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.

IN THE FAMILY COURT	Case No: NE16C00605 
SITTING AT NEWCASTLE-UPON-TYNE
	The Law Courts 
	The Quayside 
	Newcastle-Upon-Tyne
NE1 3LA 

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: B (A CHILD)

Friday, 6th January 2017

Before:

HER HONOUR JUDGE HUDSON

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Re: B (A Child)

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Counsel for the Local Authority: Mr Nathaniel Garner
Counsel for the Mother: Miss Christine Harmer 
Counsel for the Father: Mr Thomas Finch
Solicitor for the Child/Guardian: Miss Elspeth Thomson
Counsel for the Intervener: Miss Katherine Wood 

Hearing dates: 3rd and 6th January 2017
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APPROVED JUDGMENT

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JUDGMENT
HER HONOUR JUDGE HUDSON:
Introduction
1.	I give this judgment at the conclusion of the final hearing in care proceedings concerning a young boy, X, who is now 4 years old.  X is the only child of the relationship of M and F, who are both 19 years old.  The proceedings were issued in August 2016 but arise from events in October 2015, when X sustained bruising for which the treating medics considered there was no accidental explanation and which should therefore be considered a non-accidental injury.  This alleged non-accidental injury to X is the only issue which, belatedly, precipitated the issue of proceedings. 
2.	X’s young parents, both only 15 when he was born, separated before his birth.  X has always lived with his mother, who also has a younger child who is X’s half-sibling.  F has been very involved with X since his birth and has had regular contact including staying contact with him.  It was during weekend staying contact with F, and his then girlfriend, INT, that the bruising to X was first seen.  As a result of this, INT was joined to the proceedings as an intervener as implicated in the pool of potential perpetrators of any non-accidental injury. 
3.	X has continued to live with M since the events of October 2015.  His contact with F ceased for some weeks but resumed in December 2015.  It has been supervised since then, initially by the two local authorities involved but more recently by the paternal grandparents.  F and INT had been in a relationship for about two and a half years in October 2015 and were living together.  They both say their relationship ended in about June 2016, although they agree that they still have regular contact with each other and neither rules out a resumption of their relationship in the future. 
4.	The case was initially allocated to a district judge and listed for a discrete fact-finding hearing in October 2016, exactly a year after the events in question.  The case first came before me on an application to vacate that hearing only days before the hearing was due to start.  There were significant gaps in the evidence, as a result of which I accepted the hearing could not proceed.  I was extremely troubled by the delays, in the first instance in the issue of proceedings and then the prospect of a further significant delay of months before the case could be relisted.  As I had a gap in my list in January 2017, I listed the case for a composite fact-finding and welfare hearing on 3rd January 2017. 
The Delay
5.	X was taken to hospital by his mother on Monday 26th October 2015 when the bruising was first seen by medics.  A referral was made to social care by the examining consultant paediatrician.  Despite a child protection investigation, and X and his younger sibling being the subject of child protection plans, no proceedings were issued by LA1.  In February 2016, M and the children moved to a different address in the area of a neighbouring local authority, LA2.  A transfer-in conference was held in April 2016, which continued the child protection plans.  X remains subject to a child protection plan, although the plan in respect of his younger sibling was ended in June 2016.  
6.	While LA2 rightly recognised that care proceedings were required to determine the circumstances in which X sustained this alleged non-accidental bruising, the proceedings were not issued until 1st August 2016, more than nine months after the events in question.  
7.	The police became involved following a referral on 27th October 2015 from LA1.  F and INT were both interviewed as voluntary attenders on 3rd November 2015.  Other statements were taken, including a statement from M, on 16th November 2015.  The police decided no further action was to be taken.  This appears to have influenced the decision by LA1 not to issue care proceedings.  The case papers include the police disclosure. 
8.	Regardless of the decision to prosecute or not, care proceedings were required to determine issues within the family jurisdiction and from a welfare perspective.  The decision of LA1 to take no action and LA2’s delay in issuing proceedings have had an inevitable impact on the fact-finding element of the final hearing, as evidence was being given of events now over 14 months ago.  Mindful of the delays, I listed the case for a composite final hearing as it was clear to me that a discrete fact-finding hearing would not provide for a more swift resolution of the issues overall.  After giving my provisional view at the hearing before me in October 2016, no party opposed that course. 
