E (A Child) [2017] EWFC 101 (6 March 2017)

HIS HONOUR JUDGE GARETH JONES:

1. I have before me an application for a Care Order in respect of a child I shall identify as “E”, born on 19^th August 2016. The application has identified a number of shortcomings in the child protection arrangements in North Wales, and there is a public interest to be served by publication of this judgment.

2. The parties to the proceedings and their legal representation are as follows:

(i) the Local Authority, who I shall identify only as “the Local Authority” in the course of this judgment, is represented by Miss Erwood;

(ii) the mother, who I shall identify only as “the mother” in the course of this judgment, is represented by Mr Blythin;

(iii) the father, who I shall identify only as “the father” in the course of this judgment, is represented by Mr Sefton; and

(iv) E’s Guardian, Miss Caroline Crosswood, is represented by Miss Mountford.

The background

3. These proceedings initially came before the Court as a result of an application for an Emergency Protection Order, which was granted by me on 19^th October 2016. This was followed by an application for an Interim Care Order, which was granted by District Judge Thomas on 26^th October 2016.

4. The basis of the Local Authority’s application was that E’s immediate safety required removal from parental care (initially into foster care) but mercifully after 10^th November 2016, into familial care by the paternal grandmother.

5. The reason for that was the medical identification of a healing fracture to the posterior end of E’s eleventh rib. In addition, there was some bruising to E’s left cheek. These injuries (and more particularly the former injury) gave rise to the reasonable belief that the threshold of significant harm, required under sections 31(2) and section 38(2) of the Children Act 1989, had been met.

6. Initially the Court and the Local Authority had access to the medical reports of Dr B, a Consultant Community Paediatrician, and Dr F, a Consultant Radiologist, at the Third Intervenor hospital, and Dr A, a Consultant Radiologist at Y Hospital [hospital identified], from whom a further opinion was sought by way of a review by Dr F.

7. In the course of these proceedings, the Court acceded to applications under Part 25 of the Family Procedure Rules, to instruct Dr M, a Consultant Paediatrician, and Dr C, a Consultant Paediatric Radiologist, as the second opinion experts in this case.

8. Conventionally, a case of this kind with a threshold suggestive of a non-accidental inflicted injury, and with the anticipated contested issues of perpetration would have taken at least six months to resolve. During this timescale the parents of E (a newly born infant as at August 2016) would have been deprived of their care of their firstborn child, in effect from 19^th October 2016. The distress of the parents when I granted the Emergency Protection Order was evident to all in the courtroom.

9. As it has subsequently transpired, the initial medical evidence upon closer evaluation by the second opinion evidence (to which I have referred) did not support the continuation of the interim Care Order, and the continued retention of E from his parents’ care. Consequently, on 27^th January 2017, the interim Care Order was discharged, and the Local Authority was permitted to withdraw its application. E was reunited with his parents after an interval of approximately thirteen weeks.

10. It is has been the comparatively prompt return of the second opinion medical evidence in this case which has brought the parents’ ordeal to an end. I have expressed to the parents at an earlier hearing, my apology (on behalf of the child protection system) for the circumstances which have arisen in E’s case. In essence, the medical confirmation that E’s fracture was birth related, and not a potentially inflicted injury, led to the discharge of these proceedings.

11. The father has accepted that the soft tissue injury was caused by the excessive application of pressure by him, with the identified bruising resulting therefrom.

12. On 21^st December 2016, I identified in a Court Order the following issues to be considered by the Third Intervenor, Y Hospital [hospital identified], X Police Authority, and any other relevant Child Protection Agency:

(a) No photograph of the soft tissue facial bruising was provided as a matter of routine, by the Third Intervenor hospital during the joint section 47 investigation between the Local Authority and X Police Authority. It was asserted that since parental consent had been withheld, this precluded the provision of this photographic evidence. While this alleged refusal was disputed on behalf of the parents, this does raise an issue about agency co-working in North Wales, and whether the involvement of X Police Authority should immediately ensue, if there is any doubt about parental consent, so that important photographic testimony can be obtained of any detected injury (without parental consent) as part of the Police investigation into a possible suspected injury;

(b) The delay in obtaining the reviewed opinion by Dr A from 21^st September 2016 to 12^th October 2016;

(c) Whether should have considered whether the fracture was birth related, and any shortcomings in the supplemental information provided to her by the local general hospital;

(d) Whether Dr A the supplemental reply by Dr A indicated an incomplete understanding of the legal burden and the standard of proof in child protection cases, which might potentially result in Court proceedings;

(e) The absence of a second skeletal survey; and

(f) The absence of blood testing during the section 47 joint investigation.

