J, A , M And X (Children)

These proceedings concern four children, J (born on [a date in] 1996 aged just 16), A (born on [a date in] 2008 4½), M (born on [a date in] 2009, 3½) and X (born on [a date in] 2011, so he is 18 months old).

The three younger children are represented in the proceedings by their guardian, who appears in the proceedings by Mr Peter Rothery. These three children are currently in foster care pursuant to an interim care order.

The children’s older half-sister, J, who appears by a different guardian, is represented in the proceedings by Jane Crowley QC and Neil Montaldo. She currently lives with her maternal aunt and uncle, Mr and Mrs R.

They are the children of NG (“the mother”) represented by Frances Heaton QC and Alison Woodward.

The father of the three youngest children is DG “the father” represented by Gillian Irving QC & Mr Zimran Samuel.

To complete the picture, J has a full-sister, C (now aged 20); she lives at home with her mother and step-father; the father of J and C is SO who is not represented before the court this morning; a letter from his solicitors indicates that he has not furnished them with recent instructions.

The principal application before me is an application for a care order under Part IV Children Act 1989 (“CA 1989”) in respect of the four children which was issued by Lancashire County Council on 24 May 2012. The local authority is represented by Jane Cross QC and Heather Hobson.

The case has been listed for a 12 day hearing for me to determine the facts surrounding the allegation of significant harm, which go to establish the so-called ‘threshold’ grounds for making a Part IV order pursuant to section 31 CA 1989.

I conducted the Pre-Trial Review by video-link on 31.1.13; at that hearing Ms Cross informed me that the Local Authority was giving serious thought to the appropriateness of proceeding with its application for Part IV orders given the state of the medical evidence (which at that hearing was still crystallising), which I will discuss briefly in a moment. The parties all noted that position, and were unsurprisingly broadly supportive of the Local Authority’s request for a little time to review the medical evidence in a considered way in the days leading up to this hearing. The proceedings were nonetheless case-managed towards a full hearing this week.

Having conducted its review, on 20 February 2013 the Local Authority issued its application to withdraw the application for a care order, having communicated that intention to the parties at an advocates meeting held one week earlier.

The application for leave to withdraw has been supported by a skeleton argument, and I have been furnished with Final Analysis reports prepared by the guardians for the children. I have heard oral representations from Counsel instructed on behalf of the parties.

The parents are agreed that I should give leave to the Local Authority to withdraw the proceedings.

The Guardian for the younger children has prepared an analysis which helpfully sets out her views on the application. In that document, she indicates her support for the Local Authority proposal that the proceedings should be withdrawn and observes that the plans formulated by the Local Authority for the children to be returned to their parents now “are carefully thought through” and “meet their individual needs”.

J’s guardian has also prepared an Analysis Report; her Counsel have submitted a position statement. They also encourage the Court to permit the withdrawal of the proceedings. In reviewing J’s position, I have had not only regard to the documents referred to above, but also the helpful psychological report of Dr L l (dated 28 December 2012).

Documents filling 12 lever arch files have been collated and filed in this case, including witness statements, reports, assessments, medical records, police records, contact records and the like. I make clear at this stage that in the one day afforded me thus far for reading, I have not yet been able to cover all of the ground so comprehensively rehearsed in that material. I have read enough, thus far, to enable me to reach a confident conclusion on the immediate application.

Before turning to the case itself, I wish to record my gratitude to all the legal representatives involved in this case, Solicitors, Counsel, and Leading Counsel for their handling of this difficult case; over the relatively short time of my judicial oversight of the same, the proceedings have raised some difficult (or potentially difficult) evidential issues, which appear to have been resolved with great professionalism by all concerned.

As the Supreme Court have reminded us only this week (Re J [2013] UKSC 9)

“it is a serious thing indeed for the state compulsorily to remove a child from his or her family of birth”.

The leading judgment of the Court delivered by Baroness Hale in that case (with whom the majority of the Court agreed) goes on:

“Interference with the right to respect for family life, protected by article 8 of the European Convention on Human Rights, can only be justified by a pressing social need. Yet it is also a serious thing for the state to fail to safeguard its children from the neglect and ill-treatment which they may suffer in their own homes. This may even amount to a violation of their right not to be subjected to inhuman or degrading treatment, protected by article 3 of the Convention.”

