G-P (A Child)

This appeal concerns Mary (not her real name), who was two years old when she was admitted to hospital at 3 p.m. on 18 December 2017. She was found to have head injuries (a skull fracture, acute subdural bleeding at different sites, hypoxic-ischaemic brain injury and bilateral retinal haemorrhages) for which she needed prolonged ventilation. Further examination found her to have 42 other bruises and marks to her head and body, and a bruise to her hymen. On discharge from hospital four weeks later she was placed in foster care.

Mary had been taken to hospital by a childminder, Ms R, who had been caring for her on behalf of her parents since 10.45 a.m. on the previous day, 17 December. She had therefore been in Ms R’s sole care for 28 hours. Also present in Ms R’s home was her own 21-month-old child, J.

There was no account of any accident that could credibly account for the state Mary was in. Apart from a bite mark to the foot that might have been caused by a child, her main injuries must have been caused by one or more adults. The only candidates were Mary’s parents, in whose care she had been up to the morning of 17 December, and Ms R.

On 24 August 2018, Her Honour Judge Hallam sitting in the Family Court at Middlesbrough made findings of fact after a hearing lasting 21 days during which she heard evidence from 31 witnesses. The parents and Ms R blamed each other for the injuries. The mother, father and Ms R gave evidence for no less than seven days, two days and five days respectively. The judge did not believe any of them and in a notably thorough judgment she made serious findings against them all, which I now set out.

Physical/emotional harm from:

an unsafe home environment

chaotic childcare arrangements

leaving Mary with her mother when she could not care for her adequately

gross neglect in relation to nappy-changing (to the extent Mary had a severely ulcerated nappy area).

The mother has factitious illness disorder (FID) in relation to herself.

The mother’s FID behaviour has extended to Mary, causing her to have medical appointments, an in-patient food trial, dietary restriction and restrictions on her contact with adults and children, all of which were unnecessary.

The father has colluded with the mother’s behaviour in relation to her FID behaviour towards herself and towards Mary and has failed to protect Mary from harm.

The father has begun to accept the mother’s behaviour and his part in it.

The mother does not yet accept that she suffers from FID.

The head injuries were the result of an impact and a shaking mechanism beyond reasonable handling. It is not possible to say whether these events occurred at the same time or at different times.

Mary would have shown immediate effects from her head injuries. There was no ‘lucid interval’.

The perpetrator of the head injuries was Ms R.

Some of the 42 marks and bruises were inflicted injuries, namely:

a large bruise to right side of forehead with associated swelling

a large area of bruising under the chin

an abrasive injury over the right back elbow

bruising to the inner aspect of both knees

The injuries at paragraph 4 were inflicted by Ms R .

There was a bite mark to Mary’s right foot. It was inflicted by a child. That child was J .

To the extent that any of the 42 injuries were not inflicted as set out in the above paragraphs or caused during the course of medical intervention to save Mary’s life, the sheer number of marks and signs of injury indicates inadequate supervision by the parents and Ms R in the days prior to her presentation at hospital .

Mary’s hymen was bruised. This was caused by significant force by a blunt object such as fingers.

The hymenal bruising was caused by Ms R examining Mary’s vaginal area .

The parents have not appealed from any of these findings. With permission granted by Moylan LJ on 23 November 2018, Ms R now appeals from the five findings in bold. The outcome matters to her as there are parallel proceedings about her own child J arising out of the events concerning Mary.

It can immediately be seen that this was a highly unusual case in which the court found that a child had suffered a range of abuse in more than one home. A further

In response, the parents argue that the outcome was effectively mandated, and certainly permitted, by the expert medical evidence, which supported the head injuries as having been sustained shortly before Mary’s admission to hospital, and by the findings about Ms R’s own credibility.

