Hampshire County Council v O [2016] EW Misc B22 (CC) (29 July 2016) [2016] EW Misc B22 (CC)

EWMISC

Hampshire County Council v O [2016] EW Misc B22 (CC) (29 July 2016)

[2016] EW Misc B22 (CC) · 2016-07-29

[1]HIS HONOUR JUDGE LEVEY: I am concerned with E, who was born in October 2015. On two occasions E was found to have bruising on one or both of her cheeks in circumstances which caused medical professionals concern as to whether or not the bruising had been inflicted upon her. The purpose of this hearing is to decide if possible the cause of that bruising. The application is brought by Hampshire County Council represented yesterday and the day before by Miss Iten of Counsel, today by Miss Pearce. E's mother is A, represented by Miss De Freitas. Her father is, J, and is represented by Mr. Chollerton. E appears through her Children's Guardian, yesterday by her Solicitor, Mr. Tooley, and today by Miss Tidman.

[2]I heard evidence from Dr. Rylance, Consultant Paediatrician, who has provided an overview of the medical evidence in this case. I have also heard from both parents. As I am concerned only with the fact finding I have not heard any social work evidence or from E's Children's Guardian, Miss George. A bundle has been prepared from which I have read the necessary documents.

[3]The findings sought by the Local Authority are set out in their threshold document in the form of a Scott Schedule dated 26 th July 2016. They are as follows:• on or about the 4 th November 2014 E suffered bruising to both of her cheeks. The response of the mother to that is that this is accepted subject to qualification. The father accepts the bruising but does not accept that the bruising was caused purposefully and says that it was caused accidentally.

• that the bruising noted in one above was caused non-accidentally by the application of force significantly in excess of normal handling for the age E was at the time and the bruising noted in one above was caused by either one of her parents. The mother accepts that she believes that she caused this by winding E. The father does not accept this allegation although he says the bruising was accidental. I infer from that that he in fact accepts that there was bruising caused by either one of the parents, as does the mother.

• During the period, 19 th to the 24 th February 2016, E suffered a bruise to her left cheek. The mother accepts this. The father accepts that there was a bruise but believes that it was caused as a result of E sleeping and lying on her dummy. He does not accept that it was caused purposefully.

• the bruising noted above was caused non-accidentally by the application of significantly in excess of normal handling at the age that E was at the time. Both parents deny this.

• the bruising noted in paragraph four above was caused by either one of the parents. This allegation is denied by the mother who says that she did not cause the bruise to E's face although she says that on the 19 th February she checked on E and noticed that she appeared to be sleeping on her dummy. She therefore removed it and put it at the end of the bed. She states that she then went to University at about 10:45 in the morning when father was giving her a feed. She says that she did not notice any marks on E's face. She states that around 1:30 p.m. she received a message from father to say that he had put E down for a nap, woken her up and noticed a mark on her face which he thought had come from the dummy. This allegation is not accepted by father.

• E has suffered emotional harm due to the parenting that she has received which has resulted in her suffering bruises on more than one occasion, whether this be through an accidental or non-accidental means. This is not accepted by either parent. The father goes on in his response to say that she has not suffered emotional harm as a result of parenting, nor that there are concerns in respect of the day-to-day parenting skills or ability of the parents. He suggests that there are reasonable and plausible explanations for the bruise.

• E has suffered from neglectful parenting which was not to a good enough standard and which has resulted in her suffering from bruises as a result. This is denied by the mother who said there was an innocent explanation for the bruising in November of last year and that since then the mother has taken and acted upon professional advice. The father does not accept the allegation. He does not accept that either parent has been neglectful and that the mother immediately sought advice he says in respect of alternative ways of winding E after feeding.

• the parents failed to seek appropriate medical advice in a timely fashion in respect of the bruising. This is accepted by the mother, although she does state that advice was sought from father's own mother. The father does not accept this allegation in his response at any rate. He too states that he discussed this with his mother who advised him not to worry about the mark. He says that he trusted that advice. He also makes the point that he continued to attend professional appointments.

• there is a significant risk that E may suffer further injuries in her parents' care given the bruising that she has suffered to date and that she was only 19 weeks old at the time of the second bruise. This is denied by the mother and not accepted by the father. He states that he does not accept that the injuries were caused intentionally, nor that he has been neglectful in his parenting. He states that there are no other concerns with regard to the parenting skills of the parents who he says have always worked openly and honestly with all professionals.

