X County Council v AB & CD [2015] EWFC 98

MR JUSTICE KEEHAN

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No XX14C00262

[2015] EWFC 98

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/05/2015

Before

MR JUSTICE KEEHAN

(In Private)

Between

X COUNTY COUNCILApplicant

AB & CDRespondent

MISS CHRISTIE and Ms Mettam (instructed by X County Council) appeared for applicant local authority.

MISS MORGAN QC and Ms Magennis (instructed by Emery Johnson Astills Solicitors) appeared for first respondent mother.

MR TYLER QC and Ms Tompkins (instructed by Dodds Solicitors) appeared for second respondent father.

MR ADAMS (instructed by Brethertons Solicitors) appeared for third respondent child (by her children’s guardian).

Hearing Hearing dates: 20th - 29th April & 5th May 2015

Judgment

MR JUSTICE KEEHAN :

Introduction

[1]In the early morning of 20 March 2014, H, aged just 40 days old, was admitted by emergency ambulance to Y Hospital. Her health was severely compromised and she was in a seriously acute condition. Clinical investigations revealed that she had suffered serious brain injuries and multiple other injuries.

[2]This fact-finding hearing is to establish how each of those injuries was sustained, when and, if inflicted, by whom. The findings of fact sought by the local authority are set out in a composite schedule dated 9 April 2015.

[3]H was born on 8 February 2014. Her mother is AB, who is 22 years of age. Her father is CD, who is 28 years of age. They are the first and second respondents respectively.

[4]The local authority issued these care proceedings in respect of H on 26 March 2014. She was discharged from the hospital to the care of local authority foster carers on 13 May 2013, where she remains to date.

[5]The parents were both arrested on 22 March 2014. The mother was interviewed by the police on three occasions and the father on four occasions. They were subsequently charged with offences pursuant to section 5 of the Domestic Violence, Crime and Victims Act 2004 and section 1(1) of the Children and Young Persons Act 1933. During the course of the police investigation, allegedly indecent images of minors were found on the father’s computers. He has been charged with offences relating to these matters. Both have denied all offences with which they have been charged.

The Law

[6]The burden of proof at this hearing is upon the local authority. The standard of proof is the simple balance of probabilities: Re B (Children)

[2008] UKHL 35

. The test for identifying a perpetrator is similarly the simple balance of probabilities: Re S-B (Children) (NAI)

[2009] UKSC 17

[7]If the court is not able to identify the perpetrator, the court must identify those who fall within the pool of perpetrators: Lancashire County Council v B

[2002] AC 147

[8]There is a wide canvas that the court must survey. As was observed by the then President, Butler-Sloss LJ, in Re T

[2004] EWCA Civ 558

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

[9]Expert evidence is but one part of the totality of the evidence. As was observed by Charles J in the case of A Local Authority v K, D and L

[2005] EWHC 144 (Fam)

“[49] In my judgment it follows from the approach set out in the above citations, which illustrate the judicial function that: “(i) The court has to take into account and weigh the expertise and speciality of individual experts and is often assisted by an overview from, for example, a paediatrician. “(ii) In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof. “(iii) The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury… of the type asserted, is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that on the balance of probability there has been a non accidental injury (or human agency) as asserted and the threshold is established. “(iv) Such findings have to be based on evidence and findings of fact to the civil standard and reasoning based thereon.”

[10]Any findings made by the court must be established on the evidence, including inferences which can be properly drawn from that evidence, and not on suspicions or speculation: Re A (A Child) (Fact-finding hearing; Speculation)

[2011] EWCA Civ 12

; Re A (A Child)

[2015] EWFC 11

[11]I give myself a modified Lucas direction, namely that I should only take account of lies told by a witness if, and only if, I am satisfied that there is no reasonable or plausible explanation or account for the same.

Background

[12]The mother and father have both suffered from mental health difficulties. The mother had been diagnosed with ADHD. She has a history of self-harming and suffering from depression and anxiety disorders.

[13]The father says, and I accept, that he had an abusive childhood and suffered emotional and psychological abuse at the hands of his father. There is a consistent reference in the father’s mental health notes to issues of multiple personalities, most especially to the persona of “M”.

[14]The father has a younger brother, ED, and two older sisters who were taken into local authority care before he was born. He has a daughter, FD, who is now eight years of age, from his relationship with JK. The father was then aged 18. The relationship was short-lived and ended when FD was but a few weeks old.

[15]The father has had little contact with FD because of animosity demonstrated against him by JK and FD’s maternal grandmother, SK. The latter became the primary carer for FD and was some years ago appointed as her special guardian. The father last saw his daughter sometime in 2012 or 2013.

