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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> C (A child : Fact Finding : Delay) [2014] EWFC B72 (21 November 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B72.html Cite as: [2014] EWFC B72

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IN THE FAMILY COURT AT NORTHAMPTON
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF C ( A CHILD)

		85-87 Lady's Lane Northampton NN1 3HQ
		21 November 2014

HIS HONOUR JUDGE HUGHES:

1. The child with whom I am concerned is C, who was born on 4^th March 2013 and is, therefore, aged 20 months or so. She is represented in these proceedings by Mr Sampson of counsel, through her guardian, Rebecca Rylan. Her mother is M and she is represented by Mr Braithwaite of counsel, instructed by Messrs Woodford Robinson, solicitors.
2. F is C's father and is represented by Miss Turner of counsel, instructed by Wilson Browne, solicitors.
3. The applicant local authority is Northamptonshire County Council. The solicitor with conduct is Nicola Whitehead; the allocated social worker, Reith Tapela; and the local authority is represented by Michelle Christie of counsel.
4. The application before the court today is the local authority's application for a care order, which was issued on 6^th May 2014, C having been accommodated in accordance with s.20 of The Children Act on or about 23^rd April, following F taking C to the parties' GP on 11^th April with a complaint of a swelling to the left side of her head; a number of subsequent referrals to Northampton General Hospital and, thereafter, to the John Radcliffe Hospital in Oxford and back again to Northampton Hospital.
5. In the course of hospital admission, a number of medical investigations were carried out, which revealed that C had a vertical skull fracture, for which the medical profession felt that there should have been an appropriate and reasonable history, failing which, non-accidental injury could be considered as the cause of this skull fracture.
6. The local authority held a strategy meeting on 12^th April 2014 and convened an initial child protection conference due to the lack of credible explanation in relation to the injury. On 23^rd April, the parents agreed to C being voluntarily accommodated.
7. I make three observations at this stage: firstly, there was a very thorough medical investigation indeed, involving both hospitals, which has, effectively, discounted any organic cause or unknown aetiology in relation to C's skull fracture; secondly, the court's forensic investigation by way of fact-finding in relation to what has happened in relation to C has been substantially and unacceptably delayed, which I attribute, firstly, to non-compliance with disclosure directions, particularly in relation to medical evidence. I pause there. I attribute no blame whatsoever to the local authority for their conduct of this case, which has been exemplary. Secondly, the inability of the court to list the matter earlier, due to an overwhelming volume of cases coming before Northampton Court and a chronic shortage of judges. I say that against the background of there being a clear expectation from April of this year that most public law cases should be completed within 26 weeks, unless exceptional circumstances apply. That did not happen in this case and if there is an expectation on the part of the legislators that cases should be completed within 26 weeks, steps should be taken to ensure that there are the necessary number of judges to deal with them. As it is, I record that C has been out of her parents' care for a crucial period of seven months of her life and has been in limbo. Thirdly, the most appropriate medical expert, in my judgment now and with the benefit of hindsight, was not instructed in this case – namely, a paediatric radiologist – and the court has had to make the best of what evidence has been available, as further delay could not be countenanced in a case that has already taken too long.
8. I note, in addition, the absence of, for example, photographs, which would have been useful. The evidence, however, I make it clear, has been sufficient to enable Mr Jayamohan, the jointly appointed expert, to report on the fracture and the overlying tissue swelling. As it is, I was determined to resolve as many issues as possible in this case when I first became seized of the matter and, as is known to the parties, I cancelled my holiday to do so. Had I not done so, this case would have gone off until at least February 2015, possibly longer, with a potential for real and lasting damage to this family. This, therefore, is a fact-finding and threshold hearing to identify whether C's injury was caused accidentally or non-accidentally and, if non-accidentally, to identify the perpetrator or perpetrators. In relation to this exercise, I shall come to the law in due course.
9. So far as background is concerned – and I must say, most helpfully - the parties have agreed the majority of facts in relation to this case by reference to a schedule of agreed facts, which I will summarise shortly. In fact, in broad terms, only two matters remain outstanding for determination on the local authority's schedule of findings: namely, the assertion that C's injuries were caused as a result of a non-accidental trauma and were caused by the mother or the father. There are other consequential findings that the local authority seek that are added on to the end of the schedule, which I will come to in due course, but that is the essence of the matter before the court. This, therefore, is a single issue fact-finding case, arising from C's fractured skull and the parents' actions, as a consequence. The local authority, sensibly and appropriately and proportionately, raise no other concerns in relation to the threshold criteria under s.31 of The Children Act.
10. By way of background, therefore, the parents met through internet dating in August 2008, began cohabiting in November 2010 and were engaged to be married in February 2011, and married in September 2012. Mother worked as an account manager prior to the birth of C; father continues to be the marketing director of a large publishing company. C's conception was planned and the mother was prescribed fertility drugs to assist with conception. I have read a statement from the maternal grandmother, saying that C was a much-wanted and much-loved child. Both parents have a history of depression, for which they have received medication. They also experienced some marital problems for a number of months following the birth of C, for which the mother sought advice from a health visitor, and the parents attended Relate. It is – and I note this now – striking how the mother was in relation to her openness and honesty about that particular issue.
11. There have been no other healthcare or welfare concerns noted in respect of C or her parents during her life, and C was presented appropriately for all her immunisations and, in general, appeared to be meeting all her developmental milestones. She was taken by her mother to the GP on 20^th December with symptoms of a cough and a fever for a few days and on 5^th February the mother contacted the health visitor for advice regarding C having a nosebleed. Other than the above, it seems that C did not have any other contact with health professionals.
12. On 3^rd April 2014, C was alone with her father between approximately 7.00 p.m. and 8.00 p.m. in the evening. During this time, she had cried before going to sleep, which was unusual, but was asleep by 8.00 p.m., which was unusually early. She awoke at 10.00 p.m. and vomited violently, which was unusual, and she vomited on several further occasions before midnight. The next day, 4^th April, C presented as subdued and lethargic, vomited again before 9.30 in the morning and I think there was another occasion in the afternoon when she vomited, as well.
13. I think it is also common ground that there was a wedding on 5^th April, at which the parties and C attended without any remarkable event having occurred. On 7^th April, C attended the crèche at Towcester and the nursery staff did not notice any concerns. On 8^th April, she attended nursery from 8.00 a.m. to 5.30 in the evening, a long period of time, and no concerns were noted. She was sick again on 10^th April on several occasions in the early hours of the morning whilst in the care of her mother and the maternal grandmother. This was unusual because C was not a sickly child.
14. Sometime on 10^th April, mother noticed a bruise to the left side of C's head, about the size of a 50p piece, which was small and yellow in colour. On 11^th April, at approximately 7.30 a.m., father noticed a significant swelling to the left side of C's head and at 10.10 in the morning C was taken to the GP, who suspected soft tissue swelling, but referred her for a second opinion. Mother, I think, attended that second appointment with the father. Both GP's suspected soft tissue swelling and suggested that C be taken to Northampton General Hospital.
15. On 11^th April, at about lunchtime, C was admitted to hospital and was found to have the following injuries:

(a) 4 cm x 6 cm yellow head haematoma;

(b) a left parietal undisplaced fracture of the skull;

(c) an acute, left-sided temporal extradural haematoma of 18 mm depth, with mild oedema but no midline shift.

16. Subsequently, C was transferred to the John Radcliffe Hospital and was confirmed to have the following injuries:

(a) undisplaced vertical skull fracture;

(b) left-sided, large, extradural haematoma;

(c) extracalvarial soft tissue swelling present over the left squamous temporal bone, which suggested that impact injury occurred within a period of five days or so of the scan;

(d) small, right-sided peri-retinal haemorrhage suspected, but that was later not confirmed in images and, therefore, it is important that I record that there were no abnormal ocular findings;

(e) A full skeletal survey was conducted on 14^th April and no other fractures were identified.

17. An extradural haematoma shown on the CT scan performed at 13:56 on 11^th April was estimated to be between five and 10 days' old at the time of the scan; and the same event caused the skull swelling fracture and extradural haematoma.
18. During the time that C spent in hospital, professionals involved in her care did not have any concerns about her parents' interaction with her or the way that they managed her care. The mother was not able to give any appropriate history to account for C's injuries that satisfied the medical professionals at either hospital and also the mother did not provide any alternative accounts during her police interview on 4^th May. She did, however, describe a number of commonplace accidents which occurred as possible explanations for the injuries, all of which were rejected by the treating physicians.
19. The father was not able to give any appropriate history to account for C's injuries that satisfied the medics during his discussions at either hospital and did not, during his police interview on 3^rd May, provide any further or alternative explanation for C's injuries. Father has subsequently provided an account in an attempt to explain C's injuries. Such account was first given to the mother on or about 24^th May and to the police on 2^nd June, and to the court in his witness statement on 5^th June.
20. All possible medical explanations for C's injuries have been discounted. It is accepted by everyone that C's injuries were caused by an impact to the left side of her head, moderate force, and impact with a large, flat object. A history of a possible fall from an ottoman approximately 40 cm in height onto a fireplace on 3^rd April suggested that it was possible that a simple skull fracture could be sustained from such a fall but all other possible histories provided by the parents as a mechanism for C's injuries can be discounted, save for the fall from the ottoman, which was, at the start of the hearing, a potential explanation.
21. There came a time when it was agreed that there should be a jointly appointed expert. Consultant Paediatric Neurosurgeon, Mr Jayamohan, was jointly instructed by the parties to prepare a report within these proceedings and the report has provided a number of summarised conclusions. I repeat them now, for the purposes of this judgment, for the sake of completeness, as follows:

(a) The explanation given by the father of C falling from the ottoman is a potential explanation for the injuries. It is a relatively long time from 3^rd to 11^th, when the scalp injuries were first noted. It is not impossible that swelling was present but went unnoticed.

