London Borough of Y v M & Ors [2025] EWFC 232 (B)

[2025] EWFC 232 (B)

IN THE CENTRAL FAMILY COURT CASE NO: ZC24C50304

First Avenue House

42-49 High Holborn

London

Before HER HONOUR JUDGE ROBERTSON

IN THE MATTER OF

The London Borough of Y (applicant)

-v-

M (First Respondent mother)

FA (Second Respondent father)

FB (Third Respondent father)

C1, C2 and C3 (Fourth, Fifth and Sixth Respondents, by their children’s Guardian Erika Endlein)

Sarah McMeechan of counsel appeared on behalf of the Applicant

Allison Munroe KC and Ayesha Hasan of counsel appeared on behalf of the First Respondent

Sam King KC and Jemimah Hendrick of counsel appeared on behalf of the Second Respondent

Harinder Kaur appeared on behalf of the Third Respondent

Greg Davies and Alex Halliday (week 1) and Imogen Mellor (week 2) of counsel appeared on behalf of the Fourth, Fifth and Sixth Respondents

JUDGMENT – FINAL VERSION

DATE 24 JULY 2025

WARNING: 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.

Parties and applications

Between

London Borough of YClaimant

Respondent motherDefendant

Respondent fatherDefendant

Date 2025-07-24

[1]The children at the centre of this case are C1, a girl who is 7, C2, a girl who is 6, and C3, also a girl, who is 1. C1 and C2 are the children of the mother and FB. C3 is the child of the mother and FA. Prior to proceedings, the children were all living with M and FA.

Background

[2]The family were previously known to the London Borough of Waltham Forest in 2019 when C1 and C2 were subject to a Child Protection Plan. At that time they were living with their mother and having contact with their father, FB. Concerns related to domestic abuse. The mother and FB separated and concerns abated. The mother began a relationship with FA, and there was no involvement by the Applicant Local Authority until 29 April 2024 when the school informed them that C2 had a bruise to her face, and had said “Daddy hit me”. It is not in dispute that the children call FA “daddy”. The Local Authority conducted a s47 investigation which concluded that the concerns were not substantiated, but a Child and Family Assessment was recommended. Whilst that Assessment was still ongoing the baby, C3, then three months old, was taken to hospital on 21 May 2024 with very serious injuries including fractures to her scapula and clavicle and bleeding in her brain suspicious of non-accidental injury. She was stiff, and having seizures. She was fully resuscitated at Chelsea and Westminster Hospital then intubated and taken to Great Ormond Street Hospital (GOSH) for intensive care. At GOSH she received ventilation and ionotropic support. Fluid was drained from her brain to relieve the pressure. She was transferred to the Neurology/Neurosurgery ward, and from there back to Chelsea and Westminster for further supportive care.

[3]The mother went to the hospital with C3 on 21 May 2024. FA followed in a taxi with C1 and C2, and he returned home with them the same day to get them something to eat and get them ready for bed. The police accompanied him home, and after a short while in the house they arrested him on a charge of Grievous Bodily Harm with intent and took C1 and C2 into police protection. M was later also arrested for Grievous Bodily Harm and Child Cruelty. Both parents were released on bail. C1 and C2 have been in foster care since they were taken into police protection. Applications for Emergency Protection Orders and Interim Care Orders followed and it is those ICO proceedings which are now before the court. C3 was discharged from hospital into foster care on 10 June 2024 and remains there.

This hearing

[4]The Local Authority now seek a number of findings in relation to the injuries. In relation to C3, they seek findings as to the nature and number of the injuries, the causation, the dating of the injuries and the perpetrator of the injuries. There are two people in the pool of possible perpetrators, and they are the mother and FA. In relation to C2 the Local Authority seek a finding of that FA hit her and the mother knew that and lied about it, covering for him whilst being aware of his propensity for violence. This hearing has been the fact-finding hearing in relation to those allegations.

[5]This hearing has been an in person hearing with the following exceptions. The expert witnesses have attended by video link. Leading counsel for the mother attended and cross-examined three of the witnesses by video link. I permitted that because the case was adjourned from a previous fixture due to judicial illness and the new dates were given at short notice. Leading counsel for the mother was committed elsewhere during the first week of this hearing, but was able to extract herself for three key witnesses. On balance it seemed better to me to have her engagement on those terms than to have new representation for the mother at this late stage. Her junior, Ms Hasan, was here throughout and was able to represent the mother when Ms Munroe was not available. I also gave permission for the Guardian to attend remotely during the first week whenever she was able. She too was engaged elsewhere, and was only able to join from time to time. She attended during the second week.

[6]In this case the mother has been considered a vulnerable witness. She was provided with screens in court and a separate waiting room outside court on days when FB attended. She also had an intermediary throughout and ground rules were set by HHJ Sapnara on 8 May 2025, which were followed.

[7]I have had the advantage of a bundle, a supplementary bundle and a number of additional documents. In addition, I have heard oral evidence from:a. Charlotte Lynagh, previous Social Worker

b. Dr Thomas Savage, Consultant paediatric radiologist

c. Ms X, Teacher at the C1 and C2’s primary school

d. Professor Alistair Fielder, Paediatric Ophthalmologist

e. Mr Jayaratnam Jayamohan, Consultant Paediatric Neurosurgeon

f. Dr Mahesh Yadav, Consultant Paediatrician

g. The mother

h. FA

The law

[8]The relevant law is encapsulated by Baker J (as he then was) in A Local Authority v(1) A Mother

(2) A Father

(3) L & M (Children, by their Children’s Guardian)

[2013] EWHC 1569 (Fam)

in which he says this: 45. First, the burden of proof lies at all times with the local authority. 46. Secondly, the standard of proof is the balance of probabilities. 47. Third, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation. I have borne this principle in mind throughout this hearing. 48. Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof. 49. Fifthly, 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. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. 50. Sixth, cases involving an allegation of non-accidental injury often involve 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. 51. 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. 52. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas

[1981] QB 720

). 53. Ninth, as observed by Dame Elizabeth Butler-Sloss P in an earlier case:

"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." 54. 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. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother's two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation. In the course of his judgment, Judge LJ (as he then was) observed: "

What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge." 55. With regard to this latter point, recent case law has emphasised the importance 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

at paragraph 1 :

"Where the 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." 56. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam) , Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed, "

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 causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.” 57. 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. 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."

[9]That last sentence has been clarified by King LJ in Re A (Children) (Pool of Perpetrators)

[2022] EWCA Civ 1348

in which she said: 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.

[10]The role of the medical expert and the judge are distinct. It is for the court to weigh the expert evidence against its findings on the other evidence such as descriptions of a child in the hours or days leading up to the collapse. In cases concerning alleged non-accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision. I am able to reach a conclusion which is different from the conclusion of the medical experts on the basis of the totality of the evidence (A Local Authority v K, D and L

[2005] EWHC 144 (Fam)

My assessment of M and FA

[11]I heard a full day of oral evidence from each of M and FA and had ample opportunity to come to a view about them. I found both of them cooperative, sincere and both appeared, in general, credible. And yet both agree that the injuries to C3 were non-accidental, each of them says they did not do it, and each accepts that if they did not the only other person who could have done it was the other. If that is right they can not both be telling the truth. I am therefore left with the view that I am not greatly assisted by either their demeanour or presentation, and other evidence must guide me in my task. I begin with a consideration of the bruise to C2’s face. C2 – the bruise to her face C2’s narrative

C2 – the bruise to her face

[12]On 29 April 2024 C2’s class teacher noticed a bruise on her face. She asked her “What happened to your face?” and C2 said “my dad hit me”. She then tapped herself, not on the cheek where the bruise was, but on her forehead. The teacher pointed to her own cheek and said “what about here?”. C2 said “my dad hit me”. The teacher asked “why did it happen?” and C2 said “in my bed, I was naughty, my dad not nice to mummy, me”. The teacher said “OK, thank you for telling me”. This account is given in the teacher’s statement dated 15 May 2025. It is based on the CPOMS account (CPOMS is the system for logging safeguarding information). In oral evidence the teacher gave the same account again and confirmed that she wrote up the conversation on CPOMS within 10 or 15 minutes of it happening, and that what she had written on CPOMS was the conversation exactly as it had taken place. The CPOMS entry is timed at 11:37 am. The account is a clear, consistent and professional account. I have no reason to doubt that account, and I accept it.