[16]The parents began their relationship on 17 March 2013. The mother was studying for a biomedical sciences degree at University. By June 2013, she discovered that she was pregnant with H. Both parents told me that they were delighted at the news. They were surprised because the father had been reported to be infertile or to be of low fertility. They immediately began to make plans for H’s life and bought items of clothing and the father decorated what was to be H’s nursery.

[17]H was born four weeks prematurely, but she was an otherwise healthy baby who required treatment in the early days of life for jaundice.

[18]The parents each told me in terms that the day of H’s birth was the best day of their lives and that they were both delighted to have her.

[19]Tragically, it did not take long before things went horribly wrong.

[20]H was discharged from hospital on 9 February 2014. She was readmitted the following day with jaundice and discharged on 11 February. She was further admitted with, and treated for, jaundice on 12 February and was discharged on 14 February.

[21]H was seen at home by the health visitor on 18 February, when all appeared to be well, and no concerns were reported by the parents or by the health visitor.

[22]On 6 March, aged 26 days old, H was admitted to Hospital in the late evening because the parents had, they said, noticed that she was not moving her right leg. Nothing untoward was discovered by the clinicians. She was discharged home on 8 March.

[23]The following day, she was again admitted to hospital having suffered an apnoeic episode. She was discharged the following day but was then readmitted two days later having suffered a further apparent apnoeic episode and an alleged period of appearing vacant. She was discharged in the late afternoon or evening of 15 March. X-rays taken during that admission were reported by Dr Chapman, the well-known and renowned consultant paediatric radiologist, to demonstrate various bone fractures sustained by H. None of those features were reported by the clinicians treating H during this three-day admission to hospital.

[24]The final admission was in the early hours of 20 March, when H was admitted to Y Hospital seriously and critically unwell. The ambulance had been called by the parents at 4.23 am. H was so unwell that she was transferred to the paediatric intensive care unit at Leicester Royal Infirmary in the early afternoon of 20 March. On 1 April, she was transferred for specialist assessment to the paediatric intensive care unit at Queen’s Medical Centre, Nottingham.

[25]On 4 April, Dr Jaspan, the consultant paediatric neuroradiologist at Queen’s Medical Centre, concluded that the MRI images showed “an evolving severe global cerebral atrophy and haemorrhagic sequelae following profound hypoxic ischemic injury, maturing frontal and temporal haemorrhagic contusions, secondary expansion of the subdural collections”.

[26]Accordingly, later that day H underwent bilateral subdural fluid taps to reduce and relieve the pressure on her brain.

[27]H was transferred to the care of Y Hospital on 10 April from where she was discharged to foster care on 13 May.

H’s injuries

[28]In relation to the fractures sustained by H, all of the medical experts agree with or defer to Dr Chapman’s opinion on the issues of mechanism and timing. In relation to the brain and spinal injuries, there is a consensus between the relevant medical experts that the same were sustained in the hours before H’s admission to hospital on 20 March.

[29]The following were identified:(a) A fracture of the neck of the left second rib at the inferior aspect which was caused between 13 and 20 February 2014, when H was between five days and twelve days old.

(b) Fractures of the posterior ends of the left fourth and fifth rib which was caused between 20 and 27 February 2014, when H was between 12 days and 19 days old.

(c) A metaphyseal fracture of the right proximal tibia and an associated metaphyseal fracture of the right distal femur which were caused on around 5 or 6 March, when H was 25 or 26 days old.

(d) A subperiosteal haemorrhage of the right tibia associated with the metaphyseal fractures.

(e) A greenstick fracture of the right distal radius which was caused in the period of 5 March to 21 March, when H was between 25 and 41 days old.

(f) Subdural haemorrhages along the posterior falx, the tentorium over both cerebral hemispheres and in the posterior fossa which were caused on 19 or 20 March, when H was 39 or 40 days old.

(g) Brain injury, consisting of swelling of the brain, separation of the sutures and severe hypoxic ischemic damage caused in the same event as (f) above.

(h) Spinal injuries involving subdural haemorrhage of the lower lumbar and sacral spinal canal and abnormalities to the paraspinal muscles adjacent to the spine and consistent with inflicted injury, most probably linked to the events at (f) above.

[30]The medical experts are agreed that all of those injuries result from episodes of inflicted trauma.

[31]Mr Richards raised an issue about the absence of retinal haemorrhages, which are considered to be a key feature of the triad of injuries often seen in cases of non-accidental inflicted head injury. Accordingly, Professor Taylor, an emeritus professor of paediatric ophthalmology, was instructed. He reported and gave evidence that the absence of retinal haemorrhages was not inconsistent with a conclusion that these head injuries resulted from inflicted trauma. He advised that the research demonstrated that retinal haemorrhages were not reported in 15 to 25 per cent of known causes of non-accidental inflicted head injury. I accept his evidence.

