England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT NORTHAMPTON

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF X AND Y (CHILDREN)

		29 October 2014

HHJ HUGHES:

1. The children with whom I am concerned and whose welfare is my paramount consideration are X, who was born on 5 October 2010, and Y, born on 12 November 2011. It is their welfare, as I have said, that is the court's paramount consideration. They are represented in these proceedings, through their guardian, by Miss Elliot of counsel.
2. The children's mother is CB. She was born on 24 November 1992. She is presently pregnant. Her baby is due early in December. The father of that baby is JB, who I shall come to presently. The mother is represented by Mr Schwartz, a solicitor. The mother's partner is JB. He was born on 27 November 1991 and he is aged 22, coming up for 23. He has been joined to these proceedings for the purposes of fact-finding, and I shall come to the rather unsatisfactory history in relation to his involvement in the proceedings when I make observations in relation to case management, which I will do at the conclusion of this judgment. He is represented by Miss Reed of counsel.
3. The children's father is DT. He was born on 26 March 1992. He separated from the mother. He has not had contact with the children for some time, although there are supervised contact arrangements taking place, about which no doubt I will hear more. He is currently being assessed within the proceedings and he is represented by Mr Littlewood of counsel.
4. This is the judgment arising from a fact-finding and threshold hearing listed principally to determine who caused injuries to Y. Y sustained a fracture to her left ankle, multiple bruises to both buttocks of varying ages and a bruise to her right wrist. There has been no dispute throughout this hearing as to the existence of the injuries; neither is it suggested that there may be any underlying medical cause. Various explanations have been given and not all of those explanations consistent with the injuries observed. I shall come on to the various explanations that have been given in relations to the injuries in due course.
5. The issue for the court has been to identify whether the injuries are non-accidental and, if they are, to identify who is the perpetrator or who are the possible perpetrators, and the Local Authority have set out their stall by way of a Scott Schedule, and I have that under consideration so far as this judgment is concerned.
6. In terms of the background to this case it is set out, if I may say so, in commendable detail in the Local Authority's opening Note. I make this point, however: where any of that detail conflicts with my findings, my findings of course prevail.
7. The children have been cared for by their mother since birth and since April 2014 or thereabouts the mother has been living with JB, and he is referred to by her as the children's step-father, notwithstanding the short time he has been involved in their lives ; the parties, as I have said, only having started to live together in April 2014. The children were removed from their mother's care on 3 May 2014, are currently in foster care and the contact arrangements subsist with both their mother and their father.
8. In April 2014 the mother and the father, DT, moved with the children to Northampton from London where the children had been subject to a Child Protection Plan due to domestic violence between their parents. They moved initially to the home of the paternal grandparents, where the children were placed on a child in need plan, and subsequently the risk was deemed to be reduced. It is, I think, a matter of record that the mother separated from the father in or about September 2013.
9. On 2 May 2014 Y was taken by her mother and JB to Edgware Walk-in Clinic and was found to have a fracture to her left ankle. Plaster was put on her ankle. The injury occurred on 29 April. It was reported ; and due to the late presentation she was referred to Barnet General Hospital A&E. It was there that further examination revealed extensive bruising to Y's buttocks and a request was made for her to be admitted for further investigations. There is evidence that I have read about JB becoming verbally confrontational in hospital and staff reported that he was intimidating. The mother declined further examination of Y and said she 'would deal with it all in Wellingborough' and the family left. Subsequently, there were attempts to contact the family, but the family returned to the ward with police at 1.00pm on 3 May and both girls were made subject to police protection orders so that further examination could be completed.
10. It is right for the purposes of this judgment that I rehearse carefully what is set out in the papers regarding that medical presentation and I should record also that a full skeletal survey of Y was carried out. Only the fractures to the ankle were detected, and I have read reports from Dr Sue Laurent and Dr Blaise Murugu.
11. Firstly, so far as the injuries are concerned, the fracture to the left ankle, was revealed at the Walk-in Centre on 2 May. In addition, multiple bruises to both buttocks, left side more than right. In some areas the bruises were confluent and extensive. They were different colours varying from blue to pink to yellow, which indicated that they were of different ages. The size of the bruising varied from one centimetre to over five centimetres.
12. There was a body map prepared by a Dr Pereira who examined Y. Formal body mapping was refused by the mother. Consequently the bruises are not measured and the sites are approximate, and further mapping was completed by Dr Laurent. What is of significance that arises from that investigation is that the mapping shows approximately 13 bruises across the buttocks and in particular, and I itemise them as follows, firstly, a bruise at the top of the leg approximately 10 by five centimetres, a purplish mix of colours, parts of the bruise were raised, a bruise on the right wrist, two centimetres by one, oval in shape; multiple bruises over the left buttock, including one two by one centimetre oval, flat brownish colour, well defined; one approximately one centimetre circular, flat brownish colour, well defined; and a larger bruise over the sacrum, dark brown; and multiple bruises over the right buttock. I have seen the photographs of that bruising which are set out in the bundle and in my judgment it is disturbing evidence to see that constellation of bruising in so young a child.
13. Medical opinion in relation to causation of the fractures was also recorded and I rehearse this again from the Local Authority's opening note. Dr Blaise Murugu indicated in her evidence that the pattern of injury was not compatible with the fall from a standing height, even allowing for the fact that Y is very thin. Dr Sue Laurent was of the opinion that the injury would require a fall from a greater height, such as a climbing frame, and it would be painful, and a late presentation of this sort of fracture is unusual.
14. Blood tests were carried out, which showed no abnormalities to explain the bruises or the fracture, and Dr Laurent commented on the mother's explanation that JB dropped Y, and this account of Y's ankle injury is what she would have expected to hear following a fracture. This in my judgment is a crucial observation in the context of what I come to in due course, having heard from the parties and having read the documentation.
15. Significantly, and I deal now with the bruises, Dr Sue Laurent said that there was no indentation or tenderness, no identified pattern, and in her view the bruising could have been caused by grabbing or hitting. She observed that children of this age who fall frequently do not have multiple bruises of this nature. They have bruises on the bony prominences, such as shins and knees, and this distribution of bruises would therefore not be consistent with the falls as explained by the mother.
