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SUTTON v GRAY AND OTHERS NO 1 [2012] EWHC 2604 (Fam) .pdf



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[2013] 1 FLR

833

SUTTON v GRAY AND OTHERS NO 1
[2012] EWHC 2604 (Fam)
Family Division
Hogg J
12 October 2012
Fact-finding hearing – Child suffered a collapse with the triad of injuries
commonly associated with non-accidental injuries – Child placed with
grandparents under special guardianship order – Care order in respect of
second child sought – In revisiting findings in relation to first child whether
there were medically possible innocent explanations for injuries
When she was 7 weeks old the now 5-year-old child suffered a collapse with
encephalopathy, intracranial and retinal bleedings while in the father’s care. On a
previous occasion she had also suffered burns to her fingers and forehead which the
father claimed was due to him placing her too close to an electric radiator. No
explanation could be provided for the child’s collapse and the presence of the triad of
injuries raised the possibility of this being a non-accidental injury. A fact-finding
hearing found the father responsible for the collapse and the burns and that the mother
had failed to protect the child. Once she had made a full recovery, the child was placed
with the maternal grandparents under a special guardianship order and had contact
with the mother six times per year and twice per year with the father. The father was
convicted under s 20 of the Offences Against the Person Act 1861 and s 1 of the
Children and Young Persons Act 1933. He spent 7 months in prison before his
conviction was quashed by the Court of Appeal. While the father was in prison, the
mother gave birth to a second child and in an attempt to avoid local authority
involvement she relocated to another part of the country. When the second child was
6 months old, the police traced them and she was immediately removed under a police
protection order. The local authority initiated care proceedings asserting that the
threshold of s 31 of the Children Act 1989 had been crossed in relation to the second
child on the basis of the findings of fact in relation to the older child. The parents
sought a rehearing of the facts due to the father’s conviction being overturned. There
had been some doubt regarding the paternity of the second child but during
proceedings the parents discovered through DNA testing that he was in fact the father
but concealed the result from the local authority in the belief that it may damage the
mother’s chances of caring for the child. Extensive medical evidence was given during
the hearing but no common consensus as to the cause of the injuries of the older child
could be ascertained. A possibility had arisen that the collapse could have been caused
by an airway obstruction due to the discovery of three laryngeal abnormalities: a cyst,
cleft and laryngomalacia combined with reflux problems. In addition, the flatmate of
the father’s who was present at the time of the collapse was located and gave evidence
that there was no commotion or sound of activity just prior to it and if there had been
he claimed he would have been aware of it.
Held – finding the threshold had not been crossed –
(1) There was no evidence whatsoever to indicate that the burns injuries were
inflicted maliciously, deliberately or intentionally to cause her injury. As an
inexperienced parent his actions were inappropriate and potentially dangerous within
the confines of new parent carelessness rather than recklessness (see paras [630],
[631]).
(2) The mother had not failed to protect the child by allowing her to stay with the
father following the burns injury. That was not an intentional or culpable event and the
mother had no reason to believe the child was at risk. She had suffered an accident; the
mother believed the father was a loving, caring parent who had taken time to learn how

834

Sutton v Gray & Ors (No 1)

(FD)

