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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> B and C (whether to hold fact find where NAI alleged), Re [2017] EWFC B38 (10 February 2017) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2017/B38.html Cite as: [2017] EWFC B38

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THE FAMILY COURT SITTING AT OXFORD IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF B AND C

		10th February 2017

1. The Court is concerned with two children, B, who will be four in April and C, who is eight months old.
2. Their parents are DE and EE.
3. Towards the end of November 2016 C sustained two fractures to her left forearm. The cause is unknown. She was in the care of her parents throughout the time period that doctors have identified as the window during which the injury was sustained.
4. On 6^th December 2016 the local authority issued care proceedings with the stated intention of investigating further to establish causation of C's fracture.
5. Dr C, C's treating clinician had said [E5] that the possibility of non-accidental injury to C's arm cannot be excluded.
6. Dr Chapman, paediatric radiologist, has prepared a report in which he concludes 'the radiological findings are currently not adequately explained by any of the scenarios offered by the parents and the injury could not have been self-inflicted'. He has concluded that 'the most likely explanation is that an adult has applied a levering force across the mid forearm' which he says could have occurred accidentally, recklessly, or non-accidentally. The fractures are considered to have occurred as part of a single incident.
7. No party has had the opportunity at this stage of cross-examining Dr Chapman. On the face of it, I am unclear why he appears to have rejected the possibility of the injury having been caused by a child applying a levering force across the mid forearm in favour of an adult. Nonetheless, he is a leading expert in his field and his expert opinion is that the most likely explanation is the injury was caused by an adult.
8. It is this evidence which has informed the local authority's threshold document which asserts that 'one of the parents has caused the forearm fractures of C's left forearm by an undisclosed event.'
9. It is not specified by the local authority whether it is said that this was caused accidentally, or recklessly or deliberately. It is asserted that the other parent is not likely to have known about it, although given the level of deceit that would be implied against one parent as perpetrator in the particular circumstances of this case, I am not sure why the local authority stops short from seeking to imply a conspiracy of silence by both parents. It is noted within the threshold document that 'both parents noticed the symptoms of the injury from 23^rd November 2016 onwards and sought medical advice appropriately.'
10. Within the bundle I have the benefit of C's medical records, photographs of C supplied by her parents throughout the time-frame for injury and its aftermath. I also have the benefit of print-outs of texts (or similar social media communications) between the mother, family and friends from the same time-frame, which give a detailed picture of the level of the parents' observations of their daughter, their mounting concerns about her, the discovery of the fracture and the aftermath that ensued.
11. It is absolutely plain from these documents that these parents were genuinely concerned and sought medical treatment advice appropriately.
12. Parenting assessments have been carried out by CM and she concludes [C125] that these parents present as 'devoted, loving and caring parents who are dedicated to their children's success and happiness.' It is a glowing report. CM concludes that there are 'no indications that DE and EE would intentionally or unintentionally harm either of their children.' I am not sure how she can be sure they would not unintentionally harm their children, but I understand the sentiment being expressed.
13. Since the first hearing of these proceedings the children have been subject to a supervision order. They have remained at home in the care of their parents and the maternal grandmother has moved in to supervise. There have been no concerns at all about the children's health or well-being during this time. It is clear that these parents are regarded by all professionals who have visited them as exemplary in their parenting.
14. At a hearing before me on 19^th January 2017 it was recorded that 'the separation of the children from their parents is not in the contemplation of any party or the court.'
15. Nonetheless a fact finding hearing has been listed for four days at the end of March. I am asked to determine today whether or not that hearing should go ahead. No final hearing has been listed.
16. I have been greatly assisted by written and oral submissions from the advocates; Ms Watts for the local authority, Miss Kelly for mother, Miss Potter for father and Mr Brookes-Baker for the children's guardian, KT, who attended the hearing.
17. The parties' positions are that the mother and father ask the Court to rule that there is no need for a fact-find. They desperately want the proceedings to stop, and to return to normal family life.
18. The local authority considers the fact-find should go ahead on the basis that the evidence of Dr Chapman considers an inflicted injury is a realistic explanation that cannot be discounted, and it cannot withdraw its application in the light of that evidence.
19. The guardian supports a fact-find, arguing it is necessary 'to determine the likely mechanism/causation and identify a possible perpetrator for this significant injury'.

