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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> J (A Child) (Non Accidental Injury) [2014] EWFC B162 (16 September 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B162.html Cite as: [2014] EWFC B162

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IN THE FAMILY COURT AT LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989
AND THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: G (A CHILD)

		The Courthouse 1 Oxford Row Leeds LS1 3BG
		16th September 2014

JUDGMENT
1. THE JUDGE: I am concerned with care proceedings and an application for a placement order in respect of a baby boy who was born in October 2013, so he is not yet 12 months old. The proceedings are brought by Leeds City Council, represented by Miss Farzana Tai. The boy's mother, who is 20 years old, is represented by Ms Julia Nelson. His father, who is a year older, is represented by Miss Ward. The child's interests in this case are represented by his Guardian, Vicki Wilson, and she has given her instructions in the case to Mr Hookway.

Forensic Background.

2. The Local Authority applied for a care order in respect of this little boy, who I shall refer to as J, on 13^th February 2014 and for a placement order authorising them to place him for adoption on 10^th June. I case managed both applications to a final hearing which started on 6^th August. In the course of the proceedings the Local Authority's social worker assessed both J's parents as potential future carers for him and also looked at the wider family, including his grandparents' ability to provide a safe future home for him. Both parents filed statements and the police disclosed the police interviews of the parents into the proceedings. I also had the benefit of medical reports and information about J and reports from his Guardian, giving her recommendations as to his future care needs.
3. During the course of the final hearing, I heard the oral evidence of the social worker, the parents, the Guardian, and from Dr John Somers, a consultant paediatric radiologist, working from children's hospital A. On 3^rd March, when this case was first before me, I asked both the parents to give a full account of what had happened to their son and made it clear to them that cooperation with the proceedings was of great importance to me.

Background:

4. Both M and F were born in West Yorkshire and have lived here all their lives. M lived with her parents and her younger brother, until her parents separated when she was about 6 years old. She remained living with her mother and saw little of her father until her mid to late teens. At that time, she started to see more of him and her relationship with her mother deteriorated. A referral was made to Social Services when she went to stay with him and his partner but the case was closed when she returned to live with her mother.
5. F lived with his parents and his two older sisters until his parents separated, following which he too lost contact with his father for some time, only resuming the relationship in his teenage years. He remained living with his mother who formed a new relationship. His relationship with his stepfather was not good. There was significant involvement of Social Services during the father's childhood, both when his mother lived with his natural father and subsequently. The main issues of concern were a risk of sexual abuse, neglect, and exposure to domestic violence and physical chastisement. F left home when he was 16 or 17 and stayed with friends. He has now obtained his own accommodation. It is clear to me that F received suboptimal and inconsistent parenting and that he has had significant behavioural issues.
6. M and F started a relationship through Facebook in November 2012. They shared a bedsit for a very brief period, but when M discovered she was pregnant with J in January 2013, she moved temporarily to live with her father and then obtained her own tenancy. M and F continued in their relationship but did not live together. F would stay with M on three nights a week. The couple argued frequently during the pregnancy, in particular about F going fishing with his friends rather than spending time with M. Following J's birth in October 2013, the couple spent more time together. They engaged with the health visitor and attended a baby clinic with J. J was reaching his developmental milestones and apart from being born with a single kidney there were no health issues identified in respect of him.
7. M and F took J to the Accident and Emergency department of their local hospital at 7.20pm on 29^th January 2014. He was admitted to the children's assessment unit at 11.20pm and x-rays were taken of his legs. Following x-rays of his lower legs, the hospital consultant paediatric radiologist reported that J had a fracture of the left distal tibial metaphysis (shin bone at the ankle) and J was therefore referred for a full safeguarding assessment. Full blood tests, bone profile, hormone and vitamin D tests were carried out, as was a CT head scan and an ophthalmological review. All were normal. A full skeletal survey indicated a possible fracture of J's right leg. Repeat x-rays on 10^th February and 21^st February confirmed the fracture to the left shin at the ankle but showed that J's right leg had not been injured.
8. On 31^st January, a referral was made to Social Services by the hospital and both parents agreed that J could be placed in foster care when he was discharged from hospital. Both parents were police interviewed on 6^th February. A social work assessment of the couple was made and directions given to obtain medical evidence. On 7^th March, the paternal grandmother informed the social worker that M was pregnant again. F damaged his mother's car that same day and received a caution the following day. On 12^th March, the couple denied to the social worker that M was pregnant but on 25^th March they accepted that she was and said that the baby was due in late October. During the assessment process M indicated on several occasions that she wished to be separately assessed as a sole carer for J and in her statement dated 6^th June, M said that the separation between her and father was permanent. The Local Authority therefore agreed to assess them separately at the IRH issues resolution hearing on 17^th June. F declined to attend any further sessions. At the conclusion of the assessment of the mother, the Local Authority prepared a final care plan for J on the basis of him being placed for adoption.
9. I now turn to look at the evidence. I will start with the evidence of the social worker. The Local Authority social worker who had assessed M and F as a couple and subsequently M on her own gave oral evidence to support the Local Authority application for a care order with a plan of adoption for J. She confirmed that the care plan was that J would not be rehabilitated to M, even if I found that she bore no culpability for J's injuries, because M had not been honest, she could not accept advice and was unable to interact appropriately with J when seeing him in contact.
10. In the social worker's view, M had been dishonest about the pregnancy with her unborn son because she denied the pregnancy on 12^th March and she had also been inconsistent in her history of events as to what had happened to J and also about the ongoing relationship with F. The social worker gave as an example the mother's statement of 6^th June stating that she had separated from the father and wished to be assessed as a sole carer, contrasted with an observation in contact a few days later when M was engaged in "playful banter" with F. In addition, M's Facebook page had continued to show her relationship status as "in a relationship" as recently as 25^th July.
11. The social worker said that the children centre had been asked to assist M with interaction during contact but she had been unable to speak to J. She accepted that M talks affectionately about J, smiles at him and plays with him but said M does not say things to him, even when workers had modelled interaction with her. She tells me that M herself says that she does not know why she is unable to speak to J in contact. In most other respects the social worker agreed that M could meet J's basic needs. The social worker also told me that she felt that M had been inconsistent in her attitude towards F, stating on occasions that she did not think he would deliberately harm J and on other occasions that she accepted the medical evidence. She agreed that M had said that she would want any future contact between J and his father to be supervised if J were returned to her care.
12. When asked about M's ability to work with Social Services the social worker said that in her view there were four main examples of M's inability to work openly and honestly. These were that she had initially denied that she was pregnant with her second child; mother telling the contact worker that she had completed J's adoption medical form when she had not; mother stating that she had separated from the father but then reconciling with him on several occasions and finally the mother telling her that they would attend a parenting group and then failing to go. Those, of course, were in addition to the allegation that M had lied about what had happened to J. Following a period of reflection at the conclusion of her evidence, I was informed that the care plan, in the event that the mother was totally exonerated from causing or covering up the injuries, would be one of further assessment in a mother and baby foster placement.

