WEST LONDON FAMILY COURT

LB HOUNSLOW V N

JUDGMENT: FEBRUARY 26th 2016 : HHJ Corbett

IMPORTANT NOTICE 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 child and members of his 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. 

1.	Relevant people/bodies named in this judgement, and abbreviations used.

LA – London Borough of Hounslow
Child B:  subject of the application 
Child A:  not subject of this application; his father is AB
M –mother of Child A and Child B
F –father of Child B
MGM –maternal grandmother of both children
PGM –paternal grandmother of Child B
SW – Katie Dangerfield allocated Social Worker 
DC Harrison - (from CAIT)
HF – Hannah Flower (Paramedic)
WMH – West Middlesex Hospital 

Independent Medical Experts:

Dr W - Dr Ward - consultant paediatrician
Dr F – Dr Fairhurst - consultant paediatric radiologist
Mr M – Mr Morrison - consultant ophthalmologist
Dr S – Dr Stivaros - consultant neuro-radiologist

2.	Representation:

Miss Jamil – counsel for the LA
Miss Warner – counsel for the M
Miss George – counsel for the F
Mr Bugg – counsel for the maternal grandmother
Miss Kothari – counsel for the Guardian
PGM was a litigant in person (although assisted a great deal by Mr Bugg in relation to areas which were not inconsistent with the case of the MGM)

3.	Introduction

I am concerned with the welfare of a child, child B who is now 7 months old. I have conducted a fact finding and Threshold Criteria hearing sitting on February 22 23 24 25 2016 and today March 3 to hand down the judgment. 

4.	M is the M of both Child B and Child A. F is the father of Child B. I will refer to them in this judgment as ‘the parents’. They have been in a relationship since September 2014 and the M became pregnant in an unplanned way shortly thereafter. The parents lived together until the events of 21.9.15 with both children at a council flat held in the name of PGM, who lives with her partner. 

5.	F  is PGM’s only child. She stayed with the parents for about 2-3 weeks before Child B was born in case M went into labour, and she stayed to look after Child A whilst M was in hospital after the birth. After Child B was born she stayed about 2 weeks to help by doing the night feeds. PGM slept on the sofa downstairs with Child B in the moses basket. 

6.	Until 21.9.15 the M and F were at home with Child B most of the time together. M’s hobby is going to Bingo (mostly with her own mother) on 3-4 times a week. Child B used to stay with each grandmother on alternate weekends, usually Fridays. 

7.	F had been out of work for a long time and had obtained employment with Ocado. He was very excited to have obtained employment and to provide for his family. September 21st was his first day of a training course. 

8.	The parents have remained a couple and living together since the events of 21.9.15, until the evening of 23.2.16 during the hearing itself. Child A went to live with his own father during the evening of 21.9.15 after Child B went to hospital, and has remained there pursuant to an agreement with the LA. The M sees Child A on an unsupervised basis. 

9.	Child B had been in general good health since her birth; the Health Visitor who conducted the new birth visit said that she had no concerns at the time and that the parents engaged well with Child B and were very attentive to her needs. Child B is said by the Health Visitor to be delightfully alert and almost smiling. The SW said in evidence about M and F that she had no concerns about them as carers for the children, from her own observations. 

10.	On 11.9.15 the parents took Child B to see the GP since for the previous 2 days (according to the GP notes) she had not been feeding 50% and her nappy was not as wet as usual. The advice was to go to Accident and Emergency (A+E) , in part due to M’s concerns. At WMH the notes say that M said she had had less feeds since ‘yesterday’. M told WMH she was well up to 2 weeks ago. Her concern was a reduction in feeding.  On examination Child B was well alert active smiling baby. They were advised to return if concerned again about feeding. 

11.	Prior to 21.9.15 there had been some brief LA intervention during 2010 concerning Child A which resulted in no further action. 

12.	On 21.9.15 at 17.14h a 999 call was made by a neighbour. Neighbours had seen the F outside his flat with Child B in his arms shouting for help in a panicky voice; he seemed to be in shock. He is described as screaming at Child B to wake up. He had not called an ambulance. A neighbour DH states that she saw F in the middle of the road with Child B in his arms, looking limp and that DH was not sure she was alive. DH asked F whether an ambulance had been called and F did not reply. M arrived back, having been called by the F. The paramedics arrived in response to the neighbours’ call and found Child B lying on the sofa at home being stimulated for a response by DH who is a former nurse. Child B was very lethargic and lifeless. 

