H, Re [2025] EWFC 337 (B)

[2025] EWFC 337 (B)Case No ME24C50093
IN THE FAMILY COURT AT MEDWAY
Date DATE: 03 October 2025
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF H, (DOB: 14 th February 2023).
Before
HHJ CLIVE THOMAS
Between
KENT COUNTY COUNCILApplicantM1 st RespondentF2nd Respondent(H (Minor acting by his Children’s Guardian).3 rd RespondentLegal Representation.Miss Porter, (Counsel) for Applicant Local AuthorityDr Love, (Counsel) for First Respondent MotherMiss Bhachu, (Counsel) for Second Respondent FatherMiss Kochnari/Miss Clubb, (Counsel) for Third Respondent ChildMiss Rahman, (Counsel)/Dawn Berry (solicitor) for First Intervenor.Miss Taylor/Miss Slee, (Counsel) for Second Intervenor.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.Judgment contents.Page No 1.Summary of Judgment: 2 2.Introduction: 2 3.Evidence:•Medical/social services/police: 3 – 11•Dr Williams, consultant radiologist: 11 – 12•Dr Ward, consultant paediatrician: 12 – 14•Cognitive assessments of M, F and MU: 14 – 15•Paternal grandmother: 15•Mother: 15 – 20•Father: 20 – 24•Maternal uncle: 24 – 25•Maternal grandmother: 25 – 28 4.The Law: 28 – 37 5.Findings/Analysis: 37 – 47 6.Conclusion: 47 – 48JudgmentIntroduction.
[1]The court is concerned with the welfare of a child H who is two years old. H’s mother M, (who is 23), and his father F, (who is 25), are the first and second respondents. H’s maternal grandmother, (MGM) is the first intervenor and his maternal uncle MU, (who is 18) is the second intervenor. On the 6th January 2023 H suffered a seizure which necessitated his admission to hospital where it was discovered that he had sustained a fracture to his skull. The medical evidence is that the seizure was not caused by the fracture but was an infant febrile seizure.[2]The local authority’s pleaded case is that the skull fracture was an inflicted injury, and that the perpetrator was either M, F or the MGM or alternatively there is a real possibility that one of these individuals was the perpetrator. By the time of the trial the local authority were no longer alleging that the MU was in the pool of perpetrators. It is also alleged that the parent or the parents who did not cause the injury failed to protect H from injury. In addition, it is alleged that the perpetrator of the injury would have known that they had caused H significant injury and that they failed to seek immediate medical attention for him. The final allegation is that the parents delayed in presenting H to hospital in a timely manner following the infliction of the injury.[3]This judgment follows a nine-day fact finding hearing which commenced on the 22nd September 2025. The M, F and the MGM denied the allegations made against them. By the end of the trial the local authority withdrew its allegations against the MGM. This in my view was a sensible course. It seems to me that the allegations levelled against the MGM and the MU lacked any evidential basis save for them having the opportunity to inflict injury. In the MU case I am not convinced that the evidence even supported that proposition. I am unsure why the MGM and the MU were placed or even considered to worthy of placement in the pool of perpetrators when there were a number of additional individuals who could have been so placed solely on the basis of having the opportunity to cause H harm. These are serious and hurtful allegations for any family member to be confronted with. They should only be advanced if there is a sound evidential basis for so doing. In this case there was no sound evidential basis for placing or considering placing the MGM and the MU in the pool of perpetrators. It is only right therefore that I make a positive finding that the MGM and the MU did not inflict any injury on H.[4]In submissions the local authority moved away from its primary position that one of the parents on the balance of probabilities inflicted injury on H and instead urged the court to make pool finding. Summary of Judgment.[5]I do not make a finding that on the balance of probabilities F or M inflicted an injury upon H causing him to sustain a fracture to his skull. I find that there is a real possibility that either parent may have inflicted the injury. The evidence. Medical records, social services records and police records.[6]I have set out below the relevant entries contained within the ambulance records, the health visitor records, the hospital records, social services records and the documentation generated by the police. My understanding is that the police are no longer pursuing any criminal prosecution against the M, F or the MGM. All page number references are to the pdf number of the sealed trial bundle. There has been extensive phone disclosure in this case, and I have been provided with thousands of pages setting out the download history for M, F and the MGM mobile phones. I am in debt to counsel for having provided schedules of those pages that are of relevance. I anticipate that this was a Herculean task which has without doubt assisted the court.• 27th February 2023: The health visitor, (HV) note on page 1350 noted that M F and H were seen in a clean and tidy living area and loving bonds were observed. M was recovering well from the delivery, no low mood or anxiety observed well supported by F and M’s immediate family. No concerns were identified or reported.• 30th March 2023: The HV note on page 1348 records that both parents were seen with H in “a clean and tidy living area, loving bonds observed”. M reported as having fully recovered from delivery and that she was well and happy. No low mood or anxiety disclosed, and it was noted that M was well supported by her large close family. No concerns were identified or reported.• 21st August 2023: The HV note on page 1346 records this:
“Telephone call… Julia has been supporting M following a referral from the GP for post natal depression which appears to be resolving with a positive response to medication. It became apparent during Julia’s assessment that M has a diagnosis of Aspergers and ADHD. M also disclosed to Julia that she misuses cannabis. Julia reported no concerns with M’s parenting and her attachment to H, but her mother (whom she lives with) will take over when she becomes stressed. M appeared reluctant to engage with Julia when she discussed services to address M’s misuse of cannabis and MGM mentioned that M was unlikely to stop as it kept her calm, (her ADHD condition), and all her friends smoked cannabis. … F is involved and lives a few doors away. Duty Health Visitor reported that there were no safeguarding issues, no issues with the parenting of H and M’s attachment to him and the MMA undertaken at the 6 – 8 week review indicated no anxiety or depression. M had engaged well with the Health Visiting Service… M smoked cannabis throughout her pregnancy the midwifery service were aware of this misuse but did not inform the Health Visiting Service”. • 7th September 2023: There is a note from the perinatal community mental health nurse Miss Gummery, (777). This states that M was referred to the Perinatal Mental Health Service, (PMHCS) by her GP as it was reported that M was low in mood, feeling irritable, having thoughts of self-harm and “thoughts that she is not good enough for H”, (779). By the time that PMHCS conducted a virtual assessment of M the GP had prescribed her Escitalopram. The MGM reported that this had made a change but M did not. The MGM noted that M was less irritable and both reported that M had been sleeping better. M reported that she no longer had any suicidal ideation as she had previously had thoughts about jumping in front of a train. M and the MGM spoke about M spending long periods of the day on her own. The MGM said that she felt that M can find it stressful looking after H for all of this time on her own. M would spend minimal time out of the house as she did not like mixing with people due to her Asperger’s. M spoke of “feeling she is not good enough, and that baby H is better off with other people…she gave the example of him settling for others, but not her”
. The MGM said that H “picks up on M’s stress”. M and the MGM said that M was finding it increasingly difficult to interact with H. On the 16th August 2023 a home visit was conducted. M was noted to be engaging well with M. M was unable to feed H and called for the MGM who said that she would often step in as she was more “calm” with H. The MGM said that M could also find it hard when she is on her own with H, and “stresses out” particularly when she is unable to immediately soothe him. M and the MGM said that M tends to manage this by taking H out for a walk. M admitted to using cannabis on a regular basis as she found this to be the most effective in managing her ADHD symptoms. M said that she smoked cannabis once on getting up, once in the middle of the day and then once before retiring to bed, (799). • 5th January 2024: H was seen by the Health Visitor with his parents. Positive interaction was observed between parents and child. H was smiling, sociable and age-appropriate behaviour was observed. The note records “no parental concerns were raised during contact regarding H’s development, behaviour or general health”, (1344). The note records that no safeguarding concerns were identified and the “parents presented as respectful and supportive of each other”. • 6th January 2024:  9.15 am, Ambulance Crew note, (1248):
“PT fitting for 3 mins”.  9.16am, Paramedics on scene, D Holden and K Ashdown. - Under History of Presenting Complaint this is noted: “Pt was playing with dad on the floor when he went floppy and started to seize. Described as going stiff and then shaking all over”. - Under Primary Survey Notes, (1251): “patient lying on the floor just vomited. Nan and parents on scene. Pt appears post ictal. Appearance – floppy tone, unable to follow with eyes, fixed gaze. Work of breathing- accessory muscle use, no head bobbing, no nasal flaring, no recession, no abnormal sounds, no stridor, not abnormal positing, no tripoding. Circulation – pale warm to touch, no cyanosis, no mottled skin. - Under Secondary Survey Notes, (1252): “witnessed by parents. No prior seizure activity”. - Neurological notes, (1252) “no history of seizures/epilepsy…pt has been well in himself prior to this episode. No history of head injury. - Gastrointestinal notes: (1252). “Pt vomited after seizure”. - Respiratory Notes”. (1252) “no obvious bruising wounds or obvious deformity”.  Witness statement from Paramedic K Ashdown dated the 10th January 2024, (862). - On scene was Mum Dad, Nan and another female … Mum and Dad appeared stressed, with mum visibly crying, Nan was very calm and completed the majority of the talking with crew…my colleague gained history from Nan”. - “I overheard Nan state H was playing with dad on the floor and then became floppy and started seizing for approximately 5 minutes. Event was witnessed by mum and dad and nan was woken up from sleep”. - “Parents and nan … were asked if H had a history of a head injury… they replied no” - When H was being taken to the ambulance “I had overheard Nan say to H’s mum something along the lines of “if you need help at hospital with medical history then call me”. “  Witness statement from Paramedic D Holden 10th January 2024, (863): - MGM reported no “diagnosed medical conditions, takes no regular medication and has no allergies”. - “H’s seizure had been witnessed by his parents; H was playing with his dad when he went floppy. H’s body then went stiff and he started to seize. H’s parents then woke up H’s nan who went downstairs to see H and called for the ambulance”. - MGM denied any history of H hitting his head. - “H had been well in himself prior to the seizure occurring”. - The parents were stressed, “H’s parents had little interaction with me or my colleague as most of the conversation was carried out by H’s nan”. - “Before leaving the address H’s nan said to H’s mum that she can call her if the hospital need any further information about H”.  6th January 2024 a child protection medical was carried out by a Paediatric Registrar Nicoleta Atuanya, (849). The following is recorded: - History from Father – Woke up this morning, H was in his cot. Took him downstairs to make his morning bottle. Dad went outside to smoke and left child on the carpeted floor to play in the living room. Father was out of the room for less than 5 min. when he came back he found H still playing on the floor. Father reports that H was his normal self and then he gave him his bottle and he drank most of it. At that point father reports that H laid on his right shoulder and still awake and all of a sudden he went stiff and started shaking all 4 limbs. No eye rolling. Then father proceeded to lay him on the floor and called for mother and maternal grandmother for help. Father called 999 and requested for Ambulance. Father reports that his body temp was normal. He didn’t feel hot. Grandmother arrived downstairs and father ran upstairs to get mother When Dr Halbert explained to the parents that the CT head scan has shown multiple fractures Child H’s father said that “it is probably where throws himself over on floor.”
