Hampshire County Council v SL & Ors [2004] EWHC 2720 (Fam)

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.Case No PO02C00724[2004] EWHC 2720 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/11/2004
Before
THE HONOURABLE MRS JUSTICE HOGG
Between
HAMPSHIRE COUNTY COUNCILApplicantSLFirst RespondentDL2 nd RespondentBL3 rd Respondent
Mr Robin Tolson QC and Mrs Roberta Holland instructed by The Local Authority for ApplicantMr Paul Storey QC and Mrs Alexa Storey-Rea instructed for First Respondent MotherMs Sally Bradley QC and Miss Kathryn Corol instructed for Second Respondent FatherMs Judith Rowe QC and Miss Penelope Howe instructed for Child’s GuardianHearing Hearing dates: 1 st-12 th NovemberIn Basingstoke County Court
JudgmentMrs Justice Hogg :
[1]The case before me relates to two small boys, S born on 16th August 1996 and is 8, and BL born on 4th November 2004 and is just 2. They have the same mother, but different fathers.[2]S’s father Mr G has parental responsibility through marriage with the mother. He plays no part in these proceedings but is fully aware of the Local Authority’s care plan, including an application for a Care Order in respect of S. He wishes to continue seeing S on a regular basis, but for S to remain living with his mother. Were the Local Authority minded to remove him from his mother, Mr G would wish to have S living with him.[3]BL’s father is DL. He also has parental responsibility by marriage to the mother. He too accepts that BL should continue living with his mother and accepts that there should be a full Care Order in respect of BL. He now says he accepts that the parental relationship is at an end, and will not return to the mother’s home to live, but wishes to continue seeing BL, and indeed S, on a regular basis, and if possible in time in a more natural manner and unsupervised basis.[4]The proceedings in respect of S were instituted by the Local Authority on 12th November 2002. No interim Care Order has been made in respect of S. He has lived all his life with his mother and is described as being close to her.[5]The proceedings in respect of BL were instituted on 5th November 2002, the day after he was born. An Interim Care Order in respect of him was originally made on 29th November 2002 and this has been maintained save for a lapse in Spring 2004.[6]Like the father of BL the mother accepts there should be a Care Order in respect of BL, on the basis that he should continue to live with her.[7]The issues before me relate to the threshold criteria. Both parents now acknowledge that their daughter C, who died on 4th December 2001, sustained a number of injuries whilst in their primary care. Neither parent accepts responsibility for those injuries. Neither parent provides an account of how any of those injuries were sustained. The mother does not seek to blame a third party. In her evidence she was struggling but beginning to believe that the father must have been responsible.[8]C was born on 20th September 2001 and died at 17.55 pm on 4th December after life support was terminated. At 15.55 pm on 2nd December whilst being fed by her father upstairs in her bedroom in the family home, she collapsed and despite medical assistance never recovered.[9]Her father was charged with her murder and 2 counts of GBH against her. The trial was delayed several times, but eventually took place in March 2004. On 20th April 2004 following a direction from the Judge the jury returned a verdict of Not Guilty on all charges and he was discharged.[10]In his summing up to the jury the Learned Judge said “someone had abused C is beyond doubt. Before 2nd December she had suffered fractures to her ribs and long bones. She had sustained subdural and retinal bleeding possibly as the result of blows”.[11]Originally on being charged the father was granted bail on conditions. On 31st July 2003 by police surveillance the father was observed entering the mother’s then home in breach of the bail conditions. He was found hiding in a cupboard in the home where the mother was also present. He was arrested and remanded in custody, where he remained until his release following his acquittal. Notwithstanding his absence from the home and BL’s life while in prison, the father and BL have established a relationship which is enjoyable and beneficial to the child. It is proposed by the Local Authority that this contact should be continued. However, as to the details of it and the management of it for the future, much will depend upon my findings of fact.[12]The mother acknowledges that her own relationship with the Local Authority has not been that of openness or frankness. She has colluded with the father in his breach of bail conditions: to what extent is not known precisely. She has not kept the Local Authority fully informed of her own activities or whereabouts. She has not attended meetings or appointments. She has been awkward, rude and abusive to social services, and reluctant to let the Local Authority or Guardian meet with or be involved with S, and she has refused to discuss S’s upbringing with them. Contact between BL and the father has proved difficult, as on occasions she has disrupted it by her presence.[13]The Local Authority through the Team Manager said that the mother has been most unhelpful and unco-operative, and they, the social workers, have found this case extremely difficult to manage.[14]I recognise the circumstances were unusual and difficult, but I blame both the father and mother for their poor and difficult behaviour towards the social workers. I hope that as a result of this hearing, and my Judgement, greater co-operation will prevail, and that both parents will endeavour to work with the social workers for the benefit and protection of both boys.[15]Although the parents have conceded that there should be a Care Order in respect of BL with the care plan he should remain in his mother’s care there has not been clarity as to the events which occurred during C’s life, the injuries which she undoubtedly suffered or the identification of any perpetrator. The principal purpose of this hearing is that of a fact-finding exercise to provide as much clarity about these matters as is possible. Such clarity will assist the Local authority in its future management, assistance, advice proffered under the Care Order.[16]I also need to decide whether or not it would be appropriate to make a Care Order in respect of S.[17]In the fact-finding exercise I must be mindful of the law. The burden of proof lies with the Local Authority who makes the allegations against the parents. The standard of proof is the balance of probability as explained in H & R (1996) 1 FLR as set out at page 96 in the speech of Lord Nicholls of Birkenhead:
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability… Deliberate physical injury is usually less likely than accidental physical injury….. Built into the preponderance of probability standard is a serious degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability. 18. Ungoed-Thomas J: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”
[18]I am therefore looking for compelling and cogent evidence before I make any findings.[19]C was born at term. She appeared to be a normal and healthy baby. During her short life she was cared for principally by her mother who was on maternity leave until 26th November. Her father cared for her as and when he could when he was not working. There was a nanny who was employed by the parents to care for S, and on occasions she helped care for C. She was on holiday for the first two weeks of C’s life and from 17th November to 26th November when she took the children out that day. She did not care for or see C thereafter. She did not work at weekends.[20]In her police statement dated 7th December the mother described C as “an angel: she was so good. For the first two weeks she was a very good baby after that she turned into a baby who liked to sleep in the day and be awake at night. That was C for a few weeks, after that she started to be sick a bit. She was difficult to wind from day one”.[21]The first indication of difficulties in C’s life came on the night of 14/15th October. At 1.46 am the father telephoned the local Healthcall seeking advice as “C was screaming for an unidentified reason”. She had vomited, had no rash and was a good colour. At 11.30 am on 15th October 2001 the mother took C to the local GP’s surgery. Initially she saw the Health Visitor who noted that the mother said that C had not fed since about 4.00 pm the previous day, and was very unsettled. She showed the Health Visitor two patches of bruising on C’s arm. The baby was seen by the GP who recorded a couple of bruises on the arms, and a small strip bruise on the back, and a finger type bruise on the right thigh. She appeared a well baby, but no explanation for the bruising was offered. The GP thought she might have suffered from unintentional rough handling.[22]At 2.00 pm that day the mother told the Health Visitor that C was more settled and taken a small feed.