Neutral Citation Number: [2014] EWFC B159 (Fam)
I N   T H E   F A M I L Y   C O U R T
Sitting at Sessions House, Preston.
On the 24th October, 2014

BEFORE  
His  Honour Judge Rawkins
[ Designated Family Judge  for Lancashire ]
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Re C
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 J   U  D  G  M  E  N  T
1.     These proceedings arise from an application by the Local Authority for the making of a Care Order pursuant to s.31(1) Children Act 1989 in respect of ‘C’, who was born on the 18/01/13 and who is now 21 months old.

2.     The Child is the first respondent, acting through his Children’s Guardian.

3.    C’s mother was born on the 9th December 1994.    She is 19 years of age.    His father was born on the 29th July 1995.   He is also 19.    They are the second and third respondents respectively 

4.    The maternal grandmother has been permitted to intervene in these proceedings and she has taken an active part in them.  DL was also constituted as an intervenor having been summonsed by the court to give evidence at this hearing.    The modest role he has chosen to play in that capacity is dealt with later in the judgment.

5.    First I remind myself that a care order can be made if the Court is satisfied that the child with whom the court is concerned is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child, or likely to be given to the child if the order were not to be made not being what would reasonably be expected a parent would give to the child.    This is the test set out in s.31(2) of the Act.

6.    This judgment is delivered at the conclusion of the  final hearing of the Local Authority’s application.    Representation before me has been  as follows:
For the Local Authority Miss Watkinson
For the mother Miss Tankel
For the father Mr Rothery
For the child instructed by the Childrens Guardian Mr Hecksher.
For the maternal grandmother Ms Korol
DL appeared unrepresented

7.   There is a bundle of documentation, as is customary.    It comprises 4 lever arch binders divided into sections A – G.    It is helpful to identify some of the key documents and categories of documents.   
7.1  Within Section A there is a document entitled ‘Threshold Statement’ in which are set out the facts and matters upon which the Local Authority relies in order to satisfy the court that the statutory threshold which I have referred to has been crossed in this case.
7.2   Section C contains the written evidence which has been filed during the course of the proceedings,  notably the social work statements and assessments, the Parents’ Children Act statements and the statements from the Maternal Grandmother.    The Local Authority’s final statement prepared by the key social worker filed in support of its Final Care Plan is at pp C 130 – 168. and  the final statements filed and served by the Father and Mother  commence respectively at p. C 174 and p. C 177.
7.3   The LA’s Interim and Final Care Plans are in Section D.

8.   The court has been invited to consider the appointment of expert witnesses in order to deal with issues in the case in respect of which such evidence was perceived to be necessary.    In particular, the court approved the instruction of a medical expert.    The  expert concerned is Dr Kathryn Ward, a Consultant Paediatrician.   Her principal report appears at Pp. E 98  - 158, and  there is an addendum report at p. E 167.    It will be necessary to refer to those reports in the course of this judgment , but it is unnecessary to refer, other than in passing, to any other expert evidence in this case because the issues addressed have been resolved, are not the subject of deliberation in this judgment.

9.      The Childrens Guardian has prepared two reports for the purpose of these proceedings.       His Final report is at Pp E 341 -348.

10.   The documents disclosed pursuant to police and Medical disclosure are in Sections G and H respectively.    Relevant to the issue of outcome, the Special Guardianship Report and Support Plan are contained in Section I.

11.   It is convenient to set the scene by surveying the background history of this case as it is revealed by the written evidence and/or which has not occasioned any obvious issue between the parties in the course of the evidence.   
           11.1   The Mother and father are both very young.   They lived next door to each other and commenced a relationship in January 2012.   By September of that year the Mother was pregnant and the relationship had soured.    They separated and the mother moved away to her grandmother’s home.    However, they were reconciled in November 2012, and C was born two months later.    The relationship was not a good one however.    It was marred by arguments and domestic violence.   In March the following year there was a serious incident when the Mother was assaulted by the Father whilst she was holding C.   The Father had armed himself with a knife and was arrested by the Police and charged  with criminal assault.   He was convicted and received a 6 month Community Referral Order.    
            11.2   The Mother commenced another relationship two or three months later with DL.   It was not an entirely conventional relationship in that neither seemed to be entirely committed to it.   On the one hand the Mother made plain that her priority had been her child and her relationship with DL took obvious second place to that, and DL, for his part, appeared to come and go as he pleased, sometimes staying overnight, sometimes not.    By September 2013 that relationship was also foundering.    DL had commenced a relationship with another girl which he concealed from the mother.    His ability to commit to either relationship was seriously flawed and his emotional contribution to the relationship with the mother appears to have been non-existent.   There were acute financial difficulties.      A great deal of money was expended on the acquisition of drugs, which were consumed at the home.    The acquisition of drugs was funded by money which would otherwise have been utilised for the provision of necessities for the child and the two adults, but for the fact that it had been borrowed or stolen by DL.    It appeared that DL treated the arrangement as one whereby he contributed little or nothing, by way of support.    As a consequence mother and child were living a hand to mouth existence, which was deeply unsatisfactory.    The mother not only permitted DL to act in this way, but also  disguised the truth of the situation from those around her to protect both herself and DL from criticism and when, inevitably, it was offered, in particular by the maternal grandmother, she rejected it out of hand in the most resolute and uncompromising way.
11.3    The relationship between mother and DL was one without any obvious foundations at all, and provided fertile ground for things to go very badly wrong, which, of course, they did.    The arguments between mother and DL escalated, and the mother was the victim of a physical assault during which she was pushed into a door frame and sustained some  injury to her shoulder.    It is inescapable that some, or perhaps all of these, arguments, and perhaps the assault as well, took place in C’s presence.     
11.4    It is remarkable that, notwithstanding the strife and tension which must have existed within the household, it appears that the mother was able to meet the child's physical needs and care for him to a reasonable standard.   Furthermore it is acknowledged that she had formed a close bond with him.    She was breastfeeding him every four hours or so, including throughout the night.    That depicts a situation in which, at least superficially, the presentation was of devoted parenting.    There were aberrations however.    Without comment at this point in the judgment as to their veracity or accuracy the mother has reported that there were four specific episodes when C could have potentially sustained injury during the period September to December 2013, prior to the signal event on the 19th December.     The first incident occurred when  C  fell out of his cot in September.   Mother did not see the fall, but heard it over the baby monitor.    It did not appear to her that C was injured.   Some time later, in October or November,  C is said by the mother to have fallen off her bed twice on the same occasion.    Again it did not appear that he had sustained any injury.    On the 7th November C fell from his high chair on to the floor.   Mother apparently witnessed the fall but was powerless to prevent it.   If true, each of these events occurred when C was in the sole care of the mother, on her account.
           11.5     On the 8th December, the eve of the mother’s birthday, to celebrate which a trip had been planned to the Trafford Centre in Manchester for the following day , C was taken out of the home by DL for a walk in his pram.    On return perhaps half an hour or so later C presented in a distressed manner and was difficult to calm.    He had a red mark on his right upper lip below the nostril.  Mother had challenged DL  as to why C was upset but got no explanation.   Subsequently, mother discovered marks on C whilst she was bathing him.    When challenged DL left the house.    I explore this incident in greater depth later in this judgment. 
          11.6    On the 19th December C was in the care of the mother again.   He was in the dining room, adjacent to the kitchen where the mother was cooking the tea.    She could see and hear him.    She saw that he had climbed on to the stairs which were protected by a baby gate which it appeared had not been properly fixed.    He fell before she could get to him and injured his arm.    The mother contacted the maternal grandmother over Facebook to seek help.    She was not available.    Mother went outside and asked her neighbour for help and was advised to take C to A & E.    In the meantime, maternal grandmother had alerted the maternal great grandparents who arrived and took mother and C to Accrington Hospital.    This incident is also explored further later in this judgment
          11.7     In the above paragraphs I have set out those parts of the accounts which were given which do not appear to be put in issue in the course of the evidence.    There are issues between the mother and DL about these events, and there are a number of inconsistencies in their unfolding as recounted by the mother the significance of which  I deal with later in this judgment.
         11.8      Following examination at Accrington Hospital C was referred on to Blackburn Infirmary Accident & Emergency Department.   When received in to the paediatric ward he was found to have the following injuries:
             (i)   old healing fracture of the distal radius
             (ii)  swelling and bruising to the outer aspect of the right elbow
             (iii) small bruise to the right side of his face 1.5cm x 1.0cm
             (iv) 2cm scratch to the left side of the face
             (v)  slight swelling to the radial aspect of the right wrist.
A full skeletal survey was directed and carried out on the 20th December which confirmed the fracture to C’s right wrist and the following further bony injury:
             (i)   fracture at the distal part of the left radius
             (ii)  subtle buckle fracture of right tibia in proximal diaphysis
             (iii) suspected buckle fracture of the left proximal tibia
It was concluded that the most likely explanation for these injuries was that they were non-accidental in origin.
            11.9        Just before 4.00 a.m.  on the 20th December at mother’s request maternal grandmother sent a message to DL in the following terms:      “Pls get out house social coming now”.
At 4.18 a.m. a further message was sent ostensibly by maternal grandmother to DL in which she thanked him “for doing the house”.       I deal with the import of these messages later in this judgment
            11.10     C was removed from the care of the mother and placed with a foster carer where he has remained ever since.   The Local Authority issued these proceedings on 20th March 2014.    The mother and DL maintained their relationship on some sort of footing until late in January 2014.

