A Local Authority v C [2024] EWFC 476 (B)

IN THE WEST LONDON FAMILY COURT

Case No ZW23C50452

[2024] EWFC 476 (B)

Gloucester House

4 Dukes Green Avenue

Feltham

TW14 0LR

Date Thursday, 28 th November 2024

Before

HER HONOUR JUDGE CORBETT

B E T W E E N:

A LOCAL AUTHORITY

MR S COYLE and MR G NOBLE appeared on behalf of the Applicant Local Authority

MS A GRIEF KC and DR M PERSAUD appeared on behalf of the Respondent Mother

MS G FARRINGTON KC and MS E JEREMIAH appeared on behalf of the Respondent Father

MR O MILLINGTON and MS BHAMBRA (solicitor) appeared on behalf of the Children through their Guardian

MR N EKANEY KC and MS CHOUDHURY appeared on behalf of the Intervenor

JUDGMENT

(Approved)

This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

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

Between

A Local AuthorityClaimant

Respondent MotherDefendant

Respondent FatherDefendant

HHJ CORBETT:

[1]The Court is concerned with two children: A, and her younger brother, B. These care proceedings were brought by the Local Authority , represented at this fact-finding hearing by Mr Coyle and Mr Noble. The children’s mother is represented at this hearing by Ms Grief KC and Dr Persaud. The children’s father, is represented by Ms Farrington KC and Ms Jeremiah. The children themselves have been represented at this fact-finding hearing by Mr Millington and Ms Bhambra. The intervenor represented by Mr Ekaney KC and Ms Choudhury.

[2]I will refer to the mother and the father using those titles, “Mother” and “Father”. At times, during this judgment, I may refer to sections of the bundle and submissions without reading those sections out in full. Subsequently, when I am asked to approve my transcript, I will insert those matters at that stage.

Introduction

[3]This is the judgment of the Court following the hearing of a fact-finding determination within proceedings brought by the Local Authority in respect of care orders in relation to these two children. B sustained injuries which were discovered at a Hospital on 31 October 2023. The purpose of this hearing has been to consider the findings sought by the Local Authority in their final draft dated 17 October, following submissions. This judgment has been delayed since I received submissions on 18 October, for which I apologise. Consideration of the evidence and submissions and preparation of this judgment has necessitated far more time than I had anticipated.

[4]This judgment is not a detailed account of all of the evidence and submissions. It is my analysis of that part of the evidence and submissions which I found relevant and of assistance and it is an explanation of which evidence I found important when coming to my conclusions. I have considered the evidence and submissions in the light of the law which is applicable in this case. Medical evidence is one part of the evidence. The roles of the medical expert and judge are distinct, and I, alone in this court, have the duty and responsibility to be the fact-finder assisted as I have been by the lay evidence and the medical evidence. I am grateful to all counsel for the way this case has been presented before me and for their submissions.

Background

[5]This is a single-issue case. Prior to November 2023, this family had not come to the attention of Social Services or the police. A was attending school, presenting as well-cared for, when professionals first became involved following her brother’s injuries. B had been attending universal services at his GP surgery. His mother is described as attending appointments and taking him there as needed.

[6]Both parents are from another country and were born and lived in that country prior to November 2022, when the father came to the UK on a Skilled Worker visa. The mother and both children came to the UK in early May of 2023 as his dependents. The parents are both well-educated. When in their home country, the mother had been closely involved with the care of her parents-in-law over a significant period of time including whilst pregnant with her daughter. She had the assistance of a housekeeper for one hour a day at that point. When the father came to the UK in November 2022, she was looking after the two children; her daughter, aged five, and small son, three weeks old, born after a caesarean section. She stayed in the home for 40 days after his birth in accordance with her culture, and she had paid help for 12 hours a day which assisted her, at times, with her own personal care and also with household and family chores. She also had some support from her own family in that country.

[7]She, the mother, was responsible for packing and organising the move to the UK for around five months after the father had left. The father met the Intervenor when working in London. When the mother arrived in the UK on 1 May, the Intervenor was already sharing the father’s accommodation. However, on 5 June, he went to his home country to his own brother’s wedding, returning to the UK on 22 June to move in with the family in their new accommodation, a two-bedroom flat where they had lived for about two weeks. He lived there with them until 4 April 2024, when he left to return to his home country, where he now lives.

[8]In June 2023, A began Year 1 at school. In October 2023, the family home can be described as follows: having two bedrooms, a living room and kitchen, that being an open-plan room, a communal bathroom, and the parents’ own bedroom had an en-suite. I have seen the police video footage of this small property. The Intervenor’s room is between the living room and the parents’ bedroom; that is, one of his bedroom walls adjoins the living room and one wall adjoins the parents’ bedroom. The parents shared their accommodation, according to the mother, in evidence, because they had financial constraints and bills to pay.

[9]Prior to 31 October 2023, the mother was going through the process of applying for a job at McDonald’s, close to the family home, to boost her confidence and assist with finances. She began working there, in fact, after the children were removed. From June to October of 2023, the father and the Intervenor both worked full-time, sometimes from home, sometimes from their office and sometimes the father worked from the local library. The mother was mostly responsible for homemaking and chores and the children’s activities although the father and the Intervenor clearly played a part.

[10]On 30 October 2023, an event took place whereby B fell when crawling over and around his mother on the floor of her bedroom. The Intervenor witnessed this. There has been extensive evidence before me about whether this event could have caused some or all of the injuries found on him. On 31 October 2023, B was taken by the mother to the GP surgery, where he had his 12-month vaccinations at just after 4pm. As a result of the evidence, there is a factual dispute about some of the events at this appointment which I deal with later when discussing the evidence of Nurse G. The Intervenor made a 111 call at around 5.30pm that day. He was then at the family home with the mother and both children. The mother rang her own husband, the father, sounding scared and telling him that B had a swelling on his head. The father was still at work where he had been all day. He then made a 999 call seeking assistance from the services.

[11]Whilst he was on the line on the 999 call, at the call handler’s request, the mother joined them and gave some additional information, as she was there and had been at the home with B. She told the call handler that their son showed that he had swelling above his ear. When the 111 call was made by the Intervenor, the Intervenor refers to seeing swelling above the ear and saying that B was crying a lot. The mother and the Intervenor took the advice that they were given to go to an Urgent Care Centre.

[12]At 18.19, B was seen at a Hospital where, on examination, what was noted was “Swelling ++ on right side of face”. Advice was given at that stage for him to go to another Hospital using their own vehicle, not by ambulance, and they arrived at there just after 7.15pm that night, both the mother and father, at this stage, being with B, the father having arrived at the first Hospital just as the mother and the Intervenor were leaving.

[13]What was seen at the second Hospital was that B had an overt swelling to the side of his face. It was found that he had a bleed in his brain as well as a skull fracture and a large bruise on the right side of his head. A child protection medical was held at 2am on 1 November which concluded that the injuries were likely to be what is referred to by them as “non-accidental”. Police protection orders were taken and care proceedings issued. Both parents were arrested and interviewed under caution. They gave “no comment” interviews, each preparing a very similar prepared statement denying causing any injuries and saying that the Intervenor lived in their home and had “access to the children”. He was also interviewed, where he answered police questions.

[14]I was told during the hearing that the police have not made any charging decision yet. They have told the Local Authority that they are awaiting the outcome of this hearing. For the purpose of this judgment, I need not go into the detail of the placements that the children have had over the last year but there has been a combination at different times of foster care and of family friends.

The Parties’ Positions

[15]The Local Authority, by the conclusion of the evidence and prior to submissions, set out in their document dated 17 October the findings they sought. In this amended schedule, they were, by then, not seeking findings in respect of the suspected left occipital skull fracture nor the mark on the right eyelid. In summary, the Local Authority seeks findings that the rest of the injuries noted were inflicted and, if on the afternoon of 31 October, then they were caused by the mother. Alternatively, if during the 24-hour period prior to the evening of 31 October, then they were caused by the mother or the father, the Local Authority at that stage, indicating that it no longer sought findings against the Intervenor.

[16]As to the Guardian’s position, at the conclusion of the evidence, the Guardian took a different position than the Local Authority. Her position, in summary, was that the Court can find, on a balance of probabilities, that B suffered a right parietal skull fracture, scalp swelling, some subdural bleeding and some subarachnoid bleeding as a result of a witnessed fall from his mother’s lap in the evening of 30 October. He suffered a soft tissue injury to his neck and more extensive brain injuries as a result of a shaking incident in the latter part of 31 October, close in time to B’s attendance at hospital. The Court can identify the mother as the perpetrator of the injuries resulting from the shaking incident, and the mother knew or must have realised her actions were harmful to B. Those are the findings the Guardian sought.

[17]Further, as the Guardian sets out in submissions, the Guardian accepts it is likely that there was an incident in the evening of 30 October in which B climbed onto his mother’s lap and fell, hitting the right side of his face on the floor. This was witnessed by the Intervenor who is clear that he saw the impact on the right side of the head. The Guardian considered it highly unlikely that this incident would be fabricated by the mother and the Intervenor together in circumstances in which the mother has subsequently accused him of being the perpetrator of the injuries, and he has made no counter-allegation. The Guardian’s submission is that B suffered a soft tissue injury to his neck and more extensive brain injuries as a result of a shaking injury in the latter part of 31 October, close in time to B’s attendance at hospital. The Guardian says the Court can identify the mother as the perpetrator of that shaking incident. She emphasises that for the avoidance of doubt, she does not consider that the mother had any intention to harm her son. Indeed, her intention might be quite the opposite.

[18]The mother denies inflicting any injury to B nor knowing of anyone else who had. She asserts that there was an accidental fall on 30 October when all of the injuries must have occurred. This fall was witnessed by the Intervenor. The father takes the same position as the mother, adding that the child had vaccinations given on 31 October that may have added to the injuries; a point which the mother also pressed through her counsel.

[19]The father was not present in the home at the time of the witnessed fall on 30 October, nor was he at the family home after around 8.30am on 31 October when he left to take A to school and to go to work. Neither parent asserts the other inflicted any injury. Neither asserts a positive case against the Intervenor. The Intervenor denies hurting Bat all. He has no knowledge of the parents doing so. He describes them in a very positive manner. The Local Authority decided at the conclusion of the evidence, not to seek any findings against him, correctly, may I say, in light of the evidence, but his evidence has been of great importance to my deliberations, and I deal with this later.

Documents and Witnesses

[20]I have considered the voluminous documentation contained within the trial bundles and additional documents which were produced during the course of the hearing. In addition, I heard oral evidence from, in this

The Law

[21]This is set out comprehensively in the opening note from the Local Authority at paragraphs 31 to 40, which I now insert into my judgment.31. This summary of the law is prepared to assist the court with the determination of the fact finding exercise it is undertaking. It is not an exhaustive list of the principles which the Court will apply but simply highlights key principles of law. The Court will be alive to the need to form its own consideration of the legal principles and the need to identify within the Court’s judgment the relevant principles when reaching its decision: Re A

[2022] EWCA Civ 1248

32. The Court will be very familiar with the judgment of the Supreme Court in Re B (a child)

[2013] UKSC 33

and the approach of the Court to findings of threshold. It is submitted that the injuries to B noted by medical professionals constitute significant harm, the issue in this case is causation, whether that harm is attributable to the care given to the child not being what it would be reasonable to expect, and what that means in terms of a likelihood of harm for B In Re B Lord Wilson considered the issue of ‘likely harm’ at paragraph 26, quoting the White Paper which preceded the 1989 Act, namely The Law on Child Care and Family Services, Cm 62, January 1987 where he said:

“…the government stated, at para 60: It is intended that “likely harm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does occur.”

It follows that when, in Re C and B (Care

[22]All three of the independent expert medical witnesses who gave evidence before me have tried to assist with the complex decisions that I have had to make. I am completely satisfied that they were all trying their best to answer various questions put in cross-examination both by way of exploratory matters and challenge.

Left Occipital Skull “Fracture”

[23]The Local Authority is not seeking findings in relation to this; a position which the Guardian supports. In his written report, Dr Hogarth was quite confident that the forked pattern in the occipital bone is a fracture. In oral evidence, Dr Hogarth accepted that he did not have the same confidence as when he identified the right parietal fracture. In his report, Mr Jayamohan said about this:

“There is a branch on the left side that could be a branching accessory suture or a fracture”

. In oral evidence, Mr Jayamohan explained his reasons for his view that the left-side branch could be either. As to whether Mr Jayamohan deferred to or disagreed with Dr Hogarth, Mr Jayamohan fairly said:

“I am fairly open when I disagree with other radiologists. I stick to my view and allow the Court to weigh it up rather than disagree.”

Clearly, a difference of professional opinion.

[24]My observation about this is that in his oral evidence, Dr Hogarth was much more circumspect than in his written evidence about what was the forking in the left occipital region. Mr Jayamohan could not say, on balance, whether it was a suture or a fracture, and he explained in detail why. I agree with the Local Authority decision not to seek a finding about the left occipital region. Why am I explaining this? Why is this relevant? For two main reasons. In the experts’ meeting, of which I have read the transcript, there was a great deal of discussion about all of the injuries as they appeared at that stage, including what Dr Hogarth had said to be a left skull fracture. There are discussions about, in other words, therefore, two skull fractures; one on the left and one on the right. It is important when I re-read, as I have done, the experts’ meeting transcript that I bear in mind that, in fact, it is not sought that there is a finding about the left.

[25]Secondly, in relation to “relevance”, Dr Hogarth is a renowned expert in the field of neuroradiology, a measured expert who is always welcome in this Family Court. He was clear in his written opinion that he is quite confident that the forked pattern was a fracture. He said, “I’m familiar with the literature, and no ‘forked pattern’ has ever been described in relation to an accessory suture.” He was much less firm about this in his oral evidence, and the combination of that and Mr Jayamohan’s evidence, which I have just referred to, has led the Local Authority not to seek a finding about the left forked pattern. Accordingly, I include this because it has been a reminder of the need for me to consider carefully expert evidence in the whole and to consider that renowned experts such as Dr Hogarth and Mr Jayamohan can professionally disagree. Had Dr Hogarth not given oral evidence and we had only had his report, things may have been very different. That is, perhaps, an argument for another venue.

Redness Behind The Right Ear

[26]Dr Cleghorn, the paediatrician, says that the redness that she had read about is non-specific, and it was very difficult for her to say what that was due to. Given that, I am not satisfied that I can conclude that this is an inflicted injury. As to what is referred to as “a mark on the right eyelid”, the Local Authority has decided not to seek a finding in relation to this being an inflicted injury. In her report, Dr Cleghorn had said, “This…” mark on the eyelid, “…is reported to have changed colour during his stay on the ward which would support it being a bruised caused by blunt force trauma.” In oral evidence, she said she was reliant on the treating clinicians, having described it as “a bruise.”

