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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) >> A Local Authority v X, A Mother & Ors [2015] EWFC B114 (09 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B114.html Cite as: [2015] EWFC B114

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IN THE FAMILY COURT SITTING IN LEEDS
IN THE MATTER OF THE CHILDREN ACT 1989

		9 July 2015

Introduction

1. In these proceedings I am concerned for three children, C, D and E. The mother of all the children is X, the father of C is Y and the father of D and E is Z. Both fathers have parental responsibility for their children.
2. The boys currently all live together in foster care, having been removed under police protection orders on 9 February 2015. The local authority issued an application for care orders on 11 February and the case came before me first on 19 February. On that day the parents accepted that interim care orders needed to be made and the case was allocated to another judge who case managed it until it was reallocated to me for final hearing. During the proceedings there have been assessments of various family members, including a positive assessment of a paternal aunt and her husband as potential carers for C.
3. The case came before me on 26 June for a final review prior to this hearing. At that point the social worker and the guardian's final evidence had been filed. The professionals agreed that C should not return to the care of his mother and Z, and that his own father could not care for him either. There was however a difference of opinion as to the best way forward in relation to the younger two boys, and I shall return to that.
4. The matters I have had to deal with in this hearing have included determining factual matters relating to injuries which C has suffered. On two occasions C has had facial bruises, as well as a hand injury, which he says were caused by Z. The parents originally denied that Z caused those injuries and said both were caused accidentally. The mother's position changed slightly in the course of her evidence as will be seen later in this judgment.
5. The local authority has been involved with this family since January 2012 following receipt of a referral from the Children's Centre. C had been hit on the back of his hands and his mother had admitted to hitting him after he would not sit on the naughty step. He then had another injury in April 2012 when five small bruises were seen on his buttock. X admitted later having grabbed C and causing this bruising. An assessment was undertaken and the local authority continued to work with the family until May 2013.
6. On 17 November 2014 another referral was received from C's school in relation to bruising to his face, which C said had been caused by his step-father, Z. A paediatric medical was undertaken that day by a paediatrician who concluded that the injury to C's face was non-accidental and consistent with a slap mark. Z was asked to leave the family home while a further assessment was carried out, concluding on 20 January 2015. On 4 December 2014 all three children were made subject to Child Protection Plans under the categories of physical and emotional harm. The outcome of the assessment was a recommendation for an intense support package and that Z be allowed to return to the family home which he did on 26 January.
7. Then, on 9 February 2015, C presented at school with a bruise to his right cheek and disclosed that Z had caused the injury. A paediatric medical was undertaken by a paediatrician. She was concerned at what she saw as an inconsistent account of how the injury had occurred, the history of previous presentations, lack of medical attention for an infected ear and finger, and regarding delayed speech and language skills.
8. Z was asked to leave the family home again but he refused and so the police intervened and using their powers removed all three children into foster care. The parents would not agree to the children being voluntarily accommodated by the local authority after those police powers expired and so the local authority applied for interim care orders. Those orders were made on 12 February and have remained in place ever since, the boys being placed together in foster care.
9. Assessments have been carried out of the mother, each of the fathers, and family members. The assessments of the parents so far have been negative but at the last review it became clear that the guardian took a different view from the local authority in terms of possible future plans for D and E. It was agreed that this hearing should proceed to determine factual matters and to plan for C's future placement, but that there should then be further assessment of the mother and Z in terms of D and E. Since then the mother has considered her situation very carefully and she has made the very difficult decision to accept that the best thing for C would be for him to go to live with his aunt and uncle, given his strongly expressed views that he does not want to live with her and Z.

The legal framework

10. Before I turn to the allegations of significant harm relating to the children I should set out the legal framework within which I have approached this hearing. When considering these I am conscious that it is for the local authority who brings this case to prove the allegations it invites me to make. The appropriate standard of proof I must apply is the balance of probabilities. The more improbable the event, the stronger must be the evidence that it did occur before it occurrence will be established. This does not mean though that where serious allegations are in issue the standard of proof required is higher. All it means is that the inherent probability or improbability of an event needs to be taken into account when weighing the probabilities in deciding whether, on balance, the event occurred. (Re H and Others [1996] AC 563)
11. I also remind myself that neither the seriousness of the allegations nor the seriousness of the consequences makes any difference. It was said in Re B [2008] UKHL 35 by Baroness Hale : "The inherent improbabilities are simply something to be taken into account, where relevant, in deciding where the truth lies….. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what happened to the child, it ceases to be improbable. Someone looking after the child must have done. The simple balance of probabilities test should be applied."
12. I have reminded myself whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. As was said in Re JS [2012] EWHC 1370 (Fam) the roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence. Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.
13. The evidence of the parents and any other carers is of course of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability as part of the fact finding task. I have reminded myself that it is not uncommon 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 (R v Lucas [1981] QB 720).

