England and Wales Family Court Decisions (other Judges)

In the Family Court
In the Matter of the Children Act 1989
And in the Matter of DB and JB (Children)

		7 July 2014

HHJ Swindells QC:

Introduction

1. I am concerned with the welfare of two children: D who is aged 2 years and 10 months and J who is aged 1 year and 4 months. The boys have a half sister, G, who is aged 13 and a half brother, JD, who is aged 11.
2. Their mother ('the M') is KD who is aged 33 and their father ('the F') is JB who is aged 25 and has parental responsibility for the children. Their maternal grandparents are RM and EM ('the MGPs').
3. On 3 December 2013 J was admitted to the Queen's Medical Centre (QMC), Nottingham and was found to have sustained extensive bruising, skull fractures, a subdural haemorrhage, a fractured humerus and a fractured tibia.
4. Care proceedings were issued on 13 December 2013. The children were made the subject of Interim Care Orders on 3 January 2014, which have been renewed by consent. D has been in foster care since 5 December 2013 and J has been in foster care since his discharge from hospital on 10 December 2013.
5. In the light of the decision of the Court of Appeal in Re S (A Child) [2014] EWCA Civ 25 the matter comes before he court as a composite hearing to consider threshold under s 31(2) of the Children Act 1989 and the children's welfare.
6. The local authority seeks to establish, on a balance of probabilities, the findings set out in a Schedule dated 25 May 2014 to satisfy the threshold criteria under s 31 (2) of the 1989 Act. The Threshold Schedule (which appears at TB1A/A107 -110) includes findings that the injuries sustained by J were non-accidental injuries and that the parents, the MGPs and the interveners all fall within the pool of perpetrators. Each of the potential perpetrators denies causing the injuries.
7. The local authority seeks care orders in relation to both children. In the event that no significant findings are made against the MGPs, the local authority proposes that the children are placed with the MGPs under the auspices of a care order with supervised weekly contact with their parents. In the event that significant findings are made against the MGPs, the local authority proposes a placement for the boys outside the family and has flagged up that, in those circumstances, it will consider its obligation under s 22 of the Adoption and Children Act 2002 to apply for a future placement order.
8. The M and the F accept that they are not able to care for the children but seek to maintain a relationship with both boys. The MGPs have applied for Child Arrangement Orders in their favour

Background

9. The parents commenced their relationship in 2009/2010. Their relationship was volatile, argumentative and violent. It involved shouting, throwing objects and damaging property and was further impaired by their cannabis misuse. The F would kick in doors and punch holes in doors. The paternal grandmother, TB, described their relationship as volatile with shouting and screaming at each other and at times becoming physical with cups being thrown. The parents have accepted in their Responses to Threshold that their relationship was volatile and that they misused drugs.
10. At the hearing on 14 March 2014 the M stated that she had stopped smoking cannabis 3 weeks prior to the hearing. However, hair strand analysis confirmed that she had in fact used cannabis in the periods of January, February and March 2014 and was highly likely to have used cannabis during December 2013.
11. The boys' sister, G, has undergone ABE interviews in the parallel criminal proceedings. In the interview on 9 December 2013 she described an occasion ('the sleeper hold incident') when she was play fighting with the F and the F was demonstrating a self defence trick in which he put her in a "sleeper hold" (ie arm around her neck) and 'squeezed… he didn't mean to but he 'made her go all dizzy and she fell.'
12. The F in his police interview described 'mucking about with G… putting his arms around her chest and covering a bit of her neck … for about ten , eleven seconds and she tapped him so he knew something wasn't right and so he said "Are you alright?" and she nodded "Yeah" and just walked off and collapsed, just blacked out…and hit her eye on the corner of the table as she collapsed… she split her eye and you will see a little scar underneath her eyebrow…and it was pissing with blood…' The M was not present at the time but was told about it on her return. No medical attention, however, was sought for her daughter.
13. Dr Sue Warnock, Chartered Educational Psychologist, carried out an assessment of the F's cognitive functioning. She found that he had capacity but that his general intellectual ability fell within the extremely low range.
14. In the course of her interview with the F said:

'Cos' of my learning difficulties I can wake up and be a 16 year old kid. Those are days when I cannot look after myself let alone my kids. Those are the days when KD would laugh at me and push my buttons. She would go out to work and I'd punch the doors. "JB needs me" is what she should say to her work. I'd feel angry with KD for going to work. D would say if I started going on a mad one…he'd say 'Dad, Dad, Dad" to get me to stop going off on one if I was having a bad day and if KD was not there…'

'I had problems with their mum going to work all the time and laving me with the kids when I have learning disabilities. That's when we were arguing. What about poor old me stuck at home with the kids from day one? It was OK at first, she took to D quite well, but J was 'iffy'. It went to me having him (J) a lot…J was a little more difficult that D; he used to scream a lot at night and some days he would scream a lot. J was a 'whinger'; more of a 'whinger' that D was. I had them three or four days a week. As soon as she came home, I would go out.'

'When she (KD) used to go out, she would laugh cos she'd go out and I'd get angry. When KD went to work, I'd let my anger out by punching doors. Cos I would be either punching doors or punching her and I'd rather punch a door than punch her for it…'

'I've been told by Social Services that I am going to anger management. I'm not happy cos it is only KD that pushes my buttons. If I've had a bad day with KD, then the poor kids get it. When she went, I would scream and shout at the kids, when changing their nappies, and saying like 'f**k it.'

15. The paternal grandmother, TB, had been vociferous in expressing her concerns about JB's capabilities in handling his own children to his partner, KD, and the MGPs. She said that JB has suffered brain damage and suffers from epilepsy, which requires someone to medicate him. He has mood swings. On good days he is capable of caring for his children but on other days when he says he is not feeling well and is distressed, he becomes extremely loud, animated and unreasonable but not aggressive. Once he is medicated he becomes more reasonable and tries harder to control himself. On a bad day he becomes fixed on himself and is quite unaware of anything else around him.
16. SM & RB accepted that they had arguments whilst under the influence of alcohol. SM was cautioned in relation to an incident involving RB and herself which started in a public house and spilled into the street during which SM admitted punching RB. There was also a loud drunken argument between the two at D's Christening, notwithstanding that children were around. They both accepted that their behaviour had ruined the day. SM had been a carer of children with autism and learning difficulties together with her mother, CC. CC said that SM had stopped working as a carer two years ago when her drinking became problematic.
17. SM accepted that she was regular smoker of cannabis whilst she was caring for J overnight. They both smoked cannabis during the evenings and SM smoked cannabis some mornings because it relaxed her.
18. RB accepted that he had a temper and had convictions for violence. In 2006 he was reprimanded for battery; in 2007 he was convicted of battery; in 2008 of assault and in 2009 of common assault. In relation to the 2009 conviction he had to undergo an anger management course and was excluded from licensed premises.
19. The paternal grandmother described their relationship as volatile when subject to the outside influences of cannabis and alcohol. She said that alcohol was predominantly the problem and she had witnessed them when they had had alcohol becoming aggressive, incoherent, argumentative and focused within their own world. She said that they had told her that they made a decision to cut down on their alcohol consumption in the summertime of 2013 They were, however, using cannabis in the period up to 3 December 2013.
20. The F in his evidence said that for three to four weeks in 2011 or 2012, with his brother's full knowledge, he had slept with SM in her bed whilst his brother was working away in Liverpool. He claimed that his relationship with SM was not sexual but that he got very close to her to the point that he replaced a photograph showing RB and SM with a photograph showing SM and himself. He said that he was in a very bad way at the time; both he and SM were taking Emcat. SM accepted that JB shared her bed, notwithstanding that she knew he was obsessed with her but denied any sexual intimacy. RB acknowledged that he was aware that his partner was sharing a bed with his brother but said that he trusted them that there was no intercourse.

Events leading up to and including J's admission to hospital

The bouncy chair incident

21. On 21 November 2013 whilst J was in the care of his paternal uncle's girlfriend, SM, he suffered a small bruise on his left forehead, a bruise on the left side of his nose and some redness on the left side of his left eye when he allegedly fell out of a bouncy chair and hit his face and his nose on the floor ('the bouncy chair incident'). SM says that she had not strapped him into the chair.
22. The M says that, when she collected J, he had a bruise to the outer side of his eye which developed into a black eye. She was told by SM that J had turned, whilst in his bouncy chair, and fallen out, banging his eye on a TV cabinet. In her second police interview the M said that when SM told her about the fall from the bouncy chair ''I thought "Oh, for fuck's sake, why weren't you keeping an eye on him or why didn't you strap him in to the bouncy chair. I was a bit pissed off' but went on to say that she let SM have him again ''cos I trust her with him but it was an accident him falling out of the bouncy chair and I had too much on myself with my work, JB and the other kids as well 'cos it was just a break from J'
23. The M took J to the GP and was told by the GP 'not to worry. It will go down'. In the GP notes there is an entry for 12 September 2013 which reads:

'Fall – accidental. Acc to mum: had a fall from his bouncy chair last night. Wanted to get him checked. Was staying the night with aunt. Rang for apt in morning. No other concerns. Eating, drinking fine. No excessive sleep/irritability. Small bruise left forehead and left side of nose. Also some redness left side of conjunctiva (left eye). Able to see all borders, perla, eye movement fine (follows the light). No swelling nor tender area on head. No other bruising elsewhere…paracetemol… advise to please apply seat belt all time'

24. In her oral evidence SM said that she placed J his bouncy chair without putting on the straps. She did not put the straps on because she was not thinking as she had not been up for long and she was only going to be away few seconds. She was in her bedroom about a minute or two when she heard a little cry and when she went back in he had come out of his bouncer and was on the floor. She did not know how he came out of the bouncer The bouncer was positioned in front of the TV and beside a glass table and whilst she said it was possible that he hit the glass table she accepted that she told the police that this was unlikely. She was unable to account for the three impacts to J's face. She said that J was a 'little bit crying' and she picked up him to comfort him and to check his face. At first the mark looked minor, but, as the minutes went by, the bruise around his left eye began to darken. She could only recall this one bruise around his eye. Her mother, CC, described the injury as a mark 'like a carpet burn or a graze on his head'. SM denied punching him. She telephoned RB and then contacted JB to let him know what had happened. RB said that she rang him at his work at 10 am in his break. She was upset, distressed and panicky.
25. The F said that SM made an emotional telephone call to him telling him that she had put J in his bouncy chair and had left him for a few minutes. She heard him crying and when she returned to the room she found that he had fallen out of his bouncer onto the floor. He later met her on the canal tow path and she repeated what she had told him. He said that there was no mention of a TV cabinet or a table being involved.

November 2013

26. In mid November 2013 J's brother, D, was seen to jump on him or trip over him but this was not considered of any particular significance at the time (the 'D incident'). The MGM in her police interview described D as playing with J very roughly and walking over him and volunteered that 'the way he (D) is with him, I think he could have done it'. The MGF in his police interview also suggested that D could have caused the injuries by jumping up and down on J, walking over him or falling over him. He described this thought as 'a little shine of light'. The M in her December police interview said that she thought that D might have done something 'fall on him or something'.
27. Towards the end of November, whilst the M, the F and GM were smoking outside, J slipped out of the front door and banged the right side of his head on the ground. This caused him to cry. He had a circular sized bump and was given Calpol. He was fine afterwards ('the door step incident'). The M in her police interview said that G was supposed to be watching him whilst they went out for a cigarette but she did not and so no-one was watching him, which she accepted was not acceptable.
28. SM had said in her statement/e mail dated 18 March 2014 that 'I cared for J on 18 November for a couple of hours whilst KD was working; other than that I'm not sure I cared for J in the two weeks prior to his injuries.' It was, however, established from texts she had sent that SM had J to stay on 18 November, 21 November and overnight from 25 to 26 November. RB in his email statement dated 19 March 2014 stated 'On the weeks leading up to 3^rd December I had not seen the boys at all for about two weeks until the night before the 2^nd December…' Both omitted to mention J's stay on 21 November and his overnight stay on 25 to 26 November 2013.
29. On Saturday 30 November 2103 the M said it was a normal non-working day. She was doing the housework and playing with J. He was able to crawl. He was also pulling himself up to stand but kept dropping back and falling on his bottom but nothing happened to cause concern.

Sunday 1 December

30. On Sunday 1 December 2013 J was cared for by his MGPs from about 3 pm to 5.45 pm, whilst the parents took D to see the Christmas lights. For a short period of time the MGM was on her own with J whilst the MGF drove the parents into town. The MGM took off J's coat. He was wearing a babygro. Whilst the MGM changed his nappy, J was given a toy to hold which he played with well. The MGPs generally described J as playing happily, particularly with a spinning top and building bricks.
31. However, the MGM said that he sat on the floor and, although he was moving from toy to toy, he was not crawling, even though at 9 months' old he could crawl. He got a bit grumpy and the MGM thought that he wanted a feed. He was given a bottle of milk. The MGM said that she did not wind him after the milk. He went to sleep thereafter and, when he woke up, he vomited all the milk onto the floor. It was a projectile vomit which was not usual for J. However, he appeared fine after that and the MGPs played with him on the sofa. When he continued to be grizzly, they thought he might be hungry and so they gave him some solids and pudding.
32. Their daughter rang up at about 5.45 pm saying that they were back from the Christmas lights. The MGPs got J ready and took him back to the parents' home. They said that they did not notice any facial bruises on J or any pain on movement.
33. G's father, PD, said that on the Sunday evening when he returned G from contact, the M and the F were at home with J who was sitting on the floor with his toys and was wearing a babygro. He described a smiling J crawling over to G who picked him up and then handed J over to him. Whilst he was holding him, he talked to him for about 5 minutes and did not see any bruises. The M in her evidence recalled that PD had come round on the Sunday evening to drop off G.
34. PD's account in his oral evidence, however, differed from his account in his Police statement which he made only days after the event. In his police statement he said that this event took place on the Monday evening when he was returning G from her ballet lesson, which he described in some detail. In his police statement there was no mention of G picking up J. In his oral evidence he said that he had not gone into the house on the Monday night because he was running late and could not understand how he had made this mistake about the day or how it had slipped his memory at the time of the police statement that G had picked up J. He did say that after he had made his police statement he went to the MGPs' home and talking with the MGM he realised that his police statement was wrong. He saw the MGPs quite often because they have contact with his children and he had made comments to them about the proceedings such 'I can't believe this is happening'. He was remarkably sanguine about his daughter losing consciousness and suffering a wound above her eyebrow in the 'sleeper hold incident' and apparently knew nothing about JB shooting his son with a BB gun.

