England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2016

Mrs Justice Theis DBE:

Introduction

1. This matter concerns two children MY 22 months and MN 7 months. Their parents are CM 22 years and LW 24 years. Up until 25 April both children were in the care of their parents. In the early hours of that morning MN collapsed and was admitted to hospital, he was found to have an acute subdural haemorrhage for which there was no reported event that accounted for these injuries. He was also found to have a chronic subdural haemorrhage as well as posterior rib fractures (both sides) likely to have been caused by squeezing and metaphyseal fractures caused by flailing or a pulling mechanism.
2. Following his discharge from hospital he was placed with foster carers on 7 June 2016. On 29 April 2016 MY was placed with her paternal grandmother KY Both children remain with those carers and have had three times per week supervised contact with their parents', initially together then following the parents' separation in July/August contact has taken place separately.
3. These young parents' lives have been put under intense scrutiny during this hearing. They have each suffered extremely difficult upbringings where they have each been the subject of sexual abuse and had very disrupted care. Inevitably those experiences will have an impact on how they themselves parent.
4. In addition the mother tragically lost her first child, L, due to medical causes wholly unrelated to the difficulties with the children in this case. Inevitably such a loss has had a severe impact on the mother. She has had long term support from the mental health services and is on long term medication to manage her mental health. Prior to giving her oral evidence she wrote a very moving letter to me setting out why she asks this court to give her one last chance to look after her children. With her particular background it is a very powerful letter but I have to consider the future welfare needs of these young children in accordance with the provisions of section 1 of the Children Act 1989 and only make orders that will meet their welfare needs, which is the courts paramount consideration.
5. There is considerable documentation in these proceedings, 10 lever arch files.
6. I heard oral evidence from the following:

Medical experts: Mr Jayamohan (paediatric neurosurgeon), Dr Johnson (paediatric radiologist), Mr Morrison (paediatric ophthalmic surgeon), Professor David (consultant paediatrician), DH (neighbour), CK (health visitor), KM (social worker), Penny Coombes (SGO assessor), Stephen Pizzey (ISW), TBR (community mental health team), SK (current social worker), DW (paternal uncle and intervener), KY (paternal grandmother and party), OW (friend), BW (maternal great aunt), MW (paternal grandfather), JN (private foster carer), DP (maternal great grandmother), KV (friend), TBN (friend), TBS (friend), LG (friend), TM (friend), mother, father and EJ children's guardian.

Legal Framework

7. The parties have helpfully agreed a note on the law. I obviously have regard to all the matters set out in that document, in particular the following matters summarised by Baker J in Re IB and EB [2014] EWHC 369 (Fam).

i) The burden of proof rests with the local authority.

ii) The standard of proof is the balance of probabilities.

iii) Findings of fact must be based on evidence and speculation must be avoided, especially where there is a gap in the evidence.

iv) Each piece of evidence must be considered in the context of all other evidence.

v) Appropriate attention must be paid to medical experts, but their opinions need to be considered in the context of all other evidence.

vi) The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers to others when appropriate.

vii) The evidence of parents/carers is of the utmost importance and the court must form a clear assessment of their credibility and reliability. They must have the opportunity to take part in the hearing, the court being likely to place considerable weight on their evidence.

viii) The court must give itself a Lucas direction.

ix) The court must not forget that medical certainty may be disregarded in the future and to consider the possibility of the unknown cause.

x) The test to identify whether a particular person is in the pool of perpetrators is whether there is a likelihood or a real possibility that he was the perpetrator. Where it is impossible on the balance of probabilities to find that one person rather than another caused an injury, then neither can be excluded from the pool.

8. In relation to matters concerning welfare the court's paramount consideration is the welfare of each of these children in accordance with s 1 Children Act 1989 having regard to the matters set out in the welfare checklist.
9. In considering what orders to make the court must consider whether the decision it makes in respect of welfare is a proportionate decision in the context of the case Re C and B [2001] 1 FLR 611 at para 34.
10. It is necessary for the court in considering what order to make to undertake an evaluation of all the options having regard to the high degree of justification required under Article 8 if the decision is going to be made that a child is going to be placed, against the wishes of the parents, into an adoptive placement.
11. The court should have regard when reaching its decision as to the impact on any sibling relationship the child has.
12. In the event that the court makes a care order it is necessary for the court to then consider, if there is an application for a placement order, whether the welfare of the child requires the consent of the parents to be dispensed with before deciding whether the lifelong welfare interests of the child under section 1 ACA 2002 require the court to make a placement order.