The Mother's Evidence:

13. When the mother was interviewed on 6^th February 2014 by the police, she was asked, "Do you know how the injuries have been caused?" to which she replied, "No, the only thing I can think of is his trainers". She explained that on 29^th January she fed and bathed and changed J and had put his trainers on. She said that he had fallen asleep but had woken up and he had been at the side of her while she was watching TV. She said he started screaming, so she sent F to his father with J to see if he, grandfather, knew what was wrong with J. J's grandfather had thought J was teething but when F brought J home he was still screaming, so she had sent F with J to his mother's home, the paternal grandmother's home. She stated that J's grandmother had changed J's nappy and noted his leg, so they had taken J straight to hospital.
14. M also told the police that the night before J had gone asleep at about 11pm and had woken at 2am. She had fed and changed him and got him back to sleep and he slept through until 10.30am. She said that it was unusual for J not to sleep through the night but that he had been fine the day before. Asked about putting J's trainers on, M said that she had bought them the day before. They were age 3 to 6 months trainers and she said, "I opened the straps, put his foot in and then put the straps back on". The officer asked, "Did his foot go in easily?" to which she replied, "Yes". Later in the interview, M described how J had fallen asleep and had been propped up on the sofa. She said that he had started to scream. She could tell something was wrong, like he was in pain. She said that she had not gone to the paternal grandfather's home because she does not get on with him and when F returned J was asleep and remained asleep until F took him to his mother's home. She had been telephoned to say that they were going to the hospital later that afternoon.
15. In her statement in these proceedings on 21^st March, M again stressed that when she put the trainers on J's feet they went in without any difficulty and that J showed no distress. She states that when J woke up on the sofa in the afternoon he was fine but that she had left him with F to get J's coat from the bedroom and while she was out of the room J had started screaming. She states:

"It was not a usual cry. It was different. As soon as I heard his screams I ran back into the living room. By the time I got into the living room F was stood up with J and was trying to settle him. When I approached F he just looked at me and said that he had started screaming. I asked why he had started screaming but F said he did not know".

16. M made a further statement on 4^th April. She said that on 25^th March her father had told her that F had said that he "may" have caused the injury. The conversation had occurred when grandfather had gone with father to the pub on 21^st March. She said that her father had said that F had said that he had accidentally sat on J's leg and that F had been too scared to say. She described going to F and telling him to leave the house. She said that she had told her solicitor the next day and had ended the relationship with F at that stage and was asking to be assessed separately.
17. In her statement dated 6^th June, M admitted that she had reconciled with F. She explained that she had felt under pressure to be assessed with him and that she believed he was telling the truth about hurting J accidentally. She also stated that she loves F and wanted to believe him but that the care plan for adoption had opened her eyes as to how serious the problem was. She described her concerns about F's behavioural issues and said that F had not been to the GP about those issues despite advice and that unless he did, "Things will not change". She stated that she accepts that F cannot be telling the whole truth and says, "The doctors have no reason to lie and so it follows that F must know more than he is letting on".
18. In her oral evidence before me, M said that she understood the need to tell the truth about what had happened. She said that she had not lied when she was interviewed by the police but had simply not gone into detail. She accepted in cross-examination that neither she nor F had provided an explanation as to the cause of the injury. Mr Hookway said to her, "One of you knows more than you are letting on", to which she replied, "Yes". She said that if she did not know what had happened, she could not say, but she agreed that J was in "severe" pain that afternoon, whereas he had been fine before. Miss Tai asked M why, if she was worried about J being in pain, she had sent F with J to the paternal grandfather's home. The exchange was as follows. Miss Tai: "Why did you not go?" M: "I do not like going to his dad's". Miss Tai: "He was screaming in pain". M: "I did not realise how bad it was". Miss Tai: "It could have been really serious. If you were worried you could have gone". M: "I did not think it was serious".
19. M also accepted that whilst F was out with J, she had rung her own father, which she said was to ask for advice. She was unable to explain why she had told the police that when F had returned from his father's with J, M had given J a teething ring and he had spat it out and screamed, but that in her oral evidence she had said that she had sent the father with J to the father's mother's home to enable J to get some more sleep as he had slept throughout F's return. Miss Tai pointed out to M that the first time she had said that she was not in the room when J started screaming was 21^st March, the very same day that her father had taken F to the pub and put pressure on him to say what had happened. M denied that there had been any connection and insisted that she was not trying to get F to lie.

