Royal Borough of Greenwich v A Mother & Ors [2024] EWFC 401 (B)

[2024] EWFC 401 (B)

Case No ZC23C5247

Date 09/09/2024

IN THE CENTRAL FAMILY COURT

Before

HIS HONOUR JUDGE MARIN

Between

ROYAL BOROUGH OF GREENWICHApplicant

Mr C Poole and Ms J Hendrick instructed by legal department of the Royal Borough of Greenwich

Mr A Bagchi KC and Ms B Littlewood (instructed by RWK Goodman) for First Respondent

Mr S Nuvoloni KC and Ms A Bewley (instructed by GT Stewart) for Second Respondent

Mr T Hussein and Ms D Minoprio (instructed by Goodman Ray) for Third and Fourth Respondents

Hearing Hearing dates: 5 to 9 and 12 to 16 and 19 August 2024 Judgment: 9 September 2024

Approved Judgment

[1]J is little boy who is nearly two years old. He has an older brother, H, who is eight yearsold.

[2]Their mother is M. She is 31 years old and has until recently worked in a nursery. Theirfather is F. He is 40 years old and works as a bus driver. M and F are married and havebeen together for around fourteen years.

[3]In June 2023, J was admitted to hospital with significant injuries some of which weresuspected to be non-accidental.

[4]Social services at the Royal Borough of Greenwich (“the local authority”) becameinvolved. These proceedings were commenced. An interim care order was sought andobtained in June 2023 and the children removed from the parents.

[5]The police arrested the parents on suspicion of grievous bodily harm or actual bodilyharm. The criminal investigation is ongoing.

Issues to be determined

[6]Prior to J’s admission to hospital in June 2023, he had also been admitted in April andMay 2023.

[7]The local authority seeks findings about the cause of injuries observed on J’s firstadmission to hospital on 24 April 2023, on his second admission to hospital on 6 May2023 and on his third admission to hospital on 5 June. It also alleges that the parentsfailed to follow medical advice in a timely manner on 3 May and 5 June 2023. Theallegations are contained more fully in a Scott Schedule. M and F both deny hurting Jin any way or failing to follow medical advice.

[8]This judgment is the court’s determination of the matters raised by the local authority.

[9]The material in this case is extensive and was contained in a number of files. A corebundle contained case management orders, statements, experts reports and variousrelevant documents. There were also further files containing police documents, medicalnotes and records, photographs, contact notes and digital forensic analysis documents.

[10]I was also provided with police videos and recordings of calls to the emergencyservices.

[11]The parties filed opening and closing written submissions and chronologies.

[12]The local authority and the Guardian were each represented by two Counsel. Theparents were each represented by Leading and Junior Counsel.

[13]I acknowledge the hard work and diligence of all Counsel in this case which wasconducted in a collegiate and professional manner such that the parties can be satisfiedthat they had the best representation possible at the hearing.

[14]I am also grateful to the wider legal teams comprising the parties’ solicitors and supportstaff who also deserve praise for ensuring that this case was properly presented. Iparticularly acknowledge Ms Jachowicz at the local authority who prepared the bundlesand ensured that everything was in place for the hearing to proceed smoothly. Giventhe amount of documentation, this was no easy task.

[15]There were some difficulties along the path to this hearing such as obtaining furtherdisclosure from the police and considering a very late request by the medical expertsfor further medical evidence. However, an adjournment of the hearing was avoided dueto the combined efforts of the court and the parties.

Background

[16]I turn now to the background facts in this case.

[17]The narrative of events is taken from many sources in the papers. Whilst I recognisethat some matters are in dispute, the primary aim is to set the scene.

[18]I start on 21 April 2023 being a few days before J first attended hospital on 24 April2023.

[19]J visited the GP as he had a cough. The GP’s records noted no serious concerns.

[20]On 24 April 2023, M said that she woke up H and J around 7am. M went to the kitchen.J was in the landing area leading the to kitchen so M had an unrestricted view of J.

[21]J tried to pull himself up on the left corner of the radiator. His legs went “wobbly”. Helost his balance and fell onto the side of the radiator, hit the right side of his foreheadon the wall and then hit the floor. He ended up lying face down on the floor. After aminute, M observed about twenty seconds of body jerking in all four limbs and J startedto cry and scream for around thirty to forty minutes.

[22]M called the 999 emergency services. She was concerned as J’s head was getting bigger.They said that as J was not vomiting, they could not “red flag” him to send anambulance but would send a taxicab instead. M then phoned 111 who arranged forsomeone to call her back. The caller accessed M’s phone to see J on video.

[23]M then took J to hospital where he was examined.

[24]The medical notes recorded that J had been sleeping more than normal; he had vomitedhis bottle on two occasions that morning. He was noted to have “a large swelling overhis forehead which has been spreading over the day, swelling causing some right eyeswelling. No injuries elsewhere.”

[25]A CT scan was reported as showing a “large extracranial scalp contusion of the frontalregion mainly on the right side. No intracranial haemorrhage, space occupying lesionor acute focal intracranial legion is shown.”

[26]The notes recorded J as having sustained an “accidental head injury with a normal CTscan, otherwise well.”

[27]As time progressed in A & E however, J was sick and it was decided to keep him inovernight for intravenous fluids and observation. The consultant in charge also advised“to check FBC 1 and clotting.” There was also concern about the swelling and bruisinggetting worse and M reporting that J had not had a wet nappy for seven hours.

[28]On 26 April whilst still in hospital, J was seen by the ophthalmology team. A juniordoctor examined him who discussed the examination with Mr H, a consultantophthalmologist who reviewed the examination. The note of the examination recordedthe following:

“Paeds team noted initial haematoma at the right side of the forehead which tracked downto the eyes yesterday-report white eyes with full ocular motility prior to lid swelling…. Examination: Bilateral lid ecchymosis 2 and swelling…with right eye swollen shut. Able toprise the right lid open slightly-white conjunctiva, fixing and following, no limitation inocular motility, difficult to examine the lid reflex. LE conjunctiva white, cornea clear onfluorescein staining, full ocular mobility, normal red reflex.”

[29]During this admission, no safeguarding concerns were raised by the hospital. Thehospital recorded the parents as being “very appropriate throughout time in ED.”

[30]Nonetheless, the local authority maintains that J was deliberately injured on or around24 April.

[31]On 27 April, J fell again. This was recorded in a message sent by the mother where shedescribed J as “went all wobbly and fell, hitting his head again..”.

[32]M took time off work to look after J. He returned to nursery on 2 May where the motherwas also working at that time.

[33]On 3 May, M took J to her GP, Dr S. She said that J had gone off his food and hadbecome “fussy” about his milk.

[34]I set out the note of the consultation:

“History: seen with mother discahrged from hospital last week folowing accidental head injury resukting in bruisingover eyes and forehead - has follow up arranged with opthalmology in 1 week at time of discahrge was only making one wet nappy daily but this has not imporved, verypoor oral fluid mother reckons 10oz of fluid and one mouthful of solid food veries between b=layinga nd being irritable drowsy mild fever nursery sent home yesterday due to recessions in chest bowels opening normally veries between b=layinga nd being irritable drowsy mild fever nursery sent home yesterday due to recessions in chest bowels opening normally 35. mother concered that has white coating on tobgue that was nto there priorMedication: Nystatin 100,000units/ml oral suspension 1ml To BeDropped Into The Mouth Four Times A Day. 28 ml 36. Examination: Tympanic temperature 37.8 degrees C nurofen at 7.00amirritable 37. old bruising over eyes 38. rigth eyelid still a bit swollen 39. throat red and infalmed 40. white couated tongue 41. HS 1+2+0 42. chest rigth sided wheeze, mild subcoastal receesion 43. abdo SNT 44. Comment: given very poor urine output, sx of viral LRTI very poor oralfluid intake for immediate paeds A+E review.”

bowels opening normally

[35]Dr S said that he told M to go to A & E immediately. He produced a copy of the letterthat he gave the mother for the hospital. The letter was also recorded in his notes. It wasa standard letter made up from a template used for such letters which allowed him totranspose the consultation notes into a letter.

[36]J was prescribed Nystatin which Dr S explained was an anti-fungal medication and notan antibiotic. It was to address J’s white tongue. The need to go to hospital arose out ofJ’s poor urine output and oral fluid intake.

[37]M understood Dr S to say that J had a throat infection for which he prescribed oralantibiotics. She did not understand him to say that J needed to go to hospitalimmediately. M also said that she was not given a letter by Dr S. The local authoritycriticises M for failing to follow Dr S’s advice. It also claims that the parents’ inactionplaced J at risk of harm as the events of 6 May revealed.

[38]On 4 May, J appears to have bumped his head in the night. M sent a message to CWwhere she remarked that the “swelling had come up again” and that she thought that Jhad bumped his head in the night.

[39]On 6 May, J was having blueberry porridge for breakfast. M said that his lips suddenlyturned blue and became swollen and his breathing was heavy. The parents took J tohospital leaving H with a friend.

[40]The medical notes recorded that J had eaten something which “has caused his lips toswell and start dribbling.” It went on the note that:

“..has bronchitis and crackling noisy breathing-last week fell and hit headhas severe bruising around eyes.”