The Position of the Parties
9.	The local authority seeks findings in accordance with the amended schedule dated 3rd January 2017.  In essence, the local authority seeks a finding that the bruising to X was a non-accidental inflicted injury caused by F or INT.  The local authority seeks findings relating to the delay in seeking medical attention and failure to protect.  The local authority supports M as a carer for X, with ongoing contact with F supervised by his parents.  The local authority argues that the progression of contact must be determined in the light of the responses of the parents and the paternal grandparents to the findings.  The local authority seeks a twelve-month supervision order, the making of which is supported by all other parties. 
10.	M invites the court to consider that the findings sought against her in relation to failure to protect or failure to seek medical attention should be seen in the light of her limited knowledge of the circumstances at the time and to conclude that the finding is not justified.  She supports the local authority’s welfare planning.  She agrees that contact between X and his father should remain supervised in the light of any findings made against him.
11.	F denies causing any injury to X and says that nothing happened while X was in his care over the weekend when the injury was first seen.  He says INT could not have caused injury to X, indeed he says he would not believe it even if findings were made against her.  On his behalf, Mr Finch highlighted aspects of the evidence which he said could and should lead me to exclude F as the perpetrator of any non-accidental injury.  In terms of welfare, F seeks contact with X.  Mr Finch argues that a child arrangements order should be made defining contact in the light of the limited contact the local authorities have facilitated, to give a clear progression of contact between X and his father to include staying contact. 
12.	INT says she is not responsible for causing injury to X and that F could not have caused any injury either.  Her position essentially mirrors his in this respect.  She says she was not involved in X’s personal care at any time.  She has not had any contact with X since the events in question.  On behalf of both F and INT, it was submitted that no findings of a failure to protect or failure to seek medical treatment should be made.  
13.	The children’s guardian is CG.  She supports M as a carer for X, subject to a supervision order being made for a period of twelve months, principally to address issues relating to contact.  She does not support any defined order being made in respect of contact but considers that it should develop in the light of the responses to the findings and in conjunction with the local authority. 
The Legal Framework 
14.	The local authority seeks findings in satisfaction of the threshold criteria.  It is for the local authority to prove its case as to threshold.  The burden of proving a fact rests on the person asserting it.  The court must guard against any reversal of the burden of proof.  It is not necessary to resolve every factual dispute, only those which will inform the planning for X.  Where so-called non-accidental injury is alleged, the fact of such injury must be proved before any question of perpetration arises.  The standard of proof is the simple balance of probabilities, Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.  The inherent probability or improbability of an event on the one hand, or the usual frequency or infrequency of an event on the other, does not alter the standard. 
15.	The standard to be applied to the identification of the perpetrator of any non-accidental injury is also the balance of probabilities, Re S-B (Children) (Perpetrator: Non-accidental Injury) [2009] UKSC 17.  A perpetrator should be identified where that can properly be done on the balance of probabilities.  There is, however, no obligation to identify the perpetrator and the court should not strain to do so where the evidence is insufficient to make a finding.  Where the perpetrator cannot be identified on the balance of probabilities, the court should identify who is within the pool of perpetrators.  A person is within the pool of perpetrators if there is a real possibility that he or she was responsible, North Yorkshire County Council v SA [2003] EWCA Civ 839. 
16.	Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.  As I have considered the evidence, I have made my assessment of the evidence I can rely upon and that which I have concluded I cannot.  I have weighed the evidence which may implicate a person in relation to any finding against that which points in another direction.  I have considered the evidence in relation to each aspect of the case in the context of the case as a whole.
17.	The evidence before the court includes expert medical evidence.  The court is not bound to accept the views of an expert and, whilst appropriate attention must be paid to their opinions, the evidence of experts is to be weighed in the balance with other relevant evidence.  The court must reach its own conclusions on the totality of the evidence, which may vary from those of an expert.  The court will consider alternative explanations for a medical finding on their merits.  It is important in every case to consider, to the extent that is appropriate, the possibility of an unknown cause: even where all possible causes have been excluded, the cause may still remain unknown. 
18.	During the course of the hearing, I heard evidence from M, F and INT.  As well as considering the written and oral evidence of them, I had the opportunity of seeing them give evidence and observing them during the hearing.  In assessing their evidence and considering their demeanour and presentation in court, I am mindful that people can present in very different ways in stressful situations such as this and have not based conclusions on their presentation alone.  Their evidence is of the upmost importance and it is essential that the court forms a clear assessment of their reliability and credibility. 