12.    These matters form the genesis for the allegations set out in the Threshold Statement.    At the conclusion of the evidence and prior to the receiving of submissions the Local Authority, with the permission of the court, served an Amended Threshold Statement.   If I may say so, without implying any disrespect to its author, it is not altogether a conventional document since it merges allegations which are clearly relevant to the Local Authority’s case in respect of the crossing of the threshold, and allegations of fact which go to other issues.    For that reason the Local Authority has identified where there is such a distinction and, once judgment has been given, the document will be re-drawn to reflect the difference between the threshold allegations and findings, and the additional allegations of fact and the findings made in respect of them. 

13.        As it is the LA which makes these allegations, it is the LA which must discharge the obligation of proving them and the standard to which it must do is the civil standard, which is to say the balance of probabilities, as was identified by Baroness Hale of Richmond in a passage from the House of Lords decision in Re:B [2008] UKHL 35 at Para 70 in which she said as follows:

<<The standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is a simple balance of probabilities, neither more nor less .    Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts >>

14. She continues at Paras 72 and 73 of her judgment:

<< 72. As to the seriousness of the allegation there is no logical or necessary connection between seriousness and probability.    Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances .    Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable.    Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable.    Nor are serious allegations made in a vacuum.
73. In the context of care proceedings , this point applies with particular force to the identification of the perpetrator.   It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall causing multiple fractures and other injuries.    But once the evidence is clear that that is indeed what has happened to the child it ceases to be improbable.    Someone looking after the child at the relevant time must have done it.    The inherent improbability of the event has no relevance to the decision as to who it was.    The simple balance of probabilities test should be applied>> 

15. The balance of probabilities test as articulated by Baroness Hale is the test I have applied in reaching each and every finding in this judgement.

16. As to the importance of reaching findings in respect of these matters I bear in mind the Court of Appeal decision in Re: K (Non-Accidental Injuries :Perpetrator : New Evidence ) [2004] EWCA Civ. 1181 and in particular Paragraphs 55 and 56 which read as follows:
<< 55. As a general proposition we think that it is in the public interest for those who cause serious non-accidental injuries to children to be identified wherever such identification is possible.   It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred.   Any process which encourages or facilitates frankness is accordingly, in our view, to be welcomed in practice.
     56. As a second background proposition we are also of the view that it is in the public interest that children have the right, as they grow into adulthood to know the truth about who injured them when they were children, and why.   Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them.    This is a heavy burden for any child to bear.   In principle, children need to know the truth if the truth can be ascertained.>>

17. Returning to the case of Re:B, at Para 31 of her speech, Baroness Hale said the following about the process to be applied by the court in a fact seeking exercise of the kind upon which this court has embarked:

<< In this country we do not require documentary proof.    We rely heavily on oral evidence , especially from those who were present when the alleged events took place.    Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe,    They are guided by many things , including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivations of the witnesses>>.

18.      By the application of that guidance, and for the reasons which I set out as I proceed with the judgment, I have found some of the evidence which I have read and heard to be credible, and I place emphasis on the use of the word ‘some’, and thus to be taken account of, and some not so and thus to be unreliable.    It is often a feature of this type of case that the truth is obfuscated by what Lord Nicholls in the House of Lords case of LCC v B [2000] 1 FLR 583 referred to as the “fog of denials, evasions, lies and half truths”, and I have had cause to remind myself that where I have determined that a witness has strayed from the truth or perhaps from the whole truth, even where such departure might not  be innocent, the mere fact that the witness has lied to the court is not of itself probitive, but it is an important factor nevertheless which I should take into account when assessing the reliability and credibility of that witness’ evidence, and accordingly the weight to be given to it

19. The test for establishing whether a person falls into the pool of potential perpetrators in a case where non-accidental injuries have been found to have occurred  was identified in the case of North Yorkshire County Council v SA & Ors [2003] EWCA Civ 839 and affirmed  by the Supreme Court in Re:S-B (Children) [2009] UKSC 17 42-43.   The court must determine whether there is a likelihood or real possibility that an individual was the perpetrator of inflicted injuries.

20.    I must also acknowledge that there may at some time be proceedings in another jurisdiction which arise from the events which I shall be reviewing in the course of this judgment.    The mother has been arrested and interviewed by the Police; somewhat surprisingly in the Court’s view DL has not.   It may well be that my findings in this judgment will be disclosed to those involved in the criminal investigation.    It is important for all concerned that I should identify the difference in approach within the Family and Criminal jurisdictions.    The nature of these proceedings is inquisitorial in the sense that their purpose  is to establish, if possible, the truth as to the occurrence of a life changing event or events in the life of the child concerned by reference to the available evidence about what occurred, and to make findings in that regard by the application of the standard of truth which I have identified.   That is not the same approach as that which the criminal court is obliged to undertake, and the distinction between the two is dealt with in the case of Re:U (Serious injury:Standard of Proof);Re B [2004] 2 FLR 263 in the extracts from the judgment of the then President of the Family Division which reads as follows:-
<< 22.  In family proceedings the procedures and the rules of evidence are different from criminal trials.   In the first place the material available to the court is likely to be much more extensive than would be admitted in a criminal trial.   In the second place the standard of proof to be applied before reaching a conclusion adverse to the parent or carer is …. also different.>>
and 
<< 25.  Contrast the role of the judge conducting the trial of a preliminary issue in care proceedings.    The trial {a reference of course to the trial in the Children Act proceedings} is necessary not to establish adult guilt, nor to provide an adult with the opportunity to clear his name …>>

21.   Finally, whilst it is important whenever possible for the court following a hearing of this kind to identify a perpetrator, indeed as was made plain in Re B it is the duty of the court so to do,  it is also clear from the same authority that it should not be assumed that it is an exceptional case in which it is not possible to make such an identification.    The court is accordingly discouraged from straining to identify a perpetrator as confirmed in the judgment of Lord Justice Wall in the case of Re: D (Care Proceedings : Preliminary Hearings) [2009] 2FLR 668.    A finding by which an actual perpetrator is identified from the pool should only be made where the evidence supports such a finding on the balance of probability. 