[41]J was admitted to hospital for observation “post anaphylactic reaction.” There werealso concerns about J being drowsy since his discharge on 26 April and that hishaemoglobin level had fallen from 103 to 75 that day.

[42]The hospital gave medication to deal with what was a possible allergic or anaphylacticreaction. J also had an increased temperature and signs of a chest infection. Blood testsshowed a drop in haemoglobin that necessitated a blood transfusion. The following day,7 May, J was given a blood transfusion.

[43]On 8 May, J was recorded as improving slightly after the blood transfusion. However,he was noted to be refusing feeds “since yesterday” and had vomited after some bottlefeeds. He had watery diarrhoea, was pale and had “sluggish bowel sounds.”

[44]A CT scan reported a “a large galeal haematoma seen on the right side around thefront, parietal and temporal regions with preseptal haematoma overlying the rightorbit”. The neurosurgery team advised that no intervention was required.

[45]During his time in hospital, J’s blood was checked. A second blood transfusion wasconsidered at one stage. The doctors also noted (as did M) that “swelling and bruisingbilaterally and periorbitally” had increased and there was “fluctuant swelling” in botheyes. On 10 May, J’s left eye was barely able to open and on 11 May, J was noted tohave “difficulty” opening his eyes.

[46]On 14 May, J was recorded as looking pale; both ears were described as being“red/purple swollen”; his eye was “opening better.”

[47]On 17 May, J was finally discharged from hospital. The parents purchased a helmet toprotect J although on 23 May, it appears that he hit his head again. On 4 June, M saidthat the swelling had gone down and J had “pretty much gone bk [sic] to normal 3”.

[48]The local authority maintained that J is likely to have suffered further injuries betweenleaving hospital on 26 April and being admitted again on 6 May. Moreover, J’s poorhealth indicated that the parents failed J by not taking him to hospital on 3 May asinstructed by Dr S.

[49]On 5 June, M said that J was asleep in his crib but woke up crying. It was around 7.30amto 8am. The mother was in the shower but got out when she heard J crying.

[50]She noticed a small graze and a bruise on J’s head. She did not know how this occurredbut assumed that he either bumped his head on the musical box in his cot or on thewooden cot itself. F was not at home when this happened. He had gone to a hospitalappointment and taken H with him.

[51]M took J to hospital. He vomited on the way and was more sleepy although he wasresponsive.

[52]The medical notes recorded the following: 63. 3 Bk-back. Taken from WhatsApp message. “L parietal - 15x15mm swelling, erythematous 4 Area of bruising above left eyebrow 5mm cut and bruising below the left eye Old bruising under right eye and right side of chin New area of swelling over the right eyebrow, 22mm scratch above righteyebrow, on forehead with an overlying area of erythema 2 small scabs below the lateral aspect of the right eye Small area of swelling to the right parietal aspect Both ears swollen and bruised - 5mm cut on the top of the left pinna 2mm cut behind the right ear Standing with support Grabbing objects - palmar grasp Looking around,PEARLA 5” Area of bruising above left eyebrow Old bruising under right eye and right side of chin Small area of swelling to the right parietal aspect Both ears swollen and bruised - 5mm cut on the top of the left pinna Standing with support Grabbing objects - palmar grasp Looking around,PEARLA 5”

Both ears swollen and bruised - 5mm cut on the top of the left pinna

[53]The report of a CT scan noted that:

“CT report - No intracranial haemorrhage, space-occupying lesion oracute focal intracranial lesion is shown. No skull fracture is shown.Previously there was a large right frontoparietal extracranial soft tissuecontusion/ haematoma as shown on previous CT scans. There is someresidual, reduced swelling at this location now.”

[54]Around 3.30pm, M asked the nursing staff if she could go for a walk with J. They agreedas he had been in the hospital by then for eight hours. M was reported to have been“very compliant and appropriate with [J] and the staff.” In fact, M left the hospital.

[55]The hospital records note that at 5pm, M telephoned the hospital and spoke to a nurse.The nursing note sets out what transpired:

“Telephone call received in Children's ED from female who introducedherself as [J]'s mother. She was requesting if I could disclose the findings of [J]'s blood results. I explained that I am no longer involved in [J]'s care and he has beenreferred to Paediatrics. As the intention was to admit [J] she could return to ED and the SpRwould happily discuss this with them. She advised she was unable to do this, I enquired as to why and wasadvised that she cannot go into detail as the reason she cannot return ispersonal. 4 Exhibiting abnormal redness of the skin. 67. I discussed with SSN Jo Schilling and to her advice is that they should nothave left the hospital and the mother had advised she was taking [J] for awalk. 68. I notified the Paeds SpR immediately as I was aware this case waspotentially a safeguarding admission and she made contact with mum.”

[56]Dr DJ was the Registrar who was dealing with J. The nurse told her about M’s telephonecall. Dr DJ therefore phoned M and her note sets out what transpired: “I called Mum back immediately stating that we need to admit [J] so sheneeds to come back to hospital. I explained that I have spoken to theconsultants and we need to admit [J] to further investigate and get to thebottom of what is causing the bruising. We are concerned about the extentof bruising from an insignificant injury. Mum stated she will come backbut would not given us a time. Mum called back about 10-15 mins later asking what would happen if shedidn't bring [J] in. I explained that we would have to call the police andinform social services. We are concerned about [J] from a medical pointof view and therefore we want him to be admitted. Mum handed the phoneto Dad who was very angry. Stated that: - He does not trust us as the last admission lasted 2 weeks and we didn'tfind out the cause of the bleeding/bruising - He feels [J] is fine and there is nothing wrong with him. He was told tolook out for boggy swellings which he does not have - Asking how long hewill be admitted for. I explained that I don't know how long it will be andit depends on the investigations needed - Stated that they have an older child and we are splitting up their family.States that the 7yo will become very distressed at not seeing his Mum orbrother - States that he will need to do the school run for his older child which hecannot do. He can't afford to take time off work and won;t be able to payrent so they won't have anywhere to live. - Stated that he 'doesn't want to hand his child over to us' and that we arethreatening him and leaving him with no choice as we will have to call thepolice. I tried to offer solutions including getting family and friends to help withschool runs and look after the older child. I have also explained that Mumand Dad can swap on the ward so Mum can go home to spend time withthe older child. Dad very angry despite this. I explained I will again speak to theconsultants and call them back but suggested that I don't think the decisionre. needing to admit will change.” - He does not trust us as the last admission lasted 2 weeks and we didn'tfind out the cause of the bleeding/bruising - He feels [J] is fine and there is nothing wrong with him. He was told tolook out for boggy swellings which he does not have - Asking how long hewill be admitted for. I explained that I don't know how long it will be andit depends on the investigations needed - Stated that they have an older child and we are splitting up their family.States that the 7yo will become very distressed at not seeing his Mum orbrother - States that he will need to do the school run for his older child which hecannot do. He can't afford to take time off work and won;t be able to payrent so they won't have anywhere to live. - Stated that he 'doesn't want to hand his child over to us' and that we arethreatening him and leaving him with no choice as we will have to call thepolice.

[57]Dr DJ discussed the matter with her consultants who agreed that J needed to return tohospital for what was described as a “safeguarding work up” and that the police shouldbe called if they did not return. She phoned M who agreed to bring J back to the hospitalwhich they did at 7pm.

[58]Another doctor saw M and F. The notes recorded the conversation with them:

“Parents and [J] seen by Dr B…. Explained the following: - We are concerned about the extent of bruising that [J] has - We have spoken to the haematology team who have explained that alltheir investigations are normal. There is one test still to be done but thisis also expected to be normal - We therefore need to further investigate and get to the bottom of whathas caused the bruising - We are obliged and legally bound to investigate all children who haveunexplained bruising with a skeletal survey - this is multiple x-rays of allthe bones to look for any breaks/fractures. Explained to parents that werecognise this is difficult but we are not accusing them of abusing theirchild. We have to however follow our guidelines and do what is in the bestinterest of the child. - We will also get medical photography to take photos - He will have an ophthalmology review tomorrow - We will take some photos on the A&E camera now and also do a bodymap.” - We are concerned about the extent of bruising that [J] has - We have spoken to the haematology team who have explained that alltheir investigations are normal. There is one test still to be done but thisis also expected to be normal - We therefore need to further investigate and get to the bottom of whathas caused the bruising - We are obliged and legally bound to investigate all children who haveunexplained bruising with a skeletal survey - this is multiple x-rays of allthe bones to look for any breaks/fractures. Explained to parents that werecognise this is difficult but we are not accusing them of abusing theirchild. We have to however follow our guidelines and do what is in the bestinterest of the child. - We will also get medical photography to take photos - He will have an ophthalmology review tomorrow - We will take some photos on the A&E camera now and also do a bodymap.”

[59]The next day, 6 June, a consultant spoke to the parents to explain what was happeningand also gave them a safeguarding leaflet.

[60]J was seen by Mr H, the consultant ophthalmic surgeon. He recorded that there were“multiple bruises at different stages of healing” and that there was a “subconjunctivalbleed.” He noted that “injuries consistent with N.A.I.”

