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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> X, T, A, E and S (Children), Re [2020] EWCA Civ 1680 (11 December 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/1680.html Cite as: [2020] EWCA Civ 1680 |
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ON APPEAL FROM THE FAMILY COURT AT WATFORD
HH Judge Clarke
WD19C01494
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF X, T, A, E AND S (CHILDREN)
Strand, London, WC2A 2LL |
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B e f o r e :
and
LADY JUSTICE ELISABETH LAING
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SS (1) DB (2) |
Appellants |
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- and - |
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A LOCAL AUTHORITY (1) DH (2) MS (3) X, T, A, E and S (4) TO (8) (by their children's guardian) |
Respondents |
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Ranjit Singh (instructed by David Barney and Co) for the Second Appellant
Mai-Ling Savage (instructed by Local Authority Legal Services) for the First Respondent
Grant Keyes (instructed by Knowles Benning) for the Fourth to Eighth Respondents
The Second and Third Respondents were neither present nor represented at the hearing.
Hearing date: 2 December 2020
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Crown Copyright ©
LORD JUSTICE BAKER:
Background
The local authority's case
(1) On date or dates before 5 November 2019, T suffered physical harm and that harm was either inflicted upon her by DB, SS or either of them or self-inflicted and DB, SS or either of them neglected to protect her from so doing.
(2) As a result of the injuries suffered by T, she has suffered significant harm, being emotional harm and physical harm through inflicted injury and/or neglect.
(3) DB and/or SS failed to protect T from the other.
(4) X, A, E and S live in the same property in which T suffered harm so would have suffered emotional harm either hearing the injuries being inflicted and/or seeing T with her injuries.
The schedule of findings listed the injuries suffered by T and summarised the evidence on which the local authority relied.
The judgment
"Dr Cleghorn confirmed her experience that children with neurodevelopmental disorders who self-harm habitually will do this in any setting but more often in settings which provide either stress or stimulus. Children who are self-harming from a degree of psychological stress (for e.g. after a bereavement) will again do this in any area (school or home) and will settle once the cause of the distress is dealt with. Having considered the reports of the two incidents at school [in 2016] and the lack of self-harming behaviour in foster care she suggested that if T has been self-harming that this is more likely to be a response to some emotional or psychological distress which has now resolved. She recommended a psychological assessment, but none has been obtained."
- that she had not seen self-inflicted injuries to the face in children with neurodevelopmental disorders as seen on T's face
- that children tended not to punch themselves and, although they might hit themselves with their fists, tended to do so against their forehead or around their nose, rather than in the locations where T's bruises were seen
- that she had never seen self-inflicted bruises on the cheek such as the injuries sustained by T
- that the injuries would have hurt and T would have cried
- that self-harm caused as a result of emotional or psychological distress was mostly seen in teenagers and it was quite worrying to see such behaviour in a younger child if there were no other issues
- that she had experience of cases where self-harming stops when a child goes into foster care because the psychological or emotional stress has stopped
- that where self-harming behaviour is attributable to neurodevelopmental disorders, it would not be expected to stop suddenly in foster care.
"the texts from SS to DB on 4 November 2019 appear to argue against taking T to hospital. The question arises, if they were that keen to obtain support for T why did DB not just go? Is the explanation that T liked the attention in hospital credible?"
"SS argues no weight can safely be placed on the [second] ABE interview of T. T gave a compelling account in [the first interview]. She had a clear dislike of SS. She would have no reason not to identify SS as the perpetrator in the first interview. T's second interview included leading and tag questions …. It took place after a discussion with the foster carer and after T was made aware of other allegations being made. Is it possible she felt safer in foster care by that stage and therefore she was able to speak up? The evidence from the school was that the children seemed immediately happier once taken into foster care, so why would it have taken so long?"
"181. The children in the family home give clear and generally consistent evidence of use of the naughty step, what it was used for and who was on there most. It is contradictory to that of the adults.
182. The other children in the household saw T with significant physical injuries to the face and body and would have experienced distress at seeing the injuries. None of them saw or heard her inflict these to herself. None of them reported seeing or hearing anyone else do it either.
183. [E and S's father] points out that if noise can be heard from the flat above then any noise in the flat itself is likely to be heard. It is therefore extremely difficult to understand how SS and DB, or any of the other children, would not have heard T injuring herself, or being injured, to the levels shown or any consequent distress, whenever it happened. However, there are no reports of any such distress at all."
"188.1 T is a child with a medical history of self-harming. The significant nature of the self-harming only arose after the start of the relationship between DB and SS;
188.2 T was clearly not happy with the new relationship. She expressed that both directly, saying she hated SS, and through self-harm;
188.3 Both DB and SS were aware of the problems. They minimised the issues and prioritised their relationship over T's needs;
188.4 The parents sought to introduce boundaries. However, those boundaries applied a blanket rule which was not responsive to either A or T's difficulties. T, in particular, spent more time on the naughty step than anyone else and this included time for not telling the parents how she had sustained injuries;
188.5 As a result of the conduct of the parents, T self-harmed further in August, September, October and early November [2019];
188.6 The following injuries were caused by T to herself as a result of the emotional harm suffered by her in the care of the parents and lack of adequate supervision:
- 13 small bruises over the whole of the chest and abdomen
- A large bruise to the side of the right upper arm
- A bruise to the right upper thigh
- Two bruises to the left upper thigh
188.7 The following injuries were inflicted on T
- 3 large bruises to the left side of the face
- A large bruise over the right jaw
- A bruise over the right upper cheek
- A bruise on the left side of the chest
- A bruise to the left ear
- Two bruises to the right ear
188.8 The injuries were significant. The other children were present in the family home and were exposed to the emotional harm of seeing the injuries on T;
188.9 The parents sought to minimise the issues. Both had opportunity to harm T, although SS had more than DB, were identified as perpetrators by one of the children and had a history of aggression. The list of potential perpetrators is limited to DB and SS and there is a real possibility that either of them was the perpetrator. The pool of perpetrators is therefore SS and DB;
188.10 On the balance of probabilities only one of the adults caused a injuries. However, the court is unable to identify which of them because the injuries and therefore matters rest with them both being within the pool."
The grounds of appeal
Discussion and conclusions
ELISABETH LAING LJ
I agree that the appeals should be allowed on the limited basis indicated by My Lord, Baker LJ, and that the case should be remitted to Judge Clarke, for the reasons given by Baker LJ in paragraph 45 of his judgment.