19.	When considering the evidence, I bear in mind that a witness may tell a lie for many reasons and not necessarily to hide a person’s guilt.  I have cautioned myself against an assumption that a lie about one aspect of a case renders other evidence from the same person unreliable or untrue.  I have in essence given myself a Lucas direction.  Where, as here, F and INT have said they simply do not know how the bruising to X was obtained, I have taken appropriate account of the prospect that this is indeed true.  The relevant law was given consideration in Re X (Children) (No 3) [2015] EWHC 3651 (Fam) and Re Y (Children) (No 3) [2016] EWHC 503 (Fam).  In his judgment in Re Y, Munby P said that the legal concept of proof on a balance of probabilities must be applied with common sense. 
20.	The findings I make will inform the planning for X.  They may well have wider implications for the involvement of these young parents and INT in the lives of other children now and in the future.  Against this background, I make such specific findings as I consider are properly established applying this legal framework.  
21.	In terms of the welfare determination, X’s welfare is my paramount consideration in accordance with section 1 of the Children Act 1989.  I must have regard to the general principle that delay in determining any question is likely to prejudice his welfare.  I must not make any order unless I consider it better for X than no order.  I must have particular regard to the factors identified in the welfare checklist in section 1(3) insofar as I consider them to be relevant to him. 
22.	The only placement option proposed is X’s continued placement with his mother.  Even if I were to make findings against M which implicated her in the bruising to X, whether as a perpetrator or failing to protect, the local authority does not seek X’s removal from her care, nor is it proposed by F or the children’s guardian.  In addition to X’s placement, the issue of contact falls for consideration, particularly X’s contact with his father in the light of such findings as I make about the bruising. 
The Medical Evidence 
23.	Before I turn to the chronology, I will set out the medical evidence which provides the context for those events.  The medical evidence in the case has been provided by Dr R.  She examined X on Tuesday, 27th October 2015 at Hospital A following a referral from Dr G, the examining consultant paediatrician who saw X on 26th October 2015.  Dr R is a consultant paediatrician of some 15 years.  She was previously the designated doctor for child protection for a period of five years and is now a consultant in forensic paediatrics and community child health.  She regularly gives evidence as a treating paediatrician and gives expert opinion evidence in court proceedings. 
24.	The proceedings were case managed by a district judge on issue.  The order of 24th August 2016 recorded that no party proposed a Part 25 instruction, but that questions were to be put to Dr R by agreement between the parties.  I clarified the position before Dr R gave evidence and was told she did not receive a letter of instruction in accordance with best practice, however nobody took issue with the manner of her involvement and the way in which the additional questions had been put.  In the light of Dr R’s experience as a paediatrician in giving expert evidence, I was satisfied that she was aware of her duties as an independent expert witness.  Indeed, her careful consideration of a possible explanation for the bruising explored during the course of the hearing emphasised that view. 
25.	Dr R examined X on Tuesday, 27th October 2015, two days after the bruising was first said to be noted.  Photographs were taken in the course of her examination.  These photographs have been available to me, together with the relevant medical records from both examinations.  The first examination took place in A&E the previous evening, initially by a paediatric registrar who noted an approximate one-centimetre bruise to the base of the penis with some mild swelling and tenderness when the penis was palpated or moved.  There was no bruising or swelling to the shaft or tip of the penis or his testes, genital area, anus or buttocks.  M is recorded as reporting that X seemed in pain when she tried to clean his penis on changing his nappy.  
26.	Dr R examined X the following day.  She recorded that X was relaxed when playing but became very wary during the examination and extremely distressed when Dr R lifted his penis to see if there was bruising underneath.  She recorded marked bruising at the base of his penis which was then yellow and purple-ish.  His distress was such that no measurements were taken at the time.  She subsequently measured the injury from photographs as approximately two by two centimetres.  In evidence, she said the bruising was probably more diffuse than on examination the previous day. 
