Cheshire East Borough Council v PN & Ors (Finding of fact) [2016] EWFC 61

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.Case No LV16C02212[2016] EWFC 61
IN THE FAMILY COURT
Date 20/12/2016
SITTING AT LIVERPOOL
Before
THE HONOURABLE MR JUSTICE MACDONALD
Between
Cheshire East Borough CouncilApplicant
Mr Andrew Haggis (instructed by Cheshire East Borough Council) for ApplicantMs Fiona Holloran (instructed by Otten Penna) for First RespondentMs Sara Lewis (instructed by Platt Halpern) for Second RespondentMs Ruth Scarisbrick (of Bell, Lamb & Joynson solicitors) for Third RespondentMs Leonie Caplan for First IntervenerThe Second Intervener appeared in person for in personHearing Hearing dates: 5, 6, 7, 8, 9, 12, 13, 14, 15 and 20 December 2016
JudgmentMr Justice MacDonald:INTRODUCTION
[1]In this matter I am required to determine how PN, a girl aged 9 months old came to sustain head injuries earlier this year. The local authority that brings these proceedings, Cheshire East Borough Council, alleges that the injuries were inflicted on PN by one or other or both her parents, NA and LN during at least two episodes of abusive head trauma as the result of a shaking type injury or a shaking type injury with impact. Each parent denies injuring PN. The child’s interests in these proceedings are represented by her Children’s Guardian. The Children’s Guardian maintains a neutral stance with respect to the causation of the injuries to PN.[2]By reason of expert evidence as to the period within which the injuries sustained by PN occurred, the maternal grandmother, DA, and the maternal Aunt, HA, have been joined as interveners in these proceedings in circumstances where each had care of PN during the period in question. Both DA and HA deny inflicting injury to PN. The local authority makes clear that it does not seek findings against either DA or HA and neither does the mother. The father has explored the possibility of the injuries being caused by DA or HA during the course of this hearing. Whilst DA has been represented by counsel, Ms Caplan, HA has represented herself and has been required to cross examine both lay witnesses, including the father, and expert witnesses. She is to be commended for the calm, measured and decorous way she has conducted herself before the court.[3]Originally, a number of other members of the maternal and paternal families were joined as interveners in these proceedings. However, at the pre-hearing review I took the view that they should be discharged as interveners. Having regard to the totality of the evidence by then before the court, I was satisfied that it could not be said in relation to any of the five people in question that there was a prima facie case that they were likely to have inflicted the injuries sustained by PN or that there was a real possibility that they had done so.[4]This case demonstrates well the very difficult task that the court faces when it is asked to determine the cause of injuries to a young child in circumstances where those present at the time the injuries were sustained are not prepared to describe how the injuries came to be caused, leaving the court to piece together what happened from the jigsaw of evidence available. Before turning to the background of this matter, and in the context of a case which has seen both the parents and family members giving conflicting, and at times diametrically opposed, accounts of the same period of time, it is important to make two points regarding the process the court is required to adopt when hearing cases of this nature.[5]First, it is axiomatic that the judge is not present to witness directly the events in issue when they unfold. Moreover, in most cases of this nature the events in question take place within the family home and therefore the court rarely has available to it evidence in the form of testimony from witnesses unconnected with the family or technical evidence such as CCTV footage. The court is therefore heavily reliant in cases of alleged inflicted injury on the parents or other family members who were present at the time the relevant events occurred giving a frank and truthful account of what occurred.[6]Second, as a function of the judge not being present to witness directly the events in issue as they unfold, the court must apply an appropriate standard of proof when deciding what has occurred. In this case the standard of proof is the balance of probabilities. This means that, when deciding matters that are disputed between the parties, the court is not required to determine what did happen as a matter of objective truth, but rather to determine what is more likely than not to have happened having regard to the totality of the evidence available.[7]In determining the issues of fact in this case I have considered four lever arch files of documentary evidence and have had the benefit of hearing evidence from the mother, the father, DA and HA. I have also had the benefit of expert reports from Dr Neil Stoodley (Consultant Paediatric Neuroradiologist), Dr Mittal (Consultant Paediatrician), Mr Peter Richards (Consultant Paediatric Neurosurgeon), Dr Keenan (Consultant Haematologist) and Dr Newman (Consultant Paediatric Ophthalmologist). I heard oral evidence from Dr Stoodley, Mr Richards and Dr Newman. THE BACKGROUND AND THE LAY EVIDENCE The Parents

