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 KB and LyU (Children)

		17 July 2014

HHJ Swindells QC:

Introduction

1. I am concerned with the welfare of two children: K who is aged 3 years and 9 months and L who is aged 8 months.
2. Their mother is LU ('the mother') who is aged 24. The father of L is JU ('the father') who is aged 20 and has parental responsibility for her. The father of K was killed in a road traffic accident a few weeks after K's birth. Their maternal grandmother is MU and her partner is CD ('the MGPs').
3. On 25 January 2014 K was referred to hospital and was found to have sustained extensive bruising and petechiae to his penis and pubic area.
4. Care proceedings were issued on 13 February 2014. The children were made the subject of Interim Care Orders on 28 February 2014, which have been renewed by consent. The children were placed with the MGPs where they have continued to reside.
5. The matter comes before the court for a composite threshold and welfare hearing
6. The local authority seeks to establish, on a balance of probabilities, the findings set out in a Schedule dated 29 June 2014 to satisfy the threshold criteria under s 31 (2) of the Children Act 1989 (which appears at TB1A/A11-12). The Threshold Schedule includes findings that the injuries sustained by K were inflicted by JU, which he denies and blames the mother. The mother has accepted all the findings in the Schedule. There is no dispute that the threshold is met for the purposes of s 31(2) of the 1989 Act.
7. The issue for the court's determination is whether the local authority can establish, on a balance of probabilities, that JU was the perpetrator of the injuries sustained by K.
8. As to the welfare of the children, there is a consensus that the children should remain placed with the MGPs under the auspices of a Special Guardianship Order underpinned by a 12 month supervision order.
9. I heard evidence over three days from the allocated social worker, the maternal grandmother, the paternal great grandmother, the mother and the father. I also took full account of the Final Analysis of the Children's Guardian.

Background

10. K was presented by the mother and MGM to a Minor Injuries Unit in the early hours of 25 January 2014 and was immediately referred to hospital.
11. The following injuries were found (which are marked on body maps at TB1A/C30 & 31 and shown in colour photographs at TB1B/ F 95-100)

An oval bruise measuring 1 cm x0.5 cm which was bluish in colour to the right midline in the pubic area (B1);

A circular bruise measuring 0.5 cm x 0.5 cm in the mid pubic area, which was bluish in colour (B2);

An oval bruise measuring 1 cm x 1 cm in the pubic area to the left of the midline (B3);

A linear bruise measuring 1 cm x 0.5 cm in the right groin which was bluish in colour (B4);

A red bruise on the base of the penis; on the dorsal aspect extending on the lateral side of the penis, measuring 1 cm in width. This encircled the base of the penis but there was relative sparing of the ventral aspect of the penis with petechiae seen on the ventral aspect. The bruise was well demarcated. There was also swelling present at the base of the penis (B5).

Multiple petechiae which were red in colour in the right groin and upper thigh were noted (B6).

Multiple petechiae which were red in colour were present in the left groin and upper thigh (B7).

12. Dr Khalid at 03:10 recorded in the hospital notes the following history taken from the mother in the presence of JU:

'K went to bed c 7pm, was complaining of pain down below 'Willy hurts'. Stepdad checked; not noticed any swelling. Woke up 9 pm, saying 'pain again in willy'-> stepdad checked - it was hard; no redness or swelling noticed -> went to sleep.

Woke up at 1 clock complaining pain willy. Stepdad noticed penis bruise on top & mum noticed bruise & redness & swollen -> went to S A & E. Penis was more red. Went for wee; did (n't) hurt; was checked; it was normal. Paracetemol given at A & E.

Mum asked K 'how you hurt yourself?' 1^st said he (K) has done himself & then said "J (JU) has done it." K's mum was with K – stepdad has been playing with him. Mum went to Tesco at 9.30 pm for 45 mins-one hour & JU stepdad was at home with 8 weeks old daughter…

Mum thinks may have happened by seat belt – came from nursery at 11:45 am yesterday (Friday)…'

