A Local Authority v Mother & Ors [2024] EWFC 431 (B)

IMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Case No LV23C50873

[2024] EWFC 431 (B)

IN THE FAMILY COURT AT LIVERPOOL

35 Vernon Street

Liverpool

L2 2BX

Date of hearing: 28 October 2024

Page Count: 31 Word Count: 9111 Number of Folios: 127

Before

HIS HONOUR JUDGE PARKER

Between

A LOCAL AUTHORITYApplicant

(1) MOTHERRespondents

(2) FATHERRespondent

(3) THE CHILDRespondent

MS R. LIVESLEY (instructed for Legal Services) appeared on behalf of the Applicant

MS. R. WRIGHT appeared for First Respondent

MS BLAND appeared for Second Respondent

MS HUGHES appeared for Third Respondent

JUDGMENT

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Date 2024-10-28

[1]I am dealing with a child called A. She was born on [redacted]. She is presently aged about 20 months. She appears through the Children’s Guardian, and is represented by Ms Hughes.

[2]The local authority, are represented by Ms Livesley. The mother is represented by Ms Wright. The father is represented by Ms Bland.

[3]The ambit for this hearing has narrowed significantly as a result of the consensual position of the parties. The parties have agreed that the welfare decision in this case should turn around the court’s findings in respect of the injuries that A suffered to her head.

BACKGROUND

[4]On 27th October 2023, the mother took the child to hospital having discovered swelling to the left parietal area of the skull. Following examination, the child was found to have five by four-centimetre oval shaped boggy swelling over the left parietal region. She underwent a CT scan, which revealed an undisplaced fracture through the left parietal bone. There was an adjacent scalp haematoma accounting for the swelling. She underwent a full skeletal survey, which was repeated on 13th November 2020, and no additional fractures were found. Initially, no history or explanation for the injury was given.

[5]The mother gave a history that A had been unwell with a sniffly nose and high temperatures for the last two days. She had not been quite her normal self for about five days. She had been going to bed earlier in the evening than usual, waking up at about 3.30 a.m. Before she went to bed the previous night, 26th, she had a high temperature and had woken up in the morning at 3.30 a.m. crying. The mother took her downstairs to give her some milk. The mother said that there had not been any occasions where she had noticed any trauma or that the child had injured herself.

[6]There was a Child Protection medical. The report is at F1. That was prepared by Dr S. The report concludes:

“A is an eight-month-old girl who has an unexplained left parietal skull fracture. It is possible that she has fallen and hit her head accidentally, but the height and force of such a fall from a seated position is unlikely to be enough to cause a skull fracture. If she had accidentally fallen and sustained the skull fracture then I would expect there to have been a period of distress and crying following this, which a reasonable care giver would be able to recall. A’s mum has appropriately sought medical attention when she noticed the swelling on A’s head and has been appropriate in her concerns and care for A while on the ward. She has co-operated fully with the Child Protection medical process, and there seems to be a very good attachment between Mother and A. In summary, A has an unexplained left parietal skull fracture, and from the history given I am unable to exclude non-accidental injury as a cause of this.”

[7]The mother and father agreed for the child to be placed with her paternal grandmother and step-grandfather pursuant to s.20 of the Children Act 1989, and she was discharged from hospital into their care on 2nd November 2023.

[8]The parents suggested a number of explanations which were considered by treating medics to be inconsistent with the injury. Five days after the presentation at hospital, the mother said that the child had fallen from the parents’ bed onto a hard floor on 24th October. She said that the child had settled quickly and there were no signs of injury. In her police interview on 2nd November 2023 at G91 she is recorded as saying this:

“Erm, she was asleep on the bed, I stood up, opened the wardrobe, tried to take clothes, what to dress of the day. Was dressing, and I remember I was pulling my jeans up when I just heard, like, erm, like, she hit the floor, erm, and she started the cry. Erm, I pick her up straightaway, I was shocked that she fell. When I pick her up she cried, erm, I walk with her, I tried to, like, rock her. I walked with her outside her room to our spare room, I walk all the way back, I stay there maybe a minute and she stopped, she settled, she was looking at me and she was, like, fine, she looked really fine. I check her, I check her head, I check, like, for anything, like, if she injured, there was no blood, erm, there was no, erm, redness or anything like that.”

[9]The mother made the following Google searches on 24th October:

“Six months old fell off bed and three feet in centimetres”

. Later, on 24th October, the mother called her mother by Facebook messenger. The mother and the maternal grandmother agreed that the mother mentioned that the child had fallen from the mother’s bed. The child cried. However, that soon settled. The mother made the following Google searches on 25th October:

“Six months old fell off bed. Six months old fell off bed.”

Nothing then relevant is said to have happened on 25th.

[10]On 26th October 2023, the mother left the home to go to the shops. She left the child with the father, she said seated on his knee. Whilst initially she said that she left for a couple of minutes, it became clear from her oral evidence that this could have been for up to 20 minutes.

