England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT BLANK

		11 December 2015

MR RECORDER JONATHAN FERRIS:

1. I am giving judgment today in relation to threshold and welfare issues. In relation to the fact finding on threshold, I am seeking in particular to determine causation, timing and if possible the perpetrator of injuries sustained by C a little boy now aged four years. The Mother is M and the Father is F. Mother's current partner is P. C has an elder brother D, now aged 5 years and a sister E now aged 6 years.
2. This was listed as the final hearing to decide threshold, welfare and a final decision about the children. The Care plan is based upon kinship care. Mother has a sister S the maternal aunt of the children. S and her husband T have been caring for the children since removal in November 2014. They were approved as foster carers in April 2015.
3. The LA's proposal is that S and T should become special guardians.

M concedes that if I find that the injuries were non-accidental then the children should remain in their current placement.

4. At the outset of the hearing S and T had not yet agreed to be special guardians. The terms of the SG package had not yet been agreed between the LA and Mr and Mrs ST. At the outset of this hearing I heard an application by Mr and Mrs ST for them to be joined as parties in this final hearing. The basis for that application was that they might become SGs and joining them as parties anticipated that step; and that they had been looking after the children for about a year already but were somewhat in the dark about the background to the case, and felt disadvantaged in looking after the children as a result. I decided that their application was premature. They had not then agreed to be special guardians. There have been some family difficulties between Mother and the maternal grandparents on the one hand (they live next door to each other) and Mr and Mrs ST on the other. The maternal grandparents seem to disapprove of the involvement of social services and the part played by Mr and Mrs ST. There was the risk that if Mr and Mrs ST were joined for this hearing then these difficulties might be exacerbated when they heard the evidence and differences in the family might spill over at this hearing. Mr and Mrs ST will be fully informed by this judgment to which they will have access, so that they will miss very little and will know what they need to know for the best interests of the children. Accordingly, the application for Mr and Mrs ST to be joined was adjourned.
5. By the second day of the hearing Mr and Mrs ST and the LA had agreed written terms for a special guardianship package. They are to be present when this judgment is handed down.
6. The parties were represented during the hearing as follows: X County Borough Council was represented by Ms Waldron; Mother was represented by Mr Richards; P was represented by Ms Leader; and the children C,D and E and their guardian Ms Elias were represented by Ms Pudner.
7. There is in the bundle a schedule of findings made on 13 November 2014 by Dr Gowda the examining paediatrician. Some of these injuries were deemed by the joint expert Dr Davis to be non-accidental.
8. In their responses to findings sought the Mother and her partner P denied responsibility for the injuries, and inasmuch as they were able to explain the injuries, sought to present the injuries as a result boisterous or over-exuberant play between siblings, injuries suffered by the youngest sibling in that play, and by an energetic child who was fearless, and who fell regularly.

The Law

9. I gratefully adopt the analysis of Mr Justice Baker in the case of Re:S (A Minor) [2012] EWHC 1370 and I will quote from that case:

"In determining the issues at this fact finding hearing I apply the following principles. First the burden of proof lies with the local authority. It is the local authority which brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegation rests with them.

Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35. If the local authority proves on the balance of probabilities that C, D or E has sustained non-accidental injuries inflicted by M or P, this court will treat that fact as established and all future decisions concerning their future will be based on that finding. Equally if the local authority fails to prove such non-accidental injury, the court will disregard the allegation completely. As Lord Hoffman observed in Re B if a legal rule requires facts to be proved (a fact in issue) the judge 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 nought and one.

Third, findings of fact in these cases must be based upon evidence. As Lord Justice Mumby as he then was observed in Re A (A Child) (Fact Finding Hearing, Speculation) [2011] EWCA Civ 12 it is an elementary position that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.

Fourthly, when considering cases of suspected child abuse, the court must take into account all of the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss observed in Re T [2004] EWCA 558, evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence in order to come to the conclusion whether the case put forward by the local authority has been made out

to the appropriate standard of proof.

Fifthly, amongst the evidence received in this case ……is expert medical evidence…. Whilst appropriate attention must be paid to the opinion of medical experts those opinions must be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in a position to weigh up expert evidence against the other evidence – see A County Council v KD & L [2005] EWHC 144. Thus, there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where the judge, having considered all the evidence, reaches the conclusion that he is at variance from that reached by the medical experts……………..

Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them – see Re W & Aor (Non-accidental Injury) [2003] FCR 346.

Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons such as shame, misplaced loyalty, panic, fear and distress and the fact that a witness has lied about some matters does not mean that he or she has lied about everything – see R v Lucas [1981] QB 720"………

…….Finally, when seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator – see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable, where possible, for the perpetrators of non-accidental injury to be identified both in the public interest and in the interest of the child, although, where it is impossible for the judge to find on the balance of probabilities, for example, that 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 – see Re D (Children) [2009] 2 FLR 668, Re B (Children) [2010] 1 FLR 1161."

