Neutral Citation Number:  EWHC 2219 (Fam)
Case No: NZ13C00115
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Date: 23 May 2014
Judgment Handed down 4 July 2014
MRS JUSTICE HOGG
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A, B, C & D (By their Children’s Guardian)
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Ian Bugg Counsel for the Local Authority
Miss Stone Counsel for the Eldest Child
A Miss Williams Counsel for the 1st Respondent
Miss King Counsel for the 2nd Respondent
Ms Spratling Counsel for the Children’s Guardian
Hearing dates: 12 to 23 May 2014
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MRS JUSTICE HOGG
Before me are care proceedings brought by SCC in respect of four children: A who was born on 21 February 2004 and is now 10; B who was born on 2 July 2007 and is now 6, C who was born on 5 August 2008 and is now 5, and D who was born on 12 July 2013 and is now 10 months.
The four children all have the same parents. The father has parental responsibility for B and C as his name is on their birth certificates. At the time of issue of these proceedings he did not have parental responsibility of A or D. However, he is the acknowledged father of all the children.
This has been a fact-finding hearing to ascertain the circumstances in which D was injured on or before 27 August 2013 when he was about 6/7 weeks old and A about 9½ years old.
The father was charged with Grievous Bodily Harm of D, stood trial in February and was acquitted.
The parents had not lived together for some time, since about 2009/10 when the mother says there was an altercation between them during which the father head-butted her. However, they remained in contact, conceived D, and the father when asked helped with the child care. In particular, after D was born and following his “paternity leave” he gave up his employment when further leave was refused. During this time he helped with the girls and D while the mother recovered, having given birth by caesarean.
Sometime before his birth the mother and her old friend V had agreed to go away together to Hayling Island for the August Bank Holiday weekend.
The mother made various arrangements for that weekend for the children.
Her sister R, a nursery centre manager, agreed to care for D from Friday evening until Sunday evening when she would return him to his father, who would stay and care for him in the mother’s home. Originally A was to stay with her maternal grandmother, but she became unwell. The plan changed so that A would stay at home with her father.
When R collected D she offered to take A as well, who was happy to go with her aunt.
R returned A and D to their father at the mother’s home at about 4.45pm on Sunday. R told me that while in her care D was a happy, contented baby crying when hungry, playing when awake. She had no concerns or worries about him and, she said, A was happy with her, and was loving and gentle to D. She had no concerns or anxieties about either child when she returned them on Sunday evening; nor did she have any concerns about returning them to their father’s care.
Between Sunday evening and Tuesday 27 August D and A were in the care of their father in their home, although A was out for much of the day during Monday.
B and C spent Friday night at home with their father, and on Saturday were collected by his mother to go camping with her. They were returned to their father at about 6.30pm on Monday. A was out playing at the time.
The mother had planned to be back home sometime during Monday evening but changed her mind and decided to stay with V overnight. She sent a text to the father to that effect.
Thus, on Monday night all four children were with the father at their home.
The following morning the father had a job interview planned which he was anxious to keep. He works as a chef in the public house/restaurant field.
During the course of Monday evening at about 10.00pm V answered the mother’s mobile. The father asked if the mother was available. V told him she was in the toilet and would call back later. V and the mother went to bed at about 1.00am. Just before 3.03am the father telephoned V. He was shouting about D crying. V said he sounded angry. She heard a baby crying in the background. The father rang off. V sent a text to him to say the mother was asleep, and offered to collect the children.
The father replied that she did not need to collect the children, and complaining of the mother: “Thanks to her I lose out on my job …. Just tell her I have had enough I am leaving. I have had no sleep since 3.00am yesterday so no job for me now thanks to her, and D is still screaming”. Later, “I’m ringing social services now”.
V again sent a text offering to pick the children up. The father replied that the girls were asleep and it was “no concern of hers but the mother ...”.
V replied asking why he had called social services. That was the last text, and timed 3.24am. The father did not reply until 9.08am when he sent a text saying it was “too late now, have lost job”. There were further text messages passing between V and the father between 9.50am and 10.54am during which he complained about the mother’s absence and the lost job interview and indicated that various members of the family had been trying to contact V and the mother without success.
On Tuesday at about 8.35am the mother telephoned her cousin S who lives across and just down the road from the mother’s home. The mother told S that the father was not picking up her calls and asked S to go round to check and tell him she was trying to ring him.
S went to the mother’s home, a short walk of 2 minutes. As she approached the house she heard through the open window the television playing upstairs in the girl’s bedroom, and D crying.
