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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> L and M, (Children) [2015] EWHC 3969 (Fam) (25 November 2015) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2015/3969.html Cite as: [2015] EWHC 3969 (Fam)

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IN THE FAMILY COURT
SITTING AT THE CARDIFF HEARING CENTRE

		Cardiff Civil Justice Centre
		25th November 2015

MR JUSTICE MOOR:-

1. I have been conducting a fact finding hearing in public law care proceedings brought by the Applicant Local Authority, in relation to two children, L and M.
2. As will become clear, the factual matrix is complicated. Having said that, I have to decide a relatively narrow issue, namely whether or not an injury to L and M's late brother, O was non-accidental. If it was non-accidental, I must decide whether or not I am able to identity the perpetrator of the injury or a pool of possible perpetrators.
3. The complexity relates to the possible need to investigate previous allegations of non-accidental injury to a half-brother of L and M, namely P.

The family history

4. The Father of L and M is the Second Respondent. He was born on a date in 1977 and is therefore aged 38. He is self-employed, working in marketing. I will refer to him throughout as "the Father".
5. The Mother of L and M is the First Respondent. She was born on a date in 1980 and is therefore aged 35. She is also self-employed as a physiotherapist. She specialises in the treatment of children. I will refer to her as the Mother.
6. On a date in 1997, P was born. He is therefore aged 18. His father is also the Father of L and M. His mother is N. He was born with a defect in his immune system following cytomegalovirus infection.
7. In May 1997, P was admitted to Royal Gwent Hospital with difficulty breathing. There was concern from at least some of the medical professionals that he may have been subject to a shaking injury but the diagnosis was undoubtedly complicated by the defect in his immune system caused by the cytomegalovirus infection.
8. In June 1997, he was readmitted following a number of fits/seizures. He was found to have had bilateral subdural effusions with fresh blood, which were less than a week old. A chest x-ray showed fractures of the third and fourth ribs on the left side with a degree of healing consistent with an injury three or four weeks previously. Again, professionals were concerned as to the possibility of non-accidental injury.
9. Later in June 1997, he was transferred to Bristol Children's Hospital due to deterioration in his respiratory condition. The case does not appear to have followed the standard pattern that family law professionals would expect today. As far as I understand it, care proceedings were never instituted. There was certainly never a fact finding hearing. Although P was placed in the care of his maternal grandparents following his discharge from hospital, the care given to him by the parents was considered exemplary and he was therefore returned to their care in November 1997.
10. P was removed from the child protection register in August 1998. The parents, however, separated when he remained very young. Indeed, the father has had no contact with P for many years. I understand P remains profoundly disabled.
11. The Father then commenced a relationship with Q and subsequently married her. On a date in 2006, R was born. She is therefore nine years of age. The marriage subsequently broke down acrimoniously. There were contested section 8 proceedings. Orders were made for R to have regular staying contact to the Father, following detailed Cafcass Reports.
12. The Father then formed a relationship with the Mother approximately seven or eight years ago. L was born in February 2013 and is therefore two years of age. The Mother then became pregnant with twins. M and O were born in March 2015 by elective caesarean section. M is now aged eight months.
13. On 18th May 2015, O was pronounced dead at the family home. He appears to have simply stopped breathing. The cause of death has been determined as sudden infant death. I make it quite clear that this is accepted by all parties. Absolutely no blame is attached to either parent.
14. This may be best illustrated by the fact that, on 21st May 2015, M suffered breathing difficulties. Fortunately, in his case, he made a rapid recovery following appropriate treatment by the parents. He was admitted to hospital for precautionary reasons but the tests were all clear and he was discharged. He was given an alarm. It appears that the alarm developed a fault and he was readmitted to hospital but it was soon discovered there was nothing wrong. I do not, however, underestimate the stress these two episodes must have caused the entire family.
15. On 22nd May 2015, a radiological scan revealed a healing left distal radius and ulnar metaphyseal fracture in O. In other words, his wrist had been broken in two places, although it was the same injury. It was dated at between one to three weeks prior to his death. At the same time, a possible fracture to his left seventh rib was identified but this has been extensively investigated since and it is accepted that there was no such rib fracture. Again, I ignore it completely.

