Staffordshire County Council v B & Anor [2016] EWHC 3183 (Fam)

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.

Case No SQ15C00206

[2016] EWHC 3183 (Fam)

IN THE FAMILY COURT

Venue Birmingham Civil Justice Centre

Date 29/11/2016

Before

MR JUSTICE KEEHAN

Between

Staffordshire County CouncilApplicant

B1 st Respondent

V2 nd Respondent

Mr. Christopher Adams (instructed by Jane Hayward of Staffordshire County Council) for Applicant

Mr. Andrew Bainham (instructed by David Foster of Tamworth Solicitors) for 1st Respondent Mother

Ms. Victoria Edmonds (instructed by Dawn Tatton of Moseleys Solicitors) for 2nd Respondent Father

Miss Kate Akerman (instructed by Sarah Nicklin of Lichfield Reynolds Solicitors) for Guardian

Mr. Brendan Roche (instructed by Leah Jones of Browne Jacobson Solicitors) for intervenor, X Residential Unit

Hearing Hearing dates: 28 th September, 17th - 21st, 25 th, 27 th& 31st October, 1 st& 29th November

Judgment

Mr. Justice Keehan:

Introduction

[1]I am concerned with one child L who was born in October 2015 and is 12 months of age. His mother is B and his father is V. They are both 20 years of age.

[2]L has a half-brother K who is 2 years of age. His father was CL, sadly now deceased. On 15.12.14 K was admitted to the Heartlands Hospital, Birmingham with what were later considered to be non-accidental injuries. The local authority commenced care proceedings in respect of him. The proceedings culminated in a fact-finding hearing at the conclusion of which the judge found that K had sustained non-accidental injuries which had been inflicted by either his mother or his father.

[3]Accordingly, upon L’s birth the local authority commenced these care proceedings and upon his discharge from hospital on 15 October 2015 he was placed with foster carers.

[4]L was made the subject of an interim care order on 24 November 2015.

[5]On 21 October 2015 he was placed at X residential assessment unit with his father in Y.

[6]On 30 November 2015 he was admitted to Y Hospital when clinical investigations led the treating clinicians to conclude that he had sustained a number of non-accidental injuries.

[7]L was discharged from hospital on 18 December 2015 and was placed with foster carers.

[8]This composite fact finding and welfare hearing was listed in order for the court to determine who had inflicted the non-accidental injuries on L. There is no dispute that the identified injuries were non-accidental inflicted injuries. The only issues are who had caused the same and when.

[9]The local authority contends that the only possible perpetrator is the father. The father denies he inflicted any injuries on his young son and contends that the injuries must have been inflicted by one or more of the three members of staff at the residential unit, each of whom it was asserted had had the opportunity to injure L.

Background

[10]L and his father resided at the residential unit from 21.10.15. They settled into a routine at the unit reasonably quickly although the father, a young man caring for his first child, did seek the advice of staff during the first week about how to settle L at night.

[11]L was seen by health visitors on 26 October, 28 October, 5 November and 12 November when nothing untoward was noted. He underwent a LAC medical on 6 November and was seen by a nursery nurse on 19 November when, again, nothing untoward was noticed or reported.

[12]On 20 November the father, by agreement, left the unit to register L’s birth. L was cared for by a member of staff, VT, between 6:30am and 2pm.

[13]On 23 November L was out of sorts. In the late evening L was unsettled and when seen by VT at about 10:50pm the father, who was up in his bedroom with the baby, reported that L had been sick: not just possetting as he had regularly done. The father was in the process of cleaning up L’s vomit. VT made the sleepover member of staff, TH, aware of what had happened before she left for the night.

[14]TH went up to see the father and L about 11pm to ensure the father knew that if he needed help with L during the night he should come and call him.

[15]On the morning of 24 November the father had to leave the unit to attend a court hearing in this matter. L was left in the care of TH from 6.55am. He was asleep. He stirred briefly when Mr. H switched on the office lights but settled when the lights were switched off. Three members of staff, TH, VT and W had the care of L until the father returned to the unit at around 4.30pm.

