CASE NO: OX14C00123
THE FAMILY COURT SITTING AT OXFORD
16th to 19th february 2015
judgement handed down 24th february 2015

Before
Her Honour Judge Owens
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OCC v D & J
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Mr Leong, Counsel, for OCC
Mr Turner, Counsel, for the First Respondent Mother, JD
Ms Musgrave, Counsel, for the Second Respondent Father, JDJ
Mr Brookes-Baker, Counsel, for the Third and Fourth Respondents, acting through their Children’s Guardian	

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JUDGMENT
Introduction

I am dealing with a fact-finding hearing concerning the child ADJ, who is nearly 5 months old.  ADJ is the child of the First and Second respondents and has an older sibling, MDJ, aged 20 months, who is also subject to these care proceedings.

This fact-finding is to determine the causation and perpetration of injuries ADJ was found to have suffered when she was admitted to the JRH on 12th November 2014.

Background

The family have previously been known to Social Care due to concerns over the mother’s criminal history of violent offences and, in light of that, concerns in relation to her interaction and care of MDJ. Matters improved and the case was closed to Social Services in late 2013, early 2014.
On the 11th of November 2014, the father took ADJ to see the GP, Dr MR, with a presenting history of MDJ having fallen twice onto ADJ’s body over the past few days. The mother reported to the GP that she was concerned over the way ADJ was presenting. The GP did a careful examination of ADJ and found no bruising over ADJ’s trunk and flanks. However, due to the history and her concerns over ADJ’s presentation, she made a referral to the paediatric unit at the JRH for the father to bring ADJ to them for further assessment. Despite Dr MR making that referral that day itself and giving the father £5 in cash to take ADJ to the JRH, the father did not take ADJ that day and said that he did not understand that he needed to take ADJ to hospital that day.

It appears that on the following day, the mother reported that ADJ was still presenting in a way which was concerning and spoke to the support worker at the family’s accommodation, AT, who advised the mother to take ADJ to hospital. The father finally took ADJ to the JRH on the evening of the 12th of November 2014.

Upon arrival at the JRH, the following injuries were documented:

a.	A bruise to her left cheek;
b.	Two bruises on her upper left arm;
c.	Petechial bruising to the upper pinna of her left ear, with excoriated areas behind the ear.

The parents explained the bruising by blaming MDJ for throwing toys at ADJ or falling on her over the past few days. The paediatric staff at the JRH were not satisfied with this explanation and were concerned these injuries were non-accidental. Due to this concern a CT scan and a skeletal survey was carried out. The CT scan was clear but the skeletal survey revealed a very recent fracture of ADJ’s left clavicle. The parents’ explanation for this fracture was to blame MDJ for causing the injuries to ADJ by way of rough play or throwing toys at her. The paediatric staff were of the view that this explanation was not consistent with the injuries seen.

As a result of the concerns expressed by the medical professionals, the Local Authority initiated protective measures and MDJ was placed with his maternal grandmother and ADJ was placed with foster carers.  The care application was issued on 18th November 2014.

Parties’ positions

Injuries – bruising and fractured clavicle

The Local Authority’s threshold document is at A3-4 of the bundle. In relation to the bruises, the Local Authority seeks a finding that the bruises to ADJ’s ear and upper left arm were caused deliberately. In relation to the bruise to ADJ’s left cheek, the Local Authority seeks a finding this was caused due to inadequate supervision of MDJ and ADJ by the parents.  The parents accept that there were bruises to ADJ, although mother at the start of this hearing did not accept that there was a second bruise to ADJ’s upper arm.  She accepted the second bruise after seeing the photographs taken by Dr J and produced at Court on 18th February 2015 for the first time. The parents also accept that ADJ was a non-mobile baby at the time and could not have caused the injuries by any movement of her own.

The mother, in her second statement, contended that the bruise to Ashley’s upper left arm may have been caused by the incident  on 10th November 2014 when she picked Ashley up from the swing chair after losing her balance. The mother also relies upon this incident as the explanation for the fracture.  In relation to the other bruises, the parents contend that these were caused by MDJ hitting ADJ with toys. 