[61]Later that day, the police arrived at the hospital and arrested both parents. They weretaken to the police station and interviewed under caution. J remained in hospital.

[62]J and H were placed under police protection. H was placed with his maternalgrandmother. J was discharged from hospital on 8 June and placed in foster care.

[63]The local authority claims that J suffered further injury on 5 June and raised concernsabout J being taken home from hospital that day and the reluctance of the parents toreturn him to hospital.

[64]Thereafter, proceedings commenced as I have said, an interim care order was made andthe children were placed with their maternal aunt where they remain.

The Law

[65]I turn now to the relevant law. I set out the main principles although I also have regardto the parties’ legal submissions and the various authorities to which they refer.

[66]To state the obvious, these proceedings are public law proceedings where the localauthority may ultimately seek a care or supervision order. If so, it must pass what iscalled "the threshold". This is found in section 31(2) of the Children Act 1989, whichprovides that:

"(2)A court may only make a care or supervision order if it is satisfied: (a) that the child concerned is suffering or is likely to suffersignificant harm; and (b) that the harm or likelihood of harm is attributable to: i. the care given to the child or likely to be given to himif the order were not made, not being what it would be reasonable to expect a parent to give him."

The other limb of the test at section (2)(b)(ii) is not relevant in this case.

[67]When determining the allegations made by the local authority in the Scott Schedule thatcomprise the threshold findings, the court needs to have in mind certain matters.

[68]The burden of proof in respect of the allegations falls on the local authority who bringsthese proceedings and who have identified the findings that it asks the court to make.

[69]Where a matter has to be proved, the burden of proof is the civil standard, namely thebalance of probabilities. To quote Lord Hoffman in Re B (Children) (2008, UKHL3520): “…If a legal rule requires a fact to be proved (a “fact in issue”), a judgeor jury must decide whether or not it happened. There is no room for afinding that it might have happened. The law operates a binary systemin which the only values are 0 and 1. The fact either happened or it didnot. If the tribunal is left in doubt, the doubt is resolved by a rule thatone party or the other carries the burden of proof. If the party who bearsthe burden of proof fails to discharge it, a value of 0 is returned and thefact is treated as not having happened. If he does discharge it, a valueof 1 is returned and the fact is treated as having happened”.

[70]There is no obligation on the parents to provide, much less to prove, an alternativeexplanation for the allegations made (see Lancashire -v- R, W and N [2013] EWHC3064). The burden of proof cannot be reversed (see Re M (Fact Finding: Burden ofProof

[2012] EWCA Civ 1580

). The seriousness of the allegation or consequences offact finding do not affect the need to make findings on the balance of probabilities (seeRe BR (Proof of Facts)

[2015] EWHC 41

[71]Findings of fact must be based on evidence. As Lord Justice Munby (as he then was)observed in Re A (A Child) (Fact-finding hearing: Speculation) (

2011 EWCA Civ 12

“…It is an elementary proposition that findings of fact must be based onevidence, including inferences that can properly be drawn from theevidence and not on suspicion or speculation.”

[72]I also have regard to the comments of Dame Elizabeth Butler-Sloss P in Re T (2004)EWCA Civ 558 regarding the need for the court to survey to wide canvass of evidence: “…Evidence cannot be evaluated and assessed in separatecompartments. A judge in these difficult cases must have regard to therelevance of each piece of evidence to other evidence and to exercise anoverview of the totality of the evidence in order to come to the conclusionwhether the case put forward by the local authority has been made out tothe appropriate standard of proof.

[73]The evidence of the parents and any other carers is of the utmost importance. It isessential that the court forms a clear assessment of their credibility and reliability. Theymust have the fullest opportunity to take part in the hearing and the court is likely toplace considerable weight on the evidence and the impression it forms of them (see ReW and another (Non-accidental injury) [2003] FCR 346).

[74]I direct myself to the fact that the parents may have particular reasons for lying and thatthose lies do not necessarily mean that their evidence is also untruthful about othermatters (R v Lucas, 1981 1 QB 720).

[75]I also recognise that human memory is not infallible (see Gestmin -v- Credit Suisse

[2015] EWHC 3560

). In Lancashire County Council v The Children

[2014] EWFC 3

Justice Peter Jackson (as he then was) opined that:

“…I would only add that in cases where repeated accounts are given ofevents surrounding injury and death, the court must think carefullyabout the significance or otherwise of any reported discrepancies. Theymay arise for a number of reasons. One possibility is of course that theyare lies designed to hide culpability. Another is that they are lies told forother reasons. Further possibilities include faulty recollection orconfusion at times of stress or when the importance of accuracy is notfully 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 memoryshould also be considered, as should the effect on one person of hearingaccounts given by others. As memory fades, a desire to iron out wrinklesmay not be unnatural – a process that might inelegantly be described as"story-creep" may occur without any necessary inference of bad faith.”

[76]Medical evidence must be considered in the context of all the evidence.

[77]In A County Council v K D & L

[2005] EWHC 144 (Fam)

Mr Justice Charles observedthat: "39. To my mind it is important to remember: i) that the roles of the court and the expert are distinct, and ii) that it is the court that is in the position to weigh the expertevidence against its findings on the other evidence, and thus forexample descriptions of the presentation of a child in the hours ordays leading up to his or her collapse, and accounts of events givenby carers. … 44. ….in cases concerning alleged non accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision.”

[78]This view was endorsed by Mr Justice Baker (as he then was) in Re JS (A minor)

[2012] EWHC 1370

[79]When assessing expert evidence, I also have in mind that cases involving 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, whereappropriate, to the expertise of others (see Re S

[2009] EWHC 2115 (Fam)

[80]When seeking to identify the perpetrators of non-accidental injuries, the test of whethera particular person is in the pool of possible perpetrators is whether there is a likelihoodor a real possibility that he or she was the perpetrator (see North Yorkshire CountyCouncil v SA

[2003] 2 FLR 849

[81]In Re S-B (Children)

[2009] UKSC 17

, Lady Hale SCJ held that:

“….if the judge cannot identify a perpetrator or perpetrators, it is stillimportant to identify the pool of possible perpetrators. Sometimes this willbe necessary in order to fulfil the "attributability" criterion.”

[82]I turn now to the evidence.

The Medical Evidence

[83]The medical evidence comprised doctors who gave expert opinions in this matter anddoctors who were involved in J’s care last year.

[84]The expert medical evidence developed as the case progressed. It is thus found inreports prepared by the experts, correspondence dealing with questions raised and atranscript of a meeting between all of the experts.

[85]At the experts meeting, the view was taken that a report from a consultant geneticistwas advisable. This was obtained in time for the experts to consider it before thehearing. Crucially, it allowed the experts to finalise their view.

[86]The experts are all respected specialist doctors whose reports were well written andhelpful. Rather than simply repeat the contents of their reports, I shall summarise somekey points that emerged from their evidence. That a particular matter or fact is notcontained in my summary does not mean that I have ignored it or that it has a lesserimportance.

[87]By way of introduction, it is helpful to clarify some medical terms used by the expertswhich featured heavily in the case.

[88]Subgaleal refers to the location of the condition which is on the head between the skinon the scalp and the skull; or in medical terms between the periosteum and galeaaponeurotica.

[89]A haemorrhage designates that there is active or ongoing bleeding in the subgaleal areaof the head. It is usually observed in neonates after delivery by vacuum assistance andin children with minimal head trauma, such as hair combing or braiding.

[90]A hematoma identifies bleeding that clots, which changes from a liquid to a partiallysolid form caused by rupture of the emissary veins.

[91]I have included a diagram of the head in the Schedule to this judgment to put the areaunder discussion in context. The diagram did not form part of the evidence but was onethat I utilised for my own assistance.

[92]A subconjunctival haemorrhage is when a blood vessel breaks in the white of the eye.Blood builds up below the conjunctiva and causes a flat, bright red patch in the whiteof the eye. It is similar to a bruise on the skin.

[93]Mr Jayamohan is a consultant paediatric neurosurgeon. He gave oral evidence at thehearing.

[94]The following emerged from his evidence:(a) One possibility for J’s injuries could be a head injury inflicted on J whenhe was hit multiple times over a period of months.

(b) Another possibility was that there was an impact such as the onedescribed by M in April that was followed by evolution of injuriescaused by the redistribution of bleeding from the subgaleal haematoma.

(c) Subgaleal haematoma’s were:

“…rare in toddlers but are seen with neonates who usuallyhave difficult deliveries and these are often associated withinstrumentation. So, the level of force required does seem tobe usually significant (as is involved duringinstrumentational deliveries) and involving some level oftrauma.” (d) Whatever the court’s findings about the cause of the injury, it was stillunusual because of its progressions over the months. J’s case should beconsidered on an individualised basis. (e) J’s presentation was unusual and also an unusual way to sustain asubgaleal haematoma. However, it was a possible mechanism. In theserare cases, statistical analysis did not help. (f) A subgaleal haematoma should resolve after two months to the point thatit was as if J had not had a “subgaleal space injury.”