27.	Her initial conclusions were set out in her report dated 6th November 2015 at paragraphs 13.6 to 13.8 at E7 as follows: 
“There is no medical explanation for the bruising to his penis.  This is therefore a result of trauma.  This is a very unusual site to get an accidental injury, particularly in a child wearing a nappy.  M has alleged that X said that he was nipped.  A very forceful nipping of the base of his penis could have caused the bruising noted.  This would have hurt and caused X distress.  X was very tender when examined.  Given that it is reported that this bruising was noted on Saturday, it is very likely that he has been either as tender or more tender in the preceding days.  I am concerned that his father did not seek medical advice for this.  
In conclusion, it is my opinion that the penile injuries are highly likely to be non-accidental injuries.  It is essential that this is investigated further and in particular that information is sought from father and his girlfriend as to what happened over the weekend.” 
28.	Dr R provided a supplementary report on 14th December 2015, having been provided with interviews of F and INT.  In relation to the timing of this, she said this at E11: 
“The key question is whether the injury that caused this bruise could have occurred before X went into his father’s house, i.e. before Friday at six o’clock.  I have reviewed the photos of the bruising.  It is not possible to age bruises accurately.  Bruises can also come out at different times so some bruising may be delayed, particularly in deep areas such as thighs or buttocks.  The bruise was noted at 11am.  When they next changed his nappy at about 12.30pm there was no difference in the mark.  When they changed him again at about 2pm, the mark had started to go down and it was not as purple as it was when they saw it on the morning.  It was unchanged at 5pm.  In my opinion it is highly unlikely that an injury sufficient to cause this degree of bruising could have occurred on the Friday and then the bruising not to develop until over 30 hours later.”
29.	This opinion was reinforced by Dr R’s response to a question put by the parties regarding the possibility that an episode which caused the bruising happened before X went to his father on Friday, 23rd October 2015.  At E23 to 24 she said this: 
“No bruising abnormalities were noted on X until the morning of Sunday, 25.10.15 at 11am.  The last nappy change when everything was reported as normal was around 4pm on Saturday, i.e. 22 hours after he left his mother’s care.  In my opinion it is not possible that the bruising to X happened before he left his mother’s care at 6pm on the Friday.  This is because I do not believe that it is possible that the injury that caused the bruising could occur and there be no abnormalities noted for at least 22 hours.  On the current information it is my opinion that the injury that caused the bruising occurred sometime between around 4pm on the Saturday, when there was no bruising reported, and 11am on the Sunday morning.” 
Dr R discounted as the likely cause of injury an episode when X, wearing a nappy and dressed, slipped between the seats in a car.  
30.	Dr R came to give evidence on the first day of the hearing, Tuesday 3rd January 2017.  Before she was called, she informed the advocates that she had reviewed the material and wanted to consider further whether there was a medical cause which provided an acceptable explanation for the medical findings, namely balanitis (an inflammation of the penis).  She said she had shown the photographs to a paediatric surgical colleague who considered the photograph taken on 27th October 2015 could be resolving balanitis. 
31.	Dr R was told of a photograph produced by INT from her phone, which was said to be of the bruising when it was first seen.  Dr R said it would help her to reach a concluded view.  By agreement between the parties and with my consent, Dr R returned to the hospital to consider the photograph and liaise with the consultant paediatric surgeon.  Later on 3rd January 2017, I received a further report from Dr R.  The relevant part of the report reads as follows: 
“When I saw X on 27.10.15, he had marked bruising at the base of his penis.  Photographs were taken of this.  It was my opinion that this was the result of an injury and that there was no medical explanation for the bruising.  On reviewing the photographs and records prior to attending court on 3.01.17, I reconsidered this opinion.  Bruising of the penis can occur as a result of balanitis, balanoposthitis, inflammation of the glands and foreskin.  I have seen this before in young boys.  I discounted this in X because there was no history of discharge and no redness or swelling of the tip of the penis but only localised bruising at the base.  
However, I decided to review this opinion with one of the paediatric surgeons because they see many children with balanitis.  I showed the photographs to the paediatric surgeon on 3.01.17.  It was his opinion that this bruising could possibly represent late stages of resolving balanoposthitis.  We agreed that the most helpful way to clarify this would be to review photographs that were taken when the bruising was initially noted.  
Following my attendance at court, I was emailed a digital photograph.  I assume this is the photograph taken by INT as referred to in her statement, taken after they had noticed the bruise.  This photograph is of poor quality, however it demonstrates well-localised bruising at the base of the penis.  There are two discrete areas of purple bruising within the larger area of blue-ish bruising.  The lower part of the penis looks normal; in particular, there is no redness and no obvious swelling.  
