“The emotional distress of the older children in losing their own mother, and their struggle to come to terms with the consequences of this have been very real and are important dynamics within the family.”
“C stated that H had hurt his head ‘a few days before’ but that the injury was only noticed at the end of Friday night. He stated that H had fallen onto some metal gym equipment and hurt his head, by going onto his bottom first and then falling back onto the metal thing. He stated that he did not tell his mother initially as he thought he would get into trouble, but eventually told his sister who told their father. C stated H had cried, describing it in different levels of intensity at different points. He also stated that on the morning after noticing the injury (i.e., the Saturday morning) his mother had asked him what she should do and that C told her to take H in an ambulance.”
“16. The one matter of which I am confident, is that the adult witnesses were not able or willing, within the proceedings, to be open and truthful about matters relevant to the circumstances in which H sustained a skull fracture. Unfortunately, the manner in which they have provided information to the Court about what occurred, when the injury was first observed, the accounts given to those who were seeking to provide appropriate care to H, or understand what occurred within the family, has led me to the conclusion that I cannot safely conclude that that which they now state is an honest and accurate account of events. 17. The overall impression given of the manner in which both parents have given evidence, is that they have, to varying degrees, only admitted something, or given evidence about it, when they have had to do so. I do not consider that they have taken part in the fact finding process with an active willingness to assist the Court in working out how a significant injury was caused to their son. Rather, my overwhelming impression is that they have sought to provide as little evidence as possible, preferring to keep the details of what has occurred within the family, from the Court and professionals, for reasons which I do not fully understand. There are many reasons why a witness may not be truthful, fear of the consequences of the truth for themselves or for others, a misplaced sense of loyalty are two examples. In addition, I consider it quite possible that different witnesses have provided accounts which are partially true and accurate and partially not. It is not the Court’s role to speculate, to fill in gaps in evidence which might then provide a likely reliable or credible account, but it must, where it can safely do so, make findings of fact on the basis of the evidence seen and heard, which are relevant to the welfare outcomes for the children.”
“The medical experts gave evidence that the injury to [H’s] skull could have been caused accidentally or deliberately; none of the experts could determine whether the injury, looking simply at the injury, was inflicted or not. It was, however, in each of their opinions, most likely to have been caused by a single episode of impact against a hard unyielding object or surface. Further, whilst the injury was a significant force to break the bone, of all skull fractures seen in infants, this type of injury was the one most likely to occur accidentally.”
“The mother’s account of relevant events has not been consistent. In addition, significant parts of her oral evidence, particularly when considered within the context of the other evidence, lacked apparent credibility.”
“56. Standing back for a moment, her evidence was that an incident occurred on7th May 2021 in the morning when A told her that H had fallen and hit his head but, that she forgot about that incident entirely later that day when she discovered a bump on his head and whilst she was actively asking questions about what had occurred; that she only recalled this incident in the hospital when she was informed that H may have sustained a skull fracture. She then mentioned it to her husband, but not only did not tell the police or the medics treating H, but also told them that she only found the lump on8th May 2021 . She then forgot about the incident until she received her phone back from the police, and saw the messages she states she sent family members in Pakistan (on the night of the8th May 2021 ) in which she made the connection between the fracture and the fall, but then forgot about it when preparing her first statement, and then decided, deliberately, not to mention it until the end of the first week of the trial because of her husband’s (alleged) warning that she might look like a liar if she changed her account. In addition, she stated that she was concerned about the impact upon A’s future if she informed professionals about the incident. 57. Significant aspects of the mother’s oral evidence lacked credibility. I simply did not believe it.”
“I found the father’s evidence about what he knew about any event occurring on the morning of7th May 2021 to be very troubling, particularly when considered in the light of the passages set out above within the father’s written evidence. I felt unable to confidently rely upon it. In addition, the father’s oral evidence was unconvincing and inconsistent. During it he made assertions, then later changed that evidence and at times simply accepted that the evidence he had previously given was false. I had the impression at times, particularly when he was cross examined by the mother’s counsel, that he would change his evidence to accord with that which the questioner put to him.”
“In general, A’s evidence was given orally in an apparently open, credible way. Nonetheless, there were aspects within it upon which I was not confident. Those aspects of his evidence were relevant to the issues I was required to determine.”
