Bristol City Council v A Mother & Ors [2024] EWFC 333

[2024] EWFC 333

Case No BS22C50357

IN THE FAMILY COURT

Venue SITTING AT BRISTOL CIVIL JUSTICE CENTRE, Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GR

Date 20/11/2024

Before

THE HONOURABLE MRS JUSTICE JUDD

Between

Bristol City CouncilApplicant

Steven Howard and Lily Cooke (instructed by Bristol City Council Legal Services) for Applicant

Jonathan Sampson KC and Sarah Pope (instructed by Battrick Clark Solicitors) for 1 st Respondent

Sara Lewis KC and Charlotte Pitts (instructed by Barcan & Kirby Solicitors) for 2 nd Respondent

Alice Darian and Charlotte Davies (instructed by Lyons Davidson Solicitors) for 3 rd-5 th Respondents

Hearing Hearing dates: 14 th October to 7 th November 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 20 th November 2024 by circulation to the parties or their representatives by e-mail.

.............................

THE HONOURABLE MRS JUSTICE JUDD

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

Introduction

[1]These are public law proceedings with respect to three children, J (3), K (2) and L (1). They are all the children of the 1st and 2nd Respondents to the application, the mother and father.

[2]Proceedings were brought with respect to J and K in November 2022 after K was taken to hospital by the mother who thought that her face was bruised. K was discovered to have large subdural effusions overlying both sides of her brain and thirteen rib fractures of at least two different ages. In June 2023 Her Honour Judge Barlow concluded that the injuries were inflicted by the mother and that the father had not been aware of her doing so.

[3]Shortly after the fact finding hearing, L was born in mid 2023. She remained with her mother in hospital (supervised) for five days, and on 31st July was placed with the father in a residential placement as part of an assessment of his ability to care for her (and the other children) in the long term. There was 1:1 supervision of father and L for all basic care tasks between 31st July and 11th August. Between 11th and 14th August there were spot checks following a two week review. On 14th August there was increased supervision following what were said to be concerns about L’s nappy rash and issues with sterilizing bottles. At all times there was CCTV in the bedroom that father and baby shared, and not in the bathroom.

[4]L was taken for a routine medical on 23rd August attended by the mother, father, social worker and worker from a Residential Family Centre. It was discovered that she appeared to have marks on her abdomen. A child protection medical was organised for the following day, conducted by Dr. Tom Allport. He found that L had multiple marks to her abdomen, flanks and back and single marks on her ear, wrist and thigh. He considered that many of these had a curvilinear shape, and most appeared to be healing abrasions. He believed the curved marks were nail marks of an adult and were suggestive of inflicted injuries.

[5]As a result of these findings, further investigations were conducted. They revealed that she had fractures to her left radius, left lower tibia, 2nd right metatarsal, and 11th right rib. The right rib fracture was not thought to date back as far as birth although that could not be excluded in relation to the other fractures.

[6]These proceedings were already ongoing. As a result of the timing of the injuries to L, which would seem to exclude the mother as a perpetrator if they were inflicted, an application was made for the findings in relation to K to be re-considered. I concluded that the new evidence was such as to provide solid grounds for reconsideration and this hearing was listed as a fact finding hearing in relation to the alleged injuries in respect of both children. That has now widened to consideration of bruising sustained by J when he was nine months old. Findings sought by the local authority

[7]The local authority seeks the following findings from the court. First, it is alleged that K sustained 13 rib fractures of at least two different ages, the first three most likely occurring in the first two weeks of her life, and the remaining 10 occurring between about mid July and late October 2022. Three fractures which occurred close to the spine must have been caused by forced compression of the spine into the chest, and those which occurred in the ribs at the posterior arc by a side to side squeezing mechanism. Second, K is alleged to have sustained head injuries, manifest by large subdural effusions overlying both cerebral convexities causing mass effect on the brain substance, and a shallow collection in the posterior fossa. These are said to have been caused by abusive shaking, in other words either intentionally, recklessly or negligently. The local authority states that these injuries were inflicted by one or other of the parents and that each of them knows more about the circumstances than they are prepared to admit. It would have been obvious to the perpetrator that K had been hurt, and to the other parent if he or she was in the house. Medical attention should have been sought for her.

[8]So far as L is concerned, the local authority alleges that she suffered from multiple skin injuries as observed on 23rd August 2023, and four fractures including a displaced fracture of the metaphysis at the lower end of the left radius, a fracture of the right 11th rib close to the backbone, a displaced metaphyseal fracture of the lower left shin bone and a fracture of the 2nd right metatarsal bone. These fractures, it is alleged, were inflicted by the use of excessive force and not caused in the birth process. The rib fracture was up to about 2 weeks old at the time of the x-ray on 24th August 2023, the radius and shin bone fractures were at least 3 to 4 days old on 24th August but could date back to birth, and the metatarsal fracture could have occurred at any time.

[9]The local authority pleads that the mechanism of the fractures were pulling and/or forceful twisting, bending, or, so far as the rib is concerned, squeezing. Alternatively the rib and limb fractures, but not the toe, were caused by shaking. It is alleged that the perpetrator was the father and that, as well as inflicting the injuries, he failed to seek medical attention for L.

[10]Finally the local authority alleges that the children are at risk of suffering significant harm as a result of domestic abuse between the parents. They point to three specific incidents, including two where the mother slapped the father, another where the father grabbed the mother, pushed and punched her, and a third where the father pushed the mother up against a wall and threatened her with a hammer. Findings sought by the Guardian

[11]In addition to the findings sought by the local authority, the Guardian seeks findings as to bruising that the treating clinicians documented when K was admitted to hospital on 23rd November 2022. The bruises as originally pleaded are(a) a triangular bruise on the corner of the left upper eyelid,

(b) a bruise over the lateral aspect of the left cheek,

(d) two possible 6mm bruises below the left nipple and

(e) a 20mm diagonal linear bruise on the left side of the forehead.

[12]The mother accepts that the threshold criteria are met in relation to all three children. She accepts all the injuries as pleaded by the local authority and Guardian, and the mechanism and timing. She denies being responsible for any of the injuries to K or being aware that they existed before diagnosis. She denies concealing information from the court about K, and indeed points out that she sought medical assistance when she saw bruising, which she invites the court to find were also inflicted. The mother alleges that all the injuries to K and to L were inflicted by the father, save that she attributed the 20mm bruise to an occasion when J hit K with a rattle

[13]The mother also accepts that the relationship between herself and the father is abusive. She accepts having slapped him but says that she did so after he had been deeply demeaning to her in front of others. She alleges that the father has been physically and sexually abusive to her, and controlling. In a statement dated 14th October 2024 she alleges that he shouted at her, made fun of her, and intimidated her. He told her that wishing to use contraception was disrespectful to him. She stated that he wanted sex all the time and forced himself on her at night when she was asleep and with no consideration as to how she felt. He was often rough and would hurt her. She pointed to three incidents of abuse, one where the father is alleged to have pushed a door into her stomach when she was pregnant with J, one occasion when he jumped on her causing her to fall after she slapped him, and another occasion when she alleges he punched her and pushed her. Finally she states that on another occasion he brandished a carving knife and cut himself with it.

[14]So far as J is concerned, she alleges that bruising he suffered in April 2022, which she originally believed to be accidental, was caused by the father.

[15]The father accepts the injuries in relation to K as well as the timings. Causation and mechanism were not accepted and those matters were explored in evidence. He denies having caused any injuries himself or being aware of them. The only awareness he had was that the mother was concerned about K’s head circumference, and he denies that K presented differently in any other way.

[16]The father also denies having inflicted any injuries on J.

