Bournemouth Borough Council v A Mother & Ors [2017] EWFC 18 (28 February 2017)

IMPORTANT NOTICE

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 no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

MR JUSTICE BAKER :

1. On 8^th April 2016, an ambulance was called to the home of a Polish family living in the South of England. The paramedics found a 14-week-old baby in a state of collapse. He was taken to hospital and then transferred to another hospital, but despite the strenuous efforts of medical staff he died a few hours later.

2. Examination and tests revealed that the baby, hereafter referred to as “J”, had sustained a number of injuries prior to his collapse. As a result his three older siblings were taken into the care of the local authority. Care proceedings were started and transferred to this court. In January and February 2017, I conducted a fact-finding into the cause of J’s injuries and death and other matters concerning the treatment of his siblings at home. This judgment is delivered at the conclusion of that hearing.

Background

3. The mother and father come from Poland. They have known each other since they were children – in his oral evidence, the father described the mother as his childhood sweetheart. They moved to this country in 2006 and were married two years later. At some point after they were married, the father sustained a back injury which left him in regular pain, interfered with his work and sleeping, and, as he acknowledged in evidence, affected his mood. In January 2009, the mother gave birth to their first child, a boy, hereafter referred to as A. In September 2009, the mother’s brother, hereafter referred to as “the uncle”, moved from Poland to this country and thereafter lived with his sister and her husband and family.

4. Two years later, in March 2011, the mother gave birth to a daughter, hereafter referred to as B. When she was 9 days old, B was taken to hospital where she was found sustained metaphyseal fractures of the left distal tibia and fibula. The parents were initially unclear about how she had sustained the injury but subsequently a history was given to the doctors of how the mother had fed B in the night, and gone to the bathroom and the father explained that he had woken to find the baby underneath him. The hospital doctors accepted that the account given was consistent with B’s injuries and no further action was taken.

5. In March 2014 the mother gave birth to her third child, another boy, hereafter referred to as C. By this point, as all parties accept, the father had started having angry outbursts during which he would shout at the mother and the children. The extent of this is disputed and I shall consider the evidence about it below. The mother began recording incidents in which the father had been aggressive in a diary. In December 2014, for example, she wrote (in Polish – an English translation has been prepared) “our life is falling apart. Yesterday I did the worst thing in my life! I hit my husband in the face. This is the end! He fucking chucked me out of the room and demanded divorce papers and he was serious. I don’t think I feel anything any more !!!” In March 2015, she recorded “Christmas/Easter can’t be normal. My husband is showing yet again how much it matters to him to fucking destroy the family. He can’t control his fury. Yet again a row front of the children !! A chair fucking smashed up in the kitchen as result of anger. I can’t control it all. I ran out of strength for this sort of life.”

6. In April 2015, the father went to hospital having allegedly taken an overdose. He claimed to have taken nine amoxicillin capsules. He told medical staff that he had been feeling low after having multiple teeth extractions. The family was referred to social services and offered support from an early help team. In July 2015, however, the case was closed because the family was not engaging with social services. It seems, however, that difficulties in the household continued. In September 2015, the mother made an entry in her diary in these terms: “Constant argument. CARNAGE !!!”

7. On 31 December 2015, the mother gave birth to her fourth child, J. Thereafter, J was seen regularly by midwives, health visitors and doctors. All medical appointments were kept. Nothing unusual was noted and J was felt to be thriving and putting on weight. He was seen by a midwife on 5 dates between the 5^th and 13^th January and by a health visitor on 14^th and 19^th January and 11^th February. On 22^nd February he was seen by a GP and diagnosed with an upper respiratory tract infection. On 7^th March, he was seen by another GP for a health check which was satisfactory and immunisations were given. On 3^rd April, the mother’s friend KS visited. She bathed J and noticed nothing wrong. On the same day, the mother made an entry in her diary: “unnecessary anger, shouting”. Further immunisations were given by a nurse on 6 April.

8. On the morning of 8^th April, according to the mother, J was well. There was a family trip to the shops. When they returned, the father went to rest in the bedroom. The uncle was preparing lunch for the children. At around 2 pm the mother went out to buy potatoes. Before doing so, she fed the baby and placed him in his cot in the bedroom where the father was resting. She told the father she was going out leaving the baby with him and he raised his hand in acknowledgement.

9. According to the father, he then woke up to find J making choking noises from his cot. It is the father’s case that he scooped the baby out of the cot and blew into his mouth. The uncle’s evidence is that he heard the father shouting (in Polish) “fuck, call the ambulance right now”. The uncle came out of the living room into the hall where he saw the father holding J. The father then placed the baby on the floor. I will consider the evidence about how he did this below.

10. At 15.20, a call was made to the ambulance service by the uncle. In the background, the father was shouting in a highly agitated fashion about the time it was taking the ambulance to arrive. The uncle, on the other hand, was notably calm throughout the call and tried to focus on instructions from the control operator. The ambulance arrived at about 15.27. The paramedics found J with no pulse and not breathing. Attempts were made to resuscitate him. It was noted that he had a boggy area on the back of his head. He was taken by ambulance to the Royal Bournemouth Hospital. On examination at hospital, the boggy swelling was confirmed together with other marks. 4 hours later, he was transferred to Southampton Gen Hospital. A CT head scan revealed fractures of both parietal bones together with extensive intracranial bleeding and loss of grey-white matter differentiation attributable to hypoxic-ischaemic damage, and brain swelling in both cerebral hemispheres. A CT scan of his chest and abdomen revealed a fracture of the right clavicle and healing rib fractures. J remained completely unresponsive. At about 23.15, the father was arrested on the ward and taken away without being allowed to see J again. At 05.10 on the following morning, 9^th April, J was declared dead.

11. An extensive police investigation was started. Interviews were conducted of the mother of uncle and also of the two older children, A and B, under the Achieving Best Evidence (“ABE”) procedure. In their interviews, the children made allegations about the father’s behaviour in the home. I shall consider their statements during those interviews below. The father was himself interviewed on several occasions. He consistently denied being responsible for J’s injuries and death. Subsequently, however, he was charged with murder and is due to stand trial in a few weeks.

12. Following the interviews of A and B, the 3 children were placed in foster care and made subject to an emergency protection order. An initial post-mortem was carried out which confirmed the injuries identified at hospital. Further detailed histopathological tests were commissioned. On 12^th April, social worker CL visited the children in the foster placement. During conversations with her, A and B made further statements about the father’s behaviour in the home. Thereafter, various conversations took place between the foster carer and the children, in particular A, in which it is alleged further statements were made concerning the father’s behaviour. As a result, on 11^th May, A and B were interviewed for a second time by the police under the Achieving Best Evidence procedure. According to the foster carer, the children thereafter continued to make further allegations about the father’s behaviour. She recorded all of the children’s statements in a notebook. I shall consider all these statements made by the children, and the weight to be attached to them, later in this judgment.

13. Meanwhile, care proceedings were started and the children made subject of interim care orders. The proceedings were transferred to me and a series of case management hearings took place at which directions for evidence were given, including for expert medical evidence. Thereafter, a number of medical reports were prepared, some under the aegis of the coroner as part of the post-mortem procedure, others within these proceedings. I shall consider the medical evidence below. Suffice it to say, however, that a consensus emerged that the cause of the injuries was trauma and, in the absence of any explanation, that the likeliest cause was that they had been inflicted non-accidentally. Evidence from a consultant neuropathologist, Dr du Plessis, confirmed the presence of “global devastating” hypoxic-ischaemic brain injury plus intracranial bleeding and bleeding in the spinal subdural space and spinal nerve root axonal damage. Evidence from a consultant paediatric ophthalmologist, Mr Newman, confirmed the presence of extensive bleeding in both eyes. There was no evidence of any underlying medical condition. The opinion of the paediatric neurosurgeon Mr Peter Richards was that the extensive skull fractures indicated severe blunt trauma with impact against a hard surface, or crushing. He considered that the point of injury was likely to have been very close to the moment of collapse. He thought that the force used had been at the severe end of the spectrum.

14. Radiological evidence had identified about 10 fractures, but reports subsequently obtained from histopathologists indicated that the number of bony injuries was significantly higher – approximately 50, incorporating multiple fractures of the ribs, a number of metaphyseal fractures of the legs, as well as the skull fractures already cited. In none of the bones examined was there any evidence of a primary or secondary bone disorder that might have made the bones more susceptible to fracture. The histopathological evidence concluded that there were definitely at least four injuring events. Prof Freemont, the consultant histopathologist, estimated that the fractures had been sustained within 4 windows – 6 to 10 weeks prior to death, 2 to 3 weeks prior to death, 5 to 10 days prior to death and 2 to 24 hours prior to death. These most recent bony injuries affected the skull and ribs and the timing was consistent with the child’s reported collapse.

