England and Wales Family Court Decisions (High Court Judges)

1. I have been conducting a fact-finding hearing in care proceedings relating to a young child, C Scully-Hicks (hereafter “C”).  The fact-finding hearing, however, is not directly related to C but rather to the tragic death of C’s young sister, Elsie Scully-Hicks on 29^th May 2016. 

2. I accept immediately that the facts of this case raise serious issues that will be of genuine public concern.  Initially, I made a Reporting Restriction Order pending the completion of the criminal trial for murder of Matthew Scully-Hicks.   I could not permit the criminal trial to be derailed if my judgment had come into the public domain too early.  I make it quite clear, however, that the Reporting Restriction Order would only last until the conclusion of the criminal trial.  I indicated that, at that point, I would give permission for this judgment to be reported in full although there would have to be some anonymisation, if only to protect C. 

The history of the case

3. The parents of both C and Elsie are Matthew and Craig Scully-Hicks.  Matthew was born on 7^th January 1986 and is therefore aged 30.  Craig was born in 1981 and so is 35 years of age.  They met in 2006 in Swindon and commenced a relationship in January 2008.  They began to cohabit in June 2008.  Craig comes from the Cardiff area.  They decided to relocate to South Wales in late 2010.  Craig moved first in December 2010 and was joined by Matthew in March 2011.  Initially, they lived in Wellwright Road, Fairwater, Cardiff.    They became engaged in May 2011 and married in August 2012 in Portugal.  They very much wanted to have a family and became approved as adopters. 

4. C was placed with Matthew and Craig by the Vale of Glamorgan Council in the same year that C was born.  It was agreed between Matthew and Craig that Matthew would give up work as an employer services consultant and become C’s full-time carer, although he continued as a part-time fitness instructor.  Craig continued to work full-time in responsible employment that required him to work away from home on a regular basis.  It is clear, however, that he too played a significant part in caring for C.  Absolutely no problems were identified with the placement such that an adoption order was made in favour of Matthew and Craig.

5. Elsie Scully-Hicks was born on 17^th November 2014 as Shayla O’Brien.  Her birth father was never identified.  Her birth mother is a drug addict who was certainly in prison at one point during the adoption proceedings.  Care and placement orders were made, again in favour of the Vale of Glamorgan.  On 10^th September 2015, she was placed with Matthew and Craig and given the name Elsie by them.  

6. On 5^th November 2015, Elsie sustained an injury to her right leg.  Craig was at work.  Matthew said she was quiet but did not seem to be in pain.  Medical advice was sought from the GP on 9^th November 2015 as she did not seem to be able to weight bear.  Dr Marina Arulanandam says she was told that Elsie had fallen off a baby walker.  She was given an appointment at the hospital and was X-rayed on 12^th November 2015.  The report from the hospital also says that she was pushing a walker and twisted her leg as she was leaning backwards.  A minimally displaced fracture was found to her distal right tibia, just above her ankle.  She was placed in a polymer cast and advised that she should remain non-weight bearing for the next three weeks.  It is clear that it was considered that the injury was entirely consistent with the description of the fall given by Matthew.  Moreover, it healed well.  Matthew says, however, that the description of the fall from a baby walker is incorrect.  He says she was supporting herself on a child’s work table in the kitchen and turned to see what he was doing.  She twisted and fell backwards onto the wooden floor.  I will return to what was found when the X-ray was re-examined following her death.  

7. Following an incident on 16^th December 2015, Elsie developed a bruise to the left side of her forehead over her left eye.  Craig was again at work.  It appears that a text message was sent to Laura Neal, a social worker at the Vale of Glamorgan the same day telling her of the injury, although she did not reply to the text message until the following morning.  Later that morning, there was an adoption review at Wellright Road.  It was delayed from 10 am to 11 am as C was in a Christmas Concert that morning and both Matthew and Craig understandably wanted to attend.  The adoption review was attended by Cheryl Longley and Laura Neal, social workers and Eryl Bowers, the Independent Reviewing Officer, all from the Vale of Glamorgan.  Initially, all three did not recall seeing the bruise on that occasion.  Indeed, Cheryl said she believed she saw the bruise on 19^th January 2016 although she has since said it must have been 17^th December 2015.  She did, however, say that she was told the Health Visitor had seen the bruise but it is clear that it was not until 21^st December 2015 that the Health Visitor attended.  Equally, all three Vale employees said they could not recall Craig being present at the adoption review, although his case is that he was there for around 45 minutes until he had to go to collect C. 