[2013] 1 FLR

to care for his child. The GP was not concerned for the child’s safety the following
morning, and there was no history to show she was at risk of injury from the father (see
para [636]).
(3) On the medical evidence alone there was no strong pointer that the injuries the
child suffered were inflicted through a loss of control or temper by a perpetrator
shortly before her collapse. There were too many pointers which questioned a
conclusion of inflicted injury. There was a strong pointer indicating an innocent
explanation for the collapse, being the airway obstruction accepted by the certain
experts as possible. On the medical evidence alone, the local authority had failed to
establish on the balance of probabilities that the injuries were non-accidental in origin.
There was too much strong evidence flowing the other way (see paras [655], [656],
[657]).
(4) In order to provide the children with as much clarity as possible in the coming
years, it was appropriate to take the matter further and completely exonerate the father
from culpability. All three generations had suffered as a result of the previous fact
findings (see paras [659]–[672]).
(5) The parents admitted that they had not been open and honest about the extent
of their relationship, and that they concealed their second child’s birth and paternity.
But now that they had been unburdened from the shadow of findings against them,
they had felt able to unburden themselves to the judge, admitted concealment, secrecy
and their determination to recover their second child. The local authority had failed to
demonstrate that the threshold had been met in relation to emotional harm and the
parents needed a fair and supportive assessment (see paras [673]–[698]).
Statutory provisions considered
Offences Against the Person Act 1861, s 20
Children and Young Persons Act 1933, s 1
Children Act 1989, ss 1, 20, 31
Cases referred to in judgment
B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening), Re
[2008] UKHL 35, [2009] AC 11, [2008] 3 WLR 1, [2008] 2 FLR 141, [2008] 4 All
ER 1, HL
R (Care Proceedings: Causation), Re [2011] EWHC 1715 (Fam), [2011] 2 FLR 1384,
FD
Tim Parker and James Dove for the applicant
Paul Storey QC and Jonathan Swift for the first respondent
Jo Delahunty QC and Will Tyler for the second respondent
Piers Pressdee QC and Pauline Troy for the guardian

Cur adv vult
HOGG J:
Introduction
[1]
I have a number of applications in front of me in respect of two little
girls, who are full sisters.
[2]
E was born in December 2006. Her sister I was born in September
2009. Until very late in these proceedings her father had not been identified
by the parents. Initially the mother put forward three names as being her
father. E’s father was one of those men. Through DNA testing which
indicated, rather confusingly as it now appears, the little girls were
half-sisters. During the currency of these proceedings the father agreed for a

[2013] 1 FLR

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

835

DNA test to establish his paternity, and thus seemingly not the father of I. This
finding somewhat amazed and shocked the parents as they always believed
the father was the father of both girls. Very recently it has been established by
DNA testing that he is also the father of I.
[3]
E lives with her maternal grandparents under a special guardianship
order made by His Honour Judge Atkins at Croydon County Court on
14 August 2008. In fact, she had been living with them since July 2007 under
an interim care order. Under the special guardianship order the court ordered
that the father should have a minimum of two contact visits a year, and the
mother should have a minimum of six contact visits a year.
[4]
Both parents now wish and apply for increased contact to E.
[5]
I is currently living with foster parents. Initially she went into care on
21 March 2010 under a police protection order. The care proceedings were
commenced on 22 March 2010. She remained in care under s 20 until I made
an interim care order on 15 November 2011 which has been renewed on a
regular basis. In the meanwhile she has been having contact with the mother,
but not the father.
[6]
The local authority is seeking a care order, with a care plan of
adoption, and a placement order in respect of I. At the outset of this hearing
the guardian supported those applications. The mother opposes them and
wishes to recover I’s care. The father supports the mother, and also wants
contact to I. The maternal grandparents had previously indicated that they
wished to care for I as special guardians but withdrew from assessment
processes in February 2012 after due reflection, taking into account their
respective ages and health. They wish to focus all their energies upon E. At
that time they believed the children were half-sisters: this to some extent
affected their thinking.
[7]
In respect of the application for a care order for I the local authority
stated in the threshold criteria document that she is at risk of physical harm in
her mother’s care, and rely upon the findings made by His Honour
Judge Atkins on 29 January 2008 in the care proceedings relating to E that the
father had caused non-accidental injuries to her and the mother failed to
protect her from the father. The judge also found on 28 April 2008 that the
mother had not accepted his earlier findings and judgment, and she and the
father had not been open and honest and had lied about the extent and
continuation of their relationship.
[8]
In addition the local authority further states that I is at risk of suffering
emotional harm were she to be in her mother’s care in that she has failed to
show commitment and consistency towards her contact with I, and had failed
to cooperate with the local authority, being secretive about her health, her
contact details, employment and other aspects of her life which would be
relevant to her having care of I. The threshold document was amended
towards the end of the hearing to include further matters which had been
disclosed by the parents during their evidence, including concealment of the
true facts surrounding I’s birth and paternity, and the father’s involvement
with her before she went into care.
[9]
The local authority asserts that as the maternal grandparents have
withdrawn from being potential special guardians to I, and no other member
of the family has come forward to care for her long term, that I’s best interests

