England and Wales Family Court Decisions (High Court Judges)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Liverpool Civil and Family Court, Hearing Centre, 35 Vernon Street, Liverpool, L2 2BX
		15/06/2015

The Honourable Mr Justice MacDonald

INTRODUCTION

1. In this matter I am concerned with the welfare of a boy J, aged 5 and a boy A, now aged nearly 18 months.
2. Wirral Borough Council applies for care orders in respect of J and A under Part IV of the Children Act 1989. The primary issue with respect to that application is whether bruising seen on A in November 2014 was accidental in nature or inflicted and, if inflicted, by whom.
3. Both the local authority and the Children's Guardian concede that in the event the court finds that the injuries were the result of an accidental mechanism the threshold criteria under s 31(2) of the Children Act 1989 will not be met in this case. In such circumstances, the local authority would seek provide, and the mother would willingly accept, services under s 17 of the 1989 Act to address some low level concerns.
4. During the course of these proceedings A has been living with his maternal grandmother, and J has been living with his father.
5. For the reasons set out in this judgment, I have concluded that the threshold criteria pursuant to s 31(2) of the Children Act 1989 are not satisfied in this case and that, accordingly, the local authority's applications should be dismissed.

THE PARTIES

6. As already related, the applicant local authority in this matter is Wirral Borough Council. The council pursues findings that the bruising sustained by A was inflicted upon him by either the mother or her partner.
7. The mother denies inflicting injury to A and now advances explanations for each of the injuries he sustained. She invites me to find that the injuries to A were accidental in nature.
8. The second respondent, KU, is the father of J. The third respondent, BR, is the father of Isaac. Both KU and BR do not believe the mother capable of causing injury to A.
9. The fourth respondent, JL, is the mother's partner. JL has two children by another relationship and has been made a party to these proceedings in circumstances where the local authority alleges he is within the pool of perpetrators of the injuries to A. JL denies inflicting injury to A and invites me to find that the injuries were accidental.
10. The children's interests in this case are represented by their Children's Guardian, Pauline McGrath. Having heard the evidence in this case the Children's Guardian invites me to find that the local authority has not satisfied the burden of proving that the injuries sustained by A were non-accidental in nature.
11. Before turning the substantive issues in the case it is, unfortunately, necessary for me to mention two matters regarding the case preparation in this matter that have caused the Court particular concern during the course of this final hearing and which risked materially prejudicing the position of two of the respondents to these proceedings.
12. First, the bundle lodged by the local authority in this case failed completely to comply with the requirements of PD27A. In particular, it failed to contain any of the documents specified at paragraph 4.3 of the Practice Direction, the so called 'Practice Direction documents'. Thus, until 9.00am on the morning on which the hearing commenced the Court was without an adequate Case Summary, a Chronology, any Position Statements and, most significantly given the Court was being asked to make findings regarding alleged inflicted injury to an 11 month old child, no Schedule of Findings. Further, in addition to the absence of these documents, JL, as a then litigant in person, had not been provided with any of the other documents contained in the bundle (save for some very limited documentation received from the mother's solicitor at an earlier date).
13. Whilst the failure to comply with PD27A was a plain breach of that Practice Direction, it is also the case that the failure of the local authority was of particular detriment to JL and placed his right to a fair trial in significant jeopardy.
14. The absence of a schedule of findings meant that the respondents to this application did not have proper notice of the particulars of the allegations made against the mother and JL. In the mother's case this difficulty was in part, but only in part, mitigated by the fact that she had lawyers to advise her. However, as a litigant in person, JL arrived at court on the first day of the hearing without any notice of the allegations made against him or of the totality of the evidence on which the local authority relied to make good those allegations, and with no real idea that the local authority was that very day intending to invite a judge of the High Court to find that he had injured deliberately an 11 month old child. It was the most remarkable and unsatisfactory state of affairs.
15. After the Court expressed its extreme displeasure at the approach of the local authority towards JL, and to avoid the need for an extended adjournment while he got to grips with the issues and, from a layman's perspective, the relatively complex evidence in this case, the local authority agreed to fund representation for JL. The Court is grateful to Mr Jamieson of counsel and to those who agreed to come on the record to instruct him for stepping into the breach. The court is further grateful to Mr Jamieson for discharging his professional duties with evident skill notwithstanding the short notice given to him.
16. Whilst the local authority is to be commended for agreeing to fund representation for JL, I must observe that such a step, whilst of course desirable, would not have been necessary had the local authority complied with the requirements of PD27A and provided JL with a properly constituted bundle.
17. The requirements of the Practice Direction are clear and the President of the Family Division has recently reiterated in the strongest terms in Re L (A Child) [2015] EWFC 15 the need for it to be complied with to the letter. The requirement to give proper notice to respondents of allegations made against them, and of the evidence in support of those allegations is equally firmly established in law and applies with equal force to cases involving litigants in person. The local authority is under a heavy obligation to ensure that the procedure at all stages is both transparent and fair, both in and out of court. The fact that a party or intervener in public law proceedings may appear in person does not relieve a local authority of its responsibilities in this regard. Indeed, it requires the local authority to be even more diligent to ensure that those responsibilities are fully and properly discharged.