Relevant Background

13. The account set out below is taken in large part from the detailed accounts provided by the parents in their police interviews and statements. As will become clear there are significant issues as to the reliability of this history. One of the most disturbing features of this case is the way each parent has sought to influence each other's account of the relevant history and the accounts given by others. It has created layers of untruths and has made an already complex case much more difficult, due to the multiplicity of lies and untruths.
14. Both parents each had a very difficult background, both encountered abuse and trauma in their childhood. A detailed account of both their backgrounds is set out in the report of Stephen Pizzey, the ISW who conducted a parenting assessment of the parents.
15. The father's parents divorced when he was 4. His mother KY had two children by a previous relationship, D and C. Both reside in another area, C has two children the eldest of which A age 7 lives with KY under a special guardianship order. KY now age 51 lives on her own and works full time. Her mother and step father live nearby. The paternal grandfather, MW, lives with his partner and their four sons who are age 7 and under.
16. Following his parents' separation the father remained living with his mother and her new partner, but the father's behaviour deteriorated possibly due to difficulties in his relationship with his stepfather. In 2006 the father made an allegation of sexual abuse which resulted in him giving evidence in the subsequent criminal proceedings in 2007. He was recorded later in 2006 as reported missing on 33 occasions in the preceding six months, with evidence of risky relationships. There is evidence in late 2006 of an assessment for assistance to help manage the father's feelings of anger. As Mr Pizzey observes the father had an 'extremely disrupted early childhood' with 'persistent and sometimes substantial disputes between the parents regarding his care', the accounts give an impression of an 'emotionally neglectful environment where his parents were focussed on leading their own lives'. The father started using cannabis in about 2005 age 13 years and has a number of criminal convictions for drugs and offences of violence.
17. In 2009 KY asked the father to move out as she had taken on the care of her granddaughter A and he had been convicted of racially abusive behaviour. The father moved to the X centre, where he met the mother.
18. The mother was born addicted to heroin caused by her parent's addiction. She had an extremely disrupted childhood due to her parent's chronic drug addiction. She moved between her parents before being placed with JN in about 2002. There were a number of breakdowns in that placement as she sought to make contact with her mother. She moved to the X hostel in 2012 and met the father. At about this time she started using drugs. In February 2013 the mother was referred to the local CMHT due to depression/anxiety/anger. She was admitted to a MHU diagnosed with personality disorder, prescribed medication and underwent a detox programme. The records are not clear for how long she was there for. In June 2013 TBR was allocated as the mother's mental health worker and remains so to date.
19. The mother was pregnant in early 2013, the father was NG. The relationship broke down prior to the birth of L in late 2013, the mother reported threats from him after the birth. The mother quickly formed a new relationship with JF who was reported to be violent and controlling towards her. NG applied for contact with L and agreement was reached for twice weekly contact.
20. On 21 March 2014 L became unwell, was rushed to hospital and very sadly died later that day from congenital cytomegalovirus (CMV). The death was not treated as suspicious. The mother understandably found coping with the loss very difficult and resorted to the use of drugs and alcohol. She refused bereavement counselling at the time.
21. The parents' relationship started very soon after L's death, they had known each other previously. The mother moved in to stay with the father prior to the funeral and she quickly became pregnant. The relationship was volatile from an early stage. The police records refer to a call out in September 2014 where the record refers to 'lots of screaming' from the home between the parents, the police were called after reports of loud screaming and crying and the parents were reported to still be arguing when the police arrived. The mother's mental health continued to cause concern and she was reported to still be using drugs.
22. At a heath visitor appointment in October 2014 the notes record that the mother was on licence with the council regarding her tenancy due to complaints by neighbours and the mother reported taking cannabis daily. There was a referral to children's services and an assessment was undertaken.
23. MY was born in early 2015. Although there were high level of concerns due to history of drug use and mental ill health, initial reports from health visitor visits were relatively positive.
24. At the children in need meeting on 25 March 2015 the social worker reported she would be very concerned if either parent were to relapse into drug and/or alcohol misuse, if the mother's mental health deteriorated or there were further instances of domestic abuse. A plan was agreed with the parents that included the father undertaking MY's care at night while the mother adjusted to her new mental health medication and he was to refer himself to his GP to discuss anger management.
25. MY was reported to have difficulties with feeding and colic between April and June 2015. In May 2015 the Children and Family Intervention Service (CFIS) were requested to work with the family to assist the mother bonding with MY and her emotional care of the child. Her engagement with this work was reasonable.
26. The health visitor did a home visit on 26 June 2015, the mother was recorded as being in a new flat and the father staying there. The mother is reported to be low and unsure what she wants regarding support around L's death.
27. On 15 July 2015 there was a referral from the police who had attended the home due to neighbours reporting hearing a young woman shouting at a baby. The mother denied using cannabis.
28. On 20 July 2015 there was an agreement with the social worker to undertake work and support regarding the relationship between MY and her mother.
29. In August 2015 there was a plan for weekly visits by the local authority regarding concerns around attachment and emotional neglect, MY is reported to be left in her bouncer or left to self soothe.
30. In late August 2015 the mother reports she is pregnant.
31. On 2 September 2015 the police were called to the family home due to reports that the father could be heard shouting at the mother. The mother said she and the father were no longer together, although he was still living there, they had had an argument and she had locked him out. A strong smell of cannabis was reported by the police.
32. On 6 September 2015 the case was transferred to KM as the allocated social worker.
33. A s47 report dated 13 September 2015 reported the basic care of MY is good, notes emotional warmth demonstrated and the mother is working hard on her attachment with MY and engaging with CFIS.
34. The police attended the home again on 19 September 2015 following reports of loud music. The mother denied MY was present when the music was played, MY was seen and no concerns.
35. Prior to MN's birth the mother continued to see the social worker, midwife, community mental health worker and her medication was reviewed on 17 February 2016.
36. In early 2016 MN was born. Initially the mother did not want to hold him, she bonded more on the recovery ward holding and feeding him. The mother was back on quetiapine as the psychiatrist considered she was displaying signs of EUPD, so the nurses did the night feeds. The father visited the hospital with MY and stayed the night with the PGM.
37. The mother reports being visited on 30 March by LG, TBN, SR and her partner JR, JN, DP and KY.
38. On 31 March the father took MY to DP, he visited MN and the mother and stayed again at his mothers. S and J also visited the hospital.
39. On 1 April 2016 the parents report MN settling after feeds. MY stayed with BW and her partner. The following day they returned her to the father's care at hospital. MC then stayed with KY.
40. On 3 April 2016 the mother's mental state was reviewed, she was less anxious and was taking citalopram, quetiapine, diazepam and anusol. She was considered well enough to be discharged from the mental health point of view, she feels she is bonding with the baby and keen to go home. Plan to follow up mental health in the community and midwives to inform children's services about the discharge. TBS took the mother and MN home.
41. On 4 April 2016 the midwife SS attended the home, the parents stressed to her MN was not taking his milk, asked for it to be changed to the same milk MY was on due to her milk allergies. According to the mother LG and TBS visited in the evening. The father took MY to the GP.
42. On 5 April 2016 MN was readmitted to hospital due to an umbilical infection. The father took him to hospital and stayed with him overnight, the mother stayed at home with MY.
43. On 6 April 2016 KY attended hospital to sit with MN for a short period to enable the father to have some fresh air. On 7 April 2016 MN is reported to have had a settled night. On 8 April 2016 the father took MN out of the hospital for short periods, returning for antibiotics. According to the father he visited KY at lunchtime, his father and aunt JP visited, as did the mother, TBS, LG and her son R. MN was reported to be unsettled, sick and did not hold his bottles down.
44. On 9 April 2016 the father cared for MN at hospital, he was visited by his mother and father, J and JoP, and A and JW. The mother remained at home with MY.
45. On 10 April 2016, the cannula was removed, the father reports vomiting. MN well perfused, small vomit post feed planned discharge later that day. The father and MN return home with the paternal grandfather, he stayed for a short time at the family home. The mother took over the care of MN and the father looked after MY.
46. On 11 to 12 April 2016 both parents cared for the children. MN was in some discomfort and being sick, the mother recalls speaking to the health visitor about giving MN some gaviscon. The father went to get some and went out to walk the dogs. MN was unsettled at night, father had to get up at 3am as MN crying. The father reports he took a while to settle. The mother describes MN as starting to projectile vomit, being in discomfort and drawing his legs up in pain.
47. On 13 April 2016 both the social worker and health visitor visited. The home was described as hectic, MN had been crying all day off and on, was unsettled and vomiting. The mother found the situation overwhelming and went outside for some space. The father was reported as being calm, was able to soothe MN and feed him a bottle of milk. MN was seen by the GP with his father, he was thought to have colic and was noted to be consolable with his legs tucked up. Later that day TBS and LG visited, TBS stayed for a short while, LG stayed longer to help with the children. The parents and LG stayed up late, all three went outside for a cigarette leaving MN asleep in the bouncy chair in the front room. Just after midnight the father's brother, DW, and his friend, J, turned up very drunk and very probably under the influence of drugs. They were described as being 'off their heads' and 'out of it'. DW said he was coming for a few days, the parents searched him due to his use of cocaine and heroin. Crack pipes were found which were left outside. DW asked to hold MN, the mother asked him to hold him whilst the parents and J went out for a cigarette. They were outside for 10 minutes when they heard MN crying. When the mother went in she shouted as MN was out of DW's arms at an angle smothered in sofa pillows. DW was asleep, just mumbled when the mother shouted at him and went back to sleep. MN was described as being very red in the face but otherwise okay. After this TBS came to pick up LG, after she had gone the parents took upstairs and left DW and J to sleep downstairs.
48. On 14 April 2016 the mother cared for MY and the father MN. DW and J went out to collect DW's methadone, when they got back they tried to sleep which annoyed the parents. MN was seen by GP with the father. On examination it was noted he was asleep and settled, abdomen soft and fontanelle normal. The father reports he scrunches up his legs and crying. Advised to continue nutramigen feeds and return if concerned. NG came round about midday. They agreed she would stay and share the bed with the mother; the father, DW and J slept downstairs. At various stages people went outside for a cigarette leaving the children in the care of DW and J. The father put MY to bed at 8.30pm, the mother and NG went up to bed about midnight and the father stayed downstairs with DW and J and got up during the night to feed and change MN.
49. On 15 April 2016 the father got up after DW and J were already outside having a cigarette, MN was crying and the mother came downstairs with MY. DW and John went to get DW's methadone. When they returned the parents asked DW and J to keep an eye on MN while they went out for a cigarette. The father put MY to bed and the father, DW and J slept in the sitting room.
50. On 16 April 2016 everyone got up, nothing of significance. DW and J went out to get methadone and some alcohol, the father went with them. The mother and NG looked after the children. The mother described giving MN his bottle, he projectile vomited all over her and became unsettled with his legs hunched up. J decided to get the train back to where he came from. The parents, DW, NG and M stayed downstairs till late then the mother and NG went to bed. MN was in his bouncy chair next to DW as he was going to get up in the early hours to feed him.
51. On 17 April 2016 OW came about 12 noon and they all went out for lunch. On their return the mother sorted out MY and the father MN. When MN was settled DW held him whilst the parents went out for a cigarette. MW, the paternal grandfather, turned up for about 30 minutes. The mother reports NG holding MN for a cuddle, OW and NG took a taxi home. The parents and MN went upstairs, the father said he got up twice during the night to deal with MN, he took him downstairs and DW woke up.
52. On 18 April 2016 the parents and children got up, the father went out to walk the dogs. On his return the mother said DW had been rude telling MN to be quiet and taking money out of the change pot for cigarettes and alcohol. When DW returned he was calmer. They had not allowed DW to handle the children on this day as he was drinking heavily. The paternal grandfather, MW, came round for dinner, DW was drunk and kept trying to cuddle MN. MN slept upstairs with the parents, the father brought him down twice in the night. In her third statement the mother says 'After the paternal grandfather left the family home LW handled MN roughly. MN had colic that was why he was frustrated.'
53. On 19 April 2016 KV visited with her son B after receiving a face book message from the mother where she describes MN vomiting that was all over her, the sofa and the floor. The mother refers to her tiredness and her lack of sleep, the mother subsequently has said this was because she had not taken her medication the night before due to her concern about the way the father handled MN The mother has given differing accounts as to whether she stayed downstairs all night with MN or not. KV stayed for an hour and picked up MN during her visit. The father went out with DW to get his methadone and later went out with DW and MY to the park. The mother was at home with MN, she describes him becoming unsettled and started to cry. In their initial accounts the mother said that she 'facebooked' LG asking her to come over and TBS, LG and her son R came over and stayed till about 11pm. MN slept upstairs with the parents and the father brought him downstairs twice during the night to feed and change him. The father changed his account of this visit in his September statement, claiming he was asked to lie about this by the mother and that TBS and LGS did not visit. Both TBS and LG confirmed in their statements and in their oral evidence that this is what the mother had asked them to do. TBS said the mother had photographed parts of her written statement asking her to read through them. At some point during the day MN was reviewed by the GP, on examination he was described as well alert crying, fontanelle normal, abdomen poorly relaxed, no hernia. The GP advised his weight is monitored and prescribed colief.
54. On the 20 April 2016 the father brought MN down in the morning, he was unsettled. The father went to a local town for an appointment at 2pm. The mother describes MN being very unsettled in the morning, crying with hunched legs. DW helped change and feed him and MN fell asleep on DW for an hour. The mother put MB in her playpen after lunch and had a bath. DW was left caring for the children for 20 minutes. When the mother came down DW had fallen asleep with MN, the mother woke him and she changed MN and DW changed MY. The mother tried to feed MN but he was described as inconsolable. The health visitor visited, MN had lost weight she advised a GP appointment. The health visitor described warm and loving interaction between the mother and MN and she was concerned about MN. The mother took MM to the GP. On examination he was alert, well perfused and not dehydrated, normal fontanelle. In the light of the multiple presentations and ongoing concerns he was referred to Y Hospital. The mother returned home with MN, as the father was going to take him to hospital. TBR attended the home later that afternoon, she reported the mother was crying and upset. The father was out trying to arrange transport to the hospital. The paternal grandfather took the father and MN toY Hospital. In the report from the hospital to the GP Dr V described on examination MN was stable, hungry alert drinking milk vigorously. MN's milk was changed to neocate and the advice was to re-refer if not gaining weight. The paternal grandfather, father and MN get back home about 11pm. In his statement and oral evidence the paternal grandfather described MN crying throughout the time he was with them.
