England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
SITTING AT SWANSEA

IN THE MATTER OF THE CHILDREN ACT 1989 s31
AND IN THE MATTER OF R (An Infant) (Born 21st December 2015)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2016

The Honourable Ms Justice Russell DBE:

Introduction

1. These are public law proceedings concerning a baby boy (R) who was born on 21^st December 2015 to his mother (HM), the 1^st respondent in G hospital in C county in Wales. The baby's father (RF) is the 2^nd respondent. The care proceedings were issued by CCC (the local authority) after R (who remained in hospital on the High Dependency Neo-natal ward with his mother after his birth) was found to have a fractured femur on 23^rd January 2016; he was one month old. Three days before he had been seen to have bruising to his neck and chin. These injuries were considered to have been inflicted and child protection measures were initiated. HM denies causing any injuries to her child and alleges that they were caused by nursing staff on the ward. Four nurses (A, B, C and D) were identified by HM as being in the pool of possible perpetrators; they were represented by counsel.
2. Before the hearing commenced on 31^st October 2016, both R's parents had accepted that the s31 threshold has been crossed and that there should continue to be statutory intervention; based on HM's poor parenting skills and RF's failure to intervene and to provide adequate parenting himself. The local authority provided two alternative care plans dependent on the court's findings as to the cause of the baby's injuries; both care plans are for R to be placed with his father; the outcome of the hearing would, as far as the local authority is concerned, determine whether it is safe for R for HM to live with them too.
3. During the hearing HM accepted that nurse D could no longer be considered in the pool of possible perpetrators as she had not handled baby R at the relevant times. The court was left with a possible pool of four including HM herself. The court heard evidence over eight days from the 31^st October to 9^th November 2016. Written submissions were prepared by counsel and sent to the court on 10^th November 2016.

Accepted s31 threshold and care plans

4. The local authority is seeking care orders. As I have said, both R's parents accept that the threshold is met in respect of HM's poor parenting and RF's failure to understand and accept that she could not parent R to a good enough standard and to step in himself. This latter state of affairs in respect of RF remained the case for some time during and, as a result, R was placed in foster care after he was discharged from hospital. The local authority could have placed him with his father but not with HM living at the same address, as the couple remained living together, and as RF continued working full-time he was unavailable to care for R. The findings that I need make are in respect of the bruising and fractured femur that R sustained alone, although the concessions made by HM and other aspects of her conduct and behaviour from part of the whole picture which I must consider. Regardless of the findings I make in respect the perpetrator of R's injuries he will be placed with his father.
5. It is the local authority's case that HM is not able to provide consistent good basic parenting for R. They relied on observations of HM's care of R on the ward and in contact sessions as evidence that she continued to struggle with basic care tasks and needed repeated prompting to care for her son. HM failed to pick up on or retain professional guidance during, and feedback after, contact sessions, and parenting support sessions did not bring about any real or consistent change in her parenting abilities. A parenting assessment had been carried out by the key worker, Rhianydd Barnes, dated 7^th July 2016. At the hearing before me on 1^st September HM told the court, through her counsel Mr Paul Hopkins QC, that she took no issue with the assessor, Ms Barnes, the nature of the assessment nor the process of the assessment (this was reflected on face of the court order of 1^st September 2016). To a great extent that remained HM's position at the final hearing. The parenting assessment highlighted that even basic tasks such as supporting R's head when necessary, feeding and winding have taken months for MH to achieve, and it took intervention and guidance before she was able to accomplish even these basic tasks. It was the local authority's case that "as [R's] needs progress and develop, [HM's] ability to respond to them will not be apace [with R] and she is likely to be several months behind her son".
6. As an example in support of their case, the local authority relied on the undisputed fact that HM had taken over six months to learn how properly to wind R by which time he no longer needed winding and she was then having to catch up with the next set of skills needed in feeding him. She had not learnt how to bathe him without prompting and her preparation for such tasks, and for contact generally, was very poor. This she expressly accepted in her oral evidence. The local authority continued to provide HM with parenting support, but she failed to engage with or participate in all the sessions offered to her, so that not only did she miss opportunities to learn the parenting skills which she lacks, she also failed to see R in contact. The local authority's view that she had demonstrated poor commitment is entirely justified; as is their case that, without continued intervention, HM would be unlikely to be able to meet her son's basic needs and R would be at continued risk of significant harm.

Background.

7. When R was born by caesarean section on the 21^st December 2015 he arrived 4 weeks early and, because he was premature, he was taken to the Special Care Baby Unit (SCBU) in G Hospital in Wales and placed on the High-Dependency Unit (HDU). Later he was moved from HDU and, still within SCBU, he was placed in the nursery. His mother was able to stay on the ward, to "room in," in order to facilitate breast feeding, so that R could be discharged once he had gained sufficient weight and was feeding satisfactorily. There were no problems with the baby, apart from his prematurity, which was not of itself causing any particular concern and it was intended that he should go home with his parents sometime in January 2016.
8. R's mother is HM. Born in 1995 she is a young woman of 21 who has had a difficult and troubled life; as a child she came to the attention of social services sporadically throughout the majority of her childhood (between 1999 – 2011) because of the neglectful parenting she received and concerns about sexual abuse. When HM had a baby in May 2012, from a previous relationship, she was only seventeen. As a result of the volatile relationship between HM and her partner, poor home conditions and their inability to meet the baby's needs, HM and her son were placed in a mother and baby unit under s20 CA 1989. Unfortunately, as she accepted herself, HM was not able to parent the baby. Despite the support offered to her HM was not able look after the baby or to attend to him without prompt and she left the mother and baby placement in March 2013. Care and placement proceedings ended with final orders being made in August 2013; the baby was adopted outside of his birth family.
9. HM was diagnosed as suffering from possible PTSD by her GP in October 2016, just prior to the hearing which took place before me, and has been prescribed some treatment, in the form of medication, by the GP. HM is vulnerable and still a very young woman; as a result of the diagnosis by her doctor, and at the request of her lawyers, she gave her oral evidence to the court by way of video link from a vulnerable witness suite. HM was present throughout the hearing as was R's father RF. HM and RF live together, and, throughout these proceedings, they have, in the words of the local authority "presented as a couple." In other words, their partnership continued and they have remained living together.
10. RF was born in June 1975 and is now 41 years old. He has two daughters aged 7 and 5 from a previous relationship, they both live with their mother but regularly spend time with their father and stay with him on alternate weekends. There is no doubt that RF is committed to his girls, and there are not, nor have there ever been, any concerns about his ability to care for them; there has never been any social services involvement in respect of those two children. RF and their mother remain on good terms and she is, according to the guardian, full of praise for him as their parent. As a result of these proceedings HM has absented herself from their home when RF's daughters are present.
11. To return to R, on 30^th July 2015, the local authority had a referral from a community midwife in regarding HM's pregnancy. They carried out an initial assessment, which, in turn, recommended a core assessment, by 10^th August 2015. At that time HM did not co-operate with the local authority and would not give them RF's contact details. During the pregnancy, as it turned out apparently without RF knowing, HM did not always engage with the midwifery service and she missed three ante-natal appointments.
12. The local authority held a "Legal Gateway" meeting on 17^th November 2015 when it was agreed that pre-proceedings processes would be initiated. As a consequence, a pre-proceedings meeting, at which HM and RF were present, took place on 10^th December 2015 when the local authority informed both parents of its' concerns. HM and RF agreed to co-operate with a pre-birth parenting assessment. Before that assessment could be completed R was born prematurely at 32+4 weeks. The local authority then initiated their child protection procedures with the intention that R should be discharged into his parents' care with support services in place; there was no suggestion at that time that R could not be safely parented at home with his mother and father.
13. The situation changed for R when, on the 23^rd January 2016, the local authority had a referral from the hospital that R had suffered a fractured femur; the import of information received by the local authority was the fracture was considered to be likely to have been caused by a non-accidental injury or inflicted injury and that HM was suspected as the perpetrator. A police investigation was instigated during which HM was interviewed and statements were taken from various hospital witnesses. The hospital also carried out its own investigation during which nursing and auxiliary staff were each asked to prepare a document based on their own observations and the nursing and other records which they had signed or for which they had been responsible; at the end of this investigation the hospital concluded that HM remained the only suspected perpetrator.
14. After the fracture was seen on x-ray the baby's leg was placed in traction and R remained in hospital until 29th February 2016 when he was ready to be discharged. At that time RF told the local authority he felt unable to offer full time care to his son because of his commitment to his daughters, because he was in full time employment and because of the effects leaving work would have on his, and his family's financial situation. The local authority considered that R could not safely be placed in the care of HM; she and RF continued to live together and the baby was placed in foster care with his parents' consent. He has remained in that placement throughout the proceedings up to and including the hearing in November 2016.
15. The local authority held another "Legal Gateway" meeting on 11th February 2016 at which it was decided that care proceedings would be issued by the local authority. This was followed by an "immediate issue" meeting on 19th February 2016 when both parents were informed that the local authority intended to apply for care and interim care orders in relation to R. On 29th February 2016 the local authority issued proceedings and applied for a care and interim care orders.