[23]C was seen at the clinic by the Health Visitor on 24th October when the father said he had no concerns and she was now much better. She was gaining weight and was well.[24]On 30th October the nanny’s sister-in-law, who is a nurse, saw C, and there was something about her appearance and lack of responsiveness which made her feel that the baby was “not quite right”, and perhaps was “brain damaged”. She did not mention her feelings at the time thinking it was not her place to do so. She gave this information to the police some time later.[25]C attended her six week assessment on 7th November 2001 when the GP conducted the usual checks, including movement of the limbs and manipulating the legs and arms. She appeared well, and there was nothing untoward noted. There was no mention of undue crying or distress in C during the assessment.[26]On 14th November the maternal grandmother spent time with C. She noted that C was grumpy, irritable, screaming in pain and drinking in a funny way.[27]C received her first immunisations at the clinic on 21st November. There were two injections and one drop. C was described as being well; had she been unwell in any way the immunisations would not have taken place.[28]On the 23rd November C was seen at the surgery by the GP with a history of vomiting and being unwell since the immunisations. The GP advised a change of formula milk.[29]On the 26th November C was seen again at the surgery by another GP who recorded that C had been unwell since the immunisations, was vomiting after most feeds, and not feeding well. She was referred to the Children’s Department of the local hospital.[30]In a police statement the nanny, who had taken C out that day, also said C had not been feeding, and cried on being picked up, but settled once back in her car seat.[31]At hospital no firm diagnosis was made but a viral illness, reaction to the immunisation and dehydration were considered. When she was admitted a history was taken that C had been vomiting for six days and had been occasionally “very irritable”. She appeared well and alert. She remained in hospital until 29th November when she was discharged home. At that time she seemed well and was ‘smiling’.[32]Later that day the Health visitor telephoned the home and was told that C was taking small amounts of food, and was “more wakeful”.[33]At 20.30 pm on 30th November C was readmitted to the Children’s Department with a history of “poor feeding at home”. The nurse fed her and she appeared “reasonably happy”. The medical notes also recorded that the mother said that as soon as C had got home on 29th November that she had “gone into hysterics” being fed, taken only small amounts, and since about 4 am on 30th November she had been crying all day unless asleep, and had vomited her early morning feed. The father said she had been vomiting and feeding poorly.[34]C, on admission, was recorded as being alert and interactive but had lost weight since her discharge. It was noted that she displayed intermittent episodes of being quiet, alternating with spasms of crying.[35]C was discharged on 1st December, but to return the following day to be weighed. By the time of her discharge she was feeding adequately, but nursing staff recorded her as being “not always settled”. One of the nurses in a police statement also said that C became angry in the bath when she was on her back. The mother was recorded as telling the nurse she got very upset and went ‘berserk’ in the bath.[36]The father took C to the Ward on 2nd December where she was weighed and allowed home with an Outpatient appointment on 6th December. He took her home.[37]Later that afternoon at home, while the family were having lunch with S, the father’s own two boys, a visiting little girl, the maternal Aunt and Grandmother, C collapsed while with the father upstairs. He had taken her up in order to feed her.[38]An emergency call was received at 15.56 pm which according to the family evidence was almost immediately after her collapse.[39]Her father’s description of the collapse is to be found in his statement to the police on 6th December 2004 [page 43]. It is of some importance when dealing with the medical evidence.[40]Before he had taken her upstairs he said she had been very attentive, very smiley all round. Later he said she had been with the other children watching Pingu on television. Initially when he was upstairs “she started to feed, taking about half an ounce, before starting to refuse. She started to feed again. At this moment or shortly after she just started to feed she spluttered and some of her milk, just tiny droplets, sprayed out of the side – between the teat and her mouth. Almost instantaneously her eyes started to shut, they just seemed to close very slowly and he remembered thinking “she can’t be going to sleep”. “so I took the bottle out of her mouth because this was no longer anything like the method that we’ve been described and she started to make a strange, almost like a wheezing noise quite a deep wheezing noise .. her eyes were half closed, and I saw her eyeballs effectively roll back in her head. I was holding her now and she started to go limp, really limp and still making this sort of wheezing noise”. He called the mother who came upstairs: then he noticed that the colour seemed to be draining out of her.[41]A doctor was able to reach the home quickly and to administer resuscitation. He noted that there was no obstruction to the airway, and no indication of vomit in or around C’s face or mouth.[42]The ambulance arrived at 16.08 pm. C was pallid with no obtainable blood pressure, pulse or respiratory rate. She was unconscious and unresponsive. There is a record of her vomiting in the ambulance on the way to hospital.[43]She arrived at the A & E Department at the hospital at 16.30 pm, by then she had a rapid heart rate, but no respiratory effort. She was pink but floppy and completely unresponsive. No external bruises were seen, but bilateral retinal haemorrhages were observed. She was ventilated artificially and stabilised.[44]CT scans were taken that evening at 18.23 pm and a full radiographic skeletal survey made. Those x-rays showed multiple rib fractures, a right clavicle fracture and a fracture to the right tibia.[45]The CT image of her head was viewed and the radiologist was “highly suspicious” of the presence of an interhemispheric subdural haematoma. A diagnosis of non-accidental injury was made, later to be confirmed by the neuro-radiologist at Great Ormond Street Hospital where C was conveyed. Dr Chong, the neuro-radiologist, on seeing the CT scan was suspicious of non-accidental shaking-impact injury “occurring within a matter of hours to a day at the time of the scan”.[46]At GOSH C’s eyes were examined. There were extensive retinal haemorrhages and were considered by the Consultant Ophthalmic Surgeon as being consistent with non-accidental injury.[47]C never recovered, and died at 17.00 pm on 4th December.[48]Her parents were arrested on 6th December and kept apart over night in custody, and were first interviewed by the police on the 6th and then 7th December.[49]When C was admitted to the local hospital a full skeletal survey was undertaken, x-rays of her body were taken and CT scans taken at 18.23 pm that evening.[50]Professor Hall, Consultant Paediatric Radiologist of Great Ormond Street Hospital, has reviewed the x-rays, and gave evidence before me. She found a large number of fractures sited in both legs, both arms, ribs and clavicle.[51]She found metaphyseal fractures near the left knee: one at the lower end of the femur which she thought had occurred within the 7 days preceding the x-ray, and another in the upper end of the tibia: this she dated as being between 10 and 14 days old.[52]There was also periosteal new bone formation around the mid shafts of the tibia and fibula being about 2 to 3 weeks old.[53]In the right leg again near the knee she found fractures: one at the lower end of the femur and one at the upper end of the tibia. Both she thought were 10-14 days old. There was also a metaphyseal fracture of the lower tibia near the ankle. She thought it was probably less than 7 days old.[54]In addition she found a soft tissue swelling on the right thigh which she thought may be a result from a trauma, or infection. I am disregarding this finding on the basis that there is a potential innocent explanation.[55]In the left arm there was a metaphyseal fracture at both ends of the humerus which she thought were less than 7 days old, and a healing injury along the mid shaft of the left ulna of between one week and 3 weeks of age.[56]She found a metaphyseal fracture of the lower end of the right humerus which was older but less than 4 weeks old.[57]She said that metaphyseal fractures are caused by applied gripping, twisting and pulling forces applied rapidly at the site of the fractures: the amount of force is considerable beyond that of heavy handedness or playful handling.[58]These fractures do not result in swelling or bruising and would not be apparent on clinical examination. However, they cause pain when sustained resulting in the baby crying, even screaming, for upward to half an hour at the time they occur, and thereafter for up to a week but gradually diminishing over that time, further pain on direct handling such as changing or picking the baby up.