She knocked on the window and door. Eventually A let her in, who told her that D and her sisters were upstairs, and that her father was asleep on the sofa.
S asked A to collect D and her sisters and bring them downstairs, which she did. When they were all in the living room A tried to wake her father, who woke up “groggy and glassy eyed” and said “I don’t fucking care” that he had not slept since 3.30 am that morning as D would not sleep. S thought the father was acting unusually. She had not seen him behave like that before. He was shouting and swearing about the mother, banging doors, in the presence of the children.
S decided to take all the children to her home to take them ‘out’ of that situation and let the father have a couple of hours sleep. She asked A to collect their things.
S knew D well. She described him as normally a placid baby, who would only cry if hungry. This morning “he did not seem himself”, he was “wailing”. She tried to give him a bottle but he spat out the milk. She changed his nappy, but only pulled his vest up to his tummy button, enough to change him.
She took the children to her home and called the mother, asking her to return as soon as possible, and that she had taken the children to her home.
She attempted to comfort and settle D. He continued to wail, he seemed to doze off and on, but “sobbed” in his sleep. At one point he appeared to shiver, and be cold. At about 9.10am she asked A to go and collect a cardigan and mittens for him from his home.
The mother’s sister T in the meanwhile had arrived with her four children at the mother’s home. In a telephone call S asked the father to send T over to S’s home and she and the children arrived soon afterwards. T also said that the father was angry with the mother for leaving him with the children.
T tried to settle D. She tried to feed him, but he rejected the bottle. He started to lift his left leg up towards his tummy. The ladies thought he might have some trapped wind. They took it in turns to try and settle him. For a time he slept in a double buggy. While S gave the girls a bath T changed D. She did so by removing his clothing. Whilst doing so, and lifting up his right arm, he cried even more, and when she had removed his vest she saw some purple marks on his right shoulder and upper arms. She called S to look, and they discussed the marks.
The mother’s sister R telephoned to ask if the mother was back. S replied “no”, that she had the children and described the circumstances in which she had collected them. T also spoke to R, making her aware of the marks and asked R to come over.
R arrived some 40 minutes later. It was mid-morning, perhaps 11/11.30am.
Before R telephoned S she had been in contact with the father by telephone and texts. He had sent her a text, which she replied to by calling him. She described him as “ranting”, shouting and angry, swearing and criticising the mother for not being at home to care for the children so he could go to his job interview. He said he was tired and had not had any sleep, but that S had the children. R tried to calm him down and said she would try to rearrange the interview on his behalf. Later she telephoned the father as he was not answering his mobile to his would-be employer. When she spoke to the father he sounded “very drony”. R then tried to telephone the mother but failed to make contact. She then telephoned T to ask her to go to S to check all was well.
S called R to say she had the children and T was with her, and explained the circumstances of how the children came into her care that morning. She also said to R that while at the father’s home how she felt D was not himself, seemed to be recovering from a “teary” episode and cried in a way she had not heard before. S confirmed this in evidence to me. She then went on to tell R that T had found marks on D when she had tried to change him, but she and T were unwilling to send photographs of those marks to R. As a result R left work and travelled to S’s home to see the marks for herself.
On her arrival at S’s home R met S and T who were clearly anxious and worried about what had happened to D to cause the marks. She said that almost at once T said “I bet A has done it”, and that all the children could have heard this remark. T denies saying this.
R was anxious to see D and anxious to ensure the children did not see or hear anything untoward and shoo’d the children into the garden. T says that it was not just R shooing the children into the garden, but all three adults.
It is clear to me that all 7 children were in and around the relatively small house, hearing and seeing the adults worried and anxious for D and wondering what had happened to him.
T says that it was “in the air”, my expression, but an atmosphere in the house after the marks were seen; that A may have been responsible in some way although T denied voicing it herself. She said all the children could have heard what the adults were saying, and in the initial stages could have seen the marks on D.
R saw D and described him as very distressed, a grey colour, and cold to the touch. She removed his clothes and saw what she identified as pressure marks on his upper body, right shoulder, and marks under both armpits. He was very stiff and distressed while she redressed him. She comforted him until he relaxed, and then called the father to ask if he had noticed anything wrong with D. The father answered in a “sluggish, groaning voice” he had not and when asked whether he had seen any marks on D he said “no”.