THE BACKGROUND AND THE LAY EVIDENCE

[8]The mother is NA. She was born in 1987 and is now 29 years of age. Her mother, the maternal grandmother, is DA, the first intervener. Her sister, the maternal aunt, is HA, the second intervener. The mother also has a brother. The mother has one other child, MA. He is not the subject of these proceedings but has been the subject of private law proceedings in the past. He now lives with his father.[9]The mother accepts that over a significant period of time she has had difficulties with her mental health, in the form of depression, difficulties with the use of illicit drugs, specifically cannabis and cocaine, and difficulties with the use of alcohol. During her ‘Connected Persons Assessment’ HA stated that alcohol misuse was a chronic feature of the mother’s lifestyle prior to her relationship with the father. The drug and alcohol testing that has been undertaken in respect of the mother in these proceedings, the results of which have not been challenged, demonstrates chronic excessive alcohol consumption from August to the beginning of November 2016 and cannabis and cocaine use from May 2016 to November 2016. In cross examination the mother conceded that she had on occasion sought to conceal the extent of her drug taking and alcohol use from doctors. The mother also has a history of entering into relationships that are characterised by allegations of domestic abuse, including the relationship with the father of MA. She does not seek to dispute that history.[10]Within the context of the mother’s admitted difficulties, the police records concerning the mother, which go back a decade to 2006, contain the following matters of note: i) On 29 September 2006 the police were called after it was alleged that the mother had assaulted her sister, HA. The mother was recorded to be intoxicated with alcohol. The maternal family were recorded as being “at the end of their tether” and wished for the mother to leave the family home. ii) On 27 August 2006 the mother called the Police and alleged she had been attacked with a baseball bat by her brother. The officer recorded the following in respect of this allegation:
“I have spoken to NA who was clearly intoxicated and admitted that she had been drinking. NA explained that she is currently suffering from mental issues and needs medication. Therefore even the slightest argument upsets her. NA also explained that no assault took place either with fists or a bat by her brother and she used this excuse to get police response quicker.”
In her oral evidence to this court the mother confirmed that she had fabricated the allegation against her brother. iii) On 1 October 2006 HA called the police to report that the mother had come home drunk and stated that the mother calls the police and tells lies. The record states that “Speaking to all parties concerned it is obvious that NA fabricates these allegations in an effort to persuade police to arrest various members of her family in a ‘tit-for-tat’ way.” In her oral evidence the mother the mother conceded that she had lied in order to make the Police attend. In their oral evidence both DA and HA conceded that the mother was capable of telling lies. iv) On 3 October 2006 a mental health referral was made in respect of the mother after she presented at the Emergency Department. She was diagnosed with a manic-depressive episode and was seen by a psychiatrist. v) On 11 October 2006 the mother called the Police whilst drunk following an argument with DA. The mother stated she rang 999 because she needed someone to talk to. vi) On 21 January 2010 the Police were called to an incident between the mother and her then boyfriend. The boyfriend alleged that the mother had begun punching herself and saying that she would tell the Police that he did it. The boyfriend filmed the mother punching herself. When the Police arrived the mother claimed that her boyfriend had assaulted her. When however, she was shown the film she admitted she had punched herself. The mother had drunk a bottle of wine and two cans of lager. In oral evidence the mother conceded that on this occasion she had been trying to manipulate the legal process by telling lies to the Police and that she had made a false allegation in attempt to get her partner into trouble. vii) On 7 October 2011 the Police were called by the mother during an argument with her ex-boyfriend. The Police recorded that during the altercation the ex-boyfriend had been stabbed in the foot and the mother had had one of her lower teeth knocked out by a kick to the face. There was blood and alcohol on the kitchen floor. Both were arrested. In her oral evidence the mother admitted that she stabbed her boyfriend but did not accept she had perpetrated violence by doing so, stating that “I thought I was completely in my rights to do that”. viii) On 5 November 2012 the Police were called by MA’s father alleging that the mother had contacted him by text threatening “reprisals” and that she had turned up at his place of work. When the Police attended MA’s father alleged that the mother had stated she had had enough of MA and asked the father of MA to take him, saying she had even had thoughts of killing him. It is not clear that the Police spoke to the mother about these allegations. ix) On 10 November 2012, the Police were called due to allegations by the father of MA that the mother was being aggressive on an occasion when she was due to have contact with MA supervised by DA and HA. The mother was alleged to be aggressive to all parties.[11]Whilst I am conscious of the fact that I have not heard evidence from all of the actors in the situations I have set out above, in cross examination the mother conceded the majority of these incidents as described. In circumstances where she did not make concessions in respect of the last two matters set out above, I make clear I have not placed reliance on these. However, the police records, and the mother’s concessions in respect of them, demonstrate that the mother is quite capable of fabricating allegations for her own purposes or to get others into trouble. As I have already noted, both DA and HA accepted that the mother is capable of telling lies and that she does not always tell the truth. DA confirmed that the mother would argue with her and is “just that type of person”. Notwithstanding the foregoing history, the mother’s criminal record is limited, with one conviction for driving with excess alcohol on 4 November 2011.[12]Within the foregoing context the mother has been known to the local authority since 2013 in relation to the concerns regarding her elder child, MA. MA was made the subject of a child protection plan on 5 September 2013 on the grounds of neglect. An assessment identified a history of non-attendance at health appointments and domestic violence as a feature of the mother’s relationships, together with the mother’s inability to detach herself from those relationships. The mother made improvements over the course of the local authority’s intervention and the case was closed on 23 February 2015.[13]The father is LN. He was born in 1986 and is now aged 30. The father denied when it was put to him by counsel for the mother that he was physically abused as a child and had learnt to physically abuse his own children. The papers do not suggest that the father was known to social services as a child. The father has also had difficulties with the use of illicit drugs, again cannabis and cocaine, and with the use and abuse of alcohol. The father conceded in evidence that drink became a problem for him to the extent that he would be sick over himself and that his father would take pictures of him to try and shame him into changing his behaviour.[14]The mother asserted in oral evidence that the father would be calm when he was taking drugs or using alcohol but that there would be “a problem” if he could not access them. I pause to note however, that the mother claims precisely the opposite in her statement, in which she states that taking drugs and using alcohol made his behaviour worse. The father denied drugs and alcohol affected his behaviour and stated that, in any event, he never used alcohol or drugs when caring for PN. Within this context, it is of note that whilst DA and HA noted the mother to be intoxicated on a number of occasions whilst caring for PN, they noted no such instances in respect of the father.[15]Prior to his relationship with the mother, and indeed until just prior to this hearing, the father had no criminal convictions. However, on 2 December 2016 the father was convicted of a series of offences that occurred in September and October of this year, including assault on the mother, possessing cocaine and cannabis, destruction of property, possession of a folding pocket knife and theft of money from the mother. The statements filed within these proceedings also contain unchallenged evidence detailing the father’s violent conduct towards his own stepfather and altercations between the father and other members of his family.[16]The father has had previous relationships which have produced children. One of those relationships, with the partner with whom he had two of this three other children, features in the Police records that are before the court. There are a number of allegations made in respect of the father, including a verbal altercation drawn to the attention of the Police on 12 May 2013, an allegation reported to the Police on 12 June 2013 that the father was threatening to report her to social services for using drugs in front of the children, a call to the Police on 26 June 2013, an allegation to the Police on 22 July 2013 that the father had spat at his partner and pushed his forehead against hers and a report on 13 June 2014 that he had touched her inappropriately whilst she was sleeping. Whilst he conceded in evidence that he dealt with these situations badly, the father denied that this relationship was characterised by domestic violence. Determining what weight to attach to the foregoing recorded incidents is complicated by the fact that on 27 June 2013, and following a report by his previous partner of domestic violence by the father, the Police recorded: “I spoke to [the father’s previous partner] at length outside the flat. She did not confirm any assaults but did state that she had been the aggressor by throwing cups around and smashing them which was in front of the children. She did this as she is fed up with LN acting like everything is OK even though this is not the case. LN had removed her from the flat as she was upsetting the children and he worried for their safety. [She] was worked up but did calm down and went to her mum’s house with the children”.[17]The parents’ relationship commenced in late 2014. Initially, that relationship does not appear to have resulted in neighbours reporting disturbances or the Police being summoned, although it is apparent that they separated on a number of occasions and the unchallenged evidence of the paternal grandmother suggests that the relationship was “toxic” even at this stage, with arguments, fights and “dramas”. The mother alleges that during her pregnancy with PN the father “always seemed to be angry”. She also alleges he was drinking, smoking cannabis and taking cocaine, which made his behaviour worse although, as I have already noted, the mother claimed precisely the opposite during her oral evidence. The father alleges that during her pregnancy with PN the mother was drinking alcohol and assaulted him on a number of occasions. 21 February to 6 May 2016[18]On 21 February 2016, five days prior to PN’s birth, the Police were called to the paternal grandmother’s property by the father. The details provided by the police records show that the father reported that the mother was outside her property shouting abuse and banging on the door. When the police attended the paternal grandmother reported that this happened every time the parents separated and the father moved back to the paternal grandmother’s property. The father reported that he was suffering verbal abuse from the mother, who attended his place of work and walked into the office to start an argument and continuously told him the baby was not his. The mother was told to leave. The Police report records an allegation that the mother assaulted the father by punching him to the right side of his face. In her oral evidence the mother denied hitting the father but conceded that the situation on 21 February 2016 constituted an abusive incident.[19]PN was born on 26 February 2016. She was born by normal vaginal delivery and was seen to be healthy, with no abnormalities detected following her birth. She was discharged home on the same day. During the course of her pregnancy the mother had ceased taking her anti-depressant medication.[20]Following the incident on 21 February 2016 recounted above, the father was not living at the family home and was residing with the paternal grandmother. However, on the same day PN was born, and after calling his mother “a cunt” and allegedly assaulting his stepfather, the father was ejected from the paternal grandmother’s home. In evidence the father conceded he had “kicked off” and described his own conduct on this occasion as “disgraceful”. It is indicative of his problems controlling his temper that, on the father’s evidence, his anger was due to his mother fussing over him as the birth of PN approached. By reason of his behaviour, the father’s brothers “dumped” his property at the doorstep of the mother’s home. The father accepts that one of his brothers said “you’re not speaking to my mum like that again, don’t come near the house, if you do I’ll snap your neck, you’re no family of ours, enjoy your new family”. The father conceded in cross examination that he had not wanted to return to the mother’s property and did not want to be living there.[21]The father was compelled to return to work very shortly after PN’s birth, leaving the mother caring for PN during the day. The mother was observed by both DA and HA to lack a bond with PN. The social worker likewise later assessed the mother as not having a strong bond with PN and that, by reason of her difficulties, she was not able to provide intuitive care to PN or to meet her needs. In her closing submissions the mother accepts that she struggled to bond with PN.[22]On 4 March 2016 DA visited the family home and found the mother to be intoxicated whilst having sole care of PN, the father having left the property following an argument. HA arrived shortly after DA. She conceded in cross-examination that it upset her to see the mother intoxicated with a young baby. It is of note that HA did not refer to this incident in her statement and conceded that she did not tell the social worker about it. After trying to persuade the mother to accompany PN, DA and HA removed PN from the mother’s care and took her to the maternal grandfather’s property. The mother collected PN the following day. She was not accompanied by the father.[23]The evidence of DA and HA with respect to this incident corroborates the father’s account in his Police interview that he would, on occasion, come home from work and find the mother drunk whilst caring for PN. The evidence of DA and HA also corroborates the unchallenged evidence of the paternal grandmother that the mother continued to use drugs and alcohol after the birth of PN. The evidence of DA and HA also directly contradicts the mother’s statement in which she claims that “I have never been under the influence of alcohol when caring for PN on my own”. This is plainly not true and I am satisfied that the mother sought to mislead the court with this statement.[24]A primary birth visit by the Health Visitor took place on 8 March 2016. During a follow up visit by the Nursery Nurse on 16 March 2016 safe sleeping was discussed as the mother had left PN unattended on the sofa. On 20 March 2016 HA states that she saw an injury to the mother that the mother claimed had been inflicted by the father. On 21 March 2016 the Health Visitor records record that the mother was reluctant to allow access for a visit. On 3 April 2016 the paternal grandmother witnessed an argument between the parents. PN was in a car seat in the sitting room. The paternal grandmother relates that, during the argument, father trapped his fingers in a door and ran into the street followed by the mother after the paternal grandmother had left the property. The paternal grandmother says in her statement that “I was at this point horrified by all the drama and couldn’t believe that they were still carrying on having their violent and volatile relationship that I’d witnessed before”.[25]On 4 April 2016 a female was seen by a neighbour to be banging on the door of the parents’ property, screaming, with her face covered in blood. Both parents concede that this incident took place. The mother now contends the injuries to the third party were caused by the father. The credibility of the mother’s account is very difficult to assess in circumstances where she concedes she gave three different accounts of the incident before finally alleging that the father was responsible, the latter allegation coming only after it was apparent that PN had sustained injury. In her oral evidence the mother conceded that she had lied, stating that this was the result of fearing she would lose her tenancy. The father conceded that he had man-handled the third party out of the property and that the third party had stumbled as he did so. The father claims that he was assaulted by the mother whilst in the process of excluding the third party from the property. The mother accepted in oral evidence that she had been out drinking with the third party prior to this incident. On 11 April 2016 the Health Visitor undertook a 6 week visit and PN was observed to be well, smiling, happy and gaining weight as expected.[26]The mother asserts that when PN was between seven and eight weeks old she may have hit PN’s head against a doorframe accidentally whilst the father was at work. The father recalls that in mid to late April, just before he got suspended from work, the mother presented as very upset when she picked him up from work because she thought she had banged PN’s head on the door. The father checked PN in the car and she appeared fine but the mother insisted the father check her again when they got home. The father checked again and reassured her. The father’s evidence is that he did not see any lumps or grazes and said that PN seemed fine.[27]I pause at this point to note that during her oral evidence the mother was adamant that PN’s injuries were sustained at some point in April 2016. She repeated this assertion, unbidden, several times during the course of her evidence. The mother’s view in this regard was, she said, based on examining pictures from that period with the benefit of hindsight and seeing, she believes, evidence of enlargement of PN’s head during that period. In particular, when recounting her concerns in this regard, the mother stated “when I think of April I get a funny feeling and feel bad”. As I have already noted, this period coincided with the mother caring for PN alone whilst the father was at work at a time when she was noted not to have a strong bond with PN and at a time she continued to drink to the point of intoxication whilst caring for PN. It also coincides with the period in which Dr Mittal considers PN’s head circumference started to increase, crossing the centiles, which Dr Mittal considers began before PN was 8 weeks of age.[28]In April 2016 the father lost his employment. The father asserts that this was due to the mother contacting him constantly at work and attending his work address over the period set out above, telling him to come home because she could not cope with PN. The father stated that the mother would beg him not to go to work. This evidence was not the subject of challenge during cross-examination of the father. The father told the Police in interview that he became worried about going to work because the mother was not doing the things she should be doing. In response the father took increasing time off work, ultimately leading to him losing his job. Whilst the mother sought to deny that she had regularly phoned the father at work, she conceded in cross examination that there had been at least one occasion when she had phoned the father at work because PN had been crying for over 2 hours. The mother also said that the father wanted to go to work when she was not feeling very well but that he would stay off work. The mother’s concessions in oral evidence tend to corroborate the father’s evidence regarding the circumstances by which he came to lose his job.[29]After father ceased work HA stated that she stopped attending the property as the arguments between the parents became even more common. DA likewise did not want to attend the property because she did not like the father. In the circumstances, the support that HA and DA had been providing up to this point ceased for a period of time.[30]Father states that during this period he increasingly took over responsibility for the care of PN (a statement that I note is a concession against his own interests in the context of the findings sought by the local authority). The father further conceded to the Police, and during the course of his oral evidence, that at this time he started to “lose his rag a bit” and to shout and swear because of the pressure of doing all the care. In cross examination the father agreed that he did not always control himself well at these times. He ascribed his behaviour at this time to arguments that were caused if he asked the mother to undertake tasks such as getting a bottle. The father stated that “I did everything and she criticised me for it” and that “it did wind me up when she criticised my parenting”. Within this context, and whilst I note the criticisms levelled at the father for the manner in which he undertook the tasks, it is of note that it is only the father who is mentioned by the mother, HA and DA as winding PN after a feed and bathing her. I further note that the social worker’s unchallenged assessment of the difficulties in the household in May 2016, contained in the CAF Assessment Form, was that “mum was not herself and had no attachment to the child and LN was caring for the child solely and not understanding why the mum was not attending to the child’s needs causing arguments”.[31]The evidence of an increasing level of conflict between the parents at this time is corroborated by the commencement at this time of complaints by neighbours of the parents to the Neighbourhood Officer. The mother had had the benefit of the tenancy of the property since 19 August 2013. On 25 April 2016 the Neighbourhood Officer telephoned the mother to speak to her about reports of antisocial behaviour. This would appear to be the first complaint made in respect of the mother’s tenancy. A baby could be heard crying in the background and the mother appeared to be distressed. The Neighbourhood Officer formed the impression that the mother was not coping well. On 28 April 2016 a further complaint was made by a neighbour alleging that the mother and the father were constantly fighting in the early hours of the morning and screaming at each other. The neighbour making the complaint later elaborated that items were also being thrown around and frequent loud music was being played at the property. HA stated that on 29 April 2016 the mother showed her bruises that the mother said had been caused by the father.[32]It is plain that during this period there was a high level of antagonism and conflict between the parents. During her oral evidence the mother sought to lay the blame for this state of affairs squarely at the feet of the father. The father’s evidence was more measured, he conceding, as I have noted, that he started to “lose his rag a bit” and to shout and swear. The father said of the mother “she was the fire and I was the smoke”. HA accepted that at times the mother was aggressive and challenging towards the father and that there was fault on both sides, although, she felt, more so on the father’s part. DA accepted that, on the evidence, there were times when the mother was aggressive to the father and assaulted him.[33]With respect to the father’s parenting during this period, two aspects appear to have come in for particular criticism by the mother and generated concern in the wider family. The first was the father’s approach to winding PN, the second his habit of pouring water over her head when bathing her. With respect to the former, the mother says that the father would have a habit of bouncing PN roughly in a manner that made her “feel sick”, that caused her to tell him to stop it, to ring her sister and, at times, to cry. HA corroborates the mother’s account of her phoning up crying and telling her that “LN is bouncing PN too hard”. The father concedes in his statement that that “NA saw me winding PN like this and once said I was too rough, but I don’t think that it was”. The father further states that when PN was admitted to hospital the mother telephoned him and told him he had caused the injuries by winding her. The father does not believe that his actions caused injury. I note that in the history taken by Dr W on 11 July 2015 it is recorded that the mother stated that winding in this manner had not occurred since 10 weeks of age. Whilst taking the history Dr W also recorded “? slightly more vigorous than usual” in relation to the force used. When giving evidence, HA appeared to emphasise her concern with the father’s habit of pouring water over PN’s head rather than his winding of PN. No party sought to suggest that PN had displayed any evidence of disturbance or injury after being winded by the father. 