Oxfordshire County Council v M & Ors [2025] EWFC 166 (B)

[2025] EWFC 166 (B)Hearing HEARD ON 2 nd to 6 th June 2025Date 11 th June 2025
IN THE FAMILY COURT SITTING AT OXFORD
Before
Her Honour Judge Owens
Between
Oxfordshire County CouncilApplicantM, FirstRespondentF, SecondRespondentA, Fourth Respondent, through their Children’s Guardian)RespondentOxfordshire County Council, ApplicantM, First RespondentF, Second Respondent
A, Fourth Respondent, through their Children’s Guardian) for Applicant Local Authority: Mr Powell, Counsel, instructed by Oxfordshire County Council for M, First Respondent: Ms Griffiths, Counsel, instructed by Boardman, Hawkins & Osborne LLP for F, Second Respondent: Ms Savvides, Counsel, instructed by Wilsons Solicitors for A, Third Respondent, acting through their Children’s Guardian: Ms Wickham, Counsel, instructed by Oxford Law GroupThis judgment is being handed down in private on 11 th June 2025. It consists of 33 pages and has been signed and dated by the Judge. The Judge has given permission for judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.INTRODUCTION, BACKGROUND AND EVIDENTIAL SUMMARY
[1]These proceedings commenced with the Local Authority application for a care order on 21st November 2024. M and F are the parents of A, who was born in August last year. The family is not previously known to social services.[2]At about 10am on 9th November 2024, A was taken to hospital by her parents. A was in a state of distress and, following a CT scan, she was found to have a displaced spiral fracture of her right femur.[3]The conclusion of Dr Jefferis, who undertook a child protection medical on 10th November 2024, was that the most likely explanation for the fracture was physical abuse having considered the possible alternative explanations, including those given by the parents.[4]A was made subject to Police Protection following a strategy meeting on 12th November 2024, and an Emergency Protection Order (EPO) was granted by the Court on 15th November 2024. A was placed in foster care on 18th November 2024.[5]These Care proceedings followed and, at the first hearing on 22nd November 2024, the Court made an interim care order with the paternal grandmother approved as a regulation 24 carer under a plan that she would move into the parents’ home with support from the paternal cousin, and with the parents also living in the family home. A working agreement was entered into, and A was reunited with her parents under the care of the maternal grandmother on 22nd November 2024. This arrangement with A at home has remained in place to date. A has suffered no further injuries and there have been no incidents of concern either.[6]At the first hearing the Court directed expert assessment from Dr Oates, Consultant Paediatric Radiologist, and Dr Rose, Consultant Paediatrician.[7]Dr Oates filed his report on 10th January 2025 (E4-E26). He confirmed that there was a significantly displaced spiral fracture of the shaft of the right femur. In his opinion, the spiral morphology was suggestive of a twisting rotational component coupled with a compressive or pulling force as the causative mechanism. Such a fracture would have required significant forces, and in this case likely a very forceful twisting action. His opinion was that the fracture was acute and less than 10 days old at the time of scanning on 9th November 2024. It was his opinion that the routine winding of an infant, including using ‘bicycle legs’ as described by F, would not result in a femur fracture unless associated with an inappropriate level of force that would be likely to be apparent to any responsible carer at the time. He was therefore of the view that a description of the cause of the fracture had not been fully disclosed.[8]Dr Rose’s report, filed on 26th March 2025 (E27-E36), concluded that there was no natural cause for the fracture. He concluded that the fracture would have required a rotational force likely applied by the right knee or with the right knee stabilised with a rotational force produced by rotating A. He did not consider the explanation given by F a plausible mechanism for causing such injury and was therefore of the opinion that the most likely explanation for the fracture was inflicted injury.Both experts were therefore of the same opinion about this.[9]M and F deny that they have inflicted injury on A. They have produced statements setting out their accounts of events in the period leading up to A’s admission to hospital on 9th November 2024. They were also interviewed by the police and those interviews are part of the Bundle for this hearing. They deny having applied excessive or unusual force and have not given any account of an accident that might provide the required mechanism to inflict A’s injury. F described attempting to wind A shortly before 8.30am by means of starting to move her legs in a bicycling movement, but the expert evidence is that this action would be unlikely to have caused the fracture if performed carefully as one would normally handle a baby of this age. F also raised the possibility of whether this movement might have displaced a pre-existing fracture, but a greenstick fracture has been ruled out by the experts, and he accepts this. As directed at the first hearing, a parenting assessment of the parents has been produced on the basis that any findings made at this hearing will need to be reflected in an addendum. That assessment raises no concerns about the parenting capability of the parents apart from the implications of A’s injury. A kinship carer assessment has also been completed, which is positive, but will again require an addendum following this hearing.[10]I conducted a pre-trial review (PTR) on 1st May 2025. That was my first involvement with the case. Advocates identified that some evidence remained outstanding despite continued efforts to obtain it. It was apparent that phone analysis had not been directed at the first hearing and an application had therefore been hastily made for the PTR. This application was granted, but on the basis that all parties agreed it would not be fatal to the listed FFH if the disclosure was not obtained as directed. Updating police disclosure and police photographs of the family home, referenced in the previous police disclosure at F9, was also outstanding. Unfortunately, the disclosure was not obtained in time for the FFH, but all parties agreed that the FFH should proceed as planned and as agreed at the PTR. The other missing evidence, namely some medical records from the midwifery service, and a statement from one of the treating clinicians, was filed and served in time for the FFH.[11]I have read the evidence contained in the Bundle, which is split into the main Bundle and a supplemental bundle of medical records, and heard evidence from the court appointed experts Dr Oates and Dr Rose, as well as from the parents.