The Local Authority seeks a finding that the fracture to ADJ’s clavicle was caused deliberately. The Local Authority say that the parents have not offered any explanation which accords with the medical evidence.  The parents accept that ADJ did have this fracture to her clavicle and have offered varying explanations including MDJ falling onto ADJ. The latest explanation is that offered by the mother in her second statement, where she describes the swing chair incident on 10th November 2014 when she went to pick ADJ up out of a swing chair, lost her balance and, to avoid ADJ’s head hitting a radiator, picked ADJ up towards her.  

The parents dispute that any of ADJ’s injuries were inflicted deliberately.

Perpetration 

There is no dispute that ADJ was in the care of only the father and mother at the time the injuries occurred. The Local Authority is seeking a finding that the injuries caused deliberately to ADJ were caused by either the father or the mother.  The mother accepts that she may have caused the fractured clavicle and bruising on ADJ’s left arm accidentally (but not intentionally) during the incident relating to the swing chair on 10th November 2014.  The father offered an explanation for the fracture which related to MDJ falling onto ADJ.  Both parents argue that MDJ may be responsible for the other bruises on ADJ when he has hit her with toys and that they did adequately supervise the two children.  However, in the course of this hearing their positions in this regard altered so that they accepted MDJ could not have caused the bruising to the left arm nor the excoriation to the left ear.

Expert evidence

A Radiological Report was prepared on ADJ by Dr Chapman, dated 29th December 2014 at E4-16, with an addendum email from him addressing the swing chair incident explanation at E17.  Dr Chapman gave evidence to the effect that the mechanism for the fracture was either application of direct pressure (such as thumbs on the clavicles whilst holding ADJ under the arms), or compression of ADJ’s shoulders either by holding her upper arms or from a fall or blow to her shoulder.  He was clear that the explanations offered by the parents did not account for ADJ’s injuries.

Dr MR, GP, saw ADJ with her father on 11th November 2014 and whose report is at E3a-b.  She was concerned about the possibility of serious internal injury to ADJ and therefore referred her to the hospital.  She did not observe bruises on ADJ and was adamant that she had impressed upon the second respondent that ADJ needed to go to hospital that same evening after she had been fed, giving him £5 from petty cash to ensure that he did so.
Dr J, the Paediatric Consultant who saw ADJ at the JRH when she was taken to A&E by JDJ on 12th November 2014 in the evening.  His notes are at C110-125 of the Medical Disclosure Bundle and the photographs of ADJ’s injuries which Medical Illustrations took are at section G of the main Bundle.  He was very clear that there were two bruises on ADJ’s upper left arm, as he indicated on the body maps at the time and he pointed out the second, fainter, bruise, on the photograph at G5.  It was JDJ who was present for the majority of the time that Dr J saw ADJ, his recollection being that JD turned up towards the end of his involvement with ADJ (which was limited to the one examination on 12th November), just as ADJ was being moved to the ward.  He confirmed that JD had signed the medical consent form at C125 of the Medical Disclosure Bundle and that he was qualified to perform a child protection medical so would have noted if she had said anything different to JDJ with regard to the injuries or their causation. 

Dr S, Consultant Paediatrician, whose report dated 14th November 2014, is at E1-3.  She gave evidence to the effect that it was extremely unusual for a 17 month old as MDJ was at the time to have caused the injuries noted on ADJ, particularly as they were grouped on the left hand side of her body.   It was her opinion that the excoriated area behind ADJ’s left ear was caused by her ear being pinched or grasped and the skin there being abraded by either finger nails or the pads of the fingers.  It was also her opinion that a blow to the ear by a toy would not account for the excoriation. 

Other professional evidence

In addition to the EDT referrals, records of strategy discussions and other professional documentation contained in the Bundle, Medical Disclosure Bundle and Checklist Bundle, I have also considered evidence from:

PC, Health Visitor, whose records and those of the student health visitor working under her direct supervision are at A39-52 of the Medical Disclosure Bundle.  She told me that she witnessed MDJ being challenging and demanding, as many children of his age are when presented with a younger sibling.  It was her view that JD was coping well with two young children so close in age in cramped living conditions.