Evidence and Witnesses

14. I have read the bundle of papers provided to me in this matter, including statements and assessments by the children's social worker; the person at C's school designated for child protection; the children's foster carer; Y's mother; the children's guardian; and all of the parents. I also read medical reports from a paediatrician who has examined C, and from a psychologist who assessed the mother. I have heard oral evidence from the social worker, the guardian, the paternal grandmother, the mother and Z.
15. This is a case where the credibility of witnesses has been of central importance and at several points during the hearing I have reminded myself of the direction from the case of R v Lucas. Here that has been particularly relevant when considering the evidence of the mother, the father and the accounts given by C. I am going to look at the question of credibility first before turning to the findings sought by the local authority.

C

16. Looking at the injuries C received in November 2014 and February 2015, C has always said those were caused by Z. Looking first at the injuries seen on 17 November, in respect of the red mark on his left thumb he told his key worker that morning "Daddy did it. He hit me. Push me off bed." [B38] When he went into class with Z he straight away showed the mark on his hands to his teacher saying "Daddy hurt me". She also noticed the bruising on his face and when she asked Z how it happened he said "he was jumping on his bed and fell". Later in the morning she asked C how he got his bruises and he said "my dad hit me, he hit me on the head". [B40] The child protection teacher spoke to him slightly later that morning and asked him what had happened to his face, having noticed the bruises. He replied : "Daddy smacked me." She asked what his daddy was called and he said "Z". [B43] The bruises the child protection teacher observed were a bruise and bump to his forehead, a bruise to his left cheek and a bruise to the left side of his nose.
17. Later that day C was seen by the paediatrician. She records in her report that in respect of the injury to his farm C had said in clinic that day that his father did it and that he hit him with a stick.
18. C's social worker went to see him at school on 3 December, so just over two weeks later. This is her record of what he said :

"C seen alone in school, craft activity. C was chatty in the session and made a number of pictures. I asked who he would give his pictures to and he said "X". C said it would make his Mum happy. C repeated his disclosure that Z has hurt him. C said "I went to the hospital with Nanny B because Z hurt me". I asked C how Z hurt him and he said that he punched his nose, C demonstrated this by putting a closed fist to his nose. C said that he was going to die. C said he was crying in his bedroom after it happened. C said he likes it best when Z stays at …... C also said he likes it best with Grandma G." [B47]