Child H’s father repeated this several times during the child protection medical”. - History from Mother:
“Paramedics were already in attendance when mother arrived. Mother noticed that Child H was shaking all over his body”, (851). - The report notes that F lives on the same street with his mother and reported that H does not ever stay at his house. M lives with the MGM and Maternal Uncle and is looked after by M, F, paternal grandmother, and EK a neighbour. • 7th January 2024: A joint visit is carried out by police officers DC Jarvis and PC Short and Paul Megget from social services, (1150). The police note is redacted as to identity but seems to have been a visit with the MU. The note records this: - M and F share a room with H who sleeps in a cot next to their bed, (1151). - “everyone was still in their beds when he heard F shouting for [redacted] mum… F came out of their room holding H who was seizing and knows his mum come out took him off F and came downstairs with him. [Redacted] said he just know this but did not see it. [Redacted] said he heard F say he woke up and H was seizing. [Redacted] came downstairs about 5 – 10 mins later. Everyone was in there at this point. His mum was holding H on his side, behind him in front of the sofa whilst he was still seizing. F called for an ambulance. H stopped seizing just when ambulance arrived”. - “H crawls around and he has seen him hit his head on the corner spike of the fireplace a few times…He hasn’t seen this happen recently. The fireplace is made of a plastic like material and is hollow… he can’t remember the last time it happened, but knows either F or M were there. [Redacted] said he has not seen anyone do anything to hurt H”, (1151). • On the 7th January 2024 the MGM was interviewed by DC Mulrey. The MGM said the following:- - The MGM says that F would spend three or four nights at her address, (1912). - On page 1916 the MGM says that “I have noticed when he crawls around he does fall a lot, he does bump a lot. I have noticed- because of my other grandkids- sort of autistic traits… we’ve all got half mobility, so I think H has got half mobility- because of my other grandkids -sort of autistic traits… he is very clumsy, … he has rolled off the sofa before”. - On page 1917 the MGM says that H “sits by door and he bangs his head like that on the doors, which is another thing they tend to do”, (referring to autism). - On page 1918 the MGM explains how whilst trying to walk H would fall. - The MGM asserts that H had not had any medical issues, (1920). - On page 1922 the MGM gives this account: “F woke me up Saturday morning saying “H doing something”
. He didn’t actually know what he was doing. So I went down and found him on the floor having a seizure…I obviously dealt with the seizure because I’ve done care work and whatever. So I dealt with the seizure, phoned the ambulance, or F phoned the ambulance. I took over on the phone while he went and woke her up – M up. She came down in hysterics. I was like “Go have a cigarette – just get out of the way” don’t -you know don’t watch, and then I just dealt with him till the ambulance arrived”. On page 1931 the MGM explained that F phoned the ambulance and he put the phone on loudspeaker and the MGM “dealt with them…while he went and woke M up and got her to come downstairs”. - On page 1925 the MGM says that H had spots which she believed were bites and that H had been “up to F’s mum’s and I know she’s got cats, they’ve got fleas”. - The MGM informed the police officer that she had seen H bang his head on the door and the fireplace and that when he falls H would hit the back of his head and that he banged his head on the door, (1929). The MGM said that neither she M or F had hit H and said that the skull fractures were caused by his “constant banging his head when he falls… yeah walking along on his own. It is the back of the head that gets hit nine times out of ten”. When the police officer asked if the neighbour AB might have hit H she replied, “100 per cent no”. When asked about the PGM the MGM replied “I wouldn’t like to say. I don’t believe she would. Its her grandson. Whether the – been there with the kids there, and the kids got a bit aggressive possibly because they’ve got problems”… there’s that possibility. Don’t think anything would have been done intentionally though… the two little girls might have shoved or something like that and done something but not intentionally hurt him”, (1933). • 7th January 2024: M was interviewed by PC James. M gave a prepared statement where she said that H had been crawling for three to four months and was now pulling himself up onto the furniture. M said that she had no idea how H had sustained the injury to his skull. On page 1842 M says this:
“no one has ever hurt H or dropped him and therefore I’m confused as to why he has these injuries. H does sometimes fall over from the furniture and lands on the back of his head. He may cry for a few seconds and he gets back up and starts playing again… I have not assaulted my son and neither has anyone else”
. M answered no comment to the majority of questions that were put to her. M did say that when she was at work between 5.30 and 7pm H would be looked after by F, the MGM or her neighbour AB who was the MGM’s best friend, (1859). M said that H “stands and he’ll try and walk thinking he’s clever, and he’ll accidentally lose balance, and he’ll just go back on the back of his head”. M says that H would walk holding onto the edge of the sofa, (1862). M said that he “would fall on the carpet, and sometimeshe’ll accidently hit one of his toys that he’s playing with. Other than that its just normally just on the floor on the carpet”. On page 1863 M says “my mum’s got a fireplace, but I haven’t noticed him hitting it". Later in the interview on page 1865 M says that she has seen H hurt himself on the fireplace and that was “months ago”. M said that H was “9 months, 8 months, 9 months” and that was before Xmas 2023. On page 1866 M says this:
“He’ll be playing with his toys, like usual or trying to stand with his, like walker on the sofa and all that, and he’ll lose his balance and he will accidently catch the fireplace, but I’ve never been too concerned because he just cries and carries on once I’ve comforted him”
. M confirmed that this had happened more than once but had not happened often. M confirmed that she had seen this happen. M says that she was not concerned after these incidents because he “acted normal… if I had noticed some change in him I would have gone and got him checked”. M says that she had informed the MGM. M explains that H had hit his head on “normally the corners”. M asserts that the MGM and F had told her that H had hit his head in this way when they were looking after him. On page 1868 when asked when the last time was that she had seen H hit his head on the fireplace or being told about hitting his head M replied “a month”. M said that “we are trying to find something we can put round it” but that nothing had been done in relation to that, (1869). M said that “at the moment, we just keep him away from that side of the front room”. • 7th January 2024: F was interviewed by DC Roberts and DC Whithead. The following is recorded. - F says that he has never been left alone at the MGM address with H, (1879). - On page 1880 F says this:
“He’s climbing on things and falling over which is why his head is the way it is”… sometimes he’ll loses his balance and he’ll obviously go backwards and topple onto his head”. - On page 1884 F was asked a series of questions about H health. F made no reports of any health issues prior to the events of the 6th January 2024. When asked if F had noticed anything that would have been similar to a seizure F replied “nothing at all, this literally came out of the blue”, (1885). - On page 1885 F gave this account: “So obviously I woke up with H. It was, like, half 8 (indistinct) M took him downstairs (indistinct) was staying with L that night. So I took him downstairs, made morning coffee, made H's morning bottle, sat with him, gave him some of his bottle. He even wanted to play on floor, so I put him on the floor with his toys. I then went and stood by the back door and had a cigarette. And that was for a few minutes. And then once I came back in, picked H up, tried to give him the rest of his morning bottle. He drank the majority of it, and he started playing with the bottle lid. And then he sort of laid down into my arms, and his eyes were just staring into space, and his whole body just started shaking. So I proceeded to lay him on the floor in the middle of the front room where he couldn't hit his head on any bits of furniture or anything and shouted out to M’s mum - I mean, M”. - On page 1886 F says: “it was almost like he was staring into space… and his whole body just started shaking”. - On page 1887 F says H watched him whilst he was having his cigarette and that he was able to still see H. - F says that H’s eyes “went into space, and his body just started shaking”
. F could not recall how H’s pupils appeared, (1889). F then says that “his legs sort of went out, and it was almost like a plank of wood”. F says that he was sitting on the sofa with H and he placed him on the floor. F says that he shouted for the MGM and that she took over whilst he telephoned 999, (1890). On page 1892 F says that he shouted for the MGM and M, and the MGM was the first to run down the stairs. F says that H’s skin colour looked completely normal. - F says that when he was told at the hospital that H had some fractures to his skull “I proceeded to explain to them obviously with him trying to learn how to walk and he’s pulling himself up he’s always falling over”… I personally think it’s from when he’s trying to climb up the sofas – where he’s starting to learn to walk. He’s falling over onto his back and the back of his head”, (1894). - On page 1895 F says:
“we didn’t notice anything different until I believe Saturday morning”
. F denied that he had hurt H or that he had ever hit him, nor was he aware of anyone else having hit H. - F said that the bruises noted on H’s knees was caused by him crawling, (1895). F says that H would bump the middle part of his back against the door. - F says that H had fallen off the sofa a couple of times and that he would throw himself forward off the sofa and “lands behind”, (1896). F says that he had not seen H bump into anything else. • 8th January 2024: Health Visitor Safeguarding Concern, (1257). There is an entry that reads “parents said to police that they had raised concerns with health visitor on the 5th January regarding H hand banging but have since retracted this statement”, (sic). The clinical notes do not indicate any concerns raised by the parents. • 9th January 2024: - Paediatric Review, (965): Two bruises on both knees no bruises elsewhere. - Supervised contact note 9th January 2024, (717). It is recorded that F said that H “throws himself backwards and rocks …F believes H may have caught his head on the radiator/ or door. F said that there are no marks on H but stated that he does have a tendency to throw himself around”. • 12th January 2024: Dr Johnson, Consultant Paediatric Radiologist letter. Dr Johnson reviewed the CT scan of the 6th January 2024 and the skeletal survey of the 8th January 2024. “these appearances could represent fractures. Alternatively, they could be normal congenital sutures. My initial impression was that these are congenital sutures. However, on review of these films with one of my colleagues, their opinion is that these are fractures. I think both opinions have merit and one cannot be certain”. • 19th January 2024: - A health visitor note on page 1277 records that “H had been left unattended and unsupervised in the family home, when his father stepped outside to smoke a cigarette. Therefore, there is professional concern over levels of supervision”. - The MGM reported that H appeared clumsy, he frequently falls over and has no fear of danger. The MA also reported that H rocked at times and that she and other family members are concerned that he was showing autistic traits, (1311). • 8th March 2024, (1129) (1131): Dr Johnson’s letter following a CT scan carried out on the 6th March 2024. Dr Johnson opined that the appearances had “significantly altered… the appearances do indicate that there has been a fracture of the skull vault… there has been a traumatic injury to the skull resulting in a fracture(s). • 14th March 2024: Paediatric Safeguarding Report, (950). On the 14th March the parents had a meeting with the Consultant Paediatrician Dr Halbert following confirmation from an external radiographer that the CT scan showed healing fractures. The parents could provide no explanation as to how these could have occurred. “Parents report that H has been having “absence episodes” since around 6 months of age; no medical advice sought”. It was also noted that the “MGM feels that he shows “autistic traits”. • 9th April 2024: H was seen at the home of the maternal aunt, (MA). It was noted that the MA “described some vacant episodes which occur sporadically and last momentarily”, (1282). • 10th April 2024: EEG report, (870). The report notes that H was brought to the appointment by F and a social worker. The report states: “Dad was holding him and giving him a bottle, Child H became quiet and was staring, he was not responsive to dad. He then had jerking of all four limbs. Dad called an ambulance, when the crew arrived the seizure had stopped, however he had another episode about an hour later when they arrived at hospital which is reported to have needed IV Lorazepam to stop. There was no intercurrent illness. He has been well since but dad reports that he is often having blank spells where he stares into space for up to 30 seconds”. • 17th May 2024: Letter from M’s GP, (872). This states that in 2013 M was diagnosed with Asperger’s Syndrome, oppositional defiant disorder, and ADHD and that she was for several years under the care of the child and adolescent psychiatry unit and that she has been on medication for ongoing depression and anxiety since July 2023. • 22nd June 2024: Letter from F’s GP, (873). This states that F was diagnosed with anxiety and depression in 2021 and that he was last prescribed medication in November of that year and that he has not been seen for this condition since 2021. • 20th August 2024. H was taken to the seizure clinic by F and a social worker, (1453). It was noted that on the 21st June 2024 it was suspected that H had two febrile convulsions secondary to an upper respiratory tract infection/tonsillitis. Dr Mugweni noted the following: “He reports that he had been under the weather at the time with coryzal cold-like symptoms. He does not remember H having a fever at the time. The seizure occurred in the morning around 8.30am. Dad reports that he had taken him downstairs and then he went to the backdoor for a cigarette. He had tried to give H a bottle, but he was not keen to take this. After he returned from having a cigarette, H did manage to take his bottle. Not long afterwards, he reports H going stiff with his eyes looking glazed over and then he developed generalised shaking of all limbs. Dad laid him on his side and his grandmother was coming downstairs and called 999 for an ambulance at 5 minutes. I gather that the seizure stopped without any rescue medication”. • 10th October 2024: H was admitted suffering from a seizure, (1459).

Oral evidence of Otakar Sefl, initial social worker

[7]I heard short evidence of Otakar Sefl, the initial social worker. Mr Sefl provided evidence in relation to the work undertaken with the family following H’s admission to hospital. Dr Williams consultant neuroradiologist.[8]In addition to his two reports dated the 4th June and the 8th December 2024 Dr Williams was called to give oral evidence. In terms of diagnosis Dr Williams opined that the CT scan of the 6th January 2024 revealed a transversely orientated occipital fracture spanning each halve and running into the lambdoid sutures and running into the posterior left parietal bone. The fractures widened slightly prior to entering the sutures especially on the left, (384).[9]In terms of the mechanism of the fracture Dr Williams opined that fracture was caused by a “blunt force trauma to the back of the head”, (387) and a non-accidental injury was the most likely explanation, (386 and 387). Dr Williams’ view is that the force needed to cause such an injury “would be high and obviously inappropriate” and “H would have been in pain and reacted accordingly”, (387). In his oral evidence Dr Williams said that the trauma would be memorable it could be a thump to the head, a drop from height, or a kick. Dr Williams considered that the “inappropriate force and reaction would be obvious to the perpetrator and any witness but a carer not present for either may be unaware of any injury”, (387). Dr Williams opined that the “imaging is consistent with one impact”, (387).[10]Dr Williams in his oral evidence agreed that his opinion was based upon three factors. Firstly, the imaging performed on the 6th January and the 6th March, secondly that there was no alternative naturally occurring explanation for the fracture and finally that there was no adequate accidental explanation offered by the parents.[11]In his report Dr Williams expressed the view that differentiating a suture from a fracture can be difficult. On page 368 Dr Williams said this:
“Some clues may be the presence of soft tissue swelling (not applicable here), whether the line has a zig-zag morphology and sclerotic borders (sutures) versus well defined, sharp non-sclerotic edges (fractures), the location and whether the line joins a possible suture seamlessly or widens before it does so-the latter more likely with a fracture”