AT, of Homegroup, whose statements dated 2nd December 2014 and 30th January 2015 are at C72-148 and C165a-b.  It was her opinion that JD was honest and not someone who would harm her child.  She also gave evidence about the disclosure by JD to her on 30th January 2015 about the swing chair incident.

Parent’s evidence

The first respondent mother, JD, has filed two statements dated 19th December 2014 and 4th February 2015, at C149-157 and C166-177.  She was adamant that she did not harm her baby deliberately and reiterated her explanation for the fractured clavicle as the swing-chair incident on 10th November.  She could not describe her actions in this incident in detail but believed that she had picked up ADJ under her arms.  She could not therefore account for the bruises to ADJ’s upper left arm.  She was also adamant that, whilst she could not anticipate what MDJ would do at any given moment, she had not failed to adequately supervise him when he was in the room with ADJ. 

The second respondent father, JDJ, has filed one statement dated 29th January 2015 at C160-165.  He accepted in his evidence that he did not take ADJ to the hospital as promptly as he should have done.  He could not explain the fracture to her clavicle, although he did explain and demonstrate lifting ADJ above his head with his hands around her body under her arms so that his thumbs would have been on her clavicles.  He explained that he would mainly care for ADJ during the night as he tended to stay up later than JD, and she would handle childcare in the mornings.  

Relevant legal considerations

I have had regard to the case of Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 with regard to the burden and standard of proof in fact-finding cases as well as the recent case (17th February 2015) of Re A (A Child) [2015] EWFC 11 which re-stated that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely.  In Re A, the President also referred to R A (A Child) (No 2) [2011] 1 FCR 141 and I have also has regard to the “the elementary proposition that findings of fact must be based on evidence (including inferences that can be properly drawn from the evidence) and not on suspicion or speculation”. Re B (Non-Accidental Injury) [2002] EWCA Civ 752 with regard to medical evidence relating to non-accidental injury; Re W-P (Fact-Finding Hearing) [2009] EWCA Civ 216 when considering more than one injury; and the cases of S v Nottingham City Council [2014] 1 FLR 1423 (CA), Re S-B (Children) [2009] 1 FLR 1161 with regard to the test to be considered when considering who the perpetrator or perpetrators of injury may be.  I have also had regard to the case of R v Lucas (1981) 73 Crim App R 159 with regard to lies told by a Defendant.

Findings

Dr Chapman was very clear in his written and oral evidence that the presence of a mid-clavicle fracture such as the one which ADJ suffered, in the absence of a credible explanation for that fracture from the parents, led him to conclude that the injury was most likely non-accidental.  He gave his professional opinion that “considerable force”, beyond normal handling or even boisterous play, would be required to cause the fracture.  This is accepted by the parents.  In relation to the mechanism of the injury, he concluded that it was either the result of the direct application of pressure from a thumb on top of the clavicle, or from compression of the shoulder caused by either holding the child across the shoulders and squeezing, or a fall or blow onto the shoulder.  From the parents’ description of how MDJ fell onto ADJ, namely with most of his weight on the floor and only his legs falling across her, it was his professional opinion that this did not provide an explanation for the fracture.  

The latest explanation from mother relating to the swing chair lacked details as to how she held ADJ so he could also not see how that explanation accounted for the fracture to the clavicle.  If JD had been lifting her out of the swing chair towards her he could not see how she was exerting pressure against the clavicle.  It also did not account for the bruises to ADJ’s left arm.  In essence, he told me that it was his opinion that the injury to the clavicle was entirely consistent with non-accidental injury as no probable explanation had been provided by either parent.

