L, Re [2024] EWFC 471 (B)

IN CONFIDENCE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The anonymity of the child and members of her 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.

[2024] EWFC 471 (B)

Case No ZE24C50100 IN THE FAMILY COURT AT EAST LONDON

Date Westferry Circus, London E14 Date: 23/12/24

Before

Her Honour Judge Purkiss

Re L

Dr van der Leij for the London Borough of Waltham Forest

Miss Jo Brown KC and Miss Charlotte Georges for the

Mother instructed by Freemans Solicitors

Miss Sally Stone KC and Ms Rebekah Wilson for the Father instructed by Goodman Ray Solicitors

Mrs Baljinder Bath for the Intervener instructed by

Stephensons solicitors

Mr Aidan Vine KC and Ms Frances Harris for the children by their Guardian Instructed by FMW part of GT Stewart Solicitors

Hearing dates: 18-22, 25-29 November, 5 December 2024

JUDGMENT

HHJ Purkiss:

[1]These care proceedings concern two children Y and X, sisters born in the UK to their mother and father who moved here from their homes in different countries in Europe.

[2]The family was unknown to children’s services until February of this year. Y is under 10 years of age and has grown up in the care of her parents without any safeguarding issues arising. X was presented to the hospital in February of this year with multiple bruises and later identified fractures to her wrists, her ankle and her fingers.

[3]This hearing has been listed to determine the nature and cause of X’s injuries and to identify, if the injuries are found to be non-accidental injuries, the perpetrator of those injuries.

[4]Three individuals have been identified as having care of X during the relevant period: the mother, the father and the childcare practitioner (the intervener). The parties have been represented by specialist counsel in this hearing. In addition, the mother, father and children have been represented by leading and junior counsel. The quality of the representation has been high and has been of enormous assistance to the court in a case which has some complexity.

[5]Profile of X

[6]X was over one year old when she presented at the hospital with multiple injuries. She was the long-awaited sibling for Y. She is a child who is very much loved by her family.

[7]X has remained living with her parents, and Y during the course of these proceedings. The parents’ care of X has been supervised by family members who have uprooted themselves from their lives abroad, no doubt at considerable personal inconvenience, in order to offer support and assistance to the family, to enable X to remain at home.

[8]Throughout these proceedings, no identified issues with adherence to the interim safety plan have been identified. Nor have there been any identified deficiencies in the quality of care which the parents have offered to Y and X. The available evidence regarding parental care is resoundingly positive.

[9]X is a child with diagnosed health issues. She experienced seizures in the early part of 2023 which required investigation and treatment. Following the commencement of her medication, subsequent seizures were linked to fever. Genetic analysis undertaken by her treating team identified a genetic change which is considered to be the cause of the seizures. She is also noted to have a gene for which she requires intermittent review as she has a whole life risk of developing health problems relating to the gene.

[10]It follows that X has been presented for many scheduled and some unscheduled medical appointments throughout her short life, both in this jurisdiction and also in the mother’s country of origin and another country in Europe where she spent extended periods visiting family. In none of those appointments were any safeguarding issues raised, nor were there any indications of suspicious injury. This includes the period identified as the likely radiological timeframe for fractures.

[11]X was unwell with an infection between 6/12/23 – 6/1/24 when she visited the mother’s country of origin.

[12]At the time she sustained the injuries in the period January – late February, X could pull herself up to stand against furniture and could cruise. She could not walk independently. Later during the period before her admission to the hospital, her mobility improved and she could climb by 21st February.

[13]The parents also arranged physiotherapy for X because she was delayed in her movement. This commenced on 2/2/24 and various exercises were recommended to enable X’s motor skills to develop. Subsequent appointments were scheduled but the emergency presentation to the hospital preceded those appointments.

[14]When X was examined by Dr Rose, Consultant Paediatrician and single joint expert, on 2/7/24 he noted that she was quite wobbly when standing and walking. This examination took place months after the relevant time period in this case.

[15]Relevant chronology

[16]At the end of September 2023, the intervener started caring for X. The arrangement was that X would be with her from Monday - Thursday from 8.30am to 5pm but X usually came every weekday from 9am - 4.30pm.

[17]The father works in another city. He travels to stay overnight there to fulfil his work commitments each week from Wednesday to Thursday evening. The father had been promoted to a job with significantly more responsibility which he was doing his best to manage, so this was a stressful time for him. In addition, there were everyday stresses such as a leaky roof in February which must have been difficult.

[18]The mother works more locally. At around the time that X sustained her injuries, she had been on sick leave. She had been trying to negotiate more flexible working arrangements to ensure that she could juggle both childcare and work commitments. These negotiations were unsuccessful, and she was pursuing a claim against her employer on the grounds of discrimination. This was, therefore, a stressful time for the mother and she had been signed off work as a result of stress. Y was having tantrums at around the time that X was admitted to hospital, refusing to go to school or brush her teeth. This must have been stressful for both parents.

[19]The intervener has suggested that the family had a limited support network. I do not accept that submission. Whilst their respective families live abroad, they have many good friends living near them, who they see regularly and with whom they offload and share difficulties. Whilst the father agreed under cross examination that he had been brought up in a culture where there was usually a grandmother at home to help and babysit, and I detected he might well have preferred to have a resident grandmother to assist from time to time, there is nothing unusual about this. Like all parents who live at a distance from their families, this family was getting on with life and using the resources available to them which included their friends.

[20]The intervener has been a professional childcare practitioner for over 15 years. She was looking after two other children at the time X was injured and following a period of suspension from work during the LADO process, she resumed caring for those children. She has produced supportive statements from the parents in question who speak very positively about her care of their children.

[21]During the relevant period, there were a number of issues with which the intervener had to contend. She lives on a ground floor flat and had endured long-standing anti-social behaviour from a group of boys/young teenagers who have, amongst other things, made loud noise and engaged in smoking cannabis outside her flat. Understandably, the intervener was concerned about this given her professional duties. She had repeatedly attempted to have the group “moved on” and this worked temporarily, but then they returned. In addition, the intervener suffered from severe migraines, and she was also suffering from back pain. As if this were not enough to contend with, her adult child separated from their long-term partner and moved home for a while. The separation was acrimonious by all accounts, and the intervener found herself in the middle of ongoing disputes between her adult child and their former partner. She was keen to mediate to ensure that contact with her grandchild was not obstructed. The telephone records indicate that there were many communications between the intervener and her adult child and the adult child’s ex-partner and the intervener around this time. Each of these factors contributed to additional stress upon the intervener during the relevant period.

[22]At Christmas (22/12/23 – 6/1/24) X and her family went to stay with maternal family. X was very unwell when she was there and had an infection requiring two visits to the hospital.

[23]It is agreed that X was unsettled when she returned to the intervener’s care in the new year and that she demonstrated some signs of distress at drop offs. The intervener assured the parents that this was probably connected to the change in routine and the fact that X had spent a period of time in the care of her parents.

[24]There is evidence that in the period between Christmas and the 21st February 2024, the intervener found X difficult to care for. X was crying and she demanded significant attention from the intervener. The intervener thought X did not like her showing attention to the other children in the placement. It is clear and I find that the intervener found X, alongside the other issues in her life, both stressful and difficult to manage.

[25]Alongside this, there are messages that suggest that in January X was unwell with coughs and colds and minor infections.

[26]Between 26th-29th January, X travelled to the mother’s country of origin with her mother.

[27]On 30th January, the intervener cancelled her scheduled care for X – but not the other children in her care. She said that she had a medical appointment. There is no evidence to corroborate her assertion that she had an appointment. In fact, the intervener was visited by her childcare practitioner co-ordinator. She claimed in her oral evidence that she had forgotten to inform X’s parents that the appointment was rescheduled. It is the mother’s case that she cancelled X to ensure that the co-ordinator did not see X in her care because of the difficulties she was encountering.

[28]In January and February there were messages between the intervener and family or her friend PW, in which she either acquiesced when PW made inappropriate negative comments about X or she made unprofessional comments about X. For example, there is an occasion when she called X “screech”.

[29]Occasionally during this period, X was awake for periods during the night with the result that her parents had disrupted sleep. The mother’s strategy for managing this was to go to bed very early – before 9pm.

[30]In between 9th and 18th February, X was abroad with Y in the care of her mother and maternal family for the half-term break. There is no evidence to suggest that any accident or other incident occurred during this holiday.

[31]On 15th February the mother wrote a note to herself that they were encouraging X to walk by holding her fingers daily. On occasion X would fall. In oral evidence mother didn’t remember this. In cross examination the father agreed that X was probably falling about three times per week, but it could have been every day, he wasn’t sure. Sometimes she fell on her bottom, sometimes on her side or hands. He guessed in cross examination she had fallen on an outstretched hand on occasions. He agreed that most times when she fell, she cried. Mrs Bath urges me to consider this significant. I note that X was falling, but otherwise what is described is a normal event in parenting, when a child is learning to walk independently.

[32]On her return to London, X resumed her term-time routine during the week. X returned to the care of her childcare practitioner, the intervener.

[33]On 20th February X did not sleep and was awake for about two hours in the early morning.

[34]On 21st February X was dropped off at the intervener’s by the father at about 9.15am. The father then went to another city via a short trip home. He had forgotten about the short trip home initially, but I do not attach weight to that omission. The intervener’s friend and fellow childcare practitioner had arranged to come over and was “on her way” before X arrived for the day.

[35]The intervener agrees that she was informed that X had made progress in relation to her mobility during her time in the mother’s country of origin and that she was particularly active that morning.

[36]PW, the friend and fellow childcare practitioner, had come over, as she often did, with her four charges for a playdate. There were seven children under the age of 5 in the intervener’s home on the morning of 21st February.

[37]During the morning, the intervener sent a photo of X on top of a Duplo table to the mother. She had climbed up onto the small plastic table before the photo was taken.

[38]PW stayed for lunch leaving at approximately 11.45. After lunch PW left for home with her charges arriving at her property at 12.25.

[39]It is the intervener’s case that she was planning to go out to the shop with the children. Under cross examination, she accepted that X had been in the buggy in the hall for a period of some 2 hours and 40 minutes before being collected by her mother. She was in a snow suit for the last half an hour according to the intervener.

[40]It is undisputed that the intervener says she received a message from the mother to say she would be collecting X early that day (at approximately 2.30). The intervener’s response referred to the fact she had just come back from the shops. She accepted in her oral evidence that she had not been to the shops and explained the error in the text message on the basis that she had been distracted by the other children. It is the mother’s case that this lie was given to explain why X was dressed in a snow suit and in her buggy with the rain hood down. It is submitted that the intervener had likely dressed X up to hide any sign of injury.

[41]The mother left with X, and she collected Y from school and, as usual, on Wednesday she went to the swimming pool where Y had a lesson.

[42]At the swimming pool they met up with other parents they knew. I have heard evidence from two of them. LK says that X was crying throughout the time she was there. Both they and the mother were worried that X might be developing a fever. M says that she noticed some of X’s hair had fallen out into her snow suit hood and she made a digital note to herself about this. GS says they did not recall anything out of the ordinary and that X was asleep. Neither LK nor GS were with the mother for the entire period they were at the pool. The mother’s case is that X was grumpy and crying and did not want to be put down in the ball pool in which she often plays. She was, therefore, carried around by the mother.

[43]At the end of the swimming lesson, the family walked home. The mother says that at the house, X continued to cry and be grumpy. She did not want to be put down and so the mother carried her around in a frontfacing sling.

[44]At about 7-7.30pm, the mother started to get X ready for bed and needed to strip her to do so. She said that she noticed bruises at the top of X’s arms. She put an owlet sock on X which monitors for seizure activity. It is not a sock which needs to be manipulated over her ankle but is wrapped around it and strapped with Velcro – a little like a support bandage.

[45]The mother was shocked by the bruising. The evidence indicates that she texted the intervener to ask whether or not anything had happened to X. The intervener replied in the negative.

[46]X was put to bed and went to sleep after which the mother texted the intervener about the bruises: Hi, I’m sorry for texting late. Just to check something – when I dressed X for bed, I noticed a few little bruises on both her upper arms. I knew she had bruises from crawling on her legs but hadn’t seen the arms ones yet. Did she maybe bump herself? And just to say that I have full confidence in you, and I know you’d have to ask me the same if you saw them in the morning, so I’m not worried at all. I just want to check all the best and have a good evening. The intervener responded: Hey my lovely. No, I haven’t noticed any at all. And there was definitely no bruises on her little arms when I changed her vest today as I would have mentioned it. She has been climbing loads today and going over the toy boxes etc but not what I could see would cause little bruises bless her. Please don’t apologise at all. You can message anytime. There is then a brief exchange about bruising easily during which the intervener says she will be even more vigilant now. I bruise easily too I will definitely keep an eye on it. X was climbing so much today. Even on top of the activity table [emoji] my heart went in my mouth. She is so fast.

[47]The mother was unavailable when the father contacted her later, but both said this was not unusual. He knew she went to sleep early and thought nothing of it as he knew it was her habit to go to bed early in case X was awake during the night. The mother knew that he was working and was preoccupied elsewhere.

[48]At 1.30 X woke up and seemed in a good mood, even giggling. She was breastfed and became unsettled but went back to sleep.

[49]The following morning the mother got X and Y up. Her evidence is that her morning routine involves changing X’s nappy which she does by standing her at the side of the bath, then dressing her.

[50]When she did this, X adopted what mother described as a “flamingo” pose and was not weight bearing on her right leg. The mother noticed this. She decided to take X to hospital.