I have reviewed this image with the paediatric surgeon.  We are both of the opinion that this appearance does not fit with balanoposthitis and are confident that the bruises are a result of trauma and that balanoposthitis can be excluded as a possible cause.  I would also like to add that I am aware there is an allegation that this injury was the result of nipping.  The two discrete areas of purple bruising do fit with a very forceful nip.” 
32.	Dr R had been informed of accounts from F and others that X had complained of having a ‘sore willy’.  At my request, the advocates prepared a schedule of the relevant entries which was emailed to Dr R.  When Dr R returned to give her evidence on 4th January 2017, she said she received the schedule that morning and therefore after she wrote the report the previous day.  In oral evidence, Dr R confirmed she reached her own conclusions.  She said she is strongly of the opinion that it is not balanitis and was reassured that the paediatric surgeon had the same view. 
33.	She explained she had revisited balanitis as a possibility in the light of the account of X having a sore willy and other children she had examined in the intervening period.  Dr R also confirmed that the schedule of entries recording soreness to X’s willy was only of relevance if there was otherwise evidence that there was a soreness to his penis on 25th October 2015.  
34.	Other salient aspects of Dr R’s oral evidence were:
i)	Her explanation for the conclusion that bruising could not have appeared on Sunday, 25th October 2015 following an episode on 23rd October 2015 or earlier.  She said the skin on the penis is thin in contrast with bruising where there is deep tissue.  She did not accept that bruising would not be visible for that period.
ii)	She stressed the tenderness and discomfort that X experienced.  She did not accept that X would not have demonstrated real discomfort when he was cleaned following the injury being sustained.  There was no such description before the bruising was seen.  She said it would have caused a serious amount of pain and discomfort and X would have cried at the time the injury was discovered. 
iii)	She ruled out X causing the bruising to himself or another child causing the bruising to him. 
35.	After Dr R’s evidence was completed, I clarified with the parties whether any Part 25 application was to be made (as had been flagged up as a possibility).  No such application has been made, in my judgment, quite properly.
The Evidence of M, F and INT
36.	I will deal with the evidence in relation to specific events as I consider the relevant chronology.  I make these initial observations.  The forensic process has not been assisted by the delay.  Evidence was given in January 2016 about a weekend in October 2015.  This was particularly evident during M’s evidence when she evidently struggled to remember the sequence and detail of events.  I did not consider this was in any way deliberate but a consequence of the situation.  At times she struggled to understand the questions, particularly those asking her to consider the question of a failure to protect based on information available to her at the time. 
37.	F and INT were both apparently straightforward in their evidence.  Their statements and oral evidence provided detailed accounts of the events in question.  Despite their separation, they continue to have regular contact with each other and I detected clear ongoing feelings between them.  F has, until very recently, said he would like to reconcile.  Although his recent statement drew back from this somewhat, I concluded he continues to have feelings for INT.  Likewise, although her written evidence was that the relationship was over, she was visibly upset when she was asked about their separation in evidence. 
The Background 
38.	M and F were very young parents when X was born.  Having separated before his birth, they each formed other relationships.  F and INT formed a relationship when X was a baby so INT was involved with him from then on.  It is agreed that she contacted M before the relationship and she and F got together to say that she recognised M’s position as X’s mother and that she would not do anything to interfere with it.  F and INT both say he always undertook X’s care needs, in particular changing him and bathing him.  Nonetheless, INT says she loved X as if he were her own.        
39.	F has been an involved father since X was born.  He has had contact which, for considerable periods leading up to October 2015, was for two nights each week.  M and INT both described F in very positive terms as a father to X.  F spoke in similarly positive terms about INT’s relationship with X.  Relations between M on the one hand and F and INT on the other have been ambivalent.  I heard that M and INT have sometimes socialised and have had a cup of tea with each other on occasions whilst at other times social media has provided a forum for negative communication between them. 
40.	F and INT said they were in the habit of taking photographs if X had bruising on his arrival for contact, it appears by way of protection in case they were accused of harming him.  M also formed another relationship after her separation from F.  That relationship ended in the summer of 2015.  At the time of the events in question, M and her two children were living with her then former partner’s mother, AB, and her former partner, XY, was a visitor.  The relationship ended in difficult circumstances with allegations from M against him of domestic abuse.  M accepted in her evidence that, although this former partner is not the father of her younger child, she deliberately misled him about this for a period of months.  
