C City Council v T & Ors

I have been asked to deliver a short judgment on the outcome of this case by those representing the children, primarily, I think, to assist them and their parents in time to come, and to make it plain to those who are assisting the family or providing services for them, just how it is that they find themselves in the unhappy position which has been identified as this case has unwound. Thus the school, and also the general practitioner, certainly the Local Authority and the children should be appraised of that which has transpired and I will endeavour in what I hope will not be too lengthy or clumsy a judgment to outline that which has happened, that which I trust is going to happen hereafter, and perhaps a nod towards the manner in which future cases might be undertaken, or at least the lessons which can be learned from this case.

The case concerns four children: E, who was born on 10^th June 2009; her elder sister D, born on 19^th November 2008; her elder brother Y born on 16^th December 2004, and the youngest of all, R, born 20^th October 2012. It will perhaps become clearer as I deliver this judgment why it is that E, who is the second youngest, is the first to be identified.

Their parents are T and C. Both parents hail from Romania. They have been described in these proceedings as Roma and even as Roma gypsies. Whether that is entirely accurate or a description with which they are content is not something upon which I have been addressed for they are not leading a gypsy existence. They are living in C and have been for some time and are secure in Local Authority accommodation where they were bringing up their children without incident until 9^th July 2013.

Two days before that, on 7^th July 2013, E suffered burns to her body. It is pertinent to read from the Local Authority case summary to describe how it is that those burns and the consequences of the little girl’s presentation then unravelled and caused this court to be engaged in subsequent care proceedings. The case summary says this:

The school reported that disclosure to the police, who in turn alerted Social Services. The family home was visited. The mother had kept E off school on the Monday; so also did the child not go to school on Tuesday. When the police and Social Services attended at the house nothing more is said on the case summary but that the children were placed in foster care under the terms of a police protection order. Additionally the parents were made the subject of police bail conditions not to have any contact with the children. I will return to that particular issue shortly.

E was examined that night, it seems because of an alert by the foster parent with whom all four children had been placed. I am not entirely sure why it was that the foster parent was the informant, and why it was that it was decided that the child required hospital treatment, because I would have thought that the attending social worker or workers and the police would have examined, at least cursorily, the burns which it is acknowledged E had suffered, but it seems that it was the foster carer who indicated that she felt there should be a visit to hospital.

Having been handed over to the foster carer at 7.30pm, E was taken to hospital where the documents in the case reveal that she was seen at five to midnight. The A&E documentation contains this recital - and I quote - ‘Child brought in by foster parent with burns of various degrees.’ A body map of the child’s body and the examination is on the papers. That description is the first, perhaps minor but nonetheless in my judgment telling, divergence from accuracy that this case thereafter found itself plagued with. The term ‘burns of various degrees’ is not a clinical term with which I am wholly familiar, but it suggests to the uninformed observer that there were burns on this child which appeared to be of differing severity, but that each one was, one assumes, severe. We were to hear in fact in due course from expert clinicians that all the burns that were found on the child were, to use a clinical term, ‘superficial’. In the main and in short summary those burns were to her forearms, one of her wrists and her tummy.

E was kept in at the hospital and the next day she was visited by a senior house officer, Iklaki, who made the following notes:

On that same day E, having been referred to BC Hospital (where it was that the house officer had seen her), was examined by Mr Lewis, a consultant plastic and burns surgeon. The case summary refers to a ‘report’ from that clinician, although the report is itself no more than two paragraphs on one side of A4. That clinician reports that the little girl was unable to give him any history. Nonetheless he then expressed an opinion. I will read that opinion into this judgment.

The Local Authority case summary has subsequently extracted the clinical observations of the burns that E suffered and I will not repeat them in this judgment since I do not think, given that which I am going to repeat, that that is necessarily helpful.

