A Local Authority v A [2011] EWHC 231 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
[2011] EWHC 231 (Fam)Case No Case No: WD09C01896Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
A Local AuthorityApplicantA1stRespondentB2ndRespondentC & D3rd & 4thRespondents
Before
Mrs Justice TheisMs Kate Branigan QC, Mr Andrzej Bojarski for the ApplicantMr Alex Verdan QC, Mr John Tughan for the 1st RespondentMr Charles Geekie QC, Ms Sorrel Dixon for the 2nd RespondentMs Fawzia King for the 3rd & 4th RespondentsHearing dates: 18th, 19th, 20th, 21st, 24th, 25th January, 2nd - 4th February & 7th & 9th February 2011
[1]Mrs Justice Theis DBE: This matter concerns two children A, a girl, born in 06 and B, a boy, born in 08. They are the children of the C age 22 years ('mother') and D age 25 years ('father').[2]The children were removed from the care of their parents on 18th September 2009 some 15 months ago. It is a matter of great concern to the court that these children have spent so long waiting for decisions about their future care to be determined. To the parents' great credit they have been assiduous attenders at contact visits and have managed to establish a constructive and close relationship with the foster carers. This applies, in particular, to the mother and the foster mother. This has meant that the relationship between the children and their parents has been maintained as well as it can be in the circumstances.[3]The hearing before me commenced on the 17th January. At an earlier case management hearing this hearing was directed to consider paragraphs 1 – 13 of the threshold criteria, with the result that the main focus of the courts attention has been on events that took place between the 15th and 18th September 2009, when A sustained injuries around her vagina. At the conclusion of this hearing I will need to give directions regarding the management of the balance of the threshold findings sought by the local authority and the welfare hearing. A seven day hearing is listed before me on the 11th July 2011.[4]The court has been greatly assisted by the very high standard of representation of all parties in this difficult and complex case. The Local Authority ["LA"] has ensured that the court has had the fullest information and has entirely properly explored all the issues. I am particularly grateful to Mr Bojarski, junior counsel for the LA, and his pupil Miss Mellon for the work they have put in which enabled the court to have agreed typed notes of the medical evidence. Also, junior counsel for the mother, Mr Tughan for the schedule of medical evidence produced after the conclusion of the clinical evidence. Both the typed notes and schedule have been of great assistance. I have had the benefit of extremely full closing submissions from all counsel.[5]Due to the issues raised by the actions taken by some of the medical clinicians in this case Mr Justice Ryder directed that three of the paediatricians be joined as interveners to be represented in relation to any issue as to their professional practice and conduct during the course of the treatment and examination of A at the M Hospital during September 2009. I reviewed that direction when the matter first came before me on the 23rd November. The three doctors remained interveners and I gave directions regarding the role of their legal representatives in the substantive hearing. The doctor's representatives remained in court whilst they gave their evidence, they did not ask any questions and withdrew from the proceedings at the end of the doctor's evidence. Mr Justice Ryder gave permission for the NHS Trust ('the Trust') to attend future hearings by way of a noting brief. Counsel for the Trust attended the substantive hearing before me until the conclusion of the medical evidence. The Trust, through Counsel, volunteered to provide the parties with a document identifying(i) the action recommended by the internal review that took place into A's treatment at the M Hospital between 15th – 18th September 2009 and(ii) what action the Trust has taken and how that action could be demonstrated, if required. That schedule was circulated to the parties on the 31st January. Background[6]The parents met and commenced their relationship in December 2005. The father comes from a background where there has been historical involvement with social services. Whilst there is material in the court bundle that covers those historical matters, the local authority do not rely on it for the purposes of this hearing other than by way of background.[7]The family were referred to social services in March 2008 following an incident when the parents argued and the father was overheard referring to the mother threatening to put a plastic bag over A's head. The family was visited and no further action was taken.[8]From early 2009 A was being investigated for developmental delay following her two year developmental check on 31.12.08. With her mother she attended the speech and language therapy service for an initial assessment on 2.4.09 and was seen by Dr Croft, Consultant Paediatrician at the M Hospital, in the child development clinic on 22.4.09. A further appointment was made for 6.7.09 which A failed to attend.[9]There has been further investigation within these proceedings regarding A's development and a report by Dr Woodman and Dr Clemente concludes that A fits the criteria for childhood autism and that she has very significant developmental delay.[10]Other than these matters this was not a family who had come to the attention of social services prior to the events of September 2009.[11]At 19.34 on 15.9.09 the father telephoned the NHS Direct helpline for advice because A had suffered an injury and was bleeding from her vaginal area. There is a transcript of the telephone call in the papers and I have heard the live recording. During this conversation the father explained that A had slipped and fallen in the shower/wet room which served as the family bathroom. After she had been picked up by the mother she noticed that A was bleeding from between her legs. The father commented during the telephone discussion that he thought A had damaged her hymen. Initially the advice was to take A to see the GP in the morning. However, subsequently the advice changed that A should immediately be taken to hospital.[12]The account of events leading up to the injury to A comes entirely from the parents. This is contained in their witness statements, a series of police interviews, the medical records and their oral evidence. Their account is that she was in their care all day, save for a period at nursery in the afternoon. When it came to bath time in the early evening the mother was bathing A and B in an inflatable paddling pool and shower in the wet room/shower whilst the father was in the parents' bedroom which is adjacent to the bathroom. They had to use a paddling pool as the bathroom had been adapted to a wet room/shower for the previous occupant and the children preferred to bath rather than shower.[13]Both parents say that as the mother momentarily leaned out of the bathroom door to speak to the father A screamed. The mother turned to see A lying on the floor on her side. A was crying. The mother describes wrapping her in a towel, picking her up and giving her a cuddle and put her on her hip. She said she carried her out of the bathroom. She describes feeling something warm and wet on her shirt and realised that A was bleeding.[14]She took A into the bedroom and calmed her down. In her statement the mother says "I gently dabbed A's vagina with the towel and noticed that she had a small cut in the middle part, between her wee hole and part of skin going up to her bum. It looked red and there was blood coming from it." She called the father over to look. He said he went over after he had finished dressing B and saw blood in A's genital area. The father phoned NHS Direct for advice, he already had the number on his phone. The bleeding eased and the mother put A into her pyjamas. She was aware the father was calling NHS Direct. Both parents said in oral evidence they were shocked and scared by the injuries to A.[15]Whilst the father spoke to NHS Direct the mother describes the father coming in and out of the room whilst he was on the phone. She said she put B to bed and at 8pm had another look at A, she took her nappy off and had another look at her vagina. In her statement the mother states "There was a small amount of blood there but it seemed to me to be drying up and crusting over." She put a clean nappy on her and put her to bed.[16]The mother went to have a shower and tidied up the bathroom. The father interrupted mother's shower and said they had to take A to hospital. The mother took A to hospital. She was accompanied by the paternal grandfather and a friend who drove them there. The friend and his girlfriend just dropped them off.[17]The M Hospital records record the mother and A's arrival as being at 20.35. They were first seen by the triage nurse at 21.40. Prior to that NHS Direct had spoken to the triage nurse at 21.30 where she records "they have concerns with what dad was saying to them they are planning on doing a CSF [Children Schools and Families] referral". The referral from NHS Direct to CSF is at G20-21. The hospital clinical notes record the examination conducted by the triage nurse as "clot around vaginal area, streaks of blood in nappy, no active bleeding". The history given by the mother and the grandfather to the triage nurse is recorded as "was in bathroom with mum + one year old brother, mum turned round to talk to dad, A started to cry, mum turned back A was on floor (mum thinks she slipped as floor was wet) she may have done "SPLITS" with legs. Mum lifted her to comfort noticed she was bleeding unsure if from PV or rectal. Had put her to bed spoken to NHS Direct who advised to bring her in".[18]A was next seen by Dr E (A&E Doctor). The history is recorded as being consistent with what had been said before. On examination the notes record 'child looks tired/upset. No obvious bruise or bony injuries on limbs chest/abdomen. Genitalia external examination, no obvious bruise/swelling. Blood stained nappy. No active bleeding.' The doctor called for a 2nd opinion.[19]A was next seen by Dr F (Paediatric Registrar) at 23.20; she completed a Paediatric Assessment Form. The mother and grandfather give a history to the doctor that is consistent with previous accounts of what happened prior to coming to the hospital. A description of the bathroom is given and it is recorded "no toys around where A fell". In her oral evidence Dr F believed that was in response to a direct question from her. In the section dealing with family history the doctor records "mum has stutter – appears very nervous – asks me if she "is in trouble"'. In relation to A the form records "Playful when in playroom. Appropriate interaction with mum. Upset when genitalia examined or attempts to do general examination". The genital examination is recorded as 'no bruising to labia or legs. No internal haematoma seen. 1cm tear seen at 6 o'clock oozing but not actively bleeding". This description is accompanied by a diagram. The form records "injury to genitalia – tear visible ?mechanism of injury". The plan is "Gynae review, Admit for anlagesia + observation, Review by consultant".[20]A was reviewed by Dr G (Obs and Gynae Sp Registrar) just after midnight at the request of Dr F. She records the history from the mother as being consistent with what had been given before. Her examination records "dried blood on mon pubis - and around anus - appears obviously distressed – child covering her genitalia with both hands – no obvious bruising – deep midline tear posteriorly from 6 o'clock of introitus to 1cm into posterior fourchette – no active bleeding at present" Dr G drew a diagram of what she observed in the notes. The plan is then recorded as "Admit for observation – no need for surgical intervention – HX [history] give by mother does not co-relate with extent of injury or causation of injury ?NAI", she also notes that she will inform her consultant. In oral evidence she said she put NAI as she felt the tear seemed deep and there was too much blood and felt it should be pursued.[21]At some point around midnight the grandfather left the hospital. A was admitted to the children's ward at 3.10 am on 16.9.09, her mother remained with her.[22]Dr F spoke to K (Named Nurse for Child Protection) at about 9.30am and described the injury and the parents' account.[23]Some time before 11am Dr H (Consultant Paediatrician) saw the mother and A on the ward round, the notes record she reviewed the history with the mother and explained that photographs need to be taken. It is noted verbal consent is given. In her letter dated 2.10.09 she says that she had a quick look at A, noticed bruising on the mons pubis more on the right than the left side and some blood on the nappy. She says she did not do a sexual abuse examination, but requested one to be done by the Child Protection team/Community Consultant. She told the mother that decisions on further management would be taken after the psychosocial meeting and further examination.[24]Dr Reiser (Designated Doctor for Child Protection) records in his statement that he was first made aware of this case by K and he suggested photographs were taken, which would avoid the need for further genital examination. No time is recorded as to when this conversation took place.[25]Dr H had requested photographs, they are recorded as being taken at 10.47 am and the mother's written consent for the photographs is at. The mother describes in her statement that she was asked to hold A down on a bed whilst a man took photographs of her.[26]At 11am the mother is spoken to by Dr J (Paediatric Specialist Registrar) and Sister S as it was reported she had no idea what was going on. The purpose of the discussion was to explain to the mother about the need to consider the injury itself and how it occurred and the need for a further examination of A. The mother became upset. In her oral evidence Dr J said she did not regard anything unusual about this meeting with the mother.[27]Dr Reiser reviewed the photographs. This is not recorded in the clinical notes but appears in his statement and in a letter dated 31.10.09. He says he was suspicious that there was a right lateral labia minora tear present, not posterior fourchette as described in the notes. The recorded history taken 3 times was implausible as a cause of the reported injuries. In his oral evidence he accepted the reference to the tear was mistaken. His advice was that child abuse was possible so full investigation was needed. He understood there would be a formal child protection medical after CSF referral.[28]CSF received the referral from K, no time is recorded for this although a conversation is recorded as taking place between K and Jenny at 12.30 when reference is made to a previous history of domestic violence and incident with plastic bag.[29]Dr Hartley (Consultant Community Paediatrician) was on duty to deal with child protection referrals. She has been a Consultant for six years. She was informed about the case at 12 noon on 16.9.09 by K. The details are recorded on a Laming Form. This form is to record face to face discussions and telephone conversations, when medical notes are unavailable.[30]At about 12.30pm the father came to the hospital and took over from the mother, who went home prior to Dr Hartley's examination of A.[31]At 1.40pm A was seen by Mr I (Obs & Gynae Consultant). His note records 'No active bleeding. Child playing happily [with] toys. [Please] let me know if change in status'. K also made a note of this visit and records the father saying there were toys on the floor and the mother gets confused. The mother was present.[32]Dr Hartley discussed the case with Dr Reiser just prior to conducting her examination of A in the child protection Suite. There was discussion about the number of examinations A had already had, the possibility of abuse as the history was not compatible and had changed, Dr Reiser advised Dr Hartley that she could conduct the examination alone although she was unhappy about this.[33]Dr Hartley conducted her examination between 1.45 and 4pm. She completed a child protection medical report as she was conducting the examination and completed the handwritten notes later that day. She subsequently dictated her notes which were typed up on 18.9.09. The father was present together, with K and another doctor. Dr Hartley took the history from the father, which was consistent with what had been said by the mother before. When it came to the physical examination Dr Hartley's typed notes record 'Once A was moved to the examination room she appeared less content and was extremely reluctant to be examined, clinging to her father. [Her] T shirt was not removed but her trousers and shoes were. No bruising or other skin markings were noted. When her nappy was removed and her legs separated her genitalia were very briefly examined while she sat on her father's lap. A view of this area was obtained for approximately two second while A was crying and struggling a little. A large, more than 2cm, bluish bruise was noted on the right labia majora in the posterior position. A raw, open cut directly at 6 o'clock through the posterior fourchette for approximately 1 cm was noted. It was not actively bleeding but there was a little dry blood over both labia major and minora. The hymen opening looked normal, although it was not directly focussed on for more than half a second' Dr Hartley notes that on examining the photographs that had been taken earlier that day she considered she had a better view of the vaginal orifice as there had been no blood covering this area. Dr Hartley also drew a diagram of what she had seen.[34]K records in her statement "I had a brief glimpse of the genitalia and observed bruising externally on the right labia and the outline of a small wound above the anus. This glimpse lasted approximately 1-2 seconds at most". In her oral evidence she said she did not see the hymen and there was no discussion about the hymen.[35]Dr Hartley continues in her report to say as follows:
"Diagnosis: Accidental but unexplained injury to posterior fourchette and right labia majora. Medical opinion: The exact mechanism of this injury remains unexplained. However, both parents have independently given the same story, the mother having been questioned three times. The parent's actions were a prompt and appropriate response to the injury. They have been co-operative with multiple history-taking, including a child protection consultation, without any aggression or dissembling. The truth of the father's story was verified by other information in relation to parts of the history (the NHS Direct consultation and the previous CSF referral) Recommendation and Plans: 1. A is not at any risk from her parents, who have acted appropriately. She is therefore safe to return home to their care. 2. However, when examined, a little blood staining was noted and the laceration still looked raw and open. A should therefore remain in hospital for a further night. The timing of her discharge on medical grounds should be a decision for the Acute Paediatrics Team. 3. A appears to have some developmental difficulties requiring speech and language therapy and one to one support at nursery. A copy of this report should therefore be sent to her paediatrician and to the health visitor, with requests to follow these concerns through. 4. A social worker, and possibly a health visitor, should look into the family home and support the family financially or otherwise in making it safer for young children. Time when examination was completed, including liaison with the social worker, was at 4.00pm (social worker O arrived at 3.30pm and the recommendations and proposed action plan were shared with her)."