18. The second matter of concern regarding the preparation of this case related to the presentation of evidence relevant to the mother's case. The mother had, prior to the commencement of this final hearing and by way of a statement dated 26 January 2015, given an explanation for the bruising sustained by A on the back of his thighs. Namely that I, who is significantly larger and heavier than a child of a comparable age, had fallen back and sat down heavily on plastic toys in his cot. When pressed in cross examination to agree that this mechanism provided an explanation for the injuries seen on the back of A's thighs the consultant paediatrician called to give evidence in this case initially expressed the view that, in the absence of a witnessed incident of that nature, it was unlikely that such an incident could result in the bruising seen.
19. Towards the conclusion of her cross examination of the consultant paediatrician, Ms Howe on behalf of the mother proceeded to produce a photograph which had been shown to the other parties and to the consultant but not to the court. The consultant had not been asked about the photograph during her evidence in chief. The photograph, which was undated and not exhibited to any statement describing the circumstances in which it was taken nor what it purported to show, appeared to show a bruise to the back of A's thigh sustained, it was said by Ms Howe, when he sat down heavily on a toy whilst in his kinship placement with the maternal grandmother.
20. This was the first time that the court had been put on notice that there had been an independently witnessed incident that was said to replicate the explanation advanced by the mother for the bruising to A's thighs. The consultant paediatrician had received little better notice of it than the court and, as previously noted, had not been asked to comment on it during her evidence in chief. Matters did not rest there.
21. Upon the photograph being produced by Ms Howe, counsel for the local authority Ms Banks rose and announced to the court that the allocated social worker, Mr Morris had been present at the maternal grandmother's property during the incident to which the photograph was said to relate, had witnessed A sit down heavily on a plastic toy and had observed a red mark on the back of A's thigh resulting from that incident. As will become apparent, when giving evidence Mr Morris confirmed that whilst the mark had not developed into a bruise by the time he left the house, the bruise shown on the photograph corresponded to the location of the red mark that he had witnessed following A's impact on the toy. Despite the obvious relevance of this evidence, the local authority had not prior to this hearing secured a statement from the social worker placing that evidence before the court.
22. Thus it was that at the end of the cross examination of the medical evidence in this case the court was for the first time made aware of the existence of photographic and witness evidence central to the court's determination of whether a mechanism advanced by the mother for some of the injuries to the child, which the local authority contended were inflicted by the mother or JL, could constitute a reasonable explanation for those injuries. I directed that a statement be taken from the mother exhibiting the photograph and that a statement be taken from Mr Morris detailing what he had witnessed.
23. The mother makes clear in the statement taken from her at court that she had only appreciated the significance of the photograph when she spoke to Ms Howe at court. During closing submissions Ms Banks informed the court that the photograph had only been the subject of discussion between the parties at the outset of this hearing, at which point she was informed by the mother's team that it was being said Mr Morris had witnessed the event. Ms Banks further submits that the mother did not raise the possibility of A sitting on his toys as a cause of the injury until her statement of 26 January 2015.
24. It is nonetheless a matter of great concern that this evidence had not been identified well before the commencement of the final hearing and shortly after the mother advanced her explanation in the statement of 26 January 2015. Had it been identified, the evidence could have been produced before the court in form which complied with the rules of court and the consultant paediatrician could have been given proper notice of the evidence and a chance to consider and comment upon the same before attending court. Once again, it was an entirely unsatisfactory state of affairs.
25. There is a heavy burden on those representing parties to care proceedings to ensure that their respective cases are rigorously prepared such that all evidence relevant to the advancement of those cases is identified and placed before the court in good time. This heavy burden applies equally to local authorities and includes a duty to identify and disclose evidence that may assist a respondent's case. Discharging this burden effectively will often involve close questioning of clients in conference as parents and social workers may well not immediately appreciate the forensic significance of events, documents or photographs until advised by their lawyers.
26. Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases.
27. This is not a case in which the making of a finding of non-accidental injury would have resulted in the children being permanently separated from their birth family by way of adoption. However, were I to have found that the local authority had demonstrated that the injuries had been inflicted to I, and had the mother refused to accept those findings, the local authority would have invited me not to return the children to their mother's care. That this was a possible outcome had the advocates not discovered, at the very last minute, the evidence concerning the independently witnessed incident outlined above should serve to concentrate minds.