[32]A further issue arose in respect of a red spot identified by the parents in H’s right eye and whether it was a subconjunctival haemorrhage. Dr Wild favoured the explanation that it was and that it resulted from a sudden rise in central venous pressure. Professor Taylor disagreed because the spot was singular and unilateral and if the spot had resulted from a sudden rise in central venous pressure then he would have expected bilateral and multiple haemorrhages. Moreover, Professor Taylor observed that the parties’ account of the spot resolving into a linear line was not compatible with the expected evolution of subconjunctival haemorrhages. Further, he noted that the spot had not been observed or investigated by any treating clinician. Accordingly, he could not explain or ascribe a probable cause to this feature. I agree with Professor Taylor and I prefer his evidence to that of Dr Wild given the former’s considerable expertise in the field of paediatric ophthalmology. Accordingly, I make no findings in relation to the cause of the same.

[33]The prognosis for H is very poor. Dr B, H’s treating consultant paediatrician, provided the court with an updating report on 24 February 2015. It is unlikely that H will achieve independent mobility and she will require full time care for the foreseeable future. She is unlikely to be able to communicate independently with speech and it appears that her vision is severely limited. Her epileptic seizure control is proving challenging. H will undergo a neurological review in August. She is likely to require highly skilled and full time care for the rest of her life.

[34]Dr B does not appear to share the optimistic view of the mother as to H’s progress and future abilities.

Indecent images

[35]The father contested the allegations that he had indecent images of minors on his computers. That challenge was mounted on the basis that:(a) some of the images were not indecent; and

(b) some of the subjects were not minors.

[36]Given the nature and severity of the injuries sustained by H, given that the father is the subject of criminal proceedings in respect of these images and in the light of the challenge mounted, I questioned whether it was necessary or proportionate for this court to investigate and make findings on these allegations.

[37]The local authority agreed and indicated that it did not seek to pursue findings in relation to the alleged incident images. I am wholly satisfied that that was the right course to adopt.

The positions of the parties

[38]The initial and sustained position of the parties was to deny any knowledge of, or responsibility for, how H came by any of her injuries. They sought to raise suspicion that during her various hospital admissions prior to 20 March, hospital staff had caused some or all of H’s injuries. Indeed, at one directions hearing I was invited to consider inviting Y Hospital NHS Foundation Trust to intervene in these proceedings. I declined to do so on the basis that I did not consider it to be either necessary or proportionate to do so at that stage. As matters have unfolded, I was right to do so.

[39]By the start of this hearing, and in the light of the broad consensus of the expert medical evidence, the parents both accepted that all of the injuries set out in paragraph 29 above were caused by inflicted trauma and that they were not accidental injuries. It was agreed that the perpetrator was either the mother or the father, but both denied having done anything to harm H.

[40]The father was examined by an experienced consultant psychiatrist, Dr Duncan, on 10 April 2014 for the purpose of undertaking a capacity assessment of the father. For the purposes of so doing, Dr Duncan reviewed the father’s past mental health history. During the course of his examination, the father made reference to what has been referred to at this hearing as his alter-ego “M”. Dr Duncan found that the father had capacity to litigate but recommended steps and measures which might be necessary to ameliorate the risk of him losing capacity in the currency of these proceedings.

[41]In the course of her report of 13 April 2015, Dr Duncan said:

“CD referred on a number of occasions to a ghost-like person, a man called M, who has taken over his body since he was a child. Later, on direct questioning, he explained his understanding of M, whom he told me he believed was there to help him deal with his traumatic childhood, in particular physical abuse and emotional neglect from his father. CD’s explanation to me about M was consistent with that reported in his medical reports and other filed documents in these proceedings. Apart from CD’s report about M, he denied perceptual abnormalities such as hallucinations and delusions…”

Later, she said:

“CD also further explained that he has no memory of what happened to his daughter, H, and felt this was down to his split personality. He explained this meant that he (by this he meant M) can at times take over and control his actions and behaviour without him remembering such actions. He said he is not a violent person by nature but believes that M could be quite violent and could commit violent offences at night when he is asleep and it could be a form of sleepwalking behaviour, though he has no known history of sleepwalking. CD admitted that M usually becomes more prominent when he is anxious and feeling stressed…”

Then a little later:

“In terms of the specific pages of CD’s medical records that were said to refer to M, I did not find that to be the case in all. However, in the context of an overview of these records, they have provided insight into how CD has demonstrated a high level of disturbed and disturbing behaviour throughout his childhood. There is a history of childhood abuse by his parents, transient involvement of children’s social services, significant concerns about his behavioural problems at home and at school, difficulties with peers, learning difficulties and evidence of a comprehensive (including physical and neuropsychological) inpatient assessment by child and adolescent mental health services when he was 13 years old. The records also show that he presented a diagnostic conundrum in terms of his mental health since childhood and several diagnoses were considered, including autistic spectrum disorder, but apart from the evidence of borderline low intelligence and conduct disorder there was insufficient diagnostic evidence of others…”

Dr Duncan concluded:

“CD is currently receiving treatment for anxiety and depression. He told me that he is currently awaiting psychological treatment (talking therapy) from Mind. There are, however, suggestions that CD is also likely to be suffering from post-traumatic stress disorder. His reports about M may be symptomatic of dissociative disorder, as described in the attached appendix 1, but other mental disorders, including psychoses and the role of personality features and drugs, such as cannabis abuse, need exploring. However, it is likely that a formulation of his mental health history will be more helpful than trying to pigeonhole CD’s difficulties into one or two neat diagnostic categories.”

[42]For the purposes of the concurrent criminal proceedings, the father was assessed by a psychologist. I have not seen her report, but the father told me that she had told him that separate personalities can have their own distinct memories. As a result of this information, the father said that he had embarked upon trying to retrieve M’s memories in respect of anything that might have happened to H.

[43]In the meantime, the mother filed and served a statement dated 22 April 2015 in which she recounted a conversation she had had with the father on 12 or 13 March. She says:

“I told my solicitors that CD said to me that M is still present in his mind and although he has no memory of it, M may have done something to harm H. CD said to me that he thinks if it wasn’t me and it wasn’t him then it must have been M. CD also said to me that he couldn’t be honest with me because he was scared I would leave him. I told my solicitors I was scared that something happened. I told CD I was going to share the information with my legal team. I reported the conversation to my solicitors because I was worried and I began to doubt him. I thought perhaps he had had some part to play in the injuries and he was starting to admit it. I cannot remember now if this conversation with me was just before or just after he saw his counsel and solicitors in conference. Very shortly afterwards, however, the court gave permission for him to be assessed by a psychiatrist [I interpolate that that is Dr Duncan]…”

A little later, she says:

“There has been one earlier occasion when CD spoke to me about H’s injuries. He came in one day - and I cannot remember when this was - and he said to me: ‘I’ve done it’. I asked him what he meant and he said something like: ‘I have hurt her’ or ‘I have hurt H’. I couldn’t understand it because ever since her injuries were discovered he had always told me he hadn’t done anything, so I asked him what he meant and he said he didn’t mean it and he was lying about it but he wanted to see if I would believe him. He said that if I believed him, he would be able to just say he had done it and other people would too and then maybe the judge would let me have H back. I was cross with him and asked him if he had been lying. He said he didn’t mean it and that he was lying when he said he had hurt her. I know that CD can behave in ways that are a bit odd and I have caught him out lying before. I didn’t believe him at the end of this conversation that he had hurt H and that is why, unlike when he spoke to me about M on 13 March, I didn’t tell anyone. In fact I haven’t told anyone about it until I was giving instructions to make this statement. I still don’t know what to think about what happened to H, but I am coming to think that CD may have hurt her in some way…”

[44]On the third day of this hearing, 23 April 2015, I was told by counsel for the father, Mr Tyler QC, that the father had recovered memories that M had behaved in particular ways towards H. The accounts were set out in a document dated 22 April and dealt with events which led to H sustaining her rib injuries, her right leg fractures and her encephalopathic collapse in the early hours of 20 March 2014.

[45]The father was able to retrieve further of M’s memories and in a document dated 24 April 2014 he set out events which led to H’s fractured wrist and another event when he bent her legs back towards her body and she cried.

[46]Those written accounts were provided to the medical expert witnesses, who each concluded that the actions and events described could account for those injuries sustained by H. I enter two caveats.

[47]The first is that whilst Dr Chapman could conceive a possible mechanism by which H sustained all three rib fractures in the event first described by the father, he doubted on the balance of probabilities that the second left rib fracture was sustained in that episode:(i) because he is satisfied that the second left rib fracture is of an older age in that it has a greater deal of periosteal reaction than the fourth or fifth rib fractures;

(ii) he finds it unlikely that one event could lead to the fractures of the second, fourth and fifth ribs without injuring or involving the third rib. I accept and prefer his evidence and find on the balance of probabilities that the second rib fracture was sustained on a separate occasion, or, at least, by a second and separate application of force.

