In the Matter of L (A Child)

MR JUSTICE HOLMAN: This case was listed before me this week for a so called “final hearing”. Until now, the case has been case managed by an allocated district judge, and my understanding is that he had been scheduled to hear the “final hearing”, but it happened that my own listed case this week was vacated for some reason and so I had more time available than the district judge. It was in those circumstances that judicial continuity was broken and arrangements were made by the court administration to transfer the case for hearing by me, here in Preston this week.

As I will explain, I have not conducted a “final hearing”, and effectively this hearing has been reduced to an interim hearing, culminating only in the giving of directions.

It has become apparent to me during the course of the last few days that, to date, the case may not have been treated by the local authority as having the potential gravity which, in my view, it does have.

The child concerned was born in August 2010, therefore she is now aged six and was aged five last March. Sadly, the relationship between her parents (both of whom are in court as I speak) broke down several years ago. She had then lived for several years with her father under an order made in private law proceedings, and she had seen very little of her mother.

On Monday, 21 March 2016, her father took her to school. She had a very obvious large swelling on her forehead above her right eye. Several members of staff asked her how that had occurred or been caused. She is reported as giving answers which to some extent conflict, which may not be surprising, bearing in mind that she was only aged five at the time. In one reported answer she is recorded as saying that her father had pushed her, but she was not allowed to tell about it.

The child was taken to hospital, where a number of marks or abrasions were observed on a number of different parts of her body. As well as the large swelling above her right eye, there were marks to her neck, marks to both her arms, and other marks on her body. With the possible exception of the large swelling to her forehead, none of these marks were intrinsically serious injuries. They no doubt healed very rapidly, with no long term effects whatsoever.

However, a report from the paediatricians who examined her at the hospital that day is to the effect that the marks, considered as a whole, are consistent with non-accidental injury. I will return shortly to say more about those marks.

The upshot was that the child did not return to live with her father, but was voluntarily accommodated under section 20 of the Children Act 1989, under arrangements made by the local authority to foster her. Quite an appreciable period of time then elapsed before these care proceedings were commenced. That had the effect that it was not until 22 June 2016 that the father was required to make, or did make, a written statement explanatory of what had occurred on or about 21 March 2016.

The care proceedings have somewhat wended their way since then. The statement that the father made, and the explanations which he gave, has never yet been shown to the paediatricians who examined the child on 21 March 2016 and therefore we do not, as of today, know their comments upon it.

It has also clearly emerged, and the father frankly admits and accepts, that he has had in the past, and may still have, a considerable problem of anger and temper and controlling it. However, there has not to date been any assessment of the father in this regard by an adult psychologist or some such person. Instead, the only independent expert to date has been a child psychologist, Dr Rasha Ravenscroft, whose focus has not been upon the father and his personality or functioning, but, rather, upon the functioning and needs of the child.

Consideration has, of course, been given to whether the child could return to live with either of her mother or her father. Until this week, the mother has advanced the request, to put it no higher, that the child should move, or return, to live with her. That appeared not to be realistic. It is strongly resisted by the local authority and also resisted by the child’s guardian. The mother lives in [place redacted], where she now has another child, a son aged two.

During the course of this hearing yesterday, the mother made a very hard and very courageous, but realistic, decision. Her counsel, Miss Sarah Blackmore, expressed it that the mother felt in a terrible position of having to “choose” between her two children. That is not in fact the reality at all. The fact of the matter is that the life history of, and circumstances of, each of her two children have been very different. Her son has always lived with her. So far as I am aware, he is well bonded with her and is being appropriately cared for by her. The fact of the matter is that it is now several years since her daughter lived with her, during which, indeed, they have seen very little of each other until recently.

Further, the reports of the psychologist, Dr Ravenscroft, clearly indicate that as a result of her own history and life experiences, the daughter now requires particularly high levels of parenting. This is illustrated by what the psychologist wrote in a letter dated yesterday, 1^st November 2016, in which she said:

“I would like to reiterate that [the child] will require her carer(s) to be highly adept at recognising her needs and to offer a high degree of nurturance and sensitive parenting. She will also require a high degree of consistency, structure and routine...”

In other words, the current position of the child is that she now requires especially high levels of parenting.

The mother has accepted that, realistically, into the foreseeable future, she would not be able to meet those special needs of the child as well as continuing properly to parent her son. Therefore, the order that will be made today will record the position of the mother as being that she accepts that she is not in a position in the foreseeable future to care long term for the child, and no longer puts herself forward as a carer, nor seeks further psychological or similar assessment of herself. Of course, contact between the child and her mother, and indeed her half-brother, will remain very important. Nevertheless, I can proceed on the basis that, into the foreseeable future, a return of the child to live with her mother is now effectively ruled out.

The very live question that remains is whether she may return to live with, and be cared for by, her father. It is very striking to me that the order made after a case management hearing as recently as last week, on 26 October 2016, records the position of the local authority as being:

“The local authority seek a twelve month supervision order with immediate rehabilitation to the father...”

The child’s guardian strongly disagreed with that position of the local authority. The guardian considered that, in any event, the child required to be the subject of a care order into the foreseeable future, with the added responsibilities and duties that such an order imposes upon a local authority. More fundamentally, however, the guardian has many reservations about the child returning to live with her father, and certainly not “immediately”. As I understand it, the guardian does not yet rule out that the child returns to live with her father, but feels that a great deal of further investigation and work would be required before that outcome could safely be agreed, or ordered.

I have to say that I very clearly and firmly agree with the guardian on this issue. In fairness to the local authority, I record that, during the course of this hearing, they have responded very constructively to what the guardian said in her report dated 31 October 2016, and indeed to various observations that I have made during the course of this hearing.