BACKGROUND

28. The background to this case is notable for the fact that, save for the bruising noted when A was taken to hospital by his mother and JL on 6 November 2014 there have been no other issues raised regarding the mother or JL that might be said to constitute risk factors for physical (or any other type) of abuse, either before or since the bruising to A was observed. In the circumstances, the background can be taken relatively shortly.
29. At the time the bruises were identified on A he was living with his half brother, J and their mother, the mother having separated from A's father, in May 2013. The mother was in a relationship with JL, although they were not residing together. JL would visit the mother's property. He says that he would not be responsible for the care of the children but would engage with them and play with them when he visited. There is no evidence before the court to gainsay this assertion. JL has provided a statement to the court setting out the times he was and was not at the mother's property during the lead up to the bruising to A. This evidence was not challenged in cross examination by the local authority.
30. The relationship between the mother and BR featured domestic violence. There is however no evidence of domestic violence being a feature of the relationship between the mother and JL.
31. Whilst JL's ex partner has alleged he assaulted her by grabbing her briefly around the throat there has been no finding or conviction in this respect. Investigation has revealed no domestic violence call outs in Police records or entries on CYPD systems. Although JL's partner claimed to have reported the incident to police there is no record that she did so and she refused to discuss the detail of the allegation further with Mr Morris the allocated social worker. JL's former partner described JL as a "good dad" about whom she had had no specific concerns in relation to the children.
32. The common consensus of all of the professionals in this case is that the other risks factors commonly associated with physical abuse are likewise absent from this case. There have been no previous concerns regarding unexplained injury to either of the children whilst in the care of the mother or JL, or indeed any other of the adults involved in their lives. The mother is in no way socially isolated and benefits from an extremely supportive family, as evidenced by her own mother's willingness to care for A during the currency of these proceedings. There is no evidence of the mother having acute mental health difficulties and no evidence of drug or alcohol misuse on the part of the mother. Whilst JL has past cautions and convictions for the use of cannabis, there have been none since 2013 and he has no difficulties with alcohol.
33. There is no evidence in this case of poor parent-child relationships or of high levels of parental stress on the part of the mother. Whilst it is the case that the mother missed a number of medical appointments for A prior to November 2014 this must, in my judgment, be placed in the context of the mother having lost a daughter prior to birth two years ago in circumstances where she holds health professionals responsible in failing adequately to detect her pre-eclampsia. Whilst there have been some concerns about J being late for school again, in my judgment, this must be placed in the context of the mother living a considerable distance from that school and having to walk a long way with two small children in order to ensure J's attendance. This issue has been completely ameliorated since J started at a school closer to home.
34. Indeed, the picture painted by the parenting assessments I have had the benefit of reading reveals a large number of factors that are ordinarily seen as protective against physical or other abuse. The parenting assessment of the mother shows extremely good nurturing parenting skills. In particular, Mr Morris is clear that the mother is attentive and responsive to A's needs and is nurturing and positive in her manner.
35. The parenting assessment concludes that the mother is able to provide high levels of basic care for the children, to ensure their safety, stimulation and stability and to provide clear guidance and boundaries in respect of negative behaviours without resorting to inappropriate strategies. The mother lived with the children in secure accommodation maintained to a good standard. The mother's wider family, who have been assessed as supportive and a protective factor by the local authority live a short distance away, as do the fathers of the two children. The social workers in the case are clear that during their involvement with the children the mother has fully engaged with social services, has always spoken in a positive manner regarding the children and has a good attachment with them. The social workers are of the view that the mother has always responded to the children's needs and they have responded to her. KU and BR are each clear that they have never seen anything that would lead him to believe that the mother injured A. JL shares this view.
36. Overall, as the local authority risk assessment points out, no concerns have ever been raised by professionals regarding the level of care that the mother provides to the children and, again, there have been no concerns of non-accidental injury or unexplained injury raised prior to November 2014. Likewise, the social worker was clear that following assessment there have been no concerns regarding the conduct of JL in respect of the children.
37. A was aged nearly 11 months at the time the bruising he sustained was discovered. It is of note that A is described by all as a child who is larger and heavier than most children of his age. Indeed, the medical records in this case demonstrate that thirteen days after A's birth his weight was on the 9^th centile, at eight weeks he was on 25^th centile and at sixteen weeks he was on 50^th centile. The photograph produced by the mother in court shows a little boy with significant rolls of 'baby fat'. The mother gave evidence that health professionals are not too concerned about his weight as his length is also significantly greater than that of a child of a similar age.
38. There also is much cogent evidence of A being a very active little boy who at nearly 11 months was already mobilising and seeking to pull himself up on items of household furniture. This was observed and reported not only by the family but also allocated social workers in the case. Mr Morris gave oral evidence that I was quite mobile for a child of his age and a bit more advanced than a child of a similar age in pulling himself up on the furniture. Accordingly, this is not a case of bruising to an immobile infant but to a little boy who was already trying, and sometimes failing, to stand. Indeed it is of note that Dr Thompson records a number of bruises to A's shins that she is entirely content are consistent with accidental injury to a mobile child.