[16]At about 10am VT fed L but after only taking a small amount of his feed he projectile vomited all over her. She sought the assistance of Ms W to care for L whilst she cleaned up herself. All three members were concerned about L’s presentation and it was agreed that Ms W would take him to the GP’s surgery which was only a short walk away from the unit. The doctor’s note of the consultation reads:

“History vomiting 24hrs. Started yesterday. Also been sick this am after feed. Examination snuffly. Sleeping initially later crying. Apyrexial. Abdomen soft. Skin turgor/fontanelle normal. Wet mouth. Comment: Discussed fluids. Observe during day. Review later if continued sickness.”

[17]L was plainly unwell. Father noticed the same when he returned. Of note for the first time L slept through the night and did not, as was his usual routine, wake once or twice for a bottle.

[18]On 25 November L was admitted to Y Hospital at 8pm – he was clearly unwell. He was discharged on 29 November without anything of significance being diagnosed.

[19]On 30 November L’s condition had deteriorated such that he was readmitted to Y Hospital at 11.30am. He underwent a chest X-ray which revealed rib fractures and some hours later underwent a CT scan. As a result he was transferred to Z Hospital at 9.25pm. There he underwent an MRI scan on 1 December. Skeletal surveys were undertaken on 2 and 14 December and further CT scans were performed on 7 and 9 December. L was discharged to foster carers on 18 December.

The Law

[20]The burden of proving the findings of fact sought rests on the local authority. The standard of proof is the simple balance of probabilities: Re B

[2008] UKHL 35

[21]I take account of the fact that in considering who inflicted these injuries and when, I must survey a much wider canvas than just the expert medical evidence and must take account of a whole host of other relevant factors presented to me during the course of the evidence: Re U: B; A Local Authority v. KD & L

[2005] EWHC 144 (Fam)

; A Local Authority v. X, Y & Z

[2005] FLR 129

; and the decision of Baker J in Re JS

[2012] EWHC 1370 (Fam)

where he very helpfully summarises the principal authorities and the principles to be applied in this case. I respectfully adopt all that he said.

[22]When considering the welfare best interests of L I have well in mind the provisions of s. 1(1) and 1(3) of the Children Act 1989.

[23]I also have regard to the Art 6 and Art 8 rights of the mother, the father and L. Where, however, there is a tension between the Art 8 rights of a parent, on the one hand, and of the child, on the other, the rights of child prevail: Yousef v. The Netherlands

[2003] 1 FLR 210

The Expert Medical Evidence

[24]I received expert medical reports and evidence from Dr Cartlidge, a consultant paediatrician, Mr. Richards, a consultant paediatric neurosurgeon, and Dr Chapman, a consultant paediatric radiologist.

[25]The expert medical witnesses were unanimously of the view that L had sustained the following injuries:(a) fractures to the posterior ends of his right 7th and 8th ribs and of his left 5th, 6th, 7th and 8th ribs; and

(b) multifocal subdural haemorrhages with subdural fluid collections and spinal subdural haemorrhage. They were also agreed that in the absence of any accidental event – and none is put forward in this case – then these injuries each resulted from the infliction of force i.e. they are non-accidental injuries.

[26]The consensus of the expert evidence is that the rib fractures had been sustained between 9th and 18th November. Dr Chapman in his oral evidence said he had, subsequent to his written report, reconsidered his view of the healing state of the fractures – especially in light of the x-ray taken on 14 December and was more firmly of the view that this x-ray demonstrated nearly healed fractures. Thus he was more inclined to date the fractures as occurring no later than 16 November. He was satisfied that all of these fractures could be explained by a single application of force.

[27]The consensus of the expert medical opinion was that the subdural injuries were recent at the time of scanning and could not have been sustained at the same time as the rib fractures. Dr Chapman’s view was that taking the CT scans (which are more accurate for dating purposes) together with MRI scans the earliest date when these subdural injuries were sustained was no earlier than 23 November.

[28]All of the medical experts emphasised that in dating the subdural head injuries the presentation of the child was crucial. When was there a step change in the child? The experts were agreed that L would not have been his normal self after he had sustained the head injuries. Most obviously, for example, he would not feed normally. As Dr Cartridge observed, symptomatology trumps everything.