[11]Later, on 26th October, whilst the mother was in the kitchen, the father suggests that the child was seated on the floor on a play carpet and fell backwards from a seated position. He told the police, at G58 and 59:

“Q. Yeah, and how was, like, how was she positioned? A. Just sitting up. Q. Sitting up? A. Yeah. Q. Propped against anything? A. No, sitting up. Q. Okay. Erm did you leave her at any point? A. Like, as I’ve just glanced up at the TV, she’s, like, fell backwards. Q. Okay. A. And I, if you imagine a baby falling backwards. Q. Yeah. A. Like I said it’s, it, it was just, she was crying like she was hurt to be fair, but it wasn’t, I couldn’t see it being that.”

The father then described how the mother came out of the kitchen upon hearing the child cry and asking what was wrong with the child. The father said he replied:

“Oh no, it’s all right, just a little fall back.”

. Later on in the interview, the father said:

“Erm, I think when I got up for work, I think she was crying, but I’m not sure.”

[12]On 27th October the father left at about 5.00 a.m. to go to work. At 6.21 a.m. the mother sent her mother a message saying:

“We have a temperature so she’s been crying so much. It’s much better now. She finally went to sleep. I hope Nurofen is working.”

[13]The mother told the police that the child went back to sleep at 6.00 a.m. In her statement she said 7.00 a.m. The mother went back to sleep. She told the police that she was woken up by the child at around 8 o’clock. The child was whinging. The mother said she could see the bump had formed. She said at that point she was thinking:

“Could it be from the fall on Tuesday”

. However, she did not have a bump then, she said in her statement at C8. She sent a message to other mothers on Facebook and then messaged her own mother asking for advice. She sent a message to her mother at 9.14 a.m. saying:

“We have a sore on the head. I don’t know whether it’s bad or not. She has a lump on the left side above her ear.”

The grandmother asked:

“Did she hit herself?”

The mother replied:

“Yes the day before yesterday but I’m not sure because she has a bump only now. It’s as big as when you join the index finger and the thumb. It doesn’t have any colour, nothing, just a bump.”

The grandmother said:

“So she had to hit herself today.”

The mother replied:

“No she didn’t hit herself today. She slept with us at night and then from 6.00 in the cot and now she woke up and I see a bump.”

[14]The grandmother encouraged her to go to the GP. She contacted the father on Facebook to inform him that she was taking the child to the GP and that the child had woken up with a bump to the head. The mother told the police that she first noticed the swelling at approximately 8.30 a.m. on 27th October. Subsequently, the parents and family members had provided the following potential explanations for the injuries. The mother told the Child Protection doctor, Dr S, that A could have sustained the injury by falling from a seated position against the wooden bars of the cot.

[15]The father told the police and Social Services upon his attendance at hospital on the evening of 27th October that on the evening of 26th October A had been seated on the living room wooden floor on top of a play carpet and had fallen backwards hitting her head on the floor. He confirmed this in his police interview on 2nd November. On 29th October, the father sent a message to his friend, in which he said:

“I was picking her up off the floor and as I grabbed her she’s thrown herself back and hit the carpet and I thought nothing of it put her to bed and she wouldn’t sleep.”

The father has not repeated this explanation to any medical social worker or police professional.

[16]On 31st October 2023, the paternal grandfather, reported to the local authority social worker, that A had fallen off a sofa or chair.

[17]On 1st November 2023 at 11.18 p.m. the mother reported to a Dr T that on the morning of 24th October 2023, after the father had left for work, A suffered an unwitnessed fall from the parents’ bed onto a wooden floor. The mother asserts she cried for maybe a minute before settling. Both parents then asserted that this is the incident that caused A’s injuries.

THE MEDICAL EVIDENCE

[18]I have a medical report prepared by Dr Rahman. This is dated 29th February 2024. In that report Dr Rahman expresses the following views:

“Please comment upon A’s likely presentation at the time immediately after she sustained the injuries. A would have cried or screamed out in pain and would have continued to cry for several minutes before settling on comforting. Following the injury, the associated swelling would have occurred within a few hours and would have reached maximum size within a day. Bathing or attending to care would have identified the swelling. A fall from the bed may account for both the scalp and the skull injury. Other accidental mechanisms may include a fall from height or being dropped from a height. An impact to the head with an object or hitting the child’s head against a hard surface may lead to such non-accidental injuries. At this stage both accidental and non-accidental injuries have to be considered.”

[19]In an addendum report at D75 Dr Rahman gave the following answers to questions:

“The majority of swellings would be visible within a few hours. It is very unlikely that it would take up to 72 hours to become visible. The majority of swellings would reach the maximum size within a day. It is very unlikely that it would take up to 72 hours to reach the maximum size.”

