England and Wales Family Court Decisions (other Judges)

 

                                                                                                    Case No: WX14C00157

 

IN THE WREXHAM FAMILY COURT

 

IN THE MATTER OF THE CHILDREN ACT 1989

AND THE ADOPTION AND CHILDREN ACT 2002

 

AND IN THE MATTER OF P, KL, J, M AND K (CHILDREN)

 

Date: 3^rd October 2014

 

Before:

 

HIS HONOUR JUDGE GARETH JONES

 

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Between:

 

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Mr Michael Sellars of counsel for the Applicant Local Authority

Mr Daniel Dodd of counsel for the First Respondent

Miss Bethan Japheth of counsel for the Second Respondent

Mr Robert Hornby of counsel for the Third Respondent

Miss Catrin Cracroft, solicitor, for the Children’s Guardian

 

 

Hearing dates: 15^th - 19^th September, 30^th September 2014 and 3^rd October 2014

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APPROVED JUDGMENT

 

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JUDGMENT                                                                                                    3^rd October 2014

HIS HONOUR JUDGE GARETH JONES:

1.             I have before me applications for Care Orders in respect of five children together with a separate application for a Placement Order with regard to the youngest child of this sibling group.

2.             So far as the parties are concerned, for reasons of anonymity I will refer to them by initials.  The parties and their legal representatives are as follows;

3.             The Local Authority is A County Council, represented by Mr Sellars.

4.             The mother of the children, MB, is represented by Mr Dodd.

5.             The children who I will identify by their first names only are:

(i)            P born 23^rd December 2004, she is nine years of age;

(ii)          KL born 23^rd October 2006, she is seven years of age;

(iii)        J born 9^th November 2007, he is six years of age;

(iv)        M born 30^th December 2009, he is four years old;

(v)          K born on 1^st August 2013 and he is just over a year old.

6.             The father of the four eldest children (P, KL, J and M) is AB, and he is represented by Miss Japheth.

7.             The father of the youngest child K is KB and he is represented by Mr Hornby.

8.             The children have been represented by their solicitor Miss Cracroft and the Guardian Mrs Smith.

9.             This hearing began on 15^th September 2014 and continued on 16^th, 17^th, 18^th and 19^th September 2014.  It was then adjourned part-heard to 30^th September 2014, and it concludes today 3^rd October 2014.

10.         I have heard evidence from the following witnesses:

(i)            Dr Mecrow, a Consultant Paediatrician;

(ii)          Miss Kizilaslan, the key social worker in this case;

(iii)        Mr Newman, a Consultant Ophthalmologist;

(iv)        Dr Neil Stoodley, a Consultant Neuroradiologist;

(v)          The mother;

(vi)        KB;

(vii)      The mother’s older son, G;

(viii)    A neighbour of the parties, MH; and

(ix)        The Guardian, Mrs Smith.

11.         So far as AB is concerned, he did not give oral evidence during this hearing, but I have statements of evidence from him.

The background to the case

12.         In addition to the five infant children who are the subject of these proceedings, the mother has two adult children; G who is eighteen years of age, and D who is twenty-three years of age.  D has been convicted of manslaughter, and the mother told me that she had not seen him for some years.

13.         There has been local authority involvement with the family since approximately 2009, so that would be during the mother’s relationships with both AB and KB.

14.         The mother and AB had been together from approximately 2003.  Following the breakdown of the mother’s relationship with AB in September 2012, the mother formed a new relationship with KB shortly thereafter (he having moved from the W area [name of town given] to X [name of town given] in or about 2011).

15.         Accordingly, at all material times which are relevant to the Court’s threshold inquiry the mother lived with KB in A Street, X [address given] with the five subject children, but G lived in a separate self-contained flat within the same premises.

16.         The mother described the detached accommodation in her oral evidence.  The accommodation appeared to be relatively spacious with the living accommodation on the ground or the first floor, and three bedrooms and a bathroom spread over the three remaining floors, with the separate flat for G.

17.         MH (a family friend or a neighbour) lived nearby, as did some members of KB’s family.  This proximity gives rise to a continuing risk of contact between the mother and KB.

18.         K was born prematurely on 1^st August 2013 by a caesarean section at thirty-six weeks gestation at St M’s Hospital in M [name of hospital and city given].  The reason for this admission is set out in a separate report on the mother by Consultant Cardiologist Dr Peart.  The mother suffers from a congenital condition, namely a transposition of the great arteries, i.e. the aorta arises from the right ventricle and the pulmonary artery from the left ventricle.  When she was about two years of age, a Mustard procedure was undertaken designed to improve the circulation of the oxygenated blood.   This operation was successful.  Dr Peart has monitored the mother’s condition for some twenty-five years and a planned delivery at St M’s Hospital was required because of the mother’s medical condition.  The prognosis for the mother is set out at C104 paragraph 35.  She has been advised against further pregnancies (see C105 paragraph 24).  That is advice with the mother has hitherto ignored.  As a result of the mother’s medical condition the mother’s physical capabilities have been restricted.

19.         Following K’s birth, there was some jaundice but basically K was a well baby who was discharged home on 4^th August 2013 and seen by the health visitor initially on 12^th August 2013.  K made good progress when he was seen again by the health visitor on 4^th September 2013.  He had gained weight and his progress was good.

20.         On 16^th September 2013 K was seen at YGC Hospital [name of hospital given] for vomiting and constipation, and he was reviewed by the General Practitioner on 17^th September 2013.  Oral thrush was noted on 19^th September 2013.

21.         On 8^th October 2013 K was reviewed by the General Practitioner.  A smell of cannabis was detected but the General Practitioner also noted facial bruising.  However this was not subsequently confirmed at YGC Hospital by Dr Barnard a Consultant Paediatrician.

22.         On 14^th November 2013 and 12^th December 2013, K received his second and his third childhood immunisations.

23.         On 27^th November 2013, K was again reviewed by a health visitor and he appeared to be well and had gained weight.

24.         On 3^rd February 2014, K was seen by his General Practitioner.  He had a cough and antibiotics were prescribed, and K would have been then just over six months old.

25.         Two days later on 5^th February 2014, the Emergency Services were called to [address of K’s home given].  This would have been at approximately 6:58 a.m.  K was seriously unwell and his consciousness was impaired.  I will deal in due course with the medical evidence in greater detail, however in summary he had sustained:

(i)            a fracture of the right distal radius.  This had occurred in the timeframe 27^th December 2013 to 10^th January 2014;

(ii)          there was evidence of the ‘triad’ features giving rise to the identification of a non-accidental head injury (NAHI), namely bilateral subdural haemorrhages, bilateral retinal haemorrhages and encephalopathy.   There was also some mild hypoxic ischaemic injury;

(iii)        there were multiple soft tissue injuries with at least one area of bruising to the forehead being suggestive of a non-accidental injury (NAI); and

(iv)        police photographs revealed dirty finger nails, indicative of neglectful care in a child so young.

26.         The NAHI and the non-accidental bruising were sustained in far closer proximity to the time of K’s collapse/emergency admission on 5^th February 2014.  K was taken initially to YGC Hospital and he was transferred subsequently to AHC Hospital.  Ventilation in the Intensive Care Unit was required, and this near catastrophic collapse by K resulted in a joint Police and Social Services investigation.

27.         The mother and KB were interviewed by the North Wales Police on 5^th February 2014 and interviewed again in May 2014.  No charging decision has been indicated.

28.         In addition, the mother and KB have during the course of proceedings and since the events of 5^th February 2014, provided a number of developing accounts of what they respectively say happened to K (these will be referred to later).

29.         In early March 2014, the Local Authority initiated Care Proceedings.

30.         The four eldest children have been placed with their birth father AB.  He has been responsible for the provision of the mother’s contact during these proceedings.

31.         K has been placed with local authority foster carers.

32.         In the case of AB’s children, the Local Authority propose that they should remain with their father (AB) and should not be returned to the care of their mother.  During the course of this hearing, the Local Authority has modified its Final Care Plans for these four children and proposes placement of these four children with AB under a Final Care Order.  Amended Final Care Plans have now been produced, and this Plan for placement now meets with the approval of the Children’s Guardian.

33.         Provision is made for the mother’s contact (which will of course be subject to periodic statutory review).  Initially, this would be set at four times per week on a Monday, Wednesday and Friday and one day on the weekend, for approximately two to three hours.  There is provision also for telephone contact/text messages.

34.         Other support for AB is outlined, e.g. therapeutic assistance for the children, family support, attendance on a parenting course and assistance with literacy for AB.  Financial assistance for taxi journeys to school will be considered by the Local Authority and these Care Plans are supplemented by a Contract of Expectations.

35.         On grounds of safety, on 27^th August 2014 the Local Authority issued separately an application for a Placement Order in respect of K.  The Final Care Plan for K proposes a closed adoption, with limited indirect post-box contact for the mother and KB post-adoption.

36.         Assessments of alternative familial carers have not identified a safe familial carer and placement for K.  Therefore, the Local Authority contends that there is no other substitute placement which adequately provides for K’s welfare other than adoption outside the birth family.  I shall deal with these aspects in greater detail later.

