“13. Turning to the factual background, the following findings are based on the evidence before me including the parents’ accounts of events, and are largely uncontroversial. The parents are young, the mother is 24, the father is 23. T is their first child, they have been together since around the middle of 2018. 14. The father is autistic and has adult ADHD. He was removed from the care of his parents due to neglect at age 2 and placed initially in foster care and then with his grandmother and then he moved in with his father aged 16. Both parents suffer from anxiety. The cognitive assessments place the mother in the 45th percentile for IQ and the father in the 18th percentile. Neither parent uses drugs nor abuses alcohol. This is credit to them as both have grown up in an environment where there has been significant abuse of alcohol. The father’s father has been a chronic alcoholic for many years with very serious drinking habits, and the mother’s mother works as a carer but has a history of heavy drinking. 15. Prior to T’s birth the mother was diagnosed with gestational diabetes. T was born on [date] July 2019. Following the birth the mother had sepsis and both mother and child were put on antibiotics for around five days. They stayed in hospital until they were discharged on 30 July. On discharge the parents and T returned to their home, a flat that they had shared as a couple for a year or so with the paternal grandfather. A health visitor had attempted a visit to the home on7 August 2019 . She reported that no one was in and the parents reported that she had called at the wrong flat in the building. 16. The parents’ neighbours in the flat below, Mr and Mrs G, had offered to look after T for that night so the parents could catch up on some sleep. The parents took T down to their flat at around 6, stayed briefly and then left T with them at around 6.30. T did not settle, and Mrs G and the mother continued to exchange messages over the evening until around 1 am when Mrs G said he was too unsettled and the mother went to collect him. At that point the maternal grandmother was present in the parents’ flat as she had come to visit and another relative had also visited. 17. On seeing T the maternal grandmother thought he was wheezy, and the mother telephoned 111 and then the relative took both parents and T to A&E and they arrived shortly before 2am. On arrival at the hospital T was seen in triage by Nurse W and was then referred to the paediatric registrar, Dr K. Nurse W recorded that initially Dr K thought that the bruises on his face were birth marks, but he then agreed they were bruises and admitted the baby to a paediatric ward at around 4am for safeguarding. He reported seeing blue bruises on the left side of T’s face. 18. Neither parent reported having seen the bruises before although they had noted a birth mark on his temple and the back of his head. T was seen by the paediatric consultant Dr M and staff nurse B on the ward round the next morning. Dr M made a body map and recorded two bruises on T’s check, one that was .5 centimetres by .5 centimetres and another larger bruise marked as a very faint blue bruise that had less demarcation. Dr M immediately made a plan for T to undergo a skeletal survey, CT scan, and ophthalmology assessment. These were done later and revealed no injuries. 19. The social worker statement shows that Social Services and the police were involved immediately and had a strategy meeting by telephone. PC L and Miss McK, the social worker, visited the parents’ home shortly afterwards on 8 August and also visited the home of neighbours, Mr and Mrs G, who had offered to take the couple and T to stay in their home. T remained in hospital for tests and was being cared for by his father on the night of11 August 2019 . At around 5.50am in the morning of 12 August Nurse P, a staff nurse on the night shift on the ward, reported that she had seen the father turn T in a 360 degree turn. 20. It was common ground that T had been turned 360 degrees by his father but there was an issue as to the nature of the turning. A further strategy meeting took place at around 11am that day and a DC B attended. The Local Authority applied for an Emergency Order on 12 August and on 13 August T was placed with the foster carer. The strategy meeting records show that following this incident the paediatricians considered that further scans should be avoided but T was examined on 15 August by a consultant ophthalmologist who reported no signs of injury. 21. On 13 August DC B interviewed the father in a non-custodial interview of which a transcript was made available, and he had Mr G with him as an appropriate adult. In that interview the father gave an explanation of the turning and denied having thrown the baby up but accepted that he had rotated him but kept him supported throughout. T was then placed with a foster carer. The parents moved in with the Gs for a month and then moved in with the maternal grandmother, where they remain. On around 4 September the foster carer raised concerns regarding T’s eyesight and T was seen by a consultant ophthalmologist in September; later in October the foster carer reported that he was able to hold a gaze and track objects and fortunately his sight appears normal.”