[27]She appeared to me slightly unclear in oral evidence about how she had come to the conclusion in her report about this; importantly, how there could be blunt force trauma to this one-year-old’s eyelid but to no surrounding area and I do not pretend to have really understood how she came to that conclusion in her report, saying “This is blunt force trauma.” In any event, a finding is not sought but I include it here rather like I included observations about Dr Hogarth as a reminder about the importance of looking at all of the evidence as a whole.

Other Injuries in relation to which the Local Authority Are Seeking Findings

[28]Counsel for the Guardian sets out in their submissions at paragraphs 8 to 25 what I deem an excellent summary of the evidence as to mechanism, timing and presentation, which I insert into my judgment. “Mechanism Dr Hogarth 8. Dr Hogarth in his report dated 25.03.24 [p.1102] provides the following summary in respect of mechanism of injury:a. “A number of incidents have been disclosed; none of these incidents are sufficient to explain the array of injuries demonstrated on the CT and MR scans, in my opinion. Short falls can occasionally result in skull fractures and intracranial injury, including subdural and subarachnoid bleeding; however, the finding of right parietal and left occipital skull fractures cannot realistically be explained by a short- fall. The constellation of intracranial bleeding, brain parenchymal injuries to the left frontal lobe and the axonal injuries in the left frontal white matter are associated with major head injuries, such as falls from heights or motor vehicle accidents and would not be expected to result from minor domestic accidents.

b. Based on the current information, the injuries depicted on the CT and MR scans are in keeping with major traumatic head injuries. There is also evidence of soft tissue injury in the upper neck. The disclosed accidental mechanisms would not be sufficient to explain these injuries. Overall, the neuroimaging evidence points strongly to an undisclosed episode of inflicted head injury. The injuries are best explained by a combination of impact and shaking type mechanisms”. 9. In the experts’ meeting, Dr Hogarth opines as follows [p.1658]: a. “The only way I can explain skull fractures and the intracranial bleeding and the parenchymal bleeding is going to be impact injury +/- shaking mechanisms, which is what I put in my executive summary. So, just turning to the question of how could these skull fractures have occurred, the first skull fracture to look at will... we can look at the fracture on the left side of the head at the back, that's in the occipital bone. So that would require an impact somewhere around here [indicates behind left ear] behind the ear, in order to cause that forked fracture that I've described on the left side in the occipital bone. Then we have another fracture, which is distant from that left-sided occipital fracture. It's over here, [indicates front left forehead at hairline] further towards the front on the right side of the head, which is where the coronal suture goes, which is roughly where my finger is [moves finger down towards eyebrow] and that fracture is moving somewhere along the head where I'm pointing out. So I can't see that a single impact could cause those two fractures, because they are distant from each other. So I think there has to be more than one impact injury to the head to produce those fractures” b. In respect of the neck injury:

“So what we're looking at there is backward forward type of motion [moves body back and forth in rocking motion] where the injury is caused by the soft tissues being stretched as the neck and the head move forward. So, again, for similar reasons to what Jay outlined, I think that this has most likely been caused by a shaking mechanism”. c. “So we have two impacts and a shaking mechanism which, from my perspective, most neatly explains all of the injuries that I've seen on the scans in their totality” d. P.1662: “Now, it is possible, I think, to have bilateral or complex and multiple fractures from a single impact at the back of the head because you could have... and there are in fact documented examples of this, where both parietal bones have fractures from an occipital impact or an impact at the top of the head. The issue that I would struggle with in this case is how to tie together in a single impact the occipital fracture on one side with the linear parietal fracture away from it on the other side from a single impact. I cannot see, mechanically, how that could happen. Now, I would say that it could be that this is a very rare injury pattern which has never been described from a witnessed event. That would be possible. It's never been reported or documented. e. So, I suppose we can never say something is an impossibility because there could always be the first case that's reported in the world literature that hasn't appeared yet. But in terms of if the advocates want to know what I think is likely or less likely, I think it's very difficult and very unlikely that the skull fracture pattern here can be explained by a single impact. I think it's far more likely, and I don't think it's a fine balance, I think it's far, far more likely that this is more than one impact.” 10. In oral evidence Dr Hogarth stated the following about mechanism of injury: a. “The deeper injury to the white matter on slides 20 and 21 is the type of brain injury we can see in acceleration and deceleration type mechanism. All of these areas of injury to brain substance can be seen in that kind of a mechanism”. b. He accepted the limitations of the scans that radiologists see, in that not all falls by children result in attendance at hospital and/or with children undergoing a scan in any event. c. He accepted there was no evidence of hypoxic / ischaemic brain injury or of retinal haemorrhaging in B’s case. He said that whilst it was not uncommon for there to be hypoxic / ischaemic brain injury and/or retinal haemorrhaging in these sorts of injuries, he did not consider he could draw much from the absence of the same. d. Dr Hogarth remained of the view that, if the court accepts that the left occipital lines are fracture lines, by far the easier explanation is separate impacts to the skull. e. He said that the response of the skull can be unpredictable and explained further, “The analogy I use, if one took hard boiled eggs and dropped them sequentially on to a hard surface, there would be different pattern of cracking. There is a random aspect to cracking. Not a deterministic response. The same single event may produce an array of different outcomes. When we look at this question of single or more than one impact, I could see how a fracture in parietal bones can be caused by a single impact. But it is much more difficult for me to see how a fracture on the back on the left can be caused by a blow to that area and cause a fracture to the front, I can’t see how that would occur mechanically, intuitively”

. Mr Jayamohan 11. In his report dated 25.02.24 Mr Jayamohan states the following about mechanism [p.1086-1087]: a. “The significant scalp swelling seen on admission to hospital was noted to increase in size visibly over the hospital stay initially. This is in keeping with an acute onset of swelling of the scalp and bleeding underneath the scalp in the subgaleal space. The cause of this will be impact/s to the head.” b. The widespread nature of the injury on the right draws into focus the possibility that there had been several impacts to the head, but I would entertain one very significant impact causing this widespread findings with ‘spreading out’ from the site. c. Looking at the axial cuts, there are subgaleal collections in communication with a swollen scalp seen in the left frontal and right parietal regions, and I would therefore be of the opinion that these are likely to have been caused by separate contact events. d. The right sided coronal suture diastasis fracture would have been caused by an impact injury. e. The subdural bleeding, as seen, can be caused by significant impact injury, more likely to the right side of the head or maybe caused by a non-impact or shaking injury given the fact that there is bilateral findings seen. Overall impacts could be enough to explain the findings in this case. f. The brain injuries are located in the right side, in a pattern while not impossible from a shaking injury, would be in my opinion, more likely to be seen after an impact injury. Both are possibilities. There is no evidence of any connection to the midline posterior birthmark, nor can I find any anomalous blood vessels or other finding that may explain these injuries. There is no evidence of infection, such as abscesses, subdural empyema or changes consistent with meningitis that I can see on these scans, all of which would appear to confirm the traumatic nature of these injuries. For the avoidance of doubt, the brain injuries themselves could not be explained by a very mild bleeding disorder or clotting abnormality, even if the small change seen in the basic clotting profile is held by the Court to be contributory to the scalp and subdural bleeding seen. I would not myself support this being a realistic explanation for the findings.” g. “If there are shaking mechanisms involved here (and while they are not necessary or indeed able to explain all of the injuries seen in this case, they are certainly a potential mechanism to explain some), this would be involving mechanisms outside of normal handling. The impact injury is explainable by impact but no history is provided of any events that timing and mechanism wise would explain these findings.” [p.1088] h. In respect of the parents’ explanations put forward:

“I do not believe there is an explanation for these injuries provided within them.” [p.1091] 12. In the experts’ meeting, Mr Jayamohan opines [p.1657]: a. Injuries A to G (which are injuries i to vii on LA’s threshold document) “would be explainable by an impact/impacts to the head”. b. “I think the much more likely is that the neck ligament injury is caused by a shaking injury, rather than an impact”. c. “The other thing to add is the subdural bleeding, potentially the subarachnoid and potentially the parenchymal injuries and white matter could be explainable by a significant shaking injury as well, but such would not explain the skull fracture. So this definitely has to be an impact, and, working on the nuchal ligament findings in the neck, I think a shaking injury as well”. d. The alleged incident of falling from the mother’s lap [p.1660-1661]: “So I think it's something to consider for the skull fracture. However, I think it is unlikely, and probably veering towards very unlikely to explain the intracranial injuries in this case. If he fell onto the right side of his head, it would potentially cause some subdural bleeding and some subarachnoid bleeding, but we also note that there was some bleeding contralateral, high up on the top, on the left side. I think it becomes unlikely but not impossible”. e. “The thing that I don't really associate is the time when he fell and how he was in between. So the bit that doesn't fit for me is how unwell he was on the morning of the 31st… Yes, on the morning of the 31st with that altered conscious level. I would have a significant level of difficulty, from a primary brain injury, explaining an interval period of normality followed by a substantial decrease in conscious level on the 31st. So there's where I can't really understand that.” 13. In oral evidence Mr Jayamohan stated the following about mechanism of injury: a. “It would be very unlikely that a fall off the sofa would cause an occipital fracture in a child of this age”. b. “The 30 October fall remains, if my guesstimate of height is correct, remains a real potential explanation for the skull fracture. I think it is an unlikely explanation for the brain injuries because of how he was in presentation”. c. “I would probably say… could he have had an injury on 30th and sudden deterioration on 31st? I won’t say impossible but really, really unlikely”. d. As to whether the vaccinations could have caused the brain injuries: “The short answer is that there is no evidence that these sorts of injuries can be linked with vaccinations. I would say it is as close to impossible as I am willing to say”. e. “The brain is not yet explainable by any of the events described and is recent”. f. The neck injury is more likely to be caused by a shaking mechanism than by impact. Although a rotational fall flexing forward is a possible explanation, that is much less likely if the left occipital line is an accessory suture rather than a fracture. Dr Cleghorn 14. In her report dated 22.02.24, Dr Cleghorn opines as follows about mechanism: a. Bruise to right eyelid i. “It would be highly unusual for bruising of the eyelid to occur during normal activity unless there was some fall onto a projecting object” [p.1051 §5.73]. ii. “Mother has described a number of events. None of these are described as involving a fall onto a projecting object” [p.1052 §5.7.4] iii. “In the absence of any other appropriate accidental explanation it is more likely that the bruise to the right eyelid was inflicted by forceful contact with an object. It is not possible to say whether this occurred at the same time as the other injuries or not but it may have done” [p.1052 §5.7.5] b. Skull fractures i. “The explanations which have been provided are of various trips and falls while B was being normally active and exploring his mobility. As noted above, I am not able to comment on the timing of the skull fracture other than making some clinical observations. From these I would exclude the events in August, September and the 17th October as being causes of the fracture” [p.1057 §6.5.4] ii. “Mother’s description of B bumping his head on the oven door is a common observation of childhood events. I would not expect this to have caused a fracture to the skull, and particularly the side of the skull” [p.1058 §6.5.8] iii. “The remaining explanation is of a fall while climbing into and attempting to stand on mother’s lap. This would be described as a simple fall and it is recognised that simple falls from the height of a toddler can cause a skull fracture. However, I note that B was not a tall infant (his height at the Initial Health Assessment was 75cm, between the 9th and 25th centiles) which would suggest this is not a significant distance to fall, and in addition there was a significant fracture which extended to the coronal suture which suggests there was a significant force involved. Therefore I think this is less likely to be the cause of the skull fracture but cannot exclude it as a possibility. However, if it is responsible for the skull fracture I think it would be unlikely to also be the cause of the intracranial haemorrhages” [p.1058 §6.5.9]. c. Brain injury i. “From the information I have seen… it is unlikely that B has a medical condition which is responsible for the brain insults” [p.1061 §7.2.5]. ii. “I have already discussed, in the section on fractures, that the events recalled by parents are unlikely to be the cause of the skull fractures. These events would not be expected to cause intracranial haemorrhages” [p.1064 §7.5.5]. iii. “In the absence of an appropriate accidental explanation the intracranial haemorrhages are more likely to be inflicted for example from a shaking injury” [p.1064 §7.5.6]. 15. In the experts’ meeting, Dr Cleghorn states: a. P.1659: “From my point of view, I'm in agreement with what's already been said. With respect to the last two, the mark on the right eyelid is reported to look like a bruise when first seen. It's also reported to change in its appearance, again, which would support it being a bruise, and that's likely to have occurred as a result of some form of impact against the eyelid. ” b. P.1662: regarding any clotting abnormality; “However, even if this little boy has got a clotting abnormality which might cause that increased risk of bleeding from a traumatic event, that still wouldn't explain the other intracranial findings, the sort of brain injury, and the injury of the neck tissues as well that Kieran's already talked through. So it may be relevant when we're talking about the bleeding, I don't think it's relevant for the full picture that we are presented with, with this child” 16. In her oral evidence Dr Cleghorn said about mechanism of injury: a. The 10ml/kg fluid bolus administered on 31.10.23 would have had no impact on the level of scalp swelling or on the fluid gathering in nucal region. b. The vaccinations administered on 31.10.23 would only cause localised swelling but not to the scalp and would not have been responsible for any of the neuro-radiological findings. c. She had never seen tracking of blood from a head injury to an eyelid, although had seen it from an eyelid to a cheek. Dr Cleghorn acknowledged that the treating consultant paediatrician Dr Anne Davis in the strategy meeting on 1.11.23 is noted as saying, “Eyelid is bruised but this could be tracking from the outside the skull bleed” [p.49]. d. Dr Cleghorn agreed that there is a differential diagnosis for why the eye discoloured, namely related to head injury rather than specific blunt force trauma. She accepted that it was a ‘perfectly reasonable conclusion to come to’ that the right eyelid mark was more likely due to the head injury rather than separate blunt force trauma. Timing Dr Hogarth 17. In his report dated 25.03.24 Dr Hogarth states the following about timing [p.1116-1117]: a. “Acute skull fractures are associated with soft tissue swelling at CT examination in a majority of cases; Kleinman et al 1992 showed scalp swelling on the CT scans in all 35 cases studied with acute skull fracture. Scalp swelling will be detectable on neuroimaging immediately after a head injury but may or may not be apparent clinically. After 2 weeks, scalp swellings would generally be expected to resolve. It should be understood that it is not possible to age skull fractures using CT or skull radiographs. b. The large amount of scalp swelling with subgaleal haematoma indicates a recent impact injury. There is no scalp swelling over the left occipital fracture. This is either because it is an older injury or it is because the fracture occurred without producing scalp swelling. c. The fresh subarachnoid and subdural haemorrhage is unlikely to be more than 10 days or so old at the time of the CT head scan. The MR scan is not helpful in narrowing the time frame any further than. The skull fractures cannot be dated radiologically. d. There are no features to suggest a chronic subdural bleed. The subdural fluid collection over the left frontal lobe is likely to be a traumatic subdural effusion. There are no features to suggest more than one episode of bleeding but this cannot be excluded as a possibility without having scans from previous time-points. The skull fractures may have occurred during the same injurious episode or may have occurred at more widely separated points in time.” 18. In the experts’ meeting Dr Hogarth states [p.1658]: “Now, the comment I made about timing, just briefly whilst I'm on the subject of those two fractures, is they could occur as part of the same injurious event, in other words some kind of incident where there are multiple impact injuries to the head within a short time frame. There's no possibility, on the basis of the neuroimaging, to exclude a scenario where they might have occurred at more distant time points. I can't tell, because we can't know the age of fractures from looking at them”

