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. PR15C00419
THE FAMILY COURT AT LEYLAND

Lancastergate
Leyland

Thursday, 12th May 2016

Before: 

HIS HONOUR JUDGE DUGGAN

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In the matter of:

Lancashire County Council v AB
(injured child)

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Transcribed from the Official Recording by
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JUDGMENT
JUDGMENT
1.	THE JUDGE:  Over the last couple of days I have conducted the final hearing of these Local Authority care proceedings.  The child with whom I am concerned was born in mid 2015.  The parents and child family lived together in Lancashire.  On 9th November 2015 the parents took the child to hospital concerned about his arm.  Investigations revealed that there was a fracture to the right clavicle which was relatively new and a fracture to a left rib which was relatively old.  The child went to foster care and then in December went to live with members of the maternal family.  He has done particularly well there and the proposal made by the Local Authority is that he should stay there subject to a special guardianship order.  The mother and father remain together.  They deny that they have injured the child and seek to have the child returned to their care.
2.	The Local Authority has prepared a schedule setting out the allegations which they make.  The relevant materials have been assembled in two bundles with which I am very familiar.  I have heard oral evidence from the social worker, the mother, the father and the children’s guardian.  There is medical evidence in the case.  This has been extensively challenged on behalf of the mother and the father.  This has taken the course of the instruction of independent experts to give their opinions and through the submission of written questions which the experts have been required to answer.  The parents have rightly concluded that there is nothing else to be obtained from those medical experts through their attendance at court.  This is a combined final hearing.  The welfare determination incorporates the findings of fact and so I shall start this judgment by addressing the disputed factual issues.
3.	The burden of proof rests with the Local Authority.  There is no obligation on the carers to prove anything.  The Local Authority must prove the allegations on the balance of probabilities. In that the court will not proceed on the basis of suspicion or speculation,  the findings of the court must be based on evidence.  I take into account all the evidence and I set each piece of evidence in the context of all the other evidence.  This approach applies to the expert evidence too.  The opinion of the experts must be considered in the context of all the other evidence.  The roles of the court and the roles of the expert are different.  It is the Judge who makes the decision and it is the Judge who is in the best position to weigh the expert opinion alongside the rest of the evidence.  The evidence of the parents is of the utmost importance and throughout the case I have been considering their credibility and their reliability.  Experience shows that witnesses sometimes lie in the course of an investigation of this nature or in the courtroom.  I remind myself that people can lie for many reasons possibly out of loyalty, possibly out of a sense of shame. The fact that someone has lied about something does not necessarily mean that they are lying about everything and it certainly does not necessarily mean that they have done what they are accused of doing.  Medical knowledge is, of course, developing all the time but here we are concerned with the cause of fractured bones.  The doctors say that the fractures require the application of excessive degrees of force and there is no disagreement between the doctors when they say that.  I have reflected on the possibility that we just do not know the cause of these injuries but we are concerned here with mainstream medical opinion so this seems very unlikely to me.
4.	In order to identify the person responsible the court has to be satisfied on the balance of probabilities.  Sometimes it is not possible to identify precisely who is responsible and then the court must try to identify all those of whom it can be said that there is a real possibility that they were responsible.  In this case, it is accepted that the real possibilities are limited to just the mother and the father.  It is very desirable if it is possible that I should identify whether it was the mother or the father.  However, I have to acknowledge that if this is impossible I should not strain to do so.  Overall then the question remains whether the Local Authority have established what happened and whether the Local Authority have established who was responsible.
5.	I shall start with the wide range of evidence which is the context for these injuries.  I need to consider whether this evidence helps me in deciding whether these injuries were inflicted or accidental.  I need to consider whether this evidence helps me to identify the person responsible.  I have closely studied the parenting assessment which is overall very positive in relation to these parents.  If there had been no injuries, the social worker expresses the view that the parents could meet the needs of the child without great difficulty as it is suggested that they did before the injuries occurred.  The parents’ contact is praised.  There is clear evidence there of love and affection.  There is no distinction between the parents.  They both attract praise and have, of course, both shared caring responsibilities both before the injuries were found and in the context of contact.  There is a reference in the assessment to an occasion when home conditions were described as chaotic.  That is only one reference and I do not find it helps me in my task.  The assessment does raise a number of issues which are, however, relevant.