“46. Nurse P was a staff nurse overnight on 11/12 August 2019 on T’s paediatric ward. She reported that at around 5.50am on 12 August she had heard T crying for around five minutes and she was due to give him observations. At that point she had approached his cubicle and had bent down to observe from the outside through the bottom glass window of the door to the cubicle. She accepted that it was awkward to lean down but this was what she did sometimes rather than pulling the blind back on the top window of the door. She reported seeing the father flip T into the air causing him to rotate 360 degrees in the air before the father then caught him. 47. The father had one hand on the baby’s lower legs, and she could not clearly recall seeing where the second hand was, although thought it was supporting the baby. The father had one hand on the baby’s lower legs when he threw T into the air, letting go of him so he flipped over and then caught him. At first she thought that the father was throwing a doll into the air but by the second time she observed it through the window she realised it was a baby. Just after she walked into the cubicle he did this motion a third time. She emphasised that she had not seen the father swing the baby or reported that the baby was swung by the ankles as had been noted in one of the police reports. She reported that baby T was crying throughout this incident. Her explanation corresponded with the action she demonstrated in evidence with a doll. 48. She told the father that he should not do that to a baby. He said that the father was calm, and he responded that the baby would not settle. She took the baby from the father to give him a walk and asked the father whether a feed was due and suggested he prepare the feed. She then took T out and reported the incident to the nurse in charge and the doctor present. At that stage the father walked out of the ward and she did not see him again. Her evidence was that she was quite shaken and burst into tears immediately following this incident. Shortly afterwards she spoke to Nurse B about the incident and then left her shift.”
“55. … What Miss P reported was very different to what the father reported so the discrepancies were unlikely to be due to poor vision or a mistake in perception. The father demonstrated a rather slow, awkward turning motion where he was carefully moving his hands at each stage to support the baby in a slow rotation, whereas a flip is a quicker motion where the child is let go and caught again.”
“44. … She asked the mother if the father had done anything like this before and the mother had said that he always turns him. When asked what this meant the mother made a roly-poly motion. The mother had reported to Miss B that T liked the motion of this turning and when asked what she does when the father does this turn she replied that she did not do anything when he did. Miss B’s evidence was straightforward, and I accept it.”
“45. … She reported that the mother was upset and crying. When DC B asked her if she had seen the father flip the baby she said she had never seen him throw the baby in the air but had seen him spin [him] and had demonstrated with a doll, turning him over 360 degrees in a supported manner. She said she had seen him do it around three times. The last time she had seen him was on the night T went into hospital. The mother had reported to DC B that although she does not do it, it seemed to settle the baby. … DC B’s evidence was straightforward, and I accept it.”
“75. … It was his evidence that he had only done the motion he described once previously in the flat and the mother had seen him do it. She had told him not to do it as she was worried about shaken baby syndrome. He had looked up shaken baby on the internet and considered that it was only a risk if the baby was violently shaken or fell. …”
“68. For all these reasons I consider that the mother’s precise accounts she gave on 12 August of previous turning incidents and her response to them are not reliable. I accept that she had not seen the father throw the baby up in the air at home and the Local Authority did not allege this in closing. I also accept that she had broadly seen him handling the baby gently and trying to comfort him in various ways, including bouncing and the 360 degree supported motion. She may have thought his manoeuvres were more adventurous than she would undertake herself and I accept that she may have warned him of shaken baby syndrome.”
“118. …To the extent it was relevant I considered that the flipping had not previously occurred, and the father had flipped the baby in a genuine but ignorant and misguided attempt to settle him. …”
“124. … For reasons set out above I accept that the father turned the baby in a supported rotation probably on one occasion before and the mother had probably seen this and warned the father of the risks of shaken baby syndrome.” “124. … For reasons set out above I accept that the father turned the baby in a supported rotation probably on one occasion before and the mother had probably seen this and warned the father of the risks of shaken baby syndrome.”