PARTIES’ POSITIONS

[12]The findings sought by the Local Authority are set out in a schedule of allegations at A41-44 and replicated in anonymised form at appendix A to this judgment.[13]M accepts that A sustained a displaced spiral fracture to the mid-shaft of her right femur. She does not dispute what was recorded as being said at the hospital on 9th November 2024 when A was taken there by her parents. She denies causing, or being responsible for, or aware of, anything that would have caused the fracture. Through her advocate, Ms Griffiths, she has put forward the possibility that this is an unexplained injury and therefore not attributable to her care of A.[14]F also accepts that A sustained a displaced spiral fracture to the mid-shaft of her right femur. He also does not dispute what is recorded as being said at the hospital on 9th November 2024. Like M, he denies causing or being responsible for, or aware of, anything that would have caused the fracture. As noted earlier he has raised the possibility of A having a pre-existing fracture which was displaced by his attempting to wind A by moving her legs in a cycling motion. He has also put a case that raises the possibility of the injury being simply unexplained.[15]The Guardian, as is usual in such cases, does not advance a positive case on the facts, but has attempted to draw out and clarify the evidence relevant to the Court’s determination in this Fact-Finding Hearing.

RELEVANT LEGAL CONSIDERATIONS

[16]In addition to considering section 31 (2) of the Children Act 1989 regarding threshold, I have had regard to the guidance of Keehan J in Wolverhampton City Council v JA & Ors [2017] EWFC 62 helpfully summarising the law in relation to public law fact-finding proceedings as follows:a. ‘In relation to the findings of fact sought, I remind myself that the burden of proof is on the local authority.b. The standard of proof is the simple balance of probabilities: Re B [2008] UKHL 35.c. I remind myself in relation to lies told by a witness that I should take account of a revised Lucas direction. Accordingly, I should only have regard to a lie told by a witness if I am satisfied that there is no innocent reason for the witness to have lied in his/her evidence.d. The Court of Appeal considered the application of a Lucas direction Re H-C [2016] EWCA Civ 136. McFarlane LJ emphasised the following at paragraph 100:
"One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane’s judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration"
. In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim.L.R. 251. 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." e. I entirely accept that the mere fact of a lie being told does not prove the primary case against the party or witness who has been found to have lied to the court. f. Findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on mere suspicion, surmise, speculation or assertion: Re A (A Child) (Fact Finding Hearing: Speculation) [2011] 1 FLR 1817 and Re A (Application for a Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1. g. There is no obligation on a party to prove the truth of an alternative case put forward by way of a defence and the failure by that party to establish the alternative case on the balance of probabilities does not of itself prove the local authority’s case: Re X (No. 3) [2015] EWHC 3651 (Fam) and Re Y (No. 3) [2016] EWHC 503 (Fam).’[17]Baker J in Re IB and EB [2014] EWHC 369 is also relevant since the Local Authority case encompasses either of the parents in the list of potential perpetrators, and relies upon expert evidence: 83. Secondly, as conclusively established by the House of Lords in Re B [2008] UKHL 35, the standard of proof is the balance of probabilities. If the local authority proves on the balance of probabilities that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will treat that fact as established and all future decisions concerning the children's future will be based on that finding. Equally, if the local authority fails to prove that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will disregard the allegation completely… 87. Fifth, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed, "It is important to remember(1) that 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." Later in the same judgment, Charles J added at paragraph 49, "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." 88. Sixth, in assessing the expert evidence I bear in mind that cases involving a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of Eleanor King J in Re S [2009] EWHC 2115 Fam). 89. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346)… 91. Ninth, as observed by Dame Elizabeth Butler-Sloss P in Re U, Re B, supra "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 would throw a light into corners that are at present dark." 92. 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. Linked to it is the important point, emphasised in recent case law, of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126, and in the family jurisdiction by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam): "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 causation advanced by the one shouldering the burden of proof is established on the balance of probabilities." 93. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849). In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).[18]The burden of proof does not shift to the respondents at any point in respect of the Local Authority allegations, applying Lancashire County Council v D and E [2010] 2FLR 196 and Lancashire County Council v R, W and N [2013] EWHC 3064 (Fam). I have also had regard to the recent case of Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 which provides a useful summary of the law in relation to the proper approach to the identification of a perpetrator in cases involving physical abuse allegations, from which the terminology of ‘list of possible perpetrators’ in preference to the older term of ‘pool’ derives.[19]Mr Powell highlighted the case of BR (Proof of Facts) [2015] EWFC 41 in which Jackson J reiterated many of the basic principles outlined in earlier authorities and set out a list of various risk factors and protective factors in cases involving alleged non-accidental injury to a child. Those factors are listed at para 18, and para 19 makes clear that, “in itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its factors. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established”. This case also commented on evidence about a pain response from a child who has suffered a fracture (paras 11-17).[20]Gloucestershire CC v RH and others [2012] EWHC 1370 (Fam) is also relevant to this case. Baker J (as he then was) noted that: ‘it is essential that the judge forms a view as 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. 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’ (para 42).[21]Ms Wickham for the Guardian also highlighted the case of R A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348, which cited Re B (Children: Uncertain Perpetrator) and the cases I have already noted above. Re A is authority for the proposition that judges should no longer direct themselves on the necessity of avoiding ‘straining to identify a perpetrator and that “the unvarnished test if 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” (para 34).