F's Evidence:

20. On 30^th January, F spoke with Dr T, a locum consultant paediatrician, at the hospital where J had been admitted. F told Dr T that J had slept through the night on 28^th January waking only at ten or eleven in the morning. He and M fed J and F changed him and put him to sleep. F described J as fine at that time. F said that J woke at about 1.30 to 2pm that afternoon and that he was screaming and unsettled. He said that he had taken J to see his own father who was also unsure why J was unsettled. The grandfather's partner had given J a dummy which had settled him a little. F had returned home at about three o'clock. At about five o'clock, F had taken J to see his mother, J's paternal grandmother. He told Dr T that it was she that had noticed that J was not moving his left leg and that she had told him and M to take J to Accident and Emergency.
21. When F was interviewed by the police on 6^th February he said that J had gone to sleep between ten and midnight the night before and had woken at two in the morning. He said that M had settled J, and J had slept until the morning. F said that M had changed J in the night but not fed him because he had been fed not long before.
22. In the morning, F had changed J. M bathed him, and they both dressed J. F described M putting the new trainers on J and said that they went on quite easily and J did not react. J had later fallen asleep and F had put him on the sofa. F stated: "Then he woke up and started screaming. He woke up. We noticed as he woke up and then, about two minutes, just started screaming". He described M picking J up and trying to settle him. F told the police that M did not go to his father's, as she was concerned but was tidying the flat. He said that he had changed J at his father's but had not noticed anything wrong with his leg. J had screamed throughout the procedure. He had settled later on and father had taken J home before going later to his mother's. His mother had then changed J and seen that J's leg was not right. They had therefore decided to take J to hospital. F denied any knowledge of how the injury could have occurred.
23. F had made two statements in these proceedings, the first on 1^st April and the second on 17^th June. On 1^st April, F stated that he continued to be in a relationship with M. He said that on the night of 28^th and 29^th January, J had woken at about four o'clock in the morning. He knew it was that time because he had checked the time on his mobile phone. He said that he had held J while M went into the kitchen to make the feed. J was fine. He went on to say that in the late morning/early afternoon of the following day, J was asleep on the sofa, propped up on cushions. He stated:

"I went to make a drink for myself in the kitchen and when I returned I sat down next to J. I may have sat on his legs. I say that because J woke up and started to scream. His crying was not the usual one and he sounded as though he was in pain. I hoped that I had not done anything to hurt him but I was too scared to tell M that I might have sat on J".

24. He continued: "I was not thinking straight and I suppose I hoped that J was all right and that he would calm down. M had not seen what had happened and I did not tell her". F concludes his statement by saying he is desperately sorry that his carelessness "might have" caused J's injuries and that his failure to tell anyone delayed treatment. He stresses that he would never deliberately injure J.
25. In his latest statement F changes his description of events by saying that he sat on J's feet, rather than his leg and that he accepts responsibility for the injury albeit that it was caused by accident. He also states that M and F have taken the decision to separate, completely and permanently, and that he did not put himself forward as a sole or joint carer for J in the future.
26. In his oral evidence, F accepted that there were inconsistencies in the versions of events that he had given to the police and in his statement he described M sitting on the sofa with J on her knee. He said "I asked her to get his coat to go to my dad's. She gave him to me. I went and sat down on the sofa. I put him in the corner. He was asleep. I went for a drink of water. I went back to sit next to him. I sat down. A minute later, I noticed I was sat on his leg. He started screaming. I turned and then stood up and went and picked him up when I turned. I noticed his leg. I stood up. I picked him up and tried to settle him. M was in the other room. I started walking out of the room. She came through. M said, "What is wrong?" I said, "He started screaming". It was not a normal scream. It was louder."
27. F described M trying to comfort J and then asking him to take J to his father's. He said that on the way J had quietened down a little but had started screaming again when at the grandfather's home. The grandfather's partner had suggested putting cold water onto a dummy and he had started to calm down after that. F had then texted M to suggest putting a teething ring for J in the freezer. He had returned to M's when J was asleep and then taken him to his mother's home in order to collect his sister who was due to spend the night at M's home.
28. F explained that he had not told anyone what had happened because he was scared of their potential reaction. When asked the question: "If it was an accident why did you not tell them?", he replied, "I do not know" and he said that several times. He said that on 21^st March, M's father had asked him to go on the Jeremy Kyle show to take a lie detector test. F had said that he had refused to take such a test and that the grandfather had therefore asked him why? They had gone for a beer and F had told him that he had sat on J. F said that when the mother had found out about this subsequently she had been angry with him and asked him why he had not said anything sooner. He said that he did not understand why Dr Somers had said that the injury could not be caused in that way.
29. F says that when his mother had texted him to say that she had informed Social Services that M was pregnant, he had gone round to her home but she had refused to admit him and had threatened to call the police. He picked up a stone and carved, "You sad bastard" on her car. When the police came to see him the next day, he had admitted it and had been cautioned.
30. F accepted in cross-examination that he had known J was in pain and he needed to go to the hospital that afternoon. He accepted that he had been put under pressure at his mother's home to take J to hospital, saying that he was scared and did not know what to do. He said, "It should have been the first thing to do. I was scared". F denied covering up for M or protecting her. When asked about his feelings for M, F explained that he still loved her and he would like to be with her but said they had argued about what had happened and had agreed to split up.