The legal provisions to be applied in relation to threshold and the Care applications

37.         The Local Authority have prepared a Schedule of Findings/Threshold Document.  A significant component (but not the only component within that document) relates to the inflicted injuries (which I have summarised already).  The findings relating to K’s injuries are relevant to section 31(2) of the Children Act 1989, and also to section 1(3)(e) of the Children Act 1989 in relation to all of the children.  K may be the only child who has directly sustained physical harm but the risk of harm/likelihood of harm flows therefrom in relation to the other children as well.  Accordingly, K’s injuries identified after 5^th February 2014 are relevant to all of the children.

38.         The standard of proof applied by the Court is the balance of probabilities, and this applies not only to the identification of harm but also to the identification of any perpetrator of such harm.

39.         In this case, there is no real dispute medically with regard to the extent and the likely causation of K’s injuries.  I will consider later a Schedule of Medical Concurrence which has been completed in this case.

40.         The real issue revolves around the identification of any perpetrator.  All relevant factors can be taken into account in relation to this issue, but in this case there are only two potential perpetrators identified, namely the mother and KB.

41.         As Lady Hale said in the case of Re B [2008] 2 FLR 141 at paragraphs 31 and 32:

“Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe.  They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other and their overall impression of the characters and motivation of the witnesses.  The task is a difficult one.  It must be performed without prejudice and pre-conceived ideas, but it is a task which we are paid to perform to the best of our ability.  In our legal system, if a judge finds it more likely than not that something did take place then it is treated as having taken place.  If he finds it more likely than not that it did not take place then it is treated as not having taken place.”

42.         In assessing the inherent probabilities or improbabilities, in general it could be argued that the following propositions may be more probable, unless there is evidence of course which leads to a different conclusion:

(i)            perpetration by one individual, albeit in separate episodes of injury, is arguably more probable than perpetration by two individuals in separate episodes at different times.  A household where two carers are capable of causing separate episodes of injury to an infant is more improbable than a household where one carer is capable of doing so.  However, it is perfectly possible that a household can include two carers who are capable of hurting/injuring a child;

(ii)          it is more probable arguably that an incident of injury occurs within a domestic environment rather than outside in the open where a perpetrator runs the risk of being seen by and apprehended by a third party;

(iii)        perpetration in the absence of a witness rather than in the presence of a witness arguably again would be more likely, unless of course the perpetrator can rely on the silence or the collusion of any witnessing party.  This is because self-restraint or fear of ultimate detection would lead to such caution.  Of course, if two adults hurt or injure a child, each might have a reason to keep quiet about it;

(iv)        a finding that it is more probable that A is the perpetrator rather than B is not a conclusion that A is the perpetrator rather than B for certain, but rather that I conclude that there is more evidence in favour of A being the perpetrator rather than B.

43.         If I conclude in a case of NAI that I cannot identify a perpetrator to the necessary standard, then in an uncertain perpetrator case I must consider whether I can identify a group of possible perpetrators, applying the following test:  is there a likelihood or a real possibility that an individual was the perpetrator of the inflicted injury?  If I am able to identify a perpetrator, then I should do so.  However, I should not stain to do so where that is not possible.

44.         The threshold under section 31(2) of the Children Act 1989 could be satisfied if I conclude that either a parent was the perpetrator of an NAI or in an uncertain perpetrator case, if the group of possible perpetrators was comprised of the parents or a parent and a carer.

45.         If the Court makes findings of uncertain perpetration, then those caught in the group of perpetrators are treated as being possible perpetrators.  Accordingly, an innocent party may be tainted by an uncertain perpetrator outcome.  On the other hand, the consequences of the identification of an incorrect perpetrator could be disastrous for K and perhaps for other children as well.  Accordingly, the stakes are therefore extremely high.

46.         In this case there are substantial issues of credibility which relate to the mother and KB and to other witnesses as well.  They may have lied or they may have concealed the truth.  I remind myself of the guidance given in R v Lucas [1981] QB70.  A witness may lie for a variety of reasons and motivations which may not be related to culpability.  The fact that a person may lie about one aspect does not necessarily mean that he or she is lying about another aspect.  If there is no innocent explanation for a lie then it can be taken into account in my overall assessment of that witness.  The more signifant and the more frequent be the lying, then of course the more relevant it may be.

47.         In Care proceedings, if the threshold is established I must next consider the Local Authority’s Plans for each child, having regard to the paramountcy of their welfare and applying the so-called ‘checklist’ provisions under section 1 of the Children Act 1989. 

48.         In accordance with the Convention, a Care Plan must be a proportionate and necessary response to the risk of harm.  In Re B [2013] 2FLR 1015 a Care Order depriving a parent of his or her care of a child, particularly where this involves a placement outside the birth family by way of adoption, is to be considered as a last resort.  In cases involving adoption, a consideration of the ‘pros’ and ‘cons’ of each placement option is required.

49.         In the case of four of these children, an alternative familial placement with the birth father AB is proposed.  Prima facie this would not be a disproportionate outcome within the meaning of the Convention, however disappointing this outcome might be to the mother herself. 

50.         At the outset, the Local Authority maintained that MB and KB as K’s parents were possible perpetrators of NAI injuries.  The risk to K’s safety were he to be returned to the care of either parent would be unacceptably high, or depending upon the findings would be incapable of proper evaluation.  These injuries are multiple injuries caused in separate episodes when K was only months old.  This was not the result of a single loss of self-control in an isolated episode.  The risk to K’s future physical and emotional safety as a vulnerable infant would be unacceptably high and would rule out both parents as future potential carers.  That in essence was the Local Authority’s case.

51.         Since there is no alternative familial carer available, permanent care outside the birth family is the only proportionate response.  That again is the Local Authority’s case.

52.         I will deal in a separate section of this judgment with the specific legal requirements for a Placement Order.  However, the division of this judgment into separate headings is intended to provide some structure to the judgment and assist with its clarity, and is not intended to restrict “a proper holistic evaluation of the central welfare question”, and I am well aware of the observations of McFarlane LJ in the case of Re C [2013] EWCA Civ 1257 at paragraph 28 and 29.

K’s medical presentation and the suggested methods of causation

53.         The medical features summarised by me above are significant.  Subdural bleeding, retinal haemorrhaging and encephalopathic illness, where they exist, represent those features which are suggestive of NAHI and that remains the position of the Court of Appeal (Criminal Division) reported in the case of R v Harris, Rock, Cherry and Faulder [2008] 2FLR 412.

54.         In this case the so-called ‘triad’ injuries suggestive of an NAHI are coupled with the fracture and the soft tissue injuries which I have already mentioned.  For the purposes of this section, a number of medical reports from a variety of sources have been obtained and considered.  However, since there is no dispute about the medical evidence, I propose to rely primarily in this section upon the second opinion reports of Dr Mecrow the Consultant Paediatrician, Dr Stoodley the Paediatric Neuroradiologist and Mr Newman the Consultant Ophthalmologist.

55.         More particularly, there is also a Statement of Medical Concurrence which summarises the agreed medical position in this case and for these purposes that document (see E458 to E465) can be read into this judgment.

56.         I deal firstly with the intra-cranial injuries.  There was evidence of acute (recent) subdural bleeding at several sites, evident by the brighter colouration of the neuro-imaging.  This was also evident in the spinal canal from the lower thoracic to the lumbo-sacral regions (see E139).  That is of importance, according to Dr Stoodley, because it supports a finding of an NAHI as opposed to an accidental causation.  Because in cases of accidental head trauma, spinal subdural haemorrhages are unusual in the absence of direct trauma to the spine (see E145).  There is no indication of an external trauma to the spine in K’s case.

57.         The neuro-imaging also revealed the presence of a darker coloured material at several but differing sites which could represent an earlier chronic bleed.  This difference between the darker coloured and the lighter coloured presentation is due to the changes in haemoglobin over time.  However, Dr Stoodley believes this darker material to be a mixture of acute blood and cerebro-spinal fluid (CSF) which has leaked into the subdural space as a subdural effusion and not a chronic older bleed.  On a balance of probability, Dr Stoodley still believed that the darker material was due to a traumatic effusion (which is common in children), and I shall proceed on that basis. There was no reported change in K’s head circumference, which is sometimes an indicator of a chronic bleed.

58.         In his oral evidence, however, Dr Stoodley sounded a cautionary note.  There was evidence of a membrane formation at one site at the left frontal region which was evident in the neuro-imaging.  The presence of membrane formation was supportive of an older (chronic) subdural bleed at that site.  However, Dr Stoodley was uncertain what the cause of that previous episode of subdural bleeding might be.  If K had bumped his head, that might have caused this bleeding.

59.         Accordingly, the Court is dealing with a traumatic episode extremely recent to K’s collapse on 5^th February 2014 and not a series of inflicted head injuries.

60.         The hypoxic-ischaemic injury is mild.  The encephalopathy, namely K’s altered level of consciousness, was serious and potentially life-threatening.  The magnitude of this change in behaviour is reflected in the degree of brain injury (see E143).

61.         Dr Stoodley also identified a constitutional and a benign enlargement of the sub-arachnoid space in K.  This is evident in many children.  This may predispose K to subdural bleeding from a marginally lesser degree of trauma, but the degree of reduction is “not all that great” (see E144).  The reason for this is as follows.  The bridging veins which transverse the enlarged space are stretched and are at greater tension due to the increased distance.  Accordingly, they are prone to greater damage and the shearing force which results from any shake, giving rise to such damage is unlikely to be so significant.  However, as Dr Stoodley emphasised, any shake required would still represent an “obviously inappropriate degree of force” to an independent bystander.  Dr Stoodley was also asked about other medical conditions, but he did not believe that these could be responsible for K’s injuries.