EVIDENTIAL ANALYSIS

[22]Both Dr Oates and Dr Rose gave evidence to me during this hearing. Dr Oates confirmed the contents of his report. He concluded that A sustained a significantly displaced spiral fracture to the right femur, which was acute and less than 10 days old at the time of the CT scan on 9 November 2024 (E18). He explained that the fracture’s spiral morphology indicated a twisting or rotational force, combined with compression or pulling. Such an injury, he stated, would require a level of force inconsistent with normal infant handling (E7, E16).[23]Dr Oates specifically addressed the explanation provided by F, who described using a “bicycle legs” motion to wind A. He concluded that this action, if performed with normal care, would not cause such a fracture (E20, E21). He further noted that the absence of any healing response on the radiograph ruled out the possibility of a birth injury. There was no evidence of any underlying medical condition or bone abnormality that would predispose A to fractures.[24]In oral evidence, Dr Oates reiterated that this type of injury is highly unusual in a non-mobile infant and that no accidental mechanism had been identified. He acknowledged the complexity of modern medicine but maintained that this case was radiologically straightforward. He emphasized that the injury must have had an external cause, which had not been disclosed by either parent. He confirmed that the presence of oedema noted at the hospital did not assist with timing for the fracture.[25]Dr Rose, Consultant Paediatrician, concurred with Dr Oates. He described the injury as “exquisitely painful,” stating that A would have exhibited immediate and significant distress. While he accepted that shock might delay a pain response briefly, he maintained that the resulting cry would have been distinctive and memorable. He also confirmed that any movement of the leg would have caused further pain due to the fracture’s displacement.[26]Dr Rose addressed the possibility of a pre-existing, undisplaced fracture becoming displaced through minor movement. He acknowledged this as a theoretical possibility but emphasized that the original fracture would itself have required significant force and would have caused immediate pain. He also noted that the absence of external bruising was not unusual for this type of injury, which involves internal trauma without necessarily producing visible marks.[27]Dr Rose was asked about F’s evidence of hearing ‘clicking’ when he moved A’s right leg. He had no experience of that himself, but explained there was a medical term for this, crepitus, which would imply that there may be occasions when it was possible to hear the scraping of two fractured fragments. He confirmed in answer to questions from Ms Griffiths that he agreed with Dr Oates that the greater the degree of malalignment in a fracture the more likely it was to be painful when moved and, given the degree of angulation in A’s fracture that it would also have been very painful and the first signs of pain and distress were more likely to be the timing of the injury. He clarified that the leg was not likely to have been ‘floppy’ as described by F, but that her muscles were likely to have gone in to spasm and her right leg would not have been moving as one would expect for a baby of this age (whose limbs generally would be moving quite a lot) and that would be noticeable immediately if a child stopped moving one of her limbs. Both experts agreed that the injury was non-accidental and that the explanations provided by the parents were implausible.[28]Each of the parents also gave evidence, M first as first respondent. In answer to questions from Mr Powell, she confirmed that A had slept well for the first six weeks of her life, normally only waking twice in the night, which allowed her parents to get blocks of sleep for about 4-5 hours at a time. However, after six weeks her sleep pattern deteriorated, it was mostly harder to get her to sleep in the evening and it became more challenging. M described A as having a “loud cry, which would very quickly escalate, a scream in fact”. She also explained that the most common cause for A escalating to screaming was wetness in her nappy, and that if she sensed A waking, she would go and pick her up to start to feed her which would stop her getting to the sort of daytime levels of screaming, even with a wet nappy at night. She accepted that there were occasions during the night when she would scream, and that she had found it difficult to interpret what A wanted at times. This is something that I am sure many parents would recognise.[29]M accepted that she felt she would get a handle on things and then it would change and what she had done was no longer effective. She agreed with Mr Powell that this was very hard, stressful, and tiring. F had returned to work after 3 weeks parental leave. M also accepted that she had experienced low mood as noted by the health visitor at the six week check, had been noted as having current depression in the medical notes at MD509 on 16th April 2024 (though she didn’t really remember that having been on medication for low mood since 2013), had anxiety, was quite unwell after A’s birth as a result of blood loss, and that her physical health difficulties also made her experience daily pain, fatigue, and brain fog and these symptoms were worsened by stress and overdoing things (MD510). She accepted that the pressure and demands of looking after A were impacting on her mental and physical health. Strikingly, in answer to questions from Mr Powell, she described the post six-week period as “an escalating cycle of difficulty and frustration” which she thought she could also see F experiencing. Things particularly worsened in the week of 4th November 2024, she accepted, but she was able to get out and visit friends and family and she was mostly able to soothe A at night and get her back to sleep. By the afternoon of 7th November, A was unsettled and crying and M thought that she was experiencing a developmental leap, with her crying not seeming to be resolved by a nappy change or feeding. That evening A had cold symptoms too. By the morning of 8th November M accepted that she had had three “pretty difficult nights”, she was quite often “exhausted”, and she was “definitely overdoing it” which was something likely to exacerbate her symptoms. She was not conscious of anything that Friday that made her worried about A physically, did not notice anything unusual about her legs though could not recall noticing them, and did not remember any unusual scream or cry. Her