She asked if anything had happened involving A. Again he said “no”. She felt that the father was becoming less responsive, lacked concern for D and told him D needed to go to hospital, that he was not right. Again there was no response by the father which triggered from her “If I find out you have touched him I will kill you”. The father replied “I didn’t, I didn’t”. R put the receiver down and expected the father to come over to S’s house. He did not.
R then took A upstairs away from the other children to talk to her and ask her about the weekend after she returned to her father and D. She thought A was a bit “cagey” but confessed to being a bit naughty, and Daddy slapped her arm. She said nothing more about the weekend. They both came downstairs and A went into the garden with the other children.
The mother arrived shortly afterwards and was briefly told by her sisters and S what had been seen on D. The mother was shown the marks and said “I am going to kill him”, meaning the father. She went to the back door into the garden to see her daughters. A was there, and burst into tears saying “I didn’t do it, I didn’t do it”. The mother comforted her.
By this stage, I note that A had been asked twice by S and R whether anything had happened to D, and no doubt, if nothing else, she had picked up the worry and anxiety in the adults about her brother.
R had thought that D should go to hospital before the mother arrived. S and T were also anxious about him and once the mother had arrived and the injuries seen by her the decision was taken. R tried to put him into his car seat, but D stiffened up, would not settle and cried.
While R held F the mother called for an ambulance, which arrived at 1.00pm.
The paramedics noted that D was “pale and just didn’t look right”. Their initial checks did not reveal any obvious problem. One of the paramedics said when his right arm was moved D cried “it was a high pitched cry”, “a horrible sound”. He was undressed and at that point the bruises were seen.
They put D into the ambulance when they noticed his whole body twitching for about 5 seconds. Whilst driving to hospital his right arm twitched for about 5 seconds. The mother said he had twitched his arm at home, and T told me she had seen his left leg “flicker” at the home.
D reached the hospital at about 1.20pm. He was examined urgently. He was observed to have jerky movements, perhaps indicating seizure activity, his left pupil only was dilated and red linear marks were noted on his right shoulder, right upper arm and around his chest under his left armpit.
Blood tests were taken and anti-epileptic medication and intravenous antibiotics given in case there was any infection.
A CT scan of his head was performed at 5.30pm. It revealed a normally developed brain with no evidence of skull fractures or scalp swelling, but it revealed brain abnormalities with the likelihood of intradural or subdural acute blood within the falx, acute blood scattered over the surface of the brain probably in the subarachnoid location, mostly seen bifrontally and bilaterally high on the vertex (top of head) and a global loss of the grey/white differential of the cerebral cortex in keeping with hypoxic/ischaemic injury, caused by lack of oxygen.
Later that evening it was noted that he was suffering from increased seizures and apnoeas. He was intubated and ventilated and transferred to a London Teaching Hospital Paediatric Intensive Care.
By this time non-accidental injury was suspected by the doctors. There was no obvious medical reason for the head injuries and body marks, and no history of an accident.
At the hospital in London his eyes were examined. A defect in his right eye was observed, and a full Ophthalmology Review by a Registrar took place at 8.45am and by a Consultant at 2.00pm on 29 August 2013. Those reviews revealed extensive retinal haemorrhages to his right eye, and to a lesser extent to his left eye. There was no evidence to suggest there had been older injuries, and all the blood looked acute and from one episode.
A Skeletal Survey was performed on 2 and 5 September 2013, but no fracture or injury was revealed.
An MRI Scan was performed on 3 September. Changes in the brain were noted in keeping with “profound hypoxic ischemic injury to both cerebral hemispheres with relative sparing of the basal ganglia and cerebellum. Subacute blood was disclosed over the frontal pole particularly on the left side, the left parietal region and the interhemispheric fissure posteriorly, and over both cerebellar hemispheres”. An MRI scan of the spine also revealed “extra axial collections in keeping with subdural acute blood over the lumbar sacral region of the spinal cord travelling down to the end of the cord and the cauda equina”. No trace of blood was seen along the upper part of the spine (per Mr Jayamohan paragraph 4.5).
The treating doctors considered that D’s injuries to his head, spine, eyes and bruising to his body were the result of one or more non-accidental event(s). There was no history of an accident or other explanations which could account for the injuries, and various tests performed did not reveal any organic or congenital cause.