[51]At 8.59 she messaged the intervener to tell her that X would not be coming today, she was going to the hospital and why she was doing so.

[52]She arrived at A&E and said that X had been crying and whimpering since yesterday when she was picked up from her childcare practitioner. She said she found the bruising and that X had been unsettled and crying. She was unable to bear weight on her right foot but was climbing yesterday. X’s leg was X-rayed, and fractures identified. The mother was unable to assist with an explanation and NAI was flagged as a concern.

[53]During the morning the mother texted herself details of the injuries. She also noticed a tiny chink in X’s front tooth and made a note that the day before she had noticed a tiny blood crust like dehydration on her lip.

[54]There were further messages between the mother and the intervener, in which the mother repeated her request for any information from either the intervener or PW which would help identify an incident which had caused the fractures. The intervener said in oral evidence that, in fact, she had never asked PW whether she had seen anything. She agreed that her response message suggested she had done so and there was nothing. She said she had not discussed anything about the text exchanges with the mother and the information she had received that X was injured because this would be a breach of confidentiality. PW corroborated this account.

[55]However, the telephone records show that within seconds of receiving the information from the mother about X’s fractures, she called PW and was on the phone to her for about half an hour. They exchanged other messages.

[56]X underwent a child protection medical by two doctors, Drs P and F, their supervising Consultant. Dr P completed a body map of bruises identified on X’s body. Dr P and Dr F each undertook a top to toe examination of X. This included examining X’s hands. Nothing of note was detected in relation to her hands.

[57]During the investigations, a phlebotomy was performed by Dr P who attempted to take blood from X’s left hand but was unable to do so as she pulled away. Blood was taken from the other hand. The medical notes indicate X was crying, containing three “+” signs after the word crying, which I infer means that X was crying a lot.

[58]Later in the day, after the phlebotomy, the mother noticed that X’s left hand looked swollen. She says she brought this to the attention of the treating team. It is first mentioned in the medical notes in the evening, but the mother says she had alerted the medical staff to this beforehand and the notes do indicate that the doctor who saw the mother in the evening was doing so to investigate her reported concern. The doctor noted the swelling.

[59]The following day, 23rd February, X underwent a skeletal survey. This identified additional fractures, including a suspected metacarpal fracture to her left hand. In fact, as Dr Johnson opines, there were two acute metacarpal fractures. As with the leg fractures, the mother was unable to identify any incident which could have caused the fractures. Safeguarding became the primary focus.

[60]The intervener was suspended. A LADO investigation began. On being informed of her suspension, her evidence was that she had informed her friend PW that she was suspended but had not given her any details about why, nor which child the issue related to, or about her earlier exchanges with the mother. She says she asked PW to provide her with a statement. PW corroborates this account. In her oral evidence, PW claimed not to have been told about X’s injuries or indeed that it was X. PW did provide a statement for the intervener which could be forwarded to the police. She says she gave it to the intervener in a sealed envelope so that the police would know that it had not been read or tampered with by the intervener. The statement only referred to X.

[61]X remained in hospital. The LA issued an application under s31 Children Act 1989.

[62]X’s extended family and their friends rallied around. Between them, they have supervised and monitored the mother’s and father’s care of X under ICOs with both X and Y placed at home since then. The original factfinding hearing listed in this case in September had to be vacated because of judicial unavailability and since then, the support from family and friends has been supplemented by professional supervision arranged by the Local Authority.

[63]Background and history of the proceedings

[64]This case had, until shortly before the hearing, been allocated to another judge in this court, who made the case management directions in this case, including for expert evidence and third-party disclosure, including telephone records. I conducted the IRH.

[65]The intervener was joined to the proceedings by Judge Suh and volunteered her telephone records. The parents also agreed to the disclosure of their records. However, the records from the parents before the court at this hearing are incomplete. The parents routinely delete messages. In addition, they use search platforms from which the search by Evidence Matters could not recover information. The issue of the incomplete information obtained from the parents’ devices was raised as a preliminary matter by the Local Authority. The LA confirmed that it did not assert that the parents were deleting messages to withhold information from the court. The court invited the Applicant and the Intervener to indicate whether it was part of their case that the parents had deliberately deleted messages. The responses were negative. This issue was revisited in the hearing as some of the questions asked by Mrs Bath strayed into this territory. In circumstances where this assurance had been provided at the beginning of the hearing, I attach no significant weight to this issue.

[66]A range of experts have produced opinions for the court. Dr Johnson, Consultant Paediatric Radiologist; Dr Curran, Consultant Paediatric Neurologist; Professor Kumar, Consultant in Clinical Genetics and Genomic Medicine and Dr Rose, Consultant Paediatrician.

[67]In addition, the court has voluminous medical records from the hospitals involved in X’s diagnoses and treatment. The court has heard evidence from the Paediatric Registrar, Dr P and their supervising Consultant, Dr F with regard to X’s child protection medical and stay in the hospital.

[68]The position of the parties

[69]The Local Authority seeks to prove the findings set out in its schedule at Z121 of the bundle. It seeks findings of non-accidental injury, in the sense that the injuries involved an element of wrong giving the meaning to that phrase set out by Ryder LJ in the case of Re S (A Child)

[2014] EWCA Civ 25

“the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree than may amount to negligence, recklessness or deliberate infliction”. If the court cannot find a perpetrator of the non-accidental injury, the Local Authority invites the court to find the pool of perpetrators include mother, father and intervener.

[70]The First and Second Respondent parents deny the findings sought by the Local Authority and invite the court to find that the intervener is the likely perpetrator of/responsible for non-accidental injuries.

[71]The Intervener invites the court to find that the mother is responsible for all of the injuries.

[72]The Guardian was neutral on the findings sought and has sought to assist the court during the hearing by ensuring that all the relevant issues are considered. Her closing position, the evidence having been tested, is that the father could not have caused the ankle and finger fractures because X was mobile and well when she arrived at the Intervener’s that morning.

[73]INJURIES - There is no dispute between the experts and within this hearing about the injuries sustained by X. Bruising

[74]Dr P, Paediatric Registrar, undertook the Child Protection Medical in the early afternoon of the 22nd February (the day X was admitted) under supervision of Dr F at the hospital and notes the following:-(1) 1 x 2 cm circular grey flat lesion which looks like a bruise. On the body map lesion 1 is shown as being on the medial aspect of the left knee. The mother reported that they had seen that previously, caused by crawling. It was Dr P’s opinion that this was a plausible explanation. Dr Rose accepted Dr P’s assessment.

(2) 2 x 1 cm purple flat lesion by axilla would be in keeping with a bruise, no explanation.

(3) 1 x 1 circular flat blue/green lesion left upper arm would be in keeping with a bruise. No explanation given.

(4) 1 x 1 cm grey flat lesion with diffuse border right upper arm would be in keeping with a bruise. No explanation given.

(5) 1.5 x 0.5 brown grey oval lesion right upper arm, would be in keeping with a bruise. No explanation given.

(6) Less than 0.5 cm brown grey lesion right upper arm would be in keeping with a bruise. No explanation given.

(7) Less than 0.5 cm faint yellow circular lesion left lower cheek, no explanation given. This was identified as a transient mark by the treating doctors.

(8) Right linear mark right upper lip, no explanation given.

(9) Chipped left front incisor, ulcer and bleeding cut on gum. No bruising or swelling. No explanation given. The aphthous ulcer and the bleeding on the gum were accepted as a crack caused by dry skin.

(10) Swelling of right ankle, no skin marks or erythema. No explanation given.

[75]Dr Rose opined that the unexplained bruising to X’s arm, torso and cheek are in positions more consistent with non-accidental injury than accidental injury. He cited Maguire that accidental bruising tends to occur in the facial ‘T’ with the horizontal line across the forehead and the vertical line through the nose, on the shins, on the back of the head and the lower back.

[76]Dr Rose opined that in the absence of a description of specific shapes which might indicate a mechanism, the grouping of bruises 4, 5 and 6 could have been caused by gripping/fingertip mechanism.

[77]It is not possible to determine the age of bruising by its appearance. This is because the appearance of a bruise depends not only on its age but also the force with which the bruise was inflicted and the position on the body.

[78]Superficial bruising tends to resolve some 8 to 10 days after being inflicted. This timeframe is consistent with the timeframe of the fractures to the left index and middle metacarpal bones and fractures to the distal right tibia and fibula.

[79]The bruising is not consistent with the timeframe of the fractures to the left distal radius and right distal radius and ulna.

[80]Dr Rose deferred to Dr P’s assessment of the first bruise and accepted their assessment of the mother’s explanation as plausible.

[81]I note that whilst the mother had been unable to explain the other injuries, she did provide a plausible explanation in relation to bruise number 1, this injury which is accepted as having been caused accidentally.

[82]Dr Rose opined that in the absence of a history of significant accidental falls and the absence of plausible explanation for their bruising and multiple fractures meant inflicted injury must be considered a probable cause of X’s injuries.

[83]Incomplete Meta-diaphyseal fractures to both wrists :(1) to the left wrist at the radius;

(2) to the right wrist at the radius and ulna.

[84]These were probably as a result of the application of excessive force: blows, impact or bending/snapping actions. Dr Rose opined in oral evidence that the likely mechanism was bending backwards as impact would likely leave bruising. The timeframe within which these injuries occurred, ascertained by reference to the imaging, is likely 2-6 weeks before the skeletal survey on 23rd February, so 12th January 2024 – 9th February 2024. These fractures could have occurred at the same time or at different times. Meta-diaphyseal fractures could be caused accidentally and are the most common accidental fractures seen by Dr Johnson in the summer months as mobile children fall onto outstretched hands in accidents. However, falls causing bilateral fractures were unusual and raised likelihood of NAI.

[85]Incomplete Meta-diaphyseal fractures or the right ankle (tibia and fibula)

[86]Probably as a result of excessive force as a result of a blow, impact or bending or snapping action. The timeframe within which these injuries occurred ascertained by reference to the imaging is no more than 10 days on 22nd February 2024, so after 12th February. From the clinical symptoms – immediately before she stopped weight bearing on her leg.

[87]Metacarpal fractures – of left index and middle finger

[88]From the imaging, no older than 11 days on 23rd February 2024, so after 12th February 2024. (Dr Johnson). Probably as a result of excessive force and probably as a result of a blow, impact or crushing action to the hand. (Dr Johnson). Dr Rose opined it is unlikely that force sufficient to cause fractures was applied when restraining X for cannulation as such fractures are not described as a complication of cannulation in published literature.

[89]Dr Rose opined the fractures were likely to have been caused by X’s fingers being bent backwards. No bruises are described over the fracture which would be expected if the mechanism was a direct blow or a crush injury. (Dr Rose).

[90]X may have been irritable when her left hand was moved through clothing. A non-present carer may have recognised that X was irritable when her left hand was manipulated, but there would be no reason for the non-present carer to recognise that X had sustained fractures. (Dr Rose).

[91]The metacarpal fractures are unlikely to have impeded X’s ability to crawl as she could have taken the weight of her body on the heel of her hand. (Dr Rose)

[92]It is not possible to be specific about the time period between the fracture and the subsequent redness and swelling. The redness appears first maybe within the first 30- 60 minutes, it may take longer, 1-2 hours before the swelling becomes noticeable.

Other relevant opinion

[93]Dr Johnson opined that the number of fractures was very unusual for a child of X’s age and development. Dr Rose concurred.

[94]Dr Johnson explained that the fractures to the wrist and ankle were meta diaphyseal not metaphyseal which has a strong association with NAI. In summary meta-diaphyseal fractures are the most common fractures he sees occurring typically when a child falls onto an outstretched hand.

[95]The radiological appearances of the fractures are non-specific as to mechanism and could occur from an accidental or inflicted injury. Accidental causes would result from four significant falls. Dr Johnson had not seen this number of fractures occurring on different occasions from simple falls. Dr Rose agreed.

[96]Unexplained fractures such as those to the wrist and leg raise concerns regarding possible non accidental inflicted injury.

[97]The presence of multiple fractures occurring on at least two different occasions resulting from the application of separate forces, increases the possibility these are inflicted non-accidental injury.

[98]Dr Rose opined that immediately following a fracture, the child would be in exquisite pain and cry for a period of up to 15 minutes. Anyone present at the time X sustained a fracture, whether a perpetrator or witness, would likely know they had been hurt.

[99]The experts were unanimous in their opinions, insofar as those are consistent with their expertise and where not they defer, and the court can proceed on the basis that:-

[100]X’s genetic mutations do not explain her injuries and are therefore, from the perspective of ascertaining causation, irrelevant.

[101]X’s pain response is unlikely to be altered by her genetic mutations.

[102]There is no indication from haematological analysis that X suffers from any of the known conditions associated with reduced bone density or strength. Nor has the testing identified that she suffers from any condition which may predispose her to bruise.

[103]There is no identified radiological or biomechanical evidence of reduced bone density.

[104]The injuries from which X suffered are likely traumatic in origin.

[105]The injuries sustained by X likely involved the application of excessive forces to her body, on separate occasions (to be considered later in this judgment) and, depending on the injury, was likely exerted by pressure, impact, bending/snapping or crushing forces.

[106]The fractures to X’s wrists may not be discernible by a non- perpetrating carer. They were incomplete fractures and unlikely to have resulted in a noticeable reduction in the use of X’s arms.

[107]The fractures to X’s leg/ankle (tibia and fibula) would have resulted in an immediate and obvious inability on X’s part to use that limb.