The law

20. The bedrock and fundamental basis of the Family Procedure Rules 2010 is set out at rule 1.1; 'the overriding objective'. The Court should deal with cases justly, having regard to any welfare issues involved. Dealing with a case justly includes, so far as is practicable: –

(a) Ensuring that it is dealt with expeditiously and fairly

(b) Dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) Ensuring that the parties are on an equal footing;

(d) Saving expense; and

(e) Allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

21. Rule 1.2 requires the Court to give effect to the overriding objective when it exercises any power given to it by the rules or interprets any rule. Rule 1.3 requires the parties to help the court to further the overriding objective.
22. At rule 1.4 of the Family Procedure Rules, the court is told to 'further the overriding objective by actively managing cases.' There is then a long list of matters which are regarded as 'active case management', which include:

(a) Setting timetables or otherwise controlling the progress of the case;

…

(c) deciding promptly –

(i) which issues need full investigation and hearing and which do not; and

(ii) the procedure to be followed in the case;

…

(i) considering whether the likely benefits of taking a particular step justify the cost of taking it.

23. In this case the parents ask me to have regard to the overriding objective and exercise my case management powers by determining that a fact-find is not needed. It is accepted that the consequence of that decision would be that these proceedings came to an end.
24. So it is the overriding objective to which I must have regard. To enable me to focus on the particular question of the necessity of a fact-find however, I have been referred to case law.
25. In A County Council v DP, RS, BS [2005] EWHC 1593 (Fam), the parties were agreed that neither a care order nor a supervision order was required, yet a fact-find was sought. In that case the father had admitted causing significant injuries to his child who was then reunited with the family. When a second child was born and sustained very serious injuries the father conceded he might have caused them accidentally, conceded threshold was crossed, but did not want a fact-find on the basis that he accepted supervised contact only, and no public law orders were sought.
26. McFarlane J (as he then was) considered the factors to take into account when considering the need for a fact-finding exercise:

[17] Once properly constituted care proceedings have been commenced within the statutory context of Part IV of the Children Act, they remain lawfully established unless and until they are either concluded or withdrawn. The question of whether or not a particular fact finding exercise is conducted within those proceedings is a question for the court's discretion and is not a matter that will, of itself, be 'unlawful'.

…[24] The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

(a)  the interests of the child (which are relevant but not paramount)

(b)  the time that the investigation will take;

(c)  the likely cost to public funds;

(d)  the evidential result;

(e)  the necessity or otherwise of the investigation;

(f)  the relevance of the potential result of the investigation to the future care plans for the child;

(g)  the impact of any fact finding process upon the other parties;

(h)  the prospects of a fair trial on the issue;

(i)  the justice of the case.

27. In Stockport Metropolitan Borough Council v D [1995] 1 FLR 873 care proceedings had been brought by the local authority in respect of the second child of parents who had admitted causing ultimately fatal non-accidental injuries to their first child. The parents did not contest the making of a care order, freeing order and "no contact" order, but the local authority and guardian did not consider the parents' concessions in respect of findings sought were sufficient and argued they might seek to re-open issues if they had another child. Thorpe J (as he then was) found the parents' concessions crossed threshold and that a costly 3-week fact-finding hearing was disproportionate.
28. I have been referred to the case of Re K (care proceedings; fact-finding) [2010] EWHC 3342 (Fam), referred to by McFarlane J in DP, RS, BS, the father had been acquitted at criminal trial for the murder of his 10 month old daughter and subsequently had two further children with the mother. In the circumstances of that case, Hedley J refused to conduct a fact-finding exercise, concluding it would be disproportionate to the potential benefits. It was possible to conduct a risk assessment based on the information already obtained about father. It was not suggested that the father would be living with the child, the application was for unsupervised contact only. Hedley J cautioned against a 'check-list' approach but encouraged judges to consider each case on its own particular facts.
29. Notwithstanding caution against a 'check-list' approach, it is agreed by all legal representatives that McFarlane J's checklist is a sensible way to analyse the question before the Court. I therefore deal with each of the items on his list in turn, with reference to the particular facts of this case.