[29]Each of the medical experts had given anxious consideration as to whether the rib fractures and the subdural injuries could have occurred on the same occasion. They each concluded they could not and each, in their own way, cautioned the court against straining the timescales for the rib fractures and the subdural injuries. It is clear that there is a considerable gap between the window for the infliction of the rib fractures, now postulated by Dr Chapman, to whom the other medical experts defer on this issue, and the window for the infliction of the subdural injuries preferred by all three medical experts. The date of these subdural injuries is further narrowed by the totality of the evidence which demonstrates that whereas L was normal but vomited in the late evening of 23 November, he was most certainly not normal by, at the latest, the late afternoon of 24 November when the father returned to the unit. There was a step change in L’s presentation.

[30]At the time L’s rib fractures were sustained he would have been in immediate pain and would have cried, said Dr Chapman, for 10, 20 or 30 minutes but after the acute event there would be little if anything to cause concern. The perpetrator would know he or she had caused the child harm. A non-perpetrator, however, would not notice anything out of the ordinary save that the child might seem out of sorts but it would be difficult to discern that anything was wrong with the child.

[31]All three medical experts agreed that after having sustained the head injuries L would not appear normal. The change would be immediate and would represent a step change in his presentation. Mr Richards advised that L would not have appeared normal but might then deteriorate. The symptoms are key. If L fed normally, he was not injured. If he fed half heartedly and took a long time to feed, that may indicate he had sustained his head injuries.

[32]Ms. Edmonds, counsel for the father, sought to persuade the medical experts and then me that(a) the rib fractures and the head injuries could have been sustained in one event on or around 20 November; or

(b) that at least, the head injuries could have been sustained at some time between 6.55am and 4.30pm on 24 November. None of them would accept either proposition.

[33]The medical experts are eminent within their respective fields of expertise. They each approach their task as a forensic medical expert with caution, care and understatement. I have no hesitation in accepting their clear and unequivocal opinions. It follows that I am not persuaded that L’s injuries were sustained in one incident nor that his head injuries were sustained some time between 6.55am and 4.30pm on 24 November. My conclusions on these issues are fortified by the evidence I read and heard about L’s presentation on 23 and 24 November.

Evidence

[34]I heard evidence from 5 members of staff at the X unit, namely O, F, W, VT and TH, and from the father.

[35]Ms. O spoke warmly of the father’s care of L but was concerned about the extent of mobile phone contact between him and the mother which distracted him from interacting as much as he could have done with L. He appeared to give priority to his contact with mother.

[36]Ms. F told me that the father and L would be checked every 20 minutes during the day when in their bedroom. She had never before worked with a parent who had used a mobile telephone as much as this father. Before 23/24 November she had not seen anything to suggest L was unwell.

[37]Ms. W has worked at the unit for 10 years. During this time she has worked with some 220 families. She has an adult son and a young granddaughter. Ms W has never previously been accused of harming a baby.

[38]She returned to work at the unit after a few days leave at about 10am on 24 November. She described how L was sick all over Ms. VT who told that L did not look right and should be taken to the GP.

[39]Ms. W then proceeded to give me, as I find, a clear detailed and free flowing account of the visit to take L to the GP and of her attempt to feed L in the GP’s surgery after the consultation. It took a long time to feed him: he would take no more than 3oz of the 5oz bottle. When she winded him he was sleepy and floppy.

[40]She had no concerns about the father indeed she was, as she put it, ‘rooting’ for him and wanted him to succeed.

[41]Ms W was challenged about the absence of a description of L being ‘floppy’ from the GP’s notes and from her police statement. She insisted she had told the GP. She could not explain why that description was not in her police statement, but maintained that L was pale and floppy when being held by Ms VT and when she winded him at the GP surgery.

[42]I find Ms W to be an entirely credible witness and I accept her evidence.

[43]Ms VT has worked at the unit for 6 years. Most of her adult life has been spent with and looking after young children and babies. On 20 November she babysat L from 6.28am to 2pm. During most of that time he was asleep. When he woke for a feed he was fine. Fellow members of staff and other residents were in and out of the sitting room where she was caring for L and another baby which had been planned the day before.

[44]On 24 November she fed L about 10am. After taking some 1½ to 2oz of milk L projectile vomited all over her. She told me that when she picked up L to feed him it was evident that ‘something was not right’. He was a different baby to the one she had cared for on 20 November. He seemed floppy and sleepy. When prompted in cross examination she insisted L’s eyes had rolled back in the morning of 24 November.