8. On 21^st December 2015, the Health Visitor, Jodie Golten attended at the home.  She saw the bruise on Elsie’s forehead and over her left eye.  She says she was given no explanation and advised medical attention for Elsie but Matthew told her he had already done so.   This is heavily in dispute.  It is also alleged that, on 26^th May 2016, Matthew said Elsie had fallen forward onto a plastic toy in the kitchen.  He denies this.  In his statement dated 13^th July 2016, he says that Elsie was playing with a toy kitchen and a magnetised door of the play kitchen swung open causing her to lose balance and bang her head on the edge of the kitchen worktop.     There are two aspects to this.  First, how was this injury caused?  Second, why was it not brought to the attention of the adoption court?  

9. On 10^th March 2016, Matthew says that Elsie fell through a stairgate which had not been properly secured and down a full-flight of stairs.  He says he was upstairs at the time dealing with the washing.  Elsie didn’t cry but lay very still with her eyes open.  She started to cry by the time he rang 999.  She vomited twice by the time the paramedic arrived.  One vomit included some blood.  It was suspected she had a head injury.  She was taken to hospital and observed for four hours before being discharged.  No CT scan was taken as she was not sufficiently unwell. It is said that, thereafter, she was not herself and vomited on a number of occasions although this appears to have lessened as the days past.  

10. On 16^th April 2016, the family moved from Wellright Road to an address in Llandaff, Cardiff.  Ten days later, on 26th April 2016, Elsie developed a “unilateral convergent squint”.  Craig says her left eye appeared to be turned inwards towards her nose and it became worse.  It was noted by an Aunt on 22^nd May 2016.  This was not brought to the attention of the adoption court either.  The adoption order was made on 12^th May 2016.  

11. On 25^th May 2016, Craig was again at work.  Matthew spent the day with both children and his twenty-seven year old niece, Kerry Richards.  She left at 5.20pm.  Nothing remarkable occurred.  Elsie fed normally and played quite happily.  She had sausage and vegetables for her tea which she finished at 5.45pm.  Matthew walked her into the front room holding her hand.  She sat watching TV with C.  Matthew changed her nappy at around 6pm and put her into her baby-grow.  She was normal and not unsettled.  He left her lying on the floor whilst he took her dirty nappy for disposal.  When he returned, he says she was unresponsive.  Her eyes were open but she was staring blankly and not breathing.  He called 999.  It was difficult to get through to the ambulance service so he says he started CPR himself which was later continued by professionals when they arrived.  Elsie was suffering from cardiac arrest.  There was no evidence of cardiac output for seventeen minutes, a very long period of time.  Elsie was taken to the Children’s Hospital for Wales, Heath Park, Cardiff and, in due course, to its Intensive Care Unit.  

12. She was clearly desperately unwell.  On 29^th May 2016, she died after life support was withdrawn.  Initially, C returned to Matthew and Craig.  There is no doubt that C has a warm and affectionate relationship with both of them.  The medical evidence, however, began to be assembled.  The pathologist, Dr Stephen Leadbeatter’s first report is dated 7^th June 2016.  He found a faded bruise 0.4 cm in diameter; 4cm above and 1 cm to the left of the left eye.  Dr Nia John, a consultant paediatrician, reported on 15th June 2016.   She said that a scan on admission to hospital revealed that Elsie had extensive bilateral subdural haemorrhages with evidence of acute and chronic bleeding.  There was also severe hypoxic ischemic brain damage.  She considered this was indicative of recent injury (less than ten days old) and consistent with a shaking type injury.  The X-ray of the injury sustained on 5^th November 2015 was re-examined.  A second fracture was detected, namely a metaphyseal fracture of the distal femur.  She said it was unusual but not impossible to fracture two bones in the same minor fall. 