[108]The fact that there is no history from X’s carers consistent with the injuries she sustained, is strongly suggestive of a non-accidental causation.

[109]At the IRH, I determined that only two experts would be permitted to give oral evidence and be cross-examined: Dr Johnson and Dr Rose. The focus of their evidence has been on timing and its significance to likely causative events. 110. The Law

[111]The relevant legal principles are well known and uncontroversial. They were summarised perhaps most conveniently by Baker J (as he then was) in Re L and M (Children)

[2013] EWHC 1569

and also re JS (A Child)

[2012] EWHC 1370 (Fam)

, Re BR (proof of Facts)

[2015] EWFC 41

, Peter Jackson J (as he then was) and Re A (No 2) (Children: Findings of Fact]

[2019] EWCA Civ 1947

[2020] 1FLR 755

, Peter Jackson LJ at $93-99.

[112]The relevant date for the purposes of deciding whether the section 112. Authority initiated the procedure (Re M (Care

[113]The burden of proof is on the party seeking to prove the allegations it makes. In this case that means that the burden lies with the Local Authority throughout in respect of the allegations it makes in its schedule of findings [Z121-127] as to causation of injuries, number of events which resulted in those injuries, identification of perpetrator and, if no perpetrator can be identified, in satisfying the court who from the list of potential perpetrators should be placed in the pool. Allegations of failure to seek medical attention and overall failure to protect are also made; and the burden of proving those rests with the Local Authority.

[114]The standard of proof is the simple balance of probabilities – Re B (Care Proceedings: Standard of Proof)

[2008] UKHL 35

[115]The court can find only that something happened or that it did not happen; the system is binary; there is no room for a finding that something “might have” happened – Re B (ibid). The court must not reverse the burden of proof; the parents and/or the Intervener do not have to provide an alternative explanation for X’s injuries.

[116]Findings must be based on evidence and inferences that can properly be drawn from the evidence, not on suspicion or speculation – Re A (A child) (Fact Finding Hearing: Speculation) [EWCA Civ 12]

[117]The court surveys a wide canvas of evidence. It must take account of all the evidence and consider each piece of evidence in the context of all the other evidence – Re T [2004] EWCA Civ per Dame Elizabeth ButlerSloss at para 33 – “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”

[118]Expert evidence, in particular, must be considered in the context of all the other evidence. The role of the court is different to that of the expert. The judge (not the experts) considers all the evidence. Experts advise, judges decide. The judge (not the experts) makes the final decision – A County Council v KD & L [EWHC] 144 Fam per Charles J.

[119]Where the evidence permits, and subject to the need to give its reasons for disagreement, the court may come to a conclusion which is contrary to a body of expert evidence (Re B (Care: Expert Witnesses)

[1996] 1 FLR 667

[120]The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them [Re W and Another (Non- Accidental Injury) [2003] FCR 346].

[121]When considering inherent improbabilities, the court must be careful to focus on the evidence it has before it in the particular case – Re BR (Proof of Facts

[2015] EWFC 41

[122]It is not uncommon for people to tell lies during the investigation or during the hearing. The court must bear in mind that a witness may lie for various reasons such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or they have lied about everything – R v Lucas

[1981] QB 720

. In Re A, B and C (Children)

[2021] EWCA 451

, Macur LJ said this [para 57]:

“I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines that such a direction is called for, to seek counsel’s submissions to identify (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principle of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”

[123]Discrepancies in accounts are not necessarily to be taken as lies in the sense that they can only be explained by guilt (as per Macur LJ in Re A, B and C (Children) [2021] (ibid). As Jackson J (as he then was) said in Lancashire County Council v The Children (by their Children's Guardian), M & F

[2014] EWHC 3 (Fam)

pp9 "in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith."

[124]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 the balance of probabilities [Re S-B (Children)

[2009] UKSC 17

], the first stage being to identify any person who had the opportunity. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. The court must not assume that because Person A is more likely to have inflicted the injury than Person B that this establishes on the balance of probability that it was Person A. Where it is impossible for a judge to find on the balance of probabilities, for example that parent A rather than parent B caused the injury (but where there is a real possibility that each caused the injury) neither can be excluded from the pool. In Re A (Children) (Pool of Perpetrators)

[2022] EWCA Civ 11348

, the court confirmed:

“The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or they cannot do so, then, in accordance with Re B (2019), he or they should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

[125]It is only if the court cannot identify a perpetrator that the court will need to seek to identify the pool of possible perpetrators on the basis of the real possibility (or likelihood) test, namely that if the evidence is not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. The conceptual conflict this presents with a binary approach mandated by authority is obvious, but it has been endorsed by the Supreme Court and logically is not inconsistent with the section 31 statutory threshold. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43]. The need for care to be taken not to reverse the burden of proof when the court considers the pool of perpetrators was considered in B (Children: Uncertain Perpetrators)

[2019] EWCA Civ 575

. [para 48]“Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.” . 126. The Evidence

[127]The bundle of evidence comprises statements, expert reports, medical records, police disclosure, telephone downloads, and other miscellaneous documents. I have read everything in the bundle except the telephone downloads which I have looked at when directed to particular entries. This judgment would be significantly longer than it already is, were I to attempt to summarise all of the evidence I have heard and read. It is unnecessary to do so. Instead, I shall focus on the evidence which is relevant to the decisions I have taken.

[128]In addition, I have heard oral evidence from Dr F, Dr Q, Dr P (treating medical professionals), the parents, the intervener, GS, LK and PW (witnesses of fact) and Dr Rose and Dr Johnson. 129. The witnesses

[130]All of the professional witnesses who gave evidence did so recollecting the events in question to the best of their ability. The time lapse between their brief involvement in X’s life, the events about which they have given evidence, now being about 10 months.

[131]The key protagonists and those whom the local authority seeks to place in a pool of perpetrators of non-accidental injury are the mother, the father and the intervener. There are some general observations to make about each of these key individuals who cared for X.

General observations regarding the mother, father and intervener

[132]Each is an experienced parent. The parents have already parented Y who is under 10 years old without any safeguarding concern. They have presented her for medical treatment appropriately, including for an accidental fracture. In addition, following X’s discharge from hospital, a hoover fell on her foot. The parents took her promptly for medical assessment. Fortunately, X had not been injured in this accident.

[133]The parents had encountered a number of difficulties in having a second child. X is, therefore, a much wanted and treasured child. It was clear from the evidence that the parents gave that they dote on her.

[134]X has been diagnosed with epilepsy and has some developmental delay linked to her genetic condition. The evidence indicates that the parents have been assiduous and pro-active in ensuring that all of X’s medical needs have been met and have been creative in thinking how she might be assisted in her developmental progress.

[135]All of the professional observations of the parents’ care of X (and Y) during these proceedings, including the period in which X was an inpatient following the identification of her injuries, suggests that their care of their children is exemplary. There is no reported professional criticism of their care. There are no issues of domestic abuse, alcohol or drug addiction.

[136]In addition, the evidence indicates close loving relationships between the members of this family, including the extended family, who have, to their considerable personal inconvenience put their own lives on hold to travel to this jurisdiction to support the parents’ continued care of the children within proceedings.

[137]The intervener suggests that the parents’ relationship was in some difficulty at the time of these injuries, which caused the mother additional stress. The parents deny this. I have considered this submission and the few messages sent between the parents on this topic but find that the evidence falls a long way short of justifying a conclusion that there was a difficulty between mother and father which might support a finding that either was experiencing significant emotional turmoil at the relevant time. There is no evidence either parent questioned the relationship. Their relationship has survived the additional stress caused by these proceedings. The messages put to the mother by Mrs Bath from 8th February, selected from many which are typical of the day to day messages between partners about the management of family life, simply reflect as I find, the type of stresses which exist, from time to time in any marriage when spouses are trying to balance their own careers and commitments with their family obligations to resolve irritations. I agree with Miss Brown KC that the messages demonstrate a high level of empathy and emotional intelligence.

[138]Congruent with this analysis are the observations of health professionals from 2022 to date and social work professionals since February 2024. There is no recording of any tension in the parents’ relationship at any time. The mother’s response when being informed by Dr Q of the older fractures is illuminating. She said I knew F would be even more upset. I wanted to be there for him and with him. I remember when Dr Q told me about the fractures, I got nauseous, I got really upset. I asked Dr Q to hold X for a moment I got dizzy and put my head between my legs. And then only once I felt OK enough again because I thought I might drop her. Sorry. I thought if I react like that because I am quite tough, then what about F? If someone comes and says oh by the way there’s this and that and this old one, I thought he’d be really upset and I wanted to be there with him.

[139]Mrs Bath also relies on the fact that Mother has suffered some mental health difficulties and is in therapy. A mother taking active and appropriate action to address certain issues in her life does not support an analysis that the mother would be likely to inflict an injury on their own child.

[140]I accept, however, Mrs Bath’s submission that there were stresses upon the parents during the relevant period X’s injuries occurred and that the significance of physical or mental disability in children that may increase caregiver burden; and parental stress and distress, including depression or other mental health are factors (both in relation to the parents and the intervener) to be considered alongside the other evidence, Re BR (Proof of Facts)

[2015] EWFC 41

[141]The Intervener has successfully parented her adult child to adulthood and clearly maintains a good relationship with them. There is no evidence to suggest there have been any safeguarding issues in relation to her parenting. In addition, she has been a childcare practitioner for over 15 years. During that time, insofar as I am aware, there have been no safeguarding concerns about children in her care. She has produced two testimonials in statement form from the parents of the children she continues to care for (and cared for at the time X was placed with her) which are very complimentary about her skills and abilities. 142. Impressions of the mother, father and intervener’s evidence

[143]The mother impressed me as a caring and devoted mother. A clear example of this was her admitted relief at the expert evidence that X’s injuries were not linked to epilepsy or her genetic mutation. This opinion clearly had a potential negative impact upon both her and her husband within these proceedings, given the medical opinions on causation. Nevertheless, her relief at discovering there were no longer-term complications for X emanating from her conditions, reinforces my impression that she is a mother who prioritises the interests of her child above herself. I want to know what happened and I want Y and X to be safely with us again or safe full stop and we need the truth for that and; If I knew of an event in my care which explained one or more of the injuries, I would tell the court. Absolutely. Because that would explain what happened. It would stop the worry about the concerns about X’s bones and would stop the very stressful care proceedings for our family. Of course, the injuries are concerning but the mystery about them is why we are here and if that was solved, we could think of it in another way.

[144]My impression of the mother’s evidence is that it was motivated by a desire to provide all of the information necessary to enable a thorough investigation. Whilst it is, inevitably, part of her case that neither she nor her husband is responsible for X’s injuries, I detected no signs of animosity on her part towards the intervener and she was appropriately measured and fair in her evidence.

[145]Although not giving evidence in her first language, she gave articulate evidence comfortably in English without the need of an interpreter. She was calm, composed, answered questions directly in relation to the events in question. This included plausible responses to challenging questions.

[146]I accept that there were significant stresses which were bearing down upon the mother at the relevant time. She was trying to juggle her career with her parenting responsibilities and had not managed to negotiate with her employer the flexible working pattern she considered necessary. She then had very little time in which to make an appeal (a matter of days). For part of the week (Wednesday – Thursday evening) she had to parent X (save for periods when she was with the intervener or the mother was in abroad with family) by herself as the father would be in another city. Y was having tantrums which upset the mother and made her question (at least to her friends in her supportive WhatsApp group) her competence as a parent. She was in therapy for mental health issues. In addition, she had the ongoing anxiety about X’s health (reflected in her answer at §140) and what the future held for X. In addition to all of those stresses, she was having to manage her day so as to go to bed very early because X was frequently up in the night for extended periods of time: for example, 2-3 hours the night before she was presented at the hospital and a similar length of time the night before that.

[147]Lies /Minimisation of difficulties to professionals.

[148]Mrs Bath invites me to find that the mother minimised the extent to which there were difficulties in the care of X, including to professionals. By way of example, she relies on the mother’s evidence about the record in medical notes of her telling Dr F that X was unwell for the last few days with ear infection and tonsilitis. Mrs Bath submits mother did not challenge Dr F when they gave evidence. The mother said she didn’t know how that got there as X didn’t have tonsilitis or ear infections in the few days before 21st nor has the intervener said that she had. Although Dr F stood by their record, they did add that they could not remember. Many young children do suffer from time to time with ear infections and tonsilitis. The medical records confirm that X had suffered from these conditions in the preceding 3 months. I consider it is likely there was a misunderstanding by Dr F or an error in recording.

[149]Mrs Bath cites the difficulties experienced by the mother caring for X overnight, particularly on occasions when she did not sleep much and woke early. This is something which all parents of young children experience, and it can, I accept, cause significant stress to a tired carer. The mother’s description of her strategy for dealing with this was to go to bed very early so that she would be well rested even if she woke in the middle of the night. Father’s account corroborated this. So, whilst I do not underestimate the impact of sleep deprivation as a stressor on a parent, in this case the mother had found a way of minimising the impact. Mrs Bath submits that it is significant the mother did not mention these difficulties to Dr P. I agree that it could be significant. Dr P was engaged in taking a history in the context of suspicious injuries. It is expected that every parent should be frank in such discussions. However, sleep deprivation is a difficulty all parents encounter. It is an inevitable part of parenting babies and toddlers and any doctor would know this. On balance I do not consider this either individually or taken with other factors to suggest mother was being dishonest.

