England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
Sitting at SHEFFIELD

		17/12/2014

HHJ TROY:

The Child

1. In these proceedings the court is concerned with one child [name – "CS"], a boy, born on [date] and now aged 10 months.
2. His parents are the First and Second Respondents to the proceedings – [name – "Mother"] and [name – "Father"].

The Proceedings

3. On 9^th May 2014, the Applicant Local Authority applied for a care order in respect of CS with an interim care plan providing for him to be placed with foster carers whilst investigations were undertaken into the nature and cause of injuries which it appeared he had sustained.
4. On 15^th May 2014, CS was made the subject of an interim care order and he has remained in foster care for the duration of these proceedings. At the first case management hearing on 22^nd May 2014, His Honour Judge Barber directed that there should be a finding of fact hearing in these proceedings prior to the final hearing.
5. The Applicant Local Authority invites me to make a series of findings of fact set out in a schedule dated 10^th November 2014 and on the basis of the findings made to determine that the threshold criteria set out in Section 31 of the Children Act 1989 are met in this case.
6. Included in the schedule are findings which I am invited to make in respect of CS' Paternal Grandmother [name], Paternal Grandfather [name] and Maternal Grandmother [name]. They have each therefore been made interveners in these proceedings.
7. CS is represented in these proceedings through his Children's Guardian Ms Benavithis.

Legal Principles to be Applied

8. In analysing the evidence and determining what findings of fact it would be appropriate to make in this case, there are a number relevant legal principles to be applied.

First – the burden of proof

9. The legal burden of establishing the existence of the threshold criteria set out in section 31[2] of the CA 1989 rests on the applicant for a care order. In cases such as this where allegations of non-accidental injury are made, Lord Justice Ward in the case of Re: M [a child] [2012] EWCA Civ 1580 points out that the court must be particularly careful not reverse the burden of proof so that the parents are placed in the position of having to satisfy the court that "injuries" have an innocent explanation as opposed to requiring the applicant local authority to prove that they do not.

Second – the standard of proof

10. In her judgment in the case of Re: J [2013]UKSC 9 Supreme Court Justice Lady Hale reviews the authorities dealing with the issue of standard of proof and at paragraph 15 emphasises that

the standard of proof is the simple balance of probabilities; and

"likely" in Section 31[2] does not mean "more likely than not"; rather it means likely in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.

11. In the case of Re: B [Care Proceedings: Standard of Proof] [2008] UKHL 35 Baroness Hale made it plain that:

"Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies…'.

12. This aspect of the issue of the standard of proof – the issue of inherent probabilities - was considered by the Court of Appeal in the case of Re: R [a child] [2013] EWCA Civ 899. Lord Justices Tomlinson found that

"it is an essential part of the judicial fact-finding exercise that the judge must test the conclusions to which the scientific and other evidence seem to lead against the inherent probabilities".

13. In the case of Re: S-B [Children] [2009] UKSC 17 the point is made that when the court is invited to identify the perpetrators of an injury the same standard of proof applies to the findings to be made as applies in respect of any other finding of fact –

"the test to be applied to the identification of perpetrators is the balance of probabilities."

Third – the evidence

14. It may appear self-evident, but it is the case that findings of fact must be based on evidence – a point emphasised by Mumby LJ in his judgment in the case of Re: A [Fact-finding hearing: Speculation] [2011] EWCA Civ 12 – in the following terms

–"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."

15. I bear in mind that when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence – as Dame Elizabeth Butler-Sloss P explains in her judgment in the case of – Re: T [2004] EWCA Civ 558

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

16. Whilst the appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in a position to weigh up expert evidence against the other evidence – see A County Council & K, D & L [2005] EWHC 144 [Fam] – Charles J. In this context, the evidence of the parents and any other carers is of utmost importance – see Re: W and another [Non-accidental injury][2003] FCR 346.

Fourth - Witnesses who lie

17. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R –v- Lucas [1981] QB 720 applied in care proceedings – see A County Council & K, D & L [2005] EWHC 144 [Fam] – Charles J.

Fifth - Unknown causes

18. Hedley J – Re: R [Care proceedings: Causation][2011] EWHC 1715 Fam –"There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
19. The court must resist the temptation identified by the Court of Appeal in R –v- Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of an injury to a child.

Fifth - Possible perpetrators

20. When seeking to identify the perpetrators of injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator – see North Yorkshire County Council –v- SA [2003] 2 FLR 849. This point was reiterated in the decision of the Supreme Court in the case of Re: S-B referred to above.
21. Although it is in the interests of the child and the public interest that those who cause injuries are identified, it is not necessary to do so in order to find that the requirements of Section 31[2] of the Children Act 1989 are met as Lord Justice Ryder explains in his judgment in the case of Re: S [a child][care proceedings: non-accidental injuries][2013] EWCA Civ 7.
22. At paragraph 18 of his judgment he states:

"It is trite law that the terms of s.31[2] do not import blameworthiness for the significant harm that has been suffered by the child. It is sufficient for it to be proved that the care given to the child is not what it would be reasonable to expect a parent to give to him and that is an objective test having regard to the subjective needs and characteristics of the child in question.[19] However desirable it may be, it is not necessary to identify a perpetrator for a care order to be made or to put it in the words of Lady Hale at [23] and [36] of Re:J and Lord Nicholls in Lancashire CC –v –B [2000] 1 FCR 509 @ 516:

the attributability condition can be satisfied when there is no more than a possibility that the parents are responsible. Furthermore, the threshold can be crossed even though the identity of the perpetrator remains unknown.

Sixth - Significant Harm

23. The notion of significant harm is to be considered in context, including the cultural, social and religious circumstances of the particular child and family – see Re: A [Care Order: Significant Harm] [1994] 2 FCR 125, Re: K A Local Authority –v- N [2005] EWCA 2956
24. Only when children are put at unacceptable risk should there be intervention – Re: B [sexual abuse: standard of proof] [2008] UKHL 35.
25. The harm must be significant enough to justify the intervention of the state and disturb the autonomy of parents to bring up their children in the way they choose – Re: MA [care order: likelihood of significant harm] [2009] EWCA 853.
26. In this case, because the harm which the child is said to have suffered is physical harm in the form of fractured bones and bruising, it has not been suggested that the harm is not significant.

Seventh – The Objective Standard

27. In determining whether requirements of Section 31[2] of the Children Act 1989 are met, it is not necessary to determine issues of blame or intent. As Lord Justice Ryder finds in his judgment in the case of Re: S [a child] EWCA Civ 25 at paragraph 19

'The term "non-accidental injury" may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a "catch-all" for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of s 31(2).

[20] The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of s 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, "accidental injury" is an oxymoron that is unhelpful as a description.

[21] The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided.

