Nottingham City Council v PR & Ors [2025] EWFC 269 (B)

[2025] EWFC 269 (B)Case No. NG25C50062
IN THE FAMILY COURT
Date Thursday, 21 August 2025
SITTING AT NOTTINGHAM
Carrington Street
Nottingham, NG2 1EE
Before
MR RECORDER O’GRADY
Between
NOTTINGHAM CITY COUNCILApplicantPRRespondentHRRespondentG, K AND SThird, Fourth and Fifth Respondents
Jodie Conroy (Nottingham City Council) for ApplicantCarol Clelland (instructed by Brendan Fleming) for First RespondentNick Howell-Jones (instructed by Wollen Michelmore LLP) for Second RespondentJohn Lea (instructed by Elliot Mather LLP) for Third, Fourth and Fifth RespondentsHearing Hearing dates: 19, 20 and 21 August 2025JUDGMENTThis judgment was handed down remotely by the Judge by circulation to the parties’ representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2:00pm on 21 August 2025.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.Mr Recorder O’Grady:Introduction
[1]This case is about:a. { } (“G”), who was born on { } 2024. He will soon be 9 months old;b. { } (“K”), who was born on { } 2022. She is 3 years old; andc. { } (“S”), who was born on { } 2020. She is 5 years old. (collectively “the children”).[2]On 27 March 2025 Nottingham City Council (“the Local Authority”) applied for a Care Orders and Interim Care Orders. On 31 March 2025 the children were placed in the Local Authority’s care until the conclusion of these proceedings. The children live with a family carer under the Local Authority’s plan.[3]The First Respondent to the applications is { } (“the Mother”), who was born on { }. She is { } years old.[4]The Second Respondent to the applications is { } (“the Father”), who was born on { }. He is { } years old.[5]I will refer to the Mother and the Father collectively as “the parents”.[6]The Third, Fourth and Fifth Respondents to the application are the children. The children’s interests are represented through their Children’s Guardian, { } (“the Children’s Guardian”).[7]This is the judgment of the Court at a Fact Finding Hearing. The Local Authority has been represented by Mrs Conroy. The Mother has been represented by Miss Clelland of counsel. The Father has been represented by Mr Howell-Jones of counsel. The children have been represented by Mr Lea. I thank the advocates for the very helpful way in which they presented their cases.[8]I also extend my gratitude to the parents for the courteous way in which they participated in the hearing. This hearing has fallen at a most difficult time and I am acutely aware that they have endured participating it whilst also processing the grief of a profound loss.

Brief Background

[9]At 2:03am on 9 March 2025 the Mother telephoned 111. In that telephone call the Mother told the operator:
“[her] partner was getting [G] undressed to change his bum and he heard a click in his arm and ever since then he’s been crying. He’s not really been moving his arm so much either. He is crying and in pain a little bit.”
[10]At around 3:00am on that morning, Mother and G arrived at the Queen’s Medical Centre (“the QMC”) in Nottingham. Later that day G was subject to child protection medical examinations. There were no remarkable findings, except for a fracture of his right humeral diaphsis.[11]Independent consultant paediatrician Dr Naeem Ahmad and consultant paediatric radiologist Dr Karl Johnson were appointed to provide expert opinions. The parties agree that:a. when G presented at the QMC he had tenderness and reduced movement in his right arm; andb. G had a traverse fracture of the midshaft of the right humerus (“the fracture”).[12]The Mother produced a video of G recorded on a mobile telephone. It is not disputed that the video was recorded at 12:16pm on 8 March 2025 and that it shows G as a healthy baby inconsistent with the presentation that would be expected had his arm been fractured at that time.[13]The Local Authority alleges the injury was inflicted by the Mother or the Father at a time between 12:16pm on 8 March 2025 and 2:03am on 9 March 2025 when the Mother called 111.

The Issues

[14]The issues to be determined are whether the Local Authority has proved that:a. the fracture was caused by means of a significant twisting and/or bending and/or snapping action applied to the bone;b. the fracture was caused by application of significant and excessive force beyond reasonable handling and beyond the rough handling of an inexperienced parent; andc. the fracture was inflicted.[15]If the Court finds the Local Authority has met its burden of proof on these matters, the Court must go on to determine whether:a. there is a list of people who had the opportunity to cause the injury;b. an individual perpetrator can properly be identified on the balance of probabilities; andc. if the Court is unable to make a finding of a perpetrator on the balance of probabilities, there is a real likelihood or possibility that one or more of those individuals on the list caused the injury.

