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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> S and T (Children : care orders) [2019] EWHC 3851 (Fam) (17 December 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/3851.html Cite as: [2019] EWHC 3851 (Fam) |
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Chaucer Road Canterbury CT1 1ZA |
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B e f o r e :
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Kent County Council |
Applicant |
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-and- |
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Ms P (Mother) |
First Respondent |
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-and- |
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Mr Q (Father of S) |
Second Respondent |
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-and- |
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Mr R (Father of T) |
Third Respondent |
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-and- |
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S and T (Children) (by their Guardian, Rebecca Tait) |
Fourth and Fifth Respondents |
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-and- |
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Ms Z |
Intervenor |
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Ms Barbara Connolly QC and Ms Caroline Pearson for the First Respondent
Ms Jo Delahunty QC and Mr Stephen Chippeck for the Second Respondent
Mr Adam Clegg for the Third Respondent
Ms Tina Cook QC and Ms Alexa Storey-Rea for the Intervenor
Ms Joanne Porter for the Fourth and Fifth Respondents
Hearing dates: 2 to 11 and 16 to 17 December 2019
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Crown Copyright ©
MR JUSTICE MOOR
The expert evidence
Other witness evidence and assessments
The Hearing
"…Mr Q has responded to the challenge put to him by his legal team and has made difficult admissions about his failure to prioritise the children's needs which has led to a recognition that he, neither alone nor with the Mother, can offer the care that the boys deserve."
"Mr R has thought very carefully about his position. After careful reflection, he has decided to support the making of a Special Guardianship Order in favour of the Paternal Grandmother and her husband in relation to T."
"The Mother has been considering her position all week. As far as the welfare issues are concerned, she makes it clear through me that she would dearly love to have her children home to live with her, but she realises that is not possible. She also supports the making of Special Guardianship Orders to the Paternal Grandmother and her husband"
The Law
The burden and standard of proof
(a) To apply the civil standard of proof on the balance of probabilities;
(b) In so doing, to have regard to the seriousness of the allegations and the strength and quality of the evidence;
(c) To give the evidence "critical and anxious" examination; and
(d) At all times, to apply "good sense and appropriately careful consideration to the evidence".
"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation".
Pool of Perpetrators
"If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators…"
"A person comes within the pool of possible perpetrators where the evidence establishes that there is a "likelihood or real possibility" that a given person perpetrated the injuries."
Failure to protect
Lies (the "Lucas" direction)
The position of the Police
Expert evidence
"An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the judge to give reasons for disagreeing with experts' conclusions or recommendations…A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes."
(a) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.
(b) Recurrence is not in itself probative.
(c) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
(d) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour proper is at stake, or the expert who has developed a scientific prejudice.
(e) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation or that scientific research will throw light into corners that are at present dark".
The welfare checklist
(a) The ascertainable wishes and feelings of the children concerned (considered in the light of their age and understanding);
(b) Their physical, emotional and educational needs;
(c) The likely effect on them of any change in their circumstances;
(d) Their age, sex, background and any characteristics which I consider relevant;
(e) Any harm which they have suffered or are at risk of suffering;
(f) How capable each of their parents, and any other person in relation to whom I consider the question to be relevant, is of meeting their needs; and
(g) The range of powers available to the court under the Act in the proceedings in question.
My findings as to the expert evidence
(a) The bruise to his face was a non-accidental injury caused by the use of unreasonable force. I reject that it could have been caused by movements within the pram, whether caused by kerbs or otherwise. Equally, it could not have been caused by a toy being thrown at him as there is no such history given and the only children around him at the relevant time were too young to be strong enough to cause such an injury. It follows that I am satisfied that it was a blow caused by an adult. There is no history of it being caused accidentally. I therefore conclude that it was deliberately inflicted although it is not clear from the medical evidence whether it was a punch, a slap or some other kind of blow. It would have occurred in an instant. I am equally satisfied that it was a single blow. It occurred on the morning of 23 April 2019. Whilst it not possible to be certain of the exact time, it is difficult to see how it could have occurred as early as 7.30 am when Mr Q left the home, given the original evidence that it would have emerged within a maximum of approximately two hours. It would have been painful and would have caused T to cry loudly for two to three minutes.
(b) The scab on his knee was caused by a cigarette burn from a pre-manufactured lit cigarette that was applied to his knee broadly at a right angle to his skin. Again, it would be have occurred in an instant, but I reject the suggestion that it was accidental given the depth of the burn and the fact that there was no tail to the injury. It would have been very painful. T would have cried inconsolably for 3 to 5 minutes.
(c) The broken wrist was an inflicted injury caused by a twisting or pulling action to the wrist. It would have involved the use of an unreasonable level of force. Although it could have occurred whilst T was being changed, I reject the possibility of accidental injury. It would have been an abusive mechanism, caused by anger or frustration. I accept that the window for the fracture was from 27 March to 17 April 2019. Again, it would have been very painful and caused inconsolable crying for 3 to 5 minutes. I am, however, satisfied that a parent who was not present when this injury was inflicted would not necessarily know that T had broken his wrist. I remind myself that the broken wrist was not diagnosed by the doctors in the hospital on 23 April 2019 or by anyone else in the run up to that admission. The diagnosis had to await until the result of the X-rays.
The factual evidence as to the injuries
My findings as to the various injuries
Welfare
Mr Justice Moor
17 December 2019