This also meant thatduring the two month period, J was vulnerable to reinjury. Thus,following the April incident or an accidental fall, the tissue remainedvulnerable to reinjury from normal handling or force that was not theresult of an abusive act. (g) When asked about the physical and physiological processes likely tohave been at play when J sustained his subgaleal haematoma, MrJayamohan referred to a shearing or sliding mechanism which causedmovement of the scalp in relation to the underlying bone and tissue so asto rupture the vessels bridging the space; a sliding motion rather than astraight impact. Although an unusual fall, if the head moved against ahard surface in a downward or scraping/shearing motion, the vesselscould bleed which would lead to the subgaleal haematoma. (h) Reinjury could not take place by the further significant force beinginflicted but by the application of a lower force; this would include thoseseen in a domestic environment. However, the presentation wouldappear to be abusive. (i) It was “in the parent’s favour” that there were photographs and clinicalnotes of the scalp changes whilst J was in hospital. Without thisinformation, Mr Jayamohan said:

“I would be less pushing of my suggestion that this may be an exuberant reaction, he shows a rapid change even in the first couple of days and the medical records which document change almost under the eye of the paediatricians.” (j) An impact between the head and the side of the cot or on the music boxin the cot could account for the June injuries. (k) There was no significance to the fact that prior to 24 April, when J hadfallen or bumped himself, he did not react the same way. (l) If there had been significant intracranial injury to the brain, MrJayamohan said that he “would not be voting for the radiator incident asa potential cause of the injury.” (m) When asked about a scenario where the injury had not happened asdescribed and it would mean that J had suffered inflicted injuries onseveral occasions, Mr J answered that: “If I am incorrect with my possible hypotheses this boy hasbeen hit multiple times over a period of months but I don’tsee any evidence of brain disfunction clinically and there isnothing on the brain scan, he would have to be hit enough tocause the scalp injury but not enough to cause anything else,it becomes equally unlikely doesn’t it?”

[95]Mr Jayamohan’s comments about the injuries made at the expert’s meeting are important to note:

“So there is clearly a swelling that was just right sided that would fit with an impact, but which had then significantly increased to be all over the forehead and around by the time he was in hospital. So unless we’re going to opine that after the 999 call, this child had another head injury, so with no reported one, it would have to be afurther inflicted head injury after the 999 call and video check hadbeen done, there seems, from the clinical evidence of a right sidedforehead bruise, followed by an egg sized bruise, followed by acrossthe whole forehead bruise, progression from that one area ofimpact over that time period. So that was my logic for saying, “Yes,this is really rare, but it’s also really rare to get a child who’s gotmultiple or very significant swellings from impacts. Let’s suggestthen, if it was multiple, it would be an inflicted injury, but withoutany intracranial injuries whatsoever. So either of these options is unusual, but I couldn’t really see a waythat I would say that the non-accidental multiple impacts withoutbrain injury are a higher likelihood than the single impact and thenthe exuberant or the unusual subgaleal swelling. Is that a fairsummary, Ms Allan and chaps, of what I said and I shared thescreen? If you want, I can do that again to just explain it, but it’s asubgaleal haemorrhage that was seen in this case, so I’m not sayingthat there isn’t, hasn’t… there couldn’t be multiple non-accidentalimpacts to this child’s head. I guess what I’m saying is that wouldbe quite unusual without any brain injury, albeit within the limits ofCT scan. Now, the other way, the scalp swelling would be unusual,but they both kind of seem as 2 possibilities, which eventually I thinkis not down to us to make that call.”

[96]Dr Keenan is a consultant paediatric haematologist who carried out extensive tests onJ’s blood. He was not called to give evidence as his unchallenged conclusion was that“the bruising and bleeding observed in [J] should be considered to have occurred in achild with a normal blood clotting system”.

[97]Dr Cardwell is a consultant paediatrician. He gave oral evidence. His view was that:(a) Subgaleal haematomas are “uncommon in children” and were “morereported in the neonatal period with an association with ventousedelivery…which can result in shearing of the emissary walls.”

(b) He deferred to Mr Jayamohan regarding the development and evolutionof the subgaleal haematoma.

(d) Some of J’s injuries could be non-accidental and some accidental.

(e) If M’s account of the 24 April was accepted, it could explain the injuriesto J that day.

(f) The injuries in June could have resulted from the fall described by Mwhich would be secondary to the underlying abnormality of the scalpfrom April and the tissue on the head and face being vulnerable to injuryat a lower force.

(g) The injuries in June could also be the result of inflicted injury as a resultof blunt trauma.

(h) The magnitude of the forces applied to the head in May and June werenot significant and would not normally give rise to the injuries seen on

(i) The evolution of the injury after April made the tissue on the head andface vulnerable to further injury from a reduced level of force.

(j) The subconjunctival haemorrhage was unlikely to be as a result of bloodtracking from the subgaleal haematoma.

(k) On 5 June, J appeared to have suffered new injuries of a linear abrasionand subconjunctival haemorrhage which could have been caused by anew injury or trauma.

(l) J may not have come to harm as a result of not going to hospital on 3May and instead going on 6 May.

(m) He deferred to Dr Lavy regarding the cause of the subconjunctivalhaemorrhage.

[98]Dr Lavy is a consultant ophthalmic surgeon. He gave oral evidence and the followingemerged:(a) He accepted the opinion of Mr Jayamohan and the possibility of theevolution of the injuries, even though it was rare. This theory was alsovalid for the whole presentation of J’s head including the periorbitalregion.

(b) The subconjunctival haemorrhage seen in J’s right eye on 6 June couldhave appeared after the injuries that occurred on 24 April.

(d) An intervening injury was a possible cause of the subconjunctivalhaematoma. It was also possible that it existed since April.

(e) The nursing notes on 24 April and 7 May recorded J reacting to light.Commenting on the suggestion that these examinations were notconsistent with the suggestion that the subconjunctival haematoma couldnot be seen in April due to swelling, Dr L said that it was because onedid not have to open the eye that much to see the cornea and pupil. Toexclude a subconjunctival haematoma, the eye would have to be openedconsiderably more to be sure that one was not present. Moreover, thenurses were doing neurological observations to check that the pupilswere equal and reactive to light and they would not be looking for asubconjunctival haematoma

(f) The subconjunctival haemorrhage was not observed in May as theexamination was conducted by a nurse whose examination would notnecessarily reveal its existence.

(g) The existence of a subconjunctival haemorrhage was not necessarily theresult of an inflicted injury.

(h) There was only one subconjunctival haemorrhage and because of theway these develop, it was difficult to make too much of this in terms ofan indicator of non-accidental injury.

(i) There was no separate ophthalmic or periorbital injury sustained beforethe May admission.

(j) The injuries seen on 5 May and 6 June are likely to be the same injuriesresolving and the photographs do not demonstrate that there were freshinjuries in May.

(k) The subconjunctival haematoma could manifest itself in the same wayover time as the main injury did.

(l) The April injury was hard to attribute to falling against a radiator andonto the floor.

(m) Regarding the mechanism for the subconjunctival haematoma:

“[J]developed very marked black eyes around both eyesand both eyes closed over. That says to me there was furtherspreading of blood or bleeding in or around the eyes. It isnot inconceivable to me that the bleeding could have beendeeper. The black eyes are because of bleeding in the lids,and subconjunctival haematomas are essentially from in thetissues around the eye so a subconjunctival haematomacould appear subsequent to the first injury in the same wayas the black eyes developed subsequent to the injury.” (n) He also stated that: “The conjunctiva is the skin on the surface of the eye soeither trauma to the surface such as a snag from a fingernailor it comes from further back behind the eye, and comes upunderneath the conjunctiva. Anatomically, a classic blackeye is caused by blood in the eye socket which is similar inorigin to a subconjunctival haematoma coming from behindor around the eye, and being seen underneath theconjunctiva. And therefore in the context of a child with somuch bruising around the eyes, a little bit of extra bloodunder the conjunctiva would not be enough to suggestanother cause for the subconjunctival haematoma. I wouldput that together with the massive bruising around the eyeand say that whatever caused the bigger injury caused thesubconjunctival haematoma. Not that I am right but there isnot any reason to think two different injuries here.”

[99]Dr Irving specialises in clinical genetics. She prepared a report. Her conclusions were accepted and she therefore did not give oral evidence.

[100]Dr Irving did not identify any factors that would raise a concern about an underlying genetic disorder; there was no underlying genetic cause as the reason for J’s presentation to hospital with extensive bruising in May 2023; J did not have Ehlers- Danlos Syndrome (“EDS”) or any other genetic disorder; there was no other condition that would make him susceptible to bruising.

[101]Three doctors who treated J at some point were called to give evidence. I have alreadyreferred to their involvement in the background narrative.

[102]Mr H, the consultant ophthalmic surgeon, saw J on 26 April and on 6 June.

[103]He accepted that he was not an expert in the field of bruising following a subgalealhaemorrhage. He said that a subconjunctival haemorrhage could occur accidentally. Herecorded J’s injuries in June as non-accidental because of the bruising.

[104]Mr H had little recollection of how J appeared when he saw him on 26 April. Heaccepted that a junior doctor examined J and discussed the matter with him.