“It is with great sadness that I have concluded, on a careful review of the oral and written evidence I have seen and heard, that none of the adult parties had been wholly honest and truthful with the Court about their own knowledge of how H sustained a skull fracture and events within the family at the relevant time. As a result, I have not felt able to place sufficient reliance upon their evidence to conclude how, on the balance of probabilities, the injury actually occurred.”
“H’s injuries are likely to have been inflicted by the mother, father, A, or a combination of the same; or the result of an as-yet undisclosed accident whilst in the care of the mother, the father or A.”
“I consider that the words set out allegation 9 are established on the evidence. For clarity, again, that does not preclude the possibility of the injury having been caused accidentally. The failure of the adult parties to be honest with the Court has precluded the Court from being able to determine whether the injury was inflicted deliberately or accidentally. The local authority have proved, on the evidence, that the injury could either have been caused deliberately or accidentally and that those who cared for H at the relevant time have not been honest about their knowledge of relevant facts.”
“99. The finding about a delay in seeking medical treatment is more nuanced. I consider that the medical evidence was that the presence of scalp swelling would concern a reasonable parent concern and make them, at least, inquisitive as to the cause, but not necessarily seek medical treatment. However, both [the experts] were clear that once the swelling became boggy, a reasonable parent would seek medical treatment. 100. In my judgment there was a delay in seeking treatment from, at least, the point that the mother noticed that the swelling had changed to the call being made to 111. Her evidence at that stage was that she was concerned and that, had she been able to find care for the other children she would have wished to take H for medical treatment/ assessment. In addition, C explained that he had told the mother to seek medical assistance or to call an ambulance. The father did not explain, in my judgment, why he did not support the mother to do so, but rather instructed her to wait until he returned from work and could see the swelling himself. … 102. Given my conclusions regarding allegation 9, I do not consider that I can properly conclude on the evidence that any of the adult parties have failed to protect. However, I consider that they have, by their lack of honesty, prevented the Court from being able to make clear findings about how H sustained his injury and that deliberate decisions were made not to be open and honest with professionals or the Court.”
“I consider that allegation 16 is established. Further than set out above, it has not been possible to conclude exactly how H’s injury was sustained. The parents and A have not been open and honest about their knowledge of relevant events. In the circumstances of this case, and the evidence in it, it is not possible to take steps to protect against a re-occurrence of a significant injury occurring in the future in a similar way to H or one of his young siblings.”
“104. The issue is more complex in respect of the older children, C and D given their ages in the light of the conclusions I have reached above. 105. However, I refer to my conclusions below ….”
“127. Having heard that evidence, I am concerned that the parents do not have a clear understanding of domestic abuse and its impact upon children and families. The evidence of both parents appeared to seek to minimise the one, conceded, episode of domestic abuse. The evidence recorded above revealed, in my judgment, a need for further work to be undertaken with the family in this area. 128. Again, my conclusions in respect of these allegations must be considered within the context of the lack of openness and honesty regarding the parent’s knowledge of circumstances relevant to the cause of H’s injury. 129. In the light of my conclusions set out above, I consider that all of the children, in the absence of candour and openness by the parents are likely to suffer emotional harm.”
“2. I consider that threshold for the making of public law orders as set out in s.31 of the CA 1989 has been met. That is as a result of both the findings made in respect of the threshold allegations in respect of the skull fracture and, against the background of those findings, the findings made in Part B and vice versa. The skull fracture was a significant injury. It was sustained either by deliberate infliction by one of the three adult parties or as a result of an accident (pleaded as ‘undisclosed' in the threshold document). To view that finding in its proper factual context, it must be read against the background established by the local authority in respect of the findings in Part B. So too, the findings in Part B must be considered alongside those in Part A. The past harm (skull fracture) which occurred is attributable to parental care which was not reasonable to expect a parent to give (because it was either deliberately inflicted or caused accidentally as a result of deficient parenting), as is the likelihood and likely risk of future significant harm. In terms, I was satisfied that at the date the proceedings began H had suffered significant harm, attributable to the care given to him, not being that which it would be reasonable to expect a parent to give him. On the findings I have made in respect of part A of RT I also consider (given the failure to work openly and honestly with professionals, considered within the context of all the evidence I have heard and seen) that the other children suffered, or were likely to suffer significant emotional and physical harm, attributable to the care given to the parents, not being that which would be reasonable to expect a parent to give. … 9. The parents and A had no obligation to prove anything. The burden was on the local authority. They have chosen to give inaccurate, misleading and, at times, deliberately dishonest accounts. As a result, it was simply not possible to draw conclusions from the unsatisfactory evidence they gave about what, on the balance of probabilities, had occurred, with whom, or precisely when. It is, in my judgment, a real possibility that H was injured through an accident. The injury was sustained; it was one which could have occurred accidentally. That remains a real possibility. Yet, if that were the case, in assessing the evidence, considering each component part within the whole, a factor to consider was why those involved or with knowledge about it chose to hide that fact? The explanation could lie in feelings of shame, fear, misplaced loyalty etc. It could also be because the shame or fear is of disclosing a more serious incident. The local authority proved the assertion it advanced. In my judgment, on the basis of all the evidence in this case, sadly, it is, indeed, a real possibility that the injury was inflicted and that family members are not willing or able to describe what occurred or their knowledge about it. Given the lack of honest information from the adults, I could not properly determine which of them was involved in either the accidental cause of the injury, or the infliction of the injury. 