. In his oral evidence Dr Williams agreed that the two linear lucencies revealed on the CT scan of the 6th January 2024 could either have been sutures or a fracture. Dr Williams’ view was that on the balance of probabilities the presentation was not one of sutures as there was widening, they extended into the parietal bone and there was no zig zag morphology. Dr Williams agreed with the opinion of Dr Johnson who opined that the CT scan of the 6th March 2024 revealed evidence of the fractures healing. Dr Williams did not accept that the CT scan of the 6th March showed evidence of the sutures having formed. Dr Williams said that none of the other sutures had formed and that the complete healing of a suture in 2 to 3 months would be highly unusual. In response to questions from Miss Rahman Dr Williams said that when interpreting a CT scan “one always has to ask if these are an accessory suture… these are not accessory sutures”.[12]Dr Williams opined that there was no naturally occurring explanation for the fractures. The fractures were not caused by the seizure, they were not birth related and they were no evidence of any bone density issues.[13]Dr Williams’ view was there was an absence of any adequate accidental explanation for the fractures. Dr Williams said that the pattern and location of the fracture was highly unusual in an accidental trauma “the occipital bone is especially thick and difficult to break”, (370).Dr Williams did not consider that the fracture was self-inflicted or would have arisen in the course of normal/rough handling or rough play. Dr Williams was shown two photographs of the fireplace the surround of which it is said is made of wood. Dr Williams was not of the view that the fracture was caused by H throwing himself to the floor or colliding with the fireplace surround. In his oral evidence Dr Williams said that it was unlikely that H falling back onto the fireplace surround would cause such a complicated injury. Dr Williams said that the “occipital bone is hard to break it is an unusual injury”. Dr Williams said that if H had been dropped onto the fireplace surround “we would be having a different conversation”.[14]Dr Williams opined that timing was not possible on the basis of radiology but “applying the somewhat crude measure of the absence of soft tissue swelling then it is likely any blow occurred more than 1 – 2 weeks before imaging on 6th January 2024”, (387). In response to questions from Miss Kochnari Dr Williams said that it was possible that the trauma occurred in early December but that “November is pushing it”.[15]Dr Williams in his oral evidence did not consider that the absence of a soft tissue injury/swelling to the scalp, the presence of normal intercranial appearances, the absence of any bleed to the brain, the absence of focal or diffuse brain injury and the absence of any other bony injury was of assistance in determining the causation of the skull fracture. Dr Ward, Consultant Paediatrician.[16]I have had the benefit of considering two medical reports from Dr Ward, dated the 29th July 2024 and the 10th January 2025. Dr Ward was also called to give evidence. Dr Ward opined that the skull fracture was not caused by an underlying medical condition, nor by the seizure. Miss Rahman asked a series of questions which suggested that appropriate tests had not been carried out to determine if H was in fact suffering from an underlying medical condition. Dr Ward said that a parathyroid hormone test was not necessary in this case to detect under mineralisation because clinically it was not indicated in a child that was not suffering from multiple fractures or easily fracturing, and the rest of the biochemistry results and the skeletal survey did not indicate that such a test was necessary. In reference to page 467 of her report Dr Ward had noted that copper levels were not checked but that H had none of the clinical or radiological features of copper deficiency other than skull fractures. Dr Ward explained how she had carried out a two year post graduate research on copper deficiency and she was of the view that H was not suffering from copper deficiency despite that not being tested. Dr Ward did not consider it necessary to test for Osteogenesis Imperfecta and repeated what she had said in her report that this is a rare condition and in this case there were no clinical “manifestations “to suggest this condition in H’s case. Dr Ward resoundingly rejected Miss Rahman’s suggestion that her assumption that H had no underlying medical conditions was unsound as there were more tests that could have been carried out.[17]Dr Ward did not consider that on the balance of probabilities the fracture was caused by H falling from a sofa, rocking against a door or falling backwards, (whilst navigating around the room using the furniture), onto the wooden surround of the fireplace. In her oral evidence Dr Ward said that it would be unusual for a child to pull himself up and then sustain a complex fracture of this nature adding “but I would not discount it”. Dr Ward in her oral evidence said that she could not exclude this possibility without knowing the details of the alleged fall. In response to questions from Dr Love Dr Ward said that she could not absolutely exclude a fall onto the fireplace surround as the cause of the fracture. Dr Ward agreed with Miss Taylor that short falls can cause a skull fracture as can a child rolling off a bed or sofa.[18]Dr Ward opined that the fracture would have “required a significant impact”. Dr Ward considered that the absence of a plausible explanation for the occipital fracture was “highly suggestive of either inflicted non – accidental injury, or an undisclosed significant accidental fall”. Dr Ward’s view was that a non-accidental injury could have taken the form of an inflicted blow to the back of the head or involving an object. The fall would have been from a significant height, a fall downstairs or a fall associated with being carried by another person, (476). In her oral evidence Dr Ward said that the most common skull fractures in babies were to the parietal bone. Dr Ward accepted that fractures to the occipital bone do occur if a child falls back forcibly or is pushed back or if the child sustains a blow to the back of the head. Dr Ward said that the fracture was significant because of the extent of the fracture; it had passed through the suture line and onto the parietal bone. Dr Ward said that she would defer to the opinion of Dr Williams as to the potential timing of the injury.[19]Dr Ward opined that the most likely explanation for the seizure that took place on the 6th January 2023 was that this was a febrile seizure as H had a prolonged fever and had a low total white count and lymphocyte count which would be consistent with a viral illness. Dr Ward also said that she could not exclude the possibility that the seizures were symptomatic of the fracture but that she considered this to be less likely. In her oral evidence Dr Ward reiterated what she had said in her report that she did not consider that the seizure was related to the fracture because of H’s presentation and the fact that he was feverish, and presenting with low white and lymphocyte count. There was also said Dr Ward no evidence that H’s brain had been injured.[20]Dr Ward in her first report opined that “given the severity, site and nature of the fracture, (including crossing suture lines), I would expect any adult present at the time of injury to be aware that H was likely to have suffered injury”. Dr Ward arrived at this view because of the mechanism of the injury whether accidental or inflicted and by H’s response. Dr Ward opined that “it is likely that he will have screamed in pain and continued to cry for minutes… I would expect there to be a change in behaviour either by crying and showing distress, or by altered consciousness immediately after injury”, (471). Mr Dowsett, Consultant Clinical Psychologist. Capacity and cognitive assessment of M dated the 14th May 2024.[21]Mr Dowsett noted that M had been diagnosed with ADHD, ASD and Asperger’s Syndrome. Mr Dowsett opined that M continued to have “significant symptoms related to ADHD and a range of literacy and processing difficulties some of which may relate to a degree of dyslexia alongside her ADHD”, (419). Mr Dowsett was not of the view that M had a general learning disability as some of her functioning was in the average and low average range, (414). Mr Dowsett considered that M would find the process of giving evidence to a court as “extremely anxiety provoking”. On page 420 Mr Dowsett said this:
“I am not sure that evidence should be given remotely as this can impose additional difficulties with the limitation she may have in her verbal comprehension and auditory working memory skills”
. Mr Dowsett considered that an intermediary assessment for M was essential. This led to the Intermediary Report of Miss Bradley dated the 27th July 2024 which I have considered. During the trial M was assisted by an intermediary Miss Perry. Cognitive assessment of F dated the 14th May 2024.[22]F informed Mr Dowsett that he did not use any street drugs and that he tried cannabis a little bit as a teenager but had not done so since, (398). Mr Dowsett opined that F was in the low average range of general intelligence but that he did not have a general learning disability, (400) nor ADHD, (405). Mr Dowsett did not consider that F needed the assistance of an intermediary but he would require support to understand reports and to retain information, (406). Miss Fairweather, Chartered Psychologist, Cognitive and Capacity Assessment of the MU dated the 22nd January 2025 and addendum report of the 28th January 2025.[23]The MU is currently 18 years old. Miss Fairweather opined that the MU cognitive functioning was in the borderline level of ability, that he did not lack capacity and that with the assistance of an intermediary he could participate in these proceedings and give evidence, (551). Miss Fairweather noted that the MU had a “hearing disability”. I have considered the subsequent intermediary assessment of the MU by Mr Johnson dated the 13th February 2025. As a consequence of his hearing difficulties Mr Johnson opined that the MU would struggle to follow proceedings in the court room and he thus recommended that the MU should attend remotely, (581) and that he should have the benefit of an intermediary. The evidence of the paternal grandmother.[24]The PGM has provided a witness statement dated the 28th January 2025. The PGM was also called to give evidence. In her witness statement the PGM says that she only had the care of H once overnight in October 2023. In her oral evidence the PGM said that she vaguely remembered caring for H overnight on the 8th December 2023 and that when she went outside to smoke her partner would look after H. The PGM said that on Christmas day 2023 there were a lot of family around at her home and that whilst they were drinking alcohol she did not know if anyone was taking drugs. The PGM said that she was not aware of any incident on this day when H was injured. In her oral evidence the PGM said that there were times prior to January 2023 when F would leave H in her sole care whilst he would go to the shops.[25]After being taken to a phone message that was sent on the 25th August 2023 the PGM said that she only recently had become aware of the fact that F was using cocaine during that period. The PGM said that she was sure that the F was not using cocaine in December 2023 and that “he was honest with me during those months”.[26]In her witness statement the PGM said that she had never seen M or F be “aggressive, shout or be neglectful” of H, (289). In her oral evidence the PGM said that she had never seen anyone drop, throw or physically assault H and that neither parent had spoken to her about being worried that H may have been hurt. The PGM told me that she had only seen F lose his temper once in a blue moon and that the last occasion was four years ago. The PGM said that she had not seen F shout at H nor had M told her that he had done so. The PGM described her relationship with F as being a good but her relationship with M was “rocky… there is a clash of personalities… we don’t always see eye to eye”. The evidence of M.[27]M has provided three witness statements dated the 14th June, 26th June and the 12th September 2024. In these various witness statements M sets out who had sole care for H during the period from the 4th December 2023 to the 6th January 2024. M says that she, F and the MGM were H’s main carers. The only other individuals who had sole care of H were the partner of the PGF, (a registered nurse), who had the sole care of H for 90 minutes on the 26th December 2023. In addition between the 4th to the 8th December 2023 M’s neighbour’s partner and their daughter, (who was aged 21), had sole care of H for 90 minutes between 5.30 and 7pm. This arrangement had been in place since September 2023, (261). On the 25th December 2023 H was taken to a family party but he was not says M left alone with any individual who was present.[28]In her witness statement of the 14th June 2024 M says that whilst she is not accusing F of harming H she considered him to have a “bit of a temper”. M says that she has heard F shouting at his siblings and “he has sometimes shouted at H but he adores him and I cannot imagine him hurting his own child”, (255). M's oral evidence.[29]M found the process of giving her oral evidence very distressing. The court and indeed the parties were mindful of M’s cognitive issues and the recommendations made by the intermediary. With the assistance of the intermediary, Miss Perry M initially gave her evidence in court. However, this process was so distressing for M that I was forced to terminate the cross examination of M who became inconsolable in the witness box. It later transpired that M was also physically unwell necessitating her attendance at A&E who subsequently discharged her with a diagnosis “Gastroenteritis (Infectious)” with the additional comment “stress”, (letter provided to the court). The following day Miss Perry provided her further recommendations to enable M to continue with her evidence. This involved M and Miss Perry being taken to a room in the court for M to give her evidence remotely. It was also agreed that Miss Porter for the local authority would ask all of the questions and that the camera in court would only be directed towards Miss Porter. The other advocates provided Miss Porter with a list of questions and texted her during this process in the event that they had additional questions to put to M. By adopting this approach M was able to continue and complete her evidence. I have to say that absent the sensitivity and compassion of Miss Perry I am not convinced that M would have been able to continue with her evidence I am also grateful to the advocates who were prepared to adapt the process to enable M to give her best evidence. I am particularly grateful for the efforts of Miss Porter who skilfully and sensitively walked the difficult path of putting the local authority and the other parties’ cases to M whilst at the same time minimising the anxiety that this produced in M.[30]When asked in chief to recall the event of the 6th January 2024 M said, “I was asleep in my bed F came upstairs to get me… F was calling for help… I went downstairs the paramedic was there”. Miss Porter took M to the ambulance note on page 1252 and asked why she had not told the paramedics that H had hit his head. M replied, “I don’t think I knew what was going on”. When I asked some questions about this M initially said that she was awoken by F shouting help and that she was in a deep sleep. M said that F came upstairs and that he was shouting and panicking.[31]In chief M said that cannabis “calms me down and lets me think straight”. When Miss Porter asked M how many joints was she smoking in November/December 2023 M replied, “I can’t remember”. When Miss Porter asked M if she normally smoked a joint in the morning and at night M replied “yes” and when Miss Porter asked M if she sometimes had a joint during the day she also replied “yes”. When Miss Porter asked M how she felt if she did not smoke cannabis she replied, “sick and I just won’t go to sleep”. M accepted that cannabis affected her mood and said, “if I don’t have it I can’t think straight so I wind myself up”. M was taken to a message that she sent on the 10th October 2023, (LA schedule page 11) which reads, “I did tell people that when I don’t have weed my moods and adhd comes back and I don’t control it properly that why I spoke it and I haven’t rlly had any today”, (sic). M accepted in cross that that is how she felt if she did not smoke cannabis. M accepted that she took H with her when she collected her cannabis from her dealer.[32]M said that she smoked cannabis either in the shed or she would go to the local park. M explained that when she was in the shed, she would set up a face time video with her phone in the room with H so that she could see him on her tablet in the shed. M said that H would either be in his baby walker or in his highchair. M explained that if H moved around in his walker, she would be able to see him in the shed as the camera was set up so that she could see the whole room. M said that the walker did not have straps, but the highchair did and that if H was placed in the highchair he was not able to wriggle out of the straps. M explained that she would take H in his buggy to the park to smoke cannabis and that there would normally be two or three other people present and that she would place the buggy some distance from where they were seated. M was taken to a text message from the MGM to M dated the 29th July 2023 at 22.05pm which read “It’s gone 10pm- H should be home going to bed not out down park this late”, (LA schedule page 7). M said that she could not remember this but confirmed that she would have been at the park smoking cannabis. In her police interview of April 2024 M was asked about a fight between her then friends N and O. In her oral evidence M said that the two were shouting, pushing and hitting each other and that H who was in his pushchair was crying because of the shouting. M denied that anything had happened whilst she was at the park with H, she denied that he had fallen over or that anyone had taken him out of the pushchair. On behalf of F M admitted that she would spend a lot of time on video calls with her friends and sending messages when she was looking after H and that F was upset by this. On behalf of the guardian M was taken to a text message between O and M dated the 18th December 2023, (MGM schedule). This reads:
“I didn’t call the police btw we both saw red and we both shouldn’t of scrapped in front of H on my behalf I’m sorry, x. You know how much I love H init. I wouldn’t do anything to intentionally to hurt him”
. M denied that H became involved in “this scrap”. On behalf of the guardian M was asked if she was protecting someone who might have hurt H. M said that O did not hurt H and said that if he had she would tell. M explained that when asked about her relationship with O in the April 2024 police interview, she had made a hand movement. On behalf of the guardian M was asked what she meant by that. M replied “not close but close”. M said that she was no longer really close to O.[33]M was taken to the visit of the perinatal mentalhealth nurse that took place on the 16th August 2023, (779) which records the MGM taking over the feeding of H. M admitted that there were times when she was stressed out and could not soothe H. When Miss Porter asked M what she would do in those circumstances M replied “nothing”. M accepted that she would get a “little bit” angry, that she would shout and throw things. M denied that she would hit things. M denied that she would “stress out” a little more than she used to when H was born and that she did not know how the post natal depression made her feel. M was taken to a message that she sent to F on the 13th October 2023, (LA schedule p 12) in which she says:
“can you let your mum now that if they ask why she was up here to tell them cause I had a mental health flip out… my adhd up today and I don’t know why… can you let your mum know …that I had my mood swings and broke her other hairbrush”
. In cross M said that she would cry and shout and throw things around and that on that occasion she had broken the PGM hairbrush. When Miss Porter asked why she had been angry M replied “I could not do my hair”. M said that she could not remember if H had been present. On the same day M had sent a message which read “I think that’s another thing with my mental health low and him screaming is throwing me off thinking cause I don’t know what to do I panic cause I cannot calm him down and think what I need to do”. In cross M accepted that she was panicking because she could not calm H down because he was screaming. When Miss Porter asked M what she would do when H was like this M replied “nothing”. M denied that when she was cross she would hit or throw H. When Miss Porter asked M if she was sure that she had not thrown H M replied, “I am sure”. M was taken to a message that she had sent to F on the 2nd November 2023, (LA schedule p 13), in which she had said “I’m not a good mum either just threw him in anger on the sofa”. M denied that she had thrown H and said “its just a saying”. M denied that she was lying. When Miss Porter suggested that M had thrown H and had hidden the fact that he had been hurt M replied “no”. Miss Porter asked M if prior to Christmas 2023 she was having problems with her mental health. M replied that “I always suffer with my mental health”. When Miss Porter asked M how that affected her mood M broke down and then said “I go like this”. Miss Porter took M to a message that F had sent her on the 4th December 2023 which read “calmed ya fucking self down yet?”, (LA schedule p 15). Miss Porter asked if there was a time when M was very upset and sent this message. M replied, “I can’t remember”. Miss Porter took M to some text messages sent on Christmas day 2023 where F texted her saying “you seem down… please get out of your mood”. M told Miss Porter “I think I was just down”. On the same day the MGM sent a message to AB which read “M’s had a melt down…crying cos I flipped at her”. M informed Miss Porter that “my mental health was playing up”. M told Miss Porter that she was not having mood swings before Christmas and that “I was getting emotional and I used to cry”. When Miss Porter asked M if she became angry M replied, “it makes me frustrated” and that she felt frustrated on Xmas day. M denied hurting H. M on behalf of F was asked if she had lost her temper with H. M’s response was that “I got frustrated”. When M was asked what that meant she replied, “I just panicked because I didn’t know what to do”. When M was asked what was happening when she was panicking M said, “I don’t remember I panic about a lot of things”. M was asked if there had been an accident and whether something had happened with H when she panicked. M replied “no”. On behalf of F, M was asked why she had thrown H on to the sofa M replied, “I didn’t throw him its just a saying I placed him on the sofa… I was frustrated that is how I word things…I would never lay hands on my boy”. M said that she had not thrown H on any other occasion and that she did not accidently drop him. When asked if she had been honest M replied “yes”.[34]On behalf of F, M was taken to a message that she had sent to F on the 17th June 2023, (LA schedule p 12). The message read:
“I’m just a bit down and I think it’s cause ur out for the day and I’m still with our boy doing it by self no help and everyone is alright with you going out but if I go out for even 10 mins I get moaned at cause I should be with (redacted)”
. On behalf of F M was asked if she was finding it hard looking after H on her own. M replied “sometimes… a little bit”. M said that “I became frustrated easily”. When on behalf of F it was suggested that M became angry she replied, “a little bit”. M agreed that she would become annoyed at little things, and that there were times when H would not stop crying and she would panic.[35]In chief M said that H “would try and climb and he would fall backwards and land on the back of his head on the floor”. When Dr Love said to M that in her police interview, she had said that H had hit his head on the fireplace surround M replied “I don’t remember those times”. On the 12th October 2023 M sent a message to AB which read “H fallen off sofa and want stop crying”, (LA schedule p 12). M said that she could not remember this incident. When Miss Porter asked if there was any further occasion when H had hurt himself, she replied, “no”. When Miss Porter asked M whether she had been worried about H banging his head M replied “no”. Miss Porter took M to a health visitor note of the 11th January 2024 which records a telephone conversation with the social worker. The HV confirmed that the family had not discussed head banging with her at H’s developmental review nor had she observed H head banging during contact. M said that she did speak to the social worker and the health visitor about H having head banged. When Miss Porter asked M if she was sure M replied, “I saw him bang the back of his head against the door”. M was taken to page 717 which is the note of the supervised contact session that took place on the 9th January 2024 in which F had said that he believed that H had caught his head on the radiator or door and that he had a tendency to throw himself around. M said that “he throws himself backwards he does it when seated and standing… I was worried he may hurt himself… he does not cry when he throws himself backwards”. M said that she had seen H hit his head on the radiator, that he did not cry, there was no bump and she could not remember if she had told the MGM. M was taken to her police interview where she says that when H was 8 or 9 months old he had hurt himself on the fireplace, (1865). M said that she could not remember H having hurt himself on the fireplace and that she was not sure how she knew that H had hit his head on the fireplace adding “I can’t remember now”. On behalf of the guardian M was asked if H had ever rolled off the bed. M said that he had “once that I know of”. M was taken on behalf of the guardian to a text that F had sent to the paternal grandfather on the 10th October 2023 where he said “just threw himself off mine and M’s bed… and yeah caught the front and back of his head”, (LA schedule p 11). M says that she remembers that H fell off the bed “but not really what happened”. M was unable to recall if H cried, that she did not think that anyone was with her and that she could not remember telling anyone else.[36]M was taken to a message from F that was sent on the 20th August 2023, (page 8 LA schedule), in which he said “you spend more time out with ya pals smoking weed than you do actually spending time with me”. M accepted that F did not like her going out to the park to smoke cannabis. M was taken to a message sent by F to her on the 3rd August 2023, (LA schedule p 7) which reads “don’t want my son round particularly by hey ho what can I do about it and idk”. M in cross accepted that F was not happy that she was smoking cannabis around H. On behalf of F M was taken to a message that F had sent to her on the 9th September 2023, (LA schedule p 10) in which he says “Don’t appreciate my son being around so many of u smoking that shit”. When asked if she remembered F being upset about M being around her friends who were smoking cannabis M replied, “I don’t remember”.[37]M said that F had told her that he had not used cocaine after August 2023 and that she was certain that that was true. Miss Porter took M to her first witness statement where she asserts that F has “a bit of a temper”, (255) and asked what she meant by this. M replied, “he just gets wound up easily”. M said that F would shout loudly at himself and that sometimes he had shouted loudly at H. M said that she had not seen F do anything else to H when he was cross. In response to questions on behalf of F M agreed that F was happy when she told him she was pregnant, that F has shouted at her, that he has been a supportive boyfriend, that he was good at looking after H, that he liked to play with H and that F was upset because M smoked too many joints. M also said that F had never hurt her, had not done anything to scare her, that she was not worried about how F played with H and that she had not seen F hurt H. M agreed that F sometimes shouted at H but that he calmed down quickly and that he would shout out “for fucks sake”. M said that she was not worried or scared when F would shout at H. M said that the MU had not told her that he was worried about F or that he was worried as to how F plays with H.[38]It was suggested to M that F and the MGM were worried about M’s mental health after H was born. M replied, “not to my knowledge”. It was put that F had told M lots of times to see a doctor. M’s response was “I can’t remember”. When this was asked again M replied, “I think so I cannot remember”. On behalf of F M was taken to a message that she had sent on the 26th June 2023, (LA schedule p 6) which read:
“And I don’t trust u half the time with him cause I never know what u r gonna do and u have done bad choices before because of u listening to your family and I don’t trust them at all cause don’t like parenting they do”
. When M was asked what she meant when she texted that she did not trust F she replied, “I don’t know”. It was put that F believed that the message had been sent because M was “pissed off” with him. M replied “probably”. It was put on behalf of F that this was not true and M was asked if that was right. M’ s response was “yes”. At this point I intervened as I was not convinced that M understood what was being asked of her. I asked M what she had meant by that text to which she replied “I can’t remember, I don’t know”. On behalf of F M was asked if she trusted F with H, M’s response was “yes”. M explained how the PGM had put vodka on H’s dummy. The evidence of F.[39]F has provided four witness statements dated 13th June 2024, (date received by the local authority, not signed or dated), 4th July 2024, 28th January 2025 and a further unsigned and undated statement that it is said predates the 28th January 2025 statement.[40]In his first statement F says that he would stay three nights per week at the home of the MGM and that he stayed “more or less the whole time from 23rd December 2024”, (257). F says that on the 6th January 2024 he could see H whilst smoking his cigarette by the back door. Following H’s seizure F says that when he shouted up to M and the MGM, he could not remember who was the first to come down the stairs.[41]In his second statement F says that he used to visit H every day and that “I was never on my own with H during this period”, (264). On page 265 F says “I don’t believe my mother was ever left alone with him during this period”. On the same page F says this: “There have been a couple of occasions when he has fallen off the sofa and landed on the floor. Me M and her mother were all present and he was immediately fine after. We checked him over and I would have taken him to hospital if I thought for a moment that he was hurt. I believe this happened in October/November and certainly before I finished work in December”.[42]In his final statement F responds to the assertions made by the MU that he would shout and play roughly with H. F says that he has momentarily shouted in frustration at H but “I have never been angry with him or lost my temper with him”. F also denied playing roughly with H or of throwing him on to the sofa, (288). F’s oral evidence.[43]In chief F said that he did not recall ever seeing H fall on the fireplace nor was he told by anyone that H had fallen on the fireplace. F described how H would lean against the door and “every so often his head would hit the door” but this did not make him cry. F was taken to the social worker note on page 717 where it is recorded that F “believes H may have caught his head on the radiator/ or door”. In cross F said that he did not recall that.[44]In response to a question from Miss Rahman F said that he agreed “massively” that the MGM loves H and that he had not seen her handle H roughly, lose her temper with H or shout at him. Miss Rahman put to F that between December the 23rd to the 6th January the MGM could not recall if she had the sole care of H but if she had done so it would have been for a short time. F agreed.[45]F said that he believes that he ceased work for Christmas on the 12th December 2023 and from that point he stayed at the MGM home “pretty much every day“ and that prior to that he would stay three to four times per week. F said that when M went to work in the evenings either he or the neighbours would look after H and this was “mostly at the MGM” but it would sometimes be at his mother’s home.[46]F said that when H was born he was regularly using cocaine and that the last time that he used cocaine was towards the end of August 2023. F asserted that he did not believe that cocaine affected his ability to care for H and that it just made him “chill out and relax”. F said that he did not really feel anything when he stopped using cocaine. F denied that cocaine had the effect of shortening his temper.[47]F agreed with Miss Porter that he disapproved of M smoking cannabis around H and that he believed that M was smoking too much cannabis. F said that when M smoked cannabis she appeared normal “more relaxed and focused I had no cause for concern”. F informed Dr Love that he did not recall M having shouted at H or being violent towards H.[48]When Miss Porter asked F if he agreed with M that he had a bit of a temper F replied that it was more that he could become frustrated. F said that when he was frustrated, he would shout and swear at himself but he would not throw things. F accepted that he had shouted at M but that this was rare and that he had shouted at H a couple of times.[49]F was taken to a message that M had sent him on the 13th October 2023 where she described herself as having a “mental health flip”. F said that when this happened M would become frustrated but that this did not happen regularly. F agreed that he was worried about M’s mental health and that he had told her to see her GP. F said that he had only seen M throw things once when she had thrown the hair brush. In his oral evidence F said that M “sometimes” had difficulties feeding Hand that M considered it important to feed H every four hours.[50]F was taken to his message to M on the 22nd March 2023in which he says “Hurry up and gives this wanker his bottle and he won’t bring wind or take his bottle”. When Miss Porter asked F why he had called his son a wanker F replied, “I didn’t mean it it’s the way I text and speak”. F then accepted that he may “possibly” have been “frustrated”.[51]On the 16th April 2023F sent a text at 22.25 which read “You have been in the shed 20 mins” and three minutes later he sent another text which says “this child won’t fucking stop”, (LA schedule p 3). When Miss Porter took F to this entry F said that he had no recollection as to what had happened. F denied that he was very frustrated with H adding “just because I said that does not mean that I was frustrated”.[52]On the 2nd June 2023F sent some texts to M which read “this fucking kid… He is hungry but not taking anything… he has given me the hump… I’ve put him in his chair and leaving him to scream”, (p5). F agreed with Miss Porter that having read this text it did appear that he was frustrated. When Miss Porter put that F had left H in the chair to scream F replied, “doesn’t mean I did just cos I sent it”.[53]On the 17th June 2023M sent these messages:
“I’m just a bit down and it think cause it’s ur out for the day and I’m still with our boy doing it by self no help and everyone is alright with you going out but if I go out for even 10 mins I get moaned at cause I should be with H”, (p6). On the 26th June 2023M sends this message: “If I‘m not in a mood because you ignored me about having H and it just makes me feel like I might as well be a single parent cause I’m only cunt that cares for him. I’m constantly the only one that does things for him. I have to ask you to do something for you to actually do it and even then its hard to get u to do that… But I feel and seem to be stuck with him 24/7 like I’m not aloud a life outside parenting… none stop for me all day with him and then nights as well and people wonder why I’m always in a mood cause I don’t get to sleep and I don’t’ get to rest… And I don’t trust you half the time with him cause I never know what ur gunna do and u have done bad choices before because of u listening to your family and I don’t trust them at all cause don’t like parenting they do”