13.	Ms Flower the paramedic gave evidence that she had never seen anyone so lifeless in her 3 years’ experience.  The paramedics were told by F that Child B had become rigid and made an abnormal breathing noise, then became lifeless and limp.  Child B was taken to WMH by ambulance at 17.40h travelling ‘on a blue light’ arriving at 17.51h. 

14.	At 21.54h the M and MGM were told by Dr Davis the treating consultant  paediatrician that the CT scans had shown haemorrhages for which no cause was found and for which a potential injury from those caring for Child B must be considered and explored with Social Services. A referral to the LA was then made. Following an ophthalmology examination on 23.9.15 the M was told that the bleeding in the head and behind the eyes was highly suggestive of being shaken and that an MRI scan was necessary. This was performed on 28.9.15 and confirmed the presence of subdural haematomas and that the brain appears normal. 

15.	A skeletal survey performed on 22.9.15 was said by the treating radiologist to reveal no bony injury. Once the care proceedings were commenced, due to the subsequent uncertainty about the possibility of rib fractures, Dr Fairhurst was instructed as an independent expert to give her opinion as to any fractures and the timing thereof. Her opinion is that the presence of callus formation on the 22.9.15 images indicates that the fractures were at least 10 days old at this date. 

16.	The LA initiated a s47 investigation which concluded on 7.10.15. There was a delay of a month after the 21.9.15 before the LA issued care proceedings on 21.0.15, having obtained the parents consent to Child B remaining placed with her paternal great aunt Louise pending the outcome of these proceedings. A statement filed by Martin Forshaw on behalf of the LA provides his explanation for the delay in issuing proceedings, about which I have not invited any submissions and will comment no further in this judgment. Contact to her parents is supervised.

17.	On 20.10.15 the M told the SW that F had told her that he had seen T hit out at Child B in her bouncer a few days before 21.9.15. This was at a time when the parents had been asked to think of any incident in the 10-14 days before 21.9.15.

18.	On 16.11.15 the parents were involved in a heated argument of sufficient concern to PGM that she called the police.

19.	The parents were arrested in respect of Child B’s injuries and the police are waiting for the outcome of this case before the Family Court before sending a file to the CPS. 

20.	I have been responsible for case managing this case since issue. The PGM and MGM intervened in the proceedings on 18.12.15. I determined that it was necessary for 4 independent medical experts to be instructed, the Guardian’s solicitor acting as lead solicitor. They each provided reports and attended an experts’ meeting by telephone on 1.2.16.

21.	The LA has filed a schedule of Threshold findings dated 10.2.16.

Findings of fact sought by the local authority 

At the commencement of the hearing the LA sought findings as set out in the 10.2.16 document, in short that that the non accidental head and rib injuries suffered by Child B were caused by either her M F MGM or MGM. 

Following all of the evidence being heard the LA revised its position to that set out below.

The parents and interveners accepted the medical evidence prior to the commencement of the hearing and all medical expert witnesses were de-warned save for Dr Ward the consultant paediatrician. 

All 4 deny any knowledge of how Child B sustained her injuries. 
The M denies that she neglected either of her children, 

The Children’s Guardian has taken a neutral position, whilst (through her Counsel) also exploring the evidence in some detail.

1.	On 21.09.15 Child B presented to hospital following an episode of rigidity, abnormal breathing, floppiness and reduced consciousness [G1 paramedic notes]. 

2.	Following her presentation at hospital, it became apparent Child B had suffered the following injuries:

2.1	subdural haemorrhage at multiple sites overlying her brain [E68 Dr Stivaros] 

2.2	 multiple and bilateral, multilayer widespread pre-retinal and intraretinal haemorrhages [E36 Mr Morrison] 

2.3	fractures of the posterior aspects of the right first, second and third ribs [E23, E27 Dr Fairhurst] 

THE SUDURAL AND RETINAL HAEMORRHAGES 

Timing
3.	Child B sustained subdural and retinal haemorrhages between the 10th and 21st September 2015 [E71, E153 Dr Stivaros, E40-41, E153 Mr Morrison, E148-149 Dr Ward & Dr Stivaros, E154 Dr Ward]. The symptoms leading to Child B’s hospital attendance on 21st September 2015 are consistent with Child B sustaining the subdural and retinal haemorrhages on 21.09.15 [Dr Stivaros and Dr Morrison].