19. Another reference to something C said came from his mother, as she says he retracted his allegations. X went into school after the medical examination C had and asked to speak to the child protection teacher. She records in her statement : "She told me that C had woken her and said "Mummy I lied, daddy didn't hit me". She told me that she had a video of C saying this on her phone and asked whether I wanted to see it. I said that I did not want to see it but that I would let Social Care know that she had it." [B35] The social worker said she too was aware of this and indeed she had seen the video. She said the mother said the phone just happened to be on record and C started to say that his father had not hurt him. The social worker said that the mother was in fact asking him questions and she was extremely concerned about such matters being raised in this way with C.
20. I then have what C said in relation to the injuries in February. On the morning of 9 February he came into school with a bruise on his cheek which his key worker noticed. She asked him how he hurt his cheek and he said "daddy did it, punch me to get out of bed". [B44] The child protection teacher spoke to C later on and asked how the bruise happened. This is what she says in her statement : "When I asked how this had happened he said "don't know". I asked if he wanted to have a look in the mirror, to which he replied "no". I then asked if I should ring his mum to see if she could tell me how it had happened, to which he replied "yes". I then said "or maybe K", to which he said "You can't ask K about me", and when I asked why not, he said "you can't". C appeared anxious throughout our conversation so I did not take this any further." [B36]
21. C was seen later that day by the paediatrician, in the company of his stepfather. She said in her report : "When asked directly how this happened, C was watchful and did not say anything as to how this has happened." [C35] she observed that he seemed scared when it was suggested that his stepfather should accompany him into the physical examination.
22. His social worker also had a conversation with C whilst travelling to contact on 10 February 2015, when C said he did not want to go to contact with Z. In her statement she says : "C asked on the way if the SWs would stay with him whilst he saw Mummy, C asked if the SWs would come and talk to Mummy with him and he was reassured that they would. C commented that he did not want to see Daddy, when asked why he did not respond. C was reassured that SWs would be staying with him in contact and appeared to accept this." [B48]
23. Other disclosures have been made by C to his foster carer. In March 2015 the police came to her home to assess whether C should undergo an ABE interview. Immediately after the police left C sat down with her daughter. Her daughter asked C why the police had come and his response was "Cos Daddy Z smacked me". [B70] In her statement the foster carer also recalled a conversation in May when C said that when he is naughty daddy Z smacks him and sends him to bed. Also in that month C told his foster carer he wanted to live with her. When she asked why he did not want to go home he said "Cos Daddy Z smacks me". Finally C spoke of his father putting him in a hot bath which he did not like and made him cry.
24. I must make reference to something else which C has said which is recorded in a contact note for 31 March. C was seen to have a bruise on his rib cage and a scrape on his hip. The contact supervisor asked C how he got the mark and C replied that his mum and dad had done it. What is accepted is that clearly his parents had not caused the injury and in fact he bumped himself at school, so on this occasion C clearly was not telling the truth.
25. Finally, what everyone accepts in this case is that C is consistently saying he does not want to go home to live with his mother and Z. That is not in issue and indeed his mother has sadly accepted that is his wish and that he should therefore go and live with his aunt. Of that the guardian says : "He is clear in his view is that he does not wish to return home and sought confirmation that his remaining in his foster placement. In my experience this is somewhat unusual for such a young child to say." [C190] We know from his foster carer that he seeks reassurance from her that he is returning to her after contact and at times he does not wish to go to contact. It does seem from the notes I have read though he has been happier in contact in recent months.
26. Mr Howard in his submissions on behalf of Z said that a question mark had to be raised about C's credibility. No issue was taken with the way questions were asked of him which were non-leading but he points out that the actual things said by C are not precisely the same each time he says them. He of course also draws the Court's attention to what C said in contact on 31 March when we know he was not telling the truth.
27. I have considered carefully what weight I should attach to what C has said. Mr Howard suggested I might find assistance in the FJC Guidelines regarding children giving live evidence. Whilst I accept that this is a young child I have no reason to doubt that he has a normal understanding of what the difference is between telling the truth and telling lies. Nobody has done that piece of work with him because he has not undergone an ABE interview but that does not mean it has been assessed that he is not truthful. The father described him as a fantasist but could only give one example of him saying D bit him when he was very young and had no teeth. School staff make no suggestion that he is an untruthful child and the social worker had no reason to doubt his grasp of the truth.
28. When considering C's credibility I have taken into account that these are serious allegations and key to this case and the fact that there has been no ABE interview so no one has put inconsistencies to him. I remind myself that C on occasions volunteered to trusted school staff his explanation of injuries, largely spontaneously in November, and he did this in front of the person he was accusing which would not make sense if this was a deliberate lie. Z seems to suggest C is evil and malevolent but we are talking about a five-year-old boy. I also thought it interesting that C says he was pushed off his bed in November and the father gave the explanation that he must have fallen off his bed, an interesting correlation of explanation.
29. Overall I am satisfied that what C has said in respect of what happened in November and February is credible. I say that knowing that he did not tell the truth about an injury he had in March, a time not long after he was removed from the care of his parents and when he seems to been very troubled about going back. That in itself, reminding myself of the Lucas direction, does not stop me believing C on all the other occasions, particularly against the extremely worrying backdrop of a young child being so extremely clear he does not want to go back to live at home, a position which I agree is very unusual for such a young child.

X

30. I watched X give evidence carefully, having read the psychological assessment of her particular learning difficulty. From that assessment I know she has particular problems with verbal reasoning, being placed in the Borderline to Learning Difficulty category of ability. She also had a low score for the Processing Speed Index so needs time to absorb information and has difficulty anticipating and predicting consequences.
31. The key thing that came out for me from her evidence was that she was willing to lie in the witness box. Under cross-examination from Ms Anning she found herself caught out in a mass of lies. In respect of the injuries C had in November she started off giving clear evidence that those injuries she believed had been caused by a neighbour. She went into detail about why she thought that and why as a result she knew Z had not hurt him. Eventually after she had tied herself up in knots she admitted she was lying and that this woman had done nothing. When she started with her story again she said she had gone out to the shop for an hour with D and when she came back Z told her that C had been hurt running up and down on the bed. She said she did not look to see if he had an injury and the first she knew of it was when the social worker showed her that. When she was asked what she really thought had happened to C's face in November given what C had said her response was : "I don't know…. I have no reason not to believe him…. I believe Z hit him." She went on to say that children do not lie. That was the first time she has ever said that. She said she had not told her partner she believed he had hurt C and she was scared to tell the social worker she believed it.
32. Her dishonesty in the witness box is something I cannot overlook when considering her evidence globally. Equally though, applying the Lucas direction, I have been careful when considering her evidence in respect of the injuries to look at what she has said and in the context in which she has said it.