6 May to 16 May 2016[34]On 6 May 2016, the local authority housing department received a further referral with regards to arguing and drunken behaviour at the address of the parents. The CAF Assessment form indicates that the social worker saw clear signs of stress between the parents and PN was witnessed to “jump” in response to noise and increase her breathing rate. The mother was not observed to be warm towards PN and had been drinking. The father was observed to demonstrate emotional warmth to PN. The father was, as he accepts, aggressive to the social worker on this occasion when he returned to the property, having been out to the park with PN. In his oral evidence he agreed that he was hostile and took being told to leave the property by the social worker “really badly”. The father agreed to leave the family home and the mother was asked to sign an agreement not to let him return. Between this date and 12 May 2016 the mother had care of PN. The CAF Assessment Form records that HA was asked to supervise the mother with PN due to the mother’s concerning behaviour and low mood. The written agreement to this effect is in the bundle and provides “Until assessments are completed I will not allow LN into the home or to have any contact with MA or PN”.[35]Whilst the father ultimately agreed to leave the property it is clear that he remained angry. The paternal grandmother (in evidence not challenged by the father) states that later on 6 May 2016 the father assaulted his step-father. The father admitted in oral evidence that he had punched his stepfather in the face. The paternal grandmother’s statement relates that: “When my husband came to pick me up from work tonight he was covered in blood, as my son LN had punched him in the face through the car window numerous times! LN had rowed and been fighting with NA in her house and social and Police had asked him to leave, so he’d got himself to a very angry state and took it out on my husband when he asked him to get away off our drive”.[36]Following this incident, the mother attended at the property of the paternal grandmother on 6 May 2015 at approximately 7.55pm. In evidence she could not give an account of what she had been doing between the departure of the social worker and her arrival at the paternal grandmother’s house, stating that she “cannot remember”. Within this context, at this time paternal grandmother described PN as crying for a considerable period of time, being unsettled and reluctant to take her feed. The mother did not seek to challenge this evidence and the father does not dispute this evidence.[37]On 12 May 2016 it became apparent that HA was no longer able to stay with the mother. The local authority considered that the father would resume care of PN because the mother still appeared to be unwell. When the social worker and the Health Visitor again visited the family home on 13 May 2016 both parents were present and the father raised concerns about the mother’s behaviour. The CAF Assessment Form, the contents of which were not challenged, records that the mother was seen to have apparently deteriorating mental health and to be acting and talking bizarrely. She was also observed to be acting in an aggressive and challenging manner towards the father. The father was noted to be more clear headed and to be the main carer for the child. The social worker was concerned that MA reported, when they spoke to him alone, that the mother had said she “did not want the baby”. The mother stated she did not want the father in the home. The mother was advised to seek medical attention and the social worker advised that PN be cared for by the father at the paternal grandfather’s property over the weekend to ensure that her needs were met.[38]Two days later, on 14 May 2016, the mother presented to the Emergency Department, apparently in pursuance of the advice of the social worker that she seek medical attention. The report of Dr H, the contents of which were not disputed by the mother, details that the mother was concerned about her mental health. She reported feelings of worthlessness and guilt and felt she was doing a bad job as a mother. Whilst denying any thoughts of harming PN, the mother stated she had struggled to bond with her. She reported some relationship difficulties in her relationship with the father but did not go into details. She denied any current abuse at home but described an incident of the father shouting at her. She claimed no drug use and no use of alcohol. Dr H noted that the mother was dishevelled with dirty finger nails and poor oral hygiene with a “slightly incongruent affect” of crying one moment and laughing the next. The mother ascribed her mental health difficulties to her low mood. The risk presented by the mother to PN was assessed by Dr H to be low. 16 May to 23 May 2016[39]On 16 May 2016 the father returned to the family home with PN and a further joint visit to the family home was undertaken by the social worker and the Health Visitor following the mother’s attendance at hospital. The social worker states it was clear during the visit that the mother was unable to meet PN’s needs. A decision was taken that it would be appropriate for the mother to stay with HA and for HA to attend the family home on a daily basis and supervise contact between PN and her mother. An agreement was signed to this effect. The social work assessment of the father’s parenting ability, as set out in the social worker’s statement, was that the father was observed to meet the primary care needs of PN, to have an understanding of how to care for a baby in terms of feeding, bathing and cleaning the house and was believed to be able to provide care for PN. The Health Visitor reported that “LN was able to recognise feeding cues and response appropriately to PN and demonstrated a warm bond”. None of the foregoing social work or health visiting evidence in this case was the subject of challenge.[40]There is a dispute as to whether the mother remained out of the property after this date until 23 May 2016. The father is adamant that the mother remained in the property. DA states that the father was alone with PN and that the mother visited with HA during the day. HA states that “NA came to my house”. A complaint to social services made by the maternal grandfather proceeded on the basis that the mother had been asked to leave her own property. It is of note that HA says the following about PN remaining with the father at this time:
“[The social worker] had assessed that LN was fit to look after PN and gave LN parental responsibility. I did express my concerns to [the social worker] regarding his winding technique and that he can’t even look after himself but at this time NA wanted me just to agree with them to get them off her and LN’s back so I did not say much. NA did not want [the social worker] to know about the beatings she receives of LN”
. As I have already noted, during her oral evidence, HA conceded that she had also not told the social worker about the mother being intoxicated whilst caring for PN on 4 March 2016. When that incident and the foregoing passage from her statement was put to her, HA replied “I did not give the full story because NA wouldn’t let me”.[41]On 23 May 2016 the mother was visited by the social worker and a representative of the local authority housing department. HA was also present at the meeting. The presentation of the mother was noted to have stabilised and an agreement was reached for the mother to spend more time in the family home subject to the father being vigilant. PN was noted to be safe and well. 24 May to 27 May 2016[42]On 26 May 2016 the Nursery Nurse visited the family home at the father’s request for advice and support with respect to parenting. No concerns were noted in respect of the father’s care. The mother was noted to be not dressed at 10.00am and was “shivering and shaking”. When the Nursery Nurse asked if she was cold the mother replied she was not but said that when she goes to the doctors they sometimes ask if she is drunk. This evidence was not challenged.[43]Later, on the evening of 26 May 2016 the Community Safety Officer records that neighbours reported a disturbance at the family home and the attendance of two Police cars. At 11.30pm the neighbour heard arguing between the mother and father. Both parents agree that there was an argument. During the argument the father stated that he was moving around the house with PN in his arms. Both the mother and the father stated that the argument arose out of the father ‘liking’ pictures on the Facebook page of an ex-partner. The mother conceded that she challenged the father about this and an argument resulted. The father admitted in oral evidence that during this argument he called the mother a “bitch” and a “dickhead”, that he got really angry and argued back. Both parents stated that after the argument the mother left the family home and spent some time at a neighbour’s property, the mother stating that she returned to the family home at approximately 3am on 27 May 2016. The mother confirmed that when she arrived home both PN and the father were asleep and all was quiet.[44]The mother states that after returning to the property she went to sleep and awoke at about 10.30 or 11.00am. The mother’s account of what she heard and saw thereafter during the course of 27 May 2016 has varied considerably in the telling to the point that it was difficult to identify which of her versions of events was the definitive one.[45]In her statement the mother alleges that she heard PN crying in the next room, heard the father shouting, then heard a loud noise with the bed seeming to shake more than once, at which point PN “seemed to be crying louder”. The mother states that she went into the bedroom and picked up PN from her Moses basket at which point the father was shouting at her. I pause to note that in relation to the allegation that the bed shook, there is no record of the mother making this allegation to the Police or any professional or medic involved with PN on 27 May 2016. On 11 July 2016 when the mother and the maternal grandmother were specifically asked about possible injury or trauma neither brought up this alleged episode, both confirming that “they were unaware of any accidents or injury” even though, for reasons I will come to, I am satisfied that the mother and the maternal grandmother were endeavouring by this time to portray the father in a negative light and the mother in a positive one. Whilst the mother referred to it during her Police interview after PN’s injuries had been discovered, it is of note that this alleged incident is not thereafter mentioned once over the course of over two hours of recorded conversations between the mother and the father, during which the mother was seeking to persuade the father to confess to causing injury to PN (to which conversations I shall come to in greater detail below).[46]The mother’s account in oral evidence contained a significantly different version of events. In the witness box the mother alleged that she had seen PN landing on the bed as she walked into the room, although later during her cross examination she appeared to concede that she did not see the father do anything inappropriate in respect of PN on this occasion. Whilst DA says in her statement that when she arrived at the property on 27 May 2016 the mother told her that the father had “put PN down on the bed in a rough manner”, and HA said in oral evidence (but not in her statement) that she was told by the mother on 27 May that the father had “put PN roughly on the bed or thrown PN on the bed” or had said “placed on the bed”, the mother made no mention of seeing PN landing on the bed when she spoke to the social worker or the doctors treating PN. Once again, during the course of the over two hours of recorded conversations with the father to which I have referred, the mother did not refer once to seeing PN land on the bed or to the father throwing PN onto the bed or placing her roughly onto the bed, and neither did HA.[47]In cross examination by the local authority regarding the events of 27 May 2016 the mother denied that she was under the influence of alcohol on this day. By contrast, in her statement DA confirms that the mother was under the influence of alcohol. DA also stated to the Police during interview that the mother had had a drink. Within this context, it is of note that whilst DA’s statement is unequivocal on this point, having heard the mother’s oral evidence before giving her own, the maternal grandmother sought to backtrack in her oral own evidence, stating she had been mistaken about the mother being drunk and had confused 27 May 2016 with the incident on 4 March 2016. She ultimately sought refuge in the concession that the mother consumed some alcohol after the incident was over. I have had to entertain the possibility that the mother and daughter discussed their evidence in this regard. Both the father and HA, as well as the Police log for the incident, record that the mother was under the influence of alcohol.[48]By contrast to the mother’s account, the father contends in his statement that on 27 May 2016 the mother attacked him whilst PN was on the bed after the mother had seen that the father changed his WhatsApp status to “Searching for my Soulmate”. Whilst the mother denied attacking the father, she conceded that when she switched on her new phone (which she says arrived just before the incident occurred) she was furious about the father’s WhatsApp status and challenged the father about it. In his oral evidence the father stated that the mother attacked him whilst he had PN in his arms. Whilst in his statement the father denied assaulting the mother, the social work evidence (which was not challenged) states that the father said he may have assaulted the mother when he pushed her away from him. The father went further in his oral evidence, conceding that, following, as he would have it, the mother attacking him he put his hands on the mother’s shoulders and “charged” her out of the room and got really verbally abusive to her, stating that “he really lost it”. He further admitted in cross examination that the parents had a verbal and very aggressive physical argument which made him aggressive during which he shouted, pushed her and said “if you do it again I will kill you”, referring to her attacking him whilst he was holding PN. The father denied swearing at PN and said that he was speaking to the mother when he said “fuck off you bitch” and “you little bitch you”. The father said that he was enraged and the mother was enraged. DA stated during her oral evidence that when she arrived at the property the parents were still arguing with each other.[49]There is no evidence suggesting that PN was injured as a result of what was, on any assessment, an unpleasant incident. When she arrived at the property DA states that PN was not crying when she went upstairs. When she arrived at the property HA said she saw PN on the bed but she was not crying. HA states that she took PN downstairs. The mother was clear when cross examined by the Children’s Guardian that in the aftermath of the incident PN “seemed fine”. The father did not believe that any physical harm befell PN during the parents’ argument but states that she was crying due to the “atmosphere”.[50]Following the incident, the father called the social worker and called his own father. The father claims he was later assaulted by the maternal grandfather and the maternal uncle when they arrived at the property. The maternal grandfather and maternal uncle deny this. The maternal grandmother states that the maternal uncle “escorted LN out of the home”. The father was later arrested for assaulting the mother but was released without charge. The arrest record records that on his way to the Police station following his arrest the father stated that the relationship with the mother had completely broken down, that she had on numerous occasions assaulted him by hitting, strangling and poking and was forever arguing with him whilst he did his best to care for PN. 27 May to 11 July 2016[51]Following this incident, on 27 May 2016 the social worker reached an agreement that PN would be cared for by DA and the mother’s sister HA under a written working agreement. The terms of that written agreement signed by DA and HA include the following provisions:
“PN is not to be left alone with NA until a risk assessment has been completed. HA and DA to reside in respective home addresses. “HA and DA must phone police immediately if NA wants to take PN out on her own.”
[52]The terms of the working agreement are far from being a model of clarity and give the impression of having been very hastily compiled. The covering letter for the agreement is even less clear, containing, for example, the following confused sentence:
“If [the mother] arrives at grandmothers (sic) but is happy to leave PN in grandmother’s care at this time this is a private arrangement however, if [the mother] tries to leave the baby, grandmother to intervene and call the police if necessary to prevent this from happening.”
Further, by contrast to the manuscript part of the agreement, the covering letter identifies only DA as having been requested to safeguard PN.[53]Within this context, it was plain from their oral evidence that, on the face of it, there was a difference of understanding as between DA and HA regarding the level of supervision of the mother that was required. DA was clear that she would allow the mother to be alone with PN whilst she was elsewhere in the house, although DA claimed that this did not happen. HA claimed to be stricter. However, I note that she too conceded that “[The social worker] did insinuate that NA could come round and be with PN. She did not say how it had to be.” I also note that during her ‘Connected Persons Assessment’ HA expressed confidence that the mother would respect and abide by arrangements for contact. The CAF Assessment Form states that the arrangement in respect of contact between PN and her parents at this point was a “plan for her to see them at any time”[54]The period between 27 May 2016 and 11 July 2016 when the injuries to PN were identified, during which period she was being cared for by DA and HA, requires examination in detail by reason of expert medical evidence suggesting that PN suffered trauma to her head on or around the weekend of 1 to 4 July 2016.[55]The mother, the maternal grandmother and the maternal aunt assert that at no point during this period was either the mother left alone with PN or taken by the mother to see the father. The father contends that there was a further occasion when he saw PN in the company of the mother, namely the 2 or 15 June 2016. The father also contends that there was an occasion when he spent time in the company of PN in the presence of HA on 7 July 2016. Whilst HA concedes that the father arrived at the time she was at the mother’s property on 7 July 2016, she contends that she left immediately upon seeing him. Whilst neither of these occasions coincides with the weekend of 1 to 4 July 2016, the father submits that they demonstrate that the supervision of the mother during this period was lax.[56]DA and HA gave evidence that the care of PN was shared between them from 27 May 2016 to 11 July 2016. When DA was working, she states that PN would stay with HA between approximately 10am and 3pm. In her statement, HA says that for the month of June 2016 PN was with her every weekday between 11.30am and between 3.00 and 4.00pm.[57]As for the weekend of 1 July 2016 to 4 July 2016, in her statement the maternal grandmother states that PN was with HA from 26 June 2016 to 1 July 2016 and that she collected PN from HA’s house on 3 July 2016. It is unclear from DA’s statement whether this means that PN was also with DA on 2 July 2016. However, on 2 July 2016 the mother was seen by the social worker and Police to be under the influence of alcohol in the company of two males. When the social worker contacted the maternal grandmother she is said to have confirmed that the children were safe and well with her on this date. DA states that she did not work on Monday 4 July 2016 and PN was with her all day on that date. HA does not cover the weekend in her statement (when considered in context, the dates 1 July to 4 July 2016 in her statement clearly refer to 8 July to 11 July 2016, as confirmed by HA during her oral evidence).[58]On 7 July 2016 the Maternal grandmother states that PN was with HA during the day and that HA took PN to the mother’s property for the health visitor’s visit and thereafter took PN to hospital. HA likewise contends that this was the order of events on 7 July 2016.[59]That parents themselves saw each other during the period between 27 May 2016 and 11 July 2016 is clear on the face of the evidence and is not seriously disputed. As to the level of contact the mother was having with PN during this period, the mother’s evidence in this regard was confused and difficult to follow. She does not address the issue at all in her statement. In the papers the mother gives several different accounts, stating on 8 June 2016 that DA was living at the mother’s property, on 15 June that PN was living between the mother’s and DA’s properties, and on 23 June 2016 that she was living with DA. In her oral evidence the mother described a situation where the intention was that DA would stay at her property but that in fact they ended up living between two houses. She then said DA stayed at her property for one night. Each of these situations would have been contrary to the working agreement.[60]Whilst in her statement the maternal grandmother gives a description of the time spent dividing the care between her and HA, she does not give any indication of the level of contact the mother was having with PN in this period. During her oral evidence the maternal grandmother said that it would have been on no more than one or two occasions. This appears to conflict with the account of the Health Visitor that on 22 June 2016 the mother stated that DA was giving the mother her medication, which she was taking regularly. There is no record of DA seeking to correct this statement and the evidence of Health Visitor was not challenged. The evidence of the health visitor is in turn consistent with the mother’s statement in her Police interview that she was visiting DA three to four times per week, which statement later encompassed HA. As I have already noted, DA made it clear that she had no difficulty with the concept of the mother being left alone with PN. During cross examination on behalf of the father she said “I would have let NA stay on her own with PN. I had no worries about leaving NA alone with PN. It did not happen because she did not stay but [the social worker] never said I could not leave them alone in a room. [The social worker] never said I had to be in the same room as her”.[61]HA likewise gives no account in her statement of mother’s level of contact with PN whilst she was in HA’s care between 27 May and 11 July 2016. In her oral evidence HA reluctantly conceded that, in accordance with the mother’s oral evidence, the mother had spent an afternoon at her property over the weekend of 1 to 4 July 2016. HA however sought to distance the mother from PN with the assertion that the mother spent the entire time in the shower. When Ms Lewis put to HA that this seemed unlikely, HA modified her answer to suggest that the mother would also have spent the time “doing her hair”.[62]There was confusion over the specific date on which the father is alleged to have had contact with PN with the mother during this period. It is clear from his statement and from his Police interview that he was not certain of the exact date, positing that it was the 10 or 11 June 2016. However, during the course of his oral evidence he settled on 15 June 2016 as the most likely date, although uncertainty remained. On that date he maintains that he was contacted by the mother and arranged to meet her and PN at a doctor’s appointment at 10.00am. Following the appointment, during which time the mother and PN waited outside the doctor’s surgery, the father states that they went to a public house where the mother brought him lunch between 12 noon and 1pm as he had no money, the mother paying by debit card. Following this, the father asserts that the parents got into an argument. The father states that the mother started an argument about Facebook, that he got out of the car and walked off between 3 and 3.30pm and the mother pulled up alongside him five minutes later still arguing.[63]A series of new documents was produced during the course of the hearing centred on this issue but led to little further clarity. Those documents comprised the mother’s bank statements for the relevant period, the mother’s telephone records and receipts from certain pubs. The father’s GP records were also referenced. Following the receipt of that documentation, the father suggests that the date on which he saw the mother is in fact likely to be 2 June 2016. I note that on 2 June 2016 the paternal grandmother states (in evidence that was not disputed) that she saw the parents together in a kebab shop and they appeared intoxicated with drugs or alcohol. PN was not with them and the mother stated that she was with DA. On 5 June 2016 the Police received a call from a person reporting male and female voices at the family home, the female voice appearing to be the aggressor. On 6 June at 1.00am the neighbour heard loud music and arguing that woke her children, at 7.15am the neighbour saw the father come to the front door of the family home and kick the door until he was let in.[64]In his interview the father put the mother’s ability to bring PN out without supervision down to her lying to DA rather than HA. The father relates a conversation with the mother in which the mother stated that she had told her mother that she was going out for a bit. During his oral evidence he said that “I don’t think DA knew, DA knew she would have put a stop to it”. The father stated in his Police interview that when the mother became aware he had disclosed his contact with PN during this period the mother’s response was “my mum’s not going to get her now”.[65]With respect to 7 July 2016, as I have already noted, whilst HA concedes that the father arrived when she was at the mother’s property, she contends that she left immediately upon seeing him. In her statement HA says that “Upon getting ready to leave NA’s house with PN LN turned up. I didn’t know he was coming. As soon as I saw LN pull up I put PN in the car seat and left”. By contrast, the father states that on 7 July 2016 the mother called him to say that HA was at her property with PN and that HA was aware that the father was coming round and would not say anything about him being there. He contends that he held PN at the mother’s property and cuddled her. The father stated in cross examination that after he had held HA he placed PN in HA’s car and HA told him not to worry.