The Medical Evidence:

31. Dr T, a locum consultant paediatrician at Hospital B, reported to the Local Authority on 27^th February that in his opinion the leg fracture was a significant injury which would have caused severe pain at the time it was inflicted. He felt that J's response to the pain would have included screaming or crying and that he would have been very unsettled for at least a few hours. Dr T concluded that J's pain response would not have gone unnoticed by whoever was looking after him at the time. He opined that any movement of the fractured leg would have distressed J. He would move it less and that the reduced movement would be noticeable. Dr T did not give oral evidence before me.
32. Dr Somers provided two expert reports in the proceedings. The initial report is dated 6^th April and the addendum, requested when F said that he had accidentally caused the injury by sitting on J's feet, as opposed to his leg, is dated 15^th July 2014. In the first report, Dr Somers opines that there was a single fracture to J of the left leg and that there was no fracture to his right leg. He also stated that a fracture could not have been caused by M putting J's new trainers on as described by her and F, nor could it be caused by F sitting on J's leg. Dr Somers reported that the radiology demonstrated that there was a metaphyseal fracture of J's left tibia, his shin bone, at the ankle, and that J's bone density was normal. He also clarified that there was no evidence of any renal bone disease, thereby ruling out any susceptibility to fracture being caused by the fact that J has a single kidney.
33. Dr Somers explained that minor knocks do not result in fractures and he agreed with Dr T that they are undoubtedly painful at the time they occur. He ruled out the injury being caused when J was born because it was a very recent injury when J was x-rayed on 30^th January, at which time the fracture was probably no older than ten days. J was at that time 3 months old. In his view, the radiological evidence was consistent with an incident occurring on 29^th January, which was the day on which the symptoms were first noticed, and the day when the mother and father said J had started to scream. Dr Somers considered F's description of sitting on J's legs and said it was not a credible cause of the injury because it did not describe a mechanism that could cause a metaphyseal fracture. In his second report, he expanded this to cover sitting on the foot and the child twisting to escape being sat on. He said:

"Sitting on a child does not produce a mechanism that can cause a metaphyseal fracture, ie a twisting and pulling mechanism. It is inconceivable that a 3-month-old child could twist his own leg with sufficient force to cause a metaphyseal fracture by his own actions".

34. He also commented that since the surface where the father said he sat on J was a sofa with very soft cushions, if anything this would make it harder for J to move his leg. He expanded this in oral evidence to say that the leg would be sandwiched between a soft 'bottom' and a soft cushion and said: "It would just sink in. A 3 month old forcing himself free and breaking his leg is fanciful".
35. Cross-examined by Ms Nelson, Dr Somers agreed that single metaphyseal fractures are uncommon but explained that they are not caused by normal handling. Whilst he could not be specific about the exact amount of force he graphically demonstrated with the aid of a plastic doll's leg the situations where known causes have caused fractures of this type. One example was the force sometimes needed whilst delivering a child in a difficult birth. A further example was the orthopaedic manipulation of club foot where severe twisting and pulling is applied to treat a child and Dr Somers also referred to cases where a carer has admitted injuring a child in this way. He told me that in all examples a pulling, twisting force was described.
36. Dr Somers did point out that these fractures can be missed by carers or professionals unless of course they are aware that a fracture has been caused. Ms Nelson suggested to Dr Somers that research using dead pigs would suggest that simple pulling or pushing could cause a fracture of this nature. He replied that in real life situations a combination of forces is always described, including in baby shaking cases where very rarely a distraction force can cause a fracture of this nature.
37. Miss Ward challenged Dr Somers' view that a combination of forces was required and suggested that the weight of a man who then twists as he rises having sat on a child could cause a metaphyseal tibial fracture. Dr Somers replied that there was no fulcrum for the twist in such circumstances on a soft sofa and said that if anything a fracture caused by such forces, if it were possible, would be to the shaft of the bone, not the metaphysis.

The Children's Guardian's Evidence:

38. Vicki Wilson, J's Guardian, said in her oral evidence that it was difficult to give a view as to the future without knowing what findings would be made and also because of her concern about M's inability to communicate verbally with J. She stressed the need for a permanent decision to be made for J at the earliest opportunity, especially since the earlier a child is placed for adoption the more positive the outcome is likely to be.
39. Miss Wilson had met with both parents jointly on 24^th February. A note of that meeting includes the following description from them: "J then fell asleep and woke up about 1.45-ish He sat in between them and watched TV. Then he started screaming. They were both clear that they felt that they had done what they needed to do to protect him". Her impression from that description had been that both M and F had been in the room at the time when J started screaming. In her later interview with M on 6^th June, M told her that she had gone straight to the Local Authority when F had said he had sat on J's leg and on that occasion said that she was out of the room. Miss Wilson supported the care plan in the event that I found that the mother was in the pool of perpetrators and I was unable to exclude her. She deferred her position in the event that other findings were made.

