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C (A Child : Serious Physical Injuries : Fact Finding)  EWFC 13 (22 February 2018)
 EWFC 13
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This judgment was delivered in public. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
||Neutral Citation Number:  EWFC 13
||Case No: LS17C00708
IN THE FAMILY COURT SITTING AT LEEDS
1 Oxford Row
B e f o r e :
MR JUSTICE HOLMAN
(sitting throughout in public)
|| Re: C (a child)
(Serious physical injuries; fact finding)
Digital Transcription by Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
MISS LOUISE McCALLUM appeared for the local authority
MISS KERRY BARKER appeared for the mother
MISS CATHERINE SMITH appeared for the father
MISS JANE CURNIN appeared for the guardian
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
MR JUSTICE HOLMAN :
Introduction and overview
- I wish to stress that this is a judgment. It is not a book, or a report after a public enquiry. There are about 1,900 pages of documents even in the filleted court bundles for this hearing, plus additional documents produced during the hearing, and counsels' documents. There is a mass of detail in this case and in the evidence. In this judgment I focus on what I consider to be the more salient facts and evidence; but the fact that I do not mention some fact or evidence does not mean I have overlooked them.
- A child, whom I will call C, was born on 12 July 2017. On Saturday, 19 August 2017, when she was just over five weeks old, she was taken by her mother to hospital in a very unwell state. It was rapidly diagnosed that she had suffered a range of internal brain and head injuries characteristic of a shaking injury. The father later admitted that he had shaken her violently and abusively early on the morning of Friday 18 August. He later pleaded guilty to an offence under section 20 of the Offences against the Person Act of inflicting grievous bodily harm and was sentenced to three years' imprisonment which he is currently serving.
- Over 24 hours elapsed between the shaking incident and the baby being taken to hospital. Upon examination at the hospital, the baby was found to have numerous bruises on her arms, legs and back. A skeletal survey was undertaken later on 19 August 2017 which revealed metaphyseal fractures of both legs, and also fractures to the posterior left fourth, fifth and sixth ribs and to the posterior right third, fourth, fifth and sixth ribs.
- A range of treating doctors and expert witnesses have reported in this case and there is now a Schedule of Agreed Medical Opinion dated 2 February 2018 and now at bundle pages E401 to 403. That document has also been agreed or accepted by all parties, and no doctor was required to attend to give oral evidence. The essential agreed conclusion of the doctors is that "there are at least two separate incidents to explain the injuries."
- All the internal head and retinal injuries, which it is not necessary for me to list or describe, are explicable by, and likely to have been caused by, the admitted abusive shaking by the father early in the morning of Friday, 18 August 2017. The rib fractures are radiologically dated and must have occurred in the period from about 15 July to 5 August 2017. Rib fractures during the vaginal delivery have been ruled out, as have any metabolic or other disorders in the child. The conclusion of the doctors, which both parents accept (as do I), is that the range and pattern of rib fractures must have been caused by compression squeezing force on the chest.
- No accidental explanation or account has been proffered by either parent, and I am satisfied (and it is not disputed) that the likely cause of the rib fractures is a person gripping the baby around her upper chest and back and squeezing her with excessive force, such that the person doing it must have known that he or she was abusing, and likely to injure the very small baby. Whoever did that cannot fail to remember it now. The squeezing of the chest must have occurred at the latest over ten days before the shaking injury.
- This case accordingly concerns at least two episodes of very serious, violent, inflicted injury upon a baby within the first few weeks of life. Both parents accept that they were jointly caring for the baby and that the perpetrator of the squeezing injury must have been one or other of them. Each categorically and resolutely denies that he or she respectively ever did anything to the child which could have caused the rib fractures and, accordingly, asserts that it was the other parent. One or other of them is, unquestionably, brazenly and persistently lying and, in the process, dragging the other, innocent parent down.
- Radiologically, the metaphyseal fractures to the legs are dated within a period from about 1 to 15 August 2017. However, the radiologist says that it cannot be excluded that they occurred as late as 18 August. The doctors say, and agree, that metaphyseal fractures of the kind, and in the sites in this case can occur as a result of the flailing of the legs of a small baby whilst the baby is being shaken. They may, alternatively, be caused by a twisting or pulling action of the legs. The father claims, but the mother strongly denies, that he did see her pulling the leg or legs (his accounts lack consistency) of the baby. The agreed medical evidence is that it is not possible to say which is the most likely of:
a) causation by the legs flailing during the admitted shake on 18 August; or
b) the alleged but denied pulling of the child's legs by the mother; or
c) some other undisclosed incident.
- The evidence of the father that the mother pulled the baby's legs is so confused, both as to whether she pulled one leg or both, and as to whether it occurred on the bed or the sofa, that I am quite unable to conclude that the mother did actually pull the legs with the force required to cause the metaphyseal fractures. Since the doctors are unable to conclude which of the three mechanisms listed above is the more likely to have caused the metaphyseal fractures, I cannot exclude that they were caused during the shaking incident. I am therefore unable to conclude on a balance of probability that there was a discrete third incident in which the metaphyseal fractures occurred. The central disputed issue in relation to skeletal injuries is, accordingly, which parent squeezed the baby's chest so as to fracture the ribs.
- The doctors say that it is not possible to date any of the observed bruises. Some, but not all, could have been caused during the shaking incident. The consultant paediatrician, Dr Peter Morrell FRCP, says at paragraph 12.48 of his report dated 11 January 2018, now at bundle page E352, that:
"It is unusual for a small and non-mobile baby to present with any form of bruising. Research studies which have looked at this question indicate that only one or two percent of non-mobile infants present with any bruising at all. If an infant does have bruising, this is most commonly a solitary bruise and there is usually an adequate explanation for that bruising. It is therefore very concerning indeed when any infant presents with multiple bruising."
The agreed medical schedule accordingly records that:
"The bruising was caused by some form of impact injury; a fall or a blow or pressure applied with a hard object, including fingers… In a non-mobile child inflicted injury is [the] more likely explanation for most [of] the bruising."
- The greater significance of the bruising in the present case is the failure of either parent to seek medical advice and/or to take other protective measures if or when he or she respectively observed the bruising; but as evidence of abuse, I am satisfied on a balance of probability that one or other or both parents at different times handled this child so carelessly or roughly as to cause multiple bruising and which amounts to inflicted abuse.
- The bruising, no doubt, resolved long ago. I am not aware of any significant, long term consequences from the rib or leg fractures. As the child is still only 7 months old, it is not possible to determine whether she has suffered lasting or long term brain or neurological or optical damage from the shaking. There is little doubt that she might easily have died.
- In some child abuse cases it is proved or admitted that only one person was caring for the child at the material time. The disputed issue in such cases is not who was the perpetrator, but what did he or she do to the child? The present case is different. There is a known and admitted perpetrator of a "classic" range of shaking injuries. There was one other certain episode which caused the rib fractures. The mechanism is tolerably clear, namely excessive gripping or squeezing of the child. The issue is which parent did it. The precise mechanism or causation of the bruising will, frankly, remain a mystery.
- As well as the issue of responsibility for causing the injuries, the above facts reveal a long period of delay in seeking medical help for this child even after the shaking injury must have occurred. Further, as the narrative will later show, there were numerous concerning signs or symptoms in this baby for at least a week before she was taken to hospital on 19 August.
- The local authority thus allege that there was a serious and culpable failure by both parents to seek medical help for their baby and, more generally, to protect her and keep her safe. The mother, in part, explains any such failure by herself as resulting from, she says, a history of physical and verbal abuse of her by the father and his control of her.