[17]So far as L is concerned the father accepted the medical findings in relation to the presence of marks and fracturesbut denied he had harmed her in any way. All other matters were explored in evidence. The father said he had no opportunity to inflict injuries without being detected, his care of L having been the subject of constant supervision by CCTV or in person. He denied being aware that L had been injured at any point or that she was uncomfortable or distressed on a prolonged basis. He said that L was cared for in his absence at times by staff at the residential centre and drew the court’s attention to the concerns mother had expressed about a nurse or worker in the hospital after L was born.

[18]The father admitted that the relationship with the mother was domestically abusive but stated that he was a victim and had never laid a hand on her. He acknowledged that they continued to associate with each other but denied that he was coercive, threatening, physically, sexually or emotionally abusive. The hearing

[19]There was a voluminous amount of evidence in this case. I read the evidence in the bundles provided to me which included statements in the previous proceedings, statements in these proceedings, the medical evidence, police evidence including interviews with the parents, other police records, medical records and downloads from the parties’ devices. I am grateful to counsel for distilling the very large amount of digital evidence produced just before the hearing into a number of succinct bundles. I have also viewed the CCTV clips as suggested and provided to me.

[20]I have read the very lengthy transcripts of the parents’ evidence from the last hearing.

[21]I heard oral evidence from Professor Wright, Consultant Dermatologist, Dr. Olsen, Consultant Paediatric Radiologist, Dr. Cartlidge, Consultant Paediatrician, Dr. Eggers, Dr. Dare, Dr. Allport and Dr. Brannam, treating paediatricians, Bethany Pitt, Midwife, Yvonne Simone, Health Visitor, the Manager at a Residential Family Centre, the mother, father and the father’s brother. The law

[22]The summary of relevant principles set out by Baker J (as he then was) in Re JS

[2012] EWHC 1370

(Fam)still provides very helpful guidance for judges in fact finding hearings. The burden of proof lies with the body or individual who makes the allegation. The standard of proof that must be applied, both as to the making of a finding and as to the identification of a perpetrator is the balance of probability. Findings of fact must be based on evidence, including inferences that can be properly drawn from the evidence, and not on suspicion or speculation. Evidence must not be evaluated in separate compartments, and a judge must have regard to the relevance of each piece of evidence in the context of all the other evidence, and to exercise an overview of all of it before coming to conclusions.

[23]The role of the court and that of the experts on the other is distinct. As Charles J stated almost twenty years ago in see A County Council & K, D, & L

[2005] EWHC 144 (Fam)

;

[2005] 1 FLR 851

, it is the court that is in the position to weigh up expert evidence against the other evidence. There may be cases where a judge comes to a conclusion that is at variance from that of the experts.

[24]Factored into every case which concerns a disputed aetiology giving rise to significant harm must be consideration as to whether the cause is unknown (Re R (Care Proceedings: Causation)

[2011] EWHC 1715

; and R v Henderson and Others

[2010] EWCA Crim 1219

). The court must guard against the temptation to believe that it is always possible to identify the cause of injury to a child. In Re U Re B (Serious Injury: Standard of Proof);

[2004] EWCA Civ 567

, Butler- Sloss P explained at paragraph [23] that – 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.

[25]There is no ‘pseudo burden’ on a parent, or any obligation to prove the truth of an alternative case by way of a defence and the failure by that party to establish the alternative case on the balance of probabilities does not of itself prove the local authority’s case; Re X (No 3)

[2015] EWHC 3651 (Fam)

and Re Y (No 3)

[2016] EWHC 503 (Fam)

, Wolverhampton City Council v JA and Ors

[2017] EWFC 62

[26]The proper approach to the identification of a perpetrator has been set out in a number of recent authorities. In Re A (Children) (Pool of Perpetrators)

[2022] EWCA Civ 1348

King LJ, with reference to Re B (Children: Uncertain Perpetrator

[2019] EWCA Civ 575

[2019] 2 FLR 211

made clear that the proper approach to be applied remains as set out by Peter Jackson LJ:

“[49]….The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the 'pool'.”

[27]In that case King LJ further considered the approach to be taken with regards to the pool of perpetrators (and of possible relevance to this case, when findings of fact had been made against one parent as to perpetration of separate injuries):

“[42]The judge completed the first of the steps set out in paragraph [49] in that he properly identified the individuals on the list as "the only individuals who could have caused the injuries were the parents". Unfortunately, rather than then moving on to consider whether the mother or the father had, on the balance of probability, inflicted the earlier injuries, the judge approached it from the other end of the telescope, namely was it so improbable that the father had inflicted the older injuries that he should be excluded as a possible perpetrator? [43]The judge said at paragraph [91] that there is "no reliable direct evidence that would allow me to distinguish between the parents and come to a view about which of them may have inflicted these injuries". There are two difficulties with this approach: (i) in my view the proper approach is not to seek to distinguish as between the possible perpetrators in order to see which one inflicted the injuries. Rather the proper approach is to consider each individual separately in order to determine whether that individual can be found on the balance of probabilities, to be the perpetrator; further (ii) contrary to the judge's finding, there is in my view "reliable, direct evidence" capable of distinguishing the parents, namely the "direct" evidence (which had become a finding of fact) that the mother had inflicted the devastating life-threatening injuries to A on the day A was re-admitted to hospital. [44] In my judgment, the judge's approach to the submission that it was inherently improbable that there were two perpetrators was wrong. Had the judge considered the evidence against each parent individually rather than considering whether it so improbable that the father had inflicted the older injuries such that he should be excluded as a possible perpetrator, that submission would have found its proper place in the analysis.”

[28]In Re H (Children: Uncertain Perpetrator: Lies)

[2024] EWCA Civ 1261

Peter Jackson LJ said this at paragraphs [20-23]: “[20] Lies, where they are admitted or alleged, will form just one part of the overall evidence in family proceedings. The underlying purpose of the Lucas direction is to ensure that proven lies are assessed with a sense of proportion. In relation to welfare, it has been said that they should not be allowed to hijack the case (Re Y

[2013] EWCA Civ 1337

per Macur LJ at [7(4)]) and, as I put it in Re K (Children: Placement Orders)

[2020] EWCA (Civ) 1503

[2021] 2 FLR 275

, [2022] 4 WLR at [29], that the link between lies and welfare must be spelled out. [21] The same discipline applies to fact-finding. The court's view of a witness's overall credibility and reliability will naturally contribute to its evaluation of whether it can accept their evidence on the critical issues. If it concludes that lies have been told, it will consider what weight, if any, should be given to that aspect of the matter, after due consideration of any explanations that have been offered. That is part of the normal process of sifting and weighing the evidence, and explaining the result. The family courts encounter many forms of bad behaviour and they are used to assessing their true significance for the issue in hand. There is no special rule of evidence for lies. [22]I would therefore make one observation about the description of good practice in Re A, B and C. At [58(iii)] it is said that the court should seek to identify the basis on which it can be determined that the only explanation for the lie(s) is guilt. That draws on the slightly different jury direction in the Crown Court Compendium at 16-3, which requires that a lie is only capable of supporting other evidence against a defendant if the jury are sure that it was not told for a reason advanced by or on behalf of the defendant, or for some other reason arising from the evidence, which does not point to the defendant's guilt. [23]Relying on a literal reading of Re A, B and C, Mr Barnes further argues that the court is required to exclude a lie from consideration altogether in any case where it cannot be satisfied (to whatever standard) that the only explanation for it is to conceal guilt. I do not accept that submission. There will be some cases where the ultimate finding is so critically dependent on the assessment of a particular lie – cf. H-C at [99] – that the court may out of caution wish to direct itself in accordance with Re A, B and C. However, in the normal run of cases, a direction of that austerity is neither necessary nor appropriate. It will be sufficient for the judge to recall that the true significance of a lie must be carefully assessed, for all the well-known reasons noted by the judge in the present case. A general exclusionary rule, exclusively directed at lies, would be inconsistent with the duty on the court to consider all the evidence. Once it has done that, its conclusion in an individual case may be that the lie was told to conceal guilt, but that is a conclusion, not a test. Wherever a lie is found to be relevant to the fact-finding exercise for some other good reason, that element of the evidence should be factored in. Any other approach would hamper the court in carrying out its important assessment of credibility and its evaluation of particular issues of fact. There is no indication that judges are in fact approaching matters in a restrictive way, but the issue has arisen on this appeal and we have therefore addressed it”.