description of the night of 8th November is one of very little sleep, with A waking almost hourly and M saying to both the police and to me that she felt she could not put A down. Confusingly, though, M also told me that A was not crying, did not go above being grizzly and was able to change her and put her back to sleep and “she was easier than other nights”. It was thus not clear to me quite why M felt she was unable to put A down, though she did clarify in answer to my question about this that she may have been assuming that she had to keep soothing her, maybe needed to leave her at times and was almost causing her own problems. She accepted that she was exhausted and that her memory of that night was “fuzzy”, though she did not at any point hear or see A in exquisite pain as described by Dr Rose. She accepted that it was possible that she fell asleep with A on her chest when she had gone downstairs to have a hot drink and sit on the sofa at about 7am. When asked by Ms Wickham about this she accepted that it was also possible that if A had yelped, she would not have heard it if asleep. She was clear that A was not crying or screaming when she brought her upstairs, though, and that she did not notice anything wrong with her leg until F called her attention to it later.[30]M’s evidence was also that, when she went back upstairs, she simply placed A on the bed next to F with a look to tell him it was his turn, but did not say anything to him. She went to the toilet and then to the bathroom and brushed her teeth, and it was whilst she was in the toilet that she heard F talking to A, with A grizzling, but while she was in the bathroom A escalated to crying and then screaming but, as she had told the police (F60-F61), she did not think this was unusual and was A indicating that she wanted feeding. When she walked back into the bedroom, she could see F holding A up and he asked her to look at her leg. She could remember being surprised that he was asking her to look at A’s leg, and told me that her next reaction was whether she had missed something and felt panic but no anger, her gut reaction being to blame herself and it did not occur to her that anything else had happened. She did not remember exactly what she said to F but accepted that she did not ask him what had happened. She also accepted that she did not discuss what had happened on the way to the hospital, and that the first she heard about F attempting to move A’s legs to wind her in a cycling motion was at the hospital.[31]F gave evidence next. He told me that he agreed with what M had described about A’s sleep routine changing at around week six, and that this placed stress on both of them, with both of them being more tired but especially M as she was the one who did the nighttime routine. He was clear that he would not normally be the one to get up for A in the night, which was mostly M, but he knew that M was finding things difficult and isolating after he went back to work. They had discussed this, and he had offered to come home if she needed him at any point, but he had not seen anything different in the way that M was caring for A, she was not showing frustration. Instead of frustration, he described her as “disassociating”, which he clarified to mean “staring off into the middle distance and almost disconnected from her body” but that she would “come back” when spoken to and he never had a concern about her ability to look after A even when “disassociating”, which he thought was happening maybe a couple of times or maybe more each week between A being born up to the week before 4th November. He thought that this disassociation would occur more frequently in the evenings, for the same amount of time each time but more instances of it happening and he would step in and take A but to help M, not because he was worried about her ability to safely care for A.[32]F also has his own health issues and told me that he has migraines which are often triggered by loud noises such as A crying. He would get migraines maybe every couple of days or at least one that was severe enough to take the medication prescribed for him, and that head pain was the main symptom of them for him but also with auras and, at times, nausea. A severe migraine could require him to remain at home on the sofa or in bed, but if he took the medication soon enough he could normally function, however waking with a severe to moderate migraine would mean that the medication would not kick in in time for him to go to work. Although he told Mr Powell that there were times that he worried about his techniques to soothe A not working well, and when he could not cope with A’s crying or fractiousness, he denied that he ever became frustrated. He also explained that he wore noise cancelling headphones if A was crying to stop a migraine being triggered and would wear these but not over his ears to have them to hand if he did need them. However, he accepted he had left the headphones at work on 6th November as he said in the parenting assessment at C238, though said he had others at home that he could have used. He accepted that both were under stress, tired, exhausted and “it was really hard that week”, and that events that week did have an impact on his mental health. Prior to the week of 4th November, he had never seen M fall asleep with A on her chest, either on the sofa or bed and he did not recall her telling him she had either. He also said that he had never fallen asleep with A on his chest.[33]He told me that he knew M was up with A at night multiple times that week from talking about it the following morning or looking in the app she used to record when she got up with A, but he was asleep each night and did not wake up at any point. He told me that A was “a perfectionist or stubborn”, as she herself had told me but, although he did not see her get frustrated, he could tell she was struggling to get it right and saw an increase in ‘disassociated’ moments in the process. He worked from home on the Friday 8th November (which was planned beforehand) and finished early because he took some time off in lieu of time worked the week before. He took turns with M caring for A during the evening and did not notice anything wrong with her legs despite holding her and changing her nappy at points. They all went to bed at about 9pm and he fell asleep after the nighttime routine, telling me that A was fine at that point as far as he was concerned. He woke at about 8.20am by which time M was downstairs with A, and he could not hear anything from downstairs when he woke up. He agreed with M that she came back upstairs at about 8.30am, put A on the bed with him and they just exchanged a look, and she went out of the room. He started playing with A, grabbing hands, touching parts of her face but not with her legs at that point. He was initially in bed on his side, but when playing did not settle her he moved around with his hand on her to stop his movements causing her to roll off the mattress. His evidence about where and how he moved was contradictory, both in his oral evidence and in his evidence to the police (F26) and his witness statement (C34). He either stayed on the bed and moved around on the bed or got out of the bed and moved to the bottom or side of the bed and it was not clear whether he knelt on the floor or sat on the side of the bed.