[20]In answer to the following question:

“On the afternoon/evening of 26th October 2023 father has given an account of A falling backwards from a seated position and knocking her head in the floor. Might this incident have exacerbated a pre-existing injury, skull fracture, provoking an inflammatory response causing visible or more greatly visible swelling to appear within the 12 to 16 hours thereafter?”

His response:

“The soft tissue injury noted at the medical of 27th October 2023 was a 5x4cm boggy swelling over the left parietal region. An undisplaced left parietal fracture was noted on her head CT scan. Children fall backwards from a sitting position frequently. This type of fall is very unlikely to generate forces that would lead to either a fracture or a scalp swelling. Scalp swelling is due to accumulation of blood and not due to inflammation. Therefore, this proposal is not relevant. A would have cried or screamed out in pain and would have continued to cry for several minutes before settling on comforting. All the children who sustain this type of injury are very likely to respond in the way that I have already described. The duration it would take them to settle down may vary.”

THRESHOLD

[21]In the pleaded threshold document, in terms of causation of the injuries, the local authority assert the following alternative scenarios: “(a) The injury was inflicted by Mother or Father. (b) In the alternative: ‘(i) the injury was sustained accidentally as a consequence of a fall from the parental bed on 24th October 2023 (ii) the injury occurred as a consequence of mother providing inadequate supervision, leaving the child who she knew could roll from an unsafe position (iii) the swelling was obvious to the mother prior to 27th October 2023 and the mother failed to seek timely medical attention.’ (c) In the alternative, the injury was caused accidentally whilst in the care of the mother or the father as a consequence of inadequate supervision or negligent or reckless care. Howsoever the injuries were sustained, the mother or the father, or both parents, were dishonest with medical professionals, social work professionals, and the police, in respect of causation, and withheld potentially vital information from treating clinicians.” ‘(i) the injury was sustained accidentally as a consequence of a fall from the parental bed on 24th October 2023 (ii) the injury occurred as a consequence of mother providing inadequate supervision, leaving the child who she knew could roll from an unsafe position (iii) the swelling was obvious to the mother prior to 27th October 2023 and the mother failed to seek timely medical attention.’

OTHER ISSUES ON THRESHOLD

[22]In addition, in the local authority’s pleaded case the following are asserted:

“Substance Misuse. Since A’s birth the father has misused controlled substances. This includes cocaine, cannabis, MDMA, and a prescription drug, Tramadol, that was not prescribed to him. The mother has misused MDMA, cocaine and alcohol. Both parents have sought to conceal their substance misused, denying any misuse during the police interview on 2nd November 2023.”

THE LOCAL AUTHORITY’S CASE IN ITS CLOSING SUBMISSIONS

[23]The local authority offer three potential scenarios for the causation of A’s injury:(a) inflicted by one or other of the parents

(b) accidental fall from the bed with delay in seeking medical treatment

(c) another accident that is being concealed. The local authority suggests that the fall from the bed can be discounted. In terms of other causes, the parents have offered no other plausible account for how A sustained her injuries. The father in his evidence believed it was more likely that it was the fall in the lounge, something which he had previously discounted. The local authority asserts that the parents’ accounts of A being her normal self on 24th/25th and daytime of 26th October 2023, coupled with the accounts of A’s presentation on the evening of 26th October into the morning of 27th October, should lead the court to find that the most likely date on which A sustained her injuries was 26th October.

[24]The local authority invites the court to find that the injury occurred in the care of the father on 26th October 2024. The local authority invites the court to consider whether the mother has known the cause of the injury and concealed it. The extent of the mother’s knowledge and whether she has conspired with the father to conceal the cause is fundamental to future care planning in this case.

[25]The mother invites the court to find that the injury was sustained as a consequence of a fall when A was in the father’s care on 26th October 2023. That the mother was unaware that the fall on 26th October caused the fracture. That she was convinced until cross-examined during the final hearing that A’s fall from the bed on 24th October was the cause of A’s injury. At no point did the mother suspect that the fracture was caused whilst A was in the father’s care. Her guilt about the incident on 24th October clouded her thinking, preventing her from suspecting the harm was caused in the father’s care. Given the mother’s amended position in the evidence before the court, the court may choose to focus on two scenarios, or plans for A, which are put forward by the local authority. One, inflicted or accidental injury caused by father which the mother knew about and concealed, two, inflicted or accidental injury caused by the father which the mother did not know about.

[26]The mother accepts that she has failed over the last year to show insight into the father’s role in causing A harm, has failed to challenge the father when evidence clearly pointed to 26th October, and that she initially did not tell professionals that A had rolled off the bed. In the circumstances, the mother accepts that a final care order and a period for further assessment is necessary and proportionate. The court may conclude that the mother is not a particularly insightful or analytical individual. Her views have clearly been clouded by her admiration and love for the father. At the hospital on 25th October, she did not tell the truth about the fall from the bed and because she did not want to disappoint the father. In her police interview she said:

“If I say something I was thinking I’m going straight to prison and never going to see her, so I didn’t. I didn’t say the full truth to them there.”