“84. The turning incident took place over a matter of minutes but has been deeply significant for both the parents and T. It was the father’s own evidence that he felt upset and destroyed in the minutes after the incident and needed to go outside to clear his thoughts. In the hours, days and months that have followed the consequences of those few minutes have been revisited, not least each time the parents have come back to court. 85. I take into account the father’s current acceptance that the rotation manoeuvre he says he did was an unusual and unwise one, and his evidence that it involved carefully turning the baby completely upside down and putting his hands over his face to support him and moving his hands continuously over the baby to support him. I considered that this rotation was a highly unusual and awkward manoeuvre to carry out and unlikely to settle a baby, even if carried out on a previous occasion at home. On the father’s own evidence it was an inappropriate manoeuvre that could cause harm to T even if not significant harm. … 88. I do not consider that he was deliberately attempting to cover up the truth, and at this stage after all the retelling he may remain genuinely convinced that his version is right. However, taking all the available evidence into account I consider that his account of what took place was not reliable and Nurse P’s account was to be preferred.”
“The father flipped T in the air, providing no support for his head, and undertook this movement three times.”
“111. Dr Rahman considered that the manoeuvre demonstrated by Miss P, what was described as flipping T in the air, was risky. His evidence more precisely was: “It is a risky manoeuvre. If he dropped him it could have caused injury. The manoeuvre itself could have caused injury but not significant injury if done like that.”
“116. Dr Rahman’s conclusion that gently flipping a baby up and over was risky but not going to cause significant injury may be surprising to a layperson who might be horrified to see a newborn baby flipped up in the air. I have looked critically at his opinion as I [am] assessing whether the action caused harm and also the likelihood of harm to T at the time or in the future. The fact that the baby escaped unharmed on this occasion is only of limited weight if there was a real possibility that significant harm would be suffered then or on another occasion. 117. I am not bound by Dr Rahman’s opinion as to what establishes the required likelihood of significant harm, not least because the question I have to answer requires the correct application of the legal test under Section 31. I also take into account that the legal test requires more than a risk, it requires that significant harm is likely in the sense of a real possibility of harm rather than harm being more likely than not. I take into account the Guardian pointing out that the father had attempted the manoeuvre even though the mother had already told him not to rotate the baby, and that in his evidence he still struggled to accept there were any risks associated with the rotation movement other than dropping T.”
“118. However, in determining threshold the Court is not concerned with actual intent or blame and I have to assess the risk objectively. To the extent it was relevant I considered that the flipping had not previously occurred, and the father had flipped the baby in a genuine but ignorant and misguided attempt to settle him. Although with DC B he had initially resisted accepting that the manoeuvre was wrong he had then conceded that it was inappropriate. Overall taking account of his evidence and his conduct since the incident when there has been no question of flipping the baby or turning him inappropriately I considered that the father had properly acknowledged the risks of flipping the baby or rotating him. 119. I took account of DC B’s impression that his actions reflected a lack of understanding. I took careful account of Dr Rahman’s evidence in his statement that a child being thrown up 360 degrees placed T at risk of retinal bleeds, injury to brain and intracranial bleeds as well as a fracture and that such risk applied even if the parent was sitting on the bed. I took careful account of the Guardian’s concern regarding the risk to T and also Nurse P’s alarm and distress in having seen the incident and the hospital’s reaction to it. 120. They are well informed observers, although the Guardian is acutely aware of both parents’ vulnerability. Miss P was right to step in to address the incident. The father’s conduct also justified the concern of the doctors and the Local Authority as it was an unusual manoeuvre that took place in circumstances where there was unexplained bruising, and T’s home conditions were also placing him in a vulnerable situation. The late development of his eyesight further justified these concerns. 121. However the test for state intervention is not that a parent’s conduct is alarming to an observer. Indeed the test is an objective one and the Local Authority submitted that it does not take into account the vulnerability of the parent. The test requires more than a risk of significant harm, it is necessary to show that the significant harm is likely and is attributable to the parents’ care falling below what it would be reasonable to expect. I considered that it was appropriate to adopt Dr Rahman’s assessment of the risk of harm taking account of Nurse P’s demonstration of what happened. 