. Mr Jayamohan 19. In his report dated 25.02.24 Mr Jayamohan states about timing: [p.1087]: a. “The timing of these would be fresh blood of less than 10 days old at the time of imaging. However, the most significant scalp swelling, which was noted to increase after admission to hospital, would appear to have been noted from the evening after the baby awoke from sleep. b. Earlier on in the day there is communication between the parents and also showing of a cheek change (not definitively confirmed which side in the nurse’s statement) when the child was taken for immunisations. If the ear discomfort described by mother earlier on in the day, and/or the cheek changes are on the right hand side, this would support that a trauma has occurred earlier on during the 31st. I cannot explain why it would suddenly get worse in the evening. Certainly the hospital findings with altered conscious level, pupil sluggishness and the imaging findings would not be something that would likely be overall explained by an early impact with a ‘slow burn’ over 12 or so hours. c. Another possibility is that there have been two different events. The first of them would have likely been more minor, earlier on in the day. The second event would then likely have occurred in the evening, and would be more severe. d. The third possibility is that earlier symptoms with the face are completely unrelated and that this is all explainable by one single acute event or constellation of events occurring on the evening of the 31st. Overall, this seems unlikely as an explanation given the nurse had confirmed the appearance of the cheek.” 20. In the experts’ meeting, Mr Jayamohan states [p.1657]: a. “So I've said that those are all acute. So all of those brain injuries, I think it is unrealistic to start to separate those out in time. It is possible from the point of view of radiological timing but, given where they are, I think it would be much more likely that they're all explainable by a single injury, and reviewing the one thing that's not on here... well, we've talked about the injury to the brain tissue, but we need to think about the substantial altered consciousness that the baby showed when admitted to hospital, and the low Glasgow Coma score on admission, which then gradually improved again. And I think that if the court finds that that is an acute change on that morning, which is what I seem to read from all the witness statements, that the injury to cause the brain injury at least has happened that morning after the baby was well, and I think it's reasonable for the court to consider the fractures happening at the same time, but not absolute.” 21. In oral evidence Mr Jayamohan said in respect of timing: a. In respect of the brain injury, the timing is very close to the admission to hospital. It was during the evening of 31.10.23 that he became abnormal. b. References to ‘morning’ at lines 29 and 30 p.1657 of the expert’s meeting should in fact read ‘evening’. Dr Cleghorn 22. In her report dated 22.02.24, Dr Cleghorn writes: a. Bruise to right eyelid:

“Also, while it is not possible to date the bruise on B’s eyelid, and while clinically bruising can be present for a couple of weeks, it would not be expected that a bruise occurred during any of the event described by the mother in August/September and on the 17th October and not be visible until the day Bwas seen in hospital” [p.1052 §5.7.4] b. Fractures: Dr Cleghorn defers to radiologists. “From a clinical perspective swelling, if it occurs, will occur within the first 24 hours of fracture and may be quickly obvious or may take some time to develop to a stage where it becomes obvious to a parent or carer. However, from clinical experience most swelling will be noticed in the first day, and if developing quickly within the first few hours of an injury.” [p.1055 §6.3.2] c. “I would not expect that an injury in August, September or on the 17th October would not present with any swelling until the 31st October” [p.1056 §6.3.3] d. “No swelling was noted until the late afternoon of the 31st October and so it is possible that the skull fracture occurred over the preceding 24 hours” [p.1056 §6.3.4] e. Intracranial haemorrhages: Dr Cleghorn defers to neuro-radiologists. “As a paediatrician, clinical experience is that there may not be many clinical signs or symptoms from intracranial haemorrhages but if there are these will usually be noticed within the first few hours of the event causing the haemorrhages” [p.1062 §7.3.2]. f. “Parents describe Bas being his normal self on the morning of the 31st October, by 9am, mother was concerned that he seemed less like himself, he was unsettled later and then became distressed” [p.1062 §7.3.3]. g. “That clinical progression could be the result of the fracture, the intracranial injuries, or both (if both occurred at the same event) and likely to represent a recent event although it is not possible to be more specific than that” [p.1062 §7.3.4]. Presentation Dr Cleghorn 23. In her report dated 22.02.24, Dr Cleghorn writes: a. “Bruises are painful when they occur and I would expect Bto have been distressed. However, infants will often quickly settle if given a feed or a cuddle and afterwards bruises may only cause distress if they are tender when touched” [p.1052 §5.8.1]. b. “Fractures are painful when they occur and I would expect an infant to be distressed and that this would be recognised at the time as a significant event although a witness may not realise that the event had caused a fracture. Children can be distracted from pain with a cuddle, or a feed and may quickly settle down and paracetamol is an effective painkiller and if given could also reduce the distress” [p.1058 §6.6.1]. c. “Neurological injuries can present in a wide variety of ways from mild irritability and being off feeds to significant collapse, unconsciousness and death. Parents and carers might identify a change of behaviour in an infant who was previously placid or settled and then becomes irritable but if the infant is irritable for other reasons or generally an unsettled baby then a behavioural change might not be noticed” [p.1064 §7.6.1]. d. “After the initial event there may be a deterioration in neurological status but not always. Infants can remain conscious and not develop any significant neurological signs or they may deteriorate to a variable degree. Some may become unconscious, some may develop seizures or be irritable but otherwise well. This can happen quickly or after some time and it is not possible to be more specific about this. However, in clinical practice it is the milder brain insults which will tend to present later and insults which cause widespread brain injuries are more likely to cause a child to become significantly unwell and present sooner after the insult has happened” [p.1064 §7.6.2]. 24. In her oral evidence Dr Cleghorn accepted that the first significant reporting of abnormality in the child’s presentation was on 31.10.23. However, she said that “sometimes symptoms are non-specific”

. Mr Jayamohan 25. In his report dated 25.02.24, Mr Jayamohan states: [p.1089]:

“The scalp swelling would be painful when the area is pressed and may continue to cause some discomfort at a more mild level even if not touched. The subdural blood could be relatively silent but the brain injuries would be expected to cause a level of change in the brain function. While not widespread, there is a sufficient amount of brain injury here over a large part of the frontal lobe and temporal lobe on the right side that it would normally be an impact event with the level of energy (especially when considering the skull fracture overlying this as well) that would cause a child to have an altered brain function, although this is not an absolute.”

Dr Hogarth a. “A number of incidents have been disclosed; none of these incidents are sufficient to explain the array of injuries demonstrated on the CT and MR scans, in my opinion. Short falls can occasionally result in skull fractures and intracranial injury, including subdural and subarachnoid bleeding; however, the finding of right parietal and left occipital skull fractures cannot realistically be explained by a short- fall. The constellation of intracranial bleeding, brain parenchymal injuries to the left frontal lobe and the axonal injuries in the left frontal white matter are associated with major head injuries, such as falls from heights or motor vehicle accidents and would not be expected to result from minor domestic accidents. b. Based on the current information, the injuries depicted on the CT and MR scans are in keeping with major traumatic head injuries. There is also evidence of soft tissue injury in the upper neck. The disclosed accidental mechanisms would not be sufficient to explain these injuries. Overall, the neuroimaging evidence points strongly to an undisclosed episode of inflicted head injury. The injuries are best explained by a combination of impact and shaking type mechanisms”. a. “The only way I can explain skull fractures and the intracranial bleeding and the parenchymal bleeding is going to be impact injury +/- shaking mechanisms, which is what I put in my executive summary. So, just turning to the question of how could these skull fractures have occurred, the first skull fracture to look at will... we can look at the fracture on the left side of the head at the back, that's in the occipital bone. So that would require an impact somewhere around here [indicates behind left ear] behind the ear, in order to cause that forked fracture that I've described on the left side in the occipital bone. Then we have another fracture, which is distant from that left-sided occipital fracture. It's over here, [indicates front left forehead at hairline] further towards the front on the right side of the head, which is where the coronal suture goes, which is roughly where my finger is [moves finger down towards eyebrow] and that fracture is moving somewhere along the head where I'm pointing out. So I can't see that a single impact could cause those two fractures, because they are distant from each other. So I think there has to be more than one impact injury to the head to produce those fractures” b. In respect of the neck injury:

“So what we're looking at there is backward forward type of motion [moves body back and forth in rocking motion] where the injury is caused by the soft tissues being stretched as the neck and the head move forward. So, again, for similar reasons to what Jay outlined, I think that this has most likely been caused by a shaking mechanism”. d. P.1662: “Now, it is possible, I think, to have bilateral or complex and multiple fractures from a single impact at the back of the head because you could have... and there are in fact documented examples of this, where both parietal bones have fractures from an occipital impact or an impact at the top of the head. The issue that I would struggle with in this case is how to tie together in a single impact the occipital fracture on one side with the linear parietal fracture away from it on the other side from a single impact. I cannot see, mechanically, how that could happen. Now, I would say that it could be that this is a very rare injury pattern which has never been described from a witnessed event. That would be possible. It's never been reported or documented. e. So, I suppose we can never say something is an impossibility because there could always be the first case that's reported in the world literature that hasn't appeared yet. But in terms of if the advocates want to know what I think is likely or less likely, I think it's very difficult and very unlikely that the skull fracture pattern here can be explained by a single impact. I think it's far more likely, and I don't think it's a fine balance, I think it's far, far more likely that this is more than one impact.” a. “The deeper injury to the white matter on slides 20 and 21 is the type of brain injury we can see in acceleration and deceleration type mechanism. All of these areas of injury to brain substance can be seen in that kind of a mechanism”. b. He accepted the limitations of the scans that radiologists see, in that not all falls by children result in attendance at hospital and/or with children undergoing a scan in any event. c. He accepted there was no evidence of hypoxic / ischaemic brain injury or of retinal haemorrhaging in B’s case. He said that whilst it was not uncommon for there to be hypoxic / ischaemic brain injury and/or retinal haemorrhaging in these sorts of injuries, he did not consider he could draw much from the absence of the same. d. Dr Hogarth remained of the view that, if the court accepts that the left occipital lines are fracture lines, by far the easier explanation is separate impacts to the skull. e. He said that the response of the skull can be unpredictable and explained further, “The analogy I use, if one took hard boiled eggs and dropped them sequentially on to a hard surface, there would be different pattern of cracking. There is a random aspect to cracking. Not a deterministic response. The same single event may produce an array of different outcomes. When we look at this question of single or more than one impact, I could see how a fracture in parietal bones can be caused by a single impact. But it is much more difficult for me to see how a fracture on the back on the left can be caused by a blow to that area and cause a fracture to the front, I can’t see how that would occur mechanically, intuitively”. a. “The significant scalp swelling seen on admission to hospital was noted to increase in size visibly over the hospital stay initially. This is in keeping with an acute onset of swelling of the scalp and bleeding underneath the scalp in the subgaleal space. The cause of this will be impact/s to the head.” b. The widespread nature of the injury on the right draws into focus the possibility that there had been several impacts to the head, but I would entertain one very significant impact causing this widespread findings with ‘spreading out’ from the site. c. Looking at the axial cuts, there are subgaleal collections in communication with a swollen scalp seen in the left frontal and right parietal regions, and I would therefore be of the opinion that these are likely to have been caused by separate contact events. d. The right sided coronal suture diastasis fracture would have been caused by an impact injury. e. The subdural bleeding, as seen, can be caused by significant impact injury, more likely to the right side of the head or maybe caused by a non-impact or shaking injury given the fact that there is bilateral findings seen. Overall impacts could be enough to explain the findings in this case. f. The brain injuries are located in the right side, in a pattern while not impossible from a shaking injury, would be in my opinion, more likely to be seen after an impact injury. Both are possibilities. There is no evidence of any connection to the midline posterior birthmark, nor can I find any anomalous blood vessels or other finding that may explain these injuries. There is no evidence of infection, such as abscesses, subdural empyema or changes consistent with meningitis that I can see on these scans, all of which would appear to confirm the traumatic nature of these injuries. For the avoidance of doubt, the brain injuries themselves could not be explained by a very mild bleeding disorder or clotting abnormality, even if the small change seen in the basic clotting profile is held by the Court to be contributory to the scalp and subdural bleeding seen. I would not myself support this being a realistic explanation for the findings.” g. “If there are shaking mechanisms involved here (and while they are not necessary or indeed able to explain all of the injuries seen in this case, they are certainly a potential mechanism to explain some), this would be involving mechanisms outside of normal handling. The impact injury is explainable by impact but no history is provided of any events that timing and mechanism wise would explain these findings.” [p.1088] h. In respect of the parents’ explanations put forward: “I do not believe there is an explanation for these injuries provided within them.” [p.1091] a. Injuries A to G (which are injuries i to vii on LA’s threshold document) “would be explainable by an impact/impacts to the head”. b. “I think the much more likely is that the neck ligament injury is caused by a shaking injury, rather than an impact”. c. “The other thing to add is the subdural bleeding, potentially the subarachnoid and potentially the parenchymal injuries and white matter could be explainable by a significant shaking injury as well, but such would not explain the skull fracture. So this definitely has to be an impact, and, working on the nuchal ligament findings in the neck, I think a shaking injury as well”. d. The alleged incident of falling from the mother’s lap [p.1660-1661]: “So I think it's something to consider for the skull fracture. However, I think it is unlikely, and probably veering towards very unlikely to explain the intracranial injuries in this case. If he fell onto the right side of his head, it would potentially cause some subdural bleeding and some subarachnoid bleeding, but we also note that there was some bleeding contralateral, high up on the top, on the left side. I think it becomes unlikely but not impossible”. e. “The thing that I don't really associate is the time when he fell and how he was in between. So the bit that doesn't fit for me is how unwell he was on the morning of the 31st… Yes, on the morning of the 31st with that altered conscious level. I would have a significant level of difficulty, from a primary brain injury, explaining an interval period of normality followed by a substantial decrease in conscious level on the 31st. So there's where I can't really understand that.” a. “It would be very unlikely that a fall off the sofa would cause an occipital fracture in a child of this age”. b. “The 30 October fall remains, if my guesstimate of height is correct, remains a real potential explanation for the skull fracture. I think it is an unlikely explanation for the brain injuries because of how he was in presentation”. c. “I would probably say… could he have had an injury on 30th and sudden deterioration on 31st? I won’t say impossible but really, really unlikely”. d. As to whether the vaccinations could have caused the brain injuries: “The short answer is that there is no evidence that these sorts of injuries can be linked with vaccinations. I would say it is as close to impossible as I am willing to say”. e. “The brain is not yet explainable by any of the events described and is recent”. f. The neck injury is more likely to be caused by a shaking mechanism than by impact. Although a rotational fall flexing forward is a possible explanation, that is much less likely if the left occipital line is an accessory suture rather than a fracture. a. Bruise to right eyelid i. “It would be highly unusual for bruising of the eyelid to occur during normal activity unless there was some fall onto a projecting object” [p.1051 §5.73]. ii. “Mother has described a number of events. None of these are described as involving a fall onto a projecting object” [p.1052 §5.7.4] iii. “In the absence of any other appropriate accidental explanation it is more likely that the bruise to the right eyelid was inflicted by forceful contact with an object. It is not possible to say whether this occurred at the same time as the other injuries or not but it may have done” [p.1052 §5.7.5] b. Skull fractures i. “The explanations which have been provided are of various trips and falls while B was being normally active and exploring his mobility. As noted above, I am not able to comment on the timing of the skull fracture other than making some clinical observations. From these I would exclude the events in August, September and the 17th October as being causes of the fracture” [p.1057 §6.5.4] ii. “Mother’s description of B bumping his head on the oven door is a common observation of childhood events. I would not expect this to have caused a fracture to the skull, and particularly the side of the skull” [p.1058 §6.5.8] iii. “The remaining explanation is of a fall while climbing into and attempting to stand on mother’s lap. This would be described as a simple fall and it is recognised that simple falls from the height of a toddler can cause a skull fracture. However, I note that B was not a tall infant (his height at the Initial Health Assessment was 75cm, between the 9th and 25th centiles) which would suggest this is not a significant distance to fall, and in addition there was a significant fracture which extended to the coronal suture which suggests there was a significant force involved. Therefore I think this is less likely to be the cause of the skull fracture but cannot exclude it as a possibility. However, if it is responsible for the skull fracture I think it would be unlikely to also be the cause of the intracranial haemorrhages” [p.1058 §6.5.9]. c. Brain injury i. “From the information I have seen… it is unlikely that B has a medical condition which is responsible for the brain insults” [p.1061 §7.2.5]. ii. “I have already discussed, in the section on fractures, that the events recalled by parents are unlikely to be the cause of the skull fractures. These events would not be expected to cause intracranial haemorrhages” [p.1064 §7.5.5]. iii. “In the absence of an appropriate accidental explanation the intracranial haemorrhages are more likely to be inflicted for example from a shaking injury” [p.1064 §7.5.6]. a. P.1659: “From my point of view, I'm in agreement with what's already been said. With respect to the last two, the mark on the right eyelid is reported to look like a bruise when first seen. It's also reported to change in its appearance, again, which would support it being a bruise, and that's likely to have occurred as a result of some form of impact against the eyelid. ” b. P.1662: regarding any clotting abnormality; “However, even if this little boy has got a clotting abnormality which might cause that increased risk of bleeding from a traumatic event, that still wouldn't explain the other intracranial findings, the sort of brain injury, and the injury of the neck tissues as well that Kieran's already talked through. So it may be relevant when we're talking about the bleeding, I don't think it's relevant for the full picture that we are presented with, with this child” a. The 10ml/kg fluid bolus administered on 31.10.23 would have had no impact on the level of scalp swelling or on the fluid gathering in nucal region. b. The vaccinations administered on 31.10.23 would only cause localised swelling but not to the scalp and would not have been responsible for any of the neuro-radiological findings. c. She had never seen tracking of blood from a head injury to an eyelid, although had seen it from an eyelid to a cheek. Dr Cleghorn acknowledged that the treating consultant paediatrician Dr Anne Davis in the strategy meeting on 1.11.23 is noted as saying, “Eyelid is bruised but this could be tracking from the outside the skull bleed” [p.49]. d. Dr Cleghorn agreed that there is a differential diagnosis for why the eye discoloured, namely related to head injury rather than specific blunt force trauma. She accepted that it was a ‘perfectly reasonable conclusion to come to’ that the right eyelid mark was more likely due to the head injury rather than separate blunt force trauma. Dr Hogarth a. “Acute skull fractures are associated with soft tissue swelling at CT examination in a majority of cases; Kleinman et al 1992 showed scalp swelling on the CT scans in all 35 cases studied with acute skull fracture. Scalp swelling will be detectable on neuroimaging immediately after a head injury but may or may not be apparent clinically. After 2 weeks, scalp swellings would generally be expected to resolve. It should be understood that it is not possible to age skull fractures using CT or skull radiographs. b. The large amount of scalp swelling with subgaleal haematoma indicates a recent impact injury. There is no scalp swelling over the left occipital fracture. This is either because it is an older injury or it is because the fracture occurred without producing scalp swelling. c. The fresh subarachnoid and subdural haemorrhage is unlikely to be more than 10 days or so old at the time of the CT head scan. The MR scan is not helpful in narrowing the time frame any further than. The skull fractures cannot be dated radiologically. d. There are no features to suggest a chronic subdural bleed. The subdural fluid collection over the left frontal lobe is likely to be a traumatic subdural effusion. There are no features to suggest more than one episode of bleeding but this cannot be excluded as a possibility without having scans from previous time-points. The skull fractures may have occurred during the same injurious episode or may have occurred at more widely separated points in time.”

Mr Jayamohan a. “The timing of these would be fresh blood of less than 10 days old at the time of imaging. However, the most significant scalp swelling, which was noted to increase after admission to hospital, would appear to have been noted from the evening after the baby awoke from sleep. b. Earlier on in the day there is communication between the parents and also showing of a cheek change (not definitively confirmed which side in the nurse’s statement) when the child was taken for immunisations. If the ear discomfort described by mother earlier on in the day, and/or the cheek changes are on the right hand side, this would support that a trauma has occurred earlier on during the 31st. I cannot explain why it would suddenly get worse in the evening. Certainly the hospital findings with altered conscious level, pupil sluggishness and the imaging findings would not be something that would likely be overall explained by an early impact with a ‘slow burn’ over 12 or so hours. c. Another possibility is that there have been two different events. The first of them would have likely been more minor, earlier on in the day. The second event would then likely have occurred in the evening, and would be more severe. d. The third possibility is that earlier symptoms with the face are completely unrelated and that this is all explainable by one single acute event or constellation of events occurring on the evening of the 31st. Overall, this seems unlikely as an explanation given the nurse had confirmed the appearance of the cheek.” a. “So I've said that those are all acute. So all of those brain injuries, I think it is unrealistic to start to separate those out in time. It is possible from the point of view of radiological timing but, given where they are, I think it would be much more likely that they're all explainable by a single injury, and reviewing the one thing that's not on here... well, we've talked about the injury to the brain tissue, but we need to think about the substantial altered consciousness that the baby showed when admitted to hospital, and the low Glasgow Coma score on admission, which then gradually improved again. And I think that if the court finds that that is an acute change on that morning, which is what I seem to read from all the witness statements, that the injury to cause the brain injury at least has happened that morning after the baby was well, and I think it's reasonable for the court to consider the fractures happening at the same time, but not absolute.” a. In respect of the brain injury, the timing is very close to the admission to hospital. It was during the evening of 31.10.23 that he became abnormal. b. References to ‘morning’ at lines 29 and 30 p.1657 of the expert’s meeting should in fact read ‘evening’. a. Bruise to right eyelid: “Also, while it is not possible to date the bruise on B’s eyelid, and while clinically bruising can be present for a couple of weeks, it would not be expected that a bruise occurred during any of the event described by the mother in August/September and on the 17th October and not be visible until the day Bwas seen in hospital” [p.1052 §5.7.4] b. Fractures: Dr Cleghorn defers to radiologists. “From a clinical perspective swelling, if it occurs, will occur within the first 24 hours of fracture and may be quickly obvious or may take some time to develop to a stage where it becomes obvious to a parent or carer. However, from clinical experience most swelling will be noticed in the first day, and if developing quickly within the first few hours of an injury.” [p.1055 §6.3.2] c. “I would not expect that an injury in August, September or on the 17th October would not present with any swelling until the 31st October” [p.1056 §6.3.3] d. “No swelling was noted until the late afternoon of the 31st October and so it is possible that the skull fracture occurred over the preceding 24 hours” [p.1056 §6.3.4] e. Intracranial haemorrhages: Dr Cleghorn defers to neuro-radiologists. “As a paediatrician, clinical experience is that there may not be many clinical signs or symptoms from intracranial haemorrhages but if there are these will usually be noticed within the first few hours of the event causing the haemorrhages” [p.1062 §7.3.2]. f. “Parents describe Bas being his normal self on the morning of the 31st October, by 9am, mother was concerned that he seemed less like himself, he was unsettled later and then became distressed” [p.1062 §7.3.3]. g. “That clinical progression could be the result of the fracture, the intracranial injuries, or both (if both occurred at the same event) and likely to represent a recent event although it is not possible to be more specific than that” [p.1062 §7.3.4]. Dr Cleghorn a. “Bruises are painful when they occur and I would expect Bto have been distressed. However, infants will often quickly settle if given a feed or a cuddle and afterwards bruises may only cause distress if they are tender when touched” [p.1052 §5.8.1]. b. “Fractures are painful when they occur and I would expect an infant to be distressed and that this would be recognised at the time as a significant event although a witness may not realise that the event had caused a fracture. Children can be distracted from pain with a cuddle, or a feed and may quickly settle down and paracetamol is an effective painkiller and if given could also reduce the distress” [p.1058 §6.6.1]. c. “Neurological injuries can present in a wide variety of ways from mild irritability and being off feeds to significant collapse, unconsciousness and death. Parents and carers might identify a change of behaviour in an infant who was previously placid or settled and then becomes irritable but if the infant is irritable for other reasons or generally an unsettled baby then a behavioural change might not be noticed” [p.1064 §7.6.1]. d. “After the initial event there may be a deterioration in neurological status but not always. Infants can remain conscious and not develop any significant neurological signs or they may deteriorate to a variable degree. Some may become unconscious, some may develop seizures or be irritable but otherwise well. This can happen quickly or after some time and it is not possible to be more specific about this. However, in clinical practice it is the milder brain insults which will tend to present later and insults which cause widespread brain injuries are more likely to cause a child to become significantly unwell and present sooner after the insult has happened” [p.1064 §7.6.2]. Mr Jayamohan

Comments Upon The Medical Evidence Including My Analysis

[29]The key points appear to be these: there are a number of incidents which the parents describe in their evidence which are unlikely to explain the totality of the injuries based on timing or mechanism or force. These include an event in August/September 2023 on the day the father picked up B on his shoulder, the day he was unbalanced and B’s head hit the wall. Then, in September 2023, when the father was teaching B how to walk with a baby walker, B fell on his knees and hit his head on the wooden floor. B stood back up and carried on walking. There was an event on 17 October when B fell from the sofa onto the wooden floor, and then in the afternoon between 1pm and 2pm on 30 October, B was crawling in the kitchen and he hit himself, that is his forehead, on the oven door. None of them are said to explain the injuries nor are they put forward as that but they do demonstrate to me that over the autumn in the second half of 2023, B was becoming more mobile and having fairly typical toddler accidents.

[30]B suffered an impact, causing fracture of the right parietal bone with associated soft tissue swelling. All three medical experts agree that B’s fall from the mother’s lap onto the floor, witnessed by The Intervenor in the evening of 30 October, could explain the right parietal skull fracture and scalp swelling. Further, Dr Hogarth agreed with Mr Jayamohan that the fall could explain the extra-axial injuries, that is subdural and subarachnoid bleeding. Dr Hogarth agreed with leading counsel for the mother that over the last years, there has been a real change, as in an improvement, in medical understanding of the effect on a child or person of low level force. Medical knowledge and research are constantly evolving.

[31]The mother and the Intervenor would not necessarily have been aware that the fall from the mother’s lap onto the floor in the evening of 30 October had caused a fracture and other associated injuries at the time. His evolving presentation in the morning of 31 October, being clingy to his mother and crying, through to lunchtime/early afternoon, touching his right ear and being in pain when lying on his right side, could be explained by having suffered a right parietal skull fracture in the evening of 30 October.

[32]It is unlikely that B has a medical condition that can explain the brain injuries. “Even if he does have a clotting abnormality….”, said Dr Cleghorn, in particular, “…which might lead to increased risk of bleeding from trauma, it could not explain all of the intercranial findings or the soft tissue injury to the neck.” In fact, all of the three experts agreed about that. They also agree that it is extremely unlikely that the vaccinations administered on the afternoon of 31 October caused the brain injury

[33]Turning to the intra-axial injuries, there are two areas of intra-axial injury identified by Dr Hogarth: restricted diffusion in the deep white matter of the right cerebral hemisphere in keeping with axonal damage and cortical injury involving the right inferior parietal lobule. Both of these are proximate to the impact site on the right. The cortical injury, described by Dr Hogarth as:

“Damage at the periphery outer edge of the brain. Not deep within tissues. Therefore, affecting the outer material of brain matter. The cerebral cortex can be seen with traumatic head injury.”

[34]He went on, “A small area of cortical injury could be caused by impact injury also causing the scalp swelling on the right.” In relation to the contusional injury in the white matter, Dr Hogarth said it was, “…a type of brain injury with an acceleration or deceleration mechanism.” The constellation of injuries in the 30 October fall was discussed in the experts’ meeting. Mr Jayamohan in that meeting, was not ruling out the fall as the cause for the extra-axial and intra-axial injuries. However, in relation to the intra-axial injury, Mr Jayamohan was clearly influenced by what he expected the timing of clinical presentation to be. He says this:

“The thing I don’t associate is the time when he fell and how he was in between, so the bit that doesn’t fit for me is how unwell he was on the morning of the 31st when he came into hospital.”

