O (A Child : Fact Finding Hearing - Parents Refusing to Participate) [2018] EWFC 48

[2018] EWFC 48Case No DE17CO0154
IN THE FAMILY COURT SITTING AT DERBY
His Honour Judge Bellamy
sitting as a Deputy High Court Judge
Re O (Fact Finding Hearing: Parents Refusing to Participate)
(judgment handed down on 29 June 2018)
Elliw Roberts, counsel, for the local authority
Muctar Johal, solicitor, for the child
The parents did not attend and were not represented
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of their family must be strictly preserved.
Judge Bellamy:
Date 2018-06-29
[1]On 2nd June 2017 Derby City Council (‘the local authority’) issued care proceedings in respect of a baby boy, O. O was born on [a date in] 2017. On 27th May O was taken to hospital. He was found to have suffered bilateral parietal skull fractures with associated swelling of his scalp. The case comes before me for a finding of fact hearing.

The parents

[2]The mother is aged 25. The father is aged 41. They originate from the Caribbean.[3]Throughout almost the entirety of these proceedings the parents have, by choice, been unrepresented. Through choice, they have not attended court at any point during this finding of fact hearing. They have attended some case management hearings. On each occasion when they have attended court I have encouraged them to seek legal representation. I have made it clear to them that they are entitled to non-means and non-merits tested legal aid. My encouragement has fallen on deaf ears.[4]The parents have filed responses to the local authority’s threshold document. They have also each filed a two-page statement. The statements address, briefly, the events of 27th May. The statements do not provide any background information concerning the parent’s family and social history. The account that follows has been gleaned from the histories taken by medical professionals following O’s presentation at hospital and from a judgment of First Tier Tribunal Judge Owens sitting in the First-Tier Tribunal (Immigration and Asylum Chamber) on 27th January 2016.[5]Whilst in the Caribbean the father worked as a journalist and as a news reporter. He arrived in England in 2013. He applied for asylum. The basis of his application was that he claimed to be at risk from the authorities in the Caribbean for exposing human rights abuses by the local police. He also claimed to be homosexual and asserted that he is not able to live openly as a gay man in the Caribbean as he would be at risk of serious harm. His application was initially refused. He appealed. His appeal was allowed on 27th January 2016. He has been granted asylum and leave to remain in the UK until February 2021.[6]The father now lives in Liverpool. It is understood that he is in work. There are no known issues relating to the father’s health. He has a brother living in England.[7]The mother arrived in England in 2015. She applied for asylum. No papers have been disclosed concerning that application. Background information relating to the mother is, therefore, somewhat scant. Enquires of the Home Office reveal that in June 2017 the mother was granted asylum and leave to remain in the UK until June 2022.[8]The mother has no family living in England. She now lives in Derby.[9]Although the mother denies that she has suffered from any mental health difficulties, hospital records indicate that in 2016 she was diagnosed with PTSD and depression.[10]The parents have known each other since they were living in the Caribbean Notwithstanding the fact that they have had a child together, the mother has told the guardian that she and the father have never been in a relationship. It is unclear whether they have ever lived together. They were not living together when O was born. Following O’s birth the father visited the mother’s home regularly in order to see O.[11]On 24th April the health visitor made a home visit. The father was present. The health visitor’s records have been produced. With respect to the father she notes in her record that he, ‘appears interested in advice and information, but presents as a controlling and domineering partner. During contact, he was overpowering in saying what he thought, above [the mother’s] voice, interrupting her at times, to express himself. His verbal presentation was loud, that his opinion was right.’[12]The health visitor’s description of the father mirrors my own experience of him in court. During the course of those hearings the parents have attended, for the most part the mother has remained silent. She has spoken when spoken to. She has been monosyllabic. I formed the view that the decision that both parents should be unrepresented was a decision taken by the father and that it was a decision the mother has felt obliged to accept. Although she may understand that her interests would be better served by being legally represented, the father’s domination of her has meant that she has been unable to act in her own best interests.