. Miss Porter asked F if he agreed that M’s description of how she was caring for H was accurate to which F replied “possibly” adding “I don’t think I ignored H”. F agreed that M was attending to H day and night and added that when he stayed over he tried to help. F said that he did not know what M had meant by the comment that she did not trust him. F denied that he had been heavy handed with H.[54]On the 10th October 2023F sends a message to his father which reads “just threw himself off mine and M’s bed… and yeah caught the front and back of his head”, (p11). When F was taken to this entry, he stated that he did not see H fall from the bed but that he had heard it and that H had been playing with his toys on the bed with M next to him. When Miss Porter asked F how he knew that H had caught the front and back of his head F replied, “I don’t remember”.[55]Miss Porter took F to a message that M had sent him on the 13th October 2023in which she said “I think that’s another thing with my mental health low and him screaming is throwing me off thinking cause I don’t know what to do I panic cause I can’t calm myself down and think what I need to do”(12). When Miss Porter asked F if he had seen M panicking and not being able to calm herself down F replied “I cannot recall”.[56]On the 2nd November 2023M sends a message to F which reads “I’m not a good mum either just threw him in anger on the sofa”. When Miss Porter asked F what he thought when he received that message he replied, “I cannot recall”. Miss Porter suggested that M being angry and throwing H was concerning F replied, “whether she threw him I don’t know”. Miss Porter queried why F did not respond and for example ask M what had happened. F replied, “I don’t recall receiving it I was at work”. Miss Porter put to F that at this stage he must have been worried about M’s mental health that she was becoming frustrated and was now throwing her son in anger. F’s response was “of course I was concerned”.[57]On the 13th November 2023F sent a message at 21.27 which reads “I’ll come deal with H”. At 21.32 F sends a further message which reads ”He’s doing my head in”, (13). In cross F accepted that he assumed that in this message he was referring to H. Miss Porter put to F that within five minutes H was annoying him to which F replied “yes”. Miss Porter suggested that F was not able to manage H on this occasion to which F responded by saying that he could not recall. F then denied that he often struggled to manage H.[58]On the 27th November 2023F sent a message “this fucking child throwing things out his bed laughing and screaming at me to pick it up”, (15). Miss Porter asked F if he was frustrated when H was behaving in this way. F replied, “no we turned it into a game … its the way I speak there is nothing behind it”.[59]On the 11th December 2023F sent a message to M at 10.45 am in which he says “this fucking child…being a little shit”. At 18.36 F sends this message “I fucking give up with this shit” to which M replies “I’ll help when home if u can’t do it”, (17). In cross F again asserted that his description of H “doesn’t mean anything it’s the way I speak”. F in his oral evidence said that he did not “have a clue” what he meant when he messaged that he was giving up with this shit and when asked if he was frustrated on this occasion F replied “I cannot recall”.[60]On the 23rd December 2023F sends a message “cheers for going out when trying to sort H out screaming the house down”. Miss Porter asked F if he was becoming frustrated with M going out and leaving him with H, F replied “yes”. When Miss Porter asked F what he would do when he became frustrated F replied, “it never affected the way that I looked after H”. Miss Porter put to F that on this occasion he was frustrated and annoyed that M had left him with H and that he had hurt H. F’s response was “definitely not”. Miss Porter suggested to F that during December and the lead up to Christmas it is apparent from the text messages that M was using cannabis and that both he and M were becoming increasingly frustrated with H. F accepted that “possibly” that was correct. When Miss Porter put to F that he was becoming more heavy handed and short tempered during this period F replied, “definitely not”.[61]On the 28th December 2023F messages M and says “this kid clearly doesn’t like me”, (22). When Miss Porter asked F what he meant by this F replied “he was teething”. On the 30th December 2023M messages F and says “got to see R btw before coming home” to which F replies “ffs… I ain’t having this every fucking night”. In cross F agreed that he was frustrated that M was leaving him with H.[62]On the 2nd January 2024F send a message to M “kids being a cunt”. M replies “Okay I’m nearly home”, (23). When Miss Porter asked F why he had called H a “cunt” F ‘s response was “I can’t remember”. F denied that he was angry and that he had lost his temper and hurt H. F denied that he had thrown H against something that led to a fracture to H’s skull. F denied that he had seen anyone else hurt H. F asserted that he was not worried about how M was looking after H.[63]I took F to the safeguarding medical of the 6th January 2024 where it is recorded that when Dr Halbert had explained to F and M that the CT scan showed multiple fractures F is reported to have said and repeated several times that “is probably where throws himself on floor”, (sic), (850). F said that he did not remember speaking to this doctor nor could he recall saying that which is noted. I took F to his police interview where in response to the question “are you ever sort of on your own in that address at all with H” (MGM home), F replied, “no… I don’t’ know why I said that”, (1879). I also took F to the safeguarding report of the 14th March where it was noted that the “parents report that H has been having absence episodes since 6 months of age”, (950). I asked F why he had not mentioned these absence episodes prior to March 2024. F said that H looked blank and he thought it was just H staring “but in March looking back on it and the way things had happened”. The evidence of the MU.[64]The MU has provided an unsigned and undated witness statement which he approved when he gave his oral evidence. The MU says that on the 6th January 2025 he was awoken by F “screaming my mums name downstairs”. The MU says that he went downstairs and saw H on the floor with the MGM helping him and F was on the phone to the ambulance. The MU says that at “some point M came down after me”, (275). On the same page MU says this: “16. I do recall there were occasions when F would get upset at H and shout at him for no reason, and I always thought how can you shout at a 1-year-old, it wasn’t right to shout at a 1-year-old. I think he shouted at him in frustration, for example, when he wouldn’t take his milk or H wouldn’t cooperate with him when he was changing him, and F would get a bit upset.17. I never saw M shout at him.18. I have seen F rough play with H, for example, he would throw him onto the sofa in a demeanour that was playful but there were a few times when I saw him do it that was a bit different and felt a bit too aggressive and forceful however, H was laughing.19. I have never seen anyone drop or hurt H, if anything had happened in our house to H we would have known about it.20. I do recall a time when F took H to his parents’ home without M or my mum knowing and he would then come home a few hours.[65]In response to questions from Dr Love the MU said that H had a tendency to “throw himself around on his toys”. The MU said that he had not seen H hit his head on anything. The MU informed Miss Bhachu that F was a good father, and that H was happy in his care. The MU said that most of the time when F played rough with H, H would be laughing but sometimes he would not be laughing when F threw him into the air or on to the sofa. The MU said that at no time did he think he had to stop F and that he didn’t speak to the MGM about it as “I didn’t think it serious” and that he was not worried about F’s behaviour. Miss Bhachu asked the MU if he was correct when he said in his witness statement that a few times he felt that F was being a bit too forceful and aggressive. The MU replied “yer”. When Miss Bhachu asked him if he was sure the MU again replied “yer”. When Miss Bhachu asked the MU why he had not spoken to M or to the MGM if he felt that F was being too aggressive and forceful the MU replied, “I am not the parent”. When Miss Bhachu put to the MU that he did not say anything to the police the MU response was “at the time I didn’t know what was fully going on I was confused”. Miss Bhachu asked the MU if at the time when H went into hospital he remembered being told that he had sustained a fracture, and if he remembered somebody telling him that H had hurt his head. The MU replied “no” to both questions. Miss Bhachu asked, “when you did this statement did you know why you had to give the information?” The MU replied “no”. The MU said that after his statement was typed up he read it through quickly but that he did not read it properly.[66]The MU said that when F was playing with H, H did not cry and that he was happy when F played with him. The MU agreed that neither the MGM or M ever told F to stop playing roughly with H. The MU said that F would not shout at H in anger but only in frustration. The MU said that F would shout at H if he was not taking his bottle or if he was moving around when he tried to change his nappy. The MU said that a few times F used swear words “but I don’t think he meant it towards H, it was out of frustration”. The MGM.[67]The MGM has provided a witness statement dated the 24th September 2025, (not in bundle). In paragraph 5 the MGM says that in the early years M was not very confident and that she would come to her in the night if she was unable to settle H or if she needed advice. The MGM says that in time M grew in confidence and she was asked for her advice less often. The MGM says that when M was at work between 5.30pm and 7.00pm he would be with F and that she was not around when F had H on his own. The MGM assumed that F regularly took H to the PGM home. On other occasion when M was at work H would be cared for by their neighbours, (RH and SB). The MGM said that the MU spent little time with H as he would spend most of his time in his room, (paragraph 13).[68]In paragraph 14 the MGM says this:
“H started crawling around November 2023 and started pulling himself up on the furniture and stair gates shortly after. He was an active baby and would sometimes fall and bump himself. He would rock and sometimes bang the back of his head if near the radiator… I do not specifically recall a bump on the fireplace but there was a lot of bumping with H at that time”
. The MGM said that she “did not see any concerns with M and F’s care f H”. The MGM avers that “I have seen F rough play with F throwing him up in the air or throwing on the sofa not inappropriately with H laughing”. In paragraph 17 the MGM says that F has “raised his voice to H and I have interfered and reminded him he is a baby and essentially to lower his expectations. I cannot think of anything I was aware of more serious than that… if I had any concerns I would have stepped in”. Miss Taylor KC for the MU took the MGM to a safeguarding meeting that took place on the 30th January 2024 where this is recorded, (probably by the health visitor whose name is redacted) “she visited H last week where she had no safeguarding concerns…she mentioned that H appears to have no sense of danger and throws himself around”, (1152).The MGM agreed with this assessment and said that after doing so H “rarely cried”.[69]In paragraph 21 the MGM says that to her knowledge the M was not smoking cannabis a lot and that she would smoke a number of evenings a week “I understand one joint was shared around”. The MGM in paragraph 22 says that whilst she did not agree with cannabis “I have never seen M what I would describe as stoned or drunk from smoking cannabis. When I saw her after she had smoked cannabis, she did not have dilated pupils and seemed perfectly normal just a bit less anxious, she did not appear slower to meet H’s needs or slower generally”. The MGM says that F had told her that he had stopped using cocaine when M fell pregnant and that she had not seen either parent “presenting as under the influence of drink or drugs since H’s birth”.[70]In her oral evidence the MGM said that M had a lot of experience of being around babies and small children as she had spent a lot of time with her other grandchildren. The MGM said that she had not seen M lose her temper with a child “no she wraps them in cotton wool”. The MGM said that she did not remember M asking her to check H’s head. The MGM said that M would not be able to keep a secret “she would come to me or somebody else”. The MGM agreed with Miss Bhachu that M had not told her about the facetime set up whilst she was in the shed nor that she did not walk around the park with H to prevent him being close to her friends who were smoking cannabis.[71]In cross the MGM was taken to F’s message to M on the day following H’s birth where there is a discussion between the parents about obtaining cocaine for F and cannabis for M. The MGM said that she had not been aware that F continued to use cocaine following H’s birth. The MGM said that she did not notice any change in M when she had smoked cannabis or if she was not able to get hold of cannabis. The MGM said that she was not aware that M took H with her when she collected cannabis from her dealer and that “she should not have done that”. The MGM said that she did not know that during the day M would smoke cannabis in the shed and set out the video link so that she could see H in the house.[72]Miss Porter took the MGM to the phone messages from M in June/July 2023 and suggested that M was displaying moments of anger and stress and asked the MGM if she was seeing the same thing. The MGM replied “no she was showing a little bit of frustration…she needed a confidence boost”. The MGM was taken to the mental health assessment of September 2023 where it was noted that the MGM had spoken about M spending long periods of the day on her own as she and F worked and that MGM is reported to have said that M could find it stressful looking after H for all this time on her own. Miss Porter asked the MGM why she considered that M had found it stressful to which the MGM replied “she was very tired and has low self esteem”. Miss Bhachu took the MGM to the same mental health assessment where on page 779 where the MGM is recorded as expressing that M “had been less irritable” since taking medication. Miss Bhachu asked the MGM to explain the change that she had noticed after M starting taking the medication the MGM replied, “doesn’t get as upset as she did before”. Miss Bhachu pointed out that the MGM was recorded as saying that M was less irritable not less tearful and asked whether M would get annoyed about things quickly to which the MGM replied, “not always”.[73]The MGM said that she did not recall being told by M or F that H on the 10th October 2023 had fallen off the bed nor could she recall if she had been told on the 12th October 2023 that H had fallen off the sofa. The MGM said that the only thing that she had seen M throw was a pillow. The MGM was taken to M’s message of the 13th October 2023 in which she said that with H screaming she did not know what to do and that she would panic as she could not calm herself down. The MGM said that if H cried and would not settle “that upsets her if he cries she doesn’t know what to do she panics and breaks down”. When Miss Porter asked the MGM if she was concerned as to how M would respond to H when she felt like this to which the MGM responded “H is her priority”.[74]In respect of the 2nd November 2023 message where M says that she was not a good mum and that she had just thrown H on the sofa in anger the MGM said that she was not aware of this “I have never seen her do this”. The MGM agreed that reading the text “it sounds concerning I know my daughter and how she thinks she would not harm a child even in frustration…I have not seen this I don’t think this happened”. When Miss Porter pointed out that M said she did so in anger the MGM replied “that’s just the way she texts she does not get angry she gets frustrated”. The MGM denied the suggestion that she was desperately trying to protect her daughter. When I asked questions about the 2nd November text the MGM said “that is the way she speaks it’s a way of speaking… I read that as she just placed H on the sofa”. I asked the MGM what she would have done if she had received that message. The MGM replied, that she would have known that M had not thrown H. The MGM told me that when H cried M would try to feed him “she would panic and ask someone to help”. When I asked what she thought M would do if there wasn’t anyone around the MGM replied “she would get hold of someone a friend or someone”.[75]The MGM said that she did not notice any change in M’s mood in early December 2023. The MGM said that she did not notice that M and F were struggling in the period up to Xmas 2023 “it’s not what I saw… but I can see reading the messages it would suggest it… they could have been struggling”.[76]The MGM was taken to her police statement on page 1916 and said that she had seen H roll off the sofa but he would not cry when he had done so. The MGM was taken to a message that she had sent on the 6th January 2024 where she says “maybe he fell a few days ago and hit his head on toy wooden stick, it indented for head and little bruise but maybe it did more inside”, (26). The MGM explained that this was a ring stacker and that H had hit the front of his head. In her witness statement the MGM says that she did not specifically recall a H bumping himself on the fireplace. The MGM replied “he has leaned back on it but not enough to make him cry”. The MGM then said that she had seen H bang his head on the surround. The MGM said that she had heard F using expletives about H as set out in his messages when he was changing H’s nappy or dressing him and H was wriggling “but not in a bad way he was not being aggressive”. The MGM said that she had not heard F shout at H “he would raise his voice”. The MGM denied that she was protecting F. The MGM agreed with Miss Bhachu’s suggestion that when F called H rude names he was not being malicious adding “yes he calls his friends that”. The Law.[77]The court cannot make a care order or a supervision order unless the local authority can prove on the balance of probabilities that the two conditions, (the significant harm condition and the attributability condition) contained within section 31 (2) are satisfied.[78]The significant harm condition is satisfied if the child concerned has suffered significant harm or is likely to suffer significant harm. There are thus two limbs to the significant harm condition. The relevant date for determining if a child has suffered significant harm is the period immediately before the process of protecting the child began this could be before a s20 arrangement, or before the making of an EPO or ICO, (Re M (A Minor) (Care[79]The burden of proof rests upon the local authority, the standard of proof is the balance of probabilities. In Re B (Children) [2008] UKHL 35, [2009] 1 AC Baroness Hale said this:
“the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts”
. Findings of fact must be based on evidence, which can include inferences that can properly be drawn from the evidence. Findings of fact must not be based on suspicion or speculation, (Munby LJ in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12).[80]The inherent probability or improbability of an event having taken place does not alter the standard of proof which is the balance of probabilities. The court must ask itself is it more likely than not that the event occurred, Jackson J Re BR (Proof of Facts), [2015] EWFC 41. In paragraph 7 (3) Jackson J said this: “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”.[81]The court must reach a conclusion in respect of each separate allegation but it must take care not to compartmentalise its analysis. The court must consider the entire canvas of the evidence, and each piece of evidence must be considered in the context of the other evidence, (Dame Elizabeth Butler-Sloss in Re T [2004] EWCA Civ 558, [2004] 2 FLR 83).[82]When considering the wide canvas of the evidence the following observations of Lord Nicholls’ in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 should be kept in mind:
"The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
[83]The court may find itself able to determine that a child has suffered significant harm but not able to determine which parent/care giver, on the balance of probabilities, inflicted that harm. In Lancashire County Council v A (A Child) [2000] 2 All ER 97 the House of Lords held that in those circumstances the attributability condition was satisfied as s31 (2) requires that the harm is attributable to “the care given to the child”. In Lancashire Lord Nicholls held that the phrase “care given to the child”is apt to embrace the care given by “any of the carers”.This definition allows the attributability condition to be fulfilled even though the identity of the particular carer who was the perpetrator is not known.[84]In Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 King LJ held that the “proper approach”to uncertain perpetrator cases had been set out by Peter Jackson LJ in Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575. The court should adopt the following three stage approach.a. List the people who had the opportunity to cause the injury.b. Can the court on the balance of probabilities identify the perpetrator?c. If the court cannot identify the perpetrator on the balance of probabilities the court should ask itself “is there a likelihood or real possibility” that one of the individuals on the list inflicted the injury? If yes that individual is placed into the pool.[85]In Re A King LJ held that judges should no longer direct themselves in accordance with the guidance provided by Wall LJ in Re D (Children) [2009] EWCA Civ 472 in which he held that the court should strive to identify the perpetrator on the balance of probabilities and should seek “but not strain to do so”. King LJ said that 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”.[86]When determining whether a parent/care giver inflicted the injury the court must consider each individual separately in order to determine whether they can be found on the balance of probabilities to have inflicted the injuries. The court must not seek to distinguish between the possible perpetrators in order to determine which one inflicted the injuries, (Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 and A (A Child) (Fact Finding: Head Injury) [2024] EWCA Civ).[87]There cannot be a pool finding of one there is no room for a finding of fact on the basis of a real possibility, (Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575).[88]When deciding whether there is a real possibility that an individual inflicted injury and thus should be placed in the pool the court will require as much information about each potential pool member. In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575 Jackson LJ said this: “where there is an imbalance of information about some individuals in comparison to others, particular care may need to be taken to ensure that the imbalance does not distort the assessment of the possibilities”.[89]When it comes to the courts assessment of expert evidence I keep in mind the following propositions of law:- a. The medical evidence must be considered within the context of all of the other evidence, (A Local Authority v(1) A Mother(2) A Father(3) L & M (Children, by their Children’s Guardian) [2013] EWHC 1569 (Fam)). In Re D (A Child) (Fact – Finding Appeal), [2019] EWCA Civ 2302 Baker LJ in paragraph 66 put it in these terms:
“Where there are various possible causes of an injury, medical evidence considered in isolation may suggest that the injury was inflicted. But if the other evidence demonstrates that it is improbable that any person could have inflicted the injury, the assessment of the totality of the evidence may lead to the conclusion that, on a balance of probabilities, the injury was not inflicted”. b. It is the court that is in a position to weigh up the expert evidence against its findings on other evidence, “it is the judge who makes the final decision”, (A Local Authority v (1) A Mother (2) A Father (3) L & M (Children, by their Children’s Guardian) [2013] EWHC 1569 (Fam)). c. “The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility”, (Jackson J Re BR (Proof of Facts), [2015] EWFC 41). d. The medical evidence does not take precedence over the other evidence. In Re R (Children: Findings of Fact) [2024] EWCA Civ 153 at paragraph 34 the court of appeal said this: “It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non – medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other”
. However, if the expert evidence is strong and on its own establishes on the balance of probabilities the timing of an injury the evidence of the parents must be compelling to displace the “weighty expert evidence that was available to the court”, (Re O (Children: Fact Finding) [2025] EWCA Civ 479 Jackson LJ paragraph 64). e. The court has to factor into account a consideration as to whether the medical cause is as yet unknown. Mr

Justice Peter Jackson (as he then was) said this in Re BR (Proof of Facts) [2015] EWFC41:

“where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case”
. There must, however, be some evidential basis for the court to conclude that the cause of the injury is yet unknown to medical science. In Re O (Children: Fact Finding) [2025] EWCA Civ 479 the court of appeal was critical of a first instance judge who had held that “scientific research may provide an explanation for these medical results”. Jackson LJ held that this finding had no basis in the evidence that the first instance judge had heard. The experts did not say that more research was needed, and no one else had suggested that it was. In paragraph 54 Jackson LJ held that if the judge “was going to reject the medical opinion, it was incumbent on him to identify its limits or flaws”. f. The court can accept the view of the medical experts whilst at the same time come to a different conclusion. Charles J in A Local Authority v K, D and L [2005] EWHC 144 (Fam), reached a conclusion as to the cause of death and injury that differed from that of the medical experts. Charles J said this: “In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion.” g. The court is not obliged to accept the evidence of a medical expert just because he has not been required to attend for cross examination. The court is obliged to evaluate the evidence and decide what weight it should attach to it, (EY (Fact Finding Hearing) [2023] EWCA Civ 1241).[90]If the court finds an allegation not proven it does not follow that the allegation is false unless the court makes a specific finding that the facts did not happen. The court may consider that at the welfare stage it may be helpful to make a finding that a particular matter was not proved because the court was satisfied that as a matter of fact it did not happen. This differs from a finding that a fact was not proved and “therefore in law is deemed not to have happened, because the party making the assertion failed to establish it to the relevant standard of proof”, (Re A (A Child) (No 2)[2011] EWCA Civ 12).[91]The court can make findings of fact that have not been sought by the local authority. In Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10; Wall LJ said this in paragraph 15 :
“a judge … is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority”
. Wall LJ held that it would be “absurd” for the court to ignore new issues that emerge in the oral evidence. If the court seeks to make findings of fact that have not been sought by the local authority it must be satisfied of two things. Firstly, that the additional findings are “securely founded in the evidence”and secondly that “the fairness of the fact finding process is not compromised”, (Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10).[92]If there is a lack of an evidential basis for the court to make the additional finding the court will not need to consider the issue of fairness. An elementary feature of a fair hearing is that an adverse finding cannot be made against a party unless three conditions have been satisfied. The party must have knowledge of the allegation, they must know the substance of the evidence supporting the allegation and they must be given a reasonable opportunity to respond to the allegation, (“Newey LJ in Re B (A Child) [2018] EWCA Civ 2127). Baker LJ in In Re A, B and C (Fact-Finding: Gonorrhoea) [2023] EWCA Civ 437, put it in these terms:
“It is axiomatic that a party against whom findings are sought in care proceedings is entitled to notice of the findings sought, the evidence on which they are based, and a fair opportunity to rebut them.”
[93]A witness may be recalled but prior to doing so he/she should be given the time to consider the allegation and the evidence that will be put to him in support of that allegation, (Re W (A Child) [2016] EWCA Civ 1140). The court may have to consider extending the proceedings or adjourning them. In Y V and B (Fact Finding: Perpetrator) [2024] EWCA Civ 1034 Baker LJ offered this guidance in paragraph 56; “If the court in assessing the evidence forms a view that the evidence may support findings on a basis which has not been raised or considered during the hearing, it is incumbent on the court to address that possibility if the potential findings are material to the welfare decisions which it is required to make about the children. That may lead to an extension or even an adjournment of the hearing. But where the findings, if made, would have a material impact on decisions about the child’s long-term care, the court cannot avoid considering them, whatever the inconvenience that may cause”.[94]It is essential that the court distinguishes between a new allegation that it is considering making which was not put to a party as opposed to the situation where evidence in support of a pleaded allegation had not been put to that party. In the latter case it is not necessary to put to a witness in cross examination every piece of evidence in support of an allegation, (Chen v Ng [2017] UKPC 27). In Re W (Appeal: Fact Finding) [2024] EWCA Civ 1590 the first instance judge when determining that a mother had inflicted injury upon her infant took into consideration some grazes revealed in photographs. These grazes were not focused upon by the medico – legal experts, counsel did not cross examine upon them and the parents were not asked about them. On appeal the mother argued that the parties had no forewarning that the judge would take these grazes into consideration when determining if the mother had inflicted injury on the child. Mr Justice Cobb held that the judge was not making a finding that was not sought by the local authority who were seeking a finding that the mother or father had perpetrated the injury. Instead, the judge was making a finding as to the evidence before him to make that finding. Cobb J did not consider that reliance on the grazes undermined the judges’ fundamental finding that the mother had perpetrated the injury. In paragraph 71 he said this:
“The Judge’s reliance on, and interpretation of, the grazes seen on the photograph, on my reading of the judgment, merely served to buttress a number of other significant (indeed more significant) findings which he had made about the incident.”
[95]K and G (Care Proceedings: Fact Finding) [2025] EWCA Civ 910. Baker LJ dismissed an appeal that was supported by all of the parties to rehear a fact finding hearing. It was said that the judge had failed to deal adequately with three findings sought by the local authority. Baker LJ quoted from Wall LJ’s comments in Re G and B noted above and said this in paragraph 59: “Ultimately, she was able to make findings that were sufficient to establish that the threshold criteria under s.31(2) were satisfied, but unable to make more definitive findings because of the problems and limitations of the parents’ evidence”.[96]In Re BR (Proof of Facts) [2015] EWFC41 Peter Jackson, (as he was), set out a list of risk factors and protective factors that may be relevant when considering whether a child has been the victim of a non – accidental injury. Jackson J made it clear that these factors are no more than a “a helpful framework within which the evidence can be assessed and the facts established.”He also made it clear that the presence or absence of a “particular factor proves nothing”as each case turns on its own facts and “children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones”.[97]Those factors listed as indicating risk are said to be physical or mental disability in children that may increase caregiver burden, social isolation of families, parents' lack of understanding of children's needs and child development, parents' history of domestic abuse, history of physical or sexual abuse (as a child), past physical or sexual abuse of a child, poverty and other socioeconomic disadvantage, family disorganization, dissolution, and violence, including intimate partner violence, lack of family cohesion, substance abuse in family, parental immaturity, single or non-biological parents, poor parent-child relationships and negative interactions, parental thoughts and emotions supporting maltreatment behaviours, parental stress and distress, including depression or other mental health conditions and community violence. Those facts considered to be protective were said to be a supportive family environment, nurturing parenting skills, stable family relationships, household rules and monitoring of the child, adequate parental finances, adequate housing, access to health care and social services, caring adults who can serve as role models or mentors and community support.[98]When considering the risk factors the court should distinguish between those risk factors that have been proven and those that have not. Unproven risk factors should be approached with considerable caution, (MacDonald J Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27).[99]In D and A (Fact finding: Research literature) 2024 EWCA Civ 663 Baker LJ was critical of the judge for not considering the many positive factors about the family when determining if the child had been assaulted.[100]The court should take great care before deciding that an obviously unsatisfactory explanation put forward by a parent or a failure to provide any explanation is evidence of culpability. In Re P (Sexual Abuse: Finding of Fact Hearing) [2019] EWFC 27: MacDonald J said this: “A blameless person may cast around for all manner of explanations simply as a means of seeking to understand the situation in which they find themselves but in respect of which they have no culpable knowledge. Likewise, the failure by a person to provide any explanation at all may be indicative of culpability where the situation in question would ordinarily admit of one, but it may also be indicative of no more than bare ignorance borne out of innocence”.[101]Parents do not have to prove anything they do not have to provide an alternative explanation. Whilst there is no obligation on the parents to provide an explanation for injuries that have been sustained, the court is entitled to weigh the absence of an explanation alongside all of the other evidence in the case. This does not amount to reversing the burden of proof, (Re BR (Proof of Facts) [2015] EWFC 41). In Re BR Jackson J, (as he was), said this:
“15. It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof. “16. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant”. “17. In the present case, an adult was undoubtedly in the closest proximity to the baby whenever the injuries occurred and the absence of any account of a pain reaction on the baby’s part on any such occasion was therefore one of the matters requiring careful assessment.”