15. In his written statement in these proceedings, the father accepted that he can become angry when he drinks, but stated that he has never been physically violent to the mother. He asserts that he still loves the mother and all the children deeply. He insisted he has not assaulted any of the children. He accepted that he has smacked them and on occasions shouted at them, but denied using any force which would have caused any injuries. He stated: “I am sure that when the mother put J in the court he was okay”. He thought it possible that he caused some injury as a result of being in a panic. When he put J on the ground, his hand was on J’s neck and his head hit the ground. He added, however, that he has gaps in his memory about all of this.

The hearing

16. The hearing took place over ten days in January and February 2017. The documents were uploaded by the local authority onto an electronic bundle using the local system devised by District Judge David Williams. After some initial difficulties attributable to judicial technological inadequacy, it worked very well. It is undoubtedly the way forward in family cases and will remove many of the problems caused by paper bundles. It will also save local authorities very substantial sums of money and allow hard-pressed staff to be deployed on more important tasks than photocopying and transporting large lever-arch files. This was the first occasion when the system had been used for a case of this complexity, and some important lessons were learnt which will help refine the process for future cases. One qualification, however, is that the electronic bundle was not available for use by the witnesses. Further work needs to be done to see how this problem can be overcome.

17. Oral evidence was given by nineteen witnesses, culminating in lengthy evidence from the mother, father and uncle, given through an interpreter. At this point I would like to pay tribute to the hard work and proficiency of the five interpreters who assisted in this hearing. One interpreter was required at all times for each of the three adults throughout the hearing, and a court-appointed interpreter for their evidence. Following the evidence written submissions were submitted by all advocates, supplemented by short oral submissions at a hearing in Bristol. I am very grateful to all the advocates and their instructing solicitors for their hard work in this case.

The Law

18. The legal principles governing care proceedings concerning allegations of child abuse are well established.: see for example the summary in Re JS [2012] EWHC 1370; Re AA (Fact Finding Hearing) [2012] EWHC 2647; and Re IB and EB (Children) [2014] EWHC 369. At all points, I have had those principles, and the authorities from which they are derived, firmly in mind. What follows is a summary of those principles, plus some further comments of particular relevance to this case, derived in part from counsel’s submissions.

19. The statutory provisions governing the making of a care order are set out in s.31 of the Children Act 1989 and, in particular, the threshold criteria, in s. 31(2), namely that:

“at the relevant date, the children were suffering or likely to suffer significant harm, as a result of the care given to the child, or likely to be given to the child, not being what it would be reasonable to expect a parent to give.”

If the court finds that the threshold set out in that sub-section is crossed, the court then must determine what order to make and, in reaching that decision, the court will apply s.1 of the Children Act, making the child’s welfare its paramount consideration.

20. The first stage in any care proceedings is to establish the facts. The court makes findings on which it determines whether the threshold criteria are crossed. In determining any issues of fact, the burden of proof rests on the local authority. It is the local authority that brings the proceedings and identifies the findings they invite the court to make. The standard of proof is the balance of probabilities; that applies both when considering whether an act of abuse has occurred and also the identity of the perpetrator of that abuse. If the local authority proves an allegation on the balance of probabilities, this court will treat that fact as established and all future decisions concerning the future of the children will be based on that finding. Equally, if the local authority fails to prove an allegation, this court will disregard the allegation completely.

21. Findings of fact must be based on evidence. Whilst appropriate inferences may be drawn from evidence, the court must be careful to distinguish between inference and speculation, which must be avoided. When considering cases of suspected child abuse, the court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Cases involving allegations of child abuse often involve expert evidence from a variety of specialists. While appropriate attention must be paid to the opinion of experts, those opinions need to be considered in the context of all the other evidence. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others.

22. 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 impression it forms of them.

23. 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. To this well-known principle, derived from the criminal case of R v Lucas [1981] QB 720, I add two more recent observations by other judges of the Division. In Lancashire County Council v The Children [2014] EWHC 3 (Fam), para 9, Peter Jackson J observed:

“To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as ‘story-creep’ – may occur without any necessary inference of bad faith.”

I also bear in mind the observations of Mostyn J in Lancashire County Council v R [2013] EWHC 3064 (Fam)

“The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance”

24. I bear in mind that the obtaining of evidence from children is a specialised task. As Hughes LJ (as he then was) observed in Re B (Allegation of Sexual Abuse: Child’s evidence) [2006] EWCA Civ 773,

“[34]… Painful past experience has taught that the greatest care needs to be taken if the risk of obtaining unreliable evidence is to be minimised. Children are often poor historians. They are likely to view interviewers as authority figures. Many are suggestible. Many more wish to please. They do not express themselves clearly or in adult terms, so that what they say can easily be misinterpreted if the listeners are not scrupulous to avoid jumping to conclusions. They may not have understood what was said or done to them or in their presence.

[35] For these and many other reasons it is of the first importance that the child be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say, and equally it is vital that a careful note is taken of what they say and also of any questions which are asked. All this and many other similar propositions, most of them of simple common sense, are set out in nationally agreed guidelines entitled Achieving Best Evidence…”

25. Although those comments were made in a case of alleged sexual abuse, they apply to all cases featuring the evidence of children. Achieving Best Evidence Guidelines remain the operative guidance in this area. All professional interviews of children about allegations of abuse must adhere to the guidelines. All courts hearing cases involving such allegations must bear them in mind when evaluating the evidence of what the child has said, both in the course of interviews and on other occasions. In other words, they are relevant when evaluating not only what a child has said in interview but also what he or she has said before or after the interview. I have reminded myself of the ABE guidance when considering this judgment. The principles are well known and I do not think it necessary to add to this already long judgment by reciting them here.

26. Finally, when considering allegations of physical abuse, and in particular the causes of injuries sustained by a child, it is always important to bear in mind the possibility of the unknown cause: R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126; Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam). The court’s approach to this issue wa summarised by Moses LJ in the former case (which was an appeal against a criminal conviction):

“There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause”.

The same point applies in care proceedings notwithstanding that the standard of proof is the balance of probabilities.

Medical evidence

27. A number of distinguished experts from a range of medical disciplines have been instructed in this case, some as a result of the police and coroner’s investigations, others in the course of these proceedings. They are: Dr. Russell Delaney, consultant forensic pathologist instructed to perform the post mortem examination in this case; Dr. J McCarthy, consultant ophthalmic pathologist; Professor David Mangham consultant pathologist specialising in the histopathological assessment of bone disease and fractures; Dr. Daniel du Plessis, consultant neuropathologist; Dr. Michael Roe, consultant paediatrician; Mr. William Newman, consultant paediatric ophthalmologist; Mr. Peter Richards, consultant paediatric neurosurgeon; Dr. Stephen Chapman, consultant paediatric radiologist; Dr. Patrick Cartlidge, consultant paediatrician; Dr. Stephen Leadbetter, consultant forensic pathologist; Professor A J Freemon, consultant osteoarticular pathologist.

Skull fractures

28. From the CT scans and x-rays, Dr Chapman confirmed the presence of wide fractures of the left and right parietal bones. The fracture on the left was a comminuted fracture comprising an additional vertically oriented fracture ascending the sagittal suture, and a further short fracture line extending from the vertical fracture. At the confluence of the horizontal and vertical fractures, there were two fragments of bone within the soft tissues of the scalp. Dr. Chapman commented that the larger of these fragments had probably been displaced upwards from the confluence of the fractures. There were wormian bones present but not on a scale to be clinically significant. There was associated scalp swelling.

29. Dr. Chapman stated that a skull fracture is the result of an impact against a hard surface or object, either the head moving towards a static object or an impact from a moving object. He added that bilateral skull fractures, particularly when predominantly oriented horizontally, as in this case, also result from a crushing force applied across the head. It is recognised that skull fractures can occasionally occur from low level falls. However, Dr. Chapman concluded that the complexity of the skull fractures in this case, coupled with the extensive intracranial injuries and the eventual outcome, indicated a very severe force. It was difficult to state whether the fractures were the result of one impact or two, or a crushing injury. Given that the right sided fracture was more extensive than the left (and that the intracranial injures were more extensive on the right), if the injuries were attributable to one impact, it was more likely to have occurred on the right side of the head. Skull fractures cannot be aged from the appearance of the fracture line. Most heal within 6 weeks. Timing of the injury was best carried out in conjunction with the other associated injuries. Given the severity of the fracture, Dr. Chapman thought it most unlikely that J would have seemed normal after sustaining it.

