England and Wales Family Court Decisions (other Judges)

THE FAMILY COURT SITTING AT READING

		20th April 2015 To 29th April 2015

Introduction

I am dealing with a fact-finding hearing to determine the causation and perpetration of injuries AS was found to have suffered when he was admitted to hospital on 29^th January 2015. Care Order applications have been issued for both AS, now aged 4 months, and his older sibling SS aged 4 years old, but the fact-finding relates only to injuries sustained by AS when he was approximately 7 weeks old. Findings in relation to those will inform the care proceedings for both children. The Local Authority are also seeking a section 31 threshold finding with regard to likelihood of harm to SS in light of any findings that I make against either or both parents – I will return to this later as all of the other parties ask that I do not make such a finding at this stage if the case continues beyond this fact-finding.

Background

AS was referred to hospital on 29^th January 2015 by his health visitor due to concerns about unexplained bruising seen during a weighing session at the health visitor's clinic. On examination in hospital AS was found to have bruising to his neck and shoulders and a skeletal survey showed multiple healing rib fractures. The parents were arrested and interviewed on 30^th January 2015.

Prior to this point, the relevant history of the parents is that they met in 2002 and have been in a relationship ever since. BA has a Public Order Act 1986 conviction in 2003, a caution for criminal damage in 1999 and one for shoplifting in 1995 but no other criminal convictions. ES has none. Both make reference to an occasion in 2005 when the police were called to an incident seen on CCTV between them after a night out drinking and no further action was taken.

BA served in the Army until 2013 and has raised the possibility of his suffering undiagnosed PTSD. ES has a chronic history of anxiety for which she has received counselling and is on medication (Citalopram). She has also suffered from depression, although this again has been chronic rather than post-natal. Her Citalopram dosage was increased following her discharge from hospital after AS's birth [M577].

There are no suggestions that SS, born in 2011, has been anything other than a well looked-after child. It is quite apparent that this has been a closely-knit and well-supported family unit. Although neither parent is in touch with their respective father, the maternal grandmother CS has been an active support for both SS and AS.

AS was born prematurely at 35 weeks on 08^th December 2014 by forceps delivery but with no complications. He was monitored for 24 hours but did not require any specialist treatment. ES, however, was very unwell immediately after birth due to complications arising from an acute fatty liver. She was moved to intensive care for 48 hours, then to a High Dependency Unit before returning to the maternity ward where she remained until discharge on 17^th December 2014.

Prior to discharge (and understandably given her own acute medical issues at birth) ES felt low and the hospital arranged for Dr. Lowe to undertake a brief psychiatric assessment on 17^th December 2014. She had spoken of fleeting thoughts of harming her baby [M807] and herself but was considered to be neither a risk to herself nor to AS. Dr. Lowe was happy to authorise their discharge that day.

Following discharge there was, starting on 18^th December 2014, a series of Health Visitor appointments at the family home in which the Health Visitor RF noted AS was feeding well and gaining weight. ES saw her GP on 23^rd December 2014 and agreed to increase her Citalopram dosage because of the worry caused by her physical illness in hospital. In her police interviews she says this was because she felt she was being "thrown in the deep end" [I167]. On 29^th December 2014 RF attended for a second visit. CS was alone with AS, with ES upstairs asleep. ES came down at some point during the visit. AS was weighed naked and nothing abnormal was noted.

On 02^nd January 2015 the parents say that ES noted a linear 2cm mark/scratch to AS's lower right ribs, photographed it and sent it to BA who was at work. On his return home BA thought it looked like a scratch 'despite it not having broken skin'. The parents say this faded within 24 hours then disappeared. Neither could think how it had been caused.

ES contacted the Health Visiting service on 06^th and 07^th January 2015 concerned about AS suffering from constipation and recommended that a GP review him. In police interviews ES said that AS was suffering from colic and crying a lot.

On approximately 09^th January 2015 AS had been very unsettled and BA had been up for 4 hours in the middle of the night trying to get him to sleep. ES describes that BA in frustration placed AS in his cot too roughly and they had an argument about what he had done.

At a third Health Visitor appointment on 12^th January 2015 AS was weighed naked and appeared well. ES attended hospital on 15^th January 2015 for a debrief in relation to her own health issues and it was recorded that both she and AS were doing well. AS was taken to the GP on 20^th January 2015 for a 6-8 week check and the same day RF undertook her fourth health visiting appointment at the family home. Again she weighed AS naked and he appeared well. The health visitor believed ES was coping well and invited her to access the service as and when required.

