A Local Authority v C & Ors

This matter returns to court following an application by the Local Authority (‘LA’) for a re-hearing concerning findings of fact I made on 11.2.11, as set out in the judgment of the same date (A Local Authority v C [2011] EWHC 231). The proceedings concern a girl A born on [a date in] 2006, now 5 years and a boy B, born on [a date in] 2008, now 4 years. Their parents are C and D. I shall refer to them in this judgment as the mother and father.

At the hearing in February I concluded that I could not be satisfied, to the required standard, that A had a laceration to her hymen. One of the main reasons why I could not be so satisfied was the complete failure of both experienced consultant paediatricians who carried out an examination of A under general anaesthetic to follow their own guidance or well recognised national guidance in relation to recording the results of that examination.

I heard the welfare hearing over 7 days from 28.9.11 to 7.10.11. In the judgment I handed down on 31.10.11 I concluded that the children could be rehabilitated home to live with their parents. That conclusion was contrary to the plan proposed by the LA (supported by the Children’s Guardian) for the children to be placed for adoption. A rehabilitation plan was put into effect and the children started having contact at the family home. The plan was to place the children at home with their parents full time from 18.1.12.

Following concerns raised by the foster carer in early December 2011, in relation to bruising on A, a child protection medical was carried out by Dr S (Consultant Paediatrician) on 9.12.11. Part of that examination included an examination of A’s genitalia. That examination concluded there was evidence of a transection of the hymen; the medical opinion was that it related back to the occasion I had been considering at the hearing in February 2011. That opinion has not been challenged at this hearing.

The two medical experts, Dr Hanmer and Dr Hobbs, who had given evidence in the February hearing, were instructed again to report on the new material.

In addition to the fresh medical evidence, it was also discovered by the LA in early December 2011, that the father had been convicted of a number of offences on 26.9.11 (2 days before the commencement of the welfare hearing) and had been given a sentence of 180 hours community service. It is accepted by the parents this information had been withheld from the court and the other parties. It is accepted that this fresh information is relevant to the credibility of the parents.

During this hearing I have heard evidence from Dr Hanmer and Dr Hobbs, both experienced Consultant Paediatricians, the allocated social worker Mr M, a contact supervisor and the parents.

I am very familiar with this case, having conducted two previous hearings, which lasted a number of days as well as the intervening directions hearings. I have had the enormous benefit of experienced counsel conducting the case for all the parties, which has assisted me greatly. They have all prepared detailed written closing submissions, which I have carefully considered and taken into account in the preparation of this judgment.

This judgment should be read together with the judgments I handed down on 11.2.11 and 31.10.11.

The LA filed a schedule of findings for the purposes of this hearing. That has been further revised during this hearing. The essence of the findings now sought are that A had a laceration to her hymen in September 2009, that injury (together with the other injuries I found) were caused by an abusive act whereby an attempt was made by the father to insert his penis into A’s vagina prior to the hospital admission on 15.9.09 and the mother failed to protect A.

There were other matters raised by the foster carer in relation to A, which are not relied upon by the LA, and have formed no part of the relevant evidence in this hearing.

I have not set out the law again. It is agreed by all counsel that the matters set out at paragraphs 105 to 107 in the February 2011 judgment are still applicable and should be read into this judgment. I have had regard to all the matters set out in those paragraphs in reaching my decision.

In particular, I have had regard to the principles set out in R v Lucas in relation to lies. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

Although the background was set out extensively in the February judgment I will set out the relevant parts again for ease of reference.

The parents met and commenced their relationship in December 2005. The father comes from a background where there has been historical involvement with social services. Whilst there is material in the court bundle that covers those historical matters, the local authority did not rely on it in the previous hearing other than by way of background.

The family were referred to social services in March 2008, following an incident when the parents argued and the father was overheard referring to the mother threatening to put a plastic bag over A’s head. The family was visited and no further action was taken.

From early 2009 A was being investigated for developmental delay following her two year developmental check on 31.12.08. With her mother she attended the speech and language therapy service for an initial assessment on 2.4.09 and was seen by Dr Croft, Consultant Paediatrician at the X Hospital in the child development clinic on 22.4.09. A further appointment was made for 6.7.09 which A failed to attend.

There has been further investigation within these proceedings regarding A’s development and a report by Dr Woodman and Dr Clemente concludes that A fits the criteria for childhood autism and that she has very significant developmental delay.

Other than these matters this was not a family who had come to the attention of social services prior to the events of September 2009.

At 19.34 on 15.9.09 the father telephoned the NHS Direct helpline for advice because A had suffered an injury and was bleeding from her vaginal area. There is a transcript of the telephone call in the papers, I heard the live recording at the February hearing. During this conversation the father explained that A had slipped and fallen in the shower/wet room, which served as the family bathroom. After she had been picked up by the mother she noticed that A was bleeding from between her legs. The father commented during the telephone discussion that he thought A had damaged her hymen. Initially the advice was to take A to see the GP in the morning. However, subsequently the advice changed that A should immediately be taken to hospital.

The account of events leading up to the injury to A comes entirely from the parents. This is contained in their witness statements, a series of police interviews, the medical records and their oral evidence. Their account is that she was in their care all day, save for a period at nursery in the afternoon. When it came to bath time in the early evening the mother was bathing A and B in an inflatable paddling pool and shower in the wet room/shower whilst the father was in the parents’ bedroom which is adjacent to the bathroom. They had to use a paddling pool as the bathroom had been adapted to a wet room/shower for the previous occupant and the children preferred to bath rather than shower.

Both parents say that as the mother momentarily leaned out of the bathroom door to speak to the father A screamed. The mother turned to see A lying on the floor on her side. A was crying. The mother describes wrapping her in a towel, picking her up and giving her a cuddle and put her on her hip. She said she carried her out of the bathroom. She describes feeling something warm and wet on her shirt and realised that A was bleeding.