55. On the 21 April 2016 the parents got up, the father changed MY and the mother took MN downstairs. The father fed MN and DW went out to get his methadone and the father walked the dogs. The parents took the children out later for a few hours. On their return DW was drinking beer, MN became irritable. The mother tried to settle him and DW took over. After dinner the father took MY up to bed, DW had MN on the sofa while he slept. The parents went out for a cigarette when they came back in DW was asleep holding MN The father woke him said he should not be doing that and put MN in his bouncer. The mother went to bed about midnight and the father stayed downstairs with MN until his 1am feed. He took MN up to bed. He got up on two further occasions to change or feed MN.
56. On 22 April 2016 the parents got up and brought the children downstairs, the mother fed MN. The father and DW went out to get DW's methadone and walk the dogs. On their return the PGF was at the home for about 30 minutes. After that they decided to go to a local town, they set off about 2pm and returned at 9pm. MN was described as being settled on this trip. The mother went to bed about 11pm and the father, DW and MN were downstairs until about 1am. The father got up on two occasions to feed and change MN, came downstairs to do this.
57. On 23 April 2016 MY went to stay with KY overnight. Prior to that the father gave MY her breakfast and DW changed and fed MN. The father took the dogs for a walk when the mother came down. On the father's return DW asked if he had got any Jack Daniels whiskey, he said he hadn't and DW became frustrated. DW put MN in his bouncer and went out to get his methadone. He was more relaxed on his return. When KY came to collect MY she stayed for about 30 minutes. DW was asleep on the sofa and became a bit frustrated when woken. After a feed MN was in his bouncy chair and DW kept bouncing it as MN was sleeping. The parents went out for a cigarette, leaving DW in charge of for about five minutes. OW came round offering to look after MN for the night so everyone could sleep. The moses basket was brought down and MN settled in it. The parents, DW and OW stayed up until about 1am when the father fed and changed MN. The parents went to bed. At 4am the father woke and heard OW saying 'please', the father went down and could see OW struggling to put MN's nappy on. The father changed and fed MN, he started to cry. The father said he told OW he may as well go to sleep.
58. On 24 April the parents describe getting up, MN being asleep, feeding and changing him when he woke up. At some point during the morning, although the evidence is far from clear, the parents have an argument. There is some evidence, mainly from OW, which suggests the argument was in response to his enquiry as to whether they would cope with another child. In their oral evidence both parents were inexplicably reticent in remembering what the argument was about. The evidence about how the parents argued has, like many other details in this case, changed as the case progressed. In their respective chronologies the father describes this as 'me and CM getting frustrated with each other' and the mother reports them 'bickering and we got frustrated with each other', by his statement dated 15 September the father describes this as an '..argument…she attacked me. She punched me to my head and body.DW and OW tried to drag her off me. I cannot recall if MN was in my arms. I do recall putting MN in the bouncy chair. I then tried to grab some clothes and leave. When I returned CM was still in attack mode. She grabbed a pair of scissors and tried to attack me with them. OW and DW took the scissors off her. She came at me again. I grabbed her wrists and pushed her onto the sofa. She was struggling beneath me. She was hurting herself. MN was crying. I went over to soothe him. I then walked out of the house about 11am.' In KY's statement she reports receiving a text from the father at 10.57 stating 'don't come get me today Mum it's all kicked off between me and her and I'm gonna beat her up soon I hate her'. In the mother's second statement dated 8 November she described a 'physical argument' that day 'apparently I misheard LW and he became angry. He launched himself on me. I tried to get him off me but he pinned me down. This incident happened in front of DW. I am not sure if OW was present. LW grabbed my hands and made me hit myself in the face whilst saying to me 'Why are you hitting yourself?'. DW was in the room and did nothing to help me. I managed to push LW off and he left'. OW's statement, signed on the day he gave evidence on 22 November, contains a number of manuscript changes including his account of what happened on 24 April. He inserted in manuscript that the mother has scissors and lunged at the father, he said in oral evidence he had corrected a version of a statement he had returned to the solicitors previously which subsequent enquiries revealed he had made no changes to. In his police interview on 5 May DW describes an argument and makes mention of the mother having a pair of scissors, in his statement 14 September he refers to LW getting off her having pinned her down on the sofa 'CM picked up a pair of scissors, I grabbed hold of LW and OW grabbed hold of CM. LW left the house'. These accounts have become distorted due to the admitted actions of the parents where they have instructed those who witnessed this argument to play them down.
59. It is agreed after this argument the father left the home, DW followed soon thereafter met up with the father and they went to their mother's house. OW also left soon afterwards in a taxi. By all accounts the mother was in a distraught state. In her texts to KV the mother herself describes having an anxiety attack to the extent that she collapsed, she describes MN loudly crying during this time. KV visited the mother about 5.30, she describes the mother being on her own and was 'tired and crying'. She said MN seemed fine. She said she did not stay long as the father and DW returned with KY and MY. She said they left soon after they arrived. There is very limited information from the parents as to what contact they had that afternoon and how the arguments from the morning were resolved, if at all.
60. Early that evening LG and TBS came over, they said they stayed until somewhere between 10 pm – midnight. In her statement TBS states 'I visited with LG on 24.04, CM and MN only were there. I think it was the afternoon into early evening. CM was stressed, MN was crying, I picked him up, CM preparing a bottle of gripe water…nothing of concern to me occurred, CM had a couple of drinks, DW too, but no one seemed drunk in my eyes'. LG describes events slightly differently in her statement, she describes being dropped off by TBS, she couldn't remember who was there when she arrived but 'DW and CM started drinking, they had vodka in the house, they always had drink there.. they were merry, having a chat, nobody was drunk when I left', she thought between 8 and 10pm. DW's account that evening is that he and the mother drank a bottle of vodka that night and were both drunk.
61. The evidence about who put MN to bed that night has not been clear. The mother in her police interview on 5 May stated '..we had a normal night, everything was fine from what I can remember and recall. We had dinner together and everything. I took my tablet at nine o'clock like usual. I went upstairs to bed'. In his police interview the father said he fed MN at 2am and put him to bed. In her detailed chronology attached to her first statement the mother said 'At about 10/10.30pm MN started crying for his bottle so LW took MN from TBS and changed him whilst I got his bottle. Once LW finished feeding him he winded him where MN vomited a little bit. LW, DW, LG, TBS and I all sat talking whilst Luke managed to settle MN and put him into his bouncy chair. TBS, LG and R left at about 12 pm. At this point DW was pretty drunk. We stayed up till 2am where MN finished LW winded him and got him settled placing him in his bouncy chair. LW went upstairs to the toilet and then I took MN upstairs and put him in his pre-made swaddle and into his moses basket gently rocking him to sleep. Once he was asleep LW and I also went to bed leaving DW awake downstairs'. In his detailed chronology the father said 'We [mother, father and DW] stayed up until 2am when MN woke up crying, so I fed and changed him again. After I settled him I put him in his bouncer and went upstairs to the toilet. I came back out and CM was upstairs with MN putting him in his pre-made swaddle in his moses basket. MN went to bed and so did me and CM.' Prior to giving her evidence the mother's legal team confirmed her position about who put MN to bed in an email dated 23 November, it states 'MN was fed by LW at 2am, she believes she may have done the nappy change downstairs before the feed. She then went upstairs to bed. LW told her he brought MN upstairs shortly afterwards'. The chronologies prepared by the parents attached to their first statements are unreliable in many respects. I consider it is more likely than not that the father fed MN just prior to him being put to bed about 2am and that it is more likely than not that he put him to bed. That routine was generally consistent with what had happened on previous nights.
62. The father's account of the following morning in his police interview was he woke up to 'quite painful crying' by MN, he thought it was colic, took him downstairs he was still wrapped, put him in his chair, he went into the kitchen 'he's still crying. It's getting quite louder and louder..so I'm kind of rushing around, putting the bottle together and….coming to the front room, put him on the changing mat, changed him', DW went out for a cigarette 'Literally everything was all right. I changed him. He was really, really frantic, frantic like. Not seen it like this before. So I put him in my arm and I had the bottle ready as well and he just went really vague and weird and just literally white and limp.' His brother came back in, alerted by the father's shouting to the mother to wake her up. The father went upstairs to wake up the mother by kicking the bed. They both came downstairs with MN, the mother by this time was very distressed and the father called an ambulance. According to the mother there was a delay before the ambulance was called, the father said it was immediately they came back downstairs. The mother in her evidence said there was a delay of 10 – 15 minutes, but could not give an account as to why.
63. The transcript of the 999 call records it being made at 5.51 am, the call is made by the father he stated '..he woke up he's crying for a bottle I come downstairs I started trying to feed him a bottle and he just he was really floppy'. Later on he says MN was 'Just lying there very lifeless, very very lifeless.'. There was some delay in the ambulance arriving the transcript of the recording shows how the operator told them to check MN's breathing. The father is recorded as saying 'I can't do this (crying sounds). He's still awake, he's still got his eyes open. What have I done they need to hurry up they really do..'. In oral evidence he said he was asking it in a way to ask what had happened rather than that he had done something. A little later he appears to be saying to someone else that the ambulance still needed to come to check him over, that MN was really not right but was now moving, the operator says '..He's starting to move a bit more?' the father responds 'fucking little shit (pause) yeah'. In his oral evidence the father said that was aimed at one of the dogs who was in the way, not at MN. The mother goes with MN to hospital in the ambulance and the father follows. MN arrives in A & E at 6.48, he is recorded as being 'alert and crying'. MN was treated for sepsis. MY had been left in the care of DW. The father remains in hospital with MN and the mother returns home. DW returns back to his home area.
64. The nursing notes on 29 April record the father having a raised voice and being angry with MN at 6.30 am. MY goes to stay with KY.
65. On 30 April MN transferred to Z General Hospital. The MRI scan and skeletal survey reveal acute and chronic neurotrauma and fractures of the ribs and legs.
66. On 4 May KY signs a written agreement with the local authority agreeing to care for MC which includes a provision that if other family members want contact with MY this should be agreed with the local authority.
67. The parents were interviewed by the police on 5 May 2016 and started having supervised contact with the children on 19 May.
68. The LA issued care proceedings on 16 May. At the first hearing before HHJ Jakens on 23 May the case was allocated to be heard by a HCJ and allocated to me. SK became the allocated social worker.
69. On 25 May the parents gave their consent for a shunt to be fitted to MN, they attended hospital with the out of hours social worker and the operation took place on 26 May.
70. I gave directions on 26 May which included the instruction of the medical experts and the making of interim care orders for both children.
71. On 7 June MN was discharged from hospital to the care of foster parents.
72. KY contacted the LA by text on 7 June requesting respite care to enable her to attend a music festival. SK responded saying DBS checks were required. KY and the social worker met on 13 June to discuss concern about the amount of time MY is spending in nursery.
73. A further case management hearing took place on 13 July. By that stage the paternal grandfather and his partner withdrew their offer to have the children placed with them.
74. From 9 August MY started day care with MN's foster carer twice per week, on 16 August MY stays overnight with the foster carer as KY is unwell.
75. On 16 August the father's solicitor emails the legal aid agency to inform them the parents have separated.
76. On 30 August the father informs the social worker of the parent's separation.
77. Late August BH updates his facebook status with a picture of him and the mother and states he is in a 'relationship'.
78. On 31 August the ADM decided that KY should not be approved as a foster carer due to concerns about her ability to work with the LA, lack of assessment as to how she would manage contact with the parents in the future and gaps in the SGO assessment (for example assessor did not see the paternal great grandparents or DW). Temporary foster care extended to 27 October.
79. On 31 August the father informs the social worker he was threatened by the mother and her new partner, BH, after the contact session. The mother denied any threats or that she had a new partner, she agreed she was friends with a man who sometimes stayed over. The mother said she did not want to provide any more information about the father until she had spoken to her solicitor.
80. On 12 September there was a LAC review, the father attended the mother didn't. The evidence subsequently shows the mother had an argument with BH, with some evidence suggesting it was a violent incident when the mother was injured by BH. The mother accepts there was an argument that day between her and BH and the police were called but denies any injuries. The mother accepts she stayed with a neighbour TBN that evening.
81. On 13 September the parties attended court. According to the father he and the mother resumed living together, the mother denies this. KY was joined as a party, she was unable to secure legal representation and represented herself. Arrangements were put in hand to enable her to receive the documents.
82. On 14 September the parents had separate contact.
83. On 15 September the mother is seen by Dr Keating, adult psychiatrist, where she says she has not had a relationship for 3 months and accepts the risks her previous relationships cause.
84. On 16 September the father rings the social worker to say he is now willing to be in the same room as the mother as they want to work together for the sake of the children.
85. On 23 September the parents argue, the mother alleges the father is violent the father states he picked her up under her arms to move her out the way. Either way the parties separate.
86. On 30 September the father saw the ISW Mr Pizzey he said he suspected the mother of causing the injuries to MN, the first occurred on 19 April when he, DW and MY had gone out and the second was on 24 April when he passed MN to the mother and she put him in the Moses basket, he believed an injury occurred after he had passed MN to her.
87. On 5 October the mother saw Mr Pizzey and reported the father having a conversation with her grandmother's partner TM where he was reported to have said that he became frustrated with MN and felt he could shake the moses basket. The mother said 'I woke up and MN was red in the face, screaming at the bottom of the bed'. When asked she denied knowing anyone called BH or that she had been in a relationship.
88. On 15 November the mother reported the father's previous violent behaviour towards her to the police, the father was arrested and interviewed on 17 November. He denied the allegations.
89. This hearing started on 21 November and the evidence concluded on 5 December.
90. I am extremely grateful to each of the parties for their detailed written closing submissions.