22.   These are the legal principles against which I embark upon my review of the evidence.

23.    My starting point is the medical evidence.    This falls into two categories.   The evidence which was prepared as a part of the clinical process which followed upon C’s reception and admission into hospital on the 19th December, 2013, and that which flows from it, which has been disclosed into these proceedings.     This includes a report prepared by Dr Brennan Wilson Consultant Paediatric Radiologist dated 26th February 2014 (E 10 - 12), and a report from Professor MZ Mughal Consultant in Paediatric Bone Disorders dated 4th March 2014.    Within these proceedings certain questions were asked of Dr Wilson upon the content of his report and his responses are set out in his letter dated 11th April 2014 (E 37 – 39).    Secondly, there is the expert evidence of Dr Kathryn Ward to which I have already referred.       In so far as expert evidence is concerned,   I believe that I can summarise my approach to this important part of the case as being that cogent expert evidence carries considerable weight but it is only a part of the evidence which the court is called upon to consider in attempting to arrive at a proper conclusion, and a balance must accordingly be maintained between the expert evidence and all of the other evidence in the case.     Thus in a case in which the court is presented with reliable evidence which might conflict with expert evidence, the court has appropriate discretion, for good reason, to reject the expert evidence.    This is not such a case.    The expert evidence is not challenged on any coherent basis by evidence which is at all convincing for the reasons I shall identify and, in fairness, none of the parties, by which I include specifically the Mother and DL, sought to place it in dispute.    That being so I accept the expert medical testimony of Dr Ward, a highly respected and experienced expert in her field, and it is convenient to refer to her findings as an analysis and distillation of the medical evidence in this case.
           23.1   Dr Ward states in clear terms at p.E 125 when dealing with the report prepared by Dr Brennan Wilson that she defers to Dr Wilson in the dating of the fractures .   I turn to his report first before analysing the findings made by Dr Ward.   The relevant extracts are to be found at p.p E 10 and 11 and they read as follows:
<< 4. There is a fine supracondylar fracture of the distal end of the humerus with marked surrounding oedama but no evidence of healing.    This implies that the fracture is less than 7 – 10 days ols.    The timing would be consistent with the timing of the incident reported by mother.   See below for the  likely mechanism.    This fracture is not mentioned in any of the documentation from Dr Iqbal or Dr Nicholls available to me.
        5.   There is a fracture of the distal diaphyseal-metaphyseal junction of the right radius .   It shows fairly well developed periosteal reaction, indicating that the fracture is roughly between about 10 and about 21 days old.
        6.     Note that the dating of fractures by radiographs should be taken as a rough guide only.  In particular, individual dates near the ends of the ranges proposed cannot usually be ruled in or out with any certainty.     The estimation of dates depends to some extent upon the personal experience and expertise of the observer , and this can lead to minor variations between observers.
         7.    The fractured radius shows partial sclerosis along the fracture surfaces and secondary fracture of the calcified periosteum.     These latter are signs that the fracture has been left unfixed since it occurred
Skeletal survey 20 December, 2014 (sic)
         8.     There is a partially healed greenstick fracture of the distal diaphyseal-metaphyseal junction of the left radius with some forward angulation showing well developed perosteal reaction.     The age of this fracture is not distinguishable from that of the fracture of the right radius.
         9.     There is a faint sclerotic line running across the upper diaphyseal-metaphyseal junction of the left tibia.   No periosteal reaction is visible.    This is a sign of an old almost completely healed fracture.    However, it has now become so faint that it is impossible to tell what the nature of the original fracture was.  It is certainly older than the injuries to the radii.
      10.       The view of the right wrist and hand shows that there is a fracture of the distal end of the right ulna.    This may involve the growth plate and it shows a little periosteal reaction.    This fracture may be the same age as the fracture of the adjacent right radius, or it may be younger.    On balance it is likely that they occurred at the same time as each other.
       11.      There is a torus fracture of the upper diphyseal-metaphyseal junction of the right tibia with some sclerosis in the surrounding bone and faint periosteal reaction over the fracture and running down the shaft of the tibia.    This periosteal reaction appears to be less well developed than is seen in the radii, suggesting that the fracture is intermediate in age between the radii and the supraconylar fractures.
       12.       There is a possible fracture of the right ninth costochondral junction visible on the AP chest photograph and faintly on the abdominal radiograph.    It is not visible on the views of the right ribs.     On a balance of probabilities we think it is present.     This fracture, if present, is not completely fresh, but otherwise its age cannot be determined with accuracy.    Unfortunately too much time has passed for following up radiographs to be of any use.
           13.       No abnormality is seen in the spine.     The thoracic spine has not been examined.
           14.       There are no abnormal wormian bones or other evidence of metabolic bone disease such as osteogenesis imperfecta or rickets. >>  

           23.2    Dr Ward deals with the medical approach to the presentation of a child with bony injury or injuries pursuant to a published work by Kemp et al entitled ‘Patterns of Skeletal Fractures in Child Abuse’ before analysing the particulars of C’s presentation.   It is an important passage which commences at p.E 138
<<  Physical abuse should be considered in the differential diagnosis when an infant under eighteen months presents with a fracture in the absence of an overt history of important trauma or a known medical condition that predisposes to bone fragility.
         Comment:  Although the presenting fracture in C was associated with a history of a fall, he was found to have multiple fractures for which no medical attention had been sought and for which no specific history of injury was offered at the time of presentation
        Multiple fractures are more common after physical abuse than after non abusive traumatic injury
          Comment:  C was found to have multiple fractures, increasing the concerns regarding non accidental injury.
          A child with multiple rib fractures has a 7 in 10 chance of having been abused
          Multiple rib fractures are more common in abuse tan non-abuse
          Comment: C had a single rib fracture
          A child with a femoral fracture has a 1 in 3 to 4 chance of being abused
          Femoral fractures resulting from abuse are more commonly seen in children who are not yet walking
          Comment: C did not have femoral fractures
          A child aged under three with a humeral fracture has a 1 in 2 chance of having been abused
          Comment: C had a humeral fracture at the time of presentation on 19th December
          Mid shaft fractures of the humerus are more common in abuse than non abuse , whereas supracondylar fractures are more likely to have non abusive cause
          Comment: The humeral fracture in C was supracondylar although supracondykar fractures in children of this age are uncommon.
An infant or toddler with a skull fracture has a one in three chance of having been abused.
Fractures resulting from abuse have been described in virtually every bone in the body.
Kemp emphasised that, in the absence of an overt cause of a fracture, child abuse should be considered and investigated.  However, no fracture on its own can be used to diagnose child abuse .    She emphasised that fractures from child abuse are significantly more common in children under eighteen months of age than in older children >>  

23.3    Dealing with the acute supracondular fracture of the right humerus Dr Ward opined as follows:
<< Although this was a fine fracture, I would expect there to be pain and distress at the time of the injury and loss of movement in the arm.    A child would cry for a period of minutes and would settle.   Swelling and/or bruising would develop over  period of hours .   The limb would continue to be painful on movement; for example, during dressing and bathing…………………….
In this case, C presented with pain following an injury.    Mum said that she noticed swelling to the right elbow and C was not using his right arm.    However, Sam Taylor, who examined C , said that he was moving all limbs freely and none of the clinicians who subsequently examined C noted a lack of movement.    The pain, swelling and bruising were all consistent with a recent injury.   Loss of movement may have been transient given that this was a fine fracture.    Having considered the history carefully, I accept Dr Wilson’s view that it is unusual to see a supracondylar fracture in a child of this age.    However, in my opinion, it is possible that this was the result of a fall from the stairs, as the mother describes. 

23.4    In respect of the fractures to the distal Right Radius and distal Right Ulna Dr Ward made the following observations:
<< Fractures of the forearm can occur near the wrist at the distal end of the bone, as in this case.     Fractures of the radius and ulna are extremely common extremity injuries in abused children.    Their frequency reflects the use of the forearms as handles for yanking, pulling or shaking.    Forearm injuries are most frequently paired fractures of the radius and ulna , are found in the distal one third of the shaft and tend to be transverse…………………….The fractures of both the radius and ulna together may result from a fall onto an outstretched hand but injuries can also occur as a result of a direct blow or abusive injuries as described above – particularly common in children younger than three years of age when there are inconsistencies in the history.
At the time of C’s presentation on 19th December  mother was unable to give any history of a memorable event which would account for fractures of the right radfius and ulna and was unable to give any history of a sudden painful event or loss of function.    Relevant points which lead to consideration of non accidental injury include the following:
•	Fractures are sudden , painful and lead to immediate loss of function
•	Children do not continue to walk or play normally with a fracture, although, in abuse, fractures may be ignored
•	Pain is at a maximum at the beginning and swelling, bleeding and bruising take a while to develop in full.    As these develop, pain may lessen
•	Many fractures show no bruising
•	As many of the fractures in abused children involved areas of bone dislodged from the main shaft or incomplete breaks all of the classic signs of fractures are not always present.    Loss of function is an important sign of a recent fracture.    Once healing is underway, there may be no clinical signs of fracture detectable but radiology will reveal the old injury.    In abuse, this is especially important because fractures of different ages may be evident on the skeletal survey.
The fractures to the right wrist will have been acutely painful at the time of injury and C will have cried in pain for a period of minutes, possibly up to half an hour.    This will have been followed by a lack of movement and gradual development of swelling (subtle swelling of the right wrist was still apparent at the time of his presentation on the 19th December 2013).    A carer who was not present at the time of injury should have noticed that there was pain and discomfort on moving the arm such as during dressing and should have noticed swelling and loss of function of the arm. >>

23.5     Dr Ward dealt with the fracture to the left wrist as follows:
<<  Dr Nagaraju described a near completely healed fracture at the distal part of the left radius with subtle contour re-modelling changes.    Dr Wilson described a partially healed greenstick fracture of the distal diaphyseal metaphyseal junction of the left radius,
A greenstick fracture extends through a portion of bone causing it to bend on the other side.
The radiologists are in general agreement in respect of the injuries to both wrists.    As with the injury to the right wrist, there was no history of a memorable incident to account for this fracture and the mother gave no history of pain, loss of movement, swelling or external signs of injury.    Anyone present at the time of injury would have been aware that C was injured as he would have cried for a period of minutes and, subsequently, there will have been pain on movement , swelling and reduced movement.     Anyone who was not present at the time of injury should have noticed these signs of injury.
The lack of history, failure to seek medical advice and failure to acknowledge signs of injury are all consistent with non-accidental injury in respect of the injuries to the distal forearms. >>  