[13]In oral evidence the teacher confirmed that she then went and spoke to the school designated safeguarding lead (DSL) who wanted to talk to C2 herself. This was the second account given by C2 and was recorded on CPOMS at 11:56 am the same day, this time by the DSL. It records that she and the teacher spoke to C2. The DSL said “I want to talk to you about the bruise on your face”. C2 replied “Daddy hit me hard, Daddy sent me to my room”. The teacher asked “Did daddy send you to your room to sleep?” and C2 said “Daddy sent me for time out. Mummy said Daddy smack my bum. I did something bad, I ignored Daddy and he sent me to my room”.

[14]There are a number of difficulties with this second account. Firstly, there is a suggestion that the class teacher should not have been in the room when the DSL spoke to C2 because of the risk that C2 would feel obligated to repeat whatever she had said to the teacher, whether it was true or not, but just because she had said it in front of her once already and it would be difficult therefore to depart from that version of events. It is common ground that C2 has speech and language difficulties and has trouble sometimes expressing herself. C2’s teacher said she knows C2 well (she had taught her for 8 months by then) and it was necessary for her to be in the room to help C2 communicate. Another difficulty is that in oral evidence it was explored whether C2 had actually said “I ignored Daddy”, the suggestion being that the word “ignored” would have been beyond her limited vocabulary. In oral evidence C2’s teacher said that C2 had not used that word, and that must cast some doubt on the accuracy of the CPOMS recording. A further problem is that in the second conversation C2 talked for the first time about “smack my bum”. She had not mentioned her bottom in the original conversation with her teacher. The CPOMS record concludes by saying that C2 was very consistent in her claim that Daddy hit her hard and pointing to the bruise.

[15]The school then contacted social services. There was a strategy meeting with the police, and the social worker and a newly qualified colleague then went to the school and spoke to C2 with her class teacher also present. It is recorded in the s47 investigation report that when C2 was asked about the mark on her cheek she made a hitting motion towards her face and said it was “Daddy” and said that “daddy smacked bum hard”. She said her belly and her bum were hurting and said her bottom had a cut and was bleeding. She said there was a mark on her tummy but declined to show it to them. She said it happened last night in the bedroom, and when asked if anything like it had happened before said no. She said when she came into school she told the teacher straight away. This last point is in direct contradiction with the teacher’s evidence, which she repeated and clarified in her oral evidence, that it was not right that C2 had come in and told her straight away. In fact the teacher had only noticed the mark sometime after 11am when they were getting ready for lunch, and she was the one who raised it with C2, not the other way round.

[16]It appears that as a result of the strategy meeting two police officers from the Child Abuse Investigations Team then arrived and they then spoke to C2. This was the fourth conversation with her about the bruise. The social worker clarified in oral evidence that the people present for that interview apart from C2 were herself and the two police officers only. There are no notes available of that interview, but in the s47 investigation report the social worker says C2 repeated that the bruise had been caused by being hit by her Dad. On that occasion she did show them her tummy, and said it was hurting and asked for a plaster. There was no observable mark on her tummy.

[17]C2 underwent a video recorded interview on 24 June 2024. She was utterly distracted, was very clear she did not want to talk about the allegation, she was climbing on furniture, going to the door to try to get out, throwing pens and at one point even slapped the social worker on both cheeks. She did not want to be there. She did not cooperate. She did not repeat the allegation.

[18]The police arranged a second VRI on 5 September 2024. The interview with C2 does not focus on the bruise to C2 but in general questioning C2 said FA did not punch her. This interview, though, and the interview recorded on the same date with C1 are disjointed and difficult to understand, with both children being distracted and giving at times contradictory or inaccurate information.

C1’s evidence

[19]C1 was spoken to on 29 April 2024 at school, with the social worker, a second social worker and the class teacher present. She was asked whether anything happened yesterday and said that C2 wet the bed and that “Daddy was angry yesterday”. C2 was then spoken to again by two police officers. She was asked about the mark on C2’s face and she said C2 had hit herself, and demonstrated a falling movement onto a surface. She did not mention her dad at all.

The mother’s narrative

[20]The s47 investigation report records the decision that mother and FA needed to be spoken to separately about the bruise. The LA, FA and M have all confirmed that that is what happened and that neither of them knew in advance that the conversation was going to be about a bruise. The record of the conversation with the mother is in the s47 investigation report. It records M as having said that C2 is an accident prone child and always gets bruises from falling over. She was aware of the mark on C2’s face and it came from her falling over on the way to a party on Saturday. C2 had come out of the house with different shoes on which made her trip over. She denied that she or FA ever hit the children and said that was not a form of discipline they use. She said children sometimes make things up and this was not the first time C2 had said something that was not true. She said she had not observed any injury on C2’s bottom, but she declined to give consent for a child protection medical given that the injury was very small and she felt a medical was unnecessary.

[21]In her statement of 6 September 2024 the mother confirms that on 27 April 2024 C2 put on one of her shoes and one of C1s shoes before going to a party. She said C2 tripped on the way home, because of the shoes. She hit her cheek but did not seem hurt as she was more excited about getting her party bag. She says on 29 April 2024 FA went to get the girls from school, and when he got there was told he could not collect them as a referral had been made. She rushed to the school and spoke to social workers there, and again at home later in the evening.

[22]In oral evidence, the social worker confirmed that that was what had happened and confirmed that the mother told her during the interview at school that C2 had tripped over on the way home from a birthday party on 27 April 2024 because she had one of her shoes on and one of C1’s.

[23]In oral evidence the mother confirmed the fall was on the way home from the party. She fell forwards with her hands in front of her and underneath her, but she landed with her cheek on the grass. There were no marks on her hands or knees or anywhere else. C2 had wanted her to take her to the park but she had refused because she was worried she would trip and fall again, given the different sized shoes. In her first statement and in oral evidence she said she did not notice the mark on C2’s cheek until the next day. This contrasts with the evidence of FA who told the social worker on 29 April 2025 that the mother had pointed out the bruise to him when she got home from the party. The mother was unable to clarify this point in oral evidence.

FA’s narrative

[24]The initial conversation with FA took place on 29 April 2024 without police officers present as the Police waited to speak to him under caution. Again the conversation is recorded in the s47 report. FA told the social worker that he knew about the bruise but didn’t know the ins and outs as he wasn’t there when it happened. The mother pointed it out to him when she got back from the party. He denied ever raising a hand to the children and said he had been playfighting with them the night before, spraying them with a water gun with everybody laughing and shouting. He said there had been a pattern of incidents in school where C2 had claimed others had hit her or she had hurt or hit others, and it had turned out not to be true. He admitted that he sometimes hit the girls playfully on the bottom with very little force during a playfight.

[25]In his statement of 17 June 2024 FA confirmed that he was not there when the bruise was sustained, saying that it happened when the mother and C2 were returning home from a party. In oral evidence he said he was not 100% sure whether it was on the way to or from the party. He said he had never used physical discipline.