6.	Firstly, in relation to the father unfortunately he has a serious back condition, so serious that it has stopped him carrying out his work.  He has explained that his painful back is a constant presence but it does flare up from time to time.  It is clear that in those circumstances it is inevitable that there were times when his care of the child would be performed under strain.  It is equally clear that there were times when he could not contribute to the care of the child and, accordingly, the burden which fell on the mother’s shoulders was correspondingly increased.  The father is a cannabis user.  He explains that this is partly social but also significantly associated with relieving the pain from his back.  It is inevitable that his cannabis use will have created periods when he was unavailable to care for the child which, no doubt, increased the burden on the mother’s shoulders.  The mother did not approve of his cannabis use.  This became a source of some tension between the parents but the evidence seems clear that there was no abuse in the relationship between the parents which has to be taken into account.  The father does have a problem with anger.  In the witness box here there were flashes of anger displayed by the father although the mother made a much more graphic demonstration of anger than did he.  The mother has spoken about the father ranting and raving which is a signal for her to leave him alone.  It seems that the paternal grandmother is the person who has borne the brunt of the father’s anger and I am aware of episodes in which the father has punched walls and punched doors in his anger.  In fact, from the witness box it did seem that the father tried to justify his punching of doors in frustration with the approach taken by the grandmother.  The father has been in a low mood recently but it does not seem to have been relevant to the period in which injuries arose.  He has a criminal record.  His criminal convictions have no direct relevance to today’s decision. I note, however, that the police were called from time to time to deal with the angry incidents that blew up between the father and his parents.
7.	I turn next to the mother:  It is a sad fact that the mother was a victim of serious sexual assault in the past and she has consistently suffered as the victim of domestic violence in a previous relationship.  As a child she was particularly affected by a difficult skin condition and the overall consequence was that the mother developed mental health problems, especially depression, as a result of what she had gone through.  Her child was born in mid 2015.  The mother developed a significant infection after the child’s birth.  This meant that for a while the mother was unable to play a full role in caring for the baby and the father did more.  In fact, the father regrets that he did not do rather more than he did since, it seems, he did not recognise the symptoms of depression under which the mother was suffering.  The professionals certainly did recognise those symptoms.  The health visitor persuaded the mother to go to the GP.  The GP increased the prescription of antidepressant medication given to the mother and an increased prescription was given on 13th October 2015 which we can signpost as a point in time when the mother’s depression required an increased level of medical support.  These were young, inexperienced parents with a large number of problems of their own.  Childcare was very tiring for these parents until they arranged a split duty rota in September in order to divide their duties.  These injuries were found on 9th November 2015.  The mother had been rather ill the previous day and the result is that both parents had had little sleep and, no doubt, childcare was even more difficult than it normally was.
8.	I turn now to the injuries:  The doctors tell us of a fractured rib for which there is no explanation from the parents.  The doctors say that this fractured rib was probably caused by the squeezing of the baby’s chest applying a high degree of force.  It is the sort of thing that a carer might be driven to do in anger or frustration during childcare responsibilities.  Clearly this cannot be an injury which an immobile baby can inflict on himself and experience indicates that this kind of injury is commonly the result of an incident in which a carer inflicts injury on a child.  There is no medical explanation for this injury and the doctors expressed the view that it probably occurred between late September and mid-October 2015.  As I have already indicated this medical opinion was challenged by obtaining further opinions.  The parents submitted questions which were answered and, for me, a clear medical picture has emerged.