The proceedings

16. In the light of this history, the Local Authority took protective action on 29th May 2015. L and M were placed by agreement in the care of the maternal grandfather, maternal aunt and her partner. Initially, the maternal grandmother had to move out as she was thought to be in the pool of potential perpetrators but she was later excluded from the pool and allowed to return home. As a result of this agreement, no Interim Care Order has been made. The parents had regular contact at a contact centre and, in the case of the Mother, contact supervised by her family members at the grandparents' home.
17. On 12th June 2015, the Local Authority applied for care orders and the matter has been timetabled to this hearing before me. Both parents strenuously deny any knowledge or involvement in O's broken wrist.
18. The Mother's first statement is dated 7th July 2015. She said that she had an excellent relationship with the Father. She did say that L found it difficult to deal with the presence of the twins and showed jealousy towards them at times. She said that L occasionally poked them, pulled their arms and legs and would often jump on them when they were in their car seats. She did, however, add that she had been wracking her brains but could not explain the wrist fractures.
19. The Father's first statement is dated 14th July 2015. He also said that the parents remained very happy together. He said he had gone over and over in his head how O could have sustained the wrist fractures. He also said that L would poke at the twins and pull their arms and legs. He added that, sometimes she pulled hard. She would often jump on them. Once, she crawled over O to get to a toy. He cried but nothing appeared to be wrong.
20. He referred to an incident when he took O to a local park. O was being carried by him in a carrier round his chest. L started to play with a ten or eleven year old girl. The girl took hold of O's hand and arm. She still had hold of it when she moved away. He said that the girl yanked it so much that it made the Father move quite unexpectedly and O cried for quite a while. He was agitated for ten minutes or maybe a bit longer. He said he, the Father, was a very patient and calm man.
21. His second statement is undated in my bundle. He again dealt with the incident in the park, but said that the girl had hold of O's left hand whilst L pulled the girl away. O gave out a cry and was unsettled for around ten minutes but he thought no more of it as O had settled and appeared to be absolutely fine. The Mother does recall him mentioning the incident but it had not stuck in his mind at the time.
22. The Mother filed a further statement on 15th September 2015. In relation to the park incident, she said that she did recall the Father saying to her that a little ginger-haired girl at the park was playing with L. She could not remember the exact conversation as she was focussing on the children. O, in particular, seemed fine. She added that, if O had been distressed in any way, she would have remembered and would probably have spoken to the Father about it. She ended by saying that her recollection of the conversation is extremely vague.
23. Other statements have been filed. The maternal grandfather filed a statement dated 19th October 2015. He referred to an incident that he subsequently pinpointed to 30th April 2015. He said that he had been playing in the garden with L. She rushed past him as he opened the door and threw herself upon O who was in a car seat in the lounge. He says L was pulled away with some force but refused to let go of O's hand and wrist. He recalled O screaming during this time.
24. The maternal grandmother said she recalled the incident but was in the kitchen. She did not witness anything occurring in the lounge but did not register that anything unusual may have been happening. Finally, the partner of the children's maternal aunt recalled an incident that took place on 20th April 2015. L grabbed O's left arm with some force whilst he was feeding him. He had to twist and pull her hand away as it was the only way that he could loosen her grip.
25. During the summer, the Mother and Father separated. I am told it is a final separation. I have absolutely no reason to doubt that. It was at the instigation of the Mother. She told me she knew she had not done anything to her little boy. If anyone had done anything, it must have been the Father so she separated from him as she could not put her children's futures at risk.

The conduct of the hearing

26. I was invited to hear the evidence as to O first. If I found the wrist injury to be accidental, that would be the end of the case. If I found it to be a non-accidental injury, I would have to go on to decide whether or not I could identify the perpetrator. This might lead me to have to consider the circumstances surrounding P to see whether I could make any findings there that might help me in relation to O.

The law

27. I will deal first with the law I must apply. To establish the threshold criteria, I need to be satisfied that L and M are suffering or are likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to them, or likely to be given if the order is not made, not being what it would be reasonable to expect a parent to give [Children Act 1989, section 31(2)].

The burden and standard of proof

28. The burden of proof is on the Local Authority. It is for the Local Authority to satisfy me that, on the balance of probabilities, it has made out its case in relation to disputed facts. The standard of proof is the civil standard, namely the balance of probabilities. This applies to both the determination of whether O's broken wrist was caused non-accidentally but also as to the identity of the perpetrator (see Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2008] 2 FLR 141 and Re S-B (Children) [2010] 1 FLR 1161).
29. The seriousness of the allegation makes no difference to the standard of proof to be applied in determining the truth of the allegation. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies (Re B (Children)(FC) [2008] UKHL 35; [2008] 2 FLR 141).
30. If the evidence in respect of a particular finding sought by a party is equivocal then the court cannot make a finding on the balance of probabilities as the party seeking the finding has not discharged either the burden or standard of proof (Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20; [2004] 2 FLR 200). In Re B (Children)(FC), Lord Hoffman 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 discharge it, a value of 1 is returned and the fact is treated as having happened."

31. Both Baroness Hale and Lord Hoffman made it clear in Re B that, when seeking to determine the perpetrator of proven non-accidental harm, the test remains the simple balance of probabilities. Baroness Hale said at Paragraph 70:-

"I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold criteria 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. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies."

32. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17. [2010] 1 AC 678, she insisted that Re B did not represent a departure from earlier authorities in the House of Lords, stating at Paragraph 13:-

"None of the parties in this case has invited the Supreme Court to depart from those observations, nor have they supported the comment that Re B "was a sweeping departure from other authorities in the House of Lords in relation to child abuse, most obviously the case of Re H". All are agreed that Re B reaffirmed the principles adopted in Re H while rejecting the nostrum "the more serious the allegation, the more cogent the evidence needed to prove it" which had become commonplace but was a misinterpretation of what Lord Nicholls had in fact said."

33. In Paragraph 2 of Re B, Lord Hoffman explained that sometimes the decision will be made by reference to the failure to discharge the burden of proof. In Paragraph 32, Baroness Hale made the same point thus:-

"In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof."

34. Any findings of fact must be based on evidence, including proper inferences from evidence that is found by the court to be reliable. It must not be based on suspicion or speculation (see Re A (No 2) [2011] EWCA Civ 12). A judge must view the totality of the evidence in order to come to the conclusion whether the case has been made out to the appropriate standard of proof (see Re T [2004] EWCA Civ 558).

A pool of perpetrators

35. It is trite law that it is in the public interest that those who cause non-accidental injuries should be identified, provided it is possible in the light of the evidence. Notwithstanding the advantages if it is possible to identify a perpetrator, there is no obligation on the court to strain to do so if the evidence does not enable the court to make such a finding on the balance of probabilities. In Re S-B, Baroness Hale said at Paragraph 40:-

"If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators…"

36. The test was laid down in North Yorkshire CC v SA [2003] 2 FLR 849:-

"A person comes within the pool of possible perpetrators where the evidence establishes that there is a "likelihood or real possibility" that a given person perpetrated the injuries."

37. There is also a benefit in identifying the role of others who may have failed to protect the child. This type of finding will inform future risk assessments and assist in the formulation of strategies to protect the child in the future (Re S-B at Paragraph 36).

Expert evidence

38. The case has included expert evidence. I have seen three written reports from expert witnesses as well as having heard the oral evidence of one doctor, namely Dr Joanna Fairhurst. Expert evidence must be analysed alongside the wider factual evidence. It does not sit in a vacuum. It is not to be interpreted in isolation. Ward LJ said in Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670:-

"The expert advises but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert."

39. Butler-Sloss LJ added at p674:-

"An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the judge to give reasons for disagreeing with experts' conclusions or recommendations…A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes."

40. Even if an expert says that there are a number of possible explanations for some occurrence, it is still open to the court to find on the evidence as a whole which is the probable explanation. Charles J said in A County Council v K, D and L:-

"…it is the court that is in the position to weigh the expert evidence against its findings on the other evidence and thus, for example, descriptions of the presentations of a child in the hours or days leading up to his or her collapse, and accounts of events given by "carers"…properly reasoned expert medical evidence carries considerable weight but, in assessing and applying it, the judge must always remember that he or she is the person that makes the final decision."

41. In the context of examining expert medical evidence in cases of alleged non-accidental injury, the Court of Appeal said (in Re U and Re B [2004] EWCA Civ 567) that the following matters should be given close consideration:-

(a) The cause of an injury or an episode that cannot be explained scientifically remains equivocal;

(b) Recurrence is not in itself probative;

(c) Particular caution is necessary in any case where the medical experts disagree, such as where one opinion declines to exclude a reasonable possibility of natural cause;

(d) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake or the expert who has developed a scientific prejudice; and

(e) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into the corners that are at present dark.

42. The need for the court to consider the totality of the evidence is re-affirmed by Ryder J in Re X Y Z [2005] EWHC 31 (Fam):-

"The court has to make a factual decision based on all available materials judged in context and to have regard to the wide range of social, emotional, ethical and moral factors that would inform the decision on whether the threshold was satisfied for the making of a care order. The court has to be cautious before declining to follow un-contradicted expert evidence but is not bound by it. The assessment of adult credibility as to the responsibility for harming a child remains the function of the court."

Lies

43. There are issues in the case as to the extent to which the Father has lied about various issues. First, I must decide whether or not he did deliberately tell lies. If I find that he did, I have to ask myself why he lied. The mere fact that a witness tells a lie is not in itself evidence that the person concerned is the perpetrator of non-accidental injuries on a baby. A witness may lie for many reasons. They may possibly be "innocent" ones in the sense that they do not denote responsibility for the injuries to O. For example, they may be lies to bolster a true case; or to protect someone else; or to conceal some other disreputable conduct unrelated to the injuries caused to O; or out of panic, distress or confusion.
44. It follows that, if I find that a witness has lied, I must assess whether or not there is an "innocent" explanation for those lies that does not implicate the witness either as the perpetrator of the injuries sustained to O or as having information relevant to identifying the perpetrator. However, if I am satisfied that there is no such explanation, I can take the lies into account in my assessment of the identity of the perpetrator or perpetrators.