The Evidence and Fact Finding

10. The trial was listed for three days. I heard evidence on 7, 8 and 9 December 2015. The parties made submissions on the afternoon of 9 December. I have read the core bundle (of about 200 pages) and selected pages from two other lever arch files. I heard oral evidence from (in the order in which the witnesses were called): Hayley Grey a nursery nurse employed by the University Trust. Ms Grey worked with Mother between January and September 2014; Claire Jackson a Liaison Health Visitor who was present on 13 November 2014 at the trigger incident; Dr Paul Davis consultant paediatrician who was the joint expert; Helen Pope the local authority social worker allocated to the children; Mother; Partner; and Mrs Elias the children's guardian. I did not hear oral evidence from Father although I read his statements and he was in Court during the evidence and submissions. I read statements from AR and DH who work as teaching assistant and teacher respectively at C's school. They were available to give evidence during the hearing and I had expected to hear from them but I was told on day two that their evidence (in the form of their statements) was agreed, and I did not hear oral evidence from them.

10. I should emphasise at the outset that this case is not about sexual abuse. No allegation of sexual abuse has been made in this case. The Local Authority has made allegations of physical abuse.
11. I make the following findings of fact.
12. The precipitating incident leading to the application occurred on or around 13 November 2014 when C, then aged 3 years and 3 months was found to have sustained seventeen bruises of which the paediatrician Dr Gowda conducting the child protection medical considered many to be non-accidental in nature. Of gravest concern was a bruise measuring 10cm by 10 cm with linear bruising (said to have resembled a handprint by teaching staff) at the base of his spine.
13. Mother and the children had moved back to the area following her separation from the children's father (who now lives in northern England). The family came to the attention of the Children's Social Services Department in 2013 when an initial assessment followed a referral because of home conditions. No further action was taken after Mother engaged with a local program "Action for Children" and improvements were noted. There was a second referral in April 2013 when C was discovered to have bite marks. A s47 investigation was made and there was a child protection examination of C. Mother explained that C and D were play-fighting. The case remained open on a need basis to provide support to Mother around her child care. The case was closed to social services in March 2014. However, Hayley Grey continued to be involved (January-May, July-September 2014), to work with the children and to help Mother with their challenging behaviour. Her contact ended when Mother provided positive reports about the children's behaviour. It was taken up again in July 2014 but ended with a last visit on 19 September when Mother reported that the situation was calm and the aggression between the boys had stopped.
14. In about March 2014 Mother says her relationship with P commenced. She says that he was introduced to the children within weeks of meeting Mother, and was staying two to three times a week. The children have had no contact with Father since moving back into the area (until very recently). There is no current contact with the paternal family although Father has had one recent contact session with the children and was present during the three days of evidence and submissions. The Guardian commented that his presence was reassuring and helpful – in the sense that he is clearly interested in his children and committed to re-establish contact. I watched him closely as the Guardian emphasised (during her evidence) the importance of his role for the future and the need for consistency above all – not letting the children down by saying he would attend to see them and then not turning up. He showed by his body language and facial expression that he understood the importance of not abandoning the children a second time, and maintaining consistency of contact.
15. On 13 November 2014 the nursery school attended by C identified an area of bruising and marking on his lower back which was of concern. Mother was notified. Mother and C were taken to hospital by social services and C was medically examined by Dr Gowda. The police were notified and became involved.
16. Dr Suresh Gowda speciality doctor in community paediatrics at ABMUT (I have not been provided with details of his professional qualifications) examined C at 3.30pm on 13 November 2014 and wrote a report on 17 November following that examination. Medical photographs were taken during that examination which were considered during the hearing. Dr Gowda annotated a body map to show the approximate location of the injuries which he observed. In relation to injury 17 he noted,

"He had a huge 10cm x 10 cm bruise with possible linear marks on the lower aspect of his back including the upper margin of his buttocks. It was erythematous and there was bluish discolouration. It extended from his lower spine and tapered towards the midline. On questioning him as to how it happened he said "[P] did it."

17. After a careful analysis of each of the injuries identified, Dr Gowda concluded,

"C has bruising to his face, thighs and back. In my opinion, based on the history and the findings, some of the marks and bruising are consistent with the history given by mother of a fall over a stair gate and are accidental in nature. Lesion number one [bruise on right lower cheek and bruise on the angle of the mandible on the left side] is in a very unusual site for accidental bruising and is unlikely to be accidental in nature but could fit in with Mother's explanation although it is difficult to see how all the facial bruises could have been caused by the same incident.

The bruises and marks to his thighs are very unlikely to be accidental in nature; there are very many bruises in areas where accidental bruising is unusual.

Lesion number 17 is a large bruise to his back with possible linear marks. This was over the upper margin of his buttocks, an unusual site for accidental injury. This is non-accidental and fits with explanation given by the child that he had been smacked by [P]. There was no explanation given by Mother regarding this bruise."