She took A into the bedroom and calmed her down. In her statement the mother says “I gently dabbed A’s vagina with the towel and noticed that she had a small cut in the middle part, between her wee hole and part of skin going up to her bum. It looked red and there was blood coming from it.” She called the father over to look. He said he went over after he had finished dressing B and saw blood in A’s genital area. The father phoned NHS Direct for advice; he already had the number on his phone. The bleeding eased and the mother put A into her pyjamas. She was aware the father was calling NHS Direct. Both parents said in oral evidence they were shocked and scared by the injuries to A.

Whilst the father spoke to NHS Direct the mother describes the father coming in and out of the room whilst he was on the phone. She said she put B to bed and at 8pm had another look at A, she took her nappy off and had another look at her vagina. In her statement the mother states “There was a small amount of blood there but it seemed to me to be drying up and crusting over.” She put a clean nappy on her and put her to bed.

The mother went to have a shower and tidied up the bathroom. The father interrupted mother’s shower and said they had to take A to hospital. The mother took A to hospital. She was accompanied by the paternal grandfather and a friend who drove them there. The friend and his girlfriend just dropped them off. The father said in his statement he did not want to go to the hospital as he did not want to be asked any difficult questions.

The hospital records record the mother and A’s arrival as being at 20.35. They were first seen by the triage nurse at 21.40. Prior to that NHS Direct had spoken to the triage nurse at 21.30 where she records “they have concerns with what dad was saying to them they are planning on doing a CSF [Children Schools and Families] referral”. The referral from NHS Direct to CSF is in the bundle. The hospital clinical notes record the examination conducted by the triage nurse as “clot around vaginal area, streaks of blood in nappy, no active bleeding”. The history given by the mother and the grandfather to the triage nurse is recorded as “was in bathroom with mum + one year old brother, mum turned round to talk to dad, A started to cry, mum turned back A was on floor (mum thinks she slipped as floor was wet) she may have done “SPLITS” with legs. Mum lifted her to comfort noticed she was bleeding unsure if from PV or rectal. Had put her to bed spoken to NHS Direct who advised to bring her in”

A was next seen by Dr E (A&E Doctor). The history is recorded as being consistent with what had been said before. On examination the notes record ‘child looks tired/upset. No obvious bruise or bony injuries on limbs chest/abdomen. Genitalia external examination, no obvious bruise/swelling. Blood stained nappy. No active bleeding.’ The doctor called for a 2nd opinion.

A was next seen by Dr F (Paediatric Registrar) at 23.20; she completed a Paediatric Assessment Form. The mother and grandfather give a history to the doctor that is consistent with previous accounts of what happened prior to coming to the hospital. A description of the bathroom is given and it is recorded “no toys around where A fell”. In her oral evidence in February Dr F believed that was in response to a direct question from her. In the section dealing with family history the doctor records “mum has stutter – appears very nervous – asks me if she “is in trouble”’. In relation to A the form records “Playful when in playroom. Appropriate interaction with mum. Upset when genitalia examined or attempts to do general examination”. The genital examination is recorded as ‘no bruising to labia or legs. No internal haematoma seen. 1cm tear seen at 6 o’clock oozing but not actively bleeding”. This description is accompanied by a diagram. The form records “injury to genitalia – tear visible? mechanism of injury”. The plan is “Gynae review, Admit for anlagesia + observation, Review by consultant”.

A was reviewed by Dr G (Obs and Gynae Sp Registrar) just after midnight at the request of Dr F. She records the history from the mother as being consistent with what had been given before. Her examination records “dried blood on mon pubis - and around anus - appears obviously distressed – child covering her genitalia with both hands – no obvious bruising – deep midline tear posterially from 6 o’clock of introitus to 1cm into posterior fourchette – no active bleeding at present” Dr G drew a diagram of what she observed in the notes. The plan is then recorded as “Admit for observation – no need for surgical intervention – HX [history] give by mother does not co-relate with extent of injury or causation of injury ?NAI”, she also notes that she will inform her consultant. In oral evidence she said she put NAI as she felt the tear seemed deep and there was too much blood and felt it should be pursued.

At some point around midnight the grandfather left the hospital. A was admitted to the children’s ward at 3.10 am on 16.9.09, her mother remained with her.

Dr F spoke to KK (Named Nurse for Child Protection) at about 9.30am and described the injury and the parents’ account.

Some time before 11am Dr C (Consultant Paediatrician) saw the mother and A on the ward round, the notes record she reviewed the history with the mother and explained that photographs need to be taken. It is noted verbal consent is given. In her letter dated 2.10.09 she says that she had a quick look at A, noticed bruising on the mons pubis more on the right than the left side and some blood on the nappy. She says she did not do a sexual abuse examination, but requested one to be done by the Child Protection team/Community Consultant. She told the mother that decisions on further management would be taken after the psychosocial meeting and further examination.

Dr Reiser (Designated Doctor for Child Protection) records in his statement that he was first made aware of this case by K and he suggested photographs were taken, which would avoid the need for further genital examination. No time is recorded as to when this conversation took place.

Dr C had requested photographs, they are recorded as being taken at 10.47 am and the mother gave written consent. The mother describes in her statement that she was asked to hold A down on a bed whilst a man took photographs of her.

At 11am the mother is spoken to by Dr J (Paediatric Specialist Registrar) and Sister S as it was reported she had no idea what was going on. The purpose of the discussion was to explain to the mother about the need to consider the injury itself and how it occurred and the need for a further examination of A. The mother became upset. In her oral evidence Dr J said she did not regard anything unusual about this meeting with the mother.