[59]The perpetrator of such injuries would be aware of inappropriate force being used and that the baby had thereby been caused injury and pain. Anyone else would be aware the baby was in pain and distress.[60]The periosteal fractures were caused by shearing forces around the lower leg causing damage to the superficial layers of the bones. Again the amount of force is considerable and beyond that used in heavy handedness. Likewise they do not result in swelling or bruising but they cause pain and the same considerations as to the length of time distress is shown when the injury is sustained and thereafter on being handled, and the perpetrator would be aware that he/she had caused pain and injury and an innocent carer would be aware of the distress.[61]From the x-rays taken on 2nd December and at post-mortem, Professor Hall also found a large quantity of rib fractures. She very helpfully prepared a pictorial schedule of the rib fractures which she saw. There were fractures to the right 7th, 8th and 9th ribs, and to the left 5th, 6th, 7th, 8th and 9th ribs at the posterior (near the spine). She thought these injuries were between 4 and 8 weeks old.[62]There were fractures of the right 10th, 11th rib and left 6th, 7th, 8th, 10th and 12th rib at the posterior. These she considered to be between 2 and 4 weeks old.[63]The right 9th rib at the posterior, and the right 8th, 9th, 10th rib at the anterior (chest) and the left 6th rib at the anterior were also fractured, and these fractures she thought were less than 2 weeks old.[64]She said that rib fractures are caused by extremely severe squeezing or compression forces to the chest, and the fractures occur at the site of maximum distortion or bending of the ribs. They do not produce swelling or bruising, and are not apparent on clinical examination, but they result in pain and distress at the time of injury, and thereafter on a diminishing basis for up to a week on changing or moving the baby. The pain and distress would be apparent to the perpetrator, and innocent carer thereafter. Indeed, the perpetrator would be aware that inappropriate force had been used, pain and injury caused.[65]She also found a fracture to the right clavicle. She thought it was between 2 and 3 weeks old and would have been caused by a direct blow onto the tip of the shoulder, possibly from falling from a height or being dropped. It could have been accidental in origin, but there was no account or history of an accident. The baby would have been in immediate pain and distress, would have cried and an onlooker would have known that the child was in pain. Likewise the child would be caused pain on movement for up to a week after the injury.[66]During the course of the criminal investigations various suggestions of natural or organic causes were put to the Professor. She considered but dismissed such suggestions and remained firmly of the opinion that the fractures were non-accidental in origin.[67]Many of her findings were recognised by the radiologist in the local hospital where C was first taken.[68]Dr Anscombe who conducted the first post-mortem also identified many of the fractures seen by Professor Hall.[69]Dr Anscombe took various bone samples from the ribs and sent them to Professor Malcolm, a Consultant Pathologist at Shrewsbury who specialises in bone pathology.[70]The Professor was unable to identify with precision the piece of bone on each slide and therefore it is not possible to co-relate all the specimens to Professor Hall’s findings. However, he was able to confirm that there was no pathological changes which would contribute to bone fracturing.[71]He found fractures in some of the specimens. He found at least 2 rib fractures which he estimated would be about 4 weeks old. Additionally he thought the fracture to the clavicle was about 4 weeks old, but in evidence said that because of the position of the fracture and likelihood of greater movement the fracture could be between 3 and 5 weeks old.[72]He found other fractures to the ribs of between 2 or 3 weeks in age, and of between 1-2 weeks old.[73]In addition he identified a definite incomplete fracture of the right lower tibia, which he thought was about one week old.[74]In evidence he was hesitant in being precise about the ageing of other fractures but more certain about the newer fractures. He thought that his expertise being different from Professor Hall’s was more reliable than her estimates of age. Professor Hall does not disagree with this in principle as her expertise is to age fractures from viewing images on x-rays rather than from closer visual inspection. Her windows of time are wider than those provided by the histology.[75]Professor Malcolm was of the view that the multiple rib fractures, that to the clavicle and right lower tibia and the distribution of those fractures was typical of non-accidental injuries.[76]He was also able to say that in his view there were no skull fractures which Dr Anscombe thought he had identified, but which he withdrew having seen Professor Malcolm’s report.[77]I accept the evidence of Professor Hall, Dr Anscombe and Professor Malcolm as to their finds with regard to the bone and metaphyseal fractures, the estimate of age of each.[78]I accept Professor Malcolm’s more precise estimate of ageing the fractures which he received. He recognised that old fractures are difficult to age with precision. The oldest fractures which he identified he thought were about 4 weeks old.[79]The clavicle could be 3 or as much as 5 weeks. Of those which he identified he was clear that it was unlikely they were 8 weeks old. However, not all the fractures were sampled and sent to him. While accepting his evidence on the bones which he examined I cannot and do not exclude Professor Hall’s estimate that some fractures were as old as 8 weeks, but I do not know and cannot say whether some of the older fractures she identified were older than 4 weeks.[80]With that caveat on the evidence before me I can make findings: i). There were fractures identified by Professor Hall and Professor Malcolm being about 4 weeks old. There may have been others which were older but not more than 8 weeks old; (ii). There were fractures identified as being 2 to 3 weeks old; (iii). There were fractures of about 1 week old; (iv). I accept Professor Hall’s evidence as to the mechanisms for each fracture or type of fracture; (v). I accept Professor Hall’s description of pain and distress immediately and thereafter on normal handling; (vi). I accept Professor Hall’s evidence that considerable force was used beyond that of rough handling, or heavy handedness and that the perpetrator would know that the force used was entirely inappropriate and would cause pain and injury, and that a carer or onlooker would be aware that the child was in pain; (vii). I accept that many of the injuries would not be apparent on clinical examination; (viii). There are no explanations or histories given which are consistent with accidental injury; (ix). There are no explanation or evidence upon which to base a natural or organic cause for the fractures; (x). Multiple fractures and the distribution of those found in C are indicative of non-accidental injury; (xi). In the absence of any valid or consistent history of an accidental injury I conclude that C sustained non-accidental injuries and fractures on at least three different occasions. I do not know whether there were further occasions, but I cannot and do not exclude that proposition.[81]I turn now to the injuries found in C’s eyes. Extensive retinal haemorrhages were seen in both her eyes on admission to the Accident and Emergency Department.[82]Dr Bonshek, Consultant Ophthalmic Pathologist of The Royal Eye Hospital, Manchester, was initially instructed by the local Constabulary to examine and report on the eye photographs and eye histology slides taken from C at post-mortem. He gave evidence before me confirming his reports. He confirmed the eyes were normal in structure and there was no evidence of natural disease or history of accidental injury. He found very extensive retinal haemorrhages affecting all regions of the retina and layers of the retina in both eyes, the optic nerve sheaths and the tissue behind the eyes. The left eye was more particularly affected.[83]He was able to identify haemosiderin in some, not all areas of the haemorrhage, and some areas where there is no haemorrhage, and there were some areas of inflammatory cells.[84]He concluded from these findings that there was evidence of recent bleeding in some areas in the period of up to between 2-4 days prior to death. The presence of haemosiderin in areas away from the haemorrhage indicated bleeding at an earlier time, possibly even from the birth period; but as he told me that was very unlikely as retinal haemorrhages caused by the birth process usually disappear after between 1 to 2 weeks without leaving a residue.