23 6     The injuries to both of C’s lower limbs are dealt with by Dr Ward in the following extract from her report
<<  Dr Wilson described a faint sceloric line running across the upper diaphyseal metaphyseal junction of the left tibia (sign of an old, almost completely healed, fracture) and a torus fracture of the upper diaphyseal metaphyseal junction of the right tibia.     The ;left tibial injury was felt to be polder than the injuries to the radii and the right tibial injury was felt to be intermediate in age between the radial and supracondylar fractures i.e. more recent than the injury to the left tibia.    These were therefore likely to have occurred at different times,
Tibial toddler fractures are non displaced spiral fractures classically due to trivial or innocuous injuries in ambulatory infants and young children that are frequently unobserved.    However, these fractures were not innocent toddler fractures as toddler fractures are typically fractures in the shaft of the tibia.    In this case the fractures were in the proximal (knee) end of the tibia.    Tibial fractures are the third most common extremity injury in abused children…….Most inflicted tibial fractures occur in the distal metaphysis., less frequently in the proximal metaphysis and only occasionally in the diaphysis.
These fractures may result from a direct blow or traction/yanking of the leg.
These fractures would have caused pain immediately after injury and C would have cried for a period of minutes, gradually settling.    It is likely that there will have been reduction of movement of the affected limb and there will have been pain r discomfort on handling the limb such as in dressing or bathing.    Swelling may or may not have been present.    A carer who was present at the time of the injury will have been aware that the child was hurt.   A carer who was not present should have noticed the pain on handling of the limb, reduced movement and swelling, if present. >>
23.7     The fracture to the rib is reported on as follows:
<<   Up to 27% of all abusive skeletal injuries are rib fractures……. Rib fractures are rarely, if ever, the result of minor accidental trauma in otherwise healthy infants and children because of the compliance and mobility of the thoracic cage in childhood which normally prevents rib fractures in situations other than road traffic accidents or major accidental trauma………….
Lateral and anterior rib fractures may result from direct blows but are more usually caused by forceful compression of the rib cage.    The inner surface of the rib buckles and the outer surface may break in a manner similar to that of a greenstick fracture of a long bone…………
Review of the literature reveals that rib fractures are unlikely to be related to minor accidental injury.    This fracture was likely to be related to a direct blow or to forceful compression of the rib cage.    Mother gave no history of a memorable incident to account for this rib fracture.   Anyone present at the time of the injury will have been aware that C was injured by reason of the nature of the mechanism of the injury and the child’s response.    The injury will have been immediately painful and will have resulted in crying for a period of minutes  possibly up to thirty minutes.    However, since rib fractures are rarely associated with fracture or external signs of injury and are often not obviously painful once the child ahs settled a carer who was not present at the time of injury may have been unaware of the rib fracture.    C may well have been irritable especially on handling but pain may not have been localised.   Therefore irritability and discomfort may have been attributed to other minor problems such as teething, colic or a non specific infection. >>
 
23.8    At the end of these passages Dr Ward concludes 
 <<   Having considered the constellation of unexplained occult injuries in this child, I agree with the treating paediatricians that the picture was highly suggestive of a child who had been subjected to repeated non-accidental injury.>>

23.9       I have set out the way in which I propose to treat the medical expert evidence.   The passages to which I have referred, which contain careful analysis and justification are echoed throughout Dr Ward’s report.    Her report has not been challenged.    There is no evidential basis upon which the court could seek to displace the conclusions which are reached within it and, accordingly they have informed the findings which I will make in this case. 

24.    In the course of the hearing I heard live evidence from the Mother, DL and the Maternal Grandmother.    I was able to listen carefully to what each of them had to say, to observe their demeanour when giving evidence, and to evaluate by reference to the criteria to which I have already referred the quality of that evidence and thus the weight which I should give to it.    I have made due allowance within that process for the seriousness of these proceedings, the non-familiarity of the parties with the process itself and the significant consequence  which the determination of the issues before the court may bring.    I have borne in mind that neither the giving of the evidence, nor the evaluation of it, are steps to be taken lightly, and therefore when I have reached my conclusions about a witness, and thus the weight to be attached to the evidence given to the court, I have done so only after careful consideration.

25.    I have particularly had regard to the position of DL.    At the appropriate stage in the proceedings he was given the opportunity to intervene.    He purported to do so and caused attendance to be made on his behalf at the Issues Resolution Hearing in September.    Thereafter, however, he failed to co-operate with the Solictors whom he had instructed and disengaged from the proceedings.    At a very late stage the Local Authority issued a witness summons compelling his attendance at the hearing to give evidence.    That step had been left so late that the element of compulsion could easily have been lost, but nevertheless DL did attend.    He was re-constituted as an Intervenor to give him the best possibility of engaging in the court process.    Other than to enter the witness box and give evidence, as to which I comment later, he took no part in the final hearing.    It seems to me that there is an extent to which these handicaps, albeit self inflicted, ought to be recognised by the court, in particular that he did not enjoy the benefit of legal representation at the hearing.

26.       I reach the point in my judgment at which I commence a review of  the evidence in order to reach my conclusions as to the findings which are possible in respect of the allegations contended for by the LA.       In this context it is necessary that I should comment on the quality of the evidence which I have read and heard  from the witnesses, other than expert witnesses, in the case.    The first point to be made is that the court, concerned as a priority with the welfare interests of the child, is entitled to expect the unqualified assistance of those called before it to give evidence to determine the truth of such matters by the tendering of evidence which is clear, honest and complete.   In some cases, of course, recollection is imperfect for understandable and legitimate reasons.   I have already pointed to the allowances which the court should make with regard to the stresses involved in being party to and giving evidence in court proceedings of this kind.    I have also directed myself with regard to the treatment of evidence which I regard as tainted or dishonestly given.

27.     There is no disguising that the evidence I received in this case from the mother and DL was very unsatisfactory.     I am able to record without reservation that I did not receive a truly honest account from either of them.     They are both young.     They are both manifestly immature and irresponsible.     The mother presented as wholly self absorbed, concerned only with an aspiration to be perceived by those around her as a good mother enjoying a perfect family situation, whereas the truth was very different.     I regret to say that she was far from a good mother to C.   However much she aspired to be so her character and  immaturity meant that she was ill equipped to achieve it.   She had a distorted view of what motherhood truly required of her, I think, so that there was repeated throughout her evidence a claim that she had been a good carer for C, most notably because she had breastfed him, and when realisation struck that the claim was an empty one she was visibly stricken by a sense of failure.    She was most certainly not in an ideal family situation.   However, she clearly perceived herself to be the victim rather than C.     She spent a considerable time in the witness box undergoing cross examination, but it was undertaken sensitively by all of the advocates in the case.     Notwithstanding, the mother broke down in tears at regular intervals.      It was suggested in submission on behalf of the Local Authority and the father respectively that the mother’s distress was not entirely genuine.     As to whether it was all artifice I do not venture a view, but I was certainly left with the impression that at no point was it obviously attributable to distress at the plight of the child as opposed to what she perceived to be the iniquity of her own position.     There were inconsistencies in her evidence as between the written versions and her live testimony and, within the latter, differing accounts of the detail of the same incidents were offered up which she made no attempt to explain or justify.    It appeared to be recognised by all concerned that the mother’s approach to giving evidence was not a frank and open one.    The court is left to speculate precisely what it was she was seeking to avoid confronting.    The most charitable interpretation would be that it was the admission of failure on her own part.

28.      In contrast, DL was entirely open in presenting as a witness who was prepared only to do the bare minimum in terms of rendering any assistance to the court.     Again, he is a young man and he is evidently very immature and completely lacking in any moral compass.     He did not for a moment seek to disguise it.     If he wanted to avoid answering a question he simply claimed that he had no recollection, and he affected that it had all happened too long ago for his powers of recall.    For one so young and apparently streetwise it seemed to the court that his abilitiy in that regard was considerably more than usually impaired.    I regarded it as absurdly so given the importance of these matters.   However, I did not form the impression that his obfuscation was purely self serving.    Indeed he made unnecessary concessions which were to his prejudice rather than to his advantage.     For example, he divulged a very serious and financially costly drug habit without any obvious sense of diffidence.   His demeanour betrayed only that he did not really care about, and had no obvious appreciation of, the importance of these proceedings in the life of the little boy with whom the court is concerned.