[34]Whatever position F ended up in relative to A on the bed, he was clear that he then attempted to wind A by moving her legs in a cycling movement, a technique that was accepted by the experts to be appropriate and unlikely to have caused the fracture if carried out without excessive force. His evidence about this to me was that he had only just started to move A’s right leg when he heard (or felt) clicking so he had not done more than attempt to move it at that point. This is also broadly what he told the police in interview, saying that as soon as he started moving her leg and it was elevated, he could hear clicking (F31). However, when he gave an account of his actions with A to the hospital on 9th November, he told them he “was ‘bicycling legs’, hips were clicking, then was inconsolable and not moving right leg” (MD74). He told the Trauma and Orthopaedics Consultant at the hospital that he “started doing bicycling movement, which is holding the baby from her feet and bent her knee towards her hip, one after another…Dad said while he was doing this bicycle movement he noticed A’s right thigh made a clicky noise and she started crying non-stop so they brought her to the hospital” (Z2). He then picked A up and this is the point that M came into the bedroom. He accepted when questioned by Mr Powell that he did not say to her something like ‘what on earth has happened?’, and that his first reaction was to start googling what to do with a baby with a dislocated hip rather than to ring 999 or take her to A&E. His evidence to me was that he suspected a dislocated hip based on previous experience of an acquaintance with an easily dislocated joint.[35]When being cross examined by Mr Powell about his actions at this point, he volunteered that he “already had an idea in [his] head at that point when they got to hospital difficult questions would be asked and might end up here [ie in court] but that this wasn’t driving [him] getting [his] daughter help”. He was clear that he was not thinking that either of them had done anything wrong, though, and his concern was that there was some underlying health condition that had caused it or some accident, though he did not ask M if there had been an accident. In answer to questions from Ms Wickham about why he had not asked M, he said that this might have been because he was worried about adding to her being tired and he might not have wanted to ask her because of fear about what she might say too.[36]F’s evidence to me was also that he had a conversation with M at hospital about his using ‘bicycle legs’ on A in the bedroom to wind her, but M’s evidence was that the first she heard about this was when F told the staff at the hospital.[37]Mr Powell also put to F that, during the 111 call with a nurse which followed the initial call to an operator, he told the nurse that A had had been restless most of the night (F95 line 22) but on both M and F’s accounts he had slept through the night and they had not had any conversation at this point. F said that M was mouthing this detail to him while he was on the call to 111. I have listened carefully to the recording, in which A can clearly be heard to be in considerable distress and crying and screaming inconsolably. Whilst it is clear that F first rang 111 from a separate room and A could not be heard, he must have then moved so that he was with M and A because A can be heard screaming and the operator commented on this (F87 line 25). During the second call, A can be heard throughout, but there is no pause in the answer that F gave to the nurse about A having been restless most of the night. Given the volume of A’s screaming at this point, it seems very unlikely to me that even close partners who read each other well would have clearly been able to communicate quickly that A had been restless most of the night and for F to relay that to the nurse immediately after the question was asked. The call with the nurse took place as a follow-up to the initial call, so it is possible that they had some conversation in between the two calls, but both were very clear that they did not discuss what had happened at all, even on the way to the hospital.[38]Although F said he was a deep sleeper, and M also confirmed this and that she was also more attuned to A’s waking and would thus wake when F would not in the night, it seems inherently improbable that if A had been screaming in the way that is heard on the call at any point during the night that F would have slept through this. And, of course, he and M were both very clear that he did not have his noise cancelling headphones (and would not normally have worn them in bed anyway) so this would not have prevented him hearing anything. He also did not have a migraine that morning (C238 parenting assessment and in evidence to me). He did say that if both the living room door and bedroom door were shut, he would not necessarily have heard A, and it is apparent from the initial part of the 111 call that he was able to be somewhere in the house where she could not initially be heard (MD1).