Within the police disclosure it has recently emerged that the following day, 21^st January 2015, ES sent BA a text message saying "We need to be more gentle with (AS) – he now has bruising on his shoulder and collar bone" [I26].

There are no further appointments with health professionals between the date of that text and 29^th January 2015 when ES took AS to the Children's Centre for a routine weight check with the Health Visitor. BA joined them later. When examined, ES pointed out several bruises to AS's shoulders and neck. No clear explanation was provided although ES suggested they might have been caused when handling him and BA later suggested that they might have been caused when AS was placed in his car seat.

Under the NHS Trust protocol for bruising in non-mobile babies, RF referred AS to the Royal Berkshire Hospital where a full Child Protection assessment was undertaken by Dr. Jayapal and Dr. Araffin. The full set of bruising observed is recorded in the Schedule of Findings sought. In the absence of explanation, non-accidental injury was considered to be likely and accordingly a skeletal survey was arranged, as well as CT/MRI scans. The survey showed healing fractures to the right 3^rd, 4^th, 5^th and 6^th ribs with a possible fracture to the 2^nd rib. All blood clotting, bone density and biochemical studies were normal and did not suggest any underlying predisposition to easy bruising or fractures.

A repeat X-ray on 11^th February 2015 confirmed the right side rib fractures previously seen (3^rd, 4^th, 5^th and 6^th) with a probable healing fracture to the right 7^th rib. The hospital radiologist also considered that rib fractures were visible to the left 4^th, 5^th and 6^th ribs, although these were difficult to see [F38].

Dr. Ann Gordon's child protection medical on SS was normal.

Two Strategy Meetings were convened and the Local Authority issued these care proceedings on 05^th February 2015.

The matter came before me for a first hearing on 6^th February 2015. At a subsequent case management hearing on 5^th March 2015 the case was timetabled to this fact-finding hearing. Both children are currently placed with the maternal aunt, MB, following a contested hearing on 5^th March 2015. Prior to this the children were with their maternal grandmother, CS.

Parties' positions

The schedule of findings sought by the Local Authority were set out at A39-41 but have been amended to reflect the fact that the Local Authority no longer seeks findings against the Maternal Grandmother that she caused the injuries. They do seek limited findings against her in relation to failure to act protectively in line with the penultimate paragraph of their amended schedule of findings. The Local Authority seeks specific findings that:

(a) AS sustained fractures to his right second, third, fourth and fifth ribs likely to have been caused between 02^nd and 16^th January;

(b) He sustained bruising on four separate occasions as set out in the Amended Findings Schedule – as observed on 02^nd January on his right torso, then a week later on his left torso, then on 21^st January to his shoulders and collarbone, then on 29^th January as documented by Drs. Jayapal/Araffin;

(c) It is not possible to define the date on which the bruises were caused save to say:

i. The 02^nd January bruise is likely to have been caused after the 29^th December Health Visitor home visit;

ii. The 21^st January bruise is likely to have been caused after the 20^th January Health Visitor home visit;

(d) That M informed MGM about the bruises seen on 29^th January at a point earlier than her visit to the Health Visitor;

(e) His fractures and bruising were all inflicted, non-accidental injuries;

(f) Either M or F inflicted each of his injuries. The Local Authority does not seek a sole perpetrator finding against either parent. On its assessment of the evidence it is not prepared to go that far. Accordingly it seeks an uncertain perpetrator finding in line with Lancashire v. B [2002] 2 AC 147. It does not go so far as to suggest that a sole perpetrator finding against F is not open to the court, depending on the view the court takes about each parent's credibility, but it is not able to recommend that outcome to the court;

(g) AS would have experienced pain and distress as set out in paragraphs 8 and 9 of the Amended Findings Schedule;

(h) Both parents have colluded with each other to hide the full picture of life in the family home in January and in particular how AS came to present with his injuries;

(i) Both parents have failed to protect AS;

(j) Both parents have failed to seek appropriate medical attention for AS;

The amended schedule is therefore:

AS has suffered the following injuries:

(a) Fractures to the right anterior ends of the right second, third, fourth and fifth ribs;

(b) Bruising to the right side of his neck

(i) a diffuse 0.5cm x 0.5cm bruise with clusters of petechiae within it

(ii) a 0.5cm x 0.5cm bruise with clusters of petechiae within it

(iii) two petechiae

(c) Bruising to his right anterior shoulder

(i) a 0.5cm x 1.0cm ill-defined dark reddish bruise

(ii) a diffuse cluster of petechiae

(iii) a 0.2cm circular dusky red bruise

(d) bruising to the left anterior shoulder

(i) a 0.4cm dusky red bruise

(ii) a 0.7cm oblong dusky red bruise

(iii) a 0.5cm diffuse dusky red bruise

(e) bruising to the left side of the neck

(i) a 0.5cm linear bruise

(f) bruising to the lateral aspect of his left shoulder

(i) a vertical dusky red bruise

(ii) two 0.2cm dusky red bruises, one of which is linear.