29.    The court was invited in submission to find that the Mother and DL were colluding together to deceive and mislead the court.    There is evidence before the court that there was some connivance between them  immediately after C was admitted into hospital as I have recorded.    There is no evidence that this collusion was sustained.     Each of them, for their own reasons, about which the court can only speculate, set out to be dishonest with the court, and that is reflected in the findings which I will make on the evidence which I have accepted.

30.     By contrast I found the maternal grandmother an honest and genuine witness.    At the earliest possible stage I made it plain that the court would make no adverse finding against her.   Indeed my conclusion was that she had been subjected by her daughter to extraordinarily intimidating behaviour and provocation at various times, recorded in the exchanges between them, which must have been a miserable experience for her.    Additionally, these proceedings must have caused her a great deal of distress and anxiety.    Yet she rose above it and she attempted to  give evidence which was as measured as possible so as not to overtly undermine the mother, but through which she conveyed her own concerns as to the veracity of the accounts which the court was receiving from the mother and DL.    If her evidence was not particularly helpful in identifying what befell C, I was satisfied it was because she had no direct knowledge that she could share with the court about it.    Importantly, however, her evidence enabled the court to form a more favourable impression of her than that which might readily have been assumed on the face of the papers in the case.

31.     Although there is no clear medical evidence to suggest that C sustained any identified injury at the time, it is appropriate to commence the review of the evidence with the events of the 7th November 2013.    They are heralded by a dialogue which took place between the mother and the maternal grandmother on that date over Facebook.    The transcript appears at p.C 82.    It commences at 12:02 p.m. when maternal grandmother messaged to say that she was proposing to call over that afternoon, and enquired about C.   At 14:57 mother responded to say she was going out, but made no reference to C.    At 20:47 mother sent a message containing the following:
             “I need you, Mum.  I don’t know what’s up with C”
Maternal grandmother responded immediately:
                                    “What’s up with C?”
Again, immediately, the mother replied:
            “His arm is all red and he’s not eating well at all.   
              Im scared Mum.    I promise I’ve not hurt him.   
              I would never do that!!  Never.”
Maternal grandmother immediately suggested that mother should take C to Blackburn hospital but at 20:51 mother responded in the following terms:
            “Social Services are gonna get involved!!   They might take him away from me mum.    Please I need you.   I’ve got six quid please can you get a taxi over.”
One  possible and legitimate interpretation to be put on this passage of dialogue is that the mother was very concerned about C, that her concern emanated from some event that she considered would excite significant criticism from the Social Services if it was revealed to them, and that she was desperate for reassurance from her mother.

32.    The mother first deals with the events leading up to this incident in her first statement at p.C 44.    She identified the incident she alleged to have occurred in circumstances in which C fell from his high chair.    It is not entirely clear, but it appears that it was lunch time, by reference to her cooking ‘dinner’ which she had made that morning.    If that is correct then it is safe to assume that this event, if it occurred, took place prior to the call from the mother enquiring about C at around noon.   There was no mention of it by way of response to the enquiry, however.    The mother states that as she was cooking the meal she observed C standing in the high chair.    He then fell on to his front.   She picked him up but he appeared to have suffered no harm and was laughing.    She placed him back in the high chair and he ate all of his meal, was breast fed and had a yoghurt .     After his meal mother claims in her statement that she gave him a bath and noticed two red marks on C’s knees but he wasn’t in any discomfort and he was clambering about as he always did.      There is no reference to an injury to C’s arm, and there are positive assertions that he was unharmed and had eaten well.    This clearly conflicts with the content of the Facebook dialogue.

33.    Mother dealt  with these matters in any detail on three occasions in her live evidence.   In answer to her own counsel she said that what had prompted the message to her mother was that at tea time C was not feeding properly.   He just spat out his food.    He would not take breast milk either.    He was more whingey than normal and so she had given him Calpol.    DL was not in the house and she was with C on the sofa and she noticed a red mark on his arm, like a blotch.   She had an inkling that it had something to do with the fall which had occurred the day before, though this appeared to refer to the fall from the high chair which according to her previous evidence had happened the same day, the 7th November.   When she had lifted him up, she said, he had appeared to be in pain, and she thought it was the left arm which troubled him.   She had been scared there was something wrong and had called her mother because she wanted her to ‘double check that there were no issues with him’.     The maternal grandmother, as she confirmed in her evidence, confirmed that C was alright.    She had not mentioned the fall which, again, she suggested had been on the previous day.

34.    Under cross examination from the Local Authority the account changed, and reverted to an incident on the 7th November.    Mother described what occurred in the following way.      She had strapped C into the high chair round the waist and between the legs, but it wasn’t tight.    There was room to get up.  C was standing up facing backwards.    He ‘came out’ and landed on all fours.   ‘He was on his backside’, she said, then ‘he was on his side, I think.’    Then she described how ‘he leant over and fell on to the floor.    He was crying but not overly distressed.
To add to the confusion mother dealt with the alleged event on the 7th November again when asked to do so by counsel for the father.    She said that she had thought there was something wrong with C’s arm which she had noticed when she was dressing him in the morning and he had whinged.    She stated that nothing untoward had happened on the 6th November, contradicting the version first given in live evidence and made no mention at this point of the fall from the high chair.

35.     As to the 7th November, contrary to what the mother said in her evidence DL stated that he was present at the house, lying in bed because he was tired when he had heard a bang from downstairs .    He had gone downstairs to investigate what had occurred and mother was standing by the high chair with C who was upset, and she was comforting him.    She had explained that C had fallen out of the high chair, though he said that he couldn’t see how that could have happened.   He also said that he had seen a friction burn on C’s head, though he later acknowledged that he could have been mistaken about that, but that nothing had been said about C having a sore arm.

36.    In the light of the mother’s evidence, and the  interpretation of the dialogue between mother and maternal grandmother the evidence of the maternal grandmother as to what occurred when she went round on the 7th November, which I accept  renders the whole episode bizarre.    She had been obliged to get up out of bed and drive round in her pyjamas from which can be inferred that she had assumed there was some urgency.    Far from it, it seems.   On arrival she found mother and C together in their living room and mother was feeding C.   Maternal grandmother did not recall any mention of a fall by the mother, and certainly no mention of a fall from the high chair, but thought that mother had referred to C’s arm as being a matter of concern and so she had played a game of ‘So Big’, encouraging C to move his arms, which had caused C no difficulty   It had made him laugh.   He was not in discomfort.    She had been 100% sure that C was OK and she had left.

37.    The mother’s evidence with regard to the alleged fall from the high chair is so obviously full of discrepancies, and her accounts self contradictory that immediate doubt is raised as to whether it occurred at all.    Add to this the extraordinary and highly improbable mechanism of the fall as described by the mother, in particular the escape from the confinement of the high chair straps, and the assertion that C was standing up backwards on the chair, which would have required C to stand and turn in a very confined situation, and a fall which places him alighting on to his hands and knees on the ground and it seems highly improbable that it did in fact occur.     In arriving at that conclusion I am reinforced by the needless conflict between the evidence of the mother and DL as to whether he was present in the house or not .    The most obvious explanation for that seems to me to be that the whole account is a fabrication, and I am drawn to the conclusion that it was a smokescreen for some other event which occurred on that day which excited concern in the mother and which caused her to seek reassurance from the maternal grandmother, which quite innocently she gave.     

38.     Whatever actually took place it is not obviously within the time frame set by the medical evidence in so far as the court can rely on it for an accurate timing of the infliction of injuries.     It is possible that the oldest of the injuries, to the left leg, may have occurred then because the mother does refer to a leg injury in her first statement, but it would not be safe to make such a finding on the evidence in my view.    I confine myself therefore as regarding what occurred that day as being a harbinger of events of  which worse was to come.

39.      In much the same vein, the mother described an episode which occurred on the 10th November when she and DL had taken C to the park to feed the ducks.    What should have been a pleasant interlude was marred by an incident in which DL appeared to have recklessly raised the pram to an unsafe height with C either in it, or as mother was trying to remove him from or replace him into it.    The evidence about this was very unclear from the mother.    DL did not deny that there had been such an episode .   Its resonance in these proceedings can only be that it illustrates that C was in an environment in which harm might easily befall him, but there is no evidence at all of any injury on that date.   This event is reported in the Facebook dialogue between mother and maternal grandmother at p. C 86.

40.     At p. C 88 there is a transcript of a further conversation over Facebook between mother and maternal grandmother in which the mother reports a violent incident which took place on the 14th November.    The whole of that dialogue and that which took place on the 10th November  points to a highly volatile atmosphere within the home in which violence and threatened violence were clearly evident.     Whilst the mother states graphically the effect this is having on her, the effects on C do not appear to feature as her priority.    It is plain to the court that this was a deeply unsatisfactory and unsafe environment for a young child.