Dr Reiser reviewed the photographs. This is not recorded in the clinical notes but appears in his statement and in a letter dated 31.10.09. He says he was suspicious that there was a right lateral labia minora tear present, not posterior fourchette as described in the notes. The recorded history taken 3 times was implausible as a cause of the reported injuries. In his oral evidence he accepted the reference to the tear was mistaken. His advice was that child abuse was possible so full investigation was needed. He understood there would be a formal child protection medical after CSF referral.

CSF received the referral from K, no time is recorded for this although a conversation is recorded as taking place between K and CSF at 12.30 when reference is made to a previous history of domestic violence and the incident with the plastic bag.

Dr H (Consultant Community Paediatrician) was on duty to deal with child protection referrals. She has been a Consultant for six years. She was informed about the case at 12 noon on 16.9.09 by K. The details are recorded on a Laming Form. This form is to record face to face discussions and telephone conversations, when medical notes are unavailable.

At about 12.30pm the father came to the hospital and took over from the mother, who went home prior to Dr H’s examination of A.

At 1.40pm A was seen by Mr I (Obs & Gynae Consultant). His note records ‘No active bleeding. Child playing happily [with] toys. [Please] let me know if change in status’. K also made a note of this visit and records the father saying there were toys on the floor and the mother gets confused. The mother was present.

Dr H discussed the case with Dr Reiser just prior to conducting her examination of A in the Bramble Suite. There was discussion about the number of examinations A had already had, the possibility of abuse as the history was not compatible and had changed, Dr Reiser advised Dr H that she could conduct the examination alone although she was unhappy about this.

Dr H conducted her examination between 1.45 and 4pm. She completed a child protection medical report as she was conducting the examination and completed the handwritten notes later that day. She subsequently dictated her notes which were typed up on 18.9.09. The father was present together, with K and Dr S. Dr H took the history from the father, which was consistent with what had been said by the mother before. When it came to the physical examination Dr H’s typed notes record ‘Once A was moved to the examination room she appeared less content and was extremely reluctant to be examined, clinging to her father. [Her] T shirt was not removed but her trousers and shoes were. No bruising or other skin markings were noted. When her nappy was removed and her legs separated her genitalia were very briefly examined while she sat on her father’s lap. A view of this area was obtained for approximately two second while A was crying and struggling a little. A large, more than 2cm, bluish bruise was noted on the right labia majora in the posterior position. A raw, open cut directly at 6 o’clock through the posterior fourchette for approximately 1 cm was noted. It was not actively bleeding but there was a little dry blood over both labia major and minora. The hymen opening looked normal, although it was not directly focussed on for more than half a second’ Dr H notes that on examining the photographs that had been taken earlier that day she considered she had a better view of the vaginal orifice as there had been no blood covering this area. Dr H also drew a diagram of what she had seen.

K records in her statement “I had a brief glimpse of the genitalia and observed bruising externally on the right labia and the outline of a small wound above the anus. This glimpse lasted approximately 1-2 seconds at most”. In her oral evidence she said she did not see the hymen and there was no discussion about the hymen.

Dr H continues in her report to say as follows:

A is not at any risk from her parents, who have acted appropriately. She is therefore safe to return home to their care.

However, when examined, a little blood staining was noted and the laceration still looked raw and open. A should therefore remain in hospital for a further night. The timing of her discharge on medical grounds should be a decision for the Acute Paediatrics Team.

A appears to have some developmental difficulties requiring speech and language therapy and one to one support at nursery. A copy of this report should therefore be sent to her paediatrician at the clinic and to the health visitor, with requests to follow these concerns through.

A social worker, and possibly a health visitor, should look into the family home and support the family financially or otherwise in making it safer for young children.

Dr J was not present during the examination but records a summary of a conversation she had with Dr H as follows: “Assessed by Dr H – see Full Medical Report – split at 6 o’clock – still bleeding – bruise on right – hymen not visualised as quick examination and child distressed”. Her record then continues with a summary of the plan. In her oral evidence Dr J was asked about this record and whether it was a verbatim account of what Dr H said, or a summary, she said “the split at 6 o’clock” were definitely her exact words, “hymen not visualised” was her summary but maintained those comments were made to her, Dr H was still writing her notes up at the time.

There is a note in the medical records of a nurse changing A’s nappy at 4.45pm and there was a ‘small amount of blood’.

The social workers who attended the hospital (O and P) as the examination concluded arranged with the parents to visit the family home at 12.30 pm the next day.

Dr H was asked in oral evidence why she had not used a colcoscope for her examination, she said “By the time I saw her, she had been examined previously 4 – 6 times….she had been up, a 3 year old girl had been up to midnight in a strange place, she was very reluctant to co-operate.” She confirmed it was a deliberate clinical decision not to use this, because of the distress to the child.

When she was asked about the length of her physical examination of A she said it was “…very brief. She was obviously distressed. Clinging to her father. She got into her position. She was curved on her father’s lap, her back to his front….I separated her legs and had a look, lasted about two seconds. I did specifically look at the hymen, very brief, I knew that was important. As soon as she started making a fuss, moving and trying to close her legs, I stopped.” She said she did see the hymen, when asked whether it looked normal she said ‘I didn’t think in the circumstances I could describe it as more than that, having looked at it so briefly, it looked like what I would expect just a small hole, just in the middle of what I was looking at, it was small.’ She said as far as her “extremely brief” examination allowed the hymen looked normal. She said her view of the hymen was clearer than on the photographs taken on the 16th, as her view was not obscured by blood.

Dr Croft was the Acting Named Doctor for Child Protection at the Trust and had been a Consultant Community Paediatrician at the Trust since 1994. He told me in his evidence in February that the named doctor is a “clinical leader for child protection, responsibility for clinical leadership, training, advising on specific clinical cases, drawing up guidelines.”