The expert evidence in this case

45. There is no significant dispute as to the medical evidence in relation to O, although I did hear oral evidence by video link from Dr Joanna Fairhurst, Consultant Paediatric Radiologist.
46. Her written evidence is that, on the balance of probabilities, O suffered left distal radial and ulnar metaphyseal fractures, which most probably occurred between 27th April and 8th May 2015. The mechanism would be a pulling and twisting force being applied to the limb. This type of fracture is highly indicative of non-accidental causation. The force required to cause such an injury is well in excess of that used in normal day-to-day handling of an infant. It is possible for such fractures to cause relatively little discomfort beyond the initial pain at the time of the occurrence, such that a non-perpetrator may be unaware of the injury. She would have expected O to have shown immediate distress, lasting perhaps 10 – 15 minutes. The distress would manifest itself as crying.
47. She did consider that the incident in the park could account for O's fractures as a child of ten years would have the strength to cause this injury. She described it as "plausible". It would, however, be necessary for me to find that the incident occurred in such a way that could explain the injury. Dr Fairhurst did not believe that a two year old would have the strength to cause O's injuries although she said she would defer to a paediatrician on this issue.
48. I also have a report from Dr Stephen Leadbeatter, Senior Lecturer in Forensic Pathology, who conducted a post-mortem on O. His view was that there was a healing metaphyseal fracture of the distal left radius with not dissimilar appearances focally within the distal left ulna. He considered such fractures are the consequence of a twisting or pulling mechanism. He would have put the date of the fracture at the older end of the range.
49. Finally, Professor Anthony Freemont, Osteoarticular Pathologist also prepared a report. He agreed that there were metaphyseal fractures of the distal radius and ulna. He would age them at between 1-2 weeks old at the time of death. The type of fracture is due to twisting of the wrist.
50. The experts met in a telephone link. There were no areas of disagreement. A common position was agreed as follows:-

(a) There was a fracture to the distal left ulna;

(b) The likely mechanism for the fractures is pulling and/or twisting because it is considered that whichever action is used it is difficult to see how such would not involve some degree of the other action.

(c) They could not say whether the mechanism in the statement of the maternal grandfather provides a mechanism for the causation of the fractures without further information as to the timing of the incident referred to in the statement.

(d) The relevant starting point for the dating of the fractures is the date of death.

(e) The time frame for the fractures is no less than one week and no more than three weeks before O's death, namely from 27th April to 11th May 2015.

(f) The fact that the fractures were only seen under a microscope or by x-ray does not alter the fact that there were fractures. It is not possible to say what was the likely extent of the pain and discomfort O would have experienced as a result of the fractures.

Dr Fairhurst's oral evidence

51. I heard Dr Fairhurst give oral evidence by video-link but it did not advance my knowledge of the case very much. She was asked in particular about the alleged incidents involving L and, in particular, the occasion identified by the maternal grandfather and the incident in the park with the Father. She did, at one point, say that it all involved a lot of speculation. I have come to the clear conclusion that she is correct. It all depends on my eventual findings of fact. She did say that the wrist injury suffered by O is, in general, closely associated with inflicted injury unless there is an explanation. She stressed that, when she used the term non-accidental injury, she did not necessarily mean that there was intent to harm. A perpetrator of such an injury would, have had to be "pretty rough" with O's wrist. It would not just be normal rough handling. It would be abusive and recognised as abusive by the person concerned.
52. She rightly said that it was very dangerous to view radiological findings in isolation and it is necessary to be very cautious but a reasonable bystander would view the incident that caused the injury as abusive if witnessed. To cause the injury, O would have had to have been held on/below the site of the fracture. She made the point that, with a baby, it is virtually impossible to grip just the wrist as it is so small. She repeated that she thought it was unlikely that a two year old could produce such force, although it would be much more likely that a fracture would occur if there was intervention by an additional adult. There would be no fracture if L's fingers were prised away, one by one but I accept that it all depends on exactly how it occurred.