The well-structured judgment, running to 65 pages, proceeds in this way:

To give sufficient context for the grounds of appeal, I would extract these matters from the evidence as referenced in the judgment:

The mother asserted she had at one point been paralysed for 6 months and that she has suffered from ulcerative colitis, cauda equina syndrome with left-sided foot drop, fibromyalgia, narcolepsy, cataplexy with catathrenia, night terrors, seizures and allergies. The judge could not say that the mother in fact suffers

In relation to an episode when Mary collapsed in the care of her parents in hospital aged three days with bleeding from her mouth and nose caused by pulmonary haemorrhage, Ms R alleged that this was induced by the mother, but the judge considered the evidence, though suspicious, insufficient for such a finding. Likewise, while it was understandable that Dr B suspected the mother of having deliberately caused Mary’s nappy rash, this was at best speculation. [288, 304]

However, Mary has been subject to the mother’s FID behaviour by the mother perpetuating her own fixed beliefs and preoccupations with allergies, narcolepsy and cataplexy, leading to harmful and unnecessary experiences and restrictions for Mary. The mother’s conduct is entrenched and there is a real likelihood it will be repeated. [325-6]

The father asserted a long-standing history of hypersexuality with use of pornography and sexual chat rooms. He accepted lying to the mother about this and accepted that he had reverted to the use of chat rooms in December 2017. He had not assisted in the process of understanding his use of pornography. The police had attempted to analyse his mobile phone, but it emerged during evidence that Cyfor had been unable to access his phone and that he had remotely interfered with its SIM while it was being held by the police. [345]

The dirty, cluttered and unsafe conditions in the parents’ home were of long standing and posed a risk to Mary’s safety and welfare. The conditions in Ms R’s home were noticeably better. [211, 213]

With the mother’s health issues and the father working, the care arrangements made by the parents for Mary were inconsistent, chaotic and potentially harmful, with her being exposed to a number of different carers who were comparative strangers to her and to the parents. She had been cared for by Ms R on two previous occasions (3 and 9 December). [239-241]

Ms R herself had an interest in hardcore internet pornography with a sexual sadism tendency and had accessed it on the afternoon of 17 December while the children were in her care. On 6 November, some weeks before the first occasion on which she cared for Mary, Ms R had made an internet search for signs of sexual abuse in the hymens of young girls. [417-419, 436]

The judge’s assessment of the general situation of the adults was this:

The parents’ situation in the days leading up to 17 December was significantly stressful and their daily life was very difficult to manage. However, Ms R’s account of Mary appearing as a neglected, withdrawn child at this time was not accepted in the light of the evidence of the nursery and health visitor of her being lively and engaged. Nor did the judge accept the evidence of previous carers who raised concerns about attachment between Mary and her parents, viewing those concerns as being affected by the unhappy employment history. The carers had a prior arrangement to meet social services later on 18 December, but the judge found that the focus of the meeting was to be the unsatisfactory care arrangements for the mother rather than Mary’s situation. [351, 537, 365]

On 17 December, the father left Mary alone with her mother when he went to work although the mother was not out of bed. This situation lasted for three hours until Ms R arrived to collect Mary. There was confusion about the handover arrangements. These were of the father’s making and he lied to the court about them. [239, 370]

After Mary went to Ms R, a number of text messages passed between Ms R and the mother and between Ms R and her own mother. The judge reviewed these. The messages, which included some photographs, included descriptions of Mary’s activities on both days. These included playing a game of ‘Ring o’ Roses’ with J, playing in a toy car, taking chocolate from an advent calendar, bouncing on the bed, being bathed, cuddling Ms R in bed and (on the morning

Ms R gave evidence of having taken a photograph of Mary’s genital area on 17 December to show its soreness and as being a possible sign of sexual abuse. She later deleted the photograph, but it was forensically recovered. The evidence of Dr Morrell was that the injury to the hymen could not have been seen without parting the labia. The judge rejected Ms R’s evidence as to her motivation, and her account of having told the doctors of her suspicions, but she made no finding about Ms R having a sexual motivation for touching and photographing Mary’s genital area. [441-445]

The medical evidence in relation to the head injuries came from Dr Stoodley

In relation to the head injuries, the judge concluded that the joint evidence of Dr Stoodley, Mr Richards and Dr Morrell was compelling.