- I was indebted to all counsel who agreed and drafted an "Agreed summary of the law" relevant to this case and the issues within it. With their permission, I attach it as an annex at the end of this judgment and direct myself by it. The overall burden of proof is, of course, on the local authority who bring the proceedings. The burden of proof in relation to the allegations of domestic abuse and control is upon the mother who makes the allegations. The standard of proof on all issues is the balance of probability.
- It would, indeed, be impossible to be sure in this case about anything which is not either patent or admitted, and I can only make findings on disputed facts on the civil standard of the balance of probability. Clearly, if I am indeed judicially satisfied on a balance of probability which parent caused the rib fractures, I must and will say so. That, of course, will carry the corollary that the other parent did not do so.
- An outcome in which the court is unable to decide which parent was the perpetrator of serious inflicted injury is unsatisfactory from the point of view of future child protection decision-making (whether by the court or the local authority or others). It is also unfair and, indeed, unjust to whichever is the innocent parent, which is why I referred earlier to the lying parent dragging the other, innocent parent down. However, I must discharge my duties conscientiously and with intellectual integrity. If I am unable reliably to identify the perpetrator, even on a balance of probability, I must say so.
- As the agreed summary shows, the law clearly recognises that there may be some situations and cases in which the court is simply unable reliably to identify the perpetrator even when there are only two possible ones. In such a situation the court must not "strain" against the judicial conscience to identify the perpetrator when it cannot do so. However unsatisfactory, there may be some cases in which, at the end of all the evidence and argument, the court is unable reliably to identify which of two possible perpetrators is the actual perpetrator. In that situation there can be no finding as to who is the perpetrator and both must remain in the "pool" of possible perpetrators.
- It is, in fact, the considered closing submission of both the local authority and the guardian in the present case that this is just such a case. Although the decision is ultimately for me and me alone, each submit that it is not possible reliably to identify the perpetrator of any of the injuries except the admitted shaking-related injuries, and that at the end of this long hearing I can do no more than leave both parents in the pool.
- In this case, I regret that I am satisfied that both parents have told lied in parts of their statements or oral evidence to the court, some of which I will later identify. It is thus necessary that I expressly direct and remind myself in terms of a "Lucas" direction that the fact that a person has told a lie or lies does not necessarily mean that other parts of the evidence of that person are untrue or that he or she is guilty of the matter or matters in issue. An innocent person may tell lies in order to bolster a good case, or out of shame or embarrassment.
The parents as witnesses
- Both parents have given extensive written and oral evidence in these proceedings as well as earlier giving interviews with the police. I regret to have to record that neither parent impressed me as a wholly reliable witness. There are inconsistencies in the various accounts of each of them. Both have lied to the court and/or earlier to the police or others. I appreciate that giving oral evidence in the witness box in proceedings of this kind, and under such intense scrutiny, is a highly stressful occasion for anyone, and especially for young parents with so much at stake. That said, there was something about the demeanour of each of them which lacked sincerity or any obvious integrity.
- The father, in particular, appeared at times to be giving his evidence from a planned "script" in which, however, he made mistakes and became confused. But in parts of her oral evidence, too, the mother was obviously ad-libbing and unconvincing. I instance her claim in her oral evidence that she had not heard the sound on the video on the morning of 18 August 2017 to which I refer more fully below.
- As I will later describe, the exception to these observations was when the mother gave oral evidence with regard to the father's violence and abuse towards her. In those parts of her evidence she displayed appropriate affect, and appeared clearly to be describing true and very painful events.
- I am thus faced with two people in the pool of possible perpetrators whose evidence I must view with considerable caution. It is, as I understand it, essentially for these reasons that both the local authority and the guardian (who also saw and heard the oral evidence as I did) have submitted that it is not possible reliably to identify which parent caused the rib fractures.
The essential facts
- The essential facts and framework of the case are as follows. Both parents were born in early summer 1994, so they were 22 when they met and just 23 when C was born. It is relevant that the mother has a full BA Honours degree in early years education, and was working, when she met the father, as a nursery practitioner, and later a senior nursery practitioner, in a private nursery. This cuts both ways.
- It is submitted on behalf of the mother that, being a trained and experienced professional carer of children (though none so young as 4 or 5 weeks), whose work record appears to have been entirely satisfactory, she is less likely to have had a loss of control or to have harmed any child. But it is submitted by the local authority that her training and experience, which would include being attuned to the well-being of children and to such telltale signs as bruising, make it all the more remarkable that she did not appreciate (as she claims) how unwell her baby was and the need to obtain medical attention earlier than she did.
- The parents met in about August 2016 and very rapidly formed an intense relationship. The father was living at that time with his own mother, Mrs. Paula Mitchell. That summer, Mrs. Mitchell was very dangerously ill, and indeed spent about a month in an induced coma with a very uncertain prognosis. (Happily, although of course we did not pry into her current state of health which is irrelevant, when Mrs. Mitchell gave her oral evidence and since attended court every day as an observer, she now appears in good health and strength.) I accept that the father was very upset by his mother's ill-health and state in summer 2016, and this may have intensified his rapid emotional dependence upon the mother.
- About six weeks later, in October, they began living together in a small terraced house where they were to remain. This house was being rented by the father's father, Mr John Harrison. He had moved elsewhere and it was vacant but still furnished, and Mr John Harrison was still paying the rent. Mr John Harrison said rather ruefully in evidence that he had merely agreed to them spending a weekend together there, but they had never subsequently moved out. He said he had been conned. The mother, too, said that she had thought they were merely going to spend a weekend together.
- Both Mrs. Mitchell and the mother's mother, Mrs. Susan Wrightson, clearly thought that the young couple were committing to each other far too quickly, and disapproved of their living together so soon. There was, however, a friendly relationship between the mother and Mrs. Mitchell. Mrs. Wrightson was more disapproving of the father as partner of her daughter.
- Almost immediately, in about October 2016, the mother became unplanned pregnant. Over the next few months she had many absences from work, and friends, colleagues and family, including her mother, Mrs. Wrightson, all noticed a change in her. She became less bubbly and much more withdrawn, and socialised much less than previously. To them, she attributed that to either pregnancy sicknesses, or concentrating on her new relationship and home. She now says that in the period until about the end of February 2017 she was being subjected to physical and verbal abuse and control by the father, although she says he improved between February and August.
- There is no doubt that in this period, and following the birth, they were a young couple under strain. They had debts. They were struggling, and not coping, financially. The father had no secure job. After the birth, they of course had the added strain upon any parents of a newborn baby of broken nights and sleep deprivation. In August 2017 the mother developed shingles and the father was, for a period, infected by tonsillitis to which he is prone. He has a diagnosis also of social anxiety and depression, for which he was prescribed medication but which, during 2017, he stopped taking and was not taking at the time of the birth (he says that he does now take it again).
- After the birth of C on 12 July 2017, she lived exclusively with her parents at their home. Although others, such as grandparents, visited and handled her, the parents alone were the consistent carers. They both clearly undertook the care of the baby, including middle of the night feeding, nappy changing and bathing her. The mother says that the father did a lot of these tasks because he insisted on doing so. The father says that whilst he was infected by tonsillitis he kept away from the baby lest he infect her. However, they dispute the exact period and length of time that the father was laid up in bed.