PN’s Diagnosis

[66]On 22 June 2016 the Health Visitor noted during a visit that PN’s head circumference had exceeded the 99th centile, compared to a measurement on the 50th centile at the 8 week GP health check. Whilst PN appeared to have a happy, positive bond with DA she seemed a little unsettled when held by the mother. DA reported that PN was very sickly and would continue to vomit for up to an hour following a feed. An appointment with the GP was made for PN, who referred PN to a paediatrician. The paediatrician wrote to the mother and requested that she make an appointment for PN[67]On 7 July 2016 the Health Visitor noted that PN’s head circumference had increased by 2 cm to 47cm since the measurement taken on 22 June 2016. Again, whilst PN seemed settled when held by HA, she was unsettled when held by the mother. The mother had failed to arrange an appointment with the paediatrician pursuant to the referral made by the GP and the written request from the paediatrician. PN was taken to the GP on the advice of the health visitor on 7 July and then to hospital. On 8 July 2016 DA reported that PN’s head circumference was now 47.6cm. A scan of PN’s head was arranged for 11 July 2016. On 11 July 2016 PN underwent a head ultrasound by Dr W. The statement from Dr K indicates that the ultrasound scan indicated an extensive subdural haematoma. Dr W considered that the likely cause was non-accidental injury. PN was transferred to another hospital for further assessment.[68]At that hospital PN was examined by Dr M. It is plain from the history taken by Dr M from the mother and the maternal grandmother that they sought to play down the mother’s difficulties and emphasise the father’s difficulties, particularly in relation to the abuse of drugs and alcohol. The mother was noted by Dr M to be “frequently tearful and shaky”. A CT scan was undertaken at 18:33hrs and reported by Dr T, Consultant Paediatric Radiologist. Dr T commented as follows:
“Unexplained bi-lateral subdural haematomas. The overall appearance is likely to represent acute bleeds into pre-existing sub-durals, rather than a single event causing acute bleeds with CSF mixing. The appearance is concerning for non-accidental head injury with no history of head trauma provided and the known background of domestic violence/ safeguarding issue.”
A further CT scan was undertaken at 20:34 hours on 11 July 2016. In relation to that scan, Dr T recorded that “there is an increase amount of hyperdense acute blood in the right subdural indicating further acute bleed since the last CT.”[69]At 23.03 hours on 11 July 2016 PN underwent an MRI scan. The results of that scan were interpreted by Dr S, Paediatric Neuroradiologist. He commented as follows in relation to the MRI imaging:
“PN has multi location subdural haemorrhage with some associated sub-arachnoid bleeding. In the absence of an identified bleeding or metabolic disorder this is highly concerning for an inflicted traumatic injury. In addition, there is a possible right temporal lobe contusional injury which again be in keeping with a traumatic aetiology, although follow up imaging would be necessary for confirmation of this and better assessment of any brain injuries. The imaging, both CT and MRI, cannot determine if there has been more than one episode of bleeding. There is evidence of neo-membrane formation implying that it is likely that the subdural haemorrhages have been present for more than two weeks. In the presence of established haemorrhage repeat bleeding can occur with little or no recognised trauma, hence the presence of some minor amounts of bleeding on the CT scans do not assist in dating the primary traumatic insult. This would need to be determined clinically in this case if possible. Repeat imaging in three months is advised to include MR of the brain. Explanation:The brain scans show subdural haemorrhage in multiple locations on both sides of the brain. The blood is causing compression of the brain. There is also sub-arachnoid blood. This is bleeding between the lining of the brain and the brain itself. There may be an injury to the right side of the brain itself (contusional injury in the right temporal lobe). This is not certain. There is membrane formation seen within the subdural haemorrhage. Membrane formation occurs within subdural haemorrhage after approximately 2 weeks suggesting that the subdural haemorrhage is at least 2 weeks old.”

Relevant Subsequent Events

[70]At some point after the nature and extent of PN’s injuries became clear, the mother decided to record a series of conversations with the father. The mother contends that this was because the father had made significant concessions to her concerning PN’s injuries. The mother stated in her oral evidence that the purpose of these conversations was “trying to get him to admit to something”. The recorded conversations show the mother, and on occasion HA, working hard to get the father to confess responsibility for the injuries sustained by PN. The father is placed under repeated pressure to confess. It is significant that, within this context and at times when it is apparent that he is not aware that he is being recorded, the father maintains his firm denial of having caused injuries to PN over the course of some 2 hours, despite repeated badgering by the mother. As I have already noted, it is also significant that over the entirety of the recorded conversations the mother does not once put to the father that he threw PN, or placed her roughly, on the bed on 27 May 2016. Two further matters are also of particular note. First, the tapes record the mother conspiring with another female to make an allegation of theft against the father, which allegation is then duly made and thereafter an offer to withdraw the allegation if the father admits he caused the injuries to PN. Second, the tape records HA offering to testify on the father’s behalf if he is prepared to make an admission that he harmed PN. THE MEDICAL EVIDENCE Dr Mittal

THE MEDICAL EVIDENCE

[71]Dr Mittal, consultant paediatrician, provided an expert paediatric report in this case. He was not called to give oral evidence. Dr Mittal is unable to identify any medical condition that might have made PN prone to subdural bleeding or retinal haemorrhages. Dr Mittal states that, in his opinion, PN would have reacted to the injuries by crying, being irritable with poor feeding immediately following the injuries being sustained but points out that, in some cases, the signs and symptoms are subtle and non-specific. He considers that PN did not have any major neurological dysfunction before she was diagnosed. Within this context, Dr Mittal considers that it is possible that the person who caused injury to PN may not have noticed any specific change to PN’s presentation.[72]Dr Mittal wished to draw the court’s attention in particular to the fact that, having regard to the progression of PN’s head circumference, whilst it is not clear exactly when the head circumference started to increase, crossing the centiles, it seems to have done so before PN was 8 weeks of age, i.e. before 21 April 2016. Dr Mittal also seeks to draw the court’s attention to the fact that, as detailed in her GP records, PN developed projectile vomiting at three weeks of age with no improvement despite a change of milk types. Dr Mittal states that whilst this can be secondary to gastro-oesophageal reflux it can be due to intra-cranial pathology.

Dr Keenan

[73]Dr Keenan, Consultant Paediatric Haematologist, confirms that all of PN’s blood tests were normal. He considered that the blood clotting tests were comprehensive and did not recommend any further testing. He considered that a haematological bleedings disorder has been excluded and that the bleeding observed in PN should be considered to have occurred in a child with normal clotting.

Dr Newman

[74]In his oral evidence Dr Newman maintained the conclusions of his report, namely that PN demonstrated a single pre-retinal haemorrhage in each eye which, in his opinion, was not the result of birth, vomiting, seizures, minor trauma, raised intra-cranial pressure or anaemia. Dr Newman considered that, whilst the precise level of force and the mechanism required to cause pre-retinal haemorrhage has not been established, but considered PN’s ophthalmological presentation to be consistent with a shaking or shaking impact event.[75]With respect to timing, Dr Newman reiterated that he could not assist with the dating of the pre-retinal haemorrhages beyond a conclusion that they could have been present for up to three months. He considered that it was unlikely they had been present for more than three months but possible. Dr Newman considered that the ophthalmological findings were consistent with an older injury rather than a more recent injury, although they could be consistent with an incident seven to ten days prior to the scan. He further was of the opinion that absence of intra-retinal haemorrhaging did not exclude the possibility of trauma seven to ten days prior to the scan on 11 July 2016.

