Case No: LM13C00052
IN THE BLACKBURN COUNTY COURT
SITTING AT LANCASTER
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: F (A CHILD)
Tuesday, 15th April 2014
HER HONOUR JUDGE SINGLETON QC
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Re: F (A Child)
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Counsel for the Local Authority: Miss Bowcock
Counsel for the Mother: Mr Senior
Counsel for the Father: Miss Korol
Counsel for the Intervener: Mr Entwistle
Counsel for the Child: Miss Hobson
Counsel for the Maternal Grandparents: Miss Akerman
Hearing dates: [Friday 4th April 2014 and Tuesday 8th April to Friday 11th April 2014]
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1. THE JUDGE: I am concerned with the welfare of A, born on 28th December 2012, who is therefore just over 15 months of age. She is the subject of proceedings brought by Lancashire County Council, who have been represented by Miss Bowcock of counsel during the proceedings before me. Her mother is M, who has been represented by Mr Senior of counsel. M was born on 27th February 1991, and is now 23 years of age. She is still, I think, married to father, F, who has been represented by Miss Korol of counsel during the proceedings before me. They were married in October 2010, having been involved in a relationship since the mother was 16 years of age. F is 32, having been born on 7th July 1982. The parents separated, I am going to find, in May of 2013, only shortly after A was born. The mother is now involved in a relationship with Z, who has been an intervener in these proceedings, born on 13th May 1982 and he is also 31, nearly 32, years of age. Z is represented by Mr Entwistle of counsel in these proceedings. Mother’s parents are MGF and MGM. They have also become interveners in these proceedings in circumstances that I will come to describe and they had been heavily involved, up until A came into care, in her care. They have been represented by Miss Akerman of counsel.
2. The reason for these proceedings can be briefly outlined. At about 3:00am in the morning on Friday, 16th August 2013, the father made a call to an NSPCC 24 hour helpline to discuss his concerns about bruising that he had observed to A. Although he had noticed the bruising earlier in the week, his call at that time was prompted by the fact that he had only just been made aware, during the evening of Thursday, 15th August, that his wife was now involved in a relationship with Z. He connected the fact of the bruising with the fact of the relationship. As a result of that call, social services and the police were involved by the NSPCC and they went early to the maternal grandparents’ home where A had been staying overnight. She was then taken to Hospital A where she was examined by a consultant paediatrician, Dr Y, Her conclusions about what she saw are contained in a report that I have in the bundle at E2. She sets out what she found on examination and what she found was also photographed.
3. The injuries that she saw were as follows:-
4. Dr Y said this:
‘A is a 7 month old non-mobile child who presents with multiple bruising to her legs, buttock, back and right arm, with no history given as to how they have occurred. The history given by mum that the bruising may have been caused by the car seat straps is not consistent with the extensive bruising found on examination. Injuries seen on A are not likely to have been caused by accident and especially as there is no history to explain them they would be consistent with non-accidental injury.’
5. As a result of that opinion, A remained in foster care, I think initially under Section 20 of the Children Act, by the agreement of the parents. These proceedings were commenced on 2nd September 2013. The case first came before me on 17th October 2013 when I was persuaded to permit the instruction of an independent paediatrician to give expert evidence in these proceedings in anticipation of a fact-finding hearing when those conclusions by Dr Y would be in issue, as well as the issue of what had actually occurred to A to cause the bruises if that was what they turned out to be. The issue that was identified to me as necessitating the instruction of an expert was whether the use of a steroid nappy cream might increase susceptibility to bruising. At that point, the Local Authority and the children’s guardian agreed that whilst there was an intellectual possibility that the maternal grandparents, who had had a lot to do with A before she came into foster care, were in the pool of possible perpetrators of injury the possibility was no more probable than intellectual. They, therefore, did not need to be made parties to intervene in the fact-finding proceedings and I listed the matter before His Honour Judge Lancaster, who was available to hear it during the first working week of the year far earlier than I would have been.
6. Dr Mecrow, a consultant paediatrician, was duly instructed and reported on the injuries. Inexplicably, he did not seem to be provided with either a full set of notes or photographs from Hospital A at the time of his report. This meant that he ended up having to give oral evidence before His Honour Judge Lancaster. Dr Mecrow did not consider the use of steroid cream was related to the bruising, which he concluded was unusual, and he rejected the explanations for the bruising that had been put forward by the mother at that stage. He referred to research which demonstrates that even babies who are cruising, in other words pulling themselves up and moving around on their feet, very rarely have more than six bruises in total. He was also very concerned by the sites of A’s bruising. He overall came to the conclusion that the bruising was highly likely to have been the result of a non-accidental mechanism.
7. It does seem to me that the expert evidence in this case simply confirms that each of those separate bruises in the absence of any underlying medical condition causing either bruising or a susceptibility to bruising represents a separate application of force to A sufficient to cause bruising. Dr Mecrow’s report shows that in a child of her age and development who is not cruising (and she was not), it would be extraordinarily unlikely that she would be sustain more than a couple of bruises on any site of her body without her carers being precisely aware of what had happened to her to cause them.
8. Dr Mecrow was required to attend to give evidence at the hearing in Lancaster before HHJ Lancaster because there was some doubt whether particular blood clotting tests had been untaken. That doubt was resolved by the provision of the notes to Dr Mecrow. Furthermore, he was able at that point to reject another possible mechanism of causation. This had been advanced by the mother in a late statement setting out a rather unusual incident that she said had taken place on or about 9th August 2013 in which she said that A had managed to roll off a large bed, from the middle of that large bed where she had been placed. Mother had not found any bruising after this incident, although she said it had caused a red mark on A’s back. However, in any event, Dr Mecrow did not consider that that mechanism would have caused the bruising or the extent of the bruising that was found on 16th August.
9. As I understand it, all of the parties before me now agree that the evidence establishes that the bruising to A must have been inflicted by an adult. The task I embarked upon was to hear the evidence in order to determine who is in the pool of possible perpetrators of those injuries and, if possible, to narrow matters down to one perpetrator and also to look at the culpability of any other person in terms of failure to protect A. I consider that I have heard enough evidence also to consider the protective capacity in the future of each of the relevant people.
10. The hearing before His Honour Judge Lancaster had to be adjourned for reasons which become apparent later in this judgment. The evidence establishes the following chronology of the crucially important days prior to A’s bruises being seen by Dr Y on Friday, 16th August commencing on Friday 9th August 2013. As I understand it, on Friday, 9th August, A was in the care of her maternal grandparents overnight. On Saturday, 10th August, she went into the care of her father and she was with him overnight. On Sunday, 11th August, she was returned to the care of her mother at about 2:00pm. The father had asked to have her until 4:00pm, but that had been declined. She was bathed that night and a photograph of her in her baby bath was taken which establishes that date. The mother says that at that point, she had perhaps one or two bruises to her inner thigh, about where car seat straps might go. At some point, that bruising was discussed by the mother with her mother, who had herself drawn previously to the attention of the mother a red mark to A’s ear. Both mother and grandmother are now adamant that that mark to the ear was a scratch or a spot and not a bruise, although it seems to me likely that the maternal grandmother used the term ‘bruise’ when first describing it to the first social worker involved in the case, Adam Starkey.