In her oral evidence Dr Hartley said after the examination she had a meeting with Dr J, K, O and P another social worker. Dr Hartley confirmed in her oral evidence that she thought the cause of the injuries was accidental.[36]Dr J was not present during the examination but records a summary of a conversation she had with Dr Hartley as follows:
"Assessed by Dr Hartley – see Full Medical Report – split at 6 o'clock – still bleeding – bruise on right – hymen not visualised as quick examination and child distressed"
. Her record then continues with a summary of the plan. In her oral evidence Dr J was asked about this record and whether it was a verbatim account of what Dr Hartley said, or a summary, she said "the split at 6 o'clock" were definitely her exact words, "hymen not visualised" was her summary but maintained those comments were made to her, Dr Hartley was still writing her notes up at the time.[37]There is a note in the medical records of M G (CSW) changing A's nappy at 4.45pm and there was a 'small amount of blood'.[38]The social workers who attended the hospital (O and P) as the examination concluded arranged with the parents to visit the family home at 12.30 pm the next day.[39]Dr Hartley was asked in oral evidence why she had not used a colposcope for her examination, she said "By the time I saw her, she had been examined previously 4 – 6 times….she had been up, a 3 year old girl had been up to midnight in a strange place, she was very reluctant to co-operate." She confirmed it was a deliberate clinical decision not to use this, because of the distress to the child.[40]When she was asked about the length of her physical examination of A she said it was "…very brief. She was obviously distressed. Clinging to her father. She got into her position. She was curved on her father's lap, her back to his front….I separated her legs and had a look, lasted about two seconds. I did specifically look at the hymen, very brief, I knew that was important. As soon as she started making a fuss, moving and trying to close her legs, I stopped." She said she did see the hymen, when asked whether it looked normal she said 'I didn't think in the circumstances I could describe it as more than that, having looked at it so briefly, it looked like what I would expect just a small hole, just in the middle of what I was looking at, it was small.' She said as far as her "extremely brief" examination allowed the hymen looked normal. She said her view of the hymen was clearer than on the photographs taken on the 16th, as her view was not obscured by blood.[41]Dr Croft was the Acting Named Doctor for Child Protection at the Trust and had been a Consultant Community Paediatrician at the Trust since 1994. He told me in evidence that the named doctor is a "clinical leader for child protection, responsibility for clinical leadership, training, advising on specific clinical cases, drawing up guidelines." He agreed his role involved training of younger doctors. In his letter to the Local Authority dated 21.9.09 he records K telephoning him at about 5pm to inform him of the case and he continues "In a general way, K reassured me that the necessary action would be taken, and that A would not be discharged home that night." Dr Croft recalls taking this call when he was at the Child Development Centre about two miles away from the hospital. He did not work on Thursdays and was next due into the hospital on Friday.[42]That evening the Sister S records the mother giving A a bath and reports "much less bleeding than earlier".[43]Dr H did a ward round the following morning and the notes record "No bleeding – settled. Slight vulval redness. Obs – stable. Plan discuss [with] social workers for the plan/K".[44]There was a visit to the family home at about noon by O (SW) and the health visitor. O's statement records the following: "D was asked regarding a giraffe toy he had previously mentioned and he proceeded to get this toy from upstairs and handed it to myself.".[45]Dr J took over as the registrar in charge of the children's ward in the afternoon and was asked about A's discharge. She spoke with Dr Hartley and T from social services who said they had visited the house, they agreed the bathroom was inadequate and would try and help the family. In addition they had looked into the background and had no concerns. In view of the fact that Dr Hartley and social services Dr J thought it was probably acceptable for A to go home but did discuss it with Dr H who was the consultant for the week. Dr J then went to speak to the mother and confirmed she was happy for A to be discharged and apologised for the distress caused. A went home. There is no record of the precise time, the nursing note is timed at 4pm. In her oral evidence she confirmed prior to discharge she spoke to Dr Hartley, Dr H and Debbie in social services. There is no suggestion during the hearing that she did other than follow the correct procedure at that time. However, in the closing submissions prepared by the LA I noted that the Trust's own guidance at L54 of the bundles states that discharge arrangements for a child about whom there are child protection concerns must always be discussed with the Named or Designated Doctor or Named Nurse for Child Protection. That did not happen in this case.[46]K notes in her statement that Dr Croft rang her at about 1.30pm on that day. She was travelling at the time and did not have access to the notes. She says "I explained that A was an inpatient but was unclear as to her discharge plan". Dr Croft has no note and did not recall being spoken to about this case on Thursday. K confirmed in her oral evidence that she had no note of this conversation, she said Dr Croft had rung her to find out what was happening with A. She explained she and Dr Hartley had completed the examination, A was on the ward and she advised him to phone the ward to find out about the discharge arrangements. There is no record that Dr Croft telephoned the ward.[47]Dr Croft attended the child protection Suite at about 9am on 18.9.09 for a regular peer review meeting. Before the meeting he learned that A had been discharged home. In his letter dated 21.9.09 he says "I was surprised to learn that A had been sent home the previous day, and that an apology had been given to the parents." The hospital notes have an entry at 9.20 from Dr Croft "This injury is unexplained. There is a concerning social history. Dr Reiser and I agree. I have phoned O and asked that urgent child protection action and a further strategy is required". In Dr Croft's letter dated 4.11.09 he said he was 'amazed to hear she had been sent home. I read the notes and was even further amazed to read that her parents had been offered an apology and that there had not been a strategy meeting. I therefore telephoned the Social Services (having read the notes thoroughly and looked at the photographs and having consulted Dr Reiser) and requested a strategy meeting with Social Services and the police.' In his oral evidence Dr Croft said he had looked at the hospital notes (including the photos taken on 16.9.09) and that Dr Reiser and he agreed "I should say I convinced Dr Reiser but he agreed, that it was important that there should be a strategy meeting."[48]Dr Reiser is the Designated Doctor for Child Protection. This position was described as a "political, administrative post, to liaise with other services, take a strategic role of services and attend meetings (including inter agency meetings) outside the hospital." He said he is employed by the Primary care Trust for that part of his role, he said 'it is a commissioning role, help to maintain standards in that regard.' He has been a Consultant Paediatrician at the M and N Hospitals for 21 years. In a letter dated 31.10.09 he said "I was aware by this stage that Dr Croft had also been asked for an opinion and felt that abuse was the likely cause of the injury. I shared those concerns. In view of previous disagreements between Dr Croft and Dr Hartley, I thought it sensible to discuss the case with Dr W. Dr W supported a diagnosis of accident and cited a fall on the girl's own heel as a possible mechanism which I felt was implausible. This divergence of opinion made further progress with the case difficult."[49]As regards the practical arrangements for the strategy meeting Dr Croft said social services co-ordinated the meeting, he didn't call the police. He said this was a "hospital case" so they made a room available in the child protection Suite, which was a dedicated part of the hospital to deal with this type of case. He said Dr Hartley was informed, he said "I knew she was informed, I had a long discussion with Dr W. I assumed and knew she had been told." When asked about the process for inviting people to strategy meetings he said "I don't think there is a formal process, it happens automatically…social services organise everything." When asked whether he had contacted Dr Hartley directly before the strategy meeting Dr Croft said "No. And I should say she didn't contact me either." He later confirmed that he didn't ring her and added "maybe I should have done, it would have been more courteous."[50]The strategy meeting took place between 11.30 and 1.30 with Dr Reiser, Dr Croft, K, Q (CSF), V (police), JS (police), O (CSF) and R (CSF). The meeting was chaired byQ. Dr Croft and Dr Hartley attended separately. Dr Croft attended at the start of the meeting but had to go by about 12 noon to attend another meeting. He said he outlined the medical position and said the meeting had to hear from Dr Hartley. Dr Hartley arrived at 12.30 and stayed until the end. What took place at the meeting is recorded in the minutes and in the medical records by Dr Croft and K. There was considerable debate in the evidence about when and how Dr Hartley knew the meeting was going to take place, I shall return to that later. The plan at the end of the meeting was to remove the children to foster placements, parents to be interviewed by the police and A to be re-admitted to the children's ward and re-examined under general anaesthetic ('EUA'). The minutes record CSF were going to undertake a s47 investigation, that a medical examination was required and Dr Croft was going to be the medical examiner. Under actions to be taken the following is recorded "To visit family at home, seek consent for further medical examination of A under GA and to examine B. To place both children in police protection. Arrange SOCO. Interview both parents." The minutes also record under Actions to be taken "Complete medical report for use by CSF and Police following medical examination of A". Dr Croft is recorded as the person responsible for this and for it to be done by 21.9.09.[51]Dr Hartley said she was not "initially asked to attend the strategy meeting. At 12.30 L [Child Protection Nurse] came to fetch me." She arrived at about 12.30, the meeting had started at 11.30, as she had been lecturing in a different building. She said she though it was a 'little unusual' she was not invited to the meeting although she did agree she knew there was going to be one. She said if she had been asked a clinical commitment would take priority over teaching. She said she would have been available to speak to Dr Croft prior to the strategy meeting. She agreed she was satisfied with her less than 2 second examination that she didn't see any injury to the hymen she said "the main reason I was satisfied with my assessment as a whole was based on the history I had very carefully taken, I do accept my examination was very brief. I do accept less than ideal, unsatisfactory as Dr Hobbs said but my whole assessment was not just based on those 2 seconds, it was based on more than that, I saw the child interact with the father, and taken as a whole I was satisfied."[52]At about 2pm the police attended the family home with social workers (O and L) and executed a police protection order and removed the children. The mother was at home with the children and the paternal grandfather; the father arrived back whilst the police were there. The mother says she gave her consent to A and B being examined at the hospital. The children were removed from the home and taken to the M Hospital. The mother was distressed.[53]Dr Croft said he became aware of the outcome of the strategy meeting later that afternoon when Dr Reiser telephoned him, he said he was told "it had been agreed that examination under anaesthetic, arranged, she was going to be brought to hospital, everything was organised, I was asked to come to hospital to assist him, to do the examination."[54]Police took photographs of the family home and took the toy giraffe for further investigation.[55]The father was interviewed by the police between 3.48 and 4.27 that afternoon. This was a stand alone interview as the father was not under arrest.[56]There is an entry in the medical records timed at 4pm and signed by both K and V "Consent for EUA received verbally from Mother by V CAIU." K said in her oral evidence that she was present in the room at this time when V made a phone call, she presumed she was speaking to the mother getting her consent. Both Dr Croft and Dr Reiser were asked about the issue of consent. There is no issue that consent was given what is in issue is whether the correct procedure was followed for getting that consent. I shall return to that later in this judgment.[57]At 4.35 K records in the notes "[seen by] Anaesthetist who examined A. Spoken to Dr Reiser who will do the examination. SOCOI will take swabs. Medical photography to take photos. Ward staff aware."[58]The notes record A's admission to the children's ward at 5.40pm.[59]The mother was interviewed by the police between 5.52 and 6.45pm. As with the father this was a stand alone interview as the mother was not under arrest.[60]A consent form is in the medical file at. It records the name of proposed procedure or course of treatment as "examination under anaesthetic". It records the parents consent as 'Consent verbal and under sec 47 of Children Act'. The document is signed by Dr Reiser and dated 18.9.09. It is accepted no separate consent was sought for the photographs.[61]The EUA commenced at 7pm. 11 people were recorded as being present including Dr Reiser, Dr Croft, a trainee paediatric Sp R, K, a medical photographer and the anaesthetist. V was waiting outside. Dr Croft's note in the medical records is "marked bruising to labia majora esp on right. Deep tear at posterior fourchette which began bleeding on labial traction. Disrupted hymen giving view through to vagina – hymenal bleeding. Anus – no obvious trauma slight venous congestion. Imp: gross genital trauma. No convincing explanation provided. [Parents have given a toy to police – allegedly the cause of the trauma]….Opinion – we must assume this is sexual abuse. Advice to CSF child must not go back to parents." In his letter dated 21.9.09 Dr Croft states "A was brought back to the hospital, and we examined her in theatre under anaesthetic at about 7 o'clock in the evening of 18.9.09. Dr Reiser and I were both present. We found bruising to the external genitalia especially to the right external labium. There was a deep laceration to the posterior fourchette which began bleeding again. The hymen was disrupted (torn) and bleeding, allowing a clear view into the vagina. We asked the gynaecology registrar, Dr U to assess A. He notes a 2cm laceration at the posterior fourchette, which he sutured. He also told me that the hymen did not need to be stitched, and that the best thing was to allow it to heal.