13. On 15^th June 2016, the Local Authority, the County Council of the City and County of Cardiff, which is the Local Authority responsible for the area where Matthew and Craig live, asked them to agree to C being voluntarily accommodated pursuant to section 76 of the Social Services and Well-Being Act (Wales) 2014.  The parents declined.  Subsequently, Matthew left the home for 24 hours and C remained there with Craig, supervised by Tricia and Nigel Hicks (the parents of Matthew).  The Local Authority was not in agreement with this position and applied for a care order on 16^th June 2016. The case was allocated to me the same day by Carson DJ given the very serious issues involved but the Local Authority’s application for a care order was heard by HHJ Edwards on 17^th June 2016.  Notwithstanding the opposition of the parents, she made an interim care order with a plan for removal as a “holding position”. C was removed and went to foster carers.  Subsequently, the parents asked for C to be placed with either Matthew’s parents or Craig’s sister and her husband.  I refused the application on 22^nd June 2016, although they were subsequently approved by the fostering panel as kinship carers. 

14. Craig’s statement is dated the 12^th July 2016.  He says that he was working away from home two to three nights per week during the relevant period.  He was not present on any of the occasions when Elsie had accidents.  He said he had been told that she had developmental delay and she was very active.  He did say her routine was different to C’s.  He did not recall Elsie being in pain on the evening of 5^th November 2015 when he was present for her bath but he did recall her not being weight bearing on 7^th November 2015.  He was told by Matt about the bruise she sustained on 16^th December 2015.  By the time he arrived at the hospital on 10^th March 2016, Elsie looked fine.  She was sitting on Matt’s lap although she was clingy, sore and achy over the next few days.  15^th April 2016 was the last time she was sick.  The sickness stopped around the time her eye started to turn inward but she seemed much happier and back to her normal bubbly self.  She suffered from a nose bleed on 30^th April 2016.  The turn in her eye became more prominent thereafter.  He was contacted by Matt by telephone on 25^th May 2016.  Matthew was crying on the telephone.  He added that he never heard Matt shout at Elsie or C.  Matt never appeared angry with the children.  He had heard Matt raise his voice to tell them off but, in general, he is quiet and mild-mannered.  Matt never swore at them and was very patient and calm.  He had noticed a couple of marks to Elsie’s ears on 30^th January 2016.  

15. Matthew’s statement is dated 13^th July 2016. I have already recounted what he says about the various incidents and, in particular, the 25^th May 2016.  He postulates that Elsie may have had Ehlers-Danlos syndrome or second impact syndrome.  In relation to the latter, he was suggesting a possible re-bleed after the fall down the stairs, wondering if it happened after she overstrained during her bowel movement.  He said she was a happy little baby who was always smiling. 

16. A number of statements were filed by the Vale of Glamorgan’s adoption team.  I have already dealt with their evidence in part.  Cheryl Longley was the allocated social worker for Elsie from 7^th September 2015.  She knew Elsie as Shayla.  She said that Elsie was happy with the Scully-Hicks’ and interacted well with them.  She seemed happy and content on 11^th November 2015.  She was told that Shayla had slipped in the kitchen and twisted leg on 5^th November 2015.  I have already mentioned that her statement says she saw the bruise on the forehead on 19^th January 2016.  She said she was told that Elsie fell in the hallway onto a hard tiled surface and bumped her head.  She was told that Matt had spoken to the Health Visitor.  She added that she was told that, after the fall down the stairs on 10^th March 2016, Elsie appeared fine albeit a bit “bumped and bruised” but the hospital had no concerns as the injuries were consistent with such a fall.  She filed a second statement on 1^st December 2016.  She said she “always recalled seeing a bruise” and thought it was on 19^th January 2016 as Matt informed her then of a fall in the hallway with Elsie bumping her head on the floor.  She said that, in fact, she must have seen a bruise on 17^th December 2015 but she still has no recollection of having done so then. 