[48]The second caveat is that the two spinal injuries, haemorrhage and muscle abnormality, are distinct and separate. The haemorrhage may result from draining of the subdural haemorrhage into the spinal canal, but the muscle abnormality must result from an application of force. If H’s upper spine had sufficient ability to flex during the abusive head-shaking episode on 20 March, that could have resulted in the muscle injuries. Dr Wild was more ready to accept that those injuries were sustained in that episode. In the premises, I am satisfied on the balance of probabilities and find that all of the brain and spinal injuries were sustained in the shaking event described by the father.

[49]Was the perpetrator of these injuries the father or M? Does it make any difference to the case? Mr Tyler QC urged me to be very cautious before entering this debate and coming to any clear conclusions in the absence of a full psychiatric assessment of the father. I readily accept the invitation to proceed cautiously.

[50]I note, and accept, that the father had to endure and survive an abusive childhood. I readily accept that as a device to survive this abuse and other bullying out of the family home it is hardly surprising that the father should have created an imaginary protector, namely M.

[51]I note that in a letter dated 26 April 2012, the father’s Mind counsellor wrote to the father’s general practitioner in the following terms:

“Since he was around 11 years old, CD has experienced a very real and internal presence, a personality called M. M has mostly been felt to be a protective and benevolent presence, but on two occasions now M has taken control of CD’s physical body and behaved violently, instances of which CD says he has no memory. The first of these instances happened many years ago, but the second happened recently and very much shocked and frightened CD. He has recently come to question more and more how real M actually is and has begun to wonder whether he might have created M himself as a way of coping with a very violent and traumatic childhood…”

[52]The father could recall nothing about the second instance referred to in that letter. Further, he was unable to help me with to what extent his thoughts that he had created M had developed over the last three years.

[53]In all of the circumstances, and for the detailed reasons I give at paragraph 93 below, I am entirely satisfied that it was the father who abused H and not M. It may be that the father has sought to shut away in the farthest reaches of his mind what he did to H, but I am completely satisfied that any memories, recovered or otherwise, of what befell H are the father’s and not M’s.

Agreed events

[54]There are a number of important events which the mother and the father are agreed, or at least are broadly agreed, took place.

[55]On 1 March and 3 March, when H was 21 and 23 days old respectively, the mother took three video recordings of the father “bouncing” H. One was taken on 1 March and two clips were taken on 3 March. The mother told me that she took them as a family memory. She said they both thought that the sounds that H was making were funny and the mother was hoping to record H breaking wind.

[56]Each of the three videos displays truly shocking images of the ill treatment of this fragile and vulnerable young baby. Many in court found it very troubling to view the videos. The father was bouncing or jiggling the child very roughly. Her head was unsupported. On two occasions when she was about to vomit, the father held her head back so she would not be sick on him. Even in his oral evidence, he appeared to be utterly oblivious to the risk that H could have choked on her own vomit.

[57]Throughout, and especially in the latter two clips, it is manifestly obvious that H is in distress and in increasing distress. In one of the clips taken on 3 March, the father is seen to put his hands around H’s neck as he bounces her. She immediately changes colour, goes puce and cries much more vigorously.

[58]Both parents told me that at the time neither considered that the father had handled H inappropriately. They said that they now recognise that it was inappropriate and had done so after being shown the videos when interviewed by the police in August 2014.

[59]This raises two matters of principal concern. I cannot begin to understand how any parent, however young and inexperienced, could not possibly be shocked and appalled at the manner in which H was handled by the father. It was abusive. I am at a complete loss to even conceive how any parent could have found H’s treatment and reaction funny.

[60]Second, neither parent could give me any explanation of what had happened or what they had learned that had made them realise that the handling of H was inappropriate; none whatsoever.

[61]The father told me in evidence that his care of H was similar to that seen in the videos but “not as rough”. The mother told me in evidence that she knew at the time that the father’s handling of H was “a little bit rough”. A little later, when cross-examined by counsel for the children’s guardian, Mr Adams, she said: “Days later, I thought it was wrong but I don’t know why I didn’t tell CD that”.

[62]Those videos, the parents’ role in them and their immediate reaction to them give me a very clear picture of the level of care afforded to H and to the worryingly bizarre approach they took as to what did or did not amount to safe and appropriate handling of a fragile baby.

[63]Equally troubling was the fact that the father told the mother when H was about a month old that he had had thoughts of strangling H. The mother said that she was shocked by this revelation and that she had told the father that he needed to get serious help. They booked an appointment for him to seek such help for 20 March 2014. The mother said that thereafter she kept more of an eye on him. I find no evidence that in fact she did so. Why not? Because as she told me, despite everything, she trusted him. She said: “He would not hurt a fly”.