Events Prior to the Commencement of Proceedings

28. CS' parents had been in a relationship for two years prior to his birth and lived together. CS is their first and only child.
29. Following his birth, CS lived with his parents in the home they shared. Both parents had been in full time employment prior to the birth working shifts. Father took two weeks leave at the time of CS' birth and Mother was on leave from CS' birth until 31^st March 2014 though she did work occasional shifts from the time when CS was three weeks old. The parents were assisted in caring for CS by members of the paternal family.
30. A pattern developed over the weeks which followed CS' birth whereby during periods when Father was at work, Mother had sole care of CS and during periods when Mother was at work, Father had sole care of CS and they would spend time caring for CS together. When both parents were working, when Mother gave Father a lift to or from work, or when Mother was working and Father was sleeping, CS was cared for by the Paternal Grandmother with other members of the paternal family including occasions when CS stayed overnight at the home of the Paternal Grandparents, sleeping in the same room as his Paternal Grandmother.
31. There were difficulties in the relationship between CS' parents which led to their separation on 29th March 2014. Father left the family home and returned to live with his parents, CS' Paternal Grandparents, but arrangements for CS' care continued much as before until 22^nd April 2014.
32. CS was not known to social care services prior to his admission to hospital but, in view of his age, CS was seen by Specialist Community Public Health Nurses [the "Health Visitors"] on a regular basis and had attended two appointments with General Practitioners.
33. In preparation for a visit by CS to the local clinic arranged for 22^nd April 2014, Health Visitor Ms Welsby reviewed CS' notes. She identified that his weight gain had been slow, so that his weight had fallen across two centile lines when plotted on the developmental chart, and he had been seen by a GP and another health visitor to have bruising. Ms Welsby spoke by telephone about CS to the Paediatric Registrar at the local hospital, Dr Thekkekhara. Dr Thekkekhara immediately recognized that CS was a child in need of detailed review and advised that he should attend at the hospital.
34. Ms Welsby also spoke to GP Dr Dales who agreed to see CS in her surgery that afternoon. Dr Thekkekhara contacted the GP surgery to advise that CS should attend hospital and this advice was passed to CS' parents who did then take CS to the hospital.
35. On examination, CS was found to have sustained bruising to his face and was detained for further investigations. A CT scan of CS was undertaken at 13:44 on 23^rd April 2014 and a skeletal survey followed at 14:27 the same day. Fractures to his ribs and left leg were identified and investigations followed into the cause of the bruising and fractures sustained.

Events Following the Issue of Proceedings

36. HHJ Barber granted permission for the joint instruction of Consultant Paediatrician Dr Mecrow to provide a report about all of the injuries CS had sustained and of Consultant Paediatric Radiologist Stephen Chapman to provide a report about the fractures identified on x-ray examination of CS, the proper interpretation of which had been the subject of discussion between the treating radiologists.
37. During her pregnancy with CS, Mother suffered with pruritis [itching skin] for which she was prescribed a steroid known as Prednisolone and she was concerned either that this prescribed drug had caused CS to bruise easily or had been a contributory factor in his suffering fractures. Permission was granted for the joint instruction of Consultant Paediatric Haematologist Dr Jeanette Payne to prepare a report in these proceedings addressing this issue.

Expert Evidence

38. The court has received a report from Consultant Paediatric Radiologist Dr Stephen Chapman dated 14^th July 2014 and an addendum dated 19^th September 2014.
39. Dr Chapman reviewed the x-ray images of CS and confirmed that he had suffered four rib fractures and two metaphyseal fractures to his left leg, one to the femur and one to the tibia. The images also show what he describes as a "multi-layered periosteal reaction" along the shaft of the left tibia representing

"a further component of the force that caused the metaphyseal fracture of the left distal femur".

40. Dr Chapman's view is that the rib fractures were sustained in the period between Wednesday 19^th March 2014 and Wednesday 26^th March 2014 [the period 4 to 5 weeks prior to examination by x-ray when CS was aged between 9 and 10 weeks old]. The metaphyseal fracture of the left tibia was suffered between Wednesday 26^th March 2014 and Wednesday 9^th April 2014. The metaphyseal fracture of the left femur was suffered between Wednesday 26^th March 2014 and Wednesday 23^rd April 2014 [when CS was aged between 10 and 14 weeks old].
41. There were a minimum of three separate applications of force required – one to cause the rib fractures, a second to cause the fracture to the femur and a third to cause the fracture to the tibia – but both metaphyseal fractures could have been sustained on a single occasion.
42. Given CS' age and the nature of the fractures sustained, they could not in Dr Chapman's view be self inflicted. There was no medical explanation for the fractures such an inherent weakness in bone structure and Dr Chapman confirmed that the steroid prescribed to the Mother during her pregnancy, Presdnisolone, was not relevant to the causation of the fractures.
43. The parents reported an incident on Friday 21^st March 2014 when CS was travelling in his car seat in a supermarket trolley. Mother was pushing the trolley towards a zebra crossing in the supermarket car park when she accidentally ran into a low metal bollard fixed on the pavement at the midway point where the crossing and the pavement meet. She could not see the bollard and there was a significant impact when the trolley collided with it.
44. Although there had been no visible injuries to CS as a result of this incident, the parents wished experts to consider whether he had in fact sustained any injuries in this incident.
45. Dr Chapman describes in detail the nature of the forces involved in causing the rib fractures sustained by CS as severe squeezing/compression of the chest. The site of the fractures and the nature of the forces required to cause them allowed Dr Chapman to exclude possible mechanisms such as a heavy object falling onto CS' chest [though it had never been suggested that such a thing had happened to him] leaving only the squeezing of the chest as an explanation. The metaphyseal fractures Dr Chapman reports are the result of a pulling/twisting force applied to a limb and do not occur during normal or even rough handling.
46. He explains why in his view the incident with the shopping trolley on 21^st March 2014 could not have caused the fractures to CS' ribs. He reports that rib fractures of the type suffered by CS are not seen in infants secured in a car seat even in road traffic accidents as the forces involved would not cause fractures in the position seen in CS. Similarly, the pulling/twisting forces involved in the metaphyseal fractures could not have been generated by this impact.
47. The incidents when CS sustained his fractures would have been memorable to the perpetrator or any observer of the events. In the absence of any other account of significant accidental trauma – it is Dr Chapman's opinion that

"the fractures represent at least 2 episodes of inflicted trauma".

48. Asked to comment on CS' presentation after the leg fractures had been sustained – Dr Chapman states

"He might have shown local tenderness of the leg but it would probably have [been] fairly difficult for a lay person to correlate the distress with the site of injury, particularly if that carer was not suspecting an injury.

49. There was no challenge to Dr Chapman's evidence.
50. Consultant Paediatric Haematologist Dr Payne prepared a report about CS dated 6^th November 2014. She examined CS on 3^rd November 2014, took and analysed a blood sample and reviewed the documentary evidence. She concluded that:

"The investigations that have been done to assess the clotting of CS's blood indicate no evidence of a bleeding disorder.

..no haematological reason has been found to explain CS' multiple bruises and overall there is no evidence that he has a significant bleeding disorder

… even if there was an abnormality on a clotting test this does not predispose a child to fractures."

51. This evidence was not the subject of challenge.
52. Consultant Paediatrician Dr Mecrow gave oral evidence, having provided reports to the court dated 29^th July 2014 and 30^th October 2014.
53. At paragraph 50 of his report, Dr Mecrow explains how difficult he has found it identify the dates when each of the bruises sustained by CS was first observed – a difficulty I have shared.
54. At paragraph 55 he states:

"It would seem likely therefore that CS had sustained a minimum of two episodes of confirmed bruising of the skin in the period between 13^th March 2014 and 22^nd April 2014.

55. This report was prepared before Dr Mecrow had been supplied with a photograph of CS taken on 26^th February 2014 during a visit to the home of the Maternal Great Grandfather. Dr Mecrow explained in his oral evidence that the photograph was sufficient clear for him to conclude that there had been a bruise to CS' forehead. He described it as "fairly significant" and said that he would have been "extremely worried about its potential for causation" had he seen such a bruise to such a young child.
56. There also appears to be a mark to CS' left cheek on the photograph but Dr Mecrow was cautious about forming any view about this on the basis of the photograph alone, speaking of the difficulties faced in the printing of photographs of the quality required to form the basis for such a diagnosis.
57. Dr Mecrow explained both in his report and in his oral evidence that it is "exceptionally uncommon in infants" of CS' age to see bruising. This view was supported by medical research and by Dr Mecrow's own extensive experience in this field.
58. He reports – at paragraph 58 of his report [page FA55r]

"even a single unexplained bruise in a non-mobile infant under six months of age is a relatively unusual event and it should be noted that CS is recorded as having had more than one episode of bruising."