30. Mr. Richards substantially agreed with Dr. Chapman’s analysis. It was difficult to determine whether there was one or more impact but Mr. Richards noted that the fractures extended to the lamboid area at the back of the head so that it was possible that they could all be the result of one impact. If so, the likeliest point of impact was on the right. He agreed that the child would not have seemed normal after sustaining the fracture, particularly given the extensive intracranial injuries. In oral evidence, Mr. Richards accepted that it was possible that the fractures could have been caused if J had been dropped by the father who is over six feet tall.

31. The histopathologists expressed the view that the skull fractures occurred between 2 and 24 hours (according to Prof Freemont) or between 4 and 24 hours (per Prof Mangham) prior to death.

Intracranial and spinal cord injuries

32. Dr Chapman on examination of the CT scans identified extensive scalp swelling; intracranial subdural and subarachnoid haemorrhage, mostly over the right cerebral hemisphere and along the falx extending onto the tentorium cerebelli; global loss of hemispheric grey/white matter differentiation, attenuation of the normal subarachnoid spaces and compression of the ventricles consistent with severe cerebral oedema, almost certainly the result of hypoxic-ischaemic injury. The same injuries were noted by Mr Richards when he examined the CT scans.

33. From his microscopic examination, Dr du Plessis identified the following intracranial and spinal injuries:

(a) global hypoxic-ischaemic brain injury on a “devastating” scale that was incompatible with meaningful higher function or cognition and no realistic prospect of recovery;

(b) brain swelling;

(d) acute “thin-film” subdural haemorrhage which under the microscope showed an acute character with no associated repair response and was therefore more likely less than 24 hours old – no pathological or radiological evidence was found of earlier subdural bleeding so that the most reasonable and plausible timing of injury would have involved an event also accounting for the other acute brain and spinal cord pathology;

(e) spinal subdural haemorrhage, possibly attributable to tracking down of blood from the intracranial subdural space;

(f) spinal nerve root bleeds, also acute in appearance;

(g) lower brainstem long tract selective axonal injury, considered supportive of a mechanical basis of injury by over-stretching;

(h) spinal-cord and nerve root axonal injury;

(i) cranial subarachnoid haemorrhage

Dr du Plessis found no evidence of any disease which might explain any of these injuries. He concluded that the neuropathology, whilst reflecting a very recent catastrophic event occurring less than 24 hours before death, did not provide an exact timing of a causative head injury viewed in isolation. Allied with the eye pathology, the history provided and clinical observations pertaining to fatal infantile head injury in general, he thought it most likely, if not certain, that the head injury implicated in J’s collapse and cardiorespiratory arrest occurred very close to those events.

34. Mr Richards advised that the features were of severe head trauma involving acceleration and deceleration as well as impact against a hard surface or crushing. He thought that a mechanism that could explain the whole clinical presentation was a forceful shake followed by an impact against a hard surface. The shaking episode could have caused the subdural bleeding (and the retinal haemorrhages – as to which see below) and led to the cardio respiratory collapse, with the impact causing the scalp swelling and skull fractures. Another possibility is that the head was subjected to a severe crushing force causing bilateral fracturing and intracranial injury. Mr Richards did not consider it likely that some unknown disease process could have caused the symptoms. Equally, he did not consider it probable that J was unusually fragile so that as a result he suffered severe head injuries through normal handling. It followed that, in Mr Richards’ view, a significant event had occurred of which his carers were either unaware or had chosen not to report to the medical and investigating authorities. Mr Richards rightly observed that this was for the court to determine.

Eye injuries

35. J’s eyes were not examined during his lifetime. The evidence as to the condition of his eyes is therefore in the report of the examining ophthalmic pathologist, Dr. McCarthy, on which a consultant paediatric ophthalmologist, Mr. Newman, has provided an opinion for the purposes of these proceedings.

36. Dr. McCarthy’s examination of J’s eyes revealed extensive fresh haemorrhage in the orbital tissues, the rectus muscles, the subdural spaces of the optic nerves, and in both retinas. The degree of haemorrhage was at the most severe end of the spectrum. The pattern of haemorrhage was associated with damage to vascular structures around the optic nerves and Dr McCarthy regarded the pattern of fresh bleeding into these structures as indicative of head trauma. All anatomical structures seemed to be normally formed. Although there was some evidence of iron-stained macrophages, this could have been attributable to birth trauma. Dr McCarthy therefore concluded that it was likely that there had been one major head trauma event at or close to the point in time when the child collapsed.

37. Mr Newman agreed with this analysis. He confirmed the presence of the significant haemorrhaging observed by Dr McCarthy. He noted that the retinal bleeding was present through all layers of the retina. He was unable to detect evidence of any underlying condition and ruled out all causes for the eye findings (birth, immunisations, vomiting, seizures, raised intracranial pressure, resuscitation or minor trauma) except major trauma. In the absence of an identifiable medical condition or history of trauma, the ocular findings remained unexplained but, in Mr Newman’s opinion, are most consistent with those found following a shaking-type injury likely to have involved impact, which occurred at or around the time J became unwell. In his oral evidence, Mr Newman accepted in cross-examination by Mr. Storey on behalf of the father that the eye findings were not inconsistent with one significant impact head trauma.

Other bony injuries

38. Dr Chapman, inspecting the radiological evidence, identified 7 rib fractures, a healed fracture of the right clavicle, and what he thought was a fracture at the distal metaphysis of the left tibia, most of which predated the head injury. The evidence of the histopathologists, however, has clearly demonstrated that the number of bony injuries sustained by J was in fact much greater. From the bone tissue supplied for histological analysis, Prof Mangham identified “a minimum of 42 fractures … sustained at a minimum of 4 different time points (several hours, several days, a few weeks, greater than 4 weeks)”. Prof Freemont identified “approximately 50 fractures affecting 24 different bones” and concluded that “there were definitely 4 fracturing events affecting multiple bones. These occurred 6 to 10 weeks, 2 to 3 weeks, 5 to 10 days, and 2 to 24 hours before death.” Both doctors confirmed that there was no histological evidence of any bone disorder that might have predisposed the bones to fracture. These figures for the number of fractures include the skull fractures already mentioned. On any view, however, they represent a very serious number of fractures and/or injuries sustained on at least four occasions in the course of J’s short life.

39. In his report, Prof Freemont acknowledged that fractures of the clavicle and ribs have been known to occur at birth. In this case, however, he was able to say from examination of the evidence that none of these fractures sustained by J dated back as far as birth. There was some minor disagreement between the 2 experts as to the precise number and timing of the injuries. In the circumstances, however, I do not consider this disagreement to be relevant to the issues arising in these proceedings. Prof Freemont advised that the likely mechanism by which the rib injuries had been sustained was severe squeezing or compression of the chest. The compressive force applied in cases involving small babies typically covers a number of the ribs and Prof Freemont stated that it is usual for a number of ribs to be fractured during an episode of compression. Such fractures, particularly posterior rib fractures, are commonly associated with non-accidental injury. Fractures of the clavicle at the point of the fracture sustained in this case are usually the result of the application of compressive force applied along the length of the bone as might occur in a fall from the shoulder. It is also possible that the fracture could have been sustained by squeezing around the chest, which in turn could have occurred at the same time as some of the rib fractures. Mid-clavicle fractures of this sort by themselves do not discriminate between accidental and non-accidental injury, although Prof Freemont expressed the view that, in a child who was non-mobile, he would expect an account of how an accidental injury had been sustained.

40. The metaphysis is the growing end of a long bone where cartilage is turned into immature bone. Dr Chapman described it as the site of increased bone fragility in the immature, rapidly growing skeleton. A metaphyseal fracture was described by Dr Chapman as typically a series of micro fractures running across the end of the bone rather than what is conventionally understood as a fracture. Such fractures are regarded as being caused by the application of a pulling/twisting force to the limb. Dr Chapman observed that they do not occur in normal or even rough handling and that, because of the mechanism of causation and the level of force required, metaphyseal fractures have a very significant association with non-accidental injury at this age.

41. An unusual feature of this case was the presence of evidence of a fracture to one of the vertebrae (L2). This was noted in the radiological evidence by Dr Chapman and the reporting radiologist. From his examination of samples from this vertebra, Prof Mangham found no histological evidence to support any fracture, although as I understand Prof Freemont’s evidence, the histological samples taken from the vertebra did not include that portion of the bone where the fracture was thought by the radiologist to have occurred. In all the circumstances, I do not think that the evidence on this aspect is sufficiently strong to conclude that a fracture was in fact present.