The medical experts instructed by the police following D’s injuries were Mr Jayamohan, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford, Mr Newman, Consultant Paediatric Ophthalmologist, Alder Hey Children’s Hospital, Dr P.A Kenny, Consultant Paediatrician formerly a Consultant in Paediatric Accident & Emergency Medicine, and Dr Peter Morrell, Consultant Paediatrician formerly of The James Cook University Hospital, Middlesborough was instructed in the criminal trial on behalf of the father
I have read the reports provided by all the experts, and the transcripts of those who gave evidence in the Crown Court in the criminal proceedings against the father in February 2014. I also heard from Mr Jayamohan, Dr Kenny and Dr Morrell.
In this case there is no dispute about the medical findings and conclusions.
It is accepted that D suffered head injuries, eye injuries and injuries to his spinal cord in the lumbar sacral region, and physical marks, being bruising on his right arm, shoulder and chest on the left hand side.
There is no evidence of an organic or clinical cause for any of the injuries. There is no history of an accident or incident which would account for the injuries.
The doctors agree that the head, spinal and eye injuries are consistent with a shaking or shaking with impact incident: that the force required would be in excess of normal handling or rough play, and that an observer would be aware it was inappropriate and potentially harmful to the child. The bruising is considered to be that of grip marks: the child being held firmly and in excess of normal handling or rough play, and would have caused the child pain and distress at the time.
Without a history of an accident or other incident or medical explanation all the experts concur that the most probable cause of all the injuries are that they were non-accidental in origin.
I therefore find that on the balance of probabilities they were inflicted, and non-accidental. It is not to say they were caused deliberately with the intention to harm or injure D.
The medical experts are in agreement as to the timing of the incident which caused the head injuries.
It is agreed that it occurred at some time after he was last observed to be well.
It is also agreed that following the brain injury he would not have been “normal”, but that some of the symptoms may have been subtle, and initially not obvious all was not well or that he had been injured. Initially, a child, or even adult may not have appreciated that he was ill but merely out of sorts.
It is agreed that during the morning of 27 August, after S collected him, that D’s condition deteriorated. There is agreement that the head injury was very serious given the level of hypoxic ischaemic injury, but that the symptoms evolved during the course of the day.
S’s evidence was that when she went to the mother’s home at about 8.35am she thought D was not right, not himself. She was familiar with him, knew him to be a contented placid baby who only cried when hungry or uncomfortable. He was crying, it was not normal, he rejected his bottle, she could not console him. The doctors agreed that taken with the later deterioration of the child and injuries found, that these symptoms were consistent with a child who had suffered brain injuries. The later descriptions of a change in colour, twitching limbs, an inability to be consoled, were all continuing signs of a brain-damaged child.
The doctors were in agreement that none could be specific as to the precise timing of the incident, but all accepted that on the basis that S’s account is accurate there is evidence to say that by the time she arrived at the mother’s home shortly after 8.30am D had already been injured.
Each of the doctors thought that the injury was recent and the best that each could say was the injury had been sustained a few hours before S’s arrival. No doctor would be tied down as to what a “few” hours meant.
Dr Morrell was specifically asked “Could D have been injured at about 7.00am Tuesday morning, or at 3.00am that morning?” He replied that either could be consistent with a “few” hours prior to 8.30am that morning. He said in his view the window of time was within 24 hours of 8.30am Tuesday but felt that the event taking place during the day time on Monday was unlikely. He thought it was possible it occurred on Monday evening being sometime after 7.00pm. He would not be more specific, and repeated “within a few hours”.
Dr Kenny was of a similar view as Dr Morrell. She thought that the injury was sustained a “few hours” before 8.30am. She would not be dogmatic and considered that the injury was a few hours old by the time S saw the child. She did not think that it was sustained the night before, and referred to the period in the early hours of Tuesday morning when there was evidence from the father and V that the baby was crying, which in itself could have triggered an incident.
From Mr Jayamohan’s point of view being that of a neurosurgeon who regularly reviews neuro-radiological scans to decide treatment rather than a paediatrician, he thought that there could be a 36 hour window, between Sunday evening to Tuesday morning, but clearly favoured the hours shortly before S’s arrival. He was anxious to say that his expertise is that of a neurosurgeon, and that it was important to consider the clinical picture as well as the scans; that evidence of the baby’s presentation and behaviour was very important.
I accept the evidence of S and R, and their descriptions of D during Tuesday morning. It is clear that he was not well at 8.30am, although the symptoms were subtle, and he deteriorated during the morning. No one has criticised them for not calling an ambulance either. They did not know what had occurred or what was wrong.