The parents’ engagement with these proceedings

[13]Given what I accept to be the parents’ genuine desire that O should be returned to their care, the way they have approached these proceedings has been curious.[14]I have already noted the parents’ decision to conduct these proceedings as litigants in person. Given the complexity of the issues, their entitlement to non-means and non-merits tested legal aid and the fact that there are in Derby (and no doubt also in Liverpool where the father lives) very competent and experienced family law solicitors whom they could have approached, their decision to represent themselves would seem to be unwise.[15]On 1st September 2017 the parents issued judicial review proceedings. The defendants to that application are Derby City Council and Derby Teaching Hospitals NHS Foundation Trust. The Smith Partnership (the solicitors instructed by the guardian in the care proceedings), Penny Forman (the Cafcass officer allocated as children’s guardian in the care proceedings) and the Family Court at Derby are described in the proceedings as ‘interested parties’.[16]Appended to the claim form is a document headed ‘Grounds of Claim’. It appears to have been prepared by the father. In that document the parents refer to the ‘fabricated NAI diagnosis being a perfunctory step towards Social Services referral’ and this led, on the 2nd June, to the local authority ‘unlawfully detaining O in public care’.[17]The parents sought an urgent interim without notice order quashing the interim care order. Their application was refused on paper by His Honour Judge Stephen Davies. He left open the possibility of an urgent hearing once the defendants had filed and served their acknowledgments of service and summary grounds of defence. The parents renewed their application. The application was reconsidered by Kerr J on 27th October, again on paper. He gave directions for an oral hearing on notice to the parties.[18]The oral hearing took place on 11th December. So far as is relevant for present purposes, the order provided that, ‘1. Permission to challenge the making of an Interim Care Order on 2 June 2017 is refused on the basis that such claim has no reasonable prospect of success. 2. The claims made by the claimants in relation to the alleged conduct of the defendants are stayed generally, with permission to the claimants to apply on notice to lift the stay on the conclusion of the Family Court proceedings or otherwise on proper grounds…If no such application is made by 4p[m on 13 December 2018 the claim will be struck out.’[19]Section 32 of the Children Act 1989 requires the court to draw up a timetable ‘with a view to disposing of the application…within 26 weeks’. The section also gives the court the power, in certain circumstances, to extend the 26 weeks. In this case, as a result of an oversight, notwithstanding that the case has exceed the statutory 26 weeks no order of the court was made authorising that extension. The parents contended that as a result of that oversight the proceedings automatically came to an end when the 26 weeks expired and that as a consequence the interim care order also came to an end. It followed, submitted the parents, that since the 26 weeks had ended the local authority had wrongfully and unlawfully continued to place O in local authority foster care. The sought O’s return to their care immediately.[20]I heard the parents’ submissions on 13th March. I concluded that the failure to make an order extending the 26 weeks did not have the effect of bringing the proceedings to an end and that the interim care order therefore remained in force. The parents have not attended any hearing since 13th March.[21]The parents applied to the Court of Appeal for permission to appeal against my decision of 13th March. On 18th May, on consideration of the papers, McFarlane LJ refused the parents’ application on the basis that it was ‘wholly misconceived and is based upon a fundamental misunderstanding of Children Act 1989, s 32’. He concluded that, ‘It follows that neither the fact that the proceedings have lasted well beyond the 26 week deadline nor the fact that, for a period, no advance extension order had been granted, invalidate the current interim care order or mean that the case can no longer proceed to a final hearing.’[22]On 23rd April 2018 the parents had supervised contact with O. The allocated social worker, Gideon Zeti, was in the building but was not present to observe contact. The parents spoke to the contact supervisor expressing concern about a mark on O’s forehead. The supervisor contacted the social worker who, after speaking to his manager, went to the contact room to look at O’s head. When he went into the contact room he was carrying his notebook and mobile phone. With the consent of the parents he tried to take a photograph of the marks which were causing the parents concern. He had to put down his notebook in order to take the photograph. When his investigation into this incident ended he forgot to pick up his notebook. He left the building to go to a meeting. It was not until the next morning that he realised what he had done. He informed his manager.[23]In a written statement, Mr Zeti says that, ‘14. Inside the notebook were three separate pages of notes, relating to families that I work with. This was my own brief notes, detailing information that was confidential and sensitive to those families, although full names were not used and they would not be recognisable or traceable based on the information in my handwritten notes. 15. However, I was also in the process of amending a report I had written, and had temporarily stored it with my notebook to keep it safe. This was a statement prepared for court…and contained highly sensitive information about a child and their parents who are subject to Court Proceedings. It will have been evident from the front sheet of this documents that it was a confidential court report, regarding a child that has no connection to the [the father]. This report was five pages long…’[24]Mr Zeti reported this potential data loss to his manager, Lisa Walker. In her statement Ms Walker says that at the end of the contact the father handed the notebook and report to the contact supervisor. The contact supervisor immediately took the notebook and documents to the Deputy Head of Service and reported to her ‘that [the father] had clearly spent time in contact reading the whole document and notebook’.[25]Ms Walker contacted the father. He confirmed that he had read the documents. She sought to persuade him to sign a written undertaking not to breach the confidentiality of the material he had read. Ms Walker says that the father, ‘21. …informed us that he was not willing to sign a written undertaking. He confirmed that he had taken copies of the court report and refused to delete the images stating: “I am not condoning this. The information is of public interest. I am a victim of the same situations as that victim. A child is in the system for no reason. There is significant public interest here, it appears to be a pattern.”’[26]On 21st May the local authority issued proceedings seeking an injunction against the father to restrain him from publishing the material he had wrongly copied. An injunction was granted by Her Honour Judge Coe QC on 29th May. The judge also gave directions for the future conduct of the case. She listed the case before me for further directions on 11th June. That was the day when I was to hear evidence from the first witness in the care proceedings, Dr Lisa Keillor. Both matters were listed at 10.30am. The father attended in person. At that hearing I extended the time for him to comply with the directions made by Judge Coe until 4.00pm on 15th June. I also ordered that he should file and serve a defence by that same date. I adjourned the hearing until 18th June.[27]Having dealt with the directions hearing in the civil proceedings I called on the care case. Although the father was still in the court building at that point, and was well aware that the court was about to hear evidence from Dr Keillor, he left the building. The mother was not present at court.[28]The father did not attend either of the two hearings listed on 18th June. In the civil proceedings I made a final order. In the care proceedings I continued the hearing in the absence of both parents.[29]Not only have the parents failed to attend hearings they have also refused to accept documents served upon them. In a statement dated 14th June 2018 a local authority solicitor sets out the difficulties she has encountered in her attempts to serve documents on the parents. For example, she says that on 5th June she sent letters to both parents enclosing copies of the hearing bundle for use at this finding of fact hearing. The letters were sent by special delivery, guaranteeing delivery the next day and requiring the recipient to sign to acknowledge receipt. The solicitor say that the letter sent to the mother was returned to the local authority with the words ‘return to sender’ written on the package. This is not an isolated occurrence. The father has been equally difficult.[30]The parents have also engaged in public protests relating to the actions taken by the local authority. In a second statement the local authority solicitor records that on 14th May she, ‘observed the Respondent Mother standing outside the Council House at the bottom of the steps on Corporation Street holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”. She wandered quietly up and down the pavement…Later that day the Respondent Father joined the Respondent Mother.’[31]The solicitor observed the mother walking up and down outside the Council House again on 23rd May. Following liaison between herself and staff at Derby Royal Hospital she believes that the parents have undertaken similar protests at the entrance to the hospital.[32]The solicitor goes on to say that the parents’ protest was reported on the website of the Derby Telegraph. She exhibits a copy. The article appears under the headline ‘Protesters with placards vow to stay outside Derby City Council’s HQ all week’. The article names the parents but goes on to say that, ‘The Derby Telegraph has decided not to reveal the exact details of the complaint for legal reasons’.[33]On Monday 18th June, effectively the second day of the finding of fact hearing, the father attended at the council offices and returned the hearing bundle for this hearing.[34]The hearing on18th and 19th June was in Derby. The final two days of the hearing took place in Chesterfield. This was a late change of venue. The allocated social worker met with the parents on 20th June. He provided them both with travel warrants to enable them to attend the hearing in Chesterfield. Neither of them attended.