13. On the car journey to the MIU the MGM says that K told her that 'J (JU) did it' and made a punching action towards himself in the genital area. Her recollection was that he had said this in the presence of the mother, who responded with 'I don't know why you are saying that and I can't believe that would happen.' The mother thought that K had first said this to his grandmother whilst she was getting petrol. When she returned to the car, her mother said to her that she was not happy with what K was saying and suggested that she ask him. The mother asked what had happened and he said 'J (JU) did it' and thrust a clenched fist downwards towards his genital area.
14. At the hospital, in the presence of the mother and JU, K told Staff Nurse MS that 'J (JU) did it' and made a hammering motion with his clenched fist against his private parts hitting his groin area. He was asked when this happened and he said 'bedtime'
15. On the morning of 25 January Junior Sister SS took over and when she saw K he immediately told her that his father had done it.
16. K underwent an ABE interview on 21 February 2014, which was viewed in court. The ABE interview was flawed in that it did not deal with 'truth and lies' nor was there any free narrative. Given his young age, K found it difficult to concentrate on the questions and was constantly distracted by playing with jigsaws. Although the court must be cautious in those circumstances as to the weight to be given to the interview, K was, nevertheless, clear that JU had "hit my willy' and 'smacked me on my willy" and he had cried. He also gave some detail in that he went on to say that his mother took him to hospital and the doctor looked at his willy. I, therefore, take this evidence into account as part of the overall picture as to the consistency of K's account.
17. On the evening of 21 February 2014 the MGM says that K was having a nightmare and was shouting and screaming in his sleep "stop it" and "get off" and he was holding his hands round his genital area over his pyjama bottoms. The MGM videoed this on her phone. Two days later when he was having an afternoon nap, he had another nightmare, shouting "leave me alone" and "stop" which was again recorded. The recordings were played in court. On each occasion K was very, very distressed and was writhing and holding on to his genitals for a significant period of time. It was highly distressing to watch. The mother and the paternal grandmother were visibly upset. JU, however, remained impassive.
18. JU has been arrested and interviewed under caution. He denied causing the injuries. The mother was interviewed but not arrested. She denied causing the injuries.