[4]At the hearing the position of the Local Authority remained that they sought findings as set out in the table above. They are supported in this by the Children's Guardian. They are opposed by the parents who maintain that they have given a reasonable explanation for the injuries.

[5]Before going on to deal with the history of the matter and the law I refer to comments that I made yesterday during submissions about the standard of the written evidence which was put into evidence by the parents. I did say then, and I repeat now, that it is not their responsibility to produce documents which set out in exhaustive detail their case, but it is the responsibility of those who advise them, and prepare the statements, to ensure that their case is adequately set out and that it reflects the instructions that they have given. It is the role of a solicitor in these circumstances, not only to take down what they are told by their clients, but also to ask questions about it, and challenge it, so as to ensure that the statements reflect what their client actually says.

[6]The context of this is that both parents' written evidence where they attempt to deal with the allegations are woefully inadequate and the evidence that they gave at the hearing was significantly more detailed than that which is contained in the written evidence. This has contributed to the length of the hearing, but also it has meant that both parents were subject to longer cross-examination than otherwise they might because matters emerged in their evidence which no one, apart I assume from the parents, had known about prior to the start of the hearing.

[7]There were some aspects of the matter which really ought to have been able to be put to the medical expert, Dr. Rylance, but because no one knew about them, they were not. That is unfortunate.

[8]I did say twice yesterday that I do not regard this as an issue which makes any difference to the evidence which the parents have given, which is clear, and which I have taken into account, but it is a matter which those who represent the parents really need to be alive to and ensure that their statements are as detailed as possible.

[9]I turn then to the law. In respect of this I was referred to the Judgment of Baker J in the case of Devon County Council vIB & E B

[2014] EWHC 369

. I can do no more than read extracts from what he says in paragraphs starting at paragraph 81:

"81. The law to be applied in care proceedings concerning allegations of child abuse is well-established. 82. The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them and to that extent the fact-finding component of care proceedings remains essentially adversarial. 83. Secondly, as conclusively established by the House of Lords in Re B [2008] UKHL 35 , the standard of proof is the balance of probabilities. If the local authority proves on the balance of probabilities that the injuries sustained by" – the children in that case –"were inflicted non-accidentally by one or her parents, this court will treat that fact as established and all future decisions concerning the children's future will be based on that finding. Equally, if the local authority fails to prove that the injuries sustained by" the children "were inflicted non-accidentally by one of her parents, this court will disregard the allegation completely. 84. In this case, I have also had in mind that, in assessing whether or not a fact is proved to have been more probable than not, 'Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities,' (per Lord Hoffman in Re B at paragraph 15). 85. Third, findings of fact in these cases must be based on evidence. The court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence. 86. Fourth, when considering cases of suspected child abuse, the court 'invariably surveys a wide canvas' per Dame Elizabeth Butler-Sloss" then the President "in Re U, Re B [2004] EWCA Vic 567, and must take into account all of the evidence….and furthermore consider each piece of evidence in the context of all of the other evidence." 87. Fifth, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council vKD & L ...Charles J observed, 'It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision'."

[10]Sixth is not particularly relevant because it relates to a multi-disciplinary approach to the evidence."89. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them.

90. Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

91. Ninth, as observed by Dame Elizabeth Butler-Sloss in Re U and Re B " – to which I have already referred – 'The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark'. 93. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator…in order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so."

[11]So I turn then to the history of this matter. E was born on the 13 th October 2015. Her parents, as I have already indicated, are A who is now 22 years old. Her father is J, who is aged 24. Prior to November 2015 there had been no involvement with this family by a local authority and there had been as I understand it, and indeed has been since, good co-operation by the parents with medical professionals and other professionals. Their co-operation following November 2015 has not been the subject of any criticism.

[12]What happened was that on the 4 th November 2015 the health visitor carried out a routine visit to see E and she noticed that E had bruising on both cheeks. On her right cheek, the middle of her cheek, was a bruise heading down towards her jaw line, yellowish in colour. On the left cheek was a smaller bruise, approximately 1 centimetre blue and pink, located in the middle of her cheek. The mother asked the health visitor if there were other ways of winding and told the health visitor that she believed that holding E by the chin during winding was causing the bruising. The health visitor made an appropriate referral to Children's Services who started a section 47 investigation.