Z

33. Z did not impress me as a witness. He has no cognitive impairments and I found him a poor historian. There were very many times during his evidence when it were extremely long pauses before he gave an answer and I must say that overall my impression was he was often trying to work out the answer to give. Accounts of injuries came out which had not been said before, for example the bruise on C's thumb being caused by him catching it on a model farm, which I found utterly incredible. I shall address his evidence in more detail later when looking at the findings but in general terms where his evidence conflicts with another witness's I would be hard pressed to accept his version of events.

Findings

PHYSICAL INJURIES

34. I turn now to the findings sought by the local authority. The first findings sought relate to C's physical injuries. Those are accepted by the parents and I therefore make the findings as sought. They are

a. On 17/11/14 C was suffering from facial bruising over his left cheek bone and extending down his left cheek. The bruising measured 3cm and also had the appearance of some horizontal lines across the bruise.

b. On 17/11/14 C was suffering from a cut and swelling to his left thumb on the distal interphalangeal joint, the thumb was red, swollen and tender.

c. On 09/02/15 C was suffering a bruise over his right cheek bone which was tender, swollen and painful.

35. I next turn to who caused C's injuries. The local authority invites me to find that the injuries to C's face in both November and February and the injury to his thumb in November were caused by Z. The paediatrician in her report in respect of these injuries said : "He claimed that he was hit on his right thumb with a stick by his father when his mother went out into (town) on Saturday (15^th November 2014) afternoon. He also had bruises on his left cheek that had the appearance of horizontal lines going through this bruise, and on reviewing the pictures; it is felt that this could be consistent with a slap mark. I am concerned that this bruise extends onto the soft parts of the cheek and it (sic) would be unlikely to have sustained this by rolling off his bed. Bruises tend to be on bony prominences and those that are on soft tissue areas are more likely to be associated with physical abuse….. The bruises that C has are consistent with his disclosure that he has given to a number of professionals on numerous occasions." [C5]
36. In respect of the injuries in November prior to the hearing beginning both parents maintained these were accidental but the mother's position of course changed in the course of the hearing. In discussions with the social worker when being assessed she spoke of her belief that a neighbour caused them and that of course was her original position in court. During her evidence though she acknowledged that this was not true. She said she had been out with D for an hour to shop. When she came back Z told her C had been running up and down on the bed. She admitted she had not looked to see if he was hurt at the time and the first time she noticed the bruises was when the social workers showed her. Rather puzzlingly in response to questions from her own advocate she said it would be unusual for C to be running up and down on the bed and it was not what she would have expected him to be doing. When she went to the medical she was aware C had told his teachers his father did it.
37. Z was clear that he had not caused those injuries to C. He said while the mother was out he had remained downstairs with E lying on his chest. For the first time he explained he had not in fact seen C running or bouncing on his bed but merely heard a bang and assumed that was what it was. He described the sound as being like a sack of potatoes being dropped on the floor. He said he shouted up to see if C was alright and C said he was fine. He shouted again to see if he was still alright and C said he was fine. He did not go upstairs he said until after the mother came back when he did he saw C had had his cars out playing. He was certain there was no cry from C. Ms Anning put to him that he had told school staff he was jumping on his bed and fell and he had never said that was just a guess. This is one of the sections of cross-examination Z seem to struggle with particularly. When he was asked why he had not told the social worker in the assessment that he did not actually see it he simply said the question was not brought up. He said he had checked C when he had bathed him on Sunday and there were no injuries and he saw nothing on Monday morning, despite the fact that his teacher saw it as soon as he arrived at school.
38. In respect of the bruise on his thumb, for the first time in the witness box Z gave the explanation that C caught it on a model farm when he was playing in his bedroom. Z said he had got it out for him earlier in the day but later on a piece of wood had come off with I think a nail in it and that sharp bit had hurt him. Z was simply unable to answer the question as to why he was saying it for the first time in the witness box. Ms Anning put to him that when C told his teacher how he was hurt it defied belief that the explanation would not be given then, for which Z had no answer
39. When Z was asked about whether the neighbour could have caused the injuries he still said she might have. He denied having spoken with the mother to put this explanation forward. Even when both parents mentioned it at the child protection conference on 4 December he denied that they had talked about it at all prior to that meeting.
40. I am afraid I found Z's evidence in respect of this injury entirely unbelievable and his discomfiture in the witness box said it all. These injuries were not caused by C rolling off his bed when playing; I remind myself that the paediatrician said the cheek bruise was not in the right place to be accidental. I am entirely satisfied that whilst the mother was out Z assaulted C and caused both of his injuries.
41. Turning then to the injury in February, both parents give the explanation that this injury was caused in an incident on a bus. X stood by that explanation in the witness box even after admitting that she had been lying about the November injury. She was clear that she had witnessed what had happened and it was for that reason she knew Z had not caused this injury. C of course had said his father had punched him on the cheek.