41.	X was attending nursery during the relevant period.  This allowed M to attend college.  On all accounts, X was able to speak short and simple sentences by October 2015.  F and INT both say in their evidence in the proceedings, and in their police interviews, that X had a sore willy in the preceding weeks.  In her statement to the police, AB also described a slight discomfort when X’s nappy was changed in the week preceding the bruising being noted.  
42.	M’s account to the police in her written and oral evidence is that there was no injury to X’s penis when he went for contact on Friday, 23rd October 2015.  She said she changed his nappy before he left, as she always did.  Although contact usually took place between Friday and Sunday, there is agreement that over this weekend it was to take place until the Monday.  The agreement in relation to this appears to have been reached before the contact started and related to the availability of the paternal grandfather who transported X. 
43.	F and INT agree that there was no sign of injury when X arrived on Friday, 23rd October with a nappy change soon after his arrival, once again as F said was his usual practice.  He and INT were living in a one-bedroom flat so that X slept on an inflatable bed in their room when he stayed.  F and INT both say that they were together throughout that weekend.  There was no time when either was at least out of earshot.  They both say nothing happened which could have caused injury to X.  They also said the walls in their flat were thin so they would have heard anything untoward if they were in a different room. 
44.	On Saturday afternoon, INT’s younger sister was with them for a few hours.  She is a similar age to X.  F and INT were both clear that nothing untoward happened when she was with them.  F said X usually goes to bed at about 8pm when he is with him but he and INT say that X stayed up until around 11pm on the night of Saturday, 24th October 2015 because he would not settle when he was put to bed at his usual time.  
45.	F’s statement recalls nappy changes at 4pm and 11pm that day, when he was clear that nothing was seen.  In oral evidence he said there was a further nappy change, not otherwise referred to, at about 8pm (when X was put into his pyjamas).  I found this a surprising omission from his statement which otherwise appeared to give a full and detailed account of the weekend’s events, including ten nappy changes up to and including the time the bruising was seen on the Sunday morning. 
46.	F and INT say all three of them slept until about 11am or 11.30am on Sunday morning.  They both say X slept through after he finally went to bed.  Their account is that X climbed into bed with them on his father’s side, as was his habit, following which F got up with X followed by INT.  They went to the living room and it was when F then changed X’s nappy that the bruising was seen.  F said he was shocked at what he saw and told INT to take a photograph.  They agree she was reticent to do so but they both say that her reticence was because of her concern about having a photograph of X’s penis on her phone.  It is agreed between M and F that he made contact with her.  F and INT say that he rang her.  She said in evidence she thought the communication was by text, although her police statement made nearer the time refers to a telephone call.  I concluded it is probable the communication was by telephone. 
47.	The evidence about the discussion between them is vague and, after the passage of time that I have already identified, I concluded that I could not place reliance on the detail of what was or was not discussed, in particular whether the prospect of taking X to hospital was raised.  M accepts that she did not say that X should be taken for an examination but says she believed that the bruise was less significant than it turned out to be.  F did not send her the photograph that INT had taken.  He and INT both spoke to their respective parents about the bruising and sought advice but did not provide them with the photograph. 
48.	X returned to M’s care on Monday as agreed.  Her police statement records a text from F on Monday reading as follows: 
“The bruising has went down a lot, it’s like blue and red.  He’s not complaining of it but keeps saying he’s fell over so not sure but he’s not complaining of it.  x.”  
49.	M’s case is that she immediately changed X on his return to check the bruise that she had been told about and was shocked at what she saw.  She says she asked X what had happened and he told her that INT nipped him and did an action with his finger and forefinger.  In cross-examination, she explained that X knew the word “nip” from nursery where there is a rule for the children that they are not allowed to bite or nip.  The police disclosure also includes statements from AB, XY and his sister who were present in the house at the time.  They each gave different accounts, both in respect of each other’s and in relation to M’s account about the circumstances in which X spoke about the bruising and whether or when he said it was INT or his father who was responsible.  