Monday 2 December

35. From about 10 am on Monday 2 December 2013 to lunchtime on 3 December J was in the care of RB and SM, save from 12.30 pm to about 4 pm when he was returned to his M's care whilst SM had her eyebrows waxed.
36. The F says that when he and J were travelling on the bus to SM's home in the morning J started crying. He tried rocking him in his push chair to calm him down but this did not work. J was still crying as he pushed J in his push chair to SM's home. On his arrival at SM's home he told her that J was crying and 'he did not know what was wrong'. He stayed with J about 30 minutes to try and calm him down but SM eventually told him to go. When the F left, he says that J was calming down a little bit. He thought that the crying could have been because he was teething. The M said that it was unusual for J to cry for half an hour as he was an easy baby to settle. SM confirmed that when the F arrived with J at about 9.30 am J was crying and was very upset. She did not think that the F was there for 30 minutes and she recalled J crying a little bit after JB left but very quickly settled thereafter.
37. When SM returned J at about 11.30 to 12.30 pm the M says that she gave the boys their lunch and then dropped off D at the nursery at about 1.15 pm. At about 2 pm the M visited GM's house with J and says that she stayed for about 1 ½ to 2 hours, which tallied with a series of texts between SM and KD. The M and GM say that J was playing happily and crawling though GM noticed that he was not crawling as much. They saw no marks or bruises.
38. J was returned to SM's care at about 4pm to spend the night at SM's home. RB was at work until about 6pm on 2 December 2013 and left again for work at 5.45 am on 3 December 2013. RB did not know that J was staying overnight. He had previously said that they could not have J overnight because he needed his rest as he had an early start for work. Although it was SM who carried out all of J's personal care, RB said that he was trying to keep J awake until 7 pm but he kept falling asleep. He described J as 'mardy and tired.' SM says that RB was never alone with J. RB and SM both say that J was crawling and playing with toys and at no time did they see any marks on him.
39. SM says that on the evening of 2 December she had her shopping on the handles of J's pushchair which caused the pushchair to tipple backwards but she caught it before it hit the floor ('the push chair incident'). J had been strapped into his pushchair but suffered no injury. She checked him over and felt his head and he was 'fine' with no sign of discomfort or pain. He did not cry.
40. There is a dispute between the F's friend, JH, and the F, KD and GM as to whether on 2 December JH entered KD's home and began the outline of a tattoo of 'the Grim Reaper' on JB's thigh. JH is adamant that he was at all times out in the garden and never entered the house to start the tattoo. JB, supported by GM, was equally adamant that he did.

Tuesday 3 December

41. On the following morning, Tuesday 3 December 2013, J woke up earlier than he normally did and was grizzling and not happy. SM said that he was not acting like J but she put it down to teething and gave him Calpol. S changed his nappy, gave him a bottle and settled him on a blanket with his toys so that he could watch the TV. SM was picked up by her M, CC, and called at her mother's house en route to the M's home. SM gave J teething granules whilst at her mother's house and there was a discussion about Calpol. CC described J as happy and fine, though he did become niggly later on which she put down to his teething as he had his fingers in his mouth. He looked pale and tired and was drifting off to sleep. He was wearing a babygro and so only his head, neck and hands were visible to her. She did any notice any marks or injuries on J.
42. When J was returned at about 12.30-45 pm on 3 December by SM to the parents' home, both parents and the interveners, GM and JH, were all present. GM in her police interview described J as 'turning up out of SM's care in a right state, crying and grizzly' but in her oral evidence she played this down saying that it was not as loud as his crying on the 999 call. SM told her that it was because he was a bit tired and in her oral evidence she said that she had no reason to disbelieve SM. The F, on the other hand, told the police that J was perfect and smiling at him.
43. The M says that she asked SM 'why he was crying' and that SM told her that she had gone down a kerb with J in the pushchair which gave him a jolt. This had scared him and caused him to cry ('the jolt incident'). SM herself said that J was sleepy and she caught the wheel of his pushchair on a kerb and it had woken him up and so he was a bit 'niggly.' SM texted to KD at 12.49 'Sorry, hun, literally just seen these msgs, lol. He shu sleep for ya now bless him. He's shattered' and at 12. 57 'he's had a bath as well, hun; he probs needs some calpol for his teeth. Apart from that he's been a lil diamond'.
44. There is a confused picture as to what was happening in relation to J on his return to the family home. The M says that he stayed in his pushchair near the front door and was not taken out of the push chair or fed or changed and that there was quick turnaround at the family home before they set off for the bus. The F initially in his oral evidence echoed the M. However, when it was put to him that he had told the police that J was taken out of his pushchair and the M had changed his nappy with GM present, he first said that he had been confused in his police interview and then corrected himself and said that what he had told the police was true. He said that he did not know if J was given anything to eat but he fed D macaroni cheese. He thought that they were a good hour in the family home before setting off for the bus. Later in his evidence he reverted to there being a quick turnaround with J remaining at all times in his pushchair. GM's recollection was that they turned round straight away because they were running late for the bus. Both the M and GM accepted that they did not care about J at all at this time as they were solely focused on GM's hospital appointment.
45. Both the M and the F accept that there was a heated dispute between them about who was going to care for the children, given the presence of JH to give the F a tattoo. The M was texting round family and friend pleading with them 'to have the kids'. The parents both accept that J was not given a bottle although neither of them was clear as to whether SM had given him a bottle before her arrival at their home. They further accept and that he was only wearing his 'super,' predominantly navy coloured, babygro with no coat, hat or gloves despite it being a cold December day.
46. At the bus stop, the heated argument continued between J's parents which they ultimately resolved by agreeing that the M would take D and the F would take J. In her police interview GM described J at the bus stop as 'very, very upset' but again in her oral evidence played this down saying that this was taken out of context. The F could not remember this. The M said that his crying at the bus stop was not like his crying during the 999 call. She accepted that he was possibly tired, cold and hungry.
47. The M, the F and GM then travelled together on the bus to Grantham where they separated; the M, GM and D travelling to the hospital for GM's appointment, and the F retaining the care of J. He did some shopping and changed J's nappy in Morrison's changing room. He says that he did not see any marks on J's face or back at this time.
48. The F and J then returned by bus to the family home at about 2.23 pm. J had been crying and whinging on the bus. The F's friend, JH, was there watching snooker on the TV. On arrival, J was grouchy and the F put him in his rocker in the front room and gave him a bottle whilst JH was setting up his tattoo equipment in the kitchen. JB later changed J's nappy in the front room taking off his 'super' babygro in the process, which he said did not cause J any pain or distress. He said that he did not replace the 'super' babygro because J was sweaty and had dribbled onto the babygro. At about 2.30 pm the MGF dropped by to see if KD was about but, when he learnt that she had gone to the hospital, he did not stop. He did not see J.
49. The F's friend, JH, began tattooing the F whilst J sat in his high chair in the kitchen. The F says that he rang the M asking her 'what was he supposed to do (about J whilst he was being tattooed)?' Neither KD nor GM could remember this call. JH said that, whilst the F was setting up the high chair, he held J in his arms and described him as 'fine and laughing' and he did not see any marks on J. The F says that J was drowsy and falling asleep with his head drooping forward but he did not recall J's head hitting the tray of the high chair. The F took him upstairs and placed him in his cot. The F denies seeing any marks or bruising on J at this point. JH says that the F was upstairs for about 5 minutes. He said that his machine was 'off' when J was being taken to bed and if something had happened upstairs he would have heard it but he heard no excessive crying. He added that he would have been able to hear J cry whether the machine was on or off.
50. The F says that he checked on J briefly and he was asleep but was tossing and turning. In his first police interview he said that 'it looked like he was whinging about his arm when I first put him in (the cot).' The F struggled to explain his comment 'he was whinging about his arm'.
51. The F was clear in his oral evidence that he had placed J in his cot in nappy without a babygro and that J remained only in his nappy until the F went down to wait for the paramedics. This had been his clear evidence when interviewed by the police, although in later interviews when it was suggested to him that he may have put a babygro on J, he said he might have done. JH's recollection was that J was wearing a light blue babygro and he never saw J in the super babygro at all.
52. JB was recalled to give evidence to enable the MGF to put questions to him about the babygro. JB said that he had changed J out of the super babygro, when he was changing his nappy downstairs and put him in the thinner, pale blue babygro. When he was going upstairs with J, he took the super babygro upstairs with him, which was ready for a wash. When he put him in his cot, he took him out of the pale blue babygro, because he was sweating, as it was hot inside. He denied getting sweaty hands and dropping J.
53. There are a number of photographs of the family home. In one photograph there is a bottle of orange flavoured baby nurofen on a window sill. Another photograph shows the inside of the bin, which the M said was changed twice daily. At the top there is the packaging of another bottle of baby nurofen which was strawberry flavoured. It was resting upon a Morrison's bag. Both parents were evasive in their evidence as to the use of the two nurofen bottles, both denying that J was being given nurofen due to the pain of his injuries on 3 December or on the days leading up to 3 December.
54. The M and her friend, GM, returned home with D at about 3.30 pm. On their return J was in his cot; the F having told her that he had fallen asleep in his high chair. JH was still present in the kitchen.
55. The boys' half sister, G, returned home from school at about 3.50 pm. The M asked her to go and get changed and to check on J. Shortly afterwards G called out that J had marks on his forehead and was "not right". The M went upstairs to check and found J looking unwell, upset and grumpy and not moving his neck. The MGF said that at 16:02 he received a text from KD saying 'can you ring me quick?' which he did at 16:03. KD said that J was 'not too good' and the MGPs immediately went round to the parents' house
56. The MGPs say that, on their arrival, they rushed straight upstairs and saw that J was clearly unwell with his face facing the wall and he could not move his arm or his head. There was a discussion about possible meningitis because of his stiff neck and at one point the M went downstairs to fetch the meningitis card. The MGF did notice the red marks on J's forehead which he said look like pressure marks and insisted that they were not bruises. He told the M to telephone 999, which she did at 16.07.
57. The MGF said that, when he saw J, he had a babygro on at this time. The MGM said that she had taken J's feet out of his babygro and his feet were cold and that she put his little foot back into the babygro, which she noticed was undone. The M also says that she touched J's hands and feet and they were cold. The MGM said that she then went downstairs to be with G and D and to look out for the ambulance. Whilst she was downstairs she spoke to JH who told her that the marks on J's head were marks off his cot; 'he had gone to sleep in his cot and may have got the bruises from the tray of the cot'. JH said that when the distance between the bruises was explained to him he had suggested to the MGM that they may have been caused by the cot bars. He also suggested that J's head may have hit the high chair tray.
58. SM was almost certain that J was still wearing his 'super' babygro, when she saw him in his cot. GM was convinced he was wearing his light blue babygro and she recalled his feet being taken out of the babygro and she too had felt his feet. She said that J looked very unwell and did not look like he did three hours beforehand. It was put to her that she had told the police in her interview that, when he was in the cot he was just wearing his vest and nappy with no material on his arms or his legs and was lying on a babygro which 'they had taken off him.' Her response to the change in her evidence was that she had thought about the situation since. In her police statement GM said that she spoke to the MGM before she left and said to her that 'she did not know what was wrong with him but could she (the MGM) please make sure that someone let her know' and the MGM expressed the hope that 'Social Services were not going to get into it because they thought that KD had done something when she hadn't done anything'.
59. JB texted SM at 16:12:20 asking 'Did J bang his self yesterday, hun ?' and she had texted back at 16:38 saying ' I don't think so, hun, why?' At 16:13:37 she texted saying 'Oh, the pushchair tipped yesterday with the shoppin on it, lol, but he didn't cry or owt. Is he OK'. At 16:15:28 SM texted KD saying 'Is J ok, hun? JB just text askin if he'd had a bang yesterday.' JB texted SM saying 'he is not hisself, hun, not gd.' At 16:15:30 SM texted JB saying 'I'll be round in a min, hun xx.' Within about 5 minutes SM arrived at J's home whilst the 999 call was taking place and she was heard to say in the background on the 999 call 'I swear to God, I didn't hurt him.' to which the M responded 'I'm not blaming you' and said 'I think it's meningitis.' SM said that when she went into J's bedroom, the M, the F, the MGF and GM were present. The MGF asked her whether the bruises were there when she was caring for J. This was followed by a silence and she thought she was being accused.
60. The M told the East Midlands Ambulance Service (EMAS) that J was 'not moving' and she thought that he had 'hurt his back. He's crying and he's got a couple of bruises on his head'. She went on to say that he was not reacting very well but thereafter he could be heard crying in the background. She said: 'I haven't been with him today. My partner's been with him. He's very whingy and he's not moving…I have only just got back myself and I've come to check on him because he woke up. He started crying and he's just not moving…J was with his uncle and auntie last night overnight and his auntie brought him back at about quarter to one and we went into town and then I gave the pushchair to my partner and then I had things to do in town and I don't know what's happened to him from there…' There was no direct mention of meningitis at any point in the 999 call. Neither the M nor the MGF, who was standing next to her when she made the call, could account for the absence of any reference to meningitis during the actual 999 call.
61. There was a CD recording of the 999 call which was played in court. You could hear J crying loudly and pitifully in the background. The advice given to the M by the 999 operator was 'The main thing is that you stay with J and keep him calm I want you next to him, okay?' Notwithstanding this advice, there was a lengthy period when the operator was repeatedly shouting 'Hello' with J crying in the background and no response from the M or any of the adults in the house. The only inference to be drawn was that J had been left alone in the room.
62. JH said that, whilst he was packing his equipment away, the MGPs arrived and there were conversations 'going on all over the place'. He was adamant that he heard the MGF mention bruises on J's back before the paramedics arrived, which was hotly denied by the MGF.