[26]The mother says he has in fact used physical discipline on at least one occasion. The mother’s evidence in her first statement was that C2 had twice said she was smacked by FA but she had not seen any marks on C2. In her second statement, and in oral evidence, M said that on one occasion C2 had come to her crying and saying that FA had hit her on the bottom as a punishment for destroying M’s make up box, and that the mother had seen a slight redness on C2’s bottom. She said she felt shocked and upset and talked to the father who promised not to use physical chastisement again.

[27]This was put to FA in cross examination. He accepted the account save that he said that it was a very light tap, with no force behind it. He had been calm and relaxed at the time and explained to C2 what she had done wrong. He could not explain the slight redness which the mother said she saw. H said he had told the social worker that he had never used physical chastisement because that one incident had slipped his mind at the time he was asked the question.

[28]On another occasion, M says C2 told her FA had hit her as chastisement for touching C3’s milk bottles. On that occasion M had not seen a mark, and FA had denied hitting her. He continued to deny it in his oral evidence.

[29]It seems to me that there is not enough evidence for me to make a finding that FA hit C2 in relation to the milk bottle incident. There is no first hand witness, no mark found on C2, no admission from FA and I remind myself that there is evidence from the school that C2 did not always tell the truth. However the balance in my view lies the other way in relation to the make up box incident. In that case FA admitted striking C2. The mother was a first-hand witness to the redness – albeit that she did not mention it in her first statement. It seems to me more likely than not that the incident took place, and that FA simply used rather more force than he thought, or more than he remembers, or more than he cares to admit. I remind myself that just because he has used physical chastisement on one or more occasions it does not mean that he caused the bruise to C2’s cheek.

[30]FA maintained his denial of causing the bruise in oral evidence and maintained that the mother had told him about C2’s fall in the evening of the day it had happened.

School evidence

[31]It is recorded in the s47 investigation report that the school confirm that both C1 and C2 are accident prone and often hurt themselves in school. The teacher confirmed this in oral evidence that she had more accidents than other children. The s47 investigation also recorded that there was a recurring theme when other children were involved that C2 tended to “change her story about events that have happened”. Again the teacher was asked about this in evidence and she confirmed it, and said this was her own observation of C2. She said C2 did not do this all the time but was more likely to when she had done something and did not want to be in trouble from saying what really happened. She would not be drawn on whether C2 told fibs more than other children.

[32]In a balanced analysis, which recognises the risks in terms of C2 having had bruises before in what may be an emerging pattern, and in terms of C2 having been consistent in her allegation, the s47 investigation concludes that the concern is not substantiated. There are a number of reasons including the fact that the parents gave consistent accounts of the bruise independently of each other, that the fall itself was part of a wider pattern of being accident-prone as confirmed by the school, the fact that the children have made no further allegations and the fact that the parents appeared to have good insight into C1’s and C2’s additional needs and had made the relevant referrals. Information gathered from other agencies suggested that all three children were well cared for by their parents. In my view this was a reasonable conclusion based on evidence and analysis. There was nothing in the social worker’s oral evidence to undermine the conclusion reached at that time: indeed the conclusion of the s47 investigation was if anything strengthened, for example, by her evidence that she had seen that C1 and C2 did indeed have the same shoes in different sizes and that it would have been very easy to put on one of each size, as the mother asserts.

Father’s flashes of temper

[33]The Local Authority allege that FA exhibits flashes of temper. They rely on an incident where one of the children spilt ketchup on the living room carpet and he could not get the stain out. He threw the cleaning spray bottle and it hit the television. They say that shows him becoming angry about quite a small thing, and not being able to control his emotions. FA admits throwing the bottle and says it was out of frustration but says he threw the bottle behind him a short distance and it happened to strike the television. He did not throw it at the television. It is the mother’s evidence that it hit the television hard enough to damage it in such a way that there were two lines down the screen forever afterwards. I come to the view that FA is minimising this incident. He may not have aimed at the television but he clearly threw the bottle with some force in frustration in a moment of loss of control.

[34]The Local Authority further suggest that when FA hit C2’s bottom and made it red he had lost control. FA denies it, saying it was a “calmful tap”, although in oral evidence when pressed he volunteered “If I’m honest it was a spur of the moment action”. That seems to me to contradict his earlier evidence about it being calm and may point to a further loss of control in him.

[35]The Local Authority further suggest that FA lost control of his emotions on 29 April 2024 when he arrived at the school. When he got there he was told he could not pick up the children as usual but was not told why. The school CPOMS entry says this:

“C2’s Dad waited outside the office whilst a meeting was taking place. Dad is outside on the phone to mum. C2’s dad informed mum if he does not get any information within 10 minutes he will go through the doors himself. He explained whilst being on the phone that if XX [teacher] has anything to do with it he will kick off massively. He said quote “it’s funny how we had a meeting and not this has come about”

. Dad then went on to say they have 10 minutes, if they do not let me through I will go through myself. He explained that he would jump through the hatch to the office. He then went on to explain that it is very lucky the “kids have gone home and he is happy to kick the doors down”

[36]The mother was asked about this conversation and she said she could not remember it. FA was asked about it and he accepted most of the conversation as recorded although he did not remember saying he’d kick the doors down. He said that all of it had been said in a calm manner and that they were not threats. He was not shouting but was saying it loudly enough to be heard because he wanted to get someone to come and give him information. He accepted that threats can be intimidating even if delivered in a calm voice.

[37]It is clear on the evidence that this conversation did take place and I accept the CPOMS entry as accurate, having no reason to doubt it. It is clear that FA intended his comments to be heard. The nature of the comments is intimidatory and threatening. It seems to me more likely than not that FA was angry and was expressing his anger about not being able to see the children and not being told what was going on. It is understandable that he would be frustrated and maybe even angry in that situation: not all anger is unreasonable. But his means of expressing it was intemperate and not well managed. It was not reasonable for him to say those things, and in my view they do amount to an expression of unmanaged anger. The fact that he apologised afterwards does not change that. If anything it reinforces the fact that he knew his behaviour was unacceptable. I accept that this was an example of FA not being able to control his angry emotions and lashing out verbally to those around him.

[38]I further note that in her ABE interview on 5 September 2024 C1 refers to FA as being “really mad” at her and C2, and on 28 April 2024 C1 told the social worker that “daddy was angry yesterday”. I treat that evidence with some caution given that the girls (C2 in particular) are sometimes unreliable and difficult to understand, but it is notable that they have never said anything similar about their mother.

Analysis

[39]The following evidence supports the conclusion that the parents are telling the truth and that C2 had a fall:a. C2’s allegation was somewhat inconsistent even on the day she made it. She said she told the teacher straight away whereas the teacher says she raised it with C2, and the teacher’s evidence is to be preferred as she made a recording of the event immediately. She initially pointed to her forehead as the place where he allegedly smacked her instead of to her cheek. C2’s allegations extended to having been injured in the tummy and the bottom, and the bottom bleeding. There was no evidence for any of those nor any evidence that they were convincing allegations at the time – if the social worker had any doubt about it she would surely have insisted on a medical examination. C2 did not substantiate her allegations in either ABE interview, and they were not supported by C1 in her ABE interview.

b. The school says C2 has a habit of changing her story about things

c. The parents were interviewed separately before having notice that the matter under discussion was the bruise. They independently gave accounts consistent with each other.

d. Falling onto grass is likely give a bruise rather than a graze or cut, and would be likely not to leave marks on the hand. The parents’ narrative is internally consistent from that point of view.

e. The social worker saw that there were indeed two pairs of shoes identical save for being different sizes

f. The school confirmed that C2 had a propensity to have accidents and to bruise to a greater extent than other children

[40]The following evidence supports the conclusion that the parents’ evidence is not true and that the bruise was caused by FA:a. C2 repeated the allegation in all four of her interviews on 29 April 2024. There was consistency to that extent.

b. The parents had been questioned by the school and social services before about bruises to the children. They might well have known or feared they would be asked about C2’s bruise that day and could have concocted a story in advance.

c. FA has used physical chastisement before and this may be part of a pattern of behaviour for him.

d. FA does have flashes of temper exemplified by throwing the spray bottle which hit the television and the threats made outside the school office

[41]On the evidence so far analysed I conclude that it is more likely than not that the parents are telling the truth about the bruise. In my view the unreliability of C2’s evidence weakens it to the extent that it is narrowly outweighed by the coherence and consistency of the parents’ evidence. However I am mindful that I must not consider evidence in separate compartments. When I have concluded my analysis and made my findings in relation to the injuries to C3 I will look again to see whether any of those findings would cause me to reconsider my view of the injury to C2.