[45]I found Ms VT to be a clear and compelling witness. I am quite satisfied she gave an accurate and truthful account of events with which she was involved concerning L.

[46]Mr TH is a qualified social worker and is employed as a support worker at the unit. As the only male member of staff, the father felt able to speak to him more freely than other members of staff.

[47]He visited the father and L in their bedroom at about 11pm on 23 November to reassure the father that he would be available throughout the night if he needed assistance or support. Mr TH was the sleepover member of staff at the unit that night. He told me that he had a reasonable night’s sleep. About 5am he heard a baby cry – not L – but did not get out of bed as no assistance was required.

[48]At about 6.55am he took over care of L and had helped the father by carrying the Moses’ basket downstairs to the office. L was asleep. He cared for L alone for about one hour until other members of staff came on duty. L opened his eyes slightly when he switched on the office light which he then immediately turned off. L was, he said, awake for just a few moments. He slept until just before Ms. VT fed him at around 10am.

[49]Like Ms. W and Ms. VT, Mr. TH was challenged about why this description of L did not appear in his police statement nor his statement for these proceedings. Mr. TH answered that he said L was not his normal self.

[50]I found Mr. TH to be a careful witness who gave his evidence clearly and quietly. He was an entirely credible witness and I accept his evidence.

[51]Mr V gave his evidence quietly and calmly. He told me he had never lived so far away from home when he moved to the residential unit. He had never cared for a baby before and was, understandably, nervous, worried and scared.

[52]He said, and I accept, that he felt a strong bond with L and enjoyed what was termed the ‘Dad’s Walk’ to settle L. L was an easy sleepy baby but he turned his day into night and slept a lot during the day. Consequently he was awake a lot during the night.

[53]Mr V said he was concerned about L after he was sick just before 11pm on 23 November. L woke twice in the night about 2.30am and then again at 5-6am (although I note he sent a text to the mother at 6.45am saying that he been out for a cigarette at 5.35am). He said it was a normal night. Mr V left L with Mr. TH when he left the unit to go to court.

[54]He told me that when he returned to the unit L woke at about 6.30pm but was drowsy and did not seem his normal self. He did not focus on light or noise as he usually did. His cry was different: more of a whimper. That night of 24th L slept through the whole night which he had never done before.

[55]Mr TH saw L only after he had been sick. He told me he was concerned about L who appeared to be floppy and his eyes rolled back ‘but not fully’. It was clear to him that L was not right.

[56]Mr V was taken by Mr. Adams, for the local authority, through the logs of mobile phone text messages which were exchanged between him and the mother. He admitted he was struggling with separation from the mother, with having to provide emotional support to her and coping with sleepless nights looking after L. He was under very considerable pressure and especially on 23 November when it was a most stressful evening and night.

[57]Whilst making all those concessions and speaking frankly about the great pressure he felt under, Mr V consistently and adamantly denied that he has ever harmed or shaken L. He maintained that someone else at the unit had done so.

[58]It is unfortunate that V was not able to recognise that the very great pressure and stress he was under put the harm caused to L in a very clear context.

Analysis

[59]The father’s case is that he did not cause L’s injuries and, therefore, someone else who had care of him at the unit must have done so. The only people who cared for L in the absence of the father at the potentially relevant times are VT on 20 November and VT, W and TH on 24 November.

[60]The case against them is solely and merely one of opportunity. There is not a shred of other evidence to implicate anyone of them as the perpetrator of one or both of L’s non-accidental injuries. All are experienced and seasoned child care professionals. All of them have considerable experience of caring for young babies and children, either in their personal lives and/or in their professional lives. There is not even the slightest suggestion that any one of them has acted inappropriately towards let alone injured a child in their care.

[61]There is no evidence that any one of them was at the material time labouring under undue stress or pressure. The evidence is, in my judgment, all the other way. They were caring professionals who sought to support the father and other residential parents caring for their children. There is clear evidence that during the day the unit was well staffed with more than sufficient staff to undertake their various respective duties and to support and assist their colleagues.