42. There are a number of other minor differences between the various experts on the details of these fractures. There was also some debate as to whether some of the injuries to the bones could properly be described as “fractures”. I do not consider it necessary to analyse these aspects in any further detail. It is plain beyond any doubt that there were multiple rib fractures/injuries and metaphyseal fractures sustained on at least four occasions.

Paediatric evidence

43. Dr Cartlidge concluded that the skull fractures, intracranial bleeding, retinal haemorrhages and spinal lesions were caused primarily by severe crushing or impact, with possible additional shaking, immediately before he collapsed. In his view, severe trauma was the only plausible explanation for these injuries. He thought that the other fractures sustained by J had been inflicted non-accidentally on a number of earlier occasions. He considered various possible medical explanations (for example, osteogenesis imperfecta, rickets, copper deficiency, vitamin D deficiency,) but concluded that there was no evidence for any such explanation.

44. Dr Cartlidge advised that the clinical features of such extensive intracranial injuries were likely to have included sudden loss of consciousness, impairment or a cessation of breathing, marked pallor, and slowing of the heart rate. In his opinion, the account of J suddenly collapsing on the afternoon of 8^th April was indicative of the causal event having occurred immediately before the onset of such symptoms.

45. According to Dr Cartlidge, rib fractures are initially painful for about 5 to 10 minutes but thereafter the pain would have lessened although deep breaths, crying and handling around the chest would have exacerbated ongoing discomfort causing J to be more fractious than usual for some time. He added, however, that young infants cry so frequently that the cause of additional crying would not have been known to someone unaware of the cause of the trauma. Similarly, he advised that metaphyseal fractures are initially painful, usually for about 5 to 10 minutes. Thereafter, the pain would have lessened, but passive movement of the joint adjacent to each fracture (hips, knees and ankles) would have caused pain. He thought that J would have been likely to have moved his legs less easily in the days after the fractures were sustained, although in such a young infant this was unlikely to have been noticed by someone unaware of the causal trauma. Visible swelling is sometimes noted in these cases but no such history was recorded here. Dr Cartlidge gave a similar analysis of the likely symptoms of the clavicle fracture. Thus, it was his overall analysis that a carer who did not witness the events which caused the various injuries would not necessarily have realised that such injuries had been sustained.

46. Dr Cartlidge looked at the reports of bruising seen on the baby when admitted to hospital on 8^th April. He did not consider that this was significant additional evidence of physical abuse. Plainly, from other evidence, the child had sustained a major injury shortly prior to his admission. A number of the marks on his body may well have been caused by attempts to save his life.

47. In his oral evidence, Dr. Cartlidge acknowledged that there is no clinical evidence about the degree of force required to inflict bony injuries of the sort and degree found through the histopathological analysis in this case but not seen on radiological examination. Since such injuries are only ever found at post mortem and are not picked up radiologically, clinicians are not aware of them and unable to comment on the force required to inflict them or the likely presentation when such injuries occur.

48. In his analysis of the medical records, Dr Cartlidge confirmed that J had been seen by a number of health professionals in accordance with normal procedures during the early weeks of his life. No abnormality had been detected at any stage. On the contrary, it seemed that the baby was thriving and putting on weight. He received immunisations on the due dates. He was plainly handled by a number of different doctors and nurses in the course of these various examinations, and was seen naked on a number of occasions.

The children’s accounts

49. I now turn to consider the evidence of the family members. I start with the various accounts given by the older children, A and B. Their accounts fall into the following categories (1) the first ABE interviews carried out on 9^th April 2016 (2) statements made to the social worker CL on 12^th April (3) statements recorded by the foster carer in a diary and (4) the second ABE interviews on 11^th May.

50. In his first ABE interview, A gave an account of what he had seen on 8^th April. He stated that his mother had gone out to buy potatoes and described what he had seen after J collapsed when the father had shouted out to call an ambulance. In the course of the interview, he was asked about this father. He said he was “sometimes angry, sometimes good … sometimes a bit rude, bit angry … shouting at us … would kick us on the bottom”. He said he would shout at everyone in the house except J “because he’s really good”. When asked if dad had been angry on the day before, the 8^th, he said yes, when J couldn’t breathe, but not before – “he was only angry that J can’t breathe”. In her interview, B said that she did things with her mother but not with her father “because Daddy is angry … naughty.” She said he used naughty words. Asked if her father had said naughty words to J, she said he only did so when J cried. She said that he had been angry on the day before, adding “because J he died”. She said that “Daddy be naughty to my Mummy … he fight with my Mummy …and then um her tummy was hurting”. She explained that this had occurred when J was in her Mummy’s tummy.

51. After the interviews, the children were placed with foster carer, Miss K and her partner. Three days later, on 12^th April, the children were seen by the social worker, CL at the foster placement. CL spoke to A and B separately. CL’s case recording of her conversation with B includes the following passage:

“B discussed her father and shared that her father gets really angry, when her dad gets angry B stated that [he] fights with her mum, B said like this and stood up and started to punch the cushions on the sofa. B said that her mum is really sad when this happens and she does not like it. I asked B how she feels when this happened and she said sad, B said that she tells her father to stop”

52. In his conversation with CL, A repeated his account of how his father had come out of his bedroom “very angry and sad shouting that J was not breathing”. He gave an account of the attempts to resuscitate J and of what had happened when the ambulance arrived. CL’s recording of her conversation with A also includes the following passage:

“in talking about his father A stated that his father gets very angry a lot. He stated that when his father gets angry shouts and hits him and B, he said that C also gets hit … A demonstrated on himself being hit on his bottom, A additionally stated that his father kicks him and his sister and sometimes …C. We discussed being hit some more and A disclosed that he and B have also been hit by his father with ‘the thing around his waist’ [indicating that he meant a belt] …A stated that B had also been hit with this a lot and stated that it hurts and he cries and showed me how he keeps really still (A stood upright squeezing himself in tightly.) A said that sometimes he falls over and just stays. C had never been hit with the belt but has been kicked in the leg, pushed and hit on his bottom. I asked A how he feels about his father and A said scared sometimes.”

Further on in this note is this additional passage:

“A stated that his father says to J ‘you fucking shut up’ and stated that he shouts this, A said that this does not stop J crying and said that his mum said to his dad to stop saying that … When he and his siblings are being hit, A stated that his mother tells his father to stop, which makes his dad angry.”

A gave further details of hearing his parents argue.

53. During those conversations with CL at the foster home, the children made drawings to illustrate some of the things they were alleging. CL wrote explanations of what they were saying onto the drawings. In her oral evidence, she explained that the children had started telling her things and she did not feel it was appropriate to stop them.

54. These conversations did not take place within an ABE interview. I must therefore treat them with considerable caution. On behalf of the uncle, Mr. Howe submits that there were serious breaches of the guidelines in these conversations. The purpose of the meetings was to build a rapport with the children, not to ask questions about what had happened at home, and CL had made no preparations for any such questions. It is further submitted that the recording is manifestly not a complete or comprehensive record of what the children said. It is really only a summary of what was said. The record shows that CL asked some questions, although it was her evidence that the allegations made by the children were in the form of a free narrative. I take all these points into account and have considered them carefully. Listening to CL’s evidence, however, I formed the view that she was a careful and responsible social worker who was trained in ABE interviewing and was aware of the pitfalls likely to arise when speaking to children in such circumstances.

55. The foster carer Miss K also gave evidence about things that the children had said to her. Her evidence was principally set out in a notebook that she kept to record the children’s progress and in particular anything relevant said by the children including about their experiences at home. The notebook records a number of conversations in which the children made a series of statements about how they were treated. The statements include comments about the father hitting the mother, the father hitting B’s ear making it bleed, about the father hitting then with a belt and about the mother intervening when the father did this, about the father hitting the mother in the tummy and about the father shouting and swearing at J. In her oral evidence, Miss K described A as being like a little scared dog when he was telling her and spoke of B using an anxious baby voice. These conversations culminated with an occasion on 17^th January 2017 when B had alleged that she had looked through the keyhole and seen the father punching J on the bed and in the cot. At Miss K’s request, B had then made some drawings of what she said she had seen. A social worker had subsequently written on the drawings describing what the drawings were intended to portray.