…That evening, I was shown a plastic toy by V, Police Officer. She asked me if this could be the cause of the injuries. I did not consider so. No plausible accident involving plastic toys was described when A was admitted to hospital, nor indeed at any time since, to my knowledge."[62]In oral evidence he said "Dr Reiser and I did the examination. I am fairly certain that Dr Reiser examined genitalia first, then I did." He was asked about the reference to labial traction in his notes, he said "I said 'traction' but on reflection traction is the wrong word, it was separation. A little gentle separation." He was asked how long the examination was he said not very long "Each doctor might have been doing it for 1-2 minutes." He was asked how long he inspected the hymen, he said "not more than half a minute." He was asked in detail about the fact that a colposcope was not used, he said this was because there was a fixed one in the child protection Suite that could not be moved, he was not aware of a mobile one and it was not possible to use the gynaecologists' one. He agreed there was no reference in the clinical notes to the options available for using a colposcope or any discussion about them. Dr Croft's evidence was, in effect, he knew it was logistically impossible although he did agree that in controversial cases where there was a difference of opinion it was even more important to have a recording of the examination.[63]He was asked about his notes. In relation to the note "bleeding on labial traction" he was asked whether it was bleeding before traction, he said "Well it didn't seem to be, there was no visible bleeding but it wasn't easy to see before labia separated." He said he didn't know when hymen bleeding started. He said he thought Dr Reiser examined first, but he was not sure and thought Dr Reiser's examination lasted about a minute. He agreed his note did not make clear who examined A, but did not agree this was a fundamental error.[64]He was referred to the need to note the colour, contour of the hymen, precise location of any disruption, extent of injury and degree of healing, he said "I described what I saw, I did not find it easy to understand the anatomy of the hymen, I have looked at hundreds of hymens in reality and in picture, I did not find it easy to visualise the structures, it definitely wasn't normal, it was disrupted, it was not continuous, it was bleeding, colour is not normal, it is always pink, I find it difficult to be precise about extent, it was discontinuous and acutely injured. But my artistic powers could not do justice to what I saw to do a line drawing, I relied on photos. I was sure it was acutely injured and bleeding." He accepted it was a mistake not to do a drawing.[65]He was pressed on the location of the disruption. He accepted there was no reference to this in his clinical notes he said "I don't feel able to describe anatomy properly, it was bleeding and injured". He said he did see a disruption in the posterior part of the hymen he continued "I wasn't able to describe. What I saw was that the hymen was injured, disrupted and bleeding. I find it difficult to describe in drawing or words, if I had been able to describe, I would have done so."[66]He agreed EUAs are an unusual event, since 1994 he recalled only two he had been involved in. He said more than once that this was one of the worst child sexual abuse cases he had seen. He said the suggestion he had raised of further abuse prior to re-admission on 18.9.09 was possible but probably not true. What had raised his suspicions about that was the difference in recordings of the extent of the laceration, the records in the first admission said 1cm whereas Dr U records 2cm. He accepted his notes do not record the length of the laceration and they should have done.[67]He was asked by Ms King, on behalf of the Children's Guardian, about the bleeding he reported at the hymen and was asked to look at the photographs taken on 18.9.09 he said "Very extensive injury from posterior fourchette and that seems to continue into the hymen, one continuous injury, one can see a pool of blood, probably at the fourchette, you can see the hymen, there does seem to be blood at the defect at the hymen, I do accept it is possible it's just welling up from below, I don't think I can tell the difference. At time of EUA I perceived that hymen is bleeding. These photos are consistent with that, these were taken a bit later, perhaps there was an accumulation of blood, they are consistent with a well of blood from beneath, skewing the whole field, I don't know which of those is right. I feel I'm trespassing into expert." He was asked "Is it possible the answer you gave re photos, they could show bleeding at hymen or a well could equally apply to what you saw and you say you observed in your report? Does the same apply to what you observed?" He replied "I thought the hymen was bleeding, I didn't think I saw welling up of blood from underneath at the time, that's not what I thought I saw at the time, the photos could be consistent with that."[68]Dr Reiser took no notes at the time of the examination or prior to his letter dated 31.10.09 where he states 'The examination was performed by me, Dr Croft and K working together. K had been with (A) throughout this admission to minimise distress. (A) was kept covered as much as possible and dirty feet were noted. The genitalia were only exposed for examination. Bleeding from the vulva was noted at once. Bruising of the labia majora was noted. The posterior fourchette tear was confirmed and hymenal transections were noted with clear view into the vagina….Gynaecology SpR was consulted as to the need for surgical repair as bleeding persisted. This was undertaken by him…..We agreed that this was a penetrating injury of the vagina and the given history was implausible making abuse the likely explanation (other factors in the history were acknowledged)' [K14] In his statement dated 21.5.10 he states "I brought A's heels up, with her legs bending at the knees, and moving the knees gently outwards, to facilitate the genitalia….Marked bruising of the labia majora was noted on the right. I applied gentle traction to the labia majora to expose the hymen. This gentle traction in parting the labia majora was enough to cause separation of the existing wound in the posterior fourchette, which clearly was only in the early stages of healing. The degree of traction was so limited I am quite clear that it would simply not have been possible to have caused an extension of the wound from its pre-examination extent. An oozing of blood from the wound was noted at once. The posterior fourchette was confirmed and hymenal lacerations (6 and 12 o/c) were noted with a clear view of the vagina. The hymen was also bleeding. I believe I then took forensic swabs…"[69]When asked in oral evidence why the notes of the examination had been written by Dr Croft, Dr Reiser said "My role was to try to facilitate and expedite my colleagues in getting the right diagnosis. I need always to be very careful not to interfere and take over cases but to support the other clinicians in trying to carry out their roles – the line of responsibility in CP cases is very clear in the Trust, if I came in and took over cases, that would cause difficulties in that regard. I facilitated some of the proceedings that happened. The actual examination was Dr Crofts examination, I just assisted him carrying it out mostly with administrative things but also due to my experience, trying to run it as smoothly as possible, to get things within the theatre." He agreed he was aware of A's case on the 15.9.09, he thinks from a face to face discussion with K. He suggested the photographs were taken. He agreed when he looked at the notes and photographs with Dr Croft on 18.9.09 that the photographs taken on 16.9.09 were not clear where the injury was. He said there was a dark area of the right side, it was not clear whether that was an injury or blood that had spilled into a fold of skin. He said he spoke to Dr Hartley prior to her examination and his next involvement was the following day (17.9.09) when he found out the examination had not been successful; a very limited examination was possible. He said he was present throughout the strategy meeting and was satisfied that both medical opinions had been properly put before the meeting. He said he agreed with Dr Croft's recommendation to do an EUA and that his role, once the decision had been made by the meeting, was to facilitate that procedure as he had been in the hospital a long time, there hadn't been such an EUA for at least five years.[70]He was asked about the procedure for getting consent. He said as it was not known when they could get the theatre the best they could do was the police as they were the ones next in contact with the family, they [the police] would talk to them [the parents] about it. He continued 'It is not the ideal to which we aspired but unfortunately, if we put them off getting into theatre, we might not get in [to theatre] until the next day. He said the parents consent was relayed to him by DS V. He was taken to the Consent Form in the medical records and was asked about the reference to section 47 [Children Act 1989], he said "this was being discussed under that, my understanding was it was our duty to co-operate with the investigation." He was asked about the reference in the father's police interview to being contacted to ask for his consent to sutures. He said once this had been recommended by Dr U he felt the parents should be spoken to at early opportunity and he left the theatre to ask DS V (who was outside the theatre) to ask them. He said "It was as close as I could get to keeping them informed and acting with courtesy at least."[71]Dr Reiser was asked about the examination and his role. He said he put his hands on A first 'Initially, I separated the labia [he indicated with his palms up]. However the view was not very good. I applied labial traction very gently [he indicated with his finger and thumb touching] taking the labia and pulling them apart and slightly forward to allow view of the hymen.' He was asked did you get that view, he replied 'We did. That is a very important moment. Because A was completely relaxed, the hymen relaxed, it opened immediately. There was a clear severe injury running from top of hymen to just above the anus, which immediately started welling blood. He agreed the bleeding started at the beginning of the examination, at the point of traction. The blood was visible top to bottom after which it was difficult to see. But that first moment really running all the way was not quite what we had expected and was a bit of a shock.' He was asked why it was a shock and said "I have seen hymenal injuries before but here the base of the hymen, the six o'clock part, was separated top to base. It was a parallel line of the hymen running into the injury to the posterior fourchette. That one moment showed that the injury was trauma, joined, continuous." He agreed that moment was his as subsequently they had to use swabs to control bleeding, he said "That moment made it very clear, this was a severe injury which was internal to the external genitalia, it included the internal parts of the genitalia." He was asked how long his examination was from labial traction to when he stopped, he said it was "relatively brief. The actual looking is brief. But holding it so that my colleagues could see what was going on and discussing, do you agree, can you see, that takes longer than the look, here it is critical that everyone saw what I think I saw. A minute or two minutes. It's really very brief. It's complicated by the fact that it was bleeding, put swab on, take it off, can you see now, this is a flowing process." He said Dr Croft and the Registrar were looking. He said at the conclusion of the examination he said "I thought by far the most likely diagnosis was abuse. We must seriously suspect abuse at this point. This based partly on my own experience and partly on symptoms outlined in "Physical signs of child sex abuse"".[72]After the examination he said he had no further involvement with A, he said he discussed with Dr Croft that he would take the lead on this – he would write the note, he would be involved, "I expected no further involvement at all." He agreed in cross examination that he saw two transections of the hymen and Dr Croft didn't, he said "'we saw the same thing; I misinterpreted the interior of 12 o'clock absence of hymen as a transection when in fact it is a normal variant." He agreed this was an error. He agreed he made no notes or drawings at the time and first committed to paper what he saw six weeks afterwards in the letter to the Medical Director. He said this was based on memory "The description of what I saw, it was such a surprise when I saw it at first view, I remembered it very clearly. What I saw was hymen [apparently] separated top and bottom. Separated outwards. That was the memory on which I made this letter. That explained why the top bit; I had it in my mind as being separated. Here it was normal variant I understand that now." He agreed his letter said transections without any detail and his statement in these proceedings, in May 2010, he said it was his interpretation that was in error not his description. He had interpreted the top discontinuity as being transection when he now accepts it is a normal variant. In his statement he described the wound as being in the fourchette and that that was bleeding, he said the hymen was also bleeding. He agreed his words may be misleading, he said "Whether there were two wounds or one wound which joins, both of them were involved. I suppose the reason for writing it this way, the wound in the fourchette had already been described. In addition there was a separate element to that wound, my English may not be clear. Both parts of the wound were bleeding. I understand what I meant. I could have written it better."[73]He agreed it was important to get terminology and language right. He said "I thought I was clear – tear in posterior fourchette and hymen lacerations. That's what I thought I saw at the time, I accept my interpretation of top laceration was flawed. However, the important laceration diagnostically and from point of view is the 6 o'clock one. That is what is significant in the literature. It's not only from Dr Croft's view. I have also seen interpretation by Dr Hobbs, to whom I cede knowledge – he is very experienced." He agreed he thought he saw a 12 o'clock laceration and that he thought that was significant. When asked whether he discussed that finding at the time with Dr Croft he said "We talked about the findings, I didn't focus on the 12 o'clock laceration. We discussed the general extent of the injury, the fact that the hymen was lacerated all the way through and I make one other statement, I believed that the laceration went into the vagina. That was based on fact that base of hymen was separated so somehow had to go past it into vagina.' He continued 'the edges were parallel to each other, there was a gap towards the bottom, that gap is not in the photos, it was difficult to understand subsequently."