11. On Monday, 12th August, during the morning, A was cared for by the maternal grandparents whilst mother and Z went to Social Club B together for work purposes. That day, I assume in the afternoon, after A had been returned to mother and Z, the maternal grandparents went to the Citizens Advice Bureau to find out about their rights as grandparents. That date is a date proffered by the grandmother which I assume is ascertained by her from correspondence that has not been disclosed within the proceedings to confirm the date of the appointment. A was in the care of her mother and Z overnight on Monday, 12th August. They initially said she had been bathed that night, but both now assert that she was in fact bathed only on the Sunday night as per the photographs.
12. During the morning of Tuesday, 13th August, it is now established that the mother went to Social Club B, which was her place of employment and Z’s place of employment, from before 9:00am until approximately 12:30pm, those times being established from text communications between them. Z was at home with A. He was ill with some kind of gastric malady. The issue of whether anyone else was there with him for all or part of that time is a question I need to determine on the evidence I heard last week. A was then handed over to the care of her father at about 1:00pm or 1:30pm. He says he noticed the bruising between 5:00pm and 5:30pm that day, having been to Location C with his older sister for the afternoon. He says that he both texted and telephoned the mother about that bruising. A remained in his care until Thursday, 15th August at about 1:00pm, apart from a couple of hours on Wednesday, 14th August when he played football and in the absence of his mother, with whom he was living then, he asked the maternal grandparents, MGF and MGM, to look after A. They did so gladly. Father thinks he discussed the bruising that he had first noticed on the Tuesday with them on the Wednesday when he collected A. They deny that he ever did so.
13. Father returned A to the mother’s care at about 1:00pm on Thursday, 15th August. She transferred her straight to the care of her parents, it being said by her that by then she also was suffering the same gastric malady that had afflicted Z on the Tuesday. The maternal grandmother and the father had a telephone conversation during the evening of Thursday, 15th August. They are in dispute about what the primary subject matter of that conversation was, but during it, it is clear the father became aware that in fact the mother was now in a relationship with Z and that Z was now playing a large role in his daughter’s life.
14. At some point during those days that I have just outlined, someone inflicted sufficient force upon A as to cause the bruising seen by Dr Y and photographed at the hospital on 16th August. The evidence, as I have said, I heard was to enable me to narrow the pool of possible perpetrators and identify, if possible, who that was.
15. I turn to the law. The law that applies to this fact-finding exercise is not contentious or complicated. I am required to weigh the evidence to enable me to make findings or not on a simple balance of probabilities. If the evidence allows me to say that I consider something is more likely than not, then I can find that something as a fact. The old-fashioned contention that the more serious the allegation the more evidence required to prove it has long since, to use the words of Baroness Hale, been given its quietus.
Re B (Care Proceedings: Standard of Proof)  UKHL 35.
Equally, so far as the identification of perpetrator is concerned, that exercise also simply requires a finding on the balance of probabilities. It is in the public interest and the interest of children the subject of proceedings that the perpetrator of injuries should be identified if possible.
Re K (Non-accidental injuries: Perpetrator: New Evidence)  EWCA Civ 1181.
However, if the evidence does not permit such a finding and I am genuinely uncertain after weighing and considering it, I have a duty to say so because it would be dangerous to strive to identify a single perpetrator based upon speculation and not upon the evidence.
Re D (Care Proceedings: Preliminary Hearing)  EWCA Civ 472.
I should, however, identify who is in the pool of possible perpetrators where the evidence leaves a real possibility in each instance that that person inflicted injuries.
16. In this case, it seems to me, as I think I have indicated during the arguments, that more than one of the family members who gave evidence have demonstrated a rather too casual deference to the notion that they should tell the truth and I am satisfied that deliberate lies have been told during the evidence. I must, however, remind myself in a quasi Lucas jury direction to myself that I cannot assume that the telling of such lies permits me to infer that the liar in each case is responsible either for inflicting injuries upon A or for failing to protect her from those injuries, other than, of course, by failing to tell the truth and thereby to risk either a dangerous outcome, at worst or, at best, prevent any scheme for her protection to be precisely targeted.
17. I turn to the evidence and my impressions of the witnesses. This case occupied five full days of evidence. I heard evidence first from Adam Starkey, who, as I have already said, was the social worker in the case for the first few weeks and was the first to meet and talk with the family when the injuries came to light. His evidence was extremely valuable to me in allowing me to see the state of mind of each of the parties at that point and, in particular, the thinking then of the maternal grandparents. His evidence before His Honour Judge Lancaster had been that he had taken notes on the day of the events, which were recorded on that day on the Lancashire County Council ISSIS system. He had no independent recollection of the events. His evidence and his note demonstrate that he is a competent professional and likely to have kept records which are largely accurate. His observations of the mother’s care of A at hospital were entirely positive.
18. I next heard from the present key social worker. She is Claire Peace and has been a social worker for 17 years. She had undertaken the viability and core assessments of the key parties and relatives and she impressed me as an assiduous and highly competent professional. During one of her assessment sessions with the father, he had shown her on his mobile phone WhatsApp messages that he said had sent to the mother, apparently on Tuesday, 13th August, in which he had told the mother of the bruises he had found on A and enquired whether A had fallen. Later in the bundle, there is a screenshot of what the father says Claire Peace was shown. There are slight differences. At C36 Claire Peace relates, ‘On 13.8.13 at 15:51 he wrote, “Has she fallen as there are more bruises?” He then spoke to her on the phone. At 20:36 he texted her to say, “Let you know asleep and in some discomfort.”’ At C156 the screenshots read, ‘Has she fallen at all coz there are more bruises?’ That was sent at 17:21. Then a message, ‘She asleep now but she seemed to be in discomfort.’ That was sent at 20:36. Unfortunately, despite his best efforts, I find, the father’s telephone entry code could not be got past by the telephone interrogators later instructed to look at each party’s mobile phone. It seems to me, however, that the essential meaning of the messages at C36 and C156 is exactly the same.
19. Claire Peace gave evidence that she had attempted to record exactly what she saw. In their submissions, the Local Authority conceded that the difference between the screenshots and her record was more likely to be a slightly inaccurate transcription by her than any faking of messages by the father. I agree with that submission, although without any criticism of her because the essence was accurate. This is not an example of treating father’s inconsistencies differently from the mother as she, in the submissions made for her by Mr Senior, complains this is the approach. If those are fake messages then it seems most unlikely that, having installed fake messages on his phone, the father would then change them so as to make them read slightly differently. The mother in fact denies receiving them and they were not shown at all on her phone when that was interrogated. However, somewhat mysteriously, her telephone revealed no WhatsApp messages at all for a long period of some weeks at the relevant point despite regular use of it at other points.
