Neutral Citation No. [2015] NIFam 5	Ref:     	MAG9513	
 			
Judgment: approved by the Court for handing down	Delivered:	11/03/2015	
(subject to editorial corrections)*			

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

________

FAMILY DIVISION

________

AM
Appellant

and

WESTERN HEALTH AND SOCIAL CARE TRUST
Respondent
________

MAGUIRE J

Introduction

[1]	The court has before it an appeal from a decision made by HH Judge Smyth (“the Judge”) at Belfast Family Care Centre on 5 September 2013.  The Judge found that the child who was at the centre of the proceedings, who the court will call HG, had suffered non accidental injuries and that the appellant, AM and her partner CW, were potential perpetrators.  The Judge was unable to determine on the balance of probabilities who, of these two, caused the injuries but was able to conclude that one or other was responsible for them.  The Judge excluded HG’s father, BG, from the pool of potential perpetrators and, ultimately, granted him a Residence Order.

[2]	The appellant was unrepresented in these proceedings despite the court during the reviews of the case advising her that in a case of this type it would be important for her to have the assistance of legal representatives. Indeed the case was not heard for a period while the appellant, ultimately without success, sought to enlist legal assistance.  The Trust, which had originally sought a Care Order, was represented by Ms Sholdis BL.  The father, BG, was represented by Mr McGuigan QC and Ms Austin BL.  The Guardian ad Litem was represented by Ms Grainne Murphy BL.  The court is grateful to counsel for their very well marshalled submissions.

[3]	The Judge provided a written judgment in this case.  This runs to some 46 paragraphs and followed a hearing which lasted some 6 days.  For three of those days the appellant was represented by senior and junior counsel and solicitor and for the other 3 she was represented by a different junior counsel and solicitor.  The Judge had before her a large quantity of medical evidence and heard evidence from four medical experts.  The Judge, in addition, heard from the social workers involved in the case; from the mother; from her partner; from the Guardian ad Litem and from others.

[4]	For the purposes of this appeal the court heard submissions from the parties who were represented, both written and oral.  The court made clear that the test it would apply was whether it could be shown that the Judge’s decision was wrong.  The focus of the challenge was somewhat unclear but the gravamen of it was that the Judge was wrong to hold that the child had suffered non accidental injuries and was wrong to hold that the appellant was within the pool of perpetrators.

The Judge’s Decision

[5]	In brief summary, the Judge’s judgment noted that what the court had before it was an application for a care order sought by the Trust.  The Judge outlined the essential history.  The child, HG, was born on 23 March 2011.  On 18 July 2012 she was admitted to hospital with injuries which were later diagnosed as consisting of:

(i)	an acute spiral fracture of the left lower humerus;

(ii)	healing fractures of the lower left ulna and radius;

(iii)	swelling to the left arm; and

(iv)	bruising over the anterior aspect of the left arm which included a 5 x 3 cm bruise over the anterior aspect of the lower arm, just above the upper elbow; a 2 x 2 bruise over the anterior aspect of the arm just below the elbow; a 0.7 x 0.5 cm bruise over the anterior aspect of the forearm; and a 0.6 x 1 cm bruise over the elbow.

[6]	In the Judge’s view three issues arose from the evidence: first, whether the injuries or any of them were non-accidental; second, if any of the injuries were non‑accidental, the time frame in which they or any of them were likely to have been sustained; and, thirdly the issue of the identification of the perpetrator or perpetrators or, if same could not be identified, the identification of the pool of perpetrators who may have been responsible for the injuries.

[7]	Before setting out the Judge’s reasoning it will be of value to describe briefly the circumstances which gave rise to the litigation.