[74]He agreed he did not discuss the details of the findings he said "what we discussed was severity of injury…the hymen is clearly transacted. We must now assume this is child abuse and take things forward." When pressed again why they had not discussed the detail of what they saw he said "…In hindsight, I wish we both sat down together and written notes and drawn diagrams, that would have been good. At the time the focus was on the main diagnosis, the thrust of what we had seen." Dr Reiser described what he saw in the hymen as a disruption, transection and then 'a complete laceration.' The differences between his and Dr Croft's description was put to him, he said "I think I'm describing what he said in a different way – I found it difficult to explain this, to draw it..it was very unusual, the severity of the separation of the hymen at 6 o'clock." He agreed the photos did not show bleeding at 12 o'clock and he agreed by the time the photos were taken it was not possible to say whether the bleeding at 6 o'clock had come up from below but the initial view he had was of the hymen bleeding at 6 o'clock. He said the 12 o'clock position was not obscured by blood because, he said, it was not lacerated. Dr Reiser was pressed on whether Dr Croft had carried out a separate examination, he said "we did it together". He agreed there was no record and he couldn't remember whether he had had a conversation with Dr Croft about using the colposcope. He said it was not possible to use the mobile colposcope at that time, as there were no leads. He was asked why Dr Hartley was not spoken to prior to the strategy meeting, he agreed at that time Dr Croft and Dr Hartley were not talking. In answer to Miss King he agreed that what he said he saw was the hymen lacerated into the vagina at 6 o'clock and it was lacerated through into the vagina. He was asked whether bleeding was coming from the wound in the posterior fourchette rather than the hymen he said "My memory of that very first moment, you could see the blood ooze from the whole line, from the tip of the hymen downwards. As I separated it, blood was oozing and I could see it a long the line. It was a [very] momentary view, after that could not tell where blood was coming from. From where hymen separated into where went into posterior fourchette. It was a snapshot. Hymen was bleeding, from photos you can't tell it was bleeding."[75]K, in her statement dated 21.10.09 states "I accompanied A to theatre and was present throughout the examination performed by Dr Croft named doctor child protection, Dr Reiser designated doctor child protection was also present in theatre." [C50] In her oral evidence she confirmed she thought it was Dr Croft who examined A first. She was standing to the side of A, she did see her genitalia but did not see the hymen. She said she saw 1-2cm wound which was bleeding. She said it was 'totally different' to what she had seen on the 16th. She said Dr Croft had also carried out an anal examination but he was unable to complete it.[76]A document was prepared by Dr U dated 2.11.09 he records being called to examine A at about 7.45pm and that on examination he "found evidence of a 2cm lacerated wound in the posterior fourchette….which was actively oozing. I also noted the posterior aspect of the hymen was discontinuous and there was some bruising on the labia majora…".[77]A was kept in hospital overnight and collected by the foster carers the following day. B had been examined during the afternoon at the hospital and was collected by foster carers in the evening.[78]At 8.50pm on the 18.9.09 the father was arrested on suspicion of rape of A. PC JS states in his statement that the arrest was carried out acting on the information gained from Dr Croft. The father was taken to the police station and further interviewed between 00.10 and 00.49 on 19.9.09. The father was bailed at 1.30 am until 21.12.09.[79]The application for the EPO was issued on 21.9.09 and granted the same day by the FPC. Dr Hartley spoke to K and was told the father had given a consistent account to the police.[80]Dr Hartley wrote a letter of concern to the Director of Human Resources about Dr Croft's conduct. Drs Z and Y responded to that letter. On 10.12.09 there was a letter confirming that the allegations made by Dr Hartley were 'unfounded'.[81]Dr Hobbs was originally going to be the jointly instructed expert, but he had already been instructed by the police. Dr Hanmer took over as the jointly instructed expert. Dr Hobbs report within the criminal investigation has been disclosed within these proceedings and Dr Hobbs and Dr Hanmer met (by telephone) to discuss the questions agreed by the parties. A transcript of that discussion is within the papers.[82]The case was originally case managed at the County Court and a 7 day hearing was listed in the County Court commencing on 15.3.10.[83]The father was interviewed by the police again on 21.12.09 and the mother on 14.1.10. The police have informed the father that they are taking no further action.[84]The children moved foster carers to the current foster carers on 27.1.10 and have remained there since.[85]Dr Croft informed the Local Authority that there had been an external inquiry into the treatment of A and that this should be seen by the court. The local authority applied for disclosure of documents relating to the inquiry.[86]At the pre hearing review in the County Court on 5.3.10 the matter was transferred to the High Court due to the complexity and issues relating to disclosure of the documents produced to the court by the Trust. Notice of the issues to be determined were given to Drs X, Z and Y.[87]The matter came before Mr Justice Ryder on 17.3.10, he gave directions regarding disclosure of the documents produced by the Trust and joined Drs X, Z and Y as interveners. The matter was timetabled for a 15 day hearing on 17.1.11. There were three further case management hearings before the matter came before me on 23.11.10, by which time, the time estimate had been increased to 20 days. I reviewed the Trust disclosure (and continued to do so during this hearing) and the continued involvement of the interveners. I directed they remain as interveners, which would be reviewed again at the conclusion of the intervener's evidence. Other case management directions were given.[88]The hearing started before me on 17.1.11. I heard oral evidence from Drs X, Z, Y, G, J and F, K, the current foster mother, Drs Hanmer and Hobbs, O and the parents.[89]The trial bundle consists 11 lever arch files, 4 of them have not been directly relevant during this hearing.[90]The parents have had regular contact with the children. The frequency has been 5 times per week. It is agreed the quality of the contact is good and the attendance excellent.[91]During the course of these proceedings a psychological assessment of the mother was conducted by Dr. Simon Claridge. He describes her as someone having very poor self esteem and limited social interpersonal confidence and becomes easily confused when asked questions. In terms of her cognitive development she has low average intelligence but less well developed skills in relation to Listening Comprehension (9.5 year level). In his report he suggests various practical ways these difficulties can be managed in the context of this complex litigation.[92]There has also been further investigation regarding A's development. A report from Dr Woodman and Dr Clemente dated 30.6.10. This report concludes that A fits the criteria for Childhood Autism and that she has very significant developmental delay. The foster mother gave evidence of the support that is being provided at the moment to deal with these matters.[93]The mother has been able to attend some of the medical assessment and investigations for A with the foster carer and A. It was during one of these visits on 18.6.10 that the mother asked the foster mother whether A had ever tried to kiss her on the mouth with her tongue out. The foster mother said she was surprised this had been brought up as it was not connected to anything they were discussing. The foster mother told the mother that A had tried to kiss her like that and she had told her she should not kiss her that way. She asked the mother why she had brought this up and the mother replied that she doesn't like it when she kisses like that and that the father had taught her how to kiss like that. The expert evidence[94]I have a number of reports from Dr Hanmer and Dr Hobbs. They have discussed questions put to them and have given oral evidence before me. The timetable for the case allowed them to be sent an agreed typed note of the relevant oral evidence from the clinicians regarding the treatment of A at the M Hospital.[95]Dr Hanmer is a Consultant Paediatrician at the Royal London Hospital and Tower Hamlets Community Health Services and is the Designated Doctor for Safeguarding and Lead Clinician for Specialist Children's Services in Tower Hamlets. He has been a consultant for 27 years and has a particular interest in child protection and has practised in this field as a Consultant for 27 years. For 22 years he has undertaken examinations of pre-pubertal and pubertal children and young people in whom acute and non-acute sexual assault has been suspected or alleged. Since 2004 he has been an Honorary Consultant Paediatrician at the Haven Whitechapel, the acute sexual assault referral centre for North East and North Central London and for four years was the Lead Paediatrician for all London Havens.[96]In his report dated 4th February 2010 he describes the photographs taken on the 16th and 18th September as showing "a) an irregular and ill defined area of bruising on the right labium majus (outer lip). On the 16th September this is less extensive than on the 18th September when it is concentrated in a central area 1cm by 1.3cm, but extends over and area 3cmx1cm…. b) An irregular and ill defined area of bruising on the left labium majus (outer lip) that extends over an area 0.75cmx0.5cm. This is blue in colour and fainter compared with the bruise on the right. It is less easy to see on the 18th September, but in both photographs has a "V" shape at an angle less than 90 degrees. c) A laceration of the posterior fourchette/fossa. When displayed by labial traction (pulling the outer lips apart) it is seen to be a diamond shape with its maximum width and depth in the posterior fossa, just anterior to (in front of) the posterior fourchette. The posterior fourchette is a raised ridge of tissue connecting the two labia majora (outer lips) behind the vaginal opening, between the vagina and the anus, and the posterior fossa is the area immediately in front of this, behind the posterior hymen). On the 18th September there is a pointed apex clearly visible on the right side (left of the photograph), posterior to (behind) the hymen, but an apex is less easily identified on the left (right of the photograph). It extends posteriorly (backwards) over the ridge of the posterior fourchette towards the anus, and appears to reach the edge of the anal verge skin. It extends anteriorly (forwards) towards a semi-circular structure on the posterior vaginal wall in the midline. d) The hymen is seen clearly in the photograph taken on the 18th September but is out of focus in the photograph taken on the 16th September. On the 18th September the anterior (front) area where the urethral orifice is appears entirely normal, and the sides of the hymen appear normal. The middle of the right lateral (side) hymen is a little reddened (left side of the photograph). They are smooth, not swollen, not thickened, not irregular, not bruised, and appear to have a normal thin edge but are quite fleshy posteriorly. They do not show any evidence of injury. In the photographs taken on the 18th September there is a semicircular ridge on the posterior vaginal wall, the appearances of which are consistent with a posterior hymen, and a "bump" on this is clearly visible on the 18th at 5 o'clock (to the patients left of the midline, to the right of the photograph) consistent with the end of a vaginal ridge (a ridge would extend up into the vagina, but is not visible in the photograph. This appears "deeper" than the fleshy lateral hymen seen posteriorly which may represent some mucosal tags extending from the hymen, or the ends of the lacerated hymen. It would have been helpful to see a colposcopic video recording of this examination in order to resolve the question of which of these structures is the posterior hymen...". His opinion set out at the end of his report is: "1. The bruising and injury to labia majora, the posterior fossa and fourchette are consistent with an injury caused by a blunt object. 2. The laceration and absence of healing is consistent with a recent acute injury. 3. The apparent appearance of yellow bruising on the right labia majora on the 18th September is consistent with the injury being at least 18-24 hours old at that stage, but it is not possible to age bruises accurately. 4. The injuries could have been caused by a prominent part of a hard toy striking the posterior fossa and the posterior fourchette with the considerable force that would result from a child of 13 kg falling down onto it. 5. The possibility of penetrative sexual abuse must be seriously considered but the absence of signs of acute injury to the rest of the hymen from stretching and tearing is important, as an attempt at penile or object ['or object' added later see E221] penetration sufficient to cause a posterior fourchette/fossa laceration would be expected to cause signs of acute injury to the whole hymen.".[97]Dr Hanmer provided a further written report on 25th September 2010 whereby he considered and responded to certain questions. He agreed the examination by Dr Hartley was unsatisfactory and incomplete because of lack of co-operation by the child, and the short time that was allowed for this and refers to the RCPCH guidance ('The Physical Signs of Child Sexual Abuse' An evidence-based review of guidance for best practice. Published in March 2008 by the Royal College of Paediatrics and Child Health). He agrees that where a child presents with a severe and unexplained acute genital injury the possibility of abuse cannot be excluded and must lead to an immediate referral to Children's Social Care and the Police for further investigation. He continues the children should remain in a place of safety until all agencies have assessed the risk of returning the child home and have agreed that course at a strategy meeting. He continues "I do not think it would have been possible to give an opinion on the likely cause of the genital injuries at the time of Dr Hartley's limited examination. Children's Social care had reported there were no concerns about the family, but it would only have been possible to consider all possible explanations after a more complete genital examination, and a full multi agency investigation." He was asked further about the issue of sexual abuse and he states 'In my view, an attempt at penetrative sexual abuse by a penis or similar shaped object would be expected to cause signs of injury to the whole hymen as this is stretched to a point at which tearing takes place. The injury was as a result of considerable force and I do not think it likely that this was a result of digital penetration. Unfortunately, the photograph of the hymen on 16.9.09 is out of focus. No acute injury to the anterior and lateral hymen is clearly shown, and none was reported by Dr Hartley, but the appearance of this part of the hymen is different from that shown on 18.9.09. Neither Dr Hartley, Dr Hobbs or I have described the anterior and lateral hymen as being swollen on 16.9.09, but I would like to discuss this possibility with Dr Hobbs at our forthcoming telephone conference'. He was asked about how deeply an object would need to penetrate the vagina in order to cause the disruption to the hymen reported in A. He said it would depend on the width and shape of the object. An object would need to penetrate sufficiently deeply to stretch the hymen to a point at which it tears. He said very little depth of penetration would be required to stretch and tear the hymen. He is unable to indicate the size and shape of an object that would cause the rupture to the hymen.