20. Claire Peace had undertaken a full assessment session with Z. He spent nearly an hour without letting her intervene much at all. He spent that hour being negative about the father and his home conditions and making many arguments that might cause someone to infer that the injuries were caused whilst A was in her father’s care. Not much time was left to the social worker to ask questions of Z and she felt that his approach was an attempt to control her. The information he relayed in any event was not information of which he had much first-hand knowledge at all.
21. The first family member from whom I heard was M, the mother. In general, she was a very poor witness. Her accounts were riddled with inconsistencies and contradictions. She did not even try to disguise her dissembling of facts she considered not to look good, even at one point expressly admitting that was her approach to the evidence. She said, ‘Why would I say that? It doesn’t look good.’ She did not seem to feel any obligation to deal in facts and truths, but rather tried to stick to an account that was the least damaging to her and to Z. She did not always succeed and, at times, her dissembling seemed ridiculous. She did not appear to have any appreciation of why it is in A’s best interests and necessary for her future protection that there should be a proper investigation and consideration of what happened to her.
22. Her evidence also revealed that her lifestyle has become one of repeated nights drinking and clubbing and staying out late, with occasional casual sexual encounters. It does seem to me that there is a distinction between that and the social life which her parents lead, which is heavily pub centred, which she and I think the father also used to join. It is a rather degraded and degrading lifestyle, which puts her own safety at risk at the very least. It is also quite incompatible with being a parent, even when conducted on the nights when A was not with her. If nothing else, it is likely to have caused her to be extremely tired. I cannot fathom why this mother allowed herself to sink to such levels of degraded and degrading conduct. It seems to me that it would be very much in the interests of A that the mother should now seek to turn that around, whatever role she is to play in the future in this child’s life.
23. She tried to explain why she and the father had broken up after having been together since she was 16. It appeared to me that she resented no longer being the entire focus of his affection after A was born, although this resentment seems, in fairness, only to have affected her relationship with him and not her relationship with A. She told me how Z had treated her well and how it was Z who suggested that the father’s contact with A should be more structured. The regime that was devised in fact involved the mother then having A in her care only two and a half nights a week on average. A spent every Friday night with the maternal grandparents and every Saturday night with the father. She would spend alternate Sunday nights with her mother or her father. She would spend Monday nights with her mother. She would spend Tuesdays and Wednesdays with her father and Thursdays with her mother, although in the key week for the causation of the injuries A was in fact with the maternal grandparents on the Thursday night as well.
24. The mother told me how she had briefly resumed her sexual relationship with the father over a period when she and Z were temporarily separated during July 2013. Z had, at the time of the hearing only just become aware of this, though he had apparently questioned her closely about some left over Chinese food in the freezer at her home being food which she had shared in a meal with the father. She had initially told Z that the meal she had shared was with the paternal grandmother. The mother was insistent that Z had only looked after A once on his own for any length of time, although he might have had charge for very short periods when she nipped to the shops from her home. The only longer period that she conceded was a period had occurred outside the window of possible perpetration of the injuries, namely on a Friday evening when she had worked at the Public House D for the evening early in August. That period of working is another example of her casual dishonesty because she previously represented that on that day she had been visiting her father because she was worried about his health. She conceded this had been a false account because she worried about the implications for her benefit entitlement of having been working at Public House D.
25. The mother insisted that her parents had simply failed to understand her own defaults in keeping Z informed of her whereabouts when they had initially in these proceedings described him as controlling because of his constantly texting the mother to find out what she was doing and where she was. That explanation (namely that the texts were prompted by mother’s defaults) was parroted throughout the evidence of the maternal family members and of Z and I consider it to be very strange. The explanation for the controlling conduct does not demonstrate that it was not controlling, but rather that this family have been rather too ready to take on somewhat distorted reasoning to mitigate what was originally, it seems to me, quite justified criticism of Z’s attitude.
26. The mother went through the week prior to A’s injuries coming to light. I do not propose to go through precisely what she said here, but rather to go through what I find to be the chronology for that week with reference to all the evidence I heard about. The mother told me of two other incidents that have occurred this year, which have emerged, sadly, not through frank self reporting by the family, but from police disclosure. On 13th February 2014, the police were called to an alleged assault upon the mother by Z. He ended up spending the night in the cells, but the mother did not press charges and he was released without charge. She had originally alleged that he had grabbed her by the throat and pushed her to the ground. This account became an obviously sanitised one later and in evidence when the mother insisted that her own behaviour and alcohol consumption had contributed and provoked Z. She would not repeat that he had grabbed her by the throat but rather said, somewhat lamely, and repeatedly that he had pushed her and caught her neck after she had slapped him round the face, twice on her account and three times on his.
27. A second involvement of the police took place on 26th March, again not disclosed to the Local Authority or the guardian or to this court by the statements, related to apparently threatening texts sent either to the mother or to her mother (I was not shown them), which included words to the effect of ‘You’re going down.’ This, the mother insisted, was after Z had read texts the mother said had simply come up on her phone by chance when he was watching a football match on it on 25th March this year. She insisted that she did not think Z had perpetrated injuries to A and expressed her guilt that he, an innocent bystander in her view, had been dragged into these proceedings and involvement.
28. When she gave her evidence in chief on Friday, 4th April the mother was separate from Z and living with her parents. At the end of that evidence on 4th April I explained and directed her not to discuss her evidence with anyone. However, because I thought that she was about to spend the weekend with her parents, I suggested that if any such conversation had proved impossible to resist and did take place, she was to come to court and be open about it. On Tuesday, 8th April when this case resumed, Z came to court and instructed his counsel, Mr Entwistle, that he and the mother had spent Sunday and Monday together and had extensively discussed the case. It is not in dispute that that happened and it is also not in dispute that but for his revealing it that would not have been revealed by the mother, contrary to very clear instructions I gave her on the Friday. As the mother resumed her evidence conceding all that, she also gave me the very clear impression that she now considered that she and Z were permanently reconciled.
29. In cross-examination she had to agree that the only rational explanation on her case for A’s bruises is that the father had caused them and then alerted the authorities in an extremely malicious double bluff to get her and Z or simply her into trouble. She had no proper explanation for why no one had revealed until the texts were discovered on her telephone that she had gone out on Tuesday, 13th August and left A in the care of Z either with or without her parents. If I have not yet included in this relaying of the chronology which is not in dispute, it is correct that nobody in the maternal family had relayed that information in any of the statements given either to the police or to this court or to the social worker prior to the interrogation of the mother’s mobile phone, to which I have already made reference.