Key Features of the Written and Oral Evidence Including Assessment of Witnesses

[16]I have read all the written evidence carefully. I similarly listened carefully to the oral evidence. This judgment is not intended to be a repetition of everything I considered and my failure to recite a particular part of the evidence does not reflect a failure on my part to consider it. What follows is only intended to be a summary.[17]Giving evidence in contested proceedings about a serious injury to your infant child would be a heavy burden at the best of times. These are far from the best of times for this family. In fact, it is hard to imagine a more difficult time for the parents, and the Mother in particular, to give evidence following the sad passing of { }, who was until recently caring for the children under the Local Authority’s interim plan. I have borne this in mind when I have evaluated their evidence. Furthermore, I recognise the adversarial nature of this process rarely reveals the best qualities in those who appear before the Family Court. In evaluating each of the parents I have been careful to have this fallibility in mind.[18]Where I make observations about the demeanour and behaviour of the witnesses (favourable and unfavourable), I remind myself that discerning fact from demeanour carries inherent challenges and is an unreliable exercise. Thus, whilst in Re P (A Child: Remote Hearing) [2020] EWFC 32 the President stated (at [12]):
“... a crucial element in the judge’s analysis for the judge to be able to experience the behaviour of the parent who is the focus of the allegations throughout the oral court process; not only when they are in the witness box being examined in-chief and cross-examined, but equally when they are sitting in the well of the court and reacting, as they may or may not do, to the factual and expert evidence as it unfolds during the course of the hearing.”
I remind myself of what MacDonald J said inter alia in Cumbria County Council v R (Special Guardianship Order or Interim Care Order) [2019] EWHC 2782 (Fam) (at [24] and [26]):
“The need for care with witness demeanour as being indicative of credibility has also been highlighted by the Court of Appeal in Sri Lanka v the Secretary of State for the Home Department [2018] EWCA Civ 1391. The Court of Appeal observed that it has increasingly been recognised that it is usually unreliable and often dangerous to draw a conclusion from a witness' demeanour as to the likelihood that the witness is telling the truth, noting research suggesting that interlocutors cannot make effective use of demeanour in deciding whether to believe a witness and some evidence that the observation of demeanour diminishes rather than enhances the accuracy of credibility judgments ... Within the context of the foregoing legal principles, this court must bear in mind that the assessment of the credibility and reliability of the parents should coalesce around matters including the internal consistency of their evidence, its logicality and plausibility, details given or not given and the consistency of their evidence when measured against other sources of evidence (including evidence of what the witness has said on other occasions) and other known or probable facts. The credibility and reliability of that parent should not be assessed simply by reference to their demeanour, degree of emotion or other aspects of their presentation. This of course works in both directions. It is as problematic to rely on an impression that a witness has an 'honest' tone, manner or presentation, for example that they appear "genuinely upset", as it is to rely on an impression that the tone or manner of a witness appears 'dishonest', for example that they cross their arms or look at the floor. These principles must apply both when the court is evaluating the parent in the witness box and when the court is evaluating the significance of the observations of other's regarding the parent's demeanour at a given point.”