C3: The injuries

[42]The Local Authority plead that prior to admission to hospital on 21 May 2024 C3 had sustained the following significant injuries:a. Extensive brain haemorrhages featuring i. Chronic subdural collections ii. Acute subdural blood iii. Subarachnoid bleeding

b. Fracture to the left clavicle

c. Fracture to the left scapula

d. Extensive retinal haemorrhages in the left eye.

[43]There is agreement amongst the experts that these are the injuries. That evidence is not challenged. In addition Professor Fielder now says that there was a perimacular fold which indicates that the retinal injuries are at the most severe end of the spectrum and can not be explained by any medical cause. He was challenged as to why he had not spotted it earlier and replied that that is the reality of clinical life: when you look at something again you see something that you did not see before. He said in this case the perimacular fold was subtle but in his opinion it was there and he said he had no doubt. It did not change his view as to causation but only as to severity. No party has offered any further challenge to this view, and I accept it. I therefore make the finding that those were the injuries suffered by C3 prior to admission to hospital on 21 May 2024.

Injuries to the brain and eyes

[44]Dr Savage and Mr Jayamohan agree that the scans show the presence of old blood and more recent blood. They both opine that that points to there being at least two separate bleeds purely in relation to the brain injuries. That is not challenged and I accept it. What is harder to understand is when and why those bleeds happened.

Chronic subdural bleed

[45]Mr Jayamohan in his report concluded that the chronic subdural collections of blood were “at least two weeks old, on balance 3 weeks”. In oral evidence he expanded on that. He said the size of the collection and the appearance of the blood on the X-rays caused him to date the chronic subdural bleed at least two weeks old, but that he also had to take into account the clinical changes. He was particularly interested in the changes to C3’s head circumference and had plotted a graph of the changes. It was not clear whether C3 had been born prematurely, and so there was one set of data assuming she was and another assuming that she was not. It made no difference which set was used providing the same set was used throughout because what mattered was the changes, and they were the same in both cases. Using the uncorrected date of birth (i.e. assuming C3 was born at full term) her head circumference at 8 weeks was on the 50th centile. At that point her head was decreasing in size, and no swelling was evident. Mr Jayamohan took the view this meant that the incident which caused the bleeding and subsequent swelling either had not yet happened or had happened recently. If it had happened before C3 was 7 weeks old, the swelling would have started by week 8 and the head would have been getting bigger. It wasn’t, and so 7 weeks old was the earliest the incident could have happened. That is 2 April 2024.

[46]On 21 May on arrival at GOSH (when her uncorrected age was 14 weeks) C3’s head circumference was 45 cm, which is significantly above the 99.6th centile. 30 mls of fluid was drained to take pressure off the brain. It was Mr Jayamohan’s view given in his report that it would have taken at least 2 weeks and more likely 3 weeks for the subdural collections to have grown to that extent and so the incident which caused the bleeding would have been at least three weeks prior to presentation on 21 May. That is 30 April. Thus for Mr Jayamohan the window for the incident which caused the chronic subdural collections was 2-30 April 2024.

[47]An alternative hypothesis was that the chronic subdural bleeds could have been a birth injury. Both Dr Savage and Mr Jayamohan accepted that subdural haematomas can be caused at birth but in his report Mr Jayamohan said that birth subdural haematomas were likely to be reabsorbed within a month, and that there were no reported cases where such injuries had gone on to become chronic. His own view was that birth-related subdural bleeding remaining and becoming chronic probably did happen, but it was very rare. In this case the fact that the size of the head at birth had reduced by 8 weeks old essentially excluded a birth-related subdural haemorrhage which had become chronic, because if that had happened the head size would have increased, not decreased. Dr Savage agreed that birth injury was ruled out.

[48]It was accepted on behalf of FA that the chronic subdural haemorrhage cannot be explained as a birth injury. The mother has not challenged the medical opinion on this issue, and I have seen no other evidence to contradict it. I accept that birth injury is ruled out in relation to the chronic subdural bleed and I accept Mr Jayamohan’s view that the window for the incident which caused the chronic subdural collections was 2-30 April 2024.

[49]Dr Jayamohan said that a significant energetic or traumatic event outside normal handling would be needed to cause the injury, but the symptoms may not have been hospital-level at the time of the injury.

Chronic subarachnoid bleed

[50]Mr Jayamohan explained that subarachnoid bleeding occurs one layer further into the brain than the subdural layer. Unlike subdural bleeding, it is an irritant to the surface of the brain and a baby who had suffered it would be likely to present as irritable and unwell. In his written report Mr Jayamohan says that if a subarachnoid haemorrhage had been present for a time period such as a few days, “it would have been expected to be sufficiently irritating to the brain to cause an unwell child, off feeds, irritable, not wanting to sleep, perhaps crying, more than usual over the previous days even if she was sick enough to need medical attention from the point of view of a carer”. In relation to newborns, the behaviour would be the same but also jittery and not liking being handled.

[51]In his report Mr Jayamohan said he had found on the scans evidence of subarachnoid bleeding in the form of subarachnoid staining which was more than 10 days old. He ruled out the possibility of it being a birth injury saying that the symptoms described above of an unwell jittery baby were not his understanding of how C3 was as a newborn. He said the mother was a third-time mother and so very experienced, and that the health visitor reviewed C3 at 10 days old. He said it was unlikely they would both have missed the jitteriness, and he thought C3 would have shown it if she had birth-related subarachnoid haemorrhages. His evidence on this point that has not been challenged and I accept it. Again, in relation to the mechanism for the injury, having ruled out birth related injury Dr Jayamohan said a significant, energetic or traumatic event outside normal handling was needed.

[52]In terms of timing, he said the chronic subarachnoid bleed was at least 10 days old. It could have occurred at the same time as the chronic subdural bleeding, or not. He was not able to be more specific about the timeframe for this injury. Clearly the time frames for the two bleeds overlap. I conclude that the injury which caused the subarachnoid staining could indeed have been the same injury which caused the chronic subdural bleeds, or could have been from a separate injury. I find therefore that C3 suffered at least one significant inflicted traumatic incident prior to 30 April 2024 and possibly more than one.