The mother accepts that she was an imperfect parent as a result.

[27]The father invites the court to find that there is no evidence before the court which would enable the court to find that the injury sustained by A was deliberately inflicted by the mother or the father. This was conceded by the social worker who accepted it would be a matter of speculation. All of the evidence points to the injury having been caused accidentally. This is both in terms of the medical evidence and the lay evidence. The Child Protection medical confirms that a fall from the bed could be consistent with the injury. It may account for both the scalp and the skull injury. Other accidental mechanisms may include a fall from height, for example, being dropped from a height. The question mark which hangs over this is the mother’s account that she did not notice the scalp swelling until the morning of 27th October 2023. The court cannot discount the evidence of the fall from the bed. This is not ruled out by the medical evidence and is entirely consistent with the accounts of the parents.

[28]The mother was in a room with the child. She turned her back for a matter of seconds, or minutes, accidents do happen. She is not a bad mother. She is not the first, nor will she be the last parent who is too scared of the consequences and has failed to give an immediate account to presenting clinicians, or indeed their partner. As soon as the father became aware of the explanation provided by the mother, he urged her to inform the professionals. The only other incident he could identify was A falling backwards from a sitting position, which he did not believe was responsible but which he did disclose. This is not consistent with the finding of inadequate supervision or negligent or reckless care. He has not withheld anything relevant to causation.

CLOSING SUBMISSIONS OF THE CHILDREN’S GUARDIAN

[29]After consideration of the evidence, both written and oral, the children’s guardian suggests that the evidence points to the injury being sustained on 26th October 2023 whilst A was in the care of the father, either when the mother went to the shops or when she was in the kitchen. Further, the children’s guardian considers that the evidence does not support that the injury was sustained when she fell or slid off the bed on 24th October 2023 when in the care of the mother.

[30]In terms of whether the injury was inflicted or accidental as a consequence of negligent care, reckless care, or inadequate supervision, the children’s guardian considers this is not so straightforward and that factors which the court may need to weigh in the balance when contemplating the options include: if it was accidental, potentially as set out in the text to J, why would this account not be given to those professionals involved from the outset to ensure that A had the best possible care? This therefore points to the greater likelihood that the injury was either inflicted or, if accidental, there was an element of negligent care, reckless care, or inadequate supervision, such that the true version has not been provided.

[31]The father was misusing drugs, and despite his protestations to the contrary the court could be satisfied from the evidence and the text messages that the father demonstrated that he was on occasions desperate to obtain and misuse drugs. Father had in very recent days misused drugs. Father, by his own admission, can display temper, i.e. seeing red, furious when he attended at the hospital, and references and text messages to wanting to twat the mother.

[32]The observations of the parents by the children’s guardian are very positive, both parents evidencing their ability to provide A with love, affection and stimulation. She continues to have a strong bond with her parents, particularly her mother. The children’s guardian suggests that there is a more confused picture when considering the extent of the mother’s knowledge, any collusion or cover up. It is clear that she either refused or failed to contemplate any wrongdoing by the father, but whether the evidence supports a finding that she actually knew how A sustained the injury and has colluded and covered up is not so clear. On balance, the children’s guardian leans towards being more likely that the mother ought to have known it was not the fall off the bed, and ought to have challenged the father and considered the reality of this happening in the care of the father. Ultimately, the children’s guardian considers it is open to the court to find that the mother either knew or ought to have known the injuries were occasioned whilst A was in the sole care of her father.

LEGAL PRINCIPLES

[33]I am grateful to counsel for the agreed document setting out the agreed relevant legal framework. The following principles can be distilled from that document. a) The burden of proof lies with the local authority. b) The standard of proof is the balance of probabilities. c) The parents need prove nothing. d) The law operates a binary system. If the local authority fails to prove an allegation against either or both of the parents, then the court will disregard that allegation completely. e) Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. f) When considering cases of suspected child abuse the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. g) 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. Experts do not decide cases, judges do. The expert’s function is to advise the judge. The judge is fully entitled to accept or reject expert opinion. If the judge decides to reject an expert’s advice, then he must have a sound basis upon which to do so and must explain why the advice is being rejected. h) When considering the whole canvas, it is helpful to the court to consider the risk and protective factors identified by Jackson J in Re BR (Proof of Facts)