Events in hospital after R's birth – up to 23^rd January 2016

16. The court has seen comprehensive nursing notes and other records of R's time on the SCBU and has heard from numerous nurses, health care support workers (HCSW) and student nurses in addition to the 4 nurses who were interveners in the proceedings. The court heard from three experts instructed in this case; two Consultant Paediatric Radiologists, Drs Chapman and Halliday and a Consultant Paediatrician, Dr Rose. The court heard from HM and RF. From this it is possible to piece together a reasonably detailed picture of the events during the month R spent on the SCBU after his birth and leading up to the discovery of the fractured femur on 23^rd January 2016. Much of what occurred is not in dispute and, unless it was challenged, I do not intend to identify the individual evidence of witnesses.
17. When R was born on the 21^st December 2015 and taken to the HDU initially much of his care was undertaken by the nursing staff, the intention was to handover care to his mother (and father) so that he could be discharged as soon as he was ready to go home. His mother remained in hospital with him until Christmas Day. On 27^th December 2015 he was moved from HDU, although he remained in an incubator. HM was recorded as staying in hospital on 11^th January 2016 and on the 13^th January 2016 it was noted that HM seemed quite nervous and that she was given encouragement. There was no reason, apart from his premature birth which would have made him, to some extent, more vulnerable than a full-term new-born baby, to expect R to remain in hospital for very long; he was healthy and was expected to be feeding and growing quite normally within a matter of weeks.
18. By 14^th January 2016 it was recorded that the ward had been trying to pass on to the social worker their concerns that R's mother had a lack of understanding about R's needs and that she did not seem to be taking on board advice particularly in relation to feeding. On 15^th when she arrived back on the ward she was told that R had successfully accepted a cup feed and told that R was now nearing term and the hospital were looking towards him going home but that feeding was holding him up; he could not go home tube fed on donor milk. HM accepted that she had difficulty in breast feeding R and that she very much wanted to do so. She had accepted advice that it was in his best interest, particularly as he was born prematurely, to be breastfed so that he could benefit from the nutrients in, and the immunizing effect of, her own milk.
19. Initially, when the baby was in an incubator he was fed through a nasogastric tube (NGT) by "gravity" feeding; the milk was allowed to flow from a syringe through the tube which was held above the baby. The nurses explained to me that as the baby was premature they handled him as little as possible to allow him to remain undisturbed and to sleep as much as possible. There was a feeding chart on which it was recorded when and what he was fed with, how often his nappy was changed and when he was washed and put in clean clothes. As the practice was to handle him as little as possible nappy changes were usually carried out when he was fed, unless he cried and needed changing. He was cleaned or washed using cotton wool and warm water.
20. When he moved off the HDU and into one of the two nurseries on the ward his mother had been encouraged to breast feed him. HM had previously spent days on the ward but on 18^th January 2016 she asked to stay on the ward in one of the two rooms which were available for nursing mothers; to "room in". It was her intention, and that of the hospital staff, that she should take over the care and feeding of R so that he could go home. By her own admission she found it very difficult and had limited success in managing to feed R. She had also found it difficult to express milk, and found the whole experience stressful. That was the observation of the nursing staff at the time, and it is her own evidence that she set herself high standards and really wanted to breast feed him so that when she couldn't she became frustrated and angry with herself. HM became stressed when changing the baby's nappies because she was so disorganised and it was her own evidence that she had difficulty in being properly prepared making nappy changing stressful and upsetting for her when she became "flustered"; the word she used in her written evidence. HM became upset when R became upset and couldn't cope with his crying; she wanted him to stop but did not know how to go about it.
21. HM began caring for R at about 1pm on 18^th January 2016. From the feeding chart, the nurses' observations and her own evidence MH had a difficult night with R. R was fed at half past nine; she fed and changed him at half past ten and again at half past one on the morning of 19^th January 2016. The fact was that feeding R was not going well and was a protracted business, the baby was taking the breast for periods of 5, 10 and 30 minutes. I have no doubt that it was stressful as HM was not meeting her own expectations of herself and by four in the morning she had asked one of the nurses to take over his care; according to the nurse in question (V) HM asked her to take over his care because, she said, she was falling asleep whilst holding R and was afraid she would drop him. V had made a note of this on the nursing records and she told me that she had an independent recollection of HM saying this; she could recall HM sitting on the bed and saying she was falling asleep with R in her arms. V told me that it was something remarkable for her as she could not remember any new mother ever having said anything like that before, that she was falling asleep and going to drop her baby, so it had stuck in her mind. The evidence is that HM was concerned that she would drop him.
22. R was taken to the nursery where he was fed later that same morning although V could not recall if she had fed him or someone else had. When the baby woke at half past eight his mother was alerted and fed him. Each time his mother had fed him that night and in morning, she winded him. HM had a preferred method for winding R. The family support worker who has been present during many contact sessions since February described and demonstrated HM sitting with the baby on her lap using one hand to rub his back and the other under his chin with his neck and chin between her thumb and forefinger; the rest of her hand was holding the top of the baby's chest. That was the method HM first clearly demonstrated when giving her oral evidence but did not repeat when asked to on further cross-examination. It is a perfectly acceptable way of winding a baby but it is the local authority's (and the interveners') case that the bruising seen on R's chin and neck area on the 20^th January 2016 was caused by HM handling R in such a manner with too great a degree of force.
23. On the morning of the 19^th January 2016 HM complained of feeling unwell and went home; Nurse Y who was in charge of the ward and day shift that morning told me that she had told HM to go home as she had a cold. HM had also been encouraged to breast feed and Y's evidence was that staff had been concerned about how HM was managing from the day before. Other staff from whom I heard, including Nurse D, gave evidence that, despite having a cold, she had been told that every effort would be made to enable her to stay on the ward to establish breast feeding. There was no reason for her to leave the ward that morning, and if, as she said, she was so determined to breast feed it is inconsistent with that avowed determination that she should have chosen to go home; she must have had a reason for doing so.
24. R was nursed without incident until bruises were seen on his chin and neck area by a student nurse on the morning of the 20^th January 2016, this nurse brought it to the attention of Nurse D. Whatever the cause of these marks it is agreed that they were bruises and that they did not occur naturally. The initial explanation that they may have been caused by the baby lying on the loose end of the NGT was later discounted; this conclusion is supported by the nurses' evidence that no such bruising had been caused to other premature babies with NGT on the ward; nor did any nurse who cared for R, including washing his face and neck, observe that the loose end of NGT had caused any marks before, nor were any such marks observed after the bruises had faded and when the tube was still in place. Both his parents, in their written statements prepared for these proceedings were firmly of the view that the bruises were not caused by the NGT because they were seen to be on both sides of the baby's neck.
25. The consultant paediatrician instructed in the case, Dr Rose, told the court that he could think of no medical procedure performed on the ward which could account for the bruises. (I shall return to the expert evidence in more detail below). As it is notoriously difficult to time bruises the evidence is that they could have been caused during a period when HM was looking after R. It is the local authority's case that it is likely she used her preferred method of winding with her thumb and finger supporting him around his neck under his chin; and that she absented herself from the ward that morning, when she realised what she had done. The court was struck by the evidence given of HM's tiredness and seemingly lethargic approach to being on the ward with her baby overnight. The tiredness and apathy observed by the nursing staff and the effect that it had on HM's ability to nurse and feed her baby was recorded several times in the nursing records. I was told that it was in contrast to, and noticeably different from, other new mothers who were excited to be spending the night looking after their babies; one could have expected this to be the case for HM too, particularly on the 18th January, which was the first night she was to spend with her new baby son, R.