[62]The only time when L was in the sole care of a member of staff without other members of staff being in the immediate vicinity was for an hour or so on 20 November when VT cared for L from about 6.30am and on 24 November when TH cared for L from 6.55am. They say he was asleep for all or most of the time that they were alone with him. Their accounts would chime with the other accounts of L’s routine and with that of the father, namely that L was a sleepy contented baby who slept most of the day but would be awake regularly at night.

[63]I cannot construct a scenario in which it is in any way likely or plausible that either VT or TH would or could have had any reason or motive to harm L during either of those periods. In the case of VT, the medical evidence, which I have accepted, excludes on the balance of probabilities either of L’s injuries having been sustained on 20th November. In any event the possibility that either of them harmed L in the early morning of 20 November or 24 November is so negligible that it should and must in my judgment be dismissed.

[64]From 8am onwards on 20 November various members of staff and/or residents of the unit would constantly have been in the presence of VT when she was caring for L. The notion that she had the desire, motive or opportunity to harm L during this time is fanciful. I dismiss it.

[65]From 8am on 24 November L was in the care of VT and/or TH with various other members of staff and/or fellow residents of the unit constantly in the presence or vicinity of them. Once more I am of the clear view that the notion that either of them had the desire, motive or opportunity to harm L is fanciful. I dismiss it.

[66]Ms W returned to work at the unit at 10am on 24 November after 4 days leave. She arrived on the scene almost at the same time that L projectile vomited over VT. Thereafter she cared for L and took him to his GP appointment later that morning. She described how she tried to feed L at the surgery after his appointment with the GP. It was long, slow and difficult. I have no reason to doubt Ms. W’s account.

[67]Ms. Edmonds is critical of the lack of recordings in the log over this important period in the morning of 24 November. I might agree but, in my judgment, it is not relevant to the issue I have to determine namely who injured L and when. This criticism could only be material if I concluded that VT, Ms. W and TH had entered into a conspiracy to conceal a time when L had been harmed. The prospect of this being the case is so risible that I can instantly and completely reject the same. It may – I emphasise may – be a case of poor record keeping but it occurred at a time when the staff were seriously concerned with the well being of a baby and it is not germane to the issue of identifying the perpetrator of injuries to L.

[68]Once Ms. W had returned to the unit with L around 2pm, it is clear that she and L were in the presence or close vicinity of other members of staff and/or of fellow residents. The prospect that Ms. W or one of the other two members of staff harmed L then is likewise so remote a possibility as to be dismissed.

[69]Ms. VT and TH are criticised by counsel for the father for describing in their oral evidence L as being floppy or seeing his eyes roll back in his head at the time or shortly after he had projectile vomited on the morning of 24 November. Such a description does not appear in the daily log, in their respective police statements nor in their statements produced in these proceedings. I express no view on whether VT and/or Mr. TH recalled these features only at a later date or referred to the same after having undergone training on the issue of brain damage in young children – when no doubt the significance of these signs was raised. What I do take from this evidence, especially that of Mrs. VT, is that when she held and fed L at about 10am on 24 November, he was simply not the same baby that she had fed and looked after on the morning of 20 November. The essence of their evidence is that L was not his normal self: hence the visit to the GP later that morning. In light of the expert medical evidence I am not at all surprised that a doctor, unfamiliar with the child, noticed nothing of great significance. I place a considerable degree of weight on the views and opinions of those staff members who, by then, knew L very well.

[70]In marked contrast the father’s position was very different.

[71]In one sense all that is known about the father is entirely positive:(a) he comes from a good and stable home;

(b) he does not abuse alcohol, take drugs and he is not known to engage in violent behaviour;

(d) the staff at the unit were uniformly positive about his care of L and noted the obvious close bond between them; and

(e) even after L’s injuries were identified, none of the staff members called to give evidence could recall a single incident when the father’s care of L had caused any concern.

[72]The only downside was the father’s apparent priority to make and receive very frequent and extensive mobile phone calls or text messages to and from the mother. In his first month the father incurred a phone bill in excess of £2400. Even making allowance for issues about the appropriate tariff charged by his phone provider, this reveals a staggeringly high degree of usage.