62.         Turning to the retinal haemorrhages, these are extensive and diffuse (see E189): 

“Intra-retinal, superficial retinal and pre-retinal in all four quadrants and extending to the peripheral retina from the optic disk.”

This was evident in both eyes. 

63.         Mr Newman described the alternative suggested mechanisms of causation for retinal haemorrhages thus (see E206):

(i)            the shearing forces caused by shaking affected the movement of the vitreous within the eye.  The movement of this gel-like substance and other changes “at the interface of the vitreous and the retina resulting in haemorrhages or in some cases causing splits within the retina”; and

(ii)          as a secondary effect of a transient raised intra-cranial pressure, following intra-cranial bleeding. 

This second suggested mechanism would be consistent with retinal haemorrhages which were fewer in number and clustered around the optic disk.  The pattern of distribution and the extent of the haemorrhaging in K’s case was more consistent with the first suggested mechanism.  This represented an application of force by a forceful shaking. 

64.         At E212 paragraph 1240 to 1255, Mr Newman described the shaking mechanism of the unsupported infant head and the accelerative/decelerative forces which could give rise to these haemorrhages.  In his oral evidence, he suggested this could be a repetitive action which would occur over a short duration of time.

65.         Mr Newman confirmed that the extensive nature of the haemorrhaging evident in K’s case did not assist with the quantification of the extent and the degree of shaking involved once a certain threshold of trauma had been crossed (see E237).  Considerable force exceeding normal handling or rough play would be required.  He, also like Dr Stoodley confirmed that the kind of incident described by KB in his final statement of evidence (to which I shall turn later) and which KB avers was inflicted by him upon K, could have caused the retinal haemorrhages observed (see E213, the Addendum Report of 15^th September 2014 by Mr Newman and Dr Stoodley’s oral evidence).

66.         I will come to the detail of this evidence given by KB later, but in summary KB accepts that this shaking by him arose in an incident of blind panic as a misconceived attempt at resuscitation following a spontaneous loss of consciousness by K, perhaps as a result of choking when feeding or perhaps without such an identifiable cause.

67.         In his oral evidence, Dr Mecrow confirmed that an x-ray of K had not identified any aspiration of vomit or milk into the lungs, and this was not consistent with a choking episode (see E278).  However, young infants can lose consciousness for a number of reasons (e.g. a cardiac arrithmya) but this is usually a “short-term condition” which resolves itself spontaneously.  The medical findings of themselves were not determinative of whether K lost consciousness first before being subjected to a shake (as described by his father KB), or whether any shake had led to the loss of consciousness and K’s subsequent collapse.  However, I accept that the medical evidence indicates that attempted resuscitation would not give rise to the intra-cranial injuries identified in this case.  However, KB’s actions (as described by him) can hardly be described or classified as resuscitation as that term is commonly understood (and I will come to the detail in a moment).

68.         In Mr Newman’s view, the father KB’s reaction of panic would “in any event be obviously dangerous and inappropriate to anyone undertaking this and to any independent observer” (see E213).  This opinion was repeated by him in his oral evidence as well. 

69.         So far, I have described the so-called ‘triad’ features which give rise to a conclusion of NAHI.  This is an undisputed conclusion in this case so far as the medical evidence is concerned.  There is no underlying medical condition suggested and the encephalopathy, the retinal and subdural haemorrhages are non-organic in origin.  Birth-related trauma is discounted.  However, these features do not stand in isolation because there are other independent injuries identified to K as well. 

70.         On 7^th May 2014 a skeletal survey identified a healing fracture on the right distal radius.  There is no dispute this was caused by a direct blow or by the abnormal angulation of the bone at the site of the fracture (see E285).  The fracture is non-organic in origin, and this is not disputed.  In relation to this injury, cross-allegations about perpetration have been made by K’s mother and KB (I will come to the precise details in a moment).

71.         The mother has suggested that she was an eye-witness to an event which occurred in January 2014 when KB caused this fracture to K.  Dr Mecrow, having considered the mechanism described by the mother, confirmed that the unsupported lifting of K by the right arm could have resulted in a fracture.  The initial response to this inflicted injury would be one of “considerable pain” and would elicit a cry; this would abate, but “thereafter there would be some reaction”.  A carer who had not witnessed the trauma inflicted would be unsure of the cause of K’s discomfort, but a carer who had witnessed such an event would be aware that this action was inappropriate and excessive and outside the range of normal or even clumsy or inexperienced handling.

72.         This fracture was four to six weeks old as at 7^th February 2014, i.e. the likely timeframe for infliction was 27^th December 2013 to 10^th January 2014. 

73.         As I have said already, the NAHI occurred no more than a few minutes prior to K’s collapse.

74.         Separately, a number of soft tissue injuries were identified (see E282) and involve a number of abrasions and bruises.  The Schedule of Concurrence refers to two areas of bruising (see E459), but Dr Mecrow in his evidence confined his concern to a single bruise (which is Injury Number 1 as identified by the treating clinician Dr Teebay and is evident in police photograph 0069 (see E286 paragraph 63 and E297 paragraphs 113 and 114 in Dr Mecrow’s report)).  Dr Mecrow was unable to make out the second bruise identified by Dr Teebay.  I have been provided in the course of this hearing with the better-quality police photographs (which have been returned by Dr Mecrow) in this case.

75.         Facial bruising is exceptionally uncommon in infants of five to six months old, even a single unexplained bruise.  The explanation offered for this bruise (in summary) is a head-butt by K impacting upon KB’s head and causing a nose bleed or a loss of blood to KB. 

76.         Dr Mecrow in his oral evidence said that only this single bruise could be attributed safely to a non-accidental mechanism.  The timing of it was within seven to ten days of K’s medical presentation in February 2014.  There is no particular suggested mechanism for this bruising; any trauma of sufficient force would cause bruising.  When asked to consider the self-inflicted mechanism by K that I have noted above, Dr Mecrow concluded that this was unlikely: 

(i)            the location of the bruise high on K’s forehead rather than lower, was not consistent with the mechanism described;

(ii)          neuro-developmentally, K’s head would not be self-supporting; and

(iii)        K could not apply the degree of force required to cause an impact resulting in a loss of blood to his father KB’s nose and the bruising.

77.         Following the conclusion of this evidence, it was suggested that the mother had in her possession some DVD footage of K showing his unsupported head in or about January 2014.  This would have a bearing of course on the second limb of Dr Mecrow’s conclusion identified above.  There is, in relation to this (as in the case of all the other suggested episodes of causation,) a preliminary issue to be resolved, and that is do I believe that these suggestions emanate from a sufficiently reliable and truthful source?  If they are no more than unreliable attempts to tailor exculpatory explanations in response to damaging medical conclusions, then of course they should not be accepted by the Court.

78.         Finally, there is clearly shown on the police photographs dirt under K’s nails.  He was only five or six months old at the time.  It has been suggested that this was neglectful care.

The accounts given by the parents for the above injuries

79.         This is a case where the mother and KB’s evidence with regard to what might have happened to K has increased in its extent and its detail with the passage of time.  Far from fading as one might expect, their recollections have become clearer.  The amnesia or the selective amnesia at the commencement of this medico-legal inquiry into K’s injury has gradually diminished.  This is a surprising phenomenon.  The Court therefore should treat with considerable caution an account which is not clear and consistent from the earliest opportunity.

80.         Conflicting motivations, the opportunity for collusion or the desire for revenge or exculpation could also provide explanations for this provision of a developing narrative account. 

81.         Let me provide an example (see H152 and H165).  The presenting complaint was given to YGC Hospital, and AHC Hospital following transfer.  Essentially, it was said that K was feeding and he stopped breathing and an ambulance was called.  This is borne out by Dr Hesseling’s statement (see C80A paragraph 4).  He was managing K during his emergency admission to YGC Hospital.  WPC Joanne Roberts’ pocket book entry of a discussion at the home in [A] Street after the ambulance and the police had arrived on 5^th February 2014 is to the same effect (see C86). 

82.         That version is very far removed from the account finally given by KB in statements dated 12^th and 15^th September 2014, the Friday before and the first day of this hearing.  On the mother’s side, the mother’s account is essentially given in her statement of 18^th March 2014 and finally in her oral evidence before this Court.

83.         I have described the living accommodation already in [A] Street.  The older children slept upstairs, G was in his own flat.  The mother and KB at all relevant times slept downstairs in the living room and K was with them.  For some reason overnight on the 4^th/5^th February, M who is four years of age slept downstairs as well in the living room.  M is hardly mentioned again by either the mother or KB in their accounts, and this is a somewhat curious omission.

84.         The basic narrative of what happened can be pieced together from the final accounts of the mother and KB and it appears to be as follows.  The mother and KB got up quite early (for these purposes it does not really matter who was up first of all).  KB attended to K’s feed.  KB started to feed K.  K stopped breathing.  KB had hold of K under the arms and shook him.  The mother, in her evidence was aware of much of this initial part of the incident and after being out of the living room, she came back and she knew that K was being fed by his KB and that he had stopped breathing.  She also saw KB holding K under the arms, blowing on his face and shaking him, but without excessive force. 