Factual Background

[8]	The mother is now aged 29.  The father is now aged 38.  They have not married.  Their relationship has been somewhat on and off.  They were together for some 6 months and then went on their separate ways.  Then they got together again in or about late 2009/early 2010.  At this time the mother was involved also with another man.  The father was informed by the mother that she was pregnant and that he was the father.  Because the mother was also in a relationship with another man, the father was uncertain about whether he was the father and this gave rise, some months on, to the mother telling him he was not the father.  Contact for a time stopped.  But in April 2011, after the baby, HG, was born the mother asked the father if he wished to see his daughter.  At this stage the baby was some 3-4 weeks old.  Within a short time the father raised the issue of obtaining a paternity test.  The mother appears to have agreed and a DNA testing kit was obtained by her.  After a delay, the mother reported to the father that the result of the test showed he was not the father.  She even provided him with a statement of the results of the test, which it is now known had been doctored by her.  The couple parted but in July 2011 the mother contacted the father again and told him that she had doctored the results of the test and that he was the father and that she was sure of this.  Naturally the father was confused by this.  Another DNA was arranged, this time by the father.  This indicated that indeed the father was the father.
 
[9]	For a time the two lived together with HG but this did not work out.  The couple again parted.  The mother and her mother moved into accommodation in Lisbellaw in or around November/December 2011.  The father also resided at an address in Lisbellaw.  It was agreed that the father would take care of HG every second week-end.  This arrangement later changed to the father looking after HG on a Sunday due to his work commitments.  This was the arrangement operating at the relevant time for the purpose of these proceedings.  By this stage the mother had gone to live in Omagh.

[10]	Up until July 2012 the family had not been known to social services but this was soon to change.  On 18 July 2012 the mother brought HG to the Urgent Care Centre at Tyrone County Hospital because of bruising and swelling to her left arm.  She told staff there that HG had been at her father’s on 15th July 2012, which was the previous Sunday.  When the baby had been returned to her, she said that the father had told her that she had fallen.

[11]	X-rays were taken at the hospital revealing the results described supra.  HG was transferred to the South West Acute Hospital forthwith for further investigations.  HG remained in hospital for a period.  The parents on 20 July 2012 each agreed to HG being voluntarily cared for by the Trust, though this consent was later withdrawn. 

[12]	As a result of the investigations carried out, the Trust was concerned about the injuries found on HG.  It was felt that no adequate explanation had been given as to how these injuries occurred and in these circumstances the worry held by the Trust was that their origin was non-accidental.  The combination of the injuries being in the form of three fractures, one a spiral fracture, the bruising being conducive to possible forced twisting of the arm and the time scale believed for such injuries at the time led to the Trust seeking an Emergency Protection Order which was granted at Dungannon Family Proceedings Court on 24 July 2012.  The Trust then initiated proceedings for a Care Order.  HG remained in foster care until the Judge made her decision which is now under appeal.  During this period the parents had supervised contact with HG. 

Accounting for the Injuries on HG

[13]	The Judge in her judgment records that the mother gave evidence before her.  The Judge notes that the mother was unsure how HG’s injuries were caused, though she denied she had caused them.  The suggestions she offered to explain the injuries appear to have been:

(i)	The child had fallen while at contact with the father.  As noted earlier, this allegation in fact had been raised at the hospital on HG’s admission.  At that time the mother had been definite that this had occurred the previous Sunday (15th July) just a few days prior to HG being taken to hospital.  But in evidence before the Judge the mother said this had occurred during contact between HG and the father on 8 July, also a Sunday.  The father, the Judge notes, had agreed that HG had had a minor fall on that day and he said he had told the mother about it.  The fall allegedly occurred when the child toppled over whilst trying to walk in the living room (and not as the Judge suggested by reason of falling from a toy car).  The mother told the Judge that following contact on the 8th July HG was crying and stiffened when the mother placed her in the car.  The Judge quotes the mother as telling her that HG was tired and cranky almost drooping in nature and lacking energy.  Once home, HG was reluctant to go to bed.  The next day (the 9th July) the mother said that HG was uncomfortable when dressing and “slightly winced” when her left arm was being put into her t-shirt.  The Judge goes on to note that the mother indicated that on the 10th HG was in good form and that on the 11th the mother said she noticed some bruising on HG’s left arm but that she was using it normally.  The mother went on to tell the Judge that this pattern continued until the 17th when the mother noticed a slight deterioration in HG’s arm movements.  However, according to the mother’s evidence, HG was using her arm normally and was not upset or distressed.  The next day (the 18th) the mother reported to the Judge that there was a definite deterioration in HG’s arm movements, although she was not crying or upset.  It is at this point that the mother decided to take her to the hospital. 