Medical evidence

91. The court has the benefit of detailed expert medical evidence from Mr Jayamohan (paediatric neurosurgeon), Dr Johnson (paediatric radiologist), Mr Morrison (paediatric ophthalmic surgeon), Professor David (consultant paediatrician) and Professor Kinsey (paediatric haematologist). They each filed reports and took part in an experts meeting on 19 September.
92. There is no issue between the experts or the parties as to the existence of the injuries MN suffered, namely:

(1) Chronic extra-axial collections

(2) Acute effusions as well as a small amount of blood

(3) Multiple bilateral retinal haemorrhages

(4) Fractures to the right posterior 2^nd – 7^th ribs

(5) Fracture of the posterior lateral left 7^th rib

(6) Fractures to the distal right and left femoral metaphyses

93. There is equally no issue in the medical evidence or between the parties that these injuries were not caused by any metabolic or genetic condition.
94. In relation to the timing of these injuries I am satisfied that it is more likely than not there were at least two abusive episodes. One that occurred on the morning of 25 April that caused the acute neurotrauma and retinal haemorrhages. The other two injuries, the chronic neurotrauma and the fractures were caused either separately or together. In the absence of a memorable event within the time frames and faced with the parents failure to give a credible account of events it is difficult to be more specific. In the experts meeting Mr Jayamohan acknowledges that the force required for the initial neurotrauma is beyond normal handling and there is some evidence that doing it causes the child to go to sleep but in fact has encephalopathy after being shaken, he says 'I think that normal handling would be highly unlikely to cause this, rough play if you get into the extreme end where it starts to go, possibly would raise an eyebrow for someone who saw this happening, but may not be realised by the person who's doing it. It could easily be in the interface and then you go into the very extremes where, obviously, people actually purposely do this and I don't' think there's necessarily any evidence in this case that people may know what they're doing, and that's borne out by the evidence'.
95. The relevant timescales on the medical evidence can be summarised as follows:

(1) Chronic extra-axial collections: 29 March to 8 April (any time from birth until three weeks prior to CT imaging on 29 April). In his report Mr Jayamohan states when giving this time period he, on balance, excludes birth. He notes the evidence about birth related subdurals and the studies record these all resolved by themselves. He recognises that there are only a small number of studies and the need for caution when extrapolating their findings. He concludes 'Therefore there is no moment in the history provided which would explain a previous event to cause the extra-axial collections, which I believe are then noted to cause chronically raised pressure on this baby's head'. This position was not changed in the experts meeting or in his oral evidence. Whilst it was not something he could rule out he did not consider birth a likely explanation. This conclusion is supported by Professor David in his report, the experts meeting and his oral evidence.

(2) Acute effusions: between 2 am and 5.30 am on 25 April. Mr Jayamohan in his report stated '..the findings of an acute effusive process are caused by a preceding traumatic event. When associating this with acute brain dysfunction or encephalopathy, it would be my opinion most likely that these are timed together and this is likely to be timed at around, or no more than an hour or so prior to change in behaviour'. Given the bilateral nature of the findings he considers it likely to have been a shaking injury. He maintained this timeframe at the experts meeting and in his oral evidence. In his report Professor David gave a variation on this time frame by saying MN was exposed to neurotrauma in the 'minutes or hours prior to the sudden collapse'. In the experts meeting he agreed with the timing advanced by Mr Jayamohan, and that remained his position in oral evidence. Professor David acknowledged that as there was no research it is difficult to be certain how much force was required and whether and how that was affected by the chronic findings and the rapid recovery, he saw the logic in that but when the retinal haemorrhages were included he said 'there must have been significant force'. When it was put to Professor David that Mr Jayamohan's evidence was the most likely point when MN went floppy was when he was shaken he responded 'that observation would fit all we know regarding cases of inflicted neuro trauma, virtually immediate symptoms'. Professor David had carefully analysed the 999 call his view was 'I'm putting together acute collapse child at deaths door with evidence of acute neuro trauma, the most likely explanation for the symptoms is trauma, no other viable explanation, child collapse as a result of neurotrauma'.

(3) Retinal haemorrhages: according to Mr Morrison they occurred in the 'hours immediately before and up to MN's becoming unwell with floppiness'. In his opinion they are compatible with occurring at the same time as a traumatic brain injury within the same time frame. If the subdural haemorrhages were acute then it was very likely that the retinal haemorrhages occurred at the same time as the brain haemorrhages. He said the picture was more complicated with a mixture of acute and chronic brain haemorrhages. He agreed the existence of the retinal haemorrhage was compatible with occurring at the time of the collapse and that force would be required to cause them. He did not believe they were more that 1 – 2 weeks old.

