“[The father] was visually becoming more and more anxious as we proceeded and stated that he maintained that R’s injuries were sustained from when she bumped her head on his chin earlier that day. I reminded [the father] that this was not accepted medically and therefore this was not an accepted explanation. I reminded both parents that if they knew what had happened to R they needed to be honest. [The mother] maintained she did not know, however [the father] was in tears and very distressed with his head down. I asked [the father] again did he know what had happened to R and he nodded his head to indicate yes. [The mother] was clearly in shock with the expression on her face. I asked [the father] if he wanted [the mother] to leave the room then could tell me, he nodded his head indicating yes. I asked [the mother] to leave which she did, leaving just me and [the father] in the living area. [The father] was deeply distressed, he could not maintain any eye contact and was crying and very distraught. I asked him again if he knew what had happened to R he said yes he did, I offered him a starting point to try and talk to me about the minutes on26 October 2017 and the time line from when he was feeding his daughter. [The father] then said that it was true that [the mother] had gone upstairs to bathroom and closed the living room door behind her. [The father] said that he was sat on a rocking chair that is no longer in the house, he described feeding R and her then refusing to feed and starting to cry, he said that he was still trying to feed her, but she was moving her head about. He said that he remembered feeling really tired and decided to stand with R to try and settle her that way, he said as he was in the process of standing he slipped backwards against the rocking chair and as he did he lost R from his arms, he described her going head down and landing on her head on the floor which is carpeted, but not thickly piled and landing on her face. He said that as soon as it happened he picked her up, she let out a cry which [the mother] has always maintained she heard from the bathroom before making her way down the stairs. [The father] said as soon as he picked R up from the floor and heard the cry she was floppy and unwell. I asked if he knew he had caused her injury from a serious fall, whilst very distressed he said ‘yes I knew I had done it’.He said that by the time [the mother] entered the room she was in his arms and this is when [the mother] noted that R was very unwell and an ambulance called. I asked [the father] if he had told [the mother] about this incident, he said he had not as he was scared as he knew he had seriously injuries their daughter and had feared what would happen to him. I asked if he had told anyone else, he confirmed he had not and I was the only person that he had disclosed the information to. [The mother] was asked to come back into the room. [The father] asked if I would tell her what happened which I did. [The mother] was just completely shocked and instantly broke down saying ‘why have you done this I knew something had happened I knew you knew more, you haven’t been the same and I knew it, I have lost my baby, I have lost my baby and I didn’t do anything you have taken eighteen months of my life away why would you do this, when I dropped her I admitted it you know I did why would you do this to us all.”
“I have carefully considered if R could be placed back into parental care and if she could be safeguarded from further risks with a protective plan in place. However, for the reasons that I have discussed in detail throughout my report, I must conclude that no permutation of risk management in this case could ensure R’s long term safety if she was too be placed back into her parents (sic) care, either together or as single carers.”
“7.9.1. It is my view that having a clear plan of support in place that covers both parents’ needs to address their psychological difficulties, with parenting support and a more formalised plan of support to be available through the wider family, this could continue to build on the protective factors and the risks could be managed for R to be returned to the care of [the mother]. It appears [the mother] has remained consistent throughout the proceedings that she was not in the room at the time R sustained her injuries and the more recent account of [the father] attests to this. 7.9.2. My reservations about [the father] being included in any plan, in terms of him also residing in the household at this time are that there continue to be inconsistencies in his account of what happened at the time R sustained her injuries. He states that what happened was an accident and asserts that he subsequently lost his memory of this until recently and this was why he did not disclose this earlier. However, he indicated to the Independent Social Worker that he is aware of what had happened but did not disclose this for fear of what may happen. He is struggling significantly at this time with his mental health, is exhibiting some post traumatic stress symptoms and there is evidence that R being distressed can act as a trigger for his own distress. Whether or not this could be due to the guilt he feels about what happened, it indicates some continued vulnerability that I think he needs some time to explore more fully before there is consideration of him re-joining the family, thus I would advocate him moving out of the family home for a period of time, if possible back to his family home where he has the support of his parents.”