16. Dr Murugu, commenting upon the mechanism of a fall from a push pedal bike, one of the explanations advanced by the mother, commented there are multiple huge bruises in different stages of healing, bluish to pink in colour, concentrated mainly on the left buttock and a few blotches on the right, and that mechanism is inconsistent with examination findings. It was recorded that the paediatric team feel this pattern of bruising is unequivocally non-accidental.
17. Arising out of that evidence there were explanations recorded by the professionals in relation to explanations given initially by the mother. Firstly, the mother gave an explanation at the Edgware Walk-in Centre, where she, Y and JB attended at 7.36 on 2 May, as I have already recorded. That report made at that time was that three days earlier JB was swinging the child and she landed on her foot and since then she has been complaining about pain and limping and the adults thought that it was a sprain.
18. There was a further explanation offered at the initial presentation at the Accident and Emergency Department at Barnet Hospital. That explanation was this, and this was offered by the mother: JB was playing with Y in the park, that was on Tuesday, throwing her in the air and catching her. She wanted to get down and when she was put down she twisted her ankle. She screamed but did not cry, and slept that night. On Wednesday she could not bear weight, on Thursday she sat and watched television. By Friday they noticed swelling and bruising of the lower leg and asked JB's mother about it and she advised them to go to Edgware. So far as the bruises are concerned, what was offered by way of explanation at that particular time: that they were sustained after falling over while playing with her sister.
19. In a police interview on 4 May the mother offered that JB was carrying Y to the park. She fell on her ankle, she was crying and she had been playing in the park. She also said that JB was running with her, holding her face to face with him. He put her down and twisted her ankle as he put her down and she fell on her ankle and then fell back. At that particular time the mother said that JB had said, 'She's probably fractured it,' and the mother put ice on it, and the child was crying later that night.
20. On Wednesday they noticed that she could not put weight on it but did not think anything of it, saw the swelling and on Thursday there was some swelling, put some more ice on it, and on Friday they went to the hospital. The mother offered to the police at that particular time that these bruises to Y happened when she was outside because " she has fallen off her bike and hurt her bum ", and she told the mother that she had " hurt her bum " a few weekends ago. The mother did not see Y fall off. She saw the bike having fallen over outside. She fell over at nursery was another explanation, hurt her leg and "got a little cut on her bum."
21. Another explanation offered by the mother was to the social worker, Nick Anderson, that Y was being held by JB in the park and they were running down a hill. Y wanted to walk, so he placed her down gently, and she twisted her ankle. What I think was the fifth explanation offered by the mother in her statement that was taken at court on 15 May was that JB was running with Y and the mother heard Y saying that she wanted to get down, and from her point of view it looked as if JB had dropped her. She was screaming, had a cut on her hand, JB was laughing, the mother picked her up and swore that it was not funny. Y screamed and was crying for about a minute, did not want to walk.
22. She recorded in that statement, and I shall come again to that statement in considerable detail later on in this judgment,that the swelling came up that evening. JB put ice on her foot, and crucially it was recorded that the mother had reported in that disclosure that JB advised her not to take her to the doctors. The mother admitted in that conversation that what she had said at the Walk-in Centre, that JB had been swinging her, was a lie and at the hospital that JB was playing with her and had put her down and she had sprained her ankle, and that was a lie.
23. At the police station she told police that JB had placed her down and she had landed awkwardly and the mother says, 'I was just in my own little bubble and that is what came out.' It was recorded: 'When the children were playing up JB would say he was dealing with it. I would hear Y screaming. He would tell me to go back downstairs and he was sorting it out.' A further explanation to the police, and this is explanation number six, in the second police interview on 20 May: 'JB was running with Y. I saw her drop. I went and picked her up. She went on to her knees awkwardly and twisted her ankle. He had been holding her around the waist, facing away from him. She dropped to the floor, landed on both knees.' She said that she was not saying that JB was laughing at her, but from her point of view it looked like that. Afterwards she was on JB's shoulders. She was crying, complaining about her hand and saying that her foot hurt, but was not screaming. Later she would not walk on it and it swelled up.
24. So far as the bruises were concerned, in this catalogue of explanations, the bruise explanation at that particular time was that Y came off the swing and hurt'her bum 'when the maternal grandmother was visiting. After the bike incident she had bruising on her knees, and she reiterated that JB was never left alone with the children.
25. On 21 May, on what I think was the seventh explanation, the mother told Sharon Lee, who is a midwife for her unborn baby, that the fracture occurred when returning from the park with an accidental fall. On 21 June 2014, in what was a response to the third police interview, she clarified a previous interview when JB dropped her by saying it was an accident and she was sure it was not intentional. Genuinely believed, she said, that Y was on the mend and did not need to see the GP. She said this to the police: she felt that she was a young mum being pressurised to blame JB. She did not believe JB is a threat or danger to her children. She said, 'JB is brilliant with my children.'
26. On 29 April the social worker, Mirabel Asua, interviewed the paternal grandmother, Yvonne Hill, who reported that the mother had given her different versions about what happened to Y, but Yvonne felt that the third version, 'she felt that JB threw Y on the ground on purpose', was true as the mother was crying at that point.
27. Sometime in June, I do not have the precise date, but it is the mother's statement, the mother opined that she was unsure as to how the bruises to the outer thigh and the wrist had happened, but went on to say this: that Y was a child who was particularly clumsy and regularly falls over. She said this: 'It is in my genes to bruise easily and Y must have inherited this.'
28. In the mother's final statement to the court she explained that JB was carrying Y under his arm, holding her around his waist height. Y's feet were dangling above the ground. As JB was running down the hill he accidentally dropped Y. She fell to the ground and rolled due to the gradient of the hill. Y picked herself up, not crying, did not complain of any injuries at the time or for the rest of the day, only at bedtime, said that her foot was hurting, and the mother administered Calpol and put ice on it and more ice the next day, and then she described a slowly improving condition until Friday, when in fact JB's mother advised her to have her foot checked as a precaution.
29. In that statement she was unable to offer any real explanation in relation to the bruises, other than to say falling off her tricycle and the child was clumsy and has been out of nappies since April 2014. She denied that she had told her own mother that JB had caused the injuries intentionally.
30. Going on to talk about JB, she said that he had disciplined the children, but she heard them crying for a short time, but had never had cause to be concerned. JB, too, has made a number of explanations to the police in relation to the matter. His explanation to the police was in the form of a statement, which I have read. In that statement he said that he believed that the ankle injury was an accident and explains it thus:

'I had run with her, holding her in my arms, then stood still to put her down on the ground and her foot twisted. She complained of pain immediately. I eventually carried her home. She appeared to get over the pain, but as a precaution on Friday we went to the hospital to check it out.'

31. So far as the bruises were concerned to Y's bottom, he recorded that he had been told by the mother they were a result of falling off her bike in the back garden, but he did not witness that, and in relation to formal interviews, not only on that occasion, he having provided a written statement, but subsequently and when he was interviewed again on 21 June he provided a no comment interview.
32. There are other disclosures that were made. Y on 7 May 2014 told the social worker that JB had hurt her foot, also told the social worker that she does not like JB, does not want him living in her house. That social worker also spoke to X and asked her if she likes JB. She said no, but would not say why, and she does not want JB living in the house.
33. Julie Angel, the health care support worker at Barnet General Hospital, records a conversation with Y. Y, seeing her mother was upset, asked Julie Angel why her mother was crying. Julie said it was because she had hurt her leg like Y had. Y's response was, 'No. No, JB did it.' She then asked Y how he did it and she said casually, 'He threw me.'
34. I make it plain in recording what the children have said about this particular incident, I do not place an enormous amount of weight on it on its own . I look to other areas of the case, for obvious reasons, that so far as disclosures by children are concerned in these circumstances a considerable amount of caution should be applied to them. It is merely part of the evidence which I rehearse so far as the background is concerned.
35. I record also, for completeness, that there were concerns about JB's behaviour at the hospital, where he was found to be confrontational and intimidating and, although I record those for the purposes of completeness, I put them to one side in relation to determining the issues that are before me so far as this case is concerned, as indeed I do, as I will presently explain, for JB's convictions for violence and drug offences. They do not assist me in relation to determining the factual causation in relation to these matters. There is a wealth of other evidence that helps me in relation to a determination.
36. In addition to reading all the filed evidence in relation to the case, I of course had the benefit of hearing the mother in live evidence and JB as an intervener. CB is the children's mother. She gave evidence on the second day of the hearing. Neither she nor JB attended on the first day of the hearing, having offered an explanation by telephone that the mother had been involved in an accident and taken to hospital and had been knocked unconscious.
37. It was later acknowledged that this was a lie and then advanced at court that the reason for non attendance was lack of funds, although subsequently JB did acknowledge in the witness box that he had not wanted to attend court because he had not wanted to be in a position that he found himself in court, namely having to answer questions. I should make it clear that whatever view I take of that lie and the attempt to deceive the court, I again put it firmly to one side in deciding the issues by reference to the Local Authority's Scott Schedule in a case that has be distinguished by numerous lies that have been told by these individuals. I will of course self-direct myself in relation to the well-established Lucas direction so far as the relevance of these lies, or otherwise, when deciding the issues in relation to this case.
38. Turning back to the mother, suffice it to say that she has made three statements, which are in the bundle, which stand as her evidence-in-chief. They are all essentially contradictory in nature, but the upshot of her evidence is that the injury to Y's ankle was accidental and she cannot explain the bruises, save and except to say that they were not caused by either her or JB, attributing them, as she does, to Y's clumsiness.
39. In her last statement she attributes the untruths that she has told regarding Y's ankle injury at hospital to the fact that she felt pressured by doctors and staff. She felt they were blaming her for causing injuries to Y, and for that reason she told the doctors 'what they wanted to hear.' She maintained that Y's bruises were caused by Y falling over while playing with her sister, falling off her push tricycle and/or falling through her clumsiness.
40. However, it is her statement on 15 May taken by way of a proof by her then barrister and signed and dated at court that requires the greater scrutiny. It seems that the first part of that statement she still maintains as being broadly true, namely the nature of an accidental causation to the ankle injury. Incidentally, the other accounts that she has given to the professionals she attributes, as I have said, to her not only being pressurised but 'tortured'.
41. The second part of that statement she complains is untrue and her case is that she told her barrister it was untrue before they went into court and he promised to change it. She said that her barrister had told her to get rid of JB as she would not get her children back. She maintained that JB is brilliant as a father and her children adore him, which of course does not sit squarely with what they told the social worker, namely they do not like him and they do not want him in their house.
42. It is the second part of that statement which she now says is untrue, which in my judgment is illuminating as it focuses on the bruises, and she says:

'I have never smacked, hit or pinched the children. I would use the naughty corner. When the girls used to play up and fight JB would say he was dealing with it and tell me to go downstairs. I would hear Y screaming and I would go upstairs to see what happened. I would hear the children crying and he would tell me to go back downstairs and he was sorting it out. I would see the children. The children would stop crying when I came in. They looked sad. I would ask them what happened. They said nothing while he was there. He would say kids need to learn and he would keep them up there until they stopped crying. I would try and ask them what had happened, but they would not tell me when JB was around. JB would involve himself in their bathing and getting them dressed for bed and when they got up. This would happen upstairs and not downstairs, as I would tend to do. I would be downstairs when he was upstairs doing this. I did see bruising one time when she was in the bath and I asked how it happened to Y and I was told, "I don't know Mum." And JB said, "Don't you think I've done it. You're not accusing me." And I left it there.'

43. It is, in my judgment, an illuminating piece of evidence and perhaps the best window on the truth of what was really going on in that particular household rather than anything the mother has said since or, indeed, in the witness box. Her case from the witness box was that she first saw the bruises at hospital when the child was examined. She did not see any of the bruises on Y when she was in the bath because 'there were bubbles in the bath.'
44. She maintained that the children undressed themselves, and at that time Y would have been a child of between two years, four or five months or so. She attributed the bruising to the fact that Y is clumsy on her bike. She maintained that even Y was able to substantially dress herself, but was unable to explain how she did not see bruising when she got in and out of the bath. It is, in my judgment, difficult to conceive of any circumstances in which a child of two years and a few months would dry itself, but that is what the mother maintained. I am afraid I found it totally unbelievable.
45. It seems that there is a wealth of evidence to suggest that this child was still wearing nappies, at least for night time. She tried to suggest in the witness box that Y was substantially out of nappies by the time she was two, although it is plain from one of her statements that she was not out of nappies until April 2014, and in any event of course was wearing a night time nappy. Coupled to that particular fact would be the fact that the child was potty training and would have needed help and it is wholly inconceivable that the mother would not have seen these bruises, varying as they did in age, size and colouration. Astonishingly in my judgment, she was resistant to the notion that she should have spotted the bruises.
46. She has maintained throughout her case that JB was not involved in bathing the children, in contradistinction of course to what she says in her statement, and that Y never asked for help in relation to potty training. I note of course that Y would have been at nursery for at least part of this time and I record it therefore as being surprising that the bruising was not noticed at nursery, but I have no evidence from the nursery before me in relation to that of any particular value.
47. I am afraid her account in relation to not noticing the bruising was a further lie in a series of lies that she has told, and the nearest she has come to the truth of the matter is what she says in her statement on 15 May, the one that was written in court. I gained the impression throughout her evidence that she valued her relationship with JB above all else and there was a regime of discipline in relation to this very young child in that house which in my judgment was abusive.
48. I return again to the statement of 15 May. It seems that JB stands by the account she gave on 15 May in relation to how the fracture to the ankle happened. What was curious in relation to her account was that she even tried to distance herself from the fact that she was angry with JB because he was laughing when Y went to the ground. Her explanation on JB's behalf is that he was laughing not to make Y scared, and once again I find that explanation quite frankly untenable.
49. It is of course in my judgment perfectly understandable that she should be angry with JB for his careless handling on his case of Y and her subsequent accident. Her case, and indeed JB's, is that Y improved during the course of that week, and there is some justification for this view in the light of the observations made in the Walk-in Centre on the Friday evening when the child was observed to be able to bear weight and there were other positive indicators.
50. However, there was little doubt in my judgment that this child was in great distress when this injury happened and both adults failed to take the appropriate action by insuring prompt medical attention at that time. Of course I am more than alive to the fact that a child taken to hospital in these circumstances would have prompted a thorough examination and no doubt the bruising would have been revealed, but it is difficult to know what to make of her position that JB was never alone with the children, notwithstanding of course her earlier statement of 15 May, except on occasions that she went to the shops. She has remained steadfastly supportive of JB throughout her evidence and was resistant to any notion that her children did not like him or that he composed any possible risk, making it plain she was not going to judge him on his past and that he was good with the children and they liked him.