[64]Against that background, I note that both parents describe H as being “stubborn”. The father told me that he thought that H hated him because she would not settle for him as she did with the mother. I do not understand how loving parents could ascribe such characteristics or thoughts to a tiny baby.

The father

[65]The father’s evidence and his demeanour when giving evidence was disturbing in the extreme. When he gave evidence of his repeated and sustained abuse of H, he did so in a cold, flat and unemotional manner. He described the abusive acts in graphic detail. It is of significance that when he described the second act of violence by M to the Mind counsellor in 2012, the latter records that that act very much “shocked and frightened” the father. There was not a trace of shock, fear or regret when the father gave his accounts of the abuse of H.

[66]In relation to the rib fractures, he said:

“He [that is M] took her out of the Moses basket when H was sleeping. H was crying and so he goes to pick her up. He goes to the bottom of the bed and he squeezed her to stop crying. He squeezed with a lot of force. She [H] was kicking her legs. She wasn’t able to breathe or cry. He squeezed for a couple of minutes. She started to cry a lot. She would be in discomfort and pain. He put back the distressed baby. [M] [that is the father] found her crying loudly. She cried for 20 or 30 minutes… M did not want me to have a child. It was his attempt to get rid of that child.”

[67]He described inflicting the leg fractures as follows:

“He [M] gets her up out of the basket and goes to the foot of the bed. He let her fall on the mattress. She landed on her back and bounced a little bit. She was still crying. He [M] turns away and looks at the wall. His right hand goes to grab H’s leg, he pulls her off the bed and lets her swing and then swings her up into his left hand. She landed with force. Her head was not supported. He knocked the back of her head with his fist five times to make her cry more and she did. He then put his right thumb over her chin and finger over her face to minimise her crying and it worked. She could still breathe through her nose. He did that for a minute and a half or a couple of seconds and then just placed her in the Moses basket when she was crying a bit.”

[68]The father told me that he broke H’s wrist in the following way:

“He [M] took H out of the Moses basket with his left arm. He touched her left hand and then he bent back her right hand to cause her pain and she started crying and screaming. He bent it back too far. H was screaming. He placed her in the Moses basket and covered her up. That’s all I can remember. [The mother] was in the front room on the phone. H was screaming for a couple of minutes, then crying. [The mother] came into the room and asked me why she was screaming.”

A little later, when asked about that particular incident in cross-examination by the local authority, CD said that he had bent her hand back and then held it and that H was screaming.

[69]The father’s account of the events of 20 March are thus:

“H was asleep. He lifted her by the armpits and went to the kitchen and sat her on the cooker, which was clean. He started to strangle her to stop her crying. Both his hands were around her neck. He used a great amount of force to stop her breathing. She changed colour and was dazed. Then he was thinking ‘Oh shit, (he’s) hurt her too much’. She started to cry; a weak cry. He lifted her up by the neck, still strangling her, and then shook her by the neck with her body dangling down - really powerful. I [said the father] lost count of how many times she was shaken. She wasn’t conscious when I put her back to bed.”

[70]The events of 20 March are particularly appalling for three reasons:(a) On the father’s account, he picked up and seriously abused not a distressed child but a baby who was sleeping peacefully.

(b) He shook the child not, as is so often reported to be the case, by holding her around the ribcage but by holding her around the throat.

(c) He admitted in cross-examination by Miss Morgan QC, counsel for the mother, that he abused H that night with the intention to kill her. Chilling evidence indeed.

[71]He initially told me that he had shaken H so many times that he had lost count. Later in his evidence, he said that he thought he had done so 37 times.

[72]I do not accept that because, absent expert medical evidence on the point, I suspect that if he had violently shaken H so very many times then he would indeed have killed her. In any event, it was a brutal, violent and sustained attack.

[73]Although the father was at pains to emphasise that the mother was not in the same room on each occasion that he assaulted H, she was present in the flat. Contrary to the mother’s case, the father told me that there were a number of occasions when the mother came into the room when he was caring for H and H was screaming. When he broke her wrist, for example, he said that the mother had come into the room and asked why H was screaming.

[74]When he caused her leg fractures, he told me that the mother came into the room and H was still screaming. He described an event when the mother found him placing H into her Moses basket roughly. He said:

“She saw me being rough with H putting her in the Moses basket. I think it was I put H in the cot too roughly - that was what AB said - but there was no change in my role. AB never asked me if I had done anything to harm H… I’d never heard H scream with AB or any other person. When I broke her bones and H screamed, I had never heard that scream on any other occasion. AB never asked me what I’d done. There was never any change in my role as a carer.”