[35]He clarified in oral evidence that he did not mean “the morning”; he meant “the evening.” Further, in his oral evidence, Mr Jayamohan, when giving evidence about mechanism, confirmed his opinion that the 30 October fall is unlikely for the intra-axial injury due to the child’s clinical presentation. He also confirmed in his oral evidence that, “It is a possibility that cannot be excluded”. Dr Hogarth similarly accepted the possibility of the fall to explain those injuries.

The Nuchal Swelling

[36]I learnt from Dr Hogarth that the technology which is used to image the nuchal area in relation to Bis a recent phenomena, and this STIR imaging was not widespread. Dr Hogarth very fairly accepted that when he was, in his evidence, talking about “what is usually seen”, he has a limited evidence base from which to draw. He referred to the Chaudhury research paper where it was clear that a nuchal soft tissue injury is not exclusive to accidental or an inflicted injury.

[37]Both Dr Hogarth and Mr Jayamohan indicated that a likely cause of the nuchal swelling was a shaking mechanism. However, when in cross-examination, there were more questions about what “shaking” actually means, it appeared to me that they agreed with leading counsel for the mother that what it required was one movement forward by which the neck was suddenly flexed by the head falling forward, chin to chest. It appears to me that a shaking mechanism is not pathognomonic of the swelling and, in fact, the swelling could be caused by a single forward flexion. I refer later to the evidence I heard from her mother in her oral evidence about the fall. It appears to me to be reasonably complex, and I, of course have asked myself, whether, therefore, it is possible that the flexion could have occurred during that event, causing the nuchal swelling. There were no retinal haemorrhages, luckily, suffered by B, no hypoxic ischaemic damage or encephalopathy. Accordingly, Ms Grief KC rhetorically asked:

“If shaking were the mechanisms to cause what is said to be ‘such clear nuchal swelling’, where is the concomitant encephalopathy which is classically associated with the bending and stretching of cervico cranial nerves?”, often referred to as “the Geddes 2 research.”

[38]Dr Hogarth indicated that it was not always the case that they had to be associated at all. He, however, did agree that the neuroimaging findings in and of themselves cannot distinguish between accidental and inflicted injuries.

Clinical Presentation and Timing Of The Injury

[39]Mr Jayamohan, in his report, said there is a sufficient amount of brain injury, whilst not widespread, over a large part of the frontal lobe and temporal lobe on the right side that it would normally be an impact event with the level of energy, especially when considering the skull fracture, overlying it as well that would cause a child to have an altered brain function, although he said this is not absolute. He was asked whether, by B starting to touch his head near to the right side of his ear in the morning of 31 October around 9.30am, whether there was a possibility that that could be due to a fall the day before. He answered “Yes.” He fairly, in oral evidence, accepted the lack of absolutes as follows:

“I cannot say that every child with this injury will present in the same way.”

His view was based on evidence from his clinical expertise. He said, and I thought, very fairly: “I’m not saying he must have presented abnormally. It’s not impossible, but really, really unlikely”, confirming it was a possibility he could not exclude.

[40]Dr Cleghorn, the paediatrician, was very clear in her oral evidence that it was simply not possible to narrow down the timeframe for the injuries to have occurred beyond 24 hours before admission to hospital. She said she did so partly because her clinical experience informed her that infant responses are variable but additionally, that children that appear normal may be already showing subtle signs that are not immediately apparent. Counsel for The Intervenor asked her whether if B was excited to see his father on his return from work and badminton in the evening of 30 October and playing with toys the next morning, does that exclude him having had a brain injury at that point? However, Dr Cleghorn’s evidence was that there could still have been early stages of injury. “Children can be distracted, soothed and comforted by everyday actions such as breastfeeding.” I felt she was open to the steady progression of signs over time. She maintained the 24-hour window as appropriate.

[41]The evidence in relation to the skull fracture was that when that would be first sustained, a child would be distressed, but with comfort, distress could be relatively short, indeed, even minutes. Thereafter, a pain response would depend on whether the ends of bones were able to move against each other. If there is to be swelling at all with a fracture, that swelling normally occurs within 24 hours. I note that that appears to be precisely the timeframe as when swelling did occur from after the fall in the evening of 30 October.

[42]Dr Cleghorn deferred to the neuroradiologist in relation to intracranial haemorrhages, saying that as a paediatrician, clinical experience is that there may not be many clinical signs or symptoms from intracranial haemorrhages, but if there are, these would usually be noticed within the first few hours of the event causing the haemorrhages. She refers to the fact that the parents describe A as being his normal self on the morning of 31 October, and by 9am the mother being concerned he seemed less like himself. He was unsettled later and then became distressed. She says that clinical progression could be the result of the fracture, the intracranial injuries or both and likely to represent a recent event although it was not possible, she said, to be more specific than that.

[43]Counsel for the mother has set out in their submissions what they described as “the emerging clinical picture” on 31 October, to which I have given a great deal of thought. Mr Jayamohan’s oral evidence narrows down the timing of the injuries as close to 5.30pm on 31 October. Both he and Dr Cleghorn told the Court that clinical responses can be variable, as I have just referred and it would be impossible to be absolute as to the variability of children’s responses. I have given very careful thought as to whether the 30 October fall caused some or all of the injuries. The experts agree that the fall could cause the skull fracture with associated soft tissue swelling. Mr Jayamohan and Dr Hogarth agree that the fall could explain the extra-axial injuries, Mr Jayamohan’s opinion about the intra-axial injuries being that the 30 October fall is an unlikely cause “due to the clinical presentation, accepting that it is a possibility that cannot be excluded.” Dr Hogarth accepted the possibility of the fall to explain the injuries.

[44]What do I know about the clinical picture in relation to B on 31 October? The mother noticed that B was clingy at around 9am and that he began to cry when she laid him down for a nappy change, a longer cry than usual. She breastfed him and he fell asleep and she lay with him. The Intervenor was up from 8am, starting work at 10am, and I accept that he would have readily heard an alarming cry if B was being subject to inflicted head injury then. The mother spent about an hour and a half texting the WhatsApp group that she is in with the father and the Intervenor, it appears to me, in quite good humour.

[45]B woke at around noon/12.30pm, he is described by the mother as not appearing himself, clingy, placing his palm over his right ear as if that might be causing him pain, and the mother says she assumed that was due to a cold. He was taking sips of breastmilk but not wanting to have lunch. The Intervenor was around at this time and saw him. The mother rang her husband at 1.10pm. He, in his statement, sets out that the mother had told him Bwas being clingy and did not like her leaving him. At 1.50pm, the mother sent a message to the father, “By lying down, he feels a lot of pain.” Then, six minutes later, “Do not bring the mehndi.” At 1.57pm, the father said, “Okay.” At 3.51pm, the mother said, “Come home quickly from the office.” At 4.26pm, the mother said, “Bhas had four injections”, and at 5.01pm, the father said, “Leaving now.” That is an extract of the WhatsApp messages at that point.

[46]It appears to me that the mother sent the text message to the father at 1.50pm, “By lying down, he feels a lot of pain”, when she realised that he did seem to be in more pain when he was lying down. Her evidence is that he continued to be clingy and more in pain as the day went on. The parents say that it was agreed that his clinginess would be raised at the vaccination appointment which B had for 4.10pm that day. The mother’s evidence is that she called into the GP on her way home from collecting her daughter from school to see if she could have an earlier appointment but she was not able to. That seems to me to be entirely reasonable. She had gone to collect her daughter from school with B in the pushchair although, as The Intervenor confirmed, he was reluctant to get into the pushchair at that point.

[47]When it was time to go to the surgery for vaccination, the mother took B in her arms as he was clingy, and he would not sit in his pushchair. The mother says that she told Nurse G that she thought that B had the symptoms of a cold. I say more about Nurse G later but she was totally unreliable as a witness and I accept the mother’s evidence that she told the nurse that she thought he had some cold symptoms. Nurse G made no note of any concern regarding B. If he had been showing signs of neurological impairment at that stage, just after 4pm on 31 October or if he had any visible swelling to his face, I can assume that even if her notetaking is poor, she would have acted upon what she saw.

[48]The mother came home with B around 4.30pm and the Intervenor saw them both. He noted that B was clingy to his mother. He then spent time in his own room, he told me, with his door open. He confirmed that the mother put B in the bedroom and she was, herself, in the living room/kitchen area. The mother told me that she had given her son paracetamol and she had breastfed him and that he fell asleep in her lap and she placed him on the double bed. She spoke with the father on the phone, telling him about the vaccines after she had sent the text at 5.01pm. She then updated him about what happened at the surgery.

[49]It is the mother’s evidence that Bwoke at around 5.30pm. She heard him crying. She entered the bedroom and noticed the swelling on the right of his head straightaway, saying:

“His crying had become heavy. As soon as I saw his face swollen, I went straight to the Intervenorand asked him to ‘Call emergency, he has a swelling.’”

[50]I consider that the cause of the mother’s concern at 5.30pm was that obvious swelling and her opinion that her son’s cry did not sound the same, saying, “His voice had changed.” However, at that stage, there was no evidence that he was showing neurological impairment. He was in significant pain, from the description. The Intervenor and the mother went in a neighbour’s car to the first Hospital. The Intervenor says he stood outside the consultation room with the door open, offering some interpretation assistance to the mother who was in the consultation room. The examination of Bby Dr Thomas at first Hospital was at 18:32 and sets out the obvious swelling and pain at that stage. There is nothing to suggest neurological impairment or encephalopathy. What is said is:

“Swollen right side of face since 17:30. No redness. On examination, swelling ++ on right side of face and head. Child in a lot of discomfort. Advised to go to A&E.”

[51]I accept the submission that if the doctor had seen signs of neuro impairment, urgent action would have been taken at that stage at the first hospital and the family would not have been sent off to go to another hospital in their own transport and in their own time. When the family arrived at the second Hospital, straightaway, the child was seen at 21:49 by Dr Maroo. By this point, on examination, the swelling to the right side of the face was visible around the ear towards the upper scalp but there were no signs of neurological impairment described and the impression was of treating for infection or abscess. From the notes that I have read, it appears to not be until midnight that there is the recording of B’s pupils as “non-reactive/sluggish.” Even at 11.20pm, they were both said to be “non-reactive” as opposed to “sluggish.” At 23:20, the Glasgow Coma Scale was “8” and by 02:59 hours the next day, it was “15.”

Nurse G

[52]This practice nurse gave vaccinations to Bon 31 October. There is a contemporaneous record dated 31 October in the bundle. It does little more than list a number of vaccines. The consultation was at 16:16 that day. In the medical notes on 14 November 2023, is a subsequent record relating back to 31 October, without a further consultation taking place either on 14 November or in that time and says this:

“Fit for 12-month vaccine. Appeared well. Comforted by Mother after.”

[53]The nurse told me in oral evidence that that had been added by her in the notes after she had been asked by her manager to expand upon her entry at a time when the Local Authority had issued care proceedings. She knew, when she was making that additional record, that Bhad suffered head injuries, which she told me had shocked her, and that the Local Authority was seeking a record of the consultation on 31 October. Her next piece of evidence is a handwritten statement dated 25 December 2023, written, she told me, without reference to any medical notes or records on a date which is almost two months after the appointment on 31 October. She gave oral evidence to which I will refer in a moment.

[54]This nurse has almost 40 years’ experience as a nurse, usually seeing around 15 patients a day working at the practice two days a week and three days at another. She told me that her original note had been rushed, that being 31 October. That was due to needing to get home to her own mother who was in hospital, and she told me, “It was such a full clinic that day.” On 14 November, when she was subsequently adding to B’s medical record, the nurse makes no reference to advising the mother to go to A&E, of a flushed cheek, of demanding antibiotics or of her concerns which are matters that she subsequently refers to.

[55]She was unable to tell me why she had not added any of these details at the very latest by 14 November. By 14 November, she knew that there were care proceedings, so it is inconceivable that she would not have added appropriate detail if, in fact, those details were true. The mother says that she raised her concerns about B’s ear pain prior to his vaccinations with the nurse and told her that he seemed to have a cold. This is not recorded at all by the nurse but then, she does not record a great deal of other matters. The mother and the Intervenor say that B was not taken in the pushchair to the surgery. The nurse refers to the baby with whom she was concerned was in a pushchair and that his mother needed prompting to comfort the baby and needed to be asked to hold the baby as the mother wanted the vaccinations to be administered when in the pushchair.

[56]The Intervenor has no reason to lie about B being carried, i.e. not in his pushchair to the surgery and his statement setting this out was written prior to this being known that this was an issue. The description by the nurse in her statement of the baby’s mother needing to be prompted to comfort the baby is just not in keeping with all that I read about the mother. I have to conclude that the nurse is wrong in her recollection of this, which is not even her records. Her 14 November records describe him as being comforted by his mother.

[57]The mother says that four vaccines were given. The nurse said that there were three although she seemed extremely confused about this in her evidence, and I note that the child protection medical notes that there were four pinpricks; two in each thigh. In her handwritten statement written on 25 December, the nurse writes that the baby’s cheek was flushed. Bearing in mind, she saw him at 16:16, that is inconsistent with the examination by the doctor at the first Hospital who noted no redness just over two hours later, and it is further inconsistent with the information given by the Intervenorto the call handler. When asked in cross-examination what she meant by “flushed”, the nurse was really confused and found it very hard to say.

[58]In her 25 December statement, she says that she checked the baby thoroughly (on 31 October) and she advised the mother to go to A&E to get antibiotics and Calpol as the baby’s mother was not prepared to wait to see a GP for a prescription. I infer from that that she had no concerns herself that the baby’s mother should go to A&E but telling her to go there if she wanted a prescription. In oral evidence, when asked a great number of questions about her evidence and the written statement, she said, “I think I noticed the swelling on one side of the cheek.” She was cross-examined about the fact that her witness statement had said “flushed” with no mention of swelling. she then said, “It was red, so I assumed it was swollen.” I note that she appeared to be adding these matters that were not in her statement around a year after the appointment with B. Further, she said that she rang the mother before the appointment. There is no record of that call on the GP records or on the mother’s own call logs.

[59]I cannot rely on this nurse’s evidence. It was really poor. Her notes at the time of the 31 October consultation are brief. She was clearly distracted by her own mother being unwell and needing to leave work as quickly as she could. Two weeks after the appointment, she was asked to write a bit more detail; a period during which she would have seen other patients and done other activities. It is likely her memory would have been affected by time. The evidence in her 25 December statement as to a flushed cheek and oral evidence about swelling, I simply cannot accept. Any nurse would have included these details at the very latest on 14 November when she was purporting to add to the note of 31 October, knowing by then there were care proceedings.