In relation to the genital findings, having considered the evidence of Dr Rollison (forensic paediatrician) and treating doctors Dr G and Dr T, the judge concluded:

In relation to the mark to the foot, having considered the evidence of Professor Craig (forensic odontologist), Dr G and Dr Kouble (forensic odontologist), the judge concluded that it was a child’s bite, probably inflicted within 48 hours of

In relation to the other marks on Mary’s body, having considered the evidence of Dr Morrell, the judge identified the bruising to the head and chin as having been inflicted by Ms R. The bruising to the knees was caused when Ms R parted her legs to examine and photograph her genitals. Ms R’s accounts of the bruising were inconsistent and evolving. Ms R’s mother’s evidence was rejected by the judge as being partial. Injuries such as the abrasion to the arm and the bruise to the forehead would have been evident to a carer if they had been sustained before Mary went into Ms R’s care. [446, 449, 458, 460, 463, 465]

The judge noted that she had come to conclusions not supported or sought by the local authority and said this in conclusion:

These are, in summary:

Failure to analyse the relevance of the mother’s FID to the identity of the perpetrator of the injuries.

Failure to address the relevance of the father’s lies and collusion to the identity of the perpetrator of the injuries.

Insufficient analysis of the risks posed to Mary when left alone in the mother’s care on the morning of 17 December.

Insufficient analysis of the parents’ elaborate deception in relation to the care arrangements for Mary on 17 December

Failure to attach sufficient weight to the cogent ‘social factors’ rendering the findings against Ms R unsafe.

Failure to sufficiently analyse and explain the rationale for departing from the findings sought by the local authority.

To this was added that at the end of [433] (see 11(14) above), the judge appears to have placed an impermissible burden on Ms R to provide an explanation for the injuries, but this was not pursued in oral submissions. Plainly the judge was doing no more than noting the absence of any other relevant recorded event.

At the outset of his presentation, Mr Ekaney made a number of concessions. He recognised the difficulty facing those contesting findings of fact made after a substantial trial of this kind. He described the judge’s statement of the law and summary of the medical evidence as beyond reproach. He accepted that the judge was not bound by how the local authority put its case. He acknowledged that the preponderance of the medical evidence favoured the head injury having occurred close to the point of collapse, something he described as a major hurdle in his path. He further accepted that it was open to the judge to disbelieve Ms R’s evidence and to find that it was motivated by a desire to conceal her responsibility for the injuries. In my judgment all these concessions were rightly made, indeed inevitable.

What then is Mr Ekaney’s argument? It is that the judge did not sufficiently reason her conclusions in a case where, he says, the medical evidence was not determinative. He submits that, before coming to her central findings, the judge should have drawn inferences from a number of secondary findings, for example: the extent of the parents’ lies and specifically the father’s lies about the handover arrangements; his obstruction of the investigation of his internet behaviour; the dangerous state of the parents’ home and the possibility that a fall had occurred there; the contrast between the home conditions; the parents’ denial of the mother’s FID; the acute stresses on the parents on 17 December; the expressions of concern about Mary from Ms R and other carers; Ms R’s unblemished record as a mother of J; the lack of any history of biting on J’s part; the possibility, acknowledged by Dr Morrell but not Dr Rollison, that the hymenal injury might be the result of gross neglect of the kind that led to the nappy rash; the unaddressed coincidence between the mother’s preoccupations, such as bruising to the head arising from cataplexic falls and the child’s forehead injury, and the link between the alleged induced nappy rash and the genital injury. Mr Ekaney argued that the judge failed to subject these aspects of the evidence to sufficient analysis and that had she done so, a proper appreciation of the inherent probabilities would at least have left the parents in the pool of potential perpetrators. As it is, a serious injustice has been done to Ms R, someone who was seeking to help parents who have been shown to be inadequate, abusive and untruthful.

The local authority, through Ms Connolly QC and Ms McKenzie, accepts that it was open to the judge to make the findings, including those under appeal. It nonetheless professes itself neutral on the appeal, while making a number of comments about the evidence that in the end take the matter no further forward.

The Children’s Guardian, who had been neutral at trial in relation to the perpetration of the injuries, is similarly neutral on the appeal. On her behalf, short written submissions have been presented by Ms Langdale QC and Mr Mather. I record only one, which is that it is questionable whether the judge needed to make a finding about how Mary came by the bite mark.