(ii)	The child had been in a road traffic accident on 28th May 2012.  On this occasion it was alleged by the mother that she had been driving with HG in the car when there was an accident.  That this had occurred was not in doubt as it is clear that the mother’s sister had taken HG to Tyrone County Hospital following the accident.  However, the medical records show that on examination HG was fine and there was a reference in them to HG being playful and not being distressed.  No X rays were taken on this occasion.

[14]	The Judge records the maternal grandmother as having given evidence.  She was caring for HG on the 14th July.  She said she observed bruising on the child on the evening of the 14th but she also is described as saying that she observed no sign of injury.  Finally, the Judge indicates that she told her that on that day HG had been playing with beads and had been seen by the maternal grandmother raising her hands above her head.

[15]	CW was the mother’s partner over the period here at issue. He also gave evidence before the Judge.  This was to the effect that he had first noticed that the child was injured on the 9th July 2012.  He said HG was holding her arm, although he did not examine it.  He said that on the 13th bruises appeared on her arm and that the arm did not appear to be getting any better.  CW denied that he had caused any injury to HG.  He ascribed the start of the injuries to 8th July 2012 when the father last had contact with HG. 

[16]	The father did not give evidence before the Judge.  The Judge records that this was because in the light of the evidence the Trust did not pursue a case against him.  He did, however, make a statement for the proceedings in which he denied causing harm to HG.  He did say that when HG was in his care on a date in or around May 2012 she fell and bumped her temple causing a small bump the size of a finger-tip.  She cried for a short time but then quickly settled.  He said in his statement that he told the mother about this.  The bump, he went on, had disappeared by the date of the next contact.  The father also stated that the mother had informed him about the car accident in which HG was involved in May 2012.  He said that he was told that after HG had gone to hospital everything was okay.  As regards the 8th July he described in his statement how HG was unsettled at handover to him.  Once in her pram HG began to settle.  HG was taken to his father’s.  Once she arrived she appeared content and was playing.  He noted that at this time HG was seen by him pulling herself up holding onto to a fire guard.  At one stage, he said she toppled over landing on her two hands.  Later on he says he saw HG using her arms as normal.  When HG was returned to the mother by the father he says he told her of HG’s small fall but said she appeared to be fine afterwards.  The hand over was the last time he saw HG until she was in hospital on 18th July 2012. 

The medical evidence

[17]	There were four medical experts who gave evidence before the Judge and it is their evidence which appears to have been crucial in this case.

[18]	Dr Dewi Evans, a Consultant Paediatrician of many years standing, had reviewed all of the medical notes and records.  In his view the fracture to the humerus was a serious injury which would have been very painful for HG at the time.  It was caused by a twisting trauma and would be associated with an immediate swelling which would develop over the next 24 hours.  Dr Evans noted the position of the bruising in relation to the fracture and indicated that in his view this injury would not have been caused by a fall.  When HG arrived at the hospital she was in a lot of pain and she was not moving her arm.  The effect of the fracture would be that the arm would go limp and hang by her side.  There would be no mistaking that a significant injury had been sustained and any care giver would recognise this.  The mother, he thought, could not have missed the child’s reaction.  In his opinion the injury had been unexplained and could not be explained by the explanations which are found set out above.  The humerus injury in his view was very recent as demonstrated by the absence of healing in respect of it on X ray.  He rejected the suggestion that the injury could have been as old as 10 days.  As regards the other fractures to the ulna and radius he also thought that they were non‑accidental as a child of the tender age of HG would not have developed the co‑ordination skills involved in putting her arm out to break a fall.  Normally children of this age fall on their heads and/or bottoms.  In his view, none of the fractures could be explained by the car accident on 28th May 2012 and he tended to the view that the humerus injury may have occurred very close to the taking of HG to the hospital.

