One evening in autumn 2023, a young couple took their five month old baby to an emergency hospital where she was diagnosed with numerous physical injuries (some very serious) which the parents couldn’t explain. Local authority children’s services were called in and care proceedings began. The baby went into foster care under an interim care order when she left hospital. Fortunately, she soon fully recovered from the injuries. More than a year later, a full care order was made.
I attended 10 of the 11 hearings held in this case over 12 months, as a legal blogger, including a nine-day fact-finding hearing and I’m now able to report on the outcome. In the context of recent publicity about the role of the family courts in cases of physical abuse of children, I hope this report will help explain how public services normally work in this complex area. The case was heard in Cardiff Family Court (which covers a wide geographical area in Wales) and I was able to ask for a Transparency Order (TO) under the Reporting Pilot then operating from January 2023.
I should explain that any anonymity in my report (including not identifying the local authority) complies with the TO restrictions to lessen the risk of identifying the child. There is no covering up for sinister reasons.
I had previously been allowed to write on one important aspect of this case – an application by the father in the case that an intermediary be appointed to enable him to fully participate in proceedings. The judge had agreed to my application to write about that because it was an individual issue and a topic of wider interest. At the time, August 2024, new High Court guidelines on intermediaries were being anxiously studied by judges and lawyers. Just a few days ago, formal guidance on appointing intermediaries was issued by the President of the Family Division, as we’ve explained here.
Now the care proceedings have finished, I can write on the substance of the application and the outcome for the family.
In accordance with section 31 of the Children Act 1989, the court had to address and resolve the following issues:
- The nature and extent of the baby’s injuries
- How they had been caused
- If the injuries had been non-accidental, i.e. inflicted by someone, who was the perpetrator
- In view of the above, whether the local authority should be granted a care order to meet her welfare needs, or whether other orders, or ‘no order’ would safeguard her and best meet her needs.
It’s important to realise that it’s impossible to arrive at a just outcome in this type of case by compressing it into the standard 26-weeks limit, with two or three hearings, imposed by the Public Law Outline as advocated in the recent ‘Refocus’. Although delay is not in a child’s welfare, especially a tiny child like this, the contested issues in this case were just too complex to resolve in six months, requiring input from medical experts; social work assessments of family members; large numbers of barristers; and a judge who is also busy in the Crown Court.
There were three bundles of documents coming to a total of almost 5000 pages to read, plus two other bundles comprising messages from each parent’s phone, each of about 11,000 pages. The local authority and each parent were represented by a legal team comprising a KC, a very experienced junior barrister and a solicitors firm; the Cafcass guardian was represented by a very experienced barrister and child law solicitor. The court heard oral evidence from 11 witnesses at the fact-finding stage and that judgment came to 141 pages. I think it’s the longest Family Court judgment I have ever read.
Background to the care application
Amy and David (not their real names) were in their mid 20s, married, their own parents from professional backgrounds, and owned their own home. As described by the judge, each of them had had a conventional upbringing with no history of an abusive childhood. Their respective parents didn’t live far away and all doted on their grandchild. David was in full-time work with a good employer. Amy and David are articulate, well-educated young people who went to university. However, there were tensions. David had been diagnosed with ADHD for which he was prescribed medication. He had dropped out of university five years earlier because of a cocaine addiction. Amy has a history of anxiety and depression since her teenage years and was diagnosed with fibromyalgia and Ehlers Danlos syndrome. She has a post-graduate qualification and was trying to make her way in a literary career. Their baby (who I’ll call Claire) had not been planned, but the extended family all seemed delighted. In the early weeks, Amy had persevered with breastfeeding despite serious mastitis which eventually needed surgery. The couple had some worries about meeting their financial commitments and in the week leading up to the hospital admission all three had been suffering from a common, although painful, virus and lack of sleep.
When Claire was found by the hospital to have suffered fractures and other injuries at five months old, all the family rallied round to look for an explanation. Amy paid privately for consultation on possible genetic conditions and health professionals in the extended family were called on for advice. Understandably, everyone was looking for an alternative to the unbelievable possibility that somebody close to Claire had hurt her.
When I attended an early hearing in January 2024, Amy and David were sitting together although, as is customary, they had separate lawyers. Neither of them, nor the local authority or Cafcass guardian objected to my attending as a legal blogger. HHJ Mererid Edwards explained the Reporting Pilot to the parties and made a Transparency Order. At this point, both sets of grandparents and another extended family member were being considered as potential short-term foster carers for Claire, so that she could move to a kinship care placement rather than continue to live with non-related foster carers. The local authority were keen on kinship care although longer term twin track planning was also happening at this very early stage – possible adoption outside the family was in the mix. Amy and David were having regular supervised contact with Claire.