	The fracture to the clavicle is less straight forward.  The father, of course, has described an incident on 9th November 2015.  This kind of injury is commonly the result of an accident.  A child or, indeed, an adult may fall on an outstretched arm to cause this injury or might fall and land on the shoulder to cause this injury.  However, in the case of a non-mobile baby it is not easy to understand how this could occur.  The doctors are clear that it needs an application of excessive force.  In this case there was no bruising or other marking on the child’s body.  The expert doctors expressed the view that a fall was more likely to be the cause rather than the pulling force described by the father.  The date of the incident given by the father (9th November 2015) is acceptable to the doctors although it is possible that the injury might have occurred a few days earlier.  The treating doctors seemed to have struggled with this injury, at times expressing the view that it might well have been caused by an accident such as that which the father described and at other times expressing the view that it could not.
9.	I turn to the parents’ account:  The parents both say that they were unaware of any issue with the child’s ribs until the skeletal survey revealed the fracture.  The child had been in their joint care.  They are very clear to exclude the possibility that any other person could be responsible for these injuries.  It is clear that the symptoms of a fractured rib would only be apparent to the person responsible for causing the injury or somebody else who was present.  Someone coming upon the child at a later stage would probably see nothing significantly wrong.  The parents tell me that they saw nothing although since the child was teething at one point, symptoms might have been concealed.  Indeed, at another point the child had a viral condition which affected his breathing and feeding.  Indeed, the parent went for medical help in relation to that problem.  My attention is drawn to the fact that the professionals who provided that medical assistance saw no cause for concern and no injury was suspected even by them.  The context then is that these problems of teething, breathing and feeding will have produced a child who was not easy for these parents to care for.  In evidence the mother minimised the problems not only the child’s problems but her own problems.  The father in evidence was perhaps more realistic in describing the problems which they had.
	Both parents gave evidence for a significant period of time. Their cross-examination was not oppressive but they both took objection to answering questions about what had happened.  At times the father just flatly declined to answer questions.  The mother, on a number of occasions, produced an angry outburst of temper and bad language in the witness box.  At times she seemed to believe that she was the victim in this case not the defenceless baby with fractured bones.  Neither parent seemed able to understand why they were being asked about the bruising to the toe of an immobile baby.  Overall, the mother was the less impressive witness.  So far as her reliability and credibility are concerned, at times she was evasive; at times she was defensive.  In fairness, the father is not immune from some of this criticism but overall he was the more impressive.  I remember, in particular, an impressive phase of evidence when the father recognised just how scary it was to contemplate that his immobile baby had a fractured rib of which the parents knew nothing.
	In relation to the clavicle, the parents gave me a detailed account.  The mother was rather ill on the night from 8th to 9th November with the result that alongside childcare responsibilities they both had little sleep.  The family went out to the grandparents on 9th November and they came home in the evening.  As normal, the mother prepared and put the child to sleep and then went to bed herself.  The father stayed up ready to deal with the early hours feed.  In the event, the child cried to be fed at around midnight and the father did not hear the cry and it was necessary for the mother to alert him.  She was able to go back to sleep and leave the father in charge of this early hours feeding operation.  The father took the baby to the living room.  He says that the child was rather agitated and would not readily take the bottle.  He sat himself down on the armchair and he stood the baby on his knees facing him.  The father explained that with his hands he held the child’s two wrists and gently bounced the child up and down to try and settle him down for feed.  The father explained that he let go of the child’s left wrist in order to use his own right hand to move the bottle from the chair to the table.  He explains that at this point the child fell, the father grabbed the child’s left wrist and pulled the child back from his fall.  The father did not remember any contact between the child and any hard surface.  The father’s case was put on the basis that this fractured clavicle was caused by the yanking force as the father pulled back the falling baby.  The expert witnesses do not categorically exclude this possibility although their expert opinion is that it is improbable as the explanation for an injury of this nature.  The doctors believe it more likely that this injury would have been caused by an impact with a hard surface.  When the doctors had expressed that view the father prepared a new statement of evidence and introduced into his account the possibility that there was such an impact with his chair.  It is important to reflect that this was not the account that the father gave to the mother on the night; it is not the account that the father gave to the police and it is not the account which the father put in his original solicitor’s statement for the purpose of these proceedings.  