(4) The rib and femoral fractures: 29 March to 19 April. Dr Johnson states 'the region of 2 – 5 weeks on 3^rd May'. As he notes the radiological dating of all fractures is difficult and imprecise. The fractures being birth related is excluded by Professor David. In his oral evidence Dr Johnson accepted that nothing was impossible but that he considered it 'very unlikely' that the fractures could have occurred as late as 25 April. When Mr Storey asked him that it was unlikely but not impossible that the fractures were caused 10 days or less he responded that he had looked at the images again and there was 'not that degree of healing in 10 days' he would be 'very surprised if 10 days or less'. It was put to him that these type of fractures are associated with neurotrauma he said they could occur if the child is shaken by squeezing and flailing legs. It was suggested to him that if there was a memorable event at an earlier time there was a real possibility these fractures could have occurred then, he said 'my opinion more likely than not a separate occasion, much less likely associated with shaking than a separate occasion', he was clear 'these [the fractures] look like quite mature injuries, at least two weeks of age..I can't exclude but unlikely'. In his oral evidence he confirmed the view expressed in his report and at the experts meeting that there were at least two injuries 'one recent and a previous one' and the fractures could be companion or linked injuries to neurotrauma or they could be separate. He agreed that there could be no detectable signs to a carer that MN had these fractures.

96. All the experts' agree that to cause these injuries a considerable degree of force would be required. They excluded metabolic or genetic causes, did not consider they were birth related and agreed in the absence of any reported event they were non-accidental. At the experts' meeting they excluded the event described as taking place on 13 April when MN fell off a sleeping DW onto the sofa cushions.
97. In his closing submissions Mr Storey submits that the court needs to consider the timing of the fractures very carefully, in particular the inherent difficulties in dating such fractures and whether in fact they could be related to the acute injuries that occurred in the memorable event on 25 April. He submits the court could come to this conclusion if it takes the view that the early intracranial bleeding can be explained by birth. I reject that submission. The evidence from Dr Johnson was that to bring the date of the fractures forward to occurring on 25 April would be unlikely and he would be 'very surprised' if they were 10 days or less. In relation to the chronic neurotrauma being birth related I accept the evidence of both Mr Jayamohan and Professor David that whilst it can't be excluded, it is unlikely.
98. The most recent report from his treating paediatric neurologist, Dr W, confirms MN is making good progress and will be reviewed again in six months.