42. The paediatrician again examined C on this occasion. She describes the bruise on his right cheek bone as being a significant injury. She said : "This was very tender, swollen and painful on examination, and C was obviously distressed when this was being examined." [C34] She went on to say "Z said that he did not cry out but this is a very swollen and tender injury to his face and would have caused significant distress at the time it occurred. The injury is consistent with a blow to the right cheek bone with a hard object." [C35] Later on she was asked to look at the photograph of the bar on the bus the parents said C had hit and she said it was conceivable it could have happened with a direct blow to such a bar. She repeated that she was "sure" this would have been an injury that would have caused significant distress at the time. Later on a further question was put to the paediatrician about that injury and the distress C would have exhibited, given that Z had described him as being more shocked than anything else. The doctor's response was : "I would have expected him to cry and require immediate comfort from his carer. This was an injury that was bruised, tender and swollen on the day that I saw him which was 48 hours after the event. Any child that was used to being comforted when in pain would have demonstrated a level of distress to his carer/parent." [C184]
43. The explanation given by the parents is the same in all but one or two details. It is agreed that on Saturday 7 February the family went on the bus into (town) to get C's eyes tested and whilst on the bus an incident happened. In their statements the mother said this happened on the return journey and the father on the outward journey, although he had changed this account by the middle of March as I have seen an e-mail from his solicitor to the local authority saying he had made an error and it was on the return journey.
44. The parents describe a child running out in front of the bus and the bus stopping suddenly. The mother said C was standing when the injury happened, as a disabled person had got on; the father said he was kneeling on a seat. C was thrown forwards and bumped his face on a pole on the bus. In her statement the mother said she checked he was okay and he seemed fine and she was clear he did not cry. She said she did not notice the bruise until the morning of Monday 9 February although in her oral evidence she said she saw a red mark on Sunday. The father said he did not see what happened as he was dealing with D in his pushchair at the time. He heard the mother tell C to sit down and looked up. He thought C made a complaint he had banged the side of his face and the mother asked if he was alright and rubbed his face. He too was clear that C did not cry and was more shocked than anything else.
45. The mother said that on the Monday morning she was worried about the bruise and took a photograph of it. In her evidence when she was asked by Ms Anning why she took the photo, after a long silence she said "so it doesn't look as if it's a punch mark". She admitted she was afraid the social worker might take C away and was worried someone might think the father had done it. We know that she spoke to the social worker that morning about housing and did not tell the social worker C had a bruise or what had happened. She said in her oral evidence she and the father had agreed that he would tell the school when he took C in. Earlier in her evidence she had said that she had gone in and told the school before admitting that was a lie. She had not checked with the father when he returned that he had told the school and again in her oral evidence said the fact he had not worried her. She still believed though the injury had been caused on the bus.
46. Z was adamant he had not seen the bruise before Monday but his own statement talked about him having taken a photo shortly afterwards. Ms Anning asked a series of questions to try to elicit why this was in his statement, and indeed the photo was exhibited, because he said in his oral evidence the mother took the photo and he did not know when. He eventually said the sentence in his statement was not truthful. He said the photo had been taken to show the social worker and he accepted they knew they had to report injuries to her under the child protection plan. He could not say why they had not told the social worker that morning, except for the fact they were busy with the children. He initially said the mother was lying when she said he was meant to have told the school, and he accepted he had not. Later on in his oral evidence he actually said that the mother was telling the truth about this. Ms Anning put to him it was odd for him not to have told the school about the bus incident, given what happened in November and the need therefore to give an explanation for the bruise. All Z said was that C ran straight in to his classroom while Z needed to get home.
47. Whilst the discrepancy in details between the evidence of the parents troubles me, it is just about possible that C bumped himself on a bus journey. The only thing that inclines me to think such an incident might have happened if the fact that the mother, having retreated from her position regarding the November injury to one of accepting her son was telling the truth, would not be shaken in respect of February. Against that are the inconsistencies in the detail and the fact that they took some time to be able to give any precision in terms of what bus they were on and when, which seems rather more indicative of a story which had to be put together after the event. In any event, I am entirely satisfied the injury did not happen in the way described. I have looked at the photos and read the description by the paediatrician of the swollen and tender bruise. He was still distressed when he was examined on Monday, two days after this bus journey. What both parents describe happening on the bus simply would not have produced the significant injury that was seen on the Monday.
48. So, if anything happened to C on a bus journey it was not the cause of his injury. I am then left with the question of how it was caused. C said his father hit him in the face and the paediatrician said it was consistent with that explanation. Z denies that. Given my view of the respective honesty of C and Z, I find that the injury was caused by Z.
49. C has therefore suffered two injuries to his head which were significant. Given the unchallenged evidence of the paediatrician that C would have cried when he received the injury seen on 9 February, I am satisfied Z would have been aware that he had caused significant injury and pain to C. Looking at the nature of the injuries C suffered in November, I am satisfied that on that occasion C would have cried and Z would have been aware he had caused significant injury and pain to C