(g) a linear 2 cm bruise over his lower right ribs observed by the parents on 2^nd January 2015.

(h) Bruising to his shoulder and collarbone sustained prior to the text message sent by the mother to the father on 21^st January 2015.

Each of these injuries was inflicted non-accidentally by the application of force much greater than that used in usual or even vigorous handling. The rib fractures are likely to have been caused by the chest being squeezed with significant force. The bruises are likely to have been caused by pressure from a blunt object (eg a finger tip). The linear mark on the left shoulder is likely to have been caused by pressure from a narrow object such as the edge of a finger nail.

The rib fractures are likely to have been inflicted between 2^nd and 29^th January 2015, ie between 2-4 weeks before the x-ray on 30^th January 2015.

Subject to confirmation by the health visitor that AS's neck and shoulders were examined at the 6-8 week check on 20^th January 2015, the bruises described in (b) to (f) above are likely to have been caused between the time of that examination and 29^th January 2015.

Each injury was either inflicted by the mother or the father.

Infliction of the rib fractures would have caused AS immediate pain and distress. Thereafter he would have experience pain and distress on handling for up to a few days. The perpetrator would have been aware of having used excessive force and that he/she had caused AS distress. The non-perpetrator who had not witnessed the event would not necessarily have correlated his distress with the existence of injury.

Infliction of the bruises would have caused AS immediate pain and distress. He would be unlikely to have experienced pain from the bruising beyond 10-15 minutes after infliction. The perpetrator would have been aware of the excessive force used and that he/she had caused AS distress. The perpetrator and non-perpetrator(s) should have sought immediate medical attention in respect of any bruises seen by them or drawn to their attention. The failure to seek immediate medical attention, on each of their parts, constituted a failure to protect.

By reason of the injuries inflicted on her brother, SS was at risk of physical injury by the same perpetrator and accordingly was likely to suffer significant harm.

Neither parent accepts that they deliberately inflicted harm upon AS. They accept that AS suffered rib fractures and had marks on his body as documented on 29^th January 2015. They have proffered various accidental explanations for the injuries but are unable to identify a single memorable incident associated with these explanations. They do not accept that the marks on AS were necessarily bruises but do accept that there were marks and do not dispute the presence of rib fractures. They do not accept that threshold is crossed in relation to SS.

CS does not accept that either parent deliberately caused the injuries to AS nor does she accept that she failed to act protectively. In particular, she denies that she was aware of the bruises to AS found on 29^th January 2015 before they were raised with the Health Visitor on that date. She also argues that medical tests on AS were incomplete and therefore a medical cause for the injuries cannot be ruled out, citing the absence of a complete vitamin D test in particular.

Medical and Expert evidence

Dr Sathiya Jayapal, Consultant Paediatrician, examined AS on 29^th January 2015. He has written various letters and reports which can be found at F22-26, F27-28, F38, and F53. Copies of the original Child Protection Assessment he jointly conducted with Dr Arifan on 29^th January 2015 can be found at M405-432. His evidence to me was that the marks shown on the medical photographs of AS corresponded to the marks recorded on the body maps at M417 and M421. He confirmed, as noted at M416, that all of the marks of concern were non-blanching and there were no medical reasons for those marks. He felt that the marks were bruises and some of the bruises had petechiae which are caused when the skin is stretched. In a 7 week old non-mobile baby with no adequate explanation from his carers and no medical explanation, he felt that the bruises were highly suspicious of non-accidental injury. He therefore admitted AS for further investigations and in accordance with the Hospital Trust Bruising Protocol. The bruises had disappeared by the time that he re-examined AS at the request of the Maternal Grandmother on 6^th February 2015. Apart from the marks, he noted that AS was an otherwise well-cared for baby with an appropriate attachment to his mother.

Dr Ann Gordon, Consultant Paediatrician and Named Doctor for Child Protection at the Royal Berkshire Hospital, also examined AS on 30^th January 2015 and the notes of this examination are at M437. She conducted the child protection medical report in relation to SS and this is in the Bundle at F11. Her evidence to me was that she conducted a full physical examination of AS on 30^th January 2015 when his babygrow was off and his nappy unfastened. It was her opinion that the marks seen on AS looked like bruises to her. She gave as a hypothesis for their cause possible pressure from thumbs against the front of AS with him being held facing someone, with their fingers wrapped around his chest and thumbs against his anterior chest or shoulders. She personally could not see that tightening car seat straps could explain the bruises without there being an impact caused by a car accident. When she had seen bruises caused by car seat straps after a car accident there had been proper linear strap marks as a result.