59. Dr Mecrow pointed out that the bruising reported to CS' chin or jawline and to his knees is in areas in which it is unusual for bruising to be seen – such bruising as has been observed in non-mobile infants being found only overlying the bony prominences of the forehead and shin. He concluded that "very much the most likely cause of bruising in a non-mobile infant is non-accidental mechanism" and "in a non-mobile infant where there is unexplained bruising and also the presence of unexplained fractures, non-accidental injury is overwhelmingly likely as the cause in my opinion". That having been said Dr Mecrow emphasised in his oral evidence that caution is required in determining how many incidents of injury causing bruising have occurred in a situation where a bruise was not seen by any medical professional and bearing in mind that tiny bruises in particular may have an accidental explanation. The court should not, in his view, count up each bruise no matter how small and determine that each bruise necessarily represents a separate occasion where CS was injured.
60. Dr Mecrow was in no doubt that a carer inflicting an injury resulting in a bruise to CS would have been aware that CS was suffering pain and distress – pointing out that babies suffering minor bumps which do not cause a bruise still cry. The position was not the same though for carers who did not observe an incident causing a bruise. He noted that Health Visitors and General Practitioners had not been particularly concerned about CS and therefore he said that he could not "be too critical of non-perpetrator carers". In response to questions on behalf of the Applicant Local Authority on this point, Dr Mecrow's view was that it was difficult to be clear whether not doing anything about a bruise is acceptable in a carer and it was not automatic for parents to recognize the need for medical review of bruising.

Evidence of Medical Practitioners and Family Members

61. It is against this background that I then heard the evidence of the General Practitioners and Health Visitors who had seen CS prior to his admission to hospital, and from his parents and other family members.
62. In addition to statements from both parents and records of police interviews, there are extensive records in the court bundle of exchanges between the parents by text message and using the service WhatsApp.
63. Although CS was not seen by any medical practitioner during the period when the fractures were sustained, he was examined by General Practitioners and Health Visitors during the periods when he was seen to have bruises and, bearing in mind that CS' parents were separated and that the court is invited to include the Paternal Grandparents as potential perpetrators of these injuries, I considered the evidence about bruising in detail. If it had been possible to identify a period when a bruise was sustained, and if it had then been possible to establish in whose care CS had been at that time, this evidence may have assisted in identifying the perpetrator of injuries to CS.
64. That having been said, I agree with the submission made on behalf of CS that the court must be cautious before determining that CS suffered a bruise which was the result of an injury in circumstances in which that bruise was not observed by any medically trained professional.

Birth to age 6 weeks

65. As is routine for a newborn baby, CS was seen at home by his Health Visitor on 27^th January 2014, 3^rd February 2014 and 17^th February 2014. During this period, both parents found caring for CS challenging. For a short period it appeared that the Mother might be suffering from problems with her mental health, sharing with her Midwife her worry that, on one occasion, she had felt she might shake CS or could at least understand how mothers came to do such a thing in her circumstances. However, this problem was resolved within a matter of days.
66. There were no concerns about CS at this time.

Bruising to the head and face – aged approximately 6 weeks

67. Both parents have said in police interviews, in statements filed in these proceedings and in their oral evidence that CS was observed to have marks to his head and face which had all the characteristics of bruises and which they described as bruises when he was approximately 6 weeks of age – so around the 26^th February 2014.
68. The parents were still living together at this time but the Paternal Grandmother had begun to assist the parents in caring for CS when both were working or when the Mother drove the Father to his place of work.
69. The first bruise observed by both parents was a bruise to CS' left cheek. Mother said that at the time she assumed this bruise was sustained during an incident when a small rubber teething toy in the shape of a giraffe named Sophie had fallen onto CS' face as he lay in his Moses' basket. She had spoken to the Father about this bruise and about her assumption as to the cause and Father confirmed in his evidence that he had seen the bruise, giving his own description of it.
70. At paragraph 25 of her statement dated 7^th July 2014 and in her oral evidence, the Paternal Grandmother also described seeing this bruise. After seeing it, the Paternal Grandmother informed the Mother that she did not believe that a rubber teething toy had caused the bruise. She said that she was later informed by the Mother that CS was to have blood tests to identify whether or not he was suffering from a disorder of the blood which would mean that he bruised easily.
71. Both parents also report seeing a small bruise on CS' chin at around the same time as the bruise to his cheek. The Father remembered this bruise because he was asked by the Mother "if I handled him rough".
72. It is possible that this is one of the small bruises observed on CS' chin by [name – the "Paternal Great Aunt"] on a shopping trip with the Paternal Grandmother, her sister. The Paternal Great Aunt noticed bruises to CS' jawline when her sister gave her permission for her to push CS along in his pram so that she was looking at CS from the foot of his pram and she was able to see under his chin. The sisters discussed these bruises at the time. The Paternal Grandmother informed her sister that CS had a blood disorder which would explain the bruising.
73. On 25^th February 2014 the Mother sent texts to the Father as follows:

02:30:14 CS has another mark on back of his head. I'll show u in morning.

07:57:20 that red mark on his head is now a bruise

07:58:39 looks like we batter him

08:15:22 im just trying to work out why our son is covered in bruises

74. The parents discussed this bruise together. They brought a padded changing mat down from the room upstairs where CS had a cot so that it could be used for nappy changing downstairs after having discussed the possibility that it had been caused during a nappy change on a hard surface.
75. During this period, the Mother took CS to visit his Maternal Great Grandfather and a photograph taken during this visit dated 26^th February 2014 shows the bruise to CS' forehead referred to by Dr Mecrow as well as what appears to be a bruise to his left cheek.
76. On 27^th February 2014, the Mother sent the Father a message which reads – "hows he got the bruise on his nose?" - to which the Father replies – "What bruise?" Mother described this bruise as tiny – the size of the tip of one of CS' fingers. Father describes the injury he observed as a tiny scratch rather than a bruise as did the Maternal Grandmother.
77. The first recorded discussion of bruising to CS with any medical professional is to be found in notes made by Student Health Visitor Ms Beever following a routine home visit on 4^th March 2014. Only the Mother was present at home with CS on this occasion.
78. During that visit, Ms Beever said that she had been informed by Mother that CS "had had two little bruises on his face last week, one on his chin and one near his nose". Ms Beever recorded that there was no bruising visible to her on the day of her examination. She explained that she was informed that the bruising had been "mentioned to the GP" who had no concerns about him.
79. In fact, CS had not been seen by a General Practitioner at that time. He was first seen by GP Dr Bowns who examined CS on 13^th March 2014 and administered his first immunisations.