(b) The extradural haematoma is a blood clot between the bone and the fibrous bag that lines the brain. The thin temporal bone then makes it particularly prone to fracture and a fracture that the artery can cause bleeding, which strips the dura away from its attachment, causing a blood clot.

(c) If the clot is big enough, it can cause symptoms of vomiting, drowsiness, listlessness, headaches (seen in babies by crying a lot) and these symptoms fit very well with those described by both parents overnight from 3^rd into 4^th April.

(d) By the time of the CT scan on 11^th, the extradural haematoma is showing some signs of having formed a clot within it and retracting in on itself in radiological appearance, probably around five to 10 days' old.

(e) Given the collocation of the swelling of the scalp and overlying fracture, which is itself overlying the extradural, it is likely that the scalp swelling has occurred from the same event that has caused the fracture and the extradural haematoma.

(f) There is no reason to suggest that C has any underlying propensity either to fracture bone or to bleed.

(g) An impact of moderate force would be required to cause these findings.

(h) It is possible to discount all histories provided by the parents, save for the possibility that C may have hit her head on the stone hearth. Nobody was there to witness this incident, so it must be explored in some detail by the court as to its veracity.

(i) If the court rejects the ottoman incident, then a non-accidental injury must be strongly suspected.

(j) C is likely to have been distressed, crying, difficult to console for a period of minutes or hours after the impact event causing the fracture, which can be painful, as well as the sheer shock of such impact.

(k) It is likely that the pressure on the brain caused by the clot would be seen with irritability, drowsiness or listlessness, crying, going off feeds, vomiting and generally being unhappy.

(l) There may be a period from the impact until these neurological symptoms become apparent.

(m) The symptoms may well then settle over the next hours and/or days.

(n) The blood is most likely to have been of one age (five to 10 days, in his opinion).

22. Mr Jayamohan gave live evidence by way of video link on the second day of the hearing and confirmed the conclusions that I have already rehearsed. Those conclusions remain his opinion. He confirmed that he had seen the scans and the length of the fracture is not often measured, as it is of little clinical relevance. A single linear fracture could be consistent with a low level fall, as opposed to a more complex fracture, which was less likely. Also, the location of the fracture was important and the clinicians tend to look at the location of the fracture - what he described as the sweatband around the skull; and fractures on the top of the head or on two different sides of the head at the same time are less usually associated with a fall.
23. He had been asked to look at various research material by the guardian's counsel, Mr Sampson, and studies relating to the variation of heights investigated in each paper - heights of less than a metre being described as low level falls. He said that there was very little science involved, as the height of the fall was not the only critical criteria and other issues involving force – for example, generated by a rotational fall with increased momentum - he clearly thought could be more significant. He confirmed that the research literature indicated that there was no consensus on the minimal distance to effect a fracture.
24. In this case, we know that the height involved in relation to a fall from the ottoman was 40 cm. Clinically, he could say that it was very unlikely that a baby would sustain a fracture from the height of this particular fall but, on the other hand, many children could have sustained a latent fracture from low level falls and these, for obvious reasons, have not come to light. It, therefore, could not be excluded. The object against which the child's head impacted is crucial. A wider surface area was less likely to cause a fracture, as opposed to what he described as a, "pointy" surface. The overlying soft tissue swelling did not assist in relation to this aspect and neither the fact that the bruising seems to have been seen before the swelling. He would have expected the swelling to be bigger a few days after the date suggested for the impact.
25. A possible explanation would be that the parents may not have been looking for a swelling or the swelling could have been obscured by the child's hair. He thought that the swelling was likely to have been visible but he could not say that it must have been obvious, and it is clear that he thought that it was unusual that the swelling had not been noticed but maintained that the explanation of a fall from the ottoman onto the edge of a fireplace surround was still possible.
26. He was taken again to the literature and what emerged was, there was some evidence of low level falls between 1 metre and 1.5 metres, which would account for 1% of skull fractures in children; and he was able to find some research indicating a fracture from a fall from a height of less than 60 cm but reiterated that the surface aspect was so important. Nevertheless, a fracture from a fall in these circumstances he clearly thought was unusual but possible. He stated that C would have to – and I quote – "have been a very unlucky baby to have sustained her injuries in this way." He confirmed that he would expect a child who had suffered a fracture in these circumstances to be upset, distressed and crying, and the distress would have been noticed; but much would depend upon the care givers and their awareness, and it would be unusual for parents not to make a connection between a fall and vomiting; but if a parent was unaware of the impact, he would not expect a parent necessarily to make that connection. In my judgment, that might be particularly true in this case, in circumstances where, on the father's case, he only saw C lying on the rug.
27. At the conclusion of his evidence, I was left primarily with his observation that a fall from the ottoman account, which included an impact with the marble hearth, could account for this injury – the nature of the edge or surface of the hearth and the rotational force being crucial and critical components.
28. Dr Janet Collinson was not called to give live evidence but I took an opportunity of examining her statement, which was largely uncontroversial. She was the examining paediatrician and it was she who took a history from the parents. It was decided at court that it was not necessary for her to give live evidence but I note, for completeness, that she recorded that the explanations given by the parents during admission – and, in particular, the minor bump of C's head on a car mirror – was not of significant force to explain the injury and at that time no other explanation was offered.
29. Of greater value, perhaps, in the context of this case, was live evidence from the named nurse for safeguarding, Julia Anne Quincey. She filed a report and, in live evidence, explained her role and, importantly, her previous experience as a child and adolescent nurse and a health visitor. She has occupied her present role for the last three years. In accordance with normal procedure, she was called to the ward on the day of admission, as Dr Collinson thought that there was a safeguarding issue and clearly had not received any credible explanation from the parents to account for the fracture. I make it plain that her evidence adds little or nothing to the medical aspect of the case but what she said about these parents in her report and, subsequently, in a report to the child protection conference is, in my judgment, significant. In her report she says – and I quote:

"Throughout the stay in hospital, both prior to the transfer to the John Radcliffe Hospital and post-discharge to the Northampton General Hospital, the parents demonstrated appropriate, loving interaction with C. Both of her parents anticipated C's needs and demonstrated a good level of parenting. I saw C's parents on most of the days they were present at Northampton General Hospital and supported them through the safeguarding process. At no time did the parents share with me any other explanation for the injury and I was present when the parents agreed to a s.20 placement and supported parents when C was handed to the care of social services on 23^rd April at 17.30."

30. In her live evidence, she remarked that the parents had acted appropriately in hospital and there was evidence of a loving relationship with each other and with C. They sought advice as to how they should handle C's admission to foster care, which they did well, although they were occasionally tearful. She recorded the father searching for reasons in an expected way in relation to C's condition and found the parents easy to work with. In her report to the child protection conference scheduled for 29^th April, although I think that conference did not take place then, she says – and I quote:

"Throughout C's stay in Northampton General Hospital, the care given by the parents to C was entirely appropriate, very caring. Both parents were able to anticipate C's needs and respond accordingly. C is a well-stimulated baby and her parents demonstrate consistently their ability to put the child's needs first. C's parents, though of course distressed, were able to engage well with the child protection process and understood that the process needs to be followed whilst the mechanism of the injury remains unknown."