A Radiological Report dated 14^th April 2015 was prepared on AS by Dr Andrew James Bruce Watt, Consultant Paediatric Radiologist (E15-28). He gave evidence to me to confirm the contents of his report and its conclusions. He gave 2-4 weeks prior to 30^th January 2015 as a likely age range for the rib fractures on the right 3^rd, 4^th , 5^th and 6^th ribs based on his assessment of the xrays on 30^th January 2015 and 11^th February 2015. He did not diagnose the presence of any other rib fractures beyond these four but did note that there were some abnormalities in the ends of the ribs on the left hand side which were within the normal range. It was his opinion that the mechanism of injury required the application of compressive force well outside that of normal handling and that the various explanations proffered by the parents were not likely explanations for the fractures. In the absence of any acceptable explanation or underlying medical cause, he therefore concluded that non-accidental injury was the probable cause.

Dr Mahesh Yadav, Consultant Paediatrician, prepared a report on AS dated 2^nd April 2015 (E29-71). He gave me evidence to the effect that it was his conclusion that these were likely to be non-accidental injuries to AS. He deferred to Dr Watt with regard to the timing of the fractures but shared his view that the fractures were highly unlikely to have been caused as part of the birth process. In reaching this conclusion, he relied upon the medical notes at M771 onwards which recorded routine procedures and no requirements for cardiac compression. He did not accept that the car seat was a likely cause of the marks to AS because car seats were designed to protect babies and pointed out that the direction of the car seat straps did not align in his view with the injuries to AS. He had seen babies who had suffered car seat strap injuries as a result of a car accident and these marks were not consistent with such injuries. He was satisfied that the description of the marks as bruises was accurate from the tests carried out by Dr Jayapal. He also did not think that overlaying in bed by an adult was a likely explanation for the injuries. He explained that in such incidents, if the whole adult body weight was on the baby, this was likely to cause very significant injuries if not death and the greatest risk was of compromising the baby's breathing. If only part of the adult's body was on the baby it was his view that this would not be sufficient force to cause the rib fractures.

Other professional evidence

In addition to the records of strategy discussions and other professional documentation contained in the Bundle, Medical Disclosure Bundle and Checklist Bundle, I have also considered evidence from:

RF, Health Visitor. Her statements are at C42 and C181. She gave me evidence to confirm that she had had no prior concerns about AS and his parents prior to 29^th January 2015 when ES and AS attended her drop-in clinic for a weight check. She had had a couple of conversations with ES about AS having colic. A colleague of hers initially saw AS on 29^th January 2015 and it was ES who first raised the issue of the marks on AS with her colleague, who then called RF over. She was clear that ES used the word "bruises" to describe the marks and RF confirmed that in her lay opinion they looked like bruises. Her colleague would have seen AS undressed for the weight check but had not noted the marks until ES raised them. She described ES as exhibiting a normal level of concern for a parent in these circumstances. ES did not tell her, and was not asked by RF, if this was the first time that she had seen the marks. RF implemented the Bruising in Non-Mobile Babies Protocol which required that AS be seen in A&E.

MS, the social worker who accompanied WP on 3^rd February 2015 when she visited the Maternal Grandmother for the purposes of a Viability Assessment of her. Her statement is at C186 and her original handwritten notes from that meeting are appended to that statement. She accepted in evidence to me that in her discussion with the Maternal Grandmother, CS did not mention that ES had shown her the marks on AS's neck. She accepted that CS had been told about the marks by ES. MS had had no further involvement with this case.

JA, the initial duty social worker involved in the case and whose statement is at C17, also gave evidence about a home visit to the maternal grandmother on 30^th January 2015. She produced her original handwritten notes of that visit and was called to give evidence about whether the maternal grandmother had said that her daughter had shown her the bruising found on 29^th January 2015 before it was shown to the health visitor.

Parties' evidence

The first respondent Mother, ES, has filed one statement dated 4^th March 2015 (C132-180). ES told me that she had not hurt AS intentionally and could not explain how his injuries might have been caused accidentally beyond the possible explanations offered in her statement. She did not believe that BA had hurt AS either beyond the incident in mid January 2015 when she says that (in her opinion) he handled AS a bit roughly during the night. She also denied that she had told or shown her mother the bruising found on 29^th January 2015 before she raised it at the Health Visitor's clinic.