The involvement of L

53. I heard from four other witnesses, namely the Mother, the Father, the maternal grandfather, and a previous Social Worker.
54. The maternal grandfather is a caring and concerned man. He appeared to be quite convinced that he had caused O's broken wrist by allowing L to run back into the house past him. He seemed almost racked by guilt. I recognise that when serious harm is done to children, responsible adults tend to look for innocent explanations. They can then genuinely blame themselves when it is actually illogical to do so. I made it clear to the maternal grandfather during his evidence that he could not conceivably be to blame for opening a door. I hope he will now accept that.
55. I am also sure that this incident did not cause O's broken wrist. I accept the incident took place on 30th April. I further accept that L had a toddler's tantrum and threw herself on to O, probably because he was in her old car seat. Initially, the maternal grandfather thought that this might have caused the broken rib but it did not and it could not have done. Then he thought it might have caused the broken wrist. Again, I find that it did not and it could not have done. I accept the expert evidence that a two year old is not strong enough to do so on her own. The Mother and the Father's recollection of this incident is virtually non-existent. There is a reason for that. It was not serious. Indeed, the Father may have been in the kitchen. Nobody thought it appropriate to investigate whether any serious damage had been done to O's wrist. No-one considered taking him to a doctor. This is because there was no serious injury.
56. It seemed to be accepted that it was the Mother who pulled L off O. She is a caring and careful mother. This was not her first child. She is a trained physiotherapist, working with children on a regular basis. She would have ensured O came to no serious harm as she removed L from the car seat. At best, the grandfather says that L grabbed O's arms as she was moved away and her little fingers had to be "prised" away one by one from O. This would not have caused the fracture. I accept this may have distressed O but I am quite sure that it was not because he had his wrist broken. The grandfather said, poignantly, that he did not think he appreciated how serious it could have been. The Father told me it was not a standout incident for him because he could not remember it. The Mother said she could not recall it although she does remember having to pull L off O. I do not consider this would have been the case if a wrist had been broken. I reject this incident as a cause of O's broken wrist.
57. Although I will return to the park incident in due course, I am equally clear that none of the other incidents involving L caused the broken wrist. The incident described by the maternal aunt's partner was outside the timeframe as it took place on 20th April. I consider all the other occasions on which L was boisterous do not get close to establishing a broken wrist. I remind myself that M had no injuries. I do not consider L was a danger to these twins. If she had been, responsible adults would have ensured she was nowhere near them.

The incident in the park

58. I now turn to the Park Incident. I start by accepting that a twelve year old girl could potentially break a baby's wrist by pulling and twisting the wrist violently. I equally accept that it is possible that it might happen by accident. It is, however, inherently unlikely and would need clear evidence. In particular, I consider that a caring parent, who was present at the time, would realise something was seriously wrong and take appropriate steps to investigate whether any serious injury had been done.
59. Even if the Father had not taken O to the doctor straight away, I am sure he would have raised the issue with the Mother as soon as he got home. By the conclusion of the oral evidence, it was clear that he did not do so. I am satisfied that all he did was tell the Mother that L had been playing with a girl in the park. The Mother was not told about any pulling incident or significant distress to O.
60. Second, the Father did not raise this incident when confronted with the knowledge that O's wrist had been broken. On his case, this had occurred only three weeks earlier on 2nd May. He told me he was racking his brains to think how the broken wrist occurred but this incident did not come to him for several weeks. Even if I am prepared to accept that it might not have done so in the fraught atmosphere of 22nd May, he was not interviewed by the Police until 30th May. He did not raise it with them. I reject the suggestion that this was because he was interviewed in the middle of the night. He had had over a week to think about this yet it had not crossed his mind. It does not emerge until his statement in July.
61. I do accept that it is at times difficult to remember the exact details of incidents that happen very quickly. Nevertheless, there are significant differences between the two accounts he gives. The Father told me there was no difference between his statements but that is simply not correct. In the first statement, he says that L was encouraging the little girl to go and play with her and called her. If this is right, L must have been a distance away as she "called" the girl. The Father then says the little girl moved away but still had hold of O's arm. He had earlier mentioned the girl holding on to O's hand and arm but by the time the girl moved away, he specifically says it was the arm. The movement is said to have yanked O's arm so much that the Father moved quite unexpectedly. This all seems inherently implausible. First, if it was the arm, I cannot see how it would break the wrist for the reason given by Dr Fairhurst. Second, if the little girl was moving away, I cannot conceive why she would keep hold of O's arm.
62. I find that the Father realised this. His second statement is materially different. This time he says that the girl was holding O's left hand. L "pulled the little girl" to go and play with her but the girl still had hold of O's hand and, from feeling the pull, it caused the Father to turn. He says that O gave out a cry and was unsettled for around ten minutes. O was quite upset but the Father then says that he thought little more of it as O settled and appeared to be absolutely fine. I consider that, if this incident happened at all, the reason why he came to this conclusion was that O was indeed absolutely fine. He then says that he discussed "this incident" with the Mother and the Mother does "in fact recall me mentioning the incident with the little girl". I reject this evidence. He told the Mother L had been playing with the little girl not that there was an "incident". I accept that the Mother said she was told about O crying when cross-examined. She was recalled the next day and confirmed the position in her statement. On the balance of probabilities, I accept her evidence when recalled. I do not accept she is deliberately dishonest. I will deal with my detailed reasons for this finding when I consider the evidence of the two parents in due course.
63. Indeed, by the end of his evidence, the Father appeared to be distancing himself from saying this incident was the reason for the broken wrist. He denied that he had made it up. He also denied he had exaggerated. He clearly felt he needed to justify himself because he then said that he never said he believed this caused the injury and he honestly doesn't know if the wrist injury was caused on this day in this park. I find that he knows it was not caused in the park on that day.