[2015] EWFC 41

. The evidence of the parents is of the utmost importance. It is essential that I form a clear assessment of their credibility and reliability. i) It is common in these cases for witnesses to tell lies. A witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that the witness has lied about some matters does not mean that he or she has lied about everything. Where repeated accounts are given of events surrounding injury, 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 that the lies are designed to hide culpability, but lies can be told for other reasons, including faulty recollection, confusion at times of stress, and where the importance of accuracy is not fully appreciated. The effects of delay and repeated questioning on memory should also be considered. j) There has to be factored into every case which concerns disputed aetiology a consideration as to whether the cause is known. k) When seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified, both in the public interest and in the interests of the child. l) Judges should apply the simple balance of probability standard when determining whether it is possible to identify a perpetrator from a pool who could be responsible. 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 he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question. m) Failure to protect comes in innumerable guises. If such findings are made in respect of a carer they are of the utmost importance when it comes to assessments and future welfare considerations. n) Any court conducting a finding of fact hearing should be alert to the danger of such a serious finding becoming a bolt on. On the central issue of perpetration, or of falling into the trap of assuming too easily that a person was living in the same household as the perpetrator, then such a finding is almost inevitable.

[34]In arriving at my judgment, I have considered the papers in the bundle. I have heard oral evidence from the social worker, the mother, and the father. I have received extremely helpful written submissions on behalf of each of the parties. I have considered each of these documents very carefully. MY FINDINGS THE INJURY TO A

[35]On 26th October 2023, A suffered an impact injury to the left parietal region of her skull.

[36]The impact caused an undisplaced linear fracture, together with the adjacent scalp haematoma, which caused a 5x4cm oval boggy swelling.

[37]That injury occurred whilst she was in the sole care of the father.

[38]Whilst I am not satisfied that the father inflicted the injury on A, I am satisfied that the injury was caused by his negligent or reckless actions and was not a pure accident for which he can be exculpated.

[39]I do not speculate upon the precise mechanism of injury. The father knows exactly how this injury was caused, and he has been entirely dishonest when dealing with the causation of injury in giving various accounts to various people and the court. As he said several times in his oral evidence, if the injury had been caused by a simple accident then he would have volunteered the information.

[40]The mother knew deep down that the accident occurred in the father’s care and not her own.

[41]I am not, however, satisfied that she knew precisely how it happened.

[42]She has allowed herself to coalesce with the father around the account that the injury was caused by a fall off the bed on 24th. She has shown a devotion, and at times a blind loyalty, to the father. Her concern for the father’s emotional wellbeing was visible to me through their interactions at the back of court during the hearing. She has put her love for the father before the welfare of her daughter in failing properly to search for the truth.

[43]In my judgment, at times during her oral evidence she gave evidence in a way that was designed to protect the father, for example, describing the cry after the fall from the bed as much more significant, longer and louder than the cry A gave on 26th October when the father says that she fell backwards from a seated position. I agree with the submission of Ms Livesley as follows:

“During the course of the mother’s evidence she attempted to minimise or avoid giving any matters that she feared could paint her or the father in a negative light. This included their respective alcohol and drug misuse, both now and in the past, the suggestion of co-sleeping, A’s reaction to whatever happened in the living room while she was cooking, and where the father was when she went to investigate what happened.”

SUBSTANCE MISUSE

[44]Since A’s birth the father has misused controlled substances. This includes cocaine, cannabis, MDMA, and a prescription drug, Tramadol, that was not prescribed to him. The mother has misused MDMA, cocaine and alcohol. The father sought to conceal his substance misuse, denying any misuse during the police interview on 2nd November 2023, and also for the purposes of the parenting assessment.

MY REASONS

[45]In respect of the father’s drug misuse, I have the benefit of results of drug testing and text message exchanges between the father and friends, in particular G614-615, G622, G573, G664-665, G668, G674, and G539. In my judgment, those text messages, whilst not demonstrating that the father was a drug addict, they are clearly indicative of a man who from time to time was in need of drugs, to the extent that on one occasion he was texting his friend and drug supplier at 6.30 a.m. asking for drugs. I am also satisfied that his use of Tramadol was to get high rather than to achieve pain relief. The text messages are clearly indicative of that, in my judgment.

[46]The father was asked directly by the police:

“Do you take drugs?”

. He replied: “No”. That was a lie. The parents have each been tested for drug and alcohol misuse on two separate occasions. The mother’s first test revealed that she was positive for MDMA, and the findings suggested that she had consumed chronic excessive levels of alcohol. She was then tested again, and there was a report from September this year. The findings did not suggest that she had used drugs from the end of May 2024 to the end of August 2024 but did suggest that she may have consumed chronic excessive levels of alcohol in the approximate period from the end of May 2024 to the end of August 2024.

[47]Both the father and the mother were poor witnesses. The father was particularly poor. I listened very carefully to their oral evidence in court. I had the considerable advantage of doing so. This was one of those cases where you had to be in the hearing to be able to form the fullest assessment of their respective credibility.

[48]In my judgment, the father was utterly dishonest in dealing with how A came to suffer this injury. I have considered the full range of reasons why he might have lied. I have given myself a very careful Lucas direction in respect of the evidence of both parents. However, as his evidence developed it became very clear, in my judgment, that he was concealing the truth, and having considered all the evidence, in my judgment, he lied to conceal the painful truth that A suffered the injury as a result of his actions, which whilst I cannot be satisfied were deliberate, were still likely reckless or negligent. As a result of his reckless or negligent handling of A she suffered a blow to the parietal skull causing the fracture and haematoma.