[102]The accepted medical evidence is that it is unlikely, but not impossible, that a baby would suffer a serious head injury as a consequence of a low-level fall. In Re R (Children: Findings of Fact) [2024] EWCA Civ 153 Jackson LJ said this in paragraph 15: “The debate about serious head injury from low level falls is well trodden territory and the medical picture was bound to remain that these injuries were very unlikely, but not impossible, consequence of the event described by the family”.[103]In D and A (Fact finding: Research literature) 2024 EWCA Civ 663 Baker LJ echoed the same view when he said this: “The preponderance of expert opinion at the moment, which was reflected in the opinion of the experts in this case, is that low-level falls usually do not cause intracranial and retinal bleeding of the sort suffered by A but may do so on rare occasions. The presence of intraspinal bleeding is thought to be an indication of abusive shaking, but this is a grey area and the causes of such bleeding are not at present well understood”, (paragraph 90).[104]An allegation that a parent has failed to protect often accompanies an allegation that the other parent has inflicted injury upon a child. An allegation that a parent has failed to protect a child is a threshold finding which the court must determine independently of any finding of perpetration, (King LJ in Re G-L-T (Children), [2019] EWCA Civ 717 paragraph 68). The court must be alert to the danger of such a serious finding becoming a bolt on to the central issue of perpetration, (Re L- W [2019] EWCA Civ 159). A finding of a failure to protect may have significant consequences for a parent at the welfare determination. It can lead a court to conclude that the children’s best interests are not served with remaining with that parent even though that parent may have been wholly exonerated from having caused any physical injuryThe court should not assume too easily that if a person was living in the same household as the perpetrator such a finding is almost inevitable, (King LJ in Re L- W [2019] EWCA Civ 159 paragraphs 63 and 64). There has to be an evidential basis for the court to conclude that the parent who did not perpetrate the injury failed to protect the child from harm. It has to be established on the balance of probabilities that the innocent parent knew or ought to have known that the culpable parent posed a risk to the child and thus the innocent parent failed to protect that child.[105]Hearsay evidence is admissible in family proceedings, (Children (Admissibility of Hearsay Evidence) Order 1993. The issue for the court is the weight that it should attach to hearsay evidence, (Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703). The court must treat hearsay evidence anxiously and consider carefully the extent to which it can properly be relied upon, (R v B County Council ex parte P [1991] 1 WLR 221).[106]In Lancashire County Council v C and Others (Children; Fact Finding) [2014] EWFC 3 (Fam), Jackson J, (as he was ), considered the Judgment of Mr Justice Baker, (as he 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 set out the legal principles that apply when the court is conducting a fact finding hearing. Jackson J added these comments: “To these matters, I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as “story-creep” may occur without any necessary inference of bad faith.[107]The court should guard itself against making assessments of witnesses solely by virtue of their behaviour in the witness box. If the court attempts to determine whether a witness is telling the truth solely by their presentation in the witness box, the court risks making judgments that at best lack any rational basis and at worst reflect conscious or unconscious biases and prejudices. The only reliable approach is to focus on the content of the witnesses evidence and consider whether his oral evidence is consistent with other evidence that he has given, the evidence of others and with known or probable facts, (Re M (Children) [2013] EWCA Civ Macur LJ see also Re J (A Child) [2014] EWCA Civ 875. Jackson LJ). 47 If the court is considering making a finding that a witness has lied it should give itself a Lucas Direction, (R v Lucas (R) [1981] QB 720).The application of that direction in family proceedings has been set out by the court of appeal in H – C (Children), [2016] EWCA Civ 136 and Re A, B and C (Children) [2021] EWCA Civ 451. The following propositions of law can be derived from the above. If the court finds that a witness has lied on a material issue that in itself is not proof of culpability. “Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt” (MacFarlane LJ H – C paragraph 100). The lie can corroborate other evidence that is indicative of culpability if three conditions are met. Firstly, the court must find that the lie was deliberate. Secondly the lie must relate to a material issue in the case. And finally the court must find that the only explanation for the lie is the witnesses guilt and his/her fear of the truth. The court must distinguish between a lie, story creep, mistake, confusion, memory failure or distortion arising from an impairment. The court must remind itself that witnesses may lie for many reasons embarrassment, a sense of shame for having caused an injury accidently, a desire to hide some other wrong doing or a mistaken belief that lying may improve their position. The court must remind itself that just because a person has lied about one issue does not automatically mean that they have lied about everything. 48. Macur LJ in Re A, B and C in paragraph 58 said that if the court is considering giving itself a Lucas Direction it should ask counsel to make submissions to “identify:(i) the deliberate lie(s) upon which they seek to rely;(ii) the significant issue to which it/they relate(s), and(iii) on what basis it can be determined that the only explanation for the lie(s) is guilt”Even if the court finds that a witness has lied about a material issue the court must weigh that lie against any evidence that points away from them having been responsible for harming the child, [H v City and Council of Swansea and Others [2011] EWCA Civ 195]. Submissions.[108]I am grateful to counsel for their helpful submissions which I do not intend to set out in detail. Analysis/findings.[109]It seems to me that the following matters fall to be determined. i. Whether H sustained a fractured skull. ii. If H did sustain a fractured skull whether this was caused by a non accidental inflicted injury or an accidental cause/unknown cause. iii. If this was an inflicted injury whether the perpetrator on the balance of probabilities was M or F. iv. If the court cannot make a finding as to the identity of the perpetrator on the balance of probabilities whether there was a real possibility that M or F inflicted the injury. Whether H sustained a fractured skull.[110]I accept the evidence of Dr Williams that the CT scan taken on the 6th January 2024 revealed a fracture to one of the bones at the back of H’s head. I accept Dr Williams’ oral evidence that the two linear lucencies revealed on the CT scan were on the balance of probabilities fractures and not sutures. Dr Williams offered a sound and unchallenged explanation for excluding the lines as being sutures. The lines widened, extended into an adjacent bone, (the parietal bone), they did not have a zig – zag morphology and the subsequent CT scan revealed that the fractures had healed as opposed to evidence that the sutures had formed. It was not put to Dr Williams that the lines on the CT scan could possibly be suture lines. However, it seems to me that I can find that such a possibility exists. In his report Dr Williams expressed the view that differentiating between a suture and a fracture can be difficult. Dr Johnson initially opined that the appearances were of sutures but one of his colleagues considered them to be fractures. This led Dr Johnson to alight upon the view that either opinion had merit. Dr Johnson of course following the March CT scan expressed the same view as Dr Williams that the scan revealed fractures to the back of H’s skull. Having considered the evidence in my judgment the possibility of H having not sustained a fracture exists, but it is a very small possibility. Causation.[111]In terms of causation I accept the evidence of Dr Williams that the most likely explanation for the fracture was a non-accidental injury from a blunt force trauma and that there was no naturally occurring explanation such as being birth related, caused by the seizure or being attributable to an underlying bone density issue. Dr Ward’s report is detailed and comprehensive in my judgment there is no basis for the suggestion that her opinion, (that there was no underlying condition that could explain H’s fracture), was unsound.[112]I also accept Dr Williams’ opinion that a fracture to the occipital bone is highly unusual in an accidental trauma as this bone is especially thick and difficult to break. I accept Dr Williams’ evidence that the fracture was not self inflicted, was not caused in the course of normal/rough handling/rough play, by H throwing himself to the ground or by H falling back onto the fireplace surround. Dr Ward also did not consider that H had sustained the fracture by falling from a sofa, rocking against a door or falling backwards onto the fireplace surround. Whilst the medics opined that these accidental events were not likely to have caused the fracture I recognise and accept Dr Ward’s view that they cannot be excluded as a possibility.[113]I accept the mechanism of injury as put forward by Dr Williams and Dr Ward it was either an inflicted blow to the back of the head, (thump, kick or involving and object) or a significant fall from height. I also accept the evidence of Dr Williams that the imaging was consistent with one impact.[114]I accept Dr William’s view that the force required to cause such an injury would be high and obviously inappropriate and that H would have been in pain and reacted accordingly. This view chimes with that of Dr Ward. I accept Dr Williams evidence that the perpetrator of this injury and any witness would have known from H’s response that they had used inappropriate force. I also accept Dr Williams’ view that a carer that was not present when the force was applied may have been unaware that H had sustained an injury. This is also in keeping with Dr Ward’s opinion that H would have screamed in pain and continued to cry “for minutes…I would expect there to be a change in behaviour either by crying and showing distress, or by altered consciousness immediately after injury”, [emphasis added].[115]I approach the timing of this injury with some caution as Dr Williams’ view is that using the crude mechanism of the absence of soft tissue swelling that any blow is likely to have occurred some time between the 23rd December and the 31st December 2023, that it was possible that the trauma occurred in early December but as Dr Williams put it “November is pushing it”.[116]In summary the medical evidence tells me that on the balance of probabilities H sustained a fracture to the back of his head, which on the balance of probabilities was caused by a non accidental injury either an inflicted blow or a significant fall from height and that there was only one impact. It is unlikely that the fracture was self inflicted, caused by rough handling/play, by H throwing himself to the floor, falling from a sofa, falling back onto the fireplace surround or rocking against a door. However, there is a small possibility that H did not sustain a fracture and even if he did there is a possibility that the six accidental explanations set out above may have caused the fracture. I accept that there is evidence to suggest that H was a baby that tended to throw himself around without showing any signs of pain and distress. It is recorded by probably the health visitor on the 30th January 2024 that when she visited H (on the 5th January) he appeared to have no sense of danger and threw himself around.[117]I accept the submission of Miss Taylor KC that it is open to the court to find that H’s injury has one of the accidental causes outlined above. It is also open to the court to find that the fracture was attributable to by as yet a medically unknown cause. I do not make that finding as there appears to be no evidential basis to do so, (Re O (Children: Fact Finding ) [2025] EWCA Civ 479). I do not accept the submission that the absence of other injuries militates against a finding of non – accidental injury. I accept the evidence of Dr Williams that the absence of a soft tissue injury/swelling to the scalp, the presence of normal intercranial appearances, the absence of any bleed to the brain, the absence of focal or diffuse brain injury and the absence of any other bony injury is not of assistance in determining the causation of the skull fracture.[118]It would have been obvious to the perpetrator/witness that H had sustained a significant injury, but it would not have been obvious to any other carer. It is likely that the injury occurred sometime between the 23rd December 2023 and the 31st December 2023, it is possible that the injury occurred in the period between the 1st and 22nd December 2023.[119]I have set out below the evidence that supports and militates against a positive finding that either M or F inflicted the injury upon H. I have also set out a number of factors that were aired during the trial, but which have not assisted me in identifying which parent was the perpetrator. Whether M inflicted the injury.[120]I have considered the following factors: i. The visit from the health visitor on the 5th January 2025. ii. The events of the 6th January 2024. iii. M’s parenting. iv. M’s use of cannabis. v. M ability to cope with H. vi. Whether on the 2nd November 2023 M threw H on the sofa in anger. vii. The incident involving O and N on the 18th December 2023. viii. The evidence of the MGM. ix. My impression of M. The visit from the health visitor on the 5th January 2025.[121]The Health Visitor Safeguarding Concern Note of the 8th January 2024 records that the parents had informed the police that when H had been seen by the HV on the 5th January they had raised concerns about H head banging. The note also records that the parents had since retracted this statement. There is no mention of this in the HV note of the 5th January 2024. On the 11th January 2024 the HV, during a telephone conversation with the social worker, confirmed that the family had not discussed H having banged his head nor had she observed him doing so. In her oral evidence M asserted that she did speak to the HV about H banging his head. I do not draw anything adverse from this. It is not at all surprising that during this period M’s recollection of events would be marred particularly in light of her cognitive issues. The events of the 6th January 2024.[122]Initially I had some concerns as to why M appeared to come down the stairs at the point that the paramedics were in attendance. Having heard the evidence of M, the MGM and F I am not satisfied that the conduct of M, or indeed F on the 6th January assists me in determining who it was that injured H. M’s parenting.[123]I have no doubt that M loves H very much and that she would not intentionally cause him any harm. There were no safeguarding concerns noted by the Health Visitor following H’ birth and M was seen to be living in a clean and tidy home with the support of the MGM and F. The issue for the court is not one of a neglectful parent inflicting injury upon a baby but a loving and caring parent who may have in a moment of stress and anxiety caused injury to her child. M’s use of cannabis.[124]I am not of the view that M smoking cannabis in her shed whilst observing H via face time or her taking him to the park so that she could smoke cannabis with her friends assists me in coming to a determination as to whether she inflicted injury to her son. At its highest this could be considered to be sub optimal parenting falling well short of neglect. M has been open and honest about her use of cannabis during her pregnancy and subsequently. I am not satisfied that the level of honesty displayed on this issue is sufficient for me to conclude that if she had inflicted injury on H she would have said so. I also do not accept the submission that these parents are of their time in the sense that they play out their lives via social media and if either had inflicted injury on H they would have been compelled to share this information on social media. These are loving and committed parents if in a moment of pique one of them had hurt H that individual would not in my judgment have been able to confront that reality themselves let alone share that information with others.[125]There is no real evidence for me to conclude that whilst using cannabis M’s ability to care for H was compromised. I accept the evidence of M corroborated by F and the MGM that M’s use of cannabis did not alter her presentation. I accept M’s evidence that if she does not use cannabis she was unable to think straight and she would wind herself up. There is no evidence in this case that M was deprived of cannabis in December 2023. There is an entry in October 2023 which indicates that M was struggling as she had not had any cannabis. This entry is however well outside the window of injury identified by Dr Williams. Miss Porter suggested that the court should consider M’s use of cannabis in an “holistic sense”. I have made some findings below as to M’s ability to cope with the parenting of H. I do not know if the absence of cannabis played any part in the various occasions where M demonstrated evidence of not being able to cope. It seems to me that it is not necessary for me to determine if those occasions were or were not impacted by the cannabis issue. M ability to cope with H.[126]I find that following the birth of H M had difficulties in caring and coping with H. M has been diagnosed with Asperger’s Syndrome, Oppositional Defiant Disorder and ADHD. On the 23rd August 2023 M informed the HV that the MGM would take over when she became stressed. In the late summer of 2023 M was referred to the Perinatal Mental Health Nurse as it was reported that she was low in mood, that she was feeling irritable, was having thoughts of self harm and that she was not good enough for H. M was also expressing her concerns about spending long periods during the day on her own caring for H. On the 16th August 2023 during a home visit it was observed that M asked her mother to take over the feeding of H and the MGM reported that this often happened as she was more calm than M. The MGM also reported that M would stress out if she was unable to immediately soothe H. The telephone messages indicate that M was in a low mood and was struggling in caring for H prior to the 6th January 2024. On the 13th October 2023 M said that when H screamed she would panic because she could not calm him down and she did not know what to do.[127]I find that M’s difficulties in caring for H was in part caused by F not sufficiently sharing the burden. This is reflected in M’s text of the 26th June 2023 where she says that she is the only person caring for H and that she had to ask F to help her and that it was hard for her to get him to do so. M was frustrated that she was left with the lion’s share of caring for H whilst F went out to work. This is reflected in the message that she sent to F on the 17th June. I also accept M’s oral evidence that this would make her a “little bit”angry. Whether on the 2nd November 2023 M threw H on the sofa in anger.[128]This entry must be seen within the context of M sending previous messages about panicking when H screamed, of not being able to calm him down and her not knowing what to do. One of the difficulties that I have had in assessing the evidence of M is that the advocates and the court mindful of M’s fragile mental health did not subject her to rigorous cross examination. I make no criticism of the advocates for not so doing as it seemed to me that they and in particular Miss Porter were put in the unenviable position of seeking to elicit the truth from M whilst at the same time ensuring that not only that she remained mentally intact but that she was able to continue with her evidence. I keep in mind the guidance of Jackson LJ in Re B (Uncertain Perpetrator) [2019] EWCA Civ 575 that when the court is determining if there is a real possibility that a parent has inflicted injury there may be an imbalance of information about one parent as opposed to another. In this case F’s evidence was subjected to far greater scrutiny than that of M. I must take that into consideration when assessing the possibilities that M or F may have caused the injury.