Dr Stoodley

[76]On the imaging Dr Stoodley identified the following abnormalities with respect to PN: i) A large loculated (meaning membrane formation has occurred) subdural fluid collection over the right hemisphere of PN’s brain. This subdural collection is seen to be causing considerable mass effect with sulcal effacement, effacement of the right lateral ventricle and the basal cisterns, with midline shift to the left. ii) A low attenuation subdural collection over the frontal and lateral aspects of the left frontal region of PN’s brain. The left hemisphere that appears atrophic with enlarged lateral ventricles and sulcal spaces. iii) Scattered, high attenuation (brighter) components seen superiorly in the right front region of PN’s brain with a smaller, lower attenuation component inferior to the right frontal convexity of PN’s brain. iv) A few small foci of subarachnoid haemorrhage (bleeding between the lining of the brain and the brain itself) over the superior aspects of the cerebral hemispheres. v) Areas of haemorrhagic diffuse axonal injury in the lateral right temporal lobe and in the posterior left temporal and parietal lobes. vi) A generalised reduction in white matter volume in both hemispheres of PN’s brain, worse on the left. vii) A degree of sutural widening consistent with a degree of raised intracranial pressure and / or volume[77]Within this context, Dr Stoodley opines that the imaging evidences both older and more recent bleeding. As I have noted, Dr Stoodley also identifies areas of haemorrhagic diffuse axonal injury.[78]With respect to the age of the sub-dural bleeding that Dr Stoodley identifies as older, he opines that it is not possible to assess when the initial period of older subdural bleeding occurred and there may have been several such episodes. Dr Stoodley is of the opinion that the loculated components of the right sided subdural collection must have been at least two to three weeks old at the time of the scans undertaken on 11 July 2016 and possibly older. Dr Stoodley is not able to put an upper limit on the age of this bleeding on the basis of the imaging alone. He considers it is not possible to date the left sided subdural collection from the imaging alone.[79]As to the age of the sub-arachnoid bleeding that Dr Stoodley identifies as acute, or recent, he states in his addendum report that the blood is “unequivocally more recent” and “must have occurred sometime within the 7-10 days leading up to the time of the MRI scan as it is brighter than the underlying brain”. Dr Stoodley was careful to point out that, in circumstances where what is being considered is a biological system, the timescales are not absolute.[80]With respect to the older, subdural bleeding Dr Stoodley opines that the most likely cause of the injuries is abusive head trauma. He reiterated during cross examination by Ms Lewis on behalf of the father that the pattern of bleeding seen on PN’s imaging was not that seen in birth related subdural bleeding. Indeed, Dr Stoodley considered it to be extraordinarily improbable that the chronic subdural bleeding was as a result of birth injury in circumstances where there is no evidence that birth related sub-dural bleeding evolves into chronic subdural haematomas, but rather resolves in a matter of weeks. When challenged by Ms Lewis that not all children who have birth related sub-dural bleeding are imaged and not all those who are imaged are followed up, Dr Stoodley responded that if birth related sub-dural bleeding gave rise to chronic subdural haematomas then that population of children would have been recognised in circumstances where a large number of children are subjected to scanning for a wide variety of conditions.[81]With respect to the acute sub-arachnoid bleeding identified by Dr Stoodley (and Dr S) on the MRI scan, Dr Stoodley opined that “on a strong balance of probabilities” the acute bleeding is more likely the result of a further episode of trauma than from re-bleeding related to the chronic sub-dural haematomas. Dr Stoodley was pressed hard in cross-examination with respect to this conclusion. In particular, Ms Holloran on behalf of the mother challenged Dr Stoodley’s opinion using the reports of the clinicians, Dr T, who interpreted the CT scans, and Dr S, who interpreted the MRI imaging.[82]In response, Dr Stoodley was clear that he did not agree with Dr T’s interpretation which, in any event, was derived from scans less sensitive than MRI imaging. With respect to the interpretation provided by Dr S, Dr Stoodley noted that he and Dr S had identified the same features on the MRI imaging, namely subdural haemorrhage in multiple locations, scattered foci of acute sub-arachnoid bleeding and a possible right temporal lobe contusional injury. Within this context, Dr Stoodley considered that there was no fundamental difference between himself and Dr S. Dr Stoodley again emphasised his view that whilst Dr S considered that the CT scan showed evidence of re-bleeding, the acute sub-arachnoid bleeding seen on the MRI scan was in his opinion not the result of re-bleeding. In the circumstances, I am unable to accept Ms Holloran’s bald submission that Dr Stoodley’s observations “were not shared by any of the treating clinicians who had access to all the information available to Dr Stoodley at the time and did not draw the same conclusions.”[83]With respect to the alternative causes for the features seen on the MRI scan posited by Dr S (including early hydrocephalic change, underlying vascular nidus and history of perinatal ventricular haemorrhage) Dr Stoodley emphasised the difference between the role of reporting clinicians, who raise issues prospectively as part of clinical management of the injury, and jointly instructed experts, whose task is to conduct a retrospective forensic analysis. Within this context, Dr Stoodley considered that none of the prospective matters raised by Dr S are seen to be relevant to PN’s case when that case is reviewed retrospectively from a forensic, as opposed to a clinical, perspective.[84]Notwithstanding the matters put to him in cross-examination, Dr Stoodley maintained his view that the acute sub-arachnoid bleeding aged to between 7 to 10 days prior to 11 July 2016 is not re-bleeding associated with the chronic subdural collections. He emphasised the distribution of the acute bleeding is not typical for a scan showing re-bleeding associated with existing sub-dural collections. Within this context, Dr Stoodley also emphasised in his addendum report that the sub-arachnoid bleeding is in a different anatomical compartment to the sub-dural bleeding, such that the acute sub-arachnoid bleeding “could obviously not relate to any pre-existing sub-dural collection”. In his response to the experts’ meeting, Dr Stoodley was also clear that re-bleeding would not account for the parenchymal brain injuries comprising the likely haemorrhagic diffuse axonal injury. Within this context, whilst he considered it possible that that acute bleeding represents a re-bleed associated with the established subdural collections, and cannot exclude that as a cause, Dr Stoodley considered that the acute blood at a number of different sites and in a different anatomical location and the parenchymal injuries comprising the diffuse axonal injury are more likely to be the result of an episode of injury. He does not believe the acute blood occurred as a result of re-bleeding.[85]Within the foregoing context, it is Dr Stoodley’s opinion that PN endured at least two episodes of traumatic injury to her brain. Indeed, Dr Stoodley gave evidence that, on the basis of the neuroimaging, he considers it extraordinarily improbable that all of the features seen on the imaging resulted from one incident of trauma, in particular where there is no history of PN becoming severely unwell. In the latter regard, Dr Stoodley considered that whether the later traumatic event he identifies as occurring 7 to 10 days before 11 July 2016 would have led to a change in behaviour in PN would depend on whether it resulted in any hypoxic ischaemic injury. He considered that there is no evidence of hypoxic ischaemic injury on the scans (disagreeing with Dr T’s view that this type of injury was present and considering that what Dr T was seeing was the result of ‘mass effect’).[86]As to the mechanism of trauma, Dr Stoodley considers the imaging findings to be indicative of at least two episodes of abusive head trauma involving either impact, shaking or a combination of those mechanisms. With respect to the level of force involved, Dr Stoodley opined that in PN’s case the event which initially triggered the subdural bleeding must have been severe enough to lead to such bleeding but was not of sufficient severity to lead to a change of behaviour as a result of a brain injury in the absence of evidence of hypoxic ischaemic brain injury. Dr Stoodley opines that the minimum level of force required would be such that the action would be obviously inappropriate to an independent observer and in excess of normal handling. With respect to the more recent event identified by Dr Stoodley, he was of the opinion that the bleeding and diffuse axonal injury signalled a significant event, the diffuse axonal injury being more commonly associated with a shaking type injury with impact.

Mr Richards

[87]With respect to the chronic subdural bleeding, Mr Richards stated in his report and confirmed in his oral evidence his opinion that the chronic subdural haematomas were, on the balance of probabilities, the result of a shaking type injury at some point in PN’s life. He considered that identifying the precise timing of these injuries is an impossible task, the injuries being well established by 22 June 2016 having regard to the fact that PN’s head had gown abnormally large by that date. He considered that the fluid in the subdural collections was of mixed intensity with features of fresh bleeding, which he ascribed to re-bleeding from the membranes within the collections. Mr Richards evidence was that the description provided by the maternal grandmother on 6 May 2016 could be consistent with a child who had sustained injury sufficient to cause this subdural bleeding, but that this evidence was rather non-specific.[88]During the course of the experts meeting, Mr Richards recognised that Dr Stoodley’s opinion that there was a further traumatic injury 7 to 10 days prior to 11 July 2016 is not based on the presence of re-bleeding into the chronic sub-dural collections, observing that:
“Well it’s not the re-bleed that Dr Stoodley is hanging the idea that there is another more recent episode of trauma on. There’s the possible contusion, the bruising or the diffuse external It would appear that this is a typographical error and that “external” should in fact read “axonal”. injury that one of the scans shows and what Dr Stoodley interprets as sub-arachnoid blood. It is not the fact that there’s fresh blood in the subdural space, which is known to occur with minor handling, it’s the other elements would require more forceful injury to cause. However, it wasn’t of sufficient force to cause a major change in the baby’s condition because what drove the child to hospital and treatment was the fact that her head was enlarging.”
[89]Within this context, in his oral evidence Mr Richards was more circumspect regarding the presence of a further traumatic injury resulting in acute sub-arachnoid bleeding and diffuse axonal injury given what he considers to be a potential mismatch between the imaging (Mr Richards concurring with Dr Stoodley that the imaging indicates the presence of subarachnoid bleeding and diffuse axonal injury and that these features would not be the result of re-bleeding into the subdural collections) and the clinical presentation of PN in the period 7 to 10 days before the scan on 11 July 2016. I am not however able to accept Ms Holloran’s submission that the view expressed by Mr Richards in this regard constituted a “strongly expressed view” that the totality of the evidence did not support Dr Stoodley’s conclusions. Indeed, in my judgment that is a mischaracterisation of Mr Richard’s evidence.[90]Mr Richards opined that subarachnoid bleeding is an irritant and that, in those circumstances, he would have expected that following trauma leading to sub-arachnoid bleeding PN would have presented in a way that would have caused concern about her neurological state, in particular PN being more irritable, not sleeping well, not settling, crying a lot and feeding less. By contrast, Mr Richards noted an absence of such concerns by those who saw PN after the period 7 to 10 days before the scan on 11 July 2016. To have a child not affected in this way he considered unusual. However, Mr Richards was also clear that re-bleeding into the subdural collections would not be expected to cause the sub-arachnoid bleeding or a contusion or diffuse axonal injury. Within this context, Mr Richards summarised his opinion as follows with reference to Dr Stoodley’s opinion, “I agree there is subarachnoid blood, contusion and diffuse axonal injury and I agree that is hard to explain other than by way of trauma…but we have the paradox in this case of the clinical picture. Tying it together in a neat parcel is difficult for both of us”.[91]Ms Lewis on behalf of the father put to Dr Richards that there is, in fact, some evidence showing possible clinical features of injury within the 7 to 10 period preceding 11 July 2016 that may reduce potential discrepancy between imaging and clinical presentation. Namely, the history given to Dr Sharp on 7 July 2016 that in the past week PN had started vomiting after more feeds and was “pale looking” and the history given to Dr M on 11 July 2016 noting that PN was reported to be crying more and feeding less. Mr Richards agreed that it was possible that this was consequent upon a further episode of trauma in that period but noted also that PN had an existing developing subdural collections at this time, which complicated the picture. Within this context, Mr Richards stated that the features highlighted by Ms Lewis could be due to further trauma 7 to 10 days prior to 11 July 2016, could be due to the still evolving initial injury or could be due to both.[92]Mr Richards concluded that the subarachnoid bleeding and diffuse axonal injury seen on the MRI scan could either be a more recent injury that PN “got away with” neurologically or could be in some way related to compression in PN’s brain “in a way we don’t understand, but that is unusual”. He considered both scenarios to be unusual. Finally, in relation to the potential discrepancy between the imaging and the clinical presentation, Mr Richards also agreed that PN had some time to recover neurologically over the 3 to 6 days that passed between 1 to 4 July (being the dates encompassed by the 7 to 10 day time period for the injury) and PN being seen at hospital on 7 July 2016, although Mr Richards noted that PN was also seen on 5 July 2016 for her immunisations when no concerns regarding her neurological state were noted. In relation to the level of force required to cause the acute subarachnoid bleeding and diffuse axonal injury Dr Richards considered it wasn’t of sufficient force to cause a major change in the baby’s condition because what drove the child to hospital and treatment was the fact that her head was enlarging.[93]Finally, in response to questions put on behalf of the mother by Ms Holloran, Mr Richards considered it to be very, very unlikely that the father bouncing PN vigorously would result in the injuries seen in PN. Further, in response to questions put by HA, Mr Richards considered that whilst the normal use of PN’s car seat and floor mat could well result in re-bleeding into the subdural collections (which can occur with normal handling or spontaneously), the normal use of those items would not have caused the subarachnoid bleeding, contusion or diffuse axonal injury which, on Dr Stoodley’s analysis, indicates a further injury 7 to 10 days before 11 July 2016.