[13]E was admitted to hospital and discharged on the 6 th November 2015 to live with the parents. It was a requirement of the Local Authority that they stay with the maternal grandparents who were to supervise the involvement of the mother and father with E.

[14]There is in the bundle dated the 6 th November 2015 a letter from Dr. Struthers who was the paediatrician who saw E. He noted that the parents said that the bruises had been seen five or six days ago. They had not sought help at the time. He said that the parents had said that following the advice about how to wind their baby they had been holding the baby with one hand, and supporting the head and face, and they wondered whether this might have caused the bruising. They had no other explanation.

[15]The consulting doctor, Dr. Priseman, had the impression that this was unexplained facial bruising and therefore decided that there needed to be an admission to hospital and scans.

[16]Dr. Struthers saw the parents on the ward. They gave him the same explanation and apparently they told him also that one of the grandparents had stayed the night of the 1 st November, but both parents said that this was after they had first noticed the bruise.

[17]An examination was carried out. E was found to be well. There were no other concerns. The results of the scans and tests that were undertaken appeared to be normal or clinically insignificant. There was no concern at the hospital about the parents' interaction with E or their care of her.

[18]There was a case conference on the morning of the 6 th November and the general view was that the bruising was significant. Dr. Struthers said that the facial injuries increased the risk of the injury being non-accidental, although he acknowledged the possibility that it might have been accidental. All appeared to agree that there was little background risk. I assume that was with regard to the history. It was also agreed that there needed to be further support and supervision in assessment of the family which explains the discharge of the family into the care of the maternal grandparents.

[19]So as a result there followed a period of time when the family were subject to careful and very close monitoring by the Local Authority and other professionals.

[20]There was a visit by the Police on the 23 rd November when the officer observed the father feeding and noted subsequently that he considered that father had not been sufficiently gentle in his feeding of E.

[21]There was a further case conference on the 26 th November when, notwithstanding any concerns that were raised, it was agreed that E would return home. There would be daily visiting from the Local Authority in order to ensure that the placement at home was safe.

[22]During January the Local Authority was informed by the parents that E had hip dysplasia and required a brace.

[23]Regular visits continued but over the next few weeks the Local Authority involvement scaled down. The parents were co-operative and there appeared to be no reason the Local Authority felt that the high risk involvement to continue.

[24]As a result, on the 18 th February the child was removed from the Child Protection Plan. On the evidence of the parents it was the following day, 19 th February that E was noted to have the further bruise on her left cheek, although they said in evidence that they did not feel it was a bruise at the time.

[25]The matter did not come to the attention of the professionals however until a referral was received from Salisbury Hospital to which E had been taken by the paternal grandmother for an appointment in relation to her hip. What was noted by professionals there was that E appeared to have a bruise on her left cheek, a semi-circular linear bruise. Again the concerns revived. E was admitted to hospital and the parents explained that they believed that the bruise had been caused by E sleeping on her dummy.

[26]However, a further section 47 investigation was started. Dr. Rodd, the paediatrician dealing with E felt that although the shape was consistent with the dummy, force would be required in order to cause E to have bruised. As she was then a child who was not mobile concern was raised as to the provenance of the bruising which was felt not to be explained by the mere fact of her sleeping on the dummy, as put forward by the parents.

[27]Turning then to the evidence. I start with the medical evidence which is contained in the report of Dr. Rylance which is dated 15 th July 2016. He provides in his report a helpful overview of the nature of the bruising and the timescales of the bruising. In paragraph 43 he explains that:

"Most bruises begin as red marks. Not all red marks resulting from trauma to the skin become bruises. Some red marks clear without going through bruise stages. It is likely that these red marks are not caused by bleeding into the skin which are due to a significant increase in blood supply to a localised area of traumatised skin which is sustained for some time. When a bruise develops from a red mark the darker colour change and failure to blanch under sustained pressure, which is characteristic of a bruise, will take place in almost all developing bruises by 12 hours and in the great majority by a four hours. A bruise is differentiated from other similar marks by the fact that it does not bruise under pressure."