[49]When I consider the whole canvas I have considered the risk and protective factors identified by Jackson J in Re BR. I also note the closing submissions on behalf of the local authority at paras.1 and 2:

“This is not a typical care case. The parents in this case were unknown to the local authority until A’s admission to hospital, and observations of their care since demonstrates that they present as loving appropriate child focused parents. For the most part, the parents do not appear to present with many of the risk factors for non-accidental injury identified by the NSPCC, and present with many of the protective factors identified. However, as Peter Jackson J cautioned in Re BR: “The presence of absence of a particular factor proves nothing. Children can be well cared for in disadvantaged homes and abused in otherwise fortunate ones”

. Equally, there is nothing in the subsequent assessment of the parents that would suggest they would potentially hinder the treatment of their daughter by failing to seek medical attention and thereafter fail to disclose for an extended period a fall she had sustained. Yet, in this case that is not in dispute. The mother’s Google searches support her assertion that A fell off the bed on the morning of 24th October onto a hard surface, that the mother did not heed the advice given in those searches to seek medical attention, and that she thereafter concealed the fact from medical professionals and the local authority until 1st November. On any assessment, it is submitted that the threshold is crossed in this case, and indeed the parents concede either a care or supervision order will need to be made.”

[50]I have attached significant weight to the evidence of Dr Rahman in this case. His evidence provides strong support for the local authority’s case in closing that the injury likely occurred on 26th October. I accept his evidence that A would have cried or screamed out in pain and would have continued to cry for several minutes before settling. The cry was sufficiently loud to alert the mother, who was in the kitchen, and for her to come to the lounge to check on A. The evidence is clear, she was an attentive mother and somebody who was not slow to seek medical attention for A. I consider it unlikely that she would have been reassured by the father that there was nothing wrong on 26th. It is much more likely, in my judgment, that she would have sensed that something was wrong with her daughter. The progression of the swelling overnight and into the morning is demonstrated by the mother’s description of the lump from the size of the top of her finger/thumb at 8.30 a.m. on 27th to a 5x4cm oval boggy swelling on the head at the hospital.

[51]The fall backwards from a seated position onto carpet in the lounge is unlikely to cause this injury, not least because the injury is to the side of the head. There is no suggestion that she fell onto anything else. In the police interview the father said at G59:

“Like I said it’s, it, it was just, she was crying like she was hurt to be fair, but it wasn’t, I couldn’t see it being that.”

The father then said to the police:

“Q. So, do you think she fell onto anything? A. I can’t say for sure.”

In my judgment, that answer is inherently implausible. If his eight month old child had fallen backwards and was crying as though she was hurt, one of the first things that any responsible and reasonable parent would do would be to look to see what may have hurt her. The vagaries of his response were exacerbated by his subsequent answer:

“I can’t give you an exact memory’s, not. I don’t have the best yeah … Yeah, I’ve just been sat on the floor, yeah, doing it, like, in front of the TV, and the kitchen, like, to the back, and I think Mother was in the kitchen. And I think she’s just, I think she said something along the lines of, “What’s, what’s wrong with…”

I said, “Oh no, it’s all right, just a little fall back”. Generic things, like I’m saying, nothing out of the ordinary. From from what I remember, yeah, it, er, it was necessarily a ,a major event. You know, it’s not like this was cataclysmic, this was just one, er, like, babies cry, sometimes they take a little knock it’s, like, erm, like I’ve reiterated, you know.” The father then said to the police:

[52]The father went on to describe how they had a difficult night with A, suggesting that she was suffering with a blocked nose, that she was up for most of the night. Then later in interview:

“Q. So what happened when you got up for work? A. I think when I got up for work I think she was crying, but I’m not sure.”

[53]I found the father’s account of what happened on 26th, when he was describing a simple fall backwards onto a mat or carpet from a seated position by A to be deeply unimpressive. I formed the very clear impression that he was not telling me the truth and was concealing what had really happened on that day. In his oral evidence the father said:

“I had my back against the larger of the settees. I could have possibly to the armchair at one point but not when she fell. I was looking at watching TV. She was simply going back onto the carpet. It is actually a mat not a carpet. She was on the lefthand side where the heart is.”

[54]When I suggested to him that he would have known if her head had struck the wooden floor or the hard fireplace because one might have expected a sickening thud type sound he replied:’ “It sounded hard”. He was then asked by counsel why he had never said that before. He replied:

“Nobody every asked.”