THE INJURIES

39. The mother's account of the genesis of the bruising sustained by A is contained in a statement dated 26 January 2015 and is, in summary, as follows.
40. On 1 November 2014 the mother states that she witnessed J roughly place his hands around A's neck causing A to start crying. The mother disciplined J. She did not see bruising when she bathed A that evening. JL states he did not visit on that day and there is, as I have already observed, no evidence to gainsay his account nor was he cross examined to the effect that he was lying about this.
41. On 3 November 2014 the mother states that she noticed a bluish mark on A's bottom which, along with A's feet appearing somewhat bluish, concerned her. This was to become the central concern of the mother over the ensuing days and finally led her to take A to hospital on 6 November 2014. The mother states that the bluish mark had disappeared by the time she changed A's nappy in the evening. Again JL states that he was not present on that day and nor is, as I have already observed, there evidence to gainsay his account. He was not cross examined to the effect that he was lying about this.
42. On 4 November mother says in her statement and told the Court that she placed A in cot with plastic toys whilst she had a bath. A was wearing a long sleeved vest and a nappy and accordingly had bare legs. The mother relates that after she had bathed A and when she was changing his nappy she noted red marks at the top of his thighs at the back. These marks were later seen by the maternal grandmother when she was changing A's nappy and caused the maternal grandmother to enquire of them. The marks had, by that time, begun to turn a bluish colour. The maternal grandmother was left caring for A for approximately 40 minute whilst the mother collected J from school. At 6pm JL came to the property. On his unchallenged evidence this was the first time that JL had attended the property since 1 November 2014.
43. On the early evening of 4 November the mother asserts in her statement that A was crawling on the floor in the living room and attempted, as has been described by a number of other witnesses, to try standing up. The mother says she witnessed JL supervise I by positioning himself behind I to make sure he did not fall. As A tried to stand up using the glass topped TV stand for support the mother says that A fell, twisting as he went down and caught the left side of his head on the glass top. The mother says that A's ear came into contact with the glass top. Both the mother and JL assert that this caused the bruise to A's left ear.
44. The mother relates in her statement that by the morning of 6 November 2014 the marks on the top of A's legs had turned a purple colour and his feet again appeared bluish. By the evening the mother had become concerned that the bluish tinge to A's feet may signify meningitis (a condition that KU had had as a child) and called KU's mother for advice. She attended the property and it was agreed that the family would attend hospital to have A checked.
45. I was initially seen by a senior house officer, Dr Reily who noted three bruises on the posterior right thigh and a bruise to the left thigh. No explanation is recorded as having been given by the mother or JL, although it is clear that at this time the mother's focus was on the cause of A's bluish feet. A was then seen by a Paediatric SHO, Dr Jones, who recorded the bruises seen by the first doctor. It is of note that Dr Jones transposed left and right when compared to Dr Reily's drawing, drawing the three bruises on the left thigh and one bruise on the right. Dr Jones also recorded a bruise to A's left inner ear and a two smaller yellow bruises that were "just visible" on the right chest.
46. Dr Jones recorded two explanations given by the mother and JL for the bruising. They told Dr Jones that the bruising to the left ear "could have happened when he pulled himself up on the TV stand". JL also recalled "that a month ago he noted some fainter bruising around ribs from being picked up". In the circumstances, Dr Thompson is not accurate when she records in her report to the Court that no explanation at all was offered by the mother or JL at hospital for the bruising to A.