Texts

19. During the run up to the events on 25 January 2014, a number of texts were exchanged between JU and the mother, which paint a disturbing picture as to the difficulties in relationship between K and JU.
20. On 10 October 2013 JU texted 'Why we not going ur mums anymore? That's why K started crying… you did not put K on the sofa either, you threw him there …You make me feel scared of you.' He replied 'Omg, cuz K was just sitting on the potty not doing owt and I put him on the sofa and ur foot was in the way; none of u 2 listen to me. All I said was wait until u feel like weeing, then go; then u tried saying something, then K started crying; I'm trying to clean up as well…' The mother responded with 'No you didn't say anything. You shouted it. That's why K started crying…you didn't put K on the sofa either, you threw him there…you make me feel scared of you. I wanted to go upstairs and do my crying but I didn't want to leave K with you. I want to go to bed and never wake up'.
21. On 11 October 2013 the mother texted 'But can you not understand how when you are so horrible sometimes, it makes me scared of what you would do if I wasn't there and he plays up. I do trust you when you're in a good mood and happy n stuff but when you're horrible you are really horrible…'
22. On 14 October 2013 the mother texted '…Like I said you're very threatening sometimes'. JU replied 'I'm not tho' to which the mother responded 'Maybe you don't think so but I do and K clearly does'. The mother further replied 'because you shouted at me and K yet again … You shouted it'. His response was 'Babe, all I got to do is walk in the room and he be like no, J, then start crying like just a min ago I went up I got top of stairs and he screamed 'no, J.' The mother replied 'Well he's obviously pretty scared of you and thinks that every time you go to him its to tell him off n stuff. He's not being like that for no reason' He replied; 'I dunno why he's like he is cuz I've never hit or anything.' The mother texted 'Coz every time you speak to him it's to tell him off maybe… You hardly said one nice thing to him today…'
23. On 17 October 2013 the mother texted 'I couldn't have you round K and L if you got like this again. And your mum agrees with me on that one. You do not want your own daughter growing up scared of you'.
24. On 22 October 2013 the mother texted 'Then just say OK fine and leave him alone. He's probably still a bit worried of you how you've been lately so you have to gain his trust n that again'. JU replied 'Well, I'm trying to be there for him babe; I've been nice to him since after school' to which the mother replied' Yeah, but it takes a while for children to trust you again n that babe. A couple of hours niceness doesn't make up for days of you being horrible to him and then when he gets upset and you react horribly to again it's a set back, isn't it. It doesn't show him you're being nicer'.
25. On 14 November 2013 ('the nursery incident') the mother texted 'You basically pinned him to the floor at nursery, J, and then swore at him. Wouldn't surprise me if he doesn't want to go to nursery again tomorrow. And then you go mad at me and make me feel a cunt. I told you to go and sit in the car so that you could calm down but instead you turn it into an argument and text me nasty messages and there's no need for it'. He replied ' I didn't baby I was holding him on the floor cuz he had to sit down every time I let go of him he tried standing, yes I know, and I went and sat in car but u making out like everything is always my fault. I've tried making you happy again but its not working when I'm happy it seems like ur pissed off and when I'm moody it seems like ur in a good mood…' She responded ' …K was crying because you were holding him on the floor . There was no need for you to do that at all. He only wanted to come to me…He's three years old. He does not need shouting at n stuff. He needs telling off constructively and to understand why he should do things people ask him. You're just horrible to him…He's not a naughty child. Never has been. But the way you are with him is like he is the worst child ever. He needs to feel safe and have guidance from the people he loves, not feel scared and confused'.
26. In her evidence the mother said that, notwithstanding that it was a public place with teachers and parents present, JU became aggressive with K which must have been frightening for him. She had to ask JU to leave and wait in the car. She later tried to discuss with him what was appropriate behaviour and to try and make him realise where he had gone wrong. JU said in his evidence that one of the teachers had asked the children to sit down but K kept running off and so he held his hand to the floor to stop him running off. He recalled going to sit in the car but he could not remember why.
27. On 21 November 2013 the mother texted 'He is three years old, as I have to keep reminding you. You just can't shout at him and expect him to know what you're on about all the time. You just bark orders at him all the time…'
28. On 2 December 2013 the mother texted ' ...K is a problem for you in every way and after the other night its obvious your gunna end up the same with L after you promised me before she was born you'd never shout at her for crying but you did. I'm not having my kids upset like that. Until you sort yourself out and realise what's actually important to you maybe you're not ready for this family life and if that's the case then you have to leave us…'In her oral evidence the mother said that L had woken up crying in the early hours of the morning for her bottle and she was getting up to feed her, the father turned over in bed, saying fairly loudly 'Oh, shut up L.'
29. JU denied that K was scared of him. He said that if he told K off, he would run to his mother saying that he was scared of him, whereas all he had done was tell him off. He denied shouting, saying that his voice was deep and so it may have sounded like a shout.
30. On 14 December 2013 the mother texted 'You're in a funny mood. And have you any idea why K's suddenly got a black eye?' JU replied 'He ain't got a back eye and if he has then no I ain't got no idea and don't even think its cuz of me'. The mother said that she did not think now that this was a black eye. K had a tendency to get black circles under his eyes.
31. On 20 January 2014 ('the naughty step incident') the mother texted 'Can you stop being like this. I've told you before not to jump at K straight away; he needs to be told first and if he does it again, then he needs telling what he's done wrong again and putting on the step. Not straight away. Please stop snapping over everything and causing rows'. JU responded 'I'm not fucking fed up with u and grandma telling K to come off when I told him 'no'. I'm so close to fucking off. U don't understand u both always goes against me and I'm not having it now; so I wont stop being like this and tell grandma I'm not even gunna clme up again.' The mother texted back '….I hardly said anything, so don't take it out on me. And I've just explained to what needs to be done, not shout at him straight away and make him on the step. He's been really upset because he said you're not talking to him any more. I don't want him feeling like that'.
32. The paternal great grandmother gave evidence in relation to the naughty step incident. She said that K had been cheeky and JU had very sternly told him off and told him to go and sit on the naughty step, which he did and then started to cry. She thought that the punishment was excessive and that K's cheekiness did not warrant him going on the naughty step and so she told JU that 'that was a bit harsh'. She described JU then 'storming out' of the house, saying 'Nobody listens to me'. She said he was not willing to accept advice. The mother said that the way JU spoke to K and took him to the naughty step was rough, aggressive and inappropriate. The father said that he did not know if he had behaved inappropriately that day to K but he did recall 'storming off' because, whatever he said, his grandmother and the mother were going against him and not listening to a word he said.
33. On 25 January 2014 the father texted 'U at the hospital …what's happening cuz u ant answering me. Is K OK'. The mother texted back ' …K told me and mum in the car that you punched him in his willy..' He replied 'I never touched him there..' and later repeated ' I've never touched him and we been together a year… everyone thinks its me even u do; I love that boy with all my heart. I class him as my son.' The mother replied 'I'm just so frightened the kids will be taken off me…' He texted 'U don't love me; u not even saying u don't think its me; I've done fuck all wrong..' The mother replied 'I just so frightened. I love you with every piece of my heart. I just don't understand why K would say that, if its not true…' He gave a strange reply 'If I've done it, then I'm truly sorry but I dunno how I've done it. I just do not wanna loose u or the kids'.
34. The clear picture of the father, as presented by the texts, was of a very immature young man who behaved in a belligerent bullying manner towards three year old K. The father said he did not accept the tenor of the texts and blamed the mother for the way she texted 'so as to make him look bad'. These texts were, however, received late in the proceedings and the mother would have had no idea at the time she was texting that they would ever be scrutinised by a court. I find that the texts gave an accurate picture of the unhappy dynamics between the bullying JU and the vulnerable, frightened K.