Acute subdural bleed

[53]The experts agreed that there had also been a recent subdural bleed. Mr Jayamohan and Dr Savage concurred that this could have been a re-bleed caused by normal handling. The colour of the blood on the CT scan persuaded Mr Jayamohan that the fresh subdural bleeding was less than 10 days old. FA suggested a mechanism for the rebleed as being an incident where he accidentally pushed the buggy with C3 in it into a pot hole in the road and she received a bump. In his statement he said that occurred on 15 April 2024. That was more than 10 days before the CT scan and could not therefore account for the most recent rebleeding. At the start of the trial FA gave instructions that the incident may have been considerably later, during May. He said in oral evidence that he had never been 100% sure of the date, but there is no mention of that doubt in his statement where he says quite simply “On or around 15 April 2024 I took C3 out in her pram”. It was put to him that he was now changing his evidence about the date because it did not fit with the expert view of the timing of the subdural fresh bleeding, and he denied that, but his denial was not convincing or substantiated with any real reason or explanation. I find that the incident may have caused subdural rebleeds on or around 15 April 2024 but it was not responsible for the fresh subdural blood seen on the CT scan on 21 May 2024 as being less than 10 days old.

[54]I am not sure much turns on that. The evidence as to the fresh subdural bleeding is that, unlike the original subdural bleed, it could have been caused by normal handling. The evidence also is that the carer may not have seen any symptoms to alert them to the injury at the time. It is my view, based on that evidence, that the presence of fresh subdural blood in the context of the original subdural bleeds is not probative of a fresh trauma to C3 in the 10 days before admission to hospital, although the possibility of a traumatic event causing that fresh bleeding remains.

Acute subarachnoid bleeding

[55]There was also evidence on the scans of fresh subarachnoid bleeding. Mr Jayamohan was clear in his written evidence that this bleeding was also less than 10 days old at the time of the CT scan. In written and in oral evidence he was unequivocal that this could not have been caused by rebleeding of the chronic subarachnoid haemorrhages. He explained that subarachnoid bleeds occur in a different place from subdural bleeds, and create a different form of scarring. The scarring that is left is an iron stain. Scarring in the form of blood vessels that can rebleed does not occur. Dr Savage allowed a little more flexibility on this question. He said it was seen exceptionally rarely when the bleeding is in a newborn. It remained the view of both Dr Savage and Mr Jayamohan that in this case it was more likely that the fresh subarachnoid blood was caused by a traumatic incident not more than 10 days before the CT scan. I accept that view for the following reasons. Although it is, on Dr Savage’s evidence, possible for there to be a rebleed of a subarachnoid haemorrhage, he said it was very rare and found in newborns. C3 was by this stage not a newborn. She was three months old. The evidence of her chronic subarachnoid bleeds was indeed in the form of iron staining as described by Mr Jayamohan, and Mr Jayamohan was able to give a solid explanation for why subarachnoid rebleeds were not seen, namely the lack of the formation of scars in the form of blood vessels capable of bleeding. I come to the conclusion on the basis of the radiological evidence alone that there was a traumatic event within the period of 10 days before the CT scan which caused the acute subarachnoid haemorrhages.

Timing of the acute subarachnoid bleed

[56]There is however other evidence to consider before coming to a final view as to the timing of the acute subarachnoid bleed. I heard a great deal of evidence from the parents about the sequence of events on the morning of 21 May 2024 and some of it was contradictory. Some of it, however, was clear. The mother was very clear that she got up early and gave C3 her normal feed at 5am, and that she drank that feed and went back to sleep. She fed her again at 9am and she went on to her play mat. She was babbling, smiling and had some tummy time. She got tired and cried a little, but was soon settled for nap in her cot. The mother says she made up a third bottle and left it for FA to feed to C3 when she woke from her nap, and then she and C2 went together to the GP for an appointment which the mother had there at around 1pm.

[57]FA’s account is slightly different. He says he went to work around 5.30am and returned at about 10am. He says he tried to feed C3 her third bottle before being put back to her cot, but she did not want the bottle. She fell asleep in his arms and he put her in her cot.

[58]What both parents agree is that up until that point she was her normal, happy, smiling, babbling, easy-going self. The only sign of being in any way unsettled was that she only drank 1-2 ounces of her third bottle before going for her nap. That does not seem to me to be significant in the context of her having drunk two full bottles already that day and being easily settled into her normal late morning nap afterwards. There is no indication that she was exhibiting the symptoms I have set out above and which Mr Jayamohan would have expected to see in a baby with a fresh sub-arachnoid bleed which had been present for a few days.

[59]This evidence was probed in cross-examination in relation to the question of whether C3’s presenting symptoms were likely to have been caused by seizures or encephalopathy. Encephalopathy is a disfunction of the brain which could have different causes but in this case according to Mr Jayamohan would be a change after trauma. Seizures are an electrical dysfunction which can start in one part of the brain and then spread. They are not a widespread dysfunction of the whole brain caused by a traumatic event. Seizures and encephalopathy can be hard to tell apart because both give rise to changes of physical movement, jerking, being stiff and having abnormal breathing – in other words all the symptoms shown by C3 before the ambulance came. Mr Jayamohan was not able to say from the symptoms which it was. If it was a seizure, it could have been caused by subarachnoid blood which could have been present from, say, the night before. If that were the case he would have expected the irritability symptoms of not feeding and not being well to have been present. As I have set out above they were not present and that indicates that it is unlikely the subarachnoid bleed took place significantly before C3’s collapse. In cross examination Mr Jayamohan was asked whether the fact of C3 being able to feed earlier in the morning and then subsequently presenting with the symptoms helped him with the issue of timing, he said “If that is the change from well to unwell, that would suggest it is an encephalopathy type event, so you move to closer to the time of the mother leaving. If C3 is well then, and then becomes very unwell out of the blue, that suggests encephalopathy and the timing of the event would be when the change occurred”. I accept this evidence and find that the significant traumatic event which caused the acute subarachnoid bleeding happened at the time of the collapse, or very soon before it.

Retinal haemorrhages

[60]Professor Fielder in his report identified multiple retinal and preretinal haemorrhages – more than can be counted – extending across the retina of the left eye from the optic disc to the periphery. They were small to medium in size, many with white centres, lying within and in front of the retina. There was a large preretinal haemorrhage at the right macula. He did not find any flame haemorrhages which are the first to resolve, and originally said that suggests an event more than 3-5 days before 22 May. He said the medium sized haemorrhages were likely caused within 10-14 days of 21 May. He excluded birth trauma on the basis that birth haemorrhages would have resolved by the time of the scan, and concluded the haemorrhages were more likely than not non-accidentally caused because there were more than could be counted, because of their distribution across the retina and because no compatible history of accidental trauma had been put forward. The non-accidental nature of these injuries has not been challenged.

[61]At the experts’ meeting he raised for the first time the suggestion that there was a perimacular fold. He explained that what had happened was that there had been extreme haemorrhaging in the macular region and that had raised the retina to form a little hill at the macula. The perimacular fold was a rim looking round the base of that hill, marking the outer boundary. He said there is no medical cause for such an injury, and said it was an indication of extreme severity. It placed the injuries at the very most severe end of the spectrum. He held to that view in his oral evidence.

[62]He could not say whether the haemorrhages had been caused by a single traumatic incident or more than one but said it was clear there was at least one. In oral evidence his evidence about the timing of the haemorrhages was confusing, but he clarified in writing after his oral evidence that his view was the haemorrhages were most likely caused 1-7 days before the scan. The scan is dated 22 May 2024, thus the retinal injuries are most likely to have occurred between 14-21 May 2024. Professor Fielder states that it is highly unlikely that the forces required to cause retinal haemorrhage in a child less than two years of age would be generated by a reasonable person during the course of even rough play or an attempt to arouse a sleeping or apparently unconscious child. He says in his opinion the haemorrhages could not have been caused by normal, or even rough, handling. Dr Yadav said the injuries would have been caused by acceleration or deceleration and that the perpetrator would have been aware of significant trauma. He said the action would have had to be energetic, significant or traumatic. He maintained that those were accurate descriptors.

[63]I come to the conclusion that the retinal haemorrhages were caused by one or more traumatic events in the time period between 14-21 May 2024. That is on the basis of the unchallenged medical evidence.