47. At 10.15pm A was seen by Dr Neane, who held the post of what used to be referred to as a paediatric registrar. Dr Neane completed a body map detailing the bruises exhibited by A including the three bruises to the posterior left thigh, the bruise to the posterior right thigh, the two bruises to the right chest, the bruise to the left ear and the two faint bruises to the left neck. In addition, Dr Neane recorded the bruises to A's right shin. He also recorded the explanation given by JL for the bruise to the ear, namely the fall against the glass TV stand.
48. Whilst Dr Jones had clearly recorded that this explanation was provided to account for the bruise to the left ear, Dr Neane recorded Mr Lunt as stating that A had hit the right side of his head on the television stand. I note again in this context that Dr Jones had transposed left and right when compared to Dr Reily's drawing of the bruises to the thighs, drawing the three bruises on the left thigh and one bruise on the right.
49. At 3.20am A was seen by Dr Thompson. By this time the parents had been at hospital with A for seven hours and, as JL relates, were drifting in and out of sleep whilst waiting to see the consultant. Dr Thompson's notes state simply "They have no recollection of any bumps, falls, or trauma". However, as can be seen from a perusal of the medical notes, the mother and JL had given an explanation for the bruise to the ear and JL had provided an explanation for the bruising to the chest. Dr Thompson makes no reference to these accounts in her notes. At the conclusion of her notes she records her opinion that "the unexplained nature of the bruising and the pattern of bruising makes non-accidental injury likely". The Emergency Duty Team was informed.
50. Following the discovery of the bruising sustained by A he was placed with his maternal grandmother. Contact between the mother and A took place at the maternal grandmother's home and the social worker Sarah O'Shaughnessy visited.
51. As recounted above, very belatedly indeed, the court was informed of a highly relevant incident during the course of one such social work visit on 31 December 2014. On 31 December I was witnessed by the allocated social worker Mr Morris, the mother, the maternal aunt and the maternal grandmother to sit down heavily on a plastic toy of the type the mother says was in A's cot on 4 November 2014. This incident resulted in a red mark being caused and A being shocked and then screaming until comforted. The social worker, Mr Morris saw the injury and said in oral evidence he had a 'clear recollection' of the incident. The mark developed into a bruise which was photographed by the mother's sister. Whilst Mr Morris did not see the bruise, he gave oral evidence that its location on the photograph corresponded with the location of the red mark he had seen immediately following A falling on to the toy.
52. It is of note that this mark appears to have followed the same evolution as the red marks seen by the mother following I being placed in his cot with plastic toys on 4 November, namely red marks on the back of I's thigh evolving later into discrete bruises. It is also of note that another social worker had witnessed A fall backwards whilst in a cot on an earlier occasion.
53. In the papers it is detailed that following the Strategy Meeting on 7 November 2014, Sarah O'Shaughnessy, a Senior Practitioner, spoke to the mother about arrangements for A. During this conversation, Ms O'Shaughnessy saw that A kept getting his legs stuck between the bars of the cot and that at one stage he fell backwards in the cot and banged his head. As a result of this, A started crying and had to be comforted by the mother.
54. The final piece of evidence that I must relate concerns the mother's description in the witness box of how the bruising to A's chest occurred. For the first time the mother related in detail an incident in which she had had to grab A firmly to prevent him falling when he kicked out with his feet and pushed away with his hands as she picked him up. The mother described how A is a large child who moves around a great deal and that, as a relatively small woman, she sometimes struggles to hold on to him. In this instance she asserted that she had been worried she was going to drop him so "really grabbed him tight." The mother suggested this happened on more than one occasion. It will be recalled that at the hospital, JL had related that "that a month ago he noted some fainter bruising around ribs from being picked up". I also note that Mr Morris is clear in his parenting assessment of the mother that he has witnessed A having a number of age related tantrums where he will throw himself back and kick out.

