This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
CASE NO DE14C00017 
IN THE FAMILY COURT 
SITTING AT DERBY
16 February 2015
B e f o r e :
HIS HONOUR JUDGE ORRELL
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DERBYSHIRE COUNTY COUNCIL
V
M, S and B
Finding of Fact Hearing

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Mr Thompson for the Applicant Local Authority
Mr Finch for M, the Mother
Ms Hickman  for F, the Second Respondent
Mr Pinhorn  for S the Third Respondent
Ms Peach for T, the Fourth Respondent
Mr Watson for V, the Fifth Respondent
Mr Veitch for H, the Intervener
A [16 February 2013] and B [12 August 2008]
(by their Children’s Guardian)

Judgement handed down on the 22 October 2014

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JUDGEMENT
1.	This is an investigation into how A, who was born on the 16 February 2013, sustained a number of fractures during the earlier part of this year. He had been the subject of a child protection medical on the 10 March 2014.

2.	A lived with his mother and elder half sister, B. At weekends, he would go and stay with his father and his father’s partner, and their child. The intervener is the mother’s partner and during the relevant periods of time, he did not reside with the mother but would visit and stay overnight on occasions during the week and stay with her during the weekends.

3.	The medical evidence is not in dispute. A sustained a right humeral fracture. This had occurred less than 11 days before the 10 March 2014, i.e. after Thursday, 27 February and up to and could have been sustained actually on the 10 March 2014. The injury required a twisting force and could have been caused by a fall or by being picked up roughly by the arm. Dr Halliday, the consultant paediatrician, commissioned as the expert in this case, said that A would have shown considerable distress and it would have been obvious to anyone nearby that he had been injured.

4.	A also sustained fractures to the left radius and ulna. These fractures were almost certainly caused at the same time. The likely mechanism was a fall on to an outstretched hand and not a simple fall. It had been sustained 6 to 12 weeks before the 10 March 2014. In other words, the window would have been between around the 17 December 2013 and the 27 January 2014. Dr Traves, the community paediatrician, who treated A, said the injury would have been associated with significant pain and discomfort and it was likely A would not use his forearm normally.

5.	A also sustained a fracture to the proximal left tibia. This was a compression type injury. Dr Halliday said she had not encountered this sort of injury accidentally. It could have been sustained during the period of 6 to 12 weeks prior to the 10 March 2014, but it was difficult to date. The injury could have been caused by A being brought down hard onto his feet.

6.	Dr Halliday’s opinion was first, the force for all of these injuries would have been considerable and in excess of normal handling, and second, in the absence of adequate explanations, the injuries were likely to be non-accidental, and third, no adequate explanations had been given for any of the injuries.

7.	The  sequence of events would appear to be as follows. A went to stay with his father on Friday the 7 March 2014, at about 5 pm, and returned on Sunday, the 9 March 2014 at approximately 9:30 am. 

8.	During his stay with his father, A was unusually unsettled. The father sent the mother a number of anxious text messages seeking advice; at one point he said he was considering taking A to the out of hours medical centre.

9.	After he returned home, during the Sunday morning, he was with his sister who hugged him and he played with his toys. When the intervener got up, he came downstairs and picked up A.

10.	The family visited ASDA. This entailed the mother strapping A in his seat and then the intervener unstrapping A, removing him and strapping him in a trolley. After the visit to the store, the process was repeated in reverse.

11.	The family then drove home and a decision was made to go out for a picnic. The mother was in the kitchen making sandwiches and A was playing on the floor. At some point, he moved towards the lavatory door which leads off the kitchen. B was using the lavatory and opened the door which may or may not have caught A on his left arm. The family then went in the van to a riverside area where they had a picnic. A was asleep most of the time and he was in his mother’s sole company for a short time whilst the intervener and B went off exploring.

12.	It is helpful to explore what people said about A during that Sunday morning. 

13.	Dr Batey carried out the child protection medical examination at 15:40 hours on Monday, the 10 March. The doctor described A being well-dressed and clean; he was upset at times, especially when his right arm was moved, but he interacted well with the doctor and played with her stethoscope during the examination. He was moving normally throughout the examination. He held his arms up and helped as he was getting undressed for the examination. His right arm was in a plaster cast from just below his shoulder to his hand. 