[75]On at least two occasions in his evidence, he said that when he picked up H, or most of the time when he winded her, she looked frightened or scared.

[76]On several occasions during the course of his evidence, the father purported that M had control of him and that it was M giving evidence to the court. There are two matters to note. First, on each occasion when M spoke, the father was in my judgment either struggling to answer counsel’s questions or was seeking to avoid answering difficult questions. Second, when I asked if M had ever spoken through him before, save during these proceedings, the answer was “No”.

[77]In the early stages of his cross-examination by Miss Christie, on behalf of the local authority, the father said:

“I have no guilt, not one bit, because I did not do it. That’s the clever thing. The only guilt is that I did not protect her. Guilt can destroy you. That’s why it’s clever”

. Miss Christie also asked him why it was that he had not shown any emotion. He thereafter cried repeatedly throughout the first afternoon of his evidence. He did not cry or show any overt emotions during the second day of his evidence.

The mother

[78]The mother asserted that she had told the police the truth about what she knew of H’s injuries. She spoke warmly at the start of her evidence in chief about her great joy at the birth of H. She told me that she felt really tired and struggled with the nights. She said that the father often had difficulty getting to sleep and so he would do the night feeds.

[79]In respect of her relationship with the father, she said that it was an important relationship for her and that she had never had as serious a relationship as with the father, because they had a baby together, and that that “steps it up”.

[80]Until the very end of her oral evidence, it was a constant and repeated theme of the mother’s evidence that:(a) she had not heard anything that alarmed her;

(b) save for her right leg, she could not think of any other occasion when H appeared to be in pain; and

[81]I regret that I do not believe the mother. I find that she was lying. Whilst I accept that the mother may not have known what injuries the father had inflicted on H, I am satisfied so that I am sure that H would have screamed for a sustained period when her bones were fractured. Anyone present in the flat at those times, let alone the baby’s mother, could not possibly not have heard those painful and pitiful screams.

[82]My conclusions are reinforced by the father’s evidence that:(a) H screamed when he fractured her bones;

(b) the mother had on many occasions walked into the room when H was screaming; and

[83]In my judgment, in an unguarded moment when answering questions from Mr Adams, the mother admitted that she had heard H screaming. Moments later, she conceded that she had heard H “shouting, screaming and crying”.

[84]The mother accepted that she had on one occasion seen the father put H into the Moses basket more forcefully than normal. However, she said that she had forgotten about this occasion which is why she had not mentioned it to the police or in any of her witness statements. I pressed the mother on the point, but she maintained her position that she had forgotten about it.

[85]I regret that I do not accept that explanation. I take account of my finding that this mother had heard H screaming from time to time when she was in the care of the father. When she discovered the seriousness and extent of H’s injuries, I do not accept that this episode would not have been at the forefront of her mind.

[86]If I am wrong, the alternative explanation for the mother forgetting this incident is far worse, namely that the father so routinely handled H roughly and inappropriately that this episode did not stand out from so very many other occasions.

[87]In the course of cross-examination by the local authority, the mother told a deliberate and, in my judgment, damning lie. When asked why, when H slept on an apnoea alarm mat, the alarm had not gone off in the early hours of 20 March 2014, she said that it was a “special alarm” that sounded if H stopped breathing but not if she was lifted out of the Moses basket. Moments later, she admitted that that was a lie. When asked why she had told the lie, she said that she did not know. I rose to give the mother time to reflect on her evidence. When I returned to court, she maintained that she did not know why she had lied. She said: “I would not protect him [that is the father]. I would not protect him if he had hurt H”.

[88]I find that that is precisely why she lied. Throughout her evidence, and notwithstanding the father’s clear admissions that he had assaulted H, the mother kept referring to “if the father had injured H” or “the father has probably injured H”. By the conclusion of the father’s evidence, there was not a scintilla of doubt that he had done so. Her refusal to accept the same is a measure of the depth of her allegiance to the father and her great fear of losing him. Despite the gravity of his admissions and despite maintaining that she was wholly unaware that the father had harmed H repeatedly or at all, the mother left court on every day of this hearing with him and slept in the same bed with him.

[89]At the conclusion of her evidence, Miss Morgan asked the mother whether there was anything else which she wished to tell me. I rose for a few moments for the mother to consider her answer. When I returned, she was visibly distressed. Counsel’s notes of what she first said differ slightly from each other and from mine, but it was agreed by the Bar that the essence of what the mother said was that she had always put CD first.