122. Paediatricians as well as most parents are aware of the fortunate resilience of small babies to hazardous handling. They will know that many parents will, even with the best intentions and some knowledge of childcare, have handled their newborn baby at some point, usually a relatively one-off occasion, in a way that could certainly be described as risky or alarming to a more experienced parent, and in a way that entails a risk of injury. This is commonplace and there is a large variety of ways in which parents can do this. 123. Paediatricians see the cases where the baby is injured, and Dr Rahman was well placed to assess the risk of injury. He was entitled to conclude that what was demonstrated should not have caused any significant injury as it was done gently. He was obviously influenced by the gentle manner in which the flip was demonstrated and correctly emphasised that the risk of brain injury was directly related to the force used. Similarly, he suggested that the frequency of the action was relevant. These are clearly relevant considerations in assessing the likelihood of significant harm. A situation where a newborn baby is thrown up vigorously or on repeated occasions represents a very different risk to that arising out of a single occasion where that baby is thrown up gently by a well intentioned parent, especially where the baby has come out unscathed. Overall I conclude that the facts found did not establish that T was likely to suffer significant harm. 124. The Local Authority alternatively alleged the supported 360 rotation that the father described created a risk of significant harm. The Local Authority pointed out that even if Miss Pentecost’s evidence was not accepted, the father had accepted that he had rotated the baby on at least two occasions. For reasons set out above I accept that the father turned the baby in a supported rotation probably on one occasion before and the mother had probably seen this and warned the father of the risks of shaken baby syndrome. The Local Authority relied on Dr Rahman’s evidence to suggest that T was at risk of significant physical harm from this manoeuvre even if it was a gentle one. Dr Rahman suggested that this manoeuvre was not an ideal thing to do and was risky, presenting similar risks to the flip but noted it was done gently. 125. I considered that the manoeuvre when T was supported at all times was more unusual than the flipping but less risky because the baby was supported. For similar reasons to my conclusions on the flipping I do not accept that it placed T at risk of significant harm, or that the father’s care of him in this respect fell below that which would be reasonably expected.”
“95. For the avoidance of doubt, I consider that the allegation that the parents lacked adequate childcare knowledge was not proven. They were young first time parents and their child was removed when he was not yet three weeks old. It was common ground that they had limited knowledge of caring for small babies and were vulnerable individuals. … 97. However, taking the overall evidence into account and assessing their skills objectively I consider that their knowledge was within what would be reasonable to expect and presented no risk of significant harm. …”
“107. It was Dr Rahman’s evidence that it was unlikely that a lot of force was inflicted to produce the bruises, and the likely degree of pain would have been moderate. The bruises could have been sustained accidentally while handling the child. I conclude that the most probable cause of the bruising was that a parent or the grandfather accidentally bumped into something while holding the child or dropped or knocked something near the baby’s face and this followed Dr Rahman’s evidence. Although this sort of accident is attributable to the parents’ care of T it was not attributable to the care falling below that it would be reasonable to expect. 108. The bruising was noticeable to the professionals, but I accept the parents’ evidence they had not noticed it prior to coming into hospital. This was reasonable since they were less alert to bruises than a professional or an experienced parent. Indeed they were inexperienced parents trying to make sense of their very newborn baby with his own special markings and I take into account the lighting was poor in their flat. I conclude that the Local Authority has not shown significant harm or risk of physical harm attributable to the bruising or the parents’ failure to notice the bruising.”
“139. … I am not satisfied the alleged conduct and vulnerability evidences a risk of significant harm and the Local Authority failed to establish that the parents would be unable or unwilling to protect T from exposure to domestic abuse or aggressive altercations.”
“141. … In making findings of fact I must take into account the overall picture and the existence of moderate to severe nappy rash and thrush would be relevant to allegations of neglect due to poor hygiene and childcare skills and could form part of the jigsaw of facts justifying a conclusion that a baby is at risk of significant harm from neglect.”