[150]Further Mrs Bath cites the mother’s evidence speaking to Dr F on 23rd in which she is reported as saying X had always been wobbly but was more so in the last few days which was not mother’s evidence in her statement. Mother agreed she had told Dr F this and could not explain why it was not in the statement. I do not find this a concerning inconsistency. There is no dispute that at the relevant time X was wobbly. She had made great strides in her mobility shortly before 21st February but was still not walking independently, as the parents have acknowledged. It follows that inevitably there will have been times when X was wobbly and fell over, as the father agreed in his oral evidence. In any event, the mother had made a note to herself on 22nd that X had been very wobbly (Q454). It is probable that the mother forgot this when preparing their statement.

[151]Mrs Bath invites me to find it significant that the parents could not provide a clear account of what happened in the house that morning. This could be significant if an incident had occurred but if, as the parents said in their evidence, there was nothing out of the ordinary which occurred that morning, I do not consider this would be surprising given the time which has elapsed since the events.

[152]The mother’s accounts have, I find and save as set out below, been broadly consistent. She described collecting X from the intervener’s and X whimpered – the intervener described it as a coo. After the mother collected X, Mrs Bath says that mother’s message “that was perfect thank you” gives lie to their suggestion X was whimpering rather than cooing as the intervener remembers. I am not persuaded that a message sent within minutes of the mother leaving the intervener’s home sheds any light on X’s presentation. Nor does it assist with the mother’s credibility, as Mrs Bath submits. She was hurrying to Y’s school and not thinking about crossexamining her childcare practitioner about her daughter’s whimpering.Mother has consistently said that X was then out of sorts and crying on the way to the swimming pool and while there she refused to be put down and was clingy and out of sorts.

[153]At the swimming pool X was crying on and off and refusing to be put down which could be consistent with her being injured. GS and LK gave accounts of the events at the pool. Each gave evidence. Mrs Bath invites me to find that their accounts are materially inconsistent. LK is a good friend of the mother and father. Their evidence was of recollecting X’s crying throughout the time there. However, they were not there for the entire time. This is inconsistent with the evidence of GS who said that X was sleeping. I do not consider that the evidence of these two individuals is necessarily inconsistent. They were not with the mother and X the whole time. The general chaos of a swimming pool at the time of children’s lessons and the to-ing and fro-ing may have made it difficult for them to be as precise as their statements suggested they were. Although it was put to them that they were putting forward a version of events fed to them by the mother, this seems unlikely given that they said different things. I do not find that LK lied about hearing X cry. I accept their evidence that her crying, which had struck them as unusual and irritating, became the sole feature which they appeared to recollect about the time at the swimming pool.

[154]The mother’s description of X as crying and out of sorts when she got home, refusing to be put upon the floor could be consistent with an injured child.

[155]X did not cry out in pain when the owlet sock was put on her, but she had been given Nurofen that afternoon which may well have helped her. In addition, as Miss Stone KC submits, she did not cry out the following day when examined by Dr F, having had pain relief.

[156]As Dr van der Leij submits, there is evidence in the form of a text the mother sent her friend N on 22nd which suggests that the mother identified or could have identified that something was wrong with the leg on the evening of 21st because she told N in the message that she did not do the normal potty routine because X was crying standing up to take her nappy off but the mother thought she was just tired.

[157]In addition, when Mr Vine KC asked the mother how she had placed X on the floor after their return home, she did not remember but would usually do it by taking her out of their buggy and putting her on the floor holding her by the armpits. Mrs Bath submits the mother could not explain why she had not stated X cried when she was put down in her witness statement.

[158]In the medical notes, the mother is recorded as asserting X had not been weight bearing on her leg since they left the childcare practitioner. The mother’s case in these proceedings, and in some contemporaneous records, is that she had not noticed this symptom before the morning of 22nd.

[159]The text message sent by mother to her friend N does suggest that there was some reluctance by X to stand on the evening of 21st February. This is consistent with mother’s evidence about X not wanting to stand and crying when put down. This could be inconsistent with her evidence she did not notice a problem with the leg until 22nd. The mother explained in oral evidence that X had been so fractious in the evening, refusing to be put down and having to be carried, she had not noticed any difficulty with her leg. It was correct, therefore, she said in evidence, to say X had not been weight bearing since they left the childcare practitioner’s because she did not have the opportunity to do so. She says that nothing happened to X in her care overnight. On the morning of the 22nd, X was placed on her legs by mother and adopted a “flamingo” pose. It was when mother noticed this symptom, that she took X to A&E.

[160]I accept that the text to N could be interpreted as evidence of mother’s dishonesty as to when the symptom was noticed because she was covering up her own culpability. I do not find this the likely explanation. I find that the text sent to N was sent without the knowledge the leg was fractured. Unless the mother inflicted the injury herself on 21st in the evening, she would not have known the leg was fractured. Had it been fractured at the intervener’s, X’s responses to the potty could have been and probably was interpreted by the mother as another expression of nonspecific grumpiness and unhappiness in a fractious child. Furthermore, it does not assist the mother’s case in any way that she failed to notice a specific difficulty with X’s weight- bearing on 21st. If anything, it would assist her case to assert that she noticed the injury that night as it would mean the injury was present and reduce her opportunity for causing the injury. Furthermore, had the mother registered that there was a problem specifically with the leg, it would be odd not to mention that in the text they sent to the intervener.

[161]I have thought about this evidence. If the mother has been dishonest about her failure to notice a specific difficulty with the leg on the evening of 21st, these are hardly lies which help her case (to avoid culpability). In fact, as she would know very well, it would be a lie which increased the likelihood of her having an opportunity to inflict an injury upon X. On balance, I do not find the mother has been dishonest about the fact she failed to register the specific difficulty with the leg until 22nd. Rather, it is more likely there were signs of this injury, but she did not register their significance because as she said and as Mrs Bath submits, she did not appreciate that there was anything wrong and assumed X was grumpy and tired. Even if I am wrong about that and she has been dishonest about that, I consider it more likely that this was because she felt guilty for failing to notice the problem with X’s leg. Her own text does appear to suggest that there was such a difficulty.

[162]Mrs Bath points to an argument the mother had with the father of a child she had brought home with her children from the pool. This father was late to collect his child. Messages sent by the mother to friends suggest she was cross and had flown off the handle when the father only arrived at 6.20pm. She submits that it is likely that the mother inflicted the bruising upon X when she placed her on the floor at around 5.30. Anger could have motivated the mother to inflict the bruising, although this would be a serious assault as it would have involved multiple applications of force to X’s arms and I consider this speculative and unlikely.

[163]I agree with Mrs Bath that it may be significant that there is no reference in mother’s statement at C18 to X’s crying during the bedtime routine although she was described as clingy. The mother could not explain why this was, and Dr Rose did consider that it could be significant as X would likely experience pain if her leg was fractured. The mother has been consistent in saying X was unsettled and was crying a lot and not wanting to be put down that evening. It may, as Mrs Bath submits, be significant that X settled during the evening although given Dr Rose’s opinion about the likelihood of a non-perpetrating carer identifying a fracture after the immediate pain response, I do not consider I can attach much weight to this.

[164]I accept Mrs Bath’s submission that it may be significant that the mother did not text her friends or photograph the bruising to alert them to what she identified when she undressed X. In addition, her message to the intervener is of a few little bruises to the upper arms. Why did she not share this information with the friend she was messaging? Is this because she was not worried about the intervener’s culpability but rather her own?

[165]When asked in cross examination she agreed that she thought X might have knocked herself. Mrs Bath submits that as accidents could account for some of the bruising, I accept this could on the evidence provide an explanation for some of the bruising.

[166]Finally, Mrs Bath highlights the difference between mother’s account of the morning in her statement at (C19) I began to take X’s nappy off to put her on the potty. As I did so X cried and I noticed that she was not putting weight onto her right leg. The account given to Drs P, F and Dr Rose, as Mrs Bath submits, is different: that X cried when her leggings and shoes were put on and thereafter, she was unable to weight bear. I have considered this submission, but these accounts do not reflect a material inconsistency. The paragraph at C19, §24, goes on after the quotation Mrs Bath includes in their submissions to state that the mother dressed X but when she tried to put the leggings on her, she cried again and she cried again when the mother picked up her right shoe, so she left it off.

[167]I have considered the submissions made by Mrs Bath on the mother’s credibility, which I have set out above, some of which could potentially undermine the mother’s account of the events of 21st and 22nd February.a. There are, in this case, contextual stress factors which may be relevant to the care offered to X when she was collected from the intervener’s which need to be considered carefully.

b. There does appear to be an inconsistency in precisely what was noticed by the mother in relation to the leg on the evening of 21st, her text to N suggesting there was a problem when the potty was tried. I consider it is either likely that mother is revisiting and re-evaluating events which could have led her to identify the fracture when she didn’t, because she had not caused it and assumed X was tired and grumpy; or, as I said earlier because she is embarrassed by a failure to identify the fracture earlier than the morning of 22nd. The inconsistency does not help the mother’s case. It undermines it.

c. It is a little odd that the mother did not mention the bruising to her friend or take photographs, but the explanation is likely to be as simple as the one she gave in evidence, that it could have been caused by X knocking herself and she accepted the intervener’s reassurances. She is not as familiar with safeguarding processes as the intervener nor those familiar with the family justice system.

d. The overall impression I had from the mother’s evidence was that X was grumpy and crying on and off on 21st after being collected from the intervener’s but that the mother did not identify this as unusual or troubling and assumed she was tired.

[168]It is significant, I find, that the mother has been consistent in her accounts and during her evidence, in relation to when she noticed the swelling to the hand. The mother is highly intelligent and will, I have no doubt, appreciate the significance of her identification of this developing injury during the afternoon of 22nd February after the child protection medical. She has not sought to change her account in relation to when she noticed this symptom, despite the implications of this to her own case, nor did I detect any evasiveness on her part in relation to this topic during her evidence. By contrast she was forthright and consistent that this swelling developed during the afternoon after the failed phlebotomy.

[169]Overall, having considered the submissions made against her by Mrs Bath and the Local Authority, I find the mother to be a credible witness on key aspects of the chronology. She did not shy away from aspects of X’s presentation which undermined her case, and she is intelligent enough to have done so, had she been aiming to manipulate the evidence. I believed her.

[170]The father’s first language is another European language, but he gave evidence confidently and fluently in English. His account was consistent with the mother’s accounts of the events in question. In relation to the precipitating event, he left early on the morning of 21st and could not assist with any direct evidence about what occurred after that. He returned to London when X was already in hospital. He said that there was nothing remarkable about the morning of 21st from his perspective. In those circumstances I do not find it remotely surprising that he could not provide as full and detailed an account as one might expect had there been a significant event, of which he was aware, prior to his departure to another city. Nor did I find it significant that he forgot he had gone home briefly after dropping X at the intervener’s. He had not engaged with some of the WhatsApp messages between his wife and the intervener on the evening of the 21st February promptly. I attach no significance to this. He was away to work and fulfil his professional commitments. The children were, as far as he was concerned, safely at home in the care either of their mother or the intervener and not therefore the primary focus of his attention. There was nothing concerning about the father’s evidence nor was his account undermined in cross-examination. I found the father to be a credible and honest witness.

[171]Mrs Bath invites me to consider that the father was giving incredible evidence when he (and the mother) could not recall what had caused him to send a message to the intervener to alert her to the presence of a tiny cut on X’s right eye below the eyebrow as a result of a falling moment in December 2023. I do not find it surprising given the intervening period that father (and mother) were unable to recall these details of an everyday accident.

[172]The Intervener appeared to be nervous when she gave her evidence but I attach no significance to this. Many people are very nervous when giving evidence. The intervener was consistent in her denials of any incident or accident which had resulted in X’s becoming hurt.

[173]Nevertheless, there were aspects of her account which were probed in cross examination and resulted in some inconsistencies, perplexing and troubling evidence. As her evidence progressed, my impression increased that she was not telling the whole truth and was motivated primarily by a desire to exculpate herself. I did not find her to be an honest witness.

[174]During the period that the injuries occurred, there were considerable stresses in the intervener’s life. She was suffering from health difficulties, headaches and migraines, pain in her side, pain in her back “absolutely killing”. In cross-examination by Miss Stone KC, she denied her migraines made their dizzy, although her messages indicate otherwise “I get very dizzy with the migraines”. She also claimed the migraines were nothing to do with the anxiety of being a childcare practitioner but her message to a friend suggests otherwise: The friend suggested:

“I think the migraines are partly because of the anxiety to do with the job not just that but that’s a big percentage” and the intervener replied “Yeah I think it is too. This week should be OK tho. As I only got 1 in for 3 days then I’m off. Yay. If youfancy walking this week let me know.”

In her oral evidence she was very reluctant to admit the migraines had anything to do with her work as a childcare practitioner although eventually she did concede that it had something to do with it.

[175]In addition, she was worried about her adult child and their expartner. She was upset because of the anniversary of a family member’s death and another family death in December. The anti-social behaviour was continuing and her messages to friends indicate she was not coping with this. She agreed in their oral evidence that she was not exaggerating. Messages such as “I’m fucking raging” and “I’m ready to explode” do suggest, as Miss Stone KC submits, she was at the end of her tether. 176. Hostility to X

[177]The intervener denied she was hostile to X, whom she described as “precious” but there are many messages which point in the opposite direction, which suggest not only that she found X difficult to care for but that she blamed X for those difficulties and its impact upon her. These messages were both from and to her and include a range of individuals from her adult child, her adult child’s ex-partner, and PW. For example:-a. Referring to X as “itself” (see below at f)

b. Allowing two family members to call X “little shit” and “the thing” without admonishing them;

c. Using the word “screech” to describe X’s response to a nappy change.

d. Using the phrase X “done her usual screech” to which she received the following response:

“When the thing goes, have a nice bath and just eat dinner”. e. Calling X “screech”: “Screech has just woke up” f. On 23rd January she sent a message “surprise surprise apparently the docs have cancelled X’s appointment so won’t be picked up til 430 now. Going to leave her asleep in the buggy until 430. Trying to wake itself up now.”