The medical evidence

13. Dr B, in the Child Protection Report dated 21^st September 2016, identified the bruising evident upon examination, and he noted also the history. Under the heading “opinion” he indicated:

“… it is possible that the bruise was caused by the father’s over-enthusiastic manipulation of the baby’s cheeks”

as explained by the father, and as noted from an early stage by Dr B in his report.

14. I am puzzled, however, by some aspects of this report. Under its heading it is stated:

“This report does not constitute a witness statement”

and it is described as being:

“Private and confidential – not to be disclosed without the permission of the author”.

It is perfectly true that this report does not comply with the requirements of the Family Procedure Rules for the preparation of witness statements. No permission under Part 25 of the Family Procedure Rules could be given at this early stage of the child protection investigation, because proceedings had not been commenced.

15. However, local authorities inevitably use (and are usually obliged to use) the reports of investigating clinicians, when children are routinely presented at the casualty department of a local general hospital. These reports are often used as the basis of applications for protective Orders at the initial stages of proceedings, under the Children Act 1989.

16. Such a report is not in these circumstances “private nor confidential”. While it may not be a witness statement, it is certainly relied upon by the Court as evidence which may be supportive of the Local Authority’s initial application, which may include an application for a removal of a child from parental care.

17. It may be necessary to clarify this position with the Third Intervenor and its clinicians as a matter of urgency. Child protection is a difficult task but it is a critically necessary task. Medical clinicians are required to provide the relevant medical evidence so that a child may be protected and avoid harm. This may involve the use of reports provided by examining clinicians in Court proceedings. Privacy and confidentiality simply cannot be guaranteed in these circumstances. If clinicians refuse to provide medical reports in these circumstances, then it is up to the Third Intervenor to make the necessary contractual modifications to ensure that this critical medical service is afforded to vulnerable children in North Wales.

18. Dr A’s second opinion, dated 13^th October 2016, confirmed:

(i) a radiologically normal bone density;

(ii) a fracture between two to four weeks of age at the time of the skeletal survey;

(iii) that rib fractures resulted from abnormal, excessive squeezing/compressive forces applied to the chest;

(iv) “… in the absence of a clear and satisfactory account of the mechanism of trauma, or of a medical explanation for the fracture, inflicted injury must be (sic) excluded/included”.

19. Dr A was subsequently asked to clarify this last opinion. She was “unsure as to what has caused confusion” on 26^th October 2016 (see E9). She continued:

“If a satisfactory account of the mechanism of injury has not been offered and there is no evidence of an underlying medical cause for the fracture (as determined by the clinicians) this fracture may have been caused by inflicted or non-accidental injury (interchangeable terms) and this must be excluded by other investigations – not just imaging”.

20. By this stage, the possibility of a birth trauma was evident and had been raised. E was four weeks and four days old at the time of the skeletal survey. Whereas E’s age must have been known to Dr A as part of the background information supplied by Dr F for the review, (it is noted specifically at the head of her report under E’s name) there was no mention of this birth related causation in the initial report dated 13^th October 2016. It was this report which led to the granting of the Emergency Protection Order on 19^th October 2016.

21. Dr C in the report dated 12^th December 2016, has confirmed:

(i) E was a heavy baby;

(ii) shoulder dystocia (obstruction by the shoulders) occurred during E’s delivery;

(iii) compression and distortion of the infant chest by the McRoberts manoeuvre ensued.

At paragraph 15:

“Thus the radiological evidence is consistent with a fracture three to five weeks old on a date when E was nearly five weeks old. From a radiological perspective alone it is not possible to exclude an injury sustained at birth”.

22. Dr M, from paragraph 49 of his report of 19^th December 2016, stated:

“… there would be little doubt that there is potential for birth to have caused E’s fracture”.

In relation to the facial bruising at paragraph 76 Dr M indicated:

“… it would have been possible for (the father) to have caused bruising to E’s face but I would not imagine that this could have been done without E experiencing pain and becoming distressed if forces sufficient to cause bruising had been involved”.

23. The father has always admitted this injury, which would of itself probably not have merited the removal of E from parental care.