Expert Evidence

35. In his report dated 6 May 2014 Dr George Rylance, Consultant Paediatrician, concluded that ' it was more likely than not that the bruising would have been caused by an adult impacting upon the child directly with part of their person or indirectly through another object'. In his opinion, the most likely explanation of all of K's bruises is inflicted trauma.
36. Given K's developmental stage, he did not think that K could have caused these injuries himself as he would not have been capable of directive pressure enough to result in the bruising as seen. He said that he had never seen bruising of this type that had been caused accidentally. He could not think of a set of circumstances in which part- circumferential penis bruising and petechial and other bruising to the groin and pubic areas could occur accidentally.

Force

37. He said that the force required to cause bruising of the penis and pubic areas which are relatively protected must be significantly in excess of that which obtains from normal handling and activity.

Timing

38. As to timing, whilst acknowledging that the ageing of bruises by appearance is an inexact science, he formed a view that it was more likely than not that K's bruising was less than 72 hours when he was seen by Dr Khalid. No bruising was evidently seen before about 01:00 on 25 January 2014 and, if this reporting was true, it was more likely than not that the trauma causing the bruising occurred in the previous 6-7 hours and probably within 4 hours. Even if the truth were doubted, it was very likely that the trauma leading to bruising occurred in the 12 hours up to 2:00 and, as no redness was seen by JU at about 21:00 on 24 January 2014, it is likely that the trauma causing K's bruising occurred after that time and before 1:00 on 25 January 2014.

Mechanism

39. In his view the bruises (B1-3) are likely to have been caused by impact with an unyielding object and that the cause was in the nature of a prodding contact with an object end of similar size to the bruises. There was no pattern of finger distribution but the size of the bruises is consistent with finger end contact.
40. Bruise (B4) could have resulted from sustained or blow short contact impact. The linear nature does not necessarily imply that the causal impacting was of the same shape and size, as bleeding in the groin crease area sometimes 'tracks' and results in a linear bruise even from a small round object.
41. Bruise (B5) was more likely to have been caused by squeezing/compression than a sharp blow/hit impact. The part circumferential bruising could have been caused by a direct blow but is more likely to have been caused by sustained compression from the front or by squeezing both front and sides of the dorsal surface at the same time. The selling at the base of the penis is a likely accompaniment to bruising.
42. Bruise areas (B6 & 7) are more likely to have been caused by sustained pressure over some seconds than by a blow/hit lasting milliseconds. However, short impact trauma does lead to mainly petechial effects on occasions.

Symptoms

43. Pain relates to the force of impact and fear related to the event and so the usual reaction of a young child to such trauma is to cry relatively briefly. The ongoing pain is likely to be short and no more than a few minutes. Most young children will cry for a short period of time. Bruising to the penis would tend to make it tender to touch but in most cases would not lead to particular strong or sustained crying. After a few minutes a child of K 's age would be unlikely to change behaviour significantly as a result of trauma causing bruising unless there were repeated episodes of trauma.

Suggested explanations

44. Neither parent initially accepted the diagnosis of inflicted injury. The mother described K tripping on the footplate of his scooter which had slipped sideways ('the scooter incident'). She said that he 'grumbled' that it had hurt him but did not cry nor mention that he felt any pain. Dr Rylance said that K did not seem to have suffered any particular distress at the time and he could foresee no circumstances in which K's specific bruises would result from this type of 'accident'.
45. Mention was made by the mother to Dr Khalid when he was taking the history that the bruising could have been caused by the car seat. She suggested that the bruises may have been caused by K sitting on the straps of his car seat which were pulled up between his legs. JU allied himself with this suggestion. Dr Rylance was, however, clear that bruises which result from trauma-related seat belt construction do not cause bruising of the type seen on K, although strap marks can occur.