17. Eryl Bowers was the Independent Reviewing Officer.  Her statement is dated 17^th November 2016.  She attended the adoption placement review on 17^th December 2015 and another review on 22^nd April 2016.  She confirmed that the birth mother of Elsie had hepatitis B and C so there was concern that Elsie might do so as well.  Elsie had the cast on the back of her right ankle for a few weeks after she sustained the small crack following the kitchen incident.  On 22^nd April 2016, Elsie was taken upstairs for a sleep as she was a little tetchy and miserable.  She was told Elsie was struggling with teething. 

18. Laura Neal was the allocated social worker for the adopters from February 2015.  Her job was to assess them as adopters.  She had no concerns about them.  Introductions between them and Elsie began on 3^rd September 2015 and she was placed on 10^th September 2015.  Ms Neal said the minutes of the adoption review meeting on 17^th December say that Craig did not attend but she could not be certain as they moved the time of the meeting to enable him to attend C’s Christmas concert before the meeting.   She could not recall noting any bruising at the meeting.  The turn in Elsie’s eye was pointed out to her on 29^th April 2016.  She said they should take Elsie to the GP but Elsie was happy and alert.  She later filed a second statement dated 1^st December 2016 confirming that she did receive a text message from Matthew in December 2015 which she replied to early on 17^th December 2015.  She confirmed that she still had no recollection of seeing the bruise on 17^th December.  Indeed, she said she had very little recollection of the meeting that day.

19. I had indicated that I was concerned about a number of matters.  First, I wanted to know whether or not Elsie’s birth mother had been informed of her death.  Second, I felt it only right to warn the Vale of Glamorgan that there was at least a possibility that it would be criticised in my judgment.  As a result, the Vale applied to intervene on 21^st November 2016 and I granted it such status on 22^nd November 2016.  A statement dated 1^st December 2016 was filed by Rachel Evans indicating that the birth mother had not, as yet, been informed.  It was considered that such information could only be shared with the permission of the adopters.   It must, however, be the case that I could have granted permission to the Vale to do so.  The Vale indicated that it was unaware of the birth mother’s whereabouts save that she had been released from prison.  I therefore made orders against the Department of Work and Pensions to obtain her address.  Rightly, it was felt that it would not be right to tell the birth mother in the week before Christmas.  I adjourned any further consideration of the issue to the end of the fact finding hearing but indicated that an application should be made for a reporting restrictions order.    

20. Two statements were filed dated 18^th November 2016 from Susan Bevan and James Bevan.  They were neighbours of the Scully-Hicks’ in Wellwright Road, living in the other half of the semi-detached property occupied by the Scully-Hicks before they moved to Llandaff.  Both the Bevans describe their next-door neighbours as “the one who went to work” and “the one who stayed at home”.  As the latter certainly appears to be Matthew, I will use his name when describing what both of them say in their statements.  Susan Bevan is the mother of James Bevan.  She said that she would hear events happening next door during the day when Craig was at work.   She would often hear Elsie crying at around 8am.  Matthew would rant; “shut up; shut up; shut the fuck up”.  She said he appeared intolerant and his comments appeared to be aimed at Elsie.  She said Elsie seemed not to cry when other people were there.  She once heard a gasp or a scream.  She did not believe Matthew was bonding with Elsie although she was not concerned for Elsie’s safety.  

21. Her son, James, said in his statement that he returned to live at the family home on 23^rd December 2015.  He would hear tantrums next door and once heard Matthew saying “aaaargh” and a door being slammed.  He heard a baby girl crying on a regular basis.  The baby once screamed and he heard “shut up you little fucking brat” and “shut up you silly little cunt”.  A music player was then turned up next door “ridiculously loudly”.  He then heard a crash of a plate and a clear slam then that was it.  He heard such happenings on a regular basis and at least once per week.