[28]In paragraph 47 he notes the possibility of underlying coagulation defects being the cause for spontaneous bruising and says:

"It is extremely unlikely to be as a result of an underlying coagulation defect if basic coagulation tests have excluded the more common of the inherited coagulation disorders."

[29]He sets out in his report the tests that were undertaken which do not disclose any underlying condition.

[30]The force to cause bruises is dealt with in paragraph 50 of his report and he says that:

"The force required varies according to site, the tissue underlying the skin and its proximity to it and the extent of blood supply to the area. Some impacts can be quite strong without there being resultant bruising."

I should perhaps say at this point that Dr. Rylance's use of the word "impact" is not quite the same as that which the general public might imagine it to be. His use of the word "impact" refers to contact with the skin and so impact does not necessarily imply that there is a significant force attached to the impact. He goes on to say:

"Paediatric experience demonstrates that bruising does not occur in normal handling or what is sometimes referred to as rough handling in infancy and generally pre-mobile children."

He concludes this paragraph by saying:

"The force required to cause this bruising is significantly in excess of normal handling at this age."

The timeframe for bruising he says is:

"The most useful indicator of bruise age is from independent reporting of the time when the bruising was first seen provided that the reporter is involved with the child's care continuously. The impact causing the bruise will have occurred in the previous 24 hours and most likely within the previous four hours."

He says in relation to E:

"The specific timing from non-independent witnesses is that bruising was first seen on or about the 31 st October, making them at least four days old when E was seen on the 4 th November. The parents said they thought they had been present for six days."

[31]On the 24 th February 2016 he notes:

"The bruise on the left cheek was stated by the parents to have been first seen on the 19 th February."

So five days earlier.

[32]He talks about the aging of bruises in paragraph 55 explaining that bruises undergo colour change from red, through purple, blue, brown, green, yellow before resolution although he notes that the aging of bruising is an inexact science and that the rate of change for any one bruise can be significantly different from another. However, he notes that bruising, which is predominantly yellow and green in colour, is uncommon within the first 48 hours.

[33]He therefore says that when on the 4 th November, the colour of the bruising on E's cheeks was noted by Dr. Priseman to be yellow and green, that causes him to be satisfied that the age of the bruises was older than 48 hours on the 4 th November at 6 o'clock.

[34]On the 24 th February, when the bruising was observed to be purple/blue by Dr. Rodd, he said that it is more likely than not that the bruising was not more than 72 hours on the 24 th February at 17:40 hours.

[35]With regard to the force required at paragraph 58.1, in relation to the bruise noted on the 4 th November he says with regard to the parents' explanation that this may have been caused by winding:

"Unless the pressure exerted by fingers in this situation was unreasonable the bruising would not result from such actions. It" meaning the explanation "is not plausible."

[36]In oral evidence he agreed that the positioning of the bruising was consistent with the bruising occurring during winding, but made the point that thousands of babies are winded in this way and this does not result in bruising. He reiterated that the issue was less the mechanism than the force which is applied which caused the bruising.

[37]With regard to the explanation given by the parents at that stage at least of the dummy causing bruising on the 24 th February he says this at paragraph 59.1:

"Although the shape may be consistent with the dummy size and contour, and Dr. Rodd may have checked this similarity, it is extremely unlikely that lying on a dummy in the described way would lead to bruising. I have never known bruising to occur in this way, but thousands of babies will have laid on a dummy as described. This may be the exception to prove the rule. It is important to recognise that dummies do cause injuries to babies but in circumstances of them being forced against the face or into the mouth by an adult."

So he accepted in other evidence that the shape may well have been consistent with the shape of a dummy, but he was very clear in his evidence that bruising would not be caused by E lying on the dummy. He made clear that the issue was the application of unreasonable force rather than the simple fact of lying on the dummy.

[38]He accepted that lying on a dummy, or indeed any object, might cause a mark by sustained pressure, but again was clear that this would not result in a bruise.

[39]He was asked questions by Miss De Freitas about a mark sustained by E which was seen in June of this year and he comments in his report that the shape of that abrasion suggests that she came into contact with a particular object, remarking upon the straight sides of the mark. He suggests in his report that this may have been caused by E falling over.