The paramedics

63. The paramedics arrived at 16.34 pm. The Safeguarding Referral Form Under 'Brief description of Concern' records:

'Crew attended to patient with ? hurt back, unable to move. J had been in the care of Dad and male friend while mum has been visiting at hospital. Mum arrived home 15.30 and her 12 year old daughter at 15.50. When J's sister went upstairs she shouted for her Mum as she discovered bruising to his head and said he wasn't right. When Mum went upstairs, J was crying and unable to move and didn't appear to be his normal self. J was moving his eyes but not his head. Mum called for ambulance. On Crew arrival, J was in cot wearing baby gro. Crew removed that to check baby. They noticed mark on cheek and ? bruising and some other marks on his back. There were two bruises either side of forehead. Dad seemed to be quite vague on situation but stated that he had been downstairs in baby chair and had given him a feed which he then fell asleep so Dad took him upstairs to bed (where he remained until he was seen by his sister)'.

64. JW, a paramedic of 21 years' experience, had arrived on the scene with his colleague, DB, an emergency care assistant, at 16.43. They gave evidence that on their arrival the F had met them and had followed them up the stairs, directing them to the bedroom where J was. DB described seeing the M and the MGPs in a bedroom off to one side. When the paramedics entered J's bedroom, there was nobody in the room with him. The MGF said that they had stepped into the bedroom as the paramedics came up the stairs. The F and then the M followed the paramedics into J's bedroom. J was wearing a light coloured babygro but there was no blanket in the cot, although it was a cold day. J was not making any sounds. He was gazing towards the wall and, although he was conscious, he was not responding. When DB touched his head, J was resistant and pushed her away. JW said that 'the baby was not behaving as he would expect'. There were two 'very noticeable' bruises on his forehead. JW described the bruises as 'round in nature and dark, not red or swollen'' and DB as 'blacky type bruises.' They removed his babygro to check him without him showing any reaction other than being grizzly, though DB said that he was guarded on his right side. He did flinch when they touched his face. He was rolled over and they saw the bruising on his back which was 'grey black' He was redressed in his babygro and immobilised in a vacuum splint. His pupils were checked and they were not unequal.
65. No explanation was given for the injuries. The paramedics could not recall either of the parents showing concern or asking any questions. The M was only briefly in J's room on two occasions and did not attempt to comfort J or show any emotion. The F was trying to comfort the child. The MGF was, however, concerned and was clearly anxious that the baby went to the appropriate hospital and J's sister, G, was upset and kept trying to come into the bedroom as she was worried about him and was asking if he was alright.
66. The Police were requested via ambulance control and arrived on the scene before the ambulance left for the QMC. The F was arrested. The M was to accompany J to the hospital but, when the paramedics were anxious to leave with J, the M was four doors away talking to her neighbours and DB had to fetch her. J arrived at the QMC at 18.25. During the journey, JW described the M as 'reasonably quiet, not talking a massive amount.'

Hospital admission

67. On admission to the QMC J was found to have suffered extensive bruising to his head and body, extensive skull fractures, a subdural haemorrhage, a possible compression fracture of the spine, a fractured right humerus and a bucket type fracture of the right tibia. J was noted to be very distressed and in pain and discomfort.
68. Dr Christopher Gough, Consultant in Accident and Emergency, saw J with his M at 18:44, who noted the following history:

'Mum had been visiting a friend at Grantham hospital with D – left ~ 12.45, returned ~15.30. J left with dad and dad's friend. Mum came home and told by dad J asleep in his cot. J's 12 year old sister came home from school, went upstairs to get changed and then went to check on J. Mum was outside having a cigarette when her daughter called out of the window that J "wasn't right." Mum went up to find J not responding as normal, whimpering and not seeming to move his head properly. Also noted two new marks to head and on back that she had not noticed before. Wasn't perking up, so ambulance called. Police also called and dad arrested as concerns marks are bruises'.

69. J was seen by Dr Nadya James, then a Higher Specialist Paediatric Trainee, who has undertaken NAI work since 2006. She completed the Proforma for Medical Examinations (where there are suspected child protection concerns) in which she marked on body maps her physical findings. Her first impression of J was that he was distressed, in pain and unwell with marks on his forehead which caused her concern. During her examination he was moaning, sobbing with occasional whimpers. His left arm was tender and when he rolled on to it, he flinched and cried out in pain. He rolled over stiffly as if it was painful and, when he did so, she saw a large red swollen mark on his back. His M was in the cubicle, whilst the examination was taking place, but spent her time texting on her mobile phone. There was very little interaction between the M and J though at one point J became upset and his M did reach out to him. He required a great deal of reassurance which was provided by the nursing staff and Dr James herself. Dr James asked her if she knew how these marks might have happened and the M's response was that she did not know. Her demeanour was neutral with no expression of horror or shock or anger or distress.
70. Dr Wells, the lead treating Paediatrician at the QMC, stated the J was administered with paracetemol four hourly from 4 to 10 December and ibuprofen six hourly from 4 to 9 December for pain relief, which is only given where a child appears to be suffering a level of pain. Dr James confirmed that there was no policy or guideline that painkillers should be given wherever there were fractures.
71. DB, the Emergency Care Assistant, was present with the M during J's initial examination. DB commented the M showed no emotion and seemed disconnected from the child. The M had no eye contact with either the baby or the doctor. The vacuum splint was deflated and during the examination the doctor had managed to get J to sit up. After the examination the doctor asked the M if she wanted to hug the child. The impression which DB gained was that the M was reluctant to do so and only did so 'begrudgingly to appease the doctor'.

Texts

72. On 3 December at 17:32:39 SM texted KD saying:' Just promise me two things: ul let me no the second u no and that u believe it had nothing to do with me. I love him loads'. When KD texted that JB had been arrested for child abuse and that the police might need to talk to SM, this generated a number of texts and telephone calls from SM, who was clearly increasingly alarmed at the involvement of the Police, and numerous telephone calls from RB.
73. SM texted 'OMG they can't seriously think that? Will they arrest me? I haven't done anything. I promise you , hun'. To her mother, SM texted at 18:37:53 '…I'm petrified. I can't hack the cell again. They'll blame me; bruises don't come out of nowhere. PPl wouldn't think JB did it. So scared…' and at 19:03 'It's not the point Mum. If JB denied it then they'll look at me. If I get arrested n goes on record as child abuse I'll never get a job.'

Family meetings after the first police interviews

74. After the parents had been interviewed by the Police on 3 December, they were released at about 4 am. The MGF had been in his car waiting for the M to be released and she was released about 5 minutes after the F. The MGF drove both parents back to his home where the MGM was caring for G and D. 10 minutes after their arrival SM and RB turned up at the MGPs' home. They were together for about 40 minutes.
75. The F says that they were trying to work out what had happened to J. In his 18 December police interview he said 'obviously when we're out of the Police Station, we all like to get together and just try and get our heads around what's gonna to be expected from you lot … to try and get back in the weeks what we've done because we obviously got told that the injuries occurred within four to eleven days …so we are trying to think from the last four to eleven days what went on.' This was said in the context of questions about the bouncy chair incident and who knew about it to which the F had replied 'her mum, me, KD and my mum and S.' It was as a result of his comment cited above that a condition that none of the parties and interveners should speak to one another was added to their bail conditions. The MGM says that they were not trying to get their stories right. RB says that he simply wanted to know what was going on.
76. On Wednesday 4 December the F and the M went to RB's home and the MGPs turned up. The MGM says that she wanted to see where her daughter was, as the children were to be removed from their care, and when she found out that KD was at SM's home, they went round and there was nothing untoward about going to see them. According to the F, however, they went through the days picturing in their minds to see if they could work out what happened.
77. The M had produced in court her diary to help her refresh her memory in relation to dates. However, it transpired that the entries in the diary during November and December were not contemporaneous entries but resulted from a request to SM to provide dates from her recollection as to when she had J, which the M says she then put in her diary. SM had handed the dates to her on a piece of paper just before she had an interview with the Police. The MGF also contributed to this reconstruction by providing the date when a sofa was taken to the tip. The MGM said 'we've been like detectives, trying to work it out, going through the scenarios with KD and asking her who was looking after J'. However, she denied helping the M to fill in the diary and both MGPs denied that there had been any collusion.
78. The paternal grandmother, TB, said that after they had been released from police custody, they all also came to her house on 6 December 2013. She was worried because, in her view, they should not have been in a room together, all talking together about what had happened and who had committed what, as this was a serious crime. She told them that 'they knew what had gone with her grandson and they all had to tell the truth including about J's black eye when he fell out of the bouncy chair'. She said that they all said 'It's not me' and she became distressed and asked them to leave. She later contacted the police to check about their bail conditions. She said that in the first few weeks that the maternal grandfather, RM, came to see her twice saying everything was alright and she told him that 'it was serious and it was not alright'. She said that he had also approached her in the court waiting room and said that he did not like what she had said in her police interview about their parenting skills including driving the children without car seats and that he got quite agitated with her. She said that it was obvious that KD had a few problems, but RM and EM appeared to be unaware of her being distressed and not coping. She said that they 'cover up' rather than help their daughter to develop her parenting skills.

Expert Evidence

Dr Karl Johnson, Consultant Paediatric Radiologist

79. Dr Johnson in his medical report dated 5 May 2014 found that J had suffered:

Two skull fractures: a midline occipital and left parietal fracture, which were no older than about 2 weeks of age on 4 December 2013 (ie a causation window from about 20 November to 3 December, though Dr Rylance thought that the skull fractures probably occurred after 26 November: see below).

An incomplete traverse fracture of the proximal right tibia which was in the region of 5 to 21 days of age on 4 December 2013 (ie a causation window from about 13 November to 28 November 2013).

An traverse fracture of the proximal left humerus which was no older that 11 days of age on 4 December 2013 (ie a causation window from 22 November to 3 December 2014)

80. Although there were some equivocal changes within the vertebrae, he concluded, on a balance of probabilities, these represented normal variance of growth and not fractures.
81. There was no evidence, radiologically, of any underlying disorder of the bone which pre-disposed J to fracturing.
82. In his opinion, J's injuries were most likely the result of four separate applications of force on at least two occasions. Whilst the amount of force is unknown, it is recognised that to cause a fracture is the result of significant, excessive and inappropriate force which is greater than that used in the normal care and handling of a child. A skull fracture is the result of blows, impacts or falls onto the head. The humeral and tibial fractures are the result of a blow, impact or bending/snapping actions applied to the bone. At the time the fractures occurred the perpetrator would be aware that they were acting inappropriately and their actions were likely to cause J harm, though they may not have realised that their actions would result in fractures. In his oral evidence he said that you would not expect a single event to cause bilateral skull fractures.
83. In his oral evidence he was clear that the shin injury was the older injury. The fractures looked quite distinct and he, therefore, concluded on a balance of probabilities that the shin injury was first in time.
84. It was put to him that the paternal grandmother suffered from osteo- necrosis. He said that he saw no evidence to suggest that J suffered osteo-necrosis.
85. He concluded in his report that the presence of multiple fractures of various ages and occurring at different times in a child of J's age, without any suitable explanation, increase the suspicion of inflicted non-accidental injury. In his oral evidence, he confirmed that his conclusion that the injuries were inflicted injuries had been reached on a balance of probabilities.

Dr George Rylance, Consultant Paediatrician

86. In his report dated 22 May 2014 Dr Rylance said that J had sustained bruising, fractures and a thin subdural haemorrhage over the left posterior area. He concluded that J had no underlying organic disorder that would cause him to fracture bones or bruise/bleed easily. Although Dr Rylance said that a coagulation disorder had not been completely excluded by the screen tests done, there was, in his view, no indication that further testing was required, given his presentation with unexplained fractures.

Bruises

87. As to the bruises, he indentified 9 separate bruise sites of significance which were unexplained:

a triangular, mildly swollen, red/brown mark 15 x 10 mm on the right forehead

a triangular, mildly swollen, red/brown mark 20 x 10mm on the left forehead

three 5mm marks in a line on the right temple

a linear brown/grey bruise on the posterior upper right arm

a cluster of three pinpoint bruises on the back of the elbow

two 5mm circular grey/brown bruises on the right scapula

a 20 x 20mm brown/red bruise at the base of the spine

a red 40 x 30mm bruise on the left of the lumbar spine

a 5mm greyish/brown bruise on the left outer back, near the hip.