10. I do not agree (if it is suggested) that, because I have not concluded that the injury was, either deliberately inflicted, or caused accidentally, I have not concluded that the s.31 threshold for the making of public law orders has been met. Nor does that conclusion contradict itself. It accurately reflects the facts the court could find on the balance of probabilities in this particular case. On the findings made: (a) Either, the injury was caused deliberately by one of the family members with care of H, and the parents have not been truthful about their knowledge or suspicion … (b) Alternatively, the injury was caused as a result of an accident and the parents have not been truthful about their knowledge or suspicion about that, it being likely that … (c) I accepted that genuine accidents may, and occur, where there has been no deficient parenting (i.e. not being what it would be reasonable to expect a parent to give). However, other accidents do occur where they have been caused, or not reasonably. avoided, because of deficient parenting. An obvious example might be leaving an infant in a chair within reach of a pan of boiling water; the infant pulls the pan over themselves and is severely scalded. That was an accident; the parent did not intend for the child to be badly hurt. However, that injury arose from deficient parenting: leaving the infant within reach of the pan and/or the failure to supervise to prevent the infant from pulling over the pan. Even if there had been that failure in parenting, if the parents worked honestly to identify what went wrong and to prevent a reoccurrence, that deficient parenting could be safeguarded against. In this case, one inference I drew from the parents’ and intervenor’s evidence and the parents’ deliberate dishonesty about relevant information (in its proper context including, for example being the apparent lack of straps/ seat belts in the car seat) was that the accident (if that was how the injury occurred) was likely to involve some kind of deficient parenting which they were unwilling or unable to admit and be honest about. There was also a large volume of evidence before me about H travelling in a car seat without straps, being placed in a footwell to travel. The inference I drew went further – it was that they chose to keep things within the family and not share them with professionals. In either case the harm (fractured skull) was attributable to the care (undisclosed deliberate infliction or [undisclosed] accident) given by the parents, not being that which it would be reasonable to expect them to give. Against that background, a future likelihood of harm has also been established through the lack of honesty about past events which prevents/impedes appropriate safeguarding taking place and/or leaves open the real possibility of a repetition of such harm occurring.”
“11. I accepted that the wording in paragraph 129 above required clarification. The point I wished to make at this point… is that at the welfare stage, careful consideration will need to be given to both the risk of future harm for each of the children, in addition to the extent to which the past, established, significant harm has impacted them individually. If, for example, the skull fracture occurred accidentally, there is, of course, the possibility that the risk of physical harm for the older children is different to that for the younger as the older children are more able to take steps to protect themselves and require less supervision. If it was caused deliberately, the risk of future physical harm some risk of significant physical harm is likely to remain for all. All the children, however, are likely, in my judgment, to have suffered past harm as a result of the lack of honesty within the family about what has occurred and that (emotional) harm is, in my judgment, likely to be greater or more intense, for the older children with greater understanding of the impact of lies and dishonesty. Professionals working with the family towards the welfare stage will need to work on the basis of a number of possibilities: that any one of the three adults 'accidentally’ caused the injury by deficient parenting but cannot or will not admit it or admit which that which they know or suspect; any one of the three adults deliberately inflicted the injury but cannot or will not admit it or that which they know or suspect. 12. 1 have not able to conclude which of the three adults deliberately inflicted the injury (if that occurred), because the adults have not been honest about their knowledge of the circumstances surrounding the cause of the injury, nor how it occurred (for the same reason). Nor can I rule out the possibility that the injury occurred as a result of an accident. I could not make a finding that that was so, on the balance of probabilities, because the adults have not been honest about their knowledge of the circumstances surrounding the cause of the injury and the evidence I heard, in its totality was not sufficiently reliable or credible for me to make that finding. The father’s evidence was particularly troubling. I was unable, with any confidence, to rely upon his account of events, including his whereabouts, during the relevant timeframe. 13. The fact that the adults have not been honest about their knowledge of the circumstances relevant to the cause of the injury does not mean, of itself, that, on the balance of probability, they (or any of them) deliberately caused the injury. Applying a R v Lucas direction in this case has been particularly important. The family dynamics are complex. There are, in my judgment, many reasons why, in this case, the adult family members may have lied, fear of the truth, misplaced senses of loyalty, torn loyalties, being some examples only….”