Mr Stonor QC and Ms McKie on behalf of the mother, and Mr Larizadeh QC and Ms Kitching on behalf of the father, defend the findings by means of a close analysis of the medical evidence, set alongside the contemporaneous messaging and Ms R’s own description of Mary’s essentially normal behaviour on 17 December and the morning of 18 December. Mr Stonor argues that this evidence puts paid to the vanishingly unlikely proposition that Mary came into Ms R’s care with serious head injuries that lay undetected for some 26 hours. The judge, having fully faced up to the parents’ dishonesty, was entitled to differentiate between the kind of harm that they had caused and the physical assaults that were in issue here. She was also bound to take account of Ms R’s prolific lies. The findings were not only open to her, but it is difficult to see how she could properly have concluded otherwise. Mr Larizadeh adds that the challenges to the judgment for the most part barely amount to true grounds of appeal, but rather to requests for further analysis.

The above summary does not capture every detail of the extensive information that was available to the judge or the arguments we have heard, but it is more than enough to identify the issues that are essential for this appeal. This was a challenging case with a number of unusual and perplexing aspects. In such a situation, a trial judge has to sift the evidence methodically so that the proper conclusions emerge. That is exactly what HHJ Hallam did. From her meticulous judgment, the following clearly emerge as the main contours of the evidence:

Mary has unfortunately suffered a wide range of emotional and physical harm, though the pervasive consequences of the mother’s FID and the father’s connivance were different in kind to the infliction of direct physical harm.

The stresses and pathological processes present in both homes made it possible that the injuries could have been inflicted in either.

The three adults best placed to assist the court all proved to be thoroughly untrustworthy witnesses.

The neuroscientific and paediatric evidence compellingly described the nature of the head injuries and their probable effects. More exact timing depended upon the clinical picture. As to that, Ms R herself gave a consistent account of Mary’s essential normality over a period of more than 24 hours, both in contemporaneous messages and in later statements.

The four bruises/marks, had they been there, would probably have been seen and remarked upon at or around the point of handover, including by Ms R, but they were not.

The presence of the genital injury was troubling, and the evidence of Ms R’s behaviour in searching the internet and photographing the child was significant.

The bite was also a concerning finding, but attribution of responsibility for it could add little or nothing to the overall assessment.

In my view, the judge’s analysis of this material was beyond criticism. Her application of the legal principles and her factual summary of the key information were impeccable. She patiently and dispassionately weighed the evidence to see where it took her. She did not decide the case on the medical evidence or the nonmedical evidence alone, but carefully examined both before synthesising them to reach her conclusions. She approached the evidence of the parents with appropriate caution. Her findings were in the end heavily influenced by the expert evidence, and rightly so. She also clearly explained why the findings against the parents were of a different order to findings of direct physical injury, so that the former did not in the end inform her conclusions about the latter. Finally, it was a matter for her as to whether she made a finding about the bite mark, and nothing turns on that.

In cases of this kind, the answer is not arrived at by weighing abstract probabilities. In the abstract, it was improbable to one degree or another that Mary would be seriously assaulted by her parents or by her childminder, whatever their shortcomings. But Mary was assaulted, and from that point on the inherent probabilities must give way to any dependable evidence pointing to what actually happened. Fortunately, that evidence was available in the high-calibre expert advice and the contemporaneous information about Mary’s clinical condition. The judge also had the most extensive opportunity to assess the key witnesses. Moreover, in this case, the length of time between the handover of care and the admission to hospital was clearly crucial, indeed it was virtually determinative.

I therefore conclude that these were solid findings of fact that the judge was fully entitled to make. The grounds of appeal and submissions on behalf of Ms R are for the most part arguments that the judge rejected for reasons that she gave. None of them is of any real substance, and they pale into insignificance in the face of matters about which Mr Ekaney has made proper concessions.

For these reasons I am in no doubt that this appeal must be dismissed.

I agree.

I also agree.

The Appellant’s appeal is dismissed.

There shall be no order for costs save that there shall be a public funding assessment of the costs of the Appellant, 2nd, 3rd and 4th Respondents.