85.         In her panic, she disappeared upstairs to fetch G, who came downstairs.  However, KB (and this inferentially occurred in the mother’s absence) then shook K excessively.  G and the mother then came downstairs.  An ambulance was summoned by G who also attended to CPR under the direction of the Emergency Operator.  K was then taken by ambulance to YGC Hospital.  KB did not initially go to hospital with him but he attended later, but the police were also in attendance at the same time as the ambulance or shortly thereafter and that is the basic explanation for KB not accompanying his son.

86.         This is the basic narrative provided in the account given by KB in paragraph 5 and 6 of his final witness statement.  It is paragraph 7 of that statement which is significant for medical purposes.  In paragraph 7, he says this, referring to K:

“I began to shake him back and forth.  His head was moving as I shook him.  I was just panicking.  There was no reaction from him and he was just limp.”

Subsequently, KB held K, an inert and badly injured infant, out of an open window to revive him.

87.         This account is significant because it is the kind of shaking mechanism described by Mr Newman (see E212 paragraphs 1240 to 1255) which is capable of giving rise to the so-called ‘triad’ features that I have mentioned already.

88.         It is true that KB has tried to mitigate his conduct by asserting that this was a panicked reaction to a spontaneous cessation of breathing by K.  However, this shaking back and forth and hanging out of a window which is described by him can hardly be described as resuscitation as commonly and generally understood.  What reasonable carer would proceed in such a manner when presented with a child who it is asserted had spontaneously stopped breathing?  Far from assisting, this could have significantly compromised the welfare of such an infant.

89.         However, this account much more recently offered by KB was of course entirely absent as the presenting complaint; KB asserting that he was fearful of the consequences to him if he made a full admission.  By this, I infer that a police prosecution for the infliction of Grievous Bodily Harm on the basis of recklessness might then have ensued.

90.         Similarly, the mother’s account contained in a statement dated 18^th March 2014 (see C35):

“KB was supporting K with his hands under his arms, holding him horizontally.  He shook K whilst blowing on his face, trying to stimulate him.”

And later:

“I do not believe that what I saw him do would have been sufficient to cause any injury to K.”

Clearly this varies both from the presenting complaint and KB’s account quoted above, although of course in the final picture presented, the mother is describing perhaps part only of the overall sequence of events, she being absent for part of the time.

91.         The account given in KB’s final statement quoted would obviously make any reasonable person who had witnessed such an episode believe that this would have been sufficient to cause an injury to K.  The mother has asserted that any kind of incident as described by KB did not occur in her presence.

92.         Turning to the fracture, this has been identified on 7^th February 2014.  In her statement dated 29^th April 2014, the mother (see C45 paragraph 10) described an incident where she alleges that KB lifted K by his right wrist unsupported “and pulled him up towards him”.  The mother was cross with KB.  Again, medically, this mechanism could provide an explanation for the fracture.  KB of course denies this allegation, which was hardly offered by the mother clearly from the outset.  However, the situation was even more confused after the mother’s oral evidence.  The mother insisted in her evidence that within thirty minutes of this incident she had surreptitiously checked K’s right wrist:

“I checked his wrist, I applied pressure to it and manipulated it.  K did not react in any way.  I’m quite sure about that.”

If this evidence taken as a whole is true, this could hardly account for the fracture sustained.  K’s absent reaction to such pressure/manipulation minutes only after sustaining a fracture is absolutely incredible.

93.         KB in his statement dated 22^nd April 2014 alleges that in mid-January 2014 there was an incident when the mother was feeding K in the house while he and MH had a cigarette outside.  He heard K wail (see C40 paragraph 11):

“A cry very different to the way he usually does.”

By inference, I am asked to conclude that this was when the mother fractured K’s right wrist, although this was not directly observed.  This inference, of course, is supplemented by a piece of evidence given by KB in the Witness Box during his oral evidence for the first time in the course of cross-examination.  Following this incident, when KB dressed K (and he was primarily responsible with G in this area), he was:

“Aware of some discomfort.  K was whiny and crying every time after the incident involving the mother.  It was as if K didn’t want to be touched.”

94.         Of course, this piece of evidence gets KB into deep water with regard to failure to protect.  Why does he not get medical attention for K and not leave K suffer pain and discomfort of the kind evident?  This absence of a reasonably protective response is extremely significant.  However, such a finding may be a price which KB is prepared to pay to incriminate the mother and exculpate himself as a possible perpetrator.

95.         Unfortunately for KB, MH in her statement (see C90 paragraph 15) checked on K fifteen minutes after this episode involving the mother and he (K) appeared to be fine:

“I saw that he was no longer crying and he was feeding on his bottle.”

The following day, K also appeared to be fine.

96.         MH went through this evidence very carefully in the Witness Box and was quite clear in maintaining its truth and accuracy.  Since her hostility to the mother was obvious in the course of her oral examination, I doubt whether she would do this on the mother’s behalf if it was untrue. 

97.         Accordingly, I have two cross-allegations by the mother and KB against each other with regard to perpetration of K’s fracture.  Unfortunately, the key expected reactions from K to the infliction of such a serious and painful injury appear to be absent as a sequelae.  The mother of course denies this incident (described in paragraph 93 above) in fact happened in January 2014.  She accepted that a different incident occurred at the end of October 2013 (Halloween) while K cried whilst in her care, but this of course would be outside the medical timeframe for the infliction of the fractured right wrist. 

98.         In her statement of 11^th September 2014 (see C187 paragraph 26), the mother described an incident where:

“I saw K head-butt KB hard on the nose.  KB was holding K level with his face and K smacked his head forward and hit KB so hard that blood shot out of KB’s nose.”

This is a “possible explanation” for K’s bruised forehead “because he (K) really did hit him (KB) hard.”

99.         In the Witness Box, the mother and KB repeated this evidence and KB demonstrated how he was holding K in his arms.  Basically, K was in the horizontal plane as demonstrated – enveloped in his KB’s arms which were coupled around him.  K brought his head forward and butted KB to the nose and KB’s nose bled.  According to KB, this was “really sharp, quicker than expected”. 

100.     I was extremely suspicious about the manner in which KB dealt with this in his oral evidence.  He had of course the benefit of listening to Dr Mecrow’s oral evidence and the mother’s evidence about this topic before he gave his own account.  He appeared to give a timeframe for this episode about a week before 5^th February 2014.  Anxious, I believe, to minimise the effect of the mother’s evidence about blood shooting out of his nose, he asserted that this was inaccurate; blood came out of his nose, but without pressure.  However, I believe he ‘gilded the lily’ about the sharpness of the blow to fortify his explanation. 

101.     It is also noteworthy, I believe, that G later caused to be produced some DVD footage showing K being held by KB whilst the mother was playing with K, his (K’s) head being unsupported.  This footage was taken in the period (I was told) 15^th to 28^th January 2014.  Its production is probably an indicator that the mother had discussed the evidence given with her son G in Court; G is extremely loyal to his mother and will fight her corner and assist her where possible.

102.     This DVD caused a supplemental question to be sent by the children’s solicitor to Dr Mecrow.  I have watched the DVD for myself.  The DVD does not show any forceful movement and the reply given by Dr Mecrow is as follows:

“What is shown is a period of entirely normal movement with K sitting in an upright position.  He supports his head in an appropriate way for a baby of his age.  I do not think it requires me to alter any opinion I expressed.  It remains unlikely that K had the strength or neurodevelopmental coordination to head-butt anyone with force if he was held in a sitting position.  I emphasise again the bruising is minor in comparison with the fracture and head injuries.”

I accept that this is so, but this account by both the mother and KB, I conclude, is unlikely and untruthful but it is but one feature of their general poor credibility.

103.     In relation to the dirt underneath the finger nails, there is simply a bare denial in reply to that particular feature.

104.     As I have indicated, these accounts in general are hardly given clearly and completely from the outset.  Accordingly, there are significant issues of credibility which confront both the mother and KB. 

105.     The mother for the first time and at the last possible moment in the Witness Box, when being questioned by the Guardian’s solicitor, suddenly mentioned K’s feeding difficulties and KB’s frustration and lack of patience and annoyance with K as a result in early February 2014.  Indeed, she described a witness account of KB pushing the feeding bottle into K’s mouth.  This was denied in evidence by KB.  It was not mentioned by the mother before, and although she was tearful when giving the evidence, that is not I am afraid any indicator of its truth.  Was it designed to provide the true pretext for KB’s admitted shaking of K, as opposed to the spontaneous lack of breathing?  And if so, was it a reliable account by the mother?

106.     The timing of all of these explanations offered by the mother and KB are unsatisfactory and highly suspicious, and accordingly (as I have said) each of them starts with very significant credibility problems.  In other respects also they have been untruthful; sometimes about collateral issues, but there comes a stage where habitual and persistent lying or concealment of the truth simply undermines all credibility.

The historic parenting deficiencies

107.     AB has a number of convictions recorded against him (see F24 and F25).  Of greatest concern are his past convictions for drug misuse and supplying illicit drugs, although the last conviction was in 1995.  There is other police information which indicates that the parental care provided by AB and the mother jointly up to 2012 was less than satisfactory (see the entries for 14^th June 2007, 2^nd July 2008, 21^st March 2009 and 27^th April 2009 in section F).  Additionally, there was a Section 47 investigation on 1^st September 2008, when KL was reported to have thirty-one bruises to her body; the mother said there were only seventeen bruises.

108.     The Guardian has consistently been of the view that AB’s parenting resources would be stretched by his sole care of four young, energetic and demanding children.  During the currency of these proceedings, AB I am happy to say has knuckled down reasonably well.  He is receptive to further assistance to improve his coping skills and parenting skills generally and his management of the children. 