The Mother

[19]The Mother denies causing injury to G.[20]The Mother self-describes as the parent who spends more time meeting the children’s day-to-day needs whereas the Father generally spent his time working to provide for the family. She tells me that on Saturday 8 March 2025 the family had breakfast together and the Father left home to get a haircut (she did not say when that was in her witness statement). During the day the Mother’s sister (“the Sister”) visited the Mother’s property along with her children. The Sister and her children remained until about 8:30pm. The Mother does not suggest that the Sister or her children caused the fracture.[21]The Mother says that after the Sister left, she (the Mother) put G into his bouncing chair and then later, at 10:05pm, she participated in a FaceTime call with relatives. I was told that G was taken out of the bouncer for that call. The Mother provides a photograph she says corroborates this. Following that call, the Mother placed G on a nursing pillow which was placed on the sofa. On the Mother’s and the Father’s accounts that was the last occasion that G was handled by either of them until about 1:50am on Sunday 9 March 2025.[22]The Mother says she made a bottle for G between 10:00pm and 11:00pm. She says she definitely did not feed him after making that bottle and before going to bed. She says the Father arrived home at about 11:45pm in her witness statement, but when asked said she could not recall the time. After a brief conversation with the Father, the Mother went to bed. In the time between the Father arriving home and her going to bed, the Mother did not pick G up and did not see the Father pick G up. G was asleep I was told it was common for G to be left downstairs with the Father late at night at times when the Mother had not given G his final feed of the day.[23]After going to bed the Mother heard G cry at around 1:50am. Significantly, in her witness statement she did not describe a cry that was unusual or a cry she had not heard before or which was out of the ordinary. On the contrary, the only impression left by the Mother in her witness statement was that the cry was typical and was associated with her experience of G’s reaction to the Father changing G’s nappy. On the 111 call the Mother did not say she heard an unusual or particularly alarming cry. Yet, she told me when asked that she heard a cry she had not heard before, that went on for longer than normal and was more than just a wet nappy. The Mother’s explanation for this inconsistency - that she did not know why she did not offer an earlier account of hearing an unusual cry - was unconvincing. This inconsistency on an important issue of fact undermines the Mother’s credit alongside her reliability.[24]The Mother said that her phone rang at 1:54am. The Father was calling her. She did not answer because she was already making her way downstairs.[25]On getting downstairs, the Father told her that he accidentally hurt G whilst getting him undressed. She says the Father was shaken. The Mother saw G on his back on the sofa with his arm partially out of his baby grow. He was crying. The Mother picked G up. She said she straightened his arm and heard a click. The Mother suggested calling 111. She said she did so because her instincts kicked in. That call happened at about 1:59am. The Mother gave G Calpol at about 2:35am and went to the QMC in a taxi. The Father remained at home.[26]Whilst at the hospital the Mother asked the Father to text her what happened. He replied at 2:42am:
“I grabbed the cuff of his baby grow with my left hand and his arm with my right had to pull it out of the sleeve but he pushed his hand against my left hand as I pulled and I heard a loud click.”
[27]Despite everything said in the expert evidence, the Mother says she has never asked the Father if he used excessive force in handling G. I found that answer remarkable. The Mother did not give the impression of being meaningfully curious about how the fracture may have been inflicted (if that is so). Notwithstanding her position before the Court that she does not challenge the expert evidence, having heard the Mother, it is apparent she has accepted the Father’s denials of inflicting the fracture on trust. This gives rise to the possibility that she was not curious because she knew how the fracture was caused. Alternatively, there may be (it is not for me to decide today) a lacuna in her capacity to perceive and assess risk.[28]Frequently in her evidence the Mother spoke what “would have happened”, rather than recall from memory. At times I was left unsure whether I was being told what the Mother actually recalled or whether she was reconstructing events from her experience of what may typically have happened in similar situations in the past. Furthermore, on many occasions the Mother said she could not recall details when questioned. These deficits in memory impair the weight that can be given to her evidence as a reliable historian of events.