He was, of course, cross-examined about this.  The injury concerned the right clavicle which was, of course, the side of the child which the father continued to support as the left hand side of the child slipped away.  The right hand clavicle was the side of the child which was close to the chair and it seems to me that the force which could be involved in that side of the child striking the chair could only have been of a relatively limited nature.  This new explanation from the father was put to                     Dr Cartilege in the form of a written question.  Like me, he has difficulty understanding how this could entail a sufficiently firm impact between shoulder and chair in order to cause the fracture.  The father explains that the child was crying; the arm was visibly limp and it was obvious to him that the child had been significantly hurt.  He awakened the mother and gave his account.  The mother agrees that the arm was then limp and had not been seen to be limp before.  The father proposed that an ambulance be called. The mother was noticeably less keen for an ambulance to be called than the father but neither of them pursued the idea when the child seemed to settle down and the possibility of sleep was presented.  The household then went to bed.  The father slept until 11 am the following morning.  He was then awaked by the mother.  The maternal grandmother had apparently called as planned at the home and so he was awakened to join the group.  In the meantime the mother had dealt with the child at about 4 am and at about 8 am.  On these occasions the mother accepts that the child showed signs of being hurt, the limp, painful arm was apparent and the child was not prepared to take much in the way of feed.  The mother took no step to secure any help for this injured child.  The maternal grandmother arrived as had been planned.  She was shown the child and expressed the view that he should be taken to hospital.  Only then did the child receive the medical attention that was needed.  It is clear that the parents had discussed medical attention previously during the night.  Mother was against it and nothing was done but following the arrival of the grandmother, medical attention was belatedly obtained.  My attention has been drawn to inconsistencies in the parents’ account.  Inconsistencies as to whether Calpol was given or not; inconsistencies as to the nature of the child’s cry; inconsistencies as to exactly where the child was when the father assumed care for the early hours feed.  In addition, my attention has been drawn to the fact that at hospital it seems that family members urged the parents to be careful as to the account they gave to the police.  I do not find that any of these small pieces of detail helped me in my task.
10.	I turn now to the findings that I do make.  On 9th November 2015 the child had a fractured rib sustained in mid September or early to mid October 2015.  This was an immobile child without medical abnormalities.  The parents say they do not know the cause of this fracture.  However, they were inexperienced parents who were both the subject of significant pressures of their own.  The probability I find is that the cause of this fracture was a squeeze applying excessive force to the chest of the baby inflicted by a frustrated carer.  The only real possibilities are the mother and the father so I have closely considered features of the evidence relating to each.  Both parents cared for the child.  Both had time alone with the child and, therefore, both had the opportunity to feel the frustration and inflict the injury.  They were both under pressure.  The father had his bad back which was, no doubt, stressful for him in relation to childcare.  This undoubtedly increased the burden on the mother.  The mother had depression and other illnesses which, undoubtedly, increased the stress of childcare for her but, equally, this must have increased the burden and strain which fell on the father’s shoulders.  Neither parent criticises or seeks to place blame upon the other.  The father had issues of anger in the past involving loss of control.  However, I have seen in court that the mother has issues of anger involving loss of control.  Drawing together all these matters and the other matters to which I have made reference, I conclude that it is not possible for me to identify which of the mother or the father is the more probable perpetrator.  It is clear that it was one or the other but I am unable to identify which.  The parent who squeezed the child must have known through the child’s reaction that the child had been hurt.  However, that parent took no steps to secure treatment for the child but instead concealed what they had done.
11.	In fact, my conclusion is that the parents both know who is responsible for squeezing and fracturing the rib.  The parent who did it must know because they could not do it without being aware of what they had done.  The parent who did not do it probably has not seen the symptoms but they know that the injury must have been inflicted by their partner.  In evidence both mother and father refused to believe that the other was responsible.  I must conclude that their attitude places their own relationship as a couple ahead of the importance of protecting their child from the risk of repetition.  The parents have spoken recently of a preparedness to separate if a finding is made that one is responsible and the other is not.  On analysis what they are telling me is that if one of them fails to get away with what they have done they will then separate and hope to offer the child a home.  I am afraid this represents a failure on the part of both parents to protect the child.