18. Dr Davis (MD MB BCh FRCPCH MRCP DRCOG DCH) is a consultant paediatrician at the Children's Centre St David's Hospital near Cardiff. He has not been involved in C's medical care. He has not examined C or any of the children. His report and evidence are based on a review of the documents (including photographs taken at the hospital and by the police on 13 November 2014). Dr Davis produced a report and gave oral evidence at the hearing. I shall refer to the injuries by "#[number]" to follow the numbering of the injuries in Dr Gowda's report, which was the numbering also adopted by Dr Davis.
19. The local authority does not rely on #2, 3, 5, 12 or 13 in relation to the threshold issue.
20. As to #1 Dr Davis advised that Mother's explanation that C fell over the stair-gate might explain the injury. He commented that #1 "could equally have been caused by abusive trauma eg fingertip injury from the face being gripped or from a blow. The marks are over the lower jaw bone so have a less strong association with abuse than bruising on the soft parts of the face".
21. As to #4 a 2 cm linear mark on the right side of C's neck with a few petechiae on it, Dr Davis explained that this could have been caused by clothing pulled tightly in an abusive situation. He thought that it was unlikely to have been caused by a child's "scramming" or scratching, or self-inflicted. He saw many fine scratchings caused by young siblings and this was not what he observed on C's neck. He said that it was difficult to exclude the possibility that it was caused during fighting between siblings. However, it was unlikely that C's siblings were strong enough to hold C's clothes around his neck so as to cause this mark. This sort of injury was often seen in children whose top clothes had been yanked by adults moving them around violently. This injury was probably done by an adult.
22. The school teaching staff AH and DR saw #1, #4 and #17

for the first time on 13 November. They had not seen these marks on C before. The marks at #1 and #4 were noticeable as soon as they saw C on 13 November and had not been present the day before.

23. As to #6-11 these bruises were caused to C's thighs, five on the left and two on the right. Dr Davis expressed the opinion that the number of these bruises was concerning, rather than their size or shape. He said that it was uncommon to see so many at different levels. Bruising at one level might indicate collision with a coffee table or some other item. Bruising at knee or below was commonplace on toddlers. It was suggested to Dr Davis that the bruises could be explained by fighting between siblings, but Dr Davis rejected that suggestion on being reminded of the ages of the siblings. In any event, as he pointed out, if unsupervised fighting between siblings left C with such bruising that itself was a matter of concern. His conclusion was that these multiple bruises taken together were indicative of child abuse to a moderate or even high degree of probability.
24. As to #14-16 Dr Davis explained that the backs of children are seldom injured in accidents and when they are it is usually along the spine, in the centre of the back. Thus #14 could be from sliding or bumping. Dr Davis advised that #15 and 16 were of greater concern (in the shoulder area). He acknowledged that boisterous play could have led to these injuries, although again he commented on the number of bruises and expressed the view that the overall picture was a concern.
25. Dr Davis told me that his conclusion about #17 was that it showed abusive bruising to a high degree of probability. It had the shape of a handprint at the base of the child's back just at the top of the buttocks. Dr Davis confirmed that it would have been painful and distressing for the child not just at the moment of impact but later when the bruising was tender and sore. He did not accept that it could have been caused by either of the siblings. For such an injury to be caused by a fall having regard to its shape and positioning it would have to be a truly exceptional fall which had never been explained. He could not visualise such a cause. There was no medical reason or condition affecting C to explain "easy bruising". The probable cause was a severe smack or "severe smacking". He noted that the nursery staff had recorded a red mark of a hand on C's back, and Dr Gowda had noted that the bruising at #17 was "erythematous": it was difficult to try and date the event which caused the bruising at #17 but doing the best he could Dr Davis opined that it was probably caused within twenty-four hours before the examination by Dr Gowda which had been carried out on Thursday 13 November in the afternoon (commencing at 3.30pm).
26. Dr Davis also pointed out a number of marks shown in the photographs which were not noted by Dr Gowda. The police photograph at T/221 showed a bruise to the right upper arm. Police photograph T/224 showed three bruises to the right elbow. Dr Davis explained that C had not been admitted to the busy hospital for overnight stay, and bruising could fade or it could spread; Dr Gowda had carried out a thorough examination, but it was easy to miss some bruises when there were so many. The photograph at T/225 showed quite a big bruise at the top of the left thigh, much bigger than the 3mms documented by Dr Gowda (query #8?). T/227 showed a small bruise to the lower right buttock.
27. Dr Davis regarded it as significant that such an extent of bruising overall was never seen again after C went to stay with his maternal aunt. During the extended stay with his kinship carer (now in excess of twelve months) small injuries suffered by C on his own or in the company of his siblings were meticulously noted, and school and social worker were informed, but none needed medical attention or required referral.
28. There was a great deal of anecdotal evidence from the three children after the removal on 13 November to support a view that they had been physically abused by both Mother and P. Mother was consistent in her denial of abuse (by herself or by P) and her explanation of these anecdotes relied on two points in particular. First, C was unreliable in his explanations. There were occasions she recalled when he had deliberately identified a sibling as being responsible for misconduct and she had known that it was untrue. Secondly, Mother's sister who had become the primary carer, was seeking to displace Mother on a permanent basis and therefore she had put ideas into the minds of each of the children. In any event I accept that one must be cautious about what very young children say, by way of historic explanation for events.
29. I note that there are many incidents recorded by several different people about what the three children have each said from time to time over an extended period. In addition, the first recordings of such anecdotal explanations precede the children being placed with the fosterers. On 13 November Angela Rooke a teaching assistant at C's school recorded that C explained the injuries to his face by saying "[P] bite me"; and Claire Jackson and Kirsty O'Leary (a social worker) heard C say "[P]'s naughty" "[P] jabbed [or] jabs mark [or] macks" " [P] did it. [P] did it". When C was questioned by Dr Gowda about the bruising on his face, Claire Jackson heard C say "[P] did it".