The Father

[29]The Father says he caused the fracture to G whilst changing him in the early hours of Sunday 9 March 2025. However, the Father disputes using an unreasonable level of force as described by the experts. He says the fracture was caused accidentally.[30]The Father is employed as a { } at a { } in central { }.[31]On Saturday 8 March 2025 the Father says he woke at 8:00am and left home at 9:00am to get his hair cut. He returned home at 10:00am. I am told the Father left home at 11:00am to watch A Football Team play A Football Team at { }. The Father believes he arrived just at or slightly after the { } kick off. The Father went straight to work after the match and, he says, he did not return home until 11:15pm.[32]The Father says that when he arrived home he saw G was downstairs lying on the cushion on the sofa asleep. The Mother told the Father that G was due a bottle and she then went to bed about 20 minutes after the Father arrived home. She left G downstairs. The Father then remained downstairs and it appears he played PlayStation for the 90 minutes to 2 hours that followed. The Father saw G move a little in that time, but G remained sleeping normally.[33]I am told by the Father than G woke at about 1:50am. The Father was still playing PlayStation. He saw G fidget. The Father said in both his written evidence and oralevidence that he turned the PlayStation off around that time and went into the kitchen to prepare G’s bottle. The Father turning the PlayStation off would not be significant, save that the Father said that if, at any point that morning he felt tired he would have gone to bed. The fact of turning the PlayStation off is consistent with the Father winding down for the night, finishing his game and preparing to go to bed, i.e. because he was tired.[34]When this was identified to him the Father changed his version and said (notwithstanding his earlier evidence) in fact he did not turn the PlayStation off – he paused his game. The Father’s abandonment of his evidence when confronted with the inference that he was tired at 1:50am was not credible. I find the Father was not candid about how tired he was at 1:50am after a long day that saw him out or on the go from about 9:00am until he returned home after 11:00pm only to then stay awake for a further three hours into the early hours of the morning.[35]The Father says that G cried whilst he made his bottle. The Father conceded that G was hungry, having not been fed for several hours and he was sat in a wet nappy.[36]The Father said he picked G up off the cushion to feed him, cradled him in his (the Father’s) right arm and fed him with the left. I am told G was moving normally at that time. The Father said G cried more as he was feeding him, but suggests this is usual when G’s nappy is wet. The Father placed G on the reclining sofa to change him. The Father says G wriggled and cried a bit, but not as much as when he was cradled.[37]The gravamen of his evidence is that:
“22. I reached for a nappy and unzipped G’s baby grow. I grabbed the cuff of the babygrow with my left hand and put my right hand on the inside of his elbow. G pushed my hand and kicked with his legs at the same time as I was pulling the babygrow off. I was not using much force but I heard a distinct click. G cried a little bit more than he had already been crying, however after about 15 or 20 seconds it became a full, loud cry as if he was in pain. 23. My first thought was that I had injured G’s shoulder. I tried to call [the Mother] on the phone, still holding G’s arm with my left hand. I picked him up from the blanket where he was lying when I heard [the Mother] coming downstairs so that I could put him on his cushion. I told [the Mother] that I had heard a click when I was changing him and he had started crying like he was now. As I put him on the cushion I could see that his arm was positioned strangely and I told [the Mother] I might have broken his arm. [the Mother] then called 111. 24. I believe that I accidentally fractured G’s arm when I was changing his nappy and when he pushed against me at the same time as I was tugging the Babygrow off his arm …”
(emphasis added)[38]It is noteworthy that the Father’s written account does not offer any episode of him directly twisting G’s arm, pulling G’s arm or bending G’s arm. Whilst the Father says he pulled and tugged the baby grow, at no time in this account does he explicitly concede directly grasping and pulling or tugging the arm itself.[39]Furthermore, the Father’s evidence on the force he used when changing G was subtly, but relevantly, inconsistent. In his written evidence the Father said he was “not using much force” (i.e. but, some was used) whereas in his oral evidence the Father said he did “not use any force at all”. I do not consider this to have been a trivial inconsistency or mere semantics given the magnitude of importance of the use of force and the expert evidence the Father heard prior to getting into the witness box. As with his unwillingness to describe himself at the material time as being tired, I find the Father used his evidence to falsely present a favourable gloss on his actions. Rather than provide a candid account, I find he tailored his answer to avoid making a concession that might incriminate him in abusive conduct.[40]Later, on each occasion the Father described G kicking him, the Father rocked and moved backwards in his chair in the witness box about 15cm-30cm. I brought that movement to the Father’s attention and asked him if it was his evidence that 4 month old G actually moved the Father backwards as he kicked. He told me that G did indeed kick him so hard that he pushed the Father backwards “a little bit”. The Father is a well-built man. Not only was the evidence that G actually used sufficient force and body strength to push the Father backwards a version not previously given, the suggestion that 4 month old G was able to physically move the Father even a little bit strained credulity.[41]The Father’s actions around 1:50am are of critical importance to the determination of the issues. On that important issue the Father was unsatisfactory. I am not satisfied the Father was candid. I did not form a favourable view of his evidence on events immediately around 1:50am. Rather, his evidence was at times inconsistent, tailored to a favourable interpretation of his actions (notwithstanding earlier evidence) and advanced an implausible suggestion. In those circumstances I will need to be cautious before I accept or give meaningful weight to the Father’s account on the central issues.

