In this blog, I discuss Re Felix (fact finding and welfare) [2024] EWFC 302(B), a judgment of Her Honour Judge Vincent given in the Family Court sitting at Oxford on 8 February 2024.
Felix is not the real name of the child at the centre of the case. The judge used a fictitious name for the child, and for a number of other people referred to in the judgment, in order to protect the anonymity of the child. In this blog, I use the fictional names given by the judge.
Background
Felix was born in September 2022. He lived with his young mother, Emma, in supported living accommodation for mothers and babies under arrangements made by the local authority. His young father, Sam, had had a brief relationship with Emma which ended in January 2022.
Shortly after Felix’s birth, Emma formed a new relationship with Luke and she found out that she was pregnant again in December 2022. Luke spent a lot of time with Emma and Felix and sometimes stayed overnight. Following concerns raised by another resident in the supported living accommodation, an ambulance was called for Felix on 13 January 2013. He was taken to hospital where he was found to have fractured his right elbow. The scans carried out at the hospital also showed other fractures.
The hospital contacted the police and the local authority. When interviewed by the police, Emma said that Felix was on his playmat on the evening of 12 January 2023 while Luke played on the Xbox. She went to the toilet and came back to find Felix lying in an awkward position and crying. She took him upstairs for a bath and he cried when his arm was moved. There were some inconsistencies in what Luke told the police but his statement to them included a passage in which he said that he had noticed that Felix had rolled on his arm and got stuck and that he woke Emma up. He described Felix as really screaming. Both Emma and Luke denied hurting Felix.
The local authority applied for a care order. Felix was placed with foster carers pending the final outcome of the local authority’s proceedings.
Luke and Emma separated in February 2023. Emma gave birth to Bella, her child with Luke, in August 2023. Bella was placed in foster care after her birth and there were separate proceedings in relation to her. A judgment relating to Bella, Re Bella (placement with kinship carers) [2024] EWFC 303 (B) was published in September alongside the Felix judgment (see final paragraph below). Both the judgments include a helpful short judgment at the beginning, summarising the essential points of the decision in plain English.
The final hearing in Felix’s case took place over several days in November and December 2023. It was what is known as a combined fact-finding and welfare hearing. This meant that the purpose of the hearing was to enable the judge to reach conclusions on two issues.
The first was whether she was satisfied that Felix:
- was suffering or was likely to suffer significant harm on 18 January 2023 (the date when the local authority applied for a care order), and
- if so, whether that harm, or likelihood of harm, was attributable to-
- the care given to the child, or likely to be given to him if the order were not made, not being what it was reasonable to expect a parent to give him; or
- the child’s being beyond parental control.
This is commonly known as “the threshold test” and is set out in section 31(2) of the Children Act 1989. As the facts were in dispute, the judge had to consider the evidence and come to her own view, setting out her findings of fact, in order to decide whether the threshold test was met and, if so, why. In particular, in relation to each injury, she had to decide whether the evidence showed that it was more likely than not that Emma caused it or, alternatively, that it was more likely than not that Luke caused it. If she considered that the evidence did not enable her to say which of them was responsible, she could make a finding that either Emma or Luke caused the injury.
Assuming that the threshold test was met, the second issue was what orders to make under the Children Act 1989. In deciding what orders to make, the law required the judge to give paramount consideration to Felix’s welfare as set out in section 1 of that Act.
The judge’s decision
The judge had no hesitation in deciding that all of the fractures identified by the clinicians who treated Felix in hospital in January 2023 were the result of an inflicted injury. This was not surprising to me. Two expert medical witnesses, a consultant paediatric radiologist and a consultant paediatrician, gave evidence at the hearing that the injuries were caused by excessive force. They were clear that Felix’s most serious injury (the fracture to the right elbow, leading to his hospitalisation) could not have happened through rolling over on his mat. No other medical experts gave evidence.
The judge went on to say that the only two potential perpetrators of Felix’s injuries were Emma and Luke. Again, this seemed unsurprising and it does not appear from the judgment that anyone suggested that there was another potential perpetrator.