That evening the Sister S records the mother giving A a bath and reports “much less bleeding than earlier”.

Dr C did a ward round the following morning and the notes record “No bleeding – settled. Slight vulval redness. Obs – stable. Plan discuss [with] social workers for the plan/K”.

There was a visit to the family home at about noon by O(SW) and the health visitor O’s statement records the following: “ F was asked regarding a giraffe toy he had previously mentioned and he proceeded to get this toy from upstairs and handed it to myself”.

Dr J took over as the registrar in charge of the ward in the afternoon and was asked about A’s discharge. She spoke with Dr H and D from social services who said they had visited the house, they agreed the bathroom was inadequate and would try and help the family. In addition they had looked into the background and had no concerns. In view of the fact that Dr H and social services Dr J thought it was probably acceptable for A to go home but did discuss it with Dr C who was the consultant for the week. Dr J then went to speak to the mother and confirmed she was happy for A to be discharged and apologised for the distress caused. A went home. There is no record of the precise time, the nursing note is timed at 4pm. In her oral evidence she confirmed prior to discharge she spoke to Dr H, Dr C and D in social services. There is no suggestion during the hearing that she did other than follow the correct procedure at that time. However, in the closing submissions prepared by the LA in February 2011 it noted that the Trust’s own guidance states that discharge arrangements for a child about whom there are child protection concerns must always be discussed with the Named or Designated Doctor or Named Nurse for Child Protection. That did not happen in this case.

K notes in her statement that Dr Croft rang her at about 1.30pm on that day. She was travelling at the time and did not have access to the notes. She says “I explained that A was an inpatient but was unclear as to her discharge plan”. Dr Croft has no note and did not recall being spoken to about this case on Thursday. K confirmed in her oral evidence that she had no note of this conversation, she said Dr Croft had rung her to find out what was happening with A. She explained she and Dr H had completed the examination, A was on the ward and she advised him to phone the ward to find out about the discharge arrangements. There is no record that Dr Croft telephoned the ward.

Dr Croft attended the child protection suite at about 9am on 18.9.09 for a regular peer review meeting. Before the meeting he learned that A had been discharged home. In his letter dated 21.9.09 he says “I was surprised to learn that A had been sent home the previous day, and that an apology had been given to the parents.” The hospital notes have an entry at 9.20 from Dr Croft “This injury is unexplained. There is a concerning social history. Dr Reiser and I agree. I have phoned O and asked that urgent child protection action and a further strategy is required”. In Dr Croft’s letter dated 4.11.09 he said he was ‘amazed to hear she had been sent home.

Dr Reiser is the Designated Doctor for Child Protection. This position was described as a “political, administrative post, to liaise with other services, take a strategic role of services and attend meetings (including inter agency meetings) outside the hospital.” He said he is employed by the Primary care Trust for that part of his role, he said ‘it is a commissioning role, help to maintain standards in that regard.’ He has been a Consultant Paediatrician at the X and Y Hospitals for 21 years. In a letter dated 31.10.09 he said “I was aware by this stage that Dr Croft had also been asked for an opinion and felt that abuse was the likely cause of the injury. I shared those concerns. In view of previous disagreements between Dr Croft and Dr H, I thought it sensible to discuss the case with Dr S. Dr Ssupported a diagnosis of accident and cited a fall on the girl’s own heel as a possible mechanism which I felt was implausible. This divergence of opinion made further progress with the case difficult.”

As regards the practical arrangements for the strategy meeting Dr Croft said social services co-ordinated the meeting, he didn’t call the police. He said this was a “hospital case” so they made a room available in the dedicated part of the hospital to deal with this type of case. He said Dr H was informed, he said “I knew she was informed, I had a long discussion with Dr S. I assumed and knew she had been told.” When asked about the process for inviting people to strategy meetings he said “I don’t think there is a formal process, it happens automatically…social services organise everything.” When asked whether he had contacted Dr H directly before the strategy meeting Dr Croft said “No. And I should say she didn’t contact me either.” He later confirmed that he didn’t ring her and added “maybe I should have done, it would have been more courteous.”

The strategy meeting took place between 11.30 and 1.30 with Dr Reiser, Dr Croft, K, members of CSF, and police,. The meeting was chaired by Z. Dr Croft and Dr H attended separately. Dr Croft attended at the start of the meeting but had to go by about 12 noon to attend another meeting. He said he outlined the medical position and said the meeting had to hear from Dr H. Dr H arrived at 12.30 and stayed until the end. What took place at the meeting is recorded in the minutes and in the medical records by Dr Croft and K. There was considerable debate in the evidence about when and how Dr H knew the meeting was going to take place,[ I shall return to that later.] The plan at the end of the meeting was to remove the children to foster placements, parents to be interviewed by the police and A to be re-admitted to the children’s ward and re-examined under general anaesthetic ‘EUA’. The minutes record CSF were going to undertake a s47 investigation, that a medical examination was required and Dr Croft was going to be the medical examiner. Under actions to be taken the following is recorded “To visit family at home, seek consent for further medical examination of A under GA and to examine B. To place both children in police protection. Arrange SOCO. Interview both parents.” The minutes also record under Actions to be taken “Complete medical report for use by CSF and Police following medical examination of A”. Dr Croft is recorded as the person responsible for this and for it to be done by 21.9.09.