On the basis of the medical evidence I find that D’s condition deteriorated and the symptoms evolved during the course of Tuesday morning culminating in him being admitted to hospital by 1.20pm; that the initial indications of a change in D’s presentation was apparent and noted by S soon after 8.30am.
I also accept and find that the causative incident occurred a “few hours” before that time and that the window of time could extend back at least until the early evening on Monday, but that the further away from 8.30am it became less likely; that the most likely time was the period from the early hours of Tuesday morning. None of the doctors disagreed with this; moreover each favoured this window of time.
From the evidence before me the only adult in the house in the preceding 12 hours was the father. With him were his three daughters.
As for the bruising the experts say it could have occurred at the same time and part of the same incident as that which caused the head injuries, or they could have been caused by an earlier and separate incident. They could not say.
It is accepted by all parties that D sustained injuries as described by the medical experts.
The head, eye and spinal injuries were consistent with a shaking or shaking/impact event, and the bruising by a firm, gripping event. The doctors have said both were non-accidental. There is no evidence to contradict this view.
The father denies doing anything to harm D whether deliberately, accidentally or otherwise. He says he does not know how or in what circumstances or when D was injured.
On his behalf it is suggested that A could have caused those injuries. To me he said it was probably A, or one of her sisters as it was not him. It has been his case that it was not him but probably A who caused the injuries.
A in her ABE and evidence to the Crown Court denied doing anything to hurt D. She was cross-examined by her father’s counsel and challenged.
I have to identify if it is possible the circumstances and perpetrator of the injuries.
The test I have to apply is the “balance of probabilities”. Is it more likely than not that something happened is the test.
The father suggested to me that in some way A, or even one of her sisters, might have caused the injuries to D.
The paediatricians were asked to consider whether in their view a 9 year old child would be capable of causing the injuries.
The doctors were of the opinion that D had been shaken, or shaken with impact. The three experts agreed that for a six week old baby to sustain such serious head, eye and spinal injuries the shake had to be vigorous and of some duration. Although they were unable to say what force was required or the necessary duration they all said it would be beyond that of normal handling, or rough play, and the gripping itself would be beyond normal play or rough handling, and an observer of the incident would know it was dangerous and potentially injurious to the child.
With that in mind the two paediatricians considered whether a nine year old was able to shake the baby with sufficient force to cause the injuries. They were aware that A was a very overweight child, whose height was on the 50th Centile. They did not consider that her weight would be of great, if any relevance to the issue. They could not discount it.
Both the paediatricians had many years and extensive experience and neither had come across or knew of a recorded case in which it had been accepted that a nine year old had caused head injuries to a baby by shaking.
They had obviously come across cases where children had injured a child but not within “a shaken baby” case.
They were aware of recent research which they regarded as limited in its help in which it was learnt that an average 9 year old child could shake a dead weight of 5.2 kilograms, but could not maintain the shake for as long as an adult. It was not possible to measure the force of the shake, whether a child could in fact shake a live baby forcefully enough or for long enough to cause head injuries. D at this stage weighed 5.1 kilograms, so was just within the margin.
Neither doctor found the research as particularly helpful in advising the Court as to whether A could physically have shaken D.
Dr Kenny found it very difficult to accept that A injured D. She referred to parts of the evidence which contra-indicated that finding. She was aware that children are often scapegoated in such cases, and I add this is something I also have experience of, and she wondered whether a nine year old's hands were either big enough or strong enough to exert the pressure to cause the bruising, and maintain the force and duration required to cause the head and spinal injuries.
She said “I cannot exclude it. I cannot say it is not a possibility”.
She also indicated that there was no evidence of the child being dropped, perhaps downstairs or off a piece of furniture. There was no history or clear account of such an event. D had no apparent scalp or skull injuries or other injury which would suggest an impact onto a hard surface. She thought that had there been such an incident there would have been some external sign.
Dr Morrell gave similar evidence on this aspect as Dr Kenny. He considered the bruising on D and thought it “somewhat unlikely” a child of 9 could cause the degree of bruising found on D, adding he thought it very unlikely a 9 year old's hands could produce those marks: “I find it difficult”.
A was described as on occasions being spiteful to other children. Her father said she could be, her paternal great grandmother said she could be, even her maternal Aunt T said she could be. T was unable to provide an example of A being spiteful, and admitted she was only repeating what she had heard from others.