[40]The parents pointed out in cross-examination that at that time, if not now, E was not sitting up as a result of her requirement to wear a hip brace. Dr. Rylance's view was still that at the age that she was at the beginning of June she was unable to move her head with sufficient force to cause the abrasion even if she was not able to either sit up or turn herself over. I am bound to say that this is exactly the sort of question that one might have expected should have been put to Dr. Rylance in written form before the hearing in order that he might have properly been able to consider it.

[41]His evidence as to the likely cause was simply that it was his view that she could not cause the bruising herself and that the explanations given by the parents were not plausible because they did not deal with the force necessary to cause the bruising to her.

[42]He was questioned about possible medical or congenital explanations for the bruising on the basis that such conditions may be likely to predispose E to bruising easily. In particular he was asked about Ehlers-Danlos Syndrome which he both explains in his report and in his oral evidence is a condition more likely to indicate a disposition to bruising easily. He said in evidence that he had seen children with Ehlers-Danlos Syndrome but said that E does not have any features of it. He said that this is a condition of the skin where the skin is particularly thin and involves scaring. He was clear that in his experience this is not a condition which E has. When it was suggested that this may be attributable to the mother he said that if she had Ehlers-Danlos Syndrome it would be obvious.

[43]Despite careful and thorough cross-examination from both Mr. Chollerton, and Miss De Freitas, on behalf of the parents, his view remained that significant and unreasonable force would be necessary in order to cause bruising to E and that the explanations given by the parents were not sufficient to explain those injuries. It is therefore necessary to consider his evidence in the context of and against the evidence given by the parents and the explanations given by them.

[44]I heard evidence from both parents. As I say it is important to consider what each of them have said, both in the context of the injuries, and in the context of what the other says. It is fair to say that neither of them, if I have understood their evidence correctly, were actually able to say what they believed caused the bruising with any certainty.

[45]Turning first of all to the bruise that was seen in November by the health visitor. It was explained by mother that she believed that the bruising may have been caused by her winding technique. She said that she was not particularly concerned when she saw the bruising because she thought at that stage at least that babies bruise easily and she and the father were following the method of winding that was shown to them at the hospital. However, E had not bruised prior to that occasion.

[46]She said that a lot of the feeding had been undertaken at about this time by father who had shouldered a significant amount of the burden of looking after E. She said that she had not at that time, at the end of October, fed E for two days before the bruising was seen. That is a feature of the evidence that I will come back to shortly when I come to look at the evidence given by the father.

[47]She did say that there was an episode which she believed may have been significant. She was extremely tired, feeding E at night, started to fall asleep while doing so and jerked awake. She wondered whether this was a possible cause for the bruising? First of all, this was not put to Dr. Rylance, either in writing, or in cross-examination, and it does not appear in the mother's witness statement, although it was referred to in her interview with the police. So it is plainly something that she had considered prior to the start of the hearing. It was one of the factors that caused me to make the comments that I made earlier about the witness statements being complete.

[48]However, she said that she did not feed E for two days prior to the bruising being seen. So it seems clear on that basis that whatever happened in this incident it does not appear to have caused the bruising.

[49]She was asked questions about the comments made by PC Edwards describing father's method of feeding as "over enthusiastic" which she did not accept. I did note in relation to that, that comments had also been made independently by her mother, the maternal grandmother, in her witness statement, who commented that father appeared to be not as gentle as he might have been. Of course whilst father was being cross-examined he too accepted that this might have some force to it.

[50]In relation to the February bruise mother explained that she had got up in the night and had found E apparently sleeping on the dummy which she had moved to the foot of E's bed. She did not see at that stage, because it was night time, whether there was any mark or not on E's cheek and E did not wake up.

[51]The next morning she got up, she left for University at about 10:45 in the morning, and she said when she left father was feeding E and she said that E did not have a mark when she said goodbye to her. She was clear that she had seen E and that E did not have a mark. So the first that she knew of E having a mark on her left cheek was when she said father rang her in panic asking if she knew anything about it. Of course her answer was that she had found E sleeping on her dummy the night before. She wondered whether that was the cause. So that in very broad terms was the evidence given by mother.