Re J, and its forebears, notably Re F [2011] EWCA Civ 258, [2011] 2 FLR 856 describe the threshold criteria operate as a bulwark against wrongful interference by the state with family life (see Re J para.27, 75 and 83); again – per Lady Hale:

“The threshold is designed to restrict compulsory intervention to cases which genuinely warrant it, while enabling the court to make the order which will best promote the child’s welfare once the threshold has been crossed.”

And so it follows that a Local Authority, when considering whether to make an application for a care order, and the Court when considering the material placed before it in support of such an application, need to act conscientiously, scrupulously, and fairly in deciding on whether the material justifies that level of interference, and the potential infringement of Convention rights of the family and the children affected.

Uncontroversially, the burden of proving the facts to establish the threshold falls squarely on the Local Authority; equally uncontroversial is the requirement for the Local Authority to prove the facts on the balance of probabilities: i.e. the ordinary civil standard of proof (see Re H & R (Child Sex Abuse: Standard of Proof) [1996] 1 FLR 80]). If ever this was in doubt (and some say it was not) it was re-inforced more recently in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11. The speeches of the House of Lords in that later case made clear that the mere possibility, however real, that a child may have been harmed in the past is not sufficient to cross the threshold. I turn again to this case at the conclusion of this judgment.

This is the important legal setting against which I review the material and determine the application.

Once properly-constituted care proceedings have been commenced within the statutory context of the Children Act 1989, Part IV, they remain lawfully established unless and until they have been either concluded or withdrawn.

Leave is required before such an application can be withdrawn: see rule 29.4 FPR 2010. This rule (rule 29.4) does not in my judgment derive from what was commonly viewed as a paternalistic role of the court (a characteristic of wardship, less commonly associated with post-1991, CA 1989, proceedings), but from the fact that proceedings of this nature are essentially inquisitorial.

Where the proceedings before the court are Public Law (Part IV) proceedings, the importance of ensuring that the decision to withdraw is child-focused is even more obvious. A decision of a Local Authority to launch proceedings under Part IV CA 1989 in the first place will never (certainly should never) be taken lightly; no one should underestimate the impact of such proceedings in themselves (quite apart from their outcome) on all concerned, particularly on the families, and the subject children.

Assuming, as I believe that I am entitled to do for the purposes of this exercise, that Local Authority only bring proceedings when they regard it as proper and necessary to do so (given the significant repercussions for all involved, above), then once in the Court arena, an objective and dispassionate check should be brought on whether the Local Authority should be entitled to disengage from that process.

On such an application, the Court has a unique perspective on the material marshalled before it; unlike the parties to the litigation, it has no (or no potential) interest in the outcome of the proceedings (or in the application to withdraw) other than to secure the best interests of the child, and it is able to evaluate whether the decision to withdraw is truly welfare-based.

The fact that an application to withdraw is not opposed by any party is an important consideration, but it is obviously (and for the reasons set out above) by no means decisive.

The Local Authority submitted – per paragraph 44 to 46 of its skeleton argument – that as this is an application to withdraw proceedings at the pre-threshold stage (because it says, it does not believe that it can cross the threshold), then I would be required to “evaluate the application” by reference to that “fact alone” (i.e. that the threshold cannot be crossed), without engaging any consideration of welfare; it is said that my compass of enquiry on this application is accordingly is a narrow one.

Reliance for this proposition was placed on a decision of Hedley J in Redbridge London Borough Council v B C & A [2011] 2 FLR 117 in which he said (at para.9 of the judgment) that:

“If the local authority could not prove the threshold criteria, then of course, their application would succeed without more as otherwise I would have no alternative but to dismiss the proceedings. If, however, the threshold could be established, then the application would really depend upon the court concluding under s 1(5) of the Children Act 1989 that no order was necessary; that is to say on the basis that withdrawal was consistent with the welfare needs of A – see London Borough of Southwark v B  [1993] 2 FLR 559 and WSCC vM, F, W, X, Y and Z [2010] EWHC 1914 (Fam), [2011] 1 FLR 188.”