The non-medical evidence

99. The greatest handicap to the court being able to establish what went on in the care of this very young child and how he came to suffer such serious injuries has been the failure by these parents to give a reliable account of what took place in the relatively short period MN was in their care.
100. There can be little doubt that each of these parents have had the most difficult of upbringings. On their own accounts both parents suffered significant sexual, physical and emotional abuse when they were young, they felt wholly unsupported by their parents and spent significant periods of time in the care of others. Those experiences have undoubtedly had an impact on the way they have cared for their children and their inability to give reliable and coherent accounts of relevant events.
101. The father has a number of previous convictions, which include offences of violence and dishonesty. He has used drugs for a number of years and on his own account has been a drug dealer since the age of 18. Although the extent of his drug dealing has varied in his oral evidence it was a successful business he described with some pride. It involved OW and someone called C and was very likely operated from the family home in the way he described. He accepts he has difficulties in controlling his anger and it is clear that his involvement with drug dealing over many years involves the ever present spectre of violence, either the fear of people coming to the home (for example his evidence about these concerns when the mother became pregnant) or his threats of violence to others to secure the payment of monies owed to him. The texts he sent from the hospital on 29 April and the texts referred to by the mother in her oral evidence provide recent examples of his modus operandi.
102. The mother does not have any previous convictions but has shown herself to be an accomplished liar, particularly when backed into a corner. It is of note in this case that it took her so long to file her second statement, it was two months late. She was, in my view, waiting to see how the evidence developed and her oral evidence that she needs to discuss everything with her legal team was revealing. Her evidence about her relationship with BH is simply not credible. The fact that she is still unable to give a coherent or credible account of the relevant history of MN's care is deeply concerning.
103. The parents' relationship was extremely volatile from the start. The relationship started very soon after L's death, the mother quickly became pregnant which was not planned. The mother's mental health was fragile and they were both heavily involved in drugs, taking them and the father was dealing in them. The police call outs started early on with reports of heated arguments which was then supported by reports from the neighbours following their move to X address. The chilling oral evidence from the neighbour of the repeated arguments she heard from their home gives a revealing account of what the reality of their relationship was and the impact on any child in their care. Her evidence, which there was no real challenge, was of hearing a child who was left to cry and cry, of repeated full scale arguments between the parents at high volume, the father shouting 'shut that fucking thing up' followed by the child going quiet very quickly. On another occasion she described the father being out the front of the house and the mother leaning out the window shouting 'I've lost one child I don't want to lose another'. These events took place 'a few months' prior to making her statement on 5 May 2016. She described the father having a 'red mist' often, by which she meant a loss of control. She became so concerned that she contacted the local authority. This account of arguments was independently supported by the evidence of another neighbour Mr and Mrs FH. For example they described an incident in the summer of 2015 where they heard a child crying who sounded very distressed and a female shouting at the child sounding as if she had 'lost the plot' screaming obscenities at her daughter. These neighbours say they called the police, which accords with a record of a call out in the police disclosure in July 2015.
104. Very soon after MY's birth the mother became pregnant again. The father accepts he discussed termination, he was worried it was too soon but the mother was clear she wanted to continue with the pregnancy. On any view a second child was going to put further pressure on an already difficult situation.
105. It is right that during this time there were a number of outside agencies involved with the family, including CFIS, the health visitor and the mother's mental health worker. There were positive reports of the father's involvement with the care of M and the outward appearance of MY and the home. The mother accepted she was OCD about cleanliness in the home. But as the evidence has developed during this hearing it is quite clear the reality of day to day life in the family home was very different and was not revealed to the professionals. In particular the level of cannabis use, around five joints a day shared by both parents usually starting from the morning. It is very likely the mother continued using cannabis during her pregnancies. The involvement of the father with drug dealing and the inherent risks involved in such activity. The level and frequency of arguments in the home, with frequent outbursts of violent behaviour between the parents. The inconsistent evidence about the mother's reliability in taking her mental health medication and the impact of taking it with drugs and/or alcohol. Finally, the number of visitors and the level of drinking in the home. Each of these factors, if known, would have escalated the level of concern for the welfare of the children. If they had all been known it would, in my judgment, have been very likely these children would have been under a child protection plan, if not within care proceedings due to the very high level of risk.
106. It was into this tinderbox that MN was born. Whilst there may have only been limited impact on her outward development it was clear that the parents' relationship with MY was not secure, neither was her attachment with them. The evidence demonstrates she was left for long periods of time on her own and had started to self soothe. The reality was the parents were having enormous difficulty in coping, as the reports from the neighbours illustrate.
107. As with MY there were difficulties with the mother bonding with MN. Whilst I accept the mother may have found it somewhat easier as MN was a boy the fact that she hardly visited him in hospital between 5 to 10 April is revealing; even taking into account her difficulties with her previous association with Y Hospital. Her oral evidence about why she didn't visit (lack of money or transport) rang very hollow and was simply untrue.
108. All the evidence points to MN being an unsettled child from the start who experienced difficulties in feeding, frequently vomited and only slept for periods of 2 hours at a time.
109. The evidence the court has of MN's time in the care of with the parents has been difficult to untangle almost entirely due to the actions of the parents. Both parents have sought to interfere with the evidence in this case, to influence whether witnesses come forward to give evidence and what evidence they give. Their motivation for doing this is far from clear, it is not unreasonable to infer that they have something to hide.
110. Initially following the discovery of the injuries the parents were arrested and interviewed on 5 May. At that time they were still together. Whilst making all due allowances for the mother's distress at being arrested, her background circumstances and being held for some time prior to the interview it is clear the mother was able to give a long free flowing narrative account of events prior to MN's admission. Within that was a wholly untrue account of events on the evening before MN's collapse. For example taking her medication and going to bed at 9pm. It was not until during the course of this hearing, some six months later and after filing three detailed statements that the mother was able to finally confirm her account about who fed and put MN to bed in the early hours of 25 April. In her oral evidence she was unable to give a credible explanation of why there had been such uncertainty about her position until so late. This provides support for the position that this mother prefers to wait and see how things pan out before finally confirming her position. In effect keeping her options open, concerned about her position rather than seeking to assist with a coherent account of what happened to MN. This supports what Ms Taylor describes in her closing submissions that '…in the parents' lives, the welfare of the children was of the lowest priority in the home…the children were caught up in a lifestyle of drug dealing, high levels of cannabis consumption, high levels of domestic volatility, numerous people coming to the home, many of whom consumed drugs and drank alcohol. On top of this, the mother struggled with the loss of her baby girl L and had significant mental health problems'. I agree.
111. Whilst not doubting the parents' love for their children their welfare was simply not their priority. This is perhaps best illustrated by the events on 13 April with the arrival of DW, the father's brother. He arrived late at night with someone who was not known to either parent. They were obviously heavily under the influence of drink and drugs. He was a known heroin/cocaine addict and the account put forward that he wanted to come and visit his newly arrived nephew lacks any credibility. It is more likely that he was fleeing Hatfield due to some drug related feud. Within moments of removing a crack pipe from him he is left by the parents in the sole care of MN (then age 3 weeks) without a second thought. They seemed more concerned with going outside for a cigarette with the person who they had never met before. Within a short period of time the level of MN's screams draw the mother back inside to find DW has fallen asleep on the sofa and was unaware of MN having fallen off him into the sofa cushions and become very distressed. Whilst the experts rule this out as being an event that caused the injuries neither parent in their oral evidence really grasped the level of risk this put MN at. The mother remained defensive about what had happened in her oral evidence, saying 'he [DW] wanted to cuddle MN' before somewhat reluctantly accepting, only when pressed by Ms Taylor, that what she did was very dangerous and completely irresponsible. It was obvious the parents' concern for others within their circle of drug users was put way above the needs of these two young children; that is the only way to explain the arrival of even more adults (OW and NG) in the following days to an already over-crowded home in circumstances where these adults were at risk themselves.
112. Within this chaotic period when MN was at home the volatility of the parents' relationship was bound to erupt. There can be little doubt now that the parents' relationship from the start has been volatile, vocal, argumentative and on occasion resorted to violence which continued during the time they cared for both children. They are both very strong characters that have a mutual dependency on each other, which I strongly suspect is not far below the surface even now. The record of police call outs started in September 2014, continued in 2015 with the repeated theme of shouting and high volume arguments of such a level that warranted the police being called. At the early stages of these proceedings I am quite satisfied the parents sought to play that part of their relationship down, there is no mention of it in their detailed chronologies of the events on 24 April other than a reference to 'bickering' on that day, they put pressure on witnesses not to mention it. Even now the evidence about what happened that day is far from clear. What started the argument on the 24^th April neither parent, somewhat surprisingly, professes to remember, so what triggers such a violent incident remains unclear. Whilst the evidence is that both parents were capable of verbal and physical abuse towards each other it is quite clear the father is the physically stronger of the two and was able to pin the mother down in such a way as she describes with both DW and OW trying to pull them off each other. For MN who was present it must have been both terrifying and distressing. A late entry into the account of this event has been that the mother used scissors when she attacked the father. This was not mentioned by the father in his police interview in May, or in either parent's account in their first statements. It first appeared in the father's statement in September, which was after the events with BH had taken place which the father was so jealous about. It did not appear in what OW told the police, was not in the statement that was prepared for him by the local authority's team until he corrected it in manuscript on the day he attended to give evidence, even though he gave evidence that he had corrected the draft statement previously to add this which was found out not to be true. I am satisfied on the evidence that even though it was mentioned by DW the mother did not use scissors against the father on 24 April, if she had done it would have been mentioned earlier by the father and its late entry as a feature of the argument in his and OW's account is due to the father's influence over other witnesses to support his late claim about it to undermine the mother's position so she could be responsible for the injuries to MN or through his jealousy regarding her relationship with BH or, more likely, a combination of the two.
113. In relation to the mother's allegations of violence against the father there is some significance that she took so long to set them out in her written evidence. She had experience of domestic violence before and the support that was available to assist her retain the care of her child. In her oral evidence the mother's repeated refrain was that the reason why she did not disclose the violence to any of the professionals visiting her home at the relevant time was because of her fear of losing the care of the children. That doesn't stand up to scrutiny in the light of her previous experiences. The failure to report and seek support is more likely to be due to her strong feelings for the father, her unwillingness to put the children's welfare first and her wish to maintain her relationship and lifestyle. The reporting of these events so late into these proceedings, in her two statements filed in the two weeks prior to the start of the hearing and by reporting the allegations to the police less than a week before these proceedings is likely to have been heavily influenced by the complex dynamics in the relationship between the parents and her wish to demonstrate he was more likely to cause the injuries to MN. There are inconsistencies in some of the accounts given by the mother, as outlined by Ms Campbell in her cross examination of the mother and set out in her closing submissions. Due to the inherent unreliability of the mother it is very difficult to make specific findings on the allegations of violence she makes other than my findings about 24 April and the more general finding which is overwhelmingly supported by the evidence that the parents' relationship from the start was highly volatile, involved each regularly screaming verbal abuse at one another and at the children to the point where neighbours became alarmed and frightened for the children and called the police. There were occasions when their arguments ended in violent behaviour towards each other but the father was physically stronger and on occasions would restrain the mother. In my judgment this behaviour continued up until the children were removed from their care, for example as reported by DW in his police interview.
114. What I am satisfied about is that despite the level of contact with the professionals during the time MN was in their care neither parent has given a full or credible account of the events that took place in their care of MN when he was not under the scrutiny of professionals. An example is the lack of candour to the mother's mental health worker TBR. In her letter dated 23 June 2016 she states 'Previous history of substance misuse, currently abstinent. CM has reported that the last time that she took any illegal substances was at the time of MN's hospitalisation and when MC was placed with LW's mother. She reported smoking 2-3 times then, as well as two incidences of smoking cannabis in the evenings directly after MN's birth when her medication was not accessible from the GP practice.' In oral evidence, the mother accepted that she was smoking up to 5 joints a day after MN's birth.
115. Most lay witnesses who gave evidence had been influenced in what they said by one parent or the other. For example DW's evidence changed in material respects to support the father (for example MN's scream when he woke up on the morning of the 25 April being different, loud and more high pitched and his evidence that became more critical of the mother). All this points towards him discussing his evidence with the father and adapting it so that it supports the father's position. JN, DP and BW were all very surprised to learn of the evidence about the father shouting at the children in the way described by the neighbours. Each of those witnesses, who were related to and had been supportive of the mother in the past, chose to file statements with only critical comments about the mother in large part probably influenced by the father.
116. There was evidence that there were a number of occasions when the mother was very upset and was clearly not coping. This was the position on the 24 April and she was very down on 19 April when she sends a text to KV as follows: " … think I got baby blues hard !!!! I need to have q bath sort myself out and call the doctors as I think I need to see them and MN needs to go as he has really bad reflux like projectile vomits he socks himself me and my sofa and floor he can't even keep water down. His colic is so bad at night all he does is scream from 2-30 till 5. He okay ish in the day as he sleeps but when feeding him and changing all he does is scream. He can't sit and settle much not even in my arms much I feel so bad for him his cry is a painful cry he must be in so much pain. But my lack of sleep and meds is not a good combination and it's getting to me hard. He is my 3^rd baby but I'm finding this time round the hardest than my 2 girls. Don't know what to do". In her oral evidence she has described herself having anxiety attacks and MN still crying.
117. In my judgment the evidence is clear. The reality of caring for MN was extremely difficult. He was their second child under the age of 14 months. He had significant medical difficulties, was not easy to settle, didn't sleep for longer than 2 hours at a time and presented as colicky, unhappy and crying and didn't feed very easily. Both these parents, who each had difficulties in controlling their temper, were barely coping. They were becoming increasingly tired, their relationship was under great strain not helped by the pressures caused by so many adults staying in the home and the level of drug taking. I am satisfied that neither parent has given a truthful account of the care given to MN during the time he was in their care.
118. In my judgment the evidence is clear that BH was undoubtedly a part of the parents' drug related world, he was involved with the father through his drug dealing business and the mother was, in my judgment, fully aware of that position. The suggestion on behalf of the father that he met him once after answering someone's telephone he had possession of, that he came round to their home once and when out in Brighton he and the mother decided to contact him to spend the evening together resulting in him spending the night at their home in a 'clinch' with the mother simply does not ring true. There is much more to their involvement with BH than the parents, for whatever reason, are prepared to reveal. What is clear is that soon after the parents separated the mother quickly formed a relationship with BH. This is consistent with her pattern of relationships in the past. It is more likely than not to have been a sexual relationship and, as with the mother's previous relationship, it gained an intensity at a very early stage. He had stayed at least one night at the family home, I strongly suspect there were other occasions, and was taking her to and collecting her from her contact with the children. In her oral evidence she said she had lent him £200 from £400 she had saved for the children so he could buy clothes and shoes for his son; that is simply not credible. What is more likely is he had stolen her purse leaving her unable to get to court the following day. Within days of their relationship BH had posted photographs of them together on facebook declaring he was in a 'relationship', the mother put the same photograph on her phone so that when she contacted people the photo showed up. For the mother to maintain, as she did in her oral evidence, that she did this because she liked the photograph perhaps illustrates the extent of her ability to deceive.
119. I do not accept the mother's account of how the relationship with BH ended. In my judgment the evidence establishes it is more likely than not there was a violent incident between them that resulted in the police being called out on 12 September and her receiving physical injuries. This conclusion is supported by the evidence of TBN which in large part the mother accepted apart from his description of the bruises, and the fact that she stayed at TBN's that night due to her level of fear. Also the documentation from the police that showed she would not let the police in. The explanation of the anniversary of L's death lacked credibility as it was some weeks away, it was more likely to be due to the fact that she did not want them to see any injuries. The near contemporaneous texts that were exchanged between the father and P on the 12 September add further support. It is not without significance as to where the mother's priorities lay that these events all took place when she should have been attending a LAC review regarding her children.
120. In my judgment the mother not only deceived Dr Keating when she saw him on 15 September and said she had 'been on my own now for the past 3 months' and identifying a future risk in a purportedly insightful way 'The other risk would be me having relationship with men because I don't get them right' with no mention that the police had been to her home 24 hours previously following, even on her own account, verbal arguments of such a degree to warrant police attendance at her home. She also deceived Mr Pizzey on 5 October when he records 'I asked CM about the man called 'B' who LW had told me she was in a relationship. She denied knowing anyone called B'. That was simply untrue.
121. Following the breakdown of her relationship with BH she did stay with TBN for one night, she in part resumed her relationship with the father after the September court hearing I strongly suspect they both thought they could further influence each other's version of events. The mother accepts the argument they had where she threatened the father with referring to an incident when he dangled MY by the legs.