[105]Dr DJ saw J on 24 April in A & E. On that occasion, she reviewed him and afterdiscussion with the consultant, he was admitted to hospital.

[106]She also saw J on 5 June. I have already referred to her notes which set out whattranspired.

[107]Dr DJ recalled the parents returning to the hospital at 7pm on 5 June. She did not recallthat F was aggressive or angry when he returned to the hospital and if he had been, itwould have been written in the notes. Equally, she did not recall F apologising for hisbehaviour earlier that day.

[108]J’s GP, Dr S, said that his notes were written during the patient consultation. The notessaid that he told M to take J to hospital because of his poor urine output and reducedoral intake. He was sure that he would have printed off the letter for the hospital inaccordance with his normal practice. He would also have emphasised that M should goimmediately to hospital as he recorded in the notes.

Conclusions of the Expert Medical Evidence

[109]I am very grateful to the medical experts who spent much time not only preparing theirreports but considering matters further as more information became available. I alsowant to acknowledge Dr Irving who came late to the case and was still able to producea detailed report very quickly.

[110]The doctors who gave evidence were all specialists in their fields and gave helpful andfocussed answers. They all explained matters carefully and with thought. I am gratefulfor their input into this case.

[111]Whilst in no way diminishing the standing and evidence of the other medical experts,Mr Jayamohan deserves particular recognition. He was very impressive. Mr Jayamohanwas a key expert in this case and embraced that role. His answers to questions wererazor sharp and clear leaving no room for doubt. I found him to be the most helpfulmedical witness.

[112]Turning to the lay medical evidence, Dr DJ recalled J and gave helpful evidence. Dr Scame across as a competent and diligent doctor.I found Mr H to be somewhat vagueand his evidence was not particularly helpful. Albeit completely understandable, he didnot come across as really recalling J in much detail.

[113]The following emerged in my judgment from the expert medical evidence.

[114]First, it was clear that J’s condition was unusual and should be considered on its ownmerits.

[115]Second, there were two possibilities to explain J’s injuries.

[116]The first is that they were caused with an impact on 24 April followed by an evolutionof injuries caused by the redistribution of bleeding from the subgaleal haematoma.

[117]The second is that J was hit multiple times over a period of months. Dr Cardwell raisedthe possibility of a third option being a hybrid causation with some injuries beingaccidental, others non-accidental which I also accept.

[118]Third, it was also open to the court on the medical evidence to decide whether theinjuries evidenced an accidental or non-accidental injury or a hybrid. In either situation,a low impact force will have caused the injuries given the absence of brain injury orskull fracture.

[119]Fourth, ultimately what transpired is a matter for the court and in that regard, theparents’ evidence was crucial to form an understanding of events.

[120]Fifth, much was said about the subconjunctival haemorrhage.

[121]It was seen on 6 June both on examination and in pictures. The question arises whetherit was present earlier.

[122]Against it being present before 6 June is the fact that it was not seen on examination on26 April or 7 May. Instead, Mr H and medical staff at different times recorded that theeye was clear or at least that no subconjunctival haemorrhage was observed.

[123]In favour of the subconjunctival haemorrhage being present before 6 June is that first,Dr Lavy explained how the examinations carried out by nurses might not have pickedup the subconjunctival haemorrhage. Second, Mr H did not examine J on 26 April; ajunior doctor carried out the examination and then discussed the matter with Mr H so itcould have been missed. Third, the possibility existed that the subconjunctivalhaemorrhage manifested itself the same way as the subgaleal haemorrhage and thusappeared later.

[124]It seems to me though that the answer is really found in the picture evidence. A pictureof J on 6 June clearly showed J with the subconjunctival haemorrhage. A clear pictureon 19 May did not reveal anything. By May, the effect of the subgaleal haemorrhagewas observed; if the eye was to follow the same course, the subconjunctivalhaemorrhage should also have been present by that time. It was not, however. It seemsmore likely than not taking everything together that the subconjunctival haemorrhagewas not present in April and May but was a new event first observed in June.

The Lay Witness Evidence

[125]Turning to the lay witness evidence, Ms DG worked in the same nursery as M.

[126]She had known M for under a year as a co-worker. DG described M as kind and caring.There were no concerns about the way M worked at the nursery. M always engagedwith the children and ensured their needs were met. DG also said that J was well lookedafter and that he had a good relationship with M.

[127]DG described how she visited M in hospital and that M was upset and worried about J.DG was shocked when the children were removed from their parents.

[128]Ms JW was the manager of the nursery where M worked. They had worked togetherfor three years in a professional capacity.

[129]She described M as “brilliant” with the children and said that M had asked to do extratraining.

[130]Although the baby room at the nursery could be hectic, when M was there it was calm.M took everything in her stride. She would sit and sing to a crying baby. J was also atthe nursery and JW M as being “wonderful” with him and them having an ”amazingbond.”

[131]JW visited M when she was in hospital with J. She described M looking as if she hadnot slept and with worry over her face.

[132]JW was “completely and utterly shocked” and not able to “get my head around it” thatthe police and social services were involved with the family.

[133]Ms LB is J’s maternal grandmother. She was clearly distressed when she gave evidenceabout the events of the last year and very nervous. She did her best nonetheless to helpthe court.

[134]LB said that M had always wanted to work with children from a young age. M lovedher job at the nursery and was a good mother. She also explained that before J was born,M would go to her home when she had an argument with F “rather then screaming orshouting” in front of H.

[135]DG, JW and LB did their best to assist the court. I gained little from LB’s evidencewhich seemed to be somewhat confused at times. DG and JW’s evidence was helpfulas it spoke about M generally and her work with children and her relationship with J.

The evidence of the parents

[136]M and F both gave evidence over the course of a day. They were extensively cross-examined. They were both asked several times whether they had lied to the court, thepolice and/or social services and whether they had caused injury to J. M and F wereadamant that they were telling the truth and had not caused any injury to J.

[137]Prior to this matter, there had been no adverse findings against them by social servicesalthough they were known to them.

[138]H made allegations in 2020 about being pinched and there was bruising on his arm in2021 caused when playfighting with M. That year, H also said that M squeezed his handtight and made him sometimes sleep on the floor.

[139]In 2022, H’s school referred regular bruising and scabs on H to social services.

[140]On every occasion, investigations were undertaken which revealed no issues of concernwith the parents albeit that advice about safe play was given in 2022.

[141]Both parents filed statements and answered questions put to them to the best of theirability. The parents’ evidence though revealed a number of deficits both as to theirrelationship and regarding the events between April and June 2023.

[142]F told the police that his relationship with the M was “perfect.” However, he did notreally explain this in the context of messages where he berated M for not making hissandwiches and calling her lazy.

[143]Although F said he was not present on 24 April or 5 June when the injuries were saidto have occurred, F was adamant that he believed M to the point that he had not evenread her witness statements. He had also never discussed the events of April to Junewith M.

[144]I found this hard to accept between parents who must have been concerned about whatwas going on in their lives. It also did not fit with a message sent by M on 5 June to arelative saying that F was blaming her for everything and that he would “never forgiveme if J gets taken into care.”

[145]F accepted being angry on the telephone to the hospital on 5 June. F clearly did notwant J at hospital that day. It was clear that he placed pressure on M to leave and to notreturn to the hospital. This left M having to tell the nurse on the phone that she couldnot return for personal reasons.

[146]When matters reached the point where it must have been obvious to F that they had toreturn to the hospital, F was rude on the telephone. F said that he apologised for hisbehaviour when he arrived at the hospital. Dr DJ though had no recollection of anyapology nor was one recorded in the hospital notes.

[147]M referred to F being a frustrated person and LB recounted to the police that M wouldtake H overnight to her house to avoid the screaming and shouting at home althoughshe said in her oral evidence that this had occurred only once. F accepted that if he hada bad day at work M “got the brunt of it” although he denied that he was a generallyaggressive or angry person.

[148]In her interview with the police though, when M was asked about the events leading toJ’s return to hospital on 5 June, she was also asked about the F. She referred to himshouting, being controlling, sometimes angry and rude.