[90]Even without that admission, on the totality of the evidence that is the finding that I would have made and do make. She always put him first, ahead of the needs of her fragile and vulnerable baby.

[91]For the avoidance of any doubt, in coming to my conclusions and findings I have taken no account of the observations of nursing staff about the parents’ demeanour at hospital, nor of some of the remarks that they are reported to have made. If true, they were indeed odd and bizarre, but I consider that it would be imprudent for me to consider or accord any probative weight to the same.

Discussion

[92]This is undoubtedly one of the worst cases of child abuse which it has been my misfortune to have dealt with in 30 years at the Bar and then on the Bench. H was a tiny baby. In the first 40 days of her life, she was assaulted and/or seriously injured by her father on no less than six occasions.

[93]I am completely satisfied so that I am sure that it was the father and not the persona “M” who assaulted H. I reach that conclusion and make that finding for the following reasons:(a) Although the father has spoken to medical professionals about a presence called M, save for an incident many years ago when he assaulted his brother ED and save for some unknown occasion some years ago, there has not been a time when M is alleged to have taken control of the father.

(b) Save during this hearing, there has never been an occasion when M has spoken directly through the father.

(c) The father did so only when he was in difficulty in answering counsel’s questions and when he sought to avoid answering questions.

(d) The account of the father retrieving M’s memory only occurred after the father had been told by a psychologist that a “personality” could have its own separate memories.

(e) The father did not show any emotion about what he had done to H until he was asked why he was not showing any emotion. He cried now and then for the balance of his evidence during that first afternoon. None was shown in the following day.

(f) It was the father and not M who told the mother that he had had thoughts of strangling H.

(g) It was the father and not M who admitted to the mother that he may have injured H.

(h) It was the father and not M who abusively and inappropriately handled H in the three video clips.

(i) On the totality of the evidence, I am satisfied that the idea that M had injured H was a construct and a ruse by the father in an ill-conceived attempt to deflect blame from himself: “That’s the clever thing. I have no guilt. Not one bit”.

[94]On the balance of probabilities, I find that the father assaulted and inflicted injuries and pain on H on not less than six occasions. I find that he caused all of the injuries set out in paragraph 29 above. He admitted to forcefully pushing H’s legs backwards. The event may not have caused any injury, but it caused the child pain.

[95]One of the most serious aspects of this case is that this is not a case of a young and inexperienced parent momentarily losing control and injuring or shaking a child. This father repeatedly and deliberately assaulted a tiny baby. There is, very sadly, a sadistic element to the father’s abuse of H. I so find for five reasons:(a) When he broke her wrist, he pushed her right hand back so far that the bone fractured but then, as the child screamed out, he held it there, increasing her pain and agony.

(b) On 20 March, he very seriously assaulted a peacefully sleeping 40-day-old baby.

(c) Without any provocation and for no obvious reason, he calmly did what he said he had had thoughts to do and he strangled her.

(d) He then shook her by the neck. I have never heard of a parent shaking a child in that way before.

(e) He did so intending to kill her.

[96]On the totality of the evidence, I am satisfied to the requisite standard and find that H’s apnoeic episodes were caused by the father occluding her airway. He admitted doing so immediately after he had broken her wrist in an attempt to stop her crying.

[97]On the totality of the evidence, I am completely satisfied and find on the balance of probabilities that the mother:(a) has lied to protect the father;

(b) has always put the father first;

(d) did nothing to protect her baby; and

(e) placed her relationship first and foremost.

[98]In all of the circumstances, the mother grossly failed to protect H. I find that it is a failure to protect of the highest order.

[99]I decline to find, as invited to do so by the local authority, that the mother did or may have directly injured H herself. I am satisfied that she did not. Save for that, however, and subject to my findings above, I do not know precisely what her role was because she has lied to protect the father.

[100]The parents said in evidence that it was at about 3.30 am that H became obviously unwell, but an ambulance was not called until 4.23 am. Moreover, during that telephone call the mother said that H had not been herself since about 11.00 pm. What else had been happening in that household? I do not know because the mother will not tell me.

[101]I am satisfied that the parents have colluded with each other in an attempt to enable the mother to secure the care of H.

Conclusion

[102]As he himself accepts, I am satisfied that the father can and must be excluded as a carer for H. On the basis of my findings, in my judgment he is a dangerous man.

[103]Although my findings against the mother are of the highest order of seriousness, short of a finding that she injured H, I decline to rule her out as a future carer at this stage.

[104]Tragically, as a result of this father’s actions and this mother’s failure to protect, a little girl has been left with life-long serious impairments and disabilities.