Dr Evans, a consultant general paediatrician at BCH, considered the report of Mr Lewis and examined the child herself and wrote under the heading ‘Opinion and Discussion’ on 11^th July following that examination as follows:

Mother’s explanation for the injury was that E was impatient and had sought to take the eggs out of the water as it was cooling far too soon and, in attempting to do so, had caused water to spill over herself from her dislodging the pan in which they were cooling. Father was not present when that occurred. He came into the kitchen upon hearing screaming and he recorded that he had seen water and eggs and I think also the pan on the floor. That contradiction, if it is a contradiction at all, appears to have alarmed Dr Evans sufficiently to raise in her mind the fact that there was no or no adequate explanation for the injuries seen.

Then on the same day, Dr Debell, himself a consultant paediatrician, examined the child and his handwritten notes are found on the file. It is pertinent to read his findings into the record. He says this:

Thus two clinicians had now, if I may use the term, set a hare running. They were both questioning the information of the parents and they were both doubtful as to the explanation of accidental injury. Indeed Debell had gone very much further by using the term ‘inflicted burns’.

The Local Authority, in the face of such clear clinical alarm, was obliged to take protective measures and, the children having been accommodated, the Local Authority advised or persuaded the parents to give their agreement to accommodation under Section 20 of the legislation. That subsisted until the issue of care proceedings on 2^nd October of last year. I find it hard to imagine the bewilderment and distress that the parents must have experienced at this turn of events. The mother had herself only been released from hospital days before this calamity, she having been diagnosed with leukaemia only months before and having therefore to endure chemotherapy, which had involved a significant stay in hospital from which I think she had only been released on the previous Saturday. Suddenly, her daughter having experienced this thoroughly unpleasant accident (as it turned out to be), the household was visited not simply by social workers but also by the police.

The parents are not by any means fluent in English. Indeed, their grasp of English is, if I may use the term, sketchy. The father, I think, has a slightly better grasp of English than the mother, but whatever the situation a year ago, to be faced with law enforcement agencies and social service agencies and to be told that the children were to be removed forthwith must have been both bewildering and distressing to that couple. They found themselves subject, as I think I have already mentioned, to police bail, which prevented them from having any contact at all with the children. Contact with them did not resume, remarkably, for six months from the initial police protection order and even then it was restricted and supervised and subject to significant supervision and overview from the Local Authority. No doubt in desperation, the parents attempted to see the children in September, or one of them, outside school and were immediately challenged by the police and faced prosecution for breach of their bail, which must have increased their distress and their bewilderment even more.

The case did not stop there. In its initial threshold document lodged with the court when care proceedings were presented, the Local Authority recited the scalds which the little girl had suffered, but expanded the allegations by adding a number of disclosures by way of allegations which had been made apparently to the foster carer, certainly by Y, possibly backed up by one or more of his siblings, and which accounted for a further tranche of allegations of physical abuse by one or other or both of the parents. On 23^rd February 2014 the Local Authority filed a further findings document, which it is appropriate to read into this judgment. By paragraph six of its document the Local Authority recited this:

The schedule is remarkable by its specificity and I have no alternative but to read a good number of the allegations into this judgment. As I say, allegation 1 is divided into five parts within itself which recite the burns which E has suffered. It is followed by Allegation 2, which says this:

To move on through the schedule, number 3, ‘These burns on E were not due to an accident.’ That is little more than a repeat, on analysis, but in different terminology of Allegation 2.

Number 4:

Number 5:

Then number 6:

The remainder of the allegations, 7 through 19, are the allegations of physical abuse to which I have hitherto referred and which I will not read into this record.

It was not until 17^th January of this year that any party considered it appropriate to seek independent clinical opinion as to the injuries sustained by E and it was those instructed by the mother who made the application. It appears that some of the delay in their making a reasonably obvious application was caused by some unexplained difficulty with their legal aid funding. Meanwhile, however, the case had come before three separate judges, all Recorders, when a different number of directions were sought concerning, for example, DNA sampling to establish the sibling relationship between the children, the issue of habitual residence given the nationality of the family and eventually the issue of contact, which the Local Authority sought to refuse. It is appropriate to note that the parents had been unable to see their children for some six months by the time contact was, as I understand it, ultimately introduced.