Force
4.	The force required to cause the subdural and retinal haemorrhages is outside normal day-to-day handling of a child and likely to be an excessive and unusual level of force [E38, E42, E158 Mr Morrison]

Mechanism 
5.	The subdural and retinal haemorrhages probably resulted from the application of rotational acceleration and deceleration forces [Dr Ward], such as would be applied in a shaking episode [E38, E40, E42 Mr Morrison, Dr Stivaros E74, E159].

Response
6.	Child B’s sudden change in behaviour on the 21.09.15 to rigid, abnormal breathing, floppiness, reduced consciousness are all symptoms consistent with a shaking injury resulting in subdural and retinal haemorrhages [Dr Ward]. 	

Organic explanations
7.	There is no evidence of infection, bleeding disorder, metabolic abnormality or any other organic disease/process, which accounts for these injuries [E39 Mr Morrison, E53 Dr Stivaros].

Accidental explanations
8.	There is no history of a plausible and consistent accidental explanation, which accounts for these injuries.

Likely causation
9.	The subdural and retinal haemorrhages were most likely caused by Child B being shaken forcibly [Dr Ward].

THE RIB FRACTURES 

Timing
10.	Child B sustained rib fractures between 28th August and 12th September 2015 [E24, E153 Dr Fairhurst, E154 Dr Ward]. The presence of callus formation on the 22.09.15 images indicates that the fractures were at least 10 days old at this date [E24 Dr Fairhurst].

Force
11.	The fractures were caused by the application of significant force well in excess of that used in normal day-to-day handling of a child [E158-159 Dr Ward and Dr Fairhurst] 

Mechanism
12.	The rib fractures were probably sustained during one single application of force, most likely a squeezing injury to the upper chest [E26, E24 Dr Fairhurst].

Response
13.	At the time the fractures were sustained, Child B would have suffered pain and shown distress. Subsequently Child B may have shown further distress or presented as irritable [E25 Dr Fairhurst, E154-155 Dr Ward] The medical evidence indicates that a non-perpetrator would not have appreciated the cause/reason for any further distress or irritability shown by Child B. 

Organic explanations 
14.	Child B does not suffer from any condition predisposing her to fractures [E26] 

Accidental explanations
15.	There is no history of a plausible and consistent accidental explanation, which accounts for the injuries.

Likely causation
16.	The fractures were caused non-accidentally [E27, E25 Dr Fairhurst]. 

NAI EVENTS

17.	There were probably two events: 

17.1	the rib fractures were probably sustained during the period 28th August 2015 to 12th September 2015

17.2	 the subdural and retinal haemorrhages were sustained during the period 10th September to 21st September 2015; the symptoms leading to Child B’s hospital attendance on 21st September 2015 are consistent with Child B sustaining the subdural and retinal haemorrhages on 21.09.15 [Dr Stivaros and Dr Morrison]. 

PERPETRATORS

18.	The subdural and retinal haemorrhages were probably caused by a shaking injury on 21.9.15 , inflicted by her father, F. 

19.	The rib fractures were caused by forceful compression or squeezing of the chest by either her father, F, or by her mother, M.  

FAILURE TO SEEK TIMELY MEDICAL TREATMENT

The ribs
20.	The perpetrator of the rib injuries failed to seek any medical treatment for Child B at all.

The subdural and retinal haemorrhages
21.	Child B’s sudden and serious change in presentation on 21st September 2015 necessitated the seeking of urgent and immediate medical attention. The father failed to call an ambulance. 

NEGLECT

22.	The local authority seeks a finding of neglect against the mother. The mother left Child B and Child A with F regularly, despite being acutely aware that he struggled with Child B and demonstrated preoccupation with other things during the time she left them with him. 

22.	Witnesses

I have heard oral evidence from the following witnesses, as well as considering the trial bundle in its entirety. I have listened to the recording of the 999 call. 