The “Wider Canvas”

[42]My assessment of the Mother and the Father must be, and is, informed by the very favourable wider canvas of evidence.[43]As to the Mother:a. G was her third child. I accept she was an experienced parent and had a greater role in meeting the children’s needs than the Father did.b. There have never been any matters of concern with respect to her care of any of her children before the fracture.c. The Mother’s interactions with G in hospital were observed to be attuned and appropriate.d. I judged her to be a mature and measured person.e. There is no evidence of adverse mental health issues.f. There is no evidence of substance misuse.g. There is no evidence she is a perpetrator of or victim of domestic abuse.h. There is no history of adverse childhood experiences.i. The Mother has a work history involving child care.j. The Father is very complimentary of the Mother’s parenting capacity.[44]As to the Father:a. G was his third child. I accept he was involved in the care of the children, including meeting basic needs such as feeding and changing nappies.b. There have never been any matters of concern with respect to his care of any of her children before the fracture.c. I accept the Father is devoted to his family as demonstrated by his commitment to supporting his late mother-in-law’s dialysis treatment.d. The Father was generally in a good mood that day after Nottingham Forest won an important match and he had a good shift at work.e. There is no evidence of adverse mental health issues.f. There is no evidence of substance misuse.g. There is no evidence he is a perpetrator of or victim of domestic abuse.h. There is no history of adverse childhood experiences.i. The Father has stable and consistent work history.j. The Mother is very complimentary of the Father’s parenting capacity. The Independent Experts Dr Naeem Ahmad

The Independent Experts

[45]Dr Ahmad is a consultant paediatrician appointed to provide an opinion on G’s case. The Court is told by Dr Ahmad that the injury was an inflicted injury. Dr Ahmad says that the injury was likely caused by a significant twisting, impact, bending or snapping action applied to the bone.[46]Dr Ahmad says it is possible that in getting an arm out of a baby grow the arm can be accidentally bent or twisted, however the level of force will be abnormal and that even rough care will not be sufficient to cause the injury. Thus, whilst the mechanism may be present, the force the Father describes using is insufficient to be the cause. For this injury to be caused, Dr Ahmad says both mechanism and excessive force are required. In Dr Ahmad’s opinion if excessive force was used whilst undressing then the injury would be abusive. The history provided by the Father is not consistent with the injury and does not explain it because of the absence of sufficient force. Dr Ahmad was not shaken from this conclusion by cross-examination. Dr Ahmad rejected the Father’s suggestion that the arm being placed in a particular angle absent force might result in the fracture, whilst fairly conceding that there are unknown possibilities that limitations in science mean we cannot understand today. He did not consider, however, that this was such a case on the balance of probabilities.[47]Of course, it is not possible for the exact force required to be known. Investigations do not evidence any propensity to fracture or anything which might indicate organic bone fragility. The Court was told an organic cause is highly improbable. Dr Ahmad says this injury is caused by an action going beyond inexperienced parenting or rough handling.[48]G would have cried and been distressed immediately after the fracture was sustained. There would have been reduced movement in the right arm and any movement in the right arm would have been painful. The fracture site would have been painful and caused distress to G when touched.[49]The Father tells me he heard a click in G’s arm when he handled him. Dr Ahmad says that could be explained by already broken bone ends rubbing against each other, which would have been painful. Dr Ahmad says that from the information available to him (being the histories offered by the parents) that is highly unlikely because there is no indication of G being particularly distressed prior to the Father hearing the click.

Dr Karl Johnson

[50]Dr Johnson is a consultant paediatric radiologist based at Birmingham Children’s Hospital. He was instructed to provide a radiological opinion on the fracture. His report was prepared without first seeing the Father’s witness statement and he provided a reply to questions after being provided with that witness statement.[51]Dr Johnson tells the Court that X-Ray imaging of G on 9 March 2025 shows a slightly displaced traverse facture of the midshaft of the right humerus. There is no evidence of healing to the fracture site. The skeletal survey done 10 March 2025 also did not show any healing response. The skeletal survey done 24 March 2025 did evidence bone healing.[52]In Dr Johnson’s opinion the fracture is a result of significant force applied to the bone and, whilst the precise level of force needed is unknown, it is likely to have been significant, excessive and greater than that used in normal care and handling of a child. The fracture would not have occurred from normal handling, over-exuberant play or rough inexperienced parenting. G would not have had the strength or level of development to self-inflict the injury.[53]To cause the fracture both a suitable mechanism and significant force would have been required. The mechanism of undressing is a mechanism that could result in a fracture. The Court is told by Dr Johnson that the fracture is the result of a twisting, impact or bending snapping action applied to the bone.[54]There is normal bone density and no evidence of underlying metabolic bone disease. Dr Johnson concludes that G was no more predisposed to this kind of injury compared to any other child of his age.