836

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

[2013] 1 FLR

lie in being placed permanently away from her mother and family and should
be placed for adoption. On that basis a placement order is sought.
History
[10] The parents are both now aged 32. The mother had a difficult
adolescence, with truancy, and difficulties in the relationships with her
parents. She made an early, and as it now appears, unwise marriage which
ended in 2005. She is an intelligent and gifted artist, and has been employed
as a graphic designer. E was her first child.
[11] By 2006 the father had a number of convictions for attempted robbery,
intimidation of a witness and assault. He had served time in prison, having
been sentenced for 3 years for the attempted robbery.
[12] The parents met in early 2006 and had what they described as a casual
relationship. They never lived together. The mother became pregnant with E
in March/April 2006. By the time E was born the parents say they were not in
a relationship but were friends. They agreed that as parents of the unborn
child they would cooperate with each other, and the father would have a role
in the child’s upbringing. Before the birth they agreed that the father would
not be at the birth but would visit the mother and child soon afterwards. E was
born at about 3 am on 30 December 2006. Later that same morning when she
was only a few hours old the father visited and saw his daughter for the first
time.
[13] In due course E’s birth was registered, and the father’s name was
recorded on the register as being E’s father thus giving him parental
responsibility.
[14] Once the mother and E had been discharged from hospital he visited
them at their home, and took E out for walks in her buggy, and had her at his
home at least once overnight before the events in mid February. Both parents
were keen that he should establish a relationship with E as soon as possible.
The mother was fully involved in this process, providing her with expressed
milk and teaching the father to feed and change E.
[15] On 7 February 2007 while E was in the care of the father in his home
she suffered burns to her forehead and both index fingers. In his first
statement dated 11 April 2007 in the care proceedings he explained how those
injuries were sustained. He thought E was not warm enough so having
wrapped her in a blanket placed her on a cushion in front of a radiator (an
electric one with ribs protruding). It seems that E’s hands and forehead came
into contact with the radiator. How or why he could not explain in detail, but
he acknowledged it was his fault and ‘I very much regret making a foolish
mistake’, ‘I hold my hands up to the fact that this was an extremely foolish
mistake, but it was a total accident and I know now that what I did was
inappropriate’.
[16] On realising what had occurred he telephoned the mother to tell her
and asked her to come round. She came and treated the burns with lavender
oil. Both parents say that E did not seem to be distressed, and decided not to
take her to hospital. E remained overnight with the father. The next day the
mother took E to her General Practitioner (GP) who prescribed cream and
noted: ‘superficial burns to the forehead’ only: there was no mention in the
notes of burns to the fingers. The GP took no further action and seemingly did
not consider that a child protection issue has been raised.