Dr Kate Ward, Katie Dangerfield, DC Harrison (Child Abuse Investigation Team), Hannah Flower (paramedic) both parents and both interveners.

I will not set out their evidence in detail; I deal with those relevant parts of the evidence in the section headed ‘Discussion’ below. 

All the medical reports are of high quality, all of the independent experts are truly expert in their field and I have no hesitation in accepting their medical opinions.  

Child B has made a good recovery from her injuries. I am sure that is in no small part due to the swift action of the family’s neighbours especially DH and to the expertise of the paramedics. I would like DH and HF to be informed of the court’s view. 

23.	The Law

There is no issue as to the relevant law.

A: In Re JS [2012] EWHC 1370 (Fam), Baker J summarised the current case law as follows:

(a)	In determining the issues at this fact-finding hearing I apply the following principles. First, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.

(b)	Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B:
 
i.	"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."

(c)	Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12: 

i.	"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."

(d)	Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame ElChild Babeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33: 

i.	"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

(e)	Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts. 

(f)	Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S [2009] EWHC 2115 Fam).
 
(g)	Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).
 
(h)	Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).
 
(i)	Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam: 

"There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.’

i.	The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

(j)	Finally, when seeking to identify the perpetrators of non-accidental injuries the test of 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 (see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).

B:  In the context of the requirements of the Children Act 1989, section 31(2), the threshold criteria is not concerned with intent or blame but rather with an objective standard of care. Ryder LJ in the case of Re S (A Child) [2014] 1 FLR 1421 highlighted that term ‘non-accidental’ ‘is a catch-all for everything which is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction.’ [19]. In this case, ‘the medical expert had left open the possibility of an accidental cause, albeit it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible.’ [23]. The Court of Appeal in Re S made clear the bounds of fact finding hearings are confined to discrete (medical) issues and not for matters appropriate for trial in the social and welfare context [32]. 

C. It is the task of the court is to decide on all of the evidence before it and it can depart from the view of expert evidence provided sound reasons are given for doing so (Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670 per Ward LJ.

D: Determining the facts is a difficult task which must be performed without prejudice or pre conceived ideas. The court is guided by many things including the inherent probabilities, any contemporaneous records, any circumstantial evidence tending to support one account rather than the other and the overall impression of the characters and motivations of the witnesses. (Re B per Baroness Hale)

E: As Mrs Justice Bracewell said in Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200:

'[24] …Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.'

F: When confronted with cases which turn almost exclusively upon expert medical evidence it  is helpful to have in mind the comments of Butler-Sloss P in Re LU & LB 2FLR 263 when the Court of Appeal chose to provide guidelines in particular in consequence of the case of R v Cannings [2004] EWCA Crim 1 

a. The cause of an injury or an episode that cannot be explained scientifically remains equivocal. 
b. Recurrence is not in itself probative.
c. Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.
d. The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.
e. The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.

G: In Re W (Children) [2009] EWCA Civ 59 Wilson L.J. said: 

"The moral which I draw from this case and will never forget is that an hypothesis in relation to the causation of a child's injuries must not be dismissed only because such causation would be highly unusual…”

H: It is very important to guard against a reversal of the burden of proof as occurred in Re M 2012 EWCA Civ 1580 where the Judge had found that absent a parental explanation there was no satisfactory benign explanation ergo there must be a malevolent explanation. Ward LJ stated that this conclusion did not necessarily follow unless wrongly the burden of proof had been reversed.

Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance.  Re BR (Proof of Facts) 2015 EWFC 41; Jackson J

“It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof………. Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge.”

I: Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved.  Jackson J: Re BR (Proof of Facts)[2015] EWFC 41

“ It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.”

J: Although the head injury cases might to the casual observer suggest that all children fit in a particular mould and can be expected to react in the same way to a given trauma or set of natural circumstances, that is simply not so. Mr Justice Charles in Lancashire v D & E in the same manner as Mr Justice Mostyn in Lancashire v R [2013] EWHC 3064 (Fam) drew up a list of anomalous features particular to the case before them which encouraged them away from the Local Authority’s assertion that in each of those cases the cause of the child’s injuries had a non-accidental etiology. 