Some of these remarks are confused or at least confusing.

30. These anecdotal events when P is implicated by C all occurred before C and his siblings were placed with the kinship carer (Mother's sister and her husband).
31. There are very many more such allegations made by the children after 13 November (and made over an extended period of time running for a year) about events prior to their removal on 13 November 2014. These events were listed in a schedule by the local authority and I identify the following selection, with the date, the identity of the person reporting the remark, the child who made the remark, and the remark itself.

13/11/14	Kirsty O'Leary, Social Worker	When transporting the children for contact C says he won't buy sweets for P "No [P]. [P]'s naughty"
16/11/14	Foster Carer	E alleges P and Mother had smacked them and hurt them. They take it in turn. They get put on time out. If they move they get sent to bed if they still make more noise they get smacked.
18/11/14	ABE Interview	C tells police officers P did the 'baddie' on his back
17/12/14	Foster Carer	E alleges that 'Mammy' hit her and that it would leave a red mark and it would really sting and hurt when she tried to sit down. E described her mother applying cream to the sore area that was really cold and that if the marks did not go away the children would not go to school.
01/02/15	Foster Carer	E noted to have disclosed that she was scared when the boys were told off that they would be hurt and that she would not go too close in case she got hurt too. Mammy and P would hurt them.
07/02/15	Foster Carer	C describing and drawing two gates on C's bedroom door when completing LAC Review consultation. One on top of the other with a lock on them
09/02/15	Helen Pope, Social Worker	E describing and drawing two gates during a session with her social worker
17/02/15	Davinia Ennis, Fostering Social Worker	Notes that E reacts to a mention of contact by climbing into T's (male Carer) lap and snuggle into his chest which Ms Ennis identifies as concerning
19/02/15	Katie Dixon, Contact Worker	During the return journey from contact D says "[P] and Mammy's naughty" and E commented "mammy's nice now" then a little while later D said "[P]'s naughty" and E said "Mammy's good a minute" and then said "[P]'s with his mates"
23/02/15	Helen Pope, Social Worker	E presents as upset when she hears mention of contact
28/02/15	Foster Carer	C called his carer for a chat and disclosed P hurt him, punched him in his belly and his head. C uses actions. P hurt his throat and punched him, C uses hands in a strangling motion and then punched his throat. C goes on to describe P opening the top gate of his bedroom and throwing him into his room, C stated that he hurt his head and hurt his mouth and both his lips were bleeding
02/03/15	Diane Brown, Nurture Teacher at Gnoll Primary	E discloses "My mammy was horrible to all of us in our house but in contact she pretends to be nice. She used to smack all of us and hit us on our bottoms and made us cry"
02/03/15	Helen Pope, Social Worker	E tells her Social Worker (in response to a question) during a LAC Visit that P hit C. When D is asked about P he discloses that P threw C over the gate and hurt him. When C is asked about P he responds that P is "very naughty" he discloses that P hurt him and places his hands around his neck as if being strangled. P hit him in the belly. When asked if Mammy knew he said yes and then no.
09/03/15	Helen Pope, Social Worker	During a LAC Visit E is upstairs with her social worker and becomes distressed and looked worried and frightened when she hears C being told off. When asked what is wrong she says "C" and wants to go and see that C is ok. After seeing C she tells the Social Worker that she was worried about C getting hurt and when asked if he gets hurt at the foster carer's– "no Mammy's". She discloses that when they were naughty Mammy smacked them and says they left bruises. When discussing contact E said Mammy is pretending to be nice in contact but she's really bad. When asked why she is really bad E says "because she hits us" D discloses that he is safe at the foster carer's but not at Mammy's. C describes the gates on his bedroom door one on the 'floor' and one in the 'air'. P threw him over the bottom one on the floor.
04/08/15	Jodie Morgan, Contact Supervisor	E is heard telling C "we can't live in Mammy's house with Mammy because she hurt us that's why we are still with [S] but I am happy to stay here not with Mammy" and then to her mother "[S] said we cannot live in your house because you hit us" Mother states "She shouldn't say that" E responds "but you did" mum says "I didn't" E replies "you did"