[2013] 1 FLR

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

837

[17] On 15 February 2007 the parents again agreed that E should spend the
evening and night with the father in his flat. Between 5.30 and 6.00 pm the
mother brought E to the father. Before leaving her home she had fed E and
changed her after she had dirtied her nappy. On arrival the father noticed and
commented to the mother that E looked pale. The mother agreed. According
to the father after the mother left he tried to feed E but she was not interested.
He also had to change her as she had produced another very dirty nappy. Her
breathing was quite noisy, but this was not unusual for her; the father gave her
some Olbas oil to help. He put E into her car seat on the floor and she went to
sleep. The father played on his computer for some time while E remained
nearby in the car seat. The father checked her every now and then until a time
when he says she looked different to him, her arms were relaxed by her sides,
they were usually near her head or over her chest, and were limp. He picked
her up and ‘she felt soft and limp’. He put her onto his bed. He called for his
flatmate Dan, and put his finger in her mouth when she started to breathe ‘as
if she was gasping for breath’.
[18] The father asked Dan to call an ambulance, but then E seemed to
recover, so the ambulance was cancelled. She then went limp again and an
ambulance was called for again. I have heard the tape provided by the
ambulance service and the sense of panic in the father’s voice. It seemed to
the father that the ambulance was taking too long to arrive so he called his
friend Ian who agreed to take E and the father to hospital in his car.
[19] E and the father arrived at the accident and emergency department,
St Helier Hospital at 7.40 pm. She was immediately taken to the resuscitation
room.
[20] She was examined by the duty paediatric specialist registrar and was
noted to be pale and unresponsive; she had a noticeable tense and bulging
fontanelle, and intermittent arching of her back, a full and distended abdomen,
later x-rayed and discovered to be filled with gas. Her airway was patent with
good air entry into the lung with irregular and gasping breathing and her heart
rate was low. Her limbs were floppy. She was ventilated for about 5 minutes
before being sedated and intubated. Her heart rate then increased. She was
also given antibiotics as a preventative measure. Blood was taken before the
antibiotics were administered, but too little to grow cultures.
[21] The consultant neonatologist, Dr Shepherd, was called. On arrival she
noted the bulging fontanelle, and attempted to perform an ultrasound which
was difficult given the fullness of the fontanelle. However, what she saw in
E’s head was abnormal giving rise to suspicions of an intracranial bleed. Her
head circumference was measured at 39 cm.
[22] A CT scan was performed on E’s head at 21.37 pm at St Heliers
following which arrangements were made for E to be transferred to the
Evelina Children’s Hospital at St Thomas’ Hospital. By the time she left
St Helier Hospital various metabolic tests had been performed, the burns to
her forehead and fingers noted and photographed. She also looked more
comfortable, her abdomen was no longer distended and her fontanelle not
bulging.
[23] She arrived at the paediatric intensive care unit (PICU)at the Evelina
Hospital at about 2 am on 16 February 2007. Her condition was more stable.
Her blood pressure and heart rate had improved: she was well perfused.

838

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

[2013] 1 FLR

[24] Tests were carried out to ascertain whether there was any organic
reason for E’s condition, and an MRI scan was performed. She was extubated
at about 4 pm on 16 February 2007. E remained in the PICU.
[25] On 17 February 2007 she suffered two tonic-clonic seizures. The first
lasting 3 minutes, the second 5 minutes. Anti-convulsion medication was
given.
[26] On 18 February 2007 she was transferred from the Evelina Hospital
back to St Helier Hospital arriving at about 4.30 pm. During that night it was
noted that she had a single, very brief seizure which resolved spontaneously.
[27] On 19 February 2007 a skeletal survey was performed. No bone
injuries were seen. A further cerebral ultrasound scan was also performed. E’s
eyes were examined by Dr Ursell, and then Miss Jane Leitch, the consultant
ophthalmic surgeon, who reported that there were extensive bilateral retinal
haemorrhages involving all layers which obscured the optic discs. She
re-examined E’s eyes on 23 February when she noted that the haemorrhages
were beginning to break up and were fading, and she was able to see the discs
more easily.
[28] On 21 February 2007 E’s head circumference was measured at 39 cm.
[29] On 22 February 2007 a further CT scan was performed at Epsom
Hospital. E had to be transported there and back.
[30] On 25 February 2007 E was transferred from St Helier Hospital to
St George’s Hospital at the parents’ request. On that day her head
circumference was measured twice, first at 39.6 cm and secondly at 39.9 cm.
Professor Fleming, the jointly instructed paediatrician, told me that he was not
overly concerned by that small difference as measuring head circumferences
is not an exact process and small differences can arise particularly when
performed by different people.
[31] Shortly after her arrival she was noted to have a number of possible
convulsive episodes when she became unresponsive with staring eyes and
occasional flickering of the eyelids.
[32] A further MRI scan was performed at St George’s Hospital on
26 February 2007.
[33] E remained in hospital until 16 March 2007 when she was discharged
into foster care. At that time her head circumference was measured at
40.7 cm. During 24 July 2007 she moved to live with her maternal
grandparents where she has remained ever since.
[34] While in St George’s Hospital it was noted that E had noisy breathing
which the mother said she had shown since birth. The MRI scan performed on
26 February 2007 revealed a cyst at the back of the tongue. It was noted by
Dr Rich, consultant neuroradiologist, who described it as a small mass, very
well defined, ‘It measures about 8 mm in diameter and causes expansion of
the tongue base posteriorly into the airway, although I understand that
intubation for this scan was uneventful’. I have seen a copy of the scan and the
swelling, or cyst, as it turned out is clearly visible.
[35] Following her discharge from St George’s E was seen by Mr Daya,
consultant paediatric ENT surgeon, in his outpatients clinic at the hospital
who carried out an endoscopic examination which confirmed the presence of
the cyst at the base of her tongue.
[36] On 23 May 2007 E was admitted to St George’s Hospital for the
removal under general anaesthetic. During that operation Mr Daya noted that