Of course, I am mindful of the fact that I have to look at all of the evidence and this includes considering the possible inter-relationship between the bruises and the fracture.  Leaving aside the bruise on ADJ’s face, which it is accepted by all parties was probably caused somehow when MDJ and ADJ were together, this was a very young baby with bruising to her upper left arm, bruising to the upper pinna of her left ear, and a fractured left clavicle.  She also had an area of excoriated skin behind her left ear.  There were no injuries on her right side. 

This then leads me to consider the issue of the causation of those bruises and the fracture to ADJ’s clavicle.

Looking at the explanations offered by the parents and their credibility, I will deal with mother first.  Her first explanation is that the injuries are caused by MDJ, either by him throwing toys at ADJ or by him falling and landing on her.  This is contained in her first statement dated 19th December 2014.  In that statement, at C152, she is very clear that she had no serious concerns about ADJ until 11th November 2014.  She describes an incident on the 9th November 2014 when MDJ “tripped” over ADJ when she was on her play mat, although she was not in the room JDJ was and told her what happened.  She describes ADJ as crying for a bit but she was “soon fine”.  Later she says that MDJ dropped a toy drum on ADJ which hit her on her face/head.  On the Tuesday, 11th November (C153) she describes an incident whilst she was changing ADJ’s nappy on the floor when “MDJ again tripped over her and fell on her”.  There was no detail as to how MDJ fell on her.  

On 30th January 2015, JD told her support worker AT that she knew how ADJ had been hurt.  The note which AT prepared on 30th January 2015 is at C165a-b.  It is short and records in AT’s words what JD told her about an incident with the swing chair on 10th November 2014.  AT recorded that JD said she had had this on her mind since “then” (which presumably meant 10th November although she was less than clear in evidence when challenged about this); that she was “scared and the longer she didn’t say anything the worse it got and she didn’t know how to tell anyone”.  In her second statement (at C167) she states that until she received Dr Chapman’s report she “genuinely thought that the fracture of ADJ’s clavicle had been caused when MDJ fell on her” and “when MDJ fell on her on the Tuesday morning that was when I was first aware that ADJ was hurt”.

I find that there is a clear contradiction between her telling AT that she knew what had happened from the time of the swing chair incident, and her second statement which says that she only “really began to understand what had happened” after she had read Dr Chapman’s report (para 2 C167).  She was cross examined at some length about her statements to the Police and her first statement in these proceedings where she indicates that she has given full accounts of what happened but did not mention the swing chair incident.  She accepted that she was not telling the truth when she made her earlier statements.  

Clearly, a parent involved in this sort of investigation is likely to be scared as she told AT on 30th January and I am mindful of the fact that her own background has clearly left her with issues which make her defensive.  However, her failure to tell anyone, least of all her partner, of an apparent accident which she thought might explain the fractured clavicle is very troubling and is even now accompanied by levels of obfuscation about when she realised this might be an explanation.  And the simple fact is that what she has said about this incident also does not fit with the medical evidence about the possible mechanism of injury.  I have not been provided with any detail from her as to how she held ADJ and applied pressure so that she thought she had fractured the clavicle.  As an explanation, I am forced to conclude it is inadequate.

In relation to the explanations offered by JDJ, like JD he was initially saying that the only explanation must be MDJ falling on ADJ.  This was the story that both parents told the GP had led to their contacting the surgery and JDJ repeated this explanation for his concern when he was at the JRH.  However, he now accepts the medical evidence which is that MDJ could not be responsible for this injury but is unable to offer any other explanation.  

Dr S was very clear that MDJ at his stage of development in November 2014 would lack the necessary co-ordination to be able to deliberately aim at and hit ADJ when he was throwing toys.  He would also, in her opinion, lack the necessary strength to grip ADJ’s ear or arm to cause the injuries there.  This was not challenged by the parents in the course of this hearing. 

 This leads me on to consider whether there is sufficient evidence to enable the perpetrator of the fractured clavicle and bruises to ADJ’s upper left arm to be identified.