26. When the bruises were noticed pictures were taken, which were not medical photos by DatEx by the independent staff employed, amongst other things, to take pictures for medical records, but by a HCSW assisted by a nurse at the request of D. They were not taken with the consent of the baby's parents as should have been usual hospital procedure, as HM had gone home. I was told that, in any case, the nurses on SCBU often took pictures of the babies on the ward to have a record of a baby for her parents of events, such as their first bath, for which the parents could not be there as their baby was still being cared for in hospital; the nurses did not ask for permission to take such pictures. Whatever procedure should have been followed, the poor quality of the pictures made it even more difficult for the expert witness to reach any conclusions about their cause or make any real attempt to age them.
27. There was a hospital investigation of the marks as the fact of their discovery was escalated; the ward sister was informed and the baby had been reviewed by the doctor. During this the possibility that the bruises had been caused by the feeding tube was raised and discounted. When HM was telephoned at home by the ward sister she was not told about the bruising, because, as the ward sister told me, she did not want to worry R's mother who had gone home unwell and was tired. The ward sister told me HM had come across to her as being childlike and vulnerable, as a result she had felt the need to support and nurture her. She felt that HM needed a lot of support and had to have information given to her repeated.
28. Prior to the discovery of the bruises and after HM left the hospital R was under the care of Nurse A When she took over R was settled and sleeping later, around half past one in the afternoon she had "topped and tailed" the baby and given him a cup feed. When A had changed his clothing she noticed no discomfort on the baby moving his legs. Later she gave him another cup feed and changed him again; again, nothing unusual was noted in her record and no discomfort was observed on changing his nappy after his feed. There is nothing to the contrary recorded in any of the records and feed chart for that day.
29. On the night of 19^th/20^th January 2016 Nurse B was responsible for R during that night shift. She took over at about half past seven in the evening. R was fed by NGT at about ten (record 22:30) as he was asleep in his cot. She had changed his nappy around one o'clock in the morning (the record was made at 01:30) and lifted his legs out of the Babygro to do so; when she did she left him to move his legs freely for a short time, something that the baby seemed to enjoy, being free of the constraint of his clothing. She did not observe any bruising at the time although the lights were lowered at night she thought she would have been likely to see any. B later recorded, before she handed over to the next shift, that R disliked being handled, and had "a high pitched cry during cares" (washing his face) and other handling such as when his nappy was changed. B said that all his crying was associated with the desire to be fed which he demonstrated by sucking and rooting with his face; when he was comforted he stopped crying.
30. Nurse D took over the care of R on the morning of 20^th January 2016 along with three other babies. In fact, she had not handled R as one of the other babies required much more in the way of intervention and R had been cared for by a student nurse under D's supervision. It had been recorded that R's crying had consisted of "high pitched cries at the time". D told me in her oral evidence that R had been "crying and unsettled [and was] looking to feed, sucking on his fist… To me it sounded high pitched…I thought it was feed related and would have made a record of it if it was different." She said that R had been unsettled and crying, moving, wriggling around which was a baby "telling you that they're not happy." R was not unsettled all of the time; but it is clear from the nursing records and from the oral evidence that the primary cause of his being unsettled when he was, was as a result of his need to be fed by sucking.
31. D had observed R when she had been feeding another baby; and the student nurse had pointed out marks on R saying, "Oh! Where did they come from?" D could see them when they were pointed out and she thought that the student probably noticed them when changing the baby-gro. About the time of the five o'clock feed in the afternoon D had phoned HM because the baby was fretful and wanting to suck, to get her permission to give him a bottle of milk as he was supposed to be being breast fed; HM gave her permission. D said that she did not ask R's mother to come in as she was unwell, but she was asked if she was expressing milk to which she replied that she was. In answer to a question from counsel for HM, D said she did not remember saying to HM that there were small marks on his face. None of the records note any concerns about the baby showing signs of discomfort or pain when his legs were moved to change his nappies. This was confirmed in their oral evidence by all the nurses or nursing support staff.
32. The 21^st January 2016 passed without incident and the records do not record any concerns being raised or noted regarding R's health or wellbeing; or any suggestion of R displaying signs of discomfort when handled or when he was changed. There was nothing to indicate that he had suffered any injury he exhibited no signs of pain or disinclination to move his legs which might have indicated the presence of some injury. Neither of his parents came in to visit him and the hospital had no contact from his mother until she phoned at about 10 o'clock that evening to say that she was feeling better and would like to come in stay in one of the two rooms; she was told to ring first thing to see if there was a "flat" available. During the night it was recorded that bruising to the baby's neck was better and by half past eight the next morning they were recorded as having faded since D had last seen them on the 20^th January.
33. Around midday on 22^nd January D spoke to HM on the phone; D noted that she was vague in her responses to questions about how much milk she was expressing. R was seen by Dr R who saw two bruises fading and had no medical concerns at the time; the clotting studies of a blood sample taken from the baby were normal; at that time the possibility of the bruises being caused by NGT end or something hard pressing on his skin had not been discounted.
34. On 22^nd January 2016 HM returned to the hospital about 3 o'clock in the afternoon, she said in her evidence that she noticed the bruises straight away. If she did there is no evidence that she raised it with the staff. She remained vague about the amount of milk she had expressed when asked by D and did not bring any milk with her, because of the difficulty she had had in breast feeding R before the nursing staff placed her in a different room; known as "flat 1" it was situated directly opposite the nursing station/reception desk of the SCBU, which enabled the staff to be near at hand to offer support. The first record regarding the bruising was of the ward manager and D and explaining to HM, around four o'clock that afternoon, about the marks on R's neck and chin and that the theory was (then) that it was caused by the end of the NG tube. D recalled HM being concerned about the bruises, who asked about them when she was in the flat about five o'clock, in her oral evidence she said, "Mum was concerned …I didn't want to call her over the phone [about it] she was concerned – not crying or anything, no – I don't recall her being angry, no…I don't recall her asking about the causation of the injury." D went on to say that she could only recall seeing HM crying once and that was later on that night and that she could not recall HM being angry. D said that HM had been put "in flat 1 as it was closer to us to help with feeding. It was difficult to help with breast feeding as [she was] acutely embarrassed about anyone seeing her breasts." There is no independent evidence to support HM's evidence that she was either very upset or angry about the bruises on R's neck. At the time there was, in any event, no particular concern about their causation on the ward or in the hospital.
35. MH took over the care of R from the nurses who were alert to her need for support. She changed his nappy and tried to feed him although she had difficulty with him latching on she declined help with it. She tried again for about five minutes half an hour later, and again at about half past seven (about the time the next shift, including Nurse C, came onto the ward) when she did not have enough milk which upset her. About 15 minutes later Nurse D told me that she saw HM sitting on the bed of her room crying with "tears running down her face…she said she couldn't feed him and he was not latching on. Mum was embarrassed bout [me] seeing her breasts so I went and got a bottle -she fed with a bottle- I had been told at hand over that she'd been ill and not visited for a couple of days and needed help and support from us." In cross-examination D told the court that she had been making her notes at reception and had been popping in and out, and that the door to the flat had been ajar.