88. In the absence of any offered history of easy bruising in J or any family member, J's bruises 'almost certainly' occurred as a result of direct impact by a relatively unyielding firm object. From his developmental age, he could not have caused these bruises himself. In the absence of abnormal coagulation test results, his forehead bruises and those on the soft tissue areas of his back would more likely than not have been caused by an adult impacting the child directly with part of their person or indirectly through another object.
89. In his oral evidence Dr Rylance said that the bruises to the right and left of the forehead were more likely than not to be two applications of force. The three spots on the right temple were bruises but were close together. Where one has bruising in a pattern of three small bruises close together and not in a convex area, the likely cause was impact against something with a similar configuration. This was not finger tip bruising but required a separate application of force from that applied to the two forehead bruises. The bruising to the right upper arm, back of the elbow and right scapula was not finger-tip bruising. There was no pattern or measured distance or relationship between the bruises to suggest finger tip bruising. However, because this bruising is in association with other bruises, it is more likely than not that these are non-accidental injuries, in particular the injury to the scapula which is an uncommon site for accidental trauma. The bruises represent separate applications of force in excess of normal handling. The bruising at the base of the spine, to the left of lumbar spine and to the outer back near the hip represent three separate applications of force. Again it is the constellation of injuries and unusual sites which led him to conclude that these were non-accidental injuries.
90. As to the time frame for the bruises, Dr Rylance noted that the first observation by a reliable witness of the appearance of the bruises was at about 3.50 pm on 3 December 2013. In his view, it is extremely likely that the trauma leading to bruising will have taken place within 12 hours of the bruise becoming evident. In most cases, this will be within 4 hours. However, he acknowledged that the ageing of bruises by appearance is an inexact science.
91. In a recorded telephone discussion between Dr Rylance and the Treating Paediatrician, Dr Wells, Dr Wells clarified her observation as to the colour of the right forehead bruise as having a yellow tinge on the morning of 4 December 2013. This led Dr Rylance to conclude that it was more likely than not that the bruise occurred within the previous 72 hours (of Dr Well's observation). Dr Wells in her oral evidence said that on 4 December when she compared the computer images of the bruising from 3 December with her visible examination that morning, she felt that there was a slight yellowing at the margins of the bruise on the right forehead. Her view was that there was no significance in the yellow tinge on the periphery and that it provided no help on timing. However, she agreed with Dr Rylance's time frame in paragraph 90, as reflecting the published literature.
92. Whilst there is no literature source or experimental data which provides information on the force to cause bruising, paediatric experience demonstrates that bruising does not occur in normal handling or 'rough' handling and is significantly in excess of normal handling.
93. The ongoing pain related to impact bruising is likely to be short and most babies will cry for a short period. If a perpetrator subsequently saw a bruise, there would be a clear recollection of a forceful action directly related to the bruised area and, therefore, a definite awareness of linkage between the two. A non-perpetrator seeing a bruise would recognise that J was not of an age to self inflict a bruise without a clear explanation of the circumstances and in the absence of such explanation they would be expected to seek a cause by involving health professionals.

Skull fractures

94. As to the skull fractures, in the absence of a plausible accidental explanation he concluded that it was highly likely that either J was hit on the head by a relatively hard object held by an adult or the child was thrown by an adult hitting a relatively hard object 'head first' or the child, while held, was brought into contact 'head first' in a very significant forceful movement. The force required has to be considered in terms of the equivalent fall height which determines the velocity at impact or similarly the velocity at impact from a throw or movement while held against a relatively firm, unyielding object. In his oral evidence he said that, if there were two fractures which were not continuous, then it would imply most probably that there were two impacts at each point.
95. The trauma to cause the skull fractures would be very considerable and would be expected to be very painful and frightening, though the fractures themselves would probably not be painful. The trauma and shock of the two impacts may cause a temporary stunning of the brain in which conscious awareness and usual reactions may appear absent, even though full recovery usually takes place within a few minutes. In his oral evidence he said that the impact would cause a small child like J to cry. This may not be a shrill or sustained cry but would generally last for a minute or two and sometimes considerably longer. Although the perpetrator was unlikely to know that J had suffered a skull fracture, he or she would know that the force was greatly in excess of normal care and that it was a 'totally inappropriate' action. It is extremely unlikely that a non-perpetrator would know because no signs would be expected.
96. As to the subdural haemorrhage, the likeliest cause in J was direct impact trauma in association with the skull fracture. A force enough to cause a skull fracture will be enough in most cases to cause the subdural haemorrhage.
97. In his oral evidence he said that, as the subdural haemorrhage was very small there would not be much in the way of clinical consequence. The major effect with J's age group would be crying strongly for a period of time variable from 2 to 3 minutes to a few hours. In his view, the description given by the paramedics of J staring at the wall, not moving, being very grizzly but pushing the paramedic away was not specific enough to conclude that J was suffering from concussion at that point. The description was not typical of a child suffering a subdural haematoma where there would be a sudden change such as the child becoming pale, floppy, and having difficulty in breathing or stopping breathing. In his view, the staring eyes and the pushing away did not 'hang together' and, therefore, he found it difficult to say that this presentation was of a recent, 'matter of minutes' episode.
98. He described the range of signs where there was a subdural haematoma. There may be silent subdural haematomas which are not usually where they are associated with skull fractures. There is a gradation in severity from a child becoming irritable, pale with a stronger cry as if in some pain, to a child going floppy, drowsy and into a coma; possibly having a fit, stopping breathing or having an abnormal heart rhythm leading to a cardiac arrest. The relevant time for the causation of the SDH was to go back to the time when J's grizzly behaviour was not normal for J.
99. GM's description of J arriving with SM at about 12.30-45 pm 'very, very upset, in a right state, crying and grizzly… for long periods' was put to him and he said that it probably suggested that J was not behaving normally if he was different over that period from what he would normally be, but the description of J crying whilst on the bus with his father was not abnormal in itself. He commented, however, that 'we must be careful not to read too much into it.'
100. As to timing, Dr Rylance thought that the skull fractures probably occurred after 26 November 2013 based upon the overlying scalp swelling.

Fracture of the humerus

101. As to the fracture to the upper left humerus, this would be caused by either a bending stress or a compression through the longitudinal axis of the bone, probably with a degree of angulation or twist at the same time. In his oral evidence he described holding J by the elbow and then giving a push and a twist.
102. The force necessary to cause this fracture would involve a movement which would be painful. In his oral evidence he said that this fracture was at the point where the metaphysis joins up with the diaphysis and therefore tends to be painful, although not as painful as a fracture of a long bone. It would be painful for a few hours, possibly up to a couple of days. Pain would be on movement but there could also be spontaneous, continuous pain like toothache.
103. Most children of J's age will cry loudly and persist in crying for many minutes, sometimes hours. The child would be miserable, but the crying would be non-specific Most, but not all, will move the arm less because it will be painful to move for two to three days. They may be more upset and 'whingy' at this time, particularly if the weight is borne through the arms as in crawling, which was the case in J. Pain would be increased at times of movement such as when arms are pushed and pulled through sleeves in dressing for the first two or three days after fracture. There was no bone displacement in J's case which would have increased the likelihood of signs and symptoms. An undisplaced fracture normally causes minimal swelling and so a change of appearance would probably not be noticeable to carers.
104. A perpetrator would know that excessive force had been used and therefore a significant resultant injury might have occurred. A perpetrator would clearly link the events and if involved in the continuing care would see the effects as described above.
105. A non-perpetrator would most probably recognise that J had a significant problem with his arm and would be expected to seek medical attention forthwith.
106. Dr Ehrhardt's view that the humerus fracture occurred shortly before G discovered the injuries was put to him. He said that he had no reason to think why he should agree, as he has no idea as to why Dr Ehrhardt should say that. He had found no reason to support such a proposition.

Fracture of the upper right tibia

107. As to the upper right tibia, the basic mechanism for an upper shaft buckle type fracture is torsional (twist) stress. This may be either a sharp stress over milliseconds or longer over a second or two. In J's case, there was a degree of compression suggesting there would need to be a twist and perhaps a slight bend together with a directional force through the bone longitudinally.
108. A fracture of the metaphyseo-diaphyseal junction of the humerus or tibia in babies of J's age is uncommon and does not occur in normal handling or 'rough handling' and the force required to cause these fractures is considerably in excess of normal handling by carers.
109. J's presentation in relation to the tibia fracture would be very similar to how he presented following the humerus fracture. There would be a direct linkage of cause and effect in the mind of the perpetrator. The non-perpetrator would most probably recognise that J had a significant problem with his right leg by his showing a reluctance to move the leg and/or apparent pain with crying on manipulation and would be expected to seek medical attention forthwith. Where a fracture is not displaced, the fixing of the bone in children of J's age occurs within 3 days and then the pain goes away.

Explanations put forward

110. In relation to the bouncy chair incident, Dr Rylance said that this would not have caused the fractures of the skull or limbs. It may have caused a bruise to his head but not elsewhere. The timing is, however, wrong for the bruises and the fractures of the long bones.
111. In his oral evidence, the entry in the GP notes was put to him, which he has not seen before. His immediate reaction was to say that he was not satisfied by this description. In his opinion, it was very uncommon for a baby to fall out of a bouncy chair whether strapped in or not. The fall distance would not be much, say 20 to 30 cms, because the child would have to roll over to the side. It would be very uncommon to get any kind of injury and it was, therefore, highly suspicious of an inflicted injury.'
112. In cross examination on behalf of SM, it was put to Dr Rylance that there was a glass table next to the bouncy chair which was on a lower level than J's head and that J had fallen to his left side and hit his head on the table. Dr Rylance said that, if J was falling to the left, he would have to straddle with his right leg over his left and change the position of his head 180 degrees, which developmentally would be unlikely. He also pointed out that on this scenario J would hit the right side of his face, not the left. Dr Rylance said that these injuries were, therefore, unexplained. Given his age, J could not have caused the injury himself and if you cannot account for the injuries by the developmental age of the child and normal accidental injuries, then it is more likely than not non-accidental injury. The Intervener, RB, put to Dr Rylance that J was rocking the bouncy chair from side to side rather than backwards and forwards. Dr Rylance said that, in order to hit his head on the table, J would have had to be very close but in those circumstances it was inconceivable that he could fall between the table and the chair.
113. Following the evidence of Dr Rylance, the local authority indicated that they were seeking a finding, on a balance of probabilities, that the injuries sustained in the bouncy chair incident were non -accidental injuries caused either by SM or RB.
114. As to the jolt incidents, Dr Rylance said that there was no force in either of these and they could not be expected to cause any injury.
115. As to the D incident, Dr Rylance was clear that this was a common occurrence and no significant injuries occur in these type of circumstances.
116. As to the door step incident, Dr Rylance said that this could cause one bruise but would not cause a skull fracture.
117. As to the push chair incident, Dr Rylance's comment was that no apparent impact trauma was described and, therefore, there would be no consequence.
118. The M had also suggested that the injuries may have been caused by J falling against the wooden sofa feet. Dr Rylance said that this would not cause bruising or fractures.

Dr Peter Ehrhardt, Consultant Paediatrician

119. Dr Ehrhardt had been instructed by the police to provide a statement dated 12 May 2014. He concluded that the bruising seen on J, the fractures and the bleeding over the brain had been inflicted and that there had been at least two assaults.
120. As to timing, he said that the fracture to the tibia was 4 or more days and probably not more than 11 days old. He described the fracture of the humerus as 'new'. He expressed the opinion that the bleeding to the brain occurred with an impact which also fractured his skull which occurred 'shortly before' J's sister discovered his injuries. This impact and injury, in his view, was the main reason that J was ill. Whether the other skull fracture occurred at the same time is unclear. It may well be that there were two impacts each causing one of the fractures.
121. In his oral evidence, in relation to the timing of the fracture of the tibia and of the fracture of the humerus, he deferred to the evidence of the paediatric radiologist. He explained that in using the term' new' in respect of the humerus fracture, he was indicating no more that that the injury was more recent than the fracture of the tibia and not more than about 4 days before.
122. In relation to the skull fracture and bleed over the brain, he clarified that he could not be more precise as to the meaning of 'shortly before' J's 12 year old sister discovered the injuries. He had interpreted G's account of J being quite different as suggesting a graphic change, which he had interpreted as attributable to brain injury and, therefore, he hypothesised that the brain injury was 'pretty recent,' maybe a matter of hours but he could not be any more precise. He further conceded that his hypothesis could be undermined if evidentially it proved difficult to identify when in fact J was last behaving normally. The bruises on J's head could have appeared some time after the injury was inflicted and, therefore, he was unable to say, on a balance of probability, whether the bruises occurred before or after 1 pm on 3 December 2013.
123. In relation to the bouncy chair incident, Dr Ehrhart said that in his view the three points of injury, namely around the eye including the eye itself, the side of the nose and the bruise on the forehead, resulted from a single impact. Simply falling forwards would result in an impact upon the forehead which could explain the small bruise on J's forehead but not the other injuries. J would have needed to strike a hard corner of something such as a solid brick on the floor. He said that, if J fell out of the bouncer and if there was something on the floor, say a solid wooden brick with a corner, and if J was unlucky enough for his eye to hit it, this could hypothetically explain the injuries but, in his view, this scenario was highly unlikely. He said that the eye and the side of the nose are not commonly injured accidentally. It was put to him that SM had mentioned in her police interview that he could have hit some teething rings which were next to his bouncer on the floor. Dr Ehrhart said that to injure his eye he would have needed to hit a hard edge and that it was highly unlikely that the injuries were caused by falling on teething rings. He was shown a photograph of a glass table with rounded corners which SM said was similar to a table near to the bouncer. Dr Ehrhart dismissed the table as irrelevant, as it had rounded corners.
124. His attention was drawn to a Greek research paper: Baby- bouncer related injuries: an under appreciated risk; Theologos Farmakakis et al (Eur J Pediatr (2004) 163: 42-43). A study was conducted using 5 year injury data which found that, out of a total of 4353 injured infants who were brought to emergency departments, 181 sought care for injuries related to baby-bouncers. 58% occurred inside the house during day hours, especially in the kitchen and living room (58%) with a fall from a height (carried or surface) being the prevailing mechanism of injury (over 70%). About 50% of the infants fell while they were resting in a baby bouncer that had been on a piece of furniture. In Table 1 under 'mechanism' it was recorded that 57 fell from a height (carried); 71 fell from height (surface); 8 fell on same level and 45 were unspecified. Dr Erhardt assumed that 'fall of the same level' meant the baby fell onto the floor. His comment was that this was a very small number of babies over a 5 year study. He also expressed concerns about the paper, in particular he was surprised that the paper nowhere mentioned the possibility of abuse.
125. An Abstract of a paper 'Pediatric Emergency Care (Impact Factor), S M Claydon (Wales Institute of Forensic Medicine) was put to Dr Ehrhardt. The Abstract referred to a case in which an infant had appeared to have fallen from a baby bouncer. The infant's head was described as only about two feet from the ground and landed on a thick carpet but nevertheless a life threatening head injury was sustained. The point was made that 'pivoting about the central point provided by the seat of the bouncer obviously increased the momentum of the head before it struck the ground and so the injury was more severe than a straightforward fall back from his own height to the ground'. Dr Ehrhardt's comment was to urge caution in drawing any conclusions from one tragic case 20 years ago.
126. He acknowledged that it was not impossible for a child to fall out of a bouncy chair and unusual accidents can occur. If he was asked if the fall from a bouncer was hypothetically possible, he would say 'Yes.' If he was asked the likelihood of that happening, he could only say that it was highly unlikely.