Despite their earlier statements, in light of the expert evidence, both parents now accept that MDJ cannot be responsible for these injuries. Logically, this therefore leaves the pool of potential perpetrators as the parents in this cse.  I am mindful of the case law in this regard, namely that whilst there is a public interest in identifying the actual perpetrator of an injury, such a finding should only be made where the truth can be sufficiently ascertained and identification on the balance of probability is possible (Re S-B).  The test to be applied is as stated in Re S-B, namely “is there a likelihood or real possibility that one or more of a number of people with access to the child was the perpetrator or perpetrators of the inflicted injuries?”  

Both parents have given inadequate or varying accounts as to the possible causes of ADJ’s injuries in this case.  Neither has been able to provide a satisfactory explanation for the bruise on, and excoriation behind, ADJ’s left ear.  Dr S was clear about the potential mechanism for this injury and that MDJ dropping a toy onto ADJ, or a collision of heads between MDJ and ADJ, would not account for the excoriation.  The time period within which the clavicle fracture may have occurred is also very narrow, namely between 9th and 12th November when she was admitted to hospital.  

At various times, each parent was left in sole charge of ADJ, on their own evidence.  Both accept that JDJ tended to deal with the children during the night and JD would tend to them in the early morning.  Despite JD initially trying to say that the parents were always together, under cross examination she did accept that there were also occasions during the day when they would be alone with the children, either in different parts of the flat or elsewhere.  Although JD in her evidence did mention in passing that there were others around in the other flats, she was not saying that she left ADJ with anyone else apart from JDJ and the pool of potential perpetrators in this case is therefore simply the parents, namely JDJ and JD.  JDJ does not make a positive case against JD, but through his Counsel he told me that he accepts the medical evidence, says that he did not inflict the injuries and yet the pool of possible perpetrators is only two, either JDJ or JD.  It is almost therefore as if he is running a case against the mother by default, but I do understand that he may not see it as such and has not made specific allegations against her.   JD’s case was that she does not accept the conclusions of Dr Chapman that the fracture is likely to be non-accidental, in particular her Counsel took issue with the research findings which Dr Chapman referred to in his report at E9-10.  She was also clear that she did not accept that either she or JDJ could have harmed ADJ.

Dr Chapman was cross-examined in some detail by Mr Turner on behalf of JD about this research.  The issue that Mr Turner submits is relevant in relation to this research is that it came from a limited sample of studies and hence Dr Chapman formed an opinion of likelihood of non-accidental injury on the basis of inadequate data.  However, I am quite clear that the research quoted by Dr Chapman is merely part of a general background which he gives in relation to clavicle fractures of all kinds in young children.  As he clarified in his evidence to me what he put in the report at E9-10 is the generally accepted view in relation to clavicle fractures, and with an isolated fracture it was necessary to look for an explanation or event to provide an appropriate explanation.  In this case, to quote his report (E11) “while accepting that clavicle fracture in a child of this age is not a definite non-accidental injury, it is more likely to be the result of non-accidental injury than accidental injury.  That statement of general probability combined with the absence of a plausible accidental explanation and the accompanying soft-tissue injuries makes it more likely than not that the fracture was either a deliberately inflicted injury or the result of an accident that a carer is choosing not to disclose.”  

The Local Authority seek a finding that the injuries to ADJ’s clavicle, ear and arm were deliberately inflicted.  Given the evidence of Dr S as to the likely mechanism of injury to the ear, and the absence of plausible explanation for both the bruising and the excoriation from the parents, I am satisfied on balance of probabilities that the injury to her ear was caused by a deliberate pinch or grasp.  As the parents have accepted, MDJ at his then developmental stage cannot have had the co-ordination or strength to inflict this injury and therefore the perpetrator must be an adult.  Similarly, the parents accepted that MDJ could not be responsible for the bruising to ADJ’s arm.  The explanations offered by the parents do not account for this bruising at all, not even the swing chair incident as the mother accepted when cross examined by Mr Leong for the Local Authority.  Again, they do not dispute that the mechanism for this bruising to her arm must have been a pinch as explained by Dr S.  On the basis of all of the evidence I am therefore satisfied that this bruising was deliberately inflicted and is a separate act to the actions which led to the injury to her ear and her clavicle.