[98]Dr Hanmer provided a third report on the 7th October 2010 after reviewing further documents. He rejects the suggestion in Dr Reiser's statement of a tear of the right lateral labia minora and hymenal lacerations at 12 o'clock as not being evidenced by the photographs.[99]Dr Hobbs is a Consultant Community Paediatrician based at St James's Hospital in Leeds and as a Designated Doctor for Child Protection. He has been a Consultant for 25 years dealing in particular with abused and neglected children. He was instructed by the police to prepare a report as part of their investigation and his statement is dated 15th December 2009. In his statement after reviewing the evidence he considers the photographs. In relation to those taken on the 16th September he states "I cannot be completely certain of the anatomy give the presence of bleeding but there appears to be the raw edges of a midline fourchette tear posterior to the hymenal opening and there is a suggestion of a posterior tear in the hymen although it is not possible to be certain of this from this photograph.". He then considers the photographs taken on 18th September and states as follows "Plate 3 consists of 2 photographs which are of higher resolution of the genitalia with the labia separate and the hymen more clearly visualised. There is clearly blood around which makes a precise visualisation of the posterior fourchette area difficult and indeed it appears that the bleeding is coming from the fourchette tear. The upper of the 2 images allows visualisation of the hymen which appears to be notched with a red line running diagonally from 4 o'clock to 7 o'clock. Whilst it is difficult to be certain what this means it is possible that there is injury to this structure in this position." As Dr Hobbs identifies the key difference between the examination and findings of Dr Croft and Dr Hartley are that Dr Croft when examining the child has described an injury to the hymen.[100]Dr Hobbs in the opinion section of his statement records "The hymen is described as disrupted although precise details of injury to the hymen have not been recorded. Her hymen was described as bleeding. It is not possible to clearly define the hymenal injury on the photographs forwarded to me. The deep laceration to the fourchette is clear and was described by virtually all of the doctors who examined the child. Clearly the doctors examining A under anaesthesia will have had the best opportunity of assessing the full extent of any injury to this child and therefore I would expect their assessment of hymenal injury to be the most accurate. From the description by Dr Croft, in my opinion it is very unlikely that the internal injuries were sustained accidentally without a clear history of impalement onto a pointed/protruding object…..In this case the proposed mechanism for this injury was slipping on a wet floor. The combination of extensive bruising to the labia, lacerated fourchette and disrupted hymen could not occur in my opinion from such a mechanism". He then reviews a number of studies of accidental injuries in girls and concludes "The injury to this child must attract considerable concern that it did not occur accidentally. I have not seen a satisfactory accidental explanation for the pattern of injury to this child which is one in my opinion strongly associated with sexual assault.".[101]In a subsequent letter (in answer to specific questions) Dr Hobbs was asked how deeply an object would need to penetrate the vagina in order to cause a disruption of the hymen reported in A he said the "object would need to penetrate the hymen which is part of the vagina which means therefore that the vagina would need to be penetrated to some degree", although he qualified this in a later letter stating "The hymen is superficially placed over the other part of the vagina so that it could at least in theory be ruptured without full penetration of the vagina.". He was asked to estimate the approximate size and shape which caused the rupture to the hymen and responded that "it would be likely to be pointed in some way and of a significant size in excess of the opening of the hymen which is unlikely to be more than 0.5 – 1cm in diameter but probably less than that."[102]The experts met, by way of a telephone conference call, on the 18th October 2010. A transcript is in the papers. After discussing the bruising to the labia they turn to the internal injuries. In relation to the hymen Dr Hanmer states "..looking at the photograph, we're looking at hymenal remnants on either side in front of that injury; we're looking at actually the posterior remnants of the posterior hymen where they would normally have joined together in the posterior fossa.". Dr Hobbs comments "I agree with you that it's difficult to see the transection right through the posterior hymen, but you can certainly see that in the position examined, the posterior hymen doesn't look nice and smooth and rounded, but it is only in that position. But I think we've got to accept, I guess we've got to accept what the examining doctors have said, which is that the hymen was transected [lacerated]" Dr Hanmer then responds "I have some difficulty in that they have not included any drawings and they talk about the tear extending into the vagina when there is no photographic evidence of that…..There may well be a transection of the anterior part of that posterior hymen but it's not shown in the photograph and I am wondering whether their description actually reflects what I'm seeing in the photographs. If I could just comment. If you look at those two photographs on that plate the rest of the hymen looks remarkably normal to me." Dr Hobbs agrees. [E234][103]The focus of Dr Hanmer's oral evidence concerned the hymen, he described what he said was a laceration to the anterior part of the posterior hymen, he said "The hymen has separated. There are two different structures, part of the hymen separated from each other by injury; they would normally be joined together." He marked the photograph at G88i with arrows pointing at the two parts that should be joined. He said it is called the base of the hymen, the rim of the hymen is intact in the photo. He marked on the photo the notch in the rim at between 5 and 6 o'clock. He did not agree that there was any evidence that the injury extends into the vagina or any injury to the hymen at 12 o'clock. Dr Reiser accepts that was an error on his part.[104]He agreed in cross examination neither the transection at 12 o'clock or the injury extending into the vagina was present on the photos, even though they had been reported by the examining doctors. He agreed there was a lack of clarity about what the examining doctors had seen in their oral evidence. It was put to him that in his first report he does not mention laceration of the hymen, he said "Under c, I describe laceration extending towards semi-circle on vaginal wall that is the hymen. I was describing what I saw on photos rather than my interpretation." He said in that report he, like the examining doctors were trying to make sense of the anatomy, he felt this structure was the hymen, that is why he was keen to speak to the doctors. He said when he discussed it with Dr Hobbs they agreed this was the hymen. He was asked whether based on the photos alone, excluding clinicians, he stood by his first report, he said "I have subsequently qualified that by saying the extension of the tear forwards is in the hymen. At the time, I was describing what I was seeing and trying to make sense of the anatomy because it was so unusual." He accepted that when he looked at the photos he did not describe a laceration to the hymen, he said he described it but hadn't used that term. He said "At the time I looked I did not think it was clear. I suggested to Dr Hobbs it is the hymen and he agreed with me." In his report he said 'normal thin edge but are quite fleshy posteriorly' in evidence he said the fleshy posterior part referred to the part of the photograph he marked with arrows. It was put to him they [normal edge and fleshy posterior part] were not injured, he said "I was describing the front and the sides, whether these might be the ends of torn hymen or mucosal tags." He agreed in that description he was putting forward possibilities because he was unclear. He agreed the photos did not show hymenal injury described by Dr Croft and the pooling of blood makes things unclear and agreed the source of the blood was not clear. When referred to the transcript of his meeting with Dr Hobbs it was suggested he was still uncertain as he used the word 'may' when referring to transection [laceration] of anterior part of hymen, he said he was "aware the doctors described laceration of the whole hymen and could see into the vagina" which he could not see on the photos. He agreed any description to the contrary by clinician is concerning and he was more concerned after seeing the note of their oral evidence. He said the injuries could have been caused by blunt force/trauma, he said he could not exclude an attempt at penetrative force. He agreed that in sexual abuse cases usually damage to rim of hymen which then extended from the rim of the hymen backwards, which was not present in this case. He also said if there had been swelling of the hymen more likely to be sexual abuse. He was asked about the toy giraffe, he saw at court for the first time. His position was that it was possibly the cause of the injuries, he can't exclude it completely. He was asked by Miss King on behalf the Children's Guardian whether he was satisfied beyond the balance of probability that A had been sexually abused he replied "I don't think I am. I said in my report it could have been contact with a hard toy. Probability comes from studies of other children. It could have happened by fall onto a toy. We have explanation. I'm just not sure about the mechanism."[105]When Dr Hobbs gave oral evidence he said the examining doctors all described the hymen being disrupted. He said he did not see clearly demonstrated something he could say is a hymenal laceration at 6 o'clock. He said the labial injury was the result of blunt impact and the injury to the fourchette and the hymen (if the examining doctor's observations are accepted that the hymen was injured) was the result of penetration through the labia by some pointed object. He later said a hard relatively pointed object, but also agreed could be by blunt force. In cross examination by Mr Verdan Q.C. he agreed if there was no hymenal injury the injury is less severe, but still worrying. In answer to questions from Miss King he agreed that when he spoke of the hymenal injury he was relying on the descriptions by the examining doctors. He said he couldn't identify the hymenal laceration in the photographs, only the lack of smoothness. He was asked about the toy giraffe and whether that could have caused in the injuries, he thought it was very unlikely but he did not see it as his job to make absolutes. I asked him about the lack of smoothness he observed to the hymen, and whether there was anything irregular about that, he said "You like to see hymen smooth and round in posterior section, you have to wonder what it is, it could just be folded, the posterior hymen could fold and the edge wouldn't look smooth, or it could be a notch there, a transection or in this case a laceration, there could have been some discontinuity there but I can't see. You would look at it further. It is one of the reasons children are examined upside down or in knee to chest position." He was asked whether it could just be folding, he said 'Yes, could be, would be something you would want to clarify." The Law The law has been agreed between the parties and is well known in this field. It can be summarised as follows:(1) In family proceedings there is only one standard of proof, namely the simple balance of probabilities: Re B [2008] UKHL 35 paras [12], [13], [15], [64], [68] – [70](2) The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred:
"Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities" per Lord Hoffman Re B para 15 (3) Leeds CC v YX & ZX [2008] EWHC 802 (Fam) Holman J Para 106 "