[29]It must also be borne in mind that discrepancies and inconsistencies in evidence can arise in ways that are not sinister or a result of bad faith, see Lancashire County Council v C, M, and F (Children: Fact Finding Hearing),

[2014] EWFC 3

: “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 and 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’ without any inference of bad faith. These words echo the words of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd

[2013] EWHC 3560

as to the fallibility of human recollection, and the limitations of memory”.

[30]I remind myself of the warning expressed inRe L-W (Children)

[2019] EWCA Civ 159

[2019] 2 FLR 278

against failure to protect becoming a ‘bolt on’ to the central issue of perpetration.

[31]Finally, this is a full rehearing of the proceedings before Her Honour Judge Barlow in which she made findings that the injuries to K were inflicted by the mother. The injuries in respect of K having been re-opened, the parties have agreed that the court’s task at this rehearing is to conduct a fresh investigation into the whole of the evidence in respect of those injuries (see Re CDT (A Child: Rehearing)

[2020] EWCA Civ 1316

[2020] 4 WLR 140

at [8] – [13]. The court is not bound by, nor should it take account of, the findings HHJ Barlow made about the credibility or reliability of witnesses, or in respect of the injuries themselves and who perpetrated them. All those issues stand to be considered afresh. The medical evidence

[32]In the previous proceedings there were medical reports from a Consultant Neuroradiologist, Dr. Kshitij Mankad, a Consultant Neurosurgeon, Dr. Pettorini, a Consultant Obstetrician, Dr. Wild, a Consultant Haematologist, Dr. Keenan, and a Consultant Paediatrician, Dr. Magid.

[33]The expert medical evidence for these proceedings was provided by Professor Andrew Wright, Consultant Dermatologist, Dr. Olsen, Consultant Paediatric Radiologist, and Dr. Cartlidge, Consultant Paediatrician. There was also a report from Dr. Saggar confirming that there was no evidence that either child suffers from any form of genetic condition predisposing them to fractures, bleeding or soft tissue injuries.

[34]In the bundle there are numerous witness statements from treating doctors who examined all three children at different times, which I have read.

[35]I heard oral evidence from four treating doctors, namely Dr. Dare who examined J on 23rd April 2022, Dr. Eggers (who was the treating paediatrician who assessed K on 23rd November 2022 and charted some visible injuries on a body map), and Dr. Brannam and Dr. Allport who carried out the examination of L on 23rd August 2023.

[36]Dr. Dare examined and took pictures of the bruises to J’s face, which, as a substantial injury in a non-mobile child (he was nine months old at the time), was concerning. She said that she struggled with the history of J suffering the bruise by falling onto the cot, which added to the fact that the mother did not come to hospital for the appointment and the lack of a history of crying, gave her some concern. On the other hand, she was faced with two carers who were giving her the same story (she managed to speak to the mother over the phone after several attempts) and the father brought J to the appointment.

[37]Dr Eggers assessed K when she was presented to hospital on 23rd November, and she completed a number of body maps demonstrating marks she found. She took over from Dr. Sennatt who had carried out an examination in the Accident and Emergency department. She documented a number of marks and bruises to K’s face and body, including a triangular shaped bruise on the left upper eyelid, a bruise over the left lateral cheek bone, and reddening of the skin over the nasal bridge above the right and left upper lids of the eye. She also found bruises on the right and left forehead. She said that these bruises were fading when she carried out another examination on 30th November which supported the diagnosis of bruising rather than another aetiology, including Mongolian Blue Spot (several of these markings were noted on K’s buttocks).

[38]Dr. Brannam and Dr. Allport both gave evidence about the marks they witnessed on L’s body on examination. Dr. Brannam was adamant that the marks did not look like flaky or dry skin, something with which Dr. Allport agreed. Dr. Brannam stated that the marks were in various stages of healing, and did not recall seeing bruising, albeit Dr. Allport believed that there was some induration under the skin, which included some bruising. Dr. Brannam was clear that she had documented the father told her that a scratch/mark on the back had been caused by him accidentally when he was changing her (rather than bathing her as is the explanation he has given to others and in the court). Dr. Allport stated that the father appeared to be unclear about when he had noticed the marks, suggesting that it could have been Wednesday or Thursday of the previous week (23rd August 2023 was a Wednesday). Dr. Olsen

[39]Dr. Olsen concluded that K had 13 rib fractures, which must have occurred on at least two separate dates. Three fractures occurred in the first two weeks of life, and ten occurred between mid July and October 2022 (one having been visible on an x-ray taken on 21st July 2022). He concluded that they occurred as a result of excessive force applied to her chest, in the absence of any other reasonable explanation. The bones appeared normal on x-ray although radiography will not reveal fragility unless it is sufficiently severe.

[40]Dr. Olsen concluded that L had suffered four fractures as are pleaded in the local authority threshold, namely a rib fracture, metaphyseal fractures of the left arm and shin, and a fracture to the right second metatarsal in the foot. The rib fracture was up to about 2 weeks old at the time of the x-ray on 24th August 2023, the radius and shin bone fractures were at least 3 to 4 days old on 24th August but could date back to birth. It was not possible to age the fracture to the foot.

[41]In his oral evidence Dr. Olsen was asked whether K’s fractures could have been caused by the father when he gave her massages. Dr. Olsen did not discount this, but stated that the forces involved must have been excessive. Although he believed that L’s metaphyseal and rib fractures could possibly have been caused by shaking, he did not believe that this could have been the case with the fracture to the toe which must have been done by bending, twisting or pulling. His oral evidence very much followed what he had said in his reports with respect to the presence and age of the fractures as well as the mechanism. Professor Wright

[42]In his written and oral evidence, Professor Wright advised that the marks seen on L did not appear to represent a recognisable dermatological condition and therefore by exclusion they were the result of pressure from an external source. A number of the linear marks could be scratch marks from fingernails. He considered it impossible for L to have inflicted such changes to her own skin even if it was very itchy. The appearance of the marks suggested different stages of healing indicating that they did not all appear at the same time but it is impossible to age lesions with certainty. The marks which were healing were likely to be more than 24 hours old. He believed markings would be immediately apparent to a care giver and did not accept that dry skin seen on L, which he said was a common finding, would have made it more fragile save that it could possibly leave skin vulnerable to having the surface rubbed off by tight fitting clothing or nappies. He did not think that dry skin would make L more vulnerable to sustaining the sort of injuries/marks as were apparent in this case. He did not accept that there is any link between skin conditions and vitamin D deficiency, medication taken or cannabis smoked in pregnancy. Dr. Cartlidge

[43]Dr. Cartlidge was not instructed in the previous proceedings concerning K and J, but in these proceedings he was instructed to advise the court in relation to the aetiology of the findings in both K and L. He also agreed to give opinion evidence about the bruise sustained by J in April 2022.