The second respondent Father, BA, has filed one statement dated 25^th February 2015 (C107-117). He also denied hurting AS intentionally and was unable to recall a specific incident which might explain the injuries being caused accidentally. He did not accept that he had handled AS roughly in mid January as ES had thought. He also did not believe that ES had harmed AS in any way, save for suggesting that her ring might have caused the linear mark seen on his torso in early January. I also allowed him to produce a document which he had prepared over the course of the weekend (his evidence not having been concluded on Friday afternoon). This document detailed a timeline over 20^th January 2015 to 22^nd January 2015 which he said he had reconstructed from his emails, texts and bank statements.

CS, maternal grandmother, has filed two statements which can be found at C15 and C118. She gave me evidence about what she said to JA on 30^th January 2015 in which she said that she did not ever see the marks on AS found on 29^th January 2015, either before or after his admission to hospital. She did not think that she knew where the injuries were when she talked to JA and therefore did not think that she could have referred to the injuries as JA believed she had. She had taken issue with the viability assessment completed by WP in two respects, namely that she had not said that she had seen marks on AS and that she was supposed to have denied smacking her children when ES said that she did. She was clear that she would have said that she smacked her children in the past if she had been asked as that was what people did in the 1970s. She did not believe that either ES or BA could have caused harm to AS.

Relevant legal considerations

I have had regard to the guidance of Baker J in Re IB and EB [2014] EWHC 369, referred to by Counsel for the Local Authority and Mother in this case in any event:

"81. The law to be applied in care proceedings concerning allegations of child abuse is well-established.

82. The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make.  Therefore, the burden of proving the allegations rests with them and to that extent the fact-finding component of care proceedings remains essentially adversarial. 

83. Secondly, as conclusively established by the House of Lords in Re B [2008] UKHL 35, the standard of proof is the balance of probabilities.  If the local authority proves on the balance of probabilities that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will treat that fact as established and all future decisions concerning the children's future will be based on that finding.  Equally, if the local authority fails to prove that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will disregard the allegation completely. 

84. In this case, I have also had in mind that, in assessing whether or not a fact is proved to have been more probable than not, "Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities," (per Lord Hoffman in Re B  at paragraph 15)

85. Third, findings of fact in these cases must be based on evidence.  The court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence.  As Munby LJ (as he then was) observed in Re A (A Child) (Fact-finding Hearing: Speculation) [2011] EWCA Civ 12, "It is an elementary proposition that findings of fact must be based on evidence, including inferences that can be properly drawn from the evidence and not on suspicion or speculation."

86. Fourth, when considering cases of suspected child abuse, the court "invariably surveys a wide canvas," per Dame Elizabeth Butler-Sloss, P, in Re U, Re  B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567, and must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence.  As Dame Elizabeth observed in Re T  [2004] EWCA Civ.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 to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof."

87. Fifth, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed, "It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence.  The judge must always remember that he or she is the person who makes the final decision." Later in the same judgment, Charles J added at paragraph 49, "In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."

88. Sixth, in assessing the expert evidence I bear in mind that cases involving a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of Eleanor King J in Re S [2009] EWHC 2115 Fam).

89. 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 and another (Non-accidental injury) [2003] FCR 346)

90. 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).

91. Ninth, as observed by Dame Elizabeth Butler-Sloss P in Re U, Re B, supra "The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark."

92. This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. Linked to it is the important point, emphasised in recent case law, of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause.  The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126, and in the family jurisdiction by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam): "there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown.  That affects neither the burden nor the standard of proof.  It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."

93. 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 a balance of probabilities. 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, although where it is impossible for a 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 SB (Children) [2010] 1 FLR 1161).

I have also been mindful of the President's reiteration of the basic principles governing these types of proceedings in Re A (A Child) [2015] EWFC 11 which re-stated that it is for the local authority to prove, on a balance of probabilities, the facts upon which it seeks to rely.

Findings

I have heard a quantity of evidence over the course of this fact-finding hearing. Essentially the issues have boiled down to three related groups. Firstly, were the marks seen on AS on 29^th January 2015 actually bruises? Were there other bruises or marks of concern seen on AS on 2^nd January 2015 when ES took a photo of a linear mark on AS's torso, a week later on the other side of his torso, and on 21^st January 2015 when she sent BA a text referring to needing to be more careful with AS because he now had bruises on his shoulder and collarbone? Secondly, did these marks and the rib fractures have non-accidental causes? If there were non-accidental causes, is there sufficient evidence to establish a likely perpetrator or perpetrators on balance of probability? Have the parents colluded with each other to conceal what was really going on in the home and in particular how AS was injured? Thirdly, was CS aware of the bruising on AS on 29^th January 2015 before the Health Visitor saw it and accordingly did she fail to act protectively in relation to that bruising? Have either or both of the parents failed to act protectively and failed to seek appropriate medical attention for AS?