On 6^th February 2014 Her Honour Judge Watson, the fourth judge to see the case, ruled that the children were habitually resident within the United Kingdom and she gave permission to instruct Mr Cousins, an experienced burns and plastic surgeon, to prepare a report. His report was not received until 22^nd April 2014. Two weeks later, on 4^th May 2014, the report of a Mr Raynor, of a similar discipline to Mr Cousins (they both being consultant plastic and burns surgeons), was also received. Mr Raynor had not been instructed by any of the parties, but had been retained by the police in an advisory role to assist the Crown Prosecution Service in establishing whether or not it was appropriate to charge the parents with a criminal offence arising out of one or more of the recorded examinations, observations or disclosures.

Both of those experts contradicted the opinions of Evans and Debell.

On 12^th June – and I remark to myself mournfully that this was now 11 months after the children were removed – the case came before yet a fifth judge, for the Issues’ Resolution Hearing, that being Her Honour Judge Hughes sitting in London. It is unlikely that that judge was favoured with any reference to the stark contrast between the various medical and clinical reports, or if she was, that she could do very much about it between then and the final hearing.

On 30^th June the case came before me, the sixth judge, on a listing of seven days on the invitation of the Local Authority to make the findings set out on the schedule to which I have referred. Not having seen the case before, I issued directions from my home (I was on leave at the time at the end of the previous week), and through my listings section, I directed that an invitation be passed to the Local Authority to lodge electronically a case summary, a schedule of the findings which the court would be asked to make, expert reports upon which the Local Authority would rely and any lead statement which would give me an insight into the task ahead of me. It was with some alarm, therefore, that I was favoured by emails over that weekend with no less than 1,300 pages of documentation. I was able, however, to identify and digest a helpful and substantial case summary which Mr Miller on behalf of the Local Authority had been good enough to prepare.

On the first day of the hearing I was handed compact disc recordings of ABE interviews – that is achieving best evidence interviews – of E, two interviews; Y of two interviews and D of one. The second recording of the little boy’s interviews was unreadable by the court computer, but I did read the written transcript of that interview, just as I read the transcripts accompanying the interviews of the two other children which I was able to observe.

A brief summary of the progress of the hearing is, in my view, necessary. As the hearing commenced I was invited with the agreement of the Bar to hear from the mother before any of the clinicians, given that that lady was obliged to attend hospital for further treatment of the condition to which I have already referred. She spent the entire afternoon in the witness box responding to questions and giving evidence via interpreter. Tellingly, the second of the two interpreters to assist her explained to the court that the Roma language has a far more restricted vocabulary than the Romanian language itself. This was particularly important, it seemed to me and increasingly to the advocates, when considering the responses in police interview and the apparent contradictions in the responses of the parents. I anticipate that the interpreters at the police interviews were Romanian rather than Roma speakers. Indeed, I was to be informed by the Bar at a later stage in these proceedings that it was thought to be virtually impossible to find Roma translators, an assertion which on analysis appeared to be wrong, but indicative of the source of a good deal of the confusion in this case.

To return to the mother’s evidence, some examples of difficulties in translation were given to the court, as I have said. The interpreter of the mother changed midway through her evidence with my agreement and it became clear that the second interpreter was much more comfortable with mother’s dialect than the first. In one telling incident, the second interpreter explained (after an exchange with the mother when she had appeared to depose that she saw the incident as it happened), that the Mother was in fact simply articulating that she was in the same room - that is the kitchen. That was an example, explained the interpreter, of the difficulty exposed by the more restricted vocabulary which I have mentioned.