[44]In his written evidence, his conclusions were clear. So far as K was concerned he considered that the subdural collections were caused by an episode of shaking not less than two to three weeks before she was presented for medical attention in November 2022, but not dating back to birth. He agreed with Dr. Olsen as to the aetiology and mechanism for the rib fractures, and deferred to him on the timing. He found no evidence of an underlying medical condition that could predispose K to suffering fractures. He stated that fractures would have been caused by excessive force, causing significant pain initially, settling down thereafter but being exacerbated for a while by taking deep breaths. In common with the head injury, a perpetrator would have been aware that they had hurt K in some way (albeit not necessarily that she has suffered specific injuries) but it would have been harder for a non-perpetrator to be aware beyond K being fractious (which is not uncommon in babies). In his oral evidence he emphasized the sheer number of rib fractures – 10 of which were about the same age – and said that required a significant amount of force. Dr. Cartlidge was questioned in some detail by Ms Lewis KC on behalf of the father as to whether or not the subdural collection could date back from birth, but he did not shift from the opinion he expressed in his report. He said that the existence of rib fractures of two different ages did form part of the opinion he gave about the subdural collections, but that, even on its own he considered it unlikely that this was a chronic subdural arising out of a birth related acute bleed. In his view there were at least three separate applications of force to K (a point at which he differed from Dr. Olsen, who thought that one episode of shaking could cause rib and metaphyseal fractures).

[45]Dealing with bruises documented by treating clinicians he said he was concerned that there had been a misdiagnosis of a Mongolian Blue Spot on K’s cheek for a bruise, which raised the question as to the diagnosis of the other marks.

[46]If the clinicians were correct about the existence of bruises Dr. Cartlidge considered the most likely cause to be non-accidental, taking into account the lack of any underlying condition, a lack of explanation, and the existence of other non-accidental injuries.

[47]So far as L was concerned, Dr. Cartlidge’s overarching conclusion is that she too had been subjected to non-accidental or inflicted injury. Looking overall at the medical evidence he could only think of trauma as a cause of the skin lesions, and in the absence of an accidental explanation he could only think they were caused non-accidentally. Excessively rough handling causing firm finger pressure and scratching could be responsible. His conclusions about the fractures were also that they were likely to have been inflicted. The fractures would have been painful at the time they occurred, thereafter lessening albeit exacerbated on movement or handling. In his oral evidence Dr. Cartlidge stated that he had noted how still L kept her left leg during the video clips he was shown of her having her nappy changed on 16th and 17th August, and that this was quite striking. This led him to believe that the fracture to the left tibia was likely to have been quite recent at that time, accounting for the lack of movement. By 24th August L’s movements were more in line with what he would expect.

[48]Dr. Cartlidge, with agreement, was also asked about an injury to J which had happened when he was nine months old. He had been presented to hospital following a 111 call made by the mother who said she had found him to have bruising on his forehead when he woke up in the morning. J had been taken into hospital to be assessed, with the father accompanying him and the mother (who was heavily pregnant) remaining at home. The history from both parents (the mother was phoned by the examining doctor, Dr Dare, during the course of the consultation) was that J had been seen in the morning with the bruise and the parents had believed that he must have fallen in his cot. They had not noticed him crying.

[49]Dr. Cartlidge made clear that he found it unlikely that J could have sustained such a bruise by falling onto anything in the cot. It was unlikely that he could raise himself up sufficiently above the plastic corners of the cot as the bruise was not only above the eye but into the hair line. He said ‘it is stretching it to say that a fall in the cot is a reasonable explanation’. He would also have expected someone to wake up if J had injured himself in the cot if they were in what he described as ‘normal sleep’. Professional evidence

[50]I also heard oral evidence from the social worker, Mr A, L’s Health Visitor, Yvonne Simone, Bethany Pitt, midwife, and the Manager at the Residential Family Centre.

[51]Ms Pitt met the father and L at a Residential Family Centre on 1st August. She noted that initially he was not willing to engage with her apart from ‘yes and no’ questions, but at the end of the appointment things were much improved. She noted some dry patches of skin on L’s body, and said that some of the skin was peeling. She said that this was something which was very common and not something of concern. She did not suggest any treatment.

[52]Ms Simone found the father to be emotionally unresponsive to L when she cried or when he carried out tasks for her (albeit she was clean and well-presented), and that he did not seem to have an understanding of feeding patterns or expectation of infants. He was resistant to her advice in relation to feeding, was confrontational to her and did not make eye contact. Overall she expressed her concerns that he presented as being hostile to professionals.

[53]Ms Simone’s experience of the father was similar to that of the workers at the Residential Family Centre, and also of Mr A. The father appeared to be gentle when he handled L but he rarely seemed to speak to her or reassure her when she cried. He appeared to be quietly hostile to the process. The father told Mr A that he did not agree with the judge’s judgment, and made comments to the effect that the NHS was responsible and the local authority was corrupt. He never raised his voice but Mr A thought he was angry, angry in a quiet way.

[54]The manager of the Residential Family Centre said that the father was not good at alerting the staff when he was going to be doing a task which required supervision, so that they had to be alert themselves to come to his room when they saw him on the CCTV. At the Residential Family Centre they persevered to try and develop a rapport with the father but although there were some times when he made an effort, they often received a lot of negative feelings in response. The father presented as calm and quiet, but repeated on many occasions that he did not want to be there and would close staff down when they tried to talk to him.

[55]I was struck by the similarity of the evidence given by all of the professionals working with the father when he was looking after L, and also how much both the social worker and the manager of the Residential Family Centre bent over backwards to try and engage the father and, to be fair to him, being very willing to acknowledge the positives in the care he provided to L as well as the negatives, and to appreciate how difficult it must have been for the father to operate in an environment where he was the only black man there, and under intense scrutiny. There is no doubt, however, that a pattern was very clear to everyone, and that was of a father who gave very little by way of emotional warmth to his child despite being encouraged to do so. The CCTV

[56]The Residential Family Centre is not a residential unit which is prepared to take on any parent who has been found to have physically abused a child. There is a regime of 24 hour monitoring by way of CCTV in the individual accommodation (but not in the bathroom), and in person 1 to 1 supervision of tasks such as feeding, bathing and changing. The unit is not geared, however, to manage the risks of someone who might hurt or injure a child.

[57]There is a huge amount of CCTV footage from the unit. This has caused enormous logistical issues in the case, but suffice it to say the police and the parties have viewed many hours of footage. Indeed the police appear to have viewed it all.

[58]I am very grateful to the parties for distilling the footage for me into a number of clips which I have viewed. It is important to say that nobody has seen any footage of any incident in which the father appears to be injuring L throughout all of it. There is no instance where he appears to be angry, where he can be seen to be rough or peremptory. What was said by the professionals is borne out in that footage in that the father often carries out nappy changes without speaking to L or giving her much overt affection, albeit there are some occasions when he can be heard singing quietly to her. There are limitations to the view given, however, as the camera is not very close, nor is the picture as clear as it could be. It is not possible to see how hard the father grips L at any point. There are many clips where L is crying very loudly when being picked up, held, changed and dressed. It would not be possible to tell at any point if her continuing crying was anything to do with being gripped too hard or whether she was just crying loudly as babies sometimes do.

[59]There are a number of occasions when the father is holding or changing L when his own body blocks the camera and she cannot be seen, nor how he is handling her. This is as much to do with the way in which the changing mat is sited in the room, although the father was obviously aware of the position of the camera. In the bathroom there are no cameras. Although bathtime is a supervised activity, unless the father told the staff that he was about to bathe L it appears possible that the father was on his own in the bathroom with L albeit only for a very short period of time. The evidence of the parents The mother

[60]There is a wealth of written material in the evidence before me which suggested that there are times when the mother finds it very difficult to regulate her emotions. As long ago as 2012 she received a reprimand for battery when she was alleged to have slapped her mother around the face and pushed her. Not long after that she was alleged to have held a knife to her mother’s throat. She was convicted again of battery in 2017 for assaulting the girlfriend of a former partner. She has suffered from some mental health problems and has experienced some suicidal ideation.

[61]After J was born in 2021 there were instances where the parents were heard shouting at each other by neighbours and the mother was said to be suffering from depression and anxiety.