[85]He further concluded that there were probably at least two periods of bleeding associated with trauma: namely 2 to 4 days prior to death, and an older episode which was difficult to age, but 8 days or more prior to death. He did not exclude the possibility that there were more than 2 periods. He said that without natural disease or history of an accident that the early bleed was caused by inflicted trauma, probably shaking.[86]At the time the retinal haemorrhages were first seen on admission there was no brain swelling visible on the CT scan. This he considered and was able to conclude that the recent retinal haemorrhages occurred at the same time and within the same mechanism as that which caused the brain damage which led to death.[87]Having read the description by the father of C’s collapse he thought the most likely cause of the recent retinal haemorrhage was due to non-accidental injury involving shaking and probably impact.[88]Professor Luthert, Professor of Pathology at The Institute of Opthalmology, London, was instructed by and called on behalf of the father. He was “broadly in agreement with the observations of Dr Bonshek”. The eyes were normally formed but with extensive retinal haemorrhage involving all layers of the retina, and said that the extent and amount of haemorrhage, especially in the left eye was towards the upper end of the spectrum. In this he agreed with Dr Bonshek. Likewise he found extensive deposits of haemosiderin within areas of haemorrhage as well as away from fresh haemorrhage indicated that it was likely there was bleeding prior to 2 days before death.[89]He accepted that there could have been two episodes of bleeding. One on the afternoon of 2nd December, and an earlier one which he could not date with any accuracy other than to say that 8 days prior to death would be consistent with his findings.[90]However, he could not convince himself that there was more than one episode of bleeding, but he could not exclude it, and accepted there could be more than two episodes. He added that given the degree of blood present he was a little surprised if there had been only one episode.[91]He was aware of the fractures and concluded that C had been subjected to inflicted trauma, which being the case it was entirely feasible that the haemorrhages he observed arose as a result of that trauma.[92]He was aware of Dr Johnson’s report and suggested explanation for C’s collapse. He was cautious and deferred to Dr Johnson but accepted that the process Dr Johnson describes might have raised the intra cranial pressure which might have affected the blood vessels in the retina to create the haemorrhages on 2nd December.[93]Having considered the evidence of the experts I find: i). the eyes were normal in structure; (ii). there was no evidence of natural disease; (iii). there was no history of accidental or other trauma; (iv). there were extensive retinal haemorrhages in both eyes with haemosiderin being also present within areas of haemorrhage and away from it. There was also evidence of fresh bleeding; (v). there was evidence to suggest that the older bleeding occurred at 8 days or beyond prior to death. It is most unlikely that it was caused by the birth process; (vi). the more recent bleeding could have occurred between 2-4 days before death, i.e. consistent with occurring on the afternoon of 2nd December and at the time of C’s collapse; (vii). the presence of retinal haemorrhages is not diagnostic of inflicted trauma, but is consistent with it, but they can occur in non-traumatic contexts; (viii). taken with the presence of multiple bony fractures which I have found to be non-accidental in origin and in the absence of any explanation as to their cause, I find that the older retinal haemorrhages were also non-accidental in origin, and probably caused by a shaking injury.[94]I will deal with the more recent bleeding and the significance of it while dealing with the brain injury which led to death.[95]Following the admission to the A & E Department and CT scan a subdural haemorrhage at the back of the head was observed. The scans taken that day have been viewed and reported on by Dr Tim Jaspan, Consultant Neuroradiologist at The Nottingham University Hospital. He has a specific expertise in the field of neuroradiological imaging of trauma in infancy. He was initially instructed by the local Constabulary.[96]On the CT images he found two areas of subdural haemorrhages. There was a thin subdural haemorrhage lying along side the posterior cerebral falx, posterior aspect of the cerebral hemispheres, tentorium and the right cerebral convexity in the temporal region. It was a wide spread haemorrhage over the back of the head, right side and mid line. This was the haemorrhage observed by the doctors in the local hospital.[97]He also found a probable older thin subdural haemorrhage overlying the anterior aspects of the cerebral hemispheres. It was at the front of the head, and had not been observed by the local hospital.[98]He said that the slightly dusky appearance of the posterior halves of cerebral hemispheres is consistent with early cerebral oedenna and/or ischaemic change with minimal cerebral swelling.[99]Further scans were taken on 3rd December at 16.14 pm at GOSH. Dr Jaspan viewed those scans and he noted marked widening of the cranial sutures since the previous scan which was consistent with marked elevation of the intra cranial pressure. It was most probably due to global cerebral swelling which had progressed since the initial CT scan. A further scan was taken at post-mortem from which the doctor observed further widening of the cranial sutures, again consistent with further global cerebral swelling prior to death.[100]He considered the bone density which appeared normal and he could find no radiological evidence of any underlying brain abnormality which would predispose C to such brain/head injuries.[101]He was aware that there was no history of an accidental injury sufficient to cause the brain injuries, but was fully aware of the other radiological evidence of fractured bones and retinal haemorrhages.[102]He gave an estimate of age of his findings and concluded that the radiological appearances were consistent with a severe injury occurring up to 1-2 days prior to the CT scan. The early posterior cerebral swelling and ischaemic changes in the cerebral hemisphere are most consistent with the injury occurring within a few hours of the scan. He was aware that C collapsed shortly before 16.00 hrs on 2nd December, and of her subsequent illness and further concluded that the injury occurred at that time. The subsequent scans were consistent with a rapid global swelling of the brain, and consistent with the injury occurring shortly before C’s admission to hospital.[103]He was aware of the father’s description of C’s collapse which he said was consistent with the immediate consequence of a shaking injury.[104]He was of the view that the injury sustained by C on the afternoon of 2nd December was non-accidental in origin, and probably caused by shaking with possible impact.[105]Dealing with the older subdural haemorrhage at the front of her head, he said that it was difficult to age, but probably in excess of 2 weeks prior to the first scan. He thought that it was highly unlikely that it was caused at birth, as usually birth subdural haemorrhages resolve by 4 weeks and would not be visible on the scan.[106]He said that the most probable cause for that injury was a vigorous or violent shaking. He speculated that the events described on 15th October may have represented such an episode of inflicted injury.[107]In post-mortem Dr Anscombe found the brain was markedly swollen. He found an older subdural haemorrhage at the front of the brain and took samples of it. There was a thin film of subdural blood over the convexity of the right cerebral hemisphere. There was no membrane formation. He also found bruising within the scalp over the mid back of the head. This was not visible on external examination. With his other findings he concluded that the cause of death was a head injury and his findings were “strongly suggestive of violent shaking and/or impact to the back of the head”.[108]Dr Waney Squier, Consultant Neuropathologist at the Radcliffe Infirmary, with a specialist interest in the pathology of the developing brain in the fetus and neonate, was instructed on behalf of the father. She received samples of the brain taken at post-mortem. Some of those samples contained areas of the older subdural haemorrhage. She did not receive samples of the more recent haemorrhage, as it would have dissipated. In those samples with older haemorrhage she was able to identify a membrane surrounding the haemorrhage indicating that the injury had been there for at least 8-10 days before death. She was also able to identify fresh bleeding within the haemorrhage from the capillaries in the membrane. This fresh blood which she dated as being within two days of death.