This, in my judgment, was pure opportunism by the father. I did not believe him. Whilst it is likely that the cause of the fractured skull would have sounded hard, as the father suggested now, he had never suggested that before because his case was that this was just a simple fall from a seated position onto the mat. It was only when presented with the possibility of a fall onto the wooden floor or fireplace by counsel that he then latched onto the concept of it sounding hard. This was a classic moment of moving the goal post by the father.

[55]I was particularly troubled by the text message that the father sent to his friend, J. The father’s explanation for what was a very simple and straightforward description of what had happened was that either under stress or pressure he had rushed out the text and/or he had said all the right words but not necessarily in the right order. I did not believe him. There were two parts of that text message which troubled me particularly. The first was describing how he grabbed A. That, in my judgment, suggests that he seized A suddenly and roughly. That, in my judgment, would be consistent with a state of mind of frustration and/or impatience. It could be said to be a Freudian slip. The next was his description of A throwing herself back. That, in my judgment, is consistent with a man seeking to explain the nature and magnitude of the head injury knowing full well that this was not just a simple incident of falling backwards from a seated position onto a mat or rug without accepting any culpability, instead transferring causation onto the child.

[56]In seeking to explain away this text message, I formed the clear impression that the father was again telling me lies. I have considered the range of potential explanations for those lies but, in my judgment, consideration of the evidence as a whole leads me to a powerful conviction that the father was concealing what really happened on 26th and his own culpability.

[57]I did not believe his evidence that after being spoken to by the police at the hospital he was remonstrating with and swearing at the mother about how A had come by her injuries. In my judgment, he was trying to paint a picture of a father who was completely in the dark as to how his daughter had suffered the injury and was angry at the thought that the mother knew and had not been forthcoming. This was a fiction that the father invented as a makeweight for his story that the injury was caused on 24th by the child falling off the bed. It appeared nowhere else in his evidence.

[58]The message exchange between PGM and the father, at C206, G338 and 339, also is suggestive that the father was concealing a truth:

“The father to PGM: “Mother doesn’t know the full story yet as I haven’t had an opportunity to tell her”

. PGM:

“Have yous had the second opinion yet?”

Father:

“Yeah it’s back. Not sure on the results though. Should be okay.”

PGM:

“Yeah surely it can’t be any different.”

Father:

“Exactly so I’m gonna hold my ground for now.”

PGM:

“Okay keep us informed.”

Father:

“I’m torn massively but seeing as she has said that I think it’s the right decision.”

PGM:

“Have yous had the second opinion yet?”

Father:

“Yeah it’s back. Not sure on the results though. Should be okay.”

PGM:

“Yeah surely it can’t be any different.”

Father:

“Exactly so I’m gonna hold my ground for now.”

PGM:

“Okay keep us informed.”

[59]In terms of the mother, I do not accept the suggestion that she experienced an epiphany during cross-examination, such that for the first time she was able to appreciate that it was more likely that the child was injured in the father’s sole care than falling off the bed. I do not consider her to be the completely duped naïve mother who has been carried along on a wave of guilt believing that it was in her care that A suffered her injury. I do, however, find that the father is the dominant partner in their relationship, and the mother views him very much as the provider for the family. She also likely feels vulnerable as a Slovakian living in the United Kingdom.

[60]During the hearing she was too ready to give evidence in pursuit of the father’s exculpation, for example, her inconsistent approach to the child’s presentation during the night. She also lied to the police in interview in suggesting that she had not spoken to the father before he was spoken to by the police at the hospital. I find that the father did know about the fall from the bed before the mother returned home on 1st November. Further, the mother’s delay in failing to inform medical staff of the fall from the bed until 1st November demonstrates a willingness to conceal information from medical and safeguarding professionals.

[61]I was troubled by the parents’ decision to communicate by Snapchat on 1st November. The father sought to explain that by suggesting he was sending photographs. I did not believe him. That, in my judgment, was likely to facilitate a clandestine conversation. I was also troubled by the mother’s decision to leave the child with the supervisor in order to take the father home and suggested that the reason that she went home was so that she could take a shower, when in fact she had showered earlier in the day. In addition, she suggested that it was so he did not have to take a taxi. She was not telling me the truth. In my judgment, it is likely that the mother and father sought an opportunity to coalesce, or further coalesce, around an account.

[62]I was also troubled by the mother’s embellishment of her account of falling off the bed by adding that the child had rolled over a pillow that was put there to prevent the child from rolling off the bed. I found that inherently implausible. In addition, the mother sent a message to her friend, on 29th October in the following terms:

“I think she might fall in living room on the carpet near the fireplace as there are tiles but I put pillows round but she’s learning to crawl so she falls every now and then. I can’t wait to buy playpen so she can be safer. It’s just scary thinking they think we did something bad and to be honest first day here they made me feel horrible. I cried all day and night. Now it’s better and I know she’s okay so will be will be okay soon. Also my phone broke the other day so I’m using tablet now.”