(emphasis by underlining added for emphasis).

In this case, as it is presented before me, I am not in fact being asked to conclude (and indeed I do not conclude) that the Local Authority could not on any view prove the threshold. Plainly on one or more than one construction of events, the threshold could be crossed. To fall into the category of case envisaged by Hedley J in para.9 of his judgment, wherein the court would have no alternative but to permit the withdrawal, it seems to me that the inability of the Local Authority to demonstrate facts to cross threshold ought to be obvious.

The Local Authority here invites me to adopt their likely construction of the evidence, and on that basis they invite me to say that they will not be likely to cross the threshold. They further maintain that it is not in the interests of the children concerned that an enquiry is embarked upon to establish whether that construction or another construction should be preferred.

In a case where there is argument whether the threshold could be crossed, I have to remind myself that answers to the questions relating to threshold may also inform the answer on welfare. The crossing of the ‘threshold’ is simply one part of a two-stage process (and the court has two questions to ask i.e. has the threshold been crossed? If so, what will be best for the child?) The same factual issues are often relevant to each question. Just because a hearing is split, does not mean that the evidence relevant to stage 1 may not be just as relevant to stage 2: “the finding of those facts is merely part of the whole process of trying the case. It is not a separate exercise” (see Baroness Hale in Re B (supra) at para.74).

After oral argument before me, all counsel agreed that this was not such an ‘obvious’ case that the Local Authority could not prove the threshold; it was acknowledged by all that on the evidence there were plainly significant difficulties in them achieving this.

Given that this case does not fall into the realms of what I call the ‘obvious case’ (where I would have no option but to give leave to withdraw), the question of whether or not a particular fact-finding exercise is to be conducted within care proceedings is a question which requires me to look at the whole application. In this respect I have been particularly guided by the judgment of McFarlane J as he then was in A County Council V DP, RS, BS (By The Children’s Guardian) [2005] EWHC 1593 (Fam) [2005] 2FLR 1031 . He set out (in rather different factual circumstances) the factors which should weigh in the evaluation of whether it was right for proceedings to be pursued (see [24]):

It seems to me that having reviewed those factors, I should cross-check the conclusion I reach having regard to the straight best interests test under section 1(1): see also on this point the decision of Bracewell J in Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134.

NG and DG (who I shall refer to for shorthand as “the parents”, even though I am conscious that Mr DG is the step-father of J) were married in November 2008. The documentary evidence filed reveals that the Local Authority historically had a range of concerns about the quality of care which the parents were offering to the index children, dating back to 2009. The concerns raised were essentially around issues of domestic abuse, and of physical and emotional abuse of J including bullying from her parents. J herself had complained in compelling terms about her treatment in the family home, and engaged in troubling self-harming behaviour; referrals were made to the social services in this respect from her college.

Given the fact that the social services had effectively withdrawn from the family at the time of the key events, those concerns provide for me no more than an evidential backcloth against which a much more significant issue played out in the late spring of last year.

At 17:40hrs on the 18.04.12 X was admitted to Royal Preston Hospital by ambulance following an incident in the family home. The presenting history was given that he had fallen after being pushed over by M at a time when J was with the children and the Mother and Father were in an adjacent room. Immediately following the incident X demonstrated signs of a “collapse” and seizure, witnessed immediately by J and moments thereafter by the parents who were alerted by J.

On examination it was discovered that X had suffered a subdural haematoma with extension over the tentorium and into the posterior fossa with associated inter-hemispheric extension on the left side and multi-layered retinal haemorrhages to the right eye comprising 3 pre-retinal haemorrhages and a number of intra-retinal haemorrhages mostly around the posterior pole.

These potentially catastrophic injuries to X were the “precipitating incident” which led to these proceedings; the Local Authority has been clear throughout these proceedings that this event was the key issue for determination in the case. Absent this event, public law proceedings would not have been brought.

X was transferred to Royal Manchester Children’s Hospital on 19.04.12 where Dr SL, Consultant Paediatrician, saw X and the scans taken of his head; she raised child protection concerns for although she expressed the view that “these appearances are not classical of a shaking injury” she added that “I think it highly unlikely that these injuries have happened just from a simple fall described by Xs parents and sister” adding, materially as it happens “However, it is just possible that this could be the explanation”.