I wish to stress very strongly indeed that at this hearing I myself have decided absolutely nothing at all, save with regard to the future progress of these proceedings. I have heard no evidence and I make absolutely no findings of any kind whatsoever with regard to the facts. However, I am very clear that it would be dangerous and very irresponsible simply to return this child to the care of her father in the immediate or near future.

As I have said, the opinion of the paediatricians on 21 March 2016 was that the overall pattern of marks and bruises upon this child were not consistent with the bruising pattern seen in an accidental injury in a child of this age. Further, that the marks upon her arms and shoulders are consistent with grip marks.

At the moment, the father’s account in relation to those injuries on pages 8 and 9 of his statement of 22 June 2016, and now at bundle pages C54 and 55, is to the effect that he and the child have a relationship which “involves a lot of fun and some horseplay”. He accepts that he is a very tall, well-built and heavy man and says:

“It may be that I have gripped her too harshly, but it was never done deliberately or with any malice or intent.”

He says:

“If I have caused any of those injuries, then it has been done in horseplay or by me being too rough. I repeat that I have never intentionally hurt my daughter.”

As to the bruise on her head and swelling on her forehead, he gives an account of her having tripped and hit her head on the wooden frame of a settee in the lounge.

In my view, marks and injuries of this kind require very careful investigation and fact finding by a court. As I have said, in themselves and with the possible exception of the swelling to the forehead, none of them are, or were, in the least serious. However, a very fine line indeed, and frankly a large element of luck, can separate marks of this kind to a child from very serious, if not catastrophic injury.

The father says that he and the child have a great relationship with “a lot of fun and some horseplay”. That may indeed be true, but this child was regularly seen at school and it was on this date (Monday, 21 March) that this range of marks was observed upon her. That may indicate that on, or over the weekend before, Monday, 21 March 2016, something occurred which was outside the scale and range of their normal “lot of fun and some horseplay”. Further on, the father says, “It may be that I have gripped her too harshly,” and he says, “If,” (I stress the word “if”), “I have caused any of those injuries, it has been done in horseplay.”

I wish to stress very strongly indeed that there must, in this case, be a proper fact-finding hearing, at which the correct burden and standard of proof is of course applied and all the evidence is considered by the court. I am not today making or indicating any finding at all, but it is sufficient to say that I, today, have a hunch that the father knows a lot more about the causation of those marks than he has yet revealed. It would not be safe to allow this child to return to live with this father unless and until there is much greater clarity about what happened.

Further, the father himself admits that he was an abuser of cannabis. He claims no longer to ingest cannabis, but it is important to establish what role, if any, the effects of cannabis may have had in the causation of the marks to the child.

Yet further, the father frankly admits that he has a history of anger and temper, and indeed has asked to be able to participate in forms of anger management treatment or therapy.

The concern in this case must be that there was a loss of control on, or during the weekend before, 21 March when something happened, which mercifully caused no significant harm to this child, but which might have led to very great harm indeed.

Further, last week, on 28 October, there was a “family group conference” in Blackpool, attended by the father; his own sister (who lives far away in Southern England); their own mother; and also the father’s current partner. There were two social workers present, but at a certain point the social workers went out of the room.

Yesterday, the sister sent a letter. I have, of course, no idea whatsoever as to the truth or otherwise of that letter. It may be that the sister has her own axe to grind against her brother and has told a number of untruths or, at any rate, exaggerations. Nevertheless, taken at face value, the letter makes very concerning reading indeed. It refers to “the violence and abuse the family has suffered by [the father] in the past”. It describes an angry outburst and loss of control by him directed towards his mother and sister at that meeting last week. It asserts that their mother said to the social worker:

“You have now made me feel really unsafe again by putting me in a room with him. For four years I have been safe from his abuse and violence.”

It asserts that the sister’s own daughter, aged four, was left scared by the meeting and referred to the “horrible shouting man”.

I stress that I have no position whatsoever as to the truth or otherwise of that letter, but it cannot be disregarded at this stage. If what is said is true, it tends to indicate that the father is currently still prone to outbursts of uncontrolled, or uncontrollable, temper and anger.

Although Dr Ravenscroft is a child psychologist, she has commented in her letter of 1 November 2016 that:

“In my view, anger difficulties, especially those that have existed over a prolonged period of time, are a surface problem arising from emotional psychological difficulties and personality factors. With this in mind, it is the underlying root cause of the difficulties that would need to be addressed, rather than the anger difficulties themselves.”

It seems to me crystal clear in this case that before this child could safely return to live with her father, and maybe even have periods of overnight staying with her father, there needs to be a much more thorough investigation into, and much more clarity about, first, the events which led to the marks and injuries observed on 21 March 2016; and, second, his underlying emotional or psychological state, and whether or not he can be helped to control his temper and anger. As things stand, quite frankly, it would be a far too risky and dangerous leap into the dark simply to allow this child to return to live with her father. I stress yet again that I do not rule that out in the future; that will be entirely a decision for another judge on another day.

However, for all these reasons, I have been totally unwilling to deal with this case as a “final hearing” this week. In my view, there needs to be a fuller paediatric consideration of the marks and injuries that were observed on 21 March 2016. It happens that there are some excellent colour photographs of them and, in my view, an independent paediatrician should now be jointly instructed to review that whole aspect of this case. In tandem with that, although it may take longer, it is to my mind clear that the father needs to be seen by an adult psychologist, who can assess him and report as to his personality and functioning.

For these reasons, this case has to be adjourned again from today. Of course, I regret the delay, especially as the child remains fostered, but it is purposeful delay which may yet, in the end, make it possible for the child to return to live with her father.

I am a visiting judge from London. I will not be sitting again in Preston for a very long time indeed, if ever. This case must clearly now move to a local judge, but at the level of a circuit judge, to whom I will allocate it.