[63]This was not mentioned to any medical staff, social work staff, or the police. In oral evidence the mother tried to explain this by saying that she told P that as P was a two time mother whereas she was a one time mother and did not want her to think bad of her leaving the child on the bed. It is clear from that message that the mother was linking a fall in the living room as a potential cause for her head injury. If the mother’s view at the time was that it was the fall from the bed when A was in her care that was the cause of the accident, I agree with the submission on behalf of the local authority that it is difficult to understand why should would tell her friend of that and not any of the medical practitioners, the social worker, or the police. In my judgment, this is indicative that the mother actually believed that the event that caused the injury occurred in the lounge.

[64]The mother’s accounts of what she heard from her position in the kitchen on 26th October have varied. In her statement of 12th January 2024 she said at para.10:

“I was in the kitchen cooking dinner. I did hear A cry out so came into the doorway to check on her. Father was already comforting her and said she had fallen backwards from being sat upright on the floor. The cry was enough for me to come out of the kitchen to investigate, but she settled quickly and when we checked we could not see anything of concern.”

[65]Then in her statement of 7th February 2024, at para.22 she said:

“I went into the kitchen shortly after to prepare dinner and Father was with A in the living room. The living room and kitchen are very close together with a clear line of sight. At one point I recall hearing A cry. It was not a significant or a bad cry. I went to the door of the living room to ask if she was okay. Father assured me that it was okay so I returned to cooking dinner.”

[66]During her oral evidence she said she her cry from the kitchen. She said it was not a long cry. She described it as being more of a moan. The mother was deeply unimpressive in oral evidence when she began to suggest that she and the father had not discussed events after the injury was diagnosed and that she was in shock mode. I accept the submissions of the local authority and the children’s guardian that the mother gave vague and contradictory evidence around when she told the father of the fall from the bed. This ought to have been a relatively easy and straightforward piece of evidence from both the mother and the father, but their account is inconsistent with the text messages and other evidence, and there is now a very confused picture which, in my judgment, is caused by a lack of candour on the part of the parents.

[67]The mother did not volunteer to medical staff that A had fallen backwards onto the carpet in the lounge the day before she took her to hospital. At para.10 of her statement at C45 she says that Father was already comforting her and said that she had fallen backwards from being sat upright on the floor, yet she chose to refer to A falling backwards from a seated position in her cot.

[68]The mother did not challenge the father about what he said to his friend, J, in the text message. In her oral evidence she said:

“I had a little bit of suspicion it could be in dad’s care” but when asked about what the father had said to J she said: “Yes, but he kind of explained it”

. But the father said that when he texted he was under pressure and rushing the text. She said that she did not say much. She said that she did not ask what he meant by grabbing her. She had seen the text once. She only asked once. Later in her evidence she said that it will have been purely accidental that it happened in the father’s care. When asked why she had not challenged him about the accident she replied: “I just trust him”.

[69]I accept the medical evidence of Dr Rahman that following the incident in the lounge on 26th October, A would have cried or screamed out in pain, and this would have continued for several minutes before settling on comforting. The mother was clearly a protective if not over-protective mother. I find that it is likely that she would not have been brushed off by the father saying that A was okay. As Dr S put it, there would have been a period of distress and crying following this which a reasonable care giver would be able to recall. The mother has played this down, in my judgment, again out of a sense of loyalty to the father.

[70]Evaluating the parents’ evidence has not been an easy task in this case. It has been made more difficult by the preparedness of the parents to lie and to minimise, as well as the numerous inconsistencies. The mother’s evidence around A’s presentation during the night of 26th and 27th October has been inconsistent. She said in her initial statement that she needed to give A Nurofen for a high temperature after she woke at 3.30 a.m. The temperature was normal at the GP at 11.33 a.m. on 27th October. In her second statement she said that she put A down at 6.30 p.m. and she slept through to 3.30 a.m. She gave Nurofen at 3.30 only. The mother told the police that A woke at 3.30 a.m. and that this was the third or fourth time she had woken that morning. In her oral evidence she painted a picture of a child who was unsettled all night and who would cry each time she was placed back in her cot.

[71]In her closing submissions on behalf of the mother, Ms Wright said this at para.3:

“The mother fully accepts with shame and regret that she was dishonest about the incident when A rolled off the bed on 24th October, withholding potentially vital information from treating clinicians.”

In addition, at para.5:

“The mother accepts that she has failed over the last year to show insight into the father’s role in causing A harm. She has failed to challenge the father when evidence clearly pointed to 26th October, and that she initially did not tell professionals that A had rolled off the bed. The court may conclude that the mother is not a particularly insightful or analytical individual. Her views have clearly been clouded by her admiration and love for the father.”

[72]I certainly agree that the mother’s judgment has been clouded by her admiration and love for the father. I also agree that she has failed to challenge the father when the evidence clearly pointed to A suffering the injury in her father’s care on 26th October.

[73]That concludes this judgment. - - - - - - - - - - - Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com