When EPOs Go Wrong

30 Apr

​ This cautionary tale is taken from a serious case review conducted on behalf of Derby City Council following the death of a child whom the report calls DD12 (but whom I shall ‘David’).

David was his mother’s second child. Her first baby, a girl, died suddenly in infancy as a result of SIDS. Because of the death of her first child, mother was offered a high level of support from antenatal services. She failed to engage with most of those services but, despite this, children’s services did not take any formal steps to protect David once he was born even though it was known that mother suffered from epilepsy, that father was suspected of having bipolar, and that the parents’ relationship was marred by incidents of domestic violence.

Read More

x-rays

This cautionary tale is taken from a serious case review conducted on behalf of Derby City Council following the death of a child whom the report calls DD12 (but whom I shall ‘David’).

David was his mother’s second child. Her first baby, a girl, died suddenly in infancy as a result of SIDS. Because of the death of her first child, mother was offered a high level of support from antenatal services. She failed to engage with most of those services but, despite this, children’s services did not take any formal steps to protect David once he was born even though it was known that mother suffered from epilepsy, that father was suspected of having bipolar, and that the parents’ relationship was marred by incidents of domestic violence.

David was born in the latter part of 2011 in Derby. It was apparent from the moment of his birth that he was an extremely ill baby. He was immediately transferred to the Queen’s Medical Centre, Nottingham where it was discovered that David’s trachea and oesophagus were fused and that there was a hole between the two. This meant that David had to be fed via a nasogastric tube to stop milk getting into his lungs. Shortly before he was due to undergo surgery to correct this defect, doctors discovered that David had a serious heart condition that required immediate surgical intervention.

The surgical procedure for David’s heart condition had only been recently pioneered but it was not a total cure. If David had survived, he would have required further heart operations but even those would not have completely corrected the defect.

David survived the heart operation and remained in hospital until he was discharged on 18th January 2012 when he was 3½ months old. Both parents were trained to feed David via his nasogastric tube and both were able to do so competently. No concerns were raised about the parents’ care of David by professionals.

In the early hours of Sunday, 12th February 2012, David’s nasogastric tube fell out. Mother rang her GP’s out-of-hours service and was advised to take David to hospital the following morning. She did so. While waiting for the tube to be refitted, mother reported that father had told her that he had seen bruising to David’s penis following a routine visit to the hospital on 10th February 2012 during which David had been left in the sole care of nursing staff.

A paediatric registrar was called to examine David and found pinprick bruising to his penis. Subsequently, a second doctor and then a paediatric consultant observed the bruising. Both police and children’s services were notified because neither parent could give an explanation for the presence of the bruising and the suspicion was that it could be non-accidental in origin.

It was quickly established by children’s services that there were no family members available to care for David while the cause of the bruising was investigated.

The bruising was photographed on 14th February 2012. A skeletal survey carried out on 15th February 2012 revealed nothing untoward. Medical tests and enquiries within the hospital (to see if anything done during David’s routine visit on 10th February 2012 could have accounted for the bruising) revealed nothing of concern. Police, children’s services, and the doctors concluded that NAI could not be discounted.

Children’s services asked the parents to agree to David being accommodated pursuant to section 20 while further investigations were carried out. The parents refused. Children’s services instructed their in-house legal team to issue an application for an EPO. The application was emailed to court on 16th February 2012 and a hearing was then listed for 10am on 17th February 2012.

The local authority and the parents were all represented by counsel. While at court, they received a very detailed medical report from a second paediatric consultant. The report concluded that ‘… non-accidental injury must be considered.’ Despite this, the parties agreed that the case should be adjourned to 22nd February 2012 so that questions could be put to the consultant. It was agreed that David should remain in hospital in the intervening period.

By the time the matter returned to court on 22nd February 2012, the parents filed and served statements that provided a variety of wholly innocent explanations for the bruising. The paediatric registrar who had first examined David and the paediatric consultant gave evidence and were cross-examined. Both medics subsequently objected to the vigour with which they were cross-examined but neither counsel for the local authority nor the legal advisor had intervened. Both medics subsequently asserted that they gave evidence that, in their respective views, the bruising to David’s penis was non-accidental. The legal advisor’s note was somewhat more equivocal, suggesting that both had eventually said that it was ‘unexplained.’ By the time they had finished giving evidence, it was 6.25pm and the case was put over until the following morning.

On 23rd February 2012, the social worker, lead safeguarding nurse, and the guardian gave evidence. The case was then adjourned to 24th February 2012.

In the course of submissions, mother’s counsel invited the bench to make a finding of fact that the bruising to David’s penis had happened accidentally. Having heard submissions from the other legal representatives and having received advice from their legal advisor (who was not a family law specialist), the bench retired to consider their decision.

That afternoon, they returned and made the express finding of fact that the injury to David’s penis had been caused accidentally. In doing so, the bench said that they had accepted the consultant paediatrician’s evidence to that effect. On that basis, they declined to make the EPO. It is of note that the bench did not give full reasons for their decision at the time, indicating that they would do so within the prescribed 72 hours.

David was eventually discharged from hospital on 29th February 2012 into the care of his parents.

Tragically, on 8th May 2012 whilst in father’s sole care, David suffered catastrophic brain injuries. Life support was withdrawn with mother’s consent and David died in her arms at 22:26 on 9th May 2012.

Father was subsequently charge with murder. He pleaded guilty to manslaughter, a plea that was accepted by the Crown (on the basis of father’s mental health difficulties).

Despite repeated requests from the local authority that they should provide written reasons, the bench did not do so for fully 7 months after the conclusion of the EPO hearing, some 4 months after David’s death.

The serious case review makes for utterly depressing reading. The local authority and HMCTS lay the blame for the fiasco that was the EPO hearing at the door of the other. The local authority blamed the legal advisor for failing to give the bench proper advice about the test that they were supposed to apply when considering whether or not to make the order. HMCTS blamed the local authority’s counsel, the evidence it called, its decision not to apply for a care order/interim care order either instead of the EPO or after the court’s decision to refuse an EPO. Indeed, reading the review, one can’t help but feel that with the death of a tiny baby on its collective conscience, the bench and HMCTS were more interested in ensuring that none of the flak came their way rather than working openly and honestly with the review panel to ensure that tragedies of this nature are not repeated. There were certainly significant discrepancies between the accounts provided by the legal advisor and the local authority’s legal representatives of what was said during the hearing by witnesses and the advice that was given to the bench.

Although the bench and HMCTS must shoulder a lot of the blame, it would be unfair not to point out that the local authority appears simply to have rolled over and accepted that, in the face of a finding of fact that the injury was caused accidentally, they were powerless to intervene further to protect David. They appear to have given no thought at all to using the powers of the High Court in order to obtain full reasons within a reasonable period of time and/or thereafter to launch some form attack on the finding that the bench made, there being no right of appeal against the bench’s decision to refuse the EPO.

Although we will never know for certain why the bench decided it was necessary to make a finding of fact, it seems likely that, despite counsel for the local authority providing written submissions which correctly stated the test for making an EPO (“there is reasonable cause to believe that the child is likely to suffer significant harm if he is not removed to accommodation provided or on behalf of [the local authority] or he does not remain in the place in which he is then being accommodated.”), the bench concluded (whether as a result of submissions on behalf of mother or as a result of poor legal advice or some combination of the both of those possibilities) that they could not make an EPO unless the local authority proved that David’s injuries were caused non-accidentally. The bench got that wrong and David paid the price.

Graeme Harrison

For more information on Family Law, click here.