Discussion and Findings

122. Turning first to the acute injuries MN suffered that resulted in the ambulance being called in the early hours of 25 April. I am satisfied that the evidence demonstrates that it is more likely than not that those injuries have been caused by the father and they were more likely than not to have been a shaking type incident just before MN's collapse, most probably through his loss of temper with MN caused by his crying. I have reached that conclusion for the following reasons:

(1) The relevant expert evidence from Mr Jayomohan and Professor David support that conclusion which I accept.

(2) It is more likely than not that the retinal haemorrhages were caused at that time.

(3) The combination of these injuries means that the cause was likely to be through significant force.

(4) Although there was some dispute that prior to MN's collapse he was in the care of the father I have concluded it is more likely the father fed him at about 2am and put him to bed. The father was woken by MN's crying and brought him downstairs to change and feed. I reject the evidence that his crying that morning was any different to other mornings, that is a late addition to the evidence of the father and DW to seek to divert the attention away from the events just prior to MN's collapse. A different cry did not feature in their initial accounts in the 999 call or to the police and was not discussed between the father and DW at the time.

(5) When MN went floppy the evidence demonstrates that the mother was difficult to rouse other than by the father going upstairs and kicking the bed to wake her. She appeared to be in a deep sleep through either the combination of her medication and/or drink. The very late suggestion by the father in his oral evidence that the mother could have woken up during the night and caused the injuries is not credible on the evidence.

(6) Whilst both parents have a history of aggressive behaviour the father has accepted that he has a difficulty in controlling his anger, needing to leave to prevent anything happening and a history of him being aggressive towards the children. The context of the preceding 24 hours is relevant. There was a violent argument the previous day, the mother had packed the father's bags, she regarded the relationship as over and the father accepted he wanted to walk out on the relationship. There is very limited evidence from the parents how, if at all, they made up when the father returned. The mother drank the night before. It was clear the couple were not coping with the pressures of caring for the two children and it is very likely there remained unresolved issues in their relationship.

(7) The transcript of the 999 call refers to the father saying 'what have I done' and later in the call saying 'fucking little shit'. I reject the father's explanation for both these comments, they are more likely to be supportive of the father realising the seriousness of what he had done due to the lack of response by MN and had nothing to do with the dogs being in the way whilst he made the call. All the evidence points to him having a good relationship with the dogs, they are certainly not little and what he said is very similar to the way he has described MN in the past.

123. In my judgment there is more likely than not to be at least one older injury, there may have been more. The evidence of the chronic brain injury is that it is at least three weeks old and the evidence, on the balance of probabilities, does not support it being related to birth. Mr Jayamohan confirmed any such injury could be asymptomatic although the evidence demonstrates that it would not be caused by normal day to day handling.
124. The evidence regarding the fractures is that they were between 2 – 5 weeks old prior to the imaging, giving a date window of between 29 March and 19 April. The expert evidence, on the balance of probabilities does not support them being birth related. Mr Storey, on behalf of the mother, raises the issue of whether due to the uncertainty in dating of fractures and in the present of a memorable event the timeline could be stretched to include them occurring on 25 April some 8 days prior to imaging. Mr Johnson was clear in his evidence that whilst he could not rule it out it he would be 'very surprised' if it was 10 days or less, he said these look like quite mature injuries 'at least two weeks of age'. I accept this evidence, it is more likely than not these fractures were caused on an occasion other than what took place on the morning of 25 April. To be caused they required a significant degree of force and could have been caused at the same time as the chronic neuro trauma or separately.
125. There is no evidence of any memorable event or events other than what occurred on 25 April. However what there is evidence of within the home during the relevant time is a failure to protect the children from the impact of:

(1) chronic drug use in the home by those who are providing day to day care for the children;

(2) chaotic home circumstances with numerous adults visiting or staying in the home and the consequent tensions that ensue, particularly when many of them are taking or under the influence of drugs;

(3) the extremely volatile nature of the relationship between the parents, their frequent aggressive arguments that can result in physical aggression between them;

(4) the difficulties caused through the mother's ability to bond with the children, particularly MN;

(5) the mother's mental ill health and the impact of irregular taking of medication and frequent drug use.

126. The failure by these parents to give a credible account of the care of MN during the time he was with them, together with their respective inability to manage their angry and aggressive behaviour or prioritise MN's welfare needs means that I am not able to rule either of them out being responsible for the earlier injuries (chronic neurotrauma and fractures) suffered by MN as there is, in my judgment, a likelihood or a real possibility that either of them could be the perpetrator of the earlier injuries. They have each become so wrapped up in their lies that it looks very unlikely that MN will have the benefit of learning what happened to him to cause these injuries. I have determined that the father caused the acute injury, most probably through a loss of temper. He was providing most of the care in the early hours and there was evidence of his frustration regarding MN's crying and difficulty in feeding. There is some suggestion from the mother that she saw the father rocking MN in his arms a bit too hard on the night of the 18 April and TM reports a conversation with the father after MN had gone into hospital where he thought he shook the moses basket too hard and she was not to tell anyone. But the unreliability of each of these witnesses through the inherent unreliability of their evidence and/or the risk TM has been influenced by the mother makes it difficult to rely on their accounts. Equally there is evidence, which I accept, of the mother being overwhelmed by caring for MN (for example the messages to KV on 19 April and the messages on 24 April) and the difficulties in her relationship with the father in the context where there is evidence of her ability to lose her temper and shout and scream at the children in frustration. She had not bonded with MN, evidenced by her failure to attend at the hospital, and he was by all accounts a very difficult child to feed and calm down. The parents' evidence was he only slept for 2 hours at a time. They were in all likelihood exhausted not only through caring for the children but by dealing with the number of adults in the home at the time. This combination of events, coupled with significant drug use and alcohol consumption (with medication in the case of the mother) meant the situation regarding the care of MN was liable to erupt at any time with either or both parent. Only the parents know what really went on in the home with their care of MN.
127. Having considered the evidence I am able to determine DW as being outside the pool of perpetrators for the chronic head injury and the fractures for the following reasons:

(1) Even though the parents initially thought DW had caused the injury on 13 April that has been ruled out by the expert medical evidence both as to mechanism and in relation to the chronic head injury timing.

(2) Neither parent has sought to suggest there were any other events when DW had the care of MN to an extent when the injuries could have been caused. This was despite them each having an incentive to do so to absolve themselves from blame.

(3) Whilst there are many worrying aspects in relation to DW, in particular his previous convictions and chronic involvement with drugs, there is no credible evidence of him losing his temper with MN, behaving in an aggressive way or being violent. He was described as loud and drunk on 18 April and was drinking on 24 April but none of the persons present on those occasions suggest that he behaved in a way that could have caused the injuries to MN.

(4) The time frame for the chronic head injury does not fit in with the time when DW was present in the home.

(5) The case against DW appears to rest on presence only where there is no evidence of him having sole care of MN other than short periods on 13 April, 20 April and 21 April when apart from the events on 13 April nothing untoward had been noted

128. In summary, it follows from my findings set out above that on the balance of probabilities the father caused the acute head injuries, neither parent can be ruled out from the pool of perpetrators relating to the chronic head injury and the fractures, they both failed to protect MN from significant physical harm, they both failed to protect both children from significant emotional harm and each child was at risk of suffering significant physical and emotional harm in the future.