- The mother says that the father was only actually in bed and not engaging with the baby on the days of 9 and 10 August 2017. His own account lacks consistency. He has said that he was "constantly in bed" for seven to nine days starting on Sunday, 6 August. Elsewhere, at paragraph 8 of his first statement dated 17 November 2017, now at bundle page C36, he said that, "In the week or so leading up to [the] shaking… I was effectively in bed for most of the week". Since the shaking was on 18 August, that would date his period in bed to about 10 to 17 August. I accept that there was a period when more of the tasks fell upon the mother as the father was unwell, but that period began after the rib fractures are likely to have been inflicted (the cut off date being, according to the medical evidence, about 5 August). In any event, both parents had ample opportunity both to fracture and bruise the child unseen by the other.
- The first two to three weeks after the birth were apparently uneventful, although we now know that the baby may have suffered the rib fractures even in that period. At paragraph 6 of a very late third statement made on 8 February 2018, after the present hearing had begun, the father alleges that, around the beginning of August to 10 August 2017, he saw the mother drop the baby onto the kitchen floor, although he stresses that it was an accident. The mother very strongly denies that she ever dropped the baby onto the floor.
- As I have already described, both parents are unreliable witnesses, but I am not satisfied on the balance of probability that the mother ever dropped the baby as the father alleges. In any event, the late statement of the father was sent to the paediatrician, Dr Morrell, and the treating consultant paediatric radiologist, Dr Karl Johnson. By Dr Morrell's Addendum medical report dated 12 February 2018, and Dr Johnson's email, also dated 12 February 2018, both doctors say that a drop onto the floor from an adult's arms would be unlikely to cause the number and range of rib fractures in this baby.
- It is common ground that from around 10 August 2017 the baby was not taking her feeds well and frequently vomited. This was more than posseting or dribbling after feeds, but appeared to be vomiting from her chest or stomach. The mother took her to the GP at the recorded time of 08.38 on the morning of Friday, 11 August. The GP's notes, now at bundle page G8, record:
"c/o crying more than normal now and coughs, also feverish today, dad had tonsillitis, mum is worried, bottle-fed,… sometimes vomits after food…"
- The GP then records that on examination the baby was well, but diagnosed upper respiratory tract infection. Some cream was prescribed for dry skin and the mother was advised to seek medical advice a.s.a.p. in the event of drowsiness, respiratory distress or the baby being unwell. There is no record of any bruising being noted, nor did the GP detect that the ribs were fractured, although we now know that by then several were.
- During the afternoon of Friday, 11 August 2017 the paternal grandmother, Mrs. Mitchell, visited the parents' home. She was concerned about the baby who did not seem well to her. She also saw a bit of blood on the baby's lip. She was so concerned that she told the mother that she ought to take the baby to hospital to be checked. The mother did not do so. The mother did, in fact, attend hospital that evening to seek advice or treatment for her own shingles. She took the baby with her, but she did not seek any advice or treatment for the baby. Her explanation is, first, that she had in any event already taken the baby to the doctor that morning; and, second, that she examined the lip closely and could see a little cut or abrasion on the lip which looked chapped and this seemed to her to be the source of the blood.
- Later that evening Mrs. Mitchell spoke on the telephone to both the father and, later, the mother. Mrs. Mitchell is adamant that each told her that the mother had, indeed, taken the baby to the hospital, and thereby reassured her. During his oral evidence the father did admit that he "gave [his mother] the impression" that the mother had taken the baby to the doctor's on 11 August. He said he did so because he was stupid. However, the mother denies that she herself told Mrs. Mitchell that. I am satisfied on a balance of probability that they both did, and the mother was not truthful either with Mrs. Mitchell at the time or with the court now. In this, as in all her oral evidence, Mrs. Mitchell struck me as a genuine and plausible witness who was clear about events and not fabricating.
- During the week beginning Monday, 14 August, the baby continued often to vomit after feeding. It seems to be common ground between the parents, and I accept, that on the evening of Thursday, 17 August the baby had a bath in the bath at the same time as her father. The mother sat on the lavatory seat or lid beside the bath. The mother claims that when the bath was over, the father handed the baby to her and she held the baby on a towel on her knee while the father dried and dressed himself, and that the father then took the baby from her so as to dry the baby himself.
- The mother says that the father would not permit the mother herself to dry the baby. So the mother says that she did not herself dry the baby, nor turn her over, and that she did not see any of the many bruises later observed on her body. However controlling the father, it does not seem credible that the mother could meekly sit with her wet baby on her knee on a towel and not dry her at all throughout the time, however short, it took the father to dry and dress himself.
- It is common ground that it was the father who fed the baby downstairs during the night of 17/18 August 2017 whilst the mother was sleeping upstairs. This was when, as he admits, he lost self-control and shook the baby violently. He was patently very worried about what he had done and the well-being of the baby, for, starting at 7.34 a.m. on the morning of Friday, 18 August and continuing intermittently until as late at 2.58 p.m. that day, he made a number of internet searches under a range of prompts such as "baby crying but eyes rolling", "how to tell if a baby is having a fit", and "brain injury, seizures after an acquired brain injury".
- The father also made a short video clip of the baby on his mobile 'phone timed at 7.43 a.m. ("the video"). I have seen that video. Although short, it is deeply disturbing. The baby is clearly jerking her limbs in an abnormal way and making strange cries. After she looked at it in the court room, the mother said that the appearance of the baby on the video was not normal for the child at that time. She described the baby's cry as being "a cry as if she couldn't cry".
- It is common ground that around 11 a.m. on the morning of Friday, 18 August the father woke the mother up and showed her the video on his mobile. The mother says that she was still awaking from her sleep and did not take the video in at the time. She also claimed in her oral evidence that the 'phone was muted and she did not hear the sounds the baby was making. This simply cannot be true if her earlier statements to the police were true.
- She was interviewed by the police on 20 August 2017. The material parts of the transcript of that interview are now at bundle pages H558 to 561. She was asked about the video. She expressly said, at paragraphs numbered 972 on page H558 and 998 on page H560, that the cry of the baby on the video was what they used to call her "warning cry" which she made before she started crying properly. The mother only ever saw the video on one occasion around 11 a.m. on 18 August, for she expressly told me that in the court room she was seeing it for only the second time.
- The mother's attempt to explain the inconsistency as being that the video was muted but the father had told her that the baby was making her "warning cry" was utterly unconvincing. Further, if the father was sufficiently concerned to show her the video at all, it is improbable that he would then have muted it and merely described the "warning cry" rather than let the mother hear it for herself. Even if she was only just waking, I am quite satisfied that the mother did both see and hear the video.
- This was a conspicuous lie by the mother on oath. It does not make it in the least more probable that she herself has harmed the child. She lied because she knows (as, indeed, she accepted) that the sight and sound of the baby on the video should have prompted her to seek immediate medical attention, but she did not do so. She now tries, unconvincingly, to deflect blame by claiming that she did not hear it at the time.
- During the evening of Friday, 19 August, around 7 p.m, the mother did, as she says, see what looked to her like fingertip bruising on the outside of both the baby's upper arms. During cross-examination by Miss Louise McCallum on behalf of the local authority, the mother said that she noticed the fingertip bruising on both upper arms around 7 p.m. on the Friday evening. At first, she thought it was a shadow. Then she inspected them and noticed that they were bruises. She moved the baby's arms. The baby was naked on the bed. The bruises were purple or brown in colour. She was suspicious. She asked the father about them. They decided that the bruises could have been caused by one of them being heavy-handed. She made out to him that it could have been herself who had caused them in case he got angry with her. The mother said that she adamantly says that she never saw the bruising on the baby's back or any other of the bruising until they were at the hospital.