[18]	Dr Mackin who is also a consultant paediatrician gave similar evidence to Dr Evans.  He, however, was the treating paediatrician.  He was aware from the medical notes of the mother’s differing accounts of the dates in respect of the father’s Sunday contact.  On 19th July 2012 he had removed the plaster cast on HG’s left arm and said he could feel the bones moving and grinding against each other.  The bruising, he thought, was consistent with HG being held firmly by two hands on either side of the elbow.  Like Dr Evans his opinion was that the humerus injury could not have been sustained as long ago as 8th July 2012.  He agreed also that the injury was a spiral fracture and that it was very recent, the latter for the reason that on X ray there was no callus formation.  It was not in his opinion the result of a simple fall.  The injury would be very painful and any movement of the arm would cause distress to the child.  This would have been evident in respect of every movement of the arm prior to treatment.  His view in respect of the other fractures was that they were non accidental injuries for the same reasons given by Dr Evans.  He accepted that in respect of these fractures there was evidence of some healing and he felt these might have been 7 to 10 days old at least.  Again he felt that the injury would have been painful and noticeable and the carer would know that something was wrong.  He did not accept that the traffic accident could explain the injuries and thought that if they had been caused by it, this would have been picked up when HG attended the hospital in the aftermath of it.  In view of the different fractures at different times he viewed the ulna and radius fractures, together with the humeral fracture, as being non accidental.

[19]	Dr Alan Sprigg, a Consultant Paediatric Radiologist, gave evidence.  As regards the humeral fracture his evidence was that a spiral fracture was not the sort of fracture one would expect in a child of her age.  On X-ray there was no healing reaction which suggested that the injury was not old and was likely to have occurred a short time before HG was taken to the hospital.  He doubted that this injury could have been sustained as far back as 8 July 2012.  He said he thought a carer would realise the child was in pain.  He would have expected the child to have screamed at the point when the humeral injury was inflicted.  He was of the view that the arm would go limp and that the child would not use it.  A carer who failed to notice the effects of this injury in his view would be neglectful.  As regards the fractures of the ulna and radius he did not think they could date back as far as the road traffic accident in May 2012.  Nor given the clinical presentation of the child did he think it likely that the fractures of the radius and ulna occurred when the child was with the father.  He pointed to a photograph which had been taken of HG on 12 July 2012 which showed her on a swing and to the evidence of the grandmother recounted above.  He considered that these were not consistent with the child having already sustained the humeral injury.  If it had been present at the time he would have expected the child to show that she was in pain.

[20]	Mr Cosgrove, a Consultant Paediatric Orthopaedic Surgeon offered the view that the road traffic accident could not have given rise to any of the fractures.  If it had been the cause he said he would have expected the injuries to have healed by the date of HG being taken to the hospital.  His evidence broadly was the same as that of the other experts.  The humeral injury was the more recent of the fractures and this could be substantiated by the radiological examination and the signs of fresh bruising and the absence of new bone formation at the site.  In this context he considered the child once the injury had been sustained would have been unable to use the arm and would be distressed.  The injury itself he thought was the result of significant external force pushing the forearm away from the upper arm.  It would not, in his view, have occurred from a fall on the floor.  When the injury was received he would expect swelling to come up quickly within the course of a few hours and it would not start to settle until treatment took place.  From the appearance of the swelling in this case he thought the humeral fracture must have occurred within a few days.  He felt that the injuries to the ulna and radius were more recent than May 2012.  He was of the view that all of the fractures and the bruising were non accidental injuries and this was the likely explanation in view of the absence of any explanation for the degree of force which was likely to have caused them.

The Judge’s Conclusions

[21]	The Judge’s first conclusion was that the injuries to HG were on the balance of probabilities the result of infliction and were non-accidental.  This conclusion plainly was influenced by the weight of the medical evidence she had heard.  As regards the humeral fracture, she stated that it:

“was a serious and unusual injury which was oblique or spiral in nature and [was] likely to have been caused either by a person applying significant force or by the arm becoming trapped in some way and the child’s body weight being placed on it”.

In respect of the latter suggestion she went on to note that “[n]o such explanation has been provided”.