Bruising to the knee[s]

80. On a date unknown but prior to 13^th March 2014, the Paternal Grandmother and her daughter [name – the "Paternal Aunt"] had spent time caring for CS at the Mother's home whilst she drove the Father to his place of work. The Paternal Aunt noticed a small bruise on each of CS' knees when she removed his legs from the baby grow he was wearing to change his nappy under the supervision of the Paternal Grandmother. The bruises were pointed out to the Mother by the Paternal Grandmother when she returned home.
81. Both parents were present during CS' first consultation with his GP Dr Bowns on 13^th March 2014. After he had completed his examination of CS, Mother pointed out to Dr Bowns that CS had a bruise on his knee. Dr Bowns described the bruise as "barely visible but there" and "faint brown". He recorded the bruise he saw as being "over right lateral knee". Informed by the Mother that she felt CS bruised easily, he advised that a blood sample should be taken from CS and sent for analysis to determine whether there was any abnormality of the blood causing CS to bruise easily. However, taking a blood sample from such a young child was not something that was routinely undertaken in the GP surgery and Dr Bowns had to make enquiries about the correct procedure for obtaining a blood sample. This he did after his consultation. He then contacted the Mother by telephone on 18^th March 2014 and advised that CS should taken to the local hospital for a blood sample to be obtained and that a form completed by Dr Bowns requesting the sample was available for collection from the surgery. The form was collected but CS was never taken to hospital for a sample to be obtained.
82. CS was seen by Health Visitor Ms Beever in her clinic on the day following the visit to the GP – Friday 14^th March 2014. Both parents attended the clinic with CS.
83. Ms Beever recorded seeing "two small bruises to his knees" but she agreed in response to questions that it may have been two bruises on one knee. Ms Beever was informed that CS had seen the GP the previous day and recorded that "GP has suggested a blood test for CS as he appears to be bruising very easily. This is in hand with the GP at the time of writing".

The Fractures

84. CS did not see any health professional during the period when his rib fractures and the fracture to the left tibia were sustained [between Wednesday 19^th March 2014 and Wednesday 9^th April 2014].
85. None of the witnesses called gave an account of any incident or accident involving CS which could account for the fractures he sustained.

Bruising to the chest

86. No medical advice was sought following the incident in the supermarket trolley on 21^st March 2014 in which CS was involved but both parents report having seen a bruise to CS' chest which they each attributed to this incident. Both described the bruise during their oral evidence as being much larger than others they had seen to CS.
87. Health Visitor Ms Gaskell saw CS in her clinic on 11^th April 2014. No bruises were visible at this time but due to concerns about his poor rate of weight gain, his pale appearance and on being informed by Mother that CS had not been taken for the blood test "related to the bruising he gets .. due to some family circumstances [dad reported to have 'left]", Mother was advised to take CS to see his General Practitioner again.

Bruising to the jawline

88. On 14^th and 15^th April 2014, the parents exchange messages about CS which suggest that he spent the period from late afternoon on 14^th April 2014 until early evening the following day at the home of the Paternal Grandparents. Father sent a message to the Mother at 15:26:20 on 15^th April 2014 which reads:-

"hes got a little bruise under his chin i think its where his dummy has been cis its that shape".

89. Mother took CS to see GP Dr Sriram on 16^th April 2014 and he gave oral evidence. His memory of the consultation was understandably limited but his clear view was that he was asked to see CS about poor weight gain. The fact that CS had sustained bruising on more than one occasion was not raised with him and he saw no bruising himself.
90. Asked by the Father about the purpose of the appointment in a text message sent at 13:57:17 on 16^th April 2014 the Mother states:

"its about the weight loss".

91. Dr Sriram's notes of this visit reads:

"was advised by health visitor – to see GP. wt picking up but dropped on centile chart. no concerns from mum."

92. Dr Sriram could not recollect advising the Mother to put the form she had collected requesting a blood test to investigate possible causes of bruising in the bin as she has alleged he did – but then he did not recall speaking to Health Visitor Ms Welsby on the telephone about his consultation with the Mother the following day and Ms Welsby made a note of this conversation. Given the nature of this consultation it is not surprising that Dr Sriram's recall was limited to what he recorded in his notes. Ms Welsby's note made on 17^th April 2014 records that Dr Sriram:

"confirmed that no blood tests were being considered at this time because he had no concerns."

93. In a text message sent by the Mother to the Father at 16:16:04 on 16^th April 2014, in response to a text from the Father asking what the doctor had said, she says:

"wants to see him in a month but not unduly worried and he doesn't have to have blood test xx".

94. It is not clear whether the bruise to CS' chin described in the text message sent on 15^th April 2014 was visible by the time of the visit to Dr Sririam on 16^th Aprl 2014 but it is clear that following that appointment and prior to CS' admission to hospital on 22^nd April 2014, he sustained bruising to his jawline to the left of his chin.
95. It appears from text messages that CS spent almost the entire period from the evening of Wednesday 16^th April 2014 to the evening of Friday 18^th April 2014 at the home of the Paternal Grandparents although the Father worked a night shift on 16^th April. There was a period of approximately one hour during the evening of 17^th April 2014 which CS spent with his Mother at her home, before he returned to the care of the paternal family to spend the second night in their care.
96. On 17^th April 2014, the Maternal Grandmother made the following entry in her personal diary:

"Mother rang me for a chat says CS has another bruise on his chin How! Father seems to think CS' dummy has pressed into his chin could have I suppose."

97. At 10:29:15 on Saturday 19^th April 2014 the Mother sent the Father the following message:

"that bruise on his chin is horrid!".

98. It appears that CS spent Saturday 19^th April 2014 overnight to Sunday 20^th April 2014 in the care of his Mother.
99. Sunday 20^th April 2014 was Easter Sunday and CS was seen by a number of relatives, both maternal and paternal, during the course of that day.
100. Maternal Grandfather [name] gave evidence having filed a statement dated 11^th September 2014. Maternal Grandfather spoke of seeing CS on Easter Sunday at Mother's home when a bruise to CS' jawline was pointed out to him. Maternal Grandfather recollected that the bruise was to right of CS' chin and pointed to an area on his jawline to the right of his chin in giving his oral evidence. This was the only bruise he had seen on CS, though he had seen him regularly.
101. There is an exchange of messages providing evidence that CS spent the night of 20^th April 2014 which was Easter Sunday at the home of the Paternal Grandparents although the Father was working a night shift. There was a message at 15:35 on 20^th April 2014 sent by Mother to Father which reads:

"is ure mum ok having him tonite? wish them happy easter. he's still got his bunny suit on xx"