41.     The mother, both in her written evidence and her live evidence, sought to identify the physical threat posed by DL,  and that she was suffering at his hands in a highly  abusive relationship.    It is not entirely clear to me that this was  the case.     It is readily apparent that DL’s approach to his association with the mother was an intolerable one and by September 2013 it seems to be clear that, other than as a matter of convenience, he had little or no interest in it as any kind of serious relationship to which he was at all committed. Nevertheless,  the mother’s claims that she was controlled appeared to evaporate under close scrutiny.    The example she chose to illustrate the control which she said DL sought to exert was by reference to his forbidding her the use of a mobile phone.    Again her evidence was deeply unsatisfactory as to when precisely she was without a phone,  and how it came about.     The version which DL gave, involving a heated argument and lost temper, was more credible as to how her original phone became damaged and/or lost.     It reflected no credit on him, of course, but it was not illustrative of any sort of control process.      Moreover, the Facebook entries reveal the mother to be anything but a character who could be easily subjugated.     She claimed to be able to “give as good as she gets”.     In this connection the Court entertained particular concern as to the content of the Facebook entries which were disclosed late in the day by the mother and are now included in the bundle at C 97 a – e.    The content is shocking.    It has no strict relevance to the issues before this court save that it reveals much about the mother’s character which is at odds with the picture she seeks to present to the court.   The mother characterises herself as ‘feisty’, laying claim to the label with some pride.    I regret that my impression of her from these and other entries on Facebook which the court was required to consider is that, at any rate at that time in her life, far from being feisty in any laudable way. she behaved like a stroppy, selfish and spoilt adolescent.     Her treatment of her own mother was manipulative and self seeking without any apparent regard for her and the support which she had tried to proffer.    The threats which she uttered with regard to, or directed at others, employed the language and disposition of a playground bully.    They appeared to cause her no real remorse when she was cross examined about these issues, only an occasional request to be excused for using execrable language.   As a juvenile she was convicted of two offences involving violence.    Taking into account these matters, I reject her self serving claim that she was ‘controlled’, though I have no doubt that she was used and abused by DL.    The explanation for her naïve justification of the relationship with DL to her own mother, Social Services, the Police and others and her willingness to revive the flagging relationship between them in late January (C 122) lies not in control exerted by DL – I am satisfied that he had no wish or reason to do so - but in her aspiration to appear to the outside world as having created a happy family in which she was a perfect mother quite beyond reproach.     It was fantasy.   The manner in which the Facebook entries I have referred to in this section of the judgment, and others, were revealed is also a matter which must excite comment.     The explanation for the piecemeal way in which they were revealed – that they were thought by mother to be irrelevant, or that some may have been misplaced in the process of transcription – was not a convincing one.    They contain damaging material, as I have found, and I am forced to conclude that the mother did not want the court or any one else to see them.

42.     I am keenly aware that this is a stark depiction of the mother, and that she may well be devastated by it.    For that reason, at this point in the judgment I seek to emphasise what I hope has been apparent in the inevitable criticism of her which the court must make, which is that she was very young at the time these events occurred, and entirely unfitted by her life experience at that time to the role of parenthood.     She is still very young in years, but less so in experience, and the test for her will be what she learns from the extraordinary events which have given rise to these proceedings.     For my part I hope that she is able to recognise the criticisms and effect the changes in outlook which are demanded of her to enable her to make a success of motherhood at an appropriate time in the future when she can demonstrate her readiness for a parental role.

43.     An arrangement had been made to celebrate the mother’s birthday on the 9th December by going on a trip to Manchester to visit the shops and have lunch.    The party was to include the mother,  C and DL, the maternal grandmother and maternal great grandmother.    The day before, however, an event occurred which disrupted the plan.    On closer scrutiny it may have had more significance.     The events of that day are first raised by the mother in her third statement dated 10th June.     Given the potential significance of what is said to have occurred it is surprising that the report did not emerge until such a late stage, after explanations for C’s injuries had been invited for a period of 6 months, at a time when she had already tendered two statements clearly affording the opportunity to deal with the issue.

44.     On the 8th December, it appears that the mother had been busy preparing herself for the trip the following day and DL was detailed to take C out in his pram.    Mother says (Para 12, p.C 73) that he was gone for about an hour and on his return C was ‘uncontrollably distressed’ to the point that she had not seen anything like it before.    She asked DL where he had been, how long C had been crying and why he had not brought him home sooner.    DL had given no satisfactory response.   Mother states (Para 13, p C73) that she got C straight out of his pram and wiped his face.   She described how C’s cheeks were red and he was dribbling;  his face was wet and he was full of snot.     She again asked DL what he had done and, again, he did not respond.     It is perhaps noteworthy that the mother asked the question in that form as opposed to allowing for the possibility that something other than an event of which DL was the agent could have occurred.    Mother fed C but it had taken mother 20 minutes to settle him at which point he had fallen asleep.

45.    At around 5.30 pm when C awoke from his sleep mother had bathed him and she noticed that C had red marks on his leg and on his side and it looked like he had been grabbed    There was a little red mark on one of his sides, probably the right.    She stated (Para 14. p C3) that she challenged DL, who was smoking cannabis in the back yard by that time, in robust terms, and he told her to ‘chill out’ and ‘have a drag of his joint’.    He told her that he had just put C in his pram, and she had said that ‘marks like that don’t just come from putting a child in the pram’.    To her regret, she stated, she had not taken the matter any further because DL was becoming agitated.      

46.    Given the tardiness of the raising of this part of the story the Court might reasonably expect to be given a full and accurate account of what occurred, albeit that it might be developed in live evidence.     In fact there were material inconsistencies in mother’s live evidence as it unfolded.     In answer to her own counsel she reported that C had been unsettled before DL had taken him out, and that on return he was ‘in hysterics’, though she then tempered this to ‘still crying’ thus linking it to C’s presentation before he had been taken off by DL.    She said that C looked like he had been crying for a while on his return.    Albeit that the court is straining for nuances, this is a lesser description of C’s presentation to that imparted in the written evidence.     Mother took off C’s jacket, hat and gloves and he was still crying and would not permit her to feed him.   Although he had eventually settled he did not respond to her attempts to breast feed him.    At that point she said that DL had left the house as she asked him about red marks on C’s face.   This is the first mention of such marks.    DL had left the house evidently enraged.
47.      She told the court that she had then bathed C and he had cried when she took him out of the bath.    He was whingeing, but that was a regular occurrence.     C did not sleep well that night.    He kept wakening and crying, and mother had been up all night with him, she said.    The following morning he was out of sorts, still whimpering and whingeing, and he was not eating.    He would not take breast milk.    Cross examined later on behalf of the  Local Authority mother described C as ‘upset’ when he returned, and pressed again on behalf of the father she said that he was ‘especially distressed’.   During the course of this cross examination  she agreed with  father’s counsel that ‘deep down she had thought that he (a reference to DL) might have done something to C.  I didn’t know 100% but it was in  my head’.
48.    She was also asked on behalf of father about the mark on C’s face.      First she said that she did not know whether it had been there when C had returned but, over the short adjournment which intervened, it appeared that she had been able to recollect that the mark was there, and she had challenged DL about it, and he had then left.    Unsurprisingly, the mother was re-examined about this aspect of her evidence.    She did not repeat that she had noticed or mentioned the mark on C’s face but had asked DL why C was crying.     She said that she had asked DL about ‘the marks’  when she had come downstairs.    The marks were on C’s upper leg.    They were ‘not bright red, quite pale’ and ‘there were a few’.    There was a mark on his side and a red mark on his lip.   
Asked on behalf of C why she had not prior to her live evidence mentioned the mark on C’s lip, mother said that it was because she had thought that it was a cold sore.    She also confirmed her later view that it was in fact an injury.

49.       In the late afternoon of that day and in the early hours of the following morning, during which C’s presentation, as described by mother, must have been concerning if not distressing, mother and maternal grandmother were again in contact over Facebook.    There is no mention by the mother of any concern or anxiety with regard to C.   I find this extraordinary when put into context by the recourse which mother had to the maternal grandmother on the 7th November.     At 08.23 a.m. on the 9th December the mother sent a message to the maternal grandmother in the following terms:
 ‘ok no worries and please can u bring me some foundation.   I’ve just put my extensions in  C’s having a bath and then we are ready’.     Quite extraordinarily the mother described C’s presentation to the court on that same morning as being that he was ‘…….. out of sorts.   Still whimpering and whingeing.   Didn’t eat hardly anything.   Managed to get him on to my breast’.    Taken in conjunction with the message to the maternal grandmother this description seems  incongruous and I cannot reconcile them.