I next heard from Mr Raynor, who, as I have said, was not instructed as an expert in the case and therefore was not favoured with a letter of instruction at all, let alone one agreed by the parties. Whilst some of this evidence was not the most compelling or even consistent, nonetheless and in my brutally short summary, he repeated that which he had written in his report, namely that it was entirely probable that the child had suffered from a number of scalds from spilled liquid which had recently heated. Considerable time was spent by the Bar in seeking to establish whether or not the child had been scalded by water or fat. It was unclear to me, and remains unclear, why so much time was spent on that exercise when, once questioning had concluded, the clinician responded to my question that contrary to his assertion in his written report that he could find no injury consistent with splash marks, thus steering him away from water, he conceded that on the photographs of the child’s torso there is evidence, in his opinion, of splash marks. That response appeared to wholly contradict his initial assertion that these scalds could not have come from water. However, he remained consistent in his written view, which had been passed to the police, that the incident occurred on one occasion rather than at different times. In his report he expressed some difficulty with establishing whether or not the injuries were accidental, but in his concluding responses to the court at the stand he said this:

I then heard from Mr Cousins, who had been instructed with the permission of the court, the solicitor for the children being the lead. Mr Cousins was extremely helpful and, if I may say so, down to earth. He made it plain that he was quite satisfied that the scalds came from a single incident, that the incident was likely to have been accidental, that it was highly probable that the offending liquid was water and that he could not entertain any suggestion of inflicted injury. I was particularly surprised to find that in his letter of instruction no reference had been made to the Local Authority assertion that the parents should have sought medical attention for the child’s injuries. Given that no advocate had sought to establish from Mr Cousins whether or not he had any opinion on that issue, again it was left to me to ask what struck me as an obvious question. Was it satisfactory, I asked, for the parents to have immediately applied cold water and then a cold compress from a rolled-up T-shirt soaked in water and then obtain from a local pharmacy an ointment which they then applied? That, Mr Cousins retorted immediately, was entirely appropriate and not, as the Local Authority had insisted, neglectful.

In a last throw, the Local Authority asked Mr Cousins whether he would agree that not taking the child to hospital was neglectful. Mr Cousins rejected that assertion out of hand. He pointed out that the application of cold water was entirely appropriate and may well have lessened the severity of the scalds. He also pointed out that the burned skin covered less than one per cent of the child’s body and that the burns were entirely superficial. The application of water would, he said, have caused an initial increase in the pain experienced by the patient, but thereafter would soothe the wounds. He made a particularly telling comment that it was quite possible that the temporary increase in pain caused by application of the water could provide an explanation for the little girl’s assertion that, ‘Daddy did it.’

That observation takes me to the very poor quality of some of the ABE interviews. I say that because E was not interviewed until September, two months after the event. Both of her interviews were wholly unhelpful. Her grasp of language was extremely poor and her retorts were in the main unintelligible. Although a delightful little girl, appearing to suffer no physical consequences or indeed emotional consequences whatsoever, she was unable to assist the interviewer with any clear or indeed any description of what had happened either coherently or at all. She was able on being reminded that her arms were injured (by a photograph being shown to her) just to recall that eggs were involved and that she came into contact with hot water, but the mechanism was quite obviously beyond her or beyond her descriptive powers. She appeared to be wholly confused by some of the questions put to her and, on my analysis, could well have been talking in the present tense when challenged about cooking and eggs rather than the past.

Her brother and sister had themselves both been interviewed very much earlier. The first of the two interviews with the brother produce a confusing description of the incident since he had been in the garden and appears to be telling the interviewer that he had been undertaking some form of gymnastics on a chair. As I say, the second interview in which he is said to have made disclosures of physical abuse was unreadable on the court computer. However, the transcript which I have read is contradictory, asserting for example that when he suffered a nosebleed, on the one hand his father had inflicted it, but on the other hand it was accidental. None of the vague allegations which he made were accompanied by any form of objective or independent evidence since there was no evidence of any mark which may have been inflicted by, for example, a belt or as a result of kicks or punches; nor was there any evidence that either parent had stamped on the little girl’s feet. Marks which had been found on the child’s feet were attributed immediately by the examiner to marks from her shoes. At one stage the boy, who responded through a Romanian translator, was even questioned in the form of double negatives, which were not only confusing to me as the reader of the transcript, but no doubt wholly bewildering to the child.