[149]I reproduce the relevant extract from the interview as it is instructive both in terms ofthe events on 5 June generally but also in respect of the picture painted by M of F:

“DC H: Okay. At this point were police mentioned at all by the hospital? M: Only when I called them and asked about the bloods and then my husbandtook the phone off of me and started talking to them. DC H: Okay, so yeah, that was around 5pm, hospital sort of flagged up that youdidn’t return and a call was made, you said to the hospital staff on the phone,‘What will happen if [J] was not brought in?’ Why did you ask that? M: ‘Cause my husband was asking me. DC H: Okay. M: And I asked them to repeat it when they were on speaker. DC H: Okay and was your husband listening to the conversation telling you whatto say? M: He took the phone. DC H: Okay. And you said, you’ve said, sort of said to me that you were worried,you wanted his injuries checked, why would you leave and go home? M: Because he told me to. DC H: Okay, are you scared of your husband? M: I'm not scared of him, he's just a little bit controlling. DC H: A bit controlling, okay. Okay. Right, and in that sort of phoneconversation, take your time by the way, if you do need a minute. And in your ownwords [J]’s dad took the phone, how would you describe his sort of mood whenhe took that phone call? M: Angry. DC H: Okay. So I'm aware on the phone call that [J]’s dad said that [J] is fine,he was also complaining about the rent being paid and getting time off work,didn’t want to bring [J] in and he said that the hospital were threatening withpolice getting involved. How do you feel about sort of [J]’s dad sort of prioritisingthat over [J]’s wellbeing? M: I don't think it’s acceptable, you know, it should have been his son, and belike, ‘No, you need to stay there’. DC H: Okay, so would you describe him as being quite an angry person? M: Sometimes. DC H: Okay. And how often would you say he gets angry? M: It depends what the situation is. DC H: Okay, and does he get angry towards you? M: He shouts at me and, he's never hit me or anything like that, he just shoutsand raises his voice, stuff like that sort of thing. DC H: And you mentioned he's quite controlling, sort of describe to me what youmean by controlling? M: Like if I go out, ‘cause I don't go out very often, if I do I always take the kidswith me, he gets the hump if I go out or like last, when was it, Saturday he toldme I don't do nothing and that I'm lazy and stuff like that. DC H: Okay, so [J] was brought back to the hospital around 7pm with you andyour husband. The hospital described you as being completely silent, almostnumb and that [J]’s dad sort of took over and was quite irate, quite angry, in theirown words they have described him as angry. M: Yeah. DC H: How was you feeling at that moment? M: Just upset that I left. DC H: Okay, and when you say he told you to come back, how did he say it? Canyou kind of remember what the conversation was? M: Angrily on the phone, it was like, ‘If you, you need to be in a taxi, I want a textto say that you're on your way back, if you're not then I'm coming up there andkicking off’. DC H: Okay, and why do you think he, that was his reaction? M: Probably because I didn’t call him to say that [J]’s hurt himself.6”

DC H: Okay and was your husband listening to the conversation telling you whatto say? DC H: Okay, are you scared of your husband? DC H: Okay, so would you describe him as being quite an angry person? DC H: Okay. And how often would you say he gets angry? DC H: Okay, and does he get angry towards you? DC H: How was you feeling at that moment? DC H: Okay, and why do you think he, that was his reaction? M: Probably because I didn’t call him to say that [J]’s hurt himself.6”

DC H: Okay, and why do you think he, that was his reaction?

[150]Examination of F’s phone revealed deleted messages from E, a female work colleague.

[151]Starting at 4.16am on 31 May 2023, E messaged:

“My kind of attitude, I am not gud at making revenge but I can ignore ur existence like I never meet u in mylife... …Pple need to learn that their actions do affect other pple...so be careful what u say and do …” …Pple need to learn that their actions do affect other pple...so be careful what u say and do …”

…Pple need to learn that their actions do affect other

[152]Another message on 31 May at 3.25pm stated:

“Why is it that no matter how much pain it endures by holding on...the heartrefuses to let go? …Dnt ever make someone Ur everything...cos if U loose them U will have nothing....” …Dnt ever make someone Ur everything...cos if U loose them U will have nothing....”

…Dnt ever make someone Ur everything...cos if U loose

[153]At 4.05am on 2 June:

“Happy birthday to a smart, kind and truly gorgeous soul. Blow out those candles and take the next year by storm. Sto latek!!!...” soul. Blow out those candles and take the next year by storm. Sto latek!!!...”

soul. Blow out those candles and take the next year

[154]At 2206 hrs the same day:

“Had a lovely evening..thank U soo much I really needed after stressful day..” needed after stressful day..”

[155]The local authority suggested that these messages indicated that the F was having a relationship with E.

[156]F denied any relationship with E. They were work colleagues. Messages were sent early in the morning as E and F were on duty. F deleted not only E’s messages but also other messages. F described how he was “OCD ish” about messages only retaining those from significant people such as M. 6 This extract is taken from the interview transcript; only the officer’s name and the mother’s name have beenaltered.

[157]On behalf of F, it was said that the messages from E could be read many ways. Thereference to the night out and having a good time referred to an occasion when a groupof work colleagues went out together. There was a message from another (male)colleague which also appeared to refer to the same event.

[158]To my mind, these messages do not necessarily evidence a relationship between F andE. The reference to “be careful what u say and do” could also have so many meanings.

[159]However, in the context of events that were going on at that time in the life of thefamily, I found it difficult to understand how F could justify going out regularly withwork colleagues when M was left at home and there was nothing to suggest she hadany real social life. The so-called group outing was at the end of May, a short time afterJ had been admitted on two occasions to hospital between 24 and 26 April and 6 and17 May.

[160]Indeed, M told the police on 6 June that she did not go out very often and when she did,F “gets the hump.” F going out was even more striking against the background of hisjob, its unsocial hours and the concomitant effect on the family and especially M of hisabsence.

[161]The parents had been together for fourteen years. My overall view is that therelationship was not at all perfect. F could be rude and angry and felt able to placepressure on M to the point that she told the police that she felt controlled. F felt able togo out with work colleagues at a difficult time for the family. M did not seem to havemuch of a life outside the family home. F felt able to blame M when things went wrongand get upset if M went out. Added to all this was the concern about money which Fmentioned as a concern if M was in hospital with J and unable to work. F was to laterincrease the pressure by his behaviour on 5 June and his overriding concern that anadmission to hospital would split up the family.

[162]None of this painted a “perfect” relationship. If anything, it appeared a rather one-sidedrelationship that was not happy or smooth.

[163]I turn now to the specific events between April and June so far as the parents’ evidenceraised concern.

[164]For his part, F maintained that he was not present on 24 April and 5 June but as I havesaid, he accepted M’s account of events.

[165]M’s evidence was as unsatisfactory as it was worrying.

[166]I would have expected M to set out her account of events that transpired in those fewfraught weeks last year with some fluency obviously allowing for nerves whilst givingevidence. Instead, she delivered an account that was inconsistent and at times made nosense.

[167]I start with the events of 24 April.

[168]In her first witness statement, she said J fell on the radiator valve. In her secondstatement filed a day before the final hearing and in cross-examination, she said he fellon the side of the radiator.

[169]M also said that J hit his head on the wall as he fell down and there were “multipleimpacts”. When describing the event in evidence though, she referred to a slidingmotion down the wall after the radiator. This had never been mentioned before.

[170]She told the ambulance crew that J did not cry but told the emergency services handlerthat he did cry. H saw everything that happened but to the police, M said that he was inthe shower.

[171]In her latest statement, she said that J had started to pull himself up during the Easterweekend on 7 to 10 April; in her first statement and in her police interview, it was theweekend of the 22 and 23 April.

[172]M said that F turned on the radiator when he got up around 3am to 4am and then sheturned if off at 4.30am to 5am. That made no sense at all. By 7am when she got up, thehouse would be cold again and there was no reason why a radiator would be turned onfor such a short period of time when its effect would be minimal. This also raised thequestion of whether the radiator was hot when J fell against it and if it was, why M lefthim near that area or did not remove him quickly when he started to topple.

[173]Of even more concern is that the picture of J’s injuries on 24 April does not fit withM’s description of what happened. It shows two vertical grazes present on the head.That does not fit with falling onto a radiator nor sliding down a radiator and/or a wall.

[174]What is really worrying is that having gone over the M’s account in its various forms,considered the picture evidence and the layout of the house, I really struggle tounderstand what exactly happened on 24 April. M’s account simply made no sense. Iam somewhat fortified in this concern because the experts too had trouble trying tounderstand the mechanics of the fall.

[175]If J wobbled and fell onto the radiator, how did he end up also sliding down the wall?Would he not have fallen backwards on downwards on the radiator? How did he getfrom the radiator to the wall? Why did M not grab him when she saw the fall start? If the radiator was hot, that certainly made sense aside from the question of what he wasdoing there in the first place.

[176]Regarding the visit to Dr S on 3 May, M said that Dr S gave J antibiotics and she decidedto wait and see how he managed before going to hospital. The medication that Dr Sprescribed was in fact antifungal medication for J’s tongue.

[177]M denied receiving any letter from Dr S to give to the hospital and did not understandDr S to instruct her to take J immediately to hospital.

[178]Dr S said he was concerned about J’s poor fluid intake and urine output which formedhis decision that J should go to hospital “immediately,” which is what he noted in hiscontemporaneous record of the consultation.

[179]I accept Dr S’s evidence that the record was contemporaneous as he typed whilstdealing with the patient. This is also apparent from the spelling errors in the record. Therecord would therefore contain the words used by him to M.

[180]The record also referred to a letter which Dr S said was composed from a standardtemplate on the record system. Dr S was adamant to the point of saying he was ninety-five percent certain that he gave M the letter and told her to go immediately to A & E.That was his normal practice.

[181]Dr S came across as a competent and diligent doctor who was very sure of his practice.I accept that he gave M a letter to take to hospital in accordance with his normalpractice. The letter was included in the consultation record. There was nothing aboutsending the letter another day or sending it direct to the hospital.

[182]Indeed, any child with J’s immediate medical history of having recently beendischarged from hospital and presenting the way he did at the surgery on 3 May wouldclearly need attention.