K: The assessment of credibility generally involves wider problems than mere “demeanor” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance. Lancashire v R [2013] EWHC 3064 (Fam) . Propensity evidence must be treated with great care in family law (Re CB & JB (Care proceedings: Guidelines) [1998] 2 FLR 211. Character is admissible only in relation to credit.

L: When considering the LA’s TC allegations the court must apply the principles emphasised by the President in  Re A (A Child) [2015] EWFC 11 and by the Court of Appeal in Re J [2015] EWCA Civ 222. In short;
-	the local authority must first establish the facts of each and every allegation, including how the parenting has fallen below the standard of a reasonable parent;
-	there must then be an evidential link to how those facts have either placed the child at risk of harm or to have suffered harm;
-	the harm must be significant;
-	all parents will be imperfect in one way or another. The court must guard against social engineering. 

24.	Discussion

The independent medical opinion was clear at the commencement of this hearing that the symptoms leading to Child B’s hospital attendance on 21.9.15 were consistent with her sustaining the subdural and retinal haemorrhages on 21.9.15. Having heard and analysed the evidence in my judgment the LA was right to refine their finding sought in relation to the head injury. 

The parents and interveners were cross examined in some detail and at length by experienced advocates.
I have had the enormous advantage of observing them in court for 4 days, and in oral evidence for several hours each. 

Subdural and Retinal haemorrhages

I am satisfied to the requisite civil standard of proof that on 21.9.15 at shortly before 5pm Child B’s F inflicted rotational acceleration and deceleration forces upon her such as would be applied in a shaking episode. 

25.	Both M and F agree that when M came back with Child B and Child A after 4.15pm that Child B was well and was settled when M went out to Bingo at about 4.50pm. F was the sole adult present and in charge of Child B on 21.9.15 immediately before her presentation changed dramatically.

26.	I accept Dr Ward’s oral evidence that upon admission to WMH her readings including high sugar levels, lactate and blood gases all suggest that she had suddenly become ill. In addition had she been unwell earlier that day Child B would have needed an increased level of resuscitation on arrival at WMH. 

27.	Despite her presentation having changed dramatically according to F himself, whereby she was stiff and not breathing, he did not call an ambulance. In fact he called M and ignored her advice to call an ambulance. He suggested to M that he take Child B to her at Bingo. He told the CG’s Counsel in cross examination that he did not call an ambulance because he was scared. He did not reply to DH when she asked if he had called an ambulance. 

28.	F said that when he was alone with her before calling anyone he was very worried and he thought she was close to dying. Given that fear, it simply makes no sense for him to have failed to call an ambulance, unless he wished to hide his involvement in the cause.

29.	F said in examination in chief that he called Child A downstairs so that Child A could put his shoes on and go to hospital with him and Child B. He has never mentioned before that he called Child A with this purpose in mind. 

The SW made a note of her discussion with Child A with DC Harrison asking him ‘what happened on Monday’. Child A said he could hear F from upstairs shouting ‘stop Child B, he was shouting really loud’. Child A said he went downstairs to see what was going on , he saw Child B crying and F trying to get her to stop’. Child A said that Child B cries when M is out and F tries to make her stop by feeding her and telling her jokes.

30.	DC Harrison did not make her own notes, she relied on a colleague to take a note, whose name and presence is not noted in the CRIS report. The DC accepted this was an error not to include the colleague’s name and presence. The CRIS report says ‘he can sometimes hear F shouting really loud telling her to stop Child B’. The DC in oral evidence accepted that the purpose of seeing Child A that day was to ask about 21st September and she deferred to the SW’s record. 

31.	F accepts he said ‘stop Child B don’t do this now’ but that it was after Child B had gone floppy and pale. F says Child B wasn’t crying.

I conclude that I accept the account taken by the SW that Child A heard Child B crying and F was shouting very loud ‘stop Child B’ which is why Child A  went downstairs. I cannot be sure at what point F shouted this. I also accept that Child A said Child B cries when M is out and F tries to get her to stop. 