22. On the 17^th November 2016, a letter was written on behalf of Craig Scully-Hicks informing the other parties that he and Matthew had separated although they have continued to have joint contact to C on a supervised basis, three times per week for 1.5 hours per session.  The separation was confirmed to me by leading counsel at the IRH on 22^nd November 2016. 

23. Matthew filed a second statement on 26^th November 2016.  He gave an address in Llandaff.  He said it was clear that all three professionals from the Vale saw Elsie on 17^th December 2015 and, therefore, they would have noticed the bruise.  He confirmed that he had made Laura Neal aware of the bruise on 16^th December 2015 by text message and that Craig was present for the first 45 minutes of the review before Craig went to pick up C from nursery.  There was no fall in the hallway or bumping of Elsie’s head on 19^th January 2016 and he did not take Elsie to the GP following the December bruise.  He exhibits the text message which refers to a “lovely whopping bruise”. 

24. I first learned of Craig’s position in his counsel’s Case Summary for the final hearing on Friday 2^nd December 2016.  The document said that Craig accepts that Matthew killed Elsie and that the injuries she sustained that day were at the hands of Matthew.  These included a bruise to the outer angle of her left eye; a fracture to her skull; bilateral subdural haematomas; hypoxic ischaemic injury; bilateral retinal haemorrhages with bleeding in the optic nerve head and the optic nerve sheath; a fracture of her left femur; and probably fractures of the ribs.  He further believed that Matthew had fractured Elsie’s right leg in at least one place on 5^th November 2015.  The other injuries Elsie sustained were “at least, suspicious”.  Craig denies any failure to protect and says that the man (Matthew) that injured Elsie bears no resemblance to the man he married.  He had no reason to suspect Matthew.  They have separated and there will be no reunification or reconciliation.

The Medical evidence

25. I have directed a significant number of expert reports from specialists in the relevant medical fields engaged by the issues in this case.  I have also received the post-mortem report of Dr Stephen Leadbeatter dated 3^rd October 2016.   He concluded that Elsie had suffered recent and previous bleeding below the dura mater each side of the brain as well as bilateral retinal haemorrhages with perimacular folds.  There had been a recent fracture of her right lambdoid skull, which is a consequence of an impact to the head.  There were microfractures of the inner aspect of the posterior end of each of the left third and right fourth and fifth ribs.  He cannot exclude the possibility that there was a subdural haemorrhage from the fall down stairs with a possible re-bleeding but examples of this happening are not associated with acute clinical changes, nor significant neurological decline.  Moreover, the fractures were recent.  The cause of Elsie’s death was hypoxic/ischaemic encephalopathy following cardiac arrest in a child with acute chronic subdural haemorrhage and a blunt head injury including fracture of the right lambdoid suture. 

26. I directed reports from five separate experts.  The first to report was Dr Karl Johnson, a paediatric radiologist whose report is dated 27^th September 2016. He re-examined the X-ray taken on 12^th November 2015 and found two fractures, namely one of the distal right tibial metadiaphysis (just above the ankle joint) and a second of the distal right femoral metadiaphysis (thigh bone).  Both were no older than 11 days at the time of the X-ray and such fractures have a strong connection with non-accidental injury.  They would require a significant amount of force and would cause pain and distress.  Whilst he could not exclude the description given of the events of 5^th November 2015 as a possible cause of either one of these injuries, he was of the view that such a fall would typically result in a single isolated injury.  The description given would not result in two separate fractures so one fracture is therefore unexplained.

27. The second report was from Peter Richards, paediatric neuro-surgeon and is dated 1^st November 2016.  He concluded that the head injury occurred at the point of Elsie’s acute collapse and that death was from hypoxic/ischaemic encephalopathy following cardiac arrest with acute chronic subdural haemorrhage.  There was evidence of blunt head injury including a fracture of the right lamboid suture.  There was fresh subdural bleeding over both cerebral hemispheres and hypoxic/ischaemic changes as well as retinal haemorrhages.  These would not be expected to occur spontaneously.  Such changes require a traumatic event such as an acceleration/deceleration injury.  A re-bleed of an earlier injury would not explain the acute collapse.  Moreover, if there was a fractured skull, it would only be explicable by trauma involving impact.  It was implausible that Elsie could have been injured prior to her normal feed at 5.45 pm.  The point of collapse was the point of injury.