51. I have already alluded in the earlier part of this judgment to the fact that Y had said on a number of occasions that JB hurt her foot or that JB had thrown her. It may well be that that is how it seemed to her, although there is other probative evidence in relation to what actually happened, not least from the mother herself in her account of 15 May. The mother has maintained that JB never hit the children, but of course said in one of her statements that he does discipline them and sometimes 'pats them on the bum'. She was unable to offer any explanation as to why she said this.
52. I have carefully balanced the mother's account with the accounts of others, including the medical professionals, and indeed JB's account. She is in my judgment an inherently implausible witness who is totally unable to offer any coherent explanation at all in relation to the substantial bruising on her little girl's thighs and buttocks.
53. JB has come to this case a little late in the day. That, in my judgment, is due to the failure of previous case management orders to ensure his earlier involvement in these proceedings. Despite being invited to do so in early course by other judges, he did not do so until in effect I compelled his attendance by way of direction and witness summons. It was of course vital that the court heard his evidence and was able to assess him, particularly as he is the father of the mother's unborn child. Of course he failed to attend, as we all know, on the first day of the hearing with the mother and I have already set out the circumstances in relation to that. I make it clear again I do not, however, hold that against him in the terms of assessing the truthfulness of his account and the burden placed on the Local Authority to prove its case.
54. His final evidence is encompassed in a statement filed shortly before this hearing. It is, and I record this, a credit to his solicitors that they have managed to prepare his case at comparatively short notice, facing the public funding difficulties that they inevitably are being faced with. His case is that he did not intentionally cause the fracture to Y's foot. He acknowledges responsibility for accident because he had care of the child. He has no explanation to make as to what caused the bruising.
55. His explanation in relation to the ankle injury is that he and the mother had picked the girls up from playschool and nursery respectively and had gone to the park. X had run off ahead of them downhill in the park. Y wanted to catch up, so he picked her up, tucked her under his arm at about waist height, with her head forward and her legs dangling. He slipped and Y fell on the ground, rolled over and it was clear that she was in pain because she cried. He said that at that particular time he had been running with her downhill. Y, on his account, was holding her ankle and instantly JB thought that he would be in trouble as he had hurt her while in his care. He thought of his previous convictions and the fact that he was on licence. It seems that he knew of the previous involvement with the family of child protection social workers. He claimed he only laughed to cheer Y up. In my judgment it is a ridiculous explanation.
56. The ankle was swollen in the evening and he applied ice as he had studied sport's science. He thought that the ankle injury was a sprain. Y could not put her weight on it, but she was not in agony and he did not consider that the child had a fracture at all, particularly as she was improving day by day. It was his mother that advised them to go on Friday to the Walk-in Centre at Edgware.
57. I am of course alive to the fact that Y would have been at home between Tuesday and Friday before the mother and JB and the children travelled to London to see their respective families. It is of course evidence which I derive from the medical section of the bundle that the child would have presented with a number of bruises during that period of time, and I say that particularly having regard to what the medical evidence says regarding the various ages, shape and sizes of the bruising.
58. In relation to that bruising JB's case is that he has never carried out any aspects of intimate care for the children, did not bath them or change nappies, and of course that does not sit well with the mother's account of 15 May, which she signed at court knowing full well that the circumstances would be relayed to the judge. It is of course in my judgment more probable than not that the account was the truthful account and that JB was more closely involved in his children's care and would in any event have seen the bruises.
59. I find his assertion that he was not aware of the bruising not credible, and we know that a number of varying accounts were given to medical professionals in his presence at the hospitals. It is important to recall that the medical professionals found him to be impatient and aggressive. His explanation was that he was tired and felt that the family were not being updated. There is an occasion of course for which he apologises to a treating doctor, but it is important in my judgment when examining his attitude to the bruises to look at that sum of that medical evidence in more detail by reference to the notes. I leave aside, as I have said before, his conduct in the hospital in terms of aggressive behaviour, but in terms of what he actually said there is some benefit in a forensic analyses.
60. There was a time at the Barnet and Chase Farm Hospital that he was resistant to a male doctor removing Y's underwear, saying, 'Is that really necessary?' It may well be he was indeed resistant to this and subsequently Dr Pereira, a female paediatrician, examined Y. Her notes made in the early hours of 3 May are illuminating and she records, 'Multiple bruises over the buttocks, outer thigh and wrist.' She records from the mother that the bruising over the left hip, thigh and buttocks was due to her falling over or playing with her sister.