As adduced by the Local Authority, both parents have given inconsistent accounts, withheld information from medical professionals, lied and also changed their evidence as they were cross-examined.  Both have issues with anger management, and this was not disputed.  JDJ told me that he has punched a wall hard enough to fracture his hand and cause permanent damage on three separate occasions when he was angry and needed to vent that anger.  He also indicated that his way of managing his anger is to kick doors or punch walls and that he takes himself away somewhere alone to do this.  As was submitted by Mr Brookes-Baker on behalf of the Guardian, this is not something that it is possible for him to do when he is caring for the children on his own.  JD has also had issues with her anger in the past and was clearly very angry at times when she gave her evidence to me in court.  She is also recorded as swearing and wanting to swear at doctors in the hospital (Medical Disclosure C134). Simultaneously, both parents are also described as caring and responding appropriately to their children by Health Visitors and medical professionals in hospital.  They have also told me how much they love their children and both were clearly very emotional in the witness box when explaining this to me.  However, as is sadly too often the case in these sorts of proceedings, this case is not about how much they love their children. Given the inconsistencies in what has been observed by professionals of their parenting compared to the fact that their six week old baby suffered deliberately inflicted physical harm in their care and, the evidence in this case not clearly pointing on balance of probabilities to one parent rather than the other, I am unable to conclude that there is a real possibility that one parent rather than the other inflicted these injuries.  I can only therefore conclude that on balance of probability either or both of the parents inflicted the injuries and cannot exclude either parent from the pool of possible perpetrators in this case.

The next issue is whether there was unreasonable delay in the parents seeking medical attention for ADJ as alleged by the Local Authority.    

Both Dr MR  and AT in their evidence to me described ADJ as “not a happy baby” when they saw her on 11th and 12th November 2014.  JD herself when she rang the GP said that ADJ was crying.  It is apparent that she was consolable to some extent as the evidence of Dr MR and Dr J indicates.  However, it is also apparent that she was, in her mother’s words to AT “not right” and Dr MR was very clear that, whilst she could not detect anything obviously wrong with ADJ, she equally could not rule out some other injury not detectable in her basic physical examination.  It is odd that Dr MR did not apparently see any bruising on ADJ, but she herself said that her focus was on the possibility of internal injury so she concentrated on any apparent injuries to the trunk or spine.  

Dr MR was clear that she thought she had impressed upon JDJ the need for ADJ to be seen at the hospital on the evening of 11th November.  Whilst she did not feel that it was sufficiently urgent to warrant an ambulance, she says that she told JDJ to take ADJ home and feed her and then go to hospital.  She also gave him £5 from the surgery petty cash as he indicated that he did not have sufficient funds to go to the hospital.  It is accepted by JDJ that he was given this money and that he managed to lose this money before spending it on travel to the hospital.  JDJ in his evidence states that he did not understand from the doctor that he needed to take ADJ to the hospital that evening, but he said that the GP told him to take her home and feed her and then go to the hospital.  He was not saying that she said take her to the hospital tomorrow or when it is convenient.  
Dr MR told me in evidence that JDJ was present when she rang Dr C about the referral to the JRH and she was clear that she did make it plain to JDJ that ADJ needed to go to hospital that evening, once she had been fed.  

What JD told AT on 12th November 2014 does also seem to support Dr MR’s recollection that she told JDJ that ADJ needed to be seen at hospital on the evening of 12th November as JD told AT (C84) that they had not taken ADJ to the hospital on 11th November because they had had no money.  She therefore seems to have understood from JDJ that ADJ should have gone to the hospital on 11th November but lack of funds prevented this.  AT also notes that she held ADJ and she seemed “unsettled and maybe in pain”.  During this time JD pointed out the area of excoriation behind ADJ’s ear and AT’s suggested that JD point it out to the doctors when they were at the hospital.  In her clarification to the Strategy Meeting at C24a, AT indicated that whilst JD was bringing this to her attention for the first time, she believed that JD was already aware of it. 