The Parties Positions:

40. In brief, it can be seen that the Local Authority, supported by the children's Guardian sought a finding of a non-accidental injury against both parents with a care plan of adoption. This was, of course, resisited strongly by both parents who wanted him to be returned to his mother's care. I must, therefore, consider the law in respect of non-accidental injury, care and placement orders.

The Relevant Law:

41. The Local Authority contends that J's injury was deliberately inflicted and caused by excessive forces being applied to his leg, thus constituting a non-accidental injury. Mr Justice Baker in Re: JS (A Minor) [2012] EWHC 1370 referred to the ten 'legal commandments' in cases involving allegations of non-accidental injury. Thus:

i) "The burden of proof lies with the Local Authority.

ii) The standard of proof is the balance of probability.

iii) Findings of fact must be based on evidence, not speculation or suspicion.

iv) When considering cases of suspected child abuse, the court must consider each piece of evidence in the context of all the other evidence. A judge must view the totality of the evidence in order to come to the conclusion whether the case has been made out to the appropriate standard of proof.

v) In serious non-accidental injury cases, including head injury cases, the opinion of medical experts must be considered in the context of all the other evidence. The court must weigh up the expert evidence against that evidence. There may be cases where a court determines that the weight of the evidence is at variance from that reached by medical experts.

vi) In assessing the expert evidence, the court is assessing the evidence of a group of specialists, each bringing a different expertise to bear on the issue. Each expert must keep within the bounds of his or her expertise. The expert must defer, where appropriate, to the expertise of others.

vii) The evidence of the parents or other carers is of the utmost importance. Credibility and reliability are key issues.

viii) Witnesses often tell lies. The court must bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear or distress. The fact that a witness has lied about some matters in evidence does not mean that he or she has lied about everything.

ix) The court must take into account the possibility that the cause of an injury or condition is simply unknown. This does not affect the burden or standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the party holding the burden of proof is established on the balance of probabilities.

x) When seeking to identify the perpetrator or perpetrators of a non-accidental injury, the test regarding whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. To make a finding that a particular person was the perpetrator, the court must be satisfied on the balance of probabilities. It is desirable, where possible, for the perpetrator to be identified but a judge should not strain to do so".

He referred to North Yorkshire County Council v SA [2003] 2 FLR 849 in that respect.

42. Even if I find there is a non-accidental injury that is not the end of the matter. In Re: B (Care Proceedings – Standard of Proof) [2008] 2 FLR 141) at paragraph 74 Baroness Hale said: "Care proceedings are a two stage process. The court does have two questions to ask. Has the threshold been crossed? If so, what will be best for the child?"

The Statutory Framework for Care and Placement Orders:

43. Care orders are made in accordance with section 31 of the Children Act 1989. The court cannot make a care or supervision order unless the statutory threshold is crossed which gives jurisdiction to make such orders. In this case, I am required to consider both that threshold and whether to make a care order and a placement order in respect of J. Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act. The Local Authority seeks a placement order in respect of J to place him for adoption. Under section 21(3) of the 2002 Act, the court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with. Neither M, nor F, would consent to J being placed for adoption. Indeed, they are very strongly opposed to such a course.
44. Section 52(1) provides that the court cannot dispense with the parents' consent unless either the parent cannot be found, or lack of capacity to give consent, or the welfare of the child requires that consent is dispensed with. In deciding whether or not to make any placement order my paramount consideration must be J's welfare throughout his life as provided by section 1 to section 2. I must have regard to the welfare checklist in section 1(4) and keep firmly to the front of my mind the guidance laid down by the Supreme Court, the Court of Appeal, and also the European jurisprudence.
45. In Re: B-S (Children) [2013] EWCA Civ 1146, the Court of Appeal, comprising Lord Dyson, the Master of the Rolls; Sir James Munby, the President of the Family Division; and Lady Justice Black, reviewed the law in respect of placements where adoption against parental wishes is being considered. They stressed that intervention of this type can only be justified in certain circumstances. They referred to the judgment of  Justice Hale, as she then was, in Re: C and B [2001] 1 FLR 611 at paragraph 34:

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and efforts should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity in the interests of the child".

46. I have also reminded myself of the dicta against social engineering in YC v United Kingdom [2012] 55 EHRR 967 at paragraph 134:

"Family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relationships and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing".