30. There is an obvious inference that a false account then came to be concocted when the relevant texts came to light, which was not rebutted by any of the mother’s explanations. On January, 7th this year, whilst the matter was proceeding before His Honour Judge Lancaster, a telephone call was made from Court by the solicitor for the Local Authority to the maternal grandparents because the mother and Z through their respective advocates had conveyed the explanation for the interrogated texts revealing Z caring for A on his own on Tuesday, 13th August in the morning was that in fact the maternal grandparents had been with him throughout that morning. When a telephone call was made to the maternal grandparents by the solicitor for the Local Authority, they confirmed that to be the case, saying that they had indeed arrived at the mother’s home at quarter to nine in the morning and remained there until the mother had returned from wherever she had been. Subsequently, the grandparents, as I will come to relate, slightly changed the time of their arrival and more recently, they have withdrawn that account altogether. It very much appeared, however, that a false account had been concocted when the texts came to light and the mother was not able to shift that appearance by any of her explanations when she was cross-examined.
31. The mother did confirm that her mother had asked her about a mark to A’s ear, but insisted that that was a scratch which she had thought A had inflicted herself with her own fingernails. She was asked about being in financial difficulties and seemed to minimise this, although it is plain from the extraneous evidence that she was in debt to Bright House, I think, from whom a new bed had been bought and in debt to her landlord, for approximately two months arrears, £800. She conceded that she had recently, when finding herself in the same public house as the father, texted him and apparently asked him whether he would like one last night together. She insisted that this was to try and get something out of him, an approach that rather reveals a tendency to want to manipulate people. However, when her approach was rebuffed she then asked the father by text if he hated her, to which his reply was, ‘Let me see, you left our daughter with a violent thug, lied to me and tried to make me out to be a shit dad.’ Her evidence about this was to the effect that she never intended there to be any reconciliation, but she was simply seeing what she might be able to get out of the father. I assume she meant by way of information.
32. She confirmed also that Z had at one point pretended to be her and had tweeted messages to the father, apparently alleging that she had had sex with a number of other people during her relationship with the father. I did not hear any evidence about whether those allegations were true. She was markedly reluctant to give an account of what the meeting at Social Club B was about on Monday, 12th August. She sought not to answer those questions at all until I directed her to.
33. I turn to the evidence of Z. He told me that he has suffered with his nerves since the age of 16 following a car accident. He is prescribed Citalopram, which is an antidepressant. His hands shook from time to time during his evidence, as indeed did the mother’s. He confirmed during cross-examination a rather evasive account of his conviction in 2009 for a common assault and of his having been warned for harassing his ex-partner in December 2012. He had known the mother for some time. Indeed, the mother and the father had their wedding reception at Social Club B where he worked either as a manager and an employee or as a self-employed tenant. He seemed to me to seek to be as vague as possible as to which period was which, particularly when dealing with the financial transactions of that club.
34. His presentation to me struck me as remarkably similar to that which was described by Claire Peace. He spoke quickly and appeared determined to put over his arguments about the evidence in this case including as many negatives about the father as was feasible. He did not see that his conduct in limiting the access the maternal grandparents had to the mother’s home at an early point in his relationship with the mother or his conduct in reviewing her texts or his conduct in frequently demanding information about her whereabouts from minute to minute as unreasonable. Indeed, Mr Entwistle was instructed with each relevant witness and throughout his submissions to repeat what I have already described as the somewhat feeble justification for this which Z appears to have managed to persuade the maternal family to accept. His justification for requiring the maternal grandparents not to turn up unannounced at their daughter’s home was an occasion when the maternal grandmother had come into the bedroom to get A, after she had been heard from downstairs. On that occasion Z was lying only partially clothed under the duvet. This is an account that causes me in part to question why the mother was allowing A to remain awake in her cot in a room where he was asleep in any event. It seems that prior to his request that the grandparents should not turn up unannounced, they had been able to come and go from the mother’s home as they pleased.
35. Z gave a different account from the mother about the meeting at Social Club B on 12th August. He suggested that she was simply there to do some cleaning, whereas her suggestion seemed to be that he had wanted her to be there to help with paperwork and to be a witness to his meeting with the owner of the club, who was not identified during the hearing. Z seemed to me to be deliberately non-committal about his status with regards to that club. He was either an employed manager or a self-employed tenant. He explained that he was not VAT registered. That explanation is consistent with him being a self-employed tenant because it would be completely irrelevant were he simply a manager. He conceded that he owed the owner £2,000 odd, although the nature of that debt was not disclosed during the evidence. He agreed that he had suggested that that £2,000 debt could be repaid or reduced by his providing the owner with VAT invoices for beer bought for the club, which would then enable the owner, who is VAT registered, to reclaim the VAT paid for the beer.
36. This left with me with a concern that no one was, therefore, accounting to Customs & Excise the VAT on the beer that had been sold at the club to its customers. I did not consider that an in depth enquiry into those matters was directly relevant to the issues impacting upon the welfare of A. However, I do consider that they should be investigated and I invite the Local Authority to alert HM Customs & Excise to these matters and to this paragraph of my judgment. It should be noted in this regard that the maternal grandparents at an earlier stage had been worried about what they saw as the amount of cash that the mother seemed to have been handling at this relevant period to an extent that they even expressed a fear that the mother had become involved in ‘money laundering.’
37. Z was insistent that the maternal grandparents had attended the mother’s home on the morning of 13th August before her departure, in other words, at about 8:45am, and that they had remained there throughout the morning with him, even though their statements described a different arrival time, namely, 10:00am, and a quite different morning from that revealed by the text messages between him and the mother. He became quite assertive and argumentative when Miss Akerman, for the maternal grandparents, put to him that they no longer considered they could have been in attendance that morning and that their apparent recollections must relate to a different morning. It seemed to me that the conspiracy to give a false account of 13th August was unravelling, but Z’s response was to carry on talking fast and to seek to control the outcome by ridiculing the stance of the grandparents either to persuade them or other listeners of the force of his account without much regard for facts and truth.
38. His account of his arrest and detention on 13th February was also delivered rapidly with an entirely self justificatory agenda. He repeatedly said that the maternal grandparents and the mother had been drinking for four hours longer than him, but in any event he said, he can hold his drink better than them. He was deliberately vague about the quarrel that they all agreed had started at the maternal grandparents’ home immediately before the incident. He asserted that the mother had slapped his face three times. He was indignant that a passer-by had called the police, indignant that he had been detained and plainly regarded the decision not to charge him with any offence as a complete vindication of his account. His account of his reasons for sending the ‘You’re going down text’ was delivered in a similar vein. He talked about having had a feeling that the others were to abandon the Tuesday morning account of the maternal grandparents being present with him and A for reasons to suit themselves.