61. Crucially, it was when this doctor, that is Dr Pereira, explained to the mother and JB that because of the fracture and the multiple bruises her plan was to admit the child to ward, obtain further information from agencies involved in Northamptonshire, measure and map the bruises and for the matter to be reviewed by a consultant, that the mother and JB were resistant to admission. That doctor records incidentally, 'Mum looked very torn what to do, almost agreed to stay.' It was when she was explaining to JB that she was not able to negotiate through the mother, as he did not have parental responsibility, at that particular time JB became confrontational and the mother and JB left the hospital.
62. Of course the mother has given an account that her other child, who was with her mother, was not settling, but I am afraid I do not believe her. I do not accept that evidence and in my judgment this was an attempt to avoid further detailed investigation, particularly in relation to the bruising to this child. It is noteworthy in my judgment that when this investigation was progressing there was resistance from both of them to allow a proper investigation and admission.
63. JB's case is that he had not seen the bruises before hospital admission and he said in the witness box that he was shocked and accepted that there were a lot of bruises and that it was not nice. Of course subsequently on an occasion in the police station he declined to answer any questions, but did make a statement after receiving legal advice. That statement also bears some scrutiny. The statement on his own admission contains another lie in relation to the ankle when he was placing Y down on the ground and said that her foot twisted. He also records in that statement, insofar as the bruising is concerned, that the mother had told him that it was a consequence of Y falling over off her bike in the back garden.
64. His explanation in relation to not telling the truth about what on his case was only an accident is that he was on licence and he thought that he may be in trouble. When he gave his evidence in the witness box he was challenged by advocates in relation to what he did to discipline the children. I am bound to say that what he said was somewhat worrying. He obviously considered it perfectly proper for the children, aged two and a half or so and three and a half or so, to be sent to their room for up to 10 or 15 minutes until they stopped crying, or put in the naughty corner for the same period of time.
65. In those circumstances it is in my judgment credible, and entirely credible, that very young children subjected to this sort of regime may well have said to their social worker that they did not want to see JB and they did not like him. It is equally fair to accept from time to time in contact that they may well have expressed to their mother that they did want to see him.
66. JB is a young man with a serious list of previous convictions, including some for violence. However, I reiterate, perhaps for the third time in this judgment, the issues in relation to this case cannot be decided on that information. He has no convictions for injuring a child, although it is fair to deduce that his personality can be from time to time intimidating and aggressive, and I certainly find the accounts of him by health professionals to be well made out, but that is as far as it goes so far as propensity to injure a child is concerned.
67. However, so far as lying is concerned he has of course lied to the court in relation to his non-attendance, lied to police on his own admission, as he said he was fearful of the consequences. I do not accept, and I find this as a fact, that he did not have more direct involvement of the day-to-day care of these children. There is little doubt in my judgment that he has been encouraged by the mother to be a father figure to the children and her statement of 15 May makes it plain that he was involved in their care. He would at the very least have seen the bruises and certainly must be included with the mother in the pool of perpetrators in relation to their causation.
68. It is necessary for me to summarise the law, which is well-established and well made out in relation to this exercise, and I shall do so as succinctly as I can. The burden of proving facts in relation to establishing either limb of Section 31.2A rests on the Local Authority and that burden does not fall on anyone else. The standard of proof, as we all know, is the simple balance of probabilities and the authority for that proposition is Re S-B (children) (perpetrator: non-accidental injury) [2009] UKSC 17, [2010] 1 FCR 321.
69. Within the same case the Supreme Court stressed that whilst it might be difficult for a judge, even on the balance of probabilities, to decide who caused harm to a child and whilst there was no obligation to do so, it not being a necessary ingredient of the threshold criteria, a finding on the balance of probabilities was preferable to no finding at all for many reasons.
70. Similar authorities go on to suggest that the court should try and establish a perpetrator. There are good reasons in relation to that, but it should not strain to do so. Why is it necessary for the court to go through the exercise of trying to identify the perpetrator? It is clearly in the public interest that perpetrators in relation to abusive children are identified, but at the same time it is also in the public interest that if there is the necessary exculpatory evidence and the Local Authority fail to discharge their burden that no findings should lie.
71. If the court cannot identify a perpetrator or perpetrators it is still important to identify the pool of perpetrators and the authorities in relation to that are set out not only in the authority that I have already outlined, but also the test in North Yorkshire County Council v SA & Ors [2003] EWCA Civ 839, [2003] 2 FLR 849 where Lady Hale, as she then was, said this at paragraphs 40-41:

'In North Yorkshire County Council v SA the child had suffered non-accidental injuries on two occasions. Four people had looked after the child during the relevant period for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply the "no possibility test" when identifying the pool of perpetrators. That was far too wide. Dame Elizabeth Butler-Sloss had preferred a test of likelihood or real possibility.'

72. That is the test that I must apply, that authority making it plain that there are real advantages so far as that finding is concerned. So far as the evidence is concerned, it is my function to look at all the evidence, all the circumstances of the case, and there is a particular authority which is of a great assistance in relation to the issues in this case, which is Re T (Abuse: Standard of Proof) [2004] EWCA Civ 558, [2004] 2 FLR 838:

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

72. I have made numerous references in this judgment to lies told by the parties and it is perhaps most material that I should remind myself of the decision by Charles J in A County Council v K, D and L [2005] EWHC 144, Family [2005] 1 FLR 851 at paragraph 28 where the learned judge says:

'In my view in determining the facts of caution I have regard to the guidance given in the case of R v Lucas [1998] 1 SCR 439. As appears there from, a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. I also accept there can be many reasons why a person might not tell the truth to a court concerning the future upbringing of a child.'

73. Of course in this case, as I hope I have correctly identified, the fact that JB and the mother lie about the explanation not attending the court on Monday does not necessarily mean that they are lying about their accounts or the account that they have proffered in the witness box so far as injuries to this particular child are concerned.
74. With those legal strictures in mind, I turn my attention to the findings that I am asked to make on the balance of probabilities in accordance with the Local Authority's Scott Schedule. Before I do so I make a number of preliminary findings in relation to the evidence I have heard and the presentation of the parties.
75. In this case I have been struck in particular by the presentation of the mother in the witness box. She has of course repeatedly lied in relation to her accounts regarding Y's injuries to professionals and has considerably muddied the waters so far as the forensic process is concerned. She has, in my judgment, shown a marked lack of emotion in any consideration of any suffering by Y, be it accidental or otherwise, and observations of her by hospital staff indicated very little empathy for Y's position. Her account of the extent to which she says that her children were able to self-care at approximately two and a half years old and three and a half years old respectively, were deeply troubling, if they are to be believed at all, and provide a disturbing window in what in my judgment was happening in that household.
76. The second observation finding that I make at this particular stage is the truly shocking extent of the bruising to Y's buttocks and thighs. This little girl must have suffered a great deal of pain and distress and multiple bruises would have been inflicted, in my judgment, on a number of occasions, and that is substantiated by the medical evidence. Again, this is highly indicative of the regime of care to which she would have been subjected and I have little doubt that all this bruising was non-accidental, comprising as it did approximately 13 bruises across the buttocks, again fully particularised in the medical evidence and set out in this judgment.
77. It is in my judgment wholly inconceivable and quite frankly incredible to suggest that these injuries could have been caused accidentally or as a consequence of some clumsy behaviour by this child. It is inconceivable and quite frankly incredible that the bruising was not noticed by either JB or the mother. They have lied about that to professionals and they have lied in the witness box. Finding, as I do, that these bruises were inflicted injuries, it provides a context in my judgment to consideration of the ankle injury and whether that that was deliberately inflicted injury or accidental.
78. I can do no better than to look at the mother's statement of 15 May made at court. For her to suggest in some way the first half of that statement is true and the second half, relating to the bruising and the evolvement of JB, was not true is once again incredible, and I infer that she says now, that now in the witness box, not having mentioned that aspect at all in subsequent statements filed with the court, because she wishes to distance herself from blaming JB in any way. Be that as it may, I concentrate on that part of her statement which deals with the ankle injury which she says is substantially true.
79. She describes in that statement JB picking Y up to catch X up, who was running away, and she says:

'He was running with Y and I heard her say, "I want to get down." From my point of view it looked like he dropped her. She was screaming and had a cut on her hand. He was laughing, and I picked her up and swore that it was not funny. I saw that she had landed on her feet and gone over onto her knees. She screamed and was crying for about a minute.'