Shoulder fractures

[64]I come then to the final two injuries, the shoulder fractures. C3 was found to have fractures to her left shoulder with breaks in both her clavicle (collarbone) and acromion (a part of the shoulder blade). In his report Dr Savage placed both injuries as having occurred between 3 and 17 May 2024.

[65]At the experts’ meeting Dr Savage said he thought they occurred most likely within 10 days of the scan. He went on to say he thought it was likely the clavicle fracture was closer to four days old. He said the fractures were likely to be linked, and suggested a mechanism of forceful handling such as the child being flung or pulled by the arm. He said the same mechanism could account for the cranial injuries. Overall he said the constellation of injuries pointed to severe non-accidental trauma.

[66]In oral evidence he was challenged robustly about the different time scales he had given. He was asked to explain what piece of evidence had caused him to change from saying the fractures occurred in the 3-17 May window to saying the fractures were nearer to 4 days old. He said it was his review of the first X ray and then the second one. It is right to say that those were available to him when he wrote his original report. It is said on behalf of FA that Dr Savage was inconsistent but I do not see that he was. His emphasis shifted: nothing more. He originally gave a window for the injuries. After reviewing the X rays he said it was nearer one end of the window than the other. It seemed to me that his evidence that it was “nearer to 4 days” was misunderstood. He clarified in oral evidence that he was not saying the injury occurred 4 days before the images were taken, but he was saying it was nearer the 4 day end of the window than the three week end of the window. As he pointed out, even 10 days before the scan was nearer the 4 day end of the window. He was not ruling out the injury being 10 days before the scan. He accepted that there was uncertainty in dating fractures, particularly rare fractures such as the fracture of the acromion, but he was clear that the healing on the long clavicle bone meant that it was at least 4 days since the injury when the X ray was taken, and he remained of the view that the two bones were likely to have been fractured at the same time because of their connection and proximity to each other.

[67]The question is whether the shoulder injury was caused in a separate incident or whether it was caused at the same time as some of the other injuries. The analysis and findings so far are that:a. The acute subdural bleed occurred no more than 10 days prior to the scan on 21 May 2024 i.e. between 11-21 May 2024 (but may not have been attributable to a traumatic event)

b. The acute subarachnoid bleed occurred at the same time as C3’s collapse or very soon before it on 21 May 2024

c. The retinal haemorrhages occurred 1-7 days before 22 May 2024 i.e. between 14-21 May2024

d. The skeletal fractures occurred 4-18 days before 21 May 2024 i.e. between 3 and 17 May 2024.

[68]The time frame for the fractures does not overlap with the timeframe for the acute subarachnoid bleeding and those two injuries must have arisen from two separate traumatic injuries. The acute subdural bleed and the retinal haemorrhages could have occurred at the same time as either of those two injuries, or in further, separate incidents. I therefore come to this overall conclusion as to the number of inflicted traumatic incidents: I find that there were a minimum of three significant traumatic incidents caused to C3: the first before 30 April 2024 which caused the chronic subdural bleeding, a further incident or incidents at an unidentified date or dates between 11-17 May which caused the skeletal fractures and may have caused the acute subdural bleed and the retinal haemorrhages, and a final incident on 21 May 2024 which caused the acute subarachnoid bleed, and any other of the injuries which had not already been caused in earlier incident by that time.

Level of force

[69]It is accepted by all that the injuries were inflicted. I have set out above the evidence that, with the exception of the acute subdural bleeding, each was caused by a level of force which was significant and outside normal handling. That evidence has not been significantly challenged and I accept it, and the finding that with the exception of the acute subdural bleeds, the injuries were inflicted and were caused by the use of significant force outside normal handling.

Perpetrator

[70]The parents both accept that they were the only two people who had care of C3 on 21 May 2024, and indeed at any other time. They both deny causing the injuries and say that they have had to accept that if they did not do it, then the other one did. Before I simply accept that logic, I must consider whether there is another possibility which is an unknown cause. It seems to me that there are simply too many injuries which are different from each other in nature and which cover too wide a time frame for that to be a realistic option in this case. There would need to be several different unknown causes and that seems to me very unlikely. I therefore accept that the injuries were inflicted, and that there are only two people in the pool of possible perpetrators.

[71]I start by considering the injury which caused the acute subarachnoid bleed on 21 May 2024. Both parents cared for C3 alone that morning. The mother did so when FA was out at work, and FA did so later on when the mother went to the GP. The mother says that whilst in her care, C3 was happy and smiling, taking her food and babbling on the playmat. FA was asked in oral evidence whether that was right and he said that the only thing was that C3 was tired when he got home. He said there was nothing unusual in her presentation when the mother went to the GP. Both parties appear to be in agreement about that. It therefore seems to me more likely than not that when the mother went to the GP at around 12 noon C3 had not yet suffered the traumatic incident which injured her. That leaves only two options. Either she suffered the incident whilst in the sole care of her father, or she suffered it in the period after the mother returned from the GP and before the ambulance was called.

[72]FA’s first statement records that when he came home from work C3 was on the play mat and appeared happy in herself and content. He said that it was time for her feed and so M made up a bottle and C3 took only 1-2 ounces. He said by then it was around 12 noon and time for M to go, so M passed C3 to him. He tried to feed her the bottle but she did not want it and fell asleep in his arms. He put her in the cot where she remained for about 20-25 minutes. He tried to take a nap at this time but was not able to because she woke up and cried. He went to her, and he noticed she had some blood on her lips. This would have been at about 12.30pm. He thought she had cut her lip on her thumbnail which she had done in the past. He said she was crying and distressed and he soothed her. After about 10 minutes she calmed down. She refused the bottle three of four more times and fell back asleep. In oral evidence he said she was then in and out of sleep until M came home, and again attempted the bottle, which C3 again refused. C3 was unsettled and M tried to soothe her. When she lifted her up to her shoulder to try to settle her, C3’s breathing changed and she began having a seizure. They laid her on the sofa and called the ambulance.

[73]The mother agreed that when FA came home C3 was on the playmat and was tired, and she says FA settled her and put her in the cot. She says she left a bottle made up for when C3 woke up and she and C2 went to the GP together. When she got back it was around 2.05pm. FA was holding C3 and she was crying. M was on the phone to her mother. C3 would not settle and so she ended her phone call and went to settle C3. FA told her he had planned to have a nap whilst C3 was in her cot but C3 was crying and he picked her up to comfort her and was unsuccessful in doing so. M assumed that C3 had been missing her so she did what she usually did to settle her, which was holding her close to her chest, patting and rocking her gently and walking round the flat. She then noticed that C3 had gone stiff and her breathing did not seem normal. She started to fit and M immediately called to FA to call an ambulance.

[74]There are discrepancies between the two parents’ accounts, for example as to whether C3 was asleep or awake when M left the house, but there is agreement that by the time M got home, C3 was already unsettled. There is agreement that neither of them could settle her. On their own evidence, this was clearly different from their normal experience of her crying for a few minutes then being settled. It seems to me that this description of not being able to settle her matches much more closely Mr Jayamohan’s list of behaviours which he would expect to see in a baby with a subarachnoid bleed: refusing food, crying, not settling. In my view the parents’ accounts are suggestive that C3 had already suffered her acute subarachnoid bleed by the time the mother got home, and that would suggest that she had the bleed in her father’s care.

[75]That possibility is strengthened by the fact that, again on their own evidence, it appears that once the mother had got home both parents were present throughout and neither party alleges that they saw the other inflict an injury. They both only speak about the other one trying to settle the baby. On the parents’ own evidence it does not appear that anything which would match the description of significant force outside normal handling happened after the mother returned from the GP. That again points to the traumatic incident happening while the mother was out.