THE LAW

[94]The law that governs the court’s task at this hearing is well settled and can be summarised by the following well known principles. i) The burden of proving the facts pleaded rests with the local authority. In cases of alleged inflicted injury, it is for the local authority to establish on the balance of probabilities that the injuries in question were inflicted. There is no requirement on the parents or interveners to show that the injuries have an innocent explanation. ii) The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred (Re B [2008] UKHL 35 at [15]). Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not (Re B [2008] UKHL 35 at [2]). iii) Findings of fact must be based on evidence not on speculation. The decision on whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors (A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam)). iv) In determining whether the local authority has discharged the burden upon it the court looks at what has been described as ‘the broad canvass’ of the evidence before it. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly. Within this context, the court must consider each piece of evidence in the context of all of the other evidence (Re T [2004] 2 FLR 838 at [33]). v) In this context, and self-evidently, I am not limited to considering the expert evidence before me. Rather, I must take account of a wide range of matters that includes the expert evidence but also includes, for example, my assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence. Accordingly, the opinions of the medical experts need to be considered in the context of all of the other evidence. When considering the medical evidence, the court must bear in mind, to the extent appropriate in the given case, the possibility of the unknown cause (R v Henderson and Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam). vi) In respect of the medical evidence, it is vital to avoid blurring the important distinction between treating clinicians and experts (Re H-L (A Child) [2013] EWCA Civ 655). Where it is proposed to seek an overview opinion from one of the doctors who has treated a child, then that proposal must be expressly raised with the other parties and with the court. If permission is given to instruct one of the treating clinicians as an expert, then that instruction and all that flows from it must be conducted in accordance with the rules, the Protocol and established practice in exactly the same manner as it would be for an ‘expert' who is brought into the case and who has not treated the child (Oxfordshire CC v DP, RS and BS [2008] 2 FLR 1708). vii) The evidence of the parents and carers is of utmost importance and it is essential that the court forms a clear assessment of their credibility and reliability. The court is likely to place considerable reliability and weight on the evidence and impression it forms of them. In this regard, it is important to bear in mind the observation of Peter Jackson J in Lancashire County Council v M and F [2014] EWHC 3 (Fam) that: “To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing or relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.” viii) As to the issue of lies, the court must always bear in mind that a witnesses may tell lies in the course of an investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied above everything (R v Lucas [1982] QB 720). Within this context, it is important to note that, in line with the principles outlined in the R v Lucas, in seeking to determine whether a person is a perpetrator, or should be included within the pool of possible perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible (H v City and Council of Swansea and Others [2011] EWCA Civ 195). ix) It is also important when considering its decision as to the findings sought that the Court take into account of the presence or absence of any risk factors and any protective factors which are apparent on the evidence. In Re BR [2015] EWFC 41 Peter Jackson J sets out a useful summary of those factors drawn from information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals. x) It is in the public interest that those who cause injury to children be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285). The court should accordingly endeavour to identify on the simple balance of probabilities the person or persons responsible for inflicting the injuries in question where it is possible to do so. xi) The Court should not, however, ‘strain’ the evidence before it in order to identify on the simple balance of probabilities the individual or individuals who inflicted the injuries. If it is clear that it is not possible on the evidence before the court for the court to conclude on the balance of probabilities who the perpetrator of the injuries is and the court remains genuinely uncertain, then the court should reach that conclusion (Re D (Care Proceedings: Preliminary Hearing) [2009] 2 FLR 668). xii) Where the court cannot identify a perpetrator or perpetrators on the simple balance of probabilities, it is still important to identify the pool of possible perpetrators by asking whether the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in question (North Yorkshire CC v SA [2003] 2 FLR 849). In such circumstances, the court must scrutinise the evidence carefully and consider whether anyone, and if so who, should be included in the pool of possible perpetrators of the injuries sustained by the child (Re S (A Child) [2014] 1 FLR 739).