47. Section 52(1B) of the 2002 Act provides that the consent of a parent with capacity can only be dispensed with if the welfare of the child requires it. The judgment in Re: B-S (Children) [2013] EWCA Civ 1146 is clear, "require" has the Strasbourg meaning of necessary, the connotation of the imperative, what is demanded, rather than something that is merely optional or reasonable or desirable, so it is a very stringent and very demanding test. Orders contemplating non-consensual adoption must be regarded as a very extreme thing, a last resort, and only to be made when nothing else will do. I have reminded myself of the provisions of the Children Act 1989, section 1(5), which read in conjunction with section 1(3G) and 1(6) of the 2002 Act make it clear that I should adopt the least interventionist approach.
48. So, what are my options? They range in principle from the making of no order at one end of the spectrum and returning J to the care of his mother, to the making of a placement order in respect of J at the other. My assessment of the parents' ability to discharge their responsibilities towards J must take into account the assistance and support which the Local Authority could offer. I must be satisfied that there is no practical way of sufficient support being put in place for J to be safely cared for within his family. The Local Authority cannot press for a more drastic form of order and especially not adoption because it is unable or unwilling to support a less interventionist form and I as a judge have a duty to investigate to make sure that it is not a question of resource issues that are affecting the Local Authority's thinking.
49. My task is, therefore, to evaluate all the evidence and make findings, if I can, and then to look at the available options, undertaking a global, holistic and multi-faceted evaluation of J's welfare, which takes into account all the pros and cons of each option and then to compare those against the competing option or options. The revised Public Law Outline makes it very clear that if despite my case management I still do not have the kind of evidence required to perform the balancing exercise, I should direct an adjournment and seek further evidence.

My Evaluation and Analysis of the Evidence:

50. It is very important in these cases to take a step back and look at the evidence as a whole. If one focuses too much on a particular line or a particular aspect of medical expert evidence, it is easy to skew one's view unfairly. I have, therefore evaluated the evidence of the individual witnesses and then taken a more holistic view to ensure I weigh all the positives and negatives of the case and put the very serious allegations made against these two young parents into the wider context of their overall presentation and their care both before and since of J. I am grateful to Dr Somers for providing clear concise reports and for giving plain English explanations of his opinions and the reason for them. He gave very balanced evidence in my view and responded thoughtfully and analytically to the cross-examination by the parents' counsel.
51. I should say that the cross-examination of both counsel was skilful and well thought out. Neither advocate put forward the putting on or taking off of J's new trainers as a realistic potential cause of this injury and I find as a fact that that was not how it was caused. Both parents have consistently described J's feet slipping easily into and out of the trainers with the velcro straps undone. Such an action or actions do not as a matter of common sense, never mind expert evidence, cause a fracture like this in a child with normal bone density, which J has. I accept Dr Somers' opinion that even significant twisting to remove the trainers would not cause the injury and that especially since these trainers were aged 3 to 6 months and are therefore on the looser side of fit the trainer would have come off before the shin bone fractured.
52. Dr Somers' evidence as to the potential cause being by the father sitting on J's leg was that no credible explanation had been given which described a mechanism which could cause such an injury. I accept his expert opinion that whilst a single pull force may have demonstrated a periosteal fracture in a dead pig when a substantial weight was hung from the leg and whilst one cannot experiment on live children to ascertain whether a single push or pull could be a sufficient force to produce a similar fracture, thereby meaning that such a cause could not be ruled out entirely, the weight of experience with real children was that a combination of forces would be needed. The examples given of birth fractures and club foot serial casting were in my view compelling evidence that one would expect a twisting pulling mechanism to cause the injury and that the force would be significant and much more than you would ever see in normal handling of a child. I also accept Dr Somers' evidence that in many cases these types of fractures may go unnoticed if you do not know the cause as they may be otherwise symptomless and I prefer that to the evidence of Dr T. Dr Somers was also alive to the fact that his opinion was given on the evidence available to him and that on a wider information the court was entitled to its own view.

My Assessment of the Parents' Evidence:

53. The evidence of the parents in cases like this is key and in assessing that evidence I have to consider not only their credibility and reliability but I have to bear in mind that these are young parents who are under police investigation and who are undergoing care proceedings in respect of J, whilst M is expecting their second son. Neither mother nor father seek to assert that the injury to J was caused by putting a trainer on or taking one off. Both now state that as far as they are aware the injury occurred when J started to scream when his mother was out of the room. His father said that it was caused by him sitting on J's foot and turning as he got up. It is important for me to remind myself that it is of course for the Local Authority to prove its case and that it is credibility and reliability on the central issue which is key.
54. I turn first to the father's account of his evidence as he says he accepts responsibility for the injury. I had the benefit of assessing his response as he was giving oral evidence. I have to say that he was a most unsatisfactory witness. He was defensive and was obviously following an agenda. I am sorry to say that he has told me a series of untruths and was in my assessment giving rehearsed evidence to obfuscate the truth. I have grave doubts of the truthfulness of his account about anything for the following reasons. Firstly, I find it very unlikely that if F had accidentally sat on J as he described that he would conceal what had happened from M, the wider family, the medical professionals and the police.
55. I also find that his explanation for his behaviour, namely a fear of what they would say, is totally implausible in this case. If what had happened was an unfortunate accident then even put into the context of shame of what he had done, his hope that J would be all right, and what Mr Justice Baker recently described as, "The struggle of conscience against the instinct of self preservation", I find that F would have been likely to have said at the time that he had accidentally sat on J's leg. I find that his evidence about only opening up to mother's father when threatened with a Jeremy Kyle lie detector test and plied with beer at the pub to be wholly unconvincing, even in today's society.
56. Secondly, there is the improbability of an accident occurring in this way. There was no alleged concealment of J by cushions on the sofa and F on his own story had only just left the sofa for a matter of moments to get a drink of water in the kitchen area of the same room. It is important to note this is not a separate kitchen. It was a kitchen area in the same room in view of the sofa. There can in my view be no question of F forgetting that J was there, nor was there anything impeding him from sitting anywhere else on the two-seater sofa. He demonstrated with two chairs in court where he had sat. If J was propped in the corner as described then bearing in mind he was only 3 months old most of that seat cushion on which he was propped would be available and all of the other cushions. F did not describe any haste in returning to his seat or any reason for wishing to sit almost touching J or any reason why he could not see the sofa he left moments before as he walked towards the sofa with the child in plain view. Dr Somers described the explanation as fanciful and I agree.
57. Thirdly, I note the inconsistencies in the father's evidence. He accepted that he had given conflicting evidence but could proffer no explanation other than fear of discovery. Fourthly, I find that F was clearly reluctant to seek any treatment for J. He now accepts that he knew J needed treatment and was in severe pain. I do not believe that if father had accidentally injured J he would have watched him suffer for several hours and would effectively be forced to go to hospital by family members who threatened him with the police if he did not go. He would have gone. Finally, I take into the account the way F gave evidence about the issue. I have, of course, made allowances for the fact that he is a young man facing a serious allegation and an ongoing police investigation but I have found his evidence to be unreliable and unconvincing in nearly all respects, save for when he accepted that he had damaged his mother's car.
58. Of course, in this case, that is not the end of the matter if the injury to J did not happen in the accidental way put forward by the parents. I still need to consider whether the injury was a non-accidental inflicted injury, and whether whatever happened to J occurred when M was not present. I am satisfied that in January and February both parents intended to give the impression to medical professionals, police and Social Services that they were together when J initially screamed in pain and that in late March their position suddenly changed to one of M not being in the room and therefore unaware of what had happened. It was very clear to me that during their oral evidence the parental agenda was to exculpate M from responsibility and to suggest that she was unaware that any real harm had befallen J until x-rays showed the fracture to his shin.
59. Looking at mother's evidence, the inconsistencies in her evidence are particularly relevant to my evaluation of the significance of this exculpatory evidence. Firstly, mother claimed in her oral evidence that she had not been asked about where she was when J started to cry. This was simply not true. In her police interview, the officer asked clearly, "Is that normal?" and then, "He then started crying?", to which she replied, "Yes". Further, she was clear that both she and F knew that there was something very wrong at the outset and that she had sent J with the father to F's mother's home even after they had returned from the grandfather's. In her police interview, mother said of the teething ring, "He held it, spat it straight back out, and started screaming, so then we took him to his mum's".
60. In fact, it is clear that F went alone to his mother with the baby but the difficulty the mother faces is that she was at the very, very least delaying treatment for her son for another few hours despite seeing his continued extreme distress at that point. Sadly, like the father, the mother's evidence was inconsistent and unreliable. She was at times particularly evasive, especially when those obvious inconsistencies were pointed out to her in clear and simple terms by Miss Tai. Her standard response at such junctures was simply to say, "I do not know", without further elaboration. These factors point to the fact that the father and the mother have not told the truth.
61. There are of course other matters in the wider canvass that I have considered as part of the overall circumstances in this case. First, there is the fact that all the evidence about the parents' care of J in his first three months was that it was good care. They cooperated with the health visitor and attended the baby clinic. Relatives were allowed access to J and nobody recorded any concerns. Secondly, there is no record of any domestic abuse in the couple's relationship, no complaint from neighbours, no police call outs, no injuries noted to either mother or father. Neither party has a criminal history of violence to adults or children and I stress at this stage that father's actions in relation to his mother's car have played no part in my weighing of this matter.
62. Thirdly, I have had to remind myself of the frailties of human memory. Inconsistencies in evidence are to be expected. Indeed, evidence which is "off pat" and rehearsed is usually treated with scepticism. Both parents have attended contact and have shown willingness to attend a parenting course, albeit that they did not in fact attend. I should say at this stage that I can understand why they did not go, believing as they did that all the other parents would have their children with them. I can also understand why they did not want to tell the social workers that they suspected the mother was pregnant, through the fear of what would happen, given these ongoing proceedings. I think that the social worker lacks empathy and understanding when she criticised the parents for this. This was her first case of this type and her relative inexperience was demonstrated in her criticism of this aspect of her statement.
63. Balancing those elements together and weighing the written and oral evidence I heard over four days, I have, however, come to the conclusion that neither parent has told me the truth about how J was injured and that they have consistently given misleading and false accounts to hide what happened. Now, this is a matter of deep regret for me because they are young parents who were apparently succeeding in the care of their son and they have been seen to have an understanding of his needs. What he needed most of all was for one or both of them to tell me what has happened, and they have failed him terribly by not doing so.
64. Was this a non-accidental injury? The simple fact that this was a metaphyseal fracture does not prove that it was caused non-accidentally. J's age and ability mean that he could not have caused it himself. The parents do not have to disprove the case and I have borne in mind the burden of proof in this case throughout my deliberations. I have reached the conclusion that there was no accidental cause for the injury to J. Both M and F clearly care for him and this is an isolated incident. Parents who have otherwise cared well for a child are less likely to inflict injury than those who are otherwise neglectful or who have obvious tendencies to violence. Medical science is also not omniscient and Dr Somers' view in this case is not determinative.
65. Unfortunately, the parents' conduct throughout has been to collude and try to hide what happened to their son. There are some clues as to the state of their relationship. They were very new parents who argued often about father wanting to be with his friends. The mother said that she did not think he was pulling his weight and it seems to me that after the initial period of interest when J was born, F may have been showing less commitment. Their circumstances must have caused strain on both of them. I find on the balance of probabilities that the Local Authority has proved that J sustained a non-accidental injury whilst he was in the care of one or both of his parents and that both are in the pool of possible perpetrators of that injury.
66. Can I identify the perpetrator? I have borne in mind the fact that it is in the public interest and more importantly in J's and his unborn brother's interest that I identify which of his parents perpetrated this injury, if I can. I must not strain to do so. Despite extensive deliberations I find that I cannot. The evidence points to both of them and it is impossible for me to separate the strands of fact from fiction to identify which of them caused this injury. Should the parents have obtained earlier medical treatment for J? I find that both parents knew there was something really wrong with their son and delayed obtaining treatment for him. I do not know why, but I can only speculate that they hoped that he would recover and that whatever had happened would remain undiscovered.
67. Their actions by sending F to relatives and both discussing various potential causes, even when he was persistently screaming, particularly when the father returned home after visiting his own father, were in my view extraordinary. I find that they were effectively forced to take J to hospital in the end by the father's maternal family who physically took them in the car some five or more hours after J had apparently been injured. I accept Dr Somers' view that a carer who did not know what had happened might later miss the signs. This case, however, is not one where one parent was out of earshot when the injury took place. Whether both were in the same room or not, they were in the same small flat as they heard the unmistakable scream of their son in great pain, not once, but consistently that afternoon. Both recognised it. Both knew he was in pain. Neither acted.