Legal Principles

[55]Section 31(2) of the Act provides:
“A court may only make a care order or supervision order if it is satisfied— (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.”
[56]The burden of proof on all disputes of fact lies with the Local Authority.The standard of proof is a simple balance of probabilities. Whether an assertion of fact is true is binary. If the standard of proof is met, then the assertion is fact and treated so for my decision-making. If the standard of proof is not met, then the assertion is not a fact for my decision-making. There is no room for treating suspicion as fact for the purposes of my decision-making.The parents bear no onus and the burden of proof must not be reversed onto them. I must be careful not to premise my approach with an expectation of an explanation from the parents because doing so risks reversing the burden of proof. At the same time, the absence of a history of a memorable event where such a history might be expected (such as the witnessing of distress from a young child that sustained a major injury) may be very significant.[57]In BR (Proof of facts) [2015] EWFC 41 Peter Jackson J (as he then was) said (at [7]): “(3) The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred. (4) Similarly, the frequency or infrequency with which an event generally occurs cannot divert attention from the question of whether it actually occurred. As Mr Rowley QC and Ms Bannon felicitously observe: "Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low." I agree. It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities.” "Improbable events occur all the time. Probability itself is a weak prognosticator of occurrence in any given case. Unlikely, even highly unlikely things, do happen. Somebody wins the lottery most weeks; children are struck by lightning. The individual probability of any given person enjoying or suffering either fate is extremely low."[58]In determining the probability of an event I must have regard to the totality of the evidence, the wide canvass, and the width of the range of the facts.[59]I must form a clear assessment of the credibility and reliability of the witnesses in the case, especially the parents, whose evidence is of critical importance. While the expert evidence is important, it is the Court that decides as to whether an injury is non-accidental or inflicted and whether the likely cause is human agency, against the background of all the other evidence. It is important to ensure that experts keep within the bounds of their expertise and defer, where appropriate, to the expertise of others. I should be particularly alert for the dangers of the dogmatic expert.[60]Should I find that any of the injuries are inflicted, then I should endeavour to identify a perpetrator, although there is no obligation upon me to do so. In the case of Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348Laing J said (at [34]):
“I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding "straining to identify a perpetrator". The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”
[61]I remind myself that what is said by parents to emergency service operators and professionals in the immediate aftermath of an event are unlikely to be the products of considered and careful thought. It must be remembered when parents make such observations they are under considerable stress.[62]I bear in mind that witnesses may lie for many reasons quite apart from an intention to deliberately deceive and that just because a person lies about one thing, it does not mean they have lied about everything. Motivations to lie can arise from shame, misplaced loyalty, panic and fear. In the event I consider that any of the evidence I have read or heard contains inaccuracies or lies I remind myself of what was said in R v Lucas [1981] QB 720 and ABC [2021] EWCA 451 that:
“[a lie] may be probative of guilt. A lie is only capable of supporting other evidence against [the person telling the lie] if the [court is satisfied] that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of [the person telling the lie], or for some other reason arising from the evidence, which does not point to [the person telling the lie]'s guilt.”
And “… only if [the Court is satisfied] that these criteria are satisfied can [the person telling the lie]'s lie be used as some support for the [case against him], but that the lie itself cannot prove guilt. …”[63]I recognise that forensic medicine is not a perfect science. What may today be perceived as medical certainty may be discarded by future generations of experts when scientific research throws new light onto a topic, for example the ongoing advancement in our understanding of hereditary and genetic conditions. As Judge LJ (as he than was) observed in R v Cannings [2004] EWCA 1, “What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.” It follows that I must take into account the possibility of an unknown cause and the Local Authority must prove the cause is not unknown.[64]In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) said (at [10]):
“The 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 disputed 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.”
[65]If I find that the injury was inflicted and attributable to unreasonable parenting I should then ask:a. Is there a list of people who had the opportunity to cause the injury?b. Can I identify the actual perpetrator on the balance of probabilities?c. Only if I cannot identify the actual perpetrator to the civil standard of proof should I go on to ask in respect of those on the list, whether there is a likelihood or real possibility that the person was the perpetrator of the inflicted injuries. Determination of the Issues The Injury