Local Authority Assessments

127. A parenting assessment of the M was carried out by the allocated social worker. She concluded that the M was not able to protect her children or to make changes in her parenting capacity and style within the welfare timescales of the children. The M continues to prioritise her relationship with the F. Notwithstanding that she had applied for non-molestation and exclusion orders against the F which was compromised by the F giving undertakings on 1 April 2013, the M resumed cohabitation with the F in late April/early May.
128. An assessment was carried out in relation to the F's contact. His contact was positive overall but it was noted that he does require to be motivated and prompted to meet the needs of the children. The recommendation, therefore, was that his contact should continue to be supervised.
129. A viability assessment in relation to the paternal grandfather and his partner was negative. The F had also put forward a family friend but she was unable to be assessed due to her health needs.
130. A Connected Persons Assessment of the MGPs was very positive. The allocated social worker had since discussed with the MGF the M's allegations that he was a controlling father. This upset the MGF as he viewed any interference on his part as necessary to safeguard his grandchildren; for example, he had advised his daughter to obtain a non-molestation order. Both MGPs were distressed and disappointed when their daughter resumed a sexual relationship with the F without telling them and was recently found to have used cannabis. This caused the MGPs to rethink their potential role as supervisors of the M's contact and to request that her contact be professionally supervised until the M has undergone the recommended work. None of these matters impacted upon the positive conclusion of the Connected Persons Assessment.
131. In the light of the positive features contained in the assessments of the MGPs, the local authority's proposal at the commencement of the proceedings had been that, if no significant findings were made against them in relation to J's injuries, the children should be placed in their immediate care under the auspices of a care order but with a view to supporting them to apply for a Special Guardianship Order in the next 6 to 12 months.
132. The Practice Supervisor of the allocated social worker, having heard the evidence of the parties, especially the MGPs, and the interveners, gave evidence as to her mounting concerns as to the ability of the MGPs to offer consistent safe care for D and J given the MGF's concession of a catastrophic failure to protect J and D on his part, the blinkered approach of both MGPs to the glaring deficits in their daughter's care and the shadow of collusion which had emerged in the course of the evidence.
133. The local authority's proposals, therefore, changed in the following respects. If the court were to make findings that the MGPs were in the pool of possible perpetrators or that they had colluded with the adults on or after 3 December 2013, then the local authority could only consider a placement outside the family in order to safeguard the children. If, however, the court were to make findings against the MGPs, which were at the lower end of the spectrum, the local authority would no longer propose the immediate placement of the children in the MGPs' care but would undertake a thorough risk assessment of the MGPs' capacity to protect J and D. The Targeted Team would undertake six direct work sessions with the MGPs to include the cycle of abuse, recognising the signs of abuse, the effects of abuse on children, additional work regarding their insight into the risk the parents pose, their responsibility to protect including the use of support networks. The work would involve challenging their understanding of the findings made and of the risks posed by the troubled dynamics within the family and circle of friends.
134. The Practice Supervisor gave an up to date snap shot from the foster carers as to how both boys were. D was still having difficulty with his speech and is only able to say a few words that can be understood. He has had his initial assessment for speech therapy which will take place in a nursery setting supported by the nursery staff. D has a high level of needs. He presents as flat and at times emotionless and lacking in empathy. He shows no remorse for being naughty or hurting his brother. He presents as a child who is lost, looks sad and does not often laugh. He is still not potty trained and will happily sit in a soiled nappy or wet pants all day, if you let him. He refers to J as being 'dead' which he said as recently as last week. J presents as very attached to his foster carer and becomes tearful and upset when leaving for contact and, on his return, is tearful and almost relieved to see her. Both boys' behaviour following contact is difficult and they have a very restless sleep. After the contact on 1 July D was frustrated, cross and stubborn. He threw his food all over the kitchen floor and then refused to clear it up. J's eczema worsens when he returns from contact. Apart from the difficulties over contact there are no major concerns regarding J. There are concerns as to his lack of balance and he has an appointment to see a paediatrician.

Children's Guardian's Analysis

135. In her Final Analysis the Children's Guardian had also highlighted the following concerns in relation to the two boys, with which the allocated social worker concurred.
136. J is sixteen months of age and cannot balance himself sufficiently to be able to walk. He was poorly when collected from the hospital by the foster carers and through a combination of nurture and nursing care they have become very close. J is distressed on contact days when he has to leave the foster carer such is the attachment he has formed with her. J is also more unsettled during the evening and will cry during the night. He is frightened by loud sudden noises. Whilst in foster care he has suffered from repeated chest infections requiring hospital visits. He is prescribed a nebuliser for use as and when required. J was underweight when he arrived in foster care and the foster care has built up his immune system and he has gained weight.
137. D will be three in August and he is not potty trained. He has an issue with food and will cry when food is being prepared. He will overeat if you let him. When J is asleep D will inform the foster carer that he is dead, which is an unusual comment for a toddler to make. D attends a local nursery school where his behaviour is difficult in that he will kick, bite and pinch other children and has not yet learnt to share. His speech and language development is developmentally behind his peers and he has been referred to a speech therapist. The foster carer will not leave D and J in a room by themselves as she would be worried about D's behaviour to J. D needs a lot of reassurance and on occasions can be difficult to settle at night.
138. In her analysis she had recommended that, subject to the nature and extent of the findings made, D and J should be placed in the care of the MGPs under a residence order underpinned by a supervision order. She took the view that, if adverse findings were not made against them, they had the capacity to parent the children without the need for the local authority to share parental responsibility.
139. Having heard the parents' evidence and the evidence of the MGPs, she changed her recommendation. Depending upon the findings made by the court in relation to the MGPs, she recommended that D and J be placed with the MGPs under the auspices of a care order but that placement should only take place after a period of intensive further work with the MGPs. She said that a lot of question marks have arisen in the course of the evidence, to which she does not know the answer. In her view a care order was now required to safeguard the children from future risk. Clear restrictions were called for, as all the parties and interveners live in the same town. Contact must be supervised at a family centre under a care order.
140. She said, however, that there were clear welfare advantages in the children staying within the birth family. She felt that the MGPs were strongly committed to the children. The MGPs present as a strong, traditional working family and as experienced parents, who would have the resilience to meet the significant challenges ahead in caring for the two children with their differing needs. Those needs will require a higher level of care. J has a raft of physical challenges but has attached to his foster carers and will be able to transfer that attachment. She fears that D's behavioural difficulties are attributable to a damaged attachment which will require skilled psychological input. She expressed reservations about placements outside the family as the boys have very, very different needs which may lead to them being separated in the future.
141. She said that the MGPs had made mistakes which were catastrophic for J but that the MGF had acknowledged his errors and was emphatic in his evidence that 'it would not happen again'. She said that they have struggled to prioritise the needs of the children over their daughter's needs but she thought that they had learnt from the gruelling experience of this hearing where their faults have been exposed under the fierce glare of cross-examination.

Evidence

The Mother

142. The M presented as emotionally flat when giving her evidence. She did not flinch from acknowledging her stark failings as a parent in prioritising her needs over those of her children or her deep seated selfishness which led her to pass J around her family and friends as 'a parcel' rather than her child. The only emotion she showed was when she, almost tearfully, acknowledged that she could not bond with J after a traumatic birth.
143. She described her relationship with JB as volatile and violent. She found JB frustrating as he would not listen and would rather play on his x-box than do anything. She said he was not much help round the house. She would return home from work to find the kitchen in a mess and children's nappies full. She would get on to JB about this and he would get frustrated and angry with her and punch holes in the internal doors in his frustration. There were arguments which escalated. She would throw cups and plates at JB and would bite his hand and he would grab her hair and a couple of times put his hands round her throat. He did not want her to go to work because he was left looking after the children and he wanted to do his own thing. On one occasion he was trying to prevent her from going to work and trapped her hand in the back gate. She said that she would ask for extra hours at work so that she did not have to go home and when she was late he had a go at her.
144. She accepted that she had put her job before her boys and that her attention was not focused on the children but on her relationship with JB. She further accepted that she had put JB before her oldest son, who did not like JB because he shouted at him and scared him. When asked to make a choice by her parents between JB and her son, she had chosen JB. Her oldest son had moved in with his father, PD, in July 2013 and she had seen little of him since. She also accepted that she smoked cannabis when looking after the children. The F had described the M 'throwing' D onto the sofa in temper which had so shocked him that he threatened to batter her if she did it again. The M cavilled at the description 'throw' but accepted that she had picked D up from his changing mat and dropped him in anger on the sofa.
145. She said that JB did not have a lot of patience with the boys. She was concerned about leaving the children in his care because he would not have his attention on them and would watch TV before anything else. He told her that on one occasion he had shouted at J because he would not shut up when he wanted to watch TV and so he threw J's bottle against the wall. He would smack D when D was being difficult about staying in bed and on one occasion there was a smack and D was 'really crying' and she said to JB 'You need not smack like that'. She said that 'she thought that D had a red mark on his bottom but that could have been from a previous time when JB had smacked him' and then had to accept that there had been other occasions of smacking. She acknowledged that her eldest son had been shot by JB with a BB gun in his back when JB was messing about with the gun and possibly G had been shot by the gun. She let him look after the boys, however, because he was the boys' Dad and they loved him to bits.
146. She acknowledged that JB was as unsuitable carer but said that she was 'always forgiving' of him She further accepted that on 3 December she was texting round her friends asking them 'please, please' to have her children because JB did not want to look after the boys because he was having a tattoo done. On 3 December when SM returned J to her care in his pushchair at about 12.15- 30 pm, all she was concerned about was attending GM's appointment at the hospital and she did not really care about J at this point. She could not remember J being in a 'right state' when he was returned by SM, nor could she remember him crying the day before. She said that she did not get J out of his push chair; she did not ask if J had been fed by SM nor did she feed him herself and wheeled him away to the bus stop wearing just a babygro and a blanket although it was a cold December day.
147. She said that she had resumed a sexual relationship with JB in April within a few weeks of him giving non molestation undertakings because she missed him and they wanted to comfort each other. He spent most of the week with her. He had slept in her bed and they had had intercourse. They had also spent a night at a B & B so that no-one, including her parents, would find out. She said that she was no longer in a relationship with him.
148. She described J as a happy smiley baby. He would whinge like all babies but he was not a screamer but it would be unusual for him to cry for half an hour.
149. She maintained that the first she knew something was wrong with J was when G called to her. She had seen no marks on him or noticed any difficulty in moving his limbs before that time. She did not cause any of the injuries and she did not know who did. She attributed her demeanour when the paramedics attended and at J's examination in hospital to shock.

The Father

150. In assessing the F as a witness I took full account of the evidence of Dr Warnock as to his cognitive functioning which was likely to make him suggestible to leading questions. Paragraph 44 is an illustration of his suggestibility. He gave his evidence in a coherent manner but, when challenged in cross examination, tended to lapse into immaturity, get confused and contradict himself.
151. He described D as 'a brilliant baby, sleeping through' but J, although the sweetest little boy, was a bit of a 'whinger' and was a bit more tricky when compared with D. He would need feeding twice in the night. He would have to get up, get J a bottle, feed him and get him back to sleep which could take up to 1 to 2 hours and left him exhausted. J would scream in the night and in the days. If he (JB) was poorly, he would not tell J off if he was whinging but would pick him up, comfort him, change his nappy or feed him. He accepted that he was not the cleanest or tidiest person round the house.
152. The F said that he did not like smacking D and he never smacked J. If D was being difficult about going to bed or if he bit a child, he would give him three warnings and then smack him on his hand. He had only smacked D on the bottom once when he bit a child at his friend's house. There were never any marks when he smacked him.
153. He explained how some days he wakes up as a 15 year old and other days a 25 year old. He found it a struggle to take his medication and if he was not taking his tablets regularly he does wake up as a 15 year old and he then 'can't do it … look after himself, never mind the children'. This happens about 3 times a week. The M does not care if he is alright or not and just walks out of the door, laughing. Things get on top of him and he leaves scissors on the floor and he does not notice. He accepted that he does get a 'mad one' which means he is angry and frustrated with someone who is not there. When he was having a bad day and the M left him, laughing as she went, he would punch holes in the doors and the boys would hear him stressing out. He accepted that he would shout and scream at the boys when changing their nappies and say 'Fuck it'. He said that the M could also lose her temper with the boys and he described her throwing D on a sofa which absolutely devastated him and he told that 'if she ever did that again he would batter her'.
154. In relation to the sleeper hold incident, he was play fighting with G who was like his best friend and he sometimes forgot that he was a big lad. He did not expect her to walk off and collapse and he panicked. He went to his Mum to ask her to look at G and she told him 'You are 25 and you should think about these things before you do them.' He told KD whose reaction was similar to his mother's reaction and he also apologised to G's father in the street. He said that he has never done anything like that again.
155. He said that he had two BB guns and he liked playing with them with his friends. He caught the M's eldest child in the cross fire. The child was only 9 and he was a little bit upset because it hurt, so he gave him a cuddle. G did not get shot. He said that the M's eldest son moved to live with his father because 'he didn't like me and he could not put with both of the younger boys. He shared a room with the two boys and he would tell J to shut up'.
156. He accepted that when he was 17 he received a reprimand for criminal damage which he said was a misunderstanding about a broken fence. When he was 20 he was cautioned for a public order offence. He was getting abuse in the street and in his anger he was quite threatening to his abuser.
157. He further accepted that he had a volatile relationship with the M in the course of which she threw crockery and bit him and he put his arm round her neck and whacked her with a broom leaving a bruise on her left side. They argued about her going to work and leaving him to care for the boys on the days when he was not capable of looking after them. On one occasion he had been told to look after the boys and he was not feeling the greatest. KD said she was going to work. He was angry with her. J was crying and he was trying to give him a bottle and when J was difficult he threw the bottle against the wall. This was due to his anger and frustration with KD. He denied getting angry and frustrated on 3 December following his argument with the M over caring for the children when he had organised a tattoo.
158. He said that he had not hurt J and he did not know who had.