Individual pieces of information in cases of sexual abuse cannot be viewed in isolation…..each piece of information needs to be weighed and assessed in the context of all the other pieces of information" Para 143 "I wish only to stress, as that document [RCPCH Guidance] does at para 1.2 & 1.13 the very great importance of including in any assessment every aspect of a case…………It is also, in my opinion, very important to take fully into account the account and demeanour of the parents, and an assessment of the family circumstances and general quality of the parenting. The medical assessment of physical signs of sexual abuse has a considerably subjective element, and unless there is clear diagnostic evidence of abuse (e.g. the presence of semen or a foreign body internally) purely medical assessments and opinions should not be allowed to predominate." (4) A London BC v K & Others [2010] EWHC 850 Baker J Para 68 "Suspicious signs on examination cannot and should not be used in isolation; history and context are highly relevant; unless there is a presence of a foreign body, such as semen, a visible finding cannot predominate or be diagnostic; the most that can be said is that is suggestive of sexual abuse" Para 58 "Clinicians can express clear and genuine professional opinion and e.g. be totally convinced as to what they saw yet still be mistaken" Para 62 "A frame by frame analysis of a recorded examination can be forensically very important" Para 161(2) The examination should wherever possible be recorded on DVD (5) Re Y (Evidence of Abuse: Use of Photographs) [2003] EWHC 3090 (Fam) "These cases have the potential for a grave miscarriage of justice which the court must be particularly alive to." (6) Re B (Allegation of Sexual Abuse: Child's Evidence) [2006] EWCA Civ 773 CA – Latham, Carnwath & Hughes LJJ (failure to follow ABE guidelines) Failures to follow the (ABE) guidelines reduce, but by no means eliminated, the value of the evidence. In a family case, evidence of this kind fell to be assessed by the Judge, however, unsatisfactory its origin; to hold otherwise would be to invest the guidelines with the status of the law of evidence. In every case the judge had the unavoidable task of weighing up the evidence, warts and all, and deciding whether it had any value or none. The Judge had been entitled to take the flawed evidence into account, having recognised its deficiencies, and had evaluated it carefully in the context of other independent evidence. (7) R v Lucas [1981] Crim L.R. 624 – CA Direction to the effect that a lie can only be used to bolster evidence against a defendant if satisfied that the lie is deliberate, relates to a material issue and there is no innocent explanation for the lie. Lies may be told for reasons other than to conceal behaviour the subject of the Court's deliberations – e.g. out of shame, to bolster a just cause or to conceal other (unrelated) behaviour.[106]In considering the allegations against the father in this case I bear in mind that it is inherently improbable that a father would sexually abuse his daughter.[107]Drs Y, Z, Hanmer and Hobbs all agreed with the following propositions put to them by Mr Verdan QC on behalf of the mother:(i) The medical assessment of the physical findings of sexual abuse has a considerable subjective element;(ii) With the exception of cases involving clearly diagnostic findings such as semen, the medical findings should not pre-dominate in the assessment of sexual abuse;(iii) Sexual abuse cannot be diagnosed on the presence of physical findings alone. The extent of A's injuries[108]The main focus of this hearing has been the extent of and the cause of A's injuries. The court's ability to do that has been hampered by the failure of some of the clinicians to follow the guidance published in March 2008 by the Royal College of Paediatrics and Child Health entitled 'The Physical Signs of Child Sexual Abuse' ('the RCPCH Guidelines') and the internal guidance prepared by the Trust. I shall return to this aspect later in the judgment. I, of course, bear in mind the point made to me by Mr Seabrook Q.C. (on behalf of Dr Croft), Miss Branigan Q.C. and Mr Bojarski in their closing submissions that these are guidelines only. In the context of my fact finding decision the breaches of the guidance that are identified on the part of the treating clinicians are relevant when I come to assess the reliability of that evidence and the weight to be attached to it in the context of this case.[109]In relation to the majority of the physical injuries to A there is broad agreement. They consist of(1) Bruising to the right labium majus. It has been variously described as 'an irregular and ill defined area of bruising' or 'patchy'. It concentrates in a central area 1cm x 1.3cm but extends over an area 3cm x 1cm. The bruising was less extensive on the 16th than on the 18th.(2) Less extensive bruising on the left labium majus that extends over an area 0.75cm x 0.5cm. It is fainter than the bruising on the right, it has a "V" shape at an angle less than 90 degrees.(3) A laceration of the posterior fourchette. When displayed with labial traction it is seen to be diamond shape. Dr Hanmer describes it as having its maximum width and depth in the posterior fossa which is just in front of the posterior fourchette.[110]There has been great evidential debate during the hearing about the existence of any injury to the hymen. The first reported medical record of the hymen is the examination by Dr Hartley on 16.9.09 who records it as being normal, although the evidence is clear that this examination was very brief and the view Dr Hartley had of the hymen was even briefer. She described in evidence of it being less than half a second. Whilst Dr J does record later that the hymen was not seen in this examination she accepted that was a summary of what Dr Hartley said. I prefer the fuller near contemporaneous record of Dr Hartley that she did see the hymen, but I find that examination was very brief and was only a momentary glance when the child was struggling so she was, as she accepts, very limited in what she did see. In oral evidence she was asked if the hymen looked normal, she replied "I didn't think in the circumstances I could describe it as more than that, having looked at it so briefly, it looked like I would expect, just a small hole, just in the middle of what I was looking at, it was small".[111]The next reference to the hymen was during the EUA on 18.9.09. Dr Croft recorded in the clinical notes he wrote on 18.9.09 "Disrupted hymen giving view through to vagina and hymenal bleeding", in his typed report on 21.9.09 he wrote "The hymen was disrupted (torn) and bleeding allowing a clear view into the vagina." Dr U (Obs and Gynae Registrar) who did the suturing wrote on 2.11.09 'posterior aspect of hymen was discontinuous..". He has not been available to give oral evidence. Dr Reiser noted in a letter dated 31.10.09 "Hymenal transections were noted with a clear view into the vagina" in his statement in these proceedings dated 21.5.10 he said "Hymenal lacerations confirmed (6 and 12 o/c) were noted with a clear view into the vagina".[112]Dr Croft's contemporaneous clinical notes of the 18.9.09 examination are very limited; they extend to 9 lines of brief notes and there is no line drawing. I find this very surprising for a number of reasons:(1) The Trust's own guidance (to which Dr Croft was a contributor) makes it clear that in relation to medical examinations "The body map should be used to record all injuries, with careful descriptions of the number, size, site, colour and general appearance of all injuries and bruises, both in words and drawings. Agreed body charts should be used for both physical and sexual abuse and appended to the report."(2) The RCPCH Guidance says that:
"Comprehensive, contemporaneous notes required from each doctor to cover the components of the examination that they are responsible for and should include line drawings." [9.2.13] "
When joint examinations are conducted, a decision must be made as to who will write the report for child protection purposes." [9.2.14] "Document injuries in full. Draw body plan. Record any hymenal and anal signs and their location using a clock face notation. Record and document the examination positions. A permanent record (still photographs, video, CD or DVD) of the genital/anal findings must be obtained. These images may be obtained via a colposcope." [9.5.3] (3) There can be no doubt that this was a very important examination. This was not only because of the disagreement of the course taken by Dr Hartley in discharging A home, the police were involved, there were very likely to be care proceedings and it was an EUA, which all doctors who have given evidence in this case have described as a very rare procedure. (4) Dr Croft's role as Acting Named Doctor for Child Protection, one would have expected him to lead by example in such matters. (5) In the circumstances of this case, the clinical notes prepared by Dr Croft on 18.9.09 fall far short of what was required in this case and fall far short of the minimum required by either the Trusts own guidance or that required under the RCPCH.[113]Unfortunately the court is not assisted by Dr Reiser's role, as he made no contemporaneous notes of the examination at all. The first time he recorded anything on paper was six weeks later, on 31.10.09. Again, for the same reasons outlined in the previous paragraph, I find this very surprising. I find it difficult to accept what Dr Reiser said in oral evidence that his role was merely to facilitate the procedure when in fact, on his own account, he took the lead in the examination and, on his account, made critical observations about the anatomy prior to the bleeding starting. It was an understatement when he commented in his oral evidence that perhaps there had been a 'blurring of roles'. The role he described taking at that examination meant that, at the very least, under the guidance (both the Trusts own and the RCPCH Guidance) he should have either made his own detailed notes and provided a line drawing or looked at Dr Croft's and noted any differences he had and counter-signed them. He did neither, the nearest was a remark in his oral evidence that he had looked at Dr Croft's clinical notes with no further comment.[114]Do the photographs taken on 18.9.09 assist? I have considered them very carefully, to see if they can fill the void left by the failure to makes full clinical notes or provide line drawings. Whilst they do assist to some extent they can't, in my judgment, assist greatly in resolving the issue relating to the existence of, and extent of, any injury to the hymen. Both the expert witnesses, Dr Hanmer and Dr Hobbs have expressed their difficulty in working out the anatomy from the photographs alone and have relied on what has been reported by the examining doctors, particularly in relation to any hymenal injury.[115]Both Dr Croft and Dr Reiser gave oral evidence and were questioned in some detail about this examination. It is striking, bearing in mind the importance of the examination, and the experience of the doctors that some basic facts remain unclear. For example, who examined A first? Dr Reiser says he did, Dr Croft thinks it was Dr Reiser and K was very clear that it was Dr Croft. Having considered the evidence I have come to the conclusion that it is more likely it was Dr Reiser. K, on her own account, was to the side of A and was also keeping an eye on the A generally so her recollection is more likely to be mistaken and she was more likely to be distracted. There was also disagreement as to the precise manner of the examination and the terminology to describe it. Dr Croft says he deployed only labial separation, illustrating his description with flat hands (although it was described in his clinical notes as 'labial traction'). Dr Reiser says he applied traction using his fingers and thumb.[116]Having considered all the evidence, both written and oral, I have come to the clear conclusion that I cannot be satisfied, on the balance of probabilities, that there was a hymenal injury. I do so for the following reasons:(1) Dr Reiser had the best view as he was the first to examine A on 18.9.09.(2) The view that he had was relatively brief prior to the bleeding starting. In his oral evidence he described it as a "'very momentary view", he said "There was a clear severe injury running from top of hymen to just above the anus, which immediately started welling blood. The blood was visible top to bottom after which it was difficult to see."(3) He made no contemporaneous records and there are significant differences in his accounts given in the letter and his witness statement. In his letter he records "Hymenal transections were noted with a clear view into the vagina" in his witness statement, some 8 months later, he wrote "Hymenal lacerations confirmed (6 and 12 o'clock) were noted with a clear view into the vagina."(4) Some of the matters he recorded as being present are plainly wrong (e.g. 12 o'clock laceration) which he accepts is an 'error' and some are not visible on the photographs and they would have been (e.g. hymenal lacerations (12 and 6 o'clock) with clear view into vagina). He accepted in oral evidence that he did not see the laceration into the vagina but reported that finding nonetheless. This, in my judgment, seriously calls into question the accuracy of what he observed; this is compounded by the lack of contemporaneous notes by him. (5). The position is not rescued by the somewhat dramatic description given by him for the first time in oral evidence, over 15 months after the events in question. All he was doing, in more dramatic language, was repeating what he said he saw, significant parts of which have been shown to be fundamentally flawed. (6) The language used has been confusing and unhelpful. For example, Dr Reiser refers to 'transections' in his letter dated 31.10.09, according to the RCPCH Guidance this should be used when describing non-acute disruptions, yet in his witness statement he refers to the same injury as a laceration, which is the terminology to use when describing an acute injury. Dr Croft refers in his clinical notes to a 'disruption' which is a generic title introducing the use of specific terms. The term as used by Dr Croft provides no description of any worth. (7) Dr Croft's clinical records are insufficiently detailed to assist (e.g. no detailed location given of reported 'disrupted hymen' by reference to clock face convention, nor the severity or depth of the mark (notch or laceration) nor the age (acute or non-acute). (8) Dr Croft's view was necessarily obscured by the bleeding as, according to Dr Reiser, it started almost immediately he applied traction. (9) Dr Croft's record of the 'disrupted hymen giving a view through to vagina' was not supported by the photographs. (10) Both Dr Reiser and Dr Croft admitted they found it difficult to visualise the structures. (11) I do not accept Dr Croft's oral evidence that the appearance defied description. He is reporting on a physical structure, if it was damaged that damage can be described. I found his language in oral evidence, like Dr Reisers, at times over emotional and appeared to be seeking to persuade the experts and the court to follow his position without checking the factual records. I have difficulty in marrying his description of this being "one of the worst cases of what I consider to be child sexual abuse, child abuse on 30 years of paediatrics, in my career" with the failure to comply with the basic requirements of note recording required by the relevant guidance. By not having a proper description, particularly in a contemporaneous record and line drawing, the court is severely hampered in determining the existence and extent of the injuries to A. (12) Both doctors failed to examine the photographs and note, at the time, any distinction between their direct observations and the pictures (as required by para 9.7.1 RCPCH Guidance). The impact of this failing is perhaps best illustrated by Dr Croft's answers to questions put by Miss King where he accepted, on looking at the photographs and his record of hymenal bleeding that it was possible that the blood he observed was "just welling up from below, I don't think I can tell the difference…I don't know which of those is right". (13) Dr Hanmer and Dr Hobbs expressed their difficulty in working out the anatomy from the photographs and were reliant on the clinical examinations, particularly in relation to the hymen. Dr Hobbs accepted this in transcript of the experts meeting and in answer to a question put by Miss King. Dr Hanmers' position, although slightly more opaque, it was in my judgment clear from his evidence on the photos alone he did not describe hymenal lacerations, it is of note that in his first report at paragraph 1 of his opinion does not refer to the hymen. In the experts meeting he is still hesitant about this, prefacing his position with 'may'. In my judgment the clinical examination by Drs Z and Y in relation to the hymen was fatally flawed and cannot be relied upon and therefore the foundation of the experts evidence regarding hymenal injury falls away too.