102. The messages cannot be understood in any context other than CS having spent the night of 20^th April at the home of the Paternal Grandparents. There is even a message sent on 26^th April 2014 by the Mother asking the Father to return the bunny suit referred to in the message sent on 20^th April 2014.
103. The messages also provide evidence that CS was returned to the Mother's home at 17:00:52 the following day – Monday 21^st April 2014 – by the Father who waited at the Mother's home with CS until the Mother returned from work and then left CS in her care. CS spent the night of 21^st April 2014 in his Mother's care before seeing the Health Visitor the following day.
104. However, the Paternal Grandmother was adamant that CS spent the night of Monday 21^st April 2014 at her home in her care and appears to have convinced the Paternal Grandfather of this – though I noted that during his oral evidence on this point he glanced across the courtroom seeking reassurance from the Paternal Grandmother that the account he was giving accorded with her views.
105. During the period leading up to 22^nd April 2014, the "Paternal Aunt" was living at home and had a boyfriend who was a regular visitor to the family home – [name –"JC"]. On one occasion, close to Easter or on Easter Sunday itself when CS was spending the night at the home of the Paternal Grandparents, JC saw bruising to CS' jaw to the left of his chin and took a photograph of the bruising using his mobile telephone.
106. JC gave oral evidence about this. The photograph extracted from the mobile telephone is dated 16^th April 2014, but JC explained that he had been having difficulties with the mobile handset he used at the time which had led him to reset the date and time on the device. To say that he was vague about the precise date when the photograph was taken and events surrounding this incident is to fail to give a full picture of the hesitant manner in which he gave his account. He was suggestible and appeared fearful in giving his evidence. However, he was absolutely clear that he had drawn the attention of the Paternal Aunt and then the Paternal Grandmother to the bruising before taking the photograph and that on observing the bruising the Paternal Grandmother in particular became distressed.
107. It is not obvious why JC was so fearful in attending this court as he was never alone with CS, no findings are sought against him and he appears to have taken all reasonable steps to draw attention to CS' injuries including alerting his carer and photographing the injury he saw.
108. The Paternal Aunt agreed that JC had pointed out bruising to CS' jawline to her. She said paragraph 15 of her statement signed on 6^th September 2014 that she had seen a bruise "a couple of days earlier" and she reiterated in her oral evidence that she had seen a bruise to CS' chin "a couple of days before Easter Sunday". However, in paragraph 16 of the same statement she says that JC showed her "three little bruises that looked [sic] three little finger prints" .. "and I had not seen the bruises before".
109. The Paternal Grandmother acknowledges that when the bruising to CS' jawline was brought to her attention by JC and the Paternal Aunt she thought they represented finger marks. She asked the Paternal Grandfather and a friend of hers present visiting the home [name – the "Family Friend"] to look at the marks and she was of the same opinion. She described herself as "greatly distressed" and asked the Father about them on his return from work.
110. [Name – the "Paternal Cousin"] was living with the Paternal Grandparents during April 2014. She also saw the bruising to CS' jawline on Easter Sunday which she described as "yellowy purpley" in colour.
111. The Paternal Grandmother states that she informed the Father of her intention to "phone social services" about the bruising she had seen to CS. In her oral evidence she spoke of taking CS to the hospital. She recalled caring for CS overnight on Monday 21^st April 2014, repeatedly stating in her written and oral evidence that she dressed CS on the morning of Tuesday 22^nd April 2014. However, asked about the text messages demonstrating that CS was returned by the Father to the care of the Mother on the evening of Monday 21^st April 2014, the Paternal Grandmother appeared to agree that she must be mistaken in her recollection of events.
112. Health Visitor Ms Welsby saw CS at the Mother's home on 22^nd April 2014 – a visit arranged for 17^th April 2014 having been cancelled by Mother. She asked for CS to be undressed so that she could weigh him, which Father did, but Ms Welsby did not see any bruising to CS until a mark on his face was pointed out to her. On closer examination, Ms Welsby identified two faint marks on CS' jaw close to and to the left of his chin.
113. Ms Welsby contacted GP Dr Dales who agreed to see CS in her clinic that afternoon. She examined CS, inspecting his face where the parents pointed out to her that the bruising had been, but states:

"I could not see any conclusive evidence of bruising".

She advised that CS needed an assessment by a paediatrician but allowed the parents to return home. It was only after her consultation that Dr Dales was informed that Paediatric Registrar Dr Thekkekhara was so concerned on hearing the account of bruising and weight loss in a child then aged 13 weeks that she directed that CS should attend hospital for assessment immediately. Dr Dales then arranged for the parents to be informed that they should take CS to the hospital.

114. During her examination of CS, Dr Thekkekhara found that he had two faint bruises 0.5 x 0.5 cm on the left side of his chin. No other injuries were apparent at that time. She spoke to CS' Mother, Father and Maternal Grandmother separately in the presence of social worker Andrew Davies but she had no recollection of speaking with the Paternal Grandmother.
115. In her report, Dr Thekkekhara records the Mother having said that she had been advised by the Paternal Grandmother to "please be careful about Social Services or they will take away your child". It was pointed out to her that her handwritten note simply recorded the words "Be careful social services" but she explained that she had used this note to remind herself of the whole of what had been said bearing in mind that this was a conversation taking place late in the evening when a large volume of information was provided to her by different family members. She used the notes to write her report days later.
116. Asked about the bruising to CS' chin, Father told Dr Thekkekhara that there had been another bruise closer to the midline of CS' chin a few days earlier not visible at the time of the examination.
117. Social worker Andrew Davies also gave evidence about events at the hospital on 22^nd April 2014. He did see the bruises to CS' jawline but he explains that it was difficult to see the bruises explaining:

"CS had to be laid down in order for the bruises to become visible".