50.	M contacted 111 for advice and then took X to A&E where he was examined by the registrar and then by Dr G.  The medical records include the following entry, “When no one other than M was in the cubicle in PED, X allegedly said ‘INT nipped me’.”  X has not repeated this and has not said anything else regarding an injury or a fall.  M disputes that X said this to her at the hospital as recorded because she says she was not left alone at any time with him.  M’s police statement records that X repeated the statement that INT had nipped him when the social worker from LA1 was present.  This does not feature elsewhere in the papers.  As a result of this, I asked for enquiries to be made of LA1 of their social care records.  I received the surprising and troubling response that there are no case recordings made by the agency social worker in question, who has now left the local authority.  Enquiries made with LA1 were not able to trace the social worker. 
51.	Following the discovery of the bruising to X, his contact with his father and INT was suspended.  It re-started with F in December 2015.  On all accounts, X has a warm and loving relationship with his father.  Contact was initially supervised professionally.  The move to supervision by the paternal grandparents has allowed for a more normal family arrangement.  Since the events of October 2015, X has remained in his mother’s care with oversight of two different local authorities.  There have been no concerns.  On the contrary, M is recorded as caring well for X and his younger sibling.  She has engaged positively with professionals and services made available to her.  
52.	At the time of the examination in October 2015, apart from the bruising to X’s penis, he had some other minor bruising consistent with a child of his age.  Since October 2015, he has not had any injuries which have caused any concern.  The report from X’s nursery in September 2016 described him as a very well behaved child who has lovely manners, good social skills and plays extremely well alongside other children.
My Conclusions in Relation to the Bruising 
53.	I have reached my conclusions taking account of all of the evidence and considering the medical evidence as one part of the whole.  Apart from this bruising to X’s penis, there is nothing to suggest that his mother and father are other than loving and caring parents.  INT had been part of F’s contact with X for over two years with no cause for concern.  There is no account of any event which could have caused a bruise to X’s penis which was first recorded on 25th October 2015.  I have seen the photograph taken that day and those taken at hospital two days later.  These photographs show a very obvious and significant bruise to X’s penis and, over time, increasingly the surrounding area. 
54.	The evidence of Dr R was clear.  In the absence of an account of an accident which adequately explained this bruising, she did not consider there to be a medical cause and considered it a non-accidental injury.  If she is right, one of these apparently loving carers of X caused injury to him, as they all say no other person had the opportunity to do so.  In weighing the evidence and the likely cause of the bruising to X, I have considered the prospect of a medical or unexplained cause.  I have, however, concluded that Dr R’s evidence is reliable, measured and ultimately compelling. 
55.	I accept her evidence as to the probable causation and timing of the injury, an inflicted trauma sustained after X left M’s care on Friday, 23rd October 2015, and for the reasons given by Dr R and summarised in the course of my judgment.  In submissions it was argued on behalf of INT and F that the question of balanitis raised by Dr R at court on 3rd January 2017 indicates the prospect of another explanation and placed a question about the reliability of the evidence overall.  I do not accept that.  I find, rather, that it demonstrated a proper open-minded consideration of other explanations which were then ruled out on a reasoned basis.  
56.	I also accept Dr R’s evidence that the bruising is consistent with a nip.  Dr R said the amount of force required could not be determined but she contrasted the result of a painful but rapid nip which might cause minor redness with the trauma X sustained.  He must have experienced significant pain at the time the injury was caused and would have cried.  F and INT said the bruising was not seen until late on Sunday morning.  I only have their account of events of the weekend.  They both say nothing happened, neither caused the injury, nor could the other without their knowledge. 
57.	In the light of my conclusion about the injury to X, they must both be lying about this.  One or either of them must have done something to cause this injury and as they say they were together all weekend in circumstances in which they would have seen or heard anything untoward, the other must have seen or heard what happened.  Their evidence does not help me identify a perpetrator.  I should identify a perpetrator where the evidence is sufficient to do so on the balance of probabilities.  INT said she carried out no personal care for X and F agrees with her about this.  He says he did nothing and prompted the telephone call to M on their joint account as soon as the injury was seen.  I once again only have their account of this which I have found cannot be relied upon.  
58.	Apart from their evidence, I must also consider the evidence of M that X told her that INT nipped him.  I already know that the police evidence records a range of different accounts of what was said in the circumstances.  The recording in the medical records does not accord with M’s account of what was said, when.  It would not, in my judgment, have been proportionate or realistic to expect any of these other witnesses to remember these events reliably 14 months ago in this detail.  The picture therefore remains far from clear. 