56. The question therefore arises as to what weight can be placed on Miss K’s notes of statements made to her by the children. In her oral evidence, Miss K described how she had been on various courses in which she had learned, amongst other things, about speaking to children. Listening to her evidence, however, it was plain that she had not received extensive training on this subject. Reading the notebook and listening to her account of the conversations, I was increasingly concerned that her lack of training and understanding about the dangers when speaking to children about things that had allegedly happened to them may have caused her inadvertently to lead the children into saying things. One example will suffice to illustrate this. At one point in her notebook, referring to advice she said she had been given, she records that she said to A that “I know that in your home people hurt people but when you live with me we don’t hurt people.” She records A replying: “yes at home daddy hurt him and when people annoyed him he would go mad”.

57. My concerns were heightened by a video recording of a conversation between Miss K and the two older children on 30^th October 2016 in which they repeat allegations about things their father had done. The recording plainly shows Miss K making comments such as “I bet that was frightening” and “I bet your stomach was turning” and complimenting the children on being brave. At one point she said that “it’s good to talk about things because then you’re not worrying about them”. She then said that “they’ll find out exactly what happened” and that “the judge will make his decision” because “he needs to know exactly what happened that day”. At that point, B gave an account of “sneaking” into her father’s bedroom and seeing J and her father shouting. A tried to interrupt and contradict B, but Miss K told him to let her speak because he’d had his say. As Mr. Howe on behalf of the uncle demonstrated in his written submissions, this transcript is materially different in a number of respects from the account of this conversation in the notebook where there is a summary of what B said but little indication of comments made by Miss K herself.

58. It is in my view unnecessary to analyse this part of the evidence in any greater detail. Having listened to her evidence, and considered in particular the evidence about the conversation on 30^th October, I am satisfied that no weight can safely be attached to anything recorded in Miss K’s notebook. There is a substantial risk that her recordings of comments made by the children were incomplete and that such comments as were made by the children were influenced to some extent by the well-intended but untrained – and in some respects misguided – way in which Miss K spoke to them. It seems to me there is considerable force in Miss Langdale’s submission that, for whatever reason, Miss K believed she was part of an “evidence gathering” process; that she should record the children’s conversations about family life and that she should “be curious” about their past; and that the children’s memory of home life by now will have been irrevocably influenced by their time in foster care and discussions with the many and different professionals involved. This case illustrates again the difficulties of relying on comments made by children outside the carefully-controlled environment of the ABE interview.

59. On 11^th May 2016, A and B underwent a second ABE interview. It seems that this was prompted by the conversations they had had with CL on 12^th April. It should be noted, however, that by the time of the second interviews they had been living with Miss K for five weeks. A described how his father had got angry and sworn several times a day; smacked them on the bottom with his arm; hit himself and B (but not C) with a belt; sometimes kicked them on the bottom; and argued with his mother which made him sad and scared. The interview with B was notably more difficult than the first. B was much more distracted, although she did repeat the account of how her parents had been fighting and how her ear had been hurt. In the light of my concerns about the impact of Miss K’s conversations on the children’s accounts, I do not think any weight can be attached to statements made by the children in these second ABE interviews.

The accounts given by the three adults

60. The father was interviewed by the police on a number of occasions and has filed one statement in these proceedings. In addition, he gave oral evidence before me, including a lengthy examination in chief by Mr Storey.

61. The father has consistently and emphatically denied being responsible for J’s injuries and death.

62. He says that he loves the mother dearly and that she is the love of his life. They planned to have two children, a boy and girl, and he describes family life as fun and says that he and the mother were happy together as their family grew. In his oral evidence, the father spoke warmly about the children, describing all four of them in affectionate terms. He played a full role in caring for them – feeding them, bathing them, changing nappies, playing with them.

63. The father denied assaulting any of the children. It is his case that he used shouting and smacking to discipline the children but denies that he used sufficient force to hurt them. He states that in Poland smacking is a normal form of chastising children. In his statement, he said that sometimes the mother thought his punishments were harsh, “both as to cause and content”. He says that she would stop him shouting too much and that she did not like him shouting, but adds that he is confident that he never caused any physical harm to the children. His statement continues:

“They didn’t have bruises or anything like that. I am also confident that had injured them [the mother] would have done something about it. [She] would try to calm me down if I was shouting. If the smacking was too hard, [she] would tell me to calm down.

In his oral evidence, the father said that his back injury had made him more sensitive and more easily upset. He said that, when he wasn’t angry, and when he didn’t shout, the children were happy, but when he did shout they were definitely afraid. He said that he accepted the mother’s diary was an accurate record of his behaviour, although he could not recall the details. He agreed with Mr. Hand in cross-examination that he was a bully to the mother when he was angry and that he did not control himself when he was in a fury.

64. It is the father’s case that he is sure that when the mother put J in his cot on the afternoon of 8^th April he was okay. When the father woke, however, he heard J gasping and he wondered whether he was choking on food or something. The father says he went to the cot, and saw J lying on his back looking very pale. He picked him up by putting his left hand under his head and his right hand under his bottom. J was floppy and not breathing. He started mouth-to-mouth resuscitation. In his oral evidence he said he remembered something happening involving the armchair in the bedroom but could not recall what it was. He left the bedroom and went to the hallway where he put J on the floor and started to do CPR. At some point, he recalled yelling to the uncle to call for an ambulance. It is his case that, in all of this activity after he found J gasping, it is possible that in his panic he accidentally caused him some injury. His had been under J’s neck and J’s head hit the ground first when he put him down. He stated that his memory was imperfect about what happened.

65. The father was very distressed at the way in which he was arrested at the hospital and separated from the mother when J was dying. He was also extremely distressed at being unable to see his son before he died.

66. The mother has given three interviews the police and has filed two statements in these proceedings. She gave oral evidence before the court which, like the evidence of the father and uncle, was given through an interpreter.

67. It is her case that, following J’s death, she was in a state of shock. For many months, she was unable to comprehend the possibility that he had been killed by the man she had loved for many years. She continued to stand by the father for a number of months after he was arrested and wrote to him regularly in prison. Having read the medical evidence, however, she now accepts that the injuries were caused by the father. It is her case that, when she went to the shop to buy potatoes, she left a healthy baby behind in his cot and when she returned there was ambulance outside the house. She now feels an intense anger towards the father whom she now believes injured her baby on a number of occasions during his short life and ultimately inflicted the injuries which led to his death.

68. It is, however, a striking feature of the evidence in this case that the mother kept a diary in which she recorded repeated examples of the father’s anger and abusive behaviour. I have already quoted a number of passages from the diary earlier in this judgment. In her first statement in these proceedings, the mother asserted that it was only after consulting with her legal team, and after re-reading the diary in what she describes as “the cold light of day”, that she came to appreciate what had happened. As a result, she has stated that her relationship with the father is over, adding “as far as I am concerned he does not exist for me any more”.

69. The mother describes how she and the father had a very good relationship in the early days which deteriorated after he suffered the debilitating back injury. This affected his ability to sleep and work and also made him more bad-tempered. She asserts that the problems were exacerbated because he drank alcohol to excess which increased the number of arguments between them. She states

“although I did my best to shield the children from the arguments, I have read documents which make clear it that the children were aware of the arguments. There were times when he pushed and shoved me around and the exercise book records the time I hit him because his behaviour was so bad. Also there was a time when my husband broke a chair. The children were present and were upset and crying. I am ashamed that things reached such a level and now I realise and accept I should have done something about this atmosphere because it was not good for the children.”

70. The mother accepts that the father shouted at the children a lot and recalled one occasion when he kicked A but not in a forceful way. She denies that the father ever physically assaulted the children in her presence. Although the father threatened to use a belt on the children, the mother says that she never saw him act on this threat. She accepts that on one occasion he pushed her and believes that this must have been in B’s presence. She said that she was not aware that the children had heard the arguments between her and the father although, having now read what the children said, she accepts that this must have happened.

71. In her oral evidence, the mother said that the children did not like the father shouting. They would go quiet. She said that his reactions to the children were too harsh and the main reason for the arguments in the house was that he was shouting at the children. She accepted that, when the father shouted and swore, J would cry. In her statement, she said that she had never heard the father tell him to “shut the fuck up”, although in oral evidence she said that he had told the baby to “shut his mouth”. Although she thought he had an anger problem, she did not think he was dangerous. He would not attack anyone apart from shouting at them in a verbal way. If the children had been hit in the way they describe, she would have expected them to tell her. It was her oral evidence that they never told her that they had been hit by the father. She did volunteer, however, in oral evidence that very often the father would say to A “it’s lucky your mother is at home, otherwise you would get a beating” but she insisted that she had never seen it with her own eyes. It was put to her in cross-examination that, from what she knew of the father’s anger and drinking and its effect on the children, she should have acted sooner to get the children away. Her reply was that, “seeing what I see now, I realise that, but I didn’t notice it at the time”.