Secondly, she found that the medical evidence confirmed that the child could not have sustained the humerus injury on the date the father last had care of HG.  Indeed, she thought this injury in terms of time frame was sustained within “no more than a few days” from HG’s admission to hospital.  This must have been based on the medical evidence in respect of the dating of this injury.

Thirdly, the Judge accepted that on the balance of probabilities the fractures of the ulna and radius were sustained at a much earlier date than the fracture of the humerus.  She indicated that the timeframe for these injuries was that they occurred between two and four weeks prior to the child being taken to hospital.

Fourthly, the Judge concluded that the ulna and radius fractures did not result from a fall from a toy car.

Fifthly, the Judge thought that of the three persons who had been caring for HG within the time frame of the humeral fracture, the court could not be satisfied on balance that the grandparents could be perpetrators but was satisfied on balance that the mother and her partner, CW, could be.  This conclusion was based on the evidence the Judge had heard that when HG had been returned to the care of the mother on 15th July 2012 from the care of her grandparents, the child was uninjured.

Sixthly, the Judge concluded that she could not determine on the balance of probabilities who, as between the mother and her partner, was the perpetrator.  In these circumstances her conclusion was that they were both possible perpetrators and that there was a real possibility that each may be a perpetrator.

[22]	In reaching her conclusions above, the Judge necessarily considered the credibility of witness’s who had given evidence before her.  It has to be recorded that the Judge does not appear to have been impressed by the mother’s evidence.  This is reflected at various points in the judgment. In particular, the Judge was critical of the mother in the following respects:

(i)	In relation to the events relevant to the paternity of HG.  In connection with this the Judge referred to the mother being “a devious and accomplished liar”.  Her falsification of evidence, to the Judge’s mind, demonstrated the lengths she was prepared to go to get what she wants.

(ii)	In relation to the account the mother gave to three different persons at the time of HG’s admission to hospital.  She told these persons that the child’s injuries had been sustained at the time of the father’s contact with HG on 15th July.  The Judge described the mother’s account in this regard as being “motivated by a desire to put the father ‘in the frame’”.

(iii)	In relation to the mother’s evidence that CW, the partner, had at no time been left alone with HG.  The Judge remarked that she was satisfied that the mother and CW were colluding with each other to hide the truth.  Indeed, the Judge concluded that if the mother did not herself cause the injuries, she knew it was her partner who did so.  As she put it: “Either the mother is the perpetrator or she is protecting the perpetrator”.

[23]	Of great importance, moreover, was the Judge’s rejection of the mother’s evidence about the period which led up to HG being taken to the hospital (see paragraph [13] (i) above).  The Judge viewed this account as “at odds with the medical evidence”.  This was because the mother’s account began with the father’s last contact on 8th July 2012 and in succeeding days the arm getting progressively worse until her admission to hospital.  In contrast, the doctors had all been of the view that the symptoms of the humeral fracture would have been most acute at the time immediately after injury and would then reduce with the passage of time.

The mother’s submissions

[24]	In accordance with the court’s directions the mother filed in advance of the hearing a written statement of her submissions to the court.  At the hearing she elaborated on these.
 
[25]	The main points she put forward were as follows:

(i)	She did not agree with the judgment.

(ii)	She did not agree with the medical evidence which she considered to be wrong.

(iii)	She submitted that it was the car accident of 28th May which was responsible for the injury to HG’s left arm.  HG, she said, was not properly examined and no X rays were taken at the time, as should have happened. In this regard she summarised the mechanics of the accident. After the hearing she submitted to the court an engineer’s report concerning the mechanics of the car accident. This had not been before Her Honour Judge Smyth.

(iv)	She also attributed HG’s injuries to the fall in the paternal grandfather’s house when the father was looking after her on 8th July 2012.

(v)	She submitted that Dr Sprigg did not rule out the injuries occurring on 8th July 2012.

(vi)	She asserted that Dr Mackin had not truthfully described HG’s injuries.  In particular, on the basis of the speed at which the fracture healed she claimed that this indicated that the fracture had been sustained well before the time the child had been brought to the hospital.

(vii) In a written submission made to the court after the hearing she further supported the last submission by internet material which she provided to the court.