The proceedings having been issued, a number of expert assessments were commissioned in an effort to add additional and specialist layers of expertise to the opinion of the treating experts expressed and summarised above. Directions were given for the instruction of identified experts in the fields of ophthalmology, neuro-radiology and paediatrics. Those instructions were widened to include paediatric neurosurgery. Although there were various difficulties in the identification of a suitable neuro-radiologist, Dr ST helpfully offered his assistance relatively late in the day and thus completed the picture.

It is the crystallisation of that medical evidence to which focus has primarily been brought in recent days and weeks. I discuss this evidence below, but pause to note one important fact: X mercifully currently shows no residual effects of the injury. He is reported to be reaching his milestones, he is walking independently, he is eating and sleeping well, and has been discharged from Manchester hospital.

In parallel with the family courts’ investigation of the event surrounding the injury, the police investigated the circumstances the causation of the injury; they resolved in August 2012 not to charge either of the parents or J with any criminal offence arising from the injuries.

During the life of these proceedings, all the children have been subject of interim care orders. J has remained in a family placement with her aunt. All three younger children have lived together in a private agency foster placement. The parents have raised a number of issues about the quality of the care which the children have received while in care. I do not propose to rehearse those concerns here; I note from the Guardian’s Final Analysis that the children appear in fact to have received good quality care, and have settled well in the placement. I note with approval, and to some extent relief, that a high level of parent/child contact has been maintained throughout the last few months, and this is described as being positive and a fun experience for the children.

Overall it seems to me the arrangements for the care of the children, over the last 10 months or so, have accommodated the different needs of the sibling group and parents so that the individual needs of the children have throughout been met.

J is at a crucial stage of her academic career and has been determined to maintain academic progress. She settled in her aunt’s home but has experienced some personal difficulties and harmed herself on 07.11.12. She is desperate to return home to her parents.

In this case, the parties have been fortunate to garner the expertise of some of the finest medical experts currently available to the family courts. I have read their reports with care, and the transcript of the meeting at which they were able to share their views. There is some measure of professional consensus about the medical evidence, and I attempt to do no more than to distil some of the key aspects of their evidence as follows.

Mr. E, Consultant Ophthalmologist, has opined that, taken with the other findings in the case, the retinal haemorrhages provide strong evidence that X was subjected to a shaking injury. He describes him fulfilling the “characteristic profile” and refers to the triad of features which includes encephalopathy and subdural haemorrhage; he considers that unilateral retinal haemorrhage is not unusual in NAHI. He concludes that by reference to his expertise on ophthalmological features alone, the fall described cannot be considered a plausible explanation for the retinal findings. I remind myself that I do not consider one aspect of the medical evidence in isolation from other aspects.

Mr. R Consultant neurosurgeon, suggests that on current medical understanding a low level fall of the type described would not be expected to cause an acute subdural bleed and that developing a subdural haematoma from such a fall would therefore be a very unusual event. The account of X being pushed over and hitting his head could explain the acute subdural haematoma although it would be an unusual event in these circumstances. The appearances of the bleeding do not assist in determining the explanation, and can be explained by a single localised impact to the top of the left cerebral hemisphere. He opines that the accidental event described causing this haemorrhage is a possibility although it would be unusual. Another event involving greater force that has not been reported remains a possibility but this cannot be definitively stated on the appearance of the subdural haematoma alone.

Dr. SA, Consultant Paediatrician, reminded the Court that there are exceptions to the rules that generally short falls do not give rise to significant cranial or intracranial injury whereas large falls and severe impacts will do. He considers that X did not simply fall to the ground, he was pushed and although this was by a small child this will have increased his velocity and impact. He concludes that the injuries found are consistent with the fall and that this is consistent with an accidental event. The injuries are more likely due to the reported fall.

Dr. ST, Consultant Neuroradiologist, concluded that on imaging grounds alone he could not exclude shaking as a cause for the subdural bleeding. The inter-hemispheric component and the bleeding in the posterior fossa are somewhat unusual in the context of being secondary to head trauma. However, because of the unusual nature of the fall in his view it is possible to explain the imaging features as having occurred as a result of that event. He does not exclude the event as a reasonable possible cause.