72. In his cross-examination, Mr Tooley on behalf of the guardian drew the mother’s attention to a passage in the father’s statement in which he had admitted that he had smacked the children and said that if the smacking was too hard, the mother would tell him to calm down. The mother accepted that there had been occasions when she had intervened. She said that she did always try to calm him down and added that “it difficult to comment on whether a smack is too hard”.

73. At the conclusion of evidence, in answer to questions from the court, the mother said:

“I was trying to fight for this family. I was trying to fight for a family where the children would have both a mother and a father. The children never complained about him. At that time I did think it was safe to leave the children with him, but I now know it wasn't.”

74. The mother dearly wishes the children to be returned to her care as soon as possible. She says the children are her world and she knows that she can give the care that they need.

75. The uncle gave three interviews to the police. In addition, he has filed a statement in these proceedings. On his behalf, Mr. Howe rightly submits that there are no significant inconsistencies in his various accounts.

76. The uncle’s case about the events of 8^th April 2016 is that he heard nothing to indicate that J was unwell until he heard the father shouting at him to call an ambulance. As is clear from the transcript of the 999 call, he then effectively took charge of the situation while the ambulance was on its way, remaining calm throughout while the father was angry and hysterical. In his oral evidence, he described how he had burped J after his feed at lunchtime. At that point, the baby was normal and there was nothing that made him think that anything was wrong. After the mother went out, he continued to prepare lunch. His evidence is that the television was on and the door between the living room and the hall was closed, but he was unable to say whether the bedroom door was also shut. After he heard the father shouting, he went into the hall to find him holding J. He saw the father put J down on the floor in a manner which in his oral evidence he described as “very delicate”

77. In his statement, he says that he was unaware of any other injuries sustained by J and, if he had known that J was being hurt by his father, he would have spoken to the mother and told her to leave him. He adds that he witnessed domestic violence himself when he was a child and would not want any other child to go through a similar experience. It is his case that alcohol was rarely consumed to excess in the household. He smokes cannabis himself about twice a week but never in front of the children and was unaware of any drugs being taken in the house.

78. The uncle says that he heard the father shout regularly at the children but denies ever seeing him slap or hit them. He believes he once heard the father slap A’s bottom because he heard a noise and afterwards saw A rubbing his bottom. He denies ever seeing the father use a belt on any of the children, although he recalled two occasions when the father threatened them with a belt and made as if to unbuckle the belt from his trousers. It is his case that the children had never told him that they are scared of the father. In his statement, he also denied ever seeing the father being violent towards the mother.

79. In his oral evidence, he said that he did not remember the household as being a scary place for the children. He said that he did not know about the existence of the mother’s diary prior to these proceedings and the picture painted in the mother’s diary did not accord with his recollection. He did not know about any of these situations she described in the diary. However, in a revealing passage later in his cross-examination by Mr. Hand on behalf of the local authority, the uncle described how the father would on several occasions shout at J to be quiet while he was holding him, using “fuck” as every other word, shouting “fucking shut up”. In cross-examination by Miss Langdale on behalf of the mother, he added that he saw the father shout at the other children while holding J. On the other hand, he agreed with Mr. Storey on behalf of the father that there were many happy days in the household and that there was a lot of love between the parents.

B’s metaphyseal fractures in 2011

80. In 2011, when B was only 9 days old, she was taken to hospital. The account given by her parents was that at 5 o’clock in the morning she had woken and the mother had taken her out of the cot and put in the bed next to the father. The mother had gone to the toilet for a few minutes. The father had dozed off and woken to find B crying. The mother then returned from the bathroom and breastfed the baby. Later that morning, she noted that B’s left lower leg was swollen and tender and took her to the GP who referred her to hospital. X-rays revealed the presence of metaphyseal fractures at the distal end of the left tibia and fibula with no bony healing but some swelling. These findings were confirmed by a skeletal survey carried out some days later.

81. Initially on arrival at the hospital, the parents had been unclear about how the injuries might have occurred. It was only later during the admission that the father put forward an account that he might have rolled onto the child causing her left foot to be twisted outwards. Importantly, however, it is clear from the contemporaneous medical records that the consultant paediatric orthopaedic surgeon who considered the case in 2011 when B was admitted to hospital expressed the opinion that the account provided by the father that he had rolled onto B was a plausible explanation for the fractures.

82. In his report for the purposes of these proceedings, Dr Chapman confirmed the presence of the metaphyseal fractures in the radiological evidence from 2011. He also confirmed the absence of any evidence of bone disorder. As stated above in the analysis of J’s injuries, Dr Chapman’s opinion is that metaphyseal fractures are not found with normal or even rough handling and have a high association with non-accidental injury at this age. In his report, Dr Cartlidge also expressed the view that the metaphyseal fractures sustained by B in 2011 were likely to have been inflicted non-accidentally. He considered the father’s account but thought that the act of rolling onto the baby’s ankle would have pushed it into the mattress rather than cause a forceful bending of the ankle sufficient to inflict the fractures, unless something had happened to prevent this happening.

83. Importantly, however, the treating surgeon who had accepted the father’s explanation in 2011 was not called to give evidence before me and his opinion was not tested against that of the experts instructed in these proceedings. Furthermore, I must bear in mind that a number of years have passed since the incident and it is very difficult for the parents to recall in precise detail what happened before and during B’s hospital admission on that occasion.

Submissions

84. I have carefully considered the detailed closing submissions put to me by counsel and Mr. Tooley. I have already incorporated references to a number of their submissions in analysing the evidence above.

85. On behalf of the father, Mr. Storey and Mr. Howard have submitted a lengthy final document. I have carefully considered all the arguments put forward. They draw attention to the many positive comments about the father in the papers – warm observations about him as a father and husband. They rely on the mother’s actions in standing by him for several months after J’s death. They point to the affectionate terms in which she repeatedly wrote to him in prison, and to her remarks at the end of her evidence that she had wanted above all else to reunite the family. They submit that, unlike the court and everyone else in the case, she knew the father inside out. The fact that she stood by him for so long illustrates her disbelief that he could have been responsible for J’s collapse and death. Mr. Storey and Mr Howard also point to the mother’s strong words of praise for the father in her police interviews. They therefore contend that the wide canvas in this case is strongly in the father’s favour as a dedicated, decent husband and father who played a full role in the family duties.

86. Mr. Storey acknowledges the contents of the diary give a somewhat different picture, but submits that in terms of the time period covered and the number of entries it is relatively limited in scope and significance. He submits that the mother and uncle have a heightened awareness about the impact of alcohol on family life because of their own experiences as children. He relies on the uncle’s answer in oral evidence that there had only been a handful of occasions when the father had shouted at the children in his presence.

87. Mr. Storey points out that the father’s account has remained consistent throughout the investigation. This is all the more noteworthy because he is a foreign national communicating in a language with which he is not wholly familiar. The father’s counsel make strong representations about the treatment of their client by the police – in particular that he was not allowed to say farewell to his son. They suggest that there was a presumption of guilt that infected the investigation from the outset. They urge the court to be on its guard to avoid falling into the trap of imposing what Mr. Storey describes as a pseudo-burden on the father to come up with an alternative explanation. He reminds the court that the burden of proof rests on the local authority at all points.

88. Mr Storey submits that, given the manifest panic which the father displayed, it is perfectly possible that an accident occurred after he discovered J choking and not breathing in his cot which he is simply unable to remember or alternatively unwilling, through embarrassment, to disclose. In addition, he submits that it is bordering on the miraculous – and therefore falls into the category of the unexplained – that not a single one of the possible symptoms of the injuries sustained by J was detected in this case. He submits that the evidence simply does not stack up. He contends that this is a case where the court cannot safely exclude the possibility that J’s injuries including his ultimate collapse was attributable to an unknown cause.

89. On behalf of the mother, it is submitted by Miss Langdale and Miss Kaur that she is a truthful witness and that she gave her evidence to the court directly and honestly. Her personal life and feelings have been laid bare for all to consider – notes in a diary, and letters to father. It is submitted that the mother’s diary is factually accurate and there will have been no reason for her to fail to make significant entries within it. If the father had, in fact, hit the mother or the children, Miss Langdale submits the court can reasonably assume it would be reflected in the diary.

90. Miss Langdale submits that there is a danger that hindsight (and the knowledge of causation of J’s death) will influence the answer to the question of whether the mother should have left the father beforehand. She relies on the mother’s answers to the court at the end of her evidence about wanting to keep the family together. Her relationship with the father was longstanding and there had been many happy times. Furthermore, it is her case, supported on this point by the father, that she did take steps to protect the children from his temper. Miss Langdale submits that there will be many homes where reprehensible outbursts of shouting and physical chastisement of children occur but whether the impact of either or both results in ‘significant harm’ is a different matter. In this case, all of the children were developing well, and A and B were doing well at school. It is submitted that the death of J influences the overall analysis of the family background, and the court should be careful not to judge the mother and her responses to the father with the benefit of hindsight.