109.     I have not been asked to adjudicate upon the initial dispute between the Guardian and the Local Authority about the need for a Care Order in this case for four of the children because the Local Authority modified its position.  However, had I been asked to do so, I believe that the sharing of parental responsibility with the Local Authority in this case would have been necessary to assist AB.

110.     Contact needs to be managed.  The children, and in particular the older children, need an age-appropriate explanation of their circumstances and why they have left their mother’s care.  Developmentally P may be delayed, but KL and perhaps J should not be kept in total ignorance.  AB will have to deal with any fall-out as the children discover greater detail as they mature and develop a greater understanding.

111.     There is some dispute about the extent to which AB has allowed the mother to have greater contact with the children during the currency of these proceedings than authorised by the Local Authority.  There is some dispute also as to whether AB has fully appreciated the child protection concerns in this case.  I do not want to dishearten AB.  His sole care of the children appears to be far better than the joint care afforded previously by him and the mother.  Over the past months he has managed reasonably well in difficult circumstances.  He has moved accommodation with the children.  He has managed to get the children to school despite the travel distance involved.  The children depend upon him and they rely upon him and they have settled in his care.  So far, he has not let the children down and I hope very much that he will not do so in the future.

112.     So far as the mother is concerned, prior to her relationship with AB she was the mother to both D and G, her adult children.  D was removed from the mother’s care by Mr L, who was either his biological father (this is unclear) or a paternal figure in his life.  He was away from his mother’s care for two years between 1993 and 1995, before returning to the care of his mother.  During this period, he was physically and perhaps sexually abused by Mr L.  The Local Authority have maintained that the mother’s inability to secure the return of D to her care in circumstances where he was forcibly taken by Mr L is an indicator of her poor protective response.  The mother asserted in evidence that she had taken Court action.  Without the relevant documentation it is impossible to reach any definitive conclusion about these events twenty years ago.

The historic joint care offered by MB and KB

113.     KB’s childhood and upbringing it is acknowledged by everybody has been a difficult one.  He has eight recorded convictions for fourteen offences, including offences of violence and disorder as a juvenile.  I accept the parenting section at pages E329 in relation to KB.

114.     With little experience of caring for four young children, he with considerable rapidity in 2012 assumed that role.  The mother told me that she was aware that KB was homosexual.  He misused alcohol and illicit drugs and had self-harmed – however, the mother said she did not know about this part of his background.  If so, she inquired very little because the mother seems to have welcomed KB to her house and allowed him to assume a central role in the children’s lives within approximately two months of their relationship starting.  KB is twenty-one years of age; the mother is forty-five.  KB was far too immature both in chronological age and in emotional maturity to assume the role which the mother had encouraged him to undertake.  She said the children took to him, treated him as a father and the children called KB ‘Dad’. 

115.     The mother took steps (whether this was with or without AB’s acquiescence or consent is not altogether clear) to alter their surnames to coincide with KB’s. 

116.     In part because of her physical limitations but equally because of her general lethargy and lassitude, I believe the mother (who had always relied upon G her teenage son for significant support) allowed KB to undertake more of the parenting tasks.  With the birth of K, this became far more pronounced.  Initially, this may have allowed the mother to recover physically from her caesarean section and the general strain which her pregnancy with K put upon her health.  However, gradually with time this became a bone of contention.  The mother believes that she has been excluded from key aspects of parenting K and that KB is controlling of her.  KB increasingly felt the strain of caring for K with little assistance from the mother.  He was prescribed anti-depressants. 

117.     Apart from some shop work undertaken by KB, neither G nor the mother nor KB had employment outside the home.  They appear to have spent the time within the home often in each other’s company.  In such a closed and claustrophobic environment, tensions can quickly build. 

118.     Albeit that K was born prematurely in August 2013, his conception must have followed fairly swiftly after the parties started their relationship.  After K’s birth, the mother wanted to have further children with KB.  She told me that she had suffered three subsequent miscarriages in October 2013, December 2013 and April 2014.  If true, this would have taken its emotional and its physical toll as well.

119.     After K’s birth, far from cementing their relationship this was the cause of other strains.  KB believed the mother had not bonded with K and that she was inattentive to his care and overly-reliant upon him.  KB complained to the General Practitioner that the mother was low in mood and depressed and had threatened suicide with a knife in front of the children. 

120.     The mother for her part admitted that she was making false accusations against KB of infidelity.  KB was using cannabis, the mother alleged, and he would become anxious when this cannabis was not provided for him.

121.     MH told me in evidence that the mother was using cannabis as well, to a financial level which this family could hardly sustain if it was true.

122.     I will mention some specific instances of domestic discord by way of example.  However, in general I believe the pressures within the household in [A] Street during the period October 2013 to February 2014 intensified and eventually became unsustainable.  Objectively, these two personalities were extremely ill-matched.  They lacked the emotional resources to deal with five children in the stressful situation which they themselves created.  I accept the key social worker’s assessment that KB appears to be the more dominant and the mother the more passive, but I do not believe the mother to be unassertive.  Each of them is emotionally labile, an impression confirmed by their presentation in the Witness Box alternating between uncontrolled weeping and truculent and assertive responses.  Each of them has an evident histrionic side to his or her character.  KB desperately wanted to be a father and the mother desperately wanted to provide him with a child.

123.     I will deal with some further indicators of stress/tension:

(i)            The health visitor records in October 2013 revealed her increasing concern (see page 32 of the Children’s Medical Bundle, the entries for 3^rd October 2013 and 10^th October 2103);

(ii)          On 8^th October 2013, there was the reference to YGC Hospital with regard to the possible bruising to K.  The mother said in evidence “J poked K to the cheek”;

(iii)        On the mother’s account, on 31^st October 2013, there was an episode where KB wrongly was concerned about her feeding of K and became angry.  This incident of course was denied by KB;

(iv)        On 21^st November 2013 (see F8) there is a verbal domestic incident noted within the police information;

(v)          On 23^rd December 2013, there was a significant domestic row between the mother and KB where KB overturned and damaged the Christmas Tree.  This happened when KB was tired and had been up all night feeding K.

(vi)        8^th January 2014, this was the occasion of another row between KB and the mother.  According to the mother, she was prevented from caring for K by KB.  K was crying for thirty or forty minutes in his KB’s care downstairs when she had been sent upstairs by KB.  The mother checked K the next day and there was no sign of discomfort of any kind and K was okay.  In her oral evidence “I don’t say that anything happened that night to K”.  G supported the allegation of a domestic row.  KB had been drinking and the mother was sent upstairs by KB.  The account given in the Witness Box by KB about 8^th January 2014, where he appeared to accept part of the mother’s account, was not altogether consistent with his original averment that this was untrue.  Indeed, the mother was cross-examined by Mr Hornby on this basis and the mother denied this fabrication; “It’s all true” was her reply to this questioning;

(vii)      Two days later the mother alleged that KB picked up K by his right arm unsupported (and I have made reference to this account already);

(viii)    In January 2013, there is then the account made by KB and MH about the mother’s care of K when he screamed/cried when being fed by his mother (to which I have again already referred);

(ix)        In early February 2013 (as I have mentioned already), K had a viral infection and was unwell;

(x)          On 3^rd February 2013, KB was unwell with stomach pains and vomiting and he went to his General Practitioner and then the local hospital.

The credibility of the other witnesses

124.     I refer here of course to the other witnesses of fact apart from the mother and KB. 

125.     G I find was not a witness to be absolutely relied upon because of his very obvious loyalty to his mother.  The key social worker’s evidence about G’s attitude to her on 29^th August 2014 I accept; G was hostile and aggressive.  His unreliability was most evident when he denied and continued to deny an account given in documentary form by a health visitor that on 10^th October 2013 he (G) was extremely distressed about the domestic conduct of the mother and KB and its effect upon him and potentially the other children.  The mother obviously did not know about this when she gave her evidence, before G gave his evidence.  I am afraid that G quickly came into line and denied the truth of the documentary account.  That denial by G is, I find, untrue; I prefer the documentary record.  G was not even convincing in the Witness Box when he denied its truth.

126.     He did have eating difficulties (as he admitted himself).  He is obviously slender and thin in appearance and the health visitor’s record is consistent with this surrounding evidence.  G, I find, is prepared to help his mother, and this makes him unreliable in his evidence where it supports her evidence and his evidence, which is critical of KB, is also tainted.

127.     I accept the parenting assessment of G.  He could not be relied upon to protect his siblings if there were a conflict between his mother’s interests and theirs.  He would be overwhelmed by the care of five children and it would be unfair to expect him to commit himself to many years of future care for the children.  There are issues also relating to his ability to separate himself from his mother, and he needs to care for himself properly in the first instance without assuming the additional burden of caring for his siblings as well.  Despite everything and contrary to what might be expected, he was however reasonably relaxed and matter-of-fact about his present relationship with KB.

128.     MH was obviously hostile towards the mother in her responses and was not objective nor open in her evidence.  Any information which could prejudice KB was not provided and her answers were extremely careful and circumspect.  On the other hand, if she could be critical of the mother she would be.  She asserted the mother spent £600 per week on cannabis misuse; this figure for a household basically dependant on a number of State benefits and without any obvious indicator of other income, is difficult to accept.  When asked what would be the effect upon K of such extensive cannabis misuse in the home, her reply was a startling one:

“The effect of K was fine.  It just made him go to sleep.”