[52]In contrast to her evidence, which I am bound to say was reasonably clear in terms of what she said to the Court, the evidence given by father was rather less satisfactory. He did seem to be reasonably keen in fact to discredit mother when he gave his evidence. He emphasised the postnatal depression. He said that she had been in a "bad place" as he put it. He suggested that she was in such a state that she could not remember what had happened particularly clearly and certainly not as well as him. In fact he made a point of emphasising early on in his evidence that he had a clear recollection of what had happened. As I say in fact she proved to be a better witness than he did. She was more clear. The father spent a great deal of his time speculating but it became apparent when pressed that there were lots of aspects of the evidence that he simply appeared not to be able to remember.

[53]In relation to the first bruise, whereas mother said that she had not fed E for two days prior to the bruise being noted, he said that both had night fed E. He said that he had noticed the bruising when he got E up that morning, which was at the end of October 2015. He said that mother had not seen them, but he said it was obvious that they were bruises. He was asked about his own state and said that he had been under stress in January. He had had to take some time off work as a result. That was so even though by January the Local Authority concern and involvement was starting to become less intrusive rather than more.

[54]He then dealt with the February bruising. He explained that he had slept through the night. He had not been aware of mother getting up to look at E. He said that when E woke up he fed her, keeping the room dark in order that she did not wake up completely. He changed her he said in the dark, which caused a raised eyebrow certainly from the Bench, and eventually E was dressed at 1:30 in order to be taken to meet mother. It was at that point that he noticed the mark on her cheek.

[55]This of course contrasts with the evidence given by mother who said that E was got up earlier. In her written statement indeed she deals with this. She said:

"The morning routine went on as usual and E got up as normal. I left to go to University at about 10:45 and J was giving E a feed. I did not notice any marks on E's face. I was in town at around 1:30 p.m. and received a text from J saying that he had put E down for a nap and had woken her up and noticed a mark on her face which appeared to be semi-circular and he thought it came from E's dummy."

So that is quite different from the evidence given by father because his evidence was not that he put E down for a nap, but rather that he was careful to make sure that she went back to sleep and that she did not get up until about 1:30 in the afternoon.

[56]What does seem to be clear though is that mother in her evidence is clear that when she left she saw E and there was not a mark on E's cheek. So it does appear from that, if her evidence is correct of course, that there was no mark at that time and on Dr. Rylance's evidence if a bruise was forming then the bruise, or at least a mark, would be likely to be apparent at that time.

[57]Once father had seen the bruise and had spoken to mother he rang his mother for advice. She said that she did not regard it as serious, but of course she did not see the bruise, and was not in a position to make any useful comment about it. I do not criticise her for that because she was entirely reliant on the information that she was given.

[58]It is apparent from looking at the two accounts of what happened that there are significant areas of dispute between the parents. So in November, if the mother had not fed E for two days prior to the bruising being seen, the father was then saying that she fed E at night. In February the mother's account, which I have just set out, against the father's account, which is again quite different. It does seem to be a feature of both accounts that although there does not appear to be any direct evidence that responsibility falls on the mother in particular, she seemd to be quite anxious to take the responsibility for the injuries. Father in turn also appeared to be quite anxious to ensure that she does so.

[59]The difficulty that I have is that both accounts are so different; neither supports the other, and if I look at the detail of the explanations given neither give any explanation for the bruising and do not support the accounts which have been given by the parents over the period of time. The cross-examination of the parents certainly has made it clear that there is no reason to suppose that there were any significant events in relation to winding that caused the bruising. As I have just said, the February incident too, the most recent evidence given by the mother of seeing E when she left for University suggests that there was no mark at that time. That makes analysing the evidence extremely difficult. It is not possible to say why there is that disparity. It may simply be a difference in recollection. Recollection is often about perception rather than anything else. It is surprising that father had such difficulty remembering the 19 th February. He appeared to have very little recollection in fact of what had happened. It was suggested on his behalf, and indeed by him, that it was not a significant day at the time. Of course that is right. It became a significant day within a very short period of time. It is difficult to see why he has so little memory of it now.

[60]The medical evidence of the existence of the bruising of course, and the evidence of the parents, and other professionals, is absolutely clear. So it is accepted but also clear from the evidence of Dr. Rylance that there was bruising.

[61]E's age at the time of both incidents of bruising was such that she was not mobile at that time and I therefore accept Dr. Rylance's evidence that she was not able to cause the bruising herself.