Evidence

The Mother

46. The mother has a history of depression, suffering from panic attacks in 2012, depression in December 2012 and generalised anxiety disorder in March 2013. In October 2013 she was referred to a psychiatrist for low mood and was diagnosed with mild post natal depression in December 2013, following the birth of L on 22 November 2013 by C-section. In March she commenced a course of cognitive behaviour therapy; initially group sessions and currently 'one to one' sessions. She has recently completed the Freedom Programme on line and has enrolled for a 'confidant parenting' course and assertiveness course on line. She has also undertaken counselling with Jigsaw.
47. She frankly conceded in her oral evidence that she had failed to protect K as well as she should have done and, up until she had read Dr Rylance's report which made clear that K's injuries were non-accidental injuries, she had prioritised her relationship with JU above the needs of her children and had continued text, telephone and face to face contact with the father including intimate overnight stays at her flat, which she had concealed from her mother although the paternal family knew. Looking back now she was appalled at herself that she had told the EDT social worker on 25 January 2014 that K was an 'exaggerator' and that K had said that JU has hurt him in the past which she thought was 'for attention.''
48. She gave the following account of the events of 25 January 2014. The morning was normal. She fed and changed the children. When she changed K, she saw no marks on him and he was not complaining of any pain. He was excited to be going to nursery where he was dropped off before 9am. The mother and JU both went to collect K from nursery school at around 12.30pm. The nursery staff did not mention that there had been any upset that morning or any accident involving K. She picked up her mother to go shopping. She returned home later with K and at about 1.30 pm JU went out to hand out job CVs leaving both children with her until he returned at about 5.30pm. She and K watched a film together, whilst L remained asleep in her bouncer.
49. On his return to the family home, it was JU who took K upstairs to bed, as she still had difficulty in bending and carrying due to her C-section. JU was upstairs for about 5 minutes. She heard nothing unusual during that time. She was in the kitchen which was directly below K's bedroom and she would have heard any cries or shouts or bumps. She just heard "Good night. I will see you in the morning'. When JU came down he told her that K had said that he had 'a bit of pain down there' and so she said that they should keep an eye on him. JU did not seem worried and so she did not go up to check. At 9 pm she heard K make a 'whingy' cry. JU went upstairs and was with K about a minute during which time there was no sudden cry from K. On his return JU said that 'K was still hurting down there' but K had already fallen asleep as he was leaving the room.
50. At about 9.30 pm she went out with her mother to Tesco. They were there about an hour, which was longer than they had anticipated. When they left, JU was playing on his X-Box and he was still playing on his X-Box when they returned. They then watched a film together in the living room until about 1 pm when JU went upstairs to use the toilet. She had heard no crying from K. JU shouted to her that 'there was something the matter with K's willy.' She went up into K's bedroom where she saw JU sat on the bed and K with his trousers pulled down to his thighs. She saw the injuries which she described as K's penis 'three times the normal size and looking as if it was going to burst' and developing bruises. Her immediate thought was that they needed to get him to hospital. JU spontaneously said to her that 'K had said he did it with his arm or elbow or finger.' She rang her mother for support, picked her up and went to the MIU with K leaving the father with L. When her mother told her in the car to ask K what had happened, she said that she did and he responded with 'J done it' and showed her how he done it by thrusting a clenched fist sharply downwards towards his genital area. She was present when K repeated these words and the gesture to the medical staff at the hospital and the EDT social worker.