(viii)	She strongly claimed that she was not responsible for the injuries to her child. She provided to the court two character references from a school principal and a teacher at her school, both dated 18 October 2012. These had not been before the lower court.

(ix)	After the hearing she provided to the court a statement from ZG, a sister of hers, to say that HG was calm, happy and content when she visited her at South West Acute Hospital on 18th July 2012. This statement, which is dated 7 December 2014, clearly has not been placed before Her Honour Judge Smyth.

(x)	A further written submission was received by the court after the hearing in the form of an email dated 24 February 2015. This repeats many of the points already made.

The court provided to the other parties copies of the various materials it received from the appellant after the hearing finished so that they would have the opportunity to consider same.  In response, Ms Sholdis BL for the Trust, has made the point that as the mother is relying on new materials on appeal she requires the leave of the court to introduce such material in evidence and that this should not be granted as the materials could have been placed before the trial Judge and been the subject of consideration and cross-examination in the lower court.  It seems to the court that this submission is correct and that technically new materials should only be admitted on an appeal where the court has given leave for this to happen.  In this appeal, if leave had been sought by the mother at the hearing, the court would have been prepared to grant it, even though the materials now produced probably could have been made available for use at the original hearing.  The court, in its anxiety to ensure that no miscarriage of justice might occur in this appeal, will consider the materials relied on by the appellant belatedly. 

Evaluation

[26]	In this appeal there has been no criticism of the Judge’s statement of the relevant law which she set out at paragraphs [31]-[35].

[27]	The appellant’s criticisms relate to the Judge’s evaluation of the evidence.

[28]	It appears to the court that the Judge in this case evaluated the case in the round.  While her view of the medical evidence was influential she also considered carefully the history of the events as described to her by other witnesses, including the appellant and her partner, CW.  In this regard the Judge has to make judgments about the credibility of the witnesses she heard and about the plausibility of the events which might possibly have given rise to the injuries the child suffered.

[29]	In the court’s view, the Judge’s reliance on the evidence of the medical experts who gave evidence cannot properly be the subject of criticism.  These witnesses were examined and cross examined in front of her.  Their evidence was generally similar and there does not appear to have been significant areas of disagreement.  There had been an experts’ meeting in the course of the hearing which caused Dr Sprigg to modify his evidence from that contained in his original report but there is nothing unusual in this occurring.  The court has heard nothing in the course of this appeal which would suggest that the Judge was wrong in her approach to and acceptance of the medical evidence. The medical evidence did not support the theory that MH’s injuries resulted from the road traffic accident of 28 May 2012 and this theory is belied also by the medical notes available from the child’s attendance at hospital that day. There is, moreover, nothing in the materials now presented to the court which would indicate that in fact the child’s injuries are to be linked to that accident. 

[30]	What the Judge appears to have done is to view the evidence about how the injuries might be accounted for by reference to the expert testimony she had received and by reference to her own analysis of the witnesses who gave evidence.  The court finds nothing untoward or wrong in the court approaching this matter in that way. 

[31]	The appellant’s evidence as to how the injuries, particular that in respect of fracture to the humerus, clearly the most significant of the injuries HG sustained, occurred did not, in the Judge’s view, marry up with the medical evidence.  This was a conclusion open to the Judge to arrive it and this court does not see any basis for saying that the Judge was wrong in respect of the view she formed.

[32]	The Judge also rejected the appellant’s evidence and did not, it seems, regard her as a reliable witness.  The Judge heard the evidence of the appellant and her partner.  She was able to see both cross examined.  She is entitled to make an assessment of a witness whether it is favourable, unfavourable or somewhere in between.  In the court’s view, there is no proper basis for interfering with the Judge’s views in this regard. The court does not think that any of the new materials submitted to it would have made any difference to the Judge’s view.

[33]	The submissions made by the appellant and recorded above, while representing the appellant’s outlook on the Judge’s judgment, have failed to persuade the court that the Judge’s judgment was wrong.

Conclusion

[34]	As the court is not satisfied that the Judge’s judgment or decision is wrong, it must dismiss the appellant mother’s appeal.