36. R was allocated to Nurse C for that night's shift; she was told that HM was easily stressed and needed a lot of support so she had made periodic checks on R. At around quarter to nine that evening C completed a set of observations on R, she did not undress him and it is her evidence that that was the only physical contact she had with R during that night. HM recalled in her statement that at about nine after an unsuccessful attempt at breast feeding she bottle fed R. At about half past ten a student nurse K saw HM coming out of the flat with R on her shoulder saying that he would not feed, HM appeared to be very anxious and upset and told K that R would not feed or stop crying; she was struggling to express mill and had difficulty in the baby latching on; she seemed very tired and upset. K went to get a bottle and after he had it R seemed much happier. About half an hour later K approached the Junior Ward Sister H to tell her that she had seen HM rocking R in a fast and rushed way that had made her (K) feel uncomfortable; she told the court that she had been concerned about the baby and his mother because of her being stressed. H recorded that K had told her that HM was handing the baby in a rough way, or "roughly" and that was the word she had used in the record because, she believed, it was the word K had used to her.
37. Around this time C had checked on R to find HM changing his nappy; she observed that HM was disorganised and getting anxious and stressed, C helped her by tidying up while she tried to breast feed. When she left she was approached by K who told her HM was stressed and when she went back in she saw that HM was feeding R the bottle K had brought and HM seemed calmer. At around two in the morning of the 23^rd January C had gone to check on the baby and found neither asleep, HM was very tired and lethargic and did not want to talk, C asked if she had changed the baby's nappy and HM said she had not because there was no smell; C explained about the importance of nappy changes and advised HM to do so which she then did, C left the room. Around about this time K heard R crying and saw that his mother was changing his nappy; as he was still crying about five minutes later K asked a qualified nurse to check on him, she went back to find HM distressed and saying that she could not get R to settle. His mother put him in the cot, he was crying and she said "see!" K said "she was very agitated and couldn't quite calm down". K then lifted him out of the cot and settled him, returning him to his cot asleep.
38. Shortly afterwards, around about half past two or three, and K saw R in nursery 1 where C had wheeled him asleep in his cot covered by a blanket to observe him because his apnoea monitor had come unstuck. C told K that HM had asked her to have R so that she could have some sleep. At about half past three C then went on her break leaving R still asleep in the charge of another nurse. Sister H (who was based on the HDU as the nurse in charge) was then approached by a HCSW because R's monitor seemed to be going off for no apparent reason. The HCSW said that he had been in the Nursery 1 for about an hour. When H uncovered R to examine him she found that he was in "state"; R was, she said, "saturated in milk, like someone had poured milk over him…it upset me it was so saturated. I can still remember it now…" She had taken him to the HDU to look after him and with the help of another nurse had undressed cleaned and redressed the baby. The baby's legs were undressed and there was no sign that there was anything wrong with either leg; he was "moving his legs, absolutely no swelling there at all …he was uncomfortable…cold from being wet waiting to be fed and he was hungry [with] his hand in his mouth…" It was H's evidence that "As we were looking at this, I naturally saw R's legs at this time as they were exposed. I recall that they were at this time perfectly healthy." And, ".... I was looking closely at R's naked groin and legs. There was no sign of swelling or injury. R was kicking his legs with no sign of discomfort".
39. The HCSW who then fed R said "[R] was comfortable when feeding on his bottle, he displayed no signs of distress or pain" R fell asleep on her and she then placed him in his cot. The chart then shows he was fed a 35ml bottle of milk at around half past four, he was settled and comfortable and this feed was given by a nurse to allow his mother to rest in the hope that she could the breast feed and express milk later in the morning.
40. At about five in the morning C wheeled R back into Nursery 1. R was seen in the HDU and in Nursery 1 from about half past two until after half past six by several members of staff. His cot was described as being in the middle of the floor, when in Nursery 1, situated in front of the linen cupboard. The witnesses had difficulty in remembering exactly what time he was seen and where; this is hardly surprising as apart from the state of the baby's clothing and his mother's distress there was nothing of particular note. It was the practice of the staff to take about an hour or less for a break and none of the witnesses could remember precisely when they had done so that night. R was observed by staff on the ward all the time he was out of the room where he had been with his mother and no-one saw anything to cause concern about his legs, quite the contrary. At around half past six Sister H checked on R who was still in Nursery 1 with C; he was sleeping. At about quarter to seven C wheeled R back to the room where his mother lay sleeping and left them there both fast asleep. He was not seen again by any nursing staff until around half past seven when C checked in on them.
41. It is HM's evidence that she woke at seven o'clock and decided to change R's nappy before feeding him. She says that when she did she removed his legs from his Babygro and lifted his leg to remove the dirty nappy he cried out. It was not a normal cry. It was a high pitched cry. She noticed his leg was a little bit swollen; she said in her oral evidence and in her statement that she was not worried as she thought it might have been caused by blood being taken as, she said, this had happened before. Whatever she may have thought she did not report this obvious sign of distress in her baby at the time. She was seen by C at half past seven and again at twenty to eight and did not mention anything at all to her. On C's visit she saw HM trying to breast feed R who was not interested and his mother was becoming stressed, she gave HM some advice about when to change his nappy. C left HM changing R nappy at about twenty to eight (she was going off shift) R was crying and moving around but as this was not more than a baby having a nappy change C said she had no reason to think that there was anything wrong. She did not examine him.
42. RF said in his oral evidence to me that HM had phoned and texted him early in the morning of the 23^rd January, at about quarter to eight that morning and "she said there is something wrong with [R]'s leg, it's red and swollen." In his written evidence he said it was at about 7:30am; he told the court that he was up and about with his daughters who were staying with him and that they got up early about seven-ish and it was just after that. He told the court that she was asking what could have caused it and that they were both Googling and texting each other, he was trying to find the cause as HM "was really upset and I was trying to find out for her what it was… I was concerned about his leg being red and swollen. I assumed she'd do that…report it. I am very sure she used the word swollen …described it as red and swollen…"
43. HM accepted that she called RF but did not accept that she was upset as she did not think it was a "big deal". In cross-examination HM said that RF must have been mistaken about that and about the timing of the phone call as she not been upset until she had called him after R was taken to be x-rayed and his leg was swollen and she then knew something was wrong.
44. The first time HM mentioned the distressed cry of her baby or the swelling to his leg was to a HCSW (SE) who spoke to HM at about quarter past eight. HM reported that R had "...made a high pitched cry when she had done his nappy at 7am" She then asked SE to look after R while she went out for a cigarette as she said, she had not had one for ten hours. According to SE, as she was putting on her coat HM asked her to look at R's leg as it was "red and twisted" When she did so the HCSW said that R's Babygro was soaking, when she undid his nappy he was still dirty from the previous nappy change and that "...his left leg was red, swollen and sticking out to the side. I touched the side of his leg where it was swelling the most. It was hard with the swelling. When I touched it, it made what I can only describe as a "crunchy" noise. I did not move his leg in anyway. I just briefly touched the skin. When I did this he started to squirm"
45. The HCSW reported this and the fact that HM had said R had given a cry in pain at seven o'clock that morning to Nurse NH in whose charge R had been placed at change-over. On her examination of his leg NH found "his left leg at an angle, maybe 90 [degrees], it was very red and swollen" HM then returned from having a cigarette, she said that the leg looked worse than when she had last seen it. NH asked her to repeat what she had told the HCSW, HM told the nurse that she changed R's nappy at seven and he let out a "high-pitched squeal" that was "not a hungry cry but a painful cry" HM said that R would not settle in the night and that he wanted to be held a lot. The Ward sister confirmed the swelling and x-rays were arranged by Dr D at twenty to nine that morning. When the doctor examined R, in response to a question, HM said that R had been fine during the night.
46. The x-ray taken at nine twenty-one that morning showed a slightly displaced spiral fracture of the mid-shaft line of the baby's left femur. The only possible cause was a non-accidental or inflicted injury. Later that day, Mr G, on looking at x-rays confirmed that there were no fractures shown on his left tibia and fibula but that configuration of the femoral fracture was consistent with a twisting injury rather than a direct impact. The experts instructed in the case do not disagree.
47. On being told there was a fracture HM was visibly upset; and, on being told that there would be an investigation she said she would not have done that to her baby. She was later interviewed by the police.