The parents’ explanation of O’s injuries

[35]The father has given a number of accounts of how O’s injuries were sustained. I shall consider them in chronological order.[36]Before he and the mother took O to the hospital the father telephoned the hospital for advice. He spoke to Staff Nurse Anna-Marie Young. In her written statement she says that:
‘6. Within the entry time at 17.12 on 27 May 2017 I have typed:- Father of baby O did ring the department earlier and I took the phone call. Dad said the following “The baby has been dropped and he has got a swelling to his head do I need to bring him down” Myself “Yes bring him to the Children’s Emergency, as he will need checking over” … 9. The fact that I have used speech marks to document my telephone conversation within the computerised entry at 17.12 would indicate that this was my word for word account of what was said during the conversation.’
[37]Staff Nurse Young was called to give evidence at this hearing. Her note of the telephone call was entered in the record when O was presented to the children’s emergency department. She no longer has any recollection of O’s admission to hospital. She is unable to add to the detail set out in entry in the record she made in O’s notes.[38]The parents and O arrived at the hospital at 16.23pm. The first doctor to meet with them was Dr Lisa Keillor. She established that the child she was examining was the parents’ son, O. In her written statement, she says:
‘I reviewed O with his parents…present at around 17.15. On taking a history of events, the father advised that O had fallen from his parents’ bed onto the floor while the father was changing his nappy (this history was also written in the notes at the initial assessment by Staff Nurse Anna-Marie Young). When asked about the mechanism behind the injury, the father then stated “Actually I dropped him” and reported that the baby had fallen from his arms onto the floor whilst he was reaching across the bed for a nappy. The mother stated that she was not in the same room at the time of the incident and therefore could not give any more details. The father stated that O had been quiet for a few seconds immediately after the event but then had cried as he had bent down to pick him up. Both parents agreed that O was consolable afterwards with a feed and reassurance, but had been crying intermittently since. On asking about events following head injury the mother stated that O had been “quiet and a bit floppy” but the father disagreed and stated “No, no, he’s been fine – I haven’t been concerned”. Both parents agreed that he had fed well following his head injury, and had been alert, interacting normally and moving all of his limbs with no vomiting, seizures, unusual behaviour or abnormal movements.’
[39]Dr Keillor said that the parents’ presentation was unremarkable. They were both concerned about O’s head injury. They were co-operative and compliant. Had there been anything out of the ordinary in their presentation she would have recorded it in the notes.[40]Dr Keillor arranged for a CT scan to be taken of O’s skull. She explained to the parents what was to happen. Just before 7.00pm Dr Keillor received a provisional report from the radiologist. The report indicated that O had sustained a skull fracture. Dr Keillor explained to the parents that the scan revealed a ‘subtle fracture in the skull’. She told them that as a matter of course it is policy to inform social care ‘in view of the type of injury in an infant’. They both appeared to accept that news.[41]Later that same day, O was seen by a locum Consultant Paediatrician, Dr Kalepu. Dr Kalepu took a history from the parents in the presence of a social worker. In her report of the child protection medical she notes that the father had visited the mother’s home on the morning of 27th May. She says that the father, ‘tells me that at approximately 3.30pm on the 27th May 2017 father was in the bedroom, with O laid on the changing mat on the bed and father was doing nappy change for him. During this process O’s legs were towards the edge of the bed and dad was initially holding O’s legs and then he bent down to the right to get the nappy from the floor. He tells me that O then slipped off the bed onto the floor. The height of the bed is approximately 2½ feet and O fell onto a carpeted floor which has floor boards underneath. The edge of the mattress is flush with the edge of the bed. After O fell on the floor father tells me that he cried immediately and therefore father picked him up and did not see any lump on the back of O’s head at that point. He claims that he called O’s mother, but immediately called 999 even before O’s mother came to see O. Father alleges that O’s mother was not in the room when this happened. O’s mother claims that she was not in the bedroom but she cannot remember where she was and that she was somewhere downstairs. When she came up into the bedroom and picked O up she noted a lump on the back of his head at that point. There is no history of floppiness, no history of vomiting, he was initially crying but settled quite quickly. He has continued to breast feed as usual. There was no loss of consciousness.’[42]When she first examined O, Dr Kalepu noted swelling to the right side of his head. It was not until the next day that swelling became apparent on the left side of his head. The CT scan revealed bilateral parietal skull fractures. The swelling to each side of O’s head was consistent with the evidence of fractures. In Dr Kalepu’s opinion it is highly likely that both fractures occurred at the same time.[43]Notwithstanding the injuries that led to O’s admission to hospital, on examination he appeared to be well-nourished and well cared for. He was clean. He had normal muscle tone. He could lift his head. He appeared to be developmentally normal. His weight was between the 25th and 50th centile. He was settled in his mother’s arms. The mother was breast-feeding. Father appeared to be caring. He answered questions appropriately. Dr Kalepu noted that when asked to consent to a skeletal survey, initially the father refused. He later gave his consent.[44]The father was interviewed by the police. When asked to describe what had happened on 27th May the father responded, “Again I would refer you to the on the record statement that I made to the documented statement that I made to the Family Court in Derby on the 10th of July’. To almost every subsequent question the father responded, ‘I choose not to answer that question at the moment.’[45]The statement to which the father refers is the statement in these proceedings dated 7th July. In that statement the father says, ‘1. That on Saturday 27th May, at around 11am, I arrived at the mother’s home to visit with my son O. Upon arriving, I made my way to the bedroom which the mother shares with O. I aided in changing his nappies and indulged in curdles (sic) while his mother attended to housekeeping duties… 3. I’m sure if it’s the case with most kids but O hates nappy changes so he often cries whenever his little feet are tilted in the air. Suffice to say it was time for a nappy change by then it was 3.45pm. 4. I placed the changing mat onto the bed, grabbed the nappies and threw them to the floor, all the while holding O. I then placed O towards the edge of the bed onto the changing mat. I tried reaching for the clean nappies a few feet away from me beside the bed thereby moving at least 1 foot away from the bed, I heard a thump and a cry and saw O on the floor. The bed is approximately 2 and a half feet high. 5. He cried immediately and instinctively I picked him up and curdled (sic) him, at the same time I called out to the mother who was downstairs at the time. As soon as she entered the room she asked what happened and I explained that he slipped off the changing mat. She reached out for O and took hold of him, I called 999 for advice and at the same time the mother observed swelling to O’s head. I explained to the operator what had happened and was told the incident was a non-emergency. 6. In the meantime the mother continued curdling (sic) O and he eventually calmed. I followed up by calling the Royal Derby Hospital for advice. I was told to bring him in. 7. Within 30mins of O falling onto the floor we were already at the hospital. O started feeding shortly after the fall and by the time we got to the hospital he was back to his normal self. O has been in perfect health ever since.’[46]The mother’s account in her written statement is consistent with the father’s account. She says, ‘1. That on Saturday 27th May, at around 9am, O was in my care throughout the day. As per usual his father visited that day around 11am and assisted in bathing and changing Os (sic) nappy while I attended to household chores. 2. During the course of the day while downstairs around 3.45pm, I heard O crying and at the same time the father called out to me to come upstairs. 3. When I got to the room I asked the father what happened. He told me O slipped off the changing mat from on top the bed, while he attempted to reach for a clean nappy at the side of the bed. 4. At that moment O was crying. I inspected his head and observed a bump on the left side. I informed the father of my finding as he was at the time on the phone with 999 to seek medical advise (sic). 5. The father described the accident to the dispatcher and explained that there was a bump to his head. The dispatcher told him the incident was a non-emergency. 6. We then called the Royal Derby Hospital for further advise (sic) and was told to come in. We subsequently called a taxi and made our way to the hospital. 7. I am of the firm belief that O is safe in the care of his father and absolutely no harm will come of him in our or my care.’[47]In their statements both parents assert that immediately after O’s fall the father telephoned 999. The local authority has been unable to confirm this. They have provided the mother’s address and both parents’ mobile phone numbers to the East Midlands Ambulance Service (EMAS). EMAS has no record of a 999 call from either parent’s mobile phone or from any other phone requesting the ambulance service to attend at the mother’s address. The parents were ordered to provide their mobile phone records. The phone records may have corroborated that part of the parents’ evidence. The parents did not comply with that order.[48]In addition to filing their written statements on 7th July the parents also filed their responses to the local authority’s threshold document. The mother’s response contains the following passages:
‘O did not suffer physical harm from either of his parents. O is perfectly fit and healthy. His welfare is of paramount importance to his parents. Aside from the allegations of “subtle fractures” there is no evidence adduced before the court pointing to ill treatment, in fact the evidence suggests he was well cared for. I do accept that O had a 4cm x 4cm bump to his head but it was because of a low fall while in his father’s care. I do not accept that there were any injuries because of the fall at 2 and a half feet. Any alleged fractures and associated bleed is perfectly consistent with birth related issues in babies…The possibility of any fractures or bleed because of the fall, (and it is our unyielding submission that there isn’t) medical evidence indicated that such injuries are consistent with that explanation.’
[49]There is one further account provided by the parents. It is consistent with their other accounts. It is to be found in the ‘Grounds of Claim’ supporting the parents’ application for judicial review. At §2 the parents say that, ‘On 27th May 2017, 6 week old O sustained a low-level fall (2 and a half feet) during a nappy change while on a changing mat on a bed, resulting in swelling to his head (4cm x 4cm). He was taken to hospital immediately by both his parents. On arrival at the RDH, the paediatric team openly documented a predetermined diagnosis of Non-Accidental injury (NAI) in bad faith. The fabricated NAI diagnosis being a perfunctory step towards Social Services referral.’