The experts have met, and I have a transcript of their discussions; this reflects the expert view that the constellation of injuries was caused by the same event which occurred shortly before X’s collapse; that there are a whole series of atypical features in this case; that the experts cannot from their respective areas of expertise reasonably exclude any of the possibilities that were debated, and that it is a matter for the Court to “put all the pieces of the jigsaw together”.

A Schedule of Concurrence (of expert views) has been helpfully prepared by Mr Rothery arising from the meeting. The Local Authority relies upon this analysis and summary of the expert medical evidence. The document summarises the nature of the injuries; there is agreement that the injuries are a result of trauma on a single occasion, and more likely to be impact than shaking alone.

The doctors conclude (para.4.1) that it is not possible on the medical evidence alone to determine whether the injuries were accidental or non-accidental. The summary discloses that the experts considered a range of possible mechanisms which may account for X’s injuries (para.2.4). Paragraph 4.2 reads:

“the explanation given by J that X fell over having been pushed by M is a possible explanation of all Xs injuries”.

The experts were fairly evenly divided in their opinion (which it is acknowledged is fashioned by current level of understanding) as to whether the accelerated fall (as described) would have generated sufficient force to cause X’s ocular and cerebral injuries. Mr E and Mr R expressing some scepticism on the one hand (though do not exclude J’s account as a possible cause), and Dr ST and Dr SA more prepared to acknowledge this on the other (indicating that J’s description would be a sufficient explanation for the injuries).

The Local Authority, upon whom the burden of proof falls at this essentially adversarial stage of these proceedings, does not seek to prove that the injury sustained by X was non-accidental.

It takes as its starting point the unanimous expert medical opinion that the accident described by J “is a possible explanation of all X’s injuries”.

The Local Authority has then weighed into the reckoning what the parents and J have said about the incident. Ms Cross and Ms Hobson have rightly in my view formed the view that where the medical evidence is poised so evenly on the fulcrum of possibility, it is necessary critically to evaluate the other aspects of the case and, in particular, what it is that the parents and J say about the events which may tilt the balance. Only, say the Local Authority, where the forensic process could significantly damage the credibility of the parents or J would the Local Authority be able to contend that the balance tilted against this being an accident. But, Ms Cross continues, there is little in the relevant lay accounts which gives cause for such a conclusion

Even the inconsistencies in the accounts, such as they are, lend weight to (rather than detract from) the conclusion that an essentially honest account has been given: there has been sufficient consistency about the incident: It occurred when X was trying to negotiate the sofa; X was not confident or steady on his feet; M ran at him and collided with him; M pushed him over and he fell to the ground; X hit his head and it ‘bounced’; X reacted adversely and immediately, developing symptoms consistent with a seizure; J shouted for her mother; all the children were together in the room; the parents were in an adjacent room; J alerted the parents immediately, indicating her distress and concern for X; upon arriving at the scene the parents witnessed X in a state of collapse.

Moreover I note as context to the key events that:

If I were to embark upon a fact-finding enquiry, it seems to me that I would probably need to reach a position in which I was satisfied that J had been able to maintain quite a sophisticated lie in inventing an account which coincided in some important respects with the expert medical opinion as to key elements of causation of the injuries. I would further need to satisfy myself that J was prepared to blame her little half-sister M for injuring X to protect herself, and that the younger children were able to maintain a consistent and impenetrable wall of silence in relation to a different type of event causing the injury. While I cannot form a concluded view on this point on the papers, the indicators point the other way: I have noted the comments in Ms LM’s report, and note the comments of J’s guardian who (in her recent Analysis document) describes her as a “lovely young person”.