[60]I think it is likely that the nurse has mixed this child up with another child who did arrive in a pushchair and whose mother was not as attentive as I know this mother is. It is a great pity that the nurse is a totally unreliable witness because she saw Bat an important time in the chronology of this case. I can assume that on 31 October, had she noticed any visible facial swelling or neurological impairment, she would have acted upon it then, even if she had not noted it.

[61]Further and finally on this topic, the nurse in her oral evidence, said that in June 2024, she saw the mother in her clinic to take blood and there was an attempt in re-examination, to identify the mother from the witness box which I consider was totally inappropriate particularly bearing in mind the factual issues that were then obvious to anybody listening to this nurse’s evidence.

The Evidence Of The Parents And the Intervenor

[62]Parents give evidence in a variety of ways. Over the last 17 years in which I have been analysing evidence as a family judge, I have seen a whole variety of parents giving evidence. I am fully aware of the pressure that any witness, but particularly parents, can feel when giving evidence about their baby, their injured baby even more so. A judge has to bear that in mind when assessing their evidence. I also have borne in mind that these parents are relatively new to the UK and have had no previous involvement with Social Services or the police. Both parents had the assistance of interpreters in court and whilst giving evidence. The Intervenor had an interpreter for his own evidence, although, in fact, his English is very good, and he spoke mainly in English.

[63]The Intervenorattended throughout most of the hearing via a video link from his home country, the authorities in that country having confirmed their lack of objection and the Court sat at 9.20 am on those days in order to try to reduce the lateness of the hour in the other country by the time the court day ended. There was a representative from the authority in that country at most hearings throughout the case and during most of the evidence.

The Intervenor

[64]The Intervenor is an important witness as to fact, given that he was at the family home on 30 and 31 October and because he lived with all of the family for six months before that. He is from the same culture as the parents, has the same religion and dietary preferences. He is clearly a friend of theirs and they are a friend of his. He had, on occasions, taken one or other of the children to the shops or for walks. The parents trusted him to do so. When the mother arrived in the UK, The Intervenor was in his home country at his brother’s wedding. She told me in evidence that she had spoken to him on the telephone and by video calls prior to her arriving in the UK in May 2023. The parents also took steps to introduce A to him during those calls.

[65]The mother confirmed in response to my own question, that after meeting him, she trusted the Intervenor. The mother’s evidence was quite clear, as was the father’s, that they had never seen the Intervenor harm either child. The Intervenor was joined as an intervenor following the filing of the mother’s statement of 8 May. He has been completely appropriate throughout the proceedings and respectful of the proceedings although made it clear, understandably, that he wanted legal representation. There was a great deal of effort made to obtain legal representation for him. I am particularly pleased that Ms Hecht (solicitor) was able to take on representing him and the steps that she will have taken to ensure that he was able to obtain public funding and to instruct experienced and leading counsel. The Intervenor has filed evidence and a response to threshold. His case has always been that he denies hurting Band that he finds it hard to contemplate either of the parents hurting Bbased on his experience of the parents and their care of the children. No party seeks findings against him following the conclusion of the evidence.

[66]The mother had filed a statement dated 8 May raising a number of concerns about the Intervenor which she says, in that statement, “…now lead me to have significant concerns to believe he has perpetrated these injuries”. This was the statement filed after receipt of the medical reports. She sets out in that statement a number of concerns that she says about the Intervenor including but not limited to the fact that he appeared obsessive about the children, their activities and well-being, that, importantly in this case, B started crying when he was with the Intervenor after they moved properties, that the Intervenor said he would like to live with the father and mother with his future wife when he gets married and, on 30 October, between 6pm and 7pm, B became scared when he saw the Intervenor and this is what caused him to climb onto the mother and subsequently fall.

[67]I have asked myself why did the mother file this statement about the Intervenor. Was there something wicked or mendacious about her to do that? She told me in evidence:

“When the expert report came out, I wanted to know how B got the injuries. I knew I had not done it. I know the father may not have done it. I remember from the end of September, B cried when he said the Intervenor’s first name. I’ve never seen him directly harming B .”

[68]She referred to the Intervenor’s strange behaviour which has been referred to in her statement and describing what she has called “little things, on reflection”, which caused her concern and, therefore, led to her filing her statement. The mother has raised some concerns about her son’s behaviour when he saw the Intervenorfrom around the end of September but more particularly after they returned from their holiday in Scotland on 25 October 2023 and in the last few days prior to 31 October. She emphasised in her oral evidence that she had never seen him harm B. However she expressed herself in her 8 May statement, she has not, within this hearing, pressed a positive case against him. If she did not know how her son came by his injuries, then she and the father were being told by the expert reports that these were inflicted injuries, I can understand how the 8 May statement came to be filed. She said repeatedly that she had “put it forward for consideration.” I do take into account her lack of knowledge about this type of care proceedings process. I do understand why the mother was cross-examined about this statement and why she filed it but from her evidence, the more she answered questions about this, I gained the impression that she and the father were wracking their brains to think about anything that they may have noticed.

[69]In her oral evidence, the mother confirmed that she had not seen the Intervenordo anything to hurt Band she was not saying that he was responsible for the injuries. She said she brought him into the case as he was the third person living in the house, and after all the reports were filed, she rang him and asked him directly if he had caused the injuries which he denied. That timeline assists me to conclude that if the mother did not know how the injuries were caused, and by the time the experts have expressed their opinions on the only event she could describe, she wanted to know from the only other person in the family home if he had done anything. She was complimentary about him in her oral evidence, and the WhatsApps which have been disclosed between the three adults, show a friendly, happy relationship; WhatsApps which in fact she volunteered at the beginning of this hearing.

[70]Turning back to the Intervenor he has prepared two statements. His first statement, dated 5 May, rather oddly, was filed by the father as an exhibit to the father’s response to threshold. His second statement of 10 September was prepared and filed by his own solicitors. The Intervenor confirmed that he had written the first statement himself and that the contents were true. In that first statement, he provides an account of witnessing B fall from the mother’s lap on the evening of 30 October, stating, “I remember it was a direct hit on his head to the floor”. In oral evidence, he confirmed that he saw B hit his head on the right side. Other than this incident, he said he has not witnessed any accidents occurring or injuries to either child. The Intervenor did not mention this climb and fall in his police interview, and neither did the mother in her statement to the police.

[71]In his first statement in these proceedings, as to 31 October, he said he woke up by 8am and started work in his bedroom by 10am. When he saw the mother in the living room/kitchen area, B was with her. “She was attempting to feed him breakfast.” She mentioned to the Intervenor that B had been frequently touching his ears and was reluctant to eat. In oral evidence, the Intervenor told me that that comment from the mother about B was not actually at breakfast time but was later in the morning. The Intervenor said that on 31 October, he was working in his bedroom at the family home. I learnt that for his job, sometimes he wears normal headphones for attending meetings and presentations remotely and, at times, he wears special noise-cancelling headphones when he is conducting audio testing. He told me that he had worn both types of headphones during the day on 31 October but he could not say exactly when he was wearing which type.

[72]In his first filed statement, the Intervenordescribes the mother leaving to take the baby to the vaccination centre and noting that he was clingy. Later, he described the mother putting B to sleep and then when he woke up and cried, the Intervenor describes hearing the mother scream. She showed him the swelling on the baby’s head and asked him to call the hospital. He rang 111. He accompanied the mother and, indeed, a neighbour and B to the hospital, where B was seen by Dr Thomas.

[73]The Intervenor told me that he did not consider that B’s reaction towards him had, in fact, changed in the period leading up to 31 October. He told me further that he had a discussion with the mother towards the beginning of May 2024 when she asked him whether there is anything he had done that might have caused the injuries to B. He said, in evidence, that the mother did not seem to be accusing him of anything in that discussion and so he was, he told me, upset when he subsequently received the mother’s statement of 8 May it being in, I infer, contrast to the discussion that she was having with him. There was some exploration in cross-examination about when the Intervenor took B out alone and some discussion about 27 October and other days which I need not go to in any detail, bearing in mind the timescale for these injuries. No one suggests that the Intervenor was alone with Bat any point on 30 or 31 October.

[74]In his second statement which he confirmed in oral evidence, the Intervenor said:

“The parents got on well, and my experience was that they were a good family. If there was something hidden, I don’t know but I didn’t see anything in the parents’ interaction with each other or their interaction with the children that caused me any concern.”

[75]He went on:

“I never saw them mishandling the child despite living with them in a small flat for six months. To the contrary, they used to be careful so I don’t understand how either of them have caused these injuries.”

[76]As to the mother’s 8 May statement, he said:

“She seems to be implying there was something odd about what I was doing but there was not. My interest in the children who I was living with does not mean I had any strange intent in relation to the children or that I hurt the children. I hadn’t lived with children before, and I was genuinely interested in their care and presentation.”

[77]I found the Intervenor to be a very straightforward witness who gave clear answers to questions. He was helpful to this Court. He did not seek to deflect blame on the parents despite them bringing him into this serious case. He repeated what very good parents they seemed. His bedroom in this small flat was between the parents’ room and the living room. He told the police that he had not heard anything unusual or any shouting, but he certainly had the ability to hear that, bearing in mind the size of the property and the location of his bedroom where he worked. He has absolutely no reason to lie on their behalf or to protect them. The Intervenoris a key witness both as to the events of 31 October and key about their parenting of the children whilst living and working in the same household for many months. It was not suggested to him in cross-examination by the Local Authority that he was part of a conspiracy with the parents and/or that he was lying to protect them.

The Mother’s Evidence

[78]Further to what I have set out above in respect of the Intervenor, when she filed her first statement dated 22 November, the mother set out a number of incidents which she considered could possibly account for her son’s injuries. In respect of them all, she said, “I never noticed any complaints/suffering/injury on any specific area or any sign on B’s body or distress/discomfort which I thought required any immediate medical attention”. At the hospital on 31 October, the mother did not tell the treating clinicians about any of these incidents. In her statement, then, just over three weeks later, she said:

“I accept that these possible explanations were not provided to the treating medics in order for them to assess whether this is consistent with B’s injuries. However, at this time, I was in a complete state of shock and I did not think of bringing this up to the attention of the treating medics immediately. B was suffering with a sudden swelling to his head and I was very worried and shocked. Further, the doctors then also informed me he had got a fracture in his skull which added to the shock and worry.”

[79]In relation to the fall on 30 October from her lap, the mother said in this first statement:

“On 30 October in the evening between 6pm to 7pm, I was in my bedroom sitting on the carpet floor folding dry laundry; a big pile. B was with me on the floor playing.”

[80]She exhibits photographs of the locus:

“A was also there with us in the room doing her schoolwork. At the time of playing, Bclimbed onto my lap with one of his feet trying to stand up and he became unbalanced within a second and fell down on the carpet. I witnessed this but it was too late to support him. Bfell and hit the right side of his head on the carpet. There was no great impact and this happened on a soft carpet surface and from a very low height as I was already sitting on the floor on the carpet. It did make a very little noise but I cannot describe this. B cried for approximately two minutes; a normal baby cry, not distressed. I immediately picked up B to comfort him, cuddled him and he stopped crying. I again pressed the right side of his head. I checked for injuries/marks and there were no injuries or marks. He appeared his usual happy self. He was drinking and eating fine. After five minutes, I carried on with the laundry as B appeared his normal self.”

[81]She gave oral evidence about this particular incident, telling me that she sat on the floor in the bedroom with her legs crossed in front of her body. B was at the developmental stage where he was pulling himself up and she could feel that he came at her quickly from behind. She felt his hand at her shoulder and him placing one of his feet on her folded leg. He unbalanced and fell. She was fair enough to say she did not actually see him fall but when she immediately turned round to look, he was on his right-hand side. The Intervenor was standing at the threshold of the open doorway at this point and witnessed this fall.

[82]The mother told me that Bcried and she cuddled him and demonstrated how she placed her hand to press on his head, having been taught that when there was a bump, that is what a carer should do. He settled after a time with her comforting him and as far as she believed, he was his normal self. She clarified the use of the word “again”, which was in her statement in relation to the pressing of the head saying that she had done that on 17 October when he fell off the sofa onto the floor. Dr Cleghorn had said that children can be distracted from pain with a cuddle.

[83]In terms of B’s presentation on 31 October, in her first statement, the mother said this:

“B woke around 7.30am, appeared to be his normal self and playing with his toys. The father later dropped A to school and went to work. The Intervenor was working from home. At around 9am, I noticed that B started to cry when I lay him down for his nappy change. This did not sound like his normal cry. It was a longer cry than usual and crying more than usual. He cried for one to two minutes. At that time, I thought he was feeling sleepy. I, therefore, breastfed him and he fell asleep. I also laid down on the bed next to him.”

[84]I note during this time from about 10.30am to just before noon, the mother was engaged in WhatsApp messages in the group with the father and the Intervenor having a relaxed chat about a number of matters, including the Intervenorhaving been awarded an Amazon voucher. The mother goes on in her statement:

“B then woke up at lunchtime, approximately noon and when he woke up, he was touching his right ear using the palm of his right hand. At this point, I became concerned that B may be in pain. From 9am onwards, he appeared to be a lot clingier than he is usually, not wanting to leave my side which was out of character. He did not want to eat his lunch but he did take some breastfeeds.”

[85]She says further, at paragraph 36 of her first statement:

“In the afternoon, I went to collect A from school with B. We went straight to the GP…”

I insert there that, in fact, she is referring to the nurse:

“…for the one-year immunisations at 4.10pm. I raised B’s ear-side pain to the nurse before his immunisations were administered. I was informed by the nurse that this may be due to his teething and jaw development. She did advise me to give Bparacetamol and arrange a GP appointment if it worsened.”

[86]I accept the mother’s account of what she said to Nurse G, Nurse G being completely unreliable about that particular appointment, as I have set out earlier. The mother carried B to the surgery at around 4pm for his appointment at 4.10pm as he was clingy and he would not sit in the pushchair, with which the Intervenoragreed. When she returned home at around 4.30pm, she sets out in her first statement:

“I gave Bparacetamol and then breastfed him until he fell asleep on my lap. I then transferred him to the centre of the double bed in our bedroom with pillows beside him. Bslept soundly until approximately 5.30pm when, all of a sudden, I heard him crying from the living room. He was crying continuously in pain and in distress for 10 to 15 minutes. This was a strange cry. When B first started crying, I quickly entered the bedroom and B was still in the centre of the bed and I took him on my shoulder and comforted him. At this point, I first noticed the swelling to the right side of B’s head. B was conscious but he looked strange and his eyes were half open. The swelling was a reddish swelling which started to turn blue. I immediately asked the Intervenor to call 111 and I was informed to remove B’s clothing which I did and ensure he did not fall asleep so I kept him awake. We were referred to the first Hospital who then advised us to attend A&E at the the second Hospital in light of the reported ear pain and overlying swelling.”