THE MEDICAL EVIDENCE

55. There was no application for permission for expert evidence to be adduced during the case management stage of this case. In the circumstances, the medical evidence before the Court in this case comprises a report from Dr Thompson, the treating consultant paediatrician. Dr Thompson had also kindly co-operated with the parties in answering further questions in writing concerning explanations put forward by the mother.
56. At the outset of the hearing I enquired of the parties how I was to treat the evidence of Dr Thompson in circumstances where opinion evidence can only be given by a person whose expertise justifies the court receiving that opinion and then only with the permission of the court (in family proceedings that permission being given pursuant to FPR 2010 r 25.4 if, and only if, the evidence is necessary to assist the court to resolve the proceedings). The parties unanimously invited me to treat Dr Thompson's evidence as opinion evidence given by a doctor whose expertise justified the court receiving that evidence. It was implicit in the parties' invitation that they considered the evidence necessary to assist the court to resolve the proceedings and that I should grant permission for the same to be given.
57. At the outset of her oral evidence I questioned Dr Thompson regarding the nature and extent of her expertise. Dr Thompson qualified as a doctor in 1996 and became a consultant paediatrician in December 2009. She undertakes ward rounds, clinic duties and Emergency Department rotations. She has the level of training of a consultant paediatrician and also has Level 3 Safeguarding training. Within the context of her professional role she gives medical opinions on alleged non-accidental injury and neglect, attends strategy meetings as the medical lead and participates in peer discussion of alleged cases of abuse. Dr Thompson told me that the evaluation of bruising is a large part of the work a general paediatrician will see. She is trained to recognise patterns of bruising that may be suspicious of non-accidental injury and sees, on average, one case per month of bruising requiring evaluation for suspected non-accidental injury.
58. Having heard Dr Thompson describe her expertise and experience I was satisfied that the same justified the court receiving her opinion evidence. I was further satisfied that in circumstances where the Court was being asked to determine the cause of the bruising to A, where that issue was the singular issue in the case and where Dr Thompson was the only consultant paediatrician to provide a report to the Court, that the expert medical evidence of Dr Thompson was plainly necessary to assist the Court in resolving the proceedings. In the circumstances I was content, with the agreement of all parties, to permit Dr Thompson to give expert evidence.
59. In the report provided by Dr Thompson to the local authority dated 12 November 2014, Dr Thompson sets out her view that, in circumstances where they are in an unusual pattern, and unexplained, the bruises to the back of the thigh are "causes concern for non-accidental injury". Dr Thompson further opined that the bruises to the ear "are highly suggestive of non-accidental injury, especially in the absence of an explanation". I pause to note again that there was in fact an explanation given by the mother and JL at the hospital. Dr Thompson also opined that bruises to the neck with no explanation "would make non-accidental injury highly suspicious". In her oral evidence Dr Thompson addressed the possibility that the injuries to the neck had been caused by the incident on 1 November when J grabbed A around the neck. Dr Thompson considered this explanation an unlikely cause for such bruising. No opinion is expressed by Dr Thompson in her report concerning the bruising to I's chest although in her oral evidence she noted that the Cardiff Study would suggest that bruising to the chest in a child of A's age is highly suspicious for non-accidental injury.
60. Dr Thompson also provided a written response to further questions and discounted the explanations provided by the mother in her statement. In a further letter Dr Thompson states that A hitting his ear on a glass table is a possible explanation for the bruising but pointed to the inconsistency between left and right in the history. She discounts rough play by A's brother as a cause of the neck injury.
61. During cross examination Dr Thompson made a number of concessions. First, Dr Thompson conceded that the description of A falling against the television stand represents a potential mechanism for causing the bruise to the left ear, although Dr Thompson remained concerned as to what she saw as an inconsistency in the history of this fall as between the left and right side of A's head. Having seen the photograph of the injury sustained by A when he fell on a plastic toy on 31 December 2014 Dr Thompson further conceded that this could be a potential mechanism for the bruises to the back of A's thighs seen in November 2014.

RELEVANT LAW

62. The legal burden of establishing that the threshold conditions in s 31(2) of the Children Act 1989 rests with the local authority. Thus, in cases of alleged inflicted injury it is for the local authority to establish on the balance of probabilities that the injuries in question were inflicted. There is no requirement that the respondents to the application show that those injuries have an innocent explanation.
63. The standard to which the local authority must satisfy the court is the simple balance of probabilities. Neither the seriousness of the allegation nor the seriousness of its consequences alters the standard of proof. The inherent probability or improbability of a particular action or event remains something to be taken into account, where relevant, in deciding where the truth lies.
64. In determining whether the local authority has discharged the burden upon it the court looks at the broad canvass of the evidence before it. The role of the court is to consider the evidence in its totality and to make findings on the balance of probabilities accordingly.
65. In this context, and self evidently, I am not limited to the expert evidence before me but may take account of a wide range of matters, including my assessment of the credibility of the witnesses and inferences that can be properly drawn from the evidence.
66. It is also important that the Court take into account of the presence or absence of any risk factors and any protective factors which are apparent on the evidence. In Re BR [2015] EWFC 41 Peter Jackson J sets out a very useful summary of those factors drawn from information from the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.
67. In resolving the issues before the Court the evidence of the carers and parents is of the utmost important to the Court and it is essential that the Court forms a clear assessment of their credibility and reliability.
68. In considering the credibility of the witnesses it is important that the Court recognises that it is common for witnesses to tell lies in the course of the investigation and proceedings and that a witness may lie for many reasons, such as shame, panic, fear and distress. Within this context, the court must be mindful that the fact a witness has lied about some matters does not mean that he or she is lying about everything.
69. With respect to expert evidence, whilst I must pay appropriate attention to that evidence, the opinions of an expert must be considered in the context of all the other evidence in the case. The court rather than the expert is in a position to weigh the evidence of the expert against its findings on the other evidence in the case and it is the court and not the expert who makes the final decision.
70. As regards expert medical evidence, the Court must remember that medical science is constantly evolving and that today's medical certainty may, in due course, have to give way in the face of new medical science. The court must also be mindful that medical science cannot know everything and that, in deciding whether the burden of proof has been discharged, the possibility that the medical symptoms in question are the result of an as yet unknown cause must be considered.
71. Whether the threshold criteria set out in s 31(2) of the Children Act 1989 are satisfied must be decided on the basis of the facts admitted or found by the court to be proved to the requisite standard. Suspicion is not proper basis on which to conclude that the threshold criteria are met.
72. Finally, when the Court seeks to indentify the perpetrator of injuries that it has found to be non-accidental, the test of whether a person falls within the pool of possible perpetrators is whether there is a possibility or a real likelihood that they inflicted the injuries in question. In order the court to single out a particular person as the perpetrator the court must be satisfied that it can do so on the balance of probabilities.