The maternal grandmother

159. The MGM was quietly spoken and clearly found it an ordeal to give evidence. Nevertheless, she asserted quite strongly that she did not think that her daughter would hurt her children and was clearly very reluctant to include her as a potential perpetrator of J's injuries.
160. She said that she had heard a lot of evidence about her daughter's temper but only reluctantly conceded that she may have a temper, adding that she had not seen it herself. She described her daughter as depressed and busy, working and looking after her family. She had been unaware of her daughter's post natal depression or of her inability to bond with J.
161. She subsequently accepted that she was aware of the furious rows between her daughter and JB. She went for tea and there were no cups and, when she asked where they were, she was told that KD had chucked them at J in temper.
162. She knew about JB's temper as she had seen the holes in the doors and she knew that he had chucked a bottle of milk against the wall as she had seen the milk all over the wall. She said that they asked where J was when this happened and were told that he was in his high chair. She said that she understood that 'J wouldn't stop crying and that JB was mad at him'. She acknowledged that knowing this 'they didn't do anything and she didn't really know why they didn't'. She accepted that they had threatened to notify Children Services if the M's eldest son had not been permitted to live at their home. The M's eldest son did not like JB because he was frightening towards him. She was unable to answer why, having intervened on behalf of the eldest boy, they had failed to intervene to protect D and J, who were very young children, very vulnerable and could not speak for themselves.
163. She knew about the 'sleeper hold incident' involving G and had understood that he had put his arm round her neck and squeezed so hard that she had become unconscious, fallen to the floor and lost consciousness. Her comment was 'We should have got the children out of the house at that point' but had to accept that they had not.
164. She said that she knew that JB was not capable of looking after the children whilst her daughter was out working in the week. She had offered to give up her work and look after the children herself but when this was rejected she did nothing more, even though she knew that the children were in an unsafe environment.

The maternal grandfather

165. The MGF gave his evidence in a forthright, at times almost dogmatic manner and was clearly a dominant character.
166. He expressed the view that there were people who were not in court but who should be in the pool of perpetrators. He identified K and A, who he claimed had a violent relationship and, according to his detective work, they had visited the parents' home the last week in November.
167. He was emphatic that the red marks visible on J's forehead were pressure marks from the cot bars and strongly rejected all the evidence of the paramedics and the experts that they were bruises. He made a telling comment: 'This has taken over my life.'
168. He conceded that he knew that the relationship between his daughter and JB was volatile. As he put it 'They were as bad as each other.' He said that his daughter can have a temper when provoked and she does get provoked because JB frustrates her because he does not do anything in the house or the garden. Although he helps with the children, he does not do it as often as he should do. He knew that his daughter threw cups and plates at JB and that there was an occasion when she bit him. He said that this was in retaliation when JB had his arm round her throat to prevent her going to work. He described JB as ' a big lad who did intimidate' KD and her eldest son. He also knew that his eldest grandson had been shot by JB with a BB gun and about G being placed in a sleeper hold by JB to the point of losing consciousness. He also knew that JB had smacked his grandson, D, and about the milk being thrown by JB on the wall but had made no enquiries about the circumstances and so was unaware that JB had been feeding J at the time.
169. He said that he should probably have done more to protect the children and he regretted that but that KD and JB were the children's parents and he could not live with them 24 hours a day. He was asked if he thought that JB was capable of looking after the children and he said 'yes and no'. He thought that the majority of the time he was OK but now and again he felt he could not look after them. He often popped round to see his daughter and if she was at work and JB was alone looking after the children, he did not stop for more than 45 seconds. It was put to him that he ought to have checked that the children were OK and that JB was coping and he accepted this. He said 'I was keen to take my daughter's eldest son out of the situation but I realise now that I left the younger children, in particular the two youngest boys, in that situation and I have to apologise for that, as it was my mistake…I should have phoned the authorities …I blame myself because I could have stopped this and I wish to God I had. I lacked any foresight and 'balls' to stand up to their mother.' He ended his evidence saying 'I shall never forget this because I hold myself responsible. I could have stopped this and I deeply regret not doing so'.
170. He denied that either he or his wife had caused any of the injuries. He said that they did not put J into the pale blue babygro or leave him alone in his cot. He explained that they did not hear the operator saying 'Hello' during the 999 call. When his daughter went downstairs to get the meningitis card she had put the telephone in J's cot and they did not hear anything whilst it was in the cot, as it was not on the speaker. He denied that they had colluded or tried to cover up the investigation. They had only tried to find out what had happened to J.

SM

171. SM denied that she had caused the facial injuries and damage to J's eye in September but was highly defensive when giving her evidence and was simply unable to give any plausible account as to how J sustained those injuries.
172. She further denied causing any of J's other injuries.
173. She was taken through a number of mobile phone calls and texts to a 'JLk' who she identified as a drug dealer, usually in heroin but he had sold cannabis in the past. She has bought cannabis off him on the rare occasions he has it. She said that her two brothers were drug users and they would use her mobile phone to contact JLk. RB and herself had been receiving a lot of trouble from their neighbours and warnings from their landlord and had been told that her brothers must not enter the flat precincts. As a result they would come to the window or her backdoor in order to use her phone.
174. There were calls to JLk on 22 November, 26 November, 27 November at 18:32, 28 November at 14:54, 30 November and 1 December. SM could not remember whether she had made these calls or her brothers had. However, she did recall making the call to JLk on 2 December 2013 at 17.16 to see if he had any cannabis and she bought cannabis off him. She accepted that J was with her at the time. She believed that the calls on 3 December were by her brother.
175. On 26 November at 19:19 there was a call to JLk and it was clear from a text sent by her sister at 20:10 that she was going to be looking after her young niece, K that night. The text reads: 'Okay, you can have her (K) tonight but keep it between me and u…if L (her partner) asks she's slept at mum's…'
176. There were also texts which she sent or were sent to her relating to cannabis. To her sister on 27 November at 18:23 she texted 'u avin a spliffage?' to which her sister replied at 18: 24 'Got nothing at all, dud: skint'. SM's response at 18: 25 was : 'Ya shud av said I wud av lent us a 10na to get sum. U wana borrow it 2 moz instead?' To which her sister replied at 18:27 'Didn't think dude…dying for one.' It is to be noted that the call to JLk from SM's phone was at 18:32.
177. On 28 November 2013 at 15:29 her sister texted: 'U got any spliffage left' to which she replied at 15: 32 'No u as my last joint last nite but we are goin to get a 10 bit in a min'. There had been a call from SM's phone to JLk at 14:25. On 29 November 2013 she sent the following texts: 'I'm over tired. Wud be nice if I as a spliff to help… I like a joint in the morning- sets ya up for the day…'
178. Faced with the texts, she said that, even though she had bought the cannabis on 2 December when she was caring for J, she had not necessarily smoked the cannabis then. She had, however, previously conceded that, when she was caring for J overnight from 2 to 3 December 2013 she had smoked cannabis in the evening and the morning of 3 December.

RB

179. RB was very emotional throughout the proceedings and was unable to remain in the court room whilst his brother was undergoing cross examination. In his oral evidence, he said that 'my brother is not capable of this. I have never known him to be violent until he met KD.' When he was asked who he thought had caused the injuries to JK, he said 'everyone in the room except JB.' He said that 'all his life he had protected his brother' but he now feels that he has failed him because he had failed to protect his brother's children, who he treated as his own children.
180. RB said that he still took cannabis and had a glass of wine and a joint before he went to sleep because it relaxed him. SM would have a joint too. She may also have a joint in the morning when she gets up with him at 5am, to makes him a cup of tea and his 'pack up' before he sets off to work.
181. A number of telephone calls were made by from SM's mobile phone to a 'JLk', on 1 December, 2 December at 16.51 and 3 December 2013 at 18.03, 18.14 & 18; 27. RB identified JLk as a friend and dealer in drugs including cannabis. He said that JLk supplied hard drugs to SM's brothers, which might account for some of the calls. He denied that he was arranging for drugs to calm either SM or himself down.
182. He emotionally denied that he had ever harmed J in any way.

GM

183. GM said that at all relevant times she was pregnant and was suffering from SPD, which caused her to struggle to walk any distances or to bend down to low levels or to sit down or to pick up children. She wore two belts and had a set of crutches. She was on strong medication and morphine. This meant that a lot of the time she spent at home and had less contact with KD until 2 December. She accepted that on 3 December when they returned from shopping she had helped KD unpack the shopping but said that she only unpacked those things she could reach such as bananas and tins, whilst KD made a cup of tea. Whilst she was downstairs unpacking, she did not hear J crying.
184. She said that JB and KD had a lot of arguments about money and KD was moaning about being on her own. She knew that KD threw things and that JB had trapped her fingers and hit her with a broom. She had seen a big bruise on KD's side. She told them that they should call it a day on their relationship because it was not fair on the children. KD would become frustrated with the children. She heard KD shouting and swearing at D and saw him 'land' on the sofa. She inferred from the nature of his landing that KD had thrown him and also because she recalled JB threatening to batter her.
185. On 24 December 2013 a social worker had visited J's sister, G, who disclosed 'Mum would have her best friend over every day. She's pregnant, GM. She comes round every day smokes weed and every now and then, GM would baby sit, just her. GM had a child taken away from her because dad wasn't very nice and dad took (her son) away from her. GM was there when an ambulance arrived and GM left because she thought it would be a really bad idea'.
186. When this was put to her, GM accepted that she had smoked cannabis but said that she had stopped when she became pregnant in May 2013. She was very anxious to emphasise that following her pregnancy she was unable to baby sit because of her condition and, contrary to the picture painted by G, had not been a frequent visitor to the KD's home since her pregnancy. It was pointed out on her behalf that in her police interview, G had responded to the question whether she had lots of visitors normally at your house by saying' GM normally comes if she's in a good mood but lately G hasn't been coming cos GM is pregnant and she's got a hip problem'.
187. She denied causing any of the injuries.
188. Her evidence was self serving and defensive. She trimmed her evidence on at least two occasions. She played down the extent of J's crying and upset when SM returned J at 12.30 pm on 3 December. She gave contradictory evidence as to whether J was wearing just his nappy or a babygro in his cot.

JH

189. JH was a colourful character; quite literally as on the second day of the hearing he had dyed his hair a bright orange colour. He demonstrated to the court his favourite tattooing drill. This made a noise which I would describe as a low buzzing noise like a razor and which produced less noise than a hair dryer.
190. Contrary to the evidence of JB, KD and GM, he was adamant that on 2 December he had stayed outside KD's home at all times and had not started the outline of JB's tattoo until the following day. He said that the skin would have swollen and would not taken the ink the following day. He was further adamant that on 3 December he only had direct contact with J for about 5 minutes. In answer to a question put by the MGF he accepted that he was on his own with J 'for about four seconds, whilst JB was in the kitchen and could see him at all times.' It was clear that his energetic evidence was directed at trying to reduce his direct contact with J to vanishing point. I am clear that he did enter the house on 2 December and made a start on the tattoo and that his refusal to acknowledge this was to maintain the self serving picture he was painting of de minimis involvement.
191. He said that he would not give JB and KD parenting awards as they would argue in front of the children and often left the children's nappies full. He had often thought about telephoning Children's Services.
192. He was defensive, self serving and reckless in casting blame on others for J's injuries, in particular blaming JB and G who he was very quick to brand as a 'little liar' in a most unpleasant manner.

PGM

193. The PGM described herself as blunt and plain speaking and as she was clearly speaking the unvarnished truth, was a breath of fresh air in this unhappy case. Her partner also gave evidence but had little to add.
194. The PGM said that her son, RB, had become aggressive and verbally threatening when he read her police statement. He was upset that she had implicated SM and he threatened to slit her throat. He came round later in a calmer manner, admitted making the threat whilst he was very distressed and apologised.
195. Unfortunately the MGF had approached her in the court waiting room and got 'quite agitated with her' over what she had said in her interview about his parenting skills.