Evidence of Family Members

118. Mother has consistently stated that she did not inflict any injuries on CS and did not observe anyone else injure him but she now accepts that he has been injured. She spoke of the difficulty she had faced in coming to accept that anyone had injured CS.
119. In her oral evidence, Mother was asked to look at the series of text messages passing between herself and Father which include references to CS having bruises. Mother said that she did not remember one bruise described in a message as appearing on the back of CS' head but she stated that she had seen so many bruises on CS around that time that it was difficult for her to remember a single bruise. She agreed that she had seen a bruise to his cheek [pointing to her left cheek], to his nose, two to his left knee and one to his chin or jawline. She had been reminded of a bruise to his forehead on seeing a photograph of CS taken during a visit to CS's Great-Grandfather.
120. The first bruise to appear – the bruise to CS' left cheek – Mother believed at the time to have been caused by a toy giraffe falling onto CS but she now understood the expert evidence to be that it is highly unlikely that such a bruise would have been caused in this way.
121. Mother had seen bruising to CS' chin and had accepted the explanation offered to her by the Father which was that this was caused during his winding of CS. She had seen a bruise to the back of CS' head which she assumed had been caused by the Paternal Grandmother handling CS roughly when changing his nappy but she had not seen this as malicious rather as an indication that more care was required.
122. The explanation given to the Mother for the two bruises she saw on CS' left knee was that it had been caused by his knee hitting the legs of a coffee table whilst being changed. Mother could not recollect whether it was the Father or the Paternal Grandmother who first gave this explanation, though she said that it was Father who had given this explanation to the Health Visitor.
123. Speaking of the visit to GP Dr Bowns when bruising to one of CS' knees was observed, Mother was adamant that she had informed the Doctor that CS had suffered bruising to his face in addition to the bruising seen on examination that day, though she accepted that she had not set out in detail each of the individual bruises she had seen.
124. Mother had agreed to take CS for a blood test when advised to do so and collected the form required from the GP surgery. However, she accepted that she had never taken CS for a blood sample to be taken. She gave a number of explanations for this. She said that she had been scared the process of obtaining a blood sample would hurt him. She said that she was scared that the test would reveal that there was some medical problem and she "didn't want to know". She also agreed that she had told Health Visitor Ms Welsby she was afraid that the test would reveal that there was no medical problem and therefore that someone was hurting CS – something she did not want to believe. Overall, Mother accepted that she should have taken CS for the recommended blood test.
125. Returning to consider the bruising observed after the visit to Dr Bowns, Mother assumed that the bruise she saw on CS' chest, near his left nipple, had been caused during the incident in the supermarket car park by the strap on the car seat and she accepted the explanation given by Father for the bruising to CS' jawline seen on his admission to hospital – namely that it had been caused by pressure from CS' dummy when he felt asleep resting on it.
126. Mother agreed that she could see, looking back, that she could and should have done more to protect CS. She described herself as "giving herself explanations" for the bruises she saw. The bruising had been so extensive at one stage that Mother had been reluctant to take CS out in public, fearing that anyone observing him "covered in bruises" would think "My God someone's hurt that baby".
127. Mother said that the Paternal Grandmother had told her not to mention the bruising to CS' health visitor as that would lead to social workers taking CS from her care. She believed that the Paternal Grandmother had some experience of being involved with social care services in the past and she had felt intimidated by the Paternal Grandmother.
128. In text messages sent to the Father, the Mother describes her distress on discovering that he had entered into a relationship with another woman and the difficulties she faced in caring for CS. The Father invites the court to take these messages, together with an incident in November 2013 when the Mother accepts she slapped the Father, into account in determining the identity of the perpetrator of injuries suffered by CS. The Mother explained that, in her messages, she was exaggerating her distress and the challenges she faced in caring for CS to make it clear to the Father how badly she felt he had behaved in forming another relationship so soon after their separation leaving their son without a stable family to care for him – seeking attention and sympathy and seeking to cause the Father to feel guilty about his conduct.
129. During her oral evidence, the Mother was asked an extremely long, rambling and vague question by Counsel for the Applicant Local Authority. In the time it took for the question to be asked, and then for my intervention seeking to determine what the witness was being asked and to direct that proper questions were posed, I noted that the Mother occupied herself in reflecting upon her own situation and how unfair she perceived it to be that she was being asked about injuries to CS when the Father was not. In her responses to the questions which followed, the Mother used the same type of language used in her text messages to the Father, seeking sympathy for her situation, and I accept entirely her account that the text messages were exaggerated expressions of her feelings having seen for myself the same behaviour from the witness box.
130. The Father denied causing any injury to CS and did not observe any other person inflicting injuries upon him.
131. In his evidence, the Father was deliberately vague and guarded in his responses to questions. I take into account the difficulties all witnesses in this case faced in recalling events now some seven or eight months ago. Nevertheless, it was plain that the Father had determined in advance of stepping into the witness box not to provide any information which might then be used to establish his role in caring for CS. Asked about matter which he might reasonably have been expected to recollect, the Father qualified almost every response he gave with expressions such as "to the best of my knowledge" or "I can't say 100%" or "probably".
132. The Father accepted that he had been aware of the bruising to CS cheek and chin and to the back of his head when he was aged 6 weeks. He did not recollect the bruise to the forehead and he felt the mark to CS' nose described by the Mother as a bruise was a scratch but he had been aware of the bruising to CS knees and agreed that it was possible that those bruises had been present when he bathed CS before the Paternal Aunt discovered them. Asked about those bruises he had seen, the Father said "I never thought nothing about it".
133. The Father described attending appointments with the Health Visitors and with the GP but "let the Mother do the talking with the doctors", saying that he was not paying much attention.
134. The Father did say that he now feels guilty about not doing anything about the bruises he observed to CS. He also agreed that he had done nothing about arranging for CS to have a blood test, saying by way of explanation that the Mother was more organised than him. However, he knew that no testing had been done, because he informed the Paternal Grandmother that CS had not had blood tests when she said that she understood that the tests had detected a blood disorder.
135. The Father denied being pre-occupied with pursuing a relationship with another woman, the daughter of the Family Friend, though he accepted that he did exchange text messages with her and went on to form a new relationship within a matter of days after his separation from the Mother.
136. The Mother invites the court to consider the Father's attitude in forming a new relationship so soon after CS' birth, together with his responses to questions and behaviour in the witness box and information about mental health difficulties he faced as a young adult in determining the issue of who inflicted injuries suffered by CS. However, his behaviour, though it does him no credit, does not establish that he inflicted injuries upon CS.
137. The Paternal Grandmother denies causing any injury to CS and gives no account of any accident or incident involving CS whilst he was in her care.
138. She agrees that CS was in her care, both at the Mother's home when the Mother was giving the Father a lift to work and at her own home including periods when the Father was at work and periods when the Father was at home but sleeping after working a night shift.
139. The Paternal Grandmother, in her statement dated 7^th July 2014 and in her oral evidence, speaks of being informed by the Mother that CS was to have blood tests for a potential blood disorder. At paragraph 27 of her statement, she explains that her daughter [name – the "Paternal Aunt"] informed her after speaking to the Mother that blood test results were awaited so that she assumed the blood sample had been taken and that the Mother later informed her that CS did have a blood disorder. The Paternal Grandfather gives a similar account of events at paragraph 21 of his statement signed on 8^th July 2014.
140. The Paternal Aunt spoke of being informed by the Mother that CS had a blood disorder and of passing this information on to the Paternal Grandmother. She gave the same account in her statement dated 6^th September 2014.
141. The Paternal Cousin spoke of an occasion when the Mother was at the home of the Paternal Grandparents. Sitting in the dining room, the Mother informed the family present that CS had a blood disorder. This news had caused her Paternal Grandparents great distress.
142. It was clear, listening to the accounts of members of the Paternal family about the issue of a blood disorder, that they had discussed this matter at length and had convinced one another that, prior to CS' admission to hospital they had been informed by the Mother that he had a blood disorder. It is equally clear to me that the Mother did not do so – though she did explain that she had been advised to take CS for blood tests for a blood disorder and that no doubt caused distress to all the family members.
143. The Paternal Grandfather denies causing any injury to CS and does not recall any accident or incident in which CS was involved in his presence. In fact, the Paternal Grandfather suffers from a number of health problems and is in the habit of sleeping in one of the downstairs rooms in the family home. Though delighted to have a grandchild, he has consistently described his role in the care of CS as being limited to two brief occasions when he was asked by the Paternal Grandmother to take over the care of CS early in the morning when CS had spent the night at his home sharing the Paternal Grandmother's bedroom. He was asked to "watch" CS. He was not involved in dressing, bathing or feeding, these tasks having been completed by the Paternal Grandmother in an upstairs room before CS was brought downstairs to him.
144. The Paternal Grandfather was aware of the bruising to CS' jawline which he observed on Easter Sunday. He understood that the Paternal Grandmother was to contact social care services about CS if the Health Visitor who was due to see him did not do so. In his oral evidence he accepted that he and the Paternal Grandmother could have phoned social care services about the bruising to CS's jawline seen over the Easter weekend and kept CS in their care – indeed, he said that he did contact social care services by telephone to inform them about the bruising to CS after his admission to hospital.
145. The Maternal Grandmother denies causing any injury to CS and does not recall any accident or incident in which CS was involved in her presence. She did not have the sole care of CS during the period when he sustained his injuries.
146. The Maternal Grandmother was aware of bruising to CS when he was around six weeks of age – she describes a mark on one side of his nose and two little brown marks on his chin. She was also aware of the bruise to CS' forehead seen on the photograph taken during the visit to the Maternal Great Grandfather but had assumed at the time that the bruise had been caused in an incident when she bumped heads with CS when she was wearing her spectacles.
147. The Maternal Grandmother had been aware that CS had two marks on his knees and one on his chest though she did not see these for herself. She explains that she was informed by the Mother that CS had seen the GP and his Health Visitor and that there was nothing to worry about. At one stage she understood he was to have a blood test, but she later came to understand that it was not required.
148. Attached as an exhibit to the Maternal Grandmother's third statement in these proceedings are copies of the entries she made in her personal diary for the year 2014. The Maternal Grandmother explained that her diary is a document kept for her own personal use and her embarrassment on finding that the whole of her diary for 2014 had been copied and distributed to the parties in these proceedings as an exhibit to a statement prepared by the Solicitors instructed to act on her behalf at the time was palpable. She denied fabricating entries in the diary when this was put to her.
149. It appeared at one point in her evidence that the Maternal Grandmother accepted having failed to protect CS from harm – though in my judgment this was at a point when she was speaking with the benefit of hindsight and in the knowledge of CS having sustained fractures. In her closing submissions to the court, the Maternal Grandmother made it clear that she does not agree that she failed to protect CS prior to his admission to hospital, though she does now wish she had done more to protect him from harm.
150. The Maternal Grandmother has attended for the majority of this finding of fact hearing, representing herself, though there have been occasions when she has been absent from the courtroom due to her distress. She has also had sight of all the documentary evidence filed. It was therefore concerning to note that, at points during her oral evidence, the Maternal Grandmother found it difficult to speak of CS having sustained injuries and in my judgment was plainly finding it difficult even at this stage in the proceedings to accept that her grandson has been harmed.