It is accepted that the three sisters argued, and the arguments sometimes became physical, pinching, pushing, slapping, not punching, and that most of the arguments were between A and B, who herself was described as a forceful personality. C could also become involved and ‘stir the pot’. It is known that there were difficulties with the girls; they lacked boundaries, and were sometimes difficult to manage.
The mother defended A, and while accepting the pushing and shoving, would not accept she was spiteful or jealous of D, but was loving and gentle with him both before and after the incident in August. She and the father had taught all the girls to be gentle with the baby, how to hold him and protect his head, to sit down on the sofa when cuddling him and not to touch him without an adult being present.
No one in the mother’s family gave information contrary to the mother’s evidence. T said on one occasion she saw A throw D up and down in the air, but ceased to do so when she, T, shouted at her to stop, but even then T did not say A was being nasty or unkind to D, but was fearful there could be an accident.
The father could not give specific evidence about A being spiteful, jealous, unkind to D.
His father N and his partner P had taken over the care of the girls in August after D was admitted to hospital. They clearly found looking after the children a considerable commitment, and to some extent a burden, and a drain on them. They were both working full-time; the children were at times ill-disciplined, difficult and argumentative. All the girls played with the chihuahua and liked to thrown him up and down in a playful way. It was suggested that A had thrown the dog down their stairs, but N who saw the dog falling down the stairs could not say whether A threw or dropped him. In any event she later said he had wriggled out of her arms and apologised. P seemed to think on one occasion she stopped A from kicking the dog. I am not satisfied that she was going to kick him.
Since their return to their mother’s care both N and P have maintained contact with the girls, and returned to a grandparent role, rather than a carer role.
I heard from RN, Social Worker, who since November has come to know the girls well. She accepted that there were concerns about “boundary setting”, and she has worked on this with the mother, and the situation has improved.
She has seen A with D and described her as very sweet, caring and very proud of her baby brother, wanting to show him off to everyone at the school gates. She talks gently and kindly to him. She has observed what is described as “normal sibling interaction” between the girls. She has seen B and C hit A, who has retorted verbally, not physically. She has not witnessed anything excessive or untoward occurring between the sisters, and she has not seen A or B or C behave inappropriately towards D. I accept RN’s evidence.
I heard from the father’s own grandmother, Q. She was critical of both parents’ management of the girls, the ill-discipline, lack of boundaries. When she and her daughter commented about this to the father he would not accept any criticism of his or the mother’s parenting, indicating it was his and her business not his mother’s or grandmother’s. Q felt strongly about A saying sometime ago she was pushed to the ground by her, and the girls just laughed “hysterically” while the mother said nothing, and there was no apology. She was a woman who “protected her own”. After the father had been charged and was on remand she developed a view that if it was not the father, who denied causing the injuries to D, then it had to be A, and she thought it would be in A’s character to be able to cause harm. She wanted to give evidence to me to put her views forward. No doubt, having seen her in evidence, she has put her views about in her family.
A in her ABE interview and her evidence during the criminal trial denied doing anything to hurt D.
It is said by T that on the morning of 27 August while in S’s home R had asked A about the weekend and after the mother had arrived, that she heard C say that A had shaken D. Afterwards, on her way home with her own children in the car her elder two T1 aged 9 and T2 aged 8 told her that A had told them in the garden “I did it” without any further explanation.
I have watched the ABE interview of T1 and T2 and read the transcripts of those interviews and of T1’s evidence.
The children’s evidence is confusing and not reliable; I cannot put much weight on it. The ABE interviews were conducted on 2 October, some 6 weeks after the fateful weekend. Between that time, while T said she did not discuss the matter with them, she could not discount them hearing adult discussions about D and how he came to be injured. Moreover, on the 27 August while D and they were in S’s house there must have been a lot of anxiety, commotion and discussion between the adults about D’s unhappiness and marks on him. No doubt all the children were aware something was amiss and may well have overheard some of the discussion between the adults.
A assured her mother that morning she “didn’t do it”. She had already been asked by S and R if anything had happened over the weekend, and she would have witnessed the commotion and may even have overheard the adults discuss D’s injuries. She may have seen the marks on him. Being asked, however gently, and knowing her baby brother was hurt she may well have felt she was being blamed. I do not doubt she was tearful and anxious; she may also have been worried she would get into trouble. I do not think that anything more specific can be read into her tearfulness and upset.
In her evidence to me the mother told me that while she was at the hospital in London late on the 27 August P came to collect her key with A. The mother and A were both emotional and tearful, and while alone A told the mother “Dad grabbed D by his romper, shaked him and threw him on the sofa”. The mother did not ask any questions of A, but gave her a cuddle.