The response she received referred to X as “little shit”. g. On 7th February the intervener sent the mother a message describing a lovely play date but X looks a bit flushed and warm. I’m going to give some calpol just to ward anything off. About an hour later, she wrote to PW: Yeah sorry just changed bums. X done her usual screech cos I put her down to change ******. X h. “did her crying”

[178]I accept that in any job there are irritations and provocations. I accept that the way in which some people cope with such difficulties may include offloading concerns to friends and colleagues. I accept, also, that this could include, from time to time, exaggeration and even the use of less than professional language. I accept that messages of this sort, motivated not by hostility towards X but as a coping mechanism are probably not messages to which the court can attach any significant weight. People can say things in these circumstances which they don’t really mean and would never want repeated outside their circle. The existence of this type of message does not necessarily assist in understanding the quality of care offered by the childcare practitioner to X.

[179]Mrs Bath invites me to find that the intervener was likely describing behaviour in X which was known to and experienced by the parents, when she used the word screech. She relies on their descriptions of big cries for anger and sending a laughing emoji at the intervener’s message of X’s screaming at another child at playgroup on 6/2/24. The mother had shared with the intervener that sometimes X got upset when she was cuddling Y and pushed in between. I accept that these parts of the evidence do suggest that X found it difficult, as the intervener said in her messages, to share her primary carer – whether the intervener or the mother. I accept that the intervener observed X sometimes clenching their fist and making a “raah” sound. All children make, particularly when non-verbal, their views known to their carers in this way. I am satisfied she did give big cries or screams. During Mrs Bath’s cross examination of the mother, she sought to distinguish between a scream and a screech. I am unclear there is much difference, but English is not the mother’s first language. What is notable though is that the word scream was utilised in Mrs Bath’s examples by the intervener not the mother.

[180]Nevertheless, the messages to which I have been referred and set out above suggest the following interpretation.

[181]A notable and significant disconnect exists between the impression conveyed to X’s parents (sweetheart; bless her little heart) and the intervener’s description of X to others (calling her screech). The use of such negative appellations suggests the intervener was hostile to X. It also indicates a link between the hostility she felt towards X and X’s behaviour: screeching. The intervener admitted in cross-examination that she would not have used this word when talking to the parents, instead saying she would use the word “fretful”, “upset” or “crying”. I infer from the fact the messages were ongoing messages between the intervener and different people, that the difficulties encountered by the intervener in caring for X were not isolated. They do, I find, support an analysis that there was difficulty on her part in caring for X in an empathic and nurturing way.

[182]Some of the messages were described in submissions as de- humanising. I agree with that characterisation of some of them (Itself, the thing, screech). It suggests that the intervener considered X as responsible for the difficulties she encountered caring for her “they done her usual screech”, “did her crying” as if this were a conscious choice made by X and that the intervener blamed her for this.

[183]I consider that these messages exchanged by or with the intervener support an analysis that these messages were not simply a mechanism of offloading routine day-to-day employment concerns. They cross a line into the significantly unprofessional which is relevant when evaluating her claim to be maintaining appropriate professional confidentiality in relation to X following the identification of her injuries. In addition, they indicate that the intervener was displaying genuine animus towards X. As Mrs Bath conceded, if the court made a finding that the intervener was hostile to X, this would be a relevant factor in considering the likelihood of the intervener as a perpetrator.

[184]Professionalism/confidentiality/lies about discussions between theintervener and PW

[185]Some of the messages suggest other unprofessional conduct on the part of the intervener and provide support for an analysis that the intervener did not like X or find her easy to look after:-a. Sending a message to her family member that “this job isn’t how it used to be at all. My passion for it is going because of the parents and the kids that I have at the moment.”

b. Contravening her own illness policy by messaging that she would not be “bothering to message” the parents when X was “non-stop coughing”. Not alerting the parents to X’s “non-stop cough cough cough” on another occasion.

c. Sending a message at 11.24 on 19/2 that another child “had been a darling. X has given me hell” . Her explanation for this was that it “was a build up of days when X had been very clingy”

d. Sending a message to her adult child’s ex-partner on 19/2 that “I’m gonna give X up until March and if the screaming don’t stop I’m getting rid” and “I think I’m gonna give X til March and if the screaming doesn’t stop them I’m going to terminate her. It’s been ridiculous today”.

[186]The intervener tried to explain these messages away by describing her use of the word ridiculous as an exaggeration. They do show she was struggling with her job and in particular with the care of X whom she plainly did not like. Nor was she able to observe proper professional boundaries and confidentiality.

[187]The intervener could not explain the apparent inconsistency between sending messages to her family and friends which were highly unprofessional and receiving messages from them which were overtly rude and hostile about X and her stated position that she had not discussed the investigation into X’s injuries with PW for reasons of professional confidentiality.

[188]I found the intervener’s evidence, supported as it was by PW, about maintaining professional confidentiality regarding the safeguarding investigation to be wholly incredible.

[189]I agree with Miss Brown KC that it is striking that there are very few messages after 21st February about X, given the messages exchanged prior to 21st. It is incredible that the intervener would not have mentioned the shocking and worrying news from the mother about the identification of X’s injuries and yet there is no mention of X between 21st February at 2.30 and 5pm on 23rd February.

[190]Given the intervener’s lack of professional boundaries sharing information about her charges prior to the 21st February (as evidenced in the messages), I do not accept her assertion she observed confidentiality after 21st February. She looked to PW as a key support. She was a colleague, older and wiser to whom the intervener turned to for advice. In addition, PW had become her good friend and was aware of personal issues and challenges, for example the ongoing situation with the intervener’s adult child and their partner.

[191]The telephone logs reveal extensive discussions with PW at critical points in the chronology.

[192]After PW left the intervener’s on 21st February, she received a message from the intervener which said “I just don’t know what to do”. PW replied:

“I think deep down you know she has to go”

. Although PW and the intervener denied, initially, this was about X and claimed this was about the intervener’s adult child’s ex-partner, the intervener accepted in cross- examination that it referred to X. The messages about “terminating” X and “getting rid” of X which she sent a few days before support this analysis.

[193]Whilst it was not unusual for the intervener and PW to speak to each other during the day as well as first thing in the morning, I note that there was a 24 minute and 42 second call between them as soon as X was collected by her mother on 21st February.

[194]When Mother messaged the intervener on 22nd at 8.59 to say X would not be coming she mentions that this morning when I tried to put her to stand she is just crying. It seems her right leg is in pain – won’t put weight on it, cries when I try and put clothes that side….

[195]At 9.12 on 22/2 , PW called the intervener and was on the phone for 34 minutes and 49 seconds. During the call, the intervener sent the mother a message at 9.19 yeah she was crawling around like a mad person, We had a play date with PW and her children and X was following all the children. I do hope it’s nothing and I hope you’re not there for too long X has progressed so much here. She is developing well XX.

[196]After her message from the mother at 14.20 on 22/2 informing the intervener that a “safeguarding procedure” was underway, she spoke to PW on a number of occasions that afternoon. I agree with Miss Stone KC that it is incredible that they did not speak about X.

[197]The following day (23rd) the mother messaged the intervener at 7.59 listing the broken bones, chipped tooth, hand bruising and swelling and setting out the investigations including a referral to social services. The intervener responded at 8.06.18: Good morning, I was just about to message you to see how things were going. OMG what on earth. Poor X. OMG you are really going through it at the moment. If there is anything I can do at all please let me know OMG my heart is breaking for you all. Yes of course they are doing the right thing and it is all routine. Sending you massive hugs. Please keep me posted.

[198]9 seconds after this message was sent, the intervener called PW and was on the phone to her for 22 minutes and 38 seconds. During the call, there were a series of messages sent by the mother to the intervener with responses from the intervener as follows:-a. 8.08.44 – M to Intervener: I have no idea how it could have happened with us

b. 8.10.01 - M to intervener: Did she maybe have a near-fall at yours and someone caught her? Could another child have stepped on her leg by accident? Anything you or PW might remember would be really helpful

c. 8.11.57 – M to intervener: I’m not worried about accidents but not knowing how X got to be how she is is really worrying.

d. 8.12.14 – M to intervener: Anything either of you might remember would help.

e. 8.12.14 - M to intervener: Thank you so much!

f. 8.17.36 - Intervener to M: OMG that is absolutely heartbreaking. X was on the go the whole time here. She didn’t sleep too well at nap time but she has been like that before. She ate lovely, she had a huge poo. That’s when I changed her vest, definitely didn’t notice any bruises then otherwise I would have taken photos and mentioned it and filled out a form for you to sign. There was definitely no near falls as I’m always extra vigilant when I have X. As soon as X climbed onto the table or the Duplo stand I took her down. X was close by and not really near the other children as she was too interested in climbing. I have been trying to rack [sic] my brains as to what it could be but nothing untoward happened from what me and PW could see.

g. 8.17.46 -Intervener to M: Keep me posted with everything X

h. 8.26.12 – M to intervener: I definitely will. Same here – combing over the whole afternoon and evening and nothing comes up. I’m really sorry for you and us and X that we have to go through all this now

i. 8.30.28 – Intervener to M: yeah I’m trying to relive the whole time X was with me and it just literally she was on the go the whole time. But I will keep thinking and if anything comes to mind I will definitely let you know. Sending you all the biggest hugs.

[199]The notion that the exchange of messages between mother and intervener about such significant events could have occurred while the intervener was on the telephone to PW and that she made no mention of X to PW is frankly ludicrous.

[200]Both PW and intervener appear to have considered it important that they maintain the lie that they did not discuss X. The intervener maintained this was for reasons of professional confidentiality but there was no embargo upon any such discussions because the intervener was not suspended until that afternoon. The most likely explanation for this is that they were colluding to present a picture of a lovely play date during which X sustained no injuries. It would appear they think that if they discussed what happened to X it would undermine that shared account.

[201]They were, I find, both lying about the sharing of information in order to present a unified account.

[202]Consistent with this is the message from PW to the intervener: I think you know you have to. PW said that this was a message about the communications between the intervener and their adult child’s ex-partner. It could be, but I did not believe their evidence on this issue. It is far more likely it was a message about X. I infer that there had been discussions between them about the intervener’s difficulties in managing X.

[203]Lies

[204]The evidence indicates that there were a number of occasions when the intervener lied to people in connection with her professional commitments. So, for example:- she admitted in evidence that her message to the parents of one of the other children in her care about how she managed their toilet training was not true. She complained about the instructions given by another parent regarding sleeping patterns and failed to follow them.

[205]She lied to U’s parents (to whom she had been recommended by X’s parents) about availability. She messaged U’s mother “so sorry I’ve been driving to [long distance] as it’s the funeral tomorrow” adding that if she didn’t reply she would be at the funeral which was from midday. She followed this up “the funeral was hard. But we got through it”. As she accepted these were both lies. She did not attend the funeral. She was asked in cross- examination why she had said that the funeral was hard given that she agreed she had not gone, and replied “my relative told me it was hard”. However, the funeral had not even taken place when she sent the message to U’s mother, so this was another lie, this lie given during the course of her evidence.

[206]She lied to the parent of another child on 15th January, telling them she was closed (falsely) and would not be able to accept a visit until Sunday (a day X would not be with her).

[207]She lied to X’s parents about needing to cancel childcare when X would normally be in her care, telling them she had a medical appointment on 30th January and would not be able to look after X on that day. She has produced no evidence to support this assertion, as she could have done. This was a day when she was to be visited by her childcare practitioner coordinator. Regardless of whether or not there was a scan, she was unable to provide any satisfactory explanation as to why she had not reinstated X’s care that day, when she had not cancelled another child and another child and did look after them on that day. Her evidence on this issue lacked credibility. She denied deliberately engineering a situation in which X was not with her but I think it likely that she did so, for precisely the reasons which were put to her by Miss Brown KC: she was anxious about her coordinator being present to observe her difficulty in managing X.

[208]After X left her care on 21st February she lied to prevent another mother from attending her home that week. She used the same lie she had used to M’s parents (the lie about the death of a family member). She had no satisfactory explanation for this lie other than that she did not want to let people down. Miss Brown KC submits that the lie was given to enable the intervener to keep her options open for taking on another mother’s child once the fallout from X’s injuries had died down. In other words, the lie was given because she knew there would be fallout because she knew X was injured.