Findings of Fact

151. Relying upon the evidence of Dr Chapman and Dr Payne I find that CS suffered:

i) fractures to anterolateral arc of the left 4^th, 5^th, 6^th and 7^th ribs; and

ii) metaphyseal fractures of the left distal femur and left distal tibia.

152. Having considered the evidence about how such fractures could occur, excluding as it does any possibility that these fractures were either self-inflicted by CS when he was less than 14 weeks old, or the result of inadvertent rough handling by a carer or any accident or incident which a carer might not recognize as having caused injury to him, or the one accident involving the supermarket trolley which has been reported, I am driven to the conclusion on the balance of probabilities that each of the fractures suffered by CS were injuries and not result of any accident. In respect of the rib fractures it is possible to go further based on the evidence of Dr Chapman as to mechanism and I find that The rib fractures were inflicted by severe squeezing/compression of CS' chest.
153. In considering the evidence about bruising, I bear in mind the caution required in making findings of fact in respect of those bruises not observed by any medical professional. However, there is clear evidence from both parents, in accounts given to on CS' admission to hospital supported by evidence in statements they have filed giving details of discussions at the time about the possible cause of the bruise involving the rubber toy giraffe and in their oral evidence to support findings that CS – aged approximately 6 weeks – sustained a bruise to his left cheek.
154. Similarly, both parents reported seeing a bruise to CS' chin around the same time and this injury was reported to Health Visitor on 4^th March 2014. I have not been able to determine whether this was the same bruise or one of the bruises noted by the Paternal Great Aunt and the Paternal Grandmother during their shopping trip. I therefore find that CS suffered a bruise to his chin when he was aged approximately 6 weeks.
155. There is evidence in the exchange of text messages – again supported by the accounts of both parents about discussions they had at the time and their actions in seeking to prevent further bruising – that CS had a bruise to the back of his head aged approximately 6 weeks old. Further, the photograph of CS taken together with Dr Mecrow's evidence and the oral accounts of the Mother and the Maternal Grandmother provide evidence that CS had a bruise to his forehead when he was aged approximately 6 weeks old.
156. The evidence about the mark seen on CS' nose is not sufficiently clear to support a finding of fact about this issue, particularly in the context of the caution Dr Mecrow explained was required in forming a view about tiny marks to the skin not observed by any medical professional.
157. There is evidence from both parents, from the Paternal Grandmother, the Paternal Aunt, GP Dr Bowns and Health Visitor Ms Beever to support a finding that CS sustained two bruises to his knee or knees before 13^th March 2014.
158. Both parents gave clear accounts of the bruise they saw to CS' chest in their oral evidence when they were each asked to give a description of it to the court. Although neither was able to give a clear account of when they first observed the bruise, there could be no doubt listening to their evidence that it was the largest bruise either parent had seen to CS and was plainly memorable to them. I find on the basis of this evidence that CS sustained a bruise to his chest in the period between 21^st March 2014 and 10^th April 2014.
159. The evidence about bruising observed in the days prior to CS' admission to hospital is unclear. However, looking across the accounts of each of the witnesses, the text messages sent at the time and the information given on CS' admission to hospital by both parents seen separately by Dr Thekkekhara I find that, in addition to the two bruises to CS' jawline observed on his admission to hospital, he suffered at least one further bruise to his jawline in the days prior to the 22^nd April 2014. It is impossible to understand the text messages exchanged at the time or the accounts of the parents and the Paternal Aunt in any other context.
160. It is not possible to determine precisely when the bruising was sustained or even when or by whom each bruise was first observed.
161. Although no accounts were given of any accidents or incidents which might account for any of the bruises to CS, it is possible for a child to suffer a bruise as a result of an accident. However, in this case I accept the evidence of Dr Mecrow about the sites of these bruises – all save the bruise to the forehead being in areas in which it unusual to see bruising – and his evidence about the significance of any bruising seen in a non-mobile child and find that each of the bruises I have identified as having been sustained by CS was an injury.

Identification of Perpetrators

162. Turning to the question of identification of a perpetrator, there is evidence that CS spent time in the care of each of his parents during the period when each of the injuries identified was sustained. Although it is inherently unlikely that loving parents would injure their own child, in this case it is established that CS was injured and therefore someone caring for him was responsible for injuring him.
163. The Paternal Grandmother assisted the parents in caring for CS throughout the period when his injuries were sustained. Although there were other adults present in the paternal family home when CS was there or accompanying her on visits to the Mother's home, in my judgment having listened to the evidence of each of the members of the paternal family there is no doubt as to who was primarily responsible for CS' care in that home. Witnesses spoke of asking permission from the Paternal Grandmother to bathe or feed CS. Even her own sister sought permission to take a turn pushing his pram.
164. There are references in the messages exchanged between the parents to the role of the Paternal Grandmother in the care of CS. By way of example, on 15^th April 2014 Mother sends a message to Father at 09:49:51 which reads:

"will u ask ure mum to undress him and bath him please?".

165. Later the same day, Father tells Mother:

"Oh I asked mum about if were working same days she sed ok xx"

and says

"mum will be having him tmorra nite n im having him thursday xx".

166. I find having considered the evidence about the role of the Paternal Grandmother that CS was primarily in her care and when other family members played a role in caring for him it was under her supervision and direction if not under her direct observation. However, this does not equate to evidence that she is a potential perpetrator of injuries to CS to the standard required. There were periods when she was the sole carer for CS and the evidence that the Paternal Grandmother has minimised the extent to which CS was in her care is clear and overwhelming. She has convinced herself that there were only as few as three occasions when CS stayed overnight in her home but the evidence from work records of each of the parents and text messages between them proves otherwise. Nevertheless, the Paternal Grandmother was for the most part caring for CS in her busy home, often in the presence of another adult or adults and it is the number of occasions during which CS has sustained injuries which must be taken into account here.
167. The evidence does not support a finding that the Paternal Grandmother is a possible perpetrator of the injuries sustained by CS. It is inherently unlikely that she would seize almost every opportunity she had to care for CS, either on her own or in the presence of another family member, to inflict injuries upon him and to be considered as a potential perpetrator this is what she would have to be found to have done.
168. There never was any evidence establishing a likelihood or real possibility that the Paternal Grandfather inflicted the injuries sustained by CS. Although the Paternal Grandfather did "watch" CS on two occasions in the paternal family home, CS has been injured on many more than two occasions. The Paternal Grandfather's role in the care of CS was extremely limited. He was not changing, dressing or bathing CS and it is quite clear that, if CS had needed care of this type or was otherwise distressed, the Paternal Grandmother would have been summoned to assist. It is impossible to imagine that the Paternal Grandfather secretly arranged opportunities to handle CS and then made use of those opportunities to inflict injuries upon him.
169. I have considered the submissions of both parents about circumstances relevant to the other parent which they rely upon in support of their case that they are not the perpetrator of injuries to CS. Unfortunately, none of the matters raised are capable, either individually or taken together, of proving who injured CS. Neither parent can point to a situation in which they received CS into their care after a period in the care of the other parent, noted a new injury to CS and immediately sought medical attention for him. There is material which demonstrates that either parent could have harmed CS and it is inherently unlikely that they both did so but in the absence of evidence establishing who was responsible for CS' injuries, the only finding I can make is that they are each potential perpetrators of the injuries to CS.
170. It is with regret that I find I am not position to determine, as between his Mother and his Father, who was responsible for inflicting injuries upon CS.