The Local Authority has further maintained (para.47 and 48 of the Skeleton Argument) that at its highest, the threshold may not have been capable of being crossed even if I were to be satisfied that J injured X (i.e. non-accidentally). I respectfully disagree with the analysis of the law set out in these paragraphs of the skeleton argument. If I were to have found that X had sustained non-accidental injuries, these injuries would unquestioningly have represented ‘significant harm’, and that harm would have been “attributable to the care given to X” not being what it “would be reasonable to expect a parent to give him”. The fact that X was at the critical point being cared for by J does not mean that the threshold is not crossed. I do not consider that there are grounds for distinguishing the situation relating to X (as the injured child) from the situation relating to the parents (as opposed to the childminder) of the parents’ child in the Lancashire v B case in respect; and given that the mother/father and J would all form part of the family unit hereafter, there is no proper basis for considering the other children differently either.

As it happens, my difference of view on the law in this respect does not influence me in making my final determination.

As indicated above, in considering whether I should embark on this fact-finding I have had regard to the list of factors in McFarlane J’s analysis

Having reviewed the material carefully, listened to the views of the parties, their submission as to outcome and their reasons, I have concluded that the Local Authority should indeed be given leave to withdraw the application for a care order.

I have paid close regard to the checklist of factors set out above. Those factors, many taken individually but certainly taken cumulatively, point firmly against a fact-finding enquiry.

I have applied an overall welfare test to my decision, and have satisfied myself that it is not in the interests of any of the children to subject the family, the parents and J in particular, to this enquiry. Such a process would be neither proportionate nor in the children’s interests, it is a course which no party wishes, and which the guardians on behalf of the children discourage me from embarking upon.

Where does that leave the allegations of Non Accidental Injury? And how does that leave the parties?

I can do no better than to apply the principles most clearly set out in the speech of Lord Hoffman in Re B [2008] UKHL 35, [2009] AC 11:

“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

By reason of the withdrawal of the proceedings, the allegation of non-accidental injury now scores a zero.

It follows that the lives of this family should now proceed on the basis that the injuries to X were no more or less than a terrible, fluke, accident. There is not even room for a suspicion that the injuries were caused in any other way. The family, and the professionals around them, should proceed now on the basis that no-one (and I include in this of course M) is to blame for X’s injuries.

For the avoidance of doubt, I wish to add that the application for care order was entirely appropriately made in this case on the basis of (a) the presenting features of X at hospital in April 2012 when viewed against (b) the backcloth of concerns about this family, and (c) the medical opinions early expressed about the aetiology of the serious injuries. It is apparent from all that I have read that the social workers have worked conscientiously, not always in the easiest of circumstances, in the interests of the children. The court is, and the family should be, indebted to them for that.

My conclusion on the Local Authority’s application to withdraw disposes of the application for a care order. My judgment does not of course deal in any measure with the more historic concerns; it cannot do so, as I have heard no evidence about this, and could not make findings. While those concerns were never regarded as sufficient to support a contention that the threshold criteria were established, they did nonetheless register reasonably high on the index of concern with the local authority, and they register similarly high with me.

It may be that by shining a light on these earlier events (as the proceedings have done) will have afforded the parents some opportunity to reflect on more appropriate styles of parenting, and the needs of their children. Going forward, I hope that the parents will look to professionals for support, where appropriate, when they may be struggling with the demands of their children and particularly in the more challenging phases of their development. They have indicated a willingness to follow up investigations for A in relation to his medical presentation – variously considered at times to be cerebral palsy, but perhaps now felt to be more likely dyspraxia – and I encourage them to do so.

What happens now? J is anxious to return home to her mother and father. There is no reason why she should not do so; I am told that she will do so this evening. The younger children also need now to be returned immediately, and that is indeed the plan. They too will be home today.

This has undoubtedly been a traumatic chapter of this family’s life, which has been split up now for many months; the guardian for the younger children described from her recent conversations with the parents how they have felt “considerable pressure and fear” throughout the proceedings, compounded by the health concerns relating to their children. I have no doubt about that, and can only hope that they are able to begin the process now of recovering from this process. Where help is indicated for them, I strongly advise that they accept it.

The proceedings have undoubtedly, perhaps particularly, been stressful for J. I am told that she will continue to receive support from a counsellor at Lancashire Mind, and she is well supported at school, and currently in the home of her aunt; I am told that J engages well with her support services. J’s guardian has noted a warm and close relationship between J and other members of the family. Today she will have her wish fulfilled to return home. I hope that she too can begin now to put this chapter of family life behind her, and continue her studies fruitfully.