DISCUSSION

[95]Having regard to the evidence of fact and evidence of opinion before the court, and applying the legal principles set out above, I have come to the conclusion in this case as follows on the balance of probabilities: i) PN has sustained the following injuries: a) A large loculated subdural haematoma over the right hemisphere of the brain causing considerable mass effect with sulcal effacement, effacement of the right lateral ventricle and the basal cisterns, with midline shift to the left. b) A subdural haematoma over the frontal and lateral aspects of the left frontal region of the brain. c) Subarachnoid haemorrhages over the superior aspects of the cerebral hemispheres. d) Haemorrhagic diffuse axonal injury in the lateral right temporal lobe and in the posterior left temporal and parietal lobes e) Generalised reduction in white matter volume in both hemispheres of PN’s brain, worse on the left. f) A single pre-retinal haemorrhage in both eyes. ii) The left and right chronic subdural haematomas and the pre-retinal haemorrhages resulted from a shaking type injury or a shaking type injury with impact. iii) The acute sub-arachnoid bleeding and haemorrhagic diffuse axonal injury resulted from a shaking type injury or a shaking type injury with impact. iv) The level of force applied to cause the injuries to PN was a level of force that exceeded normal handling and would have been obviously inappropriate to an independent observer sufficient to cause intra-cranial bleeding and diffuse axonal injury but not sufficient to result in hypoxic ischaemic injury and a major change in PN’s neurological condition. v) The left and right chronic subdural haematomas were sustained by PN on one or more occasions during the period between early April and late May 2016. The pre-retinal haemorrhages were sustained by PN during the period between early April and late May 2016 vi) The acute sub-arachnoid bleeding and haemorrhagic diffuse axonal injury were sustained at a point over the weekend of 1 to 4 July 2016. vii) During April and May 2016 the mother cared for PN alone on a number of occasions whilst she was intoxicated and in circumstances where she was suffering from mental health difficulties, under stress from a toxic and destructive relationship with the father, struggling to bond with PN and struggling to parent PN. viii) HA and/or DA allowed the mother to have contact with PN without close supervision on at least one occasion over the course of the weekend of 1 to 4 July 2016 at a time when the mother’s alcohol use and mental health difficulties persisted, she continued to be under stress from her relationship with the father and she continued to struggle to bond with, and parent PN. ix) The injuries sustained by PN were on each occasion caused by the mother during momentary losses of control at a time when she abusing alcohol, was suffering from mental health difficulties, was under significant stress and struggling form a bond with, and parent PN. x) At the time the injuries were inflicted the mother would have, or reasonably should have, known that her actions which resulted in the injuries risked injury to PN. xi) By reason of the fact that the injuries were sufficient to cause intra-cranial bleeding and diffuse axonal injury but not sufficient to result in hypoxic ischaemic injury and a major change in PN’s neurological condition there was no major or specific change to PN’s neurological presentation following her injuries. xii) Following the identification of PN’s increasing head circumference the mother failed to make an appointment with the paediatrician following a referral on 23 June 2016 despite a request that she do so, thereby delaying the examination and treatment of PN. xiii) The mother has told lies in an effort to implicate the father with respect to the injuries sustained by PN and to deflect her own culpability for those injuries. In particular, the mother has lied about the events of 27 May 2016. xiv) Both parents caused significant emotional harm to PN, and exposed her to a risk of significant physical harm, on repeated occasions over an extended period of time by reason of their toxic and volatile relationship, which relationship was characterised by incidents of domestic abuse on both sides fuelled by alcohol without any regard to her emotional or physical wellbeing of PN. Both parents failed to prioritise PN’s emotional needs and failed to ensure a safe home environment. My reasons for making these findings of fact on the totality of the evidence before the court are as follows.[96]I am satisfied that the medical evidence in this case supports the conclusion that, on the balance of probabilities, PN suffered at least two episodes of inflicted head injury. In my judgment the evidence shows that she suffered one or more injuries that caused subdural bleeding, which bleeding developed into the chronic sub-dural collections identified on the CT and MRI imaging. There is no dispute between the experts in this case that such injuries were present and no party seeks to dispute that PN exhibited bi-lateral chronic subdural haematomas. I am further satisfied that the medical evidence supports the conclusion that, on the balance of probabilities, PN suffered a further inflicted head injury which resulted in the acute subarachnoid bleeding identified on the MRI imaging.[97]With respect to the latter, each of Dr S, Dr Stoodley and Mr Richards accept that the MRI scans show discrete foci of subarachnoid bleeding (as distinguished from acute blood seen in the subdural collections that may result from re-bleeding with little or no force) and each accept that that bleeding is acute in nature. Whilst I acknowledge that Dr T did not identify this feature on the CT scans, in my judgment it is significant that Dr T was interpreting imaging derived for a methodology that is less sensitive than MRI imaging. Further, I note, without criticism, that Dr T is a radiologist rather than a specialist neuro-radiologist. Within this context, I feel able to give greater weight to the evidence which identities acute sub-arachnoid bleeding as being present.[98]Further, and on balance, I feel able to accept Dr Stoodley’s evidence that the sub-arachnoid bleeding identified on the scans is more likely the result of a further traumatic incident than re-bleeding into the then existing subdural collections. Dr Stoodley was clear that the distribution of the acute sub-arachnoid bleeding is atypical for a scan showing re-bleeding associated with existing sub-dural collections. He further emphasised that the sub-arachnoid bleeding is in a different anatomical compartment to the existing sub-dural bleeding. Within this context, I note again that Mr Richards was likewise clear that re-bleeding into the subdural collections would not be expected to cause the sub-arachnoid bleeding identified.[99]I of course acknowledge Mr Richards cautionary evidence that there are difficulties marrying what is seen on the MRI imaging with PN’s clinical picture at the relevant time. However, in my judgment, of the two possibilities posited by Dr Richards to explain this discrepancy, namely that the acute sub-arachnoid bleeding represents a further traumatic injury that PN “got away with neurologically” or represents acute bleeding caused in some way by compression, the former is the more likely of two admittedly unusual possibilities. The following factors lead me to this conclusion.[100]First, Dr Stoodley confirmed that there was no evidence that PN had sustained hypoxic ischaemic injury to her brain, decreasing the chances that the injury sustained by PN would have had led to serious neurological difficulties such as to cause PN to be presented for medical care immediately following an injury (in this context I also note Dr Mittal’s evidence that, given the nature of the injuries, the perpetrator may not have noticed a change in PN’s presentation at the time the injuries occurred). Second, Mr Richards acknowledged that there may be some evidence that PN was exhibiting minor neurological symptoms consistent with a further traumatic head injury in the form of crying more and reduced feeding, although I accept that this occurred within the context of her developing chronic injury. Third, and within this context, a short period of time passed between the likely date on which PN suffered the acute sub-arachnoid bleeding and the date she was next seen by a medical professional, allowing PN at least some time to recover from any low grade neurological symptoms consequent upon an injury that did not result in any hypoxic ischaemic damage. Finally, and acknowledging that the court must be ever mindful of the need to acknowledge the operation of unknown or previously unseen causes, Mr Richards acknowledged that compression as a cause of the sub-arachnoid bleeding would be operating in “a way we do not understand”.[101]Within the foregoing context, I am unable to accept the submission that there was a divergence of expert opinion between Dr Stoodley and Mr Richards. Mr Richards recognised the validity of Dr Stoodley’s analysis with respect to the presence of acute subarachnoid bleeding but sought, consistent with his area of expertise, to caution the court regarding a feature of the case that might affect the extent to which that analysis could be accepted by the court, namely the clinical picture. I acknowledge that caution but, for the reasons I have outlined, I am satisfied that it does not lead me to reject the opinion of Dr Stoodley that, on the strong balance of probabilities, the acute sub-arachnoid bleeding was caused by a further traumatic episode. Likewise, I am not persuaded that the view of the clinicians who interpreted the imaging undertaken in respect of PN should lead me to reject Dr Stoodley’s evidence.[102]As to the cause of these injuries, whilst Ms Holloran explored in evidence the possibility that the bilateral chronic subdural haematomas and pre-retinal haemorrhages were caused by the father winding PN roughly, in her closing submissions the mother accepts that the bilateral chronic subdural haematomas and pre-retinal haemorrhages were caused by one or two episodes of abusive head trauma. I too am so satisfied on the evidence before the court. Whilst Ms Lewis explored with both Dr Stoodley and Mr Richards the possibility that the chronic subdural haematomas were the result of a birth related injury, both experts rejected this proposition. Whilst recognising the need for care in this difficult area, I am satisfied on the basis of that evidence that the older injuries were not birth related. If the court concludes (as it does) that the chronic sub-durals were not birth related the father likewise accepts that they were the result of abusive head trauma subsequent to PN’s birth. On the evidence before the court, this concession is properly made. I am likewise satisfied on the evidence before the court that the further episode of trauma evidenced by the acute sub-arachnoid bleeding and diffuse axonal injury was the result of an episode of abusive head trauma.[103]With respect to the level of force required to cause the injuries, no party sought to dispute, and I am satisfied on the evidence before the court, that the level of force required to cause the injuries seen in PN would have been beyond that of normal handling and obviously inappropriate to an independent observer, albeit in this case the totality of the expert evidence and the nature of the injuries sustained by PN tends to suggest that the level of force used was at the lower end of this spectrum.[104]Finally, with respect to the medical evidence relevant to the timing of the injuries, with respect to chronic subdural haematomas that both Dr Stoodley and Mr Richards opine are at least two to three weeks old as at the 11 July 2016, and taking into account the analysis by Dr Mittal of the progression of PN’s head circumference and Dr Newman’s evidence regarding the age of the pre-retinal haemorrhaging, I am satisfied that the medical evidence suggests a timescale for these injuries encompasses between the beginning of April 2016 and the end of May 2016. As for the acute sub-arachnoid bleeding, I accept that this occurred at some point between 1 July 2016 and 4 July 2016. Whilst Dr Stoodley made clear the difficulties associated with determining the age of blood on a scan, he maintained his view that the acute sub-arachnoid bleeding was between 7 to 10 days old at the time of the imaging undertaken on 11 July 2016 and no party sought seriously to challenge that conclusion. Likewise, nobody sought seriously to dispute that the diffuse axonal injury was a component of this further injury.[105]Turning to the lay evidence, I am satisfied that the parents’ household was plainly bedevilled by constant arguments and, on occasion, physical altercations. Within this toxic context, the use of drugs and the abuse of alcohol by both parents on occasion exacerbated these difficulties. I am not however, able to accept the mother’s submission that the paradigm in this relationship was one of the mother as victim and the father as perpetrator and, therefore, the nature of the relationship is evidence that the father is the parent most likely to have caused PN injury.[106]Both parents presented an almost juvenile approach to interpersonal relationships in the witness box. Allegations of serious verbal and physical domestic abuse are made by each parent against the other. I am satisfied that the evidence demonstrates that both parents were guilty of starting verbal and physical arguments. The father when the mother did not, as he saw it, engage fully in the parenting of PN or criticised him in respect of his own parenting in circumstances where the unchallenged social work evidences that the father struggled to understand the mother’s difficulties and their impact on her parenting of PN. The mother when she was angered by petty social media driven jealousies. In particular, I am satisfied on her own evidence that the mother instigated the arguments between the parents on 26 and 27 May 2016 when she saw the father’s Facebook ‘likes’ and when she saw his WhatsApp status the next morning upon receiving and turning on her new phone, she being still angry following an argument the night before about Facebook. I am further satisfied that the mother misled her family as to the parents’ respective culpability for the difficulties in the relationship by seeking to place the entire blame on the father, in an echo of the conduct of the mother that I have particularised at Paragraph 10 of this judgment[107]Sadly, in the papers and over the course of this 10 day hearing I saw and heard no evidence at all of any period of happiness within this relationship. Sadder still is that no party disputes, and I am entirely satisfied, that in middle the of this internecine warfare was PN, whom the father describes in his statement as being sometimes “in the middle of incidents”. When cross examined by Ms Scarisbrick on behalf of PN, the mother conceded the same and in oral evidence the father accepted that PN was “caught up in it”.[108]Turning to the evidence of the parents, whilst I accept that there are issues in respect of the credibility of both parents, there were also in my judgment appreciable, and forensically significant differences in the presentation of each of the parents in the witness box and the credibility of their evidence.[109]The mother’s oral evidence was characterised by a lack of openness, obfuscation and dissembling on key matters. Whilst Ms Holloran’s submits the mother’s appearance in the witness box was that of a very vulnerable young woman, that was not in my judgment the impression given by the mother. Rather, in my judgment the mother came across as calculating and rather manipulative, at times putting on something of an act for the benefit of the court. In particular, and of course taking account of the fact that being in the witness box is a stressful experience, it is interesting to note the difference between the mother’s presentation in court and her presentation on the recordings the maternal family introduced into evidence, the latter indicating a much more confident, robust and self-assured presentation and a willingness to scheme in order to achieve results. Within this context, I note the following statement by the mother to the father from the transcript of the recorded conversations:
“Let me tell you, you know, I went to court with MA and I won and I’ll fucking win again, let me tell you, I don’t fuck about, I go all in and I’m fucking going to go all in, yes, you don’t stand a chance.”
[110]Within this context, and having had the benefit of seeing the mother in the witness box, I entertained grave concerns about the credibility of her evidence. In particular, having regard to the evidence I have recounted in this judgment, I am satisfied that the mother lied to DA and HA when she said the father had thrown PN on the bed on 27 May 2016, and ultimately to the court when she asserted that she had seen PN land on the bed on 27 May 2016. Further, it is plainly established on the recordings to which I have referred that the mother conspired with another female to make an allegation of theft against the father, which allegation is then duly made and thereafter an offer to withdraw the allegation if father admits he caused the injuries to PN. Within this context, I further note the established and lengthy history, accepted by the mother, DA and HA, of the mother telling lies in order to manipulate others and to get others into trouble.[111]The father also demonstrated unattractive traits in the witness box, in particular a tendency to lose his temper easily, with a marked inability to deal with stress and criticism. He was quick to anger and tended to avoid answering difficult questions. He had to be repeatedly warned by the court for trying to antagonise the mother both when attending by video link and from the dock. However, the father also displayed a greater degree of candour than the mother. He readily admitted aggressive behaviour towards the mother and to having “lost it” with the mother “lots of times”. He demonstrated an understanding that the relationship with the mother was “toxic” and said “I agree that it was a terrible environment [for PN], it was disgusting”. The father did not appear to minimise levels of concern in the way the mother was apt to. Whilst the mother, and indeed DA and HA, submit that the father’s tactic is to “pull the wool” over the eyes of professionals, and hence the court, there was in fact far less evidence of the father doing this than the mother. Finally, with respect to the father’s credibility, regard must also be had to the fact that the father maintained his denial of having done anything to hurt PN not only in the witness box but also across over two hours of being pressed to admit the same by the mother in circumstances where he was not aware, or at least was not sure, he was being recorded.[112]In my judgment, there were also concerning aspects to the evidence of DA and HA that are relevant to the determination of how PN came to sustain injury.[113]Accepting that DA is in a very difficult position in circumstances where the mother is, as she put it, “my daughter at the end of the day”, her oral evidence before the court was very evasive. I am entirely satisfied that when giving evidence her primary concern was to protect her daughter and herself by minimising, and in some cases changing, her evidence. In particular, DA sought to amend her evidence regarding the mother being drunk when having care of PN. I am also satisfied that she sought to mislead the Police concerning the involvement in social services by denying knowledge of their involvement as at 27 May 2016 when it is plain she had known of their involvement since at least 13 May 2016. It is plain from the history taken by Dr M from the mother and DA that they sought on 11 July 2016 to play down the mother’s difficulties and emphasise the father’s difficulties, particularly in relation to the abuse of drugs and alcohol. Within this context, DA did not inform doctors that the mother had been drunk whilst caring for PN on 4 March, 6 May and 27 May 2016. DA’s instinct to protect her own position ahead of that of PN was demonstrated in particular by her response to being asked what her reaction would have been to the mother taking PN out unsupervised after the agreement of 27 May 2016, stating that she would “have gone ballistic as she was putting me in jeopardy” (emphasis added).[114]HA was likewise in a difficult position in that these proceeding concerned her sister, with whom both she and the mother conceded she is very close indeed. Within this context, HA presented as a more candid witness than either the mother or DA, and one who had PN’s welfare very much at the forefront of her mind. There were however concerning aspects to her evidence. She admitted in cross examination that she had, in effect, colluded with the mother to minimise concerns to social services, succumbing to a request from the mother not to raise issues concerning the father with the social worker and going along with the idea of not giving a full picture to the social worker. At one point she even sought to blame the social worker for not responding properly to the situation, the full extent of which she conceded she had agreed to conceal. At one point she stated that she had not given the whole story to the social worker because “NA wouldn’t let me”. Despite being told by the mother that the father had thrown PN on the bed, she did not relate this to the Police. I also again note that the recordings the maternal family sought to admit into evidence show HA offering to testify on the father’s behalf if he is prepared to make an admission that he harmed PN.[115]With respect to risk factors, I accept that on the evidence I have recounted both parents have personal difficulties that must be considered a risk for physical abuse. However, once again, relevant distinctions are apparent.[116]As admitted by her, and as confirmed by HA, the mother plainly has a longstanding difficulty with alcohol. Having regard to the evidence I have recited, I am satisfied that the mother was intoxicated when caring for PN on 4 March 2016, 6 May 2016 and 27 May 2016. Within this context, I accept the evidence of the father that he would come home from work during March and April 2016 to find the mother had been drinking whilst having care of PN. I am also satisfied, and the mother does not seek to dispute, that the mother had a poor bond with PN and struggled to parent her following PN’s birth. Within this context, I accept the father’s evidence, in part admitted by the mother, that the mother would contact him regularly at work to ask him to return home when she was struggling to care for PN. I again note the concession by the mother during cross examination that there had been at least one occasion when she had phoned the father because PN had been crying for over 2 hours in the mother’s care and the father’s evidence that on one occasion the mother was extremely upset after saying she believed she had accidentally hit PN’s head on a doorframe. On her own evidence, the mother was clearly struggling to cope whilst the father was at work. The mother likewise accepts that over the period in question she was suffering from poor mental health. The unchallenged social work evidence clearly demonstrates that this was having an impact on the mother’s presentation and her ability to meet the needs of PN, such that it was assessed that her care needed to be supported and supervised. That the mother had difficulties in controlling her temper is further demonstrated in the fights she concedes she picked with the father over his social media posts, as demonstrated on 26 and 27 May 2016. In my judgment, it is also significant that there is evidence before the court that the mother continued to labour under the difficulties outlined above over the course of weekend of 1 to 4 July 2016. As I have already noted, on 2 July 2016 the mother was seen by the social worker and Police to be under the influence of alcohol in the company of two males.[117]I acknowledge that father demonstrated in the witness box an inability to control his temper and a short temper, corroborating instances of the same set out in the papers as well as his recent convictions for physical violence against the mother. He also conceded that he has abused alcohol and drugs, although denied doing so when caring for PN. In contrast to the mother, there is no reliable evidence to gainsay this latter assertion. The father demonstrated a poor response to criticism and stress when in the witness box and concedes that he would regularly “lose it” in the family home with the mother. However, in contrast to the mother, the father’s bond with PN was assessed to be good. The unchallenged social work and health visitor evidence is that the father was observed to meet the primary care needs of PN, to have an understanding of how to care for a baby in terms of recognising feeding cues, responding appropriately to PN, bathing and cleaning the house and demonstrated a warm bond with PN. Within this context, it was also significant in my judgment that during the course of her oral evidence, and as an aside, HA said that she did not believe that the father would deliberately harm PN, saying “We don’t think it was intentional, we don’t think he would pick up a child and shake it”.[118]I am satisfied that there is no evidence to suggest that DA presented a risk of physical abuse to PN. The court has available to it a ‘Full Viability Assessment’ and a full ‘Connected Persons’ assessment of DA. The viability assessment recommended a full assessment. That assessment concluded that DA is an experienced parent who has the ability to provide warm and nurturing care of children and presented as a warm, caring and concerned mother and grandmother who was able to communicate well with adults and children, although concerns were expressed about the stability of DA’s current family arrangements and the extent to which she had been open about her criminal convictions. There is no evidence that her own children suffered physical harm in her care. Whilst there is some indication on the face of the papers that DA found it difficult after 27 May 2016 to balance work with caring for PN and that, on occasion, during this period DA did not get much sleep due to PN crying and being difficult to settle, I also note the evidence of the father that, “I can’t see DA or HA hurting her, if anything they would turn up and would support NA and try to do stuff for her.” This reflected his position at the pre-hearing review that he did not believe that either DA or HA would hurt PN. When cross examined by Ms Caplan on behalf of DA the father stated that he would be “shocked” if the injuries were to be found to have been caused by DA.[119]I am likewise satisfied that there is no evidence to suggest that HA presents a risk of physical abuse to PN. The court also has available to it a ‘Full Viability Assessment’ and a full ‘Connected Persons’ assessment in respect of HA. HA has two children of her own who she has parented appropriately and is assessed to have worked well with social care professionals. There is no suggestion that either of HA’s children have come to harm. There are no concerns regarding drug or alcohol misuse. She was assessed during observations to be a confident, patient and understanding parent of children who appear to be leading happy lives. Her children were comfortable in her presence. On 21 June 2016 PN was seen with HA on a home visit. PN was seen to be safe and well in the care of her aunt, good interaction was noted between HA and PN and PN presented well.[120]Finally, and very importantly given my findings regarding the nature and the timing of the further injuries sustained by PN 7 to 10 days prior to 11 July 2016, on the mother’s own case it is only herself, HA and DA who were present with PN at times during both periods in which PN sustained injury.[121]There is no dispute that between the beginning of April 2016 until 27 May 2016 there were periods during which the mother cared for PN in the circumstances that I have described above. I acknowledge that this is also the case in respect of the father and, on occasion, HA and DA. As I have noted already, this included a period from the birth of PN to the father losing his job when the mother was caring for PN largely on her own whilst the father was at work. It is also clear on the evidence that the mother had sole care of PN on the afternoon of 6 May 2016 after the father had been asked to leave the property by the social worker and thereafter until 12 May 2016, albeit latterly with the support of HA.[122]There also now appears to be no dispute that the mother was at the same property as PN at a point during the course of the weekend of 1 to 4 July 2016. Whilst the mother, HA and DA deny that the mother had unsupervised contact during that time, I am not able to accept that evidence for the following reasons: i) Both DA and HA accepted that they considered it was open to them to leave the mother alone with PN provided they were somewhere in the house. DA said “I would have let NA stay on her own with PN. I had no worries about leaving NA alone with PN. It did not happen because she did not stay but Carol never said I could not leave them alone in a room. Carol never said I had to be in the same room as her”. HA said “Carol did insinuate that NA could come round and be with PN. She did not say how it had to be.” Within this context, I again note that the Written Agreement of 27 May 2016 was both vague and confusing when it came to exactly what the arrangements for the supervision of the mother were. ii) I am also satisfied that the pervading maternal family narrative at this time was that it was the father who was the incompetent, neglectful and violent parent, that family narrative having been reinforced by the mother’s untrue account of the events on 27 May 2016 and her one sided account of the parent’s relationship. Within this context, I am satisfied that neither DA nor HA believed that it was necessary to be with the mother and PN at all times. iii) Accepting that they are both in a difficult position given family loyalties, I am satisfied that both DA and HA are extremely loyal to the mother and have in the past demonstrated themselves willing to disguise concerns regarding the mother’s parenting of PN. DA sought to disguise the fact that the mother on occasion cared for PN whilst intoxicated and attempted to mislead the Police regarding the involvement of social services. HA conceded that she had failed to give the social worker a full account of the parents’ relationship because the mother did not want her to. iv) Within this context, there is evidence before the court that is inconsistent with the assertion by DA and HA that they did not have a great deal of contact with the mother between 27 May 2016 and 11 July 2016. The unchallenged evidence of the health visitor is that on 22 June 2016 the mother said she was being given her medication by DA which she was taking regularly. There is no indication that DA sought to dispute this. This is consistent with the mother’s statement during her Police interview that she would go to DA’s three to four times per week and would also go to HA’s regularly. v) In circumstances where both want to, and have been assessed with respect to caring for PN, DA and HA have a powerful motive to deny permitting the mother unsupervised contact with PN, although I bear in mind that both said they maintained that denial in the full knowledge of its potential adverse impact on their ability to care for PN in the future should the court reject that denial. vi) On the balance of probabilities, PN suffered an abusive head injury over the weekend of 1 to 4 July 2016 during which period DA, HA and the mother were at times present. On the evidence before the court I am satisfied that it is unlikely that DA or HA inflicted such an injury on PN or would have allowed such an injury to occur had they been present at the time. vii) HA sought initially to deny that the mother had spent time at her house over the weekend of 1 to 4 July 2016 in the face of the mother’s evidence to the contrary. HA’s later evidence that the mother would not have come into contact with, or have been left alone with PN on the afternoon she spent at HA’s property over the weekend of 1 to 4 July 2016 because she spent the time in the shower and doing her hair strained the bounds of credibility. I am satisfied that HA sought to minimise the significance of the time spent by the mother at her home over the weekend of 1 to 4 July 2016.[123]In reaching my conclusions regarding the issue of whether the mother was left alone with PN by DA and HA I make clear that I have not relied on the father’s evidence concerning his contact with PN during this period. With respect to his assertion that he saw PN alone with the mother at some point in June 2016, the evidence is in my judgment too confused to allow the court to reach a finding in that regard. With respect to 7 July 2016, whatever the true circumstances of that day, no party sought to suggest that HA was not present throughout. These matters do not however, alter my conclusion that the mother came into same household as PN at a point over the weekend of 1 to 4 July 2016 and, for the reasons I have given, was not closely supervised with her.[124]Standing back and looking at the broad canvass of the evidence, I am satisfied on the balance of probabilities that the mother injured PN when left unsupervised during the weekend of 1 July to 4 July 2016. I am satisfied that the medical evidence demonstrates that PN sustained an abusive head injury within this period. On the evidence before the court the only people who came into contact with PN at that time were the mother, DA and HA. I am satisfied on the evidence before the court that it is much more likely that the mother caused the injury sustained by PN than it is that the injury was caused by either DA or HA. The mother presented with a number of risk factors for physical abuse, including difficulties with alcohol, difficulty bonding with PN and coping with her care, and mental health difficulties. There is unchallenged evidence before the court that the mother’s difficulties with alcohol were continuing to manifest themselves that weekend. I am satisfied on the evidence that it is likely that the mother was left unsupervised with PN on occasions by DA and HA for the reasons I have set out and that this happened at a point over the weekend of 1 to 4 July 2016. I note that the medical evidence is that the injury in question is capable of being caused in a brief instant as the result of a momentary loss of control and that, following the injury, a person not responsible for the injury may well not realise it had occurred. There is no evidence that the father came into contact with PN during this period and no evidence that maternal family seeks to cover for the father, indeed quite the opposite.[125]I am also satisfied on the balance of probabilities that the mother was responsible for the earlier injury or injuries to PN leading to the chronic subdural haematomas. Whilst it is not possible to identify the specific date or dates on which the earlier injury or injuries took place, I am satisfied that during the period in which the injury or injuries were inflicted the mother on occasion had sole care of PN. During this period, and especially in April before the father lost his employment, the mother was plainly struggling to care for PN and was at times doing so whilst under the influence of alcohol, and in all likelihood drugs, and in circumstances where she found it difficult to establish and bond with PN. She herself concedes that she telephoned the father to come home after PN had been crying for 2 hours. Within this context I also note that on 6 May 2016, after the mother had had care of PN for the afternoon in circumstances she could not assist the court with, PN was again seen to be fractious and difficult to settle and feed over an extended period of time.[126]Whilst I accept the father also had sole care during this period and has had difficulties with alcohol and drugs, a demonstrable tendency to get angry and lose his temper, and now has convictions for assault, I am not persuaded that those characteristics are sufficient on their own to lead me to a different conclusion regarding the cause of the earlier injuries. There is a material difference in the assessment of the father’s parenting abilities and bond with PN compared to that of the mother. I also once again note HA’s evidence in respect of the father that “We don’t think it was intentional, we don’t think he would pick up a child and shake it”. Within this context, as between the parents, and having regard to my conclusions concerning the later injuries, in my judgment it remains more likely that the mother caused the earlier injury or injuries during a momentary loss of control whilst struggling to cope with a child to whom she had not bonded and in state altered by alcohol for reasons I have already rehearsed during the course of this judgment. Within this context, I recall once again the mother’s evidence that stated in relation to the timing of the earlier injury “when I think of April I get a funny feeling and feel bad” and the father’s evidence that on one occasion the mother presented as extremely upset as a result of believing she had accidentally hit PN’s head on a door frame. Finally, in respect of the earlier injury or injuries I am also entitled to, and do have regard to the inherent improbability of PN having been injured first by her father and then, some weeks later, injured in the same way by her mother.[127]Whilst not probative in itself, I am further reinforced in my conclusions regarding the mother’s responsibility for the injuries to PN by the effort she has gone to in order to implicate the father when, I am satisfied, the most he has conceded is to wonder whether his winding of PN was responsible. As I have already recounted, the mother lied to both DA and HA and to the court when she said the father had thrown PN on the bed and that she had seen PN land on the bed. Whilst I am mindful that there can be a number of reasons why a parent may tell lies, including in this case a wish simply to ensure on 27 May 2016 that the father was removed from her property, the fact that the mother raised this lie again after the injuries to PN were discovered and sought to propagate it further at this hearing suggests it was told, at least latterly, in an attempt to deflect from her own culpability. Likewise, her attempts (with DA) to emphasise to Dr M her virtues and the father’s vices. Within this context, I once again recall the efforts to which the mother went to get the father to say he was responsible for the injuries, which efforts included conspiring to fabricate an allegation of theft in order to push the father into an admission. Once again, it is difficult to see these efforts as anything other than an attempt by the mother to deflect from her own culpability.[128]I accept that in making the findings I have done, and in particular in identifying the mother as the perpetrator or PN’s injuries, I am going further than the Schedule of Findings relied on by the local authority, which did not seek to identify the perpetrator of the injury as between the parents. However, I am satisfied that the conclusion I have reached in this regard is securely founded in evidence that is before the court for the reasons I have set out above (Re G and B (Fact-Finding Hearing) [2009] 1 FLR 1145 and Re J-L (Findings of Fact: Schedule of Allegations) [2013] 1 FLR 1240).[129]It follows from my conclusions that I am satisfied on the balance of probabilities that there was at least one occasion and on the evidence before the court when DA or HA permitted the mother to have contact with PN in a manner that was not closely supervised. On the face of it this is a serious omission and a failure to protect PN. However, that omission must be placed in the context of two important matters.[130]First, as I have recounted, it is plain that the agreement that DA and HA signed was far from clear in its terms. For example, the prohibition on leaving PN “alone” with the mother does not make clear whether supervision has to be one-to-one at all times or simply involves DA and HA being in the same property as the mother. The agreement is also confused in its description of precisely who is bound by it as between DA and HA. The omission of DA and HA must be understood in this context. Second, it is important to remember the very difficult position family members are placed in when they are asked by a local authority to supervise a parents’ contact with their child. For family members that task is freighted with complex feelings of love and loyalty as well as a desire to ensure the child is protected. Within this context, the task facing family members is, paradoxically, a far more difficult one than that which faces professionals trained to undertake it.[131]Whilst the assessments of DA and HA remain to be finalised, and without in anyway seeking to suggest what the final outcome of these proceedings may be, the local authority will need to consider the conduct of HA and DA within the context of the matters I have outlined.[132]Finally, the father should emphatically not see my decision as some sort of victory or vindication. By his conduct with the mother in the family home the father bears a very heavy responsibility for causing significant emotional harm to PN and some responsibility for the creation of the circumstances in which the mother came to injure PN. The father’s inability to moderate his reactions and his inability to extricate himself from the relationship with the mother resulted in his parenting causing emotional harm to his daughter in the same way as the mother’s similar deficits did.