If this is any indicator of her parenting standards, bearing in mind that K was a new-born baby at the material time, then the Court would not place very much reliance upon her assessment.

129.     In short, in this case, the lay evidence from the main participants (i.e. the mother, KB, and the third parties G and MH) I have identified is wholly unsatisfactory.  There is not a single disinterested, objective and wholly truthful and reliable witness amongst the whole lot of them.

The Care Plans and the position of the parties and the Guardian’s evidence

130.     The Local Authority’s revised Care Plans for the four older children is placement with their birth father under a Care Order.  There would be provisions for maternal contact four times a week.  The Guardian’s recommendation that there should be a sharing of parental responsibility with the Local Authority has now been accepted by the Local Authority itself.  In short, the Guardian maintains that if serious threshold findings are made against the mother, AB will need assistance to safeguard the children and with other aspects of his parenting.  Contact with the mother would also require some regulation, and if any risks to the children developed, the Local Authority would be able to intervene with the shared parental responsibility.

131.     So far as K is concerned, the Guardian believes that the child’s safety aspects predominate, hence her support for the Placement Order and the Care Plan for him.  Neither his mother nor KB “could be relied upon to ensure that K was protected from the risk of future harm if he was returned to their sole or joint care” (see E441). 

132.     Having conducted a B-S analysis, the Guardian recommends placement outside the birth family by way of adoption.

133.     The Guardian has also considered face-to-face post-adoptive contact for the parents (see E440).  However, she recommends Agency indirect post-box contact, and I share the Guardian’s conclusion in that respect:

(i)            The parents are opposed to adoption;

(ii)          Their personalities would make the management of such contact virtually impossible post-adoption; they simply could not regulate their emotions sufficiently;

(iii)        Therefore, the risk of placement disruption would be a significant one;

(iv)        The parents simply would not understand or accept their new role in K’s future life;

(v)          Prospective adopters would probably be deterred by the background and/or the parents’ personalities in this case and they would probably refuse direct contact or walk away from any adoption;

(vi)        This would unavoidably constrict the pool of potential carers for K; and

(vii)      Indirect contact/life story work should enable K to make sense of his origins and in due course provide him with an explanation of how he came to be cared for outside the birth family.  How would K react to direct contact in those circumstances, once he appreciated fully the background to this case?

134.     AB accepts the Local Authority’s Plans for his children. 

135.     The mother and KB are opposed to K’s placement outside the birth family and the mother has maintained her case for reunification of all the children into her care, but as an alternative she asks to care for K solely.  At the outset KB may have harboured this shared desire to care for his son, but by the conclusion of this case he was (I apprehend) more realistic about the possible outcome so far as that was concerned.

Issues relating to the credibility and the liability of MB and KB

136.     This section will deal with what appear to me to be the most significant relevant indicators in this respect.  This is not intended to be a comprehensive account of each and every untruth revealed, nor each and every point raised in relation to liability/perpetration, but these are the ones considered by me to be of particular significance: 

(a)          The mother’s position

(i)            The mother claimed in statement of evidence that she was married to KB.  This was untrue.  She said in evidence she was “confused” and it was “a misunderstanding”.  That I do not accept.  It was an untruth about a collateral issue, but if she can lie about the minor issues what about the more important ones?  She also took steps to alter the children’s surnames to accord with KB’s.  This probably was intended to reinforce the family unit in some way, but the mother was careless with regard to the older children’s identity needs.

(ii)          When asked about her account in paragraph 5(d) at page C36 (that is the statement of 18^th March 2014) that she omitted any mention of her allegation against KB that he had lifted K by his (K’s) right arm, she said:

“I had forgotten quite a few things and started to remember them later.”

She accepted that the medical evidence about K’s fracture was available after 7^th February 2014, yet no allegation was made against KB in the terms of C36 following the identification of that fracture.  The reason she made the allegation (she told me) was:

“KB was making allegations about me which weren’t true.”

This suggests that the true motivation was retaliatory.  This makes the original omission and the subsequent allegation extremely suspicious.

(iii)        The mother continued to assert that she had a one night sexual encounter with KB in SH [name of town given] nine months prior to M’s birth.  She asserted at C35 paragraph 2 that KB was M’s father; she had asserted this previously.  Even KB and AB themselves did not believe this allegation, which was later disproved by DNA testing.  She, despite the issue of paternity being resolved, continued to maintain her account of the sexual encounter with KB and its truth.  KB denied this.  He would have been about sixteen years of age at the time.  This would represent an almost impossible coincidence; that she (the mother) had a sexual relationship with a boy of sixteen or so in SH who three years later turned out to be her ultimate partner, and in fact she never mentioned this to KB at the outset of their relationship.  I reject this evidence; it is simply untrue.  I have no idea what motivated this lie.  Its potential effect on M demonstrates the mother’s obvious parental shortcomings.

(iv)        The mother at C51 paragraph 30 initially denied receiving medical advice not to have further children.  Ultimately when presented with the documentary evidence from Dr Peart, she retracted this false assertion.

(v)          The mother asserted that on one occasion (30^th May 2014) she had had sexual intercourse with KB.  This was unprotected sexual intercourse intending to have another baby with him.  This is denied by KB and it would be in breach (to some extent) of his police bail conditions to stay away from the mother.  The mother said in evidence:

“I don’t know what I was thinking of at that time.”

This would be a stark illustration of the absence of any reasonable protective instinct by her whatsoever. She would be sleeping with a man who had harmed her son on the basis of the allegations that she was making and she wanted to conceive another child by him.  I accept the entry at E344 paragraph 7.23 that the mother appeared happy by this prospect.  On a balance of probability, I believe this allegation by the mother to be true but solely on the basis that it is a significant declaration/admission against the mother’s own interest.

(vi)        Despite the allegations made by the mother against KB, her feelings are contradictory:

“I don’t think KB has hurt the children or K on purpose.  I don’t believe he is capable of that.”

She said again:

“I still have feelings for him, I still love him, but I don’t want a relationship with him.”

Again:

“I don’t think KB is a risk to any other children.”

This is a potential failure to protect in the making.  Her protective impulses are almost non-existent.

(vii)      C36 paragraph (a) of the mother’s statement asserted that KB was not controlling, contrary to her later evidence and documentary evidence.  When confronted by this, her reply was:

“I don’t know why I said that there.”

There was simply no other answer which she could give.  In one instance or another, she obviously has lied.

(viii)    The mother admitted making false accusations about KB’s infidelity.  She asserted that KB had made false allegations to the General Practitioner about her (I refer here to her suicide attempt, or alleged suicide attempt) in order to take K away from her.  Somewhat confusingly, she still nevertheless went on to maintain, shortly after that passage of evidence in relation to KB:

“Our relationship was very good.”

That I am afraid is simply inexplicable as a response.

(ix)        The mother asserted in evidence:

“There were no arguments between me and KB in October 2013.”

This is patently untrue, as I have noted above already in this judgment.

(x)          The mother accepted she had not told any protective agency about the episode with the Christmas Tree on 23^rd December 2013.  She said:

“K slept through all of this.”

I believe this to be extremely unlikely and again her desire to withhold key information is patently obvious.

(xi)        If the episode of 8^th January 2014 is true, the mother obviously failed to protect.  She retreated upstairs, leaving K downstairs defenceless to face the consequences with an obviously angry father.

(xii)      There is an obvious contradiction between C45 paragraph 10, the last sentence, and G168 (the mother’s police interview of 7^th May 2014), over whether she did or did not check K’s right wrist after allegedly KB took K unsupported by the right arm.  Both of those assertions simply cannot be true.

(xiii)    The mother did not mention any shaking by KB initially at YGC Hospital.  She had not questioned KB about his conduct and she continued to believe for some time that K’s collapse had been due to medical reasons.  Indeed she had trawled the internet for possible explanations.

(xiv)    The mother denied using cannabis and gave me an implausible explanation about how her coat had smelled of cannabis once when she had been out, this being detected by a third party.  I believe both the mother and KB use cannabis.  I doubt whether they could afford the expenditure alleged by MH, but this was a common feature within the household.

(xv)      On balance, I believe the mother’s account about the 8^th January 2014 incident, albeit that she is caught by her failure (a very significant failure) to protect.  To this extent, this is also an admission/declaration against her interest and at least the mother has been consistent about this piece of evidence and KB manifestly has not.

(xvi)    The disclosure of the evidence given by the mother with regard to KB’s difficulties in feeding K, I believe was deliberately timed.  This evidence could have been divulged at any stage before she gave her oral evidence.  It was not led in chief by her advocate in any way.  If true, why was this key piece of evidence withheld for so long?  If true, why was it withheld until Miss Cracroft’s cross-examination when she (the mother) and KB were at daggers drawn?  Is it a desperate attempt to ‘guild the lily’ against KB, or a true witnessed event?  G it is true confirmed that K could be a difficult child to feed, but he said in his evidence:

“I didn’t see KB getting frustrated when feeding K.”

If G had seen this, I believe he would have said something about it, in order to further his mother’s case.  His failure to do so cannot in this instance be ignored.  On the other hand, the mother’s disclosure accentuates her problems with regard to failure to protect, but this may be the price that she is willing to pay for getting back at KB.  I am extremely cautious about this piece of evidence.