The question then was who caused the injuries. Emma’s position at the time of the hearing was that she now thought that Luke caused the injuries. Luke denied causing the injuries but did not expressly say that he thought that Emma caused them. The local authority’s position at the beginning of the hearing appeared to be that either Emma or Luke caused the injuries but, after the conclusion of the oral evidence, it altered its position to say that it was likely that Emma caused the fracture to the right elbow. Felix was represented through a court-appointed guardian and the guardian’s position at the conclusion of the oral evidence remained that either Emma or Luke caused the injuries but it was not possible to say which of them.
The judge decided that it was more likely than not that Luke caused all the injuries. On the fracture to the right elbow, the judge observed that both Emma’s and Luke’s early accounts clearly pointed to the injury happening on 12 January 2023 at a time when Luke was with Felix and Emma was either at the toilet or not awake. At the hearing, Luke changed his version of events on that day. He said that he did not see Felix roll on the mat and that there was nothing noticeable about this cry. He said that the account he gave to the police was not true and that he had just said what Emma had told him to say. However, the judge was satisfied that he was lying and doing so in order to mislead the Court and direct attention away from himself.
The judge also found Emma to be an unreliable witness in many respects. She admitted at the hearing that she had faked a number of messages which she claimed were from former partners. Although she denied it, the judge also found as a fact that she had faked messages which she claimed were Luke admitting to having harmed Felix. However, she found Emma’s evidence in respect of Felix’s injuries to have remained broadly consistent throughout and to be credible.
Although the judge found that the injuries were caused by Luke, she also identified failings in the care that Emma provided to Felix.
Having made these findings of fact, she concluded that the threshold test was met.
The judge then decided that it was in Felix’s best interests to live with his father, Sam, who had expressed a wish to care for him. She made a supervision order in the light of the need for support to facilitate contact between Emma and Felix with a view to progressing to a situation where Emma’s adoptive mother could supervise contact.
There is clearly much of interest in this case. In the remainder of this blog, I want to focus on just a couple of those that may be of interest beyond its particular facts.
The judge’s concern about the local authority’s threshold document
At an early stage in the judgment, the judge expressed concern about the local authority’s “threshold document”. The local authority’s “threshold document” is the document setting out the local authority’s reasons as to why it thinks that the court should be satisfied that the threshold test is met.
The judge said that “[T]he local authority’s difficulties in formulating its threshold document had been the most troublesome issue in this case.” [para.21]. The local authority’s original threshold document said that Felix had sustained serious injuries, but the judge observed that it did not put forward a case about who caused them. At case management hearings, the local authority had stated that there were wider concerns about neglect, domestic abuse and mismanagement but none of these were documented in the original threshold document. The judge added that she had repeatedly asked the local authority to consider its position and provide a document that allowed other participants in the proceedings to know what was being said.
It appears from the judgment that another threshold document was subsequently provided. However, the judge was again not satisfied with it, observing that it did not put forward any kind of coherent case about when or how the injuries were alleged to have occurred.
As I have already mentioned, after all the evidence in the case had been heard and before their final submissions, the local authority changed its position to say that Emma was the sole perpetrator of the most serious fracture to Felix’s right elbow.
I haven’t seen the documentation criticised by the judge but it did seem surprising that the original threshold document fell short of what was required in so many ways. I could understand that the local authority may have been reluctant to say that Emma caused the injuries or that Luke caused them. The evidence was open to interpretation. However, they ought to have been in a position to identify who they thought was within the pool of potential perpetrators and why.
The requests for further reasons
The judgment includes an Annex in which the judge set out responses to requests for clarification that she had received following the circulation of a draft of her judgment to the parties in January 2024. The requests came from Luke’s legal representatives and from the local authority’s.
Although the judge did not find it necessary to refer to it, the approach to be taken by legal representatives and judges to requests for clarification in the family jurisdiction has been considered by the Court of Appeal in previous cases, for example, F and G (Children: Sexual Abuse Allegations) [2022] EWCA Civ 1002.
There were two particular points that struck me about the requests and the responses.