[62]The mother has certainly found the relationship with the father emotionally challenging, and there are many examples of her sending him (and other members of his family) angry and abusive emails without pausing to contemplate the effect on other people of her behaviour. One appalling example of this was that she sent a message to the father’s mother telling her that the father was dead. This demonstrates not only a serious level of emotional immaturity, but lack of control and empathy.

[63]The maternal grandmother, who gave evidence in the last proceedings, said there was an episode when the mother became so angry with the father in her presence that she pushed K across the floor in her car seat so that she could get at him. In September 2023, after L had been removed from the father’s care, the mother took a hammer with her to accost him in town, with the intent of confronting him about his behaviour. Some of what happened was seen on CCTV (although the father challenges what was said to have been seen and the footage is no longer available). A member of the public told the police that they had seen a man attacking a woman in the street, apparently threatening her with a hammer. The police went to the incident, and as they did so the mother began to walk away. A hammer was found in the father’s rucksack. The police found that the mother had pulled some of the father’s hair, and she told them that the hammer was his. This, she now admits, was a lie.

[64]The mother’s presentation during her oral evidence was similar to that noted by others in different situations. She was emotionally highly charged and repeatedly in tears. She tried to acknowledge past mistakes by repeatedly apologising. In contrast to her evidence before and during the last set of proceedings she was extremely critical of the father’s care of the children as well as treatment of herself. She said that his level of affection towards the children had always been a problem, and that he was reluctant to sing or talk to them. The way he had come across at the Residential Family Centre was the way he behaved generally.

[65]I will not set out all of the details of her evidence here, but suffice it to say she was adamant that she had never hurt any of her children. She said that she should have picked up on the differences in the accounts of J’s injury and also should have realised that he would have alerted her if he had been hurt. As to K, she felt very stupid that she had suggested that her mother might have been responsible, and that she had been applying her own childhood experiences in doing so. She now realised that the father was responsible for all of the injuries to her children. She denied ever having covered up for him in the past.

[66]There can be no doubt that the mother’s evidence at various times in the investigations has been inconsistent. She has shown herself willing to tell egregious lies about others, (including to the police), and there are many instances when her emotions have got the better of her and she has acted in a damaging, angry and violent way. I have to bear all of this firmly in mind when considering her evidence and her role in what happened to J and K.

[67]It is hard to blame the mother for feeling angry with the father in relation to his involvement with other women and his disappearances from the home. One of the things that did ring true in her evidence was her distress at his behaviour, and how she had clung to her dream of having a secure family and found it so difficult to accept that she had judged the father’s character so poorly. She also said that the way he had been seen to behave in the Residential Family Centre was similar to what she had seen him do at home.

[68]There is a significant body of evidence to show that the mother is capable of providing warmth and good care of the children. This is apparent from various records, including those relating to family time since these proceedings began. The father

[69]The father was born in a country in Africa, and comes from a well to do and secure family background. He is educated to degree level, in computer science (his studies were completed in another country in Africa). He came to the UK on a student visa in 2019, with his fees to be paid by his parents. He dropped out of the course at some point in 2020, a fact that he did not tell either his mother or his father. For reasons that are not entirely clear, the money earmarked for fees was spent, leaving him with a debt of several thousand pounds. The father has several other debts as well.

[70]He met the mother in mid 2020, and she became pregnant pretty much straight away. It is my understanding that he moved into her home with her before the birth. At or around the time he commenced his relationship with the mother, he was involved with another woman who gave birth to his child at around the same time that J was born. The father knew about this but he did not tell the mother until the time of the court proceedings in 2023. He and the mother went on to have K and then L, each only about a year apart, so that the father now has four children who are under five years old.

[71]The father told me that he was a person who did not like to share his private details with other people. I would in fact describe him as secretive. Throughout the time he was living with the mother he was in contact with other women online. I have seen some of the messages he sent to one woman in particular. He was expressing interest in her, telling her she was beautiful and that he wished to meet up. He lied to her about his own relationship status and the children he had, and implied that he was unattached, even when she told him that she had a child and was looking for something more serious. Looking at the father’s records and listening to his evidence it was abundantly clear to me that he also met up with women from time to time, including the times when his children had been born, when K had just been found to have multiple rib fractures and fluid on her brain, and when L was still in hospital with the mother. At times the mother would seize his phone to look at what was happening, becoming extremely upset about his behaviour, but it is plain that the father carried on anyway. At a time when they were both heavily in debt, he was going out without telling the mother where he was, spending money in clubs and bars.

[72]When questioned about this, it was obvious that the father saw nothing wrong with his behaviour. He had either not thought or did not care about the hurt that this could potentially cause either the mother or the women he was in touch with. In his view, it was just chat, just texting. It revealed a level of emotional detachment to those closest to him, coldness even.

[73]The father’s evidence about core issues was marked by inconsistency and vagueness. In relation to K, his written evidence in the previous proceedings was that he worked every day (excluding weekends) before her injury, and that he had left early (8.30) in the morning of the day she was taken to hospital. He told the police in his first interview, three weeks after K was taken to hospital, that he left home at 10 and started work at 11. In fact, his work records show he was expected to start work at 11.45 and was an hour late for work on that day not arriving until 12.45pm. He has given various explanations as to the amount of time that it would have taken him to travel across the city in which he lives (including a suggestion at one point in his evidence to Judge Barlow that it would have taken up to two hours because he had to take two buses and missed one of them).

[74]His evidence as to whether he saw K when he arrived home late the night before has also been inconsistent. He told the court that he had seen both children that evening. He told the police that he made himself supper and went straight to bed.

[75]In his interview with the police ten days or so after K was taken to hospital he said in response to a question as to when he had last seen her so he could see her whole body that he thought it was the day before he had gone to work and that he had not noticed anything. He told them at one point that he had not checked on K before leaving, as he was in a hurry, which is at odds with his evidence in his statement and evidence in the previous proceedings that he changed her nappy and put her back to bed.

[76]In relation to L I consider that he has been vague in response to questions as to when he first noticed marks to her skin, and also as to when he says he accidentally injured her back when he was trying to hold on to her in the bath. Whilst I would not expect precise dates or even times, these are matters of very great importance and I would have expected the father to have noticed them, and been able to relate them to what he was doing around the time. He also said that there was a member of staff at the Residential Family Centre who was present when L’s back was hurt, but has not been able to identify that member of staff, or even apparently tried to do so. He simply said that he thought that the supervisor would have recorded it, but does not say anything about a conversation that would have been bound to have taken place in such circumstances, because it is a significant scratch.

[77]The father also appeared to lack curiosity about how any of the injuries were caused. It was apparent from all he said at the Residential Family Centre and his evidence before me that he did not really accept that the mother was responsible for injuring K, albeit he said he accepted the judge’s findings. He also said, when challenged, that he accepted the medical evidence in relation to L and also K, but repeated that he had not caused any injury to either of them. So far as L was concerned, despite the medical evidence and the fact that he was pretty much her sole carer and had never brought the marks to her body to anyone’s attention, he did not suggest that anyone else could have injured her, or any explanation. When really pressed he said he thought that there might have been a medical cause. He repeatedly said he thought the marks were dry skin.

[78]As with the mother, there is evidence that the father is capable of interacting very well with his children, and they with him. This has been noticed particularly during family time.