14.	The history taken by Dr Batey includes these passages. 

a.	“On taking the history, mum was not certain how this was caused but she did recall two incidents which had happened the day before, Sunday, 9 March 2014. At approximately 13:00 hrs A was crawling towards the bathroom whilst his older sister was on the toilet. Mum called out that A was heading towards the bathroom and his sister pushed the bathroom door closed from the toilet. Mum heard A call out and went to him. He was crying for a short period of time but quickly went back to his normal self. Then at approximately 14:00 hrs the family went out for a walk. As mum was putting A in the car seat she found that his right arm was trapped behind him in the car seat and pulled it free before strapping him into the seat. He did cry at this time but mum does not feel that she did this with any more force than she normally would have done, and not excessively. The family then went for a walk along the river and this included A, his older sister B and mum’s partner (the Intervener). Mum did notice that A was throwing stones into the river with his left hand and was copying his older sister doing this. She could not recall him throwing any stones into the river with his right hand.

b.	They got home at approximately 16:30 hrs and A seem to be holding his right hand and was upset so mum decided not to bath him that night but he did eat his tea at bedtime and settled down to sleep easily.

c.	Mum did notice at bedtime, which was between 18:00 hrs and 18:30 hrs that A was not using his right arm and was holding it by his side.

d.	At 04:00 hrs A woke and cried after rolling onto his right arm. In the morning he was visibly not using his right arm. He was holding it at his side and seemed in pain. This was when mum decided to bring him to the Children’s Emergency Department to get it checked out.”

15.	The Person Case Notes for 21:20 on the 10 March contains this account of what the mother had told the social worker at the hospital. 

a.	“Mother, who was highly distressed during our discussion, gave some background to A’s injury. She said that they went out shopping yesterday morning and came back home for a while, when A was playing, before they went out again, in the car. She said that it was a nice day so they went down to the river at Weston where they sat for a while. Mother said that A is going through a stage of ‘going rigid’ when she tries to put him in any seat or chair. Mother said that yesterday was no different and that, when she put A in his car seat, his body was rigid and she had to pull his arm out from behind him. Mother does not think that she caused any injury to A, when she pulled his arm from behind him, and is clear that she was not in any way rough with A. Mother also mentioned another incident yesterday when B was using the toilet, which is downstairs, and A started to crawl towards the bathroom. Mother said she was preparing a bottle for A at the time and shouted to him, ‘come here, A’, at which point B pushed to the bathroom door which was in the direction of A. Mother said that the bathroom door is quite heavy because it has coat hooks on the back and there are a lot of clothes hanging on the coat hooks. Although the door is heavy, as a result of the clothes hanging on the back of the door, mother said that she does not think that the bathroom door caught A.”

16.	A little later in the note, the social worker records this passage “When asked about the contact arrangements, mother said that A had been to his father’s for the weekend and was ‘fine when he came back’. Mother was clear that, in her view, A was ‘fine’ when he returned from contact with his father.” At the end of the paragraph the social worker continued “Mother said that A’s father and [his partner] love A and would never harm him.”

17.	Dr Traves in her statement to the police said “I would state that in my experience, a child would not be able to crawl happily with the injuries sustained, as per A’s. I would state that a child would have been in pain and discomfort.”

18.	The police notes for the 12 March 2014 at 20:14 hours (Sgt Thandi) record “Mum has told the Drs that A was crawling around on Sunday at home after his contact with Lee and therefore this rules Dad out to certain degree as it was felt that A would not be crawling using his arms if he had the fracture at that point.”

19.	During her police interview, the mother was asked “In that hour from 10 to 11 o’clock what’s A’s mobility?” Her reply was “He’s moving about [...] playing with his toys [...] He had some toast with his sister [...]. There’s like a low table in the living room and we just put the plates on there and he helps himself so he was doing that.” She also said that during that hour, she had not seen A crawling around.

20.	The mother also said that when A was in the trolley in the supermarket he was smiling and happy. She described the incident with the lavatory door and said that it hit A but on the opposite side to the arm that was injured. She said that when he caught his arm behind the baby seat in the van and she pulled it out “there was no excessive force and he didn’t cry at that point.”