[39]F gave an account of A exhibiting the sort of memorable distress that Dr Oates and Dr Rose described would be associated with the fracture when F told the Parenting Assessor that “A was crying, and this was a different cry to what they were used to when she has wet diaper (sic) or hungry” (C236). He had told the consultant Paediatrician at the hospital that “there were several clicks. He said he did not hear one loud click followed by a loud cry. After this he saw that her right leg was floppy and limp and she was clearly in pain as her crying had got louder” (E1). In his police interview, F said “as soon as I picked her leg up, well her legs up she…the crying got louder” (F6). M said to the police that she “laid her down on the bed next to [F] and, erm went to the toilet, erm, she wasn’t crying when I put her down but even…erm, soon after she seemed to be getting a bit grizzly and the crying seemed to be escalating” (F56). M said in her oral evidence to me that she did not remember A being more than fussy, or grizzly, during the time that A was with her during the night, something that she had also put in her statement (para 57 C113). There is thus no account from either parent of A exhibiting the sort of distress that she would have been likely to have shown in response to the “exquisite pain” of the fracture and as described by Dr Oates and Dr Rose, until the period after 8.30am when M placed A on the bed with F. Whilst M’s statement described A as grizzling, escalating to a cry and then scream (C115), it does not appear from her evidence either in that statement or to me in this hearing that she recognised a cry that was indicating something more than one of her usual needs until after she had taken A to the nursery and tried to feed her (C116). On the timings provided by each parent, and in view of the timing of the call to 111, this potentially would limit the period for the injury being caused to a few short minutes. However, as Ms Savvides submitted, on the evidence of both parents his opportunity to have caused the injury to A would also be in a very short window of time between sometime after 8.30am and approximately 8.55am when the first 111 call was made. This may make it less likely that the injury occurred in his care, but this is only part of the complex jigsaw of the evidence in this case. It is also clear from the Parenting Assessment that these are very loving parents who have been observed to handle A appropriately since she was returned to their care, and who are responsive to her needs.[40]There are notable gaps and inconsistencies in both parents’ accounts of what happened in the time before A was admitted to hospital on 9th November 2025. Gaps in terms of M’s “foggy” memory (which may be due to her health conditions exacerbated by stress). F in terms of where he was and what exactly he did with A’s legs in the bicycling movement, and whether he heard or felt clicking from her leg or her hip or hips. Their evidence that they did not discuss what might have happened either before the 111 calls, or on the way to the hospital is also something that potentially undermines their credibility. By F’s own account he was worried about the “difficult questions” he would be asked and what might happen, so it is odd that he did not ask M what had happened if he is right that he did nothing wrong. Similarly, if M is right that she did nothing wrong, then it is odd that she did not ask F what had happened when she came back into the bedroom or subsequently. I accept, as F told the Guardian, that he might not have wanted to ask for fear of what the answer might be, and M seemed genuine in her evidence to me that she wanted to know what had happened because she did not know. However, her lack of apparent challenge or question of F is difficult to reconcile with her stated desire to understand what had happened if she genuinely wanted to know what had happened and she was sure that she had done nothing. I also note that they found themselves experiencing what appears to have been extraordinary stress because of A having failed to sleep for several nights by this point. I also note that, as M told me, they are not very “talky people”. However, it seems more likely than not that a parent who knew that they had not injured A would have asked questions, partly because of the knowledge that they would be likely to be asked difficult questions by the hospital as F acknowledged. I have noted that M told the parenting assessor that she “questions herself till today to how the injury was caused. She thought maybe she was too aggressive when she was changing A’s clothes, or she had done something in her sleep that she was not aware of” (C235).[41]It is accepted in this case that there are various applicable factors from the list compiled by Jackson J in BR. The risk factors present from that list are:a. Social isolation for M after F returned to work.b. Parental stress and distress, including depression or other mental health conditions. The protective factors (as identified by the parenting assessment and evidence from the parents) present are: a. Supportive family environment b. Nurturing parenting skillsc. Stable family relationshipsd. Household rules and monitoring of the child.e. Adequate parental financesf. Adequate housingg. Access to health careh. Caring adults who can serve as role models or mentors I would add to the list of risk factors in this case, the parents’ own physical health conditions which are, as they accept, exacerbated by stress, fatigue and generally ‘overdoing it’, as M put it. It is accepted by M that she had had low mood since 2013, related to her underlying physical health issues, but she was not able to recall anything about experiencing more depression in April 2024 as noted in her medical records (MD509). M accepted in her evidence to me that, when she saw the Health Visitor for the six week check in October, she completed a questionnaire which captured that she was experiencing low mood (MD379). M told me that this was because she had a newborn, was tired, stressed, recovering from significant blood loss sustained during the birth on top of her pre-existing health issues and worried that she was doing everything she could for A. She explained that the reason she had not accessed the recommended mental health support was because it clashed with a mother and baby group, as set out in her statement at C87.[42]The Guardian, through Ms Wickham in her closing submissions, noted the demeanour of the parents in giving evidence to me. In view of M’s pending assessment for ASD I have borne in mind the guidance in the Equal Treatment Bench Book about how anyone with ASD may present and how that may differ from anyone who is neurotypical. I have also borne in mind that a judge should not normally place much reliance on the demeanour of a witness when giving evidence as there may be many reasons for this that are not evidentially significant.[43]I have also reminded myself of the guidance in R v Lucas – there can be many reasons for a witness to lie including shame, fear, misplaced loyalty, or mistake and just because a witness may lie about one aspect does not mean they have lied about other aspects, nor is it per se proof they have done what is alleged. As the caselaw also points out, memory can be fallible, and M also told me this in her evidence too.