The interests of the children

30. A risk assessment has been carried out of the parents and essentially concluded that these parents are highly attuned to the needs of their children and there are no measures identified within the assessment which could be put in place to increase the level of protection that these parents could provide for their children.
31. Even in the event that it were found that one of the parents had inflicted an injury upon their child, the risk assessment remains the same, because it will be informed by the same material, namely the parents' accounts of events, observations of the children in their care, of the home environment, the support network around the family, input from nursery, health visitors and other professionals.
32. So the protection that would be afforded to the children after a fact-find would remain at the same level; their parents would be trusted to look after them.
33. If the fact-find exonerated the parents, they would still in the future be vulnerable to scrutiny of their care of children in the event that either of their children suffered a fracture or other serious injury in the future. The fact of the unexplained fracture, the subsequent proceedings, will have long-lasting effects on the parents and these children forever. Their parents are likely to be even more vigilant, even more cautious, and anxious to be able to provide an explanation for every injury big or small their children will, inevitably, sustain in the future. The fact that doctors could not explain these fractures will remain on C's records forever.
34. If they are exonerated by the fact-find the parents may be comforted and relieved, but the fact-find will not have succeeded in wiping this event from their lives.
35. The children have lived with their parents and grandmother since the proceedings began. Despite everybody's best efforts, they will have been affected by the strain upon the adults and they will be aware that this is not normal life. It is contemplated that eventually normal family life will return, but the fact-find prevents that from happening for a further couple of months.

Time and Cost

36. The fact-finding hearing is six weeks away and is listed for four days. The attendance of Dr Chapman would be required, albeit by video-link, saving travel costs but not his fees for the day. The cost of legal representatives attending for four days and the precious time of social workers and the guardian should be taken into account. The overriding objective requires me to have regard to fairly sharing the court's resources. There is an overwhelming pressure on the family courts, and the reality is that the four days that this case is listed for could be utilised for other cases where the outcome for children is uncertain and their welfare is put at risk by continued delay.

The Evidential Result

37. I have found this heading difficult but, with the assistance of counsel, it has been agreed that I approach this on the basis that I am not being asked to assess the merits of the evidence and conclude as to the local authority's prospects of success, as I might in a civil application for summary judgment, but to consider the range of evidential results that might be obtained, and the potential consequences of those results.
38. At its highest, the local authority may prove on a balance of probabilities that C's fracture was caused by an adult (one of the parents), either deliberately or recklessly, or that it was caused accidentally and either one of the parents has sought to conceal that from professionals.
39. Save in the extremely unlikely event that either of the parents suddenly has a recollection, or admits to telling lies from the start and is then willing to spell out in detail the circumstances and mechanism of the accident, the likelihood is that the Court's finding would remain that the circumstances of the accident were unexplained, and remained undisclosed.
40. The result would be that the cloud of suspicion continued to hang over both parents but the risk assessment into them as carers would remain as per the parenting assessment, because the information from the parents would continue to be that they did not know how the accident was caused.
41. The children would remain in the care of their parents.
42. If the Court is not satisfied on a balance of probabilities that the injury was caused by an adult, threshold is not crossed, the proceedings are concluded. The children remain in the care of their parents. The shadow of the injury and these proceedings remains hanging over the children and the parents in any event; the fact-find cannot remove it.

The Relevance of the Potential Result to the Future Care Plans

43. The local authority is seeking findings that one of the parents caused fractures to C with significant force, either accidentally, recklessly or non-accidentally. Notwithstanding this, the local authority's clear position is that it is not contemplating removal of the children from their parents. Plainly this is an exceptional situation, entirely different from the cases to which I have referred above, and, I am informed by counsel, is not a situation that has arisen in any reported case of which they are aware.
44. On behalf of the father it was submitted that at an advocates' meeting the prospect of a risk assessment and management service such as FASS being lined up in the event of adverse findings of fact being made against the parents and the guardian's view was conveyed to the group as being 'a sledgehammer to crack a nut' i.e. excessive, disproportionate and unnecessary.
45. The relevance of the potential result to future care plans appears to be that it is irrelevant.

Necessity of the Investigation

46. On behalf of the guardian it is submitted that a fact-find is necessary in order for C to know the truth about how her injury was sustained. This submission reminded me of the case of L and M [2013] EWHC 1569 in which Baker J was conducting a fact-finding injury and set out succinctly the principles that he should bear in mind. He reminds himself that expert evidence alone cannot be the decisive factor:

'Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.'

47. He also emphasises 'the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause.' He cites Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim 126 at paragraph 1:

'Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible cause has been excluded, the cause may still remain unknown.'