FINDINGS

73. The Local authority's belated schedule of findings now invites the Court to find that bruises to the back of A's thighs, the bruises to his chest, the bruise to his left ear and the bruises to his neck were inflicted upon him by either the mother or JL or both of them. Were the Court to be satisfied that the injuries were caused by JL, the Court is invited to conclude that the mother failed to protect A.
74. In this case I have decided that the local authority has failed to discharge the burden of proof in respect of the findings it seeks. On balance, I am satisfied that the injuries sustained by A were accidental in nature. My reasons are as follows.
75. The injuries to A relied on by the local authority were plainly present and were not disputed as being present by the mother and JL. Both however were adamant that they had not caused injury to A and that such injuries arose accidentally, the mother conceding that her level of supervision of A left something to be desired. I had the opportunity to hear both the mother and JL give evidence from the witness box.
76. The mother was, in my judgment, an extremely compelling witness. She was direct, open and straightforward when giving her evidence. Her evidence was clear and given without any dissembling. She plainly wished to assist the court to the best of her ability. The mother was warm and heartfelt when speaking of her children and, when it was put to her that she had harmed them, the strength of, and the emotion that came with her firm denial very much had the ring of truth. I found the mother to be an honest and open witness and to be, very much, a witness of truth upon whom the Court could rely.
77. Whilst less passionate in his self-defence than the mother, I also found JL to be a straightforward and compelling witness. Like the mother, JL entirely understood the reasons why the local authority had pursued this case and expressed no resentment in that regard. Within the context of that understanding however, he maintained a calm denial of culpability for A's injuries. As with the mother, having listened carefully to his evidence I assess JL to be a witness of truth.
78. The credibility of the evidence of the mother and JL and of their respective denials that they inflicted injury on A is in my judgment reinforced by the wider context in which it is given, namely the absence in this case of the risk factors ordinarily associated with physical abuse and the presence of a large number of protective factors.
79. As I have already recounted, this is not a case in which the factors that would ordinarily reinforce a case of alleged non-accidental injury are present. On the contrary, this is a case in which a large number of factors protective against such abuse feature. This well evidenced position in my judgment materially reduces the likelihood of the injuries to A having been inflicted. Within this context, the extremely positive assessments undertaken by the allocated social worker Mr Morris of the mother and JL in my judgment further reduce the likelihood that either of these credible adults inflicted injury on A.
80. In reaching my decision I have also had regard to the fact the particular physical and developmental characteristics of A. I accept the evidence that he is a larger and heavier child than many children of his age and the evidence that he was more advanced in his attempts to stand and become mobile many children of his age. In my judgment, in evaluating the likely cause of the bruising in this case it is important to remember that A was not an immobile infant and that he evidenced bruising that Dr Thompson was satisfied was accidental in nature.
81. I of course acknowledge the expert opinion of Dr Thompson and the concern she has expressed regarding the potential significance of the bruising sustained by A. It was plainly right that child protection procedures were invoked by Dr Thompson and that this matter was the subject of a full investigation. The Court too has been given some pause by the absence of a complete set of explanations at hospital, with some detailed explanations only being provided some time later. However, unlike Dr Thompson I have the benefit of being in a position to weigh all of the evidence, including the oral evidence of the mother and JL and of the ability to weigh that evidence against the views expressed by Dr Thompson.
82. As to the absence at hospital of an immediate and comprehensive set of explanations for each incident of bruising I note that some explanations were provided. Further, and most importantly, it is clear on the face of the evidence that the mother's concentration immediately before and whilst at hospital was her concern that A may have a serious infection as indicated by the bluish feet both she, the paternal grandmother and JL had observed and which had caused the attendance at hospital. This understandable pre-occupation is in my judgment the most likely explanation for why the mother and JL did not give a comprehensive account of all the possible mechanisms of accidental injuries whilst at hospital. I also note that by the time they saw Dr Thompson it was 3.20am and they had been at the hospital for seven hours. In such circumstances, to have expected a comprehensive account at that stage of all possible mechanisms of injury would have been unreasonable.
83. Dr Thompson in any event has now conceded that the account that was given by the mother and JL of A falling against the glass television stand represented a possible explanation for the injury to A's left ear. Whilst Dr Thompson remained cautious by reason of what she considered was an inconsistency in the account between left and right I am not persuaded that this undermines the account given by the mother and JL.