[109]She was unable to assess the recent haemorrhage at the back of the head and postulated that it may have drained from the re-bleeding at the front of the head by reason of C lying in hospital, but on further cross examination recognised that the first CT scan some 2½ hours after the injury showed the newer haemorrhage and therefore it was most unlikely that the blood had drained down, there being insufficient time to do so.[110]She also saw an older scar to the cerebellum, at the back of the head. It could have been there for at least three days or for much longer.[111]Taking the older haemorrhage and the old scar together there was evidence of old injuries which she thought could have occurred at the same time. She said the scar was probably evidence of trauma and the old bleeding was consistent with at least one incident, possibly two, of trauma.[112]Although she found very severe swelling and congestion which caused considerable disruption to the brain structure and this was the cause of death, she said that she saw no evidence of direct trauma to the brain and no evidence of malformation, infection, inflammation or metabolic disease.[113]She was aware of Dr Johnson’s work and report and would not exclude the possibility that the final injury to the brain on 2nd December was caused by increase of cranial vascular pressure.[114]However, having seen the other evidence of fractured bones and retinal haemorrhages she was in no doubt that C suffered multiple episodes of trauma and she could not and did not exclude trauma as being the cause for C’s final collapse on 2nd December.[115]The bruise which was found on post-mortem within the scalp was considered by Dr Ian Rushton, formerly Consultant Paediatric and Perinatal Pathologist. He had been instructed on behalf of the father. He received post-mortem photographs of the bruise and descriptions of it from Dr Anscombe. He said that in his experience bruising such as this are not uncommon in babies who die following a period in Intensive Care and could be caused by a shearing force of a firm grip in the context of medical procedures and handling within the unit, and not one of negligence or inappropriate force. Alternatively the bruising could be a result of pressure on the back of the head in an immobile infant. However, he could not exclude impact by trauma.[116]As to age, he thought the bruise could have occurred anytime before death, up to 72 hours.[117]Professor Risden, Consultant Paediatric Pathologist, was asked to report on Dr Rushton’s conclusions. He was not called to give evidence but in his report he accepts Dr Rushton’s description of the bruising. However, he rejected the idea that pressure from the head cause bruising, and further rejected the suggestion that shearing forces created by firm gripping could cause bruising. He said that “it was quite untrue that bruises under the scalp are ‘not uncommon’ on babies who have received intensive care”. He has examined a large number of such babies. He also further sought the views of other eminent and experienced pathologists who he reported agreed with him.[118]Dr Anscombe was asked about Dr Rushton’s evidence. He said he had examined many babies who had been in intensive care. He had not seen such bruising before, could not find it in any literature, and had spoken to various colleagues about it, who in turn were unable to recognise the symptoms. He thought Dr Rushton’s evidence was “very surprising”. Even Dr Rushton had to admit that he had not found it within the literature.[119]Dr Anscombe agreed it was difficult to age the bruising. The best he could say was that “it was a few days” old but unlikely to have been caused within 24 hours of death. He thought the injury was caused by some sort of impact. Professor Risden thought it had the appearance of the bruise that is entirely consistent with being the result of an impact associated with the formation of the serious head injuries which led to death. Dealing with the head injuries I can make the following findings at this stage: (i). There was no evidence of any accidental injury to C’s head; (ii). There was no evidence of malformation, infection, inflammation or metabolic disease to the brain; (iii). At post-mortem the brain was very severely swollen and congested: this had caused considerable disruption to the brain structure and had been the cause of death; (iv). The swelling was not present at the time of the original scan, but developed thereafter; (v). There was evidence of an old scar to the cerebellum which on the balance of probabilities was caused by trauma: there being no evidence to the contrary; (vi). There was an older subdural haemorrhage at the front of the head. There had been a healing process and development of the membrane which indicated that it was at least 8-10 days old prior to death. Within that haemorrhage there was some rebleeding which was fresh; (vii). The older subdural haemorrhage was caused by trauma, there being no other explanation, and no history of an accidental injury, and most probably by a vigorous shake. It is most unlikely to be the result of a birth injury; (viii). The scar and the older subdural haemorrhage could have occurred at the same time, but not necessarily so; (ix). There was an extensive fresh haemorrhage at the back of the head around the rear of the right side, and probably in the falx. I do not accept the possibility that fresh blood from the old haemorrhage drained downwards as initially suggested by Dr Squier, but which later was doubted by her. I find there was a separate incident which caused this bleeding. I will deal with the causation of this bleeding at a later stage. This bleeding was recent within 1-2 days prior to death; (x). There was a bruise at the back of the head under the scalp. It was up to a few days old at time of death; (xi). I reject Dr Rushton’s evidence as to causation of the bruising and accept the evidence of Dr Anscombe and Professor Risden that it had the appearance of being consistent with an impact.[120]Dr Paul Johnson, Consultant Clinical Physiologist in the Department of Obstetrics at The John Radcliffe Hospital was instructed relatively recently by the father in the criminal proceedings in which he gave evidence. He gave evidence before me.[121]He did not agree with the evidence that the only cause for C’s sudden collapse and death was non-accidental in origin and probably caused by vigorous shaking and impact. He put forward possible alternative explanations for C’s collapseand death which involved natural causes. In his enquiries he spoke to both parents and accepted their accounts of C’s life and difficulties.[122]He seemed to think that there had always been feeding difficulties. This is not what the mother indicated in her police statements, describing an ‘angelic’ baby for the first two to three weeks of life.[123]Dr Johnson suggested that C might have suffered from gastro-oesophageal reflux (GER) which is relative common in infants. Indeed, it was considered by her doctors as a possible explanation for the feeding difficulties which developed during her life. The doctors never investigated the reflux and there is no determinative finding, merely a suggestion of it. He was critical of the doctors for failing to investigate. He said there is a relationship with the reflux and apnoea, and if the apnoea continued for any length of time could lead to collapse and death.[124]He also suggested what he described as laryngeal-chemo reflex (LCR) with or without the combination of gastro-oesophageal reflux could have led to the sudden collapse and death. He propounded that if a tiny amount of fluid, milk, came into contact with the larynx it would close firmly and remain closed until the blockage was removed. The mechanism being that to defend the lungs from unwanted fluids. Apnoea, or breathing would stop, the heart rate slows down but the blood pressure increases to protect the brain and nervous system. If the process continues for several minutes the brain will be starved of oxygen and there could be hypoxic brain damage.[125]He was aware of the father’s description of C’s collapse and said this was consistent with what he would expect from an incident of LCR whether or not it was combined with the reflux.[126]It was put to him that his suggestion of LCR with or without GER and coupled with recent subdural and retinal haemorrhages resulting in collapse was controversial. This he had to accept, but thought there could be a relationship. He thought that a previous older haemorrhage might have made C more vulnerable.[127]He agreed that although there was a relatively high incidence of babies suffering GER, perhaps 40%, only a very small proportion of those go on to suffer LCR, and of those who have LCR only a very small proportion go onto die. “It is a very few percent, a small number”. He said most infants who suffer LCR recover and do not die.[128]He was not aware of any cases in medical literature or research where an infant had suffered LCR and died but had also suffered non-accidental bony fractures. That combination he thought was extremely rare. Indeed, he reported that those injuries required explanation. Adding in the presence of older subdural plus retinal haemorrhages made it even more rare, if not unique.