The father

51. JU has Attention Deficit Disorder and Aspergers and is on the autistic spectrum.
52. Dr Mark Lockyer, Chartered Clinical Psychologist, carried a psychological assessment of the father and concluded that he had capacity to conduct his own affairs and engage with the current proceedings within the meaning of the Mental Capacity Act 2005.
53. Dr Lockyer found the father's intellectual profile to be uneven. His verbally based abilities are significantly lower than his non- verbal skills, the latter falling within the low average range. His level of functioning in relation to working memory and general speed of information processing, however, were within the norm.
54. In the light of the father's difficulties permission was given for him to give his evidence by video link supported by his mother. In assessing his credibility I took full account of his intellectual limitations, as identified by Dr Lockyer. Although I noted that the father was impassive during the nightmare recordings, I have not drawn any adverse inferences from his demeanour.
55. He gave the following account as to the events on 25 January 2014. He saw K in the morning but was not involved in changing him. At this time K did not complain of any pain. He went with the mother to pick him up from nursery. The nursery staff did not mention any accidents of K being upset. En route from the nursery the MGM was picked up and he and L were dropped off at the family home. They went shopping and were about 15 to 20 minutes. He left the family home roughly from about 12.30pm to 6 pm. He was handing out job applications and also met up with his grandmother and had a beer.
56. When he got back, he put K to bed and K complained that his penis was hurting. He checked him but there was nothing out of the ordinary. His penis was hard and he asked him if he needed a wee and he said 'No'. He went back upstairs at about 9 pm and heard K crying and went to check on him. K was whinging and again told him that he was hurting down there. He had a look and it was just the same. His penis was hard and he again asked him if he needed a wee and he said 'No'. K was already asleep as he went out of the bedroom door.
57. The mother left the house to go to Tesco with her mother. He thought they were about half an hour. He was in the living room with L playing on his X-Box. About 1 pm he went upstairs to go to the toilet and heard K moaning. He had another look and saw the swelling and bruising on his penis. He shouted to the mother to come because it did not look right to him. The mother asked 'How had it happened?' He said that K had told him that 'he did it with his arm, then it was his little finger and then it was his arm again and then it changed to the other arm'. He accepted that K had said that he (JU) had hurt his penis but he believed this referred to him lifting his penis up to look underneath. He had no idea as to why K kept repeating to other people that he had hurt him or why he would accompany this with a 'punch' action. He could think of no reason as to why K would tell lies.
58. The father accepted that in May 2014 he had sent threatening texts to the mother and to the maternal step grandfather. His first message to the mother was that 'He was coming to kick the door in and get the children. On the way from Lc now'. His second message to the mother was 'I am now in Sk, I will be coming up to you and if you don't answer, I will kick the door down. Honestly you or your stepdad shouldn't mess with me. Trust me as I'm gonna show you what I'm like when people cross me…' He said in his evidence 'I meant nothing. I was just threatening.'
59. The father was highly defensive, when giving his evidence, and gave little detail beyond a bare narrative and bare denials. He was consequently an unconvincing and unsatisfactory witness and I could not regard him as a witness as to truth.

Threshold

Law

60. 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.
61. 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.
62. 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.
63. As Dame Elizabeth Butler-Sloss P said in Re T [2004] 2 FLR 838:

'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 a conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof'.

64. In assessing the expert evidence I must be careful that the expert has not trespassed outside the bounds of his expertise 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 the other evidence. The expert is not the decision maker; it is for the judge, having analysed the whole of the evidence, including issues of credibility, to reach conclusions as to the facts.
65. In Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 Dame Elizabeth Butler-Sloss P 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.'

66. The evidence of the parents is of the greatest importance. It is, therefore, essential for the court to form a clear assessment of their credibility and the impression which the court forms as to 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. 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.
67. 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 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. It was still, however, important to identify the pool of perpetrators and whether there was a real possibility that a particular person was involved.

Analysis

Non- accidental injuries

68. The evidence of Dr Rylance was unchallenged. I am satisfied that he did not stray outside his specialty. He reached a clear conclusion that the injuries were inflicted injuries. I accept his evidence and I find, on a balance of probabilities, that the injuries were non accidental injuries.
69. I further accept his evidence that the multiple injuries were variously caused by a prodding contact, a blow contact and a squeezing compression/ mechanism and that force used was significantly in excess of that used in normal handling and activity. Dr Rylance was clear that K would have suffered not only pain from the force of the impacts but fear related to the event.
70. The only inference I can draw, therefore, from this evidence is that this was a deliberate, callous and sadistic infliction of injury, pain and fear by the perpetrator upon a vulnerable three year old child. The recordings of K's nightmares, so close to his ABE interview, provided poignant and graphic evidence, not only as to the extremity of the physical harm he suffered, but also the depth of the emotional damage he sustained as a consequence of the terrifying infliction of the injuries upon such a highly sensitive part of his body.

