“Mother has reported this may be from one of two possibilities – either from pulling the arm out when it was caught under the mattress or from grabbing Hs arm when he fell. It is unlikely that the bruise would be caused by the arm being caught between the mattress and the wall unless there was some forceful impact in addition to this. Bruising would not be expected to be caused by pulling the arm out unless there was forceful grabbing of the arm, more than might be expected to free an arm, or if there was a forceful impact against something while the arm was being pulled out. I think that while this is a possible cause it is less likely. The alternative explanation from mother is that she grabbed and swung H round when he fell on the sofa. Again, a forceful grabbing of his upper arm would be a possible cause of the bruising and if the court accepts this explanation then it is an appropriate explanation for the bruising. I cannot exclude an inflicted injury which would involve forceful contact with an object.” 21.2 Injury 2 – bruising to right hand/wrist: “There was a bruise on the right hand along the wrist line which is a bony area and is described as linear. There are no clinical images of this bruise but it is identified on the body map completed by Dr C as curving below the thumb in the crease of the wrist. Linear bruises are seen more often in inflicted injuries, however from the diagram I have seen, it is possible this could be from an accidental impact of some description during active play. Mother’s description of H’s arm being caught under the mattress and needing to be pulled out could also have caused this bruise if the wrist impacted against a firm edge while being pulled out. I cannot, however, exclude an inflicted injury. 21.3 Injuries 3, 4 & 5 - bruising to hip, scrotum and groin area: The groin and scrotum areunusual areas for bruising whether a child is wearing a nappy or not. This area tends to be a protected area and is not commonly bruised in active play, even when that play includes rough play with siblings or peers. There is a report that L said that he had knelt on H’s groin in the night while trying to get a drink and that H had cried. I understand that L was 6 at the time. It is not clear to me whether the position of the children in bed was always what was shown in the photograph, ie. H next to the wall and the other children on the outer part of the bed relative to him, in which case it would be difficult to understand why L might need to kneel on H to get a drink. However, if they were in the position where H was between L and his drink, then I would not expect a young child kneeling on H to cause the bruising either to the groin or to the scrotum. I think this is an unlikely cause for the bruising. There was also a suggestion that there may have been a kick to the scrotum and or groin from one of the other children present. L and S are reported to have been 6 and 4 respectively at the time of the injuries. A kick to the scrotum from one of the children could lead to bruising but I would not then expect it to cause bruising in the groin area. In my opinion, this would require more than one impact, would have been painful and that H would have woken up and been distressed. There is recall that S had a disturbed night with coughing and the children were generally unsettled until about midnight but no description of any distress from H until the following morning. Therefore while it is possible that the bruising was from repeated impacts from one or both of the other children in the night, I cannot exclude the possibility that this was inflicted in some other way at another time. 21.6 Injury 6 - bruising to left thigh: “Research evidence states that bruising to the thigh is more likely to be inflicted, however from a clinical perspective I have seen isolated bruises on the front or side of thighs (one or two) from active play. It is therefore possible that these bruises are from active play.”
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1." 38. Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation)[2011] EWCA Civ 12 : "
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof." 40. Fifthly, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, &L[2005] EWHC 144 (Fam) ;[2005] 1 FLR 851 per Charles J). Thus, there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts. 41. Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of King J in Re S[2009] EWHC 2115 bFam). 42. Seventh, 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. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346). 43. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas[1981] QB 720 ). 44. Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation)[2011] EWHC 1715 vFam: "
“To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing 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" may occur without any necessary inference of bad faith”. 47. In Re A (Children) (Pool of Perpetrators)[2022] EWCA Civ 1348 , King LJ re-emphasised that judges should apply the simple balance of probability standard when determining whether it is possible to identify a perpetrator from a list of those who could be responsible. In coming to a conclusion each person should be considered individually by reference to all of the evidence. Glosses such as 'straining' to identify a perpetrator should be avoided. The unvarnished test is clear: “following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.” 48. In Re A (A Child)[2020] EWCA Civ 1230 , the limitation of oral evidence was once again highlighted and the courts warned to assess all the evidence in a manner suited to the case before it, and not to inappropriately elevate one kind of evidence over another. 49. In Re H-C (Children)[2016] EWCA Civ 136 the Court of Appeal reminded judges in family cases of the proper approach to witnesses who tell lies as originally set out in R v Lucas[1981] QB 720 . There are many reasons for this which do not denote guilt, for example, fear, shame, loyalty, panic and distress. An innocent person may lie to bolster their case. A lie should never be considered as direct proof of guilt. In criminal proceedings, to be capable of amounting to corroboration a lie must be deliberate, relate to a material issue and be motivated by a realisation of guilt and a fear of the truth. The same principle applies here. This point was emphasized again in Re A, B and C (Children)[2021] EWCA Civ 451 . 50. In Re L-W (Children)[2019] EWCA Civ 159 the Court of Appeal overturned a finding of failure to protect, where it had not been shown that on the particular facts of that case, the mother should have identified a risk to the child. Lady Justice King stated:- “62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child. 51. Such findings were made in respect of a carer are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children's best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. 52. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, "nearly all parents will be imperfect in some way or another". Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their longsuffering partners upon their release. That does not mean that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm. This professional and realistic approach allowed the Court to focus on what was, in reality, the only live issue, namely; was GL's history of violence sufficient to lead to a finding of failure to protect upon the mother's part?”