CONCLUSION

[133]For all the reasons I have set out in this judgment, on the balance of probabilities I make the findings of fact set out in the Schedule of Findings that is attached to this judgment. I will now give directions for the welfare stage of these proceedings.[134]In closing, I would say this. I am satisfied that none of the lay witnesses who gave evidence before this court, namely the mother, the father, DA and HA, has been entirely frank with the court. I am satisfied that they have each made a conscious choice to withhold certain matters rather than giving an account of all that they know about the circumstances in which PN came to sustain serious injuries. Within this context I have had to try and divine what is more likely than not to have happened to PN in circumstances where the only people present at the relevant times have chosen not to assist the court fully with that task. This judgment represents my considered attempt to discharge the duty of the court in those circumstances on the evidence available to me at this hearing. In so far as the mother, the father, DA and HA consider that this judgment does not represent the full picture of what befell PN, the responsibility for that lies solely at their doors.[135]That is my judgment. SCHEDULE OF FINDINGS i). PN has sustained the following injuries: a) A large loculated subdural haematoma over the right hemisphere of the brain causing considerable mass effect with sulcal effacement, effacement of the right lateral ventricle and the basal cisterns, with midline shift to the left. b) A subdural haematoma over the frontal and lateral aspects of the left frontal region of the brain. c) Subarachnoid haemorrhages over the superior aspects of the cerebral hemispheres. d) Haemorrhagic diffuse axonal injury in the lateral right temporal lobe and in the posterior left temporal and parietal lobes e) Generalised reduction in white matter volume in both hemispheres of PN’s brain, worse on the left. f) A single pre-retinal haemorrhage in both eyes. ii). The left and right chronic subdural haematomas and the pre-retinal haemorrhages resulted from a shaking type injury or a shaking type injury with impact. iii). The acute sub-arachnoid bleeding and haemorrhagic diffuse axonal injury resulted from a shaking type injury or a shaking type injury with impact. iv). The level of force applied to cause the injuries to PN was a level of force that exceeded normal handling and would have been obviously inappropriate to an independent observer sufficient to cause intra-cranial bleeding and diffuse axonal injury but not sufficient to result in hypoxic ischaemic injury and a major change in PN’s neurological condition. v). The left and right chronic subdural haematomas were sustained by PN on one or more occasions during the period between early April and late May 2016. The pre-retinal haemorrhages were sustained by PN during the period between early April and late May 2016 vi). The acute sub-arachnoid bleeding and haemorrhagic diffuse axonal injury were sustained at a point over the weekend of 1 to 4 July 2016. vii). During April and May 2016 the mother cared for PN alone on a number of occasions whilst she was intoxicated and in circumstances where she was suffering from mental health difficulties, under stress from a toxic and destructive relationship with the father, struggling to bond with PN and struggling to parent PN. viii). HA and/or DA allowed the mother to have contact with PN without close supervision on at least one occasion over the course of the weekend of 1 to 4 July 2016 at a time when the mother’s alcohol use and mental health difficulties persisted, she continued to be under stress from her relationship with the father and she continued to struggle to bond with, and parent PN. ix). The injuries sustained by PN were on each occasion caused by the mother during momentary losses of control at a time when she abusing alcohol, was suffering from mental health difficulties, was under significant stress and struggling form a bond with, and parent PN. x). At the time the injuries were inflicted the mother would have, or reasonably should have, known that her actions which resulted in the injuries risked injury to PN. xi). By reason of the fact that the injuries were sufficient to cause intra-cranial bleeding and diffuse axonal injury but not sufficient to result in hypoxic ischaemic injury and a major change in PN’s neurological condition there was no major or specific change to PN’s neurological presentation following her injuries. xii). Following the identification of PN’s increasing head circumference the mother failed to make an appointment with the paediatrician following a referral on 23 June 2016 despite a request that she do so, thereby delaying the examination and treatment of PN. xiii). The mother has told lies in an effort to implicate the father with respect to the injuries sustained by PN and to deflect her own culpability for those injuries. In particular, the mother has lied about the events of 27 May 2016. xiv). Both parents caused significant emotional harm to PN, and exposed her to a risk of significant physical harm, on repeated occasions over an extended period of time by reason of their toxic and volatile relationship, which relationship characterised by incidents of domestic abuse on both sides fuelled by alcohol without any regard to her emotional or physical wellbeing of PN. Both parents failed to prioritise PN’s emotional needs and failed to ensure a safe home environment.

Cited in 2 later judgments