[183]I really fail to understand how M could have misunderstood such that she decided towait and see how J’s health progressed, that she believed that his medication was anantibiotic and that also believed that she did not need to go to hospital immediately. Butthis is what she messaged to others; M, a person well educated and practised inchildcare.

[184]On 4 May, J bumped his head. By this time, there can be no doubt that J was unwell.He had seen the doctor the previous day. According to M, he was on antibiotics as hewas “poorly” but she did not take him to hospital nor did she proffer any explanation.She even said in cross-examination that she had no regrets about waiting until 6 Mayto take J to hospital.

[185]When describing the events of 5 June, M said in her statement that J was asleep in hiscot and she was in the shower. That is also what she told Dr DJ. However, wheninterviewed by the police her story changed to say that J was awake:

“ ..J was still asleep but he started to stir so I put him into his cot, soat that time was having a cuddle, he fell back asleep, the he started tostir so I put him back into the cot and I was getting into the shower..”

[186]M also sent a message to F that morning saying that she “thought he would be ok in hiscot for a couple of minutes” which suggested that J was awake.

[187]Of course, if J was awake, he was not wearing his helmet or some other head protectionwhich by then M and F had felt he should wear.

[188]M was asked about the cot and how J could have been injured. When interviewed bythe police at the hospital, the body worn footage revealed M to say that J only had ateddy bear and a blanket in the cot. She repeated that to Dr DJ at the hospital that day.However, when interviewed by the police on 6 June, M said there was a teddy bear,blanket and a music box.

[189]The music box was not in earlier photographs produced but was in the photograph takenby the police at the time of the June incident.

[190]M said that the music box was purchased to soothe J after the May admission. Themusic box was a hard object. In the context of parents purchasing a helmet for J andbeing concerned for the safety of his head, it made no sense to put a hard object suchas a music box in J’s cot. Indeed, the medical evidence is that the music box could havecaused injury to J. Moreover, a picture of the cot on 19 May did not reveal a music boxalthough I accept that it could have been purchased later.

[191]The local authority referred me to pictures of the cot taken in June by the police. A babybag, bottles and keys were lying in the cot.

[192]It was suggested that this was an attempt by M after she left hospital to set a scene tosupport J’s injuries. I do not accept that theory. None of these items in the cot couldhave caused the injuries sustained by J. M said that she threw them in the cot when shewent to hospital.

[193]Whilst I approach M’s account with caution, I cannot draw anything from the state ofthe cot and cannot conclude that the music box suddenly appeared on 5 or 6 June.

[194]The events later that day when M left the hospital are of concern.

[195]M asked the nursing staff if she could go for a walk with J as she had been at the hospitalfor many hours and the nurse agreed.

[196]Instead, M went home without telling anyone. M said that she thought it was alright togo home. That made no sense because no one had told her it was permissible and safeto leave. Moreover, she sent a message to F saying “walked out on way out” to whichF replied “what did they say” to which M replied “Advised me not to go.” Despite thismessage, F felt able to say in cross-examination that he knew of no reason why M couldnot leave the hospital.

[197]M had no right to take J home from hospital. She did so without permission and incircumstances where J had suffered further injuries which the hospital needed toinvestigate. Her actions put J at risk and neglected his health needs.

[198]I am also clear that M did not want to return to the hospital. She only returned aroundtwo hours after her conversation with the hospital and in circumstances where Dr DJtold her that if she did not return, the police would be notified. This left M with nochoice but to return.

[199]I am also satisfied that M was under pressure from F to return home and stay there. Fclaimed to be worried about the family being split and the financial considerations ofM not working if J were admitted to hospital.

[200]F had no right to be angry with the hospital. All they were doing was their job whichwas to care for J and understand what had happened to him. Moreover, F should haveput J before his concerns about money and splitting the family. Whilst I accept thatparents faced with a sick child can react in different ways, F’s reaction was notacceptable. He placed pressure on M to return home, to stay at home and when thatseemed unlikely, he vented his anger on the hospital. He said that he apologised but asI have said, it was never recorded, and I do not believe him.

Were the injuries caused deliberately?

[201]At this point, I stand back and consider the whole of the evidence. I give no specialstatus to the expert evidence and carefully weigh everything I know about the parents.

[202]I also have in mind the observations of Sir Mark Hedley in London Borough ofSouthwark v A Family

[2020] EWHC 3117 (Fam)

, when he said:

"182. If ever there was a case in which the court had to retain the bigpicture, both for the controversial and the uncontroversial evidence, thiswas it. Much of my time over the last four weeks in preparing thisjudgment has been spent not in writing or organising but in carefulreflection on that big picture. In the end, I have come to a conclusion thatthe Local Authority has failed to prove its case to the requisite standard.In reaching that position, I also have to recognise that I have no clearanswer to give as to how S died, since, and this is really common ground,none of the canvassed alternative suggestions could be clearlyestablished.… 187. Since this is at least the second time that I have concluded after along forensic enquiry that I do not know what has happened, I need to askmyself one hard question: is this simply a failure of judicial nerve to makea finding against a family such as this, the finding which is neverthelessrequired by the evidence as a whole? I ask that question not just becauseit occurred to me but also because I recognise that decisions in cases likethis are not driven exclusively by the process of reasoning. 188. There is an element in human judgment that lies beyond coldrationality as every experienced trial judge soon comes to appreciate. Inorder to test that, I have reflected carefully upon the position as it wouldbe were I to have found that the Local Authority had indeed establishedtheir case and this child had been sexually assaulted and killed by one ormore members of a family who had then conspired to conceal the truthfrom all legitimate enquiry. I discovered that such a conclusion would bean affront to my judicial conscience."

[203]I refer to my conclusions about the medical evidence. I have spent considerable timegoing over not only the extensive papers in this case but the evidence as a whole andmore particularly, the parents’ evidence. I have arrived at my decision after givingconsideration and anxious thought to this matter.

[204]Sadly, I have concluded that J’s injuries were deliberately inflicted. I do not believe thatthe parents have given truthful evidence to the court.

[205]I have carefully considered reasons why M and F might have not told the truth.

[206]M may have wanted to avoid an acceptance that her relationship with F and her lifegenerally was not perfect.

[207]She lived with a man who could be controlling; that was certainly evidenced in theevents of 5 June and how M left the hospital in accordance with F’s instructions.

[208]M may have been stressed by arguments which at least on one occasion led to herremoving herself from the family home to stay with LB. M also seems to have had alonely life.

[209]For his part, F seemed to place the maintenance of the family unit and the family incomeas a high priority especially as the events of 5 June demonstrated. It may be that Fbelieved that everything needed to be done to preserve the family unit.

[210]F’s need to cover the realisation that his relationship with M was a long way from the“perfect” that he described to the police may also have contributed to not telling thetruth. This might explain why he was adamant that he never questioned M’s version ofevents which some may feel any normal person would do in the circumstances F foundhimself in with J coming to harm when he was not at home.

[211]Nevertheless, do these potential reasons or explanations allow the court to concludethat the core of the parents’ evidence was nonetheless truthful? In my judgment, theydo not.

[212]I have taken into account that M is dyslexic and how that might affect theinconsistencies in her evidence, as well as the possibility of story creep. I also note thatthe hospital initially had no concerns about the parents who presented as caring andloving parents.

[213]The various messages at times provide a prima facie contemporaneous narrative of whatwas happening or going through M’s mind as well as evidencing concern of bothparents about J. Indeed, throughout the forensic analysis of the parents’ electronicdevices, there was seemingly no message that revealed anything sinister or untoward.

[214]M also spoke quickly to the emergency services on 24 April and did not object to themhaving a video call to observe J. M and F took steps to protect J by fitting a radiatorguard and buying a helmet and when F was arrested, he held J carefully when takinghim back to the ward.

[215]I also have in mind that the medical evidence supported a view that the injuries couldbe the result of an accident and were evolving which was observed under the eyes ofthe doctors in hospital when there was no opportunity for J to be harmed by his parentsand that the presentation of J on 6 May was entirely consistent with an allergic reaction.There is also the fact that M took J to hospital on 5 June.

[216]These are all points which cannot be dismissed, and which could go towards an outcomein favour of the parents’ case that J was not deliberately harmed by them or anyoneelse.

[217]Standing back though and looking at the wider canvass, there are other matters ofserious concern which cannot be ignored, and which place the so-called positive pointsin perspective to the point that in my judgment, they heavily weigh the scale against theparents.

[218]When considering the injuries, it is necessary to consider them in the wider chronologyof events. Accordingly, I shall include in my discussion other events upon which thelocal authority also seeks findings.

[219]I have set out my view of the parents’ relationship. F’s picture of a perfect relationshipwas untrue. F was a man who felt able to pressurise M not to leave the hospital and totry and make her remain at home on 5 June. This was controlling as I have said. F wasan angry person at times; certainly not afraid to shout at M or the hospital. He also feltable to go out with work colleagues when M seemed to just stay at home.