Determination of the Issues

[66]The overwhelming weight of the expert evidence is that the fracture identified by X-Ray on 9 March 2025 was an inflicted injury caused by a significant twisting and/or bending and/or snapping mechanism alongside significant force in excess of normal or even rough handling. However, the issue of whether this injury is proved to be inflicted is not to be done in the silo of the expert evidence.[67]Whereas the expert evidence overwhelmingly weighs in favour of the fracture being inflicted, the overwhelming weight of the wider canvass of evidence is that each of these parents were experienced and caring towards their three children, which supports an inference contraindicating the fracture being caused by infliction. I must also bear in mind the parents’ denials of inflicting an injury and the impression I made of each of them as witnesses.[68]Confronted with this tension, the possibility of the injury arising accidentally perhaps aided by an unknown aetiology is a serious consideration to be disproved by the Local Authority.[69]The cause of the fracture was undoubtedly the application of force to G by an adult, who must have been touching him at the moment the bone broke. The fracture did not occur spontaneously and G did not cause it to himself. The question is whether the bone could have been weakened or in any other way be predisposed to fracture or in any other unknown way fracture on normal handling.[70]In my judgment the Local Authority has proved it was not so predisposed or liable to fracture on normal handling and has discharged its burden of proving that the fracture was not caused accidentally; was not as a result of an unknown cause; and nor was it as a result of an unknown aetiology. I am satisfied on the balance of probabilities this was an injury inflicted by the application of significant force. On the key issue of whether the fracture was caused by a level of force in excess of reasonable handling, despite Mr Howell-Jones’ entirely proper and valiant efforts, the persuasive expert opinions were not successfully undermined. My preference for the experts’ opinions was formed whilst also weighing the wider canvass and the parents’ own evidence. I have concluded that the weight to be given to the parents’ evidence is constrained by issues of reliability (in respect of both of them) and issues of candour and credit (in respect of the Father).[71]I therefore find that the fracture sustained by G was inflicted by means of a significant twisting and/or bending and/or snapping action applied to the bone as well as the application of significant and excessive force beyond reasonable handling and beyond the rough handling of an inexperienced parent.

Identification of the List

[72]There are two people who had the opportunity to cause the fracture. First, the Mother given she had care of G whilst the Father was at work. Secondly, the father given he had sole care of G after the Mother went to bed. Can a Perpetrator be Identified on the Balance of Probabilities? The Mother

Can a Perpetrator be Identified on the Balance of Probabilities?

[73]The Mother argues that the possible window for the fracture being inflicted onto G commences from 10:17pm on Saturday 8 March, rather than 12:16pm that day because at 10:17pm G participated in a FaceTime call during which he showed no distress. I accept that to be so. I have viewed a screengrab of the FaceTime call. G is held by is Mother. In the still image there is no sign of distress. I find it highly improbable the Mother would cause G to participate in a FaceTime call with a third party if G was at that time suffering from an inflicted fracture.[74]The Mother then says the window of opportunity for the infliction of the injury is small, being from that time until the Father returns home at 11:40pm. That may be so, but it would take a mere moment in that 1 hour 20 minutes to inflict the injury.[75]I have carefully considered the limitations I have identified in the Mother’s evidence. Whilst the Mother was troublingly inconsistent about the cry she heard, I do not think she was trying to deliberately mislead me. Notwithstanding the problematic aspects of the Mother’s evidence, the Local Authority has not proved on the balance of probabilities that the Mother inflicted the fracture.[76]I accept the likelihood of the Mother doing so runs against the overwhelming weight of the wider canvass. Moreover, I find it improbable the Mother would have been able to settle G and compose herself in the time that was left until the Father returned home. Were I to find the Mother inflicted the fracture, I would have to conclude the Mother failed to seek medical attention for G after inflicting the injury for around two hours. I consider that is unlikely. It is not likely the Mother lied to her partner, lied to the hospital, lied to the police or allowed her partner to take the blame for inflicting the injury.[77]Whilst the absence of a final feed for G for such a long period and him being left downstairs with the Father until the early hours of the morning rather than being settled and put to bed is suspicious of the Mother not wanting to disturb G after injuring him, I accept that was the particular routine in the house. In that context, the behaviour is not evidence of a consciousness of guilt.