The wider canvas

[76]I must, however, consider all the circumstances before coming to a view as to the identity of the perpetrator. I note that the family were under stress from the following circumstances:a. There was a s47 investigation underway in relation to C2’s allegation about the bruise to her cheek. That report records M as being “frustrated” and both parents acknowledging that things had been stressful following the referral.

b. Their relationship with the school had broken down. C1 and C2 both have special needs and FA and M did not think the school was meeting those needs. Relations had soured with one teacher in particular – the one FA mentioned in his phone call on 29 April 2024 whilst waiting outside the school office. The parents had been intending to visit an alternative school on 21 May 2024 but those plans had had to be postponed because C1 and C2 had been ill and kept off school that day. It is likely that that would have been frustrating, and the ongoing issue about schooling is likely to have added to the family’s stress

c. Lack of sleep. C2 had been ill the night before the incident, and the mother had been up in the night giving her Calpol. In addition both parents were up in the night to tend to C3. FA had to get up early (5.30am) for his job. The mother accepted that both she and FA suffered from broken and limited sleep the night before. FA in my view minimised this aspect of things, saying he managed well on 3-4 hours of sleep a night, but he accepted that he had planned to take a nap the following day whilst C3 was in her cot which rather undermines his evidence on that point. I take the view that they had had a lack of sleep the night before, and that is an additional stressor.

d. There were problems with C2’s behaviour at school. She was described by staff as being “more challenging” in May 2024 and having to use the Rainbow Room (which is a sensory room) for time outs. C1 and C2 were aware that they may be changing schools and that may have unsettled them. FA says he was unaware of this at the time but he accepted she was showing disruptive behaviour at this time.

e. Both C1 and C2 have special needs. C1 has a diagnosis of Autistic Spectrum Disorder and both girls have Speech and Language difficulties which can give rise to frustration and challenging behaviour as a result. Looking after them together with a newborn baby would have been a challenging job.

f. The mother had been unwell since the birth of C3. It is common ground that she had to remain in hospital due to a post partum haemorrhage and when she discharged herself, had to go back in again. Her recovery from then on was as FA says “slow progress”. He did the majority of the caring for C3 in the first month of her life. The mother resumed care when he went back to work, but by 21 May 2024 she was still suffering from dizziness and described to the GP that she felt as if she was on a roller coaster or was drunk. All of this will have added to the stress in the house and added to FA’s workload.

[77]Many of these factors were long-term, and the effect of them therefore cumulative. I take note of all these as contributory factors that might make it more likely that a parent might snap, or lose control,

Concerns about FA’s account and actions

[78]FA said he first saw blood on C3’s lips at a time which must have been around 12.30. He is not absolutely sure of the time – it might have been a bit later. It is not in issue that C3 still had blood on her lips at 2.28pm when the ambulance was called. It is likely therefore that she had blood on her lips for around 2 hours or perhaps a little less. It seems to me an unsatisfactory part of FA’s narrative that during all that time he did not look in her mouth to see what it was, or try to stop the bleeding, or call the mother, or call for medical help. In oral evidence he accepted it worried him and that he should have taken a different step. To me that part of his narrative does not make sense.

[79]Another concern in relation to FA’s case relates to the 999 call which he made. It is said FA was reluctant to call the ambulance and it is right that the mother’s evidence says that at first he did not want to and she had to insist. FA says he was not reluctant. He just had his back to C3 when the mother first asked him. As soon as he turned round and saw her, he was on the phone to the ambulance. He said the delay was 10 seconds. That seems to accord with the mother’s oral evidence in which she says that the thing that made FA change his mind was when he saw the way C3 had gone. On that evidence I can not say that FA was unduly reluctant to call the ambulance. However, a further concern relates to what he said when he did call them. I have read the totality of the transcript of the call. When conveying the details of C3’s presentation he said “we don’t know if she’s fitting but she seems to be struggling to…to sort of come out of it and she’s making some weird noises”. He said she was not shaking but had been shaking a few moments ago. She was now lying still. All of that was true, but it is notable that he did not mention her red face, her arching back, her stiffness and her eyes rolling upwards. Instead he suggests she has “somehow got herself into a fright” and says he had got her out of bed because she’d cut her lip and she’d “obviously got herself into a real bad state after cutting her lip”. The Local Authority suggest that this is a deflection from the serious harm which had been caused to C3.

[80]It seems to me that FA began the phone call giving useful and correct information to the Ambulance Service but as the call progressed, there was some minimisation on his part of the seriousness of the situation. He missed out crucial information and phrases such as “somehow got herself into a fright” do not do justice to the situation. In that context, the Local Authority’s assertion that he was deflecting may have some merit.

[81]There is also a troubling introduction in FA’s second statement of the idea that C1 might have been to blame for the injuries. FA says that C1 loves C3, but they would sometimes have to tell her to back off from C3 and to remind her to handle C3 with care. He said C1 would sometimes pull on C3’s hand and he had to remind her not to do this. He says “I do not suggest C1 in any way harmed C3 on purpose but may have caused an injury by not recognising how gentle you have to be with a newborn baby”. Although I have in mind Dr Yadav’s evidence that with the right amount of force a child of C1’s age could have caused the fractures to C3, none of C1’s behaviour as described by FA comes close to the significant, energetic traumatic force outside the range of normal or even rough handling which the experts have said would have been necessary to cause the injuries. The mother has not felt it necessary to accuse C1 of causing the injuries. The fact that FA has done so late in the day when it was clear that much of the evidence was pointing at him suggests a further attempt at deflection on his part.

Lack of curiosity

[82]The mother says she realised the minute something happened to her daughter that since she had not hurt C3, then FA must have done so. FA said it dawned on him once he received the medical reports. The medical reports in the bundle being as at 30 May 2024 which is only 9 days after the incident so the nature and extent of the injuries was known by then. However the view that the injuries were non-accidental only crystalised in the autumn of 2024 with the expert reports which began around 9 September 2024. Thus I take it that throughout the autumn FA had a growing realisation that if he had not done it, the mother had.

[83]It is common ground that the parties have not asked each other about the incident. They have not accused each other of causing the injuries. They say they have not done so either because they were not in communication (which was only true for a short period during the bail conditions), or because they thought they would not get a true answer or in the FA’s case because he was afraid the mother would stop his contact with the girls if he asked her that.

[84]I share the surprise of the Local Authority, the Guardian and FB that M and FA have not spoken about the injuries. The reasons given seem flimsy in the context of the magnitude of the injuries. C3 nearly died and the innocent parent might be expected to be angry and upset with the guilty one. The parents say they are upset but there is no real sign of that. They are separated, but they continue to attend contact together. They continue to speak in broadly positive terms of each other. It has been suggested that their joint lack of curiosity or confrontation of the other person raises many questions, for example do they both already know the answer? Or is one protecting the other?

[85]It seems to me that those are valid questions, but there are other possible explanations. For example it could be that the mother’s learning difficulties make it difficult for her to challenge FA on something as fundamental as this. This is not the same as correcting his lifting technique or speaking to him about physical chastisement. I come to the conclusion that the lack of curiosity each has displayed is striking and unusual, but it does not help me to decide which of the parents is the more likely perpetrator, given the symmetry of their behaviour in this regard.