[220]Despite F being a person who felt able to tell M freely what to do and do as he liked, itmade no sense that he never discussed the events surrounding J’s injuries with M andhe never questioned M about what happened. This seemed the obvious thing for anycouple to do especially when F said that he was not present in April or June.

[221]Indeed, this certainly did not sit well with M’s message saying that F blamed her foreverything and F’s fear of the children being taken away and the family being split tothe point that he was prepared to allow J to forgo hospital investigations and possibletreatment.

[222]There are also the incidents in April and June where I feel unable to simply ascribe thecontradictions and deficits in M’s evidence as being down to story creep, nerves whengiving evidence or dyslexia. Her evidence revealed serious deficits which cannot beignored.

[223]I would have expected a normal parent to recount consistently and clearly albeit withthe odd embellishment or error, the events surrounding J’s injuries. M did not. As Ihave explained, her account of key events was often contradictory. The story about howJ fell on the radiator on 24 April made no sense. The photographic evidence of J didnot fit her description of what happened on any basis. That M contacted the emergencyservices soon after the alleged fall on the radiator cannot remove M’s failure to providea proper account or an account that properly explains what happened.

[224]On 27 April, J fell again. M described this in a message as J “went all wobbly, and fell,hitting his head again.” To the police, she said that he fell against soft furnishing whichshe described as pillows and toys. M and F did nothing about this incident.

[225]Whilst the fall may have been harmless in normal circumstances, J had been dischargedfrom hospital the previous day; his head had been hurt and he had suffered injurieswhich were getting worse at that time. In those circumstances, the very least M and Fcould have done was to contact the GP or dial 111 to seek advice. Instead, they didnothing.

[226]Talking about the event in messages somewhat aggravates the fact that they did nothingbecause they clearly saw it as an event that was worthy of comment but equally did notsee the need to seek some professional reassurance not to worry or to ask whether theyneeded to do something.

[227]Then there are the events of 3 May. This evidenced a complete failure to actappropriately in J’s best interests.

[228]J had been discharged from hospital a week earlier. The GP’s notes recorded a childwho was clearly not doing well at all; poor oral fluid intake, only one wet nappy daily,one mouthful of solid food, drowsy and irritable.

[229]In these circumstances, any parent would not have been surprised to be told that thechild needed to be seen at hospital. J was obviously unwell. Nonetheless, M seeminglymisunderstood the doctor’s instruction to go immediately to A & E, she deniedreceiving a letter for the hospital and thought J had been given antibiotics. This was anexperienced mother with an older child and who was qualified in childcare being theprofession she had always wanted to follow and study. I have already said that I acceptDr S’s account and prefer his evidence to that of M.

[230]Frankly, a child presenting as J did that day and given his recent discharge from hospitaldid not require a GP to say that J needed medical help. It should have been obvious.Indeed it was; the problem was that M did not want to hear or take that course of action.She did not want to go to the hospital.

[231]I accept that Dr Cardwell felt that J may not have come to harm by not going to hospitalon 3 May. However, that does not preclude a finding as to how the court believes Mshould have acted in the circumstances and in the face of Dr S’s advice. I also cannotoverlook the fact that J required a blood transfusion when he was admitted and how hewas generally unwell. His condition may not have medically been different on 6 Mayto his medical presentation on 3 May but from a welfare perspective, there was a failureto act responsibly and in J’s welfare interests.

[232]There is one apparent oddity in all of this though. M messaged others that day to saythat she had antibiotics for J and was keeping an eye on him. I do not accept that M wasfoolish enough or lacked the intelligence to understand or be able to follow Dr S’sinstructions. M either deluded herself or deliberately sent out a smokescreen to others.I cannot believe that she genuinely held this belief.

[233]The events of 5 June also raise serious questions about the parents.

[234]M’s evidence left the court with no clear picture of what happened on 5 June.

[235]It was unclear if J was asleep or awake and whether M went into the shower knowingthat J was awake without his helmet or not. There can be no basis for M’s unclearaccount. A genuine parent would know such basic details of whether their child wasawake or not and recount exactly what happened. Once again, there is no issue of “storycreep” or other factors.

[236]Turning to events at the hospital, every parent knows that sitting and waiting in A & Eis time consuming and worrying. Long periods of time can elapse before much happensor between seeing one doctor or having some test or x-ray.

[237]However, a committed parent also knows that their child’s health and welfare demandthat they remain in hospital until the medical staff tell them that they may leave.

[238]M told the staff that she wanted to go for a walk. In the circumstances of A & E, thiswas not an improper request and the nursing staff agreed. Instead, M took J home anddid not intend to return. It was only when she tried to obtain J’s blood test results thatthe hospital realised that she was not there and that she should not have gone home.

[239]At the point when M was told that test results could not be given over the phone, sheshould have returned to hospital. She said there was personal reasons for not returning.This was F who was telling her not to return and who was obviously wound up andfrustrated about the need to return. In the event, it took Dr DJ to effectively demandthat she return under the threat of social services and the police being involved. Thatstill did not stop F from taking the phone and shouting at Dr DJ in protest aboutreturning.

[240]None of these events on 5 June were the actions of committed and caring parents. Onceagain, J’s welfare interests were second to the wishes of M and/or F in not wanting toreturn.

[241]The reason for not returning was the alleged fear of admission to hospital and theconcomitant loss of income and the family being broken up with H having to stayelsewhere. I accept that these matters would weigh heavily on a parent although in thecircumstances of this family, they had to be secondary to J’s needs.

[242]However, in the context of J who had by this time been admitted on two occasions andwho was unwell generally, M and F’s behaviour and reactions were utterly wrong. Theywere entitled to worry about their financial and family issues but they should haverealised from the start that J needed medical care. Instead, they failed him by trying toavoid that care.

[243]J’s medical presentation situation was unusual as I have said. Indeed, so unusual that itled the medical experts to offer alternative opinions and state that J’s situation neededto be considered in its own right. Crucially, none of the medical experts ruled out non-accidental injury caused by one or multiple impacts albeit by a lower level of trauma.

[244]Thus, the medical evidence allows for a finding that someone deliberately injured J.The only possible perpetrators were M and F.

[245]The deficits in the parents’ evidence are many and serious for the reasons I have given.The failure to seek medical help on 27 April and 3 May was wrong and a failure to actproperly. The events of 5 June regarding the hospital were unacceptable. I also refer tomy findings about the parents’ relationship.

[246]What emerges is that I find myself completely unable to accept M’s account of whatcaused J’s injuries. Instead, I was left with accounts that are so questionable that Isimply do not believe what I was told. The overall picture of events in those few weeksbetween 24 April and 5 June is so worrying. Everything leads me to conclude that J wasinjured on more than one occasion. He did not have any accident or accidents. The onlymatter I do accept is that in May, he had an allergic reaction to his porridge but thatchanges nothing.

[247]I also refer to my finding about the subconjunctival haemorrhage which was seen inJune for the first time. It is more likely than not that this was the result of a furtherinjury that was inflicted.

Who caused the injuries?

[248]The next question is who caused the injuries.

[249]On 24 April, F was at work. M sent him pictures. Pictures taken prior to 24 April showthat J was well and unharmed. Reference was made to a message sent on 22 April by Fto his sister saying that he was “having a mare” looking after the children together withevidence that F was “terrified” generally of looking after J does not in my view takematters further.

[250]M and F said the photo on 22 April was taken in the evening although there was asuggestion that it was taken that morning and the injury could have been inflicted laterthat day. However, that is questionable when considering the messages on 24 Aprilbetween the parents, M sending F a picture and the emergency services and the hospitalnot questioning that the injuries could have been earlier than that morning. It is morelikely than not that the injuries were inflicted on the morning of 24 April. I find thatonly M could have inflicted the injuries on J that day.

[251]On 5 June, F was not at home as he had a hospital appointment. Again, the messagesbetween F and M support the fact that F was not present when J came to harm and thatJ was hurt at a time when F was not at home. I find that only M could have inflictedinjury that day.

[252]I also find that injuries could well have been inflicted on other occasions.

[253]I have referred to F being angry. However, on the balance of probabilities, I am unableto make a finding on the evidence that F caused injury to J. However, I do find that Fwas aware at some point of the truth of what happened. It is more likely than not thathis behaviour on 5 June was borne out of a concern that the truth of the situation wouldemerge especially when messages revealed that he was quick to blame M and concernedthat the children would be taken into care which was of itself a strange reaction.

[254]I am clear though that it is more likely than not that M caused the injuries. I cannotthough explain what caused M to act as she did. Given the positive aspects that Iattribute to her, this needs careful exploration.

[255]Regarding the findings sought by the local authority about both parents’ failure tofollow medical advice, I have already set out my view which is that on 3 May, M failedto follow the advice of Dr S. F was not at the consultation. I make no finding against Fbecause there is the possibility that he relied on what M told him. In respect of theevents of 5 June though, both parents failed J. Leaving hospital and the reluctance toreturn J was unacceptable and a serious abrogation of their role as parents in thecircumstances.

[256]I reject the suggest that the events of 3 May and 5 June were makeweight allegationsthat do not deserve a threshold finding.

[257]Given my findings, the threshold for the making of public law orders is passed.

[258]That is my judgment. SCHEDULE