- This is important evidence. By her own account and admission, the mother saw what she considered to be fingertip bruising on the outside of both upper arms at around 7 p.m. on the Friday. She is a trained and experienced carer of children with an Honours degree in early years education. It was the practice at her work to report and record in a "worry book" any bruising observed on a child. She must have known that fingertip bruising (as she herself thought it to be) on both arms of a 5 week old baby could almost certainly only mean that the baby had been squeezed or gripped abusively.
- Further, I am unable to believe that she did not examine the baby more thoroughly and see the other multiple bruising upon her. The tiny baby was naked on the bed. She examined, she says, the bruising on the arms. She was concerned about it, for she said in her oral evidence that she was "suspicious". It is, to my mind, not credible that she did not rove her eye over the other parts of the baby's body and turn her so as to look at her back, and not credible that she did not see some, at least, of the other bruising. If, indeed, she did not, then she was very neglectful in not examining her baby more closely once she had seen the fingertip bruising of which she was suspicious.
- There is another concerning aspect to the mother having seen the fingertip bruising. When, in the very early morning of Saturday, 19 August, she made the 111 call, which I will shortly describe, she was specifically asked by the operator whether the baby had any marks like bruising or bleeding under her skin, see now bundle page G91 at numbered question 57. The mother replied, "Not that I'm aware of, no."
- In her oral evidence, the mother claimed that at that time the fingertip marks went out of her head. This does not seem plausible or credible. She was ringing 111 because she was concerned about her baby. Only a few hours earlier she had seen suspicious, purple or brown fingertip bruises on both arms, and had discussed them with the father. She may have forgotten spontaneously to report them; but the question from the operator was an obvious prompt, and I cannot accept that, even once prompted, the marks or bruises "went out of [her] head".
- It was at 2.48 a.m. on the morning of Saturday, 19 August that the mother rang 111. She did so because the baby was projectile vomiting, as she said in the call, and had done so "five or six" times. She was offered an appointment at a medical centre at 3.45 a.m, about an hour later. She did not go. Instead, she rang 111 again at 3.37 a.m. and cancelled the appointment. She told the operator that the child had gone to sleep and she was wondering if she could have an appointment in the morning.
- The mother has given different explanations as to why she cancelled the appointment. In police interviews on 20 August 2017, now at bundle page H514 at paragraph 288, and on 7 September 2017, now at bundle page H616 at paragraphs 290 to 295, she said that the car would not start properly and had no petrol in it. She said she had tried a couple of times to start the car but it was stalling. She now admits that that was all untrue. She had never even gone out to the car or attempted to start it.
- However, in a further police interview on 28 September 2017, arranged at her request and now at bundle H, page 701 to 727, the mother gave to the police a revised explanation, substantially in the terms of her evidence to me. She told them, and me, that she was dressed and had got the baby in the car seat all ready to carry her out to the car and keep the appointment, when the father prevented her from going by both physical violence and restraint and verbal threats, and by removing the car keys. She says that he held her by the hands and hit her on the arm with his fist and on the head with the TV remote. She said in her oral evidence that he told her at the time that if she ever told anyone that he had made her cancel the appointment, he would put his family on her and on her (disabled) father.
- The father denies that he restrained the mother in any way from taking the baby to the appointment. However, his oral evidence on this issue was confused and inconsistent. He appeared to say he was upstairs asleep in bed when the mother made the 111 call, although the mother herself said that she made the call from upstairs and he was downstairs on the sofa. He denied any knowledge of the call at the time it was made. He said that he did then get up and try to feed the baby, but he also said that when he awoke, the baby was in the car seat downstairs. Later, he corrected himself and said that he did not see the baby in the car seat, this was merely what the mother told him. He later said that after he fed the baby he just passed her to the mother and went to bed.
- In an interview with the guardian on 5 February 2018, as the guardian verified in her brief oral evidence, the father denied having hit the mother after she made the 111 call, but did state that he did not think it was necessary for the mother to take the child to hospital in the middle of the night. He told the guardian that he did say to the mother, "It's cold outside… it's late". The child was asleep and did not look poorly. He was asking the mother, "Is it absolutely necessary?"
- On this issue, I preferred the evidence of the mother. It is true that she originally gave, and repeated, an entirely fabricated story to the police about the car not starting. That, however, is consistent with her evidence to me that the father had threatened her and her family if she ever told anyone that he had made her cancel the appointment. The mother's account to me was consistent with her revised account to the police in late September, and this part of her evidence was given with appropriate affect when describing a humiliating episode of violence upon her.
- The father's evidence around this topic was, as I have said, confused and inconsistent and he appeared to be very obviously ad-libbing. Further, contrary to his oral evidence on oath, he patently did know about the call and did wish to dissuade the mother from going, as he described to the guardian. I am satisfied on a balance of probability that the reason why the mother did not take the baby to the appointment at 3.45 a.m, but cancelled it, was that the father, with physical and verbal violence, prevented her from doing so.
- The parents then placed the baby in the Moses basket beside their bed where she did normally sleep during the night. They appear both to have got into bed themselves and the mother says that she fell asleep. It does seem remarkable that she could have fallen asleep after the disturbing events of the previous couple of hours, but that is what she says. The 111 service rang the mother at 4.25 a.m. and she spoke to them briefly. The mother says that she woke again at 7 a.m. and tried to feed the baby who would not take the bottle.
- The mother says that the baby woke again at about 9.30 a.m. She tried to feed her and noticed that her hand was twitching. She rang the 111 service again at 09.56 a.m., described a range of symptoms, and was advised to take the baby to A & E in Pontefract. She arrived there with the baby at 10.49 a.m. but was advised to take her to another hospital, Pinderfields. On the way there, the mother picked up Mrs. Mitchell, who then accompanied the mother and baby to Pinderfields. Mrs. Mitchell said in her oral evidence that the mother did not appear to her to be driving with any sense of urgency. The mother says she was observing speed limits and traffic conditions. I attach no significance to the speed or manner of the driving.
- Once the baby was at Pinderfields, it was rapidly clear that the baby was extremely ill. The father's own father, Mr John Harrison, was contacted and went to wake up the father and bring him to Pinderfields. The baby was later transferred to Leeds General Infirmary by ambulance.
- By the end of Saturday, 19 August 2017 the father, who initially claimed or admitted only that he had dropped the baby, did admit and demonstrate on a training baby or doll that he had vigorously shaken her. He was arrested at about 1.25 a.m. on Sunday, 20 August 2017 and has remained in custody ever since. On 15 September, the baby was discharged from hospital and has since lived in the care of the maternal grandmother, Mrs. Wrightson, under an interim care order.
The allegations of domestic abuse and control
- As already indicated, the mother claims that during their cohabitation the father was abusive towards her and controlling of her. She says that this did improve after about the end of February 2017; but that he was again violent towards her, as I have already described and found on a balance of probability, early in the morning of 19 August when he prevented her from taking the baby to the appointment she had made with the 111 service.
- The pleaded case of the mother is in Annex A to the local authority's "Final schedule of threshold findings sought" and reads as follows:
"During the parents' relationship the mother was subjected to domestic violence perpetrated by the father. This is demonstrated by:—
(a) the father coercively controlling the mother by:—
(i) isolating her from her family by limiting when she could see and speak to her family;
(ii) controlling and monitoring her Facebook account and other social media accounts from November 2016 by either deleting the accounts, checking who she spoke to and sending messages supposedly from the mother to her friends.