Events since 23^rd January 2016

48. After child protection procedures were initiated R remained on the SCBU until he was discharged from hospital on February 2016 in to foster care and has remained with his foster-carer. RF was not available to care for him as he remained in full time employment until the end of September 2016. He and HM continued to live together although she absented herself from their home when his daughters were staying.
49. HM was interviewed by the police; transcripts of the interviews formed part of the court bundle. The hospital carried out an internal investigation during which the nurses who had been responsible for R's care did not work on SCBU. The 4 nurses that were interveners did not resume duties on the ward pending the hospital investigation.

Expert Evidence

50. I now turn to the expert evidence and accept that the helpful submissions on behalf of the interveners setting down the agreed radiological opinion: R suffered a fractured left femur which is properly described as a mixture of oblique and spiral and that the causation of this the fracture combination of bending and/or twisting.
51. As to the timing of the injury, the widest radiological window for this fracture is 10 days prior to the X-ray on 23rd January 2016 which would be 13th January 2016. It was the view of Dr Halliday that this timeframe can be narrowed down to 5 days, or so, of 23rd January 2016. It was agreed that the x-ray films are not of good quality.
52. It is agreed that there was "a lot of soft tissue swelling" the debate between the experts is the length of time it would take to reach that degree of soft tissue swelling to assist them and the court there are no studies addressing the speed with which soft tissue swelling appears, and even if there were it would, undoubtedly, vary from person to person and depend on the all of the circumstances surrounding the injury in question. The correct approach must be, and is agreed to be, that the radiology is used to provide a window or timeframe and that is then narrowed down by the available clinical history. When R's bone was x-rayed on 9th February 2016 it appeared demineralised; and, it is likely that R's bones would not be as strong as a term baby.
53. Dr Chapman written evidence and his contribution to the first experts' meeting was confirmed in his oral evidence. Essentially it was his opinion that because of the degree of swelling the fracture "must" have been sustained many hours earlier and that he did not think it possible to get that degree of swelling in less than 3-4 hours. In oral evidence he went further saying "The level of tissue swelling was not consistent with an injury only an hour or two old therefore as a radiologist I would want to push the window back many, many hours. We suggest a window and then look for possible causative event. Go back beyond 9am look when may have sustained fracture - on 20th January 2016 only based on clinical history at the time. If court finds not a relevant time all I can say is many hours old and I can't say when".
54. For support he referred to an article in 'RAD' magazine that Dr Halliday had written in which she said that swelling takes "several hours to develop". He looked back at his experience of femoral fractures and referred to 10 children age 6 days to 13 months, giving information as to what was seen on those x-rays and the speed with which they had been x-rayed, and whether or not he interpreted the x-rays to have "just" soft tissue swelling or also where, as far as he was concerned, the muscle/fat interface was obscured or broken down.
55. Dr Chapman told me that it was his view that "Timing on just swelling, that's very difficult. If we only had swelling in R's case, then I would have no disagreement with Dr Halliday. My conclusion that the fracture is many hours old is not swelling, it is the interaction of muscle/fat that makes me say at least 12 hours on the basis of my experience…because of soft-tissue swelling I see I don't think consistent with event only at most a couple of hours old, they have to be older than that".
56. He concluded his oral evidence by saying that because in his opinion the radiology was not consistent with a fracture only two and half hours old at the time of X-ray, if the court did not consider the evidence of clinical signs (by that he was referring to the high pitched crying contained in the nursing records and set out above) on 20th January 2016 to be relevant then he could not say when the fracture occurred in the 5-day window except that it must have been many hours before; it was his best estimate would be the early hours of 23^rd January 2016 or the night of 22^nd January 2016 but he could not say when and that the court would have to look to the clinical presentation; in respect of which he would accept that if a trained nurse's opinion was that a child was not in pain then she would be trained to recognise that and he would have confidence in that opinion. The evidence is that the high-pitched crying observed by nursing staff on the 20^th January was associated with a baby in distress in looking to be fed and to suck for his food; an atavistic need that was not being met that had nothing to do with him suffering physical pain.
57. Dr Chapman did accept in his oral evidence the findings of the paper by Halliday et al 2011 which were that soft-tissue swelling is largely unhelpful in individual cases and many of the features commonly used to date fractures in cases of suspected inflicted injury are unreliable. He accepted that there is no research base for drawing a distinction as to timing dependent upon the identification of blurring or break down of the muscle/fat interface. Dr Chapman's evidence that it was possible for him to distinguish between soft-tissue swelling and blurring of the muscle/fat interface and by so doing reach a conclusion as to the minimum number of hours that the fracture had been present was based on his retrospective review of 10 cases is poor science; ten examples about which the court has no detail is poor evidence and his hypothesis is unsupported by any research as the research base that does exist shows soft-tissue swelling per se to be a poor indicator of timing.
58. Moreover, Dr Chapman's reliance on his review of 10 cases he had been involved in with was carried out just before he gave evidence is deeply flawed, even if I were able to rely on with reference to R; it did not include any preterm babies; there is no indication of what methodology he was applying; there was no peer review or indication of any other appropriately qualified observer's opinion; the group was not selected for study against any objective selection criteria or any objective or verifiable means the reported time interval from injury to x-ray. It was not, in short, evidence upon which any court could properly rely, and seemed to be based simply on the court accepting Dr Chapman's undoubted experience as the basis for any conclusion he cared to draw.
59. The interpretation of the same x-rays by individual radiologists is frequently different, it is one of the issues identified in peer-reviewed research papers. Dr Halliday expressed surprise at this lack of agreement in her paper. The court cannot give much if any weight to Dr Chapman's own personal recall of some ten cases (which the court has no knowledge or sight of) as a basis for its decision in respect of R. Regretfully, I found Dr Chapman's evidence to be dogmatic and lacking objectivity.
60. Dr Halliday's evidence was much more measured and of greater assistance to the court. She said that there is no safe way to determine how quickly soft-tissue swelling might be visible radiologically and that there is no research on which it would be safe to base such a determination. She reiterated her own research findings and said that there is nothing arising out of the Prosser at al paper of 2011 (which dealt with only one femoral fracture in a child in the "0 years" category) that provides any greater clarity on this issue in respect of this case.
61. Dr Halliday's view was that she knew of no way of discriminating between soft-tissue swelling and the breakdown of the muscle/fat interface as Dr Chapman described it as it was all part of the same process of blood leaking into surrounding tissue, as a result of traumatic injury (whatever the causation) and of the response of fluid accumulating and the court accepts that this would be very difficult to distinguish reliably in the way described by Dr Chapman. She said that a femoral fracture had other significant features including that it is the longest bone in the body so that the length of the damage results in blood and then fluid leaking into the surrounding soft tissue covering a greater surface area than with injury to other bones in the body; R's femur was displaced which would result to a greater degree of swelling than an un-displaced bone (this was agreed by Dr Chapman); and that in an adult a fractured femur results in rapid swelling, which is often seen following a road traffic collision within 30 minutes or so from the impact.
62. It was Dr Halliday's opinion that the fracture could have had occurred within a couple of hours of the X-ray being taken. Taking into account the evidence regarding clinical presentation she considered this to be the most likely time of the injury to R. She rightly indicated that on radiology alone it was not possible to narrow the timing down further and the Court would have to look to clinical presentation to do so.
63. Dr Rose's gave expert opinion as to clinical presentation and in his first report he set-out his view as to the likely timing of the fracture thus; "From a clinical point of view therefore it is my opinion that the fracture occurred somewhere between 04.00hrs and 07.00rs on 23/1/16." He had considered the evidence of Sister H that at four o'clock R was kicking his legs and behaving perfectly normally during a nappy change without any sign of pain; "this is not the description of a child with a fractured femur". He went on "it defies belief that [R] could have suffered a fracture of his femur on 20/1/16, undergone multiple nappy changes and not display any form of pain until 23/1/16".
64. During the experts' meeting with Dr Chapman, Dr Rose had indicated that the fracture was more likely to be closer to 4 than 7am; but in his oral evidence Dr Rose told me that the reason he had given that opinion was because of the very firmly held views of Dr Chapman that on the radiology the fracture had to be at least 12 hours old and that Dr Chapman's view was presented in such a way to suggest that "there was no debate" which he had tried to accommodate by saying that in a 4am – 7am window the fracture was more likely to have occurred at 4am and that it "it could not have occurred at 7am" Dr Rose went on to say in his oral evidence "it is my clinical opinion swelling can occur very quickly because [of that] the thigh itself becomes fore-shortened. It happens very quickly after that there is an increase in swelling partly due to the tissue damage and considerable amount of swelling from bleeding from the marrow and considerable fluid to heal. These are the three components of swelling that occur sequentially …there is a difference between an abnormal looking thigh which occurs quite quickly and the outpouring of blood and swelling of soft tissue. If your thigh is foreshortened due to displacement there is a rapid change in circumference followed by continued swelling from bleeding and tissue damage".
65. Dr Rose confirmed in his oral evidence at the time of the expert's meeting with Dr Chapman that he had considered the radiological evidence that the fracture had to be at least 12 hours old to be "incontrovertible" because of the way that Dr Chapman had presented it; had Dr Chapman pointed out to him, as he should have done, that it was not "incontrovertible", and that there was no research base to indicated how quickly soft-tissue swelling could or would be seen radiologically, he would have given a different view. His view would have remained as originally expressed, that the fracture occurred sometime after 04:00 because that was the last time he was seen to be acting normally by Sister H and the HCSW who had fed R at 04:30 so that the likely time of injury would be the point at which R was exhibiting signs of pain which is at 07:00 on the account of his mother, HM.
66. Dr Rose's evidence was that he no longer had any reason to demur from his report; that R would have been greatly distressed and cried for some tens of minutes; afterwards he would keep his leg still and would have cried or been irritable on moving the leg; he was likely to have been difficult to feed or if he was picked up as there would have been an inevitable movement of his leg. On that basis it was Dr Rose's opinion in relation to the clinical account given by A for the 19^th January 2016 was that it was "highly unlikely" that R had suffered a fracture in her care given the reports of his reaction to being cup-fed or having his nappy changed thereafter of the nappy changes and the cup-feeding. He similarly confirmed that given the clinical descriptions of R on 20^th January 2016 by B that it was highly unlikely that he had sustained a fracture at that time either.

Law

67. This case is one where the principal finding of fact which the court is being asked to decide is the identity of the perpetrator of injuries to R. The parents contend that are only four possible perpetrators of the injuries R suffered despite the presence of other nursing staff and personnel on the SCBU at the material times. There is no challenge to the medical opinion that the fractured left femur which is described as a mixture of oblique and spiral and that the mechanism which caused this the fracture was combination of bending and/or twisting. There is no real challenge to the overall medical view that the timing of the incident which caused the injuries to the baby is a matter for the court. The law, which is not in dispute, is summarised below.
68. The burden of proof lies with the Local Authority.  It is the Local Authority that brings the case and they have identified the findings they invite the court to make and the burden of proving the allegations rests with them at all times on the local authority, I have been referred to Re A (Care Proceedings: Learning Disabled Parent) [2014] 2 FLR 591 (Re A [2014]). There is no obligation cast on the respondent or the interveners to come up with alternative explanations: Lancashire County Council v D and E [2010] 2 FLR 196.
69. The standard of proof is the balance of probabilities, as set out by the House of Lords in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141. If I accept that the evidence relied on by the Local Authority proves on the balance of probabilities that R sustained non-accidental injuries were inflicted by his mother, that fact will be established for the purpose of these proceedings and all future decisions concerning R's future will be based on that finding.  If the Local Authority fails to prove that HM was responsible for the injuries but the court finds that the injuries must have been caused either by her or one of the interveners the Local Authority will have to continue to treat her as a possible perpetrator for the purpose of these proceedings. I remind myself of the words of Lord Hoffman in Re B which apply to the identification of a perpetrator as they would to any finding of fact:

"If a legal rule requires facts to be proved, a judge must decide whether or not it happened.  There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are nought and one."