[117]For completeness I shall deal with other matters raised during the hearing:(1) Whilst Dr Hartley's record keeping was a model of its kind, in my judgment A should not have been discharged before there had been a strategy meeting. That would have enabled all relevant agencies to actively contribute to the decision and would have avoided what happened in this case, namely the discharge and re-admission of A. I share the views expressed in relation to this aspect given by Dr Hanmer and Dr Hobbs. In fact, according to the Trust's own guidance, either the Named or Designated Doctor or Named Nurse for Child Protection should have been consulted prior to discharge. This was not done.(2) There was considerable evidence given about the length of the cut to the posterior fourchette observed during the examinations, and the need for suturing. I am satisfied that there is no significance to the difference on length observed between the examinations. As was said in evidence they are only estimates, the examinations that took pace on 15th and 16th September were relatively brief and the examination by Dr U on the 18th had more time as A was under anaesthetic.(3) I attach no significance to the fact that the medical judgment was initially that stitches were not needed and that judgment changed on 18.9.09. Again I suspect that was influenced, in part, by the briefness of the early examinations and the lack of bleeding.(4) No party has pursued the suggestion by Dr Croft that A could have been further abused prior to her re-admission on 18.9.09 and I am satisfied that is not established on the evidence before the court.(5) There was a suggestion by Dr Hartley that the EUA could have exacerbated the injuries to A. Again no party has pursued that issue forensically. There was some cross examination of Dr Croft as to whether he used labia traction (as his notes recorded) or labial separation when he examined A. I am satisfied on the evidence that the injury to the posterior fourchette was in the very early stages of healing and that the movement of her labia during the examination caused the wound to re-bleed again.(6) There has been no real dispute that on the facts of this case the next step was an EUA. I note that the Trust has revised its guidance and procedures that such an examination will now be considered as a matter of course depending on the facts of each case.(7) There has been no real dispute that the convening of the strategy meeting on 18.9.09 was the correct course to take in this case. I agree.(8) There has been considerable evidence about the lack of a colposcope on 18.9.09. I am satisfied that if one had been available it could have greatly assisted the court in determining the extent of the injuries to A. I am satisfied having heard the evidence from Dr Croft and Dr Reiser that it was not even considered following the decision of the strategy meeting to carry out an EUA. Their evidence was that it was not a realistic option as the only one was fixed in the child protection Suite, some distance away from the theatre. Dr Croft was unaware of the existence of a mobile one. Dr Reiser was aware of its existence but knew it was not working. There was no investigation as to what the other options were. This, in my judgment, should have been considered. The guidance is clear as to the importance of this. I note that the Trust has now revised its procedures, so that use of a colposcope is now flagged up at an early stage.(9) There was an issue in the evidence as to whether Dr Hartley had been invited to the strategy meeting and whether Dr Croft should have spoken to her before the meeting. Dr Hartley's evidence was that she was aware the meeting had been convened, but she was not invited until L came to collect her. The LA filed a statement from L during the hearing which stated that she had spoken to Dr Hartley before her teaching commitment and told her about the strategy meeting. I do not consider it helpful to determine this one way or the other. I think what is important is that what has been referred to as a "troubled" relationship between Dr Croft and Dr Hartley probably did not help. It was no part of this court's role to know the details of that, but two Consultant Paediatricians working in the same Trust not being able to communicate effectively with each other should have been better managed.(10) The final issue related to the question of consent. Once the strategy meeting made the decision to carry out an EUA the parents' consent needed to be obtained. There is no issue that the parents gave consent, the issue was the manner in which it was done and whether that was the appropriate way in the circumstances and in accordance with the Trust's own guidance on this. Whilst I take into account that the professionals were all presented with a difficult situation on the afternoon of the 18th September I do take the view that insufficient attention was given to the importance of the parents' consent. They were not in custody or under arrest, there was no reason why they could not have been spoken to by a medical practitioner. To leave it to a police officer who, as I understand the evidence, had no knowledge of what was required to be explained to the parents was wrong. As Dr Reiser accepted in oral evidence, it was an issue that fell off the radar and it shouldn't have. He also accepted that there should have been a separate consent sought for the photographs taken on 18.9.09, that was simply not done. I hope the Trust has reviewed the operation of its procedures regarding this aspect of the case. Subject to the views of the parties, I would be content to give the Trust permission to see the relevant parts of the submissions of the parties on this aspect. The cause of A's injuries[118]As one of the experts remarked during their meeting in October 2010 this is the 'sixty four thousand dollar question'.[119]I, of course, remind myself that to make any positive findings about the cause of these injuries I have to be satisfied on the balance of probabilities that the event alleged happened in accordance with the guidance laid down by the House of Lords in Re B .[120]During the hearing Miss Branigan Q.C., on behalf of the local authority, clarified the way she put her case against the parents. She said that the LA did not believe they had an evidential basis to pursue a case that the mother caused the injuries to A. They came to that view for a number of reasons, in particular, the doubt cast on digital penetration being the cause and the degree of force required. Their positive case against the mother was that they were going to ask her in the broadest sense that she knows more about what happened than she is letting on. The LA did put a positive case against the father that he caused the injuries and knew more that he had said to date.[121]One of the many complicating features of this case is that, on the parent's case, there was no witness to the incident that caused the injuries I have outlined above to A. They say they occurred at a time when the mother was temporarily distracted when A was in the bathroom, she was heard to scream and when the mother saw A she was lying on the floor crying.[122]A, due to her age, has been unable to shed any light on what happened to her.[123]The following matters are urged on me to consider when weighing up the evidence that point towards a finding that it is more likely than not that A has been sexually abused:(1) The injuries caused to A are serious, worrying and suggestive of sexual abuse.(2) The inconsistencies in the accounts given by the parents, including (a) the account given by the father of the chair being placed in the doorway of the bedroom facing inwards when both children were out of the bedroom and likely to need to come back in (b) the existence and location of the second towel (c) the failure of the parents to call 999 (d) the early comments regarding the hymen by the father to NHS Direct when the father had not been told or seen any detail regarding the location of the injury (e) the father's reasons for not wanting to accompany the mother to hospital to avoid awkward questions (f) the timing and circumstances of the suggestion of the giraffe being the cause of the injuries (g) the expert's evidence as to the unlikelihood of the giraffe causing the injury[124]The following matters are urged on me to consider when weighing up the evidence that points towards a finding that the injuries were caused accidentally:(1) There was no delay in reporting the injuries to the medical authorities.(2) The parents have been entirely co-operative with the hospital, social services and the police.(3) The parents account has been consistent as to the circumstances surrounding A being injured. Those accounts have been consistent during the time A was in hospital from the 15th – 17th September, the account was given to a number of people by both parents.(4) The account given in the police interviews were consistent, with limited opportunity for the parents to discuss their accounts; the police interviews with the parents were effectively without warning.(5) The mother gave an account in her police interview about the new crack in the toy giraffe, before the EUA, and when she had not had any opportunity to speak to the father.(6) The absence of hymenal injury makes the injury less severe, as less force would be required.(7) There are no other indicators in terms of sexualised behaviour or other relevant history.[125]I have had to carefully weigh up all these considerations and stand back, review and consider the evidence as a whole. Having done that I have come to the conclusion that I can't be satisfied, on the balance of probability, that these injuries to A were as a result of her being sexually abused by her father. I have reached this conclusion for the following reasons:(1) Whilst the injuries suffered by A are serious, they are suggestive of such abuse but not diagnostic of it, the court has to consider the whole picture. In relation to the bruising I take into account that the expert evidence was that the "V" shape in the lighter bruising was inconsistent with contact with an erect penis. Also, the absence of the hymenal injury means the injury is less severe.(2) The parent's account of what occurred on the 15th September has remained broadly consistent. They have given those accounts separately in a variety of settings; at the hospital, in interview with social workers and to the police. Each of those agencies are alert, in this type of case, to inconsistencies and the importance of the history. In addition, there were no adverse observations made of either parent by staff at the hospital.(3) The parents promptly reported A's injuries to NHS Direct. The evidence points to these injuries occurring just before the phone call to NHS Direct. I have had the opportunity to listen to the recording of that call. I reject the late suggestion in the LA's written response to the closing submissions that there was a delay in making that call, this was not explored in the evidence. The evidence supports this call being made promptly after discovery of A's injuries. I do not regard the failure to call 999 as being indicative of culpability. No witness has suggested that the course taken in calling NHS Direct was anything other than appropriate.(4) The parents were entirely co-operative as the events unfolded between 15th and 18th September.(5) I have had the opportunity of being able to observe the parents during the course of this hearing, which has lasted for 10 days in court, as well as observing them give oral evidence; the mother gave evidence for nearly a day and the father for half a day.(6) In assessing their evidence I have taken into account the fact that there is very limited time between the end of the phone call with NHS and the time recorded of arrival at the hospital. I have also taken into account the fact that the arrival of the police on 18.9.09 was totally unexpected by the parents and there was limited, if any, time for the parents to speak to each other on their own prior to being interviewed by the police.(7) Neither parent asked for a solicitor prior to being interviewed by the police. As the mother said in evidence she had nothing to hide. Both parents give an account in their interviews that are consistent with an honest account, they both give an account of previous social services involvement, the father gives an account of the NHS call and underplays the significance of the toys. The mother tells the police how she found the giraffe under the shower curtain and that it had become cracked. This response by the mother is significant in that it was done at a time prior to the EUA and its outcome was known, it was said after the parents and A had gone home believing the doctors are satisfied the injury was accidental and it is not mentioned by the father in his first interview. If the parents were seeking to cover up the truth it would be expected the toy giraffe would have featured more and by both parents.(8) In assessing the mother's evidence I bear in mind the report prepared by Dr Simon Claridge and his opinion set out at paragraph 6 of his report. In particular the mother's low average intelligence and limited emotional functioning. During the course of this hearing the court has taken breaks at regular intervals, so she does not become overwhelmed. During her oral evidence regular breaks were taken, questions were broken down and there was limited reference to the documents. My observations of her during the hearing is that she has listened intently to the evidence, she has followed the proceedings and on occasion become very upset with what has been said in the evidence (particularly in respect of the detail of suggested sexual abuse of A). During her oral evidence she listened carefully to the questions that were asked of her, she said if she did not understand and was able to answer the questions. I found her evidence to be a truthful account. There was no hesitation in responding to questions, her account remained consistent and she was able to give congruent detail about the events of 15th September, prior to A going to hospital, which are more consistent with actual events rather than a concocted story (e.g. she was asked where the children were just before she left the bathroom to speak to the father, she said B was in the paddling pool and A was outside the pool washing her duck with the shower head; in her oral evidence she said when she went to the bathroom door just before A's injuries she said 'I could see his [the father's] head and part of his neck', this would tie in with the father's description of sitting in the chair facing into the bedroom). If she was being untruthful, in order to cover up for the father's actions in hurting A, it is very likely she would have quickly become flustered, started stuttering (which she does when she gets confused) but that was not a feature of her evidence, even though Miss Branigan's questions pressed her hard on the events on the 15th and the days that followed. The mother was very clear in her position if the father had harmed A, she would have reported him to the police. I believed her. The mother was pressed in oral evidence about the number and location of towels. The mother thought she used two towels, a white/pink one that A was wrapped up in and a blue one. The blue one was seized by the police (the details of its whereabouts having been volunteered) and was found to have blood on it. In her oral evidence the mother said that after A had gone to bed on the 15th she cleared up, she put some things in the washing machine (her top, trousers and the white/pink towel) and thought they had been washed on her return from the hospital. She was unsure whether that was on the Wednesday or Thursday. The parents volunteered the details of the whereabouts of these items to the police. The mother may have been mistaken in her reference in the police interview that she had not done any washing. However, this has to be looked at in the context that if the parents had been seeking to hide the truth they are more likely to have disposed of all blood stained items.