[79]Statements were filed by two further lay witnesses, one on behalf of each of the parents. X is a friend of the mother. Her evidence, not challenged, was that the mother contacted her about J’s bruising in April 2022, stating that she thought it might have happened from him climbing in his cot, but she wasn’t sure. She also stated that the mother had contacted her when she thought K’s face was red, and had told her about K’s enlarged head. The mother had also confided in her that the father pressured her sexually, and touched her when she was asleep, and on one occasion when she said he had hit her. The father’s brother, Y

[80]The father filed a statement by his brother, Y. Y was required to give oral evidence. He was obviously anxious about what he said to the court, and anxious not to say anything adverse to his brother. What he did say which was of particular interest was that both the mother and father had told him that the mother had found J stuck between the cot and the wall, and that this was how they believed he had sustained the bruising to his head. Y also told the court that he had known about the father’s other child a long time ago and had visited her on the same occasion that they had visited to celebrate J’s first birthday, and also that he had visited that child together with the father more recently, following L being removed from the father’s care. Discussion

[81]In trying to ascertain what has happened so far as each of the three children are concerned, I have to start somewhere, albeit I must and do consider each part of the evidence in the light of all the other evidence. In this case I think it is helpful to begin by looking at L. Not only am I dealing with events that are more recent, but more is known about the care she was receiving because she was first with the mother, fully supervised in hospital, and then she was at the Residential Family Centre.

[82]The medical evidence about L is very stark. The evidence of all of the experts is that she has no underlying condition that would explain any of the injuries. The limb fractures could date back to birth, but in the absence of any evidence that anything untoward happened at the birth, or that L was suffering any pain, that is profoundly unlikely. It is more unlikely still in the light of the fact that the rib fracture was more recent. Dr. Cartlidge watched some of the CCTV recordings and was struck by the fact that on the recordings of 16th and 17th August, L appeared not to be moving her left leg nearly as much as her right. He said he watched it very carefully and yet he did not see the left knee extend at all. As babies usually use both legs in a haphazard manner at this age, this was unusual and that this could indicate the presence of a fracture, albeit the fracture was at the ankle and not the knee. A fracture would have been immediately painful when it occurred and tender if moved for at least a few days thereafter, hence not moving it.

[83]Added to this are the marks that were found on L’s body on 23rd August. They were not seen by anyone at the Residential Family Centre when L was examined for nappy rash the day before. By the time she was examined by Dr. Allport and Dr. Brannam the marks were obviously there, visible to the lay person as well as medical professionals in the room. They did not look like dry skin, which is very common, and Professor Wright has stated that dry skin would not have made L more vulnerable to skin injury.

[84]I acknowledge that the father’s care of L was monitored all the time either by CCTV or face to face supervision (and sometimes both), and that despite the recordings being watched there is no occasion when the father can be seen losing his temper or hurting her. Nonetheless, there are times when his back is to the camera for substantial periods, completely blocking the view, when he could have hurt her by digging his fingers into her, or pulling or twisting a limb when changing her. The footage is not very clear and L often cries very loudly indeed. I note that the scratch to L’s back, which the father admits to causing, happened without being apparent on CCTV, or any supervisor recording it as having happened in their presence.

[85]Whilst Ms Lewis KC and Ms Pitts on behalf of the father rightly say that the father does not have to explain the injuries, and that there is no burden (or pseudo-burden) of proof on him, the truth is that the marks on the skin were there. What is more, the father said that he had seen them before, and that he thought they were dry skin.

[86]I do not accept the submission that it is plausible that L fractured more easily at the time. Nor do I accept that the fractures were caused by anyone else.

[87]The father is the person who had (apart from an hour or two each week when he went to church or when the mother had supervised contact) constant care of L, changing her and bathing her. I note his vagueness and inconsistency when giving evidence about the circumstances surrounding the scratch on L’s back. He was vague about when it had occurred and vague about who was supervising him. If the event he described had happened in the presence of a supervisor, then I would have expected it to have been noted in the records.

[88]The combination of the medical evidence, the father’s failure to draw anyone’s attention to the marks on the skin, his lack of any explanation (save for the back), vagueness and lack of curiosity all provide extremely strong evidence that all of L’s injuries, namely the fractures and the marks to the skin as pleaded, were inflicted by the father. There is really no other realistic alternative, save either for some unknown medical condition which led to her suffering all those marks on her body, in combination with earlier fractures, or her being injured by someone unknown (causing fractures at one point and skin lesions at another) without the father being aware. Whilst it is crucial for a judge to consider the possibility of an unknown cause, it does stretch the bounds of credibility here, especially as K (and J) suffered injuries too.

[89]One of the significant things about these injuries is that the father did not demonstrate any overt frustration or loss of temper. In inflicting these injuries it must have been more deliberate and calculated, a form of anger that was harder to detect. It does fit with the evidence of numerous professionals at the Residential Family Centre, who noticed time and again how little affection he showed to L, and how little he engaged with any of the staff. Many of them found him to be quietly hostile. Of course such behaviour can be explained by being in an unfamiliar environment, by the stress of being watched all the time, and by the experience of being the only man, and the only black man, in the centre. Being hostile to professionals, and/or awkward and wary when being observed all the time is not difficult to understand. But the father’s conduct at the Residential Family Centre goes well beyond this. The father appears to lack empathy for people in general, and L in particular. His attitude towards her caused several staff grave concern, well before anyone knew she had been injured.

[90]I then turn to consider K and J. Although the mother suggested in the past that her mother could be responsible for injuring K, she has not suggested that in these proceedings. The mother’s case is that the father caused the injuries, and that she was unaware he had done so.

[91]On behalf of the father, Ms Lewis explored other possibilities with Dr. Cartlidge and Dr. Olsen, for example that the subdural haemorrhage could have been caused at birth, and that K’s bone density could have been affected by a lack of vitamin D. Neither expert considered that this was at all likely in the circumstances of this case, and of course I have written evidence from other experts about that. The medical evidence is unanimous that K’s injuries did not come about at birth, or because she had weak bones.

[92]On one level the father appears to be saying that K’s injuries must have been caused by the mother, but he does not say so with any real force. As to J, the same applies albeit he also appears to suggest that an accidental explanation is still possible. Both parents appear to accept that if the injuries are inflicted they are the only two people who could be responsible albeit they each deny it was them.

[93]In my judgement both parents are unreliable witnesses. Their evidence about the injuries to J has been inconsistent. Y told the court that both of the parents told him that the mother had found J stuck between the cot and the wall, something quite different to the history they gave elsewhere. He did not strike me as a reliable witness either although I do not know why he would have said that if he had not been told it by one of them, most probably the father. The history that the parents gave to professionals at the time, namely that J had somehow banged his head whilst pulling himself up in the cot, is inherently implausible, especially as neither of them said that they had noticed it happen or that J was upset. The mother did not attend the hospital, and the doctor found it difficult to reach her on the phone. All these are pointers to the fact that the parents were concealing something from the professionals and not telling the truth about how J had sustained a very significant bruise.

[94]As to what happened to K, it seems to me that the father’s evidence has been more overtly inconsistent, particularly as to the core matters surrounding the night and morning of 22nd and 23rd November, than that of the mother. The father has, in particular, given differing accounts about his own actions, including his interactions with K and the time he spent in the house on the morning of the day her injuries were seen. The evidence about the mother being awake until very late in the night and sleeping until very late in the morning has been relatively consistent.

[95]Having heard from Dr. Eggers, I am satisfied that she correctly identified that K had a triangular bruise on the corner of the left upper eyelid, a bruise over the lateral aspect of the left cheek, an oval bruise on the right side of the forehead, and a 20mm diagonal linear bruise on the left side of the forehead. Dr. Cartlidge was rightly cautious as to whether the bruise on the left cheek was in fact a Mongolian Blue Spot, but I am satisfied that because it faded after that, it was not. I am also satisfied that the mother saw something that concerned her over K’s nasal bridge, but that appears to have been more transitory, and most probably not a bruise.

[96]After further tests it was identified that K had sustained a number of fractures, 10 of which were of the same or a similar age. She also had a collection of fluid on the brain causing her head to be enlarged, and which needed surgery to relieve pressure. The evidence of all of the specialists is that this fluid was very unlikely to date back to birth, and was likely to have been caused by her being shaken.

[97]Once again, none of the doctors have been able to find any underlying cause which would predispose K to easy fracturing or bruising, despite very extensive investigations for the proceedings which included instructing Consultants in haematology, genetics, neuroradiology and neurosurgery.