The Threshold:

68. In the light of these findings, I am satisfied that the threshold is met in that J has suffered significant physical harm at the hands of one or both of his parents and if returned to them, or either of them, he would be likely to suffer significant further harm. I turn now to the welfare checklist. Parliament has provided that when I look at the plans for J's future, I should have particular regard to the welfare checklist and I do. J is too small for me to ascertain his wishes and feelings. I am sure he would want to live with his parents if he could express a view but he has an urgent need for a decision to be taken as to his future care. He has already been taken from his parents' care to live with strangers and he needs physical and emotional security and stability at the earliest opportunity. J has potential health needs due to his single kidney. It is not causing him any difficulty and there is no long-term damage from his fracture. I am, of course, concerned that any change to J's circumstances needs to be a permanent home.
69. Since I have been unable to identify which of J's parents individually or together caused his injury he is not safe in their care. The risk is too great and he would be at risk of significant harm if he was placed with them. I cannot envisage any support which could be put into place in such circumstances to keep him safe if he were placed with either of them, despite racking my brains. His parents are capable of meeting his basic care needs but he has been seriously harmed in their care and they have lied to protect each other and to prevent understanding of the truth.
70. In respect of the mother, I mention at this stage that some of the evidence related to her inability to communicate directly with J. That was a matter which was of some concern to me but I was not satisfied on the evidence that that would rule her out as a potential carer for her child. It is the injury and the circumstances of the injury which provides the risk in this case. I have also considered whether a member of the wider family could care for J. The paternal grandmother and her parents were given a viability assessment which was negative because it showed a significant history of Social Care involvement in their family. Since that assessment was shared with them they have not played a part in the proceedings. The paternal grandfather and his partner initially put themselves forward but withdrew in support of the return of J to his parents at a later stage. The maternal grandmother does not put herself forward as a carer. The maternal grandfather similarly does not put himself forward. He believes the father has harmed J and that J should be returned to his mother.
71. I am satisfied that the Local Authority has used appropriate resources to look at the wider family and to see whether there are any other alternatives for J. I am also satisfied that this is not a case where the care plan is put forward by the Local Authority on any resource led basis. F does not put himself forward as a carer for J but of course I have a range of powers available including orders providing for J's placement with his mother or a care order with a view to him being placed for adoption. Having considered the circumstances of this case, I do not feel it would be safe to place J with the mother, even in a mother and baby foster placement. There are no family members who could care for him safely and long-term foster care has a significant disadvantage as statutory permanent parenting would not satisfy his needs.
72. Adoption is quite rightly only used as a last resort when nothing else will do. Unfortunately, when weighed against all options available for his future care, nothing else will do for J to provide him with stable and secure future care. I, therefore, make a care order in his welfare interests on the basis that his future care will be outside of his family. I approve the reduction in contact contained in the care plan and the care plan filed by the Local Authority, with great, great personal sadness. Through adoption, J will lose contact with both his mother and father and the wider family. He will lose the identity of being a part of that family, something which I really do not underestimate. Having found that to meet his welfare needs nothing else will do, I must consider the placement application which authorises the placement of J for adoption by the Local Authority.
73. In order to make that order, I must dispense with the mother's consent, the father not holding parental responsibility. It is not necessary to dispense with his consent but even if he had parental responsibility I would dispense with it. I, therefore, dispense with the mother's consent with a full understanding of why neither of these parents would ever be able to consent to J's future being in an adoptive home and I do so only because J's welfare requires me to do so. My decision is that I make a care order in favour of Leeds City Council and a placement order in respect of J, dispensing with parental consent under section 52(1B) of the Adoption and Children Act 2002. I order a transcript at joint expense.
[Judgment ends]