[2013] 1 FLR

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

839

E also had a Type 1 Laryngeal cleft, and post-operatively it was noted that she
had noisy and difficult breathing with a sudden onset of inspiratory stridor
with marked sternal recession for which she was treated.
[37] By 26 May 2007 she was well enough to be discharged back into the
care of her foster mother.
[38] On 3 July 2007 Miss Jane Leitch, and subsequently Professor Taylor,
consultant paediatric ophthalmologist at Great Ormond Street Hospital
examined E’s eyes. Both confirmed that there had been a complete resolution
of the retinal haemorrhages with normal visual development, and no evidence
of any continued retinal scarring or visual deficit.
[39] The good news is that whatever occurred to E on 15 February 2007
she is now a happy, thriving, healthy little girl without it seems any lasting
damage to her physical development or sight.
The following history
[40] From a very early stage the spectre of non-accidental injury was raised
to explain E’s collapse and the findings of intracranial and retinal bleedings.
The parents, in particular the father, was unable to give a history of an
accident or other explanation as to why she had suddenly become limp and in
a collapsed state. The various tests performed did not reveal any medical
explanation. Suspicion therefore arose that E’s condition was a result of an
inflicted injury. The fact she had been injured previously added to the
suspicions. The local authority and police were informed of the position.
[41] As a result the parents were arrested on suspicion of causing grievous
bodily harm to E and interviewed by the police on 6 March 2007. Both denied
causing injury to E on or about 15 February, and have continued to do so ever
since.
[42] Meanwhile the local authority decided to issue care proceedings in
respect of E in which a care order was sought on the basis that she had
suffered an inflicted head injury and burns whilst in the care of her parents.
[43] The application was issued on 5 March 2007 in the Croydon Family
Proceedings Court. The first interim care order in respect of E was made on
15 March 2007, and thereafter renewed on a regular basis. On that date the
proceedings were also transferred to the Croydon County Court.
[44] The fact-finding hearing took place in front of His Honour
Judge Atkins culminating in his judgment dated 29 January 2008, in which he
made findings against the father in that he:
(i)

caused the burns on 7 February 2007 to E deliberately or
recklessly or negligently;
(ii) caused the head and eye injuries and the consequences sustained
by E on 15 February 2007;
(iii) the mother failed to protect E by leaving her in the father’s sole
care on 15 February.
[45]
that:

On 28 April 2008 the judge made further findings against the parents
(i)

neither had accepted his judgment and findings on 29 January
2008;

840

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

[2013] 1 FLR

(ii)