O’s admission to hospital

[50]The hospital records note that O arrived at the hospital at 16.23pm, that this was a self-referral and that he was accompanied by both parents. Their responses are almost identical and do not differ on key issues.[51]The first doctor to examine O following his arrival at hospital was Dr Lisa Keillor. She noted the presence of ‘a right sided occipito-parietal haematoma, approximately 5cm in diameter, soft, with a spongy centre, raising the possibility of an underlying skull fracture’. Following a discussion with the consultant in charge, Dr Lewins, it was agreed that O should have a CT scan of his skull and brain in accordance with NICE head injury guidelines and that he be referred to Dr Kalepu, a locum consultant paediatrician who was on call.[52]The CT scan identified the presence of a skull fracture underlying the area of haematoma. Dr Keillor informed the parents and advised them that a more in-depth assessment was needed and that it was necessary to involve Children’s Social Care. She made a referral to the duty social worker at around 19.10pm.[53]At around 20.00pm O was examined by Dr Kalepu. She noted that O had a 4cm x 4cm swelling in the right parietal region with a central boggy area and a 3cm x 2.5cm boggy swelling in the left parietal region.[54]Radiological investigation established that O had sustained bilateral parietal skull fractures. A skeletal survey did not identify any other fractures.[55]Ophthalmological examination was undertaken on 29th May. This did not reveal any evidence of retinal haemorrhages.

The opinion of the treating clinicians

[56]Dr Kalepu sought advice from the on-call neurosurgical registrar at the Queen’s Medical Centre in Nottingham, Dr Kulkarni. In a letter dated 25th July, Dr Kulkarni advises that, ‘Though the child had had a fall, his Glasgow Coma Scale was 15/15 and he was alert and playful. He had no neurological deficits at the time of referral, and so I advised for the child to be under neuro-observations. There was no need for any acute neurosurgical intervention. The CT scan did not show any evidence of brain injury. However there was evidence of scalp haematoma on the right side and also evidence of underlying bi-parietal fracture – consistent with trauma. There was a very thin right-sided subdural haematoma underneath the fracture which was not causing any mass effect. There was a query about NAI (non-accidental injury) from the referring team. At no point, was it suggested by me, that this injury was non-accidental in nature.’[57]Dr Kulkarni has given evidence at this hearing. He confirmed the opinion set out in his letter. He was very clear that he did not express any opinion on whether the injuries were non-accidental injuries. He said that whether or not these injuries are non-accidental injuries was ‘beyond our purview’.[58]Dr Kalepu’s conclusion was unequivocal. In a written report dated 30th May she opines that, ‘The changing history from the father and the history of fall from a 2½ feet high bed onto a carpeted floor is not compatible with the swelling identified with an underlying bilateral parietal fractures… The finding on the CT scan with bilateral parietal skull fractures and associated small subdural haemorrhage on the right is not compatible with the history of falling off a bed onto a carpeted floor. As the impact of such a fall from a small height would not be enough to sustain bilateral skull fractures in an immobile infant with normal bone density. Though he has low vitamin D levels, this does not cause bilateral skull fractures in this child, because the bone density is normal. Hence it is consistent with non-accidental injury.’[59]In a subsequent report dated 14th June 2017, Dr Kalepu remained equally unequivocal. She says, ‘I would like to clarify that I have not asserted that the injuries were caused by one event in my medical report. The history given by father of O falling off the bed on to carpeted floor was inconsistent with the bilateral parietal skull fractures. To sustain bilateral skull fractures it would need a significant amount of force. A fall on one side of the head would not cause skull fracture on the opposite side. Although a call would involve more than one impact, the force on the second impact during a fall would not be enough to cause a skull fracture. The skeletal survey did not show any other bone injuries other than the bilateral parietal skull fractures.’[60]The expert medical evidence does not support the robust and unequivocal conclusions arrived at by Dr Kalepu.

Expert medical evidence

[61]During the case management stage of these proceedings I gave the parties permission to instruct two expert witnesses, Dr Neil Stoodley, a Consultant Neuroradiologist at Southmead Hospital, Bristol, and Dr Kathryn Ward, a Consultant Paediatrician at Airdale General Hospital. Both are very experienced and highly respected medical expert witnesses who frequently provide expert opinions to the Family Court. In her report, Dr Ward recommended that the parties should obtain an expert paediatric radiological review of O’s skeletal survey. Permission was granted to the parties to instruct Dr Caren Landes, a Consultant Paediatric Radiologist at Alder Hey Children’s NHS Foundation Trust.