39. He denied trying to manipulate or control the mother by revealing their transactions over the weekend, the first weekend of this hearing, 5th and 6th April 2014. It also seemed to me that he was undermining and/or controlling her again by withholding any public commitment to their now having an on-going relationship. She, it will be recalled, had expressed a clear impression that she was back in a permanent relationship with him. He was not prepared to commit himself to that when he gave his evidence. He seemed quite unashamed of sending distressing and insulting texts to the father from the mother’s phone, purportedly from her.
40. Despite his evident anxiety and nerves during his evidence, he came over as a man who is used to being able to overwhelm others with his arguments and views and seemed to have an expectation that the kind of reasoning and persuasion that works in a bar room could also work in a courtroom. He had failed to factor in the essential need in a courtroom for a witness to deal in facts, corroborated where possible and to answer questions straightforwardly and truthfully rather than to engage in argumentative assertion and parrying with advocates. He is more intellectually able than the other maternal family witnesses. Nevertheless, he too was a poor and unimpressive witness by reason of his repeated attempts to talk over and round the obvious weaknesses in his own account and his refusal simply to answer straight questions.
41. I next heard from MGM, the maternal grandmother. My impressions of the maternal grandparents as witnesses should be tempered by my conviction that these are loving grandparents who would not knowingly or deliberately harm their granddaughter and would not expose her to harm by anyone else knowingly. The difficulty is their preference seems to be to believe that she has not really been harmed at all, except by the intervention of the Local Authority. In that I suspect their reasoning has become diverted by their love for their own daughter and the fact that someone has worked quite hard to persuade them of some rather warped reasoning in this case. MGM has given various accounts of the events of last August. She was present at the hospital when A was admitted and her injuries examined and she talked to Dr Y and F. She was subsequently interviewed by the police and then gave a statement to the court prepared by the Local Authority’s solicitor. At no point in any of that did she say that she and her husband had been present at the mother’s home with Z and A on Tuesday, 13th August.
42. Initially, she had conveyed her grave anxiety about Z, his apparent controlling behaviour, her worry about a mark which she then described as a bruise to A’s ear and the fact that she and her husband had gone to the Citizens Advice Bureau shortly before the injuries were found. It turns out that they did so on Monday, 12th August. She said in terms that they had been ready to consult with social services themselves, but that they were worried that this might have meant that A would be removed from her mother’s care. Gradually, however, the tone of her contribution to these investigations seemed to change. In the first instance, she seems to have perceived the removal of A from the family as a greater evil than the injuries that necessitated that removal. Like all the maternal family, she made constant references to the day when A was ‘taken’. This is despite the fact that, from day one, the significance as opposed to the gravity of the injuries A sustained has been repeatedly explained to her. I do not consider that the maternal grandparents have yet taken on board the significance of those injuries for reasons I will come to explain.
43. The maternal grandmother sought during her evidence to distance herself from the concerns she had expressed during the week that the injuries were discovered by seeking to suggest, firstly, that the Citizens Advice Bureau appointment had mysteriously been about the mother’s rent arrears and the possibility that she might be evicted. I simply could not follow the logic of this and think it far more likely that the visit was prompted by concerns about Z’s behaviour or perhaps even by the mark to A’s ear which she now insisted had not been described by her as a bruise. Even on her own account, it became clear that the maternal grandparents were not aware of the extent of the rent arrears that they now suggest were the cause of the visit to the Citizens Advice Bureau. They only became aware of them three days later during a telephone call from an associate of the mother’s landlord. Thirdly and rather sadly, it seems to me, the maternal grandparents sought to suggest that their original opinion that Z was controlling was unfair because his constant calls and texting of their daughter whilst she was in their company were in fact justified by her daughter’s conduct.
44. On 27th December last year, the evidence containing the mother’s telephone records was forwarded to her by her solicitor. A scrutiny of those records reveals that in fact A had been in the care of Z at her mother’s home on the morning of 13th August when the mother had been out. The first day of the fact-finding hearing before His Honour Judge Lancaster was occupied by medical evidence, but during it the significance of the scrutiny of the mobile telephones was discussed. The mother and Z, as I have already said, at some point asserted through their advocates that he had not been alone, but that the maternal grandparents were there during the morning.
45. Again, as I have already said, the Local Authority’s solicitor telephoned the maternal grandparents from court on 7th January to ascertain their account of that morning, only to be told that they did indeed confirm the mother and Z’s account and suggested that they had been at their daughter’s home all morning from 8:45am. This provision for the mother and Z of a get-out account now rendered it necessary for the hearing before HHJ Lancaster to be abandoned in order for the maternal grandparents to be represented. Plainly, a much more rigorous approach to their attitude and capacity to protect was now necessary. Their actions during the relevant week would also need to be scrutinised because the intellectual possibility only that they were perpetrators of injury became a larger possibility which also needed to be more actively scrutinised. In other words, they put themselves back into the pool of possible perpetrators by that account. The case had to be relisted therefore for a new fact finding hearing before me, which, of course, could not take place for a further three months.
46. The maternal grandparents were made interveners and got legal representation. By the time their own team came to prepare their statements, their account of 13th August was that they had gone to Plungington to cash in their weekly carer’s allowance at the Post Office there. A bank statement was exhibited to the grandmother’s statement to support this. It in fact shows that the day on which the money was cashed was Monday, 12th August, not Tuesday, 13th. The statement also said not that they had arrived at 8:45am, but that they had arrived at 10:00am, which was known,from the texts, to be after their daughter had gone out. They also were clear that they had not seen her at the point of their arrival. That again conflicts with the account of at least Z, if not the mother’s. The MGP and F’s accounts of the details of the morning were different from the account that Z was tied to by reason of the texts. Their account was that they had all been in the garden of the mother’s house all morning with A in the baby walker, whereas his account necessarily gleaned from the texts is that in fact A had been put down in her cot for a rest. Indeed Z sent a somewhat gleeful text at the relevant time suggesting that the more she slept that morning the more awake and, therefore, more difficult she would be to care for by the father later that day.
47. In fact, by the time the maternal grandmother came to give her evidence to me she had retracted her account that the morning that she and the grandfather described in their statements was 13th August at all, saying in her evidence that the discrepancies between her account and that of Z caused her to believe that it must be some other day that she and the maternal grandfather are recalling. This is all wholly unsatisfactory. I consider it to be overwhelmingly likely that at some point MGF and MGM were persuaded to offer a false account to avoid this court finding that Z was on his own with A at all during the crucial period. The maternal grandparents realised during mother and Z’s evidence that this would not work and sought to step away without being open about why they had ever said this in the first place.