70. In all civil cases including, public law care proceedings, any findings of fact in must be based on the evidence. As Lord Justice Munby (as he then was) has said in Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12: "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation". This is a case of alleged child abuse, the fact of that abuse in the form of the injuries sustained by R is not disputed by any of the parties, and I must take into account all the evidence before me and consider each piece of evidence in context of all the other evidence as a whole.  As Dame Elizabeth Butler-Sloss, President observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 the court "invariably surveys a wide canvas". A point further amplified by her in Re T [2004] 2 FLR 838 at paragraph [33]:

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

71. I am reminded and keep in mind that the "inherent probability or improbability" of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred; "common sense, not law, requires that in deciding this question regard should be had to whatever extent appropriate to inherent probabilities" as per Lord Hoffmann in Re B at [15].
72. It is common, almost inevitable given the outcome, for parties or witnesses in cases such as this to tell lies before and during the hearing. The court is aware of and bears in mind that any witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything^[1]: credibility is in issue in this case and I shall weigh this in the balance in its overall decision making (bearing in mind the Lucas direction). In Re KH and HH (No 1) (Care: Non-Accidental Death: Burden of Proof) [2013] 2 FLR 550 it was held at [27] that, "It is curious phenomenon that in the quest for the truth, exploration of potential lies and inconsistencies is often key; so, too, is gaining an understanding of the reasons behind obvious deceit and subterfuge. The two most obvious possibilities in the current context for telling lies are self-protection or defence of another."
73. The evidence of R's parents and any other carers including the nurses is a most important part of the evidence before the court. They have had full opportunity to take part in the hearing as I am likely to place considerable weight on the evidence and the impression it forms of them. Justice requires that the assessment of credibility generally involves more than reliance on their demeanour; with the passage of time their memory inevitably becomes fainter may be replaced by what a witness believed happened which bears no relation to what actually happened; contemporary documents are of the utmost importance: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, per Lord Pearce; A County Council v M and F [2011] EWHC 1804 (Fam) [2012] 2 FLR 939.
74. In my review of the medical evidence I have kept in mind the observations of Dame Elizabeth Butler-Sloss, P in Re U, Re B [supra]" The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into corners that are at present dark".  This principle, is drawn from the decision of the Court of Appeal (CD) in R v Cannings [2004] EWCA 1 Crim, an object lesson as to the effects of changing medical orthodoxy in which Lord Justice Judge (as he then was) said: "What may be unexplained today may be perfectly well understood tomorrow.  Until then, any tendency to dogmatise should be met with an answering challenge."
75. I have regard, because of this, to more recent case law which has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause and to the decision of Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim. 126 [1]

"Where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown."

76. Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point at [10] in Re R (Care Proceeding: Causation) [2011] EWHC Fam 1715

"A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law.  In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm a consideration as to whether the cause is unknown.  That affects neither the burden nor the standard of proof.  It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."

77. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others: Re A [2014]. Expert evidence does not hold in any special position or carry more weight or credibility than that of other witnesses, no matter how distinguished an expert may be. The role of the expert to advise but the decision remains that of the judge based on all of the evidence before the court. It is necessary for me to give reasons if I disagree with the experts' conclusions or recommendations: Re B (Care: expert Witnesses) [1996] 1 FLR 667 and Re D (A Child) [2011] 1 FLR 447.
78. When seeking to identify the perpetrator or perpetrators of non-accidental injuries, the test as to whether a person is in the pool of possible perpetrators is the likelihood or a real possibility that he or she was the perpetrator as set out in North Yorkshire County Council v SA [2003] 2 FLR 849; the need to do so was emphasised by the Supreme Court in Re S-B (Children) [2010] 1 FLR 1161. The pool of perpetrators in this case is limited on this test to HM and nurses A, B and C. The approach to be taken by this court when seeking to identify the perpetrator of harm to a child set out in Re B (Children) 2008] UKHL 35, [2008] 2 FLR 141 by Baroness Hale [73], "In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied."
79. It is in the public interest that those who cause injuries should be identified (Re K (Non-accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285). It is also in the interests of the child. If I remain genuinely uncertain and decide that it is clear that the perpetrator cannot be identified, then I should say so and I shall not "strain" on the evidence in this case which was put before me to identify a perpetrator on the simple balance of probabilities. It is not disputed that R has suffered significant harm in the context of s31 of CA 1989. In evaluating whether significant harm has occurred, and if so who the perpetrator was, the roles of the medical expert and of the court are very different; I have to consider all of the evidence in the case, medical and non-medical, and come to an overall conclusion on the question of significant harm raised in s 31. Re B (Non-Accidental Injury) [2002] EWCA Civ 752; [2002] 2 FLR 1133; Re T (Abuse: Standard of Proof) [2004] EWCA Civ 558, [2004] 2 FLR 838.
80. If I am satisfied that the child has suffered significant harm, the threshold conditions under CA 1989, s 31(2)(b)(i) will be met in relation to that child even though the court is unable to identify who within the pool of possible perpetrators inflicted the harm^[2].  I keep in mind in determining whether a person is properly included in the pool of potential perpetrators, that it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible for the injuries (H v City and Council of Swansea and Others [2011] EWCA Civ 195).
81. When considering cases of suspected child abuse, the court must take into account all the evidence and, furthermore, consider each piece of the evidence in the context of all the other evidence: Re A [2014].