32. There are a great many more of these anecdotal accounts of violence in Mother's home. The point is made on behalf of Mother and P that these are recollections by children. C's immediate allegations include an allegation that P bit him, yet an expert (not Dr Davis) has advised uncontroversially that none of the marks on C pre-removal were bite marks. Many of the recollections are made after the children have been living for some time in the care of Mother's sister and the sister's partner: Mother and sister have not got on for a very long time, and issues connected to the removal of the children and placing them with the sister have overwhelmed that relationship for the worse (although there have been signs this summer of a degree of cooperation).
33. Mother believes that her sister has deliberately influenced the children to speak against Mother and P. Ms Pope the social worker was asked about this issue. She explained that a lot of work had been done to advise the sister that the children should be encouraged to have a positive view of Mother. Ms Pope believed that although the sister had misgivings about Mother's behaviour the sister had not allowed those misgivings to spill over on to the children and had certainly not encouraged the children to lie about Mother and Partner's conduct with the children before the removal. Moreover, Ms Pope spoke about the quantity and quality of these anecdotes and the distinct nature of these recollections relayed in language which (having met and spent time with the children) she recognised as (probably) the children's own explanations. Ms Pope was familiar with situations where children are encouraged to give a particular message and she believed that these anecdotes were not indicative of coaching.
34. Mother was born in 1990 and is now 25 years old. Mother was deeply distressed when the children were removed. She has cooperated in the unusually long process which has led to this final hearing. The children have not been living with her since 13 November 2014. They have been accommodated with their maternal aunt and her partner. Mother has had two contact sessions a week at a contact centre with all the limitations which that sort of contact entails. The family dynamics (the fracture between maternal grandparents and Mother on the one hand and her sister on the other) have prevented contact in more congenial and convenient surroundings.
35. Between mid-November 2014 and the end of June 2015 Mother and her partner were on police bail. It is not clear why the police investigation took quite so long. In the event neither Mother nor her partner were charged in respect of any matter arising out of the care (or lack of care) of the children. One of the conditions of their respective bail terms was that they should not contact each other. I accept their evidence that they respected this condition, save on one occasion when they met by accident at a relative of the partner's. In circumstances where the children had been removed from Mother, this bail condition, depriving her of the support of her partner, would have been an additionally cruel blow. It had an adverse impact on her partner as well. It is to their mutual credit that they obeyed the bail conditions, and were able to cooperate in the process which has led to this final hearing.
36. In Mother's evidence she was unable to explain the cause of all the bruising. Some had been caused by a fall over the stair-gate which apparently took place in her absence when she was taking the two older children to school on 13 November. Some had been caused by fighting between C and his siblings. Some had been caused by other falls and rough and tumble play. Mother explained that she had been unaware of the extent of the bruising until the medical examination. Mother explained that as at the date of the medical examination on Thursday 13 November she had last seen C naked on Sunday evening 9 November, four days earlier. I was surprised to hear that three year old C had got dressed on Monday morning, undressed on Monday evening, dressed on Tuesday morning, undressed on Tuesday evening, dressed on Wednesday morning, undressed on Wednesday evening and dressed on Thursday morning, in and out of his night-time clothes (he wore pyjamas and a night-time nappy) and his day-time or school clothes, without his Mother seeing him naked. By Thursday morning his legs, arms, face/neck and back were marked by about twenty bruises but although mother saw bruising lower down his legs she did not see the bruising on the thighs or his back. Mother explained that, as usual, on Thursday morning C had wiped himself (he did not soil himself at night, and only occasionally did he wet himself) and got dressed independently when she (and P) were in other rooms in the house.
37. I note that when the children were first fostered, it was recorded that C could not dress himself efficiently or accurately. He got muddled: clothes were put on twisted or inside out. He needed to be prompted and helped. He did not then present as a three year old who was unusually advanced in his ability to self-care. This evidence contradicts one of the explanations given by P and Mother for not having seen much of C's unclothed body in the several days immediately prior to 13 November: both Mother and P recall a degree of self-help in C which I find inherently unlikely, and my view is confirmed by the evidence of C's limited self-care post-removal.
38. Mother had no explanation for the worst bruising at #17. It was not done by her she insisted. Equally, she insisted that it was not done by P. However, Mother acknowledged (as did P) that #17 was a non-accidental injury. When Mother had assisted C get ready for bed on Wednesday night (12 November) she had not seen such bruising because (if it was there at the time) she had been addressing C's front and had not seen his back and she said she did not see C completely naked. C never drew such bruising (#17, or indeed any of the bruising noted in the medical examination or by Dr Davis in the photographs) to his Mother's attention or to P's attention, according to them. That seems unlikely having regard to the pain likely to have been inflicted by the assault which caused #17, and lasting soreness after the immediate trauma.
39. Mother explained that P had been a reliable and consistent assistant in parenting the children. She had never delegated her role as primary carer. She had never doubted him. She was responsible for disciplining the children. "I was the one to tell them off" she told me. She never hit the children except occasionally when they were very naughty to give them a little tap on the hand.
40. The Guardian commented on the relative personalities of Mother and her partner. They were both emotionally "very young" she said. Mother was very assertive, even aggressive; but P was not aggressive, or much less so than Mother.