50.     For what the evidence is worth, DL confirmed that he had taken C out in his pram, that he had been crying and so they had returned.   C had obviously needed something and DL had assumed it was a feed .   He had seemed upset and was screaming ‘crying his eyes out’.    The mother had challenged him ‘in strong terms’, but he denied being asked about any marks. and he had left.      Under cross examination on behalf of the mother he conceded that he had been asked about the marks and he had ‘got mad and walked out’.   He denied that he had caused them and he had not gripped C too hard.   C had not had the mark ( a reference I assumed to the mark on the face) when they had left, but it had been there on their return, but he had no explanation for it.
51.    Maternal grandmother told the court that the following day, the birthday visit to the Trafford Centre in Manchester which DL did not in fact attend, C had not seemed himself.   He was very unsettled and whingier than usual.   His cheeks were red and he had a snotty nose.   She had noticed a mark on C’s lip and asked mother about it.   She had said it was a cold sore.    A photograph of C  was taken on the day and it was introduced into the evidence and added to the bundle at C 191.    The mark is clearly evident, but there is no clear evidence as to its actual origin.   Maternal grandmother thought that C looked unwell and full of a cold.    C had not eaten well at lunchtime and maternal grandmother said that she had told the mother to take him to the doctor’s if he didn’t improve.    As to DL’s absence it appeared to be of no great moment to maternal grandmother, but she described mother as having ‘a face like thunder’, and she had confirmed that she and DL had been arguing. 
52.    Given the obvious inconsistencies in all of this evidence it is difficult to determine what conclusions can appropriately be drawn.    It is entirely possible to infer that there was a significant event which took place on the 8th December.    There was clearly a heated altercation between mother and DL in C’s presence.   I find that C was in a distressed state when he was returned home by DL.    Given that mother herself states that she examined him thoroughly and, apart from the red marks, found no evidence, for example of obvious associated pain or restricted movement, to indicate any significant injury, and that there were no clear signs of any such injury the following day observed by maternal grandmother, I cannot safely find that there was the infliction of any of the subject injuries on the 7th or 8th December nor identify any circumstances in which any such injury might have been sustained .  
53.    I now move on to address the events of the 19th December which were the catalyst in bringing C to the attention of the authorities so as to ultimately prompt the institution of these proceedings.    It is first dealt with within these proceedings at Para 5 c iv of the mother’s first statement at C 45.   In her live evidence the mother gave three accounts of this incident, first to her own counsel, then in answer to the Local Authority’s counsel and finally to father’s counsel.     Whilst it was submitted to me that there were inconsistencies in respect of these accounts as to the actual mechanism of the fall, I could find no obvious or material deviation such as to cause me to find that it is obviously untrue.    The circumstances described by mother are of course revealing of the standard of care and safety in the home, but I do not find, as it is submitted to me I should, that the evidence as to the fall is so unlikely, inconsistent or self contradictory that I should dismiss it.     Neither do I regard it as safe to identify any linkage between this episode and the inferences which can be drawn about the alleged other incidents so as to arrive at a conclusion that it forms part of a pattern.     My reason for this view is that there is an obvious and important distinction which is that the mother appears on the face of it to have acted immediately to secure help and to access medical help.    Whether or not she took the most appropriate action to ensure speedy assistance, in the light of a finding I shall make as to another aspect of this episode, is not something which has been placed before me.     Accordingly I find that the fall from the stairs did occur in the way in which mother described and that his reaction, that of crying ‘as she had never seen him cry before’  would be consistent with the sustaining of the injury to his right elbow.    Given the medical evidence does admit the possibility that this particular injury could have been caused by a fall of the type described, I cannot conclude that it was sustained by some other means and I make no such finding.   Save that it was the sustaining of this injury which gave rise to the trail of inquiry which resulted in the discovery of those other injuries, this conclusion has no bearing on my judgment with regard to the genesis of other injuries which C sustained.    I do not attach significance to the fact that mother suggested that C’s arm was broken, and purported to feel the bone sticking out.    She was either mistaken, or striving for effect, and it makes little or no difference which that I can discern.    It is certainly insufficient to enable me to conclude that the whole account is incredible.  

54.     Although I have said that there were no real or significant inconsistencies in the account of the fall, and such is the case, there is a conflict between the mother and DL as to whether or not he was present at the time that the incident occurred.     On balance I prefer the version offered by DL who said that he was present, albeit in a different room offering no view of the accident itself.      There is no obvious reason why, particularly given his evident reluctance to vouchsafe evidence in general, he should lie about his presence.     He gave a reasonably cogent rehearsal of his very limited appreciation of what occurred which coincided in the main with what mother had reported.     In the alternative, the mother’s suggestion that he was absent from the house and just happened to be walking along the footpath to the home at the time she exited, in a rush to the hospital lacks credibility.    Were it so, why did he then go into the house where he received facebook messages and answered them with information which was ostensibly germain and informed.    Why also was he still in the house when the message was sent on behalf of the mother by maternal grandmother in the early hours of the following morning.

55.     I confess that this part of the evidence has caused me  some concern because of the maternal grandmother’s part in what was clearly an attempt to deceive the Authorities.    I have already referred to the content of the message timed at 03.46 0n the 20th December.    Its purpose was to ensure that there was no trace of DL in the house for the authorities to see.    I am satisfied that the mother was responsible for it being sent in the sense that she prompted maternal grandmother to do it, but I cannot accept that the maternal grandmother could have been innocent to its purpose.    Nor do I take the view that it was in reality a suggestion that DL should tidy the house.    That is counter-intuitive.     DL in his evidence accepted that he ahd been taking drugs at the home on the day of the fall on the stairs.   It is entirely possible that mother was anxious that there should be no trace of any such activity when Social Services went round.    It is equally possible that mother feared that DL’s presence might affect her position in relation to benefit payments.    Whatever the reason, it was one calling for subterfuge, and the mother and DL were complicit in it.   On balance I am satisfied that it is not sufficient to displace the good opinion I have formed of maternal grandmother, by accepting that her motivation might have been simply to try to help her daughter, believing her to be an anxious and distressed parent, rather than entering deliberately into a conscious attempt at deception.    It is, however, a close call. 

56.     I was invited in submission to consider whether the mother as well as DL, who made no bones about it, consumed illicit drugs at the home.     The mother made no concession about it.    No formal finding to that effect is called for and accordingly I do not make it, but for the purpose of future assessment of the mother it is perhaps appropriate to observe that I could see no obvious reason why DL should make the allegation that mother had from time to time engaged in cannabis use with him at the home.

57.       The preceding paragraphs detail the evidential material which I have considered relevant and from which I am obliged to make findings with regard to the manner in which C sustained injuries and who inflicted them upon him.     Within the pool of potential perpetrators there are only two candidates who emerge from the application of the appropriate test which I have earlier identified.    They are the mother and DL.     For differing reasons, and with different objectives or motivation, they have each failed to discharge the duty to provide this court with an honest and frank account of what occurred, and  when and who was involved.     The medical evidence shows that it would be impossible for a perpetrator not to have known that injury had been inflicted, and also that a carer could not have been unaware by reason of the child’s presentation that he had been injured but I am satisfied for all of the reasons expressed in this judgment that the mother and DL have ensured that the truth will not be permitted to emerge.   Since I am unable to identify a perpetrator as between mother and DL, both remain in the pool of perpetration.    