Incident outside the court on 24 June

196. Following JH's oral evidence during which he had suggested that that JD may be the perpetrator of J's injuries, there was an unpleasant incident which took place outside the court building at about 2.30 pm on 24 June 2014, which involved the police. I heard discrete evidence from JH, JB, RB, KD, RM in relation to this incident.
197. Emotions in the B and M families were running high as, during the luncheon adjournment, they had been told that the local authority were considering a placement outside the family.
198. JH described walking out of the main entrance and seeing ahead of him under the grey arches a group consisting of JB, RB, KD, and the MGPs. He said that he felt surrounded with RB on one side of him and KD and the MGPS on the other side with JD directly ahead of him. He said that JD threatened him screaming at him 'You wait until I get to town. I'm going to fucking kill you'. In his oral evidence he said that the he thought the words were 'You wait until you get to town, I'm fucking going to kill you'. He said that RB followed this up with the threat 'You're going to die'. He described JB as aggressive and furious, screaming at him; whereas RB had a glazed look on his face, was showing no emotion and spoke quietly when he made the threat. These threats prompted JH to retreat into the court building, speak to the security guard inside the main entrance and telephone the Police. JB and RB were arrested and interviewed but no charges were brought. He said, however, that the MGPs did not say anything threatening to him and he believed that it was RM who was holding RB back.
199. JB said that he was very upset and emotional. He said that when he saw JH coming out of the court building he felt angry towards him, as he felt he had lied in his evidence about him neglecting the children and that, as a friend, he had betrayed him. He merely said to him 'You wait.' In his oral evidence he said that he did not know what those words meant, although in his statement he said that he accepted that his words would have been interpreted in an angry way. He denied being violent, aggressive and threatening or making nay threats to JH. He went on to describe JH putting his bags down and egging him on to hit him (which JH denied).
200. RB said that they were all in a heightened emotional state. He acknowledged that he was not happy about what JH had said about his brother and had ignored JH during the luncheon adjournment and tried to keep his distance from him. In his police statement he said that he thought that his brother, JB, may have threatened to punch JH. In his oral evidence, however, he said that, although JB had said something to JH as he emerged, he had no idea what it was. He felt angry himself and had repeatedly shouted 'I'm going to kill whoever hurt J' but denied saying that 'You are going to die'. In his police interview he had conceded that he could see how JH could think that he was being aggressive towards him. In his oral evidence he said that he had been provoked by JH putting his bags down and egging his brother on to fight him (which JH denies). He said that he did go towards him for a fight because he was threatening his brother but was restrained by RM. However, he made no mention of any provocation in his police interview. RB accepted that he lost control of himself to the extent that he head butted and punched a wall. He showed me the swelling to his hand which still visible after a week.
201. KD in her statement dated 1 July 2014 said that she had become very upset and distressed outside Court 8 and her parents were trying to comfort her. They all went outside where RB was very angry and was shouting at JH making threats along the lines of 'I'm going to fucking kill you'. She said that JH was egging him on saying 'Come on then'. In her oral evidence she said that, as she was in a very emotional state and not paying attention, she was possibly mistaken in what she had heard.
202. The MGF, RM, said that he had been angered by JH telling what he alleged was a lie about overhearing the MGF talking about a bruise on J's back and so he accepted that he was not talking to JH. He said that his role in the incident was to try and calm down RB and JB who were 'storming and muttering,' though he later he conceded 'OK, they were shouting; their voices were raised.' He said that they must have been upset with JH because 'all hell broke out.' He thought that RB and JB may have made threats but he could not really recall. They were standing there in a threatening manner with their arms up 'flailing around' and 'pointing' at JH and he was trying to calm the situation down by stepping in front of RB. He did recall JH provocatively beckoning them on with his hands, saying 'Come on then'. He did accept that JH probably did feel he was surrounded and outnumbered. The MGM in her statement recalled J making a gesture and saying 'Come on then'.
203. I am satisfied, on a balance of probability, that JB and RB did threaten JH as he has described. His evidence was graphic and compelling and the vehement way, in which he spat out the threats made to him, had the ring of truth. It was also telling that KD in her statement recalled JB saying works to the effect 'I'm going to fucking kill you' before she attempted to back track in her oral evidence. JB and RB were unconvincing and were manifestly minimising their involvement. Unfortunately the MGF also strayed into minimisation territory, though he did ultimately concede 'OK, they were shouting.'
204. It was, however, also likely that JH responded with a 'Come on then' before he realised that he was seriously outnumbered and beat a hasty retreat. I am satisfied that the MGF's role in this incident was to try and stop a fight breaking out and calm everyone down.
205. What this incident has graphically evidenced is that the B brothers, when emotionally charged, first resort to threatening aggression during the course of which they lose complete control of themselves.

Threshold

Law

206. The legal burden of establishing the facts rests on the Applicant authority at all times. The standard of proof is the ordinary civil standard of the balance of probabilities; neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof applied: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.
207. Findings of fact must be based upon evidence, including inferences that can properly be drawn from the evidence and not suspicion or speculation: Re A (A Child) (Fact-Finding: Speculation) [2011] EWCA Civ 12, per Munby LJ (as he was then). For a fact to be proved the judge must decide whether or not it happened. There is no room for a finding that it might have happened: Re B (above), per Lord Hoffmann.
208. Determining the facts is a difficult task which must be performed without prejudice or pre-conceived ideas. The court is 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 the overall impression of the characters and motivations of the witnesses: Re B (above), per Baroness Hale of Richmond.
209. As Dame Elizabeth Butler-Sloss P said in Re T [2004] 2 FLR 838 at 33:

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

210. In assessing the expert evidence I must be careful that each expert had not trespassed outside the bounds of their own expertise but has deferred, where appropriate, to the expertise of the expert with the relevant specialty and that, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all other evidence. The medical experts are not the decision makers; it is for the judge, having analysed the whole of the evidence, including issues of credibility, to reach conclusions as to the facts which may vary from that reached by the medical experts: A County Council & K,D & L [2005] 1 FLR 851, per Charles J; Re S [2009] EWHC 2115, per King J.
211. In Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 Dame Elizabeth Butler-Sloss P further observed: 'The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research may throw light into corners that are present dark'.
212. The evidence of the parents, the maternal grandparents and the interveners is of the greatest importance. It is, therefore, essential for the court to form a clear assessment of their credibility and reliability and the impression which the court forms of their characters is likely to carry weight when assessing the overall evidence. However, I bear in mind that it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing itself, particularly when the shadow of the parallel criminal proceedings hangs over them. A witness may lie for many reasons such as shame, panic, fear of losing the children and distress. The fact that a witness has lied about such matters does not mean that he or she has lied about everything: R v Lucas [1981] QB 720.
213. It is also important to guard against a reversal of a burden of proof as occurred in M (Child) [2012] EWCA Civ 1580 where the first instance judge had found that 'absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation.' Ward LJ stated that this conclusion did not necessarily follow unless, wrongly, the burden of proof had been reversed and the parents were being required to satisfy the court that it was not an accidental injury.
214. In Re S-B (Children) [2010] 1 FLR 1161 the Supreme Court held that in a perpetrator case there was no obligation to decide who caused the harm to the child. Unlike a finding of harm, finding a perpetrator, which might be difficult for a judge even on the balance of probabilities, was not a necessary ingredient of the threshold criteria. Judges should not strain to identify perpetrators if the evidence is not such as to establish responsibility on the balance of probabilities, notwithstanding the benefits of identifying an individual perpetrator, if possible. It is still, however, important to identify the pool of perpetrators. If the evidence was not such as to establish responsibility on the balance of probabilities, it should, nevertheless, be such as to establish whether there was a real possibility that a particular person was involved. When looking at how best to protect the child, the judge should consider the strength of that possibility as part of the overall circumstances. With regard to apportioning likely responsibility between possible perpetrators, judges should be cautious about amplifying a judgment in which they have been unable to identify a perpetrator: 'better leave it thus'.

Analysis

215. I have had the benefit of written submissions by or on behalf of all of the parties and interveners, which I have carefully taken into account.

Non- accidental injuries

216. I am satisfied that in this case none of the experts strayed outside the bounds of their expertise and properly deferred, where appropriate, to the expertise of the expert with the relevant speciality. Dr Ehrhardt, for example, properly deferred to the paediatric radiologist in relation to the dating of the tibia and humerus fractures.
217. As to the injuries found on J's admission to hospital on 3 December, there is a consensus between the three experts that these were inflicted injuries, a view which was not challenged, and I accept their comprehensive and compelling analysis.
218. I, therefore, find, on a balance of probability, that the extensive bruising, skull fractures with associated subdural haemorrhage, the fractured humerus and fractured tibia were non-accidental injuries.
219. I further accept the broad causation windows for the fractures, radiologically established by Dr Johnson, namely a window for the tibia fracture from about 13 November to 28 November; the window for the fracture of the humerus from about 22 November to 3 December and the window for the skull fractures from about 20 November to 3 December. Dr Rylance was able to narrow further the timescale for the skull fractures as probably after 26 November based upon the overlying scalp swelling. I accept his refined dating.
220. Dr Erhardt had used the term 'new' in relation to the humeral fracture but he clarified in his evidence that this term was no more than an indication that the injury was more recent than the shin fracture and he deferred to the timing of Dr Johnson.
221. Any further refining of the timing of the fractures and the subdural haematoma depends upon the interpretation of the presentation of J which in turn depends upon the reliability of the lay witnesses. The paediatricians were looking for the first time that the child was behaving abnormally.
222. The difficulty which has bedevilled this case has been establishing a truthful and reliable account of J's presentation in the days leading up to his admission to hospital, as all the relevant lay witnesses have given unconvincing, defensive, self serving accounts which have been riddled with inconsistencies and contradictions. The first, reliable account is that of 12 year old, G, who at 15:30 saw the two bruises on J's forehead and broke the news that J 'wasn't right'.
223. This first reliable change in J had prompted Dr Ehrhardt to hypothesise in his statement that the bleeding to the brain with the impact which fractured his skull occurred 'shortly before' J's sister discovered his injuries, though he later declined to define 'shortly before' with any precision.
224. Dr Rylance was more guarded as to drawing inferences from the description of J at this time; the description of the paramedics being of J 'staring at the wall, not moving but pushing the paramedic away'. In his view, this description was not typical of a child suffering a subdural haematoma where there is a sudden change, such as the child becoming pale and floppy and having difficulty in bleeding. The staring eyes and the pushing away did not 'hang together' and, therefore, he found it difficult to say that this presentation was of a recent, 'matter of minutes' episode. He also noted that the subdural haemorrhage was very small and, therefore, he would not have expected there to be much in the way of clinical consequence.
225. A further difficulty is that we have at least one earlier potential episode of J behaving abnormally, when J arrived with SM at the family home at about 12.30 pm. GM's description in her police interview was 'very, very upset, in a right state, crying and grizzly,…for long periods.' Dr Rylands said that this probably suggested that J was not behaving normally but commented that 'we must be careful not to read too much into events.' GM in oral her evidence muddied the waters even further by playing down this description saying it was taken out of context. This illustrates the evidential difficulty in this case of pinning down any credible picture of J's presentation as a safe basis for drawing inferences as to the timing of his injuries. In my judgment, Dr Ryland's warning equally applies to G's description at 15:30.
226. As to the bruising, Dr Rylance gave a time frame for the bruising that 'it was extremely likely that the trauma leading to the bruising had taken place within 12 hours of the bruise becoming evident and, in most cases, this will be within 4 hours'. He, however, acknowledged that the ageing of bruises by appearance is an inexact science. For example, Dr Wells was asked to clarify her observation as to the colour of the right forehead bruise. She said that it had a yellow tinge which led Dr Rylance to the conclusion that it was more likely than not that the bruise occurred within the previous 72 hours of Dr Well's observation (ie the morning of 2 December).
227. Dr Ehrhardt said that the bruises on J's head could have appeared some time after the injury was inflicted and he was unable to say, on a balance of probability, whether the bruises occurred before or after 1 pm on 3 December.
228. A further evidential problem is that it is by no means certain that the bruises were not visible before G first saw them. None of the adults were taking any real notice of J at all on 3 December and were each focused on their own agenda: the M and GM were focused on the hospital appointment; the F and JH were focused on the tattoo. Added to this, I have no confidence in the reliability of any of adults as witnesses of truth. This is an exceptionally unsatisfactory basis upon which to draw any inferences as to the timing of the bruises.
229. In all the circumstances, I am unable, on a balance of probability, to refine the timing of the injuries beyond the broad time frames referred to in paragraph 218 or to time the bruises with any precision.
230. As to the bouncy chair incident, there is again agreement between the two expert paediatricians that this was an inflicted injury. Dr Rylance said that it would be very uncommon to get any kind of injury from a fall from a bouncy chair and it was, therefore, highly suspicious of an inflicted injury. His reasoned rejection of the scenario put to him of 'the tumble out of the bouncy chair, the strike on the corner of the glass table and the fall to the floor' was compelling. Dr Erhardt's hypothetically possible scenario involved a fall out of the bouncer, a strike on a solid object with a corner and an unlucky hit on the eye. When viewed through the prism of probability, the hypothesis fell at the first hurdle. Dr Ehrhardt could only conclude that the scenario was highly unlikely. The research cited was of limited, if any assistance, for the reasons set out by Dr Ehrhardt.
231. Whilst acknowledging that unusual accidents can occur and one can 'never say never,' applying a balance of probability, I am satisfied that the eye, nose and forehead injuries were non-accidental injuries.