(b)         KB’s position

(i)            The key social worker found KB to be an emotionally labile individual; tearful and distressed at times, but also extremely agitated.  He has appeared to her to struggle to control his temper; an impression I share about KB from his presentation in the Witness Box.

(ii)          KB also lied about his married status to the mother in the police interview (see G105).  Indeed he asserted that they were married in November 2013, and this lie therefore is thus embellished.

(iii)        KB admitted using cannabis.  The General Practitioner Dr Walker smelled it on him on at least one occasion.

(iv)        In the Witness Box, KB appeared to be agitated when recounting the health visitor and the mother’s failure to take his allegation of post-natal depression by the mother seriously.  He visibly struggled to control his temper in the Witness Box during this part of his evidence.  His denial of anger/temper problems simply belied his appearance in the courtroom.

(v)          KB admitted he had withheld mentioning the Christmas Tree incident to the police.  This was a deliberate lie by omission in his police interview.  He said:

“I didn’t want to say anything bad about me because I didn’t know what she (the mother) was saying about me to the police.”

(vi)        KB was confused in his response to the 8^th January 2014 incident.  Originally, it was denied but appeared to be accepted initially in his cross-examination when it was put to him that this information had also been withheld from the police.  He said in response:

“I didn’t think the police should know about this.  I was scared because I didn’t want to let the police know what had happened.”

He then appeared to accept that the 23^rd December 2013 and the 8^th January 2014 incidents were true, despite previously maintaining that they were untrue.  However, later in his evidence he denied the January incident, saying that he had misunderstood Mr Sellars’ question.  This evidence was extremely confusing and I simply do not understand definitively what KB’s position was.

(vii)      KB admitted rough handling of K previously when winding him (see the contact notes of 1^st April 2014). 

(viii)    His oral account in evidence of the incident in January 2013, while the mother was feeding K, was embellished in the Witness Box.  His degree of suspicion, K’s reaction as a child in pain, the mother’s shocked appearance, K’s subsequent appearance of discomfort; all of this late detail was added in his oral evidence.  However, despite these alleged suspicious circumstances, I quote his evidence:

“I didn’t take any steps about my suspicions.  I didn’t do anything.  I didn’t take him (K) to the Doctor.  I didn’t go to social services, who had been involved since October.  I didn’t want social services to put their noses in.”

There was simply no protective response by him at all, if this account is true.  This is the other side of the coin of this allegation, but this again may be a price he is prepared to pay to get back at the mother.

(ix)        KB accepted that he had not told the investigating police officer (see C86) about any shake nor did he tell Dr Hesseling.  The account given in his police interview of 5^th February 2014 appears at page G56, G57 and G58 and it is one of little force being deployed.  Plainly, this is clearly untrue on the basis of KB’s finalised version of events.  He told me he was scared because of the possible consequences to him if he admitted his conduct to the North Wales Police.

(x)          KB’s admission in his oral evidence that K’s head was unsupported when he held him outside the window, if true, is grossly negligent.  Indeed he did not discount the possibility that K had banged his head when he brought him back in through the window.

The Threshold case against the mother and KB and my findings

137.     The Local Authority in its revised Threshold case at the conclusion of its hearing, asserted that KB was the sole perpetrator of K’s NAHI, not on the basis of KB’s admission but rather on the basis of a loss of control.  The fractured arm was also caused by KB, but this was a more finely balanced conclusion.  That was the effect of the Local Authority’s submissions to me.

138.     The non-accidentally inflicted bruise to K was perpetrated either by the mother or by KB.  There were significant failures to protect by KB and the mother, which in any event ruled out reunification (and many of these failures to protect I have referred to already).

139.     The mother did not significantly dissent from the Local Authority’s suggested findings save that Mr Dodd invited me to conclude that even on this basis there was a prospect that the mother could care for her children or perhaps K solely, once more.

140.     KB accepted a finding of perpetration with regard to K’s NAHI, but on the basis of his final written statement to the Court and his oral evidence.  KB denied perpetration of a fracture and maintained his case against the mother in that regard.

141.     The Guardian supported the Local Authority’s suggested findings with regard to NAHI but averred that the other injuries, including the fracture were caused either by the mother or by KB. 

142.     So far as AB is concerned, he adopted a neutral position with regard to Threshold, Miss Japheth’s main submission being supportive of taxi provision for the children to school; an element of support which is fully recognised and supported by the Guardian in this case.

143.     I do not propose to recount the ‘pros’ and the ‘cons’ advanced by each party for each of these rival Threshold findings.  Most of the credibility/propensity and other points raised have been mentioned by me already.  I am extremely wary about the unsupported account of any of the lay witnesses in this case giving evidence of fact, largely because of the very significant credibility issues that I have identified already but also because of the manner in which much of the evidence was given in the courtroom itself (when I use the term ‘lay witnesses’ I mean of course KB, the mother, G and MH).

144.     KB may well have played a more significant role in attending to K’s daily needs, but both the mother and KB had sufficient opportunity to inflict injury.  This was a household with a tense and a discordant atmosphere, the adults had little to occupy them outside the home and this claustrophobic environment exacerbated the tensions.

145.     KB, it is true, is a volatile and unstable personality.  KL’s description at page A35 to A36 is probably accurate and there are other episodes (e.g. the Christmas Tree episode on 23^rd December 2013) which illustrates this conclusion.  However, the mother also has an unstable histrionic personality and these injuries took moments only to inflict and they are not sophisticated or difficult to perpetrate.

146.     There are no previous convictions for child assault, therefore to that extent there is no proven track record in relation to the mother or KB.

147.     My conclusion with regard to the inflicted injuries, therefore, are as follows:

(a)     The bruise

148.     I am satisfied that the bruise identified by Dr Mecrow was inflicted non-accidentally.  The method was by the excessive infliction of pressure sufficient to cause a bruise.  This could have been perpetrated by either the mother or KB; I cannot be sure which of them was responsible, but nobody else is included. 

149.     I accept Dr Mecrow’s evidence in reaching this conclusion and his evidence with regard to K possibly self-inflicting this injury in the manner described by his parents. 

150.     The suggested head-butt I find to be a lie.  This conclusion reinforces my belief about the mother and KB’s very poor credibility.

(b)     The NAHI

151.     I am persuaded by KB’s belated admission of a significant episode as described by him giving rise to the NAHI and the so-called ‘triad’ features which have been identified by me already.  This is a declaration/admission against his interest.  There is no obvious motive to admit causing what is perhaps the most significant and life-threatening injury while denying the infliction of the other lesser injuries.

152.     I do not conclude that this shaking of K and holding him outside a window amounted in any sense to an attempted resuscitation in the sense in which that term is generally and commonly used. This amounted to a non-accidentally inflicted injury.

153.     I remind myself of Ryder LJ’s decision in Re S [2014] EWCA Civ 25 at paragraphs 19 and 21, where he indicated that a ‘non-accidental injury’ is a term deployed as a ‘catch-all’ for everything that is not an accident.  He went on in this way:

“19.  …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 section 31(2). …

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. …”

154.     On balance, I do not believe that K unexpectedly and spontaneously lost consciousness or stopped breathing for an interval giving rise to such an alleged panic-stricken response by KB.  The instances of such spontaneous presentation in children are rare and short-lived (that is the medical evidence to me), and I do not believe KB when he says this occurred to K.  This is a pure self-serving gloss and an invention, or perhaps he has come to believe it for himself.  After all, the capacity for human self-deception is I am afraid absolutely limitless.  I believe that KB’s conduct (as I have described it) resulted from a serious lapse of self-control, perhaps while he was feeding or in any other way attending to K; the precise surrounding circumstances are entirely speculative.

155.     I observe, however, that even were I persuaded that KB’s account was a truthful one (namely his extreme reaction to an unexpected event), that reaction is manifestly excessive and obviously dangerous.  If K had stopped breathing or lost consciousness how on earth would it assist to shake him or to hold him out of a window?  This ‘cure’ would be worse than the cause, particularly (as Dr Mecrow indicated) infants quickly recover from such short-term episodes where they do occur.

156.     The future risk presented by KB’s conduct as admitted I find is virtually indistinguishable from the Local Authority’s case against him, which I have in fact found to be established.  However, even on the basis of the admitted account, the objective standard of care was breached, harm resulted and that was attributable to the care provided by K’s father KB.  Accordingly Ryder LJ’s formulation is established in this case.

(c)     The fracture

157.     There is an obvious attraction and a temptation to conclude that because KB is responsible for the NAHI to K, therefore it is more likely that he also fractured K’s arm since a household with one perpetrator is more likely than a household where there are two possible perpetrators.  That, however, would leave out of account my finding with regard to the facial bruise.  This was a household where either of K’s parents could inflict a bruise, but K’s father KB inflicted the NAHI (as I have found already).

158.     I cannot say whether K’s mother or father (KB) fractured his arm.  One of them was responsible, and he or she knows that and perhaps the other does as well.  The accounts given by the mother and KB (supported by MH) might be true, but if they did occur I do not believe that they resulted in any fracture.  On the other hand, these accounts may be a total and complete fabrication put together entirely for self-serving reasons.  I simply cannot say.  There is no genuinely and totally truthful and reliable witness who gives me this evidence.

159.     Undoubtedly, a fracture was caused to K while in the general care of the mother and KB; which of them did that, I cannot say.  Each of them is a possible perpetrator.  No others are involved.