48. I refer to these authorities not because I have come to any concluded view about Dr Chapman's evidence, I emphatically have not, but because it helpfully emphasises the limitations of what the Court can realistically achieve in a case of this nature.
49. In this case the parents could be cross-examined for a day each, Dr Chapman's opinions could be subjected to detailed scrutiny, and the Court could find that his assessment of the likely cause of injury is correct and the parents have deceived the court, but the prospects of the 'truth' being discovered are remote.
50. Of course there is a public interest in the perpetrators of injuries to children being identified, and the facts established. In the cases to which I have been referred, those arguments could be forcefully made, the perpetrator had already been identified and was seeking to avoid further inquiry into the extent of the damage inflicted on children. The situation is very different in this case. The local authority acknowledges that the parents are 'apparently honest', that they are exceptionally good and loving parents, but wishes to know how C's fracture was sustained.
51. I am not remotely confident that the fact-find would be able to produce that information.
52. A fact-find may be useful in the event that in the future a child of these parents sustains an injury, investigating authorities would have access to the conclusions of this court about C. However, as I have said, in my view there are limits to what the fact find could achieve. Secondly, my duty is not to any future child, but to C and B. Thirdly, if such a situation arises in the future, the circumstances of this injury could be looked at again, and would be, regardless of any views I might have come to about it. Given the nature of the parenting assessment and the evidence about these parents, it is not a very likely scenario.

Impact of the Fact-Finding Hearing on the other Parties

53. These proceedings have been devastating for this family. A baby sustained a serious injury in her parents' care, they had the worry and uncertainty of not knowing what was wrong with her, then some days later discovering it was a fracture. They had the horror of suspecting their older daughter, then worse, then discovered they themselves were suspected. Their family life has been disrupted and interfered with. The maternal grandmother has given up her home and her life in order to commit herself to her daughter son-in-law and grandchildren. A huge commitment has been asked of her.
54. Although all observations and assessments have been exceptionally positive, and the parents will have been hugely relieved to have it confirmed from mid-January that the children were not to be removed from their care, the continuation of the current arrangements and the pending fact-find is plainly hanging over them, their children and their whole family, causing them continuing stress and worry.

The prospects of a fair trial

55. I am satisfied that any fact find would be fair, but I have to consider whether there is benefit in holding it.

Justice of the case

56. I come back to the overriding objective. Dealing with a case justly includes:

• Ensuring that it is dealt with expeditiously and fairly

• Dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

• Ensuring that the parties are on an equal footing;

• Saving expense; and

• Allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

57. I have had regard to all those factors, and considered the matters to which I have been specifically directed by the case law, in light of the circumstances of this particular case.
58. In my judgment, to continue with these proceedings would be unfair on the parents who have co-operated fully with the investigation and done everything that has been asked of them.
59. The potential benefits of the fact-find would not in my view be proportionate to the disadvantages of holding it and I do not consider it is justified in all the circumstances of the case. I have particular regard to the following matters:

(i) The limits of the Court's ability to make findings given the evidence that is before the Court; in my judgment the prospect of being able to discover how C sustained her injury is remote;

(ii) Whether the parents are found to have played a part in causation of her injuries or not will have no impact upon the local authority's plan not to separate these children from their parents;

(iii) the children will not benefit from any greater degree of protection than they currently receive as a result of any adverse findings of fact being made against the parents, as it is not proposed that there be any further risk assessment, and if there were, it would be based on the same information as the existing one which was entirely positive about the parents' ability to protect their children;

(iv) even if threshold is not found to be passed and the parents regarded as exonerated, they will not be less vulnerable to questions about their care of the children should either of them suffer an injury in the future;

(v) continuing the proceedings further will cause unnecessarily delay and cost and will prolong the unnatural and difficult situation in the household, which will inevitably impact upon the girls' welfare.

60. For these reasons, and applying the overriding objective, I consider that the question of causation of C's fracture requires no further investigation in the very particular circumstances of this case, and I choose to exercise my case management powers and determine that the fact-finding hearing should not take place.
61. I have had careful regard to the views of the local authority and the experienced guardian, and I do not depart from her views lightly, however I remind myself that it is not for the guardian to become involved in the arena of threshold. Ultimately this decision has been about exercising my discretion in light of all the circumstances of the case. While I pay close attention to her views, and respect her professional judgment, I consider that I have weighed all the factors appropriately and come to a different view on this occasion.

Joanna Vincent

HHJ Vincent

10^th February 2017