Perpetrator issue

71. Can responsibility for these callous injuries be established on a balance of probabilities?
72. In resolving where the balance of probabilities comes down, I must place in the scales against JU the following matters. He was a highly defensive and unsatisfactory witness, who could not be regarded as a credible or reliable witness. He came across as a very immature young man who was prone to frustration and quick to anger and a loss of control. This was evidenced by his inappropriate behaviour in the nursery incident and his harsh overreaction to a minor disciplining issue in the naughty step incident. It is a concern that in neither case was he deterred by the presence of others.
73. This is against a backdrop of a concerning history of angry outbursts as evidenced by his mother who had difficulty in managing his behaviour which included causing damage in the home. His erratic compliance with medication is charted in his GP records which, according to the mother's evidence, mirrored his erratic behaviour.
74. The texts paint a picture over the few months he and the mother were together, not only of a highly volatile relationship to which both children were exposed, but also of K being frightened by JU's overbearing and bullying attitude towards him. Even the scrutiny of the court did not deter him from sending aggressive and threatening texts to the mother and the maternal step-grandfather on 1 May.
75. In the scales against the mother, I have regard to the fact the texts demonstrated that she too was capable of impulsivity and had exposed her children to the conflict in their relationship. In her background was a history of serious depression which has required psychiatric intervention. She had to accept that she had lied in the course of these proceedings, especially in relation to her post January relationship with the father, and, therefore, there is a question mark over her credibility.
76. However, her unflinching frankness as to her shortcomings as a parent and her acceptance that she had minimised the difficulties in JU's relationship with K until she was faced with the reality of her own texts, came across as genuine and, in my judgment, showed that she is gaining maturity and, albeit late in the day, some insight into how the dysfunction in her relationship with JU had proved the catalyst for K's horrific injuries. This made it possible for the court to regard her as a more reliable witness and to give greater weight to her oral evidence as to the events on 25 January.
77. The local authority submits that Dr Rylance's timing of the injuries places JU firmly in the frame. Dr Rylance's view, based upon the premise that no bruising was seen before 1 am, was that 'it was more likely than not that the trauma causing the bruising occurred in the previous 6 to 7 hours and probably within 4 hours'. On both parents' accounts there is common ground that no bruises were seen on K's abdomen, groin area or on his penis before 1 am. There is further common ground that there was no evidence of any screaming, or crying or thumping noises when K was first put to bed by JU or at 9pm when he was checked by JU. There is, therefore, no evidence to undermine Dr Rylance's premise, and, in the light of his evidence, it follows that that the time frame for causation of the injuries, on the balance of probabilities, falls within a window of between about 9pm and 1 pm. On this timing it is plainly arguable the only parent with the opportunity to inflict these injuries was JU whilst the mother and maternal grandmother were away for an hour at Tesco.
78. However, the court must always proceed with great caution where the ageing of bruises by appearance is involved as it is recognised to be an inexact science. With those words of caution in mind, JU argues for an alternative scenario based upon Dr Rylance's wider causation time frame of less than 72 hours from when K was seen by Dr Khalid. He points to the fact it is common ground, on both parents' accounts, that K complained to JU of 'hurting down below' when he was first put to bed and at 9pm. He submits that this points to the injuries having been caused before K was put to bed and that it was the mother who had the opportunity to inflict the injuries when she was alone with the two children during the majority of the afternoon.
79. This scenario , however, has to be viewed against the backdrop of the troubling features in the father's personality and the manifest difficulties in his relationship with K, which I have identified above, and which, in my judgment, are highly relevant to the balance of probabilities, which I must carry out in resolving the contrasting scenarios.
80. Whilst expressing all due caution when ageing bruises, Dr Rylance, nevertheless, when, applying a carefully calibrated balance of probability, was able to reach a reasoned conclusion, on the particular facts of this case, that the balance came down in favour of a causation window from 9am to 1 am. On the totality of evidence I accept the expert opinion of Dr Rylance as to the refined timing of the injuries and find, on a balance of probabilities, that the injuries were inflicted within a causation window of between 9 pm and 1 am. The only inference I can draw from this timing is that JU was the perpetrator.
81. However, the matters to be placed in the balance of probabilities do not simply depend on the issue of timing. On a number of occasions over a period of time to different people, both familiar and strangers, K has consistently identified JU as responsible for his injuries. He first told his mother at 1am in the bedroom when the injuries were first discovered. He said that 'J hurt it.' Both parents alleged that he was referring to JU hurting him when JU lifting up his penis to examine it but he didn't say 'J hurt me' but 'J hurt it'. He told his grandmother in the car when she asked him 'You've hurt yourself?' and he said 'It's my willy. J did it' and then made the telling 'punching' action towards his genital area. In the light of this gesture, there could have been no room for doubt as to K's meaning when he said 'John did it.' He repeated this to his mother which he again accompanied with a clenched fist gesture which she graphically replicated in court, which was a sharp downwards thrust towards his genitals. He thereafter repeated this to health professionals, social workers, the police and in his ABE interview.
82. Faced with this compelling evidence JU struggled to account for K's consistent identification of him as the perpetrator. The suggestion was made that perhaps, unwittingly and without realising the significance, the maternal grandmother used JU's name in the context of K's willy being hurt and thus planted JU's name in his mind so that it became such a fixed idea that he was thereafter able to repeat it consistently, notwithstanding that he is only three years of age. This suggestion, however was not only highly speculative but also flew in the face of the maternal grandmother's clear evidence that she had said nothing of the kind and that K's naming of J was entirely spontaneous. Nor does it begin to explain the compelling clenched fist 'punch' action. Although the suggestion had been floated in cross examination that the maternal grandmother may have had an opportunity to 'coach' K with words and gesture in the fleeting seconds whilst his mother was putting £5 of petrol in her car, this was, rightly, not pursued on behalf of the father. Such a suggestion was fanciful, far-fetched and wholly implausible. I unhesitatingly accept the maternal grandmother's account as she was transparently a truthful witness. l am fully satisfied, on all the evidence, that the identification of JU as the person responsible for hurting his willy came from K and no-one else.
83. Whilst considering very carefully the weight to be given to the evidence of such a young child and cautioning myself as to the risk of unreliability, nevertheless I found this evidence to be wholly convincing, compelling and, in my judgment, determinative of the identity of the perpetrator.
84. On the overwhelming evidence, I am, therefore, satisfied, on a balance of probabilities, that JU was the perpetrator of the grievous injuries inflicted upon K.
85. It follows that the mother is exonerated from any taint of a finding that she was involved in causing his injuries.
86. The balance of the findings sought to support the threshold was conceded. However, in the light of the compelling text evidence I further find, on a balance of probability, that K suffered significant emotional harm as a result of the fractured dynamics within his family and the loud, aggressive and immature behaviour on the part of JU and that this also presents a likelihood of significant emotional harm in relation to L.