91. On behalf of the uncle, Mr. Howe and Miss Harman submit that there is no evidence that the level of conflict with the home caused the children significant harm, that this is not a household that can be characterized as having the high level of conflict required to cross the s.31 threshold. Mr Howe goes on to contend that arguments between parents, shouting at children and occasional smacking are commonplace occurrences within families and that, while this may not be ideal and may indeed be harmful it is not sufficiently harmful to meet the s.31 threshold. The degree of shouting that occurred falls short of establishing the standard of poor parenting required for the court to find that the uncle failed to protect the children. Although in his evidence the uncle accepted that with hindsight he should have said something to the mother, Mr. Howe submits that this is indeed hindsight and the court should not conclude that the uncle’s conduct was sufficient to cross the threshold.

Conclusions

92. Drawing all these threads together, I now come to my conclusions, considering as I must each piece of evidence in the context of all the other evidence.

93. In many ways this was a normal household in which the children thrived. They were not neglected. On the contrary, they were in most respects well cared for. The health visitor described them as “a lovely family”. A police officer gave evidence that a neighbour had described them as a “nice family”. The home was well furnished, clean and comfortable. The physical appearance of the children gave no cause for concern. They were well-presented, well-mannered children. They were taken regularly and appropriately for medical checks and appointments. With one exception, nothing abnormal was found. The children put on weight and seemed to be thriving. A and B were popular at school and doing well academically. With one exception, there had been no previous question about the parents’ care. On the contrary, all the evidence available to outside agencies – medical services, nursery and school – was that there was nothing unusual about this family.

94. The one exception was the earlier hospital attendance when B was only a few days old. She was found to have sustained metaphyseal fractures but after an investigation it was concluded that the parents’ account was a plausible explanation for those injuries. With hindsight, and in the context of all that has emerged about J’s injuries, there has been a renewed focus on these earlier injuries sustained by B. But that focus has not involved forensic scrutiny of the professionals who treated B at the time in 2011. The parents’ explanation was accepted at the time and the rationale of the doctors who accepted the explanation in 2011 has not been subjected to thorough analysis before me. The consultant paediatric orthopaedic surgeon who accepted the parents’ explanation has not been called to give evidence in these proceedings. In those circumstances, I do not think that any significant weight can be attached to the incident in which B sustained the two fractures as a small baby.

95. Save for that incident, there was no evidence of any observation by any outside agency to suggest that there was anything wrong with the care given to the children. On the contrary, all the evidence available to the outside agencies was that the children were well looked after and thriving in their parents’ care. This pattern continued after J was born. He was seen regularly by midwives, the health visitor and doctors. Nothing abnormal was seen. No professional noticed any signs of injury. He was putting on weight and apparently thriving. Babies who are subjected to repeated physical abuse often (although not invariably) shows symptoms of failing to thrive. This was not the case here. All in all, so far as outside agencies were concerned, J seemed to be doing very well in his parents’ care. Importantly, the father played a full role in caring for the children, including J. All that uncontested evidence leads Mr Storey to submit that, from that perspective, J’s tragic collapse and death came out of a clear blue sky.

96. The forensic analysis undertaken in this court, however, has clearly demonstrated that this was not the full picture. Unbeknownst to any of the professional agencies, this was a household in which one adult, the father, had an unpredictable and aggressive temper, which manifested itself in occasional outbursts of extreme anger directed at everyone in the house both adults and children including J. I am satisfied that he regularly subjected everyone to threats including the children and those threats included threats of violence. I accept the graphic evidence given by the uncle that the father would shout at J while holding him. That clearly demonstrates to my mind that he had an irrational and uncontrollable temper. I also note that the mother’s friend KS gave evidence that she had intervened on two occasions when the father was angry and shouting at the children. All parents know that caring for small babies can be frustrating and difficult, but the reaction of this father to this child went far beyond a reasonable response. On the contrary, it was both alarming and, in my view, dangerous.

97. I am satisfied beyond doubt that the children in this family suffered emotional abuse at the hands of their father. I have no doubt that, at other times, he could be warm and loving, but his outbursts of temper and aggressive shouting would unquestionably have been emotionally harmful to all the children, including J. His outbursts clearly included acts of aggression directed at objects (for example, the kitchen chair he destroyed in temper). Did it extend to violent acts perpetrated on the children?

98. The father plainly used physical chastisement and threatened the children with more, including the belt. The mother said that he had threatened the children with the belt. Her friend KS said that she had heard him threaten this on two or three occasions. The father also accepted that he had threatened them with the belt. He acknowledged in his own statement to the court that on occasions the mother had had to intervene because she thought he was punishing the children too harshly.

99. The evidence that he went further and assaulted the children is the comments made by the children. As analysed above, the evidence of what the children have said comes from a number of sources. For the reasons explained above, the evidence provided by the foster carer must be treated with great caution. I accept that she was well-meaning and in other respects has been a highly competent carer, but I am not satisfied that she really appreciated the difficulties that arise whenever children are questioned, or the need for care and restraint when asking questions in those circumstances. I consider that there is a significant chance that the children’s comments to her were unintentionally induced and encouraged by things said by the foster carer herself. I therefore attach no weight to comments recorded by the foster carer.

100. On behalf of the three adults, I am urged to take a similar view of the comments recorded by the social worker, CL, as having been made by the children on 12^th April. It is correct that the conversations she had with the two children on that day were not conducted formally in accordance with the procedures laid down in the ABE guidelines. The social worker did not visit the foster home that day with the intention of questioning the children, but only for the purpose of building rapport with them. The record of what the children said is plainly only a summary and does not contain a verbatim account of the exchanges between the social worker and each child. For all those reasons, I must treat this evidence with caution. I have, however, reached the conclusion that the social worker’s evidence of what the children said that day is both reliable and compelling. In particular, I accept that A told CL that the father hit the children with a belt. A’s description of how the father did this and of his own reaction to being hit - standing still or on occasions just falling over – was compelling and plausible. It is also notable that A told CL that, when he and his siblings were being hit, his mother would tell his father to stop. This is consistent with what the father himself said happened in his statement in these proceedings. In addition, A told CL that his father shouted to J ‘you fucking shut up’. This is consistent with what his uncle has stated in evidence. In those respects, CL’s record of A’s comments on 12^th April is corroborated by other evidence. To my mind, this confirms the overall reliability of that record.

101. Both the mother and the uncle were in many ways plausible witnesses. But I have concluded that, whilst they were able to acknowledge that the father got angry and shouted at the children, they have minimised the extent of his physical violence. That physical abuse went far beyond anything that could be considered reasonable chastisement. I accept that the children have been hit with a belt by the father and subjected to acts of physical violence on occasions by him when he was angry. I find that both the mother and the uncle were aware of the true extent of his physical abuse of the older children.

102. There is no evidence that either the mother or the uncle or any of the children ever witnessed the father physically abusing J. Nonetheless, looking at the evidence overall, it cannot in my judgment be said that the events that caused J’s collapse and ultimate death came out of a clear blue sky. On the contrary, dark clouds were plainly gathering.

103. I turn the evidence about the afternoon of 8^th April. On this point, I accept the evidence of both the mother and the uncle. I accept that it had been a peaceful and uneventful day. In the morning, there was a trip to the shops. I accept the mother’s account, supported by the father, that while he was resting on the bed, she put J in the cot so that she could go back to the shop. I have found it a little puzzling why she went to the shop at that point. I have considered the possibility that she has fabricated this part of her account to conceal something, but ultimately concluded that she has not done soon. I accept her account that she left J in his cot and indicated to the father that she was going out, the baby was well having just been fed. If she had thought that there was anything wrong with J when she put him down in his cot, I find that she would never have left the flat that afternoon.

104. I also accept the evidence of the uncle that he continued preparing the meal after the mother had left the building and that the first sign that he heard of anything wrong was when he heard the father shouting for an ambulance and came out of the living room into the hall to see the father holding J in his arms. I further accept the uncle’s account of seeing the father put J on the floor gently. I do not accept that there is any possibility that J could have sustained any of his injuries when being put on the floor in this fashion. There is to my mind no conceivable way in which he could have sustained the skull fracture or the devastating intracranial injuries by being placed on the floor in the way described by the uncle.