(b) the father being physically violent to the mother including:—
(i) on 18 August 2017 hitting the mother's arm and head causing a bruise and took her car keys off her and in doing so prevented the mother from taking [the child] to obtain medical treatment;
(ii) in February 2017 grabbing the mother by the neck and hitting her arm causing her to suffer a bruise. This bruise was seen by Casey Murray and a referral to social services made.
(c) the father being verbally abusive and degrading towards the mother throughout the relationship."
By his pleaded response, the father effectively denies all the allegations, although he does admit and aver that:
"… due to the pressures on their relationship in relation to money and significant debts, this was a mutual source of arguments between them which at times were heated."
- Several witnesses gave oral evidence at the hearing which was essentially directed to this issue. Miss Francesca Eddon is a former colleague of the mother at the nursery where they both worked. She describes in her written statement dated 14 January 2018, now at bundle pages C76 to C78, how the mother changed after she met the father from being extremely hard-working to being "introverted". Miss Eddon got the impression she was trying to hide something and was scared.
- Miss Eddon says that the mother began to have many absences from work. When the mother returned to work after a five week absence, Miss Eddon started to notice bruising behind her ears and black eyes. She continued to come to work with new bruises and marks which she attempted to conceal with make-up and sunglasses. A story by the mother, which Miss Eddon considered was fabricated, that she had been assaulted by two men in the street patently could not account for the later new bruises which Miss Eddon observed. In her oral evidence, Miss Eddon described how the mother became very quiet and an introvert and took a lot of worrying absences from work. She said she saw visible bruising on many occasions, including marks around the arms, hands and wrists but also black eyes covered up with make-up.
- Miss Eddon agreed that she herself received bruises during the course of her work as a nursery practitioner, caused accidentally by the children; but she rejected the suggestion of the father that that could account for the range and sites and frequency of the bruising which she observed upon the mother, which it is to be noted first began to appear only after the mother began her relationship with the father, although she was working at the nursery before that. Miss Eddon was a transparently honest witness. She no longer is a current friend or colleague of the mother and has no motive to fabricate her evidence.
- Mrs. Theresa Fowler is the neighbour of the house in which the parents lived. They are terraced houses in a row, built in the early 1900s with only a one brick thick party wall. In a police witness statement dated 17 October 2017, now at bundle page H781 to 784, Mrs. Fowler gave a long account of hearing loud noises, shouting and arguments in the whole period the parents lived next door. She heard the father shouting abusively at the mother, using such expressions as fucking whore, stupid bitch, dickhead, and dirty fucking whore.
- Mrs. Fowler elaborated on this in her oral evidence. She became so distracted herself by all the shouting, which kept her awake very late into the early hours, that she started to keep a log or diary which she produced at the hearing and which clearly supports her evidence. She said that the mother did not scream back at the father that often and became progressively quieter and quieter. Mrs. Fowler did say that, from her angle, things improved after the baby was born when there was less noise. I had no reason to disbelieve the evidence of Mrs. Fowler.
- Miss Cally Richardson is a former girlfriend or partner of the father. She made a police witness statement, which is signed but appears to be undated, now at bundle pages H753 to 756. She has known the father for quite a few years but he was her boyfriend from about late November 2015 until mid August 2016. Her statement is very detailed, but, in summary, describes him as having displayed anger, abuse, threats and physical violence towards her.
- Miss Richardson gave oral evidence upon oath. She has never met the mother, although they did communicate via Facebook just before Christmas 2017. She described that during her relationship with the father they argued all the time. He would blame it on her. He used to grab her wrists as she walked away from an argument. She had bruises to her wrists. Every time they argued, he grabbed her by the wrist and pulled her back. She was too scared to report him to the police. She described an occasion when he trapped her in the bedroom by pushing himself behind the door so she could not get out. She gave this particular account with tears and considerable affect.
- I must, of course, view the evidence of Miss Richardson with great circumspection. Her relationship with the father ended and she may have an axe to grind. However, she seemed an entirely honest witness who gave her evidence with appropriate affect when describing a difficult and abusive relationship. When he came to give oral evidence, the father described Miss Richardson as a very spiteful person and a trouble-causer. He said that she comes from a nasty background and that her parents are drug abusers.
- Miss Kirsty Gillies had been the mother's best friend before she met the father. She made a police witness statement on 20 August 2017, now at bundle pages H287 to 289. She describes how the mother became more isolated from her friends after she had met the father. During her oral evidence, Miss Gillies agreed in cross-examination on behalf of the father that the mother had never said to her that the father had been violent, abusive or controlling, but she said that after the mother met the father she never saw her alone.
- It was to Miss Gillies that a long text was sent from the mother's mobile 'phone on 14 January 2017. It relates almost entirely to her relationship with the father, who is portrayed very positively, and includes the following passage:
"Just to clear the air about what other people may think, he does not control me in any way, shape or form, he literally runs around the house for me, if I'm throwing up he's there in a heartbeat rubbing my back, he is constantly trying to work on things to make my life easier and I fully understand that you don't see me much any more. This is due to settling into the house and getting things for baby and also my choice but it would be nice to know that you at least were happy for me and that I'm safe and loved by him xxx."
On the face of it, that text strongly contradicts the account the mother now gives of abuse and control. The mother asserts, but the father denies, that it was the father who composed and sent the text, deliberately using the mother's mobile 'phone, so that the text appeared to come from her.
- During her own oral evidence, the mother said that the father became violent after they moved in together. He was violent at least twice a week, whether pushing or hitting her, and she was getting bruises and people started commenting upon them. He stopped her from going to work because he did not want people to see the bruising to her neck, eyes, arms and legs. He would always apologise after hitting her but then turn it around and say it was her fault because she spoke to males that she had had relationships with in the past. This is, indeed, consistent with much of the police statement of Mrs. Fowler, who records many shouted comments, plainly obsessive about the mother seeing other men, such as "you cheated on me" and "you're classy aren't you, shagging Harry in the car, you fucking whore."
- The mother said that the father said that he wanted to get his anger out to show her how much he loved her. She was too scared to report the violence and abuse. He threatened that if ever she reported it, his family would go after her family including her father who, she said, is very, very poorly. As I have already said, the mother did say that the violence did stop at the end of February 2017 until the event in the early hours of 19 August 2017 when the father prevented her from taking the baby to the 111 appointment.
- When the father gave oral evidence, he said that they had "the odd heated argument" about finances but there was no physical abuse and no verbal abuse. He had not argued with her about any boyfriends at all. As with his written pleading in answer to Annex A, the position of the father was one of complete denial that he abused or ill-treated the mother, or abused or ill-treated Miss Cally Richardson, whom he dismissed as a spiteful person and trouble-causer.
- As well as the text to Miss Gillies dated 14 January 2017, there is another document relevant to the issues of abuse and control, namely a spiral bound notebook, now at bundle pages H732 to 752. On the cover, at H732, is written the father's name. Neither parent was asked about this during their oral evidence under oath, but when I asked during final submissions in whose writing the name is written, each parent said, through their counsel but in the court room and after express instructions were taken, that it is that of the other.
- Now at bundle page H744 is a page of the notebook in which is written:
"Just say things like
if you think [the father] hit me, he never would. He can't wait for this baby.
And [the father's] mum doesn't know me like you don't know [the father] and she really cares for me.
I don't talk to certain people any more because I'm pregnant and want to concentrate on settlin [sic] down.
Just say obviously no one will be happy till [the father] is gone."