Welfare Evaluation

87. In carrying out the welfare evaluation, the court's paramount consideration is the welfare of K and L and in determining where their best interests lie the court has to have regard to the welfare checklist in the Children Act 1989.
88. It is always 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.
89. The starting point is Article 8 of the European Convention, the right to respect for private and family life, the overarching principle being:

"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."

See: Re C and B [2001] 1 FLR 611 [34], per Hale LJ (as she then was).

90. '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.
91. Lord Neuberger in Re B (above) emphasised that, 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.
92. Furthermore, the court should adopt the least interventionist approach: Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760.
93. Applying the welfare checklist, K and L are not of an age or understanding for their wishes and feelings to be a determinative factor but I take into account that, were they old enough to express a view, they would no doubt say that they wish to be brought by their birth family.
94. 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 potential as individuals. The MGPS have been positively assessed as carers for the children and have undergone a positive Schedule 21 assessment as special guardians.
95. K has suffered significant physical and emotional harm, whilst in the care of his mother and stepfather. There remains the potent risk of further harm were either child returned to the mother's or JU's care. The crucial factor is whether the parents may develop their understanding of their shortcomings so as to guarantee for the children's future physical and emotional safety. Very sadly I have to conclude that they cannot do so within the welfare timescales of the children. This has been bravely accepted by both parents. In the case of the mother I do find that she has now stepped onto the road of insight but, sadly, the journey ahead is still a long one.
96. Whenever possible consistent with their welfare needs the children deserve the incalculable advantage of an upbringing within her natural family. In the light of the positive assessments of the MGPs, who have demonstrated their clear capacity for caring for their grandchildren, these children will have that advantage.
97. In carrying out a global holistic evaluation of the placement options (see: In the matter of W (A Child) [2013] EWCA Civ 1227), I am fully satisfied that special guardianship orders in favour of the MGPs are the best placement option for K and L. A special guardianship order will enable the MGPs to exercise parental responsibility for the children exclusively, whilst at the same time the parents will not lose their parental responsibility and will have the opportunity to maintain relationships with their children through the careful plans for supervised contact as set out in the Revised Supervision Plans. I am satisfied that these orders are both necessary and proportionate and that no other orders will serve the welfare interests of the children as well.

Conclusion

98. I will formally make the special guardianship orders in favour of the MGPs supported by supervision orders for a period of twelve months at the hearing on 1 August 2014.