Dr H said she was not “initially asked to attend the strategy meeting. At 12.30 L [Child Protection Nurse] came to fetch me.” She arrived at about 12.30, the meeting had started at 11.30, as she had been lecturing in a different building. She said she though it was a ‘little unusual’ she was not invited to the meeting although she did agree she knew there was going to be one. She said if she had been asked a clinical commitment would take priority over teaching. She said she would have been available to speak to Dr Croft prior to the strategy meeting. She agreed she was satisfied with her less than 2 second examination that she didn’t see any injury to the hymen she said “the main reason I was satisfied with my assessment as a whole was based on the history I had very carefully taken, I do accept my examination was very brief. I do accept less than ideal, unsatisfactory as Dr Hobbs said but my whole assessment was not just based on those 2 seconds, it was based on more than that, I saw the child interact with the father, and taken as a whole I was satisfied.”

At about 2pm the police attended the family home with social workers (O and G) and executed a police protection order and removed the children. The mother was at home with the children and the paternal grandfather; the father arrived back whilst the police were there. The mother says she gave her consent to A and B being examined at the hospital. The children were removed from the home and taken to the X Hospital. The mother was distressed.

Dr Croft said he became aware of the outcome of the strategy meeting later that afternoon when Dr Reiser telephoned him, he said he was told “it had been agreed that examination under anaesthetic, arranged, she was going to be brought to hospital, everything was organised, I was asked to come to hospital to assist him, to do the examination.”

Police took photographs of the family home and took the toy giraffe for further investigation.

The father was interviewed by the police between 3.48 and 4.27 that afternoon. This was a stand alone interview as the father was not under arrest.

There is an entry in the medical records timed at 4pm and signed by both K and a police officer “Consent for EUA received verbally from Mother by CAIU.” K said in her oral evidence that she was present in the room at this time when the police officer made a phone call, she presumed she was speaking to the mother getting her consent. Both Dr Croft and Dr Reiser were asked about the issue of consent. There is no issue that consent was given what is in issue is whether the correct procedure was followed for getting that consent.

At 4.35 K records in the notes “[seen by] Anaesthetist who examined A. Spoken to Dr Reiser who will do the examination. SOCOI will take swabs. Medical photography to take photos. Ward staff aware.”

The notes record A’s admission to the children’s ward at 5.40pm.

The mother was interviewed by the police between 5.52 and 6.45pm. As with the father this was a stand alone interview as the mother was not under arrest.

A consent form is in the medical file at. It records the name of proposed procedure or course of treatment as “examination under anaesthetic”. It records the parents consent as ‘Consent verbal and under sec 47 of Children Act’. The document is signed by Dr Reiser and dated 18.9.09. It is accepted no separate consent was sought for the photographs.

The EUA commenced at 7pm. It is not necessary for the purposes of this judgment to set out the details of this examination, as it is now accepted that there was a laceration of the hymen then. The detail of the examination is in the February judgement. I make it clear that the detailed criticisms I made in that judgment at paragraph 116 about the way that examination was recorded by Drs Croft and Reiser still stand.

A was kept in hospital overnight and collected by the foster carers the following day. B had been examined during the afternoon at the hospital and was collected by foster carers in the evening.

At 8.50pm on the 18.9.09 the father was arrested on suspicion of rape of A. PC S states in his statement that the arrest was carried out acting on the information gained from Dr Croft. The father was taken to the police station and further interviewed between 00.10 and 00.49 on 19.9.09. The father was bailed at 1.30 am until 21.12.09.

The application for the EPO was issued on 21.9.09 and granted the same day by the FPC. Dr H spoke to K and was told the father had given a consistent account to the police.

Dr H wrote a letter of concern to the Director of Human Resources about Dr Croft’s conduct. Drs Reiser and Croft responded to that letter. On 10.12.09 there was a letter confirming that the allegations made by Dr H were ‘unfounded’.

Dr Hobbs was originally going to be the jointly instructed expert, but he had already been instructed by the police. Dr Hanmer took over as the jointly instructed expert. Dr Hobbs report within the criminal investigation has been disclosed within these proceedings and Dr Hobbs and Dr Hanmer met (by telephone) to discuss the questions agreed by the parties. A transcript of that discussion is within the papers.

The case was originally case managed at Watford County Court and a 7 day hearing was listed in Watford County Court commencing on 15.3.10.

The father was interviewed by the police again on 21.12.09 and the mother on 14.1.10. The police have informed the father that they are taking no further action.

The children moved foster carers to C on 27.1.10 and have remained there since.

Dr Croft informed the Local Authority that there had been an external inquiry into the treatment of A and that this should be seen by the court. The local authority applied for disclosure of documents relating to the inquiry.

At the pre hearing review in Watford County Court on 5.3.10 the matter was transferred to the High Court due to the complexity and issues relating to disclosure of the documents produced to the court by the Trust. Notice of the issues to be determined were given to Drs H, Reiser and Croft.

The matter came before Mr Justice Ryder on 17.3.10, he gave directions regarding disclosure of the documents produced by the Trust and joined Drs H, Reiser and Croft as interveners. The matter was timetabled for a 15 day hearing on 17.1.11. There were three further case management hearings before the matter came before me on 23.11.10, by which time, the time estimate had been increased to 20 days. I reviewed the Trust disclosure (and continued to do so during this hearing) and the continued involvement of the interveners. I directed they remain as interveners, which would be reviewed again at the conclusion of the intervener’s evidence. Other case management directions were given.

The February hearing started before me on 17.1.11. I heard oral evidence from Drs H, Reiser, Croft, F, G and J, K, C, Drs Hanmer and Hobbs, two social workers and the parents.

The parents have had regular contact with the children. The frequency has been 5 times per week. It was agreed at the fact finding hearing the quality of the contact was good and the attendance excellent.

During the course of these proceedings a psychological assessment of the mother was conducted by Dr. Simon Claridge. He describes her as someone having very poor self esteem and limited social interpersonal confidence and becomes easily confused when asked questions. In terms of her cognitive development she has low average intelligence but less well developed skills in relation to Listening Comprehension (9.5 year level). In his report he suggests various practical ways these difficulties can be managed in the context of this complex litigation.

