This post follows on from the first part of my report on care proceedings in Cardiff Family Court published here.

I was uncertain as to exactly what the judge would decide about who had caused Claire’s injuries. There were no Perry Mason moments of discovery and revelation in the courtroom.  Amy always appeared composed, including during her evidence and cross examination, although when Dr Straw was describing Claire’s injuries (by video online) she began to cry quietly. I couldn’t see David as closely because he was on a screen but it seems that the special measures were sufficient to keep him focused and his answers were clear. Both parents consistently denied harming Claire and expressed how much they loved her.

The local authority threshold statement at this stage detailed the injuries and submitted that the fractures were caused by excessive force or shaking; the bruises and abrasions caused by grabbing or squeezing. The parents had not been honest about the cause of the injuries and if one of them had caused them, the other had failed protect to Claire from being injured. Additionally, the local authority relied on an injury that had occurred earlier in the summer but had at that time not been deemed a child protection matter. The statement set out a list of concerns relating to David’s drug use and to Amy’s failure to protect Claire from the consequences. There were also references to David’s inappropriate handling of Claire although eventually this particular point was not included in the judge’s findings.

The fact-finding judgment

The judgment was formally handed down some three weeks after the hearing. This includes 45 paragraphs outlining the relevant law. The judge expressed his gratitude to the parties’ barristers ‘for drawing together an agreed note of the law’ which I haven’t seen but I am assuming is a pretty long ‘note’. The subheadings in the judgment are: burden and standard of proof; findings must be based on evidence; totality of the evidence; credibility; hearsay; inconsistent accounts/recollection/lies; perpetrators; phone messages; expert evidence; hair strand testing; and failure to protect. Relevant case law is set out in quite some detail so I hope that this judgment is eventually published as it may be quite helpful for lawyers and social workers in future similar cases.

The judgment also contains a chronology of the significant events since Claire’s birth and of course a very detailed chronology of what was known of the events just up to and after the time window in which Claire was injured.

The judge described a ‘disintegrating home environment’ from the time Claire was two months old, evidenced by huge numbers of telephone messages about Amy’s anxieties, difficulties with David obtaining his ADHD medication, his purchases of LSD for micro- dosing, and arguments about money. There had been an earlier hospital visit some three months before the admission and diagnosis of the serious injuries. The parents had seen Claire in pain and seemingly unable to use one of her arms – this was diagnosed as a minor accidental dislocation and there were no professional concerns at that time. However a stream of messages about David’s drug use continued and were eventually exhibited to the court.

After setting out the evidence from the days around Claire’s hospital admission, the judge summarised and analysed the respective positions of all the witnesses. He then set out his individual assessments of Amy and David, preceded by an observation that they were both complex and vulnerable young people with whom he had some sympathy. Amy had a complicated health history and David, although rather reflective, had been sadly ‘battling his demons’ for a long time. The judge found a number of inconsistencies and evasions in both parents’ evidence and that each was unreliable at times. He was also mindful of potential past collusion between them. He therefore had to take into account other evidence to assess their reliability. This included a detailed analysis of the medical evidence (as outlined above). He also evaluated the four grandparents’ evidence.

The judge examined each of Amy and David’s explanations of the way the day had unfolded before they took Claire to hospital. He then considered: the dynamic in the parents’ relationship; the extent and relevance of David’s history of drug use; the same regarding Amy; the extent of Amy’s knowledge of David’s ongoing drug habits up to the date of the hospital admission: the relevance of Amy’s mental health history and whether she was a fantasist; the relevance of David’s mental health history; the nature and relevance of the respective parenting roles; Claire’s earlier contact with medical professionals; the injured limb three months earlier; whether the parents generally struggled to cope with Claire in the weeks leading up to the hospital admission; the nature and extent of concerns about David’s handling of Claire in contact sessions; meetings between the family and social workers; and whether David had made ‘admissions’ to Amy – the ‘admissions note’. This latter point was about the handwritten note by Amy which appeared to be explaining that David knew he had caused the injuries. Amy gave evidence that this wording had been agreed whereas David gave evidence that she had written it herself and tried to get him to accept it.

The judge’s findings can be briefly summed up as: the range of injuries having been caused by David, his having no explanation for these, that he had a continuous drug habit and had been dishonest about this, and that Claire was injured when in his care and when he was under the direct influence of drugs or his need for drugs. The injuries had occurred when David lost control. The judge also found that Amy had generally failed to protect Claire from the risks posed by David’s drugs misuse. However, she was not found to have placed Claire at risk of the specific physical and emotional harm that had led to her hospital admission and the initial care application.