58   I now turn to the Threshold Statement and Additional Findings in order to identify what findings can appropriately be made.     As I suggested when they re-emerge following this judgment in written form the threshold findings should be separated from the additional findings as discussed during the course of submissions. 
•	I am able pursuant to this judgment to find in accordance with  Paragraphs 3 a) to d) inclusive as drafted.
•	I find in accordance with the submission made on behalf of the father that Paragraph 3 e) might appropriately be amended to read:
“The mother failed to protect C by allowing the father to have contact with him contrary to an agreement with the Local Authority”
•	As there is no obvious injury which can be identified as having occurred on the 7th November, 2013 and the medical evidence does not assist me in this respect I do not make the finding set out at 3 f)
•	I modify the finding sought at 3 g) so that it shall read as follows:
“On the 19th December, 2013 C was presented at the Accrington Victoria Hospital  with a history from mother of having fallen from the second carpeted stair onto the first carpeted stair landing on his right elbow and face.    The following injuries were evident:
Sub paragraphs (i) – (iv) and the remainder of this paragraph as contended for. 
•	I find, having accepted the medical evidence in its entirety in accordance with Paragraph h) save for the deletion of the words  “which was sustained between 10th -13th December 2013” in sub paragraph (i)
•	I do not make the finding sought at Paragraph i)
•	I find in accordance with Paragraph j) save that the finding relates to Paragraph h)(ii) –(vi) thus excluding h)(i)
•	I find in accordance with Paragraph k) “save that the words referred to in Paragraph j) above” should be inserted
•	I modify the finding sought at Para l) by deletion of the words “As a result of collusion between the mother and DL…” and insertion of the following words after “…. identify which of the mother and DL [them] inflicted ….” and find accordingly
•	I find in accordance with Paragraph m)
•	I amend Paragraph n) by deleting the words “Both Mother and DL ……… police” and the insertion of the words “Both mother and DL have been dishonest and sought to deceive the Police, Local Authority Social Workers and the Court in order etc…….”  and find accordingly, making the alteration to identify that this finding extends to the injuries identified in Paragraph j).
•	I  amend Paragraph o) by deletion of the words “As part of this campaign…” and substitute “As part of the process of concealment…..”  and the insertion after the words “incomplete evidence”  the words “in the form of edited Facebook entries” and so find.
•	I amend Paragraph p) by deletion of the word “lied” and insertion of the words “failed to give a frank and honest account”
•	I find in accordance with Paragraphs q) to w) as asked.
•	I amend Paragraphs x) and y) by the insertion in each after the word “injuries” the additional words “ referred to in Paragraph k) “ and so find.

59.  Against those findings, which are incorporated in the Schedule which is appended to this judgment, I am able to conclude that the threshold  established by the test set out in S. 31(2) of the Act is passed and that such findings are supportive of the proposition that, taking into account both past and future risk, it would be proportionate to make a statutory order in this case in the event that such an outcome was to be pursued.
60.   I arrive at the point at which I must consider whether the LA’s planning for the future of this child/these children is to be approved by the court, or whether there is some other course which is open to me which offers the best outcome for C.    The Local Authority has set out its plan for C’s future in the final care Plan which is to be found at Page D14.  The proposal is for the making of a Special Guardianship Order in favour of JD pursuant to the provisions of s.14A Children Act 1989.   In support of this proposal the Local Authority has filed and served a Special Guardianship Report and a Special Guardianship Support Plan.   These two important documents which have been prepared by the key social worker are in the bundle at I1 and I 58 respectively.

61.    At the commencement of this hearing, most helpfully, it was confirmed by each of the parties through their counsel that respectively they were all in favour of the Local Authority’s plan for outcome.   It was confirmed in submissions as well that each of those members of C’s immediate family who are involved with matters before the court was also satisfied with the arrangements proposed by the Local Authority in respect of contact and that the court was not invited to make any orders with regard to that issue, as it is obliged to consider doing.     In fact, immediately prior to the delivery of judgment it became apparent that a misunderstanding had arisen, and the court is satisfied that the issue can be characterised in that way, between the maternal grandmother and the proposed Special Guardian, as to contact issues.  Helpful discussions took place at court and the misunderstanding was resolved.    It is a pleasing aspect to what is otherwise a sad case that there is such accord as to outcome in this case.   That will be an important message for C when he becomes acquainted, as doubtless he will, of the unfortunate start which he had in life.    I would like to observe that the position taken by mother, father and maternal grandmother in this respect does them all significant credit.    Each of them has paid tribute to JD and the impact which she has had in C’s life.    He was placed with her on January 2nd this year, and has remained with her and thrived in her care ever since.    Though not involved in the final hearing she has attended for the delivery of judgment and has, of course, a significant part to play in the context of outcome.

62.   The Childrens Guardian supports the LA’s proposal.    His recommendations appear in his Final Analysis and Recommendations dated 15th October, 2014.  (Pp E 341 348).    His support, which follows detailed analysis, is declared on the basis of full indorsement with but one caveat.    As part of the Local Authority’s care planning C is to be constituted a Child in Need so that the appropriate level of support and services to meet his needs can be put in place.    I have requested that as a preface to any order which follows this judgment there should be clearly recorded the parameters of the support and services which it is intended should be emplaced and the period for which C should enjoy Child in Need status.    My intention is that such recordings should be made available to the Manager of the Child in Need Plan and, of course, the Special Guardian.

63.   In addressing this question as to whether the LA plan is to be given the court’s seal of approval, I remind myself  that s.1 of the Act requires that the welfare of the child must be my paramount concern, and that in reaching my conclusion about it, I must pay proper regard to the welfare checklist  set out in the Act.    In this context,  the following elements of the checklist appear to me to be of particular significance:-
  {physical and emotional needs}
C has emerged from a period of time during which he has suffered severe physical injuries and during which he has lived in two households in which the adult relationships were capable of impacting deleteriously upon him.    All of the available evidence indicates that he has been able to put the injuries behind him without any long term sequella.   The same is true we can but hope in respect of any emotional harm which he suffered.   That this is so is in no small part due to the care he has received from JD, and the proiposed outcome ensures that such care will continue.
{the likely effect of change}
C has been in placement with the proposed Special Guardian for approximately 10 months and no change is envisaged by reason of the order which it is proposed the court should make.   For the reasons I have expressed already I regard that as critically important.
 {any harm which has been suffered or there is a risk of suffering}
C suffered harm whilst he was in the care of those to whom he should have been able to look for safety and security.    The mother will continue to have a relationship with C through contact arrangements.    It may be that the father will also be able to establish a relationship in contact.     The risk which either may be said on the basis of the findings I have made in this judgment will need to be managed.   The  court is reassured that with the support of the Local Authority the proposed Special Guardian will be in a position to promote safe contact which will be positive and beneficial to C.

64.      I must also, of course,  consider whether it is necessary to make any order at all, and if it is necessary then there is a wide range of orders which the Act provides for the court to consider.   I must also bear in mind the human rights of the child and the birth family.    Finally and crucially I must observe the imperative of avoiding unnecessary delay.    

65.     The starting point is that the best place for a child is with his or her parents or one or other of them unless there are strong welfare considerations which dictate that some alternative placement must be identified.    If it is not appropriate for the child to be with the parents or one of them  then, but only then, should the court move on to consider other alternatives.    There is no possibility in this case, given the findings I have made, of C being placed with either of the parents, and to their credit they have recognised that inevitability. 
66.      There is no prospect either of C being placed within the birth family on the basis that  any member of the extended family has been put forward and assessed as potentially able to provide the necessary care for the child.      The maternal grandmother and her partner did put themselves forward as potential long term carers for C, and were the subjects of an Independent Social Work assessment which is documented at E 216 – 250 which concluded  that placement with them could not be recommended. It is unnecessary for the court to deal in detail with the reasons given for such a conclusion.     It has not been challenged, and the maternal grandmother acknowledged before and during the course of her evidence that she accepted the findings, albeit with significant regret.     It is clear that it was a matter of distress to her that she will not be able to make the contribution to C’s future to which she aspired.     In my judgment she has much to offer in terms of a significant relationship with C based on contact, and it will be important for C in the context of his relations with his birth family that such a relationship is promoted.  

67.    In these circumstances the best outcome for C will be one in which he has a safe and secure environment in which he can thrive which will also allow for the continuance of his relationship with his birth family based on contact.    This is precisely the outcome for which the Local Authority, supported by the Childrens Guardian,  having conducted the same analysis and evaluation as the court though in greater depth, contends.
68.    If the court is to make the Special Guardianship Order then there is a duty to consider whether it is necessary for specific orders for contact to be made.    In submissions, each of the parties have  confirmed that it is unnecessary for the court to make a formal order.    It is an important and reassuring feature of this case that they are able to form this view because of the goodwill which exists between the family members and the proposed Special Guardian.   In that respect JD deserves particular credit for the way in which she has discharged the role of carer for C.   However, that does not absolve the court from consideration of the issue of contact.    The proposals in that respect are set out in the Final Care Plan.    The plan surrounding contact is one which will require ongoing support from the  Local Authority.    I have asked that the detail of the proposed, albeit flexible, arrangements for contact should be reduced in to a Schedule and annexed to the order which concludes these proceedings.    The Schedule will contain the specific support which the Local Authority will put in place surrounding contact.    It will serve as a useful foundation from which contact can go forward in the future at a pace appropriate to C’s needs.

69.   I arrive at the conclusion of this judgment accordingly having found that the threshold set out in s.31(2) CA 1989 but that it is unnecessary for the court to make a statutory order under s.31 in this case because C’s welfare will be best served by the making of the Special Guardianship Order proposed by the Local Authority and supported by all parties and accordingly I make that order.
70.   The only other matter which I must consider is that of costs, in respect of which I make no order save for detailed assessment of the costs of those parties who have the benefit of public funding

HHJ Rawkins
Designated Family Judge
24th October 2014