Discussion and conclusions

82. Having reviewed the evidence, including the contemporaneous nursing records, filed and heard by the court in this case I can find no evidence that the baby exhibited signs of the kind of pain that he would have been in on sustaining a fracture to his femur before seven in the morning on the 23^rd January 2013, as described by his mother. MH described R giving a high-pitched cry of pain at about seven o'clock when she said she changed his nappy.
83. Before that the last time R was handled by anyone, at all, had been on the HDU when he was cleaned and changed by Sister H and HL a senior HCSW who then gave him a bottle, after which she cwtched him (to use the Welsh word) on her and he fell asleep. As set out previously neither saw anything in the baby's behaviour which would indicate that he was in pain or had suffered any injury, he was seen to move and kick his legs freely. It is a matter of common sense, supported by the lack of any clinical signs of pain or injury, that R was well and uninjured at that time.
84. The suggestion made by Dr Chapman, that R might have suffered a fracture some time on the 19^th/20^th January 2016 that was not displaced at the time, but became displaced on the morning of 23^rd January 2016 was based on the record of R's high-pitched crying, oral evidence about which I have heard from Nurses B and D. Nurse B described the baby enjoying the unrestricted movement he had in his limbs when she was changing his nappy and had lifted his legs free of the Babygro. She told me that the babies she nursed generally liked to do that, and, what is more when she was telling me about this it was obvious that she enjoyed seeing the babies wriggling and moving about as they kicked and flexed their limbs. Nothing in her evidence led me to conclude she had harmed, or would have wanted to harm R. B is an experienced nurse whose dedication to the babies in her care was clearly based on her affection for them as well as her obvious sense of duty. I found her evidence in respect of the respect of the reason for R's high pitched crying, namely that he was looking to feed and had need for it which was not being satisfied, to be wholly convincing; HM conceded that she was not able to feed him easily even if she had been there at the time; he was not being offered a bottle at the time (as his mother had not given permission as she wanted to breast feed) which might have satisfied his need to suck; and, he was able to be comforted when handled in a comforting way.
85. Moreover, the high-pitched crying, associated with fretfulness and R looking to suck continued into the next day as witnessed by Nurse D. The explanation put forward by Dr Chapman does not have the evidential foundation on which he based a large part of his reasoning; namely, that R was injured several days prior to 23^rd January 2016 when "high pitched crying" was first recorded. It is simply not supported by the clinical evidence in the observations of the nursing staff that were caring for R, even Dr Chapman at his most hubristic would have to concede that radiology alone cannot form the basis the courts finding in respect of when the fracture occurred. Dr Chapman was alone in putting forward this explanation and the evidence does not support his reasoning. Thereafter, until the morning of 23^rd no-one noted any sign of pain or discomfort when his nappy was changed and his legs moved in and out of his babygro and he was handled when being cleaned or nursed.
86. On the 20^th January 2016 D had phoned his mother asking for permission to feed him with a bottle; which she gave so they were able to allow him to suck when feeding. After that he was more content and there was no further high-pitched crying noted. R continued to have his nappy changed every few hours as before and there is not one record or reference to R displaying any discomfort when his legs were handled. If there had been a fracture it is, as Dr Rose observed, inconceivable that it went unnoticed over a period of a few days. If there had been a undisplaced fracture of the left femur the reason why it would not have become displaced on frequent, albeit gentle, handling over a period of days is abstruse and so it is highly unlikely that it could have been so; even if the clinical evidence had supported Dr Chapman's theoretical explanation.
87. The combined evidence of Drs Rose and Halliday was, as submitted by Ms Ruth Henke QC for the local authority, more convincing, drawing as they did on their current clinical experience. Dr Rose's dismissal of Dr Chapman's view on the degree of force needed to cause the fracture was, indeed, rooted in common sense; if the femur of a premature baby could sustain a fracture by the application of a degree of force just beyond normal, then there would have to be a regular flow of babies with fractured femurs because the of the comparative frequency of carers use handling which is a little rough, just beyond normal, whether through weariness, ignorance or carelessness. There is no such known phenomenon, and, in Dr Rose's thirty-five years of experience in considering comparators (premature babies on a neo-natal ward) he had encountered only one fractured femur, when a doctor had clearly used unacceptable force.
88. Dr Halliday's evidence was essentially the same. She gave similar evidence; even given that R's bones may [my emphasis] have because of the demineralisation due to his relative prematurity, she stated it would have to be "a significant force [to have caused the fracture to his femur]. We have much more fragile babies than this on a neonatal ward and fractures are pretty rare. For a 32 week old to get a fracture, we just don't see it, even if [the handling of the baby]is a bit rough". When fractures do occur it is of the weaker bones, such as the ribs and the wrists, not to the femur which is one of the strongest bones in the human body. Dr Halliday could not recall ever having come across a fracture of a femur in such circumstances. It is more likely than not that the degree of force used to fracture R's femur would have been beyond normal handling, it would have to have been outside the acceptable force one uses when handling such a small baby and was, therefore, excessive even if not deliberate.
89. The baby's high pitched cry of pain was described by his mother as having occurred at seven o'clock on the morning of 23^rd January 2016. Although HM said that she was unconcerned as she thought it was a result of a blood being taken from his foot this is flatly contradicted by RF whose evidence was, and remained, that she had called him about half past seven and was upset; according to him it was he, not she, that was unconcerned. He told me that she told him that there was something wrong with the baby's leg and that it was swollen. He was able to remember, clearly, when she had called as his daughters were there, they get up early at about seven and it was shortly after they were out of bed. There is no reason for RF to have lied about this and I accept his evidence.
90. When HM phoned RF she asked him to look on Google for reasons that there might be something wrong with R's leg. If, as she claimed, she was not bothered because it was as the result of blood being taken for a sample, there is no explanation either for her distress or to look for a reasons on Google. It does not explain why she left it until after eight to bring to the attention of a member of the nursing staff. Her evidence about this was contradictory and untruthful, on 7^th March 2016 in the first police interview she denied that any nurse had come into see her at half past seven, saying it was not until much later and that she did not bother trying to speak to a nurse at the time because they were all on hand-over. In her statement dated 16^th April 2016 she claimed that she twice attempted to speak to the nurses by going out of her room but was unable to attract their attention because they were in hand-over. It was C's evidence that she went into flat 1 at half past seven saw HM trying to breast feed and at twenty to eight returned with a bottle, on both occasions HM had the opportunity to raise with her any concern she had about R's high pitched cry or his leg this evidence contradicts her assertion that she wanted to raise it but the nurses were too busy. HM's explanation that she did not think anything of it because she assumed that he had had bloods taken was, and remains, unconvincing and her evidence was further undermined by inconsistency such as whether she had seen a swollen foot, in her written statement she said she had, and her oral evidence that she said had not.
91. The evidence of E was that HM first mentioned swelling to R's leg, en passant, at about quarter past eight when she went for a cigarette. E had a clear recollection of the events, describing HM asking her to look after R, and, as she reached for her coat, that R's leg was "red and twisted". E has no reason to lie about this and had a good recall of events of that morning giving a detailed description, and I accept her evidence. I conclude, on the balance of probabilities, that HM had a reason for delaying telling anyone about the baby's leg and the pain he had exhibited for well over an hour, and that reason, and her inaction, were consistent with someone who knew she has caused an injury she had hoped she could hide. When she realised she could not she phoned RF to try to find an alternative explanation. It is neither her evidence, nor his, that she told him about her theory about the blood sample being taken; and I accept his evidence that HM had been upset when she phoned him; The only reason for that is that she was well aware that there was something seriously wrong with her baby.
92. When she does say something she affects a nonchalance that is in contrast to the distress she had already shared with her partner. When she returned R was being examined by two nurses and E said when his mother looked at the baby's leg she said it looked worse. E said HM did not describe the leg as "swollen" until after this point, it may have been the first time that she said so to any nurse but she had described it as swollen to RF around half past seven which would have been a good thirty minutes after she said that R had cried out in pain, there is likely well have been some swelling at the time she phoned RF; this would be consistent with the expert medical opinion of Dr Halliday whose opinion it was that swelling would begin almost immediately: what is relevant here is that HM later (after she had had a cigarette) described the leg as worse, which is consistent with developing swelling associated with a fracture. Only HM could tell what was worse about the baby's leg. The picture of an injury which was getting "worse" and of swelling which is emerging is consistent with the medical evidence of an injury occurring at about seven o'clock and the resulting swelling becoming more noticeable.
93. There is evidence, not only that HM was finding it difficult to breast feed R, which caused her to feel frustrated and upset, but also that she found it difficult to manage to look after him at all for any length of time at all. HM had appeared to be very tired, and often lethargic; on the two occasions she roomed in overnight she had asked the nursing staff had taken over the care of R. This would not be worthy of remark or comment had she done so after several nights during which she had been kept awake looking after R, but on each occasion (on the 18^th /19^th and again on 22^nd /23^rd January) and again she had not been looking after R on previous nights. The court is not aware of the reasons for her lethargy, but it is a matter of common sense that being so tired, whatever the cause, must have increased her feelings of frustration and added to her distress at the difficulties she experienced attempting to breast-feed. These feeling must have contributed to the less than gentle way she was seen to be handling R by the student nurse (K) who had felt concerned enough to report to the Ward Sister (H) about what H recorded as "rough handling" or HM handling R "roughly". I accept that the nurse accurately recorded what she was told by K at the time. There is, too, the observations of her distress as a result of attempts at breast feeding, changing R's nappy and trying to settle him (all of which are set out above).
94. This frustration evidently carried over into her general care of R who was found in a state of some neglect on the night of 22^nd /23^rd. The evidence the court heard was that when R had been wheeled out of the room, known as flat 1, where he had been cared for by his mother, by C at around half past two or three in the morning, R was asleep and he was covered by a blanket; just as he was seen asleep in the middle of Nursery 1 shortly afterwards by K. When Sister H took the blanket off to examine R – to see why the apnoea monitor was going off – she discovered the baby saturated in milk, uncomfortable and cold. When Sister H gave evidence about this she, herself, was distressed to recall the "state" the baby was in; the last person to have fed him was his mother who had been given a bottle to feed him. It could only have been HM that she had left him in this "state" which must have happened as she tried to feed him with the bottle. She then covered him up and, when he was asleep, asked C to take him out of the room to let her have some sleep. The obvious signs of neglectful and inadequate care were to continue into the morning, when HM went off to have her cigarette leaving R with a HCSW (SE) he was discovered to be in clothing again described as soaking; when his nappy was removed his bottom was dirty, still covered with faeces that had not been removed when she changed his nappy at seven that morning.
95. The lack of basic care given to her baby that night and morning are part of the whole picture; which along with her frustration, tiredness and distress, point to a young mother who was not coping and who eventually hurt her baby out of the frustration that she felt, with herself and with him. I conclude that HM caused the fracture to R's femur and then sought to hide what she had done for well over an hour. It is not possible for me to say what precise mechanism was used as HM has not told us. It is most likely that the fracture was inflicted at around seven in the morning when R cried out, as she herself said, in pain. HM was probably changing his nappy and became momentarily very angry about having to clean R again, her difficulties in caring for him with ease or confidence and her continued inability to soothe him, settle him and to feed him. When his leg began to show signs of real injury, looking red, twisted or oddly shaped and beginning to swell she realised that he had hurt him seriously. She did not tell the nursing staff but called RF in fright and distress to look for an alternative explanation, perhaps that she could proffer when the injury was discovered as it inevitably would be; whatever she was doing she further delayed letting the staff know.
96. The inability of HM to deal with caring for R without becoming frustrated and angry, with herself and with the baby means that it is more likely than not that she caused the bruising or marks to his neck and chin on the previous occasion that she had attempted to look after her baby over-night. Again she was remarkably tired and had exhibited signs of distress and frustration. It is most likely that she caused the bruising when she held him far too firmly in the position she favoured for winding him and which she demonstrated when giving evidence. It is unlikely that she intended or set out to hurt or deliberately harm R but that she was overcome by her own emotions, sense of frustration and inability to cope.
97. There is no other explanation for the marks which appeared on R's chin and neck. When HM was not present between the 19^th and 22^nd January, the baby was not handled in that way by any member of the nursing staff. His "cares", feeding and nappy changes were carried out in a way that minimised how much he was handled to allow him to sleep as much as possible. Each nurse who handled him explained exactly how she did so; not one handled R in a way that could have resulted in him receiving any bruises to his face or neck. Bruises are notoriously difficult to age; nor can one reliably read from their appearance when the injury which caused them took place. In the absence of any explanation from HM it is difficult to say exactly when they were inflicted other than it must have been shortly before she left the hospital on the morning of the 19^th January 2016.
98. In reaching these findings it will follow that R will be placed at home in the sole care of his father, RF.