[87]In her statement of 8 May, the mother gave more information about B’s presentation on 31 October. She said:

“The father left the house at around 8.30am with A. Bwas in the living room and kitchen area which are all part of the same open-plan room, until about 9am to 9am. He did a poo and I took him to the bedroom to clean him. I laid him down on the bed and he was crying a little more at this time which seemed strange. This was happening when I would lay him down. He was very clingy and would not leave me. I had difficulty in undertaking my tasks. I even called the father at 12.30pm… In fact, this was at 1.10pm. “…saying that he’s clingy to me and not letting me do anything and I felt there was some problem. Father explained I should try to feed him and put him to sleep, and we had an appointment for the one-year vaccination at the GP and we agreed I would ask about this at the GP surgery.”

[88]I must say, that seems a sensible plan. In her subsequent statement dated 6 October, just before the hearing started, the mother says: “I wish to clarify that I had seen some swelling to B’s head whilst at home at around 5.30pm. I did not see this as reddish or turn blue at this time”, which is what she had said in earlier statement.

[89]I note that this is consistent with the record at the first Hospital at 18:37 on that day when Dr Thomas says there was no redness. The mother, rightly, had to provide an explanation as to why her initial statement included what she says was an incorrect description that the swelling was reddish and turning blue. She said that her solicitor was rushed in preparing that statement, her solicitor had talked to her in English and not her first language, the translation into her first language was rushed and that she, the mother, was in shock at the time that first statement was filed and prepared. That does, on balance, seem a reasonable explanation to me and I accept her evidence about that.

[90]Further in her oral evidence, the mother said that on 31 October between 12/12.30pm and 2/2.30pm, Bwas increasingly clingy, crying if she put him down and she was not able to get on with any household chores other than basic tasks. The mother made reference to her own call logs, stating that the call she made to the father at lunchtime was 1.10pm rather than around 12/12.30pm. I repeat here some WhatsApp messages which I have referred to earlier: 31 October at 1.50pm, the mother saying, “By lying down, he feels a lot of pain”, and, at 1.55pm, Mother saying, “Do not bring the mehndi” and, at 1.56pm, Mother saying to Father, “You come directly home”. At 1.57pm, the father saying, “Okay”, and, at 3.51 pm, Mother saying, “Come home quickly from the office”. At 4.26pm, the mother saying, “Bhas had four injections”, and at 5.01pm, the father saying, “Leaving now”. When asked about the text at 1.50pm, “By lying down, he feels a lot of pain”, the mother told me:

“He was in a lot of pain. He was crying in a different way so I told my husband ‘He’s in a lot of pain’. Straight after that, a minute or so later, I’m telling him, ‘Do not bring the mehndi cone.”

[91]The mother told me that the mehndi was for a religious festival which was the next day. Understandably, the mother was asked in cross-examination why she did not mention in her witness statements that Bwas in a lot of pain when lying down at around 1.50pm on 31 October and why she did not mention that she had told the father about that. Is that suspicious? I have had to ask myself.

[92]These are WhatsApps which the mother volunteered and brought into evidence. They have not been obtained from her against her wishes. I do not consider that she was attempting to hide what she was saying to the father at 1.50pm, “By lying down, he feels a lot of pain”. I do not read anything into the fact that she did not mention in her witness statement that she told the father that he was in a lot of pain lying down at 1.50pm.

Further Observations About The Mother’s Evidence

[93]I have had to consider, because of the tenor of the cross-examination, whether there were any issues in relation to the parents’ finances. There is no evidence from the WhatsApps from the Intervenoror any other evidence that financial issues were having an impact on these parents or on their ability to meet the needs of their children. In fact, it was not put to her that financial issues were, in fact, affecting her or the father such that they might be led to assault a child. I have also considered whether the mother was under any stress. It is right that the mother did have more paid help in her household in her home country than in the UK but I noted earlier that for the last few months of living in India, she was the sole parent for two young children, including a baby, her husband then living in the UK. She was preparing to make the move to the UK and yet there is no evidence that she was unable to cope with that, much less that it resulted in harm to either of her children. She had also been closely involved with the care of the father’s parents whilst they were ill and elderly in India whilst she had her daughter as a small child.

[94]The couple are engaged in some social groups in the UK and they have some activities as a family and the Intervenortold the police that occasionally, friends come round and that he did not notice the mother being stressed. In oral evidence, the mother told me that she would pop out with the baby to the local pond and also go out to get some fresh air. I note that the family had a trip to Scotland in half-term, 21 to 25 October 2023, and I can see that there is evidence from the WhatsApp group as to the happy messages that were being exchanged when planning that holiday. The Guardian describes the mother, without criticism, as “an anxious parent; always worrying about their food, their sleep and their health”.

[95]The WhatsApps were volunteered by the parents into evidence. There was some cross-examination about 19 October 2023 when it is noted that the mother was asking the father to come home as B was crying a lot. Then, on 27 October, the mother was saying that B was being clingy and stopping her doing chores. I have considered whether the mother was getting increasingly stressed by Bnot letting her get on with her chores. It might be factually right that he was not letting her get on with her chores but even if that is right, it is a very long way from saying that she, as a result, assaulted her child. It was not actually put to her that she was struggling to cope with either child. I have re-read the messages, in particular, those from 19 October, because there was quite a lot of cross-examination about them and I conclude that the messages are little more than one parent asking the other to hurry home from work so that she could get on with the necessary tasks in the household, including preparation for their Scottish trip.

[96]The mother did not tell the father about the 30 October fall from her lap until after she learnt about the nature of his injuries after admission to the second Hospital; in fact, about four days later. She has said that this delay is because she was in shock. In fact, the Intervenor did not mention it either. I can well understand why neither she nor the Intervenor mentioned the fall to the father before the evening of 31 October because B had seemed fine on the evening of 30 October and she nor the Intervenor would not necessarily have made any connection between that incident and his evolving presentation on the 31st.

[97]I have had to ask myself whether there is anything odd in that she did not tell the father about this sooner than about four days afterwards. The Intervenor was not asked in evidence why he had not said anything about it earlier either. I do not consider that this is suspicious. 30 October was a witnessed event. The Intervenor does not suggest that the mother told him to keep it a secret from professionals and/or from the father. It is not an event she could possibly be making up now to subsequently explain away her son’s injuries. I can accept the mother’s submission that she probably did not mention it to the doctors or the father because she did not equate the event on 30 October where her baby, after his fall, at least until the morning, was acting normally, including crawling and feeding, with what she was then being told at hospital about his head injuries. Also, during those few days after 31 October, the parents’ lives had been turned upside down. Their baby was in hospital. They had been arrested in a foreign country to which they had recently come, held overnight and interviewed.

[98]In some of the cross-examination and submissions about the mother’s evidence, I consider that there has been a conflation of parental worry about B; Mother’s worry about Band on the other hand any inability to cope with B. It is clear from messages that I have read that the mother, at times, worried about her son. She has a loving and close relationship with her husband. It is entirely appropriate that she shares that worry with him as she is the main carer. However, that is not the same as her not coping with B.

[99]On 31 October, there were relaxed messages in the late morning between the group and, in the afternoon, as in the morning, The Intervenorwas in the home. He heard no unusual crying or loud noise until the one at around 5.30pm. He, therefore, is corroborative of her account. I consider the mother has given a truthful account. She gave evidence over several hours and her evidence has been very largely consistent.

The Father’s Evidence

[100]The Local Authority asserts that if the Court cannot find there was an event in the afternoon of 31 October, then the injuries were as a result of an impact and shake event during the 24 hours prior to admission to the first Hospital, i.e. from about 6.30pm on 30 October and that they were caused by the mother or the father. The father said, and there is no dispute about this, that he returned home after badminton at around 9.30pm on 30 October. This is after the reported incident in which B fell from the mother’s lap, seen by the Intervenor. He told me in evidence that he did ask the Intervenorand the mother when he found out about this, “Why didn’t you mention this at the time?”.

[101]In relation to 31 October, he first set out an account in his statement of 27 November. He says this at paragraph 16:

“The next day, on 31 October, the same routine was followed again. B got up around 7.30am. He was excited to see me and A engaging with our usual morning routine. I remember he crawled into the bathroom as well and was interested to see what we were doing when we were brushing our teeth etc. I did not notice anything unusual in his presentation that morning. He seemed okay to me until I left for the office. The mother telephoned me around 12.30pm and told me that B was clingy and did not like her leaving him. I confirmed that she was going to the GP with B that afternoon for his vaccinations and told her to tell the GP about his mood. I also told the mother to try to see if she could make him sleep so that he will have some rest. After the vaccinations, she messaged me to tell me that he had had four immunisations. It was towards the end of my working day when she messaged me. I wrapped up my work and left the office to get home. I got on the 235 bus and, whilst on the bus, received a telephone call from the mother when I was near the High Street. The mother’s voice sounded scared. She sounded like she was crying and told me that B had a swelling on his head. I told her to call emergency services. I stopped the call to her and called emergency services, 111 and 999 myself. I told them that something had happened to our son and needed their help and gave them the address to go to.”

[102]The father was asked about the text message at 1.50pm. He accepted, in evidence, that that seemed to be a development in terms of B’s presentation from being clingy at 1.10pm to being in lots of pain when lying down at 1.50pm. However, at the time he had not appreciated that. He repeated in oral evidence that he was not aware of how his son had been injured.

My Observations On His Evidence

[103]He was not present when Bfell on 30 October; ie that witnessed incident. He arrived home at around 9.30pm. He was not present all day on 31 October from around 8.30am, at which point, his son was crawling normally. Like the mother, he gave evidence of a busy and loving family life. He was busy at work on a project. He told me in evidence that he enjoyed his work and that the mother was not reporting such stress as was concerning to him. In cross-examination, he was asked if he had shaken B. He was not asked whether he had caused any impact injury to B. I cannot recall any questions of the Intervenorabout what he might have heard between the times of 9.30pm on 30 October when the father came home from Badminton and 8.30am the next day when he left to go to work, those being the only hours that the father is in the family home during the time which the Local Authority says in their second position that I should consider.

[104]During the 24 hours prior to admission to hospital, the father was at work, out of the home, and then at badminton, arriving home around 9.30pm and then going out at 8.30am the next day. He acted appropriately by calling emergency services and rushing to hospital. It is clear that he, and, indeed, the mother, think that the vaccinations played a part in his son’s injuries. His own father, sadly, had a brain haemorrhage as a result of the Covid vaccine. The question of whether the vaccines could have played a part was explored fully with the experts who were instructed in these proceedings who were each clear that there is no known link to exacerbation of swelling or bleeding. None of them, of course, are vaccine experts, which they will all accept. Mr Jayamohan described the suggestion that the childhood vaccines played a part in the injuries as “as close to impossible as I could give in a court.” Dr Cleghorn did not think there could be a link with the vaccines but fairly said one could not rule out anything in medicine.

[105]At the conclusion of both parents’ evidence, I am able to say that this is a couple whose love for each other and love for their children is very obvious. They share a lot as a couple and clearly trust each other.

Wider Canvas

[106]In addition to the observations made already about the lay evidence, there are a number of matters about what is commonly referred to as “the wider canvas” or the other factors to which I now turn. Father is a hardworking man having moved to the UK as a skilled worker. The couple were both excited about this opportunity for the family and before the events in question, they had just enjoyed a holiday in Scotland as a family. The family, including the Intervenor, were not known to the police or Children’s Services before B’s attendance at hospital. GP records show that the mother was attentive in her engagement with health visitor and GP services. There are no known concerns in relation to anger management, domestic abuse, substance abuse or mental health difficulties in respect of either parent or the Intervenor. They do not drink alcohol.

[107]The parents have been involved with professionals, importantly, including Social Services, for over a year now, and there is no evidence at all of any emotional dysregulation despite the, quite frankly, traumatic circumstances they have found themselves in. There is nothing at all to suggest that the mother or the father would inflict injuries on their baby and, further, that they would keep it a secret for all this time. There have been no concerns raised by their daughter’s school about her attendance or presentation or about the parents themselves. In short, all professional involvement with both children is positive. A has never raised any safeguarding concerns about her parents.

[108]The parents have cooperated with the Local Authority and professionals during these long proceedings and have been most respectful in court. Their WhatsApp and phone records demonstrate to me a loving couple and there is nothing to suggest that they are not loving and caring to their children. Indeed, the Intervenor, who has no reason to lie for them, as I keep saying, describes them as “loving and caring and attentive” to their children. During the last 12 months of proceedings, they have not missed contact. They take fresh, healthy food to the children at every contact. The contact notes are excellent. I note their devotion to the children’s education, including exercise, yoga, etc., including their devotion to the family religion.

[109]When it was clear that the children would not be able, in the interim, to live with them, they worked hard with their solicitors to promote a placement in a culturally-appropriate family to care for the children, enabling the children to be together and, importantly, to have the right diet and religious background. There is warmth and affection in both directions to and from the children. For a long time, the parents were delivering freshly prepared food daily to school for A, and they wanted to do the same, even after they moved home and had no car.

[110]The family were living together in the UK from May 2023, some five months or so before B’s attendance at hospital six months on 31 October. Accordingly, it follows that there was a relatively short period of time in which the family could have come to the attention of external agencies but they did not. All information about the family’s circumstances before they came to the UK comes from the family themselves and from information in the extended family assessments and it is all positive. The Intervenor lived with the father from November 2022 and with the family from June 2023 until the children were taken into care, and remained with the parents until April 2024, when he went back to his home country. He describes them very positively as people and as parents, and this is all the more relevant when noting that he has been brought into this case as a result of the mother’s 8 May statement.

[111]The absence of any counter-assertions by the Intervenor about the parents speaks volumes, the Guardian submits, and I agree with her. I also agree with the Guardian in relation to the 8 May statement of the mother and her description of concerns about the Intervenor’s behaviour. For the avoidance of doubt, at their highest, I think that these are examples of strange or unusual behaviour at times. However, it is nowhere near a propensity to harm either child. The parents did have financial constraints but not such that they were having a negative impact on the parental relationship. I find that the Intervenor would be aware of that if that were the case, living in the same home.

Discussion And Analysis

[112]Standing back and looking at all of the evidence, lay and medical, I remind myself that the expert advises and the judge decides. The vital question for me is how these injuries occurred to B. The burden is with the Local Authority. It is their duty to prove to the Court to the requisite standard of proof that the findings it seeks should be made. The burden always lies with the Local Authority to prove a fact. It is not for any of the respondents to prove that the injuries were caused by the accidental fall on 30 October or anything else. It is not for the respondents to prove how they were caused or disprove that they were inflicted. The burden always lies with the Local Authority.