32.	F did not go to hospital until the following day. He has given a variety of reasons as to why not, including because MGM wanted to go with M, also due to going to work the next day, that he would get in the way and ask lots of questions. He told the SW he would have difficulties parking at the hospital. I accept that the F had been out of work for some time and that he, M and his parents had been keen that he obtain employment and he did not want to let anyone down. I also accept that he stayed with Child A  until Child A’s father arrived later, around 9-10pm. Despite all that I do not accept that an innocent father who had been with his baby at the time of her collapse, the only person who could properly tell the medical staff what he had observed, who had thought she was about to die, would stay away from the hospital. 

33.	F was less capable and competent as a parent than the M, who had an older child. M agreed in evidence that he struggled to feed and settle Child B. 

34.	I do not accept that the evidence shows Child B was ‘not an easy baby to care for’ as the LA contend. The totality of the evidence is that Child B had some problems with feeding and was waking every 3 hours for feed at night, and during the day was generally awake. The medical/nursing notes show Child B to be delightful. Child A said on 24.9.15 that Child B is good and he does cry sometimes. Great Aunt says there is no problem with how Child B presents. 

35.	At H222 in her police interview the M said that every few days Child B was ok then there would be one day when she was quite miserable, which the LA rely on in part to assert that Child B was difficult. Both grandmothers say that she is a generally easy child with the only problem being taking enough feed. 
I find that Child B was not a difficult baby to care for but did have some feeding difficulties which the M coped well with, but that the F struggled with feeding/settling. He agreed that he felt under pressure when she would not take her milk, he would say to M ‘you try’ and this was sufficiently often for Child A to comment on it. F was proud of Child B and wanted everyone to see him doing well but when he was feeding her she wanted M. He agreed it hurt him a bit when she wouldn’t take the milk. He felt a bit of a failure at time and that hurt, but he can’t remember talking to anyone about it. He worried that he hadn’t bonded with her. 

36.	The relevance of demeanour whilst giving evidence is always difficult to assess. People react in all sorts of different ways to giving evidence, particularly witnesses like this family who are (thankfully) strangers to these courts. I did note that the F was mostly quite calm during his evidence and his description of Child B’s collapse was delivered without much emotion. This factor alone would not weigh heavily but it is part of the evidence which I have taken into account.

37.	I did not think that F was telling the truth about how Child B presented on 21.9.15. The probable scenario is that he was tired from his first day at work, both children were in his sole care, he was on FB and scrolling the news feeds with his left (non dominant hand), with Child B on his lap. He was unable to keep her settled and with a loss of control shook her. 

Rib fractures

38.	The LA submits that there is a real possibility that either M or F caused Child B’s rib fractures between 28.8.15 and 12.9.15. 

39.	Just because I have found F to be culpable for the head injuries does not mean he automatically fractured her ribs, although I have to take account of the inherent improbability of 2 parents injuring her non accidentally in a way outside of normal handling on 2 separate occasions. The LA does not assert collusion or joint enterprise. 

40.	The parents both looked after Child B during this timeframe. Each had some time alone with Child B. The grandmothers also had some time caring for her, but the LA have rightly now chosen not to submit that there is a real possibility of either harming Child B.

41.	I do not accept that there are inconsistencies in M’s evidence about caring for Child B such that I am led to conclude she is attempting to conceal the truth. Overall I regarded her as consistent in her accounts and I reject the attempt by the LA to highlight H222 in relative isolation. (‘there would be a day when she was quite bad, miserable’). In that same police interview the M says on a number of occasions that Child B is a good baby. 

42.	The M and F were together as a couple until the middle of the hearing. The M was reluctant in her oral evidence to say that if she had not injured Child B then it must be F. She told me that she asked him at least weekly what had happened to Child B. Ultimately in her evidence after a struggle she did say that if it’s not her it must be him. 

43.	The atmosphere during such evidence is often highly charged, it was no less in this case. The court is dealing with real families and real lives. I fully accept from the M that she did not want to accept that F must have harmed Child B; her emotions were raw when she was telling me this through her sobs. She said movingly that when she sees Child B in contact she ‘looks at me as if to say ‘why haven’t you been here?’, and it kills me’. Child B is the court’s priority, if I concluded that there was a real possibility that Child B was injured by either M or F I would say so, but I am more than satisfied that Child B was injured by her Father on both occasions. I am more than satisfied that the M has not injured her baby in any way. 