EMOTIONAL HARM

50. There is also the question of the emotional impact of his experiences on C. Clearly he is going to have to process the fact that the person who was caring for him injured him and I am quite satisfied that that in itself could have caused emotional harm.
51. Separate from that is the question of language used to C and the impact of that on him. I heard direct evidence in this regard from C's paternal grandmother. Last December running into the early part of this year she supervised contact between Z and the children within the family home. She explained she was in the house from 8am to 6pm each day. It was her evidence that during that time she heard Z speak abusively to C, using words such as "cunt", "bastard" and "twat". She said he she heard him say these words a few times and he also said on more than one occasion in an aggressive manner to C "Don't look at me like that, you cunt".
52. Also within the local authority's evidence were assessments of two members of Z's family, her sister and his mother. Both of them in their assessments made reference to language used to the children in the family home. The aunt described having witnessed the mother and Z speaking aggressively to the children including swearing at them. The grandmother spoke of the language and tone the couple used with all the children, including swearing and speaking to them in an aggressive manner. The local authority tried to obtain a statement from the grandmother but she was not willing to do this and in respect of her evidence and the aunt's I have had to remind myself that there has not been opportunity to test this in cross-examination. Their evidence though very much bore out what the paternal grandmother had to say and she and they of course are not people who know each other.
53. On the first day of this hearing, despite having always denied it in absolute terms, Z filed a statement in which for the first time he admitted using bad language to C. He said on an occasion in the summer of 2014 C had pushed D out of the way, causing him to fall to the floor. Z said he got up and said to C "What did you do that for, you little twat". He then pushed C softly with the flat of his right-hand telling him not to push his brother. In his statement he acknowledged he should not have used that word but it was said in the heat of the moment.
54. Z also accepted he may have called C a "twat" in front of the paternal grandmother. He claimed only to have recently remembered this, as well as the incident I have referred to in the previous paragraph. Later in response to a question from Ms Anning he said he did not think it was relevant at the time. In his oral evidence he said he called C that because C was giving him an evil look, as if he was a piece of dirt on the floor. I have to say at this juncture at this point in the evidence I had to remind myself we were talking about a five year old child. X too for the first time admitted having heard Z call C that, admitting that in response to a question from Ms Anning having just denied it to Ms Russell. She said after the paternal grandmother went she told him he should not have done it. She also said she told him "because he was pushing C. That was not a nice way to treat C."
55. In respect of Z I have no doubt that these were not the only occasions when such language was used. I think it has been something fairly usual for C to experience. I found the paternal grandmother an entirely honest witness and I do not think she had any reason to lie. I think Z made his concession when he realised she really was going to come to court to give evidence. In his oral evidence he talked about the way C looked at him, in an evil manner, and that rang true with the words the paternal grandmother said he had used to C. What she says is borne out by the evidence from Z's family but it is particularly the paternal grandmother's evidence upon which I rely when making a finding that Z has spoken to C in negative, aggressive and offensive terms. Such language used by a person in the role of father would have had an emotional effect on C and caused him harm.
56. The local authority however invites me to find that both parents have spoken to C in negative, aggressive and offensive terms. The accusations regarding X only come from Z's family members. The paternal grandmother's evidence was that she had heard Z be abusive to C – there was no mention at all of X. She I remind myself had far more involvement with this family, Z's family living some distance away. The paternal grandmother supervised contact for over two weeks in December and the same sort of period in January and she was in the home for ten hours a day. She at no time has suggested that the mother used abusive language while she was present. My impression of the mother in the witness box was of a quiet and timid person and I would not have thought such words were naturally one she would use. Given that the accusations come in general terms from Z's family members, which evidence could not be tested in cross-examination, and given that the paternal grandmother did not accuse the mother of such language, I do not make this finding in respect of her.
57. Under the heading of emotional harm there is one other matter I have considered although I was not invited to make findings in respect of it, namely the video the mother took of C allegedly retracting his allegations. She raised this with both the child protection teacher and the social worker, claiming the phone just happened to be on record at the time. This simply does not make sense as the mother says now she accepts her son was telling the truth. I find it very troubling that she made this video as it seems to me likely that she was trying to gather evidence to exonerate Z. I do not feel I heard enough evidence about this to make a specific finding but I flag it up.