12.	I turn to the fractured clavicle:  Normally this kind of injury is an accidental injury but in the case of an immobile child the picture is not so clear cut.  In this case, there is nothing else to indicate that the child had received an assault, no bruising and a blow to the clavicle would be an unusual facet of assault.  A fall onto an outstretched arm or a fall onto the point of the shoulder is a real possibility.  However, the Local Authority asks me to infer that the child has been assaulted because the father’s account is rejected.  I reject the possibility that the child was injured before the father took over the feed in the early hours of 9th November.  The injury was not then apparent as it became apparent to the father later.  Therefore I accept that the injury to the clavicle occurred at the time when the father says that it occurred which, of course, is a time when the mother was asleep.
13.	Turning then to mechanism:  I accept the medical evidence that it is improbable that an injury of this kind has been caused by the pulling mechanism described by the father.  I have heard the father on the subject and I reject the pulling mechanism as the cause of the fracture.  However, I do find that this fracture must have been caused by an impact.  This is not an injury which necessarily carries with it the inference of assault.  It is an injury more likely to be the result of a fall than it is by an assailant striking a blow to the shoulder.  The father has only recently raised the possibility of an impact with the chair.  This has been raised by him only since the medical evidence pointed in that direction.  The inevitable consequence is that his credibility on this issue is very low.  His speculation that the child might have fallen against the chair is difficult to accept having heard him and I find it probable that something else has been responsible for the fracture.  I accept that this was a father under pressure which raises the possibility of assault but, in the father’s favour, it was him who wanted to go to hospital where this injury would have been exposed.  It was the mother who triggered the fact that the injury was concealed for some hours.  In the end it is the nature of this injury which persuades me that I should conclude that there was no assault.  I find that in the father’s care he negligently dropped or allowed the child to fall so that the arm or shoulder struck the floor or some other object with sufficient force to cause the fracture to the clavicle.  This is an incident that he is not prepared to tell me about, presumably ashamed for his want of care for the baby.  It is, of course, significant that this finding does not make it any more likely that the fractured rib was inflicted by the father rather than by the mother.
14.	Turning to the mother:  She was asleep when this fracture to the clavicle occurred.  She was told by the father his version of an accident and she has accepted the father’s account.  The mother’s failing is in her failure to seek early treatment for this injured child.
15.	Turning then to the outcome of the case:  In the light of my findings there is little controversy so I can be brief.  This child suffered very serious injury to the rib in the parents’ care.  I am unable to identify which parent did it but it was one of them and they both know who it was.  One, therefore, squeezed the child the other is failing to protect the child from that parent.  The picture is that a parent has reacted to the pressures of childcare by inflicting really serious harm to this baby.  The parents have spoken about separation if it was necessary but, of course, this does not address my finding.  In any event, the parents’ possible separation would be reluctant and, in my view, unreliable.  Past harm is the best indication as to the risk of harm for the future.  Nothing has changed so far as the parents’ household is concerned.  Certainly the person responsible for squeezing the baby has not been identified; they have not received help, counselling, assistance or support to avoid any repetition.  The result is that there has to be a high risk that what they have done once they could do again and, as in the past, the risk the harm which a child would suffer would be of a very serious nature.  In these circumstances it is clear that there are overriding interests of welfare which make it impossible for this child to live in the care of these parents.  It is both necessary and proportionate for the child to live elsewhere.  Happily a placement in the family is available.  The child has been in this placement now for a little while and it is tried and tested.  There is no criticism raised of that placement.  I know that the proposed special guardian is in court.  I know she has been following my words.  I am confident that she understands why it is necessary to protect this baby from both parents.  One of them has inflicted serious harm; the other has failed to protect the child.  In those circumstances it is necessary for a carer to be vigilant to ensure that nothing like this ever happens again.
16.	I am able to conclude the case by granting a special guardianship order.  The contact plan has been agreed.  Both mother and father must have supervision for their contact.  We must protect this child from both of them.  I have distributed in draft the order I propose. 
(End of Judgment)