Again, each parent was specifically asked in whose writing that was written, and each said, via instructions taken in the court room, that it is that of the other. It is obviously a mark of how entrenched and polarised these parents now are that one of them (but I do not know which) can so brazenly lie (not on oath) as to deny his or her own handwriting. There being no expert handwriting evidence, I am quite unable to say who wrote those words. I have no idea whether the mother was writing down thoughts or reminders for herself of what to say; or whether the father was writing down instructions to her of what to say.
- The mother did agree during her oral evidence that the writing, now on pages H738 to 740, is her own. It is, on the face of it, an erotic love "letter" from her to him and includes such phrases as, "I love you so much, the things we do together makes my heart melt…"; "Let's start with the sex. My god, it is amazing…" and it is then described; "I have never in my life felt as comfortable around anyone as I do around you…"; "You really are my soul mate, my one true love, my world and my everything…"; "I love you with all my heart…"
- Superficially, the language of that "letter", which remains simply as pages within the notebook, is not consistent with the picture the mother describes of abuse and control; but the mother says, although he denies, that it is the product of control in that the father insisted she wrote it and told her what to write.
- Viewing the evidence on this part of the case as a whole, I am satisfied on a balance of probability that the father did, indeed, physically and verbally abuse the mother and seek to control her in the way she describes. His denials are total, apart from agreeing they used to have "the odd argument" about money. If that be right, the mother's account is wholly fabricated. I do not consider that it is. She gave her evidence on this part of the case with appropriate and convincing affect. Whilst I have stated that she has told numerous lies and generally is not reliable as a witness, she has not been shown to be lying on this issue.
- In my view, the evidence of the mother on this issue gains considerable corroboration or support from that of other witnesses. Mrs. Fowler repeatedly heard the shouting and aggression and abusive language. Miss Eddon gave convincing and reliable evidence of the mother withdrawing into her shell and also repeatedly appearing at work with new bruises on different parts of her body, not explicable, or wholly explicable, as the bumps and bruises of a nursery worker.
- As I have stated, I must, and do, view the evidence of Miss Cally Richardson with great circumspection, but she seemed an entirely honest witness, not motivated by spite as the father suggests. She described suffering very similar behaviour and abuse from the father as does the mother, and the evidence of Miss Richardson does, in my view, afford some evidence of propensity. I do not treat it as in any way decisive, but I do consider that it is consistent with the evidence of the mother herself and that of Mrs. Fowler and Miss Eddon, and does add some weight to the credibility of the mother's account.
- It is true that the mother did not make any reference to domestic violence and abuse until her second interview with the police on 29 August 2017, and had nothing to say about it in the first interview on 20 August 2017. This is equivocal. It is entirely consistent with (though in no way probative of) her story that she said nothing as early as 20 August. She may have been still too fearful of him and his threats to harm her family to do so.
- I therefore find and hold that, in the period from October 2016 to the end of February 2017, the father did subject the mother to physical violence, verbal abuse, threats and control and that, as I have already held, he was again violent and threatening towards her on the morning of 19 August 2017. The physical violence caused to the mother on many occasions a range of bruises on different parts of her body which she attempted to conceal from her colleagues and friends. When the bruising was particularly bad, she was prevented by the father from going to work altogether.
- It would be entirely consistent with the above findings that the father himself created and sent the text on 14 January 2017 and instructed the mother what to write in the notebook at pages H738 to 740. However, these issues are of themselves of minimal relevance and I make no findings as to them.
Analysis and findings as to who caused the fractures and bruises
- Each parent asserts that the other must have caused the rib fractures and the bruises, save for the fingertip bruises on both upper arms which the father accepts he may have caused during the shaking event.
- As I have described, the considered submission of both the local authority and the guardian at the end of all the evidence is that I cannot reliably identify who caused these injuries, although they both say that it is a matter for me and that if I consider that I can reliably decide who caused them, I should say so.
- The father admitted shaking the child and causing all the shaking-related injuries, which may include also the metaphyseal fractures to the legs. Even if he had not admitted that, there are in fact two pieces of evidence which tend strongly to indicate that it was him who shook the child, namely:
i) the fact that he carried out the internet searches into baby eyes rolling, seizures, etc and acquired brain injury, starting at 7.34 a.m. on the morning of 18 August; and
ii) the fact that he made the video at 7.43 a.m. on the morning of 18 August and then continued with more internet searches at 7.46 a.m., 8.57 a.m. and later that day.
As the mother was asleep upstairs at the time, these were patently the acts of a very anxious person who obviously realised that he had abused the baby and was very worried by the signs she was showing and that he may have seriously harmed her.
- Those two pieces of evidence are, metaphorically, "a smoking gun" and strongly indicative that it was the father who shook the child even if he had not admitted it. However, there is no "smoking gun" and no such indicative evidence whatsoever as to which parent did, or probably did, cause the rib fractures, or any of the bruising other than the fingertip bruising to the arms. I am left with the certainty that one of them caused the injuries and the sustained denial by each that he or she did so.
- I am clear in this case that I cannot, and do not, find on the balance of probability that the mother caused the rib fractures or any of the bruising. As there is no smoking gun and no indicative evidence of the kinds referred to above, there is simply no basis upon which I could conclude that it is probable that the mother caused any of those injuries, the more so when it is known that the father did later cause the shaking injuries in an act of loss of self-control. The mother was not a reliable witness and did tell lies, but all of her lies are entirely explicable by her appreciation that she was so neglectful in protecting her child and getting prompt medical help. They are in no way probative that she herself injured the child.
- At paragraph 4 of her written closing "Submissions on behalf of the child" dated 15 February 2018, Miss Jane Curnin, who appears on behalf of the guardian, wrote as follows:
"If the court cannot find on a balance of probabilities it was, for example, the mother who caused the rib fractures, it does not follow that it was the father and vice versa. Each proposition is to be decided on the evidence. It is necessary to approach the issue in this way to avoid inadvertently reversing the burden of proof. The parents do not have to show that they did not do something."
I agree with that approach and warning, and I direct myself by it. Although I have just stated that I do not find on the balance of probability that the mother caused the injuries, it does not follow that the father probably did so. If it did, there could be no "pool" outcomes in cases such as this, although, as I have described, the law recognises that in some cases there have to be. So I must give quite separate and discrete consideration to whether I consider that the father probably caused the injuries, no higher standard of proof being required.
- In his case, too, there is no smoking gun and no indicative evidence in relation to any earlier injuries than the shake. Further, he is entitled to make the point, and does make the point, that he owned up relatively swiftly (before the end of Saturday, 19 August) to that which he admits, namely the shake. He later pleaded guilty at, I understand, the earliest opportunity. So he is entitled to make the point that if he had squeezed the child so as to cause the rib fractures, he would have owned up to that as well. In my view, however, there is a combination of factors in this case which do establish, without in any way reversing the burden of proof, that it is probable that it was the father who did on an earlier occasion so severely compress or squeeze the baby as to fracture her ribs.
- First, the mother was both trained by her degree, and experienced by her work, in child care, although not of babies under about 3 months of age. As was submitted to me, even trained and experienced carers of children may, sadly, sometimes abuse a child, just as trained and experienced nurses may sometimes abuse or even deliberately kill a patient. Nevertheless, I do consider that it is inherently less likely that this trained and experienced mother would have a loss of self-control and violently harm the baby than the father, who admits he had previously had absolutely no experience of babies. The mother would be less likely to lose control; and if she did feel she was losing control, more likely to adopt a safe strategy, such as placing the crying or fractious baby down and walking away while she recovered her own composure.