[98]There is no explanation for any of the injuries suffered by K. Taking into account the medical evidence, the explanations of the parents, and the inconsistency and vagueness of the father’s accounts in particular of when and where he saw K overnight and in the morning, and the time he left for work, the evidence that K suffered from a number of inflicted injuries is very strong indeed.

[99]Having considered the injuries to all three children, I should stand back and look at the situation overall. K and L both suffered fractures, K to many of her ribs, L to one rib and three limbs. K suffered from a chronic and enlarging subdural. Both suffered marks to their body, K by way of bruising to her face, and L by way of marks and scratches to her body. Nobody has been able to find any known medical cause for any of this, and the father’s evidence about the injuries to L and K too is vague and inconsistent. Added to that is J’s bruise.

[100]Taking into account all of the evidence, I am satisfied on the balance of probabilities that the injuries to L and K are inflicted. Although the bruising to J was not the subject of such a detailed medical enquiry and was accepted as being accidental at the time, I am also satisfied that the injury to him was inflicted.

[101]I must then turn to the question of whether it is possible to identify a perpetrator. The proceedings have been carefully case managed, and there has been no application to join any third party, for example any nurse or worker at the Residential Family Centre, as an intervenor. Of course it is open to me to decide, if the evidence warrants it, that I cannot make a finding against a parent because of the possibility that an unnamed third party was responsible without them having intervenor status, but in a case such as this there would have to be more than one third party perpetrator, or a third party perpetrator as well as a parent perpetrator. That is so unlikely here that I discard it as a possibility. The father

[102]So far as L is concerned, the father is the only possible perpetrator. The mother could not have caused the injuries to the skin, and she was very closely supervised in hospital for the first few days of L’s life. I have already set out the evidence from and about the father which formed part of my determination that her injuries were inflicted. I am satisfied that he injured L on several occasions. I accept Dr. Cartlidge’s evidence that the limb fractures were caused by the separate application of force to each rather than by a single shake. Further, and in addition, the father caused the injuries to L’s skin by the use of excessive force, probably with his fingers (as was the case with the scratch to the back, which I find was inflicted and not accidental too).

[103]I then turn to look at the evidence about K and J. The father certainly had the opportunity to injure them, as did the mother. The time window for K’s more recent rib fractures and the head injury is very wide, but for the bruise it is narrow. The mother’s friend was present in the home on the evening of 22nd and did not notice any bruising. Her evidence about some matters was somewhat unreliable (for example she said that the father was not present in the home at all during the time when she was there when he clearly was) but it seems less likely she would have missed injuries to K.

[104]I acknowledge the fallibility of memory as well as the fact that people can and do give changing accounts without any sinister reason. I also acknowledge that people can and do tell lies in the face of an investigation such as this, not because they have done anything but because they are scared and/or suspicious of the process. Nonetheless, I am satisfied that the reasons for the father’s inconsistent evidence about when and where he saw K, whether he saw the marks to her face, and when he left the home on the morning of 23rd November are because he knows what happened to her and is trying to distance himself from it. By mid afternoon on 23rd November he was informed by the mother that K had bruising, and he then knew that she had been taken to hospital. He also knew early on, as did the mother, that the doctors were concerned K had been physically abused and that there would be a focus on who had been responsible for caring for her over the previous hours and days. He would therefore have remembered the core issues, even if not some of the details. The differences of account he gave as to whether or not he saw K before he left and the time he left that morning are substantial.

[105]Added to this is the fact that I have already found that the father later injured L, by the use of excessive force, fracturing her bones as well as hurting her skin. The mother (as perpetrator of injuries to K and J)

[106]I have already set out the fact that the mother is volatile, emotionally dysregulated, and has been violent in the past. At various points in time, particularly in the autumn of 2022 when K was a small baby, she suffered from episodes of quite acute depression and made a suggestion of taking her life. There are also messages in which she said she was finding caring for the children very difficult.

[107]She maintained, in the face of common sense, that J had fallen in his cot and sustained injury without her (or the father) being aware, and also failed to explain or confront how K and J could have slept all morning on 23rd November 2022 without needing to be fed. She continued her relationship with the father until very recently which suggests she does not view what he must have done (if she did not) in a serious light.

[108]The mother was also inconsistent as to the father’s movements on the morning of 23rd November, including whether or not he told her he had fed the children, and whether he had taken them to the other room.

[109]Also there are allegations of domestic abuse by each side, and acceptance at the very least that the relationship was toxic. There is also evidence that the mother pushed K in her travel seat when she was angry with either her mother or the father. This suggests a propensity to forget the effect (whether this be physical or emotional) on her children when she becomes angry. 22nd/23rd November

[110]The mother and father were certainly keeping odd hours. They were communicating with each other and (so far as the mother was concerned) ordering a takeaway. It is likely that they were smoking cannabis, given the evidence that they bought some that night. I also accept that it was unlikely that the children did not need to be fed during the morning before the father left.

[111]Shortly before 3pm that day the mother texted a friend and then the father about bruising. The message to the father read ‘Call me asap please [K’s] head is like bruised’, and then a minute later ‘Im [sic] scared and starting to panic’. This was followed quickly by two further messages, one saying that she was calming down, and then another that she was taking her to A&E. I will not set out all the father’s replies here but suffice it to say that he inquired whether K was fine, apart from the bruising and told her not to panic. Neither of them asked the other as to how the injuries could have occurred.

[112]The mother then called 111. The call is transcribed. The mother told the operator that she had just noticed a bruise on K’s head, saying ‘I’ve literally just picked her up, changed her nappy and the skin around her eye is changing’.

[113]The mother’s behaviour once K was taken to hospital left a lot to be desired in that she was difficult with staff, accusing them of asking stupid questions and saying that she had harmed K. She also accused them of being biased against her because of her race. Nonetheless her explanation of the events of the evening of 22nd and morning of 23rd are fairly similar throughout her texting her friend, texting the father, speaking to the 111 call handler, and the triage doctor at the hospital.

[114]I then turn to the head injury and rib fractures. On 10th November the mother took K to the GP surgery for her immunisations. She mentioned that she was concerned about the baby’s head size, and the records suggest that she was advised to take her to the GP. The mother states that she did ask the GP or nurse about it but they simply laughed. Both parents agree that the mother raised the question of head size with the father and that he told her that it was normal, or at least that children in his family had had big heads but had grown into them later. So far as the rib fractures were concerned, Dr. Olsen was of the view that there were 10 recent fractures as at the date of a scan taken on 21st July. Only one recent fracture was visible on that scan but in the later skeletal surveys on 29th November and 9th December that fracture appears to be at the same stage of healing as nine other fractures then visible. This led Dr. Olsen to consider that they could well have occurred at the same time. There are then three older rib fractures. Dr. Cartlidge said in his oral evidence that there were a lot of rib fractures and that this would require some significant force, a very firm squeeze on the chest.

[115]As with K, it was the mother who sought medical attention for J when she discovered the bruising to his head, by contacting the surgery. She did this at 6.48pm on 21st April 2022. The initial history recorded was that both parents had noticed a one line bruise on his forehead going from eyebrow to hairline, and that they did not know what had happened. The mother was reported as saying that she thought he may have bumped his head against the childproof hard plastic on the side of the cot. At 7.21pm the mother spoke to a clinical advisor at 111 and is recorded as saying that the father had been doing the care and that she had noticed the bruise in the morning.