Analysis

[86]The following matters point to FA being the more likely perpetrator:a. Timing: the irritability associated with acute subarachnoid bleeding began at a time C3 was in his sole care. Only he had the opportunity to inflict the injury in the likely timeframe

b. The list of stressors which I have considered above applied even more strongly to FA than to M. He was at the time bearing the brunt of the childcare as well as looking after his unwell partner and getting up to go to work at 5.30 each day.

c. His own evidence was he tried to take a nap and that that was unusual for him. That indicates he was unusually tired that day. Not only that but he was prevented from taking the nap, or woken from it, by C3 crying. That may have been an additional stressor to him that day.

d. His failure to investigate or take any action in relation to his baby having blood on her lips for 2 hours (or a little less).

e. His seeming deflection whilst on the telephone to the ambulance service to suggest that this was something C3 had done to herself, by failing to mention so many of her symptoms, and by returning to the idea of the cut lip when matters were clearly very far beyond that

f. His attempt to deflect blame onto C1

g. The fact that he does have flashes of temper as seen in the incident with the ketchup spill, the hitting of C2 on the bottom so that it was red, and the incident of the telephone call outside the school office.

h. The fact that both C1 and C2 have referred to him as angry or mad at them. They have never made any such comments about their mother.

[87]It is necessary to consider whether there are matters which point to the mother being the more likely perpetrator.a. She was unwell, and it might be said that was an additional stressor for her: however it could equally be argued that being dizzy and feeling as if she was on a roller coaster would make it harder, not easier, for her to inflict such a significant traumatic injury on a child. I am not sure that her illness does make it more likely she is the perpetrator.

b. There are also discrepancies in the mother’s evidence. For example she has said on different occasions that when she returned home on 21 May 2024 that C3 was in the cot, that she was in F’s arms and that she was on the play mat. The playmat appears to have been a mistake – she clarified that in oral evidence saying C3 was on the playmat before she went out, not after. In relation to the other two possibilities of where C3 was when she got home, I need to consider the mother’s evidence in the light of her intellectual functioning which was assessed by Bradley Mann to fall within the Extremely Low range with a Full Scale IQ of 63 (1st percentile, indicating she falls at the bottom 1% of her age peers). She did appear to become confused at times in the witness box and questions had to be rephrased. It seems to me that small discrepancies which do not bring any advantage to her do not undermine the overall integrity of her evidence. Indeed, the view I formed of her, having seen her evident confusion and her obvious need for breaks to help her with concentration, was that she was somebody who would struggle to make up a story and keep to it. I am not sure she would be able to retain clarity as to the details of a fictitious account, particularly when cross examined for a whole day by extremely competent and experienced counsel.

c. It is said there are other discrepancies in her evidence such as saying initially that when FA hit C2 there was “no mark” and subsequently saying it was red. I am not sure that is a discrepancy. There can be redness with no mark. Other criticisms are that she did not mention till her second statement that there was more blood than usual round C3’s mouth, and that C3’s cry was “different”. It seems to me there will always be things in the second statement that are not in the first. That is the purpose of a second statement. The mother may well have added information about the cry being “different” because she had by then understood from the medical evidence that that was important. That does not necessarily mean it is not true. It may mean that she did not think it was relevant before, but had reached a better understanding by the time of the second statement. Overall, it seems to me, the mother’s evidence was as consistent as it is reasonable to expect for someone with her cognitive limitations.

d. Having thought carefully as to whether there are other circumstances which point to it being more likely that the mother was the perpetrator, I have concluded that there are not.

[88]It is open to me to consider whether I can not make a finding as to the perpetrator and I must not strain to do so where the evidence does not bear such a finding out. I do not consider that this is such a case. In this case the evidence in my view strongly supports a clear conclusion that it is more likely than not that FA was the perpetrator of the injury on 21 May 2024 which caused the acute sub-arachnoid bleed, and so I find.

[89]I must then consider whether there is evidence to support him being the perpetrator of the other injuries or any of them. The finding of him having caused the acute sub-arachnoid bleed must be seen in the context of a person who suffers from flashes of temper. They have happened on a number of occasions, and as I have now found to an extent severe enough to cause life-threatening injuries to a baby. I am satisfied he has a propensity to act in this way. He also had opportunity, being the main carer for C3 for the first month of her life, and being by his own evidence a hands on carer for her whenever he was not at work after that. He was a first-time father, with no experience of having to cope with the demands of a new-born. The mother, on the other hand, has parented the two older children through the new-born stage without any such difficulties arising. There is nothing to suggest that she could not cope with C3 given that she coped with C1 and C2, both of whom have special needs. FA has not had that experience. Taking the factors of opportunity, stresses on FA and propensity to lose his temper and inflict punishment or injury, it is in my view more likely than not that FA also caused the other injuries to C3, perpetrating at least 3 significant inflicted traumatic events on her.

[90]Taking all that into account, I return to the issue of C2’s bruise and whether the findings I have made in relation to C3 affect my view of the evidence in relation to that. I conclude that they do not. Although propensity is established which makes it more likely that FA may have hit and bruised C2, I remain of the view that the quality of the evidence in support of the allegation is still too low to allow a finding to be made. I therefore make no finding in relation to C2’s bruise.

Failure to protect

[91]I am asked to make findings that M failed to protect C3. It seems to me that I can only make that finding if M could reasonably have been expected to know that C3 had been injured at an earlier stage or if she could reasonably have been expected to predict that FA’s temper would lead him to inflicting serious injuries on C3.

[92]In relation to the earlier injuries, the evidence is that a carer would not necessarily know if there had been subdural bleeding. For subarachnoid bleeding such as intraventricular bleeding the irritation to the baby would depend on the size of the bleed. It may not cause irritation which would necessarily lead to hospital admission. Taking into account this evidence it does not seem to me that the mother could necessarily have been expected to know that C3’s head was being injured by FA.

[93]In relation to the shoulder fractures, Dr Yadav said it would be apparent to the perpetrator that they had caused an injury and the baby would cry for maybe 30 minutes. In my view it is likely therefore that FA would have known he had hurt C3 when he broke her bones. Thereafter, Dr Yadav said, to a different carer who did not witness the event there would be very little to indicate that the child had a broken bone. There would be decreased movement and discomfort when the arm was moved but a carer’s ability to notice those things would depend on how astute they were as a carer. He said that there may not be any external indicators, or alternatively the carer may note the symptoms but not realise they were caused by a fracture. The child might cry, but children of that age cry for multiple reasons. He said he would not expect a reasonable carer necessarily to be aware of the fractures. I am not in a position to make findings about how astute the mother is or was as a carer, but I have in mind her learning and communication difficulties. In light of the medical evidence, and and taking into account the wider picture, it does not seem to me that I can make any finding that the mother knew or ought to have known about the shoulder fractures.

[94]She did know about his flashes of temper. Although he was usually placid and calm (as indeed he was throughout this court hearing) she had seen him throw the spray bottle which hit the television. She had heard him threaten school staff whilst on the phone to her on 29 April 2024 even though she said she could not remember it. She knew he had hit C2 so hard that her bottom was red. None of those things are in the same league as the injuries which were being perpetrated on C3. I do not consider that the mother could reasonably have been expected to predict or foresee that his flashes of temper would lead him to such extreme behaviour.

[95]It is also argued that she has failed to protect the children by allowing FA to continue to have contact with the children when she knew all along what harm he had caused. This seems an unfair criticism to me. Contact was organised by the Local Authority under their interim care order. If the mother had protested she would surely have been told that she and FA were both in the pool of perpetrators and they could not be treated differently for contact purposes until the fact-finding had taken place. Further I remind myself again of the mother’s intellectual limitations. She is asked to take and follow the advice of the Local Authority on all sorts of matters, including for example, accepting her own level of contact. I do not blame a woman of her vulnerabilities for failing to challenge the Local Authority on FA’s contact when the fact-finding hearing was still outstanding.

[96]For those reasons, I do not make any finding of failure to protect C3 against M. [end of judgment]