The welfare decision

As noted in the recent PLO relaunch and refocus, an IRH should be treated as an opportunity for final orders to be made. Following the handing down of the lengthy fact- finding judgment in October, dates then had to be agreed for hearing issues about Claire’s welfare i.e. what final orders needed to be in place, if any, to meet her needs in the light of the findings by HHJ Hopkins, the local authority proposals, and the recommendations of the Cafcass guardian. Although this timetable was set to run for another four months or so, an IRH listed at the end of 2024 became a final hearing because all the parties were able to agree the local authority care plan.

Claire had been living with Amy’s parents for the previous six months; they had the legal status of approved kinship foster carers. Amy had been allowed to go to live with them  and Claire after the fact-finding hearing had found she had not directly caused any injuries. By the date of the welfare hearing, everyone  viewed Amy as Claire’s primary carer and David had accepted this. However the gravity of the case and the level of ongoing local authority support for both parents meant that this was one of those rare cases where placement with a parent under a care order was necessary; a supervision order was a ‘non-starter’.  Amy and David were getting divorced and there were financial arrangements to be sorted out amidst increased rancour between the two sets of grandparents. Because a care order when  a child is placed with a parents has been ruled by the Court of Appeal to be ‘exceptional’, the judge itemised his reasons for such an order carefully – Re JW (Child at Home under Care Order) [2023] EWCA Civ 944.  

Although David was not appealing HHJ Hopkins’ findings, nor disputing the care plan, his most recent statement indicated that he was still denying blame. His parents were said to be finding it difficult to accept the findings. David’s barrister described him coming to terms with the decision as an ongoing process, not an event. Supervised contact between Claire and David was said to be positive.  The judge was a little concerned at the high level of contact agreed and checked that arrangements followed ‘the Baker criteria’ which aim to ensure a parent who has contact in public law proceedings accepts and does not undermine the placement.

My legal blogging experience

The lawyers and court staff were all receptive and helpful to my attendance and regular requests for information. Toward the end of the proceedings, there was a sudden administrative switch from the helpful local Cardiff family court team to a centralised portal in Stoke-on-Trent which confused me at first, but worked out in the end.

None of the parties raised any objections to my attendance or reporting, and David’s barrister told the court David was supportive of transparency. Although I was present for almost all the court proceedings, and introduced at the outset, I didn’t speak personally to either parent or any witness. It seemed to me that they all had more than enough to cope with, and if they’d wanted to talk to me, they would. That’s not an approach I always take but it felt right in this case. 

With regard to the intensively considered necessity for an intermediary for David, I observed David giving his evidence via video link from another room in the court building but I don’t feel in a position to evaluate exactly what the intermediary contributed. Other special measures were also in place, with David sitting in the separate room with his intermediary and a lawyer, and breaks in proceedings being taken at least every 30 minutes to enable him to maintain concentration. We had late starts and an early finish to each day. The judge was meticulous about the timing and, in my view, all the advocates were following the recommended Advocates Gateway on enabling him to give his best evidence. I can’t think of any disadvantages of the intermediary being appointed (although this was only for his evidence, not for the entire trial as his lawyers had originally asked), although the other special measures certainly made the process far lengthier for everyone concerned. Interestingly. in his judgment, HHJ Hopkins observed that giving David more time to gather his thoughts to answer each question than might be the case with standard witnesses had on occasion given him the advantage of being able to ‘craft his reply’.  The local authority had argued quite strongly against the necessity for an intermediary which I think was in the context of their experience of working with a range of parents with communication difficulties that are more obvious then David’s. Although not relevant to the conduct of the proceedings, I felt a little troubled that all the information being exposed and discussed about David’s conditions might only serve to add to his anxieties and capacity to parent in the longer term.

I’ve not previously personally observed an entire case on non-accidental life-threatening  injuries to a baby, where almost all parties were represented by well-known KCs. The lawyers, even when challenging a witness, were all very respectful to Amy and David. HHJ Hopkins, despite a strict adherence to agreed time limits, was unfailingly courteous. At one point, I heard one of the out-of-town KCs describe the judge to a colleague as ‘a complete delight’. Although the analysis in the fact-finding judgment required the judge to, on occasion, conclude that one or other witness had not been wholly reliable, he was careful to put such observations in context. The judgment does however contain some observations on the impact of the lengthy proceedings on planning for Claire that could have been avoided if David had accepted responsibility earlier. I think the judge was a little disappointed at the welfare hearing that David was still trying to take issue with those findings; he described this as an attempt to rerun matters that had been very ably argued before him by David’s legal team.

I hope that this report has given some indication of the immense amount of hard work that is put into the family justice system by a range of professionals when decisions have to be made about injuries to a child and their future safety. I once read a comment by a critic of the system that if you had been permanently removed from your parents as a child, you would want to know every effort had been put into establishing the reasons for this having happened when you were too young to have a say. Although this case did not have that outcome and one hopes that the local authority input will not have to extend too far into the future, I doubt Claire could have asked for more careful consideration to ensuring she has a safe childhood.

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