[116]Thereafter the mother did not bring J to hospital for a child protection medical. A decision was made that J should be brought in the following day (which was a Saturday) for another appointment. On that occasion the father brought him in and the mother did not attend. The father told Dr. Dare that J had woken up at 10.30am on Thursday 21st and that he (the father) had noticed the bruise when he was bathing him. The mother gave a similar explanation when phoned by Dr. Dare during the examination. She also said that she wished she had not reached out for help and would never hurt her baby. I note what was said about the parental explanation by Y, which is a different explanation to that given to professionals, but I do not find him a reliable witness so far as any allegations against the mother are concerned. His focus has been to protect his brother. Decision

[117]Despite the difficulties of coming to any conclusions in a case where both parties lack credibility and have shown themselves capable of violence, and after very careful consideration of all the evidence, I have determined that I am satisfied that it is more likely than not that the perpetrator of the injuries to all three children was the father and that the mother was not responsible.

[118]I have found that he injured L on more than one occasion. He did this when he was on his own with her, and not during the course of any row with the mother or anyone else. He did not draw anyone’s attention to the skin injuries which he must have seen, albeit he may well not have known that L had suffered fractures. The injuries suffered by K, namely a significant number of rib fractures and bruises to her face are similar, albeit she also suffered a head injury. I know that the mother did not accompany J to hospital but it was she who sought medical attention in the first place. She also sent messages to a friend about this, at a time when it was most unlikely to be on her mind that anyone would check her messages or browsing history. She drew attention to K’s increasing head circumference albeit she did not follow it up. She spoke about it to the father and accepted his reassurances that it was something he had experience of in his country.

[119]I set out earlier what I have found to be significant inconsistencies in the father’s evidence about K’s bruising as well as L’s. Whilst the mother has too been inconsistent, the evidence from both of them about what she was doing overnight and in the morning has remained broadly similar.

[120]Perpetrators of injury to children do sometimes seek medical attention for them despite what they have done. I have also considered whether some of the injuries, for example bruising, could have happened in the course of an argument where the mother became dysregulated and mishandled the children. However K’s rib fractures and shaking injury are not typical of a ‘cross-fire’ type of incident. The bruising could be sustained like this, but there is really no account or hint of any such occasion save at the grandmother’s house when K was not hurt. It is inherently unlikely that each of the parents, acting alone, is a perpetrator of similar injuries to different children.

[121]I do not find that the father is or has been protecting the mother. He would not have tried to say he left the house earlier than he did on 23rd November if this was so. His dismissive attitude towards the findings of Judge Barlow as evinced when he was at the Residential Family Centre is, in my judgement, because he knew it was him and not her who was responsible for injuring K.

[122]Although the mother has also been inconsistent in her evidence, and has failed to accept or explain the obvious, I have concluded that this is not because she was the perpetrator. She has been irrational, driven by her feelings about her mother, the father and others; too willing to point the finger at others because of her anger with them at a particular time rather than what is obvious and true. She has been willing to lie to get herself out of trouble and others into it. She has held onto the dream of having a partner and family, despite everything that was happening and has happened.

[123]The parents have a very toxic relationship but there is nothing from the evidence (which includes very extensive messages between them) to suggest that they acted in concert with hostility to one or all of the children. Domestic abuse

[124]There is no doubt that the parents had a very difficult relationship, which included physical abuse. I agree with both Mr. Howard for the local authority and Ms Darian for the Guardian that I should exercise some caution before placing too much reliance on messages passing between the parties (and others) but this applies in particular to the period following the last fact finding hearing. In January 2022 the mother refers to a fight between herself and the father and mentions that he hit her and that she was thrown across the room. There would have been no reason for her to make this up, or ever to have thought anyone but the father would have seen it. The mother accepts that in the past she became angry and slapped the father (albeit she offers reasons why she said she became so angry). In September the mother sought out the father with a view to being violent to him with a hammer, and also picked up a bottle. A witness (albeit not someone who has been able to be found to come and give evidence) saw the aftermath of that with the father then attacking the mother. The evidence of that witness accords with the description given of the CCTV footage of the mother being pushed up against the wall. Although I am conscious this is all hearsay and untested, I am able to conclude that the incidents show both parents being violent and hostile to each other and that the father is prepared to retaliate with violence against the mother.

[125]I therefore find that the father has been violent to the mother on occasion and also that she has been violent to him, and that the relationship is mutually toxic. I do not find that the father raped the mother (her evidence about this is very unreliable, and she has admitted lying about really material matters such as attending the doctor). I fully accept that the father has behaved in a way that would cause enormous distress to a partner, by repeatedly contacting other women in a sexual and/or romantic way without any sense of responsibility for doing it, and that he displayed emotional detachment at very difficult points. This goes some way to explaining the mother’s emotional behaviour, but her dysregulation is much more long standing than that, and deeper too.

[126]The local authority has not formally pleaded that either parent failed to protect in the event that they are found to be a non-perpetrator, although it is pleaded that a parent who was in the home would have heard K’s upset, and that it should have been obvious that she was hurt. Additionally it is pleaded that the parents or either one of them know more about the injuries to K than they have been prepared to admit.

[127]Although the mother was at home most of the time (albeit not all the time), and certainly when K and J sustained bruising, the way in which the father injured L was not picked up despite his being supervised. I do not think that the mere fact of the parents both being at home in a relatively small flat is sufficient to allow me to conclude that it would have been obvious to the mother that K had been hurt when she sustained rib fractures and the head injury as the time window for these are wide. The evidence of Dr. Cartlidge is that a non-perpetrator who did not witness what happened would not have been able to detect that the child had injuries, albeit it is likely that K would have been distressed and unsettled. K was taken to the GP by both parents in July 2022 when she had at least one fracture, as she was said to be unwell. The mother also reported that K was unsettled at medical appointments in September.

[128]If the mother was not witness to the bruising to J and K, the only logical conclusion that she could have come to was that the father had injured them. Rather than confront this, she has looked for explanations elsewhere.

[129]The mother did seek medical attention for the bruising in both children. She also asked about the increasing head circumference although she did not follow it up (I accept what is in the notes, namely that she was advised to see a GP, and not that the nurse simply laughed at her). Further, the mother sought medical attention for K when she appeared to be unwell in July 2022, when it appears quite possible that she had just sustained some rib fractures.

[130]I find that the mother found it very easy to be diverted from acting in the best interests of her children. Rather than focussing on the likely causes of the injuries to J and then K, after reporting this she made intemperate and wild suggestions including that her mother could be responsible for causing the injuries, and/or that those professionals who were quite properly investigating were motivated by prejudice. To focus on what the professionals thought of her, and to make accusations and sarcastic remarks as are set out in the notes shows that the mother has difficulty in thinking clearly and behaving rationally. She should have realised that J could not have come by such a significant bruise without one of them being aware of it. That should have been a very serious wake up call about the danger the father posed to children.

[131]The mother should have realised that K’s bruising and fractures must have been caused by someone, and in the absence of her being responsible the father was. Even if she did accept that sometimes, she has been inconsistent. She was understandably angry that she, rather than the father, had been found to have injured K, but in being angry much of the focus was on herself. She was angry with the father (quite understandably) for being so detached from their relationship, and also because he let her take the blame. It is much less clear that she was, or is, angry with the father for injuring their children, or that she has reflected on the harm that they suffered. She resumed her relationship with him at various stages, including after his injuring L at the Residential Family Centre. On several occasions that has taken priority over everything, even when she was angry with him. She has been obsessed by him and how he treats her; that has taken centre stage.

[132]Both the parents smoked cannabis, and the household was somewhat chaotic and lacked routine. By itself, being awake most of the night and sleeping most of the morning when you have young children would not be in the front rank of concerns, but these factors demonstrate that the needs and routines of the children were subordinated to those of the adults.

[133]I therefore find that all three children suffered significant harm as has been pleaded (including the amendments made by the Guardian in final submissions), and were at risk of suffering significant harm at the time protective arrangements were put into place. I find that the relationship between the parties was characterised by domestic abuse, with each party at times being physically abusive to each other. I do not find the mother’s allegations of sexual abuse proved.