[209]I accept that some people lie to release themselves from commitments which they do not want to keep and to provide an explanation which justifies that decision. In this the intervener’s actions are probably not uncommon. By themselves, such lies are not probative of the intervener’s care of X. However, considered alongside the unprofessional messages about X and the sharing of information about X, what they do suggest is that the intervener has little difficulty in saying one thing and doing another if it suits her. She kept saying that the lies did not hurt anyone, but this was wrong. It did impact negatively upon the parents who then had to make alternative arrangements for her care. The significance of such lies, I find, is they indicate her casual approach to truth telling within the context of her job. Whilst such lies do not appear to be directly relevant to the issue of whether she is a person who is capable of inflicting any injury to a child, they do indicate a preparedness on her part to lie in the context of her job, and also to lie on oath. This indicates that she is prepared to lie to manipulate her version of events untruthfully. 210. The playdate on 21 st February and after

[211]At this point it is convenient to consider the evidence of PW. She is much older than the intervener and is a good friend to the intervener. She gave evidence confidently, but I did not find her evidence reliable. Rather, she was, I find, motivated by a desire to support her friend. She said it had been a normal play date and nothing significant had happened. PW is well aware of the intervener’s personal problems. The messages make it clear she knew of the difficulty encountered by the intervener in caring for X. It was PW who sent the message to the intervener – I think you know she has to go. As I have already found, contrary to her assertion this probably related to the intervener’s adult child’s ex-partner, it was likely a message referring to X which referred to the intervener’s ongoing difficulties in caring for her. Her evidence she did not discuss the investigation with the intervener was incredible and given, I find, to assist her friend. When challenged about why the letter only related to X, she said she had guessed the LADO investigation related to X.

[212]Despite the messages that X was on the go the whole time she was at the intervener’s that morning, the intervener accepted in oral evidence that between 11am and 2.30 when the mother collected her, X was secured in her buggy for 2 hours and 40 minutes. Initially, the intervener says she put X in the buggy because the high chair was in use and she used it to feed X. She said she then tried to rock her to sleep. She slept for about half an hour, woke, briefly sat on the intervener’s lap, had a nappy change and was dressed in her snowsuit and secured again in the buggy at about 2.05 while the intervener got the other children ready.

[213]There are inconsistencies in the evidence of what happened during the morning. PW was there between about 9.25 and midday. She said X’s nappy change did not involve a change of vest. By contrast, the intervener described this as including a vest change. It is possible that PW had simply forgotten about the messy poo change. An alternative explanation is that the intervener lied about changing X’s vest early in order to reinforce her assertion there was nothing wrong with X’s arms when she changed her, to support her case that the injuries were not present at that time and she was innocent. In her evidence the intervener said the nappy change was after she had taken X down from the activity table.

[214]PW described the play date as lovely. X was climbing up onto the Duplo table and the intervener was taking her down. Then X went to climb the larger activity table but the intervener said she didn’t think it was a good idea and said she would change her nappy then do lunch. She said X was totally fine that morning when she was there and she did not see any problems with her movement.

[215]A different picture emerges in the texts. The intervener told the parents by text that X had completely screamed at me, when she got her down from the table onto which she had climbed whereas PW said she heard nothing. In her evidence the intervener described this as X making an “aaagh” sound. If X had screamed, the significance of such a scream would be apparent to both her and PW, if she was present. I note that the intervener mentioned this scream in her police statement although she left it out of her statement in these proceedings. One explanation is that there was a scream as a result of an incident which took place and which caused X injury. This could, as she reported to the parents, have been connected to X’s climbing on tables or could have been manufactured to cover a more sinister incident which had resulted in X’s fractures.

[216]After lunch the intervener describes leaving X in her buggy as she usually slept after lunch. She said she was rocking the buggy as she was a little restless, eventually snoring at about 1pm, waking again at 1.40. She says she took her out of the buggy and sat her on their lap as she was fretful and needed a cuddle. The intervener then says she changed her nappy again. She had planned to take the children out and so she got X ready in her buggy at 2.15 pm and then busied herself getting the other children ready.

[217]PW said the intervener’s adult child’s ex-partner had been horrible to the intervener in a call but there was no call that day, the intervener having declined a facetime call. This reinforces my impression that PW is motivated by a desire to help her friend and provide sympathetic context. 218. The buggy/snowsuit/the trip out

[219]Significantly, I find that the intervener did not have any credible explanation for leaving X in her buggy for 2 hours and 40 minutes, as she admitted doing in her oral evidence. For the last half hour (if she is telling the truth) X was dressed in her snowsuit prior to the mother collecting her at 2.30. This contrasts with her description of the morning to the mother in messages where she states that X was on the go the whole time.

[220]The intervener’s explanation for this was that X was put in the buggy while the other children helped her to clear away the toys but there was no adequate explanation as to why X was contained in this way for so long when the other children were free.

[221]To leave a child in a buggy for this length of time is unacceptable (unless they are asleep). This is particularly so, with a child such as X who required careful monitoring as to seizure activity, given the identified linkage between seizures and overheating. It is also an unkind and uncaring way to treat a young child and is congruent with my analysis that the intervener did not like X and was unable to provide her with empathic care. It can also be interpreted as evidence of her difficulty in managing X on that day.

[222]She told the mother by text that she had just been to the shops. The intervener says that she had not been out and was only planning to go out. She said in oral evidence she was preoccupied when sending the text. This could be an explanation for the text, but I do not find it to be so. In her oral evidence the intervener’s account changed from wanting to go to the shops to wanting to go out for air and to look at flowers, (on a rainy day in February). The intervener was lying when she provided that explanation to the mother because she needed to explain why X was ready and dressed in her snowsuit, so that the mother would not notice any sign of injury to X. This could be interpreted as an action to prevent the mother from noticing any sign of injury.

[223]Even if it had been, as she asserted, their intention to go out, which was frustrated by the mother’s proposed early arrival, X should not have been left in the buggy fully dressed in this way for the length of time admitted by the intervener. 224. Internet search

[225]The intervener searched online for “what causes bruising on top of arms”. It is conceivable that this could have been a genuine attempt to establish how and why bruises she had not caused, came to be inflicted. However, when asked about this she agreed she already knew that it could be a sign of physical abuse through grabbing.

[226]ANALYSIS AND CONCLUSIONS

[227]I accept Dr Johnson’s evidence as to the radiological window for the timing of fractures, unchallenged as it was and find that the fractures occurred, during the radiological window set out in the opinion of Dr Johnson.

[228]The expert evidence of Dr Curran and Professor Kumar is unchallenged and I accept their opinions. This means there is no evidence which supports an analysis that X has any condition or genetic abnormality which has contributed to or caused her injuries. She had normal pain responses and normal bone strength. The incident where the hoover accidentally fell on her foot after her return home, causing no injury, provides cogent evidence of both of those conclusions.

[229]X was, during the radiological window, in the care of the three individuals: mother, father and intervener. Not one of these noticed any identifiable signs of injury until the mother noticed the bruising, then the leg and took X to the hospital and then noticed hand swelling. 230. The bruising

[231]These injuries cannot reliably be timed beyond Dr Rose’s opinion that shallow bruising would fade away within 8-10 days of injury. Neither the mother nor father observed any of the contentious (i.e. not bruise no 1) injuries upon X before she was cared for by the intervener on 21st February. The intervener maintains that there was no bruising when X’s vest was changed whilst in her care on the 21st February. The mother discovered the bruises on the evening of 21st February when she was undressing X.

[232]It is possible but unlikely that the bruising occurred prior to X’s going to the intervener’s on 21st. Had X arrived at the intervener’s bruised, she would have said so. In addition, given the number of bruises, the parents (or one of them) would likely have known of an incident that caused the bruising and informed the intervener. Neither has identified such an incident. I consider it unlikely that they would have sent X to the intervener’s in this state with no explanation.

[233]It follows that the bruising occurred sometime between 9.30 on 21st February and X’s presentation to the hospital on 22nd. 234. The mouth injuries

[235]Dr P accepted in oral evidence that the ulcer on the mouth was not an injury. In addition, the lip looked to them as if it had cracked as a result of being dry and they accepted in those circumstances it was not suspicious. On the basis of that evidence, neither of these findings on the CP examination is suspicious.

[236]The chipped tooth, however, had not been present previously, according to mother and father. This could have occurred as part of an incident in which X fell onto something or as a result of other impact.

[237]It follows that the chipped tooth occurred sometime between 9.30 on 21st February and X’s presentation to the hospital on 22nd. 238. The wrists

[239]Other than the fact of these, the oldest of the identified injuries, there is no evidence of an event or events causing one or two fractures. X was, both because of her developmental progress and her health conditions, in the habit of falling from standing, as the father acknowledged. Whilst, theoretically, falls onto the wrist could cause these fractures, the bilateral nature of the fractures was unusual and raised the likelihood of non- accidental injury. Dr Johnson considered that two accidental falls were a more likely mechanism of such injuries.

[240]Anyone present when such fractures occurred would know that they had hurt a child badly because of the screaming which would follow. Nobody has described even one, let alone two occasions when likely events occurred.

[241]There has been detailed exploration of a date in early February when the mother hardly slept because X had a very unsettled night. The messages set out in detail earlier in this judgment from the 7th and 8th February provide evidence which supports an analysis that: X required Calpol on 7th (intervener to mum), that she screeched when her nappy was changed (intervener to PW) and that in the afternoon (according to a message the intervener sent the parents) she was quite restless and jumpy in her sleep. That night X had a disturbed night’s sleep. The mother messaged the father to say she just kept waking up every ten, twenty seconds. The description of X’s symptoms could indeed signify that she had sustained the fractures proximate to these dates. Only the carer who was with her on those dates would know. I have considered whether I can make a finding but the evidence above, in my judgment, is insufficient to reliably narrow Dr Johnson’s window during which X sustained these injuries. 242. The Tibia and Fibula

[243]There has been considerable exploration of the chronology of 21st and 22nd February during this hearing with the aim of narrowing the timeframe in which these and the other acute injuries occurred.

[244]These injuries would result in an immediate loss in the use of the leg as X avoided the pain of weight bearing, indicating that the injury occurred immediately before the non-weight-bearing.

[245]The failed potty attempt on the evening of 21st could have been a symptom of these injuries. By the morning of the 22nd when X was put to stand, the mother first registered the significance of this symptom. It could be, if the intervener is right, that this injury occurred after X returned to her mother’s care the night before or if the mother is accurate, that it was present when she left the intervener’s but had not been noticed by the mother.

[246]A contra-indicator to refining the window for the timing of this injury to a period when X was cared for by the intervener is the fact that the mother did not identify any swelling when putting on an owlet sock on the evening of 21st when putting X to bed. In addition, mild swelling was noticed on admission on 22nd and Mrs Bath sought to explore the extent to which this indicated the fracture was likely to have occurred after X left the intervener’s care on 21st and was not present when the owlet sock was put on.

[247]Dr Rose was asked whether a fracture would have been obvious. He said there may have been swelling. We know from the medical records there was mild swelling on the morning of the 22nd. He found it interesting the mother found that X was upset when putting her tights on. In his opinion there was no difference in perception of pain the previous evening and the fracture would have been as painful at 7pm as it was the following morning. Dr Rose opined, this would argue fracture occurred after 7pm. Dr Rose was asked if there would be swelling by 7pm if the fracture occurred by 2.40 and said, the ankle is not fleshy with not a great deal of subcutaneous fat to mask swelling.

[248]The owlet sock is not a sock which requires to be put on over the foot. It looks more like a sports support bandage which is wrapped around the limb. Mrs Bath relies on the fact that the mother’s account describes no difficulty with the limb the night before. I have considered this submission. It could, as she argues, signify the fracture had not occurred. However, the mother has consistently said, in evidence I accept, that X was crying and not wanting to be put down that evening. X settled later but was unsettled overnight. Her description of X’s response when she put the sock on mirrors that of Dr F when they described touching the ankle and pressing it: X looked as if she wanted to cry. Given X’s presentation on that evening: crying on and off, refusing to be put down, alongside her inability to articulate what was wrong, had her leg been fractured in the intervener’s care, it is unsurprising that the mother was unable to identify in particular the significance of any response to the placing on of the owlet sock which upset her. She had been upset since they were collected from the intervener’s. 249. Metacarpal fractures/ Swelling to the left hand

[250]Swelling post fracture has been the subject of extensive exploration during the hearing and submissions, to consider the extent to which the window in which the hand fractures occurred can safely be narrowed. The starting point is that the unchallenged radiological evidence is that these fractures were acute and occurred after 12th February.

[251]Mrs Bath relies on the medical notes to submit the mother noticed the swelling to the hand and alerted medical staff at 20.33 on 22nd February. The note records: “mom says left hand thumb and index finger is red in colour and X cries when touched. Mo also added this is a new finding and bloods were taken from the same hand was not sure if this is redness after blood collection”.

[252]Mother recalled she told staff earlier in the day. She told Dr Q, as recorded in their notes of 29/2 “mother confirms to me that X’s left hand was looking a little swollen during the day on Thursday 22nd February while they were in CEA. It became more swollen and red towards the end of the day and the paediatric registrar has described it as such in their notes at 20.33.”

[253]I am satisfied that the mother was telling the truth when she said she had noticed the swelling to the hand developing during the afternoon after the child protection medical and failed phlebotomy. As was submitted at the oral submission hearing, the registrar had visited mother precisely because this issue had been raised earlier.

[254]Nevertheless, it is necessary to consider the evidence of Drs P and F on the issue of X’s response to the examinations of X’s hand and the phlebotomy.

[255]Dr P and Dr F described the top to toe examination each carried out between approximately 12-3pm on 21st February. Dr P’s oral evidence was that when undertaking such examinations, they were primarily relying on inspection. She looked for signs of fracture such as swelling, bruising or redness and signs of heat. She didn’t manipulate or move all of the joints. With the hands, they made sure they looked on both sides of hands and gently touched over the hands to ensure there was no pain response. She felt for differences in heat, for example if one was warmer it might represent some swelling.