In relation to the issue of whether or not the marks were bruises, the medical evidence is really quite clear about 29^th January 2015. Dr Jayapal confirmed that he examined all of the marks and carried out various standard tests to confirm whether or not they were bruises. Medical causes were ruled out by virtue of the medical investigations conducted. Dr Jayapal emphasised in particular that the marks were all non-blanching – having explained that a mark caused by a virus would blanch. When he refreshed his memory by reference to the medical notes at M416, he was quite clear that he did test all of the marks for blanching and it is recorded on those notes that all were non-blanching. He also noted that some of the marks had petechiae. This is not disputed by the parents. Petechiae, as he explained in his evidence, are bleeding points under the skin caused when the skin is stretched somehow. They can occur as a result of an impact which has caused skin stretching. They are very unusual in the context of a 7 week old baby as he noted. He was of the opinion therefore that these were bruises, albeit quite superficial as they disappeared quite quickly and had gone entirely by the time that he re-examined AS at CS's request on 6^th February 2015. He was asked about other possible causes of the marks, such as pressure marks, but pointed out that pressure marks would be very short-lived and therefore much more temporary in nature than the marks he saw on 29^th January 2015. Dr Gordon also came to the medical conclusion that these marks were bruises. Dr Yadav, the jointly instructed expert in this regard, was also of the same opinion, having reviewed the medical notes of Drs Jayapal and Gordon and the images of the marks. He was satisfied that underlying medical causes had been ruled out as he notes at E37-38. I am therefore satisfied on balance of probabilities that these were bruises on AS on 29^th January 2015.

In relation to the other occasions when marks were seen on AS, the linear mark on his torso is clearly shown in the photograph produced by ES. It was described as looking like a "scuff mark" by BA and a "mark" by CS (who saw it 3 days after on 5th January 2015). BA likened it to the sort of mark rugby players might get from a stud through clothing. ES thought that it was a "scratch" and thought that it might have been caused by one of their cats but did not think that the cats had been left alone with AS. She also wondered if her ring might have caused it through AS's clothing. CS told me that she gave ES firm advice that she should go to the GP if the mark persisted or appeared again.

Returning to the linear mark itself on 2^nd January 2015, it is clear from the photographs that this was quite a pronounced mark on AS's torso. Neither parent can recall anything specific which might explain how this mark was caused. The possible explanations offered by them relating to the cats or ES's ring, do not have an associated memorable incident. It seems common sense to me that if ES's ring had caused the scratch, even through clothing, AS might have reacted at the time and ES would have investigated the reason for his reaction. She ought therefore to remember if this was the case and she has told me that she does not remember any such incident. Given that the cats were apparently not left alone with AS either on the evidence of ES, her suggestion that one of them may have done this is simply not plausible. She herself told Dr Jayapal at the hospital that it was similar in appearance to the marks found on 29^th January 2015 (M409). She accepted that she used the word "bruise" to describe it so to her lay eyes it must therefore have had an appearance which was bruise-like. I am left therefore with an unexplained linear mark to AS's torso in early January 2015 which on ES's own evidence, were similar to the marks found on 29^th January. She also very clearly referred to two sets of marks when talking to Dr Jayapal about the linear marks on AS's tummy (M409). She told me in evidence that she was tired and upset and mistaken and that she was not sure why she said that there were two similar marks. She said that she may have been over-embellishing because she was panicking but also volunteered in chief that there may have been two marks just not significant marks. When questioned by Mr Goodwin for the Local Authority she said that she did not remember telling him that there were two sets of marks and that she must have been exaggerating because she was worried but accepted from the detailed notes made that she must have said that there were two sets of marks, it was just that she did not remember them now. Frankly, I did not find her particularly credible about this. It appears to me, on balance of probabilities, that there were two sets of marks to AS's torso, not just the one linear mark which was photographed. I cannot see any good reason for even a panicking parent to over-embellish to create a second mark when giving important information to medical professionals at the hospital. The reference by ES to these being similar to the marks seen on 29^th January is also quite striking. Even on her evidence, where she is panicking, she sees these marks as similar to the ones which are clearly bruises on 29^th January 2015 and yet she says that she did not remember the second mark. This is simply not plausible or credible to me. However I find that the evidence, as to whether these were actually bruises, is less clear. As I have said, to ES these appeared similar in nature to the marks seen on 29^th January 2015. However the photograph is of a clear line on 2^nd January 2015. CS also saw it as a mark rather than a bruise on 5^th January 2015 and advised just keeping an eye on it and to go to the GP if it persisted or if there were other marks. Dr Yadav was also less concerned about this mark when shown the photograph and it was his opinion that it was reasonable for CS to have advised a wait and see approach based on this one mark alone. I am therefore not persuaded that the marks seen on 2^nd January and, I find, on 9^th January 2015 by ES on AS's torso were actually bruises. At the time of the first mark, therefore, it was reasonable for CS to have advised as she did and for ES not to have taken action at that point. Hindsight is a wonderful thing, and with the benefit of hindsight in relation to the marks on 29^th January 2015, these marks now perhaps assume more significance than they would have done otherwise.