FUTURE HARM

58. The local authority asked me to make a finding which is agreed by the parents. The finding is couched in these terms: 'Z denies that he has hit C or behaved in an aggressive way towards him. This denial prevents any open discussion as to the reasons behind the assaults and aggression or ways in which his parenting may be improved to protect the children from such assaults in the future.' Given that the finding is not disputed by the parents I make the finding, although I obviously hope that moving forward from this point the parents are going to be able to have honest discussions with the local authority.
59. Findings are then sought related to the mother's ability to protect the children. The local authority says she is unable to protect the children from the risks presented by Z because she prioritises her relationship with him above the children's need for protection, she does not accept that he presents any risk of physical harm to the children, and she believes that C is lying when he says that Z has assaulted him.
60. Certainly in November when the parents agreed Z would move out of the family home, the mother was prioritising the children over him. She was the sole parent to the children for a couple of months before he moved back home and there is no suggestion she sought his return sooner than the local authority agreed. However in February she allowed the three boys to be removed to the home of a stranger rather than asking Z to leave again. Whatever her belief at that time as to how the injury had been caused, she ultimately allowed the boys to be taken to a strange situation rather than asking him to move out. I am satisfied that that showed her putting Z first, prioritising him over them.
61. In terms of her belief, the situation seems to have changed slightly given her evidence in court. What she said in court was that she did think he had harmed her son in November and in respect of that injury she did not think C was lying. She does seem to still believe it however in terms of the February injury. Given her evidence in court she does accept that Z harmed C but her behaviour subsequently seems to suggest she does not accept any future risk of harm. She also remains of the view that C is lying in relation to the February injury. Those findings are therefore made out.
62. Additionally I make a finding, entirely based on the mother's own evidence, that X believed C when he said Z assaulted him in November 2014 but concealed that and instead falsely and deliberately accused another person of causing the injury, which determination to lie to protect Z is also relevant to her ability to protect her children.
63. There is then the question of the knowledge of the parents as to how C's injury was caused. Given the finding I have made as to Z having caused this injury, the unchallenged evidence of the paediatrician as to how C would have responded, and the fact that the parents had joint care of C for the whole of the weekend of 6 – 9 February, they must both know how the injury was caused. The findings sought by the local authority in this regard are made out. The injury to C's face seen by the paediatrician on 9 February was not caused during a fall on a bus on 7 February but was caused between C finishing school on 6 February and attending school on the morning of 9 February. The injury was inflicted by Z whilst C was in the joint care of Z and X. X knows the injury was inflicted by Z and when he did it. Neither X nor Z are providing a truthful account of how C received the bruise to his face.
64. The local authority next seeks a finding that the mother has failed to show an understanding of the significance of causing physical injury to a child despite having caused injury to C herself on two occasions in 2012, having caused an injury to the back of his hand by smacking him and also bruising to his buttocks by grabbing him. On both of those occasions the mother seems to have initially denied causing the injury but then shortly after admitted it, the first having been caused when she lost it with him because he would not sit on naughty step and the second when she grabbed him when he was by a road. The local authority did significant work with the mother at that time and ultimately C remained in her care.
65. Two years later her son received another injury, one she knew she had not caused and one which he said his stepfather had caused. We now know she believed her son but did not let the local authority know this. She knew Z was abusive to her son as certainly the paternal grandmother raised this with the mother on the day she had complained about Z and X agreed it had happened and he should not do it. And a couple of weeks after Z moved back into the home a further injury happened and on this occasion she did not believe her son and allowed him and his brothers to be removed from her care.
66. The finding the local authority seeks is that she has not shown that she understands the significance of causing physical injury to a child. In the papers I have seen she accepts she did harm her son and she certainly engaged well with the work after those incidents. However I do not have a sense she understands the significance of what has happened to her son since. Nothing tells me that she sees the implication for her son of having been treated like this by his mother and then by the man acting as his father figure. Again I hope this is something that will change in the future but for now I find that X has failed to show an understanding of the significance of causing physical injury to a child despite having caused injury to C herself on two occasions. Likewise I make the findings sought that despite an intense package of support from Social Care and parenting classes, C has suffered further injury, inflicted by Z, and X has been unable to protect C from that injury.
67. Finally the local authority seeks a specific finding as to the likelihood of future significant physical and emotional harm being caused to the children if they were in the care of X and Z. The local authority says that the children are all likely to suffer significant physical and emotional harm in the care of X and Z for a variety of reasons. First the social worker says there is a significant risk that Z and/or X will inflict injury on the children. The mother accepts she has twice caused bruises to C and I have found that Z has twice caused significant injury to C. Neither parent in this case has tried to say that C has been treated any differently to the two little boys, indeed Z was a great pains to point out that he has treated C exactly the same as his birth sons. I cannot therefore distinguish the risk of future physical injury to the boys. Given that I have no understanding as to why C has been injured, it is logical that he and his brothers are at this time at risk of future physical harm from their parents.
68. The authority then says that there is a significant risk that Z and/or X will cause emotional harm to the children by physically and verbally aggressive behaviour toward them. Given the past harm both parents have caused to C, and given that I cannot distinguish between the boys, there has to be a risk of such harm again in the future.
69. The local authority says another risk factor is X and Z's inability to change their parenting methods to ensure that they do not cause injury or emotional harm to the children, likewise X' inability to accept that Z is a physical and emotional risk to the children. I agree that both of those risk factors exist for all of the children and not just for C. The findings are therefore made out.