- Second, the father has an aggressive, violent and angry disposition, as I have held in relation to his relationship with the mother and, indeed, with Miss Richardson before her. Of course, it does not at all follow because a man is aggressive towards his partner or spouse that he will necessarily be aggressive towards his child. A cruel partner or spouse may still be a model parent; but, in my view, I can take into account his propensity to anger and loss of control.
- Third, and it is a separate point, I can take into account the later admitted violent shaking injury. At my request, Miss McCallum did some research into whether it is permissible to argue back from a later admitted injury some propensity so as to make it more probable that the same person caused an earlier one. I was most grateful to her for her "Further written submissions re issue of propensity/similar fact evidence" dated 14 February 2018. I have borne that document and the authorities referred to within it carefully in mind, and I incorporate her document into this judgment by reference. The document can, of course, be shown if appropriate to any subsequent court dealing with this case, whether on appeal or otherwise.
- I wish to stress very strongly indeed that I do not regard or treat the fact alone that the father caused the later shake as itself probative that he caused the earlier rib fractures. That would, in my view, be far too big a jump, and such an approach would amount to my falling into a trap; but I do consider that the fact that the father caused the later shake does add some additional weight or support, when taken in conjunction with other factors, for a conclusion that he probably caused the rib fractures.
- Both events almost certainly involved a loss of self-control. There is no suggestion in this case of any deliberate or sadistic abuse of the baby by anyone. The likely mechanisms of both injuries do, in fact, have considerable similarities. Each involved gripping the child tightly, probably under the arms and armpits in the case of the rib fractures, and possibly outside the arms (pinning them to the body) in the case of the shake. The difference between then squeezing the chest hard or shaking the baby by someone suffering a temporary loss of self-control is slight as to mechanism, although of course gravely and markedly different in its consequences.
- Fourth, the rib fractures are estimated to have occurred not later than about 5 August 2017. If it was the mother who caused them, she must have known that she had done an abusive act upon the child and she is likely to have appreciated that ribs were, indeed, fractured or the baby otherwise harmed, but she took the baby to the GP on 11 August 2017. That, in my view, tends to point away from her having been the abuser.
- No one of the above points is alone decisive or probative, but when I stand back and ask, did the father probably cause the rib fractures, the points in combination satisfy me on the balance of probability that he did do so. Despite the expressed equivocation of the local authority and the guardian, I am judicially quite satisfied to the required standard of proof that the father caused them.
- I therefore hold that the father did cause the rib fractures on some unknown date, but on or before 5 August 2017, by some compressive or squeezing mechanism. The degree of force required was abusive and he must have known immediately, and still know now, that he had seriously abused and potentially harmed so small a baby.
- Some of the above factors or points do not apply in the same way to the bruising. The mechanism of the bruising is unknown, but different from the gripping of the baby in the squeezing injury which fractured her ribs, or the shake. There is no factual similarity. The bruising did not necessarily result from a loss of self-control or anger, and may have been the product of rough and unacceptable, but essentially impatient handling.
- The dating of the bruises is unknown and, accordingly, the fact that the mother took the baby to the GP on 11 August may be irrelevant. The GP did not record any bruising, and it may have occurred after that date. However, the salient fact remains that the mother is a trained and experienced handler of young babies and small children. Her performance at her work (apart from her many absences after she met the father) appears to have been entirely satisfactory. The father, on the other hand, had absolutely no previous experience of handling babies.
- It is, in my view, inherently less probable that the mother handled the baby so roughly as to cause the bruising, and relatively more probable that the father did so. One or other, or both of them, must have caused the bruising, and I am satisfied that it was probably the father. I cannot say precisely how, or when, or on how many separate occasions. In the case of the bruising, he may not necessarily have appreciated at the time that he had handled the child so roughly as to cause bruising.
The failure to protect the child and neglect in seeking medical care
- Having already described and analysed the facts above, I can state my conclusions on this issue relatively more shortly. On my findings, the father squeezed the baby on or before 5 August 2017 with sufficient force to fracture several ribs. He must have appreciated, when he recovered his composure and reflected on what he had done, that he might have caused internal harm to the baby, although he might not have appreciated that he had actually fractured several ribs. He took absolutely no steps whatsoever, then or in the ensuing two weeks, to seek medical care or advice for the baby.
- The father did know on and after 11 August that the mother had herself taken the baby to the GP that morning. Nothing very alarming had emerged from that examination, and the father may, indeed, have hoped and believed after that that the baby was unharmed by what he did. Paradoxically, if he had not shaken the baby on 18 August, she may never have been taken to hospital, a skeletal survey may never have been done, and the fractures might never have been detected.
- The father clearly immediately knew he had done something terrible before about 7.30 a.m. on the morning of Friday, 18 August, for it was then that he began his internet searches and made the video. He did absolutely nothing to ensure that the baby received medical help, even though his searches and the video reveal his own anxiety and concern.
- In his oral evidence the father said during cross-examination by Miss McCallum, on behalf of the local authority, that he did not know whether the baby was going to live or die and that if he had found her in the state he observed her to be in, he would have rung 999 without hesitation. The conclusion is inescapable. The reason why he did not seek medical help was that he knew it was he who had injured her and he was acting out of self-preservation.
- When the mother herself made the 111 appointment in the early hours of Saturday, 19 August, the father prevented her, on my findings, from going. Later, he went back to bed and slept while the mother was finally taking the baby to hospital, only to be awoken by his father who was asked to go round to do so.
- In my view, these facts disclose at least two periods of culpable neglect by the father to seek help for his child whom he knew he may have injured badly. First, the period between the date, whenever it was, but on or before 5 August, when he fractured the ribs until, at any rate, the morning of 11 August when, as he knew, the mother did take the baby to the GP; second, the period of about 28 hours after he shook the baby until the baby was, in fact, taken to hospital, though not by himself. The fact that the father positively prevented the mother from keeping the 111 appointment at 3.45 a.m. aggravates the neglect.
- In my judgment, these neglects by the father were grave, selfish, callous, inexcusable and very culpable. He, unlike the mother, knew what he had done. He himself said that he feared the baby might die. The only reason he did not actively seek medical help can have been selfish self-interest. He did not want to get caught and decided to hope for the best.
- The mother, too, seriously neglected her baby. It is an aggravating feature in her case that she is, indeed, trained and experienced in child care and, frankly, a higher standard of care and attention may have been expected of her. I readily accept that she may have had no appreciation at all that the baby's ribs had been fractured. Indeed, when the GP examined the baby on 11 August, he does not appear to have noted anything significantly wrong; but the GP's notes do record that the mother was advised to seek medical advice a.s.a.p. in the event of drowsiness, respiratory distress or the baby being unwell. The baby did remain unwell throughout the next week, for she was often off her feeds and frequently sick. If she had heeded the GP's advice, the mother should, in my view, have taken her back to the GP when, after a day or two, the baby showed no sign of improving.
- The mother failed to take the baby to hospital later on 11 August as advised by Mrs. Mitchell after Mrs. Mitchell had seen the blood on her lip. So far as that discrete failure is concerned, I am prepared to accept that the mother did examine the lip and did satisfy herself that the cause of the blood was chapping, and reasonably decided that it was not necessary to seek medical help for a second time that day. I do not condone her lie to Mrs. Mitchell that she had done so.
- The neglect intensified from the time that the mother saw and heard the video around 11 a.m. on Friday, 18 August. She should clearly have appreciated that there was something wrong with the baby, and taken action. Whatever her earlier uncertainty or reservations may have been, once the mother saw what she herself considered to be fingertip bruising on both arms around 7 p.m. that day, she must have known that the father had significantly abused their baby.