In relation to the 21^st January 2015 text sent by ES to BA when she refers to bruising on AS's shoulder and collarbone, both parents now seek to say that these were simply marks rather than bruises. Both say that the marks disappeared quickly. Both ES and BA accept that ES sent the text in question. ES and BA both failed to mention this text when first interviewed by the Police on 30^th January 2015. It is only in their second interviews that the text is mentioned and that is as a result of the Police having analysed the text messages between them. Both ES and BA told the Police in their second interviews that they did not remember this text. ES told me in evidence that she can now remember sending the text and explained that she had sent it because she felt on occasion BA was rough in his handling of AS. The wording of the text is "We need to be more gentle with (AS) – he now has bruising on his shoulder and collarbone". She said that she used the word "we" because she did not want to point the finger of blame at BA, and she was quite clear that she did not feel that her handling of AS was a problem. Neither BA or ES can really recall any conversation after this text. This is quite a striking lapse in memory, in my view. As ES accepted when it was put to her by Mr Goodwin, a single bruise in such a young baby is very serious. Yet she sent a text to BA which referred to bruising in two areas on AS's body. The use of the word "now" is also notable, since it does suggest that it is linked to some earlier incident of some kind, ie this is an escalation of something that has been an issue before. Whatever had happened, ES found it significant enough to send that text to BA using the word "bruising" and it is not credible that he would not have responded, particularly to the suggestion that they were both responsible for those bruises. BA recalling that these were blotches rather than bruises, was less than credible, I am afraid. He did, he said, recall the text message before. His attempt to recreate a time-line over the weekend after I rose on Friday is something which simply does not strike me as reliable. He seeks to persuade me that he sat down with his emails and other documentary records to work out where he was and that prompted his memory about other details not recorded on those documents. As is noted by the Local Authority, his apparent ability to now recall the details of the marks is simply not convincing and I am not persuaded by it at all. I am therefore satisfied on balance of probability that the marks referred to in the text of 21^st January 2015 were bruises.

I find that the evidence in this case is quite clear that there were marks and bruises on AS both on 29^th January 2015 and on at least three occasions prior to that (linear marks on his torso on 2^nd and around 9^th January plus the bruising on 21^st January). It is also impossible to accurately date these bruises or marks as the experts have noted. From the fact that RF visited AS at home on 29^th December and 20^th January and no marks or bruises were visible on AS (who would have been undressed to be weighed), and the fact that the picture of 2^nd January only shows one mark on AS's torso, it appears that the marks seen on 2^nd and 9^th January and the bruises on 21^st January were caused after each of these visits but the 2^nd and 9^th January marks had resolved by 20^th January. The mark seen by CS on AS's torso on 5^th January (the one photographed on 2^nd January) had persisted for 3 days so it was also more than a transitory pressure mark.