There has also been further investigation regarding A’s development. A report from Dr Woodman and Dr Clemente dated 30.6.10. This report concludes that A fits the criteria for Childhood Autism and that she has very significant developmental delay. The foster carer gave evidence of the support that is being provided to deal with those matters

They are set out in detail in the February judgment at paragraphs 108 – 116.

There was broad agreement that A suffered the following injuries:

In relation to the laceration of the hymen at 6 o’clock, I was unable to make that

Turning to the cause of the injuries the LAs case then, as it is now, is that these injuries were caused by the father.

I considered the evidence and the competing submissions and set out my conclusion at paragraph 125. For the reasons detailed there I found, on the evidence then available, that the injuries had not been caused by the father. Whilst the explanation of the giraffe was a possibility, I regarded the cause of the injuries as being unexplained.

There are two main sources of fresh material that I have considered at this hearing. In the light of my findings on this new material, I will need to re-evaluate my findings in February.

First, the child protection medical examination carried out by Dr S on 9.12.11 revealed a transection of the hymen. Transection is the term used for a healed laceration. Dr S’s conclusion is that this is the healed laceration of the hymen that was observed by Drs Croft and Reiser in the EUA but, for the reasons given in the February 2011 judgment, I was unable to find on the evidence then that it was established. This evidence has not been challenged in this hearing; Dr S has not been required to give evidence.

The second piece of fresh information is the discovery by the LA, as a result of a document received by them from the police on 8.12.11, that the father had been convicted of three offences on 26.9.11, two days before the commencement welfare hearing commenced. It appears that this information only came to light as a result of the strategy telephone discussion between the team manager and the police in early December 2011.

A third area emerged during the course of this hearing which is the extent of the father’s cannabis use (current and historical) and the evidence he gave about that at the hearing in September.

As I have said there was no evidential issue about the medical findings and I find, on the balance of probability, that in September 2009 A did suffer a laceration to her hymen at the 6 o’clock position.

Both Drs Hanmer and Hobbs provided updated reports, had a telephone meeting and gave oral evidence, as they did in the February hearing.

In their evidence in February neither Dr Hanmer or Dr Hobbs could see the laceration to the hymen described by Drs Croft and Reiser. Dr Hanmer agreed at that hearing he used the word ‘may’ in relation to this injury in his telephone meeting with Dr Hobbs. His position then was that he did not think he could be satisfied, on the balance of probability, that A had been sexually abused. In his oral evidence in February Dr Hobbs was taken through a number of scenarios by Mr Verdan Q.C. and he agreed that if there was no hymenal injury the injury was less severe, but still worrying.

Dr Hanmer in his most recent report accepts Dr S conclusions regarding the transection of the hymen and agrees it is consistent with healing of injuries sustained in September 2009. In his report he states ‘Statistically the most likely cause for the damage to the hymen and the posterior fossa is blunt trauma from an erect penis directed mainly to the posterior fossa during sexual abuse.

Dr Hobbs in his most recent report stated that the presence of the transection to the hymen at 6 o’clock is a significant finding. He said it is a rare finding in a child of this age and where it is found penetrative injury should be strongly suspected. He continued ‘A transection of the hymen in the posterior part of the hymen (here at 6 o’clock) is therefore probably the strongest evidence of vaginal penetrative sexual abuse that it is possible to find at a distance from the abusive penetrative event after healing has taken place.’ He agreed in his oral evidence that it was necessary to look at the whole picture, but said this was a strong physical finding that needed to be taken into account.

In his oral evidence Dr Hobbs was asked about two specific articles which referred to individual case studies where similar injures had been caused accidentally (Perineal Impalements in Children Distinguishing Accident from Abuse by Sugar and Feldman; Accidental Hymenal Injury Mimicking Sexual Trauma by ‘Boos’). Dr Hobbs outlined the work that was currently being undertaken by a Royal College of Paediatrics and Child Health working group he was a part of, looking at studies of accidental injury. He said the Boos paper was one of those they were considering, he was not able to say whether it was going to be accepted or not. He said the majority of the papers they reviewed in preparation of the Royal College Guidance were rejected as being insufficiently robust in their preparation. He accepted the principle that this type of injury could be caused accidentally, but said it was very rare. He relied on the Sugar/Feldman paper for this, as he said it listed only very few case examples after an extensive search through the reported studies.

Dr Hanmer in his oral evidence did not consider the medical findings in December 2011 changed his position significantly. Dr Hobbs, on the other hand, said the evidence was strengthened by this additional finding ‘because the evidence is more tangible for someone who has not examined the child’. Whilst his working assumption in his previous reports accepted what Dr Croft and Dr Reiser reported they saw, in the questions put to him by Mr Verdan Q.C. in February he acknowledged that if the court was not able to make the finding about the laceration to the hymen it was a less serious injury. It is now established that there was a laceration to the hymen which he said in his oral evidence in this hearing was very strong evidence of vaginal penetration of this child. He described this combination of injuries as being at the top end of the scale of injuries in a sexual assault. He said it indicates penetration of the internal parts of the genitalia. He considered the bruising was not inconsistent with a sexual assault. He did not agree with what Dr Hanmer said regarding the ‘V’ shaped mark, he said their difference was as a result of a different emphasis in relation to his as in his view it was not inconsistent with sexual abuse.

Dr Hobbs was asked about the expected level of bleeding and reaction of the child from such injuries. In relation to the bleeding he said it would be significant but not very heavy. Dr Hanmer’s experience was slightly different, in that he had experience of a delay in bleeding caused by restriction. Dr Hobbs said the bleeding would be visible, more so he thought if the child was wet. In relation to the child’s reaction he said that could depend on the circumstances of the cause of the injuries, but in normal circumstances (non-inflicted injury) he would expect the child to have a high level of distress and would not expect the child to be running around playing soon afterwards.