Implementation of care plan: The Social Services and Well-being (Wales) Act 2014

99. HM is to move out of that address and has agreed to do so. It was abundantly clear from HM's oral evidence that she has little if any real support from her family. Her mother had offered HM a place to live with her but the very evening before she was due to give her oral evidence HM's mother withdrew her offer because she had a "new boyfriend". R's maternal grandmother could not have made it clearer where her priorities lie. The court is anxious that HM receives some professional support in respect of her own difficulties which have arisen out of her own up-bringing and that there is a solid attempt at arresting the cycle of neglectful and abusive parenting. HM's inability to parent safely must be as a result of the poor parenting she received herself, at least in part. HM's mother and her family continually made demands on her during the currency of these proceedings which would have contributed to her inability to prioritise R's needs, and interfered with HM's engagement with the local authority. It has to be said, however, that HM allowed it to happened and for that she bears responsibility.
100. The local authority has made submission in which they have identified their duties to HM under the provisions of The Social Services and Well-being (Wales) Act 2014 (SSWA), which is a comprehensive statute of some length accompanied by a great deal in the way of secondary legislation and statutory codes have been introduced in Wales. The SSWA repealed the Part III of the Children Act 1989 which no longer applies in Wales and a completely new scheme of community care, by providing a new scheme for social services. Ms Henke has been assiduous in providing the court with information about the new legislative framework for social services in Wales; the court is grateful for her assistance.
101. In terms of community care for adults, such as for HM, s19 of the SSWA provides that where it appears to a local authority that an adult may have needs for care and support, the authority must assess whether the adult does have needs for care and support and what those needs are. The duty applies in relation to an adult who is ordinarily resident in the authority's area, and any other adult who is within the authority's area. Under s32 SSWA when a local authority is satisfied (on the basis of a needs assessment) that a person has needs for care and support the authority must –

(a) determine whether any of the needs meet the eligibility criteria;

(b) if the needs do not meet the eligibility criteria, determine whether it is nevertheless necessary to meet the needs in order to protect the person from –

(i) abuse or neglect or a risk of abuse or neglect (if the person is an adult);

(ii) abuse or neglect or a risk of abuse or neglect, or other harm or a risk of such harm (if the person is a child);

(c) determine whether the needs call for the exercise of any function it has under this Act or Parts 4 or 5 of the Children Act 1989, in so far as the function is relevant to that person;

(d) consider whether the person would benefit from the provision of anything that may be provided by virtue of section 15 (preventative services) or 17 (information, advice and assistance) or anything else that may be available in the community.

102. Relevant eligibility criteria are contained in the Care and Support (Eligibility)(Wales) regulations 2015. The Code (statutory guidance) to this Part of the Act, Part 4, provides that a local determination of eligibility must support a move away from the deficit model of care and seek to emphasizes strengths, capacities and capabilities. The eligibility must be "outcome based", relating to the national outcomes framework, and the local authority must determine whether the provision of care and support or support for a carer will assist the person to meet their personal outcomes within the framework of well-being pursuant to s2 SSWA.
103. The court is informed that the key definition in understanding and applying the SSWA is the statutory definition of well-being contained within s2 (2) as follows:

"(2) 'Well-being', in relation to a person, means well-being in relation to any of the following –

(a) physical and mental health and emotional well-being;

(b) protection from abuse and neglect;

(c) education, training and recreation;

(d) domestic, family and personal relationships;

(e) contribution made to society;

(f) securing rights and entitlements;

(g) social and economic well-being;

(h) suitability of living accommodation.

104. S 2 (3) which is in relation to a child, well-being also includes (a) physical, intellectual, emotional, social and behavioural development; (b) 'welfare' as that word is interpreted for the purposes of the Children Act 1989. And s2(4) in relation to an adult well-being also includes (a) control over day to day life; and, (b) participation in work.
105. The SSWA expressly incorporates, as part of the overarching duties the UN Principles and Conventions thus: (1) a person exercising functions under this Act in relation to an adult falling within section 6(1)(a) or (b) must have due regard to the United Nations Principles for Older Persons adopted by the General Assembly of the United Nations on 16 December 1991, and (2) a person exercising functions under this Act in relation to a child falling within section 6(1)(a), (b) or (c) must have due regard to Part 1 of the United Nations Convention on the Rights of the Child adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 ('the Convention'). For the purposes of subsection (2), Part 1 of the Convention is to be treated as having effect –

(a) as set out for the time being in Part 1 of the Schedule to the Rights of Children and Young Persons (Wales) Measure 2011, but

(b) subject to any declaration or reservation as set out for the time being in Part 3 of that Schedule.

106. The Code to Part 2 makes it clear that while it not included within the statute itself, when exercising social services functions due regard must be paid to the United Nations Convention to the Rights of Disabled People.
107. The local authority has voluntarily acknowledged that HM may need care and support within the meaning of s19 of the Act and have made a multi-agency referral. They have forwarded to HM's solicitor forms for HM to sign in order to consent to the referral; as the SSWA expressly permits individuals to refuse to consent, so recognizing the autonomy of the individual; and, her consent is required to protect her information rights (data protection) and confidentiality. The local authority has contacted, a (named) woman's worker, who is said to provide a service similar to PAUSE (which has not been rolled out in Wales) who is in place to offer HM support following these proceedings. The court is concerned that HM takes up and engages with any support offered to her for herself and for R; as it is all too easy to foresee RF being placed in a very difficult situation if he made aware that HM is homeless and unsupported. It would place him in a very real human dilemma which could undermine R's placement with his father.
108. While the woman's worker who has been identified is able to provide a wide range for support and is prepared to offer support to HM, the court has been made aware that HM was referred to the self-same worker at the end of the proceedings concerning her first child (now adopted outside his family) which, as the local authority acknowledges will have a negative association for HM: with that in mind the local authority has an alternative service they can offer to HM. In March 2016 she had referred herself to the youth service run by the local authority and had support from worker (MC), as HM did not keep up her contact the case was then closed but the court is aware that MC remains willing and able to provide the same level of support as the woman's worker if HM would prefer to work with her. Formal referral will need to be made and once done MC would available immediately to support HM. Another form of support for HM is through a multi-agency referral to the adult/mental health teams. Either of these workers could support HM in making such a referral (through her GP), and with attending the necessary GP appointment, as well as attending any service or support group the mental health services consider appropriate.
109. The local authority has assured the court that they will help HM find alternative housing to the temporary accommodation offered at the last minute by HM's brother. Her support worker would assist her; this may include supported housing schemes for vulnerable women which exist in the area. The local authority has told the court that they will support HM with her housing application by providing a supporting letter, which will confirm the basis of HM's homelessness. If Housing Options recommend that HM source private rent options, the Local Authority will consider financial assistance once all other avenues have been fully exhausted by HM (such as if HM were to make an unsuccessful application to the Bond Scheme, or if the landlord does not accept the Bond Scheme they will then consider financial assistance). The local authority has told the court that to provide HM with such support will enable her to meet her own wellbeing outcome for housing. The local authority has accepted that ensuring she has appropriate housing will reduce the risk of her returning to the family home and undermining the care plan for R; and the need to provide her with practical and emotional support in what will be a difficult time for her.
110. In the light of this comprehensive and holistic approach to the child and both his parents the court will make the care order sought by the applicant local authority.

Note 1   of R v Lucas (Ruth) [1981] QB 720, [1981] 3 WLR 120, [1981] 2 All ER 1008; Re A [2014]ibid.    [Back]

Note 2   Lancashire County Council v B [2000] 1 FLR 583,    [Back]