“162. I have made findings regarding the parents’ contribution to the unhygienic conditions that T was faced with. It is important the parents understand their responsibility as parents. I am acutely aware of the eccentricities of parenting that must be tolerated by the state and are not caught by Section 31. Keeping rabbits roaming around a new-born’s bedroom and leaving their droppings probably does not amount to significant harm. The state has to tolerate children being raised in eccentric ways. However, I considered that the Local Authority had very legitimate concerns about the home conditions that were attributable to the parents’ conduct. It remains the case that poor standards of hygiene will expose T to harm, even if it does not meet the threshold of Section 31. 163. I conclude that the Local Authority did not establish that the home conditions as at 12 August met the threshold, and overall the Local Authority has not met the threshold for intervention under Section 31.”
“41. The parents’ current position somewhat reinforced my view that the Local Authority have legitimate concerns about the risk of harm to T. However, it does not change my view on the threshold issues which were not dependent on the parents’ willingness to accept professional support. 42. I urged them to take on board the advice of the Guardian who has taken a truly neutral stance in these proceedings. She correctly sees a risk of harm to T in how he transfers his attachment. This is important to him now. It goes to whether he avoids distress over the next few days and weeks and it may have a long term impact on how he forms attachments in his later life. 43. Although I have expressed my views strongly, I do not appear to have any jurisdiction or oversight to ensure that T has a gentler staged transition. It was common ground that, upon a ruling that threshold is not met, the care proceedings finish and there is no power of oversight or to prevent T’s immediate return. 44. It seems surprising that, in making an Interim Care Order, the Court must ensure it puts the child’s welfare at the centre of the decision yet, in making a decision that the order will be discharged, the Court is not empowered to make directions to protect the child from harm caused by an abrupt transfer of care. It was not suggested that I had any general power to protect T in this way and I acknowledge that, in the absence of any other order, the proceedings finish and the Court has no power of oversight over T’s welfare.”
“50. … The purpose of section 40 is to enable the court to protect a child for a very limited period, the appeal period, in circumstances where the judge considers that his decision may be wrong in dismissing the application for a care order (or discharging a care order). … 55. The real issue is as to whether to make an Interim Care Order under section 40, and I accept that Article 8 rights are engaged in that decision. In a similar way to making any decision to grant an Interim Care Order, the Court must make sure that any interference with Article 8 rights is proportionate and weigh the risks to the child against the interference with the parents’ and the child’s family rights. 56. In circumstances where the court’s decision on threshold may be wrong and the court considers that it is in the child’s interests to maintain the status quo for a limited period, then Article 8 does not block protection of that child. Instead, the Court has to balance whether interference is justified pending the appeal. The fact that section 40 is not in common use suggests that it is to be applied cautiously. The existence of a risk of harm if the judge has got a decision wrong, would it not in itself justify an order since otherwise orders would be common. 57. It would be unusual for a judge to make a section 40 order where she did not consider that the appeal had a real prospect of success. Section 40 is intended to enable a care order to be made or continued. It is not intended to enable the Court to exercise control over the manner in which the child returns to his parents when a care order is discharged. It would not be correct use of the power to make directions for a staged transition of care so as to mitigate risk from an abrupt return, and the Local Authority did not suggest that this would be an appropriate order under section 40. 58. Here, I do not consider that the appeal has a real prospect of success. Further, based on my detailed findings of fact and also the evidence as to the parents’ conduct since12 August 2019 , the risk of harm to T, even if I am wrong on threshold, is not so great as to justify separating him from the care of the parents for another significant period. Accordingly, I dismiss the section 40 application.”
“94. Thus far I have concentrated on explaining that a court's conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. 95. I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”
“I conclude that the most probable cause of the bruising was that a parent or the grandfather accidentally bumped into something while holding the child or dropped or knocked something near the baby’s face and this followed Dr Rahman’s evidence.”
“Although with DC B he had initially resisted accepting that the manoeuvre was wrong he had then conceded that it was inappropriate. Overall taking account of his evidence and his conduct since the incident when there has been no question of flipping the baby or turning him inappropriately I considered that the father had properly acknowledged the risks of flipping the baby or rotating him.”