Conclusion

70. I hope in this judgment I have been clear as to the findings I am making and the basis for that. If any advocate feels there is something I have not addressed I would ask them to make me aware of it as a matter of urgency as well as drawing my attention to any typographical errors.
71. May I also take this opportunity to thank all the advocates, particularly Ms Anning, for their thorough preparation for and conduct of this hearing.
Findings made in respect of Threshold 9 July 2015

Physical injuries to C

a. On 17/11/14 C was suffering from facial bruising over his left cheek bone and extending down his left cheek. The bruising measured 3cm and also had the appearance of some horizontal lines across the bruise.

b. On 17/11/14 C was suffering from a cut and swelling to his left thumb on the distal interphalangeal joint, the thumb was red, swollen and tender.

c. On 09/02/15 C was suffering a bruise over his right cheek bone which was tender, swollen and painful.

d. Each of the injuries at a. to c. were inflicted by Z.

e. C suffered two injuries to his head which were significant.

Emotional harm

f. When C suffered the injury to his right cheek seen on 9/2/15 he would have demonstrated significant distress.

g. When Z inflicted each of the injuries to C he would have been aware he had caused significant injury and pain to C.

h. At the time that the injuries were inflicted to C, Z was his care-giver and that will have caused C significant emotional harm.

i. Z has spoken to C in negative, aggressive and offensive terms. Such language used by a person in the role of father would have had an emotional effect on C and caused him harm.

Future harm

j. X is unable to protect C, D and E from the risks presented by Z because;

a. X has at times prioritised her relationship with Z above the children's needs;

b. X does not accept that Z presents any risk of physical harm to the children;

c. X believed C when he said Z assaulted him in November 2014 but concealed that and instead falsely and deliberately accused another person of causing the injury;

d. X believes that C lied when he said that Z had assaulted him in February 2015.

k. The injury to C's face seen by the paediatrician on 09/02/15 was not caused during a fall on a bus on 07/02/15 but was caused between C finishing school on 06/02/15 and attending school on the morning of 09/02/15. The injury was inflicted by Z whilst C was in the joint care of Z and X. X knows the injury was inflicted by Z and when he did it. Neither X nor Z are providing a truthful account of how C received the bruise to his face.

l. X has failed to show an understanding of the significance of causing physical injury to a child despite having caused injury to C herself on two occasions.

m. Despite an intense package of support from Social Care and parenting classes, C has suffered further injury, inflicted by Z, and X has been unable to protect C from that injury.

n. The children are all likely to suffer significant physical and emotional harm in the care of X and Z due to

(i) The significant risk that Z and/or X will inflict injury on the children;

(ii) The significant risk that Z and/or X will cause emotional harm to the children by physically and verbally aggressive behaviour toward them;

(iii) X and Z's inability to change their parenting methods to ensure that they do not cause injury or emotional harm to the children;

(iv) X's inability to accept that Z is a physical and emotional risk to the children.