FINDINGS

[44]In this case, it is not in dispute that A suffered a significantly displaced spiral fracture to her right leg, and this occurred in the 10 days prior to her admission to hospital on 9th November 2024. The medical and expert evidence overwhelmingly supports a conclusion that a significant rotational force was required to cause a spiral fracture in the largest bone in the human body. Such force cannot be precisely quantified but would be beyond normal handling of a baby of this age and would also be beyond simply ‘rough handling’ as the expert evidence also shows. M and F, via their advocates, raised the possibility of an unknown underlying cause in cross examination of the experts. The evidence of Dr Oates and Dr Rose was very clear that this was extremely unlikely. There is no anomaly in any of the subsequent in-depth medical examinations of A, including bloodwork, which would suggest the possibility of some hitherto unidentified health issue that would predispose her to such bone fractures. It is also very relevant that A has sustained no further injury or fracture from normal handling since 9th November 2025. So, whilst I am mindful as I must be that today’s medical certainty may change in future, it seems more likely than not that there is no underlying medical predisposition for A to suffer such fractures as a result of normal handling of her. It is also more likely than not that the fracture would not have occurred during normal handling or even ‘rough handling’ of A since it would have required a significant application of rotational force to her leg.[45]There is no evidence of any incident, or the sort of level of distress from A that can be heard on the 111 call recording, being observed by anyone else outside of the house prior to A being admitted to hospital. M had been out and about with A in the week of 4th November, including to see friends in a public place and to visit her family. M herself noted that A was handled by a variety of people in the days prior to the evening of 8th November and nobody noticed anything untoward (Parenting Assessment C235). It seems more likely than not that if A had been screaming in pain it would have been observed by someone else during those visits. Based on the evidence of their love and care for A (for example in the parenting assessment but also in the way in which they spoke of her in giving their evidence to me), it also seems more likely than not to me that as soon as either parent became aware of A exhibiting the sort of distress that would have followed the fracture occurring, they would have sought help for A and unlikely that they would have allowed her to experience that distress for any significant length of time. It is thus more likely than not that whatever caused A’s fracture occurred closer to the end of the 10 day window indicated by Dr Oates, and more likely than not that this was in fact in the window of time from the last time that A was seen by anyone else on the afternoon of 8th November, so around late afternoon, to the time that F made the 111 call at about 8.55am on 9th November 2024.[46]There is no dispute in this case that the list of potential perpetrators for the injury to A is M and F. On balance of probabilities, having carefully considered all the evidence before me, I cannot identify a perpetrator for A’s injury between M and F. There are factors identified above which undermine their credibility when they assert that they did not cause the injury in any way, I find.[47]In accordance with the relevant case law noted earlier in this judgment, I have considered whether there is a real possibility that each individual on the list inflicted the injury in question. These were new parents of a baby who had suddenly become much more challenging, leading to at least M having very little sleep in the days before 9th November. Each parent also had their own vulnerabilities due to their physical and mental health needs which would have added significantly to the stress and strain of dealing with A in the circumstances they were presented with that week, I find. Whilst the window for M to have caused the injury is significantly longer than that for F on their evidence, I find it unlikely that she would have allowed A to exhibit the sort of distress that would have followed the fracture as I have noted. It is also unlikely that A would have been as quiet as both parents described her to be on the way upstairs (F having woken at about 8.20am on his account so he would have been awake when M took A upstairs) or when placed on the bed. It is true that M told the parenting assessor that she was worried that she might have done something when changing A or in her sleep that she was unaware of, but she clearly was extremely tired, stressed and accepts there are clear gaps in her memory. On his account F does not have gaps in his memory but his evidence about what happened from the point that he woke up on the morning of 9th November is inconsistent and those inconsistencies are more than may be attributable to stress and the passage of time, I find, because they occur almost immediately in his not mentioning the bicycle legs to M at first and in relation to what he did and when relative to A. It is also clear that M and F are a very close and loving couple who would be less likely to believe that the other could have caused the injury to A. This may well have led to each being reluctant (‘scared’ was the word F accepted in cross examination) to ask the other what had happened. My analysis and conclusion on the evidence is that there is a real possibility that either M or F caused the injury in question at some point shortly before the 111 call and I cannot therefore exclude either from the list of potential perpetrators. I am, however, satisfied that, whilst the precise cause of the injury remains unknown and neither parent has disclosed a possible accidental cause (noting that they do not have to prove anything), it is more likely than not that whatever led to the infliction of this injury was reckless or negligent rather than deliberate. These are parents who clearly love A very much, have conducted themselves with quiet dignity as Mr Powell noted in closing, and have engaged fully with the expectations of the Local Authority and court to keep A safe since she was returned to their care. Despite this, the injury to A required the application of excessive or unusual force to her right leg, and whichever of the parents was responsible would have known that their actions were abusive.[48]Given the level of distress that A would have exhibited following the fracture, as demonstrated by the 111 call recording, and my finding above that the injury was more likely to have occurred towards the very end of the timeframe and this includes the time after F was awake, it is also more likely than not that the parent who did not cause the injury would see her distress and be aware that something untoward had happened to A. I have considered the fact that F rang 111 rather than, as put to him by Mr Powell, ringing 999 or taking A to A&E, but evidentially this is not significant in the context of first-time parents and heightened awareness of delays associated with A&E. There is also no allegation that M and F did not promptly seek medical attention for A in any event.[49]In relation to the schedule of findings, my findings are therefore that the Local Authority has proved on balance of probabilities all of the findings sought.