31. Ms Quincey described her processes as very thorough, and I believe that, and it is clear that the parents impressed her in many ways. Although this was an unexplained injury, she had no other concerns about their care. It is, in my judgment, a powerful piece of evidence in considering the likelihood or otherwise of either of these parents inflicting an injury on this much-cherished child.
32. F is C's father and he gave evidence. He has filed a lengthy statement, dated 5^th June 2014, in which he sets out a chronology of events from 3^rd April, which he says has assisted him – and I quote: "thinking about C and her injury and how this could have happened." That self-same statement exhibits photographs – not only of C appearing to look well and happy between 5^th and 9^th April, but also of the living room, the settee and the ottoman from which he now thinks that there is a strong possibility that C fell onto the fireplace.
33. After he returned from work on 3^rd April, he was left in charge of C from about 6.50 or so in the evening until his wife returned about an hour later. The television was on in the living room and eventually C, who seemed to be restless and under-the-weather, was playing, sitting on the ottoman with her toys. C signed to her father that she wanted milk. I pause there – this child has been taught signing by her parents, she has some signing skills and this is something that is increasingly popular these days. He pulled all of the toys onto the ottoman, creating a wall, so that C would be enclosed in a smaller space on the ottoman, where he thought she would be safe. He went off to the kitchen to make the milk; the kitchen is on the other side of the adjoining dining room , some distance away, the kettle had been boiled and all he needed to do was put the formula in and bring the milk back. When absent from the room, his case is that he heard a cry and he came back into the room, seeing C lying on the floor on her back. Her head and upper torso were on a rug adjacent to the hard standing of the fireplace and he marked her position on one of the photographs that we have seen. The corners of this hard standing were normally protected by rubber protectors but he cannot recall whether they were in place on this occasion. He said that it was unusual for C to cry and he rushed back to the lounge, picked her up and comforted her. He said that she had cried for about 10 minutes, a louder cry than usual, a proper cry, only heard twice before in very different circumstances. He could not see any mark or bruises on her head and subsequently put her to bed and, as we know, and as I have already rehearsed in another section of this judgment, C woke and was subsequently sick.
34. His case, all other explanations having been discounted, is that this is the most probable explanation for C having injured her head; although he said that it did not occur to him at the time - or, indeed, subsequently, until the time came for him to review the chronology after C had been accommodated - that this was a possible explanation in relation to her fractured skull.
35. By way of background, he explained that C had had a normal birth and described his daughter as healthy, content and loving, and a well-developed child. It is plain that he has had a lot of involvement with her since before her birth, attending NCT classes, pregnancy yoga with the mother and all of the scans and maternity appointments. He took four weeks off work as paternity leave, he has taken C to swimming classes and spends special time with her every evening after work, and comes home early one day a week to collect her from nursery.
36. He paid tribute to his wife, as a caring, loving and generous mother, who agreed to take a break from her career to look after C. They clearly have a close bond and it is unsurprising, in my judgment, that his presentation in the witness box corresponded directly with the positive assessments of both him and mother by the professionals, in terms of his devotion as a parent.
37. Clearly, there had been some attention in the household to safety issues and it seems that sensible safety measures were in place to deal with an increasingly mobile child. Subsequently, in the week that followed 4^th April, he set out in his statement all the family's subsequent activities, including attending a wedding on 5^th April and, from time to time, C being sick on the occasions that I have already recorded. Significantly – and this remains the most significant feature in relation to this case, in my judgment, and in the context of this forensic exercise – he did not tell his wife about C falling from the ottoman. He only told her that she had been unsettled, that she had cried, taken her milk and then fallen asleep earlier than usual. He said that he did this because he believed it to be a minor accident from a seated position onto a thick rug on top of a carpet, that C appeared to be unmarked or bruised and if he had thought that C had been injured, he would have taken her to hospital; and when he says that, I believe him. As soon as he and the mother noticed the swelling on C's head on the morning of 11^th April, they took C to the GP immediately.
38. In short form, he said that he did not make the connection between the fall and the cause of injury – notwithstanding, it would seem, questions from medical staff and, indeed, a prolonged interview with the police. That position requires further examination in this judgment. He said that he had it in his mind that the mother's explanation of C hitting the left side of her head on her cot, which she crawled underneath to get some milk, was the most probable cause of her injury, and it clearly remained a matter of no little regret to him when he gave his evidence that the ottoman incident had not been mentioned to the mother at the time. There is every possibility that, had he mentioned it, matters would not have progressed this far and this case could have taken a totally different turn.
39. He was challenged in relation to that account and, if I may say so, challenged quite properly by Miss Christie for the local authority. He was challenged that as he had attended an NCT class, he should be aware that a possible indicator of a head injury in a child is vomiting, and he should have known that that was a possibility because he knew that C had fallen; but, of course, his case is that he did not notice any mark on C and had no reason at all to think that she had injured her head, ascribing, as he did, her vomiting and general presentation to being under-the-weather or to a bug which she had perhaps caught from another child. It may not be an unreasonable position, perhaps, to hold at that time but, in my judgment, not an attractive one, as the investigation at the hospital and with the police unfolded.
40. He was challenged on the nature and manner of C's crying but said that this crying did not alert him to the injury – rather, to the fact that she was unwell and to the shock of falling.
41. He was asked about his "light bulb moment" and it was explained that it was when he was at home, writing out the chronology, as advised by his solicitor, that he recalled the incident and had previously discounted it. As soon as he arrived at that conclusion, of course, it is a matter of record that he then told the mother, the police and social services.
42. He was challenged – and this goes to his credibility and my examination of his credibility – that he told the police in interview about C falling out of her pushchair the previous December, which, as it turned out, was a fairly inconsequential incident, but not, for some reason, about the ottoman incident. Once again, he repeated that he did not consider that it was relevant in his mind at that time. He was challenged more particularly that he had set out carefully in the police interview the layout of the sitting room, including the sofa and the ottoman and the fireplace made out of marble with corner protectors, and against that background was asked by the police whether there was any time within that previous week when C had been left alone for a minute or a second or two, when she had become upset and he was not really sure why she was upset and, nevertheless, did not mention the ottoman incident. In fact, it was suggested to him that this was the precise scenario, which he now suggests is the possible explanation for C's injury, but his position remained the same in cross-examination – namely, that he did not at the time consider this incident of itself to have been important and did not make the connection.
43. He said in his live evidence that he had been truthful and compliant with the authorities, throughout what I accept must have been an enormously difficult time for him and the mother. I found him to be a broadly credible witness. He is undoubtedly a devoted father. It is, however, troubling that he came to view the ottoman incident much later as a potential cause, despite the probing by staff at the hospital and intensive questioning by the police; and troubling, troubling in the extreme, that he did not tell his wife about this when she returned on 3^rd April. His case, that he did not see the significance until much later, cannot be excluded as totally fanciful, given the circumstances of C's presentation and the fact that I find him credible, but it remains a troubling issue – particularly as cross-examination developed, with the assistance of Mr Sampson for the guardian.