41. Mother told me that on Thursday 13 November that she had taken the two older children to school and had been away from the house for about twenty-five minutes. When she returned C was curled up on the sofa with P. C was happy and did not make any reference to any untoward event, or injury. P explained to Mother that C had cut his face (his lip) when he fell over the stair gate (climbing over it). Later that morning (strictly in the early afternoon at about 12.30) C was taken to the nursery school. Until Mother was called to the school that afternoon she knew nothing of #17, she told me.
42. One issue which was investigated in the oral evidence was Mother's arrangement for controlling C at night. The evidence was that Mother found him a difficult child because he was very active and disobedient – not unusual in an energetic three year old. The door of his bedroom had no lock. It did not even have a handle or any door closing mechanism. The bedroom doorway was on the first floor opposite the top of the stairs in this house. A stair-gate could not be fitted to the stairs, or Mother was unable to fit one. Mother had fitted a stair-gate to the door of C's bedroom in lieu of a stair-gate to the stairs. At some point C had become capable of climbing over the stair-gate fitted in the door of his bedroom. Mother had acquired a second stair-gate, and was in the habit of fixing it at night above the first stair-gate so as to block C's exit from the room effectively.
43. Concerns were expressed during the hearing by various witnesses and in questioning that this cage-arrangement was bad emotionally for C. Given the commonplace way in which small children are placed in or corralled by barred cots, playpens, and stair-gates, I'm not certain that a small child would be aware of the difference between one set of bars and another – it's just a fact of small person life; however I defer to the greater experience of the guardian and social workers on this issue. What seems to me to be significant about this issue is that Mother did find it very difficult to control C over an extended period of time. She explained how C had trashed the kitchen one night because he could get out of his bedroom. There is a drawing of the double stair-gate arrangement made by the eldest sibling, which appears to show a lock to the bottom stair-gate in the arrangement. This drawing shows the impact of the arrangement on E if not on C, and it may well be indicative of the prevailing culture in the house. C was "locked" in his bedroom because he was troublesome. Mother did not deal with it in a healthy way, by sleeping in his room, by playing actively with him. I can see that these difficulties and Mother's inadequacies in dealing with C tend to support a conclusion that Mother was not in control of C and the children. It is not in my judgment strong evidence, although it may be corroborative of other evidence of a poor relationship between Mother and C, and her lack of control.
44. P was born in 1990 and is now 25 years old. He is unemployed. He had his own flat in 2014. He had met Mother again in about March 2014, the two of them having known each other as school friends some years before. They had started a sexual relationship by late Spring 2014. He had been introduced to the children by the summer. By the end of the summer he was staying regularly with Mother, sometimes as much as five nights a week. He had not given up his flat but he was seriously considering doing so.
45. He told me that he got on well with the children and that he cared for them. He enjoyed playing with them. He explained that he was a little obsessive with tidiness or perhaps cleanliness (he said he didn't like dust) but he denied that the children had irritated him. He enjoyed their company. He was very distressed when the children were removed, and not just because an allegation that he had hit C was under police investigation.
46. P admitted that he had been smoking cannabis since he was 13 years old. He had told his GP (according to his medical records) in July 2014 that he had been smoking £70 worth of cannabis a week since he was 14. After noting this cannabis abuse the GP went on to record "……since then 'losing it', feels he wants to 'lash out all the time', feels anxious, paranoid in public as if everyone is staring at him…….one month ago got chucked out of job centre for threatening behaviour…wants help with anxiety…..explained had to help himself more….". Following the removal of the children he had been to the GP on two occasions, complaining of depression and suicidal ideation. He told me that he had considerably reduced his cannabis intake and that by the autumn of 2014 he had reduced his intake to an occasional smoke at the weekend.
47. P did not know how any of the injuries had been caused. He had not seen Mother cause any of the injuries. He denied using physical chastisement. He denied seeing Mother hit any of the children on any occasion. He had no explanation for the children recalling that he and Mother had hit them. As to events on the morning of 13 November he confirmed that C had got dressed without either he or Mother providing assistance and when C was on his own in the living room, a statement which as I have explained I cannot accept. Mother was out of the house for about twenty-five minutes when she took the older children to school. He was in the house on his own with C. C had gone upstairs and fallen over the stair-gate. C had injured his face – cut his lip and bashed his face in the fall. P denied smacking C. When Mother returned, P was on the sofa cuddling C.
48. Mrs Elias is the children's guardian and has longstanding and varied experience of child abuse work. I was greatly assisted by her two careful and insightful reports. The guardian emphasised the importance of an acknowledgement from Mother that the children had been damaged in her care, if not an admission that Mother had physically assaulted C or that she knew C had been assaulted by P. Mrs Elias was concerned for the future of the children given their clear collective and individual recollections that Mother and P had hit them all, and in the face of those recollections, Mother's strong contradiction.
49. Are these injuries or any of them non-accidental?
50. I find that #6-11, or at least most of those injuries to the thighs were non-accidental. I rely on Dr Davis' professional opinion of the probability of non-accidental injury at several levels on the thighs (not explained by a series of "coffee table bumps"), and his conclusion that it was unlikely that these injuries were caused by rough and tumble in sibling fighting having regard to the age of the siblings. I find that #15 and 16 were non-accidental, again relying on Dr Davis' opinion and the improbability that these bruises were caused by a sibling attack, having regard to the ages of the siblings.
51. As to #4, I accept Dr Davis' opinion that this was probably caused by an adult pulling at C's clothes so that his neck was "scragged" by the tight clothing cutting under his chin; again I find it unlikely that this injury was caused by C's young siblings. It was probably caused on the evening of 12 November or the morning of 13 November, as the teaching staff recall that it was not evident until 13 November.
52. I also agree with Dr Davis that if any or much of this bruising (overall) was caused by siblings or (less likely) by C self-harming in excessively physical or boisterous play, that is itself indicative of a risk of significant harm in the care and protection afforded to C and to his siblings in their then home environment.
53. There was no evidence given, or opinion offered, that this bruising as a whole (and excluding #17) was indicative of beatings. But Dr Davis suggested that #1, #15 and 16 could be finger marks caused by grabbing or pinching C, and #4 was probably caused by violently grabbing and moving C.
54. As to the additional bruising (to one elbow and to an upper arm, and to a buttock) which had not been identified by Dr Gowda, but which was shown on photographs taken on 13 November 2014 I am not able to conclude that they are indicative of non-accidental bruising although Dr Davis thought that some of them might be.
55. Nevertheless, and aside from #17, this level of bruising of C as a whole and its distribution is so unusual and the explanations offered (rough play with and without siblings) are so uncompelling, that I am persuaded on balance that they are indicative of an unsafe environment.
56. I agree with Dr Davis that the extent of the bruising as a whole recorded by Dr Gowda (with or without the addition of the bruising identified from the photographs by Dr Davis), both as to distribution and number is indicative as a whole of non-accidental bruising.
57. However, #17 is in a special category. Both Mother and P agreed that #17 was non-accidental. Mother and P had no explanation except that they were not responsible individually or collectively. In my judgment #17 could not have happened other than at the home. Dr Davis said that it had probably been caused within 24 hours before the medical examination on Thursday afternoon 13 November 2014. Mother left C at the school-gate at 12.50pm on 13 November according to records. By 13.05, #17 had been identified and noted in the school's incident book. It is unlikely that the injury was inflicted by one of the two teachers or members of staff who accompanied C from the school-gate to the classroom: one to carry out the assault and the other to be complicit. I note again the decision taken not to require the teaching staff to give evidence, notwithstanding their availability. That indicates a tacit acknowledgment that the teaching staff were outside the pool of potential perpetrators. I endorse that acknowledgement.
58. This injury could have been inflicted by P after C fell over the stair-gate on the morning of 13 November. Mother was away from the home and P was alone with C. Or it could have been inflicted by Mother when she returned and meted out discipline to C when she heard what he had done in her absence, she being the disciplinarian on her own account. A further possibility is that it had been done the night before (that was possible according to Dr Davis who explained that dating of injury marks was unreliable), in which case either of them could have been responsible the night before. I note that C is recorded on 13 November as making accusations against P and not his Mother, although all the children also make allegations of violence (being hit) against Mother, over time.
59. To what extent should I treat the evidence of what C said on the day as decisive of the issue (on balance of probabilities)? Overall I am influenced by the children's remarks to reach a conclusion that Mother and P smacked the children on occasions. I am less confident that C's sometimes confused remarks on the day are a reliable indication that #17 was caused by P.
60. I do find that #17 was caused by either P or Mother. They were both caring for C on Wednesday night and Thursday morning (P stayed that night at the house). Dr Davis explained that #17 would have been painful and upsetting for C (I'm not certain we needed an expert to tell the court this, but his professional opinion agrees with my perception). C would have been obviously distressed by the blow and for some time and it would have been sore for some time. Had it been done when Mother was out of the house on Thursday morning for twenty-five minutes, C would still have been distressed on her return.
61. Mother and P both know who did it I find. The one who did not do it has chosen not to point the finger out of love and loyalty to the assailant. If M did not cause #17, then M has failed to protect C from P. But M has failed to protect C in other ways too, as I have found. The overall level of bruising evident on C on 13 November, most of which Mother affected to be unaware of, is simply unacceptable. Boisterous playing is one thing. Whatever cause or causes led to this general level of bruising are incompatible with a safe environment for the child.
62. I regret that I am unable to identify the perpetrator of #17. It was an exceedingly hard smack to cause such a mark, I find. The force used on a small child must have been considerable and is probably indicative of a loss of control on the part of the perpetrator. There is evidence before me to support the view that Mother could have lost control, but so could P. No-one could categorise this bruising (#17) as some sort of "reasonable" chastisement. It was a huge wallop on a three year old who was probably being held at the time, else he would have been knocked across the room. In circumstances where I am unclear as to the identity of the assailant it would be dangerous to guess. Mother must accept full responsibility in the sense that she is the perpetrator or complicit, and each is as dangerous as the other in terms of the safety of the children.
63. In my judgment #17 was an inflicted injury and it was inflicted by Mother or P. That finding, and the finding that they both know which one of them did it, means that in treating the injury in this way they are putting the interests of the person who inflicted #17 above the interests of the children. These findings are very influential as to the cause of the other injuries. Dr Davis acknowledged the possibility of accidental injury, or sibling play-fighting as a cause. Having regard to my findings on #17 I have reached the conclusion that #1, #4, #15 and 16, and #6-11 were also non-accidental. Mother or P inflicted #17. The other inflicted injuries were suffered when C was in their overall care. The probability is that some of those injuries were the result of C being grabbed and hit as part of an attempt to discipline him. It is possible that one or more of the other injuries was the result of over boisterous play. However, the number and distribution of the bruising cannot be explained as "boisterous play but in a safe environment": to produce this level of bruising it would have probably been unsafe. There has to be parental responsibility for this level of bruising. It is remarkable (and unbelievable) that Mother said she had not seen the bruises until the medical examination, given the age of C. Ultimately, Mother's denial and her unwillingness to tell the Court what really happened is likely to have a longer term impact on her relationship with the children than the simple impact of the physical injuries.

Welfare

64. On the basis of these findings Mother accepts that the children should remain in the care of her sister and her sister's husband. I have read the revised care plan which is prepared on the basis of a special guardianship order in favour of Mr and Mrs ST which I shall shortly make. There will be an order for supervision for a period of time to enable the LA to provide full support for the special guardians. I endorse (as does Mother in the light of my findings, and Father) that care plan. The interests of the three children are paramount. Their best interests for the future are represented by the proposed arrangements. The evidence available for their current placement (which is extensive although it has not been the battleground at this hearing) demonstrates the care and affection, the stability and consistency and quality of parenting which they now enjoy.
65. At some point in the future Mother will reflect on the decisions she has made. Mother and some members of her family may believe that a rough and tumble existence and physical chastisement are part and parcel of ordinary life, even for very small children. Professional opinion is against that point of view. The improved behaviour of C and his siblings after removal demonstrates that the professionals are right and Mother is wrong.

Contact

66. Mother still has much to offer her children and she will retain contact with them. It is likely that in the future Mother's contact with her children will once again increase. That will depend on Mother's future conduct, and the wishes of the children over time.
67. The children have seen their mother about twice a week from removal until this hearing. As a result of the fact finding in this judgment and the advice of the Guardian in particular I am persuaded that it is in the best interests of the children for their contact with their Mother to be very limited for a period of time, though not as limited as has been recommended by the social worker or the Guardian. Father has agreed to six sessions a year for himself with the children. What was proposed and approved for Mother had been six sessions of supervised contact every year plus an extra two. This is very limited.
68. I understand the Guardian and the social worker's concerns that contact with Mother has showed signs of being disruptive (in its impact on the children) over the past year. But that has been before certainty was established by this fact finding exercise, and the special guardianship orders. Moreover, contact twice a week (104 times a year) could well be disruptive in a way that contact for twelve or fourteen sessions a year could not be. I also have a concern that the children will experience a sharp and considerable reduction in contact with their Mother in any event. In my judgment a reduction to eight supervised sessions a year is too radical. I am concerned that it will have such an adverse impact on Mother that there will be an indirect adverse impact on the children. There is also evidence of the positive impact of contact between Mother and children and it is in their best interests to try and preserve their relationship with their Mother, even in these changed circumstances.
69. Without having heard any evidence or submissions from the prospective special guardians I would decide to have 12 plus two supervised sessions a year, most of which will be in the school holidays. If that is contradicted by the prospective special guardians I will hear submissions and if required evidence from them on the issue, but I hope that will be unnecessary. These contact arrangements should be within the regime of a Child Arrangement Order for the benefit of all parties, given the difficulties between parts of the adult family of the children.
70. I will hear counsel on consequential Orders and directions.