‘Neglect’

44.	The LA submits that the M neglected Child B by leaving her with her half-brother and her F regularly despite being acutely aware that he struggled with Child B and was preoccupied with other things. I have considered this element with some care.

45.	I can conclude that the totality of the evidence is as follows:

Child B was the focus of her family’s attention. She was and is much loved.

When she began a relationship with F the M introduced Child A at an appropriate pace. M told the police that she told Child A that he should tell her if he had any concerns about F. This is all very positive.

When M left Child B with the PGM /MGM she prepared her nappy bag and bottles in advance.

F was keen to show he was a capable father. I have found that Child B was not a difficult baby to care for but did have some feeding difficulties which the M coped well with, but that the F struggled with feeding and settling. 

M went to Bingo 3-4 times a week, from 10-11am usually, and rarely twice in a day (21.9.15 was one of those days). Bingo was her hobby; she usually went with her own Mother.

46.	There is nothing in F’s own background that would have alerted the M to fear for Child B’s safety in his care. He is Child B’s father. He was not at work until 21.9.15. Even despite his difficulties with feeding and settling her, there is no reason why she should not have left Child B with him for short periods of time (the evidence is that it was between 1 and 1 and 1/2 hours). It follows that I do not accept (as the LA submit) that MGM should have told M not to leave Child B with him. In any event I accept from the MGM that M had not told her F struggled with feeding Child B. 

47.	However, I do consider that leaving Child B (and Child A) with F on 21.9.15 after his first day at work was a mis-judgment on the M’s part. 

48.	When PGM states in her police statement that she has done some internet research on ‘shaken baby syndrome’ and that some couples have had their convictions overturned, I do not conclude that means that PGM has closed her mind to the weight of the evidence in this case. PGM has behaved with dignity throughout this case before me, being the only litigant in person and clearly having found the case a huge strain. PGM told me in evidence that she had listed to and accepted the medical evidence. She has not had the benefit of lawyers explaining it to her as their own client, and yet she was able to accept that Child B has been injured non accidentally as is the doctors’ opinion. 

49.	MGM clearly struggled hugely with the medical evidence and the findings sought. She submits through her Counsel that she will accept without question the court’s considered judgment. MGM did not instruct Mr Bugg to challenge the medical evidence other than the appropriate exploration of some matters to Dr Ward which was skilfully done and elicited helpful information partly as a result of which the LA refined its findings sought.

50.	In her oral evidence it was clear that she was struggling to actually say that F injured Child B (if M did not). She said she thought that something else may come out (ie be revealed) in the future.  I do not see this as a valid nor relevant criticism of MGM at this stage. If, following this judgment, when I have made findings about how Child B was injured and by whom, if the MGM retains that position, then the LA may well wish to explore this further. MGM is a support for and influence on her daughter. PGM is the mother of the man I have decided is the perpetrator. Assessment of their ability to accept the court’s findings and to protect Child B as part of the wider family will be needed. I was generally very impressed with both of these ladies in respect of their commitment to their family, many young parents and grandchildren are not so lucky. 

51.	Child A has said that the F shouted at him which made him sad. He had not told his mother about this. I do not know why he had felt able. Although Child A  is not subject of these proceedings I anticipate that the LA will include this relationship as part of their assessment.

CONCLUSION

52.	Child B has been injured twice by her father, sustaining the injuries as set out [above]. The Threshold Criteria is met in accordance with the findings made herein.

53.	This M has not injured her baby. She has not neglected her baby. She has exercised some mis-judgment about leaving Child B on 21.9.15. She and the F have separated late in the proceedings and only time will tell if that is permanent. 

54.	The parties need to consider what kinds of assessments are appropriate now bearing in mind the contents of this judgment. 

55.	Child B has a close and loving extended family that has provided support to the parents both before and since 21.9.15. Without her Great Aunt Child B may well have spent the last few months in foster care with strangers. Both MGM and PGM are kind caring supportive grandmothers. I am entirely satisfied that each would treat Child B’s welfare as a priority. 

56.
•	I will hand down this judgment at 10am on 3.3.16. The IRH is listed for 31.3.16 at 2pm

•	I will hear submissions about any interim matters in the light of this judgment.