48. The maternal grandmother was in the witness box I think quite taken aback by the level of scrutiny and challenge her wavering and varying accounts were subject to. She seemed to me to have quite failed to realise the danger to A of her offering a false account. If it is right and it seems to be the case of all parties that A has been injured in the care of her mother and Z, then a false account intended to increase the chances of her returning to that very situation exposes her to the risk of injury again. That reasoning seems simply to have been missed.
49. MGM gave an account of the events that led to the police being involved on both 13th February and 26th February. 13th February seems to have started from a drunken dispute between maternal family members, the details of which I do not believe anyone has been entirely frank about. MGM did not seem to me to have an adequate appreciation of how poorly the entire events of that evening reflect upon each of the participants from the very facts of the row to the failure to alert the social worker to the fact it had happened at all. That goes for MGF’s attitude to that incident as well.
50. Overall, I am sad to say that MGM struck me as another witness who did not feel bound to tell the truth when that truth became inconvenient or awkward. Someone had persuaded her that it was a good idea to offer the false account of 13th August, just as she had been persuaded to water down her initial protective response to A’s injuries. She has not chosen to explain who that is. She conceded that the maternal family, in which I am including Z, have discussed this case when together at the pub. Once again, there seems to me to have been a failure to appreciate that what is good reasoning in the bar room does not work in reality or in the courtroom.
51. The next family witness was MGF, the maternal grandfather. His credibility, sadly, was no more impressive than his wife’s. His evidence was broadly supportive and on all fours with that of his wife. Like her, he did not seem to have taken on the significance of the injuries A suffered and appeared to see that the protective action rather than the injuries themselves to be the more harmful. He made clear his own resistance to involving social services in case, as he put it, the ‘wee‘n’ were taken away.’ Like MGM, he seemed to prefer to think of the injuries as having been caused by accident in the disarray of the father’s mother’s household where father was residing at the time. He does not seem to have taken on board that this is simply not supported by the evidence, which is agreed.
52. He stuck with MGM’s explanations of the Citizens Advice Bureau’s visit and failed to see how this contradicted the claim that the call to the father on Thursday, 15th August was to ask for his help with the mother’s rent arrears after the maternal grandparents found out the extent of them, which was on the Thursday evening. It seems to me much more likely that they had decided that the time had come for the father to know the extent of Z’s involvement in his daughter and their granddaughter’s life. MGF sought to advance Z’s justification for the constant texts and calls to the mother, which had so annoyed MGF at the time. Strangely, although he did not seem to have a very high opinion of Z, and was simply resigned to his daughter’s relationship with him.
53. The last family witness in the case was A’s father. He was a much more impressive witness than the other family members. He appeared to me to be doing his best to assist me with facts that he recalled. He was obviously deeply distressed by what had happened to A and also by the separation which has been necessitated by the Local Authority intervention in these proceedings. He was self-evidently very saddened by having spent several months of his contact to his daughter being restricted to only three hours a week. He seemed bewildered by his separation from the mother and hurt by her infidelity with Z, which it emerged during the hearing had started very much earlier than had previously been conceded by her and in fact at the end of February 2013. He was clear that he had texted and telephoned her about the bruising during the early evening of 13th August and it seems to me that the independent evidence of the screenshots that he has provided from his telephone, both of the WhatsApp messaging and also of the call records, confirm this. He made assiduous efforts to ensure that his phone could be scrutinised from 17th October 2013 when I ordered that this should occur and the fact that it had not been done or was not possible was patently not his fault. I note in passing that Z’s phone was not scrutinised, he having most unfortunately lost it a short while after my order that it should be scrutinised.
54. Mr Senior for the mother in cross-examining the father, properly confronted him with the fact that some of his statements omitted the fact of the telephone conversation as well as the text messages. It seemed to me that he dealt properly with those anomalies, and I also considered that his narratives were not inconsistent with both texts and actual conversations having occurred; although the reference to actual conversations are not made expressly on each occasion he related exchanges consistent either with a text or real conversation. Mr Senior also put to him that his transcribed conversation with the NSPCC emergency line revealed that he had first noticed the bruises not on Tuesday, 13th, but on Wednesday. Father said this was an honest mistake. I consider that this is overwhelmingly likely to be true and borne of the fact that the NSPCC conversation took place in the early hours of Friday, whereas he might well have been in a mind-set that it was still Thursday when he made the call. He had been confronted with what he is likely to have found quite traumatic information from the maternal grandparents about the mother’s conduct and new relationship that evening.
55. The mother, through Mr Senior, argues that a different approach is being taken to his inconsistencies than is being taken to hers. That, it seems to me, demonstrates a complete lack of insight on her part as to the different order of magnitude of the inconsistencies in her own evidence from his. She also ignores the fact that she openly sought to tailor her account to something that she thought would look better than the reality on at least one occasion. The father was also clear that he had discussed the bruising with the maternal grandparents and I think it likely that he had, either on the Wednesday after they had looked A when he played football or on the Thursday, when I find they called him to reveal the extent of Z’s involvement and their own anxieties about that involvement. The father conceded that he should have sought medical advice as soon as he noticed A’s bruising. He realised that had he done so the steps to protect her could have been taken earlier and without her being put at further risk as undoubtedly happened when he returned her to the mother’s care before his call to the NSPCC.
56. I turn to my findings. It seems to me perhaps most convenient and most accessible to consider my findings about each of the key protagonists, starting with the most credible and least culpable and working through them. I turn to the father. For the reasons I have outlined in dealing with his evidence, I consider that the father is a credible witness who was doing his best to assist me and I do not consider that the few inconsistencies in his evidence are incompatible with that impression. The father did not injure A. His failure to protect her was short-lived and understandable. He had no reason to suspect either his wife or her parents of being capable of deliberately injuring her. The bruises he saw are highly significant for child protection professionals, but are not in and of themselves serious injuries. I find it entirely understandable that he did not react protectively until his discovery that Z was playing a major role in his daughter’s life and that this was causing concern to the maternal grandparents.
57. None of the other family members could in my view advance with any appearance of seriousness a case that in fact he was the perpetrator of the injuries. Quite apart from the inherent lack of likelihood given his personality and demeanour that they knew well, such a finding would not only involve him injuring A, but also involve him then using those injuries he knew himself to have caused to cause a lot of trouble for the mother, the maternal grandparents and Z, purely motivated by malice and jealousy. This seems to me to be vanishingly unlikely. In general, where the evidence of the father conflicts with the evidence of any other party, I find it more likely that his account is the true one.
58. I turn to MGF and MGM. Their evidence was in reality on all fours with each other and my conclusions in respect of each of them are the same. I, therefore, consider it appropriate to outline those conclusions jointly. The only difference between them is it seems to me that MGF was probably less directly involved with the physical care of his granddaughter when she was in their care. I do not consider that that difference affects my overall view of them either as possible perpetrators of the injuries or as people who hold some culpability by failing to protect from such injuries either now or in the future.