28. Dr Stephen Rose, a consultant paediatrician, reported on 16^th November 2016. The description of the fall on 5^th November 2015 is not consistent with the two fractures sustained.  It was highly unlikely the fall described could have caused either fracture.  The evidence indicates that Elsie made a full recovery from the fall down the stairs on 10^th March 2016.  It is highly unlikely that the squint on 26^th April 2016 was as a result of raised intracranial pressure as such pressure would have been demonstrated by other signs.  On 25^th May 2016, Elsie was shaken violently causing flexion and extension of her head to the point which resulted in the bilateral retinal haemorrhages and the subdural haemorrhages.  She would have been rendered unconscious due to the interruption of blood flow to the brain.  He speculated that there was blunt trauma to her head as the final event such as if she was thrown to the floor or against a wall.  Micro-fractures to the ribs would have been caused by significant compression forces which are uncommon during resuscitation.  Moreover, when they occur, they tend to be anterior not posterior.  No metabolic cause had been found to explain the injuries.  It was highly unlikely the squint related to the fall down the stairs as she was otherwise entirely normal.  Jumping on a trampoline had no relevance to the injuries sustained. 

29. Dr Richard Bonshek, a consultant ophthalmic pathologist, reported on 20^th November 2016.  There were bilateral retinal, optic nerve head and optic nerve sheath haemorrhages which could be explained by severe head injury which occurred when Elsie suffered an acute collapse three to four days prior to her death.  No accidental cause for such trauma has been identified.  In addition, there was a bilateral optic nerve sheath haemosiderin deposition which might indicate a component of older bleeding.  This was all highly consistent with non-accidental injury in the absence of severe accidental trauma.  In addition to the recent extensive haemorrhage, some of the haemosiderin present might represent an earlier episode of bleeding which might be consistent with it occurring at the time of the fall down the stairs.

30. Finally, Professor Freemont, an osteoarticular pathologist reported on 21^st November 2016.  There was no evidence of underlying bone disease.  The left tibia showed the presence of periosteal haemorrhage and an associated minor periosteal reaction which appeared to be between three to five days old at the time of death.  There were tiny cortical metaphyseal fractures to the left femur, again estimated at between three to five days old at death.  There were corner fractures of the costovertebral metaphasis of the posterior elements of the left third, right fourth and right fifth ribs, also estimated at three to five days old at the time of death.  Finally, there was the presence of a complex fracture through the lamboid region of the skull which had propagated through bone and along a fissure.  Again, he would age this as between three to five days old.  All this was very strongly indicative of non-accidental injury as Elsie had sustained metaphyseal injuries to five different bones at three different sites (the left femur; three posterior ribs and the skull). 

The Law

31. I now turn to deal with the law I must apply.  To establish the threshold criteria, I need to be satisfied that C is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)].  If I am so satisfied, it does not automatically lead to a care order.  I will then have to go on to consider C’s welfare.  

The burden and standard of proof

35. If the evidence in respect of a particular finding sought by a party is equivocal then the court cannot make a finding on the balance of probabilities as the party seeking the finding has not discharged either the burden or standard of proof (Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20; [2004] 2 FLR 200).  In Re B (Children)(FC), Lord Hoffman said:-

“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 0 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 0 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.”

36. Both Baroness Hale and Lord Hoffman made it clear in Re B that, when seeking to determine the perpetrator of proven non-accidental harm, the test remains the simple balance of probabilities.  Baroness Hale said at Paragraph 70:-

“I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold criteria under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less.  Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

38. In Paragraph 2 of Re B, Lord Hoffman explained that sometimes the decision will be made by reference to the failure to discharge the burden of proof.  In Paragraph 32, Baroness Hale made the same point thus:-

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place.  If he finds it more likely than not that it did not take place, then it is treated as not having taken place.  He is not allowed to sit on the fence.  He has to find for one side or the other.  Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did.  But generally speaking a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof.”