Legal issues arising

24. The burden of proof rests upon the Local Authority in applications for Care Orders, and the standard of proof is the ordinary civil standard. A Court cannot conclude that there is a risk of a child suffering a particular kind of harm if the allegation said to give rise to such a risk could not be proven (see Re B [2008] 2 FLR 141). The burden of proof does not shift to the parents, and any reversal of the burden of proof is not legally permitted.

25. In relation to medical evidence the Court proceeds on the basis of the test in
R v Cannings [2004] 1 WLR 2607, as endorsed in Re M [2013] 2 FLR 322, and at page 337 in particular:

(i) the cause of an injury which cannot be explained scientifically remains equivocal;

(ii) recurrence is not of itself probative;

(iii) particular caution is required where medical experts disagree;

(iv) the Court must guard against the over dogmatic expert; and

(v) today’s medical certainty may be discarded by the next generation of medical experts.

26. The Local Authority in this case has accepted the medical consensus which has now emerged, and the proceedings have been withdrawn (as I have indicated already) with the Court’s approval. Although no oral evidence has been adduced in any Final Hearing, because the issues raised by me above, and their investigation, might give rise to judicial criticism of relevant medical and other child protection agencies, I have given those concerned an opportunity to respond before providing this judgment. I have, therefore, applied the principles identified in Re M [2016] EWCA Civ 1059, by the Court of Appeal, although the circumstances of this case are very different.

27. In providing this judgment I seek to improve child protection practice by key agencies in North Wales, where they have fallen short as in the circumstances of this case. I have received responses on behalf of Y Hospital [hospital identified], the Third Intervenor, and X Police Authority (by a chronology provided) and further discussion may be necessary at the X Safeguarding Children’s Board between these agencies as a result of the issues which have emerged.

Matters arising

(a) Photographic evidence

28. I shall provide a summary of Dr W’s reply, on behalf of the Third Intervenor, and then I shall provide my response thereto:

(i) The reply

29. Cameras are available for doctors to take photographs of injuries as “good practice”.

My response

30. I do not know whether these cameras are available at all Third Intervenor hospitals when child protection medicals take place. I have received no confirmation of this by the Third Intervenor.

(ii) The reply

31. Photographs taken by medical practitioners should not be relied upon for evidential purposes.

My response

32. Why not? In children’s cases this evidence would be potentially admissible and it would be relevant. It might be technically preferable for the Police forensic photographer to take good quality photographs, but where this has not occurred I do not understand the basis of Dr W’s assertion, at least in children’s proceedings before the Family Court.

(iii) The reply

33. Doctors need the consent of parents/from the holder of parental responsibility to take photographs. Where this is not forthcoming the Police should have insisted and the photographs should then be taken by the Scenes of Crime Police Officer.

My response

34. There is no indication in the Police chronology that in this instance (since there was a question mark over parental consent) that the Police were alerted, nor did they take photographs as part of their Police investigation. This should, in my judgment, be a matter of routine. Photographs of suspected inflicted child injuries should be taken at the hospital, either by the hospital itself, or alternatively with the assistance of X Police Authority, and if consent is not forthcoming Police involvement is required as a routine procedure. Evidentially these photographs (with any diagrammatic and written recording) is critical for both the Criminal and the Family Courts. The failure to provide this facility potentially compromises the safety of children.

(iv) The reply

35. Body/facial diagrams of relevant injuries must also be included as standard, and routine for the Court and for expert usage.

My response

36. I have no response to make with regard to that reply.

(b) The initial medical evidence

37. I shall summarise the reply given by the Medical Director of Y Hospital [hospital identified] and my response thereto:

38. The reply

(i) The second opinion/review provided by Dr A was a letter between clinicians and not an expert report for the Court;

(ii) The letter of request for this review did not include any clinical information;

(iii) The second opinion reporting service is offered in order to ensure that injuries are not missed by less experienced radiologists. The information provided is included in the patient’s notes, and is available to the parties in the proceedings;

(iv) Dr A was not asked about the possibility of birth trauma in the letter by social workers;

(v) It was acknowledged that while it might be helpful for Dr A to have mentioned the possibility of birth trauma, by giving a dating range for the fracture that included birth, it was expected that the clinicians (presumably locally and not at Y Hospital [hospital identified]) would consider birth trauma as a possible mechanism for injury.

My response

39. If Dr A’s report/review dated 13^th October 2016, was intended to be used solely as an intra-medical document confirming the presence/absence of bony injury, then that should have been clarified at the outset. The document went further than merely confirming the existence or absence of a fracture, because it provided an opinion about causation.