Conclusions on the broken wrist

64. I have therefore come to the clear conclusion that there is no satisfactory explanation for how O's wrist came to be broken. There has been considerable ferreting around to try to come up with an explanation but none of the incidents raised explain a serious injury to a non-ambulant baby, who cannot have injured himself. I remind myself that broken bones are highly indicative of non-accidental injury in babies in the absence of a good explanation for how the injury occurred accidentally. I recognise that I must be cautious when dealing with only one broken bone. Nevertheless, I am clear that there is no explanation in this case for this broken wrist. I have come to the clear conclusion that O suffered from a non-accidental injury between one and three weeks prior to his death.

Perpetrator

65. It is accepted that, if I conclude that the wrist injury was non-accidental, there are only two realistic potential perpetrators, namely the Mother and the Father. I have considered the evidence of both carefully. I make it absolutely clear that I have not considered at all the position in relation to P other than what the Father has said about P to professionals and his subsequent partners. These statements go to credit only. I have put the alleged injuries to P themselves completely out of my mind.
66. There is no doubt that both parents had the opportunity to inflict an injury on O without the other knowing. Both worked. They devised a sensible regime pursuant to which the Father worked on Mondays, Wednesdays and Fridays. The Mother worked on Tuesdays, Thursdays and Saturdays. When each was working, the other cared for the children. I accept that the Father was alone with the children more than the Mother. His work was conducive to undertaking more of it from home, particularly with the use of the telephone. I also accept that the Mother had the help of her family at times. Nevertheless, it is clear that both could have injured O. Moreover, I accept the expert evidence to the effect that the other would be unlikely to realise that O had been injured if he or she was not present at the time. Although this might surprise many, regular experience of undertaking this work confirms this fact time and time again.

The Mother

67. In general, I found the Mother to be a reliable witness. I concluded that she was doing her best to assist me. She clearly found these proceedings very stressful and emotional. The Father was absolutely adamant that the Mother could not have been responsible for the injury to O. He told me that she was an excellent mother. She is gentle, caring, loving and calm. He told me he was 100% certain she had not caused an injury to O. He said that he would be outraged if I found that she had done so and would want to know why as there would be no legitimate reason for such a finding. He told me his belief is very strong in this regard.
68. Miss Judd QC, who appears with Mr Miller on the Father's behalf, submits that the views of the Father carry very little weight. That is true unless, of course, he knows that she was not responsible.
69. The Mother told her counsel, Mr Hopkins QC, that she never lost her patience with the boys. She did not twist or pull O's wrist. She said she would not hurt any of her children as they meant so much to her. She became distressed at this point. She also said that she was never concerned that anything had happened to O when she got home, although I have already made it clear that I am not surprised by this and accept it.
70. Following a question from me, she told me she had separated from the Father "for all time". I asked her why. She said she knew she had not done anything to her little boy. Subject to my finding an innocent explanation, she was therefore saying that she had come to the conclusion that it must have been the Father. She told me she could not put her children at risk. She accepted she was the one who instigated the separation.
71. The only aspect of her evidence that was unsatisfactory related to what she was told by the Father in relation to the incident in the park. When cross-examined by Miss Judd, she contradicted herself on a number of occasions. She initially said that the Father had told her that O was upset about the girl in the park but she cannot now remember why. She then said she did not recall anything untoward and the only suggestion that the ginger haired girl had behaved badly was from the Father's statement and not at the time. She then told me she cannot remember the Father telling her that the girl had "yanked" O's left arm. She then said she remembered being worried about him but, as he was fine, she didn't feel she needed to do anything. She repeated that she did recollect something about O being distressed but again said that, if she had thought anything was wrong, she would have acted on it. Finally, she said she was told something happened to make O distressed. In re-examination, she told me the Father said O had cried but she wasn't alarmed and didn't think anything significant had happened.
72. The following morning, she was recalled by Mr Hopkins. She was asked again about the conversation with the Father about the red-headed girl. She confirmed her statement was correct. She said it was not correct that the Father had told her that evening that O had been crying in the park. All she knew was that he was playing with a little ginger headed girl in the park. Unsurprisingly, she was asked about this again by Miss Judd. She said she cannot remember the Father saying anything about O being upset. It was just general conversation such as "how has your day been?" Nothing struck her as being out of the ordinary. All she knew was that L was playing with a little red headed girl and this was brought up later by the Father.
73. I do not know why she gave different evidence the previous day. I realise that giving evidence is stressful and difficult when cross-examined by very experienced and skilled Queen's Counsel. Having said that, I remind myself in the strongest terms that I must be fair to both parents. I cannot excuse unsatisfactory evidence from one parent whilst pinning my findings of fact on unsatisfactory evidence of the other.
74. By the narrowest of margins, I am, however, prepared to accept the Mother's evidence on the second day of the hearing. I am particularly swayed by what she put in her statement dated 15th September 2015. This was before the parents separated on 2nd November 2015. The Mother had no incentive to give a partial account in that statement. She specifically does not say that she was told that O was distressed. I consider that she would have investigated further if she had been told that on the day. She did not. She got herself into a mess over it in her oral evidence. My conclusion is that the reality was that she could not remember but she accepted things put to her on behalf of the Father when she should have said she had no recollection.
75. Other than in relation to the park incident, the Mother's evidence was cogent and compelling. She showed appropriate emotion throughout. I appreciate that anyone can lose their temper with a baby. Perhaps it is easier to do so if you have twin babies and a toddler. But this applies to the Father as well. Apart from the matter of her evidence of what she was told about the park incident, there was absolutely nothing that made me doubt what I was being told. Indeed, if she had lost her temper with O, I consider she would have made a full confession to the Father and, subsequently, to professionals. I find that her medical training was such that she would have made the correct investigations. She would have found pain through O's reaction when touching his wrist. She would have taken him to see medical professionals. She did none of these things. I find that this was because she did not inflict any injury upon him. I accept her denials and acquit her of involvement in non-accidental injury to O.