[73]The father could not explain this very high degree of contact. He plainly found the separation from the mother very hard to bear as she did from him. The text messages between them, taking place at all hours of the day and night very clearly reveal three important matters:(a) the father was extremely anxious about his relationship with the mother and whether it would survive the separation (I note the father proposed marriage to the mother on the morning he left to reside at the unit with L);

(b) the father had to give a very great deal of emotional support to the mother which took its toll on his emotional and psychological well-being. He said in evidence that he found managing and comforting the mother exhausting. He added that he constantly felt he was walking on eggshells with her and did not want to argue with her.

[74]The father did not reveal his struggle with night time care to any staff members. I suspect he did not do so because of his very strong desire for the assessment to be completed and for him and L to return home as soon as possible.

[75]I was referred to comments by the father which were overheard by staff members (e.g. “I feel like ripping someone’s head off”). I do not attach any real weight to these remarks. They did not concern the staff at the unit. Rather than being evidence of a propensity to use violence, these are merely another indication of the pressure under which he was burdened.

[76]During his evidence the father readily admitted he was under great pressure and strain. The pressure was especially increased on 23 November by three matters:(a) he was told that CL, the father of K and the mother’s ex partner, sought to challenge L’s paternity by DNA testing;

(b) he was told that his father, to whom he was very close, was to be investigated for serious past allegations made against him;

[77]When asked by Mr. Adams, counsel for the local authority, whether this day had been his most stressful at the unit he replied “It was stressful. Yes.”

[78]The father says L woke twice during the night of 23/24 November but he denied shaking or harming L. I note from a text sent to the mother at 6.45am that the father left L alone in the bedroom to go outside for a cigarette at 5.35am. I am not aware of another occasion when he had done so in the early hours of the morning.

[79]Although the father and L were seen or checked by a member of staff every 20 minutes during the day, those checks did not take place during the night. I am driven to the conclusion that the only person who had any real opportunity or reason for shaking L is the father. I do not believe he intended to cause harm to his son. He was simply exhausted and overborne by a lack of sleep and the emotional pressure upon him.

Findings of Fact

[80]On the totality of the evidence I have read and heard I am satisfied, on the balance of probabilities, of the following matters and make findings of fact accordingly:(a) L sustained posterior fractures to his right 7th, 8th ribs and to his left 5th, 6th, 7th, 8th ribs;

(b) these fractures resulted from inflicted non-accidental injury;

(d) L sustained multifocal subdural haemorrhages with subdural fluid collections and spinal subdural haemorrhage;

(e) these brain injuries resulted from inflicted non-accidental injury;

(f) they were inflicted sometime between 11pm on 23 November and 6.55am on 24 November;

(g) L was subjected to two separate episodes of injury;

(h) the perpetrator of both episodes of injury to L was the father, V.

[81]The father has throughout maintained his denial that he injured L. Accordingly I do not know how or in what circumstances he came to injure L.

[82]I take account, however, of what I do know of the father from all of the evidence before me, namely:(a) he is a young man – then just 19 years of age – who had no prior experience of caring for a young baby;

(b) he is from a good family home;

(d) he was nervous about living so far away from his girlfriend – the mother – his family and his friends which he had never experienced before;

(e) all staff members at the unit spoke warmly and positively about his care of L and of his relationship with his baby son;

(f) none of them had any concerns about his care of L save for extreme numbers of phone calls and text messages made and sent to and received from the mother – it appeared he prioritised these calls and messages over devoting time to L;

(g) he was under a great deal of stress and pressure, namely (i) he struggled with coping with the sleepless nights feeding and attending to L; (ii) from time to time he feared his relationship with mother would come to an end; (iii) he had to provide emotional support to the mother on an almost daily basis; and (iv) on 23 November he was told that CL was seeking DNA testing to determine the paternity of L and his father was to be reinvestigated in respect of serious past allegation made against him. In all he was in a fragile and emotional state.

[83]In all of these circumstances I am entirely satisfied and I find that the two episodes when the father injured L resulted from a sudden momentary loss of control which, I have no doubt, was immediately and deeply regretted. Further I am entirely satisfied and find that the father did not injure L maliciously, deliberately or intentionally.

[84]What troubles me is that the father, by maintaining his denial of responsibility, sought to cast the blame for L’s injuries on three perfectly decent, honest, dedicated and caring professionals who supported and encouraged him in the care of his son. To have so acted appears to be contrary to what I know of this father but it was cowardly, and worse, callous.