44. It was suggested in cross-examination that there were three possible scenarios in relation to his delay in giving his account. They are: firstly, that either he did not think to raise it, which is his case; or, secondly, he did not give an explanation at the time to his wife, as he had something to hide; or, thirdly, he was embarrassed to mention it because it was on 23^rd December when C fell out of her buggy that she was in her father's care. F quickly discounted the third option but options one and two led to some further investigation in cross-examination, bearing in mind his profile as a conscientious and safety-conscious, loving father. He described his decision to leave the room as a lapse of judgment but that when he left C, she seemed to be preoccupied with a toy and content.
45. It was suggested to him that this was utterly foreign to his normal practice as a safety-conscious father but he agreed that he had taken a calculated risk and thought that it was possible for him to leave the room and for C to be safe, although he accepts, with the benefit of hindsight, that it was not a sensible decision. He also accepts that he may well have under-estimated C's increased mobility and that she had progressed during his previous short absence of two weeks or so on business. However, in my judgment, there is little doubt, on his account, that C being found on the rug, him suspecting that she had fallen and her 10 minutes of crying thereafter, was a significant event and wholly out-of-the-ordinary. All this being known to the father by the time C presented at the hospital, not only is it incomprehensible that he did not tell the mother, it is also difficult to fathom why matters were not mentioned to the police when he was closely questioned and given every opportunity to recall the incident. In fact, it is significant that, to the police, he gave a very detailed account of the events of 3^rd April, to the extent of C being unwell, following what he then said was a bang on the head when underneath the cot, and her subsequent vomiting, and gives this detailed account, apart from the fall.
46. His explanation, which he has repeated numerously, both in live evidence in-chief and in cross-examination, was that he had discounted this episode but it remains an issue that is difficult to understand. When he told his wife what had happened in relation to the ottoman on or about 24^th May, she was upset. I recall her words – she was livid. He was able to accept in cross-examination that if such an incident had occurred when, for example, C had been at nursery, he would have expected to be told about it straight away and accepted that it was an unusual feature that he had not told his wife at the time, although both parties agreed that they would not necessarily tell one another of minor issues in relation to C and not every single issue was discussed; but, in my judgment, this fall – and, importantly, C's reaction to it – could not be considered a minor incident, it was a significant incident.
47. It is plain that when he came to give his evidence, he had an opportunity to reflect on the past with the benefit of hindsight and was quick to give assurances that if anything like this happened again, he would tell his wife and not leave his child alone.
48. At the conclusion of his evidence, I was left with this: on the one hand, he impressed me as a caring, thoughtful husband and father; but there remained a suspicion that all may not have been involved in relation to the incident on 3^rd April. However, it is no more than suspicion, which I throw into the mix in evaluating the truthfulness or otherwise of his account. Even allowing for that suspicion - and I come to self-direct myself in relation to suspicion later on - I found his account in relation to the fall from the ottoman to be credible. I find his reason for not telling his wife perplexing – frankly, I don't understand it, and it is not for me, as Mr Sampson reminded me, to speculate on why or why not that may be the case, or to superimpose on that factual background any view of my own.
49. M is C's mother and right from the start of her evidence, I have little doubt that she told the court the unvarnished truth. The court knows that C is a much-loved and much-wanted child, with the mother undergoing fertility treatment and giving up her career to care for her. It is difficult to imagine the emotional agony that she went through when C had to be accommodated. She describes C as a deeply loved and cherished child and wants her to return to her mother and father as soon as possible. She describes the father as very gentle and caring, and how he dotes on C. I am wholly convinced that this is true. Her evaluation of him is an important part of the evidence. In fact, so far as the mother is concerned, I look no further than her own mother's statement, when she told her mother, in relation to C, "I have got all I want in the world."
50. C is the centre of the mother's firmament and I have little doubt that she would do nothing to harm her or allow anyone else to do so. It is, therefore, understandable that when she was told by the father of his account on 24^th May, she was livid, angry and upset that he had not told her because, by this time, she had been through a month or so of proceedings, maybe slightly less, and the evening before, when she telephoned the police, she had been told that the matter would be referred to the Crown Prosecution Service.
51. She did not think – and does not think now – that the father's explanation for finally telling her at that time was significant but she also said that she thought that the father's explanation for not telling her was not a reasonable explanation, and she is right. There is little doubt, in my judgment, that had she been told about the fall, she might have thought that the vomiting was more sinister. On the morning of 11^th April, when she saw the swelling, she was surprised and she told the court, quite frankly – and it is a measure of her honesty – that she was not unduly worried at that stage. It was agreed that father would take C to the general practitioners and that she would do the packing, as the family were about to go away on holiday. It is clear that, as she was quite prepared to undertake some commonplace activity at the house, she was not worried particularly at that time. She had not seen the swelling before and I believe her. Of course, her concerns increased when she attended the second GP's appointment and subsequently, by the time of the admission to hospital, she was frantic with worry. She had seen the bruise on the side of C's head, in the same location as the subsequent swelling, the day before but did not attribute any significance to it and there is no reason at all, in my judgment, to think that she should have done.
52. The trip to hospital with C was particularly traumatic because when she was last in hospital, her father had died. She accepted that while in hospital, they were asked about possible scenarios and she searched for every explanation. It is considerably to her credit that, notwithstanding her agony at being separated from her daughter, she managed to contain her emotion for C's sake and she accepted that there was an unexplained injury and, thereby, C had to be accommodated; but she said that it felt very unfair, and I am sure it did, from her perspective.
53. She has, of course, been C's main carer since birth and she saw the injury as her responsibility, as she said that she should have known, although, I am bound to say, she takes too much on herself in relation to that view.
54. In relation to her anger at the father, she said that they had to work together to get C back and she has worked hard to understand and love her husband and put this incident into a box. Her goal – again, understandable, in all the circumstances – is to have her daughter back with them but she will feel some residual anger for a long time in relation to her husband's non-disclosure – thinking, quite rightly, that all this could have been avoided, had he been more transparent. She is absolutely right about that. She still thinks that there is a reason that he did not tell her and said that his actions prevented her from having her baby for the last seven months, but that she is adamant that F would not do anything to hurt C. They will, however, she said, get over it. He is, she said, a good man. It is an important evaluation for the court. She described herself as being more attuned to C's needs than the father. She did not think that the father was as good as she was in relation to safeguarding and may have under-estimated C's progression in relation to mobility in the two weeks that he would have been away.
55. She agreed that there was a possibility that when C was left on the ottoman, she would have tried to get off and follow her father by crawling towards him, as she is devoted to him. Had she been told of the fall, there is every reason to suppose that she would have made the connection. I should record, for the avoidance of doubt, that there is nothing in her conduct, either before these proceedings or during them, for which she should reproach herself. It is a tribute to the strength of the relationship between the parties that they are united today in their love and determination to care for C. When she said that she would do nothing to hurt C, I believe her; when she says that her husband would do nothing to intentionally hurt C, I believe her also. I should say also – again, for the purpose of completeness – that I have read the contact minutes and the picture that clearly emerges is of a devoted mother and father interacting totally appropriately with their child and, much more importantly, or just as importantly, with each other.
56. I now come to the relevant law. The first most important principle of law is that the burden of proof lies, at all times, with the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations that they make rests with them. The standard of proof is the balance of probabilities. As Baroness Hale said in Re: B (Children) (FC) [2008] UKHL 35 [2008] 2 FLR 141:

"I would…announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less."

57. If the evidence in respect of a particular finding sought by the local authority is equivocal, then the court cannot make a finding on the balance of probabilities, as the local authority has not discharged either the burden or the standard of proof (Re: B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam), [2004] 2 FLR 200). In Re: B (Children) [2008], Lord Hoffmann said:

"If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does not (sic) discharge it, a value of 1 is returned and the fact is treated as having happened."

58. The more serious or improbable the allegation, the greater the need for evidential 'cogency': Re: S-B (Children) (Care Proceedings: Standard of Proof), [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161 at paragraph [13] and as per Mostyn J in Lancashire County Council v R, W and N [2013] EWHC 3064 (Fam):

"Evidential cogency is obviously needed where the harmful event is disputed. However, where there is no dispute that it happened the improbability of the event is irrelevant."

59. Any findings made must be established on the evidence available to the court, including inferences that may be properly drawn from the evidence, and not on suspicion or speculation (Re: A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 per Munby LJ).
60. The court is reminded of the approach taken by Charles J in Lancashire County Council v D and E [2008] EWHC 832 (Fam), [2010] 2 FLR 196. In that case, the experts were unanimous in their conclusion that the overwhelmingly most likely cause of the child's injuries was as an inflicted non-accidental injury. However, having surveyed the 'wide canvas' and reached a favourable assessment of the parents, Charles J rejected the local authority's allegations in favour of an unlikely accidental explanation. He was critical of the approach taken by both the local authority and the guardian in that case:

"In my view at times the approach of both the local authority and the Guardian came perilously close to an approach which, on the basis of the expert medical evidence, proceeded on the basis that: 'R' was the victim of a shaking injury because the medical opinion was that this was the most likely cause of his injuries, and the relevant exercise was to consider whether, given their care, and thus the opportunity they had to injure 'R', the parents could show that they did not injure him."