42. There are issues in the case as to the extent to which Matthew may have lied to this court and/or to professionals investigating injuries to Elsie.  First, I must decide whether or not he did deliberately tell lies.  If I find that he did, I have to ask myself why he lied.  The mere fact that a witness tells a lie is not in itself evidence that the person concerned is the perpetrator.  A witness may lie for many reasons.  They may possibly be “innocent” ones in the sense that they do not denote responsibility for the injuries to Elsie.  For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other disreputable conduct unrelated to the injuries caused to Elsie; or out of panic, distress or confusion.

43. It follows that, if I find that a witness has lied, I must assess whether or not there is an “innocent” explanation for those lies that does not implicate the witness either as the perpetrator of the injuries sustained to Elsie or as having information relevant to identifying the perpetrator.  However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the identity of the perpetrator or perpetrators. 

The position of the Police

44. The Police are entitled to a copy of my judgment.  The law is clear in this regard.  Section 98(1) of the Children Act 1989 provides that, in these proceedings, no person shall be excused from giving evidence on any matter or from answering any question put to them in the course of giving their evidence, on the ground that doing so might incriminate them of an offence.  It follows that both parents had no alternative other than to give evidence although I make it quite clear that both did so entirely voluntarily.  Section 98(2) applies to that evidence.  Any statement or admission made in these proceedings shall not be admissible in evidence against the person making it in proceedings for an offence other than perjury.  It follows that, although the Police may be able to make use of my judgment in pursuing their ongoing enquiries, they cannot rely on any statement or admission made to me, in any criminal proceedings that they may subsequently bring. 

Expert evidence

45. I have heard expert evidence from a number of doctors with different specialisations.  It is for me to weigh the expert evidence alongside the lay and other observational evidence.  Ward LJ said in Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670:-

“The expert advises but the judge decides.  The judge decides on the evidence.  If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it.  There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.”

46. Butler-Sloss LJ added at p674:-

“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.”

47. In Re U (Serious Injury: Standard of Proof), Butler-Sloss LJ said:-

(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”.

My conclusions as to the medical evidence

52. Two doctors dealt with the injuries to Elsie’s leg in November 2015.  Dr Karl Johnson, a consultant paediatric radiologist reviewed the X-rays taken at the time.  He was quite clear that there had been two fractures not one.  The first was just above the ankle and the second was just above the knee but only one had been recognised at the time.  As I have not heard from those responsible for reviewing the X-rays at the hospital, I intend to make no findings as to whether or not it was reasonable that the second fracture was not discovered in November 2015.  It will be a matter for an Extended and Concise Child Practice Review.  The failure to spot the second fracture did, however, have significant consequences at the time as Matthew’s explanation was accepted without question.  As there was no evidence of bone healing, Dr Johnson said that the injuries were no older than eleven days at the time of the x-ray.

53. He could not quantify the force required but it was significant.  He was of the view that an accidental fall by a toddler, as described by Matthew, would typically result in a single fracture but not two fractures.  Indeed, often it would not result in any fractures.  If Elsie had turned over on her ankle, the fracture would have been slightly lower down whereas this fracture was above the ankle joint.  Ms Crowley suggested that the twisting fall might have caused the ankle fracture with Elsie falling on her knee to explain the second fracture.  Dr Johnson did not accept that this was possible, repeating that any such fall would at worst result in one fracture due to the different mechanisms required to cause two.

54. Dr Stephen Rose, a consultant paediatrician, was also clear that the mechanism described by Matthew was not consistent with two fractures of the same leg.  He said it would be “extraordinary” if two fractures occurred from the same minor turn and fall.   He told me such falls happen every day to toddlers who are very unstable.   These fractures are not associated with such a fall, whereas they are associated with trauma and can be caused by shaking as the legs flay wildly around in the course of such an incident.   I accept the evidence in this regard of both Dr Johnson and Dr Rose.

The factual medical witnesses

The other witnesses

The evidence of the parents

My overall conclusions

Alleged failure to protect

Conclusion

Postscript