84. It is clear to me that there was some confusion over left and right at the hospital and I am not satisfied that that confusion was the result of the mother and / or JL seeking to relate a false story or seeking to mislead the medics. Having regard to the hospital notes, in my judgment it is at least equally as likely that it was the doctors who were themselves confusing the picture. In addition, I accept the mother's evidence that she confuses left and right, as indeed she did in the witness box on a number of occasions. In such circumstances, whilst pursued with vigour by the local authority in cross examination, in my judgment I can attach little forensic weight to Dr Neane's note of JL's account or, accordingly, to the fact that this account, on Dr Neane's note, contradicts what the mother and JL say in fact occurred.
85. I accept the evidence of the mother and JL that A did fall against the glass top on the television stand on 4 November, that he hit the left side of his head in the area of his left ear and that he sustained the bruise to his left ear seen at hospital as a result.
86. Dr Thompson further conceded that, having belatedly seen the photograph of the injury sustained by A on 31 December 2014 and read the statement of Mr Morris, that I falling backwards onto a plastic toy could cause the bruising seen to A's thighs on 6 November 2015. I of course take into account that the mother did not see such an incident occur on 4 November after she had placed A in the cot with his toys. That said, I accept the evidence of Sarah O'Shaughnessy that A was apt to attempt to stand in his cot and then fall backwards. I accept that on 4 November the mother heard A cry whilst in his cot with the plastic toys and that she saw red marks on the back of his thighs immediately after taking him out of his cot, which later evolved into bruises. In this regard I note the same evolution of injury was noted in later incident of bruising by way of this witnessed mechanism on 31 December 2014.
87. Having regard to the totality of the evidence I accept that the most likely mechanism for the bruises sustained to the back of A's thighs was him falling backwards and sitting down heavily on plastic toys that had been placed in his cot on 4 November 2014.
88. The bruising to A's neck has given me greater pause and I acknowledge Dr Thompson's evidence that it would be unlikely that such an injury would be caused by the actions of a sibling. Against that, I accept the evidence of the Mother that she witnessed J grab A by the neck during an incident of rough play. Within this context, I also note that KU, J's father, has also raised the possibility of J having caused injury to A, he stating that J can be a little rough with A, sufficient to cause KU to be concerned that J may have inadvertently caused some of the injuries. This evidence must also be set in the context of the credibility of the evidence of mother and of JL, the positive parenting assessment of them and the absence of risk factors and presence of protective factors recounted above. Further, whilst I must examine each injury individually I must also have regard to the fact that I am satisfied that the injuries to A's thighs and ear were accidental in nature. Overall, and having regard to the broad canvass of the evidence, I am on balance satisfied that the bruises to A's neck were accidental.
89. The bruising injury to A's chest has likewise given me greater pause than the injury to his ear and to his thighs. Once again, I have given careful thought to the evidence of Dr Thompson and in particular to her assertion in oral evidence that bruising in this location is highly suspicious for non-accidental injury. Against this I must set the account of the mother, which I find to be credible, that she sometimes found I difficult to handle by reason of his size and weight and had feared was losing her grip of him, resulting in her gripping him hard. I also have regard to the fact that Mr Morris has witnessed A throwing himself backwards and kicking out and to the fact that JL gave an account to the hospital about bruising the mother and JL had ascribed to similar circumstances a month earlier. Once again, this evidence must also be set in the context of the credibility of the evidence of mother and of JL, the positive parenting assessment of them and the absence of risk factors and presence of protective factors recounted above. Once again, whilst I must examine each injury individually I must also have regard to the fact that I am satisfied that the injuries to A's thighs, ear and neck were accidental in nature. Overall, and having regard to the broad canvass of the evidence, I am on balance satisfied that the bruises to A's chest were accidental.

CONCLUSION

90. In the circumstances, and for the reasons I have given, I am satisfied that the broad canvass of the evidence in this case demonstrates that on the balance of probabilities, the bruising sustained by A was accidental in nature. It follows that the local authority has failed to discharge the burden of proof in this case.
91. In light of my conclusion that the local authority has not succeeded in proving that, on the balance of probabilities, the bruising sustained by A were inflicted and in circumstances where those allegations represent the only issue the local authority had with the care of the children by their mother and JL, I am satisfied that the threshold criteria under s 31(2) of the Children Act 1989 is not made out in this case.
92. Accordingly, I dismiss the local authority's applications for care orders in respect of the children. The mother has evinced an intention to work with the local authority under the auspices of s 17 of the Children Act 1989 in order that she receives support with aspects of her supervision of the children.
93. The mother and BR have also reached an agreement conferring parental responsibility on BR and I for my part am entirely satisfied that it is in A's best interests for such an agreement to be made.
94. That is my judgment.