[113]The evidence of both parents and of the Intervenor are of utmost importance in this case. Case law is very clear that I should form a clear assessment of the parents’ credibility and reliability, and the Court is likely to place considerable weight upon their evidence and the impression the Court forms of the parents. That was said eloquently by Jackson J, as he then was in Re BR (Proof of Facts)

[2015] EWFC 41

. In an important and pertinent judgment by Charles J as long ago as 2005 but still very relevant now, A County Council v K, D and L

[2005] EWHC 144 (Fam)

“The roles of the Court and the expert are distinct…that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence.”

[114]A factual decision must be judged in context and not just upon medical or scientific materials however cogent they may, in isolation, seem to be. Further erudition from Hedley J, Re R

[2011] EWHC 1715

, “A conclusion of unknown etiology…represents neither a professional nor forensic failure.” I have particularly referred to that case law. All of the case law in the Local Authority’s opening note is relevant but I have, in fact reminded myself about the particular roles of an expert and the lay evidence and how important it is for the judge to stand back and to attempt to put together the pieces, which is what I have tried to do.

[115]I find that Bsuffered the following injuries: extensive scalp swelling and subgaleal haematoma, a right anterior parietal skull fracture, complex and extensive intercranial subdural bleeding, fresh subarachnoid blood, cortical parenchymal injuries to the right frontal lobe, focal areas of deep and subcortical white matter, axonal injury in the right frontal lobe and soft tissue injury deep to the nuchal ligament. The redness behind the right ear was said by Dr Cleghorn to be non-specific and I make no finding. She said it is very difficult to say what that is attributable to.

[116]The experts agree that the witnessed fall on 30 October could explain the right parietal skull fracture, scalp swelling, some subdural bleeding and some subarachnoid bleeding. Of course, this fall took place, I find. The Intervenorcorroborates the mother; a man with no reason to lie for her. Mr Jayamohan’s opinion that it was unlikely and probably veering towards the very unlikely that the fall explains the intercranial injuries because of how the child was in presentation. He asks himself could Bhave had an injury on the 30th and a sudden deterioration on the 31st; “I won’t say impossible but really, really unlikely”. Yet he accepted that not every child with this injury will present in the same way. Further, Dr Cleghorn was very clear that she could not narrow down the timeframe beyond 24 hours before admission, saying that:

“Infant responses are variable. Even children that appear normal may already have subtle signs that are not immediately apparent.”

[117]I have earlier in this judgment set out the clinical picture which I consider was unfolding on 31 October. There was an increase in signs over the course of the day. At 5.30pm, the swelling had developed so that it was now visible and causing Bmore pain. From 18:32 when seen at the first Hospital and 21:49 at the second Hospital, there were no signs of neurological impairment on examination by the doctors. The first is just before midnight that day.

[118]The Local Authority primary position is the mother caused the injuries by an impact and a shake in the afternoon of 31 October. During this day, she was texting on the group chat from around 10.30am to just before midday. I cannot see how she could have assaulted her son during this time with the Intervenor on the other side of the wall. The finding sought is that the impact and shake was caused in the afternoon of 31 October and yet I find that there was an increase during the day on 31 October of how B was presenting. In her first statement, the mother said, “He was crying; not like normal, just after 9am and he was in pain by lunchtime”. At 13:50, she said to the father, “By lying down, he feels a lot of pain”.

[119]The Intervenor was at the home all day. He would be able to have heard B crying. In fact, he did hear B crying at 5.30pm. He heard the mother shout and B cry. Accordingly, I think it is more likely than not he would have been able to hear if the mother was assaulting B that afternoon or that day by impact and shake. For the avoidance of doubt, I include here that the nurse, G, administered the vaccines just after 4pm. Despite her very poor note-taking, I assume that if his face had been swollen or there had been any signs of neurological impairment, she would have acted on it.

[120]After the mother came back from the surgery, around 4.30pm, there is about an hour before B’s cry at 5.30pm. The Intervenor was there in the home all that time in the next room to the bedroom. He told me, and it was not challenged, that the mother put B there and then went out to the open-plan living and kitchen area. I agree with Ms Grief KC that it is fanciful to suggest that the mother would, in this time, go back into the bedroom, inflict injury on her son, leave and then pretend to be shocked by his swelling.

[121]I find that there is not a sudden change neurologically on the afternoon of 31 October. I find that there were signs developing during the day, culminating with a visible swelling that caused B pain and distress. I cannot accept that this mother, in the flat with the Intervenor most of the day, with her daughter home with them by then, after school, has assaulted B, let alone in the window from 4.30pm to 5.30pm, with the Intervenor in the next room. The account of the Intervenor as to the mother’s reaction at 5.30pm is, I find, entirely consistent with someone who has no idea with what is happening. He told the police that she screamed out, that she was shocked and in no fit state to talk.

[122]As to the Local Authority’s secondary position that the mother or father caused all of the injuries in the 24 hours before admission, I reject that. There would have to be an evidential foundation if all the injuries occurred in a 24-hour window and, also, evidence of a real possibility that the mother or the father were the perpetrators. I could not find in my notes any cross-examination of the Intervenor, who was there throughout, about what he heard or saw from the father, in particular, during this 24-hour period. I could not find in my notes that it was put to the parents they were responsible for an impact in that 24-hour period. What I do know about these parents is very positive. The idea that either of these loving parents would hit their son against a hard object or surface or shake him is, in my judgment, out of the question. Further, the father was only at home from 9.30pm on the 30th to 8.30am the next day. There is no real possibility that he injured B during that time.

[123]Accordingly, I conclude that the biomechanics of any fall are complicated and cannot be replicated or demonstrated fully. The mother, in her oral evidence to me described a motion whereby her son was coming at her from behind, reaching up and climbing onto her folded leg. I accept that happened as the mother tried to describe to me. It appears likely that that was a complex fall with some speed and, certainly, impact. The three experts all agreed that the 30 October fall could have caused the fracture with associated soft tissue swelling. Mr Jayamohan and Mr Hogarth said that the fall could explain the extra-axial injuries. Mr Jayamohan did not exclude the possibility that the fall caused the intra-axial injuries. Dr Hogarth accepted the possibility. The nuchal swelling required a movement forward by which the neck was suddenly flexed by the head falling forward, chin to chest. The 30 October fall, in my opinion, could explain this. As I know, B was an increasingly mobile baby. The parents gave credible evidence. They were corroborated by the credible Intervenor.

[124]Putting all that evidence together and standing back, in my judgment, the likely cause of all of B’s injuries is the accidental fall on 30 October. Even if I am wrong about that and the fall does not explain all of the injuries, I cannot express myself more clearly than, in my judgment, having assessed all of the evidence, neither of these parents inflicted injuries on their baby. For the avoidance of doubt, the Intervenor is not responsible for any injuries on B. Accordingly, I conclude the threshold criteria is not met.

[125]I make no criticism of the Local Authority for bringing these proceedings, and I emphasise that now. It was their obligation to do so, and they played a full part in obtaining high-quality medical evidence and presenting this case appropriately. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. This transcript has been approved by the judge.

order

Dr Hogarth, Nurse G, Dr Cleghorn, Mr Jayamohan, the mother, the father and the Intervenor. The Law Order: Future Harm)

[2001] 1 FLR 611

, Hale LJ (as my Lady then was) said, at para 28, that “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”, she was faithfully expressing the intention behind the subsection. But the other interesting feature of the sentence in the White Paper is the word “unacceptable”. I suggest that it was later realised that whether the risk was “unacceptable” was a judgement which fell to be made at the welfare stage of the inquiry; and so a different adjective was chosen.” 33. Also in Re B, after considering the difference between ‘harm’ and ‘significant harm’ Lady Hale at paragraphs 187 and 188 turned her mind to the issue of likelihood where she said as follows: “187. Added to the difficult question of identifying significant harm is the question of identifying the degree of likelihood that such harm will be suffered in the future which is necessary to take the case over the threshold. It was held, albeit strictly obiter, in In re H (Minors) (Sexual Abuse: Standard of Proof)

[1996] AC 563

that “likely” does not mean “probable” or “more likely than not”. It means, in Lord Nicholls’ well-known words, “a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” (at 585F). That standard has been adopted or approved in numerous later cases, including recently in this court in In re J (Children) (Care Proceedings: Threshold Criteria)

[2013] UKSC 9

;

[2013] 2 WLR 649

. It is in this respect, and this respect alone, that Lord Nicholls observed that the threshold is “comparatively low”… 188. The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nicholls did not contemplate that a relatively small degree of likelihood would be sufficient in all cases….” 34. Lady Hale also considered at paragraphs 191 and 192 and in 193 the second element of the threshold, the harm must be ‘attributable’: the requirement in s 31(2)(b)(i) that harm or likelihood of harm should be 'attributable' to the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give, was an issue of the care of the child, of causation as between the deficient care and the harm, it is not a matter of ‘character’, or intention. 35. The key legal principles in relation to fact-finding have been set out in many cases but are clearly set out by Mr Justice Baker (as he then was) in Devon CC v EB & ors

[2013] EWHC 968

at paragraphs 53 – 64:a. The burden of proof lies with the Local Authority who bring the proceedings and identify the findings they invite the court to make [53];

b. The standard of proof is the balance of probabilities. The law operates a binary system, there is no room for a finding that it might have happened [54];

c. Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation [55]; 10

d. The court must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. The court surveys a “wide canvas”. "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." [56]

e. In relation to expert evidence referring to Mr Justice Charles in A County Council v KD & L

[2005] EWHC 144

Fam paras 39 to 44: "It is important to remember that

(1) the roles of the court and the expert are distinct and

(2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision." "In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established." [49] As Mr Justice Ryder observed in A County Council v A Mother and others

[2005] EWHC Fam 31

: "A factual decision must be based on all available materials, ie. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be".

f. When assessing expert evidence involving a group of specialists, each bringing their own expertise, the Court must be careful to ensure that each individual keeps within the bounds of his own expertise and defers where appropriate to the expertise of others [58];

g. The evidence of the parents 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 [59]. 11

h. 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 she has lied about everything: see R v Lucas

[1981] QB 720

[60]. The Court is also reminded here of the words of the then Macfarlane LJ in in Re H-C (Children)

[2016] EWCA Civ 136

: [56] “ In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt."

i. At paragraphs 61-63 Baker J noted: “The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into corners that are at present dark". This principle inter alia was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings

[2004] EWCA 1

Crim. "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge." “With regard to this latter point, recent case law has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause. That was articulated by Lord Justice Moses in R v Henderson and Butler and others

[2010] EWCA Crim. 126

at paragraph 1: "Where a prosecution is able, by advancing an array of experts, to identify a non -accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown." In Re R (Care Proceedings: Causation)

[2011] EWHC 1715

Fam Mr Justice Hedley, developed this point further: "A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the 12 causation advanced by the one shouldering the burden of proof is established on the balance of probabilities." "In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made." 36. The last point considered by Baker J was the ‘pool of perpetrators’ and the guidance in this regard has now changed, following the judgment in Re A (Children)(Pool of Perpetrators)

[2022] EWCA Civ 1348

where King LJ gave the lead judgment referring to the judgment of Peter Jackson LJ in Re B (Children: Uncertain Perpetrator)

[2019] EWCA Civ 575

[2019] 2 FLR 211

which in summary reiterates and states the following principles: i. The concept (of a ‘pool’) does not arise either where the allegation can be proved to the civil standard against an individual in the normal way, or where only one person could possibly be responsible. [14] ii. The concept of a pool of perpetrators does not alter the general rule as to the burden of proof and that it is for the local authority to show, in respect of any potential perpetrator, that there is a real possibility that that person had inflicted the relevant harm before they are placed in the pool. [15] iii. The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: “Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?” Only if there is should A or B or C be placed into the ‘pool’.” [16] iv. As a general proposition it is in the public interest for those who cause serious non-accidental injuries to children to be identified, wherever such identification is possible. There is a public interest in children having the right as they grow up to “know the truth about who injured them when they were children, and why.” [18] v. The standard of proof is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. [19] vi. The evaluation of the facts which will enable a court to identify the perpetrator of an inflicted injury to a child will be determined on the simple balance of probabilities and nothing more. [33] vii. in future cases judges should no longer direct themselves on the necessity of avoiding "straining to identify a perpetrator". The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.” [34] 37. Peter Jackson J, as he then was, added the following additional consideration to the legal principles in fact finding hearings: Re BR (Proof of Facts)

[2015] EWFC 41

para 7: “(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. (4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe: "Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low." I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities. [8] Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. [9] When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings. [10] Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case.” 38. The approach of the courts to the fallibility of memory was considered first in the case of Gestmin SGPS v Credit Suisse (UK) Ltd

[2013] EWHC 3560 (Comm)

and subsequently by the Court of Appeal in Re A (A Child)

[2020] EWCA Civ 1230

. Lady Justice King stated: “[30] Inevitably in such cases, the oral evidence of the key protagonists, most often the mother and her partner, is highly significant. The case law has developed in a way designed to ensure that, whilst there is recognition of the fact that the oral evidence of lay parties is often critical, it also has its limitations; there are dangers in an over reliance by the judge on either demeanour, or upon the fact that a witness has told demonstrable lies.” 39. Lady Justice King considered the dicta in Gestmin, Blue v Ashley

[2017] EWHC 1928

and Kogan v Martin & Ors [2019] EWCA Civ1645 and concluded: “[40] I do not seek in any way to undermine the importance of oral evidence in family cases, or the long-held view that judges at first instance have a significant advantage over the judges on appeal in having seen and heard the witnesses give evidence and be subjected to cross-examination (Piglowska v Piglowski [1999] WL 477307,

[1999] 2 FLR 763

at 784). As Baker J said in in Gloucestershire CC v RH and others at [42], it is essential that the judge forms a view as to the credibility of each of the witnesses, to which end oral evidence will be of great importance in enabling the court to discover what occurred, and in assessing the reliability of the witness. [41] The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case. What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another.” 40. Lastly, it is pointed out that the Court must make clear and sufficiently reasoned findings of fact with respect to any disputed issues, to identify whether, and if so how, any of the facts found, either alone or in combination with each other, establish that the child is likely to suffer significant harm in the care of either or both parents and to identify (at least in broad terms) the category of significant harm that the judge concludes is likely to suffered by the child (Re J (A Child)

[2015] EWCA Civ 222

and see B (A Child), Re (Adequacy of Reasons)

[2022] EWCA Civ 407

[2022] 2 FLR 936

). Medical Evidence