She told me she did not mention what A had said to anyone for some time. She did not know if it were true, she did not want to be seen putting words into A’s mouth, and wanted to wait and see what A might say.
She first mentioned it in her first statement to this Court dated 24 October 2013. She did not refer to it during the police investigation or criminal trial, thinking that perhaps A might mention it. She referred to it again in her statement dated 14 May 2014.
A was ABE interviewed on 28 August. While talking about Sunday evening at home with her father she said she was watching a DVD, lying on the sofa, falling asleep, hearing D cry and hearing her father shout at him, telling him to shut up, and seeing her father grab and shake D. She said she told her father to “stop it now” but he did not listen.
In her evidence to the Crown Court she said that during Sunday night while she was watching the film D was crying and she saw her father grab him, shake him “really hard”, not gently, and hurt his mouth, and heard her father shouting at D telling him to shut up.
She was out for most of Monday and slept upstairs on Monday night while her father and D slept downstairs. She did not hear anything over night.
Following the father’s acquittal at the Crown Court, on 20 February 2014 the Guardian met A who indicated that she thought the verdict was wrong as “my dad did do it”. She was there, she did not do it, D could not do it to himself.
The Guardian then asked her about the events at home during the August weekend. She gave an account of sleeping downstairs on the sofa as a treat. D was crying in his Moses basket and she saw her father grab him with one hand and shake him, and then demonstrated with a cushion, shaking it roughly with one hand, and throwing it roughly onto the bed on which she was sitting. She said D bounced up and he hit his head hard on the sofa which she said was quite hard. D was screaming. The following morning he was crying a lot and she picked him up and “held him very carefully”.
The father gave evidence at length in the criminal trial, and to this court. I have read his statements to this Court and the transcripts to the Crown Court. He also gave a very short statement of denial to the police otherwise he gave a “no comment” interview to them on legal advice.
Throughout he has maintained his innocence of causing D any harm. That he does not know what happened to cause the injuries. He speculates that as it was not him then it was probably A or perhaps the other girls. Perhaps there was an accident, perhaps he was dropped, he could not say what happened or who did it. It was not him.
The father does not know what happened or when. He saw and heard nothing.
His evidence to me was confusing and at times contradictory and inconsistent, and on occasions at variance with what he said in the Crown Court.
He denied using cannabis or any drugs or alcohol that weekend while caring for the children, although he had long been and was still a regular user of cannabis and diazepam, but not while in the presence of the children. He used the drugs to relax and de-stress.
He told me he had a restless night on Sunday with D as he needed to be fed and changed every 2 or 3 hours and just when he dozed off he was woken by D crying for a feed. He denied grabbing, shaking or throwing the baby as described by A. He accepts that D bumped his chin on his father’s shoulder while being winded/burped, but nothing else happened. He accepts he, A and D all slept downstairs that night.
He accepted that for much of Monday A was out of the house. He was a bit annoyed with her for going out without permission and taking money from the house.
The other girls were returned home, had a bath and went to bed. A came home, had a doughnut and drink and went to bed.
He told me he expected the mother to return at 5.00pm as arranged, but she did not return. He became increasingly angry with her for staying away, as can be seen by the text messages he sent and he accepts that this was the case. In addition he wanted to arrange with a dealer to buy some cannabis for when he left the house. He denies using any that night.
He sent a series of texts to the mother, the last being that evening at 22.43pm on 26 August, and another at 2.46am on 27 August. V says that at 3.03am he telephoned her, when he shouted at her and she heard a baby crying. He accepted he telephoned V at about this time because he was angry with the mother, and D was crying not screaming.
There then followed some text messages between the two.
According to his evidence which at this point is very confused and contradictory, that he fed D and put him back into his basket where he went to sleep, and tried himself to sleep which he did for about 30 minutes before waking up. He made himself a coffee, and finally went back to sleep about 5.00am.
He says he did not hear D wake up for a further feed which would be due some 3 hours after his last feed; he did not hear D cry again; he did not hear A come down and collect D, or S knocking on the window and door at 8.30am. But, he said he was drifting in and out of sleep and heard the girls upstairs jumping about behaving normally after they woke up, and the television was on upstairs.
He admitted he swore at A when he woke up, swore about her mother and her absence, shouted and banged doors in the presence and hearing of the children and S.