In addition, I have the evidence of JD to me when for the first time she expanded on the “squeal” that ADJ gave during the swing chair incident on 10th November.  JD said that she had never heard her squeal like that before.  It was put to her on behalf of the Guardian that this alone should have concerned her enough to seek medical attention earlier.  JD was adamant that she did ring the GP and when the GP examined ADJ she could find nothing wrong.  What is troubling about this is that she did not ring the GP until 11th November in the afternoon, after she says that MDJ had fallen across ADJ causing her to cry.  This was the day after the “squeal” which she says ADJ made on the 10th November.  There is a lot of evidence from the medical professionals to the effect that ADJ was not in constant distress and would only have experienced pain in the fractured clavicle when it was disturbed, most commonly as a result of being picked up under the arms.  However, the point is that squeal which she apparently gave on 10th November.  As Dr Chapman pointed out, a parent generally knows when their child is not right and from her own description of that squeal, JD knew that it was something very different indeed.  On her account, what she seems to have done afterwards is not to consider it further it until ADJ was exhibiting other symptoms of distress.

There is then the delay in going to the hospital, caused by JDJ apparently not understanding the urgency which the Dr MR was trying to impress upon him.  As things turned out, it is extremely fortunate that the delay did not result in ADJ needing more treatment or missing vital earlier treatment.  However, it did expose her to that risk, as well as the risk of pain when picked up as that would disturb the fractured clavicle.  JDJ now accepts that he should have taken her sooner.  I am therefore satisfied on balance of probabilities that both parents therefore failed to act as promptly as they could in relation to seeking medical help for ADJ.

The final issue relates to the alleged failure to adequately supervise MDJ and ADJ:

It is common ground between all of the parties that MDJ was boisterous and jealous with the arrival of his younger sibling, being demanding and challenging of his parents as a result.  As was noted by PC and Dr S, this is not unusual for a 17 month old.  The evidence of the Health Visitors is that JD was managing this behaviour and coping well with the demands of two young children so close in age, in cramped living conditions.  She had also sought some advice and assistance from the Children’s Centre.  However, on JD’s own evidence, MDJ appears to have had a typical toddler’s tendency to throw things when frustrated and more than once ADJ was caught by what was thrown.  He had also, on her evidence, managed to cause bruising to ADJ’s face before, as the photo at C177 shows.  This bruising is a different bruise to the ones in issue in this fact-finding and is different to the one seen below her right eye by the staff at BR on 5th November 2014 – the one at C177 is beside and above her right eye.  On JD’s own evidence, therefore, there were at least two previous occasions when MDJ managed to bruise ADJ’s face.  

JD said in evidence that she could not anticipate what MDJ was going to do.  JDJ in evidence said that he knew when MDJ was going to throw something because he got a little smile on his face beforehand.  Clearly, as JD accepts that MDJ had thrown things which had hit ADJ before, she ought to have been alert to this risk.  From JDJ’s evidence, it also appears that he was outside the flat and JD was in the kitchen when MDJ dropped the toy.  There is a discrepancy about the description of the toy dropped as JDJ says it was a fire engine and JD says it was a toy drum.  This lack of consistency would fit with neither parent adequately supervising MDJ playing in the vicinity of ADJ.  Together with the fact of the previous facial bruising and JDJ’s awareness of MDJ’s facial expressions before he threw something, this leads me to conclude that there was a failure to adequately supervise MDJ and ADJ as a result of which ADJ sustained the bruises to her face on 5th and 11th/12th November, as well as on another occasion apart from these dates.  

Conclusions

Given my findings above, for the avoidance of doubt, I am therefore satisfied that the Local Authority has shown on balance of probabilities as follows:

•	The bruises and excoriation to ADJ’s ear and upper left arm were caused deliberately.

•	The bruises to ADJ’s left and right cheeks on 11th and 5th November 2014 were caused due to inadequate supervision of MDJ and ADJ by their parents.

•	The fracture to ADJ’s clavicle was caused deliberately.

•	The deliberately inflicted injuries to ADJ were caused either by her father or by her mother.