21.	The mother also said that between visiting the superstore and going on the picnic A had sat on the kitchen floor rolling his ball. She said that A had been tired all day and definitely had not been his usual self but had not been unhappy or upset; he just had not been as active as usual. The interviewing officer said “So leading up to this point was there anything A has done, any cry or anything that you thought I need to get medical attention?” The mother replied “No, it was just general tiredness.”

22.	The mother made a statement for these proceedings dated the 2 June 2014. Having recounted the texts the father had sent her, she said that when A returned home he “seemed fine; he reached out to me with both arms and looked quite normal.” The mother continued “the general impression I was given was that A had been quite unsettled throughout the whole of the weekend. I then took A into the house. A seemed well although was a bit groggy. I put this down to the fact that he had not been sleeping was probably quite tired. Inside the house he shuffled around played with his toys. B was there and she fussed him a bit. A was playing in the living room.”

23.	Dealing with the incident with the lavatory door, the mother’s statement gives this account “on our arrival at home we decided that we would go for a walk. We went inside the house and A crawled across the floor. B had been skipping around and accidentally pushed the toilet door against A. It was purely accidental. B did in fact shut the door on A. It was not a serious incident. A did not cry. This was on his left side and as far as I could tell there was nothing to worry about.

24.	The mother gave evidence largely but not exclusively consistent with her statement. Dealing with the “door incident”, she said “at the beginning I put him on the floor. He started rolling a bouncy ball. He was moving. l think he did crawl. He was moving about but he was not 100% himself. I didn’t see how he got to the door as I was making sandwiches. He is always around my feet pulling himself up on cupboard doors. He was not doing that on this Sunday. I picked him up and put him on my hip and comforted him and took him to living room to put on his shoes. In the window of opportunity (for all the injuries) I did not notice anything untoward and no one else noticed anything either.”

25.	The mother, somewhat under the pressure of questioning, said for the first time in the proceedings that she believed the father was responsible for the injuries and she held that belief because of the way he had handled A when they were together. Although during the parenting assessment in August, the mother made some specific complaints about the father, they did not include any complaint in respect of A and in March, the mother told the social worker she had no concerns about either the father or his partner.

26.	The mother said that for 90% of the time she and the intervener were together with the children.

27.	The mother was asked about her statement for these proceedings and in particular the passage where she said A had crawled across the kitchen floor. The mother said she was not going to go back on that statement and if she said “crawled” then A had crawled. The mother was reminded of Dr Traves’ view that A would not have been able to have crawled. The mother accepted as a matter of common sense, if he had crawled, his arm would not have been broken at that stage.

28.	I satisfied myself that the mother understood the importance of what she had conceded because she accepted that the concession would eliminate the father as a potential perpetrator, and agreed that “it must be [the intervener] or me; I don't know who.”

29.	Following the short adjournment and in the light of the concession, the local authority withdrew its allegation against the father and he was discharged as a potential perpetrator.

30.	Nevertheless, the father gave evidence. He confirmed the sequence of events over the week end and told me that A had been very disturbed. He said A did not cry often and not for no reason.

31.	He was referred to his text messages to the mother at C181, particularly, where he said he had not heard A scream like that before. He agreed there was a missing text in which he had said that if A did not settle after a car journey, he would take him to the medical walk-in centre.

32.	He said he had been with the mother when she was told about the other injuries. He said she was distraught and besides herself. S added “the children are M's world and she had lost her world. I do have concerns. But I did not think she'd do anything like that.” He was emphatic he had not injured A.

33.	The intervener gave evidence. He told me that in October he would visit the house but had only a minimal role with the children. He did not recall having the children on his own before mid January when the mother was in hospital.

34.	It was common ground between the mother and the intervener that he was in bed when A was returned on the Sunday and the first he could visualise was in the van going to ASDA; he could not recall any interaction with A before that.

35.	The intervener said he had been alone with A in the van for about 3-5 minutes outside ASDA before unstrapping him and putting him in a seat in a trolly, and at that stage A had given him no reason to be worried.  On the way to Weston in the van A just kept dropping his bottle but he would do that normally if he did not want his juice.