59. As I have already outlined, MGF and MGM have a deep love for their granddaughter. Despite their own health difficulties, they were delighted to care for her whenever the parents needed them to and did so gently and well. I do not consider it likely at all that either of them would be capable of handling her forcefully or roughly or assaulting her. A great deal of their leisure time is spent in public houses. They spent their working lives in public houses. Some licenced premises are not proper environments for children. I have deliberately resisted considering this aspect of the case as a negative factor in and of itself, although there might be cases in which that might be established. That issue is not what this case is all about.
60. However, MGF and MGM have failed to protect their granddaughter from the risks that they perceived. The texts from MGM to the mother in or about March 2013 show that she was already then worried that the mother was leading a lifestyle that was incompatible with caring for A by remaining out drinking and clubbing until the very early hours. I think it likely that MGF and MGM were worried about the mark to A’s ear and also about the inner thigh bruise or bruises pointed out to them. They were also worried by Z’s attitude to the mother and to themselves, which they then characterised as controlling. Those are the reasons I find they went to the Citizens Advice Bureau on 12th August 2013. They may not have articulated them directly there and they may have been as vague with the adviser there as they tried to be with me in looking back at matters. The Citizens Advice Bureau did not provide them with any satisfactory answer, but they were resistant to going to social services because they did not want to risk A being taken from her mother.
61. I think that the father did discuss the bruising he had seen with them either on the Wednesday or on the Thursday, that is 14th or 15th August. They could and should, it seems to me, have been aware of it in any event from the Wednesday or the Thursday from their own direct observations. I consider it highly likely that the maternal grandmother’s contributions to the history to Dr Y and to F represents their state of mind that week and it is appropriate to read in, in looking back at this the actual record from the hospital which was provided to me on the first day of the hearing. This is what is recorded:
‘MGM and MGF have grave concerns about Z. Z and M have been together less than three months. MGM says Z is very controlling of M. He won’t allow MGM to visit M unannounced. He won’t let M walk to MGM’s in case she meets any men along the way. He claims that A is ratty whenever she returns from her father’s address. MGM has reason to believe that M has rent arrears of approximately £800. She believes that Z is encouraging M to launder money. She and MGF approached the Citizens Advice Bureau this week to find out where they stand legally vis-à-vis A. MGF urged her to contact children’s social care earlier and she wishes she had done now. She says she challenged M about some bruising behind A’s ear recently, but M had claimed ignorance and she hadn’t wanted to assume the worst about her daughter.’
62. It rather looks from that that at that point in time MGF and MGM were only very shortly behind the father in wanting to act protectively. It is extremely concerning, therefore, that from that point their attitude seems to have changed. During the assessment of them and in their statements, there is a sense that they have not taken on board the significance of eleven separate bruises to an 8-month-old child, but rather that they were beguiled by the fact that such injuries were not medically serious. There also creeps into their assessment a sense of resentment on their part of the father for initiating the protective intervention. That resentment or annoyance is evident in the statement of the maternal grandmother in which she considers that his actions are borne of a jealous fall out (see paragraph 20 at C111). This was also evident to Claire Peace, the social worker, when she assessed the maternal grandparents. It seems to me that by the autumn neither appeared to be willing to contemplate the possibility that the mother or Z were the perpetrator of injuries and that seems to me to remain their perspective.
63. Initially, as I have said, they appear not to have had any knowledge of who had care of A during the morning of Tuesday, 13th August. I consider it highly likely that the account they offered to the solicitor from Lancashire County Council when she telephoned them from this court on 7th January that they had spent more of the morning of 13th August at the mother’s home with Z was a made up account at the request of either the mother or Z. That request was only shortly made before the telephone call from court, but I cannot tell whether it was made hours or days before.
64. I reject the maternal grandmother’s account that she overheard the mother and Z talking on the telephone about a Tuesday and jumped to the conclusion not only that they were talking about Tuesday, 13th August, but also that she had been present with Z at the mother’s home on the 13th August or at all. It seems to me highly unlikely in the wake of Z’s request that the grandparents should ask before they visited. that they would have just turned up, particularly at the early hour initially claimed, even were they in the area to go to the Post Office. It also seems to me highly unlikely that they would then have chosen to spend the whole morning with him given their opinion of him at that point. Quite apart from this, the accounts each protagonist has given of this morning are at variance, which to my mind demonstrates how last minute the concocted accounts were.
65. The maternal grandparents recognised during the hearing before me the significance of the contradiction in the accounts and decided to withdraw theirs altogether. They were never able satisfactorily to explain why they had given such a palpably false account in the first place or really to explain satisfactorily their abandonment of it so soon after it had been offered. Their attitude to A’s injuries, to the consequent intervention and to the father, in conjunction with their willingness to lie and risk an outcome for A which might mean that she would return to danger, demonstrates to me that their present mind-set prevents them from having much capacity to protect A from similar abuse to that which precipitated the intervention of the Local Authority and these proceedings. It also means, very sadly indeed, that the Local Authority or indeed the father would be entitled to be very cautious about trusting them to act protectively in the future.
66. I turn to the mother. It should be obvious by now that I have narrowed the pool of possible perpetrators to two, namely, either the mother or Z. I think it likely that there is only one perpetrator and that most of the bruising which was seen by the father on Tuesday, 13th August was inflicted in the period between A’s photographed bath on the Sunday evening and her being handed over to father on the Tuesday at about 1:00pm to 1:30pm. I consider that it would be dangerous to attempt to narrow down the window further than that. My preference would be, if at all possible, to be able to say who is the more likely perpetrator, but if I cannot I should not attempt to do so on either an instinctive or speculative basis. Such a conclusion must be based on the evidence and the facts I can properly find.
67. If the mother did not cause the injuries to A herself, she is responsible for a failure to protect her of a significant magnitude and, in any event, there are many concerns about the broad canvass for these events and the mother’s parenting. Those concerns are these. The mother seems on her own admission at a time when A was only weeks old and a tiny dependent infant to have commenced a lifestyle which I have characterised as degraded and degrading. Miss Bowcock in cross-examination was kinder and referred to the mother as ‘walking on the wild side.’ This involved heavy drinking at least two nights a week; staying out very late; embarking on an affair with Z, on his own unchallenged account when A was only 2 months old; and dangerous sexual encounters with at least one other person, as demonstrated by her text messages. The mother attributes the breakdown of her marriage to the fact that the father seemed to pay more attention and give more affection to A than her. This seems to me to be a most unusual complaint by a new mother. The mother was thought by the father to be unhappy. He urged her to seek help. She has sought to distance herself from his point of view, but it seems plain to me that something was going wrong for her at that time, although she has not been frank enough for me to fathom what it can have been.