Welfare

129. Turning to welfare any decision the court reaches is governed by what is in the best interests of each child having regard to the proportionality of the harm suffered in the past, the risks in the future and having regard to the Article 8 rights to family life of each of the parents and the children.
130. The court has the benefit of detailed welfare assessments.
131. In Mr Pizzey's detailed and thorough report he considers the prospects of the children or either of them being returned to the care of the parents. His detailed analysis does not support either parent caring for the children. That conclusion is supported by the local authority and the Children's Guardian. In his oral evidence Mr Pizzey's evidence and recommendations remained intact.
132. Ms C carried out an SGO assessment in relation to KY, the paternal grandmother who has cared for MY since the end of April. Whilst initially supporting the continued placement of MY with KY her most recent report doesn't support MY remaining with KY. This is mainly due to her concerns about the nature of MY's attachment with KY, the number of carers MY has during the week which is likely to adversely impact on her ability to develop a secure primary attachment with KY. This in turn, in her view increases the risk of MY developing an avoidant attachment pattern.
133. SK is the allocated social worker. Whilst she has not carried out her own assessment and relies on the reports of Mr Pizzey and Ms C she has undertaken her own analysis of those reports and supports their conclusions. The care plan seeks placement of both children together away from the birth family in an adoptive placement.
134. The Children's Guardian was present for most of the oral evidence in this two week hearing. She produced her report prior to the hearing which supported the long term placement of the children in an adoptive placement away from the birth family. Her conclusions did not change in her oral evidence.
135. KY seeks to retain the care of MY and supports the court making an SGO order.
136. The father seeks to secure the care of both children, if that is not possible he supports his mother over an adoptive placement of the children together.
137. The mother seeks to care for both children. An application was made for a residential assessment pursuant to section 38(6) on her behalf prior to the hearing although no place has been identified. In his closing submissions Mr Storey stated the 'issue of the mother's capacity to consolidate change would be ideally suited to a residential assessment where the possibility of trusting relationships with professionals can be formed outside of the context of the mother's relationships with the father and his role in the protective arrangements for the child. As this is not a split hearing, we are unable to approach any organisation before we know the court's finding in relation to the mother's degree of culpability. We will not need long, perhaps four weeks from judgment, to put together a proper application. It is unlikely the children will be placed in this time, and we would only require a day or two of court time to make the application itself.' The mother's fall-back position if she is unable to care for the children is for them to be placed together in an adoptive placement.
138. Both children are at a critical stage of their development.
139. MY is 14 months old, she has experienced significant emotional neglect through the delay in her mother bonding with her, being left very much to her own devices in the family home to the extent that she self-soothed, and being present in the home where there was so much aggression, conflict, chaos and drug abuse. She displayed worrying behaviour when placed with KY and the complex timetable of carers, as so visually displayed in the table prepared by Ms McKenna in the closing submissions on behalf the Children's Guardian.
140. MN has been with the current foster carer for over 6 months, he is beginning to form a secure attachment with her as his primary carer. Any delay in securing his long term placement is likely to be detrimental to his welfare. Whilst the report from his treating clinician Dr W is positive Professor David's evidence is that any future carer for MN will need to have an understanding of normal development to detect any delayed milestones, they will need to be mindful of possible future difficulties with eye sight and hearing and there is likely to be an enhanced risk of epileptic seizures.
141. KY in her written and oral evidence and her closing submissions has made the following things clear. She wishes to continue to care for MY, she is well known to MY having cared for at weekends when she was in the care of her parents. She has a proven track record in caring for A, another grandchild who is placed with her in difficult circumstances. MY was placed at a time when she had just started a new job, very shortly she will have been there for sufficient time to approach her employers about flexible working hours to enable her to have more time available for MY.
142. In her oral evidence she denied any knowledge of the father's drug use or dealing, although she said she 'suspected' it. That is not her position in her closing written submissions where she accepts she was aware of the father's drug use and dealing but had no idea of the scale. This position supports the text she sent OW which he said referred to her wanting to get the drugs out of the family home. KY recognises she should have pushed the father on this and not 'buried her head in the sand'.
143. Whilst there are many positives to what KY can offer MY long term, in particular the continuity of placement, their growing attachment and the link with her birth family and A. That has to be balanced with the consequence of her remaining in KY's care is that she will lose her relationship with her sibling MN as KY does not put herself forward to care for him.
144. The evidence during the hearing has highlighted the following concerns about KY.
145. Her lack of candour with the local authority. It was only as the evidence unfolded during this hearing did the local authority learn about the arrangements KY had made to place MY with wider members of the family, contrary to the written agreement with the local authority. In particular with JN on two occasions for the day following an initial visit to the home and with BW on a weekly basis. Both of those arrangements were in direct contravention to the agreement with the local authority that such people needed to be assessed and DBS checked. For KY to say she thought that had been done does not stand up to any scrutiny, particularly when the local authority had made that position clear at a meeting with her on 13 June about the concerns there were over the number of carers for MY. MC did not know either BW or JN. What is perhaps more alarming about the arrangement with JN is that it seems to have been arranged following initial contact by the mother. These arrangements show no understanding of the need for MY to have a limited number of carers.
146. More worrying is the change in position regarding the knowledge about drug use. This has to be looked at in the context where each of KY's three children have chronic drug related problems. In my judgment her lack of candour about this poses a real risk to MY in the future.
147. The final matter is it was patently clear from her evidence that she does not consider her son has any responsibility for the injuries or the difficulties in the parent's relationship. Even following the events of 24 April when according to the father and DW she had been told what had gone on and received the text from the father about beating up the mother, she appeared unconcerned. Her behaviour in sending the text to S, who she did not know, expressing her blunt views about the mother was on any view a serious mis-judgment, but is revealing about her true feelings regarding the mother. As a long term carer for MY she is unlikely to be able to give MY a balanced view of her upbringing.
148. Whilst it is right the father has been able to provide some practical support with caring for the children whilst they lived at home with the parents, and there were some positive observations by the professionals. He also took MN to the doctors and the hospital. However in the light of the evidence the court has heard and the findings made above the father poses a significant risk to the children. He has comprehensively and effectively misled all the professionals who were visiting the home about the extent of drug use in the home, his involvement in drug dealing, the inherent risks of harm consequent on that and his volatile and violent relationship with the mother coupled with his loss of temper when caring for the children.
149. The deception now needs to be viewed in the light of the findings I have made about the harm he caused to MN, for which the court has no explanation from him about, and the risk he poses by remaining in the pool of perpetrators regarding the older injuries.
150. There remains great uncertainty about the extent of his drug dealing. Whilst it is right he has, according to the drug test results, been free of drugs for six months that has to be looked at in the context that he has been taking and dealing in drugs for many years. Whilst the steps he has taken should be commended they are very early steps against a background of chronic drug use and his social contacts remaining very much in the drug related world. Apart from a generalised reference to wanting to seek some counselling he has taken no steps to put that support into effect and the history shows he has been unwilling to access such support in the past.
151. The mother's position is, in part, set out by Dr Keating. He considered she demonstrated insight as she recognised her problematic past, she understands the concerns of the local authority, understands the impact of her substance use and lifestyle and the pattern or repeated dysfunctional and abusive relationships. According to Dr Keating she also understands the need to be completely abstinent and the need to be honest.
152. It is submitted on her behalf with those foundation stones and the enquiries she has already made about support (with Cruise, Change Grow Live, Worth and others) she will be able to provide safe care for the children. She would be willing to attend an as yet unidentified residential assessment. She is apparently living in a safe house having left the family home.
153. The conclusions Dr Keating made about the mother's insight were done without the benefit of the extensive evidence I have available to me. In my judgment there are real concerns about the mother's lack of insight, even in relation to essential child protection. As I have set out above her oral evidence about the inherent risks of leaving her three week old son with DW who he didn't know and who was off his head due to drugs did not seem to occur to her until pressed in questions by Ms Taylor. In her oral evidence she was defensive and as the evidence unfolded it was clear she had failed to give an accurate account about many matters, for example the level of her drug taking. That only came about with the disclosure of the neighbours statement prior to her giving evidence which referred to the smell of cannabis in the morning. The setting against which Dr Keating was concluding that she had insight has changed dramatically. He thought she had not had a relationship for 3 months and understood the risks of her previous relationships. In the light of my findings that is not the case, she seamlessly went from separating with the father to her relationship with Mr H which she gave no details about to Dr Keating (within 24 hours of the police being called due to difficulties in the relationship) and three weeks later she denied to Mr Pizzey even knowing someone called BH. In my judgment she shows no insight into the concerns of the local authority or the risks from the relationships she forms. She has not been abstinent from alcohol, only a self reporting reduction, and her most recent drug tests leave open the question whether she has taken cocaine in the recent past (namely between the end of February and the end of May 2016), with her somewhat elaborate explanation of being fed by someone who may have had cocaine on their hands being rejected by the drug testing agency in their letter dated 18 November. The foundation of any insight is honesty; that is something which I'm afraid to conclude is not a characteristic the mother has yet demonstrated to any great degree, if at all. Even in her oral evidence when asked whether she had spoken to a witness and informed them of the oral evidence prior to that witness attending to give evidence themselves, she denied it before accepting that is what she had done. Fundamental to any consideration of assessment of her ability to meet the needs of these very vulnerable children, who she already has a difficult relationship with, would be to have an honest open relationship with any professionals working with her. In my judgment the mother seems far away from giving any professional working with her that re-assurance. On the information I have it is very likely to take many months, if not significantly longer, to even get to that starting place. This would also be a fundamental part of any of the support she seeks from the various organisations she has contacted.
154. Standing back and considering the placement options for these children I have reached the following conclusions:

(1) MY remaining in the care of KY will not meet her welfare needs. Whilst acknowledging the growing attachment MY has with her, and that she is a member of the birth family she will not be available to provide the reparative parenting MY so obviously needs. She has known of the need for this since April, there remains uncertainty about what her employers will be able to offer, at most it is flexibility rather than any reduction in hours so there will still be multiple carers to manage MY's care each week. I recognise the distress she will have from any move in placement but her welfare needs will be better met in taking that step now and placing her with MN's foster carer. This will enable her growing relationship with her sibling to become more secure.

(2) The father is not in a position to offer safe care for the children, either together or separately. I recognise the steps he has taken to come off drugs, to remove himself from the drug dealing world, his willingness to access support and the advantages to the children of being brought up by a parent. However he has caused MN significant physical harm and remains in the pool of perpetrators regarding the chronic head injury and fractures. Whilst he recognises at one level his difficulties in controlling his aggression, he has not sought any help to address that. He remains in my view a very significant risk of physical harm if he resumed the care of these children, not only through his aggression but also the likely exposure of them to the risks from the drug related world he is very likely to resort back to without extensive and long term support, which has not even started.

(3) In relation to the mother I have very real concerns about whether she will be able to be in a position to care for the children that would be in their timescales of needing to have security and stability about where their long term care is going to be. It is right she has taken some steps. I am told she is living in a safe house, has lined up the various agencies to support her and wants to put herself forward to care for the children. Despite my very real reservations about her ability to work openly and honestly with professionals and the risks inherent with her remaining in the pool of perpetrators for the chronic head injury and fractures I will give the mother a short period of time to consider what steps, if any, she proposes to take regarding the section 38(6) application having considered the terms of this judgment.

(4) In the absence of the mother being able to care for them the welfare reality for these two young vulnerable children is that there is very likely to be a care and placement order made. I am fully conscious that such a step would involve them being brought up away from their birth family which although on one level recognising their Article 8 right to family life it means for them and their birth family a severance of the legal parental relationship. The Children's Guardian's analysis in her oral evidence of the competing considerations the court should take into account when considering each of the placement options was thoughtful and persuasive.

155. I will hear submissions on what, if any, directions I should make when I hand down this judgment.