Dr Stoodley

[62]In his written report, Dr Stoodley sets out his conclusions in these terms:
‘O’s scan shows that he has sustained bilateral parietal skull fractures. The presence of a skull fracture is evidence that there has been an impact injury to the head of sufficient severity to lead to the fracture. The commonest type of skull fracture seen following accidental or nonaccidental impact head injury is a simple linear parietal skull fracture. More complex fractures such as those that are diastatic (widened) or depressed are seen more commonly in the context of non-accidental head injury but it does not follow that simple fractures are due to accidental mechanisms and more complex fractures non-accidental; the appearance of the fracture is more likely to depend on the degree of force causing it than whether it was accidental or non-accidental. Whilst the bilateral nature of the fractures might be due to separate impact events to either side of the head (or an alternative mechanism such as a crush injury), it is possible (although unusual) for a single impact event to give rise to bilateral fractures. The absolute degree of force required to produce a skull fracture in infants and children is not known and indeed we do not know the true incidence of skull fractures following impact head trauma in children as not all children who have sustained such injuries have skull x-rays or scans. Everyday clinical experience would however suggest that trivial head trauma is unlikely to lead to skull fractures. However, domestic type impact injuries, such as a possible fall from a bed as described, do sometimes result in skull fractures. My understanding of O’s developmental stage is such that he would not have been able to have manoeuvred himself into a position whereby he could have caused the fracture himself. It follows from the above therefore that the causative event is likely to have occurred whilst O was in the care of another individual.’
[63]Dr Stoodley said that in his view a fall from the bed as described is a possible cause for the fractures, ‘albeit unusual to see such injuries (particularly bilateral skull fractures) as a result of such domestic type trauma’. He agreed that it is possible for a single impact event to give rise to bilateral skull fractures. Though unusual, ‘such an outcome is a recognised outcome of a single impact event’. Dr Stoodley is unable to exclude the explanation given by the father as a reasonable, as opposed to a fanciful or merely theoretical, possible explanation.[64]In his oral evidence Dr Stoodley said that the causative event is likely to have occurred during a window beginning 7 to 10 days prior to the date of the CT scan. In other words, the causative event did not necessarily occur on the day of O’s admission to hospital. It could have occurred earlier.[65]Dr Stoodley considers the father’s explanation to be a reasonable explanation though in his opinion for that event to cause bilateral parietal fractures would be very unusual. He conceded that doctors do not know all the answers. He referred to an unpublished study undertaken by the biomechanical laboratory at Cardiff University. The study, undertaken using computer modelling, suggests that impact at certain points on the head can create forces within the skull which lead to bilateral parietal fractures.[66]If the incident described by the father did cause these fractures, Dr Stoodley was asked whether he was able to offer an opinion upon the likely point of impact? Dr Stoodley said that in his opinion the most likely point of impact is the top of O’s head.[67]If the injuries were not caused by the incident described by the father alternative explanations could be a crush injury or that the fractures were caused by two separate impacts. No such incidents are described by the parents.[68]As I noted earlier, it appears to be the parents’ case that what were described to them as ‘subtle fractures’ were no fractures at all. Dr Stoodley was in no doubt that the imaging clearly showed the presence of bilateral parietal skull fractures. The parents’ alternative case appears to be that that if O has suffered skull fractures then they are birth-related. On this issue, too, Dr Stoodley was in no doubt that these fractures are not birth-related.

Dr Ward

[69]Dr Ward’s report is thorough and detailed. Having reviewed the evidence, including Dr Stoodley’s report, and having referred extensively to relevant research literature, Dr Ward opines that, ‘A history of a fall is common in a child presenting with a skull fracture. In this case although there was some initial variation in the history offered (falling off the bed versus being dropped by the father) it was consistently stated that the child fell in the course of changing a nappy. The father stated on one occasion that he dropped the baby but at other times in his statement he said that the child who was on the edge of the bed fell to the floor when he bent down to get a nappy from the floor. The preponderance of literature on childhood falls indicate that short falls rarely result in serious or life-threatening head injuries despite their frequency. Each credible study supports the conclusion that severe head injuries reported to be accidental unless related to a moving vehicle accident or fall from a very significant height are very likely to be the result of abuse particularly if the injuries are ascribed to falls from short heights that occur at home unwitnessed by objective observers. However, fractures may rarely result from short falls onto carpeted floors.’[70]Dr Ward later goes on to say that, ‘The clinical findings in O suggested impact more than one would expect as a result of a simple fall onto a carpeted floor. Nevertheless there are examples of fractures resulting from low level falls and the scenario of bilateral skull fractures has been described as a result of a single impact.’[71]Research suggests only 1 to 2% of falls from a low height, such as falling off a bed, cause skull fractures. The figure is even lower for such an event causing bilateral parietal skull fractures. For the incident described by the father to have caused these injuries would, therefore, be a highly unusual occurrence. However, as the research indicates, such events do occur. The father’s explanation is, therefore, plausible.[72]As I have noted, Dr Stoodley’s opinion is that the window within which these fractures were sustained is during the period between the date of the CT scan and a date between 7 and 10 days before that scan was undertaken. Dr Ward’s evidence on timing is that, ‘It is not possible to accurately date skull fractures on the basis of the radiological appearance of the fractures; skull fractures do not go through the changes associated with callus formation seen in long bone and rib fractures. If one accepts that the soft tissue swelling to the scalp was associated with the fractures this would suggest that the fractures are recent. Soft tissue scalp swelling associated with fractures usually occurs over a period of hours or days after the injury and resolves within around 7-10 days. Therefore in this case it is likely that the fractures occurred no more than around 10 days before presentation. However there is no scientific basis for dating fractures on the basis of scalp swelling and it is not possible to use this as an indicator as to whether the two fractures occurred simultaneously or at different times within the timeframe.’[73]Dr Ward highlighted a number of positive ‘red flags’ that support the father’s explanation. O had no other injuries. On admission to hospital he appeared to be a healthy, well-cared for baby who was developmentally normal. There were no intra-cranial injuries. There were no retinal haemorrhages. There was no evidence of a shaking injury. There were no rib fractures and no metaphyseal fractures. To Dr Ward’s list it would also be appropriate to add that if the father’s account is true then he sought medical advice promptly and acted immediately on the advice received, taking O to hospital straight away.[74]Dr Ward sets out the results of the various tests carried out when O was in hospital. She notes that at the relevant time O had a biochemical deficiency of vitamin D. She says:
‘Biochemical vitamin D deficiency or insufficiency in the absence of radiological features of rickets has not been found to be associated with increased risk of fractures. However biochemical vitamin D deficiency in the presence of radiological changes of rickets is considered to be associated with an increased risk of fracture therefore I would recommend expert paediatric radiological review of O’s skeletal survey.’
[75]It was that recommendation that led to the court giving permission to the parties jointly to instruct Dr Caren Landes.