Failure to Protect from Harm

171. Looking at the issue of failure to protect CS from harm, I accept the evidence of Dr Mecrow supported as it is by events in this case that even a medically trained person examining a child who had sustained fractures of the type suffered by CS may well not detect that he had been injured. This is in fact exactly what happened to CS.
172. There is no evidence of a failure to protect CS or to seek medical assistance for him related to the fractures he sustained by a person who did not inflict the injuries and was not present when the injuries were inflicted.
173. In respect of the bruising, both parents were aware between 18^th March 2014 and 11^th April 2014 that a doctor – Dr Bowns – who observed only the bruising to CS' knees recommended that he should have a blood test. They both knew that CS continued to sustain bruising after this examination and they both failed to take CS for the blood test or to seek any other form of medical assistance for CS in respect of the bruises he sustained.
174. I accept that on 11^th April 2014 the advice given was to take CS to see his GP. Further, I accept that from 16^th April 2014 the parents believed that a blood test was no longer required. However, as soon as they observed further bruising to CS – and so prior to his admission to hospital on 22^nd April 2014 – medical assistance should have been sought for CS as a matter of urgency. These parents were both aware that neither of them ever spelt out in detail to any medical professional just how many bruises CS had suffered. They were aware that the one General Practitioner who did observe bruising, albeit minor bruising to a knee or knees, regarded this as sufficiently serious to advise that blood testing be undertaken.
175. I therefore find that both parents failed to protect CS from suffering harm, in failing to seek medical attention for him in relation to repeated occasions when they observed bruises on his body and in failing to take him for a blood sample to be obtained between 18^th March 2014 and 11^th April 2014.
176. In considering whether the Paternal Grandparents and the Maternal Grandmother failed to protect CS from harm, I bear in mind the evidence of each of the professionals who saw CS prior to his admission to hospital about the difficulties they experienced in detecting bruising to CS. Health visitors and General Practitioners only saw bruises drawn to their attention by the parents. Even after his admission to hospital, it was the evidence of Social Worker that the bruises to CS' face were only visible to him when CS was lying down, and that in circumstances in which he knew the child had bruises. I also bear in mind the evidence of Dr Mecrow about the issue of bruising not always being one which parents regard as something requiring immediate medical attention.
177. In the case of the Paternal Grandparents, I accept that until the week prior to 22^nd April 2014, they thought that CS had been seen by medical practitioners about the bruising he was suffering and was either undergoing tests for a blood disorder or had been diagnosed as having a blood disorder. However, the Paternal Grandmother was herself clear in her evidence that the final set of bruising seen on CS' jawline over the Easter weekend was not the result of any accident or blood disorder and the Paternal Grandfather agreed with her view. Nevertheless, the Paternal Grandparents did not take any steps to protect CS from harm they believed he was suffering. Instead, they allowed Father to care for CS himself and then to return CS to the care of his Mother.
178. In her oral evidence the Paternal Grandmother spoke of her plan "to take CS to hospital myself" because she believed the bruises she saw to CS' jawline were finger marks. She said, "He had clearly been hurt by somebody". However, she also spoke of her worry that if she had made a mistake or "been wrong" as she put it, she would have destroyed her family. She said decided not to call social care services so that "I would not have got the blame for them losing their child".
179. On the basis of this evidence I find that during the week between 15^th and 22^nd April 2014 the Paternal Grandparents failed to protect CS from harm by failing to seek assistance for him when they believed that he was suffering physical injuries.
180. That leaves the question of the role of the Maternal Grandmother. The Applicant Local Authority has presented evidence to the court from professionals trained in child protection about the difficulties they each faced in detecting any injury to CS. It was not just fractures which went undetected. The bruises suffered by CS were only ever seen when pointed out by the parents.
181. On the basis of this evidence, the Applicant Local Authority invites the court to find that CS' Maternal Grandmother, not trained in child protection and not having the child placed in her care, should have realized that the child was at risk of suffering significant harm and taken steps to protect him.
182. I am satisfied that both the Maternal Grandmother was aware that CS had sustained some bruises. However, she believed that this was a matter being addressed by professionals and she had no reason to suppose that all appropriate steps were not taken by CS' parents in respect of the bruising.
183. The Maternal Grandmother's diary – embarrassing to her as it was – provides evidence which has assisted in demonstrating that she was not concerned about CS. I do not believe she would have expressed her pleasure at having spent Easter Sunday with CS in her diary as she did if she had been worried about CS. I do not accept that the diary is fabricated. The entries are random thoughts about day to day matters such as family birthdays, the defrosting of the deep freezer and what the Maternal Grandmother thought of her most recent hair cut and it is most unlikely that the Maternal Grandmother would have been able to fabricate such a document.
184. The Maternal Grandmother did observe bruising to CS' face but she believed that steps were being taken to investigate this and she did not regard the bruises as a cause for alarm or requiring immediate medical attention. The evidence from medical professionals involved in CS' care establishes that it was not necessarily obvious that CS was in urgent need of protection.
185. I therefore find that there is no evidence before the court of a failure by the Maternal Grandmother to protect CS from harm.

Section 31[2] Criteria

186. I find on the basis of the matters set out above that the criteria set out in section 31[2] of the Children Act 1989 are met in this case

Court Bundles

187. The bundles for this finding of fact hearing were prepared with a total disregard for the terms of Practice Direction Part 27A – indeed it is impossible to imagine that the person preparing the bundles was even aware of the existence of the Practice Direction.
188. By way of example, the key evidence of expert witness Dr Mecrow was placed in a section of the bundle of the Applicant Local Authority's own invention marked FA, inserted between sections F and G for no obvious reason. This section began with the letter of instruction to the expert – to which no reference was ever made. The first page of the report was assigned the page number FA55a and the subsequent pages were marked with letters rather than Arabic numerals.
189. My preliminary view was that all the bundles should be removed from the courtroom and replaced by the Applicant Local Authority with bundles which did comply with Practice Direction 27A in every respect. I was persuaded not to make an order in these terms by Counsel for the children. The first witness at the finding of fact hearing was to be Dr Mecrow. It had been arranged that he would give evidence by video link and he had been provided with copy bundles in the form which they had been filed with the court for his use in giving evidence. It would have been difficult to arrange for Dr Mecrow to be provided with new bundles in the time available before he gave his evidence and the preparation of bundles complying with Practice Direction 27A would have required his evidence and the source material upon which he relied to be completely repaginated.
190. The Applicant Local Authority should not, however, assume or imagine that the terms of Practice Direction Part 27A do not apply to future hearings in these proceedings. The manner in which the bundles have been prepared for this hearing has resulted in very significant delay as advocates and witnesses alike have struggled to find documents to which they were referred. Paragraph 12.1 of the Practice Direction [Penalties for failure to comply with the practice direction] will apply to all bundles lodged by the Applicant Local Authority for future hearings in this case.

HHJ Troy

17^th December 2014