“...there is undoubtedly medical evidence which casts a question mark over some at least of what has happened. Whether that question mark is serious, whether it is in fact possible that it has or could have any effect on the second part of the hearing, is a matter exclusively for the trial judge and not for the Appeal Court. I ought to say that the additional evidence which we have accepted to be adduced, for what it is worth, would more appropriately be considered at the trial stage than at the appeal stage. It is evidence both as to medical opinion and also some evidence of what is sometimes termed disclosures. All of those are matters that can properly be investigated by the trial judge. I can see no reason why His Honour Judge Hunt should not be the trial judge. Indeed, I agree with counsel representing the other parties that it would be wrong for it not to be Judge Hunt, because he is the one judge who has had all the evidence up to now. He is able to reconsider what he has done, if he considers it necessary, in the light of any further evidence that has come since the hearing before him.”
“[13] Plainly trial judges have to be firm in not permitting the court's important duty to investigate and establish past fact to be derailed or diverted by what may be simply strategic manoeuvring in response. Particularly, courts must be guarded in acceding to applications for yet another trial of an issue of fact in what should be the relatively brief period between the preliminary hearing of disputed facts and the subsequent hearing to dispose of the outstanding application for care orders. [14] So the notion that the process … should be torn up as though it had never happened simply because one of the adults had subsequently made a statement shifting position was plainly unlikely to succeed and was, in my judgment, rightly rejected by Judge Hamilton. That of course is one extreme. The other extreme would be to reject the development absolutely and treat the previous finding of fact as incapable of being revisited. There is, between these two extremes, an obvious middle way, and that is to conduct the disposal hearing in such a way as to adopt the process of preliminary hearing as the foundation, and then to make such adjustments as are necessary to reflect subsequent developments rigorously tested through the process of examination-in-chief and cross-examination. Judge Hamilton clearly suspected that there was no greater value in the fifth statement than in the earlier statements, and in that suspicion he may be right. But no complete conclusion can be reached without affording the mother the opportunity of explaining herself in the witness box and answering as best she can the local authority's response, namely, that the fifth statement is contradicted by or is inconsistent with, the medical evidence.”
“The care proceedings here are part heard. Although there has been a separate fact-finding hearing, the split hearing “is merely part of the whole process of trying the case. It is not a separate exercise. And once it is done the case is part heard”: see In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening)[2009] AC 11 , para 76. The findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges. Until the final decision is made, the judge must be able to keep an open mind and is entitled at any time to reconsider his earlier findings, at least if fresh evidence or further developments indicate that an earlier decision was wrong: see In re A (Children: Judgment: Adequacy of Reasoning)[2012] 1 WLR 595 , para 21, In re L (Children) (Preliminary Finding: Power to Reverse)[2013] 1 WLR 634 , paras 33–35.”
“[40] This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, "Detecting Lies Using Demeanor, Bias and Context" (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories. [41] No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the way it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.”
“The credibility of a witness depends on his knowledge of the facts, his intelligence, his disinterestedness, his integrity, his veracity. Proportionate to these is the degree of credit his testimony deserves from the court or jury. Amongst the more obvious matters affecting the weight of a witness’s evidence may be classed his means of knowledge, opportunities of observation, reasons for recollection or belief, experience, powers of memory and perception, and any special circumstances affecting his competency to speak to the particular case—all of which may be inquired into either in direct examination to enhance, or in cross-examination to impeach the value of his testimony.”
“To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.”