CONCLUSIONS

[50]I have noted several times in this judgment how clear it is to all concerned that M and F love A very much and present as committed to caring for her. I cannot speculate about what happened to lead to A being injured in their care, but she suffered a significant injury in what seems more likely than not to be some sort of momentary lapse on the part of either M or F, whilst they were under extraordinary pressure, the precise details of which lapse have not yet been disclosed. HHJ Eleanor Owens [11th June 2025] APPENDIX A SCHEDULE OF FINDINGS SOUGHT

HHJ Eleanor Owens

[1]The child, A, was taken into police protection on 12 November 2024. A was made subject to an emergency protection order on 15 November 2024 and then an interim care order from 22 November 2024 which has been in place ever since.[2]By reason of the facts alleged below, A had suffered significant harm for the purposes of the first limb of s.31(2)(a) of the Children Act 1989.[3]Further, and/or alternatively, A was likely to suffer significant harm for the purposes of the second limb of s.31(2)(a).[4]That significant harm, and/or likelihood of significant harm, was attributable to the parental care given, and/or likely to be given, not being what it would be reasonable to expect a parent to give for the purposes of s.31(2)(b)(i).[5]The particulars relied upon are set out below.[6]The ‘threshold criteria’ under section 31(2) are satisfied accordingly. Particulars relied upon Physical harm Presenting events

Particulars relied upon

[7]A was taken by her parents to hospital at 10.10am on 9 November 2024 where she was found to be in severe distress, crying almost inconsolably and not moving her right leg.[8]The initial account given by the parents on 9 November 2024 was that at 8.30am the father had been doing “bicycle legs” with A in bed when he noticed clicking, she then started crying, and he noticed she was not using her right leg. The mother said she was in the toilet when this event took place.

Injury

[9]The x-ray at hospital on 9 November 2024 showed a displaced spiral fracture of the midshaft of her right femur.[10]Clinical examination on 9 November 2024 also found associated swelling of her right thigh.

Timeline

[11]Clinical dating establishes that A’s injury was likely caused during the following window of time: 11.1 Radiologist: the fracture was acute and less than 10 days old at presentation on 9 November 2024[12]The timing of the causative event is known to at least one of the parents.

Mechanism of causative event

[13]A’s injury was traumatic and caused by a very forceful twisting or rotational action coupled with a compressive, or a pulling, force.[14]The forces required to cause the injury were significant and beyond those associated with normal childcare or rough handling.[15]The injury did not have a natural cause, and there was no relevant predisposition that contributed towards it.[16]A would have cried/screamed after sustaining the injury:16.1 a perpetrator or observer would have been aware that excessive or unusual force had been applied;16.2 a non-observer would see A distressed in the aftermath of the injury being sustained.[17]The nature of the causative action(s) is known to at least one of the parents.

Perpetrator

[18]A’s injury was non-accidentally inflicted, recklessly or negligently by either the mother or father.[19]The local authority will seek to establish that the perpetrator knows when within that window the injured A, what actually happened and that their actions were abusive.