Dr Landes

[76]As I have just noted, O was found to have a Vitamin D deficiency. That raises a question about the possibility of him suffering from an underlying condition leading to easy fracture. Having examined the imaging, Dr Landes says that, the bone density appears radiographically normal and there are no features to suggest an underlying bone fragility disorder. In particular, Dr Landes is clear that there are no radiological features of rickets or of osteogenesis imperfecta.[77]Agreeing with Dr Stoodley, Dr Landes goes on to say that, ‘these fractures may have occurred as a result of a fall from the height of a bed. I agree that it is also possible that these fractures may have occurred as a result of one or more than one other event. It is not possible to determine, from the imaging alone, which of these possible scenarios is the more likely. In the absence of a clear and satisfactory account of the mechanism of trauma or a medical explanation for the fracture, the most likely explanation for the presence of bilateral skull fractures in an infant of this age is non accidental injury,’[78]Dr Landes was not required to give oral evidence.

Social work evidence

[79]The social worker initially allocated to this case was Katie Ablett. In a statement prepared at the time these proceedings were issued, Ms Ablett makes the point that, ‘It is important to say that the mother, along with the father, appear to have sought appropriate medical attention for O and have consented to examinations and tests. O was also presented as comfortable in the care of the mother who has [confidently] met his basic care needs whilst on the ward.’[80]Miss Ablett goes on to say that the father, ‘maintains that O slipped from the bed onto the floor whilst changing his nappy causing injuries. He reports that this was an accident and appropriately sought medical attention. The father states that he has not changed his explanation of what happened, rather the hospital staff have misinterpreted what he has said. The father is aware of the conclusions of the Child Protection Medical but dismisses them stating that these are incorrect. It is noteworthy that he had to be removed from the hospital ward by security due to refusing to leave when requested.’[81]That initial parental co-operation proved to be short-lived. Gideon Zeti is the allocated social worker. In a statement dated 30th April 2018 he makes it clear that the local authority and other professionals have found it difficult if not impossible to obtain the parents’ trust and co-operation. A chronology set out in Mr Zeti’s statement highlights the difficulties. So far as is relevant, the chronology records that:
‘06.06.17 Police attended the mother’s address to take evidential photographs for investigation; The mother initially refuses entry to the home. She speaks to the father on the phone and then allows access. 13.06.17 O taken to Royal Derby Hospital for follow up chest x-ray. The mother presents letters from her and the father stating they do not consent to this procedure. 14.06.17 The parents refused to sign Supervised Contact Agreement. 20.06.17 The parents refuse to give their consent for a Looked After Child’s Medical. 03.08.17 The father fails to attend a Police interview 21.08.17 The mother refuses to meet with Social Worker for planned assessment session. 24.08.17 The father failed to attend planned assessment session with Social Worker. 29.08.17 The father fails to attend Police interview. 01.09.17 The mother fails to attend planned assessment session with Social Worker. 06.09.17 Derbyshire Police speak to the father, who refuses to be interviewed voluntarily – warrant issued for his arrest… 08.09.17 Derbyshire Police travel to Liverpool to interview the father. The father stated at the start of the interview “I choose not to answer that question” to the majority of other questions put to him… 09.09.17 Derbyshire Police visit the home of the mother with the view of taking a statement. The mother refused to cooperate and when asked why, she shrugged her shoulders. Despite further encouragement, she still refuses and Police leave. 18.09.17 The parents refuse to give Medical Consent for O to be taken to the GP by Foster Carer… 16.10.17 The mother informs Social Worker that she will be moving home but refuses to give an address… 27.04.18 The father in his words stated “we have made a decision that we are no longer going to participate in these proceedings. We are not going to sit and listen to a corrupt and crap judge who rubber stamps everything the Local Authority wants”…’
[82]Mr Zeti says that the parents ‘have simply refused to cooperate’. They have been ‘argumentative at every opportunity’. He notes that the father, ‘has raised concerns in strong language, stating that the local authority had kidnapped his child, were breaching their human rights, and are acting with malice towards him in order to persecute him and unlawfully withhold his child from him’. He says that ‘parents have rather lost focus on O (sic) needs and they appear to be highly motivated by point scoring against anyone representing authority, including social care, police and court’. Mr Zeti goes on to say that he has ‘attempted to speak to the mother alone during a contact and pleaded with her, yet she refused to speak and ignored the Social Workers (sic) presence’.[83]Notwithstanding the parents’ obduracy and lack of engagement, Mr Zeti speaks very positively about the parents’ relationship with O. He says that, ‘The parents have attended contact with O regularly, particularly mother who has come to all contacts offered. Supervised contact between O and parents is of good quality and parents come early to all sessions. The contact between O and mother is of very good quality. She is organised, child focused and attentive to O’s needs. The mother also brings appropriate food and toys and spends contact interacting fully with O. It is clear they retain a bond and that she adores her son. The father comes to fewer contacts due to work commitments and travel. However, he also demonstrates a high level of child focus and positive interaction with O… While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met.’

The law

[84]Before I turn to my evaluation of the evidence I first remind myself of the relevant principles of law that must inform that evaluation. The following points can be distilled from the authorities and are relevant in this case:(i) It is the local authority which seeks findings that O’s injuries are non-accidental injuries. The burden of proof rests upon the local authority.(ii) The standard of proof is the civil standard; that is the simple balance of probabilities – Baroness Hale, Re B (Children)(Fc) [2008] UKHL 35 at §70.(iii) That same standard of proof must be applied in endeavouring to identify the perpetrator – Baroness Hale, Re S-B Children [2009] UKSC 17 at §34.(iv) Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation – Baker J, Re L and M (Children) [2013] EWHC 1569 (Fam).(v) Whilst the court should not hesitate to make a finding identifying the perpetrator of an injury if the evidence is sufficient to support such a finding, the court is not obliged to make a finding identifying the perpetrator at all costs – Wall LJ, Re D (Care Proceedings: Preliminary Hearings) [2009] 2 FLR 668 at §12.(vi) If the court is not able to identify the perpetrator, on the balance of probabilities, then the court must consider who falls within the pool of possible perpetrators. The approach of the court should be to ask itself ‘Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?’ – Butler-Sloss P, North Yorkshire County Council v SA [2003] EWCA Civ 839 at §26.(vii) The approach to expert evidence was set out in Re U (Serious Injury: Standard of Proof): Re B [2004] 2 FLR 263 at §23. Butler-Sloss P said that ‘…there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following… (i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal. (ii) Recurrence is not in itself probative. (iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause. (iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.’ (v) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.’(viii) The medical evidence does not stand alone. The court is under a duty to evaluate the totality of the evidence – Butler-Sloss P, Re T (Abuse: Standard of Proof) [2004] 2 FLR 838 at §33 and Bracewell J, Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200 at §24.(ix) The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability – Baker J, Re L and M (Children) [2013] EWHC 1569 (Fam).(x) The failure of a parent to give oral evidence entitles the court to draw adverse inferences – Johnson J, Re O (Care Proceedings: Evidence) [2003] EWHC 2011 (Fam). Johnson J said, ‘13. …As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true. 14. In cases concerning children there is in my judgment no room for the No Comment interview often found in criminal cases. The failure of a parent to give evidence in proceedings concerning their children is in my experience rare to the point of being unique. I can recall one case where I was told that a parent would not be giving evidence but I adjourned the case overnight and the parent in fact gave evidence the following day. 15. Although I recognise that care proceedings can understandably be perceived as adversarial by parents who are at risk of losing their children the objective is not to punish the parent but to seek to achieve what is best for the children.’(xi) The term ‘non-accidental injury’ is a ‘catch-all’ for everything that is not an accident. The true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong – Ryder LJ, Re S (A Child) [2014] EWCA Civ 25 at §19.(xii) It is common for witnesses to tell lies. The court must be careful to bear in mind that a witness may lie for many reasons. In determining the facts, a court should have regard to the guidance given in R v Lucas (Ruth) [1981] QB 720 and R v Middleton [2000] TLR 203 that a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B – Charles J, [A County Council v K, D and L [2005] 1 FLR 851 at §28.