61. When considering cases of suspected child abuse, the court must take into account all the evidence and, furthermore, consider each piece of the evidence in the context of other evidence. As Dame Elizabeth Butler-Sloss observed in Re: T [2004] 2 FLR 838 at paragraph [33]:

"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

62. The evidence of the parents is of the utmost importance and, to this end, it is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of the parents (Re: W (Non-Accidental Injury) [2003] FCR 346 and Re: JS (A Child) above).
63. Finally, perhaps save and except for the Lucas direction, which I shall come to shortly, there is no pseudo-burden or obligation cast on the respondents to come up with alternative explanations; and the authority for that proposition is Lancashire County Council v D and E and Lancashire County Council v R, W and N.
64. So far as a Lucas direction is concerned, I should say this: it is common for witnesses in these cases to tell lies in the course of the investigation and hearing. The court must be careful to bear in mind that a witness may lie for a number of 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 else. The authority for that proposition is R v Lucas [1981] QB 720. In this case, I have been asked to consider whether the father's explanation in relation to his late disclosure was a lie. It is, of course, a possible lie but I do not find that it was a lie – I find it to be incomprehensible and that is not the same thing. In other words, I do not understand why he did not say anything; but the fact that what was going through his mind at the time, in relation to discounting it, I do not find to be a lie.
65. I turn, now, to my findings and conclusion. I turn my attention to the local authority's schedule of findings, which have been carefully set out, I trust by Miss Christie - I think it was she who drafted them. I should say two things in relation to Miss Christie: one is that the documentation and the paperwork in this case have been immaculate and well-prepared in every respect, particularly the opening statement of the local authority, but also the allegations, as set out.
66. Allegations one to 13 are, of course, bare facts but they are accepted by both parties; they relate to C's injuries and they are uncontroversial. They do not, in any event, amount to any findings that would cross the threshold.
67. I need to address various key issues. I take 14 and 15 together: were C's injuries inflicted and were they caused by the mother or father? Neither the mother nor the father inflicted any injury on C to cause her fractured skull and it is probable, having reviewed all the evidence, that the father's account as to how C came by her fractured skull is true. So far as the mother is concerned, and for the avoidance of doubt, I attribute to her no element of blame in relation to any part of what has happened to C, and her conduct during the investigation and the consequent proceedings has been nothing short of exemplary.
68. In considering allegation 16 and in answer to the question, was it obvious that she was injured, I turn to the father's position and the fact that he concealed circumstances, which I have now found to have caused C's injuries, for a period of six weeks. The consequence of this is that, had he advanced his explanation early on, then it is more probable than not that this family would have been spared the pain of separation and the consequent harm to C.
69. I accept father's account that when he saw C on the rug near the ottoman, she appeared to be uninjured. It was, however, a significant event in terms of her distress, which he should have recalled subsequently – particularly when being effectively prompted to do so. Of equal seriousness, of course, he failed to disclose what had happened to the mother. As the mother herself said, she does not know of any reason why he should do this and, as I have already said, it is not for me to impose my own logic or rationale as to why he may have done this but I repeat: it is a matter about which I continue to be perplexed. Of course, I have in mind his explanation that he did not believe the incident to have been significant but that flies in the face of C's presentation and the significant bout of crying. The facts should have been, at the very least, reported to the mother and she, being more attuned perhaps, would have been able to make the link with the vomiting. It was a notable incident, well out of the 'norm', and the mother should have been told.
70. However – and to be clear – I do not draw from that that there was any attempt by the father to cover up a significant and sinister event - other than, of course, that he left the child unattended and she fell, and it could well be as simple as that. As Mr Sampson has so succinctly suggested in his closing submissions to the court, the father misled by omission.
71. Should medical attention have been sought? C presented perfectly normally to third parties, such as the maternal grandmother, over the following few days and, other than her uncharacteristic vomiting from time to time, there was no reason to suspect that she had a serious injury and I am satisfied that both parents acted appropriately on the Friday by making an appointment with the general practitioner.
72. Do the parents know more? I am clearly troubled, as, indeed, is the mother, in relation to the father's reasoning behind his failure to disclose the incident, and I go no further than that. It may well have been poor judgment to leave C unattended with the benefit of hindsight, father clearly under-estimating C's improved mobility and, perhaps, the desire to join him in the other room, which prompted a move off the ottoman by her and subsequent fall; but it is even worse judgment not to inform the mother. Centrally – and significantly – once C's condition had been ascertained, the incident, as we know, was not disclosed and everyone was misled by this omission.
73. In my judgment, this was nothing more than an unfortunate and tragic accident. I am not satisfied, to the requisite standard, that the local authority have established and proved its case in relation to a failure to protect. The consequences of harm for C are linked to father omitting to disclose the incident earlier but I am not satisfied that, in any event, such a failure amounts to a finding so far as threshold is concerned.
74. It is essential, in my judgment, that normality be restored to this close family. The parents' commitment to their daughter is beyond question and there are no other child-centred concerns on the radar of the local authority. Continuing court proceedings and further involvement by professionals would cause more harm than good to this family. It needs to be restored as quickly as possible. Even if threshold had been crossed in this case – and I am not satisfied that it has – then it is difficult to imagine what public law orders would be necessary in this case to promote C's welfare. The fact that the mother is not entirely satisfied with the father's reason for late disclosure is, in my judgment, a powerful protective force and C's welfare interests are best served by this process being brought to an end and for C to be restored to the care of her devoted parents. I say that I have reached this view after reading all the papers and hearing live evidence from the parents, the jointly appointed expert and the named nurse. That concludes the judgment.
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