the judge is right, capable of injuring the child during the very first night in which that child he is alone with the mother and the child?

I do not mean any disrespect to that submission when I describe it, in a sense, as a jury submission, because those of us who have done this work year in, year out, know only too well that these incidents can occur in just a moment. It is a moment of loss of temper. It is a moment of inattention. It is a moment of anger and the consequences are far-reaching. It is certainly, I am sure, within the experience of this judge, and certainly within the experience of this court, that parents, who deeply love their children, are nonetheless capable, and indeed do on occasions, injure them. The period on which the judge focused was the Saturday night. The parents’ view was that it could not have happened during that time because the mother was alert to any noise the baby made, even though she has had a hearing deficit in one of her ears. She was therefore alert to any noise the baby made during the night. She did not recall or hear any scream during the course of that night and therefore, she says, it could not have happened during that time. The judge found that he father was under stress. The father denies that. He says that he had rested well. He had had a night’s sleep away from the hospital; that, although he was up all night looking after the baby, he was not under stress and that therefore he cannot account for the injuries which the child suffered.

It appears to be the case that when the child was seen by the grandmother on the Saturday afternoon he was holding his leg up in a way which was slightly unusual, but the grandmother’s statement to which were taken today makes it perfectly clear that she examined the child very carefully on that Saturday afternoon and could not really find anything wrong apart from the fact that he was holding his legs as he did, and it was not until Sunday that he parties really became aware of the swelling which underlay the injury itself. So the judge’s finding was that this must have happened during the course of the Saturday night, and here again one needs to step back, as the judge probably did, and look at the position of the two parents with a newborn baby. A very, very inexperienced father. That is not a criticism. A mother who has been through a traumatic birth, and a night during which the father is awake for most of the time, it seems, and the baby is regularly fed. The judge’s view was that the probabilities (and she is dealing with probabilities), despite the parents’ evidence, was that the injury had occurred during that night. At some point the father had lost his temper with the child, or something had happened which had caused him to pick up the child or yank the child by the foot or by the leg, with the result that he suffered the injury. It is true, of course, that mother had not heard it. But if one is looking at the matter in terms of the probabilities, as the judge indeed did, it seems to me that it was entirely open to her to find on the balance of probabilities that the injuries occurred during that night. This is the way she dealt with it at paragraph 97 onwards. She had already set the scene. She described the flat and the other people in it:

“I find that it must have been a stressful situation in that flat on the Saturday night and Sunday morning and I find that the father was someone who reacts badly to stress. Both parents say the father was never on his own. The mother told me that he could only have been on his own with [J] when she went to the toilet, which was just across the hall, no distance away. They both said he willingly got up to prepare the bottles and that the mother was largely responsible for handling [J]. Both were insistent that the father never handled him on his own.

I do not accept that the father had no opportunity to be with [J] on his own. I find the father was awake for much of the night. As I have said, on his own account he was listening out and could not settle.

In my judgment it was obviously possible for him to get up in the night with the baby and it would have been possible for him in the early part of Sunday morning to get up with the baby. I bear in mind however that this was a very small flat. I also bear in mind that the mother’s hearing difficulty.

Taking all of the above evidence into account, I find that both parents had the opportunity to cause injury to [J] between the time of discharge and the time of the visit to the paternal grandmother’s on the Sunday afternoon. I am satisfied, in the case of the mother, that it is highly unlikely that she caused the injury because I find her very protective physically of [J] and because she has experience of handling small babies. I find that she does earnestly want to know how [J] suffered this injury.

In contrast, I find it more likely than not that the father caused the injury to [J]. He was under stress. He had been working hard. He had been deprived of sleep and there reported examples around the time of his reaction to stress, although, as I emphasise, they do not include any physical violence. Whereas on those other occasions there were other people around to calm him down, there was no-one, in my judgment, to calm him down at the relevant time, from being in the home on Saturday, through to and including the Sunday morning.”

In my judgment that is a perfectly legitimate exercise on the judge’s behalf. She saw the witnesses; she had heard the evidence; she had heard evidence about the father being under stress on the Monday in the hospital; and, in my judgment, those were conclusions that she was entitled to reach. But she was sympathetic to the father. She did not say that this was a malicious injury, and I think it is important that I should read and emphasise the penultimate paragraph of the judgment:

“I find that he caused the injury to [J]. I find that he did not set out to harm [J]; I find that he lost his temper; and was rough with [J], either by gripping him by the leg and twisting him, or by holding him and shaking him. I find he used such force that it must have been obvious to him that there was a risk that [J] would have been harmed. In other words, he was reckless about whether [J] would sustain physical harm.”

So this is not a case in which the judge has said “here is a deliberately cruel father inflicting an injury on his infant child”. Here we have a non-ambulant child who has been, in seconds, injured in the way that the doctors have described and found. It was not an intentional injury, as the judge found, on the father’s part, but the father had been reckless in the way he had handled the child. The judge concludes with a criticism of the father, which I think is justified:

“I find that his insistence that Dr [N] caused the injury, although moderated in the course of presentation of his case, to include the possibility of that an accidental injury had occurred at any point during the hospital stay is an attempt by the father to cast blame elsewhere for an act which he knows he is responsible.”

The irony of this case is, of course, that, had the father accepted the judge’s finding, I have no doubt the local authority would have wished to give him every assistance it possibly could in learning how to handle small children and how to avoid an occurrence of what was, on any view, a very regrettable episode. That, however, has not occurred. The father, no doubt, will go to his grave asserting he did not injure the child; but the judge, in my view, has conducted an absolutely classic exercise, and so I come back to look at my original assessment of the judgment when I had been through the papers and I have looked at the reports and I have seen the transcript, of which we have a complete set, and in my judgment the view which I formed of the case remains correct. This was a classic example of a judge assembling evidence, sifting it, weighing it, looking at it carefully and reaching a conclusion, and the conclusion, in my view, was one which was perfectly open to her.

It is often said in this court that, if I had been trying the case, I might have reached a different conclusion. I may, as argued by the father today, have said “I cannot make up my mind. I do not know what happened. Anything could have happened to this child. It is a mystery. I do not know”. The local authority has not established its case. Alternatively: “this father did not do it. I do not know who did. It may have been the mother or the father. It could have been either. I am not going to make a finding.” But of course that is not the test. The test is not what I would have done. It is what this judge did on the evidence available to her. And, as I say, on the evidence available to her, it seems to me the judge conducted an immaculate fact-finding exercise. The case turns exclusively on its facts and the facts were all open to the judge to find, and therefore, despite permission having been given, I would myself dismiss this appeal.

I agree.

I also agree. I would only add my own appreciation of the clarity and quality of the judgment below. The case was unusually difficult and I can see no flaw either in the process of trial or in the judgment itself. I concur with the order proposed by my lord, Wall LJ.