(9) The father's oral evidence was, on occasions, not as helpful as the mother's had been. He was somewhat defensive, took refuge in the answer 'I can't now remember' and did appear emotionally flat, although I have been able to observe that has generally been his demeanour during the hearing. He tended not to react to the evidence in the same way as the mother did. I have viewed the DVD of his two interviews with the police on 18.9.09. In those interviews was entirely co-operative and answered all the questions fully. In considering his oral evidence I take into account his demeanour and behaviour in the police interviews. Despite the features I have out-lined above in relation to the father's oral evidence I have, looking at the evidence as a whole, come to the conclusion that his account was truthful. In my judgment, many of the matters relied on by the LA are more likely to be supportive of him telling the truth. There has been no real forensic challenge to the fact that the call to NHS was made within minutes of A being injured. If he had just abused A that was a very risky course to take, to speak to someone in authority. If the call was a smoke screen then he would have had to recruit the mother in this before making the call. It would have taken some time to do this (due to the difficulties outlined in Mr Claridge's report), which is inconsistent with the call being made so quickly. Whilst the father's mentioning of the hymen so early on in the call could give rise to concern (and understandably did at NHS Direct) it is at odds with a guilty presentation, as he is effectively putting himself in the frame without an exculpatory account, which simply does not make sense. It is more consistent with someone who is (to use his term) "freaked out" by what he has seen, he gives a description of what he has seen ("she has a lot of bleeding from in between her legs") and gives an account in relation to the hymen which is not inconsistent with the lay understanding of what happens if the hymen is ruptured. The suggestion that by not going to hospital with the mother because he wanted to avoid 'awkward' questions (thereby implying culpability) does not stand up to close examination. Much was made of the father's attitude to the mother and her level of functioning. It is, in my judgment, very unlikely that the father would risk her going to the hospital to face any questions. There has been, on the evidence, insufficient time to devise and agree a false account and there would be real doubt that the mother would be able to maintain any 'story' at the hospital. I suspect the father realised he had been ill judged to mention the hymen, he was told during the call that there would be a referral to social services and he was concerned that he would be asked to explain something he had not witnessed if he went to the hospital. The chronology of the toys and the giraffe do not support the parents having agreed a false account to cover up a deliberate assault on A. If that was the case it is more likely that the mention of toys, in particular the toy giraffe, would have been at the forefront of any explanations offered at the hospital, rather than emerging in the way that it has as a possible cause of the injuries.(10) I shall deal briefly with the other matters raised by the LA: (a) The inconsistency in the reasons for the change in the normal bath routine that evening, the mother told the police she bathed them together because she was tired, in her oral evidence she said it was because B crawled in and then got wet. I do not regard these as necessarily inconsistent and I suspect tiredness played a part in both accounts. (b) The suggestion that there would have been blood on the floor of the bathroom. This was not really explored with the doctors in evidence (clinical or expert). I accept the evidence that the mother found A in the position she described and her legs were together. The mother got to her very quickly, picked her up and by sitting on her hip with her legs apart she may very well have 're-started' any bleeding. (c) The location of the white chair to block the door and the inconsistency in the account given to the police as against the father's oral account. The suggestion is the account has been changed to distance the father from the bathroom where he may have been alone with A and "something more sinister has occurred" (per LA Closing submissions). In my judgment the father's account of the chair facing inwards is consistent with his usual practice, the fact that neither child was in the room is not of significance as it enabled him to sit down near to the bathroom and the mother's evidence supports the position of the chair. Whilst he appears to have given a different description in his interview (facing outwards into the passageway) I do not regard this as significant. (d) The washing of the top. I have already dealt with this in the context of the second towel. I do not find it unlikely or unreasonable that the mother, either when she returned on Wednesday or with A on Thursday, would have washed the clothes with blood on them. As far as the family were concerned there was going to be no further official involvement other than possibly follow up visits by social services.(11) The expert evidence was at best equivocal about sexual abuse being the cause of the injuries. Although pressed Dr Hanmer did not agree it was the most likely cause of the injuries and neither did Dr Hobbs. They could not rule out the cause of the injuries being accidentally caused by A falling on the toy giraffe, although they had difficulty in working out the precise mechanism.[126]Having considered all the evidence, both written and oral, I conclude, on the balance of probability, that the injuries to A were caused accidentally. I have set out in detail above my reasons for accepting the parents' account of events on the 15thSeptember. It is of note that A was in the bathroom, briefly unsupervised, standing on a slippery floor and she was wet and naked. I accept the mother's evidence that the toy giraffe was there that evening. I also accept the mother's account in her police interview that she found the toy giraffe as she was clearing up after A had gone to bed and it was newly cracked. No party advocates that the evidence is sufficient for the court to make a positive finding that the injuries were caused by a fall on the giraffe, although that must remain a possibility. The precise cause of the injuries remain unexplained. The kissing game[127]The foster mother gave evidence about a conversation she had with the mother in June when they were on the way to a medical appointment with A when the mother asked her if A had kissed her on the mouth with her tongue out. The foster mother told the mother that A had tried to kiss her that way once, she had told her that she should not kiss her that way and A had not done it again. The foster mother said this was brought up by the mother out of the blue and the mother said that she didn't like it when she kisses like that and the father had taught A how to kiss like that. There was no dispute that this conversation took place, the mother said in oral evidence that she had wrongly used the word kiss. She said she was referring to a game the father played with the children where they both stuck their tongues out at each other, that on occasions A had grabbed her father's tongue or their tongues touched. She said this had only come about recently, since the children have been in care. She had asked the father to stop doing it as she did not like it when their tongues touched. There is a reference to this behaviour with B in a contact record dated 22.7.10.[128]Having considered all the evidence in relation to this matter I find, on the balance of probability, that what the mother was referring to does relate to the game as described by the parents rather than the father teaching A to "kiss others on the mouth with her tongue out" as suggested in paragraph 12 of the threshold criteria. It was clearly not entrenched behaviour in A, as it was not repeated, so the mother's description of timing is likely to be correct. There are no reports of it being observed anywhere else. It was obviously something that concerned the mother and she badly described it when she spoke to the foster mother, I suspect because it had been on her mind.[129]Whilst I am not satisfied to the required standard that paragraphs 12 and 13 are proved by the LA they do raise issues that are relevant to the next stage: i. On any view such a game is not appropriate, the father accepted, in retrospect, that it was "unwise". What it does possibly indicate is a lack of appropriate boundaries. I consider this may be an area that requires further exploration with the father. ii. The dynamics of the parents' relationship. There has been reference in this hearing to the way the father has, on occasions, treated the mother in that he has been uncomplimentary about her intellectual abilities and used inappropriate language to describe her. This game obviously concerned the mother. It was striking during the foster mother's evidence the warmth of the relationship between the mother and the foster mother. The mother appeared to genuinely welcome the support. There may be further work that can be done to support the parents individually and assist then with their relationship. Wider Implications – lessons to be learnt[130]This hearing has identified a number of matters which impact on care proceedings and the wider system of child protection. Cases involving allegations of sexual abuse, particularly in pre-pubertal children, are some of the most difficult cases the court has to consider.[131]One of the main issues in this case has centred on the compliance, or otherwise, with the RCPCH Guidance. It has been drawn to my attention that these are guidance and it is a matter of clinical judgment in each case, the extent to which they are followed. Paragraph 1.13 of the RCPCH Guidance provides as follows:
"This handbook has been developed as an aid to clinical decision-making rather than as the sole source of guidance in relation to examining children referred for evaluation of possible sexual abuse. It is not intended to be a guideline for the diagnosis of child sexual abuse. The medical assessment of a child where there are concerns about the possibility of child sexual abuse in one part of the detailed multidisciplinary assessment, which is needed before sexual abuse can be confirmed…. The presence of suspicious anogenital signs cannot be used in isolation to establish whether or not a child has been sexually abused."
[132]However, bearing in mind the experience in this case, I would wish the message to go out loud and clear that compliance with the guidance in terms of written records (including line drawings) of examinations using precise terminology should, in my judgment, be the norm.[133]It would, in all likelihood, have made a significant difference in this case, not only in helping the parties and the court identify what had actually been observed during the relevant examination but would probably have reduced the length of the hearing. These children, who are now 4 years 3 months and 2 years 10 months, were removed from their family in September 2009, some 15 months ago, and the hearing that is likely to determine their future placement is not going to take place until July 2011.[134]The observations made by Mr

Justice Baker in A London Borough Council v K [2009] EWHC 850 (Fam) para 161 are relevant:

"161 Fifthly, lessons emerge from the evidence about the clinical examination: (1) Examining a pre-pubertal child who, it is suspected, has been sexually abused is a specialist task and should, if possible, be conducted by doctors who have relevant experience. (2) The examination should, wherever possible, be recorded on DVD. Such recordings are likely to be of very great assistance to experts and courts evaluating the evidence, although very great care needs to be exercised about the management and disclosure of these intimate images. Without the DVD evidence, the outcome of this hearing might have been very different. (3) The clinicians conducting the examination should inspect the DVD recording before completing their written record of the examination. They should note what the DVD demonstrates and in particular whether it conforms or contradicts what they saw with the naked eye. The standard form booklet should be amended to include a section where the DVD observations can be recorded in writing. (4) The written record should also include a note of the anatomical configuration of the hymen…. "
[135]I would endorse those observations and add two more from my experience of this case:(1) Precise terminology is essential when describing injuries to the genital area. The recommended terms in the RCPCH Guidance should be used. They are clearly set out at page 38. In this case numerous terms were used to describe the same thing, even though they had very different meanings. This applied not only to the clinicians who gave evidence in this case but also the experts. This caused unnecessary confusion and took time to unravel.(2) Detailed written recording of the examination, including the use of line drawings is, in my judgment, essential. This is particularly so if an examination is being done in the context of a potential disagreement between clinicians and/or anticipated legal proceedings (criminal or family). The RCPCH Guidance states at Para 9.5.3 "Document injuries in full. Draw body plan. Record any hymenal and anal signs and their location using a clock face notation. Record and document the examination positions. A permanent record (still photographs, video, CD or DVD) of the genital/anal findings must be obtained. These images may be obtained via a colposcope." Para 9.7.1 "If the images do not demonstrate the clinical findings the reason for this should be recorded in the notes."[136]Anyone who does this type of work must not only be familiar with the RCPCH Guidance but the expectation should be that it is followed, in the absence of good reason.

Cited in 2 later judgments