Claire’s injuries
Medical investigation eventually showed that when Claire arrived at hospital she was suffering from several fractures and a number of bruises and swellings to various parts of her body. On her admission, she was in too much pain to be fully examined, so these results emerged gradually. The family put forward various theories about injuries being incidentally caused by medical professionals, but such accusations soon fell away.
By early spring 2024, things had shifted. At a meeting with the social work team, the family discovered that David had tested positive for amphetamines and was not taking his prescribed ADHD medication. Hair strand tests showed use of amphetamines during all of the period he had cared for Claire, and some use of cocaine. Overall, David had been dishonest with his family and the authorities about the extent of his recent drug use (see further details below). The local authority ‘threshold’ i.e. the legal basis for a care order, was that Claire had suffered significant harm and would be likely to suffer significant harm in future, largely based on the likelihood of the injuries resulting from David’s drug use and Amy being aware of this risk but not protecting Claire from the consequences. The local authority also had some concerns about the awkward way in which David was observed to handle Claire during the contact sessions.
When I attended a hearing in April, it transpired that Amy and David had split up and the two sides of the family were no longer united in their defence of both parents. David said that he was a victim of coercive control by Amy and because of this, special measures had been put in place in the courtroom. These included David sitting behind a screen and arrangements for separate entrances and exits from the courtroom. As explained below, the allegations of coercive control arose from interaction between the parents in early 2024; the court was not asked to make any findings of domestic abuse that had historically had an impact on Claire.
At this point, the nature and extent of the injuries were no longer in dispute and the focus had shifted to how they had occurred, and efforts by the family to discover an alternative non-sinister explanation seemed to have been abandoned
At the May case management hearing (CMH), HHJ Edwards noted that 26 weeks had already gone by. A new complication had arisen as the local authority had become concerned that David did not always understand what was going on, and a cognitive assessment had been directed to check that he could fully participate in proceedings. This assessment concluded that although David was competent to take part in proceedings, he had a complex array of neurodevelopmental challenges, including ADHD, dyslexia and dyspraxia. The psychologist who had undertaken the assessment recommended a range of special measures to be put in place to ensure he could have ‘a fair trial’ (his ECHR Article 6 rights). Details of this unusual feature of the proceedings are set out in my earlier post.
HHJ Edwards wanted to list a ‘rolled-up’ fact finding and welfare hearing rather than add to delay by splitting these stages into two hearings. Relatively short hearing days with lots of breaks were required in accordance with the special measures for David; the judge calculated that the final hearing scheduled for late summer would take about two weeks and would have to be transferred to a different judge as she was not available at that time. An issues resolution hearing (IRH) took place before HHJ Paul Hopkins KC (who is the designated family judge for southeast Wales) and the final hearing was listed for nine days.
How the injuries were caused
In the absence of any explanation for Claire’s injuries, the court had to rely on evidence from the medical professionals who had been involved in her treatment and on additional independent expert medical evidence commissioned for the court proceedings. Statements were provided by the hospital triage nurse; four hospital doctors; a second nurse; another doctor who had viewed X-rays; and (for a wider overview) by Claire’s health visitor. The doctors had recorded their clinical observations of Claire and the parents’ responses to their questions about what had happened. One of the examining doctors compiled a full child protection medical report.
The court heard oral evidence from the triage nurse and one of the emergency hospital doctors. It also heard evidence from a GP who Amy had visited with Claire the morning of the hospital admission because some blood had been found in Claire’s mouth and Amy was concerned about this. Although the GP was not able to make a specific diagnosis, her examination did not, at that time, indicate any cause for concern.
Independent expert medical advice was sought from Dr Olsen, consultant paediatric radiologist; Professor Kumar, consultant in clinical genetics; and Dr Irving, consultant in clinical genetics in skeletal dysplasia (bone and cartilage disorders). Dr Olsen’s opinion was that the fractures were a result of excessive force being applied to different parts of Claire’s body possibly on one occasion or on more than one occasion within a two week period. Professor Kumar and Dr Irving concluded that there was no underlying condition that could have led to the fractures. The independent medical expert jointly instructed to review all the medical reports was Dr Fiona Straw, an eminent paediatrician who sits on the Family Justice Council. The judge devoted 40 paragraphs in the fact-finding judgment to a detailed summary of Dr Straw’s observations and conclusions as to the cause or causes of the fractures, bruising, swelling and abrasions. She advised that these could not have been caused to a pre-mobile baby without the adults caring for her being aware that there had been a significant event leading to pain and distress.