“We explored why [the father] was disclosing what had happened now, and not before, either at the time of the incident or during the Finding of Fact hearing. Of this, he said ‘Until the last few weeks...what had happened had gone from my mind...I never connected the dots until Michelle (the independent social worker) came round...in the early months, in my head I kept thinking R could have died. If I hadn’t been there she would have died...since the hearing in December 2018 I felt something was not right but I couldn’t pinpoint it. The judgment was pointing towards one of us shaking her. Why would I do that?’ He explained that from the moment she was hospitalised, ‘The police and social worker painted a picture of me as a thug and a moody person. When I was arrested they painted a picture that I viciously tried to hurt R...it just shut me down and it’s been a battle since then...we’re hard working parents but were being portrayed as incapable...the social worker was not being upfront. They’d say one thing, that the house was clean, then write in the report that the house was cluttered and dirty. I felt they worked against us...I’ll never trust any of them again.”
“Thereafter, I somehow managed to block out this memory. I cannot explain this and cannot explain why I was unable to recall it at the hospital or since. It is only when Michelle Challender came to assess us that I started to putting the pieces together and was able to tell her what happened. From the moment I picked R off the floor I went into complete shock and was focused on what R was doing, struggling to breathe, which left me in a state of terror, scared of losing R. From their onwards I believe I was in some kind of traumatic shock.”
“There is a vulnerability of R becoming the subject to a Special Guardianship Order, she has not so far been placed in the full time care of [the paternal grandparents] and so this placement has not been tested. Whilst I remain optimistic that [the paternal grandparents] will endeavour to ensure R has a positive and happy upbringing and will do whatever is required to support her, there remains uncertainty as to how in reality this placement will progress. As R has not lived with [the paternal grandparents], the realities of what support they need are not yet know[n], it is only through the testing of a placement that the support needs of the grandparents, placement and R become clear. It is possible that [the paternal grandparents] and by the placement, R, could be disadvantaged by a support plan endorsed by the Court that may not in reality meet their needs.”
“I have highlighted this recent study as the concerns raised by those interviewed as part of it resonates in the views shared by [the paternal grandparents]. They feel very much without a voice within the process and whilst I was meeting with them, they had many questions about what the implications going forward would be. Whilst this does not deter them from wanting to care for R, there is a worry that they may be left without the support they need, and they may feel powerless to ask for anything further. They do have concerns in respect of their relationship with the Social Worker(s) that R has had and that this is not an effective working relationship. I accept this may be their perception of the situation based on the experience they have had as part of these proceedings; however, such a perception could be a barrier to an effective working relationship going forward.”
“[33] The concept of a short term care order within which the placements could be tested was raised by the judge as a justification for making full care orders. Aside from the welfare merits of the orders, which were not adequately reasoned, the concept of a short-term order is flawed. There is no mechanism for a care order to be discharged on the happening of a fixed event or otherwise to be limited in time. The exercise of parental responsibility by a local authority cannot be constrained once a full care order is made other than on public law principles of unlawfulness, unreasonableness and irrationality. The judge should have reflected on the fact that if the local authority did not in due course apply to discharge the care orders themselves it would have been incumbent on the proposed special guardians to do so and to satisfy the test for leave to make that application without the benefit of legal aid, given that in the circumstance of a disagreement with the local authority it would be highly unlikely that the special guardians would be in receipt of funding from them. [34] Furthermore, the judge did not follow the guidance given in W v Neath Port Talbot and obtain from the local authority section 31A care plans for each of the children setting out the plan that he wanted them to pursue, namely a trial of the proposed placements by the local authority. The lack of scrutiny by the court of the plans that are required was contrary to section 31 (3A)(a) of the 1989 Act.”
“If the child has never lived with, or has only a tenuous relationship with, the proposed special guardian, what steps need to be taken and over what period to test the proposed placement? These are some of the questions the judge may need to have answered; no doubt there will be others...If the answer to these questions demonstrates that the process cannot be completed justly, fairly and in a manner compatible with the child's welfare within 26 weeks, then time must be extended. There can be – there must be – no question of abbreviating what is necessary in terms of fair process, and necessary to achieve the proper evaluation and furthering of the child's welfare, by concern about the possible impact of such necessary delay upon the court's performance statistics. In relation to SGOs, as elsewhere, justice must never be sacrificed upon the altar of speed.”