[129]Mr Jonathan Punt, Consultant Paediatric Neurosurgeon, at the time of his report but now retired, was instructed by the local Constabulary to provide an overall medical assessment and report as to the cause for C’s death. He gave evidence before me.[130]He was clear that there was no natural occurring disease and no history of accidental injury which could account for C’s various older injuries and collapse leading to death. He rejected the alternative suggestions to account for her collapse and death put forward by Dr Johnson.[131]Other explanations had been put forward during the criminal proceedings which had been discounted or rejected by himself and other experts.[132]He concluded that on the 2nd December C suffered from the effects of a severe disturbance of brain function as evidenced by her clinical condition. There was no natural disease or reported accident to account for the encephalopathy and subdural haemorrhages which were present. He concluded that they resulted from an inflicted head injury which involved an impact creating the recent bruising under the scalp, beyond that of anything considered to be normal or safe handling. It would have been self evident to any perpetrator or observer that the force used was such that it was highly likely that the baby would suffer serious harm, or even die.[133]He reported that the precise timing of the inflicted head injury cannot be made from the medical evidence. However, the consequences were so severe that C would have been very ill immediately after the inflicted injury. This evidence coincided with that of Dr Jaspan. She would have displayed altered consciousness, become inattentive to her environment, not have taken her feed, her colour would change, she would have become limp, or stiff, there would have been abnormalities in her breathing and heart later, she might have vomited, her eyes might have rolled upwards.[134]He read the description from the father of C’s collapse and said this was consistent with and highly characteristic of a baby suffering from the immediate effects of a severe inflicted brain injury. He had previously read the descriptions of C earlier on from the mother, father, maternal grandmother and aunt, describing a smiley, contented and well child. Those were not the descriptions of a child suffering from the effects of a fatal brain injury.[135]He concluded that the fatal brain injury occurred in the afternoon of 2nd December whilst upstairs with the father.[136]From the medical evidence available to him he also concluded that C had suffered repeated episodes of inflicted, non-accidental injury.[137]I have already made findings that C suffered at least three episodes of violence producing the bony fractures. In addition she had sustained older retinal haemorrhages, and a subdural haemorrhages whether those earlier head injuries coincided with an episode of trauma producing some of the fractures I cannot say. There is no firm medical evidence to that effect, nor is there other evidence of an occasion when violence was used.[138]I am therefore not able to say how many episodes had taken place before 2nd December. I find there were at least three such episodes, and that there is no indication or evidence to say any episode preceded the night of 14/15th October.[139]I do find that on the balance of probabilities taking the evidence of the parents, the tape of the mother’s description to the emergency doctor, and the bruising on C seen by her, the Health Visitor and GP, an episode of violence occurred on the night of 14/15th October. To say what occurred or what injuries were inflicted, other than the visible bruising, would not be safe but it would be within the time scale of the older subdural haemorrhage and possibly some of the older fractures.[140]I have considered Dr Johnson’s evidence very carefully, together with the evidence of Dr Squier and even Professor Luthert. It would not be safe to reject their evidence merely because there is evidence of previous episodes of violence. Clearly the evidence of non-accidental injuries is very important. I accept that before the fatal collapse C downstairs had been well and attentive. The hospital had discharged her that morning . There had been a history of her being unwell for a week to ten days before the collapse in that she was reluctant and difficult to feed. The hospital was unable to establish what was wrong. GER was considered but not investigated. It is now known that for some or even all of that period C could have been suffering from the ill effects of fractured ribs causing her pain and distress on being picked up, or cuddled. This in turn may have made it difficult to feed her.[141]I note also the evidence from Nurse Hickman that C became very agitated when placed on her back in the bath, but was more comfortable being held on the front. The mother suggested that C often went berserk in the bath. Again this may have something to do with the pain and distress caused by fractured ribs.[142]Dr Johnson in putting forward his alternative explanation did not consider any pain and distress C would have felt over the preceding weeks, or any consequences that may have had for her feeding and bathing routines.[143]Dr Moore, on arrival at the home following C’s collapse, found her airway free from obstruction and her mouth clear of any vomit. If there had been a LC reflex it had cleared itself by then. The father described a wheezing sound coming from C which may indicate the airway was not blocked and she was able to breathe.[144]I have to consider the evidence on the balance of probabilities, and on the medical evidence alone while not rejecting Dr Johnson’s explanations as being possible but extremely rare, and therefore unlikely. He did not know of any case where there was LCR, inflicted bone fractures and recent subdural and retinal haemorrhages. A combination which would make the possibility even more unlikely.[145]Mr Punt’s evidence is that there was an inflicted injury which consisted of a severe impact and violent shaking. That mechanism at that time would account for the recent subdural haemorrhage at the back and side of the head. Likewise, if there were recent retinal haemorrhages for which there is evidence to suggest they were present, the same mechanism and episode would account for them.[146]I find that Mr Punt’s conclusions that the cause of collapse on the afternoon of 2nd December was the consequence of a serious inflicted injury considerably more likely and more probable than Dr Johnson’s explanation. Thus, I find that C suffered a severe impact and violent shaking episode immediately preceding her collapse on 2nd December.[147]I have made findings of fact of inflicted injuries to C over a period from 14/15th October until 2nd December. In my view the medical evidence is compelling.[148]It is important that I attempt to identify any perpetrators of those injuries, or at least exclude, if possible, those who might fall under suspicion.[149]C was cared for by both her parents, the nanny who was employed principally to care for S, the nanny ’s sister in law the nurse who saw her on 30th October, the maternal Grandmother, in particular 14th November and 2nd December both times in the company of the mother, and her maternal Aunt.[150]C was injured on at least three occasions. The Grandmother, Aunt and nanny’s sister in law were not regular carers of C. There is no suggestion they had many opportunities to cause harm.[151]The nanny was in a different position. There were occasions when she was asked to care for C for short periods while the mother was out shopping briefly and for slightly longer periods; on 30th October while the parents were preparing to move house and on the next two days while the move was taking place. She also cared for C one longer period on 26th November.[152]The nanny did not have care of C before 10th October as she was on holiday between Monday 24th September to Wednesday 10th October. She also was on holiday from Friday 16th November until Monday 26th November and did not see C during that period. Likewise, she did not see C or work during weekends.[153]The mother was on maternity leave since before C was born until 26th November. She was the primary carer for C during the weekdays in this period although the nanny occasionally helped out.[154]The father left the home for work usually about 8.00 am returning usually about 6.00 pm.[155]The evening and night time care and weekend care of C was shared between the parents. C was a bottle-fed baby and throughout her life the father assisted in feeding her, changing her and generally caring for her.[156]Both the parents had ample opportunity during her lifetime to cause injury to C.[157]The parents say that C became ill following her immunisation on 21st November. She continued to be ill over the weekend of 24/25th November and was unwell on 26th November when the nanny took her out. She gave an account of C looking paler than before, reluctant to feed, and complaining on being picked up out of her car seat, but settling down when put back.