Discussion

[85]The findings sought by the local authority are that:
‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father. 2. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including: a. Soft tissue scalp swelling in both parietal regions which is more extensive on the right. b. Bilateral parietal lucencies consistent with linear fractures in both parietal bones. c. Very small collection of extra-axial acute blood on the right-side swelling. 3. The assaults and injuries were inflicted by: a. The Mother, or b. The Father, or c. The Mother and the Father, or d. The Mother and/or the Father 4. The Mother has failed to protect O in so far as if she was not responsible for the assault or assaults to O, she failed to protect him from physical abuse by the Father. 5. The Father has failed to protect O in so far as if he was not responsible for the assault or assaults to O, he failed to protect him from physical abuse by the Mother. 6. O has been exposed to physical neglect within a 10 day period leading up to the time of the scan on 27th May 2017.’
[86]Before I consider each of those proposed findings, it is necessary to say something about the way the parents have approached these proceedings. At the hearing on 2nd June 2017, at which the court made an interim care order, the parents, were legally represented. Since that hearing (and, as it would appear, as a result of the outcome of that hearing) the parents have represented themselves. That was an unwise decision. Worse was to come. At the end of the hearing on 13th March 2018 the father indicated that the parents did not intend to take any further part in the court proceedings. The justification for that decision is unclear though according to the ‘Grounds of Claim’ prepared in support of the parents’ application for judicial review it would seem probable that their decision is based upon their conviction that these proceedings (including my oversight of the proceedings as the allocated case management judge) have been unfair and that O has been unlawfully removed from their care.[87]Notwithstanding my own efforts and those of O’s social worker, the parents now steadfastly refuse to engage in these proceedings. I echo the sentiment of the social worker, Gideon Zeti, who in his statement dated 30th April 2018 said, ‘While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met’[88]The parents’ failure to engage defies all logic. The effect of their failure to engage could prove to be catastrophic for them and for the son whom they clearly love very much indeed. I share Mr Zeti’s sense of sadness.[89]I turn now to the findings sought by the local authority. It is appropriate to deal with the first and second findings together:
‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father. 2. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including: a. Soft tissue scalp swelling in both parietal regions which is more extensive on the right. b. Bilateral parietal lucencies consistent with linear fractures in both parietal bones. c. Very small collection of extra-axial acute blood on the right-side swelling.’
[90]These two paragraphs require the court to answer two questions, First, has O sustained any injuries? Second, if he has sustained injuries, are those injuries accidental or non-accidental in origin? In using the expression ‘non-accidental injury’ I have well in mind the cautionary words of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 at §19 concerning the use of that expression, to which I referred earlier.[91]Has O suffered an injury? More particularly, has he sustained bilateral parietal fractures? In light of the medical evidence referred to earlier in this judgment the answer may seem to be obvious. However, it appears to be the parents’ primary position that O has not sustained any skull fractures.[92]Two of the treating clinicians and two of the medical experts have given oral evidence at this hearing. Notwithstanding the absence of the parents, that evidence has been appropriately tested in cross-examination by the solicitor for the child. In my judgment, the medical evidence makes it plain that O has indeed sustained bilateral parietal skull fractures with associated swelling to his scalp and a very small collection of extra-axial acute blood beneath the right-side swelling. I am satisfied on the simple balance of probabilities that that is indeed the case.[93]The parents’ secondary position is that the skull fractures are birth-related. Once again, there is nothing in the medical evidence before me to support a finding that these injuries are birth-related. On the contrary, Dr Stoodley is very clear that they are not birth-related. I am satisfied on the simple balance of probabilities that these injuries are not birth-related.[94]Either O’s injuries have been caused accidentally or they are non-accidental. The parents’ position appears to be that if the court does not accept their primary and secondary positions (i.e. that O has not sustained bilateral skull fractures or if he has then they are birth-related) then the only other explanation is that they were caused when he accidentally fell onto the floor on 27th May 2017. The mother says that she was downstairs when this incident occurred. She did not witness it. The only witness is the father.[95]Were the injuries caused as a result of an accident? There are a number of factors that support the parents’ contention that O’s injuries are the result of the low-level fall described by the father. The positive factors which appear to make the parents’ explanation credible are that,(i) There is research evidence that between 1% and 2% of falls from a low height cause skull fractures. That evidence also suggests that low-level falls have on occasion caused bilateral skull fractures, though the incidence of bilateral fractures is lower than the figure for single fractures. Dr Stoodley and Dr Ward are both agreed that although the parents’ explanation is an unlikely mechanism for the causation of O’s injuries, their explanation provides a possible and not merely a fanciful explanation.(ii) A skeletal survey did not disclose any other fractures.(iii) At the time of O’s admission to hospital he was noted to be well-cared for, well-nourished, putting on weight at an adequate rate (he was on the 25th to 50th centile) and developmentally normal. Save in respect of the head injuries, there was nothing in O’s presentation that gave cause for concern.(iv) Both in hospital and subsequently during contact, both parents have been observed to be loving, caring and capable of meeting O’s needs. It is clear that O is the apple of his parents’ eyes.(v) Whatever may have happened on 27th May and whether or not they did, in fact, call 999, it is clear that the parents contacted the hospital for advice, that they did so promptly and that they acted on the advice they were given by taking O to hospital immediately.[96]Against those points, there are other issues which raise concerns about the parents’ explanation and their reliability as witnesses.(i) The father’s account of O falling onto the floor is not consistent. When he telephoned the hospital he told Staff Nurse Young that he had dropped O. When he gave a history to Dr Keillor, initially he said that O had fallen off the bed. Given that O was a wholly immobile child, that would appear to be an unlikely explanation. Later in that same interview the father said to Dr Keillor ‘actually I dropped him’. Later, when giving a history to Dr Kalepu, he said that O had fallen from the bed onto the floor.(ii) The parents say that they called 999 but the East Midlands Ambulance Service has no record of the call. Production of the parents’ mobile phone records may have confirmed their account. Despite being ordered to do so the parents have failed to produce those records.(iii) The parents were not wholly cooperative at the hospital. They were asked to give their consent to a skeletal survey being undertaken. Initially they refused. They later consented.(iv) The father was not open with the police when interviewed. During his interview the father repeatedly said, ‘I choose not to answer that question at the moment’.(v) Notwithstanding their entitlement to non—means and non-merits tested legal aid (i.e. they were entitled to free legal aid) the parents chose to act as litigants in person, a decision that was irrational and counter-productive in equal measure.(vi) I have earlier expressed concern that the mother’s decision to act as a litigant in person was a decision imposed upon her by the father and not a decision that was freely made.(vii) In issuing proceedings for judicial review and in taking, copying and threatening to publish confidential information which he had obtained in circumstances which bordered on the dishonest, the father demonstrated that he is not focussed on the needs of his child. This impacts on my assessment of his credibility.(viii) The expert medical evidence is to the effect that there is a window of time within which these injuries may have occurred and that window began 7 to 10 days before the CT scan was carried out on 27th May. Dr Ward’s evidence is that the swelling to the scalp ‘usually occurs over a period of hours or days after the injury’. The parents have not provided any account of the events of the days leading up to O’s admission to hospital.[97]In addition to all of the factors outlined in the last two paragraphs is the fact that the parents’ have chosen not to give oral evidence at this hearing. Although the burden of proof rests upon the local authority and although the parents do not have to prove (whether on the simple balance of probability or otherwise) that their account of a low-level fall is the causative event, their failure to give evidence means that their credibility simply cannot be tested.[98]As Baker J aid in Re L and M (Children) [2013] EWHC 1569 (Fam), the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. In this case the court has been denied that opportunity. What is the consequence of that failure?[99]In Re O (Care Proceedings: Evidence) [2003] EWHC 2011 (Fam). Johnson J was very clear. He said, that ‘As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.’[100]I have come to the conclusion that I am satisfied on the simple balance of probabilities that O’s injuries are non-accidental injuries. The expression non-accidental injuries covers a spectrum from the negligence to the deliberate infliction of injuries. Although the parents have not given evidence at this hearing, the totality of the evidence before me leads me to the conclusion that I am satisfied that these injuries are the result of an incident that falls at the lower end of that spectrum.[101]I turn next to the third finding sought by the local authority:
‘3. The assaults and injuries were inflicted by: a. The Mother, or b. The Father, or c. The Mother and the Father, or d. The Mother and/or the Father’
[102]The window of time within which these injuries were sustained commences 7 to 10 days before the CT scan. The parents do not live together. The mother is O’s primary carer. For most of the time during that window O was in her sole care. The father only had care of the child on the days when he visited the mother from his home in Liverpool. Much of that care will have been in the presence of the mother, though it is clear that during those short contact periods there were times when O was in the father’s sole care. The father describes such an occasion on 27th May 2017.[103]I have come to the conclusion that it is not possible, on the simple balance of probabilities, to identify the perpetrator. The perpetrator is the mother or the father. The evidence, and not least the parents’ failure to give oral evidence, does not enable me to go further.[104]The next two findings sought by the local authority are that:
‘4. The Mother has failed to protect O in so far as if she was not responsible for the assault or assaults to O, she failed to protect him from physical abuse by the Father. 5. The Father has failed to protect O in so far as if he was not responsible for the assault or assaults to O, he failed to protect him from physical abuse by the Mother.’
[105]Save for the presenting injuries, there is no evidence to suggest that O was neglected whilst in the care of his parents and no evidence to alert either parent that the other may present a risk. In my judgment there is no evidence that would support a finding of failure to protect against the non-perpetrator.[106]Finally, the local authority seeks a finding that, ‘6. O has been exposed to physical neglect within a 10 day period leading up to the time of the scan on 27th May 2017.’[107]As I have already indicated, save for the presenting injuries, there is no evidence to suggest that O was neglected whilst in the care of his parents. Indeed, the evidence suggests that the very opposite is the case. The evidence does not support the finding sought by the local authority.