- The level of the mother's own concern is patent from the time she made the first 111 call. I have found and accepted that the father assaulted the mother on 19 August and that by violence and threats he prevented her from keeping the first appointment; but she seems meekly to have gone back to bed with him and taken no further steps to seek help until she made the further 111 call around 10 a.m.
- It is mitigation that, as I have found, the mother was the victim of violence, abuse and control, but she failed to prioritise her baby. I do not characterise the failures and neglect by the mother as callous, since she herself did not actually know what had been done to the baby. I do not characterise them as inexcusable, in the light of the abuse and violence upon her; but nor do I characterise them as excusable or excused. They were serious and fell far short of what is to be expected of any caring mother and especially one with her training and experience.
- In my view, the mother has carried ever since the child was first admitted to hospital on 20 August, and still does carry, a great burden of guilt. She knows that she let her child down. That probably accounts for most of her lies.
- It follows from the above that the threshold criteria for making full care orders or other public law orders are clearly established in this case. The parties must now take stock and, probably tomorrow, I will now consider with them the way forward.
AGREED SUMMARY OF THE LAW
1. It is suggested that the relevant applicable principles are as follows:
- The Local Authority has to prove its case on a balance of probabilities: there is no burden on any other party or intervener to prove anything.
- The Mother must prove her case in relation to domestic abuse (Annex A to the threshold findings) on a balance of probabilities: there is no burden on the Father to prove anything.
- The court should attempt to identify a perpetrator of the inflicted injuries if possible but should not strain to do so.
- If it is not possible to identify a perpetrator on balance of probabilities the test to be applied is whether there is a "real possibility" that other individuals were responsible.
- In this case it is accepted that in the event that the Court cannot identify the perpetrator of some of the non-accidental injuries, the Mother and Father would placed in the pool of perpetrators on the basis that there is a real possibility that either could be responsible.
- A finding that the Mother remained in the pool of perpetrators for one or more of the injuries would be a relevant finding to consider at the welfare stage of this case.
2. The legal principles relating to finding of fact hearings can be found summarised in any number of recently reported cases. For example, Munby P drew together all the salient legal principles in paragraphs 20 to 24 of his judgment in Re X (Children) (No 3)  EWHC 3651 (Fam), in which Baker J's judgment in Re L and M (children)  EWHC 1569 was cited. Munby J added to these points four further principles in Re Y (Children) (No 3)  EWHC 503 (Fam) paragraphs 17-23. Similarly, at paragraphs 4 to 10 of the Judgment of Jackson J (as he then was) in the case of Re BR (Proof of Facts)  EWFC 41, the principles applicable were set out clearly and concisely.
3. These principles can be summarised as follows:-
- Burden of proof lies with the Local Authority (and in this case with the Mother in relation to the domestic abuse allegations).
- Standard of Proof is the balance of probabilities; to be applied with common sense.
- The court can have regard to inherent probabilities but this does not affect the legal standard of proof.
- Consider each piece of evidence in the light of other evidence; 'the wide canvas'.
- Expert opinion is important but it is one type of evidence and the Judge must weigh all the evidence and it is the judge who makes the final decision.
- The Court must ensure that Experts remain within the bounds of their expertise.
- Evidence of the parents and carers are of the utmost importance and the court must form a clear assessment of their reliability and credibility.
- Failure of the parents to establish an affirmative case does not of itself establish the Local Authority case.
- The parents' qualities as parents are not of themselves any assurance that they would not have acted in the way alleged by the LA.
- Common for lies to be told; Court must bear in mind the Lucas Direction
4. The law is clear that for an allegation to become a fact, it must be proved applying the legal standard. It is not appropriate to find that something "might" have happened; The "binary approach". As Lord Hoffmann observed in Re B (Care Proceedings: Standard of Proof)  UKHL 35
"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."
5. Findings of fact must be based on evidence (including inferences that can properly be drawn from the evidence) but not on the basis of suspicion or speculation; Re H and R (Child Sexual Abuse: Standard of Proof)  1 FLR 80; Re A (A Child) (Fact-finding hearing: Speculation)  EWCA Civ 12.
6. Equally, so far as the identification of a perpetrator is concerned, that exercise also simply requires a finding on the balance of probabilities.
7. There are particular benefits in making a finding identifying a perpetrator. The main reason is that it will promote clarity in identifying the future risks to the child and the strategies necessary to protect him from them. Another important reason is that it will enable the professionals to work with the parent and other members of the family on the basis of the judge's findings. There are also arguably long term benefits for the child in knowing the truth as to who injured them [Re SB  UKSC 17] .
8. The Court should therefore firstly consider whether it can be satisfied on the balance of probabilities who is the perpetrator of each of the non-accidental injuries.
9. However, if the evidence does not permit such a finding and the Court is genuinely uncertain after weighing and considering it, the Judge has a duty to say so. Re D (Care Proceedings: Preliminary Hearing)  EWCA Civ 472. The Court should not strain to identify the perpetrator. As Lord Justice Wall stated at para 12 in Re D:
"If an individual perpetrator can be properly identified on the balance of probabilities, then ... it is the judge's duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification."
10. If the Court cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators [para 40 Re SB ]. What is the test to identify who should be in the pool of possible perpetrators? The test introduced by North Yorkshire County Council v SA  EWCA Civ 839 and approved in Re SB  is whether there is a "real possibility" that a particular person was involved [para 43 Re SB].
11. In the event that the Court cannot identify the perpetrator to the requisite standard the Court should be cautious about amplifying a judgment in which it has been unable to identify a perpetrator: "better to leave it thus" [para 44 Re SB]. This was in a context where the Judge at first instance had been invited to give an indication of percentages.
12. In the present case it is accepted that in the event the Court cannot identify the perpetrator of the rib fractures and/or metaphyseal fractures, the Mother and Father are within the pool of perpetrators on the basis that they both had care and there is a real possibility that each was responsible.
Implications of a 'pool' finding
13. Having established the facts, the Court will in deciding what order, if any to make, analyse the facts in the context of the welfare checklist and will be assisted by social work and possibly other expert opinion and by the Children's Guardian. A 'pool finding' will be a relevant but not determinative factor.
14. Any 'pool finding' that a parent has possibly caused harm will be a relevant consideration when considering the future care of the child. It is not, as with any finding, determinative of a particular outcome but the first of the three questions in any care case, namely; 1) is there harm, or likelihood of harm 2) what is the harm or likelihood of harm attributable to and 3) what will be best for the child? (Re J (Children)  UKSC 9 paragraph 2).
15. There may be implications for the care of future children of a person identified as being a member of the 'pool of possible perpetrators'. This will be fact specific and the court will be asked to consider whether the threshold is met for such other children based upon facts found in an earlier case.
16. In Re J (Children)  UKSC 9 the Supreme Court confirmed MacFarlane LJ's rationale in Re S-B  1 AC 678 that what is impermissible, was to make a 'pool finding', that there was a real possibility a parent had caused harm, the only basis for predicting that the parent was likely to cause harm to a child in the future. Re J confirmed that it would not be possible to establish possible future harm if predicated upon past possible harm alone. Being consigned to the pool of possible perpetrators falls short of a finding that a person has caused injuries. It is a highly relevant fact that will be considered alongside other findings (if any) made alongside the 'pool finding' and/or other relevant current facts (paragraphs 51-53); a truly 'one point' case is rare.