[158]The nanny had not seen her between 17th November and 26th November, some 6-15 days before 2nd December, during which time there is ample medical evidence to say C may have suffered inflicted injuries. She did not see her after 26th November.[159]On 21st November before her immunisation the surgery had been assured by the mother that C was well and fine, otherwise had the Doctor thought or been told she was unwell he would not have carried out the immunisations but deferred them. The difficulties arose afterwards but before the nanny returned.[160]The 15th October was a Monday. The incident of screaming occurred the night before when the nanny was not present and had not been present since the preceding Friday Whatever occurred that night or early the following morning when the bruising appeared the nanny was not present, and can therefore be excluded from causing any injury which may have occurred.[161]On 7th November C had her six week check. The mother told the Doctor that C was well, and the Doctor found nothing untoward. Had C been suffering from recent injuries being within 7 days prior to the appointment it is very probable that the Doctor in manipulating her limbs and examining her inadvertently would have caused her pain and distress which may have been apparent and untoward.[162]The maternal Grandmother on 14th November was concerned for C who was grumpy, screaming in pain or discomfort “something didn’t seem right”. “It seemed she did not want to be picked up”. Whatever this may have represented by the 21st November she was fine.[163]The injuries were sustained while C was in the care of her parents. The nanny can be excluded on occasions from causing any injuries by reason of the fact she was not present. Likewise the maternal Grandmother and Aunt were not regular visitors or carers of C. On that basis alone the greatest suspicion must fall on the parents.[164]I have made findings about the cause of C’s collapse on the 2nd December: that there was an impact and/or vigorous shaking incident immediately before her collapse.[165]The father throughout has accepted that when C collapsed he was alone with her upstairs in her bedroom. There has never been any evidence to refute that.[166]The maternal Grandmother in her police statement recounts a calm, attentive, smiling C downstairs. She cuddled and held her granddaughter. She had hoped to feed C herself but the father removed her upstairs. Her evidence is confirmed in part by the maternal Aunt. There was nothing apparently wrong with C when she was taken upstairs for a feed. The Aunt said she went up at about 3.30 pm.[167]The Grandmother, Aunt, mother and other children were downstairs eating their dinner; they were halfway through the meal when all three adults heard two loud thumps on the ceiling. The Grandmother recalls the mother jumped up and looked at the ceiling before sitting down again. She heard nothing more from upstairs. A short time later she heard the father shout that C had stopped breathing causing the mother to run upstairs. The Aunt confirms the two thumps and the mother half standing up, looking up at the ceiling, before sitting down. She confirms that as far as she was aware only the father and C were upstairs, and all the children were downstairs.[168]According to Dr Moore who returned to the house later that evening, the Aunt told him that after C had been taken up by the father and the family had sat down and were eating she heard C cry for a while, but after about ten minutes the crying stopped.[169]The mother in her statement of 21st December recalls the father and C going upstairs to feed. She went up shortly afterwards with a bottle as she had not seen the father take one. She went into C’s room, saw the father feeding her and left quickly. In evidence she said C was feeding, she was not screaming. At some time during this period she recalls hearing C crying while she was downstairs. She could not be precise as to when she heard the crying in relation with going up with the bottle, or the two thumps, or indeed when she heard the father say “C, no”, in an attempt to be authoritative as advised by the hospital.[170]She recalls she was sitting down and eating when she heard two thumps which made her jump up, and check the children were present. A short time later she heard the father shout for help and ran upstairs.[171]The father accepts he went upstairs with a well child to feed her. He started feeding her, the mother came in and distracted C. He attempted several times to get her to feed again but without success. In his first police statement he gives an account and then a description of her collapse. In cross-examination to me he acknowledged that C was grizzling, crying, resisting the teat. He had not previously mentioned any crying or grizzling to the police. He did not remember hearing any thuds or thumps. He denied being stressful and asserted he was calm, but persevering with attempting to get C to feed. He admitted that before he had taken C up he had had three or four glasses of wine, and had not eaten. His food was waiting for him downstairs.[172]He denied he did anything to injure C either on 2nd December or earlier, and this has always been his position.[173]He accepts he was alone upstairs with C when she collapsed.[174]During his evidence before me there were aspects of it which caused me grave concern. I had previously read descriptions of his explanations and feelings about the breach of bail on 31st July 2003 which led him to be remanded in custody.[175]The father was interviewed on 6th October 2004 by Mr Gumbleton, a Child Protection Consultant and family therapist, instructed to assess the parents on behalf of the Guardian. He told Mr Gumbleton that “in some respects he did not believe that he did anything wrong” with regard to his breach of bail. He felt the primary issue was that he should not see the children unless agreed by the Local Authority. He told Mr Gumbleton that he did not actually see the children on the night in question as they were in bed. He went to the house to discuss a business matter with the mother.[176]Dr Roberts, a Consultant Forensic Psychiatrist, was also instructed to assess the father by the Guardian. To him the father said that in his view the breach of bail was “a possibly rather grey area as it was to do with him making a single visit to the family home when the children were in bed asleep”.[177]The Local Authority had suspected that the father was breaching the bail conditions. As a result the police set up a surveillance of the mother’s house. They went to the house and found him hiding in a cupboard. He was arrested. He told me he never sought to challenge the fact that he was in breach when taken to Court the next day. I ask myself how could he challenge it when he was caught on the property?[178]There was a video of his arriving at the house. I have not seen it, but I am told it shows S answering the door to him. The mother accepts that although BL was in bed at the time S was either up or got up when the father arrived and they hadunsupervised contact. She also said that it occurred two or three times in all.[179]The father in evidence had to accept he had met S on 31st July and he had been to the house on two or three occasions.[180]I find he lied to Mr Gumbleton and Dr Roberts about the breach. I find also he sought to minimise his culpability in this respect.[181]I note also what Mr Justice Grigson said on 28th October 2003 about the breach, that it was deliberate, that he parked his car away from the house to reduce the risk of being discovered. I note he found that the father sought to deceive the Court on two specific occasions in relation to his yacht.[182]To Mr Gumbleton he sought to justify the family holiday abroad after the conclusion of the criminal trial, and sought to portray himself and the family as victims of the intransigence of the Local authority in not agreeing reasonable contact.[183]On the 2nd November in an attempt to compromise the case he instructed his Leading Counsel to draft a concession to the Threshold criteria on his behalf. The mother never agreed it.[184]The relevant paragraph reads as follows: “It is accepted that the injuries sustained by C occurred whilst she was in the care of her parents and that one or other of her parents must have caused the said injuries and that the father accepts that in light of this admission the Local Authority are entitled to view him as posing a risk to the children”.[185]During his cross-examination he sought to blame, or at least suggest, that the nanny could have been responsible when it was apparent that she was not present during part of the week following the immunisation, and by the time of her return C was unwell. He hinted that as he was not the perpetrator the only other person had to be the mother: he never actually brought himself to say that, but the hint was a very clear one.