Conclusions

[108]I find that O’s injuries are non-accidental injuries caused by either the mother or the father. In making that finding I acknowledge that had the parents engaged with these proceedings, including giving evidence at this finding of fact hearing, and had they taken advantage of their entitlement to specialist legal representation provided at no cost to themselves, the outcome of this hearing could conceivably have been different. However, the court can only arrive at its conclusions on the basis of the evidence before it. I am satisfied that the decision I have arrived at is the correct decision on the basis of the totality of the evidence before me.

Postscript

[109]I handed this judgment down on the morning of 29th June. Both parents had been given notice of the hearing. Neither attended.[110]In light of the matters set out at §§22-25 there was concern that the parents may publish my order and judgment. I made an injunction ordering them not to do so.[111]During the early afternoon of 29th June the parents attended the local authority’s offices at Ashtree House to enquire about the outcome of the finding of fact hearing. Upon being informed of this I asked that the parents be invited to come to court so that I could explain the outcome of the finding of fact hearing to them in person and so that I could once again encourage them to engage in these proceedings. They agreed to come to court so long as the Deputy Head of Service attended with them. The Deputy Head of Service agreed.[112]Upon being informed that the parents were in the court building I asked that they be invited to come into court so that I could speak to them. They refused. They indicated that they did not wish to attend before the judge but simply wanted a copy of the judgment.[113]The parents had a conversation with counsel for the local authority (Miss Roberts) and the solicitor for the child (Mr Johal). Before giving them parents a copy of the judgment Miss Roberts and Mr Johal advised them that the court had made an injunction preventing them from publicising the judgment. The father stated that the parents intended to publicise the judgment notwithstanding any injunction. The mother agreed. During the course of the conversation the father stated that he did not recognise the court’s jurisdiction and welcomed the threat of imprisonment for breach of the injunction.[114]Upon being informed of the parents’ position, and with the agreement of the local authority and the guardian, I indicated that I would publish an anonymised version of the judgment.[115]Lest the parents should carry out their threat to seek publicity, on Monday 2nd July I amended the injunction in order to prohibit the parents from identifying the child

Cited in 1 later judgment