[256]Dr F was clear they checked the bones, felt and examined the skull. She checked limbs and start from top and go down each limb separately. Asked about the left hand they said they were looking for tenderness:

“I am a little bit pressing to see if tenderness. If tenderness at any part of body explore further and when examine no tenderness when checking the limbs – don’t press hard but just to see tenderness”

. She did not notice any tenderness, swelling or bruising to X’s hand. The following day the hand looked “completely different”.

[257]For the phlebotomy, Dr P described a child usually sitting on their caregiver’s lap. The hand would be numbed by the application of numbing cream before a phlebotomy. Usually, Dr P’s assistant holds above the site to stabilise the arm, then Dr P holds below site and holds the needle. They had said they attempted to take blood from X’s left hand and the needle fell out. In oral evidence they said from what they remembered there was not a huge amount of movement. She put the needle in and saw flashback which means there was blood coming down the needle which stopped. This meant the needle had been in the vein and now wasn’t. With children having small veins and hands, Dr P said it didn’t take a tremendous amount of movement for this to happen. She didn’t recall it being a hugely significant blood test. They were asked if X was upset or OK. And replied:

“I think what I can fairly say, don’t remember it being a very dramatic experience. It didn’t stand out to me but don’t recall more details about X at the time”

. The phlebotomy had failed in the left hand and blood was then taken from the right hand.

[258]I accept Dr P’s and Dr F’s evidence about the method of their examination of X.

[259]I accept that during their examination of X, neither doctor detected any signs of tenderness to X’s hand nor was swelling observed. Nor did X cry as Dr Rose would have expected them to, had the fracture occurred. Their evidence is consistent with that of the mother. I also note that when Dr F examined X’s ankle which was fractured by this point, X did not cry out but “went as if she wanted to cry”.

[260]X had numbing cream applied to her hand prior to the phlebotomy. She was uncooperative for the phlebotomy and withdrew her left hand, causing the phlebotomy to have to be performed on the right hand. During that process whilst notes indicate she demonstrated a pain response, neither the mother nor Dr P recalled this. I do not find the notes necessarily inconsistent with Dr P’s evidence about their examination nor the mother’s evidence. Dr P did not recall the phlebotomy as hugely significant. I bear in mind they were trying to recollect events some time ago when they undertake many phlebotomies. In addition, they were being asked about this examination in the context of considering the likelihood of its mechanism to cause a fracture, which they thought unlikely as did Dr Rose. Children do not like needles and there is no reason why the mother or Dr P would have attributed any particular significance to X’s moving her hand or crying if the hand was already fractured.

[261]I accept the opinion evidence that the examination and the phlebotomy are unlikely to have caused X’s metacarpal fractures. Neither doctor exerted pressure sufficient to cause a fracture. As Dr Rose opined, fracture is not a known consequence of a phlebotomy in published literature. Although the notes suggest that X cried out, nobody present (doctor and mother) considered that what was being done caused her such a serious injury.

[262]Dr Rose opined that the evidence of the unremarkable examination suggests that X’s fracture would not have been present during that examination. Dr Rose also said in relation to the timing of these fractures that it was possible that the fractures occurred after Dr P’s examination if the court found that the swelling, redness and tenderness were noticed later. This evidence is consistent with his report which provides a short period in which the swelling would develop.

[263]However, he also considered it significant that no member of the treating medical team in the hospital had been alerted to any high pitched screaming to suggest that X had been fractured in A&E. I note that Dr Q, the treating paediatric consultant also considered and discounted the possibility of the fracture being caused by the mother in the hospital. When Dr Q gave oral evidence, Mrs Bath suggested to her that this was a guess. Dr Q rejected this, stating that it was her opinion as a professional witness. She said she was sure there was some force behind fracture and there was no history of crying from X during the time she was in the department. I accept Dr Q’s evidence. There was no high-pitched cry, of the sort described by Dr Rose, after the examinations in the afternoon which would have alerted staff to the likelihood X was in distress or injured.

[264]Dr Rose’s written opinion had been that following fracture, X “may have been irritable when her left hand was moved through clothing. A non- present carer may have recognised that X was irritable when her left hand was manipulated but there would be no reason for the non-present carer to recognise that X had sustained fractures”.

[265]I note that the fractures were incomplete. I bear in mind that at least one of them was not detected by radiologists on the first imaging. Dr Rose, who is a paediatrician rather than a radiologist, and not therefore a radiological expert, but who has experience of reviewing imaging when treating children said he could not see them. I infer from this evidence that they were present but subtle.

[266]Dr Rose’s written opinion was that a non-present carer may realise X was irritable when her hand was manipulated but there would be no reason for a non-present carer to recognise X’s hand had sustained fractures. Whilst I appreciate that during the CP medical X was being examined by experienced doctors whereas in the scenario he contemplates he is referring to unqualified carers, my interpretation of this evidence is that whilst it was unlikely the fracture was present if X did not react in a significant way to the hand examinations and phlebotomy, it was by no means impossible.

Swelling and its significance to timing

[267]I have thought about the issues arising in relation to the hand injuries very carefully. The radiological evidence, upon which I am confident I can rely is that the metacarpal fractures likely occurred after 12th February.

[268]I have concluded that I cannot safely rely on one of the timeframes Dr Rose gave for the development of the swelling injury during his oral evidence to narrow the time during which the hand fractures occurred to after 2.30 on 21st February. My reasons for reaching this conclusion are, in summary, that the opinions of both Dr Rose and Dr Johnson indicated that swelling is an unreliable timing tool in respect of which there will be many variables depending on the circumstances of any case. The lack of published research on this topic was cited by Dr Rose as a reason for caution. I shall set out his evidence about this.

[269]In his responses to supplementary questions he said:-“There is immediate pain with a fracture and the overlying area will be tender. However, redness and swelling take a period of time to develop following the release of chemicals from the damaged tissue cells. These chemicals cause increased blood supply to the area, hence the redness and swelling of the damaged tissues. It is not possible to be specific about the time period between the fracture and the redness and swelling. The redness appears first maybe with the first 30-60 minutes, it may take longer, 1-2 hours before the swelling becomes noticeable” (my emphasis).

[270]At the outset of Dr Rose’s oral evidence, he resiled from this unambiguous opinion. His evidence in response to questions from Mr Vine KC are set out below (my note):- “I think reflecting one area been pondering on not that I think I can answer it. In my report I discuss the time taken for the swelling to X’s hand to develop. I have said it would have been within the timeframe between the time X arrived in the children’s emergency area and the time it was pointed out obviously. I have some anxieties looking at the radiology as to how secure that timing is, not saying wrong. But just not sure. … We don’t know the cause of the fractures, therefore we don’t know the force used or the extent of the tissue damage. ….If the minimum amount of force was applied to cause a fracture then it would follow the swelling might take rather longer to appear than if far more excessive force was used” (my emphasis).

[271]Dr Rose acknowledged he was offering an opinion on the timing in which swelling would develop post fracture in the absence of an account of any accident or incident in this case: “It would be based purely on my limited medical experience because clearly, we rarely see fractures immediately and generally speaking there is an explanation” (my emphasis).

[272]The following exchange between Mr Vine KC and Dr Rose. Mr Vine KC asked: Just so we understand what you are saying, what is the anxiety you have re how reliable the report? Dr Rose replied: “If you look at the X-ray, not a radiologist and defer to Dr Johnson but in his addendum was a photo of the X-ray with arrows pointing to acute fractures. The degree of damage to my untutored eye is not great. If I looked at it, I would not have recognised those fractures. Depends on what mechanism of the fracture was and we don’t know as to how quickly the swelling would have arisen. The start of the swelling occurred immediately on the fracture. As I say that takes time, reflecting whether my window is something I could defend completely and whether it could be possibly extended. That’s my concern. (my emphasis). AVKC: When said window extended earlier later or both? Dr Rose: Extended to an earlier point. ACKC Insofar as you can refine that question whether to an earlier point, is there any time date or event by which could do so or not? Dr Rose: No I don’t think so (my emphasis).

[273]Dr Rose was updated as to the evidence of Drs P and Johnson and asked if this altered his opinions in any way and he replied: “I think it is quite a useful observation from Dr P. Because the way a child is restrained who is uncooperative or not expecting a sharp pain is you have to have 2 people, one to help and take the blood. The person taking blood will hold the hand and will be a reasonable amount of squeezing pressure, partly to stretch the skin, so skin doesn’t deflect the needle, and to stabilise underlying vein but in anticipation child likely to attempt to withdraw the hand – which X did. So, argue from a clinical point of view that it would have been unlikely that X would have had the fracture – not 100% -with Dr P squeezing it and not suffered pain because in pain later from gentle palpation. As Dr P went to squeeze had it been fractured would have expected them to withdraw hand before needle prick. Would argue against fracture being present at that point”.

[274]Later in his evidence Dr Rose said (again in relation to swelling):

“That’s why I was agonising over my report. Know repeating myself but radiology not inconsequential and caused swelling – in a small hand the 6-7 hour window possibly enough for observable swelling to develop but I don’t feel comfortable saying that fact that if the swelling not seen at 1pm and was seen between 7-8 must mean it occurred after 1pm or even after ….going on from that if goes back to beginning when X arrived at 9.48 then looking at a 10 hour gap between X arriving at the hospital and M noticing swelling, 10 hours more than enough for swelling to have occurred given very small hand. That developed redness and swelling later on. That’s as far as I felt comfortable going”

. To the question, could it have been caused before 2.40 previous day, he answered:- “now you are talking about a 19 or 20 hour gap and I think that is highly unlikely it would have taken that long would be over 20-2 hours – highly unlikely occurred before 2.40 on Weds”.

[275]Under cross examination on the issue of swelling developing following the ankle fractures, the swelling which would have been marked by the plaster cast applied, he gave this answer:-“Question about whether that helps with timing difficulty is understanding time taken for swelling to initially appear. And then what is relevance of apparently developing over period of time she was in hospital. We are very much hamstrung but not understanding the mechanism, so no idea of the force applied to X’s lower leg bone to fracture them. Initially no bruising so think can discount was a forceful gripping to cause bruising as no bruising. So, some other mechanism led to tissue damage and then that then leads to swelling of damaged area as was seen. Trying to look at published literature to see time taken between fracture and visible swelling doesn’t exist as so many variables that it is meaningless. Seems to me once have tissue damage as mechanism for tissue swelling then it is unlikely to take days for that to become obvious. But can see could take several hours. Don’t know if helps court. Hesitate to put a specific no of hours”. (my emphasis).

[276]He was then asked: In this case the timeline everyone is interested in is before or after 2.40 on 21st of February – so the day before X arrived at hospital. If ankle fracture occurred before 2.40 on 21st February, would the swelling have been obvious at 7pm that same evening? “I don’t think I can answer that. Would be unfair to suggest that there must’ve been swelling 4 hours after. It is possible but on 49/50 would not come down to say it was probably”. Conclusions re the hand swelling.

[277]I interpret the inconsistent responses Dr Rose gave in these exchanges as to the likely timing of visible swelling post fracture, some of which included very different estimates as to timing (in the range “unlikely to be days” – “1-2” hours), reflect his genuine attempts to assist the court and the parties to clarify the likely time-frame for injury, whilst at the same time grappling with the difficulty he had articulated in so doing reliably during his oral evidence. There are too many variables:a. The lack of information about both mechanism, degree of force and timing from a carer.

b. The lack of published research.

c. The incomplete nature of the fractures and their subtlety (each of which suggests force at a lesser end of the scale)

[278]Both the inconsistency in the answers given by Dr Rose, combined with the caution he appeared to be expressing (on occasion) have led me to conclude that I cannot safely rely on his evidence of the time in which the swelling to the hand likely developed post fracture.

[279]In this case, there are two additional factors relevant to the analysis: the palpation of X’s hand twice in the CP medical and the squeezing of her hand during the failed phlebotomy which occurred. The impact of those manipulations on the development of the swelling rather than their relevance as potential causes of fracture, was explored by Dr van der Leij in cross-examination of Dr Rose. He considered it unlikely because the image he looked at did not show that there were bone fragments and he found it difficult to see how there could have been further tissue damage through manipulation. This contradicted the evidence of Dr Johnson (below).

[280]Dr Rose’s evidence in which he expressed caution about the reliability of utilising swelling as a relevant tool to narrow timeframes is congruent with that of Dr Johnson, who was asked similar questions about its significance as to the radiological opinion and the fact that the initial radiology report had identified mild soft tissue swelling to the hand.

[281]Dr Johnson said in oral evidence:

“Not a huge amount of soft tissue swelling. A very inaccurate way of looking at fractures and dating them. When preparing a report for court, not hard way of adding that data to be more precise. Don’t reference it as particularly relevant. It depends on how you took the X-ray and where the fracture is as to how see soft tissue swelling [on the imaging]”

. He was reluctant to be drawn on its significance to timescales saying he “did not think it could alter timescales as depends on radiology – so you could fracture a bone now and then take an X-ray in a week’s time and create soft tissue swelling by manipulating the limb” (my emphasis). He concluded that “the presence or absence soft tissue swelling doesn’t allow you to narrow down issues more than he had done”. He then said that on the visible clinical signs he deferred to Dr Rose. “From X-ray depending on how take it and timing of X-ray presence or absence of swelling may go undetected and I can’t use soft tissue swelling reliably – it gave a false sense of timing”.