Perpetrator Issue

232. As J was in the sole care of SM at the time of the bouncy chair incident, I am satisfied, on a balance of probability, that she is the perpetrator of the bruises to J's forehead and side of his nose and the injury to his eye. She was an unconvincing and unreliable witness who was unable to give any plausible account of how J suffered his injuries.
233. As to the injuries found on J's admission, asking myself the question: 'is it probable that J suffered injuries caused by SM in September and suffered injuries caused by others in November/ December?' in all the circumstances of this case I have to answer in the affirmative. A similar question was considered by the Court of Appeal in Re M (A Child) [2010] EWCA Civ 1467 and was answered in the negative. The facts in Re M, where there was no iota of evidence to cast doubt upon the mother, are wholly distinguishable from this case where there is an abundance of evidence to cast doubt upon a number of the adults involved in J's life.
234. Can the court establish responsibility for the tibia and humeral fractures, the skull fractures, the subdural haematoma and the bruises on a balance of probabilities? Unfortunately the evidence in this case has been so deeply flawed and so skewed by the defensive, contradictory, and untruthful evidence of all the relevant adults that it has not been possible for the court to establish a firm basis upon which to erect the balance of probability so as to identify the perpetrator or perpetrators.
235. It is, nevertheless, still important to identify the pool of perpetrators.
236. Is there a real possibility that JB was involved? The answer to this question is overwhelmingly in the affirmative. The court cannot ignore the powerful evidence as to the F's aggression and frustration which he graphically conveyed to Dr Warnock. He accepted his aggressive behaviour towards the M, for example hitting her with a broom, and he further accepted taking out his frustration by punching doors and throwing J's bottle of milk against the wall, while he was feeding him. A recent example of him losing control was in relation to his threatening and aggressive behaviour outside court. He has no real perception of his own strength as evidenced by the 'sleepover incident' and was capable of recklessness, as evidenced by the BB gun incident involving the mother's oldest son. He had ample opportunity to cause these injuries in the days leading up to 3 December 2013. In his first police interview he said that 'it looked like he was whinging about his arm when I first put him (in the cot), which points to his awareness that J's arm was injured. He simply could not explain this comment convincingly. I, therefore, find that JB is in the pool of perpetrators.
237. Is there a real possibility that the M was involved? Again I must answer this question in the affirmative. There is substantial body of evidence as to the M's aggressive behaviour. She has accepted that her relationship with the F was highly volatile in which she played her part by biting and throwing crockery. Her aggression and frustration were not confined to JB. I find on the balance of probabilities that on one occasion she threw D onto the sofa in temper, as described by the F and confirmed by GM. Although it was argued that she had limited opportunity to inflict the injuries on 2 and 3 December, as I have been unable to narrow the window for the timing of the injuries, in my judgment, she still had opportunities in the days running up to J's admission to hospital to inflict the injuries. I further bear in mind that the window for the causation of the older shin fracture ended on 28 November. Nor can I ignore her concerning, disconnected demeanour in the hospital. I, therefore, cannot exclude the M from the pool of perpetrators
238. Is there a real possibility that SM was involved? The answer is again overwhelmingly 'Yes'. I have found, on a balance of probability, that she inflicted the injuries in September and this evidences a propensity on her part to inflict other injuries. J was in her care overnight on 25 to 26 November and 2 to 3 December, which fall within the timeframe for all of the injuries. It is noticeable that there was a catalogue of mishaps to J when he was in her care. It was also clear from the text and mobile phone calls (set out in paragraphs 172 to 176) that she was smoking cannabis on a regular basis including whilst caring for J. Nor can I ignore her comment on her arrival at the scene of 'I swear to God, I didn't hurt him' in the back ground on the 999 call when the talk at the time was of meningitis. This was compounded by her extreme anxiety at the involvement of the police and conviction that she would be arrested as evidenced in her texts to her mother (set in paragraph 73). I can only conclude that SM is in the pool of perpetrators.
239. Is there a real possibility that RB was involved? Again the answer is 'Yes.' He had the opportunity, as J was in his care overnight on 25 and 26 November and 2 and 3 December. J's stay on 2 & 3 December was sprung upon him when he had made it clear that he needed his sleep because of his work (paragraph 38). On his own evidence, was trying to keep J awake until 7 pm because he was clearly desperate for J to sleep through the night. I am also satisfied, in light of the texts and mobile phone calls (referred to in paragraphs 172 to 176 and 180), that he too was under the influence of cannabis whilst J was in his care. Furthermore, he demonstrated his capacity for aggression and total loss of control in the unpleasant incident outside court. I can only conclude that RB is in the pool of perpetrators.
240. However, in asking the same question is relation to the MGPs, GM and JH, the answer is firmly in the negative. The MGPs had limited opportunity to cause the injuries. There is no evidence of any violence or abuse of alcohol or drugs or criminality in their backgrounds to caste any doubts upon them as individuals. On the contrary, they have been positively assessed by the local authority and impressed the Children's Guardian as a traditional, hardworking couple. I exonerate the MGPs.
241. Although I found that GM and JH were unsatisfactory witnesses and that both had clearly put their own interests well above that of J on 3 December, I nevertheless acknowledge that they both had a very limited opportunity to cause the injuries. There does not appear to have been any time over 2 & 3 December when GM had sole care of J. Although G gave the impression in her disclosure on 24 December 2013 that GM was 'over every day and… would babysit, just her,' I accept GM's evidence that due to her SPD she had less contact during her pregnancy, which G confirmed in her police interview when she said '… lately G hasn't been coming 'cos GM is pregnant and she's got a hip problem.' As he had no opportunity to harm J on 2 December and only a fleeting opportunity on 3 December, I exonerate JH.

Collusion

242. There has been a suspicion of collusion poisoning the atmosphere of this case: the ill judged meetings after the first police interviews, which sufficiently worried the PGM that she checked their bail conditions with the police ; the F's comment to the police cited in paragraph 75; the shift in evidence by PD so to dovetail his account with the account of the M ( paragraph 34); the mystery surrounding the babygro including GM's startling shift in her evidence (paragraph 58); the mystery surrounding the disappearing nurofen bottle; the reconstruction of the dates in the M's diary and the MGF's approaches to the PGM to complain about the tenor of her evidence to the Police.
243. In the light of the mass of contradictions in the evidence, I will never get to the bottom of the babygro and nurofen mysteries. What is, however, clear is that the bruises were seen by the adults in the house before the paramedics arrived. The M said so in her first account on J's admission to A& E at the QMC: 'Also noted two new marks to head and on back that she had not noticed before. Wasn't perking up, so ambulance called...' (paragraph 68). It was the bruise on the back which alerted the adults to the question of abuse rather than the marks either side of J's forehead. This explains why in the 999 call the M says at the outset that she thought that he had hurt his back and there is no direct mention of meningitis. Once they realised that J had been abused, the search for a culprit began and 'took over' the adults' lives dominating their thoughts, even as J lay desperately damaged and distressed in his cot. The talk of meningitis quickly gave way to the MGF discussing the bruises on J's back, which, I accept, JH overheard. As JH described it 'There were conversations going on all over the place'. I am clear that when J was crying piteously and the 999 operator was saying 'hello, hello, hello' J was alone in his room, as he was found to be by the paramedics. Sadly the adults were more concerned with who was the perpetrator than providing comfort for J. I reject the MGF's explanation of the mobile phone being left in the cot as the reason for no-one hearing or responding to the operator.
244. The detective work had started with the text to SM 'Did J bang his self yesterday?' which brought SM post haste to the scene. She was asked whether the bruises were there when she was caring for J followed by a silence which she interpreted as being accused. The discussions spilled over into the family meetings on 3 & 4 December 2013.
245. These conversations are yet another example in this case of the adults selfishly prioritising their self interests over the needs of J. Looking back, they all now feel a sense of shame that J was left alone and it is this sense of shame which, in my judgment, has caused the highly defensive nature of the evidence as to what occurred before the arrival of the paramedics.
246. However high the suspicion of collusion may be, I nevertheless remind myself that suspicion cannot form the basis of a finding of fact. I do not find, therefore, that there was collusion in the sense of the adults trying to get their stories together or trying to conceal evidence by dressing J in the babygro. What I do find is that, as consequence of talking amongst themselves before and after their police interviews and in the course of these proceedings, the well of evidence has become contaminated, thereby denying J the opportunity of knowing who it was who caused him such grievous harm.

Failure to protect

247. The evolving, troubling feature of this case has been the extent to which the MGPs have failed to protect either J or D from harm. Both grandparents have been overprotective of their daughter and minimised her neglectful care of their grandchildren. They have struggled to conceive that their daughter could be in the pool of perpetrators. The MGF accepted that he lacked 'any foresight and "balls" to stand up to the children's mother', his daughter.
248. Both recognised and acknowledged that they had failed to protect their grandchildren. I, therefore, can only find on a balance of probability that the maternal grandparents are guilty of a failure to protect J and D from suffering significant physical and emotional harm and neglect in the care of their parents.
249. There is, however, a glimmer of light in this darkest of clouds. In my judgment, the maternal grandparents have learnt a very sharp lesson in the course of these proceedings, have taken on board their deficits as protective carers of the children and thus, in my judgment, have taken their first important steps onto the road of insight.

Balance of the findings

250. In addition to the findings I have made in relation to J's injuries, on all the evidence I make findings on a balance of probability in respect of paragraphs 9 to 15 of the Schedule of Findings. Additionally, I find that JB recklessly shot the mother's oldest child in the back with a BB gun and that the M knew of this incident. I also find, as they both admitted, that RB and SM smoked cannabis on a regular basis including whilst caring for J.
251. In respect of finding 7, however, in the light of the expert evidence I do not find, on balance of probability that the fractures of the shin and left upper arm would necessarily have been noticeable to the non-perpetrators.
252. The local authority, entirely properly, does not purse finding 8.

Welfare Evaluation

253. In carrying out the welfare evaluation, the court's paramount consideration is the welfare of D and J and in determining where their best interests lie the court has to have regard to the welfare checklist in the Children Act 1989.
254. It is necessary to go back to first principles which the judge must always have in mind at every stage of the process: Re B-S [2013] EWCA Civ 1146; Re K v London Borough of Brent and others {2013] EWCA Civ 926; Re P (A Child) [2013] EWCA Civ 963, Re G ... A Child) [2013) EWCA 695 and In the matter of Re W (A Child) [2013] EWCA civ 1227.
255. The starting point is Article 8 of the European Convention, the right to respect for private and family life. The overarching principle is, as explained by Hale LJ ( as she then was) in Re C and B [2001] 1 FLR 611, para 34:

"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

256. 'Necessity' sets a stringent and demanding test, as was spelt out by the Supreme Court in In the matter of B (A Child)(Care Proceedings) [2013] UKSC 33. Care orders are 'a very extreme thing, a last resort, only to be made where nothing else will do and to be made only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare.'
257. Three important points were emphasised by Lord Neuberger in Re B

(i) Although the child's interests are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents or at least one of them, unless the overriding requirements of the child's welfare make that not possible.

(ii) The court must consider all of the options before coming to a decision and it is, therefore, necessary to explore and attempt alternative solutions.

(iii) The court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer.

258. Applying the welfare checklist, the children are not of an age or understanding for their wishes and feelings to be a determinative factor. Their particular needs require a permanent and settled home which provides a safe and secure environment which meets all of their needs and which will enable them to achieve their full potentials as individuals physically, emotionally, educationally and socially.
259. J has suffered significant physical and emotional harm, whilst in the care of his parents, and D has suffered significant emotional harm and the damaging consequences of neglectful parenting as evidenced by the poignant evidence of the allocated social worker and the Children's Guardian. In the light of the serious findings I have made both parents pose a high risk of harm to both of their children. There is no evidence that either parent has the slightest insight into providing the boys with an environment which is free from physical or emotional harm. They simply do not have the capacity for safe parenting which meets the children's needs. This has been recognised by both parents and neither has sought to put themselves forward as the children's carers.
260. Whenever possible consistent with their welfare needs the children deserve the incalculable advantage of an upbringing within their natural family which gives them the deepest sense of belonging which is so important for their sense of identity, self esteem, emotional and psychological well-being. It is only where there are unchangeable deficiencies of such dimension that the children's safety and proper development cannot be assured within the family of origin that a judge is compelled to consider alternative placements elsewhere.
261. I have exonerated the MGPs as potential perpetrators of the injuries sustained by J and of the taint of collusion but I have found that they were guilty of a failure to protect their grandchildren. There are, however, signs that within a reasonable timescale the grandparents would be able to acknowledge and confront the scale of what has happened to J and D. The single-most important factor is whether the grandparents may develop their understanding of their own shortcomings as protective carers so as to guarantee the future physical and emotional safety of J and D. In my judgment, there is reason to hope that they can. In the process, they must learn to prioritise the needs of the boys over their own and their daughter's needs and, in order to do so, to distance themselves from the chaos of their daughter's life and the lives of the B brothers and their circle of friends.
262. Weighing and balancing the welfare factors, in particular the balance of harm, I have concluded that the balance strikes down in favour of a solution which enables the children to be kept within their natural family and brought up by their maternal grandparents under care orders. I have found that the maternal grandparents are on the road to insight which is the precursor for protective care. Their journey will be enhanced and accelerated through the proposed intensive assessment, which will involve an understanding of the gravity of the findings I have made and of the dysfunction within the children's family, which has been the catalyst for harm.

Placement Option Evaluation

263. Before, however, determining the best placement option for the child, a global holistic evaluation must be carried out of each placement option: see In the matter of W (A Child) [2013] EWCA Civ 1227, per Ryder LJ s In considering all the options, the court should adopt the least interventionist approach: Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760; the 'no order' principle encapsulating the Strasbourg principle of proportionality.
264. Given the severity of the injuries sustained by J and the level of emotional harm sustained by D as a result of neglectful parenting, I can only evaluate the risk of future harm as high. On the other hand, I have taken full account of the enormous benefits for the children of being brought up by members of their natural family, where the commitment of the maternal grandparents to these damaged and troubled children will be life long and, therefore, likely to be of a different nature than that of foster carers, whose commitment may change over time. In all the circumstances I have concluded that the risks can be managed safely, provided that the children are placed with the maternal grand parents under the auspices of care orders.
265. A care order, in my judgment, is necessary as this will enable the local authority to share parental responsibility, to provide a robust monitoring and safeguarding role and to engage the grandparents in the necessary work to enhance their insight and protective instincts before the children are placed in their care. There is also a necessity for the local authority to have a long term role as professional supervisors of the parents' contact.
266. Private law orders, even if underpinned by a supervision order, would not provide the necessary safeguards for the children.
267. There will, of course be downsides to the children being the subject of care orders, which I have carefully taken into account. The disadvantages include the children being subject to continuing statutory intrusion in their lives and undergoing the stigma that a care order entails. Those disadvantages are, in my judgment, far outweighed by the necessity of having a package of support and robust safeguards, which only a care order will bring. In my judgment, therefore, nothing less than care orders will do.
268. In my judgment, the balance strikes down firmly in favour of making a care order, which on my welfare evaluation, is the best welfare option for the children and is both necessary and proportionate.

Conclusion

269. In the children's best welfare interests I, therefore, make a care order based upon a plan of further intensive work with the maternal grandparents before the children are placed in their care.