“Not only is the presentation of adequate reasoning of immediate importance to the adult parties in the proceedings (in particular the party who has failed to persuade the judge to follow an alternative course), it is also likely to be important for those professionals and other judges who may have to rely upon and implement the decision in due course and it may be a source of valuable information and insight for the child and his or her carers in the years ahead.”
“Please consider how, if the injuries may have been sustained whilst in the care of A or the father, what the court has concluded in respect of mother’s dishonesty.”
“(a) What period or periods within the 24-hour window does the court identify as ones when the child was in the care of the father? (b) In terms of that period, or those periods, when does the court identify that the father could have inflicted the skull fracture, or could the skull fracture have occurred accidentally in the father’s care? (c) Does the court accept the uncontroverted evidence that the father was in work during the hours he stated? (d) Does the court accept the uncontroverted evidence that the father was out with friends during the evening on Friday,7 May 2021 ? (e) In placing the father within a pool of possible perpetrators for this skull fracture, how does the court say the local authority has discharged its burden of proving on the evidence that there is a real possibility that he inflicted the injury? (f) In which possible circumstances and at which possible times?”
“When giving judgment in a complex children’s case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as the Practice Note emphasised, ‘to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process.’”
“The family court is overwhelmed with care cases. Judges at all levels often move seamlessly from one trial to the next without judgment writing time between them. Routine requests for clarification running to a number of pages are not only ordinarily inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit the evidence and their judgment when their thoughts and concerns have long since moved onto other cases. This is not conducive to the interests of justice.”
“it must be understood that in the case of appeals from case management decisions the circumstances in which it can interfere are limited. The Court of Appeal can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”
“that the accident (if that was how the injury occurred) was likely to involve some kind of deficient parenting which they were unwilling or unable to admit and be honest about. [and that] they chose to keep things within the family and not share them with professionals. In either case the harm (fractured skull) was attributable to the care (undisclosed deliberate infliction or [undisclosed] accident) given by the parents, not being that which it would be reasonable to expect them to give.”
“there is no room for finding that it might have happened …….the law operates a binary system ….the fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it a value of zero is returned and the fact is treated as not having happened.”
“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue; the party with the burden of showing that something took place will not have satisfied him that it did ….”
“The family dynamics are complex. There are, in my judgment, many reasons why, in this case, the adult family members may have lied, fear of the truth, misplaced senses of loyalty, torn loyalties, being some examples only….”
“Given my conclusions regarding allegation 9, I do not consider that I can properly conclude on the evidence that any of the adult parties have failed to protect. However, I consider that they have, by their lack of honesty, prevented the Court from being able to make clear findings about how H sustained his injury and that deliberate decisions were made not to be open and honest with professionals or the Court.”
“How has the court reached the conclusion that it is not possible to take steps against a re-occurrence of significant injury in circumstances whereby the court has found the injuries may have been caused by one of the 3 adults, the non-perpetrator has not failed to protect and that this may have been caused accidentally”
“I did not conclude that the non-perpetrator had not failed to protect.”
“By that I meant that I could not properly/ fairly reach a conclusion on the allegation about failure to protect because the adults' lack of honesty prevented the Court from making clear conclusions about what had occurred and then, having regard to that which it found occurred, to look at what others did, or did not do to protect H before reaching conclusions about that.”
“The Court could not fairly determine whether either parent failed to protect H from an inflicted injury as the parents have, by their lack of honesty and deliberate decisions not to be open and honest with professionals and the Court, prevented the Court from being able to make clear findings about how H sustained his injury and whether, in the light of those findings, there was a failure to protect.”