It is not disputed that AS also had fractured ribs on the right hand side as the expert evidence of Dr Watt confirmed. The experts in this case are in agreement that the injuries to AS are likely to be non-accidental. Vitamin D deficiency or other bone abnormality, which has been raised by CS, is not likely given the expert opinion of Dr Watt and the conclusions of the tests which have been conducted. Dr Watt adopted a conservative approach to his assessment of the medical evidence and despite this confirmed the existence of four fractures on the right ribs. The earlier suspicion of fractures to the left hand ribs, raised by the hospital radiologist (who did not have the benefit of the second chest x-ray), is rightly accepted by the Local Authority as insufficient evidence to prove that there were any other rib fractures. Dr Watt noted that the right rib fractures are not at a location which would support a hypothesis of fractures attributable to vitamin D deficiency. I am therefore satisfied on balance of probabilities that the rib fractures are not due to some underlying medical cause. The age of these rib fractures, as assessed by Dr Watt is approximately 2^nd to 16^th January 2015, some 2-4 weeks before the skeletal survey conducted on 30^th January 2015. Both Dr Watt and Dr Yadav commented on the extreme rarity of rib fractures being recorded as a result of a non-traumatic birth – Dr Watt could recall only two documented examples and Dr Yadav categorised it as extremely rare. Dr Watt had the opportunity to review not just one film but several images of the ribs taken on two occasions (though there was only one chest x-ray taken on the second occasion, he noted that this was sufficient for diagnosis when coupled with the first set of skeletal survey images taken on 30^th January 2015). His conclusions, based in well-documented medical research about the healing processes for fractures, are clear in terms of the likely age range for the cause of these fractures. He told me that it was "highly unlikely" that the fractures occurred as early as 8^th December 2014. In addition, as Dr Yadav noted, there was no cardiac massage or compression immediately after AS was born which might have provided a possible mechanism for rib fractures. The combination of the extreme rarity of rib fractures caused during non-traumatic birth, with the likely age range provided in Dr Watt's opinion and the absence of cardiac massage or compression leads me to conclude that, on balance of probability, the rib fractures were not caused during or immediately after the birth process. They are therefore more likely than not to have been caused after 2^nd January 2015, that being the earliest date in the range given by Dr Watt.

Several potential accidental explanations for the injuries have been put forward by the parents and I will look at those next in turn. In so doing, I do note at the outset that no specific incident is identified by either parent. The potential explanations that they have offered are therefore speculative but nonetheless must be considered.

The first explanation proffered by BA in his statement at C109 is that of the car seat straps and the struggle to put AS in the car seat causing these marks. ES also suggests this possibility in her statement at C143. The car seat in question is one which has been used for two other children (SS and then her cousin) prior to AS. Apparently some of the padding for the straps is missing from the car seat and this is what BA relies upon to explain how the straps could cause the marks. This possible explanation was put to Dr Jayapal, Dr Gordon, Dr Watt and Dr Yadav. None of these medical personnel could accept that a car seat, which is in essence designed to protect an infant, could cause injuries without being involved in a car accident. Even then, as they all commented in evidence, strap injuries arising from a car accident would be markedly linear in nature, with defined edges reflecting the edges of the straps. The absence of the padding to the straps did not alter their opinions in this regard. As was pointed out by Dr Yadav in particular, and perhaps most pertinently as the paediatric expert in this case, the orientation of the bruising to AS is also not in line with the direction of the straps in a car seat. In a typical car seat, such as this one which was shown to me during the hearing, the straps come down over the infant's shoulders and fasten in a central buckle which sits approximately on the baby's lower abdomen. They therefore cross into the middle of his body, rather than going outwards. If there is any discernable patterning to the bruising seen on AS, it seems to start at his neck and go outwards to his arms, as Dr Yadav noted when asked about this by counsel for the mother and father. Coupled with the non-linear nature of the bruises themselves, it does therefore seem unlikely to me that the car seat straps caused the bruises.

In relation to the bruises being caused by the struggle to get AS into the car seat, I am satisfied that this is also unlikely. Dr Yadav was very clear in evidence to me that bruising to such a young baby requires the application of more force than would be occasioned by normal or even vigorous handling. Even handling a struggling infant to get them into a car seat, the amount of force used should not be so as to cause bruising, I find. The key to getting a struggling, rigid baby into any form of seat is patience, not to force them in such a way as would leave bruises. That seems a matter of pure commonsense to me.

The next explanation put forward is that offered by ES at C142 in relation to any medical reason for the injuries, particularly arising from any impact of her health complications following AS's birth or any bone fragility which AS may have as a result of his prematurity. Put simply, there is no expert evidence to show that these may be causes and I have touched upon this earlier. To be clear, I am satisfied that the medical evidence before me shows that these causes can be discounted. Numerous tests have been performed upon AS to ascertain if there is any underlying medical cause and no such cause has been identified. Dr Yadav was asked to address whether any further tests should have been carried out but which were not and in his opinion at E37 and E38 he concludes that there were no tests which should have been carried out in addition to those already undertaken. He makes the very valid points that all of the tests conducted show no bone or blood clotting abnormalities which could have caused AS to have the injuries noted on 29^th January, and that no further spontaneous bruises have been reported by carers since his discharge from hospital. Despite AS's birth being rather traumatic for ES in light of the complications which she developed, he was also of the opinion that the medical notes of the birth at M772 onwards documented routine procedures and normal observations. Cardiac compressions were not required as I have noted, Dr Yadav having confirmed this as the APGAR score (or measured heