England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
SITTING AT NEWCASTLE-UPON-TYNE

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF: D (A CHILD)

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		25th August 2015

JUDGMENT

HIS HONOUR JUDGE SIMON WOOD:

Introduction

1. The court is concerned with the welfare of D, a girl born on 20^th December 2013 and therefore now 20 months old. She is the only child of M, her mother, and the second child of F, her father, a couple who present as separated. Their relationship status has been a significant issue throughout the litigation. Sunderland City Council, which issued an application for a care order on 13^th February this year, now seeks a child arrangements order in favour of D's maternal grandparents, MGM and MGF, to be underpinned by a supervision order for six months, D having de facto lived with them since July 2014 in circumstances I will outline.
2. Those orders are not opposed by either parent, albeit each seeks contact. M's is straightforward, F's less so as he has not had any now for over a year. The care plan is also supported by D's children's guardian, Maggie Singer, albeit there are issues around the management for F and the paternal family's contact.
3. In the face of such agreement, why has a hearing with evidence been necessary at all? The answer to that question is the same as the answer to the threshold question which the Local Authority seeks to put before the court seeking to prove why it is that D has, in the care of her parents, suffered significant harm and that harm is because D did not receive the care that would reasonably be expected from her parents or one of them.

Background

4. M was born in 1993. She is not yet 22. F was born in 1983. He is now 32. It was M's first serious relationship. They met at their mutual workplace in the autumn of 2012. Within a couple of months he had moved into M's flat and by March 2013 she had conceived D. The parents disagree about a great deal. M says it was an unplanned pregnancy, F says the reverse. Be that as it may, D was born in December and nothing of note happened until 6^th March 2014 when, at a routine appointment, D was seen by the health visitor who discovered four separate areas of bruising to her torso for which her mother could provide no explanation.
5. She was taken to hospital where a skeletal survey later revealed three healing anterior rib fractures and a healing mid clavicle fracture. On those fractures being found, child protection measures were taken but F then revealed what he said had been an accident at home about three weeks before. M said that she immediately separated from F who was arrested by the police and later pleaded guilty to an offence contrary to section 1(1) of the Children and Young Person's Act 1933 on the basis of neglect or causing unnecessary suffering in that having had an accident, he did not disclose the fact of that accident to anyone, M or the medical authorities, and, more importantly, did not seek treatment for D.
6. Meanwhile D went into foster care because the injuries occurred within the timeframe when MGPs, who have otherwise been wholly positively assessed, had care of her. In the light of F's acceptance of responsibility for the more serious injuries and anticipated guilty plea, and accepting at face value parental separation, in July 2014 D was reunited with her mother, albeit M continued to live with her parents, MGPs, where D has remained to date. Rightly or, as it now accepts, wrongly the Local Authority accepted that the risk to D had passed. It accepted M's assurance that the relationship with F was over and that contact with F would not be promoted and in the circumstances the case was effectively closed without further investigation.
7. The concerns are twofold. From as early as 1^st August 2014 the Local Authority started to receive information, albeit anonymously, that M and F remained in a relationship, a claim admitted by F but steadfastly denied by M to this day. Despite the denial of any deliberate contact with F, confronted in July 2015 with some 2,000 pages of transcribed electronic communications between the two of them, M admitted that she had, in fact, maintained contact with F but did so, she says, because she was controlled by him and felt unable to escape so she humoured him by remaining in touch in this way, albeit completely denies having met with him other than by chance.
8. Secondly, F was already known to the Local Authority in alarmingly similar circumstances. On 10^th September 2004 his then partner gave birth to G who, on 2^nd December of that year, aged not yet 3 months, was found to have three separate areas of bruising and, on investigation, metaphyseal fractures of both distal tibiae. In the care proceedings that followed, G's parents accepted that neither of them could be excluded as a perpetrator of the injuries as G's primary carers. The outcome was a special guardianship order to G's paternal grandmother, PGM, and G has lived with her ever since. A matter of controversy within these proceedings is just how much D's mother and the maternal family generally knew of the reasons why G did not live with either of her parents.
9. Be that as it may, by mid February 2015 the Local Authority had taken the decision to issue proceedings and the case was managed by a composite hearing and by the time that M filed her final evidence on 31^st July, she accepted that her dishonesty had made it very difficult to maintain a case that she could keep D safe and so she effectively agreed with the care plan. At the issues resolution hearing it was suggested that in the circumstances an argument might be advanced that it was not proportionate to try out the issue of who caused D's injuries or how. In the event, no such argument has been advanced and I took the view that, if at all possible, findings needed to be made in respect of two still young parents, in M's case very young, to inform any future litigation concerning D, G and, indeed, any other child that either parent might have, particularly as the litigation regarding G had not resulted in a finding against any individual, only that F was in a pool of perpetrators and could not be excluded.

The threshold facts alleged

10. In addition to the injuries, the Local Authority invites findings about other matters so the threshold document contains some additional matters. Just referring then to it in summary form, paragraphs 1 through to 8 are all concerned with the two sets of injuries to D because it is common ground that they occurred on different occasions, the fractures and the bruising, the parental response, the failure to protect and so on and invite findings as to who is the perpetrator. Paragraph 9 relates to F's conviction that I have referred to, which is accepted. Paragraph 10 asserts that F has convictions for violence, which he also accepts. Paragraphs 11 and 12 are directly concerned with G: first of all the fact of the previous children's services involvement and, secondly, the failure to inform not just the maternal family, as I have already mentioned, but health professionals in the course of the birth arrangements for D. Paragraph 13 complains that M had failed to act in an open and honest way in respect of her relationship with F, a reference to the continued contact that I have referred to which she accepts, as does F who also asserts that there was direct contact as well and paragraph 14 asserts that M failed to protect D from F in that she permitted ongoing contact, direct or indirect, after the time that the injuries were sustained. Other than photographs being sent, M denies that and, indeed, F denies that there was any face-to-face contact with D.

The course of the hearing

11. A vast amount of evidence has been prepared. Much has been read. A very limited amount was given orally and subject to cross-examination. Thus, I say at the outset, it was not necessary to hear directly from any of the witnesses such as the health visitor, the treating doctors or the experts whom the court permitted, in accordance with the Family Proceedings Rules Part 25, to give evidence on the basis that their evidence was necessary. They are a consultant paediatrician as well as a consultant paediatric radiologist. Nor was I required to read 2,000 pages or so of electronic communications. I was given a modest representative selection which excluded the media that was, from time to time, attached to the messages which it is accepted included intimate pictures of a sexual nature predominantly taken by M of herself and sent to F, some of which subsequently found its way on to the internet.
12. I heard from the senior social worker who has had oversight of the case since March 2015, albeit she had not conducted any of the several assessments that have been prepared. Her evidence was primarily directed at practical issues regarding contact in respect of which there is something quite close to agreement but the key witnesses were M and F and my assessment of them is central to this judgment.
13. M gave evidence for over half a day and F for a similar period. The MGPs have been present throughout the hearings and represented throughout. Ultimately they were not required to give evidence. They have had to sit through what I have no doubt has been some very painful evidence indeed, universally acknowledged to have been entirely appropriate throughout, creating no issues, there is complete confidence in their ability to manage D's care in a way that will fully meet her needs and give her the best chance to grow up emotionally secure as a young girl, adolescent, young woman and thereby achieving whatever potential she might have.
14. PGM was called to give evidence by F and gave evidence relevant to two issues, namely the circumstances in which F made the disclosure of the accident he said he had suffered and how much the maternal family knew of the circumstances surrounding G. The guardian gave evidence primarily with regard to contact which was informed by what she felt were high levels of animosity between the maternal and paternal sides of the family as well as what she characterised as F's particular lack of empathy towards M which she found very concerning.

The law

15. This has, therefore, primarily been a fact finding exercise. The law is set out in well known authorities beginning with Re H and R (Child Sexual Abuse; Standard of Proof) [1996] 1 FLR 80 and most recently with Re B (Children) (Care Proceedings; Standard of Proof) [2008] UKHL 35. It is not necessary to set out the law at any length. There is no need for me to do so. I need set out only so much as is necessary to indicate the standards by which I have to assess the evidence and, equally importantly, as will enable the parents to understand the legal principles by which they are being judged. I am entitled to and, indeed, must have regard to all the evidence before me when coming to conclusions on matters of fact, Re U (Serious Injury; Standard of Proof). The standard of proof was classically defined by Lord Nicholls in Re H and R as:

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not."

16. That was reviewed by the House of Lords in Re B when it disapproved what had become the familiar formula the more serious the allegation the more cogent the evidence needed to prove it on the basis that whilst inherent probabilities are something to be taken into account, there is no logical connection between seriousness and probability. Lord Hoffmann said:

"If a legal rule requires a fact to be proved (a 'fact in issue') a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened."

It is not in issue here that the burden rests on the Local Authority.

17. Another factor to mention at this stage is that we have here potentially two perpetrators and when seeking to identify the perpetrators of non-accidental injuries, the test of whether a person is in the pool of possible perpetrators is whether there is a likelihood or real possibility that he or she was the perpetrator, North Yorkshire County Council v SA & Ors [2003] EWCA Civ 839, and so in order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities as well and the higher courts have also said this: it is always desirable where possible for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, but where it is impossible for a judge to find on the balance of probabilities that, for example, parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so.
18. This is a case where the court has received unchallenged medical evidence. I emphasise, we do not have trial by doctor. The facts are for the court. The medical evidence informs the court's decision but conscious of the need to consider it in the context of the evidence as a whole and to recognise that doctors do not have the answer to all questions, some injuries may nevertheless remain unexplained even if there is a possible medical explanation but the court cannot reconcile it with the other evidence it has heard. As I have said, in this case there is no real medical controversy. The real issue is whether what F has identified as an explanation for the fractures, and the medical experts acknowledge it is a possible mechanical explanation, is in fact a truthful explanation.
19. Acutely conscious that M admits telling many lies, it is possible that both she and F may have told the court other lies. Lies do not by themselves denote guilt. That was spelt out very clearly in the criminal case of R v. Lucas. What the court is obliged to consider are the reasons for the lying. They may be due to reasons of embarrassment, shame, thinking it necessary to bolster an innocent but truthful explanation to make it more believable. Only if the court is satisfied that the explanation is not just untrue but told to conceal the true circumstances that the court can then find that it can rely on the fact of lies as evidence capable of supporting guilt and that with which the person is charged.
20. In summarising the law, I just want to conclude with this. There is, of course, no burden on the parents to prove anything. Although each gave evidence in their own right, they did not thereby assume any burden. That said, their evidence becomes part of the evidence in the case and, as such, it falls to be taken into account in accordance with the principles that I have mentioned from Re U already.

The capacity of father

21. Before turning to the evidence, there is something else I need to say in relation to this father. A concern arose, not just as to his capacity to litigate but also there were other factors that may restrict his capacity to conduct litigation and participate in this hearing. In short, from a young age it was clear that he was a vulnerable individual subject to bullying and at about the age of 22 appears to have been given a diagnosis of Asperger's syndrome. To his credit, he has largely worked since leaving school but he has plainly suffered difficulties which he attributes to that condition. He had some support following the diagnosis, albeit he denies that he has had much help.
22. He struggles to explain how it affects him but volunteered some impulsivity, an inability to remember what he has read or, indeed, people that he has met before. He complained of a poor memory to Dr Thorpe, a psychiatrist that the court directed should report, and something that he repeated to me and, indeed, his mother in her evidence confirmed. She added that he had no concept of time and also, apparently, no friends. She said he did not know how to have a normal conversation and some obsessive tendencies were reported in relation to regimes.
23. Dr Thorpe appears to have accepted the diagnosis, confirmed that it did not affect his capacity to litigate but advised that the use of simpler language and regular breaks would assist him in giving his evidence. Her suggestion that consideration be given to the appointment of an intermediary was not ultimately pursued on his behalf. The doctor confirmed that the diagnosis did not impact on F's ability to appreciate the issues or, indeed, the need to resolve them.

The social work evidence

24. The social work evidence adds very little to the fact finding exercise. Once the extent of parental contact became known, Melanie Wallace, the team leader or senior social worker, visited M and discussed it in what I am sure were difficult circumstances as she described. It resulted in the disclosure by M that F had been violent on an occasion but of perhaps greater concern to her was what she described as the controlling nature of the very many messages that he had sent to a very young, vulnerable woman in her first serious relationship. Even though M was clear to Mrs Wallace that the relationship was, indeed, now over, she felt that M would benefit from some focused work from, for example, Wearside Women in Need, a charity which provides work to women who have been in abusive relationships. Although she referred M to that organisation, M declined the help that was subsequently offered. It was a concern to her that M had not only lied but done so for so long, and so convincingly in the face of mounting evidence.
25. At the same time, F was maintaining that contact was taking place and he was ultimately vindicated but only when M was confronted with a scale of communication which could no longer be dismissed, as she had attempted to dismiss it, as having been created fraudulently. There was very little clarity, she found, around who knew what and when and, as I will explain, looking at the parents' evidence as to what, for example, M and her family knew about why G was not in the care of either her parents. Mrs Wallace acknowledged that the Local Authority had not handled this whole situation appropriately or followed up the concerns that undoubtedly existed as are quite apparent from the threshold that was agreed as the basis for the order in relation to G, most particularly that both F and G's mother acknowledged that they were the primary carers and could not be excluded as perpetrators in a relationship which was also one characterised by domestic abuse.
26. Whilst the Local Authority's assessment of M was that she could provide good enough practical care and had good attachment to D, the outstanding issue for it remained her honesty and whether she could protect D. Immature in her decision making, Mrs Wallace said that in terms of practical care M was, in fact, quite mature. She very much hoped that M would review the decision she had taken with regard to Wearside Women in Need. Despite the concerns regarding control, whilst at many times M offered F many excuses, equally many times she responded to his messages in a quite inappropriate way providing him with inappropriate photographs and, indeed, providing him with many pictures of D.
27. She regretted that M's very late disclosure had prevented the Local Authority being able to intervene earlier. She praised the support of MPGs come what may and she identified a future for M where with work she can become stronger and less vulnerable. Mrs Wallace acknowledged that she had not had a chance to discuss the recent disclosures with F who had said that the relationship had been quite destructive with highs, lows and many arguments but she felt that F had been threatening, as was evident from the electronic communications, pointing to many instances where he had said, "If you don't", for example, "ring me I'll do…" and then he made a threat.

The medical evidence

28. The other evidence to mention before that of the parents is the medical evidence. The doctors, of course, had the advantage of seeing what the parents had said to the hospital and the police but did not hear it given orally or see it tested but based on what they had been provided from the accounts to the police and the hospital, they were able to reach these views. The combined views of Dr Morrell, the consultant paediatrician, and Dr Sprigg in respect of the fractures was that they were likely to be due to a single event which pre-dated the acute presentation with bruising by several weeks. The event that had caused the fractures would have been immediately apparent to the carer in that they would have recognised that D had been caused significant pain even if it was not appreciated that any bones had been broken. The force described to cause the broken bones is said to have been excessive. The X-rays suggested that the fractures had occurred three to six weeks before. There was likely to have been a single event to the left side of the chest due to a single application of excessive force to the left upper chest, direct impact to the front and side, or squeezing and gripping around the left shoulder.
29. F's explanation, to which I will come, was said to be an exceptionally unusual one but it was nevertheless possible by mechanism, assuming that the dates correlated and it was said that it would have been evident to the person with D at the time that she had been hurt and was in pain, but that initial pain would have settled and it may thereafter have been difficult to understand that D had, in fact, suffered fractures, albeit there may have been some tenderness on her being picked up. Even that might not have been obvious to a carer, certainly not what the cause of the tenderness was.
30. The bruising was likely caused by some form of traumatic injury. The likely cause was of the abdomen being squeezed with the fingers such that the skin was pinched between fingers and fingernails. Dr Morrell would have expected D to cry in pain at the time the injury was caused. That initial pain would last for a few minutes and then settle and would be followed by the development of bruising. I think that is all I need to say about the medical evidence at this stage.

The evidence of the parents

31. I turn to the parents. I do not propose to repeat their evidence. The broad thrust of it can shortly be summarised but it is my assessment of their reliability that matters and that will involve looking at certain discrete areas within it.
32. M's overall account is of a relationship within a couple of months, moved to one of cohabiting but long before D was born there were already difficulties, arguments she said mainly due to F's jealousy and, for example, the police were called out on 21^st March 2013 recording that F had accused M of having an affair, quite apart from M's complaint of jealousy that had led to argument. A consequence of this type of argument was that from time to time F would say that he was not the father of the unborn baby. He later accepted M's allegation that on one such occasion he removed all the clothes that he had purchased for the unborn baby and threw them in the bin.
33. In addition to arguments, M told the court something that she had never committed to writing, namely that F had on one occasion used violence when she was pregnant, something that she had only told the social worker in the same conversation about the many electronic communications. Once D was born her account, supported by F, was of her being very much her primary carer. Of F she said:

"He was never really there for her, he was at work most of the time and when he came in D would be ready for bed."

That was said despite the fact that F only worked a three hour day. It seems on his evidence, not contradicted by M, that he did not get up in the morning until M was up and out with D and, thus, M conceded that he had very limited involvement with D which she characterised as making a few bottles, changing nappies but not, for example, dealing with night feeds.

34. The consequence of this was that M said that the opportunity for F to hurt D was very limited indeed: the evening of the fall alleged by F when M says she was in the bath, a couple of occasions when he pushed D round the block, but despite that she denied that she could have caused the bruising and she could not explain either how F might have had the opportunity to cause it. I will come back to that but the other important areas of her evidence related to what she knew about F's daughter, G, and what she said about her continued contact with F after D was returned to her care.
35. Of G, she said that she knew that G was cared for by PGM and she believed, from what F had told her, namely that he and G's mother were young parents and thus had been found too young to care for her. She said it was only after D was injured and she learned that G had also been injured that she discovered something approaching the truth.
36. Of her continued contact with F after D's injuries, her explanation was not altogether easy to follow. She admitted that her consistent and repeated denial of any contact had been a lie which was only admitted when confronted with all the messages. A previously shown representative selection had been dismissed by her as a fabrication by him but she went on when she made the admission to say that she could not get out of the cycle of communication with him because he would not let her by his constant texting to her. She said she was scared of him and what he might do and asked what she meant, she said, "Cause more trouble to get D away from me and my family". She denied absolutely meeting him other than by chance in public places, certainly not by arrangement, and she specifically denied any continuation of an intimate relationship.
37. The anonymous disclosures that I have previously mentioned that had reached the Local Authority from the police she said were malicious from a former friend: she had never, ever taken D to meet F as one of those messages suggested. She did say that she had looked into obtaining a non-molestation order on advice but ultimately did not pursue it and she confirmed that she had, in fact, stopped the police sending a PIN, a notification to F, warning him despite he having by then intimate photographs of her in his possession.
38. Despite all of this, she said that she decided a few months ago that she, as she put it, no longer liked him and so she had moved on to concentrate on D and D's future. Notwithstanding the Local Authority concern about her vulnerability and what it considered was the control exercised by F on her, she rejected the notion that she needed any help from Wearside Women in Need or, indeed, anyone else saying to me, "I'm all right on my own".
39. Whilst F confirmed the circumstances of the meeting with M, there was much that he did not agree with. So I have mentioned the question of whether the pregnancy was planned and he said if it was not planned it certainly followed a conversation about starting a family. He insisted that he had told M, not initially but certainly before the pregnancy, that G had, in fact, been injured and whilst he had not done it himself, it had not been possible for him to be ruled out. He told me that he had warned M that if they had a baby the Local Authority could become involved. He said this:

"M seemed to be all right about it. She didn't question it straight away. I promised I wasn't the one that had done it and she was reassured."

40. He confirmed that it was a difficult relationship and that they argued but he denied being controlling in any way at all. Whilst he accepted he had pushed her on to the bed once, he denied any violence. He said it was she who said to him that he was not the father of the unborn baby, hence he had thrown the clothes in the bin because, "She made me feel hurt. I think she was trying to hurt us". From a very early stage he had told the Local Authority that they were in touch after D was removed from their care: it had started as one or two texts and it escalated with multiple messages, exchanges of photographs and until October 2014 she would visit him, typically, after she had had a night out nearly every weekend and they resumed their relationship in full. He said that came to an end because M met somebody else and it stopped in mid October, since when he said that they had not met again.
41. He denied repeatedly that he had been controlling and of the messages that passed between them he said this:

"At the beginning I thought she was being insincere and didn't believe her. I loved her. It changed when she met [a new partner]. It continued in text communication but she gave us mixed messages all the time. One minute she would be nice, then next absolutely horrible and nasty and it came to the point where she was asking us for money and I felt like stopping her and I asked her, I didn't have the courage to stop because of my feelings for her."

He confirmed much of what M said about the involvement that he had had with D, albeit he denied her assertion that, by implication at any rate, he was not very interested in her. He made it clear, however, that he had loved M very much indeed.

Discussion

42. So I need to turn to the key issues against this background. Despite the bruising being the precipitating event, the starting point has to be the fractures. That is simply because there is an explanation put forward with a potentially relevant event described and because, so far as the bruising is concerned, there is nothing whatsoever offered by way of explanation. It is common ground that whilst the description of F's fall, as I will come to, was not offered to anyone, including M if she is to be believed, until after the fractures were identified. It is common ground that on an evening about three weeks before the X-ray D was, indeed, very upset and distressed in a way that was quite out of the ordinary for a baby whom, it is also agreed, was an easy baby and not given to excessive crying.
43. M denies any first-hand knowledge of its cause, because her evidence to me was that she had left D with F, then aged about 8 weeks, asleep on the sofa surrounded by cushions placed to counteract the highly unlikely event of D rolling off the sofa given her early developmental stage. Mother said she had gone to have a bath and to dye her hair, only to be interrupted by her hearing D, "Crying, really distressed", so she got out of the bath and took D from F, pacing about to pacify her which she eventually did without seemingly any adverse consequences, D being fine the next day and thereafter.
44. For his part, F described coming in from work, finding M already in the bath and D on the sofa. He had picked her up and taken her into the kitchen in order to get himself a drink of juice. Holding D in his left hand against his chest and with the glass full of drink in his right hand, on his return to the sitting room he stubbed his foot on a raised threshold between the two adjoining rooms and stumbled forwards. He said that, as he did so, he threw the glass backwards and, thus, freeing up his right hand took D in both hands and fell forwards on to the sofa which was positioned at an angle to his right as he entered the living room. He hit his arm off the sofa, he let go of D in the process and hoping that she might remain on the sofa, she unfortunately fell to the laminate floor beneath, as he had, injuring his left arm in the process.
45. He said that D screamed. He attributed that to shock. Within five minutes M had got out of the bath and taken over. He said that he had had D in his arms but had been wholly unable to settle her. He said he had never heard her cry like that before. He told me that he did not tell M what had happened. He said, "She had a habit of kicking me out and I didn't want to cause any argument". Thus, he said, this account was kept to himself until it was relayed at the hospital on the X-ray being revealed.
46. Needless to say, this account was explored in some detail. Mother did not shrink from saying that it was her belief that F had, in fact, "Shook her or something", something that she had held to, she said, since the fractures were diagnosed. The problem with that alleged belief is that: first, she agreed she had never said it before she was cross-examined by Miss Webster on behalf of the Local Authority at this hearing; secondly, despite giving a five page statement to the police on 6^th May 2014 she had said no such thing despite expressing her relief that F was out of her life; thirdly, despite giving a detailed 42 paragraph statement in these proceedings on 26^th March 2015 in which she had again sought to distance herself from F, she had said nothing about any belief that he deliberately injured her and; fourthly, although to be considered separately, this assertion that she believed he had done it deliberately from the time that the fracture was diagnosed was against a background of her maintaining what appears to have been an intense relationship with F for long after the event.
47. Unfortunately, that omission is not the only apparent contradiction. There were many both internally in M's accounts and externally as between M and F. Thus, first to the police, very much closer to the event, she said that all three of them had been in the house when she had taken the bath, she had received help from F with dyeing her hair, she had been in the bath for between 30 and 60 minutes, an account that she repeated in her statement, adding that F had been sitting with D ensuring that D was safe. F's account was quite different. It was one of coming back to the house from work, finding M already in the bath and D on the sofa, just left there and he denied any involvement in the hair dyeing process.
48. Secondly, to the police M said that having got out of the bath it took her around 90 minutes to settle D, something that she now says was wrong and it was, in fact, closer to 30 minutes, albeit she did maintain that D was hysterical. When M was assessed by the Local Authority for its parenting assessment, the social worker recorded her reporting that she had paced with D for several hours, thus the duration of the period of upset was again emphasised. It seems to the court that there are significant discrepancies as to the circumstances preceding this incident as well as the extent of its aftermath.
49. One then turns to the description of the incident itself where similar issues arise. First, there is the inherently unusual nature of what F says he did: picking up a baby who on his account had just started spontaneously "twisting", taking it into the kitchen and then attempting with one hand to take the steps necessary to mix a drink of squash one-handed. Next, despite having told me that he came in to find D twisting on the sofa, kicking his shoes off and attending to her, it was clear that if what he said to the police was correct he had been in the house for longer than he implied because he had had time to go and change out of his work clothes into casual gear.
50. Then there are curious discrepancies as to whether F tripped on all of his left toes, as he said to the police and in his witness statement, or on his right big toe about which he was insistent to the court, as well as the failure to report any time before his statement on 3^rd August of this year that he had injured his left arm in a way that troubles him to this very day but in respect of which he has sought no treatment.
51. There is then Dr Morrell's observation that with D in his left hand and the sofa to his right as he went through the door, it is difficult to see how D fell from his left arm on to the sofa as opposed to the floor but even if that was correct, it was difficult to understand how there would "be sufficient velocity and therefore force to cause three rib fractures and a fracture to the clavicle" because what was missing from the description was any compressive force to the chest. That, he identified, as the crucial issue in his addendum. It was absent from F's account to the police, albeit if F happened to fall on D it might explain it, as might F's even later explanation of squeezing D tighter as he fell. F denied that that was a later embellishment to fit the medical evidence.
52. It can also be argued that having said, as he did in his witness statement, that he fell on to the left side of the couch contrasts with difficulty with telling the police that he ended up lying on the couch with D, emphasising to them that he did not land on D herself, because had he done so there would have been more damage. There is the issue of the glass of orange. He said it was still half full, he had taken a drink before leaving the kitchen, which F said he had the presence of mind as he fell forwards to throw backwards in such a way that his right arm became free all in time for him to grab D with that arm in an attempt to save her. That was again something not said to the police or in either of his witness statements. He said the glass did not break and as for the spilt orange, he said he was able to clean that up from the kitchen after the event, seemingly without M noticing.
53. It seems to the court from these various factors that each account has to be treated with caution. Indeed, in the light of other factors, it seems to the court that it can really only rely on what either of these parents say where there is other evidence that would tend to support the correctness of their assertions. The Local Authority, I remind myself, found M to be a very convincing liar indeed. That is obviously extremely concerning but it is, in the court's view having looked at the history, an accurate view as well because it is from M that the most spectacular dishonesty self evidently comes and one of the issues it creates is that it does so in a way that bolsters F's credibility. She does not argue against that in the face of not just anonymous referrals but F's consistent account of regular contact, she not only denied it but mounted a positive case of him having fabricated the evidence until the supporting evidence was produced in such a volume that made that stance preposterous.
54. One is left with the outstanding dispute about whether they met regularly and despite M's denial and her contention that she was just playing F along. I believe that they did. The level and intensity of the text communications and the self evident plans to meet are apparent, for example, looking at communications on the 9^th, 10^th, 11^th, 13^th, 18^th, 21^st and 25^th January as well as the 20^th, 21^st and 23^rd February. Whilst it is true that at times, as before, they argue, the texts only make sense in many instances if they were, in fact, meeting. F has, for his part, been able to produce a list of dates of some of the meetings which show that it was happening as early as 25^th May 2014 and those dates have some context in terms of when and where. M is either unable or unwilling to respond or contradict those dates.
55. One is therefore left with what, to the court, seems to have been a relationship that was mutually dependent as well as being destructive and unhealthy, confirming the court's view that this young mother in her first serious relationship was emotionally extremely immature and this older father was completely smitten by her. That immaturity is still apparent, not least in M's point blank refusal to consider accessing help to assist her in avoiding another relationship like this in the future, all the more surprising in the light of the events disclosed by those communications. Equally apparent to the court was F's continued devotion to M and, in his denial that he was controlling, which I have to say was evident throughout the texts that I have read, demanding responses or else, seeking to know the smallest details about her life as well as prying in a prurient way about other men she may have been seeing, all leading the court to the conclusion that each of these parents in their own way have demonstrated a significant lack of insight into how unhealthy their relationship has been, not just for them but for D.
56. The Local Authority has additionally been very concerned that M permitted illicit contact between D and her father. There is no direct evidence of face-to-face contact, albeit that many photographs seem to have been sent and it is clear that if there was any face-to-face contact, it must have occurred in the window of July 2014 when D was returned to her mother and October 2014 when the Local Authority imposed a requirement of supervised contact to M on MGPs, which nobody suggests has not been complied with. I have to say that I am inclined to accept F's account that they did not include D in this contact, not least because what he has tended to describe is late night meetings with M, particularly or often after she had had a night out when I have no doubt that MGM would have known if D was not safely in bed at home.
57. All that said, I am not convinced that F is more generally reliable. An area of very particular concern relates to what he said to M about G. I do not accept his evidence that he told M that G had been injured at all. I think he sought to minimise that, perhaps understandably, in order to maintain his standing in M's eyes. The most compelling evidence independent of him that causes me to reject his account is, in fact, that of his mother who plainly, like him, does not believe that he was responsible for the injury to G at all. I found her evidence extremely troubling. Knowing of F's difficulties, knowing that she was entrusted with G's care under a special guardianship order because of the most serious findings that had been made in the agreed threshold, to have failed to have warned this very young mother, or her very much involved parents, was a most serious omission. To have so failed, despite her professed belief in her son's innocence, when she herself had taken precautions to ensure that G was never left alone with her father was inexplicable other than by a form of collusion with F himself to protect him and in so doing it seems to the court that she failed D in a most serious way.
58. However, turning to what F had to say about it, what he said he had explained to M, that simply cannot be reconciled with what he said to the police at the time. Interviewed on 10^th March and asked if M was aware of what had gone on with G, he said, "Well, she didn't find out until this Saturday". Asked again if she was aware about what had gone on: "She knows the basics but I haven't told her the full thing", so the police, emphasising for clarity that she was not aware of the full circumstances, he said, "No, and she doesn't need to either".
59. That is not consistent with what F has said and it is not inconsistent with what M has always said. In her witness statement on 6^th May last year to the police, she said this:

"I was aware that F had a daughter from a previous relationship and that his daughter lived and was cared for by F's mother. I was under the impression that the reason for F's mother caring for his child was due to the fact that F and his former partner were young parents when the child was born and F couldn't cope with her."

For all of those reasons, I am quite satisfied that M did not know and that neither F and, on her own account, PGM told her or her parents.

60. The Local Authority does not escape criticism in respect of this either, because it undoubtedly had the necessary knowledge. That is particularly so when, on reading the health visitor's recording on 1^st November 2011, F squarely placed the blame for the injury to G on G's mother. The follow up calls involving F and the social worker on 5^th November, PGM and the social worker on the 5^th and 6^th November, can only be interpreted as amounting to an assertion by the paternal family as a whole that F was not a concern. The Local Authority knew that not to be true, hence Mrs Wallace's embarrassment at the Local Authority's inaction but for present purposes it is evidence capable of supporting M's denial that she knew that G had been injured, let alone that F was in the pool of perpetrators.
61. Other areas affecting potentially credibility include M's very recent assertion of domestic violence. M told the social worker that he had been violent when she was pregnant and unfortunately the detail was not pursued because of the overall upset in that meeting which was about the recent discovery of all the electronic communications. M told me in evidence in chief that she had been caught with his hand on her chin which caused her reddening and not bruising. It was pointed out to her that in a text to F she had said in January that, "You pushed me so hard in my belly that day", and cross-examined by Miss Upton on behalf of F, she said she was hit in the stomach, pushed on the bed, albeit by the shoulders and it was once she got up that he caught her on the chin. Again, it was quite difficult to make sense of this. F, who had not previously been asked about this, agreed that in an argument he had pushed her on to the bed, he said by the chest, albeit pointed to his shoulders in doing so and he denied ever pushing her in the stomach.
62. Ultimately, despite M's late disclosure, it seems to the court that there plainly was an incident in which some force was used and the text complaint is perhaps the most spontaneous and reliable and it was not contradicted by F at the time when M was complaining he had pushed her "so hard". F, in his limited acceptance, now seems to be minimising it and there is no confidence that he is more likely to be right about it than M. On this issue, I think M is right and it is a good example of the guardian's concern about this father's lack of insight into his behaviour and his lack of empathy.
63. So where does this leave the evidence regarding the bruises? Both parents are unreliable, M serially and, for a long time, convincingly so. Why was she so dishonest? The only interpretation that the court can place on this despite what she was saying to the police at the time, "20 minutes later", this is after the police had come to her home, "F had gone from my home and out of my life. I don't regret this decision and now I just want to be by myself", something that she repeated to the Local Authority and her parents.
64. Despite that, it seems to the court she remained emotionally tied to F in a way that she was very anxious to conceal. Interpreting her behaviour on the day that D was injured and her descriptions thereafter, it seems to the court that she has not been a reliable witness and has sought after the initial flourish to minimise her role in it. Thus, the suggestion that D was left with F was, in the court's judgment, designed to conceal the fact that she had left D alone on the sofa and the shifting in the length of time it took D to settle also reflects minimisation of the seriousness of how upset D was.
65. The allegation of deliberate harm on F's part was only made at a time when it seemed clear that the relationship that she has with F probably is over. It is an allegation that has no evidential basis and was only made when, as I say, there was no residual relationship. It was not, strikingly, made to the police when she described how he was out of her life. He plainly was not but just standing back, it is frankly impossible to understand how such a significant incident could have occurred in the family home without M being aware of it, because one thing that the parents do agree is that both were in their flat at the time that it occurred. Whilst her being in the bath with her head under the water provides an explanation for missing momentary details, it does not explain how M seemingly accepted F's alleged explanation that she had just woken up like that. In shifting her account and with the status of the relationship with F, she has made it extraordinarily difficult to get to the truth of what occurred.
66. If F fell, as he suggests, that was an event that it seems to the court would have made the most almighty noise before D cried. The sound of a then 16½ stone man stumbling on a threshold on uncarpeted floors, a glass tumbler being thrown on to a hard kitchen floor, the crash of F falling to the floor and even D falling off the sofa would have been a commotion of a significant order in a one bedroomed flat, even if M's head was under the water for any part of it. Yet M describes none of that and in the court's view it is not credible that she would not have heard what had happened. In reducing the time it took to settle D from several hours she is minimising what occurred. The upset that D must have suffered as described by Dr Morrell must have been considerable and yet M did nothing thereafter other than, on her account, pacify D, not even consulting her mother, let alone seeking medical advice. That, in my judgment, ties in with my finding that she has not told the truth, the whole truth and nothing but the truth about what happened.
67. Can F's account be relied on? I should say that the fact that he remains in the pool of perpetrators for G's injury, despite his emphatic denials, is of limited value to the court given the conclusions of the Supreme Court in Re J (Children) [2013] UKSC 9 that the mere fact of being in a pool of perpetrators is not capable by itself of supporting a finding of likelihood of future harm in subsequent proceedings, so this factor is put to one side at this stage. It is the fact that his account is accepted as a possible mechanism but it does not follow that it was likely. There are numerous discrepancies as the account has changed and the very unusual nature of what he describes is highlighted by the experts in commenting on its improbability as a mechanism. Miss Upton points to the broad consistency and F's evident upset describing it, D was an easy baby and there is no evidence of a reason for loss of temper whether caused by D or anything else. There is, as has already been said, no evidential basis other than by implication for M's contention of a deliberate inflicted injury.
68. Having considered the evolution of the accounts, the improbability of M's evidence and the very complex relationship that continued to exist between these parents, the conclusion I have reached is that, even on the balance of probabilities, I cannot be satisfied that I have been given a truthful account by either parent. This father, it is true, has taken responsibility, at least from the time of the X-ray, and he has stuck to it but it was an account that he certainly had had time to consider and whether he was protecting M or minimising his own role, having been through identical proceedings before, there is an absence of consistency and credibility generally as well as a degree of embellishment, particularly now over the issue of compression, that prevents the court from concluding that it has been given a truthful explanation.
69. Thus, the court has reached the conclusion that it cannot strain to find what happened. It does not know other than that both parents were in this small flat and through their lies and M's extended deception they have prevented the court from establishing the truth of what happened to D other than that she suffered serious injury in the home, injury which went untreated and undisclosed to the medical authorities and only found by chance later.
70. Given that F has consistently said from the disclosure that it was him, it seems to the court it is more likely than not that he was the perpetrator but as to what the cause was the court cannot say, because absent a truthful explanation being given, the court is in no position to say whether it was accidental or something more serious. What the court can say is that it does not accept the account he eventually gave. Furthermore, M's failure to protect D then and subsequently, a concern heightened because if there had been an accident there was no reason not to seek help on her part at least, means that she too has caused D to suffer significant harm which has really continued by virtue of her conduct over the relationship with F.
71. That brings the court to the bruises for which there is no explanation. A suggested mechanism attributing it to her false nails was dismissed by the doctors and has not really been pursued. She is adamant she did not cause the bruising. It is pointed out that she did not seek to conceal D and that by taking D to the health visitor in the knowledge of the bruises, it would be a surprising thing for a perpetrator to do.
72. I bear in mind the improbability of there being two perpetrators within the same household but even to this day the evidence of M and F really afford the court no alternative because F's opportunity to injure D in this way was either non-existent or vanishingly small. The trips that he describes taking D to the shops or round the block did not seem to fit whether in terms of mechanism, D being in her pushchair or, indeed, opportunity. Although it was asserted by the Local Authority that there must have been other times when F was alone with her, each denies it. Unless M is protecting F even at this late stage, it is difficult to avoid the conclusion that M was responsible.
73. I have considered very carefully whether it could be attributable to a form of mishandling as Miss Upton postulated. The problem I have with that is that quite apart from a lack of explanation, looking at the photographs of the bruising and the sketch, it is difficult to imagine what such mishandling could have comprised and, secondly, Dr Morrell describes them as being caused by trauma where the skin has been pinched between two firm objects such that one would have expected to have caused D to cry out in pain. No account is given that would explain either what happened or how D reacted.
74. In the circumstances, I am therefore satisfied that this occurred in the overall care of M and F but most likely in the direct care of M for the reasons that I have given. It occurred on an occasion separate from the fractures. It is more likely than not to have occurred when D's skin was squeezed and it would have caused her pain such as would have caused her to cry out in pain. No disclosure of any sort has been made. The injury itself does not of itself bespeak a non-accidental injury but it is difficult to conclude that there has been an accident absent any explanation and so, on the balance of probabilities, it was an inflicted injury.
75. The outcome is, I accept, a distressing one for all concerned. That for F is perhaps less surprising than that for M. Not only has she brought a great deal of trouble on herself by her behaviour, I did find her presentation to be quite remarkable. From a good, supportive and respectable family she has not only practiced an extended deceit of a serious nature, she did so when I find that she knew that F had hurt D when the ribs were fractured, that she did not seek appropriate treatment and then carried on a relationship with him which was the complete antithesis of her protecting D.
76. Just how she could do so in the face of what he had done is explained in several ways: what the court has found she had done to D despite her otherwise good care, her undoubted emotional pull to F which is only partly explained by his very significant attempts to control her, her extreme emotional immaturity still in evidence today in denying the need for some help and her complete emotional flatness in describing extremely distressing events. Whilst F's emotions were very much more on view, I was struck by her complete lack of emotion in circumstances where the opposite would be expected.
77. The court finds her to be a very vulnerable young woman who needs continued support and education. Having permitted herself to be controlled to the extent that she was, it all points to someone who will enter a similar relationship in the future and I urge her to reflect on this and follow up the offer previously made by Wearside Women in Need. Likewise, I agree with the guardian that F's hostility towards M and her family, his lack of empathy for her, his lack of recognition of the domestic abuse that he has inflicted on her is such that he too needs work, ideally in the form of a perpetrator programme not specifically directed at violence, albeit I found that there was such an incident, but more of the controlling behaviour.
78. In each case the ability of the parents to be accepted on any kind of course to help them and to succeed in doing the work is dependent entirely on their acceptance of there being a problem. It is not yet clear that either is in that position despite F saying that he would be willing to do a perpetrator's programme. I should also note in that context that there is a history from the records of domestic abuse in previous relationships, so that which occurred with M cannot be said to be isolated.

Findings

79. So turning to the findings which the Local Authority asks the court to make in the threshold document, paragraphs 1 and 2 are accepted – that is to say all the injuries that were noted following the health visitor appointment on 6^th March and that the fractures occurred three to six weeks earlier. So far as paragraph 3 is concerned in relation to the fractures, they were caused by F but in the overall care of both parents. The court cannot rule out that they were caused deliberately. It would have been apparent to both parents that D was in significant pain because of her presentation over a significant period following whatever the episode was. Paragraph 4 is the fact that neither sought medical attention. At paragraph 5 I have found that the bruising was most likely caused by M and is non-accidental. Paragraph 6 is made out in that the parents have failed to provide explanations for the injuries which are consistent with the presentation of the injuries. Paragraph 7 is accepted that the injuries were caused in the overall care of both parents. At paragraph 8, a failure to reveal the perpetrator and thereby cause delay, neither has identified the true perpetrator in the court's judgment and, thus, significant delay has been occasioned. Paragraph 9, F's conviction is accepted. 10, his past convictions are accepted. 11, previous involvement with the Local Authority is accepted. Paragraph 12, the failure to inform health professionals and M and the maternal family of his previous involvement is proved as alleged.
80. MGPs did not give evidence, as I have indicated, and they sat through this hearing. I have no doubt it has been extremely distressing for them. Their complaint that they were not told the true circumstances of G being cared for by PGM is one that is wholly justified. I am satisfied that F and PGM have minimised this in a way that misled them and exposed D to the risk of harm. I have dealt with this in the course of dealing with F's evidence and, indeed, Mrs Spenceley in her submissions to me on their behalf gives other examples which would support such a finding. Furthermore, their dismay at their daughter's behaviour is fully understood. Just what they can do for her to protect her pending her decision to work with Wearside Women in Need or a similar organisation is difficult to identify but I know that they have very clearly in mind the need to prioritise the protection of D.
81. These matters feed into the care plan. I have no doubt that MGPs will protect D and that they will regulate M's contact in an appropriate way and that that will find its own level. This mother is still very young. She will mature as she grows up and so she does not automatically stand to be condemned for the rest of her life because of these events but there will have to be a period of reflection and acceptance before she can be considered to be a safe carer of a child. So far as F is concerned, the guardian's concerns were well placed. It will take time given the findings and the concerns regarding him and his mother for confidence and for relationships to be built to enable contact with the paternal family to be supervised by the maternal family in a way that is positive and a good experience for D.
82. In my judgment, the notion of early life story work with D and some initial introductions to reinforce that has considerable merit. Likewise, I consider that the Local Authority needs to supervise the initial contact which should be for F and D in the first instance and it needs to be set at a level suitable for D and consistent with the work and its duration that F needs to undertake, mindful of the fact that a perpetrator programme generally lasts for six months. This is not necessarily inconsistent with the care plan that suggests contact straight away and then in the week following to be followed up by a child-in-need meeting to review and consider the success of that contact. Whether thereafter it is fortnightly or monthly or two monthly, as the guardian suggests, I think that it is for that meeting to decide taking into account the concerns that have been raised by the guardian and the court and the guardian's emphasis, in particular, of securing durable contact for D.
83. That places a heavy responsibility on the Local Authority but it indicated very clearly to me, through Mrs Wallace, its intention to discharge that function and, frankly, that is a better plan than the court seeking to impose any kind of rigid straightjacket as to how contact should progress today. The reintroductions really need to take place and the position monitored thereafter. As to the point that the Local Authority drops out of supervision, that will be for the child-in-need meeting based on the progress that by then can be reported and, hence, it is not possible to be prescriptive about that either. Family group conferencing may have some value later. I am satisfied that, whilst there is merit in there being any short supervision order for six months to manage the transition, really these issues can all properly be managed thereafter as the supervision order progresses or under the child-in-need provisions on the Local Authority expressing a very clear commitment to such a course.
84. This has been a very distressing case for all. There are lessons to be learned for the Local Authority who accept that they were much too ready to accept F's account on his guilty plea. The delay that has occurred since these events has potentially been very harmful. It has certainly had a significant effect on the evidence. Whether it would have been any easier to make a finding had the matter been brought promptly is open to perhaps debate, not least because whether M's relationship with F would so easily have been exposed is, frankly, a moot point.
85. At the end of the day, D is fortunate to have a very good, secure, loving family home for which she in due course and, indeed, both parents now have cause to be extremely grateful. It goes without saying that the outcome could otherwise have been very different. It only remains for me to wish MGPs well in the huge task that they have so willingly taken on and I hope that the parents make it possible for D to enjoy a good, regular but safe relationship with them by their conduct hereafter.
86. As I indicated at the outset of this judgment, I will direct a transcript, the cost of which shall be shared equally by the parties. I would invite Miss Webster to prepare an order in the usual way.
[Discussion re order follows]