The pool of perpetrators
Initially, both parents and sets of grandparents were in the ‘pool’ of potential perpetrators. Case law has established that the number of potential perpetrators of harm should be narrowed down as far as possible through a process of elimination. For a period up until three days before Claire was taken to hospital, she’d been seen by one or other members of the extended family. However, investigations soon excluded other family members and left just Amy and David in the pool.
When Claire was taken into foster care, her parents were initially seeing her together for supervised contact three times a week. About a month after the intense meeting where David’s continued drug use had been discussed, the parents’ responses to investigations began to diverge. Amy hand-wrote a note setting out apparent admissions by David and gave this to him – the intention of the note was later subject to conflicting explanations. As mentioned above, by the time of the April CMH, David had alleged that Amy was trying to manipulate him into making false admissions and that he was being emotionally abused by her. In a later statement, he added that, in hindsight, their relationship had been one where Amy was abusive, coercive and controlling.
The court heard evidence from the allocated social worker about her assessments of Amy and David. She was challenged by David’s lawyers who suggested she had been unfair in too rapidly assuming he had caused the injuries and that she had formed that view based on inaccurate information provided by Amy. This social worker had handed over the case to the current social worker several months before Amy’s full medical records had been available to children’s services. The judge concluded that this initial assessment hadn’t been unfair to David and that the first social worker had not unduly influenced the second social worker. The statements that had been provided by the second social worker were not challenged and she did not have to give evidence, although she did sit through the entire hearing, as did the Cafcass guardian.
The primary factor in identifying the perpetrator of the injuries turned out to be the extent of David’s drug use and the information he was prepared to give (or not) about this. The judgment includes consideration of recent case law on the reliability of hair strand testing. David’s test results were not challenged by any of the parties. These indicated the use of amphetamine and cocaine around the time of Claire’s birth and cocaine from about the date of the injuries up to the summer of 2024. David also admitted to use of LSD and cannabis during this period.
I don’t know whether David had retained many months’ worth of messages on his phone about illegal purchase and use of non-prescribed drugs or whether these had been deleted and later retrieved during the investigations. Although extracting and presenting the phone messages was clearly an intensive and expensive task, many explicit conversations between David and his suppliers were exhibited in the court documents that spoke for themselves. Additionally, there were conversations between David and Amy that showed she knew about and was even condoning his drug use at various times.
David’s KC devoted a lot of time when questioning the social worker and later when questioning Amy to the fact that Amy had not always been entirely honest about her own history of drug use nor her full medical history. (However there was never any suggestion that Amy took any non-prescribed drugs or medication from the time that she first became aware she was pregnant with Claire. Her history was of some use of cannabis with David about two years earlier). For example, Amy had not told the first social worker that she had in 2020 referred herself to her doctor for suspected borderline personality disorder (BPD). She had been promptly reassured by the professionals that she did not suffer from BPD but in later consultations with health professionals she had been inconsistent in referring to this or not. I was surprised by this discussion because I’d never come across a woman voluntarily self-diagnosing as having BPD. Overall, the cross examination succeeded in giving the impression that Amy was not always a reliable witness.
The health visitor’s evidence had mentioned that Amy suffered from severe social anxiety at the time Claire was born and that she had experienced disproportionate anxieties about the baby’s well-being at various times. I was struck at one point during David’s evidence that he said Amy was never apart from Claire and never left the baby alone with him. On reflection, it seems that Amy never went out by herself after Claire was born, although David still mixed in a social circle where drug use was prevalent.
By the date of the June IRH, the local authority was still not in a position to specify in their threshold document which of the parents had injured Claire. There was still uncertainty as to the timing. Although the issues in dispute had been considerably narrowed over the months, it became apparent at the beginning of the listed final hearing in August that the nine days would have to be converted into a fact-finding hearing only and the welfare stage would need to be listed at a later date.
In the second part of this report, I will cover the fact-finding judgment delivered by HHJ Hopkins and the subsequent welfare hearing and judgement, together with some reflections on my legal blogging experience.