36.	He said he had had no concerns that Sunday about A.

37.	In her evidence the mother agreed with me that the case could be reduced to a number of simple propositions, which are as follows.

a.	At worst, between the 27 January and the 10 March 2014, when aged 11 months, A suffered four separate non-accidental fractures probably inflicted on three different occasions.

b.	At best, between the 17 December 2013 and the 10 March 2014, when aged 10 – 11 months, A suffered four separate non-accidental fractures, probably inflicted on two different occasions.

c.	The mother was the principal but not sole carer for A throughout this period and she has not given an explanation for any fracture which the doctors say is adequate.

d.	Each fracture required considerable force and the fractures, taken together, indicated A had been subjected to rough handling beyond what would be considered normal parenting.

e.	Throughout his life prior to the period commencing between the 17 December and the 27 January, A had suffered no non-accidental injury nor exhibited any signs of being handled roughly.

f.	A’s half sister, B, was aged approximately 5 ½ years during the relevant period and has always lived with A. She has never sustained a non-accidental injury nor exhibited any sign of rough handling.

g.	The real possibility is that the same person inflicted all four injuries and that that person was an adult.

h.	A’s parents finally separated in July 2013. Since then, there have been three new significant adults in A’s life: the father’s new partner, the lodger who had sole care of A for about half an hour at the beginning of February and the intervener, who is the mother’s new partner. No one has asked for either the father’s new partner or the lodger to intervene in this case.

i.	The mother and the intervener began their relationship on the 31 August 2013; he began to stay over night only in mid-October and to stay over at weekends from November 2013.

j.	A never experienced a serious problem before the mother started a relationship with H and since that time, A sustained the four fractures.

k.	Since July 2013, the father has had A in his sole care to a far greater extent than prior to the separation.

38.	I find it very difficult to accept that the mother does not know when or how the injury was sustained. She was with A all of the day except when he was playing with B in the living room and for the short time he was alone with the intervener in the van at ASDA.

39.	I also find it very difficult to accept that the primary carer of a child of A’s age should have been completely unaware that her child had sustained no less than four separate fractures in the preceding three months and to have no  notion how the fracture of the right humerus was sustained although she accepts it must have been sustained during the Sunday when A was almost wholly in her care.

40.	Additionally, I have difficulty in accepting that the intervener also has no idea how the fracture occurred. Either A sustained it when the intervener had got up and come downstairs in which case he would have been aware of its occurrence or, if it happened when he was upstairs, he would have been aware that A was in discomfort at the latest, when he got him out of the car seat.

41.	I have come to the conclusion that both the mother and the intervener are not telling me the whole truth about the events of the Sunday/Monday. The evidence of A’s presentation and the mother’s acceptance of the effect of Dr Traves’ opinion leads me to conclude that A sustained the injury after he had returned home on the Sunday and when he was in the overall care of his mother.

42.	I cannot be more precise about when the injury happened because I am not able to accept as reliable the accounts given by the mother and the intervener as to when either of them first noticed there was something wrong with A’s arm.

43.	In coming to that conclusion, I have considered the evidence of the text messages. They indicated A was experiencing an unusual degree of discomfort which, without the other evidence, might have been attributable to the fracture. Text messages cannot be erased easily or accidentally and the fact that an important message is missing is potentially sinister.

44.	However, I have come to the view that the text messages are a distraction from the central issue in the case. I make three observations. First, the evidence that the fracture was sustained after A had left the care of his father is compelling. Second, if the father had caused the fracture, he would have known he had injured A and in those circumstances, it is unlikely he would want to draw the mother’s attention repeatedly to the fact that A was distressed whilst in his care. Third, the messages indicated that A had had two disturbed nights and so was likely to be tired and fractious when he returned home and, as such, was likely to irritate an impatient carer.

45.	I have come to my decision without taking into account the reported disclosures by B. I have also borne in mind that both the mother and the intervener have no previous involvement with Social Care.

46.	I find that the fracture of the humerus occurred during the 9 to the 10 March 2014. The perpetrator was either the mother or the intervener. Both would have been aware that he was unwell and needed medical treatment and both delayed seeking medical treatment. Both the mother and the intervener have suppressed information about the incident which would have been useful to the medics and social workers trying to help A and later, to the court which has been trying to ascertain what occurred. In doing that, both have placed A’s interests after their own desire to protect themselves.

47.	The overwhelming likelihood is the same perpetrator or perpetrators caused the earlier injuries. I find those injuries were caused by the mother or the intervener and both failed to protect A by failing to take him promptly or at all to see a doctor.