68. The mother delegated rather a lot of A’s care to other people. As I have outlined, by the time of the injuries her care for her was no more than two and a half nights a week on average. The mother was spending a great deal more money than she was receiving. She was in debt, including considerable rent arrears, and that is likely to have been a significant stressor which was sending her to paid employment. This was notwithstanding the fact that she was on benefits and on maternity pay. Furthermore, the mother’s attitude to the bruises that prompted these proceedings has been very far from protective. In the first place, she has not chosen to assist the professionals or this court with any attempt to give a frank and accurate account of events. Her approach seems to have been one of saying the thing which is least damaging to her own image and cause. At one point she was open about this, which demonstrates to me that this mother does not understand the value of telling the truth either for herself or for her daughter.
69. I think it likely that she has attempted to delete any damaging messaging from her telephone before it was scrutinised and that that accounts for the fact that there are no WhatsApp messages at all on it for the relevant period. It is plain that she had used WhatsApp quite frequently both before and after this. It is notable that the father had used WhatsApp to message her about the bruises on 13th August. It is fortunate for A that the mother was either not able or forgot to delete those text messages from the morning of 13th August, establishing, it seems to me, very clearly that she left Z caring for A during that whole morning, despite the fact that he was ill and despite the fact that she would have known that neither A’s father nor her own parents would have approved of such a delegation of her care.
70. Her attitude, like Z’s and, sadly, that of her parents, seems to be that the father should not have alerted the authorities to these injuries. She seems to see the protection and the intervention as the harm and not the injuries and their significance . That comes over rather loud and clear in a Facebook message conversation between her and a friend called Laura. In that conversation the father is referred to, I think by Laura, in fairness, as ‘a twat’ and the significance of the injuries is repeatedly minimised with them being referred to as ‘a bruise’ and the fact of the investigation characterised as ‘ridiculous’. It is interesting to note that the mother in that exchange refers to Z being brought into the proceedings even though, as she purports to say, he only saw A when she, the mother, was there. Plainly, she had rationed the truth as much from her friends and supporters as from the professionals and the court.
71. I also consider it likely that the mother is at the heart of the doomed attempt to minimise the discovery that Z was looking after A on his own on 13th August by getting her parents to offer a false account that they were there too. Since no one is prepared to break the silence as to how this occurred, I cannot tell who took what role in that attempt to divert the court from examining what really happened to A that week. Whether the mother is a leader or a follower in this, it is a stark example of a complete failure to engage with the court or with the social workers and, therefore, with the protection of her own daughter. This continues into the failure to alert the Local Authority, the children’s guardian or the court about the incident on 13th February or the ‘you’re going down’ text on 26th March. It further continues into her failure to disclose the reconciliations of the first weekend of this hearing, including discussion about the evidence when she was in the witness box.
72. I turn to Z. Z is also a concerning figure. At the time these injuries were inflicted the following facts applied to him. He was ill on the morning on 13th August. His relationship with the mother was new and he can be shown by his texts and by the observation of the grandparents to have been both controlling and insecure in that relationship. I consider it highly significant that he asked her questions about what was left over in the freezer and, indeed, that he had looked at her phone and even much later in the proceedings sent texts pretending to be her. He had taken it upon himself to seek to make the mother regularise the father’s contact. He had taken it upon himself to close the open access her parents had previously enjoyed to her house and their grandaughter. He plainly felt a degree of malice to the father, as shown by the text on 13th August, although I cannot fathom what he thought the father had done to him. It does not seem to have occurred to him that the father was in fact the victim of his adulterous and deceptive relationship with the father’s wife.
73. He has demonstrated a capacity for violence with his convictions for common assault and the incident on 13th February. His demeanour is a very odd combination of someone who is both highly anxious, but he is also arrogantly confident that his own ability to talk over or through any obvious weaknesses in his own arguments will hold sway. During the months of the proceedings, he has been unstinting in his efforts to persuade people, including the police and social services, that the father should be viewed suspiciously and unstinting in his efforts to distance himself as far as possible from any suspicion or involvement. This emerges in his police interview, the assessment session with the social worker and in his oral evidence. It seems to me overwhelmingly likely that this has also been his approach in conversations with the family about the issues in the case and in persuading them to his approach he seems to me to have been very successful.
74. This may be simply because he perceives that a stepfather figure is rather an easy scapegoat and he has felt the need to come out fighting against that assumption using all the means at his disposal. I do consider that he, like the mother, has played a major role in the attempt to divert the court from the obvious inferences of the texts of 13th August 2013, which demonstrate beyond peradventure that he had charge of A during at least three hours that morning. I consider it highly likely that he was part of the agreement that the grandparents would give a false account of having been present with him. As I have already said, the stand-off between the witnesses means that I can do no more than guess who led this conspiracy and guessing is not a proper basis for a judge to make findings of fact.
75. Once again, I cannot say who had the larger role in the conspiracy, him or the mother, and that leaves me without any ability to draw inferences from it as to which one of them inflicted injury to A. The mother has always been observed to be gentle and affectionate with A. Her health visitor was shocked when alerted to the injuries. The mother is obviously very proud of A and her ‘phone is full of photographs of the baby that show this. Until the evidence was heard, the father did not consider that the mother was a likely perpetrator of injuries and he, of the credible witnesses, knows her best of those that I heard. His counsel’s submissions are now that I do not have the evidence upon which to base a conclusion as to the identity of the perpetrator as between the mother and Z. That is also the position of the Local Authority and the children’s guardian, although no one sought to persuade me during the extremely helpful submissions that all the advocates made that I should not do so if I thought it right to do so.
76. I was ready to attempt to deliver an extempore judgment in this matter on Friday, having been greatly helped by those submissions. I was, however, troubled that I should leave no stone unturned in seeking to identify a perpetrator as between the mother and Z and I have spent some considerable time re-reading the evidence, my notes of the oral evidence with that purpose. I have, sadly, come to the conclusion that I cannot do so. I would have far preferred to deliver a judgment that tells A ultimately that her mother was not her assailant, even though responsible for serious deficiencies in protecting her. I cannot do so because it would not be based upon the evidence, but on that preference and my distaste for Z’s approach to giving evidence. Those factors are not enough.
77. The four family members, by whom I mean the mother, Z and the maternal grandparents, have deliberately, it seems to me, withheld the whole picture and diverted my process. This means I simply cannot say as between M and Z which of them injured A, but I am quite satisfied that it was one of them. If it were not the mother, then she is responsible for a serious failure to protect. If it is not Z, his part in the orchestration of the family’s sympathies against the father and his part in the conspiracy to offer false accounts also represents a culpable failure to protect A in the future on this part.
78. So far as the future is concerned, it now seems to me blindingly obvious that A should live with her father. He will need a great deal of support, which he cannot now source from the maternal family in the wake of my findings.