[186]Initially under cross examination he seemed to suggest that the document and clause I have read was drafted in a way with which he did not agree, that it was misleading if not a lie to the Court, and in any event was null and void. Following consideration of his position and discussion with the legal team at the conclusion of the cross- examination he confirmed that he had given instructions for the document to be prepared and circulated and “if asked he would say that he has not been misled by his advisors”.[187]All this leaves me to doubt the father’s credibility. He lies, he self justifies, he minimises and he tried to wriggle out of unpalatable truths. He omitted to tell the police that C cried while he was trying to feed her. He said he did not hear the two loud thuds.[188]I find he was the only person present with C upstairs in the moments before her collapse. Only he knows the full history. He did not give a full account to the police.[189]He has not given me a full account. I have already found that there was an inflicted injury, an impact and vigorous shaking which caused C to collapse and subsequently die.[190]I find that he was responsible for that inflicted injury. In the time with her he lost control, whether because he had drunk too much, was under stress, was hungry, frustrated with her crying or refusing to feed, whether there was a combination of such factors. The precise circumstances I do not know but he lost control and caused those injuries.[191]I have to consider now the possible perpetrator or perpetrators of the other injuries on at least three previous episodes.[192]It follows that having found the father to be untruthful and unreliable in his evidence and having found that he inflicted the injuries on 2nd December his other evidence has to be viewed with great caution. He denies that he ever harmed C. He covered up and lied about his part in C’s death. I have to look at that with great caution. In my view he has shown he has the propensity to lie and seek to deceive and deflect blame from himself about very serious matters. At times he is very plausible. He has failed to tell the truth about what happened to C on 2nd December when he lost control and inflicted a grievous injury on a defenceless child. He has failed to acknowledge responsibility or acceptance of his actions on that occasion.[193]The mother was a primary carer for C. On the evidence the mother was usually in the house at times when the father helped out with the caring for C.[194]Professor Hall indicates that whenever the injuries were sustained that there would be a cry or scream of pain which would continue for up to 30 minutes and thereafter on handling for up to a week. The doctor’s evidence was that a carer who was not present when the injury was inflicted and did not know there was an injury would nonetheless know the child was in distress and something was wrong, but would put the problem down to an innocent cause such as colic.[195]The mother here was aware at times that there was something wrong. On 15th October she took C to the Health Visitor and GP showing them the bruises. She took the child to hospital on occasions pressing her view that something serious was wrong with C. At one moment she feared the child had something fearfully wrong with her, fearing she would be told C had leukaemia. She blames herself for allowing herself to be pacified by the GP and hospital doctors. In her words “had she jumped up and down” and insisted more perhaps the doctors would have investigated further, perhaps there would have been x-rays and the truth discovered earlier and perhaps C would not have died. Hindsight and self blame in these circumstances are easily understood, but these are not the actions, thoughts or words of a guilty parent, more of one who blames herself for not doing something more.[196]During the last three years she has managed well with S and BL. They have not suffered physical harm at the hands of the mother despite the appalling stress and anxieties with which she has been beset. She has not lost control. BL has not suffered an inflicted injury. This, of course, is not conclusive of her innocence, but is an indicator and factor in the assessment of who inflicted the earlier injuries.[197]I am of the view that I am entitled to look to the fact that the father inflicted the fatal injury and that he has lied and covered up for himself, even seeking to blame others rather than accepting any responsibility[198]He had ample opportunity to injure C and he has shown he has the propensity to do so. Many of the injuries were caused by similar actions. A child has to be gripped hard to be vigorously shaken. C suffered from fractured ribs caused by extreme squeezing force to her rib cage on at least three different episodes. There is evidence of at least one previous shaking injury. There is a consistency of methodology. Unfortunately there is no precise or detailed evidence as to when the previous injuries were inflicted. The mother’s own evidence as to the onset of each period of illness after the immunisation, and return from hospital on 29th November is not precise.[199]There is no evidence to directly implicate the mother or anyone else in the causation of the injuries.[200]I am of the view there are compelling reasons and cogent evidence available to me to find, which I do, that the earlier inflicted injuries were perpetrated by the father when he lost control and injured C.[201]In the light of my findings I have to say he is a risk to small children, in that he has the propensity to lose control. In my view he certainly needs to undertake some therapeutic work.[202]It goes without saying that in view of my findings the threshold criteria in respect of both S and BL has been passed. S was living in the same household when the injuries were inflicted on C and they were caused by adult loss of control. No doubt he was at risk and he has also suffered emotional harm as a consequence of her death.[203]Had BL been born into that household as it was then constituted he would have been a real risk of physical harm and injury.[204]I am making no finding of culpability against the mother. There is no evidence to say she knew or ought to have known what the father was doing to the child. There were no outward signs of injury and no reason for her to suspect her child was being injured. She was aware C was ‘not well’ but she did not fail to take C to doctors or seek medical advice. She was proactive in that respect.[205]I have in passing criticised the mother for her difficult, awkward, rude and abusive behaviour towards the Local Authority and the Guardian. I have criticised her for her part in the breach of bail conditions and her defiance of the Local Authority’s protection plan by taking the children away on holiday with the father earlier this year. I hope she realises the error of her ways and the stupidity of her actions.[206]I acknowledge that she has apologised to the social work team in Court and expressed a desire to work with the same social worker. I hope this will prove to be a genuine change of heart. She is beginning to recognise the need for support from the Local Authority and very rightly accepts there has to be a Care Order in respect of BL.[207]She resists the making of a Care Order in respect of S. In that she is supported by the Guardian as not being in his best interests. It would be intrusive. He has a real need to return to normality and a settled existence. The Local Authority will have access to BL, and the household including S through their Care Order in respect of BL. They will be able to support and advise the mother with regard of S. He does need help at school that is clear, but it does not justify a Care Order.[208]If there can be a rapprochement between the mother and the Local Authority she, BL and S can benefit. She needs to move on, settle down and reconstruct her home life and her business life. She does need support from professionals, and she needs to engage with them. If she changes her attitude to them they in turn must be prepared to draw a line under her past difficult behaviour. I am sure this can be achieved.[209]I cannot and should not forget that notwithstanding all her stupid and awkward behaviour the mother has managed the boys well. They are delightful and a credit to her.[210]With regard to S I do not think a Care Order will be in his best interests. It would be intrusive and a hindrance to his return to normality. Sufficient access to him will be provided by a Care Order on BL.[211]With regard to the Care Order proposed, I have some uncertainties and questions about the detail of the Care Plan. I am entirely satisfied that there should be a Care Order but there are issues which the Local Authority should consider before I do so. In particular the work proposed between the parents and Mr Gumbleton is very important. It needs to be funded. I share the Guardian’s view that it would be undesirable for the parents to either fund or part fund it.[212]Consideration has to be given as to whom and to what extent the contents of, or the whole of this Judgment should be disseminated.[213]No doubt these and other matters can be considered before I conclude this matter on 25th November.

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