59.	Considering all the evidence, I have concluded that there is insufficient to identify a perpetrator as between F and INT.  I am, however, satisfied that the injury must have been caused by one or either of them and the person not responsible knows that the other caused the injury.  Neither of them has given a full or honest account of the events.  They have chosen to protect themselves and each other rather than tell the truth.  Although F contacted M on Sunday, 25th October 2015 and told her of the bruise, he did not send the photograph which was available.  I have made no findings about the detail of the conversation between them on that occasion.  They were in very different situations, however.  F knew how significant the bruising was and, on the findings I have made, he must have known how it had been caused.  M only knew what he told her, that X had a bruise on his penis, but his account was that he was not particularly troubled by it. 
60.	Dr R said there is a range of thresholds which can lead a parent or carer to seek medical attention or not.  In this case, F and INT knew how significant the bruise was.  They should, in my judgment, have sought medical attention for X.  They did not do so and therefore failed X.  In the case of M, the local authority seeks a finding that she should have insisted on medical attention or should have gone to F’s home with a view to seeing the bruising for herself.  On the basis of the information provided by F and without the photograph, I do not consider a finding is properly made in this regard.  On the evidence, she checked X immediately on his return and sought medical attention without hesitation thereafter.  She had no reason to believe that X would be harmed in his father’s care.  The benefit of hindsight and what she now says she should have done is not a proper basis for a finding.           
61.	The findings that I make satisfy the threshold criteria and I therefore turn to the welfare determination.  In the light of those findings I consider the evidence of the parties together with the evidence of the social worker, SW, and of the children’s guardian.  I have already recorded the basis upon which I consider the welfare determination with X’s welfare as my paramount consideration.  When I consider the welfare checklist, X is a young boy who is entirely dependent on adults for his care needs.  He has the usual care needs of any child of his age.  He has a close relationship with both of his parents.  That relationship has been noted to be warm and loving.  Apart from the events which gave rise to these proceedings, there has been no cause for concern.
62.	The risk of harm to X arises from the circumstances in which he sustained what I have found to be unexplained non-accidental injuries in the care of his father and his father’s then partner.  That informs the determination of the capability of his parents and others to care for him and for their involvement in his life.  All parties agree that X should continue to live with his mother.  There is agreement also that that should be supported by the making of a supervision order, the duration of which is now also agreed at twelve months. 
63.	In the light of the findings that I have made, F is in the pool of perpetrators of a significant non-accidental bruising injury to X’s penis.  Without explanation, acceptance or understanding of how this happened, X is, in my judgment, at risk of further physical harm if he has unsupervised contact with his father.  The paternal grandparents are now supporting contact which allows it to take place in a more natural manner and a more natural environment.  I hope that that will continue to provide appropriate supervision for the future.  That will require assessment in the light of my findings and the response of each of the parents. 
64.	I agree that the paternal grandparents will need to see my judgment.  They should also be shown the photograph which was taken by INT if they have not otherwise seen it.  Their ability to continue to provide a safe environment for contact needs to be confirmed.  Contact has, over recent weeks and months, developed.  There is further agreement that it should be extended to a period of six hours.  At each stage, contact must be supported by a clear written agreement which sets out the parameters of contact, the requirements and expectations of it.  Any further extension of time and particularly consideration of overnight contact must, in my judgment, be considered in the context of the regular meetings the local authority has whilst X is subject to a supervision order and in the context of the response of the relevant family members to the judgment of the court. 
65.	I agree that a twelve-month supervision order is appropriate to provide the local authority a statutory involvement and the responsibility to assist in relation to contact arrangements.  The local authority will need to consider whether that supervision order should be extended.  As and when the local authority’s involvement ends, the parties will need a clear framework to establish the basis upon which the local authority’s involvement is concluding, in particular the arrangements for contact thereafter.  A central part of that will be the continuing need for supervision or otherwise.  These arrangements do not, in my judgment, lend themselves to a defined order which would not promote X’s welfare.  I therefore make a supervision order and I will include a recital that the contact will be agreed between the parties in consultation with the local authority for the duration of the local authority’s involvement.
66.	I make an order for detailed assessment.  I will direct a transcript of judgment which, subject to any representations, will be published in an anonymised form on BAILII as falling within the President’s transparency guidelines.
[Judgment ends]