The Father

[78]The Father returned home after 11:00pm after a long day out. By nearly 2:00am, having not been fed for perhaps four hours, G was clearly hungry. He was crying. He was wet and had not had his nappy changed for several hours. Whilst the Father said he liked G to be kept downstairs so that he (the Father) could spend time with him, there is no evidence the Father actually had any meaningful interaction with G over the hours they were downstairs together. The Father did not even pick G up to cuddle him, soothe him asleep on his chest, check his nappy or give him the feed that had been prepared about four hours earlier. On the evidence, the first time the Father held G after he got home from work was around 1:50am. Instead, the Father’s focus was on playing PlayStation or looking at his mobile phone.[79]Whilst the Father reminds me that he is used to working night shifts, I found his claims that he is simply not affected by having little sleep (“It does not bother me. I keep going. It’s not a big deal.”) entirely unconvincing. Furthermore, on the central issue of his actions at around 1:50am, for the reasons I have already described, the Father did not impress.[80]The Father admits causing the fracture, having heard a click. He made admissions very shortly after 1:50am to the Mother and third parties. However, there is a possibility the Father moved already broken bones. That theory, of G’s arm already being fractured, is supported by the wider canvass of evidence concerning him, which is only favourable of the Father’s capacity to provide appropriate care.[81]I discount that possibility as being likely.[82]The Local Authority has satisfied me on the balance of probabilities the fracture was inflicted by the Father. He alone had care when the Mother went to bed. He alone had to deal with a hungry, crying and wet baby at about 2:00am when his apparent principal focus for more than 2 hours after coming home very late was work was playing his game. There is no evidence of him breaking from playing his PlayStation at any time.[83]Whilst I accept this conclusion runs against the weight of the Father’s experience caring for his children and the wider canvass, I consider the Father was acutely vulnerable to being unable to safely manage a distressed child – having been busy, active, out of the home and interacting with others for 18 hours that day and then awake for an extended period playing PlayStation.[84]I have been unable to accept the Father’s evidence, which I consider was not candid.[85]It follows, as best I can identify on the balance of probabilities, the fracture was inflicted by the Father in the early hours of Sunday 9 March 2025.[86]Having concluded the injury was inflicted by the Father, I must go on to observe that he has not provided an explanation that honestly explains its infliction. I find the Father knows he inflicted the fracture by application of significant and excessive force above normal handling, but has not given a truthful account of doing so to the Court, the Mother, the police, medical treaters or the Local Authority.

Conclusions

[87]Given these findings, I find and I am satisfied in respect of G that he has suffered significant harm and is likely to suffer significant harm and that harm and likelihood of harm is attributable to the care given to him, and likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him.[88]There has been no submission that the threshold criteria in respect of K and/or S would not be met if the Local Authority’s findings were made out.[89]I find and I am satisfied in respect of K and S that they are likely to suffer significant harm and that likelihood of harm is attributable to the care likely to be given to them if an order were not made, not being what it would be reasonable to expect a parent to give to them.[90]Alongside assessment of the Father, it will be necessary at the welfare stage to assess the Mother’s insight into my conclusions as well as her ability to protect (about which I have made no finding), having regard to my observations of how she presented and gave evidence, taking the Father’s explanation on trust.[91]That is the judgment of the Court.

Subsequent to the Judgement

[92]The Local Authority has sought to substitute the present Interim Care Orders with Interim Care Orders pursuant to section 38(6) of the Children Act 1989 with the children to be placed with the Mother separately from the Father for assessment. The Father will continue to have supervised contact. All parties join in inviting the Court to approve that course. I am satisfied it is necessary to make such an order and for that assessment to take place.[93]The Local Authority proposes to undertake a risk assessment of the Mother and the Father with such an assessment to be filed by 5 September 2025 (i.e. 15 days time). In just { }, { } will be laid to rest. I am informed by the parties that His Honour Judge Reece has tightly managed this matter with a view to an Issues Resolution Hearing taking place on 15 September 2025. { } passing was not known when the IRH was listed.[94]I do not consider a fair assessment of the parents can take place in the time proposed. I worry it will set them up to fail. I have concluded that more time is required than the present timetable allows so that the family can grieve, reflect on my findings and engage in the proposed assessment. In my judgment an extension of the timetable beyond 26 weeks by a further 3 weeks is necessary to allow this to occur.