The first was that they provided an answer as to why the local authority had changed its position after the conclusion of the oral evidence to say that it was likely that Emma caused the most serious injury to Felix’s right elbow. The reason was not set out in the main judgment but one of the local authority’s requests was that the judge provide reasons for having rejected the local authority’s case on this. Looking at the request, it became clear to me that the reason for the change was that Emma had given oral evidence at the hearing that on the evening of 12 January 2023 she undressed Felix of multiple layers of clothing and bathed him for 10 minutes without Felix displaying pain. In the local authority’s view this pointed towards the likelihood that the injury occurred around the time of the bath (and not before it).
The judge said in response that this evidence was drawn out of Emma in response to suggestions from the local authority’s barrister with which she said she tended to agree. The judge went on to say that she accepted that this particular piece of evidence did not sit easily with Emma’s earlier accounts to the doctor and the police when she described Felix screaming in pain when on the playmat and again in the bath when his arm was moved. However, having considered the totality of the evidence, the judge did not consider that what Emma said in response to suggestions put to her at the hearing was sufficient to displace the weight of the other evidence.
The judge’s response was well-reasoned, emphasising the totality of the evidence. It was perhaps unfortunate that the substance of the response was not included in the original draft judgment. From the local authority’s perspective, I could understand why it may have seemed that their case had not been properly addressed.
The second point that struck me in reading the requests was that both Luke’s legal representatives and the local authority’s asked the judge to clarify what significance she attached to the lies told by Emma. The judge was referred in particular to her finding that Emma had faked messages which she claimed were Luke admitting to harming Felix.
In her response, the judge reiterated that she had found Emma to be an unreliable witness in a number of respects, including faking messages. The judge referred to the law on how to approach lies. On the fake “confession messages”, she said: “On balance, this piece of evidence did not persuade me on its own or in the context of all the evidence, that [Emma] sent these messages because she had caused the injuries to Felix, and that she was attempting to make it look as although [Luke] had caused the injuries instead;”.
In responding to this request as she did, the judge was simply elaborating on what was implicit in the main judgment. However, again, I found it understandable that requests for clarification were made. The judge’s finding of fact that Emma faked “confession messages” was clearly not peripheral to the issue of who caused the injuries. It may therefore have been preferable for the judge to have given more prominence within the draft judgment to her assessment of its weight in the context of the overall evidence.
Concluding reflections
I was very struck by the complexity of the judge’s task, not just in making findings of fact in relation to the injuries, but in giving reasons for them. Despite a lengthy judgment running to 304 paragraphs, there were requests for clarification to which the judge thought it appropriate to respond.
Generally, I thought that the judge’s humanity was very evident in the judgment. At its conclusion, she seemed determined to offer Emma and Luke, both of them still very young, some hope. For Emma, this was that she could, by taking part in therapy, put herself in a better position to realise her wishes to care for her daughter, Bella, who had been in foster care since birth. For Luke, it was that her decision did not mean that he could never see Bella provided that he was willing to engage with social workers and other professionals.
Having read and written about this judgment, I naturally wondered what had happened to Bella, whose case was also being dealt with by Her Honour Judge Vincent. In that interim judgment, the judge concluded that all the factors that had made it not safe for Felix to live with Emma were still there and applied to Bella. Final orders have not yet been made but the judge continued an interim care order and supported the local authority’s plans for Bella to live with kinship carers, who were in fact Luke’s aunt and her partner. The judge gave an indication of what she thought was appropriate for contact, which was that Luke should have supervised contact six times a year and Emma contact for a couple of hours each month, supported by her adoptive mother.
Bernadette Walsh is a retired lawyer. She spent most of her career as a legislative drafter but has also worked as a solicitor in private practice and as a law teacher.
Image: Royalty free at pickpic.com
We have a small favour to ask!
The Transparency Project is a registered charity in England and Wales run by volunteers who mostly also have full-time jobs. We’re working to secure extra funding so that we can keep making family justice clearer for all who use the court and work in it. We’d be really grateful if you were able to help us by making a small one-off (or regular!) donation through our Just Giving page.