160.     So far as my other findings are concerned, I conclude on a balance of probabilities that the following findings from the Local Authority’s document have also been established:

Under paragraph 10.1

(i)            The general allegation at 10(a)(i) and 10(a)(ii);

(ii)          10(b);

(iii)        10(c)(ii), but by reference to the 8^th January 2014 episode solely;

(iv)        10(c)(iii), the general allegation is made out;

(v)          10(d)(i), (ii) and (iii);

(vi)        So far as paragraph 10(e) is concerned, on balance I believe the mother’s account of a sexual encounter in May 2014 is established;

(vii)      10(f), I find that allegation also to be proven;

Under paragraph 10.2

(viii)    10(a), the general allegation, 10(b), the general allegation, and 10(d), the general allegation, is also established;

Under paragraph 10.3

(ix)        10(a) the allegation of domestic violence I find to be established on the basis of the health visitor’s entry in October 2013, and so far as 10(b) is concerned, I find that general allegation also to be established;

(x)          My findings under paragraph 10.4 have already been set out by me above in this judgment;

(xi)        I make no findings about the dirty finger nails; save that they are evident in the police photographs;

(xii)      It is unnecessary I believe to deal separately with any failure to protect in relation to the individual injuries, since I have either identified a sole perpetrator or the class of possible perpetrators where that is relevant.

Conclusion with regard to P, KL, J and M

161.     Having made these Threshold findings, these impact not only upon the case of K but also P, KL, J and M.  In relation to the ‘welfare checklist’, section 1(e) of the Children Act 1989 (namely the risk of harm) is crucially important in this case.  I believe this can be safeguarded in this instance with the assistance of the Local Authority because the children’s birth father AB, has provided appropriate care and as part of the overall package there is also support from a paternal aunt and there is support from the Local Authority also.  AB has demonstrated during the currency of these proceedings that he can provide appropriate familial care for his children.

162.     This is the least interventionist approach and a proportionate and a necessary response to the risks evident in this case.  These children will retain contact with their birth mother but within a framework of safety. 

163.     I approve the Local Authority’s Contact Plan and Care Plan generally, and the Schedule of Expectations.

164.     I accept the Guardian’s recommendation and having found the Threshold to be proven, I approve the Final Care Plans and having regard to the welfare of these children, I make Care Orders with regard to P, KL, J and M.

The applications relating to K

165.     Coupled with the application for a Care Order, I have an application for a Placement Order with a Statement of Facts and an Annex B report in the case of K.  The Agency Decision Maker of the Local Authority made the appropriate recommendation on 20^th August 2014, the Placement application being issued some days thereafter.

166.     I have available to me also a Pre-adoption Medical Report and therefore the preliminary requirements of the Adoption Agency (Wales) Regulations 2005 as amended from 1^st September 2012 and section 18(2) of the Adoption and Children Act 2002 have been established.

167.     In accordance with the guidance given in the case of Re B-S [2013] EWCA Civ 1146, a ‘pros’ and ‘cons’ analysis has been undertaken by the Local Authority and the Guardian in a schedule form. 

168.     Since I have made Threshold findings, I have jurisdiction to make a Care Order and a Placement Order, in the latter instance under section 21(2)(b) of the Adoption and Children Act 2002.

169.     The Care Plan must be scrutinised having regard to the paramountcy of K’s welfare under section 1 of the Children Act 1989 and having regard to the paramountcy of his welfare throughout his life under section 1 of the Adoption and Children Act 2002.

170.     I must apply the ‘checklist’ provisions under section 1 of both statutes to the facts of the case.

171.     The Plan must be a proportionate and necessary response to the risk – see Re C and B [2001] 1FLR 611 where examples were given in that case (in paragraph 30) of the kind of cases where intervention and permanence outside the birth family might be appropriate. This case falls squarely within this category.

172.     Adoption of course is to be regarded as a last resort (see Re B [2013] 2FLR 1075).

173.     I can only make a Placement Order if the consent of the mother and KB is dispensed with under section 52 of the Adoption and Children Act 2002.  I can only come to this decision by applying the paramountcy of K’s welfare throughout his life and by applying the provisions of section 1(4) of the Adoption and Children Act 2002.  This section also has to be applied when I come to a decision which relates to K’s adoption, which includes of course the making of a Placement Order.  That is the combined effect of section 1(1) and section 1(7) of the Adoption and Children Act 2002.

174.     In Re P [2008] 2FLR 625 I must answer the question to which section 52 gives rise by applying the statute to the facts of this case and the Order must be a proportionate and a necessary response because K’s Convention rights are engaged.  What has to be shown is that K’s welfare requires adoption as opposed to something short of that.  This has a connotation of the imperative; what is demanded?

175.     I bear in mind the suitability of all other Orders.  For reasons set out by me already, I would not make a defined Order for Contact under section 26 of the Adoption and Children 2002 in this case.  The indirect contact provision proposed is entirely appropriate post-adoption.  Adoptive parents with this history of injury would not wish, I believe, to promote direct contact and there is a significant risk of placement destabilisation.  The imposition of direct contact would hamper the placement search and would risk derailing the Plan from the outset.

176.     I do not propose to quote the ‘checklist’ provisions verbatim under the Children Act 1989 and the Adoption and Children 2002 but I apply the provisions in the following way:

(i)            Pursuant to section 1(3)(e) of the Children Act 1989 and 1(4)(e) of the Adoption and Children Act 2002, there is a risk (i.e. a real possibility) that the significant harm done to K might be repeated in the future if K were returned to the care of K’s parents MB and KB, or to any one of them.  There is no protective parent in this case. There is a perpetrator or there are possible perpetrators.  I have no means really of assessing the risk because I have no clear account of what the risk factors might be generally for K save of course in the form of KB’s belated admission.  This is the overwhelming feature of this case which illuminates all the other statutory considerations adversely from the parents’ or the family’s point of view.  I do not believe that G could protect K either.  His loyalty would be divided in relation to his mother and he lacks the maturity and the resilience to stand up to KB.  There is simply no safe alternative familial carer and no protective parent whatsoever.

(ii)          Even if K could articulate a wish to live with his parents, that wish could not possibly be acceded to without a grave risk to his physical and emotional safety.  K requires nurturing, he requires warm and attentive parenting.  How could the parents provide such care, having regard to the Threshold findings in this case?

(iii)        Inter-sibling relationships would of course be maintained if there were no adoption, but currently this is of greater significance to the other siblings rather than to K himself, and of course it is the welfare of the subject child which is paramount.  The loss of the future inter-sibling relationship and the parental relationship has to be balanced with the potential gain of a legally secure, safe and hopefully stable adoptive placement.  Adopters would view K as their own child, being able to commit to him fully, providing him with appropriate and loving care buttressed by the legal security of an Adoption Order.  This would be a far more normal childhood than a childhood in foster care (which would be prone to breakdown and change and repeated statutory reviews) and this would be more likely, in my judgment, to promote firm and secure attachments for K which would benefit him during his childhood into his adulthood and help him with future relationships and provide a future template for his future capability as a parent himself.

(iv)        I am required under section 1(4)(c) of the Adoption and Children Act 2002 to consider the likely effect upon K throughout his life of having ceased to be a member of his birth family and of being an adopted person.  Within this context, of course, I consider what kind of family life has it been for K hitherto within his birth family and what kind of family life would it be likely to be if K were returned to the care of his parents or to any one of his parents?  This adoption is intended to promote K’s safety, an essential prerequisite for a happy childhood and as a building block for a healthy adulthood.  I have to assume that K will acquire an accurate account of why he was removed from parental/familial care as part of his life history as he grows into adulthood.  An adopted child might of course emerge into adulthood resentful of being removed from his family of origin, and I accept this decision could in these circumstances destabilise, disable and disadvantage a child thereafter as an adult during his or her life.  Much of course will depend upon K’s experience of adoption, but in this case my decision is prompted by an overwhelming imperative to promote K’s safety during his childhood without physical and emotional harm and if K has this knowledge available to him in due course, and applying a mature judgment, he is on balance, I believe, more likely to accept my decision and emerge hopefully as a secure and grounded adult himself.  On the other side, would K emerging into adulthood with the benefit of the familial care which is available to him in this case and after, I believe, a likely damaged early family upbringing, have any better prospect for his future?  What is available for K as a young child if not adoption?  A childhood within the Care system, in foster care with the artificiality and the attendant uncertainty of such family life, LAC Reviews, periodic social worker visits, Looked After Children medicals; this is not ordinary family life.

177.     Having considered the Local Authority and the Guardian’s assessment of the various factors both for and against reunification, adoption, familial placement and fostering, I believe that the balance overwhelmingly points to the requirement of a Placement Order as being necessary and proportionate in these particular circumstances.

178.     It may be true that England and Wales is unique in favouring a system where the legal severance of family ties without parental consent is possible.  However, Parliament has authorised the Family Courts of England and Wales to make Placement Orders and Adoption Orders on this basis where this promotes the welfare of a child in accordance with the Adoption and Children Act 2002 and the Convention.

179.     I fully recognise that the severance of parental and familial relationships is always a serious step to contemplate, but in my judgment K’s welfare requires such an outcome pursuant to the Adoption and Children 2002 in the circumstances of this case.

180.     I approve the Care Plan for K and accordingly, I make a Care Order in K’s case and I dispense with parental consent and make a Placement Order for K.

[Provisions of orders set out]

End of judgment