40. Reviews sought in the context of an ongoing child protection investigation should be clearly identified as such, so that there is absolute clarity about:

(i) the purpose for which the review document is sought;

(ii) the potential usage (including Court usage) of the document seeking the review and the review document itself provided by the clinician concerned;

(iii) the background information which is provided for the review, and who is responsible for providing the same;

(iv) the precise information sought from the reviewing doctor, and who ultimately is responsible for “joining the dots” and reaching a conclusion about any possible different methods of causation; and

(v) why (since Dr A had been provided with E’s date of birth and it is included in her report) did she not herself consider birth trauma as a possibility, and mention that expressly to Dr F in her reply? Nothing surely could have been more straightforward.

(i) The reply

41. Again it is asserted that the 13^th October 2016, document was intended solely for a fellow clinician.

My response

42. Greater clarity about this aspect must be secured by the Third Intervenor, the Local Authorities of X region [geographical region identified] and Y Hospital [hospital identified].

43. In child protection terms these documents are of limited benefit if they are not intended for potential Court use, so that protective Orders can be sought in those cases where such Orders are required. A letter restricted to the use of a fellow medical clinician is of little forensic use to the Court in considering the statutory threshold. This issue needs to be resolved as speedily as possible by the relevant agencies. The Court needs to be able to rely upon the relevant medical expertise in order to safeguard vulnerable children.

44. I have referred already to Dr A’s statement in the second paragraph at page two of her report of 13^th October 2016. I believe “excluded” to be a typographical error for “included”. The sentence makes no sense otherwise and is, I believe, the only reasonable interpretation of it.

45. In the reply by the Medical Director (on behalf of Dr A) an attempt is made to distinguish between the understanding of clinicians and “non-medics”. In this context I am afraid I do not understand the distinction. Clinicians and non-medics use the English language. The words used have an ordinary meaning, intelligible to both medics and non-medics alike. If Dr A wished to restrict the disclosure of her letter to clinicians only, then it might have been better not to have sought an opinion from her in a child protection investigation, which involved the possibility of proceedings in the Court arena, where inevitably her letter would be considered by “non-medics”.

46. If alternatively, Dr A understood the purpose of the enquiry and the potential use to which her reply might be put (namely as the basis of a Court Order which ultimately led to the removal of a child from parental care for thirteen weeks) then it was incumbent upon her to communicate her opinion in a manner which was capable of being understood clearly by those having recourse to her letter in those proceedings. If, as asserted, she had ten years’ experience as a Consultant Radiologist, and “expert witness” then I would not have expected this to have caused her any difficulty whatsoever.

The other matters raised and replied to by the appropriate agencies

(a) The delay in obtaining the review from 22^nd September 2016 (the date of the skeletal survey) and 12^th to 13^th October 2016

The reply

47. “It is unclear why there was a delay of two weeks between the first and second internal review of the skeletal survey. It is also unclear why the skeletal survey was not routinely reported on (sic) by Y Hospital [hospital identified]”.

My response

48. This situation merits urgent improvement.

(b) The lack of skeletal survey

The reply

49. The Guidance for Radiological Investigation of Suspected Non-accidental Injury, published in 2008, suggests a full skeletal survey should be repeated, save for skull fractures. The risk of radiation to the child must also be considered. The above standards are being reviewed by the Third Intervenor in considering its own standard operating procedures. The Consultant involved in this case believed that a repeat skeletal survey should have been obtained.

My response

50. This situation again merits further urgent review and improvement.

The reply

51. The blood clotting screen was undertaken on 22^nd September 2016.

The response

52. I have no response to make with regard to that reply.

Conclusion

53. All is not well with child protection in North Wales. I believe there have been significant deficiencies in the joint agency working this case. Where the responsibility for each and every omission lies is a moot point, but there are systemic improvements which are required as a matter of urgency. A copy of this judgment should be made available at public expense to the parties (including the Guardian in this case) and the Local Authority should distribute the same to the local Safeguarding Board, to the appropriate agencies who have responded to potential criticism, and if necessary to the Welsh Government in Cardiff.

54. Practice requires improvement to try and avoid any repetition of the circumstances which led to the removal of E from parental care, with the understandable anguish this caused to his parents (for which I have apologised already) and I repeat the apology publicly at the conclusion of this judgment.

End of judgment

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> E (A Child) [2017] EWFC 101 (6 March 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B101.html Cite as: [2017] EWFC 101

England and Wales Family Court Decisions (other Judges)