[62]So I am satisfied therefore on the balance of probabilities first, that there was bruising. Second, in relation to the force required I accept the evidence given by Dr. Rylance that significant force is needed for the bruise to be caused. I also accept his evidence that there are no other medical explanations. It was suggested in closing submissions on behalf of the mother that there were areas of his expertise that were deficient; that he was speculating; and it may be that other investigations might be necessary. As I have commented that really goes to the question of whether or not the burden of proof is crossed, but in any event Dr. Rylance dealt with the questions that were put to him. It certainly was clear from his evidence that he had considered the matters that were put to him. His evidence was very clear that there were no underlying medical conditions or explanations for the bruising.

[63]As I have already said, the explanations which have been given by the parents on closer analysis have turned out not to be explanations at all. The assumption by the mother that it was caused by winding is described as not being plausible by Dr. Rylance. In any event, her evidence was that she had not fed E for two days prior to the bruising being seen. Plainly again on Dr. Rylance's evidence had she done so, and caused the bruising, then the bruising would have been apparent within that time. That does not explain the bruising and it does not appear from that, if that is right of course, that she is responsible for it.

[64]The difficulty is again that there are conflicting accounts from both parents. Father certainly says in his evidence that she fed E the night before. So taking those two accounts it is simply impossible to say which of them, if either of them, is likely to be correct.

[65]The same applies in relation to the bruising seen in February. It was not seen by the father until the early afternoon. The mother saw E but did not see the mark in the middle of the morning. I am simply unable to determine which account, if either of them, is more likely to be correct. So the Local Authority have in my view proved the allegations that they seek to rely upon. They have proved it both on the basis of the evidence of Dr. Rylance, but also taking account of the conflicting accounts given by the parents and to the extent that it is necessary then to consider those accounts in the context of Dr. Rylance's view of the need for unreasonable force to cause the bruising it is clear to me that neither parent has given an explanation as to how the bruising could have been caused. In those circumstances I find that the Local Authority have proved the matters which are set out on the schedule.

[66]I am not able, without straining to do so, to find that either of the parents is more likely to have caused the injury than the other. The bruising is not explained and so my finding is that the bruises were inflicted by an unidentified mechanism.

[67]I have considered however the history, the parents' co-operation with the Local Authority, the lack of professional involvement in this family, and there is in this case no evidence that the bruising was deliberately inflicted, but as Miss Iten said in her submissions the fact that the bruising occurred non-accidentally involves a range of possibilities and I am simply unable to determine where the bruising lies within that range. As I say, there is no evidence that they were deliberately inflicted.

[68]That deals with all the findings I am asked to make. I am just looking at the Scott Schedule. I do not think there are any findings that I do not find proved.

[69]I think as far as delay in obtaining medical advice is concerned, certainly father accepted in his evidence that there was delay. The mother accepts it on the Scott Schedule. Plainly there was delay. The steps that were taken in relation to the February bruising were inadequate given that the child protection period came to an end the day before and so the parents knew that there would be significant concern if it was found that E had suffered a bruise. They knew by then, if they had not known before, that bruising on a child of this age was significant and that medical advice was necessary. Even if, as mother said, they did not think that this was a bruise at first, once after let us say a day it had not gone away then in my view it should have been clear to them that stage medical advice would be necessary.

[70]In relation to numbers eight and ten, the neglectful parenting which is alleged is based upon the existence of the bruising. In other words, E suffered from bruising which is not explained, or adequately explained, by either of the parents. That follows from the findings that I have made. Therefore, almost by definition neglectful parenting is made out where a child of three weeks, and then eighteen or nineteen weeks, sustains bruising in circumstances where the parents are not able to offer an adequate explanation for it. That makes out number eight.

[71]Number ten, it again follows that if there had been two incidents of bruising whilst E was immobile at the age of 18 or 19 weeks then again it follows that there must be in my view, and indeed there is, a significant risk of further injuries in her parents' care. I am bound to say that is a finding which may well be ameliorated in time by the steps taken by the parents in terms of understanding any deficits in their parenting and taking steps, as I think mother said she already had, to follow advice and to improve it. That is the finding sought. It is plainly made out as at that point. Whether that remains the position of course is a matter for another day.

[72]Emotional harm arises from the fact that she has been bruised in circumstances where she should not and will have suffered pain as a result. I put it no more strongly than that.

[73]That concludes my Judgment. AVTS REF: H5216/6373