105. It follows, therefore, that J sustained those devastating injuries that led to his death between the time the mother left him in his cot and the time when the uncle saw him in his father’s arms in the hall.

106. Any accident that had occurred to this 14 week-old baby would have been observed. No account of any accident that could conceivably explain these injuries has been put forward. I do not think it possible that an accident could have occurred which the father has completely forgotten, nor in my judgment is it likely that there was an accident which he has concealed because of embarrassment or any other reason. A suggestion that was made at some point in the evidence that his head might have struck an armchair is to my mind just speculation and would not in any event have led to injuries on the scale suffered in this case. Thus the only conceivable explanations for J’s fatal injuries in my judgment are either that there was an unknown cause or that he was subjected to a devastating and violent assault by his father. I do of course bear in mind the possibility of an unknown cause, but have regard to the extent of injuries – the skull fractures, the associated rib fractures, the intracranial bleeding, the eye injuries, the brain damage, leading shortly thereafter to his death – the chances of there being an unknown cause are to my mind infinitesimally small.

107. Taking all the evidence into account, and in particular the medical evidence about the injuries and their likely causation, the evidence given by the mother and uncle as to J’s condition prior to his collapse, coupled with the evidence of the father’s propensity to anger and violent outbursts, I conclude that J sustained his injuries as a result of a violent assault by the father in the bedroom while the mother was out of the property. I make this finding on a balance of probabilities. That is the standard of proof applicable in this court. I feel compelled to say, however, that in this case I have no doubt that this is how the injuries were sustained.

108. It is plain from the evidence of Prof Freemont and Prof Mangham, supplemented by the evidence from Dr Chapman, that J had a large number of bony fractures/injuries to his ribs, clavicle and lower limbs of varying ages which were inflicted on at least three earlier occasions prior to the assault on 8 April which led to his death. Careful analysis has ruled out the possibility of any organic, metabolic or genetic explanation for these injuries. If any of these injuries were attributable to accident sustained by this pre-mobile child, there would be an account or history from one or other of his carers by way of explanation. There is no such account. Again, the only explanations for the various bony injuries sustained by J on earlier occasions are unknown cause or inflicted injury. I take into account again that there is always the possibility of unknown cause, but in all the circumstances I conclude that the chances of such a cause being the explanation for any of J’s injuries are very small indeed. On a balance of probabilities, the likeliest explanation is that they were inflicted through squeezing and/or rough handling.

109. The possible perpetrators of these injuries are the father, mother and uncle. Having carefully considered all the evidence, including the evidence about what happened on 8^th April, and everything I know about their respective characters, I conclude that it is overwhelmingly more likely than not that the injuries were inflicted by the father.

110. I turn finally therefore to the allegations that the mother and uncle failed to protect the children. As already indicated, I have found that (1) the father was a man with an aggressive violent temper; (2) when angry he has shouted at the adults and children in the house; (3) on occasions, he has physically abused the children; (4) he was responsible for inflicting the injuries on J on a number of occasions prior to 8^th April; (5) he was also responsible for inflicting the catastrophic final injuries on 8 April which led to J’s death. Both the mother and the uncle accept that they knew about (1) and (2) - in other words that he was a man with an aggressive, violent temper who when angry would shout at adults and children in the house. But both the mother and uncle deny that they knew about (3) and (4), further assert that (5) could not have been foreseen, and therefore contend that they cannot be criticised for failing to protect the children.

111. I do not, however, accept their evidence that they did not know that the father hit the children. On the contrary, I find on a balance of probabilities that each of them knew that he had hit the children, including that he hit them with a belt. On a balance of probabilities, I think it more likely than not that the father hit the children in the presence of both the mother and the uncle. To that extent, I find that the uncle and mother have both minimised their knowledge of the father’s dangerous behaviour. I conclude that they have done so to portray themselves in a more favourable light in the hope that this will make it more likely that the court will return the children to the mother’s care. It is possible that they were unaware of the extent of the physical abuse of the older children. But in my judgment they knew that he shouted at the children in a way that was abusive and highly damaging and on a balance of probabilities I find that each of them knew that he hit the children to an extent that went beyond normal chastisement.

112. There is, however, no evidence that either the mother or the uncle was aware that J sustained any injuries before 8 April. I bear in mind that the baby was seen by a number of professionals, experts in helping and treating children, not one of whom noticed anything to suggest that J had sustained fractures and injuries which the evidence of Prof Fremont, Prof Mangham and Dr Chapman has subsequently demonstrated were present at the time of the various examinations. I also take into account the evidence of KS, the mother’s friend, who saw J only a few days before his death and noticed nothing wrong. If experienced professionals and the mother’s friend noticed no signs of injury, I do not think it can fairly be said that the mother or uncle should have noticed anything wrong. The mother was of course an experienced parent by this point who might be expected to notice any change in her baby. But small children are distressed and discomfited all the time for a wide variety of reasons. Of course, this mother had some experience of a child who had sustained injuries. B had been taken to hospital when only a few days old and found to have two metaphyseal fractures. But in B’s case there were clear symptoms of the injuries which alerted the mother to the possibility that something was wrong. I find that in J’s case even an experienced mother would not necessarily have noticed that there was anything wrong.

113. If the mother or the uncle had seen the father strike, shake or squeeze J, they would in my judgment have immediately taken steps to remove the baby from his care. I am satisfied that the mother did not realise that there was any risk of harm to J when she left him in the father’s care on 8^th April. If the mother had thought that there was any prospect of J coming to harm when she went to buy potatoes that afternoon, she would never have left the flat. On the other hand, she did know about his anger and aggression and, in my judgment, she knew of the emotional and physical abuse of the older children and also that he had shouted at J on a number of occasions. In my view, she ought to have realised that the father was capable of violence and a man of unpredictable temper and ought therefore to have realised that it was unsafe to leave J in his care. The fact that another adult was present in the flat would not have prevented the father from becoming angry and aggressive towards the children. Few people would have anticipated the father would inflict injuries on J on the catastrophic scale which ultimately transpired, but in my judgment the mother ought to have realised that it was unsafe to leave J in the cot in the bedroom. She knew about the father’s unpredictable and aggressive behaviour and ought therefore to have realised that there was a risk that J would come to some harm, even if she could not reasonably have foreseen the scale of harm that he ultimately suffered.

114. I conclude that both the mother and the uncle were culpable of a degree of failure to protect the children. The uncle’s culpability is less substantial. I accept that he was very fond of the children. As Mr. Hand concedes, he undoubtedly did his best on 8^th April in very difficult circumstances. He did not have parental responsibility for the children, but he did know of the father’s unpredictable and aggressive behaviour towards children. He ought to have intervened to help the mother get assistance to deal with this problem. In cross-examination, he fairly acknowledged that he should and could have done more.

115. The mother’s culpability is more substantial. She loves the children dearly and in all other respects has provided them with very good care. But she knew that the father was unpredictable, angry and aggressive, and that he directed his aggression at the children and occasionally committed acts of physical abuse. She ought to have taken steps to encourage the father to seek help for his anger and to remove the family from his care until such time as the father had addressed the problem. She did not do so and therefore in my judgment failed to protect older children from emotional abuse and occasional acts of physical abuse inflicted by the father. Furthermore, I find that she ought to have realised that it was not safe to leave J in the father’s care. Even though the extent of the violence inflicted on J on 8^th April was something which few people would have foreseen, the mother ought to have realised that there was a risk that J would suffer some harm and therefore taken steps to ensure that he was not left with his father.

116. I therefore find the mother failed to protect the children by failing to remove them from the household in which they were suffering emotional and physical abuse and failed to protect J by leaving him in the care of the father knowing that he was capable of angry and aggressive behaviour towards children. Had the mother taken any of those steps, J would still be alive today. She will have to live with that knowledge the rest of her life. I acknowledge that the positive evidence about the children indicates that in many respects they were well looked after in the parents’ care. On the other hand, I regard the mother’s failure to protect her children as significant. Although I do not rule out the possibility that A B and C may return to her care in due course, it is essential for this failure to be acknowledged and addressed.

117. This judgment concludes the first stage of these proceedings. On the basis of the findings as set out above, I conclude that on the relevant date, namely the date on which the local authority took action to protect the children by removing them from their parents’ care, the children were suffering or likely to suffer significant harm, as a result of the care given to them, or likely to be given to them, not being what it would be reasonable to expect a parent to give.

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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Bournemouth Borough Council v A Mother & Ors [2017] EWFC 18 (28 February 2017) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2017/18.html Cite as: [2017] EWFC 18

England and Wales Family Court Decisions (High Court Judges)