80. I am, for the avoidance of doubt, incidentally, fully satisfied that that was the mechanism for that injury. I add to the mix that from the perspective of a two-and-a-half-year-old Y she could well have thought that she had been thrown by JB. However, there is no live evidence before the court in relation to the maternal grandmother's account, which of course is open to challenge, and I treat for all the obvious reasons some caution in relation to Y's perception.
81. However, and this is crucial, this in my judgment was a little girl who was so under-valued and ill-treated, to the extent that she has multiple bruising on her body, caused, as I have found, deliberately, that it is more probable than not that JB did indeed drop Y when she asked to be put down, not intending I am sure at that particular time to specifically cause her a fracture to her ankle, but rather this: being entirely careless, reckless and callous as to whether she was injured at all. It was in my judgment a callous act to a child who was already being maltreated. That in my view was the culpability that he has sought to disguise, and he has been aided and abetted in that by the mother. It is fortunate, perhaps, that a statement was taken from her at court on 15 May.
82. It is deeply significant in the context of this case that it is Y who is bruised and injured recklessly and not X. Subsequently, JB had been clearly aware that he had been uncaring and reckless when he dropped Y deliberately. He was reluctant for the child to receive immediate medical advice, which of course she should have done, and as a consequence the mother failed to protect Y in these circumstances. Or course, had Y been taken to a doctor and thoroughly examined, the extent of the bruising also would have become obvious and that is why, firstly, the presentation at the hospital was delayed and, secondly, obstacles were put in the way by JB when a paediatrician wanted to pull down Y's knickers and examine her body as he full well would have known, in my judgment, what would have been revealed.
83. His argument that the examination should have been conducted by a female was of course a smoke screen as paediatricians as doctors routinely examine very small children of either sex. Once the extent of the bruising was known and seen the attempts made by both the mother and JB to further confuse the picture and/or leave the hospital are clearly set out in records and require no further amplification from me in this judgment.
84. The mother knew that JB had dropped Y deliberately, hence her different and differing accounts, and it is only for the first time on 15 May when advised by a barrister at court that in my judgment she made a truthful statement, from which she has subsequently sought to resile. She prefers her relationship with JB to be preserved at the expense and welfare of her children. The rest of her evidence comprises multiple lies.
85. I move on to the second part of the mother's statement, which she says is false, and, as I have said, I do not believe it is a false account. An account of JB's management of the children upstairs when she was downstairs is deeply disturbing. There is a clear indication by the mother that JB would discipline Y inappropriately and there is more than an echo of that in relation to what JB said himself in the witness box regarding his view of how to discipline such tiny children. Such management of tiny children is clearly very worrying. Significantly, he would ask the children to stand in the naughty corner for between 10 and 15 minutes and I use his words 'if they would backchat their mother.' How on Earth a two-and-a-half-year-old and a three-and-a-half-year-old can backchat their mother in a culpable way is beyond belief.
86. I turn now to the schedule. I shall make it clear that I have balanced the parties' accounts with not only their oral evidence but other evidence in the case and I will take these findings in short order using the same numberings as in the Scott Schedule. Item one: this is agreed by all and not controversial. Item two: Y did fracture her ankle. Item three: there are no other possible perpetrators in the pool other than the mother and JB.
87. Item four: the ankle injury was inflicted by JB by deliberately dropping Y, not anticipating that she would fracture her ankle, but being reckless as to whether she was injured or at all. As I have said, it was a callous and uncaring act on a vulnerable child. The bruises were caused or inflicted by either the mother or JB or both. Item five: the mother's accounts have been inconsistent and the only credible account is the one that she gave on 15 May.
88. Item six: the mother was not the perpetrator of the injury to Y's ankle but failed to protect Y by ensuring that she received prompt medical attention. Thereafter she sought deliberately to mislead medical help professionals, social workers and the court. Item seven: this is proved. Incidentally, I accept, for the avoidance of doubt, the presentation of the child was improving over the course of the three days until the Friday presentation at the Walk-in Centre, but I find that the mother was persuaded by JB not to seek medical help because she knew he had deliberately dropped Y and there would be a risk that the bruises would be revealed.
89. Item eight: equally, JB was aware of the injury and the pain in relation to Y and did not seek help. Item nine: both the mother and JB removed Y from hospital after her injuries were discovered, contrary to advice. Item 10: I find the bruising to be non-accidental, inflicted injuries caused by either grabbing or hitting and that the mother and JB were aware of the extent of the bruising. Item 11: it is not possible on the evidence to say who inflicted these injuries, but they were inflicted injuries caused to the child while in the care of JB. Item 12: both JB and the mother are in the possible pool of perpetrators. Item 13: if the mother was not the perpetrator in relation to the bruising then she failed to protect Y.
90. In my judgment as a consequence of these findings any child would be at risk of significant harm if left in the care of JB or the mother. They have each played their part in seeking to mislead medical health professionals in ascertaining precisely what has happened and have shown a marked lack of candour and honesty throughout these proceedings. Their lack of honesty and candour with the court and the professionals goes in my judgment directly to future risk.
91. It follows therefore that the threshold criteria in relation to Section 31 of the Children Act is made out, not only as a consequence of these findings, but also in relation to the agreed findings so far as the father is concerned, which are recorded separately, which relate broadly to items 14 and 16 of the schedule. It only now remains for the court on a subsequent occasion to give directions and deal with the welfare stage of these proceedings.
92. I said that I would comment on case management and that is implicit from the title to this judgment. I have been concerned in this case in relation to two features. One was the failure of the judiciary to robustly do what was required to do in order for JB's case to be before the court, and the invitation, I believe, to JB to become a intervener was extended on 15 May in a judgment and not subsequently followed up by means of a direction to attend or a witness summons. As a consequence of that delay was occasioned in relation to these proceedings.
93. It is clear from the authorities, and one in particular, that the court must ensure that potential perpetrators are before the court if a positive case is going to be advanced so far as they are concerned and particularly true in this case, in my judgment, where JB is the father of the mother's unborn child. It should, in my judgment, have been evident to the court, no doubt after being urged to do so by the parties, to ensure that JB attended and engaged. Had he done so in early course I suspect life would have been considerably easier for his solicitors, who have worked valiantly on his behalf to ensure they have public funding, instruct counsel and present his case before the court.
94. It was not until my involvement in August, in advance of me becoming the designated family judge for Northampton, that I ensured that no further time would be lost and there were a series of directions that were designed to enable JB to file evidence and put his case before the court.
95. That is the first observation. The second observation is this: I record in my case management order of 29 August 2014 that case management directions made on 9 June have not been complied with by the Local Authority. As a consequence there was slippage in the timetable. I recorded in that order that I was dissatisfied with the failure to comply with directions, particularly in this regard: that when a case is going off track there is a responsibility on all the parties, but on the Local Authority in particular, as they have conduct of the litigation, to restore the matter to court. That did not happen in a timely way.
96. It seems to be the exception rather than the rule that case management orders in Northamptonshire are complied with. It is not a position that I am prepared to tolerate, as I believe I have made widely known. Litigation conduct must be adhered to in the context of the revised public law outline and in the context of the president's judgment in Re W (Children) [2014] EWFC 22. Directions made by a court must be complied with if a case goes off track, and many do for reasons totally beyond the control of the parties. The matter must be restored to court, and that did not happen in this case.
97. Finally, let me end on a positive note. Irrespective of my concerns about case management, either by the judiciary or indeed by the Local Authority, let me say this: that there was good protective work by social workers in this case who acted promptly and, in view of my findings, efficiently to protect these children.