The Father

76. The Father's evidence troubled me considerably. I regret that, unlike the Mother, I was unable to conclude that he was doing his best to assist me at all times. Indeed, I go further and find that, at various times, he lied to me.
77. I entirely accept that the Mother herself was complimentary to him. She told me the responsibility for looking after the children was pretty much split equally between them. Indeed, she was away at work for longer periods than he was. She said he was a brilliant hands-on Dad. She added that he was supportive to her. She told me she managed pretty well but so did he. There was no strain on their relationship and they worked well as a team.
78. In his cross-examination of the Father, Mr Hopkins spent a great deal of time focussing on what the Father had said to professionals and his partners as to what had happened to P. I have already made it clear that I am not making findings of fact as to the cause of P's injuries. The relevance, says Mr Hopkins, is twofold. First, he says it shows that the Father has lied repeatedly about his past, both directly and by omission. Second, Mr Hopkins says that, when the Mother trusted the Father with the children, she did so without knowing the full picture.
79. I do accept Miss Judd's points that it is human nature to focus on those parts of the history that tend to absolve someone from bad behaviour. I further accept that the Father has never been found to have perpetrated non-accidental injury on P. I accept that P was returned to the care of himself and P's mother. Finally, I recognise that there was some equivocation from a Dr Buss as to exactly what had happened. I also accept that this all happened some eighteen years ago.
80. Having accepted those points, it is quite clear that the Father kept much of what occurred hidden from his future partners and attempted to do so from the professionals investigating what had happened to O.
81. I heard evidence from the Social Worker,. I accept her evidence. On 22nd May, when she told the Father about O's broken rib, she asked the Father whether or not he had any other children. Initially, he only mentioned Isabel. He says that the social worker only asked him about children with whom he had contact. I reject that. I accept that a social worker might indeed only have asked about children to whom he had contact as they might be the ones at risk but, in this particular case, the Father later disclosed the existence of P. He said "sorry. I also have a son, P". He would not have used the words "sorry" and "also" if he had only been asked about children to whom he was having contact. I prefer the social worker's account.
82. On 27th May 2015, the social worker raised the issues surrounding P with the Father. He denied that he knew P had fractures to his ribs. I simply cannot accept that he had forgotten about the rib fractures. After all, he told the Police on 30th May that P had a fracture to his rib. Moreover, the Mother knew about the fractured ribs, albeit that she had been told that it was caused either by N falling down the stairs with P or by the family dog hitting P. We know this as this is what she told the Police and I do not accept the Father's account that she must have got this from his mother.
83. The Father is an intelligent man. I am quite satisfied that he attempted to mislead the social worker and the Police to the effect that the injuries to P were all either accidental or caused by the Cytomegalovirus and that there had never been even an allegation of non-accidental injury. I am equally satisfied that he misled both Q and the Mother in the same way. He also failed to be full and frank to the previous Cafcass Officer. Finally, I am satisfied that he misled me. He repeated to me that he had forgotten that P had broken ribs. He told me he did not remember attending case conferences. Whilst I accept he may not have remembered the detail, he was not being truthful to me or to the professionals. He knew full well that there were serious allegations of non-accidental injury made against him and/or N. He did everything he could to downplay this and avoid the true position becoming clear.
84. Mr Hopkins asked him if this was a case of "déjà vu". He denied it but I find that this was the case. When the social worker first told him about the fracture to O's wrist, he reacted very badly. Her note says:-

"K collapsed off his chair and slumped onto the floor. He then turned to the sink and kneeled over it dry heaving. I asked K if he wished for time alone to process the information and he cried stating "no please don't leave me on my own".