neither had been open and honest about the extent of their
relationship, that ‘it has been more extensive than they said’;
(iii) both had intimidated and made various specific threats towards
the maternal grandparents;
(iv) and the judge ruled the mother out as a long-term carer for E.
[46] On 14 August 2008 the judge made the special guardianship order to
the maternal grandparents and the contact orders for the parents.
[47] The police charged the father with causing grievous bodily harm to E
on 15 February 2007 contrary to s 20 of the Offences Against the Person Act
1861 and with cruelty contrary to s 1 of the Children and Young Persons Act
1933.
[48] On 24 March 2009 after a 4-week trial at Croydon Crown Court the
father was convicted on both counts, and by majority verdict on the charge
under s 20 of the Offences Against the Person Act 1861 and sentenced to
concurrent terms of 18 months and 1 month of imprisonment.
[49] I was born on 7 September 2009 while the father was in prison.
[50] The father appealed against the convictions and sentences. In October
2009 he was released on bail by the Court of Appeal. The Court of Appeal,
consisting of Moses LJ, Rafferty J (as she then was) and Hedley J gave
judgment on 17 June 2010 in which both the convictions were quashed. I have
read a copy of that judgment, in particular the paras [90]–[118], so that I had
an understanding of the reasons for the decision.
[51] I should add that I have not read the judgments of His Honour
Judge Atkins dated 29 January and 28 April 2008, nor the summing up to the
jury of His Honour Judge Stow in March 2009, as I did not wish to be
influenced in any way by another judge of first instance.
[52] By the time the Court of Appeal gave its decision the proceedings in
respect of I were already in being and based largely upon the findings of His
Honour Judge Atkins in January 2008. The mother was anxious for a
rehearing of the facts. In that the father joined her given that he wanted greater
contact to E. The guardian supported the parents’ applications, the local
authority opposed it. Her application was made in January 2011 following a
delay in obtaining legal aid.
[53] The application was heard by His Honour Judge Atkins on 26 May
2011 and he granted the application. He ordered there should be a rehearing
on the ‘fact-finding’ issues and such rehearing should be heard before a judge
of the Family Division.
[54] By chance counsel involved was aware that I had unexpectedly come
free and could hear the matter immediately for directions thereby cutting out
any further delay. I made the first of several direction orders on 27 May 2011.
[55] Unfortunately, such is the weight of cases both for counsel and the
court the matter could not be heard by any judge of the Family Division for
nearly a year, given that a 7–8 week fixture was required. During that time
further expert reports were obtained and old documents retrieved. Much work
was required by all parties before the case could be heard.
[56] I am grateful to all counsel and solicitors in the way that they have
cooperated with the court and each other in the preparation and presentation
of this case, and the careful decisions taken to reduce the documentation,
written evidence including transcripts of previous evidence, and live witnesses

[2013] 1 FLR

Hogg J

Sutton v Gray & Ors (No 1)

(FD)

841

to be called. Such work has made my task easier and the hearing shorter. It is
a good example of how senior, experienced counsel can and should consider
what is necessary for a hearing. Too often too much is given to the court to
hear and disentangle
The task in hand
[57] The issues I have to decide can be stated simply: What happened to E
on 15 February 2007 to cause her collapse, and to cause her intracranial and
retinal haemorrhages? Is there an innocent explanation, some natural cause;
was there an injury caused to her by someone, if so when, in what
circumstances; was it accidental or non accidental? Is there even an
explanation?
[58] It is agreed that there were only two carers for E at this stage in her
life, the mother and the father. It is accepted that her collapse occurred whilst
she was in her father’s sole care.
[59] I also have to consider the issue of the burns she sustained on
7 February 2007, and whether any culpability attaches to either or both of the
parents in respect of them.
[60] Whilst the issues are simply stated the answers may be far more
difficult to ascertain given the mass of medical evidence from different
doctors, treating and experts from different disciplines. The evidence while
given from each doctor’s perspective has not produced a consensus.
[61] As a number have said the individual evidence of an expert is a mere
piece in a jigsaw (a large one) which the court must piece together in the light
of all the evidence both read and heard.
[62] I have had the benefit of hearing experienced and knowledgeable
doctors. I am grateful to all of them, some of whom had to be recalled. Each
gave his evidence carefully, and with a determination to help the court.
[63] It is agreed by all that on the medical evidence there are some unusual
factors.
[64] Despite so much time and evidence being spent on the events of
February 2007 I must remember that these are care proceedings in respect of
not E but I; that part of this hearing relates to the issue whether or not the
threshold criteria set by s 31 of the Children Act 1989 in I’s proceedings has
been crossed. In addition to seeking to establish what happened to E I have to
consider the additional matters raised by the local authority against the
mother.
[65] When this hearing was listed it was hoped that it would be an
all-in-one hearing, a fact-finding and welfare resolution for I, and for E in
respect of future contact to her parents.
[66] After some reflection and discussion with counsel I decided it would
be of benefit to the grandparents to know and consider my findings as to the
events in February 2007 before they gave evidence as to their views upon
future contact to the parents and the father in particular. Much has been asked
of the grandparents in the last 5 years in the emotional and intellectual sense
requiring them to reconsider their position from being supportive of both
parents to recognise and accept the findings of His Honour Judge Atkins, the
criminal verdict and then the Court of Appeal’s decision, whilst caring for,


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