Turning to the second area of new information, the relevant sequence of events appears to be as follows.

On 29.7.11 the police executed a search warrant on the family home. Only the mother was present. The search of the property revealed a small quantity of cannabis (mixed with tobacco) and a stun gun. The mother called the father after the search and he returned to the property. An extendable baton was found in the rucksack he was carrying. He was arrested and taken to the police station for questioning. He returned home after about 2 – 3 hours. It appears he was put on police bail until 14.9.11.

The father’s case is that when he returned home he told the mother not to worry. He said he did not recollect saying anything else. The mother says when he returned they had a discussion about what, if anything should be said about what had happened. He did not tell her about having to return to the police station later and she did not ask about it. She says they agreed, at the father’s instigation, not to tell anyone about the police attending or the father going to the police station. When asked why she did this in her oral evidence she said ‘I was hoping we were going to get the kids back and if anyone found out about this it would lower our chances’. She made it clear in her oral evidence (as did the father) they had no intention of telling Ms Ware as they did not like her.

The context of these events is that the mother had filed a statement dated 18.7.11, stating she had made a decision to separate from the father because of his behaviour to her. The statement gives examples of his controlling behaviour. It is accepted that even though she had made the decision to separate the parties still lived under the same roof, albeit leading separate lives.

Helena Ware, the jointly instructed independent social worker, was due to visit on 30.7.11. She did so and saw both parents. She observed what looked like a love bite on the mother’s neck and the mother agreed she and the father had been intimate the night before. Unbeknown to Ms Ware the police had searched the family home the previous day and the father had been arrested.

Dr Varney, the jointly instructed psychologist, saw the mother on 9th August and the father on 12th August. No mention was made of the events on 29.7.11. Dr Varney specifically asked the father about criminal convictions, he did not volunteer any information about his arrest. He said in his oral evidence that he had not been convicted at that time. He had to accept that by the time Dr Varney gave oral evidence he had been convicted and that important change in his position was not volunteered.

Ms Ware and Dr Varney saw both parents on 31.8.11 and no mention was made of the events of 29.7.11.

The father returned to the police station and was charged with three offences on 14.9.11; having an offensive weapon in a public place, possession of a prohibited firearm and possession of cannabis. He said he did not inform the mother about this.

The father attended the magistrates’ court on 26.9.11 and pleaded guilty to all charges. A ‘stand down’ probation report was prepared. He was sentenced to 180 hours community service. At the start of this hearing I asked for details of the probation report to be obtained. I am very grateful to Mr Carter for providing the details so quickly. The document from Mr Carter revealed the following information:

Both parents filed detailed statements dated 26.9.11, the father’s describing at paragraph 13 the importance of honesty. Both of those documents were silent as to any reference to either the events of 29.7.11, the father being charged on 14.9.11. It remains unclear precisely when they were signed, but, in any event, the welfare hearing proceeded entirely ignorant of these matters, and the father’s conviction and sentence only two days before the start of the hearing.

According to the father, he did not tell the mother he had been to court or about the sentence. He said the reason why he didn’t was that she was not good at keeping things secret and she was under pressure due to the forthcoming hearing. The mother said in her oral evidence that although she could not remember the date the father did tell her about the community service order she said it was ‘when he found out’. I consider it more likely than not that the mother was told about the community service order prior to the commencement of the September hearing before me.

The father attended a community service induction meeting on 27.9.11 and started his order on 17.10.11; he usually did it on a Monday and completed it over 22 occasions, the last session being on 12.3.12.

The welfare hearing started before me on 28.9.11 and continued until 7.10.11. I reserved judgment and handed it down on 31.10.11.

The father said he informed the mother of the community service order between 7th and 31st October. He said he did so in the context of them having to provide a cover for the fact that he was not able to attend contact with the children on the Monday. The cover was that he was attending a job seekers course. This was the reason given by the mother to the contact supervisors and was on occasion elaborated on in discussion with the father at the contact to maintain the lie (for example the contact recording for 5.12.11). The mother must have provided that false explanation on at least 20 times.

The mother said when she was told by the father about the community service order she did not ask any further questions about the circumstances or what had happened. She said she was aware it was a sentence that was imposed following a hearing in the criminal courts as she had a historical community service order.

The LA discovered the existence of the father’s convictions on about the 8th December and Mr M went to see the father to talk about them. Mr M thought the mother was unaware of this and thought it only fair the father told her. He described the mother as looking very shocked when she was told, giving the very clear impression that she knew nothing about these matters.

At the Child Protection meeting on 5.1.12 Mr M confirmed his understanding that the mother was unaware of the community order and conviction prior to his visit. This was not disputed by either the mother or the father, the mother told the conference when he did community service she thought he was going to the job centre.

The matter came back before me on 13.1.12. I made various directions including a direction that

The mother’s statement is dated 27.1.12 and includes a number of matters:

The father’s statement is dated 20.1.12 and includes a number of matters:

It has been necessary to set out the information given to the court in these statements in some detail. They were prepared pursuant to my very specific direction. It was the opportunity for the parents to be frank with the court and the parties in relation to these matters. Sadly, that has been shown not to be the case, in the light of their oral evidence the apologies to the court and the assertions as to honesty in both parents statements ring very hollow indeed.