85. During the course of the hearing, there has been some debate with the advocates as to whether or not this was significant. I accept that when the Mother was told she was "distraught and tearful". She stopped breathing and her face went red. She then started sobbing, rocking back and forth stating "my baby; my poor baby". But the Father was, at one stage, a probationary policeman. He had been through this sort of investigation before. I recognise that it was a traumatic week, given the death of his son but I have been troubled by his reaction.
86. During the course of the hearing, he has shown distress at times, whereas the Mother has been almost constantly distressed. More often, the Father has presented as more uncomfortable than distressed. I found his evidence very troubling and far from frank. I have taken close regard of the Lucas direction. I have, however, decided to take his lies into account. I am particularly concerned about his evidence as to what happened in the park. I reject his evidence in that regard. I find that he made up the story about the ginger-haired girl yanking O's wrist. Moreover, he changed his story materially to attempt to improve it. I find that the only reason for doing so was to bolster a false case.
87. It follows that I accept Mr Hopkins' submission as to this. The Father is prepared to lie about important events. He is prepared to mislead as to such matters. I have concluded that he is quite capable of misleading me about a much more recent matter, namely O's wrist fracture. Moreover, unlike with the Mother, I am not satisfied that he would report a loss of control to the authorities or would seek medical treatment for O after such a loss of control. On balance, I do consider his reaction to being told of O's wrist fracture to be of some, albeit small, significance. I find that he knew immediately why O had such a fracture. It disturbed him considerably and he wretched.

My conclusions

88. I have already found, on the balance of probabilities, that the cause of the break to O's wrist was a non-accidental injury caused by a carer losing his or her temper with O and twisting and pulling the wrist violently. O would have been very distressed and the carer would have known that what he or she had done was abusive. As O eventually calmed down, the carer did not take any further action and thought that he or she had got away with it.
89. O then died of sudden infant death syndrome. X-rays were taken and the injury emerged. There are only two possible perpetrators, namely the Mother and the Father. It is therefore a straight choice between them. I do accept that the Guardian asked me to take care before deciding on the identity of the perpetrator. I have taken care but, having heard the evidence, and considered all aspects of the matter, I have absolutely no hesitation in coming to my conclusion.
90. I am quite clear that I do not need to hear the evidence of what happened to P. I have decided that I am able to exclude the Mother as a potential perpetrator and find, on the balance of probabilities, that it was the Father who assaulted O. On the one hand, I find the Mother to be a caring and committed mother who has told me the truth. Even when she got herself into a mess over what she was told about the incident in the park, I do not find she was deliberately lying to me. I am satisfied that, in all other respects, I can rely on what she told me. She has been devastated by the injury to her baby. She has reacted appropriately at all times. I am quite satisfied that, if she had caused such an injury to O, she would immediately have reported it. She did not do so because she did not cause any such injury. She denied any involvement emphatically. I believe her and accept her denials without reservation.
91. The Father, on the other hand, was an unreliable witness. I have been unable to accept much of what he told me. He did not give a full and frank account to professionals. He lied in certain respects. He did not raise the incident in the park until July. I am satisfied nothing of significance happened in the park and he has attempted to mislead me in that regard. I find he reacted in the way he did to being told of the fracture because he knew what he had done. He was so vehement in telling me that the Mother was not responsible because he knows for certain that she was not responsible. The reason is because he was responsible.
92. Finally, I make it clear that this is not a case of failure to protect by the Mother. The experts are clear that a non-perpetrator may be unaware of such an injury. Indeed, I am completely satisfied that the Mother was unaware. If it had come to her attention, she would have taken immediate action. Moreover, she was misled by the Father in a number of respects relating to his knowledge of what had happened to P. She was misled as to the injuries to O as well.
93. It follows that the section 31 criteria are established on the date care proceedings were instituted in relation to both children as a result of the assault on O by the Father. The parents have, however, since separated. I have found the Mother to be entirely innocent. I cannot at this stage see any reason why the children should not be returned to her care forthwith. The question of the Father's contact will, however, have to be considered separately.

Note

The children were returned to the care of the Mother by agreement shortly after the judgment was delivered.