He said he took diazepam sometime after R had telephoned him about D’s injuries, and said he did not want to go over to S’s house as he would face a “hostile environment” from the mother’s family.
His evidence was highly unsatisfactory. It was unreliable. He admitted at specific times lying, and when under pressure was unable to remember many details. He showed little or no emotion or understanding of the impact upon A to stand accused of causing the injury, of giving evidence in the criminal proceedings, and showed little emotion when considering the injuries and consequences for D. It may be he had his emotions firmly under control. However, that would be in stark contrast to his behaviour and anger he displayed on the Monday evening and Tuesday morning.
Overall his evidence was thoroughly unconvincing. When he said he heard the children jump around upstairs when they had woken, but not D crying or A coming down to collect him because he was so tired and so deeply asleep he was not credible.
The important ‘few hours’ before 8.30am he could not or would not account for.
I find that at 3.03am on Tuesday morning that V heard him shouting and D crying loudly, if not screaming. The father was frustrated and angry with the mother; he had wanted to buy cannabis on his own admission.
He claims then not to have heard anything more until 8.30am except for the children jumping about.
If all had been well he would have heard D wake up and cry for a feed sometime between 5 and 7.00am. He would have heard A come down and take D out of his Moses basket, perhaps put him into the car seat, and take him upstairs.
I do not know what happened specifically to D or precisely when, but I have found the most probable window of time for the head injuries was a few hours before 8.30am. The father is holding back detail of the events of those hours. I find he knows more than he is saying, and he knows what happened.
I accept that something may also have happened on Sunday night. I accept that A saw him handle D roughly. It may be some of the bruises were sustained that night, but according to the agreed medical evidence it is not impossible, but unlikely that the head injuries were sustained then. The doctors did not rule out the possibility of more than one incident. They were clear and in agreement that the probability is the serious head injuries were sustained a few hours prior to 8.30am when S noticed D was not right.
I accept also the doctors’ evidence, doubts and reservations about a 9 year old being capable of causing such injuries. If it is unlikely for a 9 year old to be able to cause those injuries it is even more unlikely for a 6 and 5 year old.
The father is an unreliable witness. He is holding information back.
I find that he lost his temper, and lost control grabbed/gripped D in such a way as to cause the bruises, if they had not been sustained earlier, and shook him forcefully; as a result of which he caused the head, eye and spinal injuries to D and that this event most probably occurred in the early hours of Tuesday morning.
For completion I make it clear that I do not think A or her sisters were in any way responsible for any of D’s injuries, and I exclude them from being responsible in any way.
It has been submitted to me that in addition to the significant harm caused to D in August 2014 significant emotional harm has been caused to A, B and C as a consequence of the events in August, and earlier.
The father admits that there were two incidents in the family home when he lost his temper and trashed the bathroom and television when A was very small, and later in 2009 when there was an argument and shouting during which the mother alleges be head-butted her as a result of which she was injured, distressed, and the police involved. The girls were aware of the incident given the noise, if they did not witness it. In either event it would have been a traumatic incident for them and no doubt frightening.
The father also admitted to me that in the past he was a regular and frequent user of cannabis and diazepam although he had tried to cut his usage down, and said he never used drugs around the children. The fact that he used the drugs frequently and that he suffered stress without their use must have had an impact on his behaviour, his ability to help the family financially and generally on the children if he became stressed.
During his evidence it was very apparent that he had little insight into the effect of his behaviour on the children, and showed no empathy for the impact of the events of the weekend in August 2013 on D, A, or the other two girls. He displayed no understanding of the effect and impact on A of his denial for the responsibility of the injuries to D, of her being blamed for the injuries and her being interviewed by the police and giving evidence to the Crown Court, during which she was cross-examined by his counsel.
He is self-absorbed and self-centred, thinking about himself and not the children.
It is not to say that he has been a bad father. He loves the children and they love him. He helped the mother care for them and in particular after D was born. She said he was a “good provider”. I am critical of him and his behaviour, but I can also see he has good qualities. He needs to reflect on his own behaviour and how it has and still affects other people, in particular his children.
As it is I am satisfied that in addition to D being significantly harmed by the father the girls; particularly A, since August, has been significantly emotionally harmed. Their baby brother was very seriously injured, their lives were disrupted by being removed from their mother’s care, and A was blamed by the father and other family members. It must have been a traumatic, distressing and confusing time for her and her sisters. 155.I am satisfied that the criteria under Section 31 of the Children’s Act has been met in respect of all four children, and particularly so in respect of D and A.