The mother gave evidence first. In her evidence in chief she changed a number of significant matters set out in her statement, which she accepted had been prepared with her solicitor who she knew well and was not done in a rush. The main change was she said she had known for sometime about the fact that the father had a community service order. On her case she knew in October and I have found it was probably possibly earlier. This is because, despite what she states at paragraph 11, she knew perfectly well the father was attending a community service order and, as had been agreed between them, she was covering up for him by saying he was attending a job seekers course, and did so on at least 20 occasions. In very effective cross examination by Miss Morgan Q.C. it transpired that she had gone further by initiating conversation with the father in front of the supervisors about the work experience, successfully feigning the shock in front of the social worker Mr M in December, when it is patently clear she already knew of the community service order and was actively complicit in its non-disclosure. Even with her intellectual and emotional limitations, which I bear very much in mind, the mother is, in my judgment, a relatively sophisticated liar. She positively maintained that false position at the child protection meeting on 5.1.12.

The father’s position also changed when he gave oral evidence. A number of assertions in his statement were simply untrue. The main one is set out in para 15. In his oral evidence he confirmed he had told the mother about the community service order prior to the December meeting with Mr M. It was also patently clear from his oral evidence he and the mother had discussed the contents of their recent statements, they had made a deliberate decision to maintain the various lies and withhold relevant information from the court and the parties.

The final new matter is the father’s cannabis use. In his sworn oral evidence to me in September he told me that he had kicked his cannabis habit at the time of A’s birth. That was not disputed by the mother during that hearing and is referred to in my judgment in October. The hearing proceeded on that basis. That was not, in fact, what he said to the probation officer only a few days earlier in September, he told him his use was daily. Yet in his statement dated 20.1.12 at para 6 he gave the very clear impression that it was very occasional. His oral evidence provided little clarity about his use, he sought to obfuscate rather than enlighten in relation to his historical and current use. The mother’s evidence in this hearing was contrary to what had been said during the September hearing, she said in this hearing he had smoked cannabis daily whilst they had the care of the children.

It is not disputed that the medical evidence now establishes the existence of a laceration of the hymen in September 2009.

I accept the evidence from Dr Hobbs that the existence of this additional injury strengthens the evidence and, in my judgment, increases the likelihood of the injuries being caused by sexual abuse. This is consistent with his view expressed at the February hearing. He further rationalised it at this hearing in that the existence of this injury meant there was more injured tissue, which increases the severity of the injury and is consistent with penetration of the internal parts of the genitalia. Dr Hanmer was more cautious, but in the telephone meeting with Dr Hobbs agreed the most likely cause was sexual abuse.

Of course the court needs to consider the wider picture and look at all the evidence, but the revised medical findings make sexual abuse more likely.

In relation to the non-disclosure by the parents of the police attendance, the father’s arrest, charge, conviction and sentence I am rightly reminded by Mr Geekie Q.C. of the need to carefully consider these lies in the context of the guidance in R v Lucas. It is important to carefully consider the reason why the lies were told and they may not undermine the parents credibility in relation to other matters, in particular their account given in relation to the injuries to A in September 2009.

I do take into account that the reason for the non-disclosure and lies was the fear by the parents that if they told the LA it would reduce their chances of seeking the return of the children to their care. As the mother said in her evidence about why she took the position she did on the night on 29.7.11 ‘I was hoping we were going to get the kids back and if anyone found out about this it would lower our chances’. Whilst it gives the reason it also shows a level of sophistication about why she chose to take this course.

However, in my judgment the lies in relation to this aspect of the case go much further than just seeking to withhold information from the LA, the Guardian and the court in the context of the welfare hearing. It shows in my judgment, from the written and oral evidence of both parents, a complete disregard of the need to tell the truth and a level of sophistication in maintaining a lie that, in my judgment, means that this aspect is relevant to consider in re-evaluating the evidence in relation to the findings sought by the LA.

The particular features of the parents’ evidence that enable me to reach that conclusion are as follows:

Therefore, I am clearly of the view that the parent’s obvious lack of credibility now is not limited to, or ring fenced, around the welfare issues and needs to be factored in in my re-evaluation of their evidence about the circumstances surrounding the injuries to A in September 2009.

The position in relation to the changing picture and evidence regarding the father’s cannabis use is of significance in that there can be no question he deliberately misled this court in his oral evidence in September, as did the mother. It’s relevance is that it provides further support for the general view regarding the parents lack of credibility.

The central issue is whether my conclusion that the injuries to A were unexplained can stand or whether, in the light on the fresh information, the re-evaluation of the relevant evidence drives the court to reach a different conclusion.

Having stood back and considered all the evidence, not only that which is before the court in this hearing but also the evidence before the court in February 2011, the detailed judgment and findings I made in February 2011 and the written submissions I have received in this hearing I have reached the very clear conclusion that when considered against that wide canvas my finding made in February that the injuries to A were unexplained cannot stand.

In my judgment the injuries to A were more likely than not to have been caused by the father in the way the LA set out in their schedule of findings. I have reached that conclusion for the following reasons:

I am not able to say what the mother knew about the father’s role in the injuries to A. I consider it unlikely that the father would have sexually abused A in the presence of the mother. However the mother would, in my judgment, have readily accepted what the father told her to say and/or any explanation given by the father. This is due to the enmeshed relationship the parents have and the mother’s ready acceptance of whatever the father says.

Therefore, I find that it is more likely than not that the matters set out in the LA’s revised schedule of findings are established and revised schedule should be attached to any order made today.

I am quite clear that the conclusions I reached in my judgment in October 2011 need to be re-evaluated in the light of my revised findings and my assessment of the parent’s credibility. This would have been my direction irrespective of my decision about any revision to the February 2011 findings.

As was made clear in that judgment one of the central foundations of my decision to rehabilitate these children with their parents was my assessment about their truthfulness and their ability to co-operate with professionals there to support them and the children.

By their actions the parents have driven a coach and horses through that assessment. That will have a direct impact on what orders will best meet the welfare needs of these children.

I will hear submissions from counsel as to the timetable and directions for the next hearing.