[85]I cannot imagine the anguish and anxiety caused to VT, W and TH by finding themselves accused of causing L’s injuries. That is especially so for Mr. TH who bears the knowledge – but not the fault or blame – of being the member of staff sleeping over at the unit on the night or early morning when L suffered his head injuries.

[86]The allegation against each of the care workers was of the most serious for them both personally and professionally.

[87]I am satisfied that it is insufficient in respect of these three members of staff that I stop at having made findings that the father inflicted L’s injuries. I must and should go further and exonerate each of the three of them. Accordingly, I find that neither VT, W nor TH inflicted or were in any way responsible for the identified non-accidental injuries sustained by L in November 2015.

[88]For the avoidance of any doubt, my foregoing observations do not reflect adversely nor are they intended, in any way, to be a criticism of counsel for the father, Ms. Edmonds. On the contrary, she, if I may say so, conducted his case with consummate skill, restraint and understanding.

[89]One of the grounds relied upon by the local authority in satisfaction of the threshold criteria in respect of L is the finding made by HHJ Perry in respect of K that “there is a real possibility that [the mother] or [CL] inflicted the injuries on K but I cannot say on the balance of probabilities which did so.”

[90]I agree and so find.

[91]I trust the father will reflect very carefully upon this judgment and upon my findings for the future welfare best interests of L.

[92]I am extremely grateful to all counsel for their assistance in this matter and for their comprehensive and helpful written submissions.

Welfare

[93]I adjourned this matter on 1st of November to give the father, V, a further opportunity to reflect upon the findings of fact that I made against him, namely that he was responsible for causing injuries to L on two occasions when in the residential unit.

[94]I have no doubt that the father has reflected long and hard, but it deeply saddens me to learn today from counsel for the father that he has not changed his position. Whilst he respects the judgment of the court and does not challenge the findings made by the court, he does not accept that he caused injury to his son on two occasions.

[95]In those circumstances the father, with a very heavy heart and no doubt after much painful thought, recognises that there is only one course open to the court, which is to approve L's placement for adoption. In those circumstances he neither consents nor opposes the local authority's applications for a care order or a placement order.

[96]The mother, given the adverse findings made by His Honour Judge Perry against her in relation to K, similarly acknowledges and accepts that there is only one option available to the court and in those circumstances she does not consent, nor does she oppose, the local authority's applications for a care order and a placement order.

[97]I had very much hoped that a different outcome could be achieved in this case, but given the findings of His Honour Judge Perry against the mother in relation to K and my findings in relation to V in relation to L, which he does not accept, it is with great sadness that I conclude that it simply would not be possible to rehabilitate L to the care of either his mother and/or his father because the risk of harm would be significant, particularly where the circumstances which led in the mother's case, to K being injured and in the father's case, to L being injured, are simply not known to the court, to the local authority or to the Children's Guardian.

[98]In those circumstances it is, sadly, impossible to quantify the risk, save to acknowledge that there is a serious risk of further harm to L in the future if he were cared for by his mother and/or his father.

[99]In those circumstances the only course which would meet the welfare best interests of L is for him to be placed for adoption. In considering this matter I of course have regard to s.1(2) of the Adoption and Children Act 2002 that the court's paramount consideration is the welfare best interests of L throughout the whole of his life. I have regard to s.1(4) of the 2002 Act, the welfare checklist.

[100]At all times I have regard to the Article 6 and Article 8 rights of L and the mother and the father, but bear in mind that where there is a tension between the Article 8 rights of L on the one hand and of a parent on the other, the rights of the child prevail: Yousef v. Netherlands [2003] 1 F.L.R. 210.

[101]I have regard to the provisions of s.52 of the 2002 Act. I may only dispense with the consent of the parents where I am satisfied that the welfare of the child requires the court to do so. Once again, very sadly, I am entirely satisfied that it is overwhelmingly and manifestly in the welfare best interests of L, in these very sad circumstances, that this court should do so.

[102]Accordingly, the court dispenses with the consent of both his mother and his father and makes a care order in respect of L and a placement order in respect of L.

[103]I note that, happily for L, he was matched with prospective adopters on 3rd of November. This match has yet to be approved by the agency decision-maker. I shall say no more about the timing of that consideration by the agency decision-maker.