[282]I accept that Dr Johnson was giving evidence about radiologically identifiable soft tissue swelling rather than clinically observable swelling, in respect of which he deferred to Dr Rose. However, the congruence between the caution they both expressed in the use of swelling as a tool to time fractures (at least in part of Dr Rose’s evidence) reinforces my view that this is a sign and a symptom about which I need to be very cautious. I was struck by Dr Johnson’s suggestion that soft tissue injury could be created by manipulating the limb and then be visible radiologically. Dr Rose was relying on the imaging to support the opinion he provided about the impact of the manipulation during the medicals and the phlebotomy, but Dr Johnson was very clear that the manipulation could cause tissue damage. On this issue, I prefer the evidence of Dr Johnson which was appropriately consistent on the issues relating to swelling generally, by contrast with that of Dr Rose, who cited the absence of research and the difficulty interpreting swelling as a marker of timing but then proceeded to do precisely what he had cautioned against.

[283]There is no reliable body of medical opinion from published research upon which experts can draw to provide accurate time estimates of the development of swelling, whether in the post-fracture context or otherwise. There are too many variables.

[284]I infer from this that whilst Dr Rose considers it highly unlikely that the swelling would not develop until 24 hours after a fracture, another answer he gave (not days) suggests this is not a “hard deadline” making it an impossibility. His evidence on timing, as set out above, was inconsistent and expressed many caveats. He had also been concerned about the absence of an account which might assist in refining the timing.

[285]It may be significant that X was not identified as having sustained wrist fractures either by her mother, father or the intervener by the presence of swelling earlier in the relevant period January – February 2024.

[286]I have found that the mother was truthful in the evidence she gave about the development of this swelling, I have concluded it would be unsafe to rely upon one of the different time frames Dr Rose gave during his oral evidence, so as to narrow the window of time for the occurrence of the metacarpal fractures to a time after the mother’s arrival in the hospital or indeed to a time-frame after 2.30pm the day before.

[287]During his oral evidence Dr Rose provided likely timeframes for the swelling which his earlier evidence had indicated could not reliably be given. The context in which this evidence was given is that most questions and answers were predicated upon the basis that the swelling was a symptom which was caused by and flowed from the metacarpal fractures.

[288]CONCLUSIONS

[289]It is vital to consider the wide canvas of evidence available to the court, rather than to try to examine the case through the lens of one particular injury, namely the swelling to the left hand, and treat it as if it were the key to the entire case.

[290]This is a case featuring multiple fractures and bruising to a toddler who was developmentally delayed: only just pulling herself up to stand and hold onto furniture. By the time of her presentation to the hospital she was able to climb but was still wobbly, not walking independently and tending to falls.

[291]The expert evidence is clear that the fractures she sustained could have been caused accidentally, perhaps as a consequence of falls. Her father agrees that she did, because of her development and her health issues, tend to fall.

[292]Each of the fractures could have been caused by an accidental event although the event in question would be significant and would be identified as such by any witness. As the Guardian submits, there is information which has not been shared with the court by one or more of these witnesses. The motivation for lying about this is most probably to cover up a causative event and avoid culpability.

[293]A contra-indicator to an accidental cause of each of the injuries is the absence of a consistent history from any of the three adults caring for X.

[294]A contra-indicator to an accidental cause is the number and distribution of the injuries.

[295]In relation to the wrist fractures, the evidence is that they could have occurred on two occasions but the fact of their being bilateral increases the likelihood of non-accidental injury if they occurred at the same time. Bilateral fractures are unlikely to occur accidentally in a child of X’s age and development.

[296]Had the wrist fractures occurred on two occasions accidentally, there is an increased likelihood that a witness would know that something had happened to hurt X. None of her carers has identified an incident, which means that at least one of them is likely hiding information about what happened to cause these injuries.

[297]Whilst it is, as Mrs Bath submits, possible on the evidence, that X’s falls, described as occurring frequently in the context of her delayed development and unsteadiness, could have resulted in the wrist and hand fractures had she fallen awkwardly, none of the adults caring for her has reported an event, or events nor described X screaming in the way Dr Rose considers she would have done following a fracture, which would have alerted them that X was hurt.

[298]There is evidence that the intervener found X difficult to care for in part because of her clinginess and crying. It may be significant that she referred to her as “screech”, which she knew to be a derogatory description, as she agreed she would not have used this description to her parents. A screech being a high-pitched unpleasant sound which could signify pain.

[299]Any refinement of the radiological window to a more specific time requires consideration of clinical symptoms in the context of the factual evidence before the court.

[300]There is some evidence that X had a very disturbed night overnight on 7th February. She had been jumpy in her sleep and had been given Calpol by the intervener on 7th, but there is little other factual evidence pointing to this particular day.

[301]Turning to the leg fractures, the father delivered X to the intervener’s home on the morning of 21st February and did not return to London until after X had been hospitalised on the evening of 22nd. The LA has not discharged the burden of establishing that the father is a likely perpetrator of the hand and leg fractures and the bruising identified on X.

[302]In respect of the leg fractures, I am satisfied on the balance of probabilities that her parents were truthful that X arrived at the intervener’s home with no identifiable bruising and no identifiable difficulty weight bearing, accepting as I do their evidence on this issue but also the evidence of the manner in which X was usually changed and dressed for the day.

[303]The finding that X had no leg injury on arrival at the intervener’s is consistent with X’s behaviour at the intervener’s, including climbing on the Duplo and activity table, in respect of which there is a picture available.

[304]I accept the mother’s account of the events which followed with her collecting X from the intervener’s. X was dressed in a snowsuit in their buggy. It was likely this was to mask the signs of injury.

[305]X was grumpy and crying at the pool and when the family returned home. I accept the mother’s evidence about what happened after X was collected from the intervener’s on 21st February. X was grouchy and out of sorts. She was reluctant to be put down during the evening. This resulted in the mother carrying her in a sling. X did not want to go on the potty. The mother put the owlet sock upon her before putting them to sleep and X did not cry out in pain. However, X was crying on and off throughout the evening.

[306]The bruises were identified by the mother as she changed X for bed. This is supported by her text to the intervener which politely, but clearly anxiously, requests information about anything which had occurred during the day.

[307]The mother did not discern any injury to X’s leg before the morning of the 22nd although X’s behaviour after she was collected from the intervener’s and during the evening on 21st can probably be interpreted as indicating she was in pain and injured. The mother took X to the hospital when she noticed the difficulty X demonstrated weight-bearing.

[308]Given the number of injuries X had sustained, it is inherently improbable that X suffered accidental fractures on at least two, and potentially four occasions, without the person who was caring for her at the time being aware she had sustained an injury/been hurt and knowing she should seek medical attention.

[309]If X had suffered an accidental injury in the intervener’s care, she could well be motivated to cover up such an accident, for fear that it would impact upon her job.

[310]X’s parents took her for medical treatment when the hoover fell upon her. They have been pro-active in all aspects of X’s medical care during her life. In addition, Y was presented for treatment when she sustained an accidental fracture. X’s mother was able to provide a plausible account on admission to A&E on 22nd February for one of the bruises identified on X. I find it improbable that the parents or one of them would have omitted to take X for medical treatment had they realised, as they would have done were they present when she sustained injuries, that she was injured. It is also improbable that they would have continued to take her for health appointments.

[311]The evidence I have read and heard supports an analysis that the mother and father were credible witnesses. By contrast, the intervener was hostile to X and found her difficult to care for. The intervener has told lies, some of which are probably, as I find, directly relevant to her care of X, including the events of 21st February and thereafter. I have found that it is likely she colluded with PW with a view to exculpating herself.

[312]The presence of the swelling to the left hand, Dr Rose’s evidence on the development of that swelling and its significance as to the identification of a likely timeframe for the hand injuries, could be inconsistent with the analysis that those fractures occurred in the care of the intervener. However, I accept that part of Dr Rose’s evidence could support an analysis that the metacarpal fractures had not occurred until after the CP medical and phlebotomy on 22nd. I have considered this in some detail earlier but have concluded that I cannot rely on Dr Rose’s inconsistent and somewhat confusing evidence about the likely timeframe during which the swelling developed. Given Dr Johnson’s evidence about the impact of manipulation of a fractured limb upon the development of swelling, it is conceivable that the manipulations to X’s hand during the afternoon of 22nd had some impact on what was clinically visible. Even if I am wrong about this, I prefer the more consistent and cautious evidence of Dr Johnson on the unreliability of swelling as a marker for timing of fractures.

[313]It is inherently unlikely that a child who suffered no other suspicious injuries in the care of her parents either before the period January – February 2024 or after she was discharged from the hospital back into their care, would suffer multiple accidental injuries in the care of her parents without either seeking medical attention.

[314]It is inherently unlikely that a child who suffered no other suspicious injuries in the care of her parents either before the period January – February 2024 or after she was discharged from the hospital back into their care, would suffer multiple non accidental injuries perpetrated by more than one individual when one or two of those individuals is a parent, in whose care the child now resides without incident or concern.

[315]For the court to make a finding that the swelling to the hand and the metacarpal fractures necessarily occurred after X left the intervener’s care would mean that it did occur while she was in the care of the mother.

[316]As the mother has provided no account of any such accident, this would mean I would be finding that the mother has lied about an accident which occurred to cause this injury, which I consider to be unlikely.

[317]Furthermore, were the court to accept this analysis, as urged upon me by the intervener, and find that the mother is responsible for nonaccidental injuries to X, in the context of my other findings it would mean:- a) The mother noticed the bruising, some of which is likely to represent grip marks, on the evening of 21st February. She messaged the intervener to ask her whether she could help explain these injuries, presumably to lay a false trail, which could be a possible interpretation of the text. I observe the mother would have been unlikely to message the intervener were the bruising not then visible, it being inherently unlikely she would lay a trail in advance of multiple injuries she proposed to inflict, so I am confident and find the bruising was visible when the mother sent the message. b) Either at the same time or another time after X came into mother’s care, the mother inflicted the leg fractures on X and took her to the hospital lying about what had happened. This is possible but appears improbable on the evidence before me. Had the bruising and the leg fractures occurred at the same time, the mother’s failure (for reasons unknown) to include the leg fractures in her “cover up” message to the intervener is difficult to understand. She would have been with X when those fractures occurred and known X had been hurt. The “cover-up” message would not achieve its purpose and the mother would have known this. Had the mother inflicted this fracture in a separate incident, it would be the second incident of trauma suffered by X in mother’s care. c) The mother then presented X for treatment on 22nd and lied in providing a false trail. Given my findings about mother’s credibility, I find this unlikely. d) It would also mean that later on 22nd whilst in the hospital and in the knowledge that a safeguarding investigation was underway, the mother inflicted further fractures (the third event) upon X in the hospital and then drew it to the attention of the treating medical team. e) Finally, Y failed to notice/was not aware of any of the first two assaults upon her sister on the evening of 21st/morning of 22nd or she was aware and has not told anyone, including her father, about them.

[318]I consider the sequence of actions at paragraph 317 to be so inherently improbable that I can confidently discount them, as did Dr Q. These would be the actions of a parent who deliberately, for reasons unknown, harms and injures her own child, whom they love very much, and then presents her for treatment. Such an individual would be dishonest, highly manipulative and probably unwell. This is wholly inconsistent with my impression of the mother.

[319]For all of the reasons explained in this judgment, I have decided that the injuries sustained by X are likely non-accidental and that the person who is responsible for those injuries is the intervener.

[320]Some of the bruising, namely bruises 4, 5 and 6, were caused by gripping X’s arms/handling them roughly in an undisclosed incident. The other bruises (excluding bruise 1 and bruise 7) were caused by impact. The intervener is responsible for them. X’s chipped tooth was likely caused by an impact. X’s fractures were non accidental and they occurred when X was in the care of the intervener. Only she knows what happened to X and only she can provide an explanation for X’s injuries. She has not done so. It follows that I am satisfied for all of the reasons explained in this judgment that the LA has not established that either parent is a likely perpetrator of injuries to X.

[321]I have considered whether or not the evidence is sufficient to support a finding of non-accidental inflicted injury. The intervener’s manifest hostility to X could support this analysis. In addition, the absence of any truthful accidental explanations in relation to this number of injuries during a long safeguarding process could well be a powerful factor supporting an analysis that the injuries were non-accidental inflicted injuries. However, the intervener’s employment means she had every reason to lie to cover up accidents in respect of which she was culpable, either through negligent care or reckless handling. In addition, she has nothing to gain in this hearing from being frank about such accidents. She is not seeking X’s return to her care and has no further interest in her. For these reasons, I do not find the evidence sufficient to justify a finding of non-accidental inflicted injury. Rather, as submitted, I find them non-accidental in the sense that they occurred in the intervener’s care as a result of there being an element of wrong in the care provided.

[322]I accept the submission of Miss Brown KC and Miss Stone KC that there was no failure by either parent to seek medical attention. They were unaware of the historic fractures to X’s wrists, nor should they have been. It was, in the circumstances, reasonable of the mother to seek an explanation from the intervener on the evening of 21st February for the bruising and take X to A&E the following morning. With the benefit of hindsight, she might have identified the problem with the leg earlier, but she did not do so. There was no reason for the parents to think that the intervener was struggling to care for X from the misleading messages she sent to them, in which she painted a glowing picture of X’s experience in her care and professed insincere affection for X. Nor is there any reason why the parents should have known there was any likelihood that the intervener posed any risk of harm to X, either through any deliberate or reckless act.

[323]That is my judgment.

Order

Threshold Conditions)

[1994] 2 FLR 577

). The Local Authority made its application on 4 March 2024, while X was still in hospital.