[129]I do not accept M’s evidence that when she said that she had thrown H on the sofa “this was just a saying…I placed him on the sofa”. M accepted in her message that she was angry. In her oral evidence M attempted to distance herself from the word anger by asserting that she was merely frustrated. I am not satisfied that much turns on this distinction and in any event I find that M was angry as she said so in her message. I acknowledge that M’s denial may be motivated by her fear that this text may lead the court to conclude that on a later occasion she deliberately harmed her son.[130]I appreciate that the MGM in her oral evidence did not ascribe any importance to this message as she believed that M was really saying that she had put H on the sofa. I accept that this is what the MGM believed but in my judgment this belief was borne out of the MGM not recognising the difficulties that her daughter was experiencing in having to spend long periods of the day on her own without anyone assisting her with the care of H.[131]F’s failure to respond to this text either by text in response or by showing any concern as to the content of this text is in my judgment symptomatic of his failure during this period to understand that his partner was crying out for assistance and that he was not hearing her pleas. I also find that F’s failure to respond indicates that he like the MGM did not consider that H was at risk of harm.[132]Whilst I find that M threw H on the sofa in anger it does not follow that I can then find that on another occasion whilst in a similar frame of mind she threw her son with force to the ground or on an object or that she inflicted an injury to the back of his head. This finding allows me to arrive at a view that M had a propensity to so behave. That in itself is not a surprising finding. Any parent faced with a screaming infant who will not settle could also be so described. The incident involving O and N on the 18th December 2023.[133]O’s text to M that he and N “saw red and we both shouldn’t of scrapped in front of H… you know how much I love H…I wouldn’t do anything to intentionally hurt him”raises the spectre that H was injured during this altercation. I am not satisfied that I can make any such finding. If H was injured on this occasion, it is outside the probable window of injury identified by Dr Williams. I am also satisfied that if H had been injured M would have said so. M no longer has a strong relationship with O and I cannot envisage that she would protect these individuals when she and her partner are being confronted with an allegation that one or other of them inflicted a significant injury to their son. The evidence of the MGM.[134]I have no hesitation in concluding that the MGM is devoted to her children and her grandchildren. I accept the MGM evidence that she does not believe either M or F harmed H. That said the MGM is obviously not an independent witness and is a lady who has taken on a lot of child caring duties for her family as well as working in a school. I am not satisfied that the MGM fully appreciated the difficulties that M was experiencing in 2023 in caring for H. This is revealed by the fact that in August 2023 the MGM informed the community mental health nurse that M had improved since taken medication which was contrary to that reported by M. The MGM in her oral evidence underestimated the difficulties being expressed by her daughter in her text messages during the summer of 2023. The MGM assessment was that M was showing a little bit of frustration and that she needed a confidence boost. The MGM candidly in her oral evidence accepted that the text messages leading up to and including the Christmas of 2023 reveal that M and F were struggling in caring for H and that at the time she did not appreciate that.[135]I accept the MGM oral evidence that if H cried M would become upset that she would not know what to do, that she would panic and break down. I accept the MGM oral evidence that when H cried and M was unable to feed him M would panic and ask someone else to help and that if there was no one present M would “get hold of someone a friend or someone”.[136]I also find that the MGM was unaware that M smoked in the shed whilst watching H on face time and that she underestimated M’s use of cannabis. It is simply not correct as the MGM asserts in her witness statement that M was not smoking a lot and that she would smoke a number of evenings a week and would share one joint with others. M’s evidence is that she would smoke in the morning once during the day and in the evening. The MGM does not believe that either parent has harmed H. In her oral evidence the MGM asserted that if M had hurt H she would not have been able to keep this a secret and that she would confide in her or somebody else. I do not accept that as it is clear that on a number of matters M has not been candid with the MGM. Whether F inflicted the injury.[137]I have considered the following factors i. F’s parenting. ii. F’s use of cocaine. iii. F’s assertions in the child protection medical that H would often throw himself over. iv. F’s reporting of absence episodes. v. M’s comment that she did not trust F. vi. F’s ability to cope with H. vii. H falling from the bed on the 10th October 2023. viii. F’s denials of being left alone with H. F’s parenting.[138]I make the same observations about F’s parenting as I do about M’s parenting. This is a loving and caring father who would not intentionally harm his son. That however does not lead me to conclude that he may not have in a moment of frustration fractured H’s skull. F’s use of cocaine.[139]I do not consider F’s use of cocaine to be a relevant factor. I accept that F has not used cocaine since August 2023 as there is an absence of any reference to cocaine use in his messages after that date. Even if I found that F continued to use cocaine up until the 6th January 2024 there is an absence of any evidence to suggest that this impacted upon his ability to care for H. I note that F informed the cognitive assessor Mr Dowsett that he did not use any street drugs. Technically this assertion was probably correct as at that stage F was not using cocaine. It is arguable that F was not being entirely candid as he did not declare that in the past he had used cocaine. As this point was not put to F and because the note is technically speaking accurate and I cannot draw any adverse inference from this apparent failure to be open and honest. F’s assertions in the child protection medical that H would often throw himself over.[140]I do not draw any assistance from the fact that at the CP medical that took place on the 6th January 2024 F is reported to have repeated several times “it is probably where [he] throws himself over on the floor”. It could be argued that this was an attempt by F to deflect any suggestion that he may have caused an injury. It could equally be said that this is perhaps the typical response of a care giver who when confronted with such a grim finding searches desperately for the reason why their child has suffered harm. F’s reporting of absence episodes.[141]When the paramedics attended at the MGM on the 6th January 2024 the parents and the MGM did not report H having suffered a head injury. When F was interviewed by the police on the 7th January 2024 he was asked if he had noticed anything that would have been similar to a seizure to which he responded “nothing at all this literally came out of the blue”. On the 14th March 2024 the parents had a meeting with Dr Halbert following confirmation from an external radiographer that the CT scan showed healing fractures. It is recorded that the parents reported that H had been having absence episodes since he was 6 months of age and that no medical advice had been sought. This is the first occasion that M and F mentioned these absence episodes. I note however that these absence episodes were also observed by the maternal aunt in April 2024 and in the same month they were noted prior to H suffering his second seizure. There could be a number of reasons why F waited until this moment to report these absence episodes. F may not have considered them to have been relevant prior to that date and with the passage of time in seeking to understand why H was injured their relevance may have become apparent to him. I am not of the view that this late reporting of these absence episodes assists me in determining if F injured his son. M’s comment that she did not trust F.[142]On the 26th June 2023 M sent a message to F which read “I don’t trust u half the time with him cause I never know what u r gonna do”. This message must be seen in context as it follows a series of texts in which M was expressing her dissatisfaction with F for not adequately assisting her in caring for H. When this was put to M she said that she did not know why she had sent this message and agreed that it was probably correct that she had sent the same because she was unhappy with F. M agreed with Miss Bhachu that this comment was not true. Mindful that M is very suggestible I was concerned that she did not understand the question. When I asked M what she had meant by this message her reply was that she did not know, and she could not remember. I am unable to attach any weight to this comment as M does not know why she sent it and it appears to have been sent as part of a dialogue where she was expressing her dissatisfaction with the support being provided by F. It is not open to me in light of the evidence to ascribe some sinister meaning to this text message. F’s ability to cope with H.[143]I accept the evidence of M that F was pleased when he discovered that he was going to be a father, that he had shouted at her but not used any violence, that he was a supportive boyfriend, a good father, that he had not done anything to scare her and that she had not been worried about how he would play with their son. I accept the evidence of M that F had shouted at H but that he calmed down quickly.[144]I do not find that H’ references to his son in expletives is relevant as to whether or not he inflicted injury on H. I accept that this is F’s mode of expressing himself. The text messages do however indicate that F was becoming frustrated by M’ use of cannabis and her leaving him alone with H whilst she did so. If one removes the expletives used to describe H I do not accept that the text messages support F’s claim that he has never been angry with H or lost his temper with him. I do therefore accept the evidence of M that F has a “bit of a temper”. M’s description in her oral evidence of F getting “wound up easily”fits with the text messages that he was sending to M. Text messages which read “this fucking child won’t stop”, [April 2023], and “this fucking kid he is not taking anything..he has given me the hump, [June 2023] indicate frustration/anger. The text message that H sent on the 13th November 2023 chimes with M’s evidence that F would get wound up easily. Within five minutes of caring for H on his own F sent the message “he’s doing my head in”. This was one of the few occasions where F in cross agreed that H was annoying him. F’s message on the 11th December “this fucking child …being a little shit…I fucking give up with this shit”in my view indicates that F was annoyed when left caring for his son. M’s response “I’ll help when home if u can’t do it”, in my judgment is telling as it indicates an appreciation by M that F was struggling to care for H. F accepted that on the 23rd December 2023 he was left with H “screaming the house down”and that he was frustrated that M had left him alone. F also agreed in cross that on the 30th December 2023 he was frustrated that M had left to smoke cannabis and he was left looking after H.[145]I found F’s desire to distance himself from any suggestion of anger contained in these texts during his oral evidence to be unconvincing. When Miss Porter put to F that in June 2023 he had left H in the chair to scream F replied, “doesn’t mean I did just cos I sent it”. On the 28th December 2023 F sent a message “this kid clearly doesn’t like me”. In cross F was asked what he meant by this to which he replied that H was teething. In my judgment F’s text is again indicative of a man that was struggling in caring for his child on his own. F’s comment that H was teething amounts to a failure to accept that fact.[146]In his witness statement the MU said that F would shout at H in frustration when H would not feed or when it was difficult changing H’s nappy. The MU also said that there were a few times when he considered that F was being a bit too aggressive or forceful.[147]I approach the evidence of the MU with a some caution. I have no doubt that the MU was telling me the truth and was doing his best to assist the court. That said I did not find the MU to be a reliable historian. The account that the MU gave to the police on the 7th January 2024 that F came out of his room with H who was seizing and that he heard F say that he had been awoken with H seizing is not in accordance with the evidence of F or the MGM. In his oral evidence the MU said that when F was rough playing with H H would not be laughing he did not feel the need to speak to the MGM as he didn’t think it was serious and he was not worried by F’s behaviour. I prefer the evidence of the MGM who said in her witness statement that F would rough play with H but “not inappropriately with H laughing”.[148]It is clear to me that the MU did not properly read over his witness statement prior to signing the same. I do accept however that there were occasions when the MU saw F get upset with H and shout at him as this is in accordance with my findings set out above. H falling from the bed on the 10th October 2023.[149]On the 10th October 2023 F sent a message to his father with read “just threw himself off mine and M’s bed… and yeah caught the front and back of his head”, (p11). When F was taken to this entry, he stated that he did not see H fall from the bed but that he had heard it and that H had been playing with his toys on the bed with M next to him. When Miss Porter asked F how he knew that H had caught the front and back of his head if he hadn’t seen it F replied, “I don’t remember”. In my judgment this inconsistency in F’s evidence does not aid me in assessing his credibility. These are events that took place over two years ago, F and this family generally have since January 2024 faced questions and accusations from many quarters. It is not surprising that F’s recollection of events has been adversely affected by the passage of time. F’s denials of being left alone with H.[150]In his interview with the police on the 7th January 2024 F asserted that he had never been left alone at the MGM house with H. When I put this to the F his response was that he did not know why he had said that. In his second witness statement F specifically addressed the issue as to who cared for H for the period from the 2nd December to the 23rd December. F says that “I was never on my own with H during this period”. These two statements are simply incorrect. I do not agree with Miss Bhachu’s submission that the potential adverse impact of these incorrect statements are mollified by the fact that in his January 2025 witness statement F says that there were periods of time when H was in his care whilst M was working. On two separate occasions once when interviewed by the police and subsequently in a witness statement that F confirmed in court was true to the best of his knowledge and belief F put forward an inaccurate and misleading statement that goes to the very heart of the matter before the court. I am not troubled by the fact that the inaccuracy in the witness statement was not put to F. It is not necessary for all of the evidence in support of an allegation to be put to a witness. I find that F deliberately repeated a lie on two occasions and that this lie relates to a material issue in the case. I am not satisfied that this twice repeated inaccuracy arises through mistake, confusion, memory failure or distortion arising from an impairment. I remind myself that a person may lie for many reasons a sense of shame for having caused an injury accidently or a mistaken belief that lying may improve their position. This could well be the case as far as F is concerned. F’s lie is not direct proof that he inflicted injury upon H. It does however stand out as a piece of the evidential jigsaw that suggests culpability on the part of F. Conclusion.[151]In arriving at a determination as to whether or not H is a victim of a non accidental injury I am mindful that in this case there is a marked absence of many of the risk factors prevalent in inflicted injury cases and a number of protective factors. M and F do not appear to be socially isolated albeit that M finds interaction with others challenging. M in particular has an understanding of the needs of babies and has experience of looking after infants. There is an absence of any domestic abuse between F and M, an absence of any history of sexual abuse and the family do not appear to have been socio – economically disadvantaged and were living in a clean and tidy home. There is a strong family unit and available support from the wider family. There is some substance abuse as far as M is concerned. M also suffers from mental health issues. I take these factors into consideration as a helpful framework within which the evidence can be assessed mindful that the presence or absence of any factor proves nothing, (Re BR (Proof of Facts) [2015] EWFC 41).[152]I find that the CT scan that was taken on the 6th January 2024 revealed a fracture to the bone at the back of H’s skull. I accept the medical evidence in this case that the fracture was likely caused by a non accidental single blunt trauma event an inflicted blow to the back of the head or a significant fall from height. This event probably took place sometime between the 23rd December 2023 and the 6th January 2024 and possibly in the period between the 1st December to the 22nd December 2023. I appreciate that I must consider the medical evidence within the context of all of the other evidence. For the reasons that I have set out below I do not find that it is probable that F or M inflicted the injury. However, having considered the totality of all of the evidence I am not satisfied that on the balance of probabilities that there is an accidental explanation for the fracture. The medical evidence in this case is strong. The evidence of the parents that the fracture may have been caused by a low level fall is not compelling enough to displace the evidence of the medical experts, (Re D (A Child) (Fact Finding Appeal) [2019] EWCA 2302 and Re O (Children: Fact Finding) [2025] EWCA Civ 479).[153]In seeking to identify the perpetrator of the fracture on the balance of probabilities I have considered the evidence for and against a finding in respect of M and F separately I have not sought to distinguish between the two in order to determine which one inflicted the injury, (Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348 and A (A Child) (Fact Finding: Head Injury) [2024] EWCA Civ). I remind myself that findings of fact must be based upon evidence which can include inferences that can be properly drawn from the evidence. Findings of fact must not be based on suspicion or speculate, (Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12).[154]I am not satisfied that I can find that on the balance of probabilities M or F inflicted the injury on H. I am satisfied that there is a real possibility that either M or F inflicted the injury. M’s struggles in caring for H with limited support and her loss of control in throwing him on the sofa in anger leads me to that view. I also find that F would become angry/frustrated when faced with the challenges of caring for a baby. F’s denial that he was alone with H also causes me to find that there is a real possibility that he caused harm to H. I also find that whichever care giver inflicted the injury also failed to seek timely medical treatment as it would have been obvious from H’s presentation that he had sustained a significant injury. HHJ Thomas 3rd October 2025.

Order

Threshold Conditions) [1994] FLR 572). Significant is defined as something that is “considerable noteworthy or important”, (Humberside County Council v B [1993] 1 FLR 257, (a definition endorsed by the Supreme court in Re B (Care Proceedings Appeal) [2013] 2 FLR 1075 SC)). Section 31 (2) requires the harm or likelihood of harm to be attributable to either the parental care provided to the child or the child being beyond parental control.