Tellingly, the most persuasive interview was carried out with D, the second eldest of the siblings who appeared, certainly intellectually, older than her brother, of a significantly more mature demeanour and with a good command of the English language. During her interview she gave wholly confusing responses in connection with the water scald, but she was pressed by the interviewer, who had got no further with the scalding incident. To explain the confusion, rather clumsily I am sure, I should say that at one stage she – that is D – was in the room; on another occasion she was not; then her grandfather was; then her father was; then they were not; then they were in the garden where she was. In any event she was wholly unhelpful on the mechanism of how it was that her sister had come into contact with water.

She was pressed by the interviewer to reveal excessive physical chastisement by her father or worse. The interviewer inquired of the child as to the manner in which she and her siblings would be reprimanded by their father. Her answer was perfectly clear. He would, she said, sit them down and speak to them and correct them verbally. It was clear from the tenor of the interview that the interviewer pressed the child more than once in what was perhaps an understandable attempt to extract some evidence to support the assertions made by her elder brother. D, however, would not be swayed and I am wholly convinced by her responses. There was nothing in her disclosures which was indicative of any form of physical abuse by either of her parents.

It is disappointing that, given the proximity of that interview to the removal of the children, but before the Local Authority expanded its allegations, inadequate attention seemed to have been paid to, first, the lack of any forensic evidence to support the brother’s disclosures and ultimately, his sister’s clear responses, within days of removal on that issue.

I return then to the progress of the case before me. Neither Dr Evans nor Dr Debell came to the stand. I am not entirely sure which of them was on holiday and which would not respond to communications from the Local Authority, but whichever and whoever it was the Local Authority found that it would receive no assistance from either of them. I have to say that I am extremely disappointed that neither of those two clinicians seem to have cooperated with the Local Authority once their reports had been put before the court given that it was their evidence and their reports which had caused the Local Authority to pursue this unhappy case. Effectively their evidence had been wholly and persuasively contradicted by Raynor and Cousins and I am quite satisfied that Evans and Debell were wholly mistaken in their diagnosis and analysis. Equally, I am wholly satisfied that, given those opinions, the Local Authority found itself obliged to undertake proceedings. However, lessons have to be learned from what then transpired.

The Local Authority sensibly reconsidered its position after the conclusion of the evidence given by Mr Cousins and, having considered the two reports to which I have referred – that is Raynor and Cousins – and no doubt the quality of the ABE interviews to which I have referred. A very helpful and sensible view was taken after Mr Miller was able to give advice to those instructing him that the case could not proceed further and no findings should be sought against the parents. None of this, however, addresses the aftermath and it is important both that the issue of rehabilitation and the lessons which arise from this case are articulated.

First, as I have indicated, no less than six judges have had this case before them. That lack of continuity must speak for itself and exposes the inability of any of the earlier five judges to have the opportunity to analyse the issues which should have become plain to the parties very much earlier than they did. The Judge, however, is not a forensic ferret. It seems to me that all parties bear a responsibility to highlight issues and contradictions and bring them to the attention of the court as a collaborative exercise at all hearings. It is not possible for the Judge, already overwhelmed by a substantial case load, to tease out in case management, areas of contradiction or of unsupportable assertion when there is no navigation aid or alert.

Secondly, I am bewildered by the delay in the request for independent clinical evidence given the assertions made by the treating clinicians which, in some instances defied common sense. Once the report had come in from both Raynor and Cousins there should, in my view, have been some consideration of a joint meeting between all the clinicians, whether face to face or by telephone conference, to establish common ground and areas of disagreement and reasons. Instead it was left to the fact finding hearing no less than a year after the incident for those issues to be exposed, rationalised, understood and ultimately dismissed. The findings by Mr Cousins are so clear, and even to a lesser but nonetheless persuasive extent are those of Mr Raynor, and they contradict the treating clinicians so fundamentally that the parties should, in my view, have considered making immediate application to the court for further directions. They should in any event have convened an advocates’ meeting and all the advocates should have satisfied themselves that they had seen the ABE interviews, (which at least one advocate had not seen when the case came before me), and were aware of the stark differences of opinion expressed by the court-appointed expert. The Local Authority legal department might well have considered seeking advice from trial counsel on evidence.

I accept that in the real world where local authorities are under-resourced, where trial counsel are frequently not identified (given their own commitments) until late in the day, where judges glimpse a case in overstretched lists but have no time to examine all the issues and where on the face of it medical personnel have sent up a ‘maroon’, proper analysis does not take place until to the fact finding hearing, but that is no comfort to the parents, no comfort either to the children, who have faced unconscionable delay in the case, and no reassurance to the wider public about the proper management of this case. To have reached the current position, that of an invitation to allow the Local Authority to withdraw the case exactly one year and one day after the children were spirited from their home, is a dreadful reflection on the current state of the Family Court.

Of course the anxieties which are apparent, I am sure, to all parties in the case do not stop there, because these children have lost a whole year of their lives with their parents. I gather that over these last 12 months they have effectively lost much of their understanding of the Roma language and even possibly its culture. They have been cared for in a loving environment by a committed foster parent, but that environment is entirely alien to their parents and is plainly within a community and within a language which is completely different to that of their ethnic and cultural background and upbringing. The parents have little grasp of English and their children now have either little or no comprehension of Romanian. For that reason I have sought with the cooperation of all parties to oversee a rehabilitation plan and supporting services for this family before allowing the Local Authority to withdraw its case and shed its parental responsibility for the children. This has meant daily visits to the case, before me, with the attendance of social work personnel, the parents and counsel.

The parents have to be commended for their restraint and their willingness to work with the Local Authority despite the grief that they must have experienced and no doubt still experience over the loss of their children and a likely feeling of injustice which would be inevitable.

I also commend the Local Authority and I am very grateful to Mr Miller of counsel for the efforts which have been made in response, following the effective withdrawal by the Local Authority, to my daily demands for specifics rather than generalised assurances of assistance. These are to include counselling for the children and immediate and funded language tuition, as well as a phased rehabilitation plan, the cooperation of the foster carer and constant attention from social workers, who will visit, advise and befriend the family. I am most grateful too to the representative of the Roma Project, who was good enough to attend before me yesterday when he outlined the specific resources which are to be made available to the family, which is already known to that project.

Finally, I am grateful to all counsel for the restrained approach which has been observed in their closing submissions following the Local Authority’s recognition that the findings against the parents could not be supported.

The mother seeks positive findings. E: ‘the burns were caused by water from a pan which spilled over E as she was unbalancing a pan of boiled eggs which had been left to cool’. The answer is that I do not know and neither does Mother. Mother’s back was turned. I would prefer not to revisit the mother’s evidence, save to say that she quite clearly said that she turned to cut a loaf of bread and did not see what had happened. I am sure that if she did see it she would have stopped it and so I am unable to make the positive finding that she seeks. All I say is that which Mr Cousins says, namely that it was an accident, whatever it was, and that I think deals with F as well as G and H.

I have already dealt with I. ‘The burns are over a relatively small portion of her body’. That is misleading. It is one per cent. That is significantly less even than ‘relatively small’.

J: ‘the accident was a relatively common domestic accident of a type frequently seen in households’. I cannot make that finding. I am not a household adjudicator. I am an adjudicator of legal matters. I neither possess and I have not been addressed upon statistics on water accidents in households. I cannot assist with that.

K: ‘inconsistencies in the account the mother gave were understandable in the context of the language difficulties’. Have I not dealt with that?

L: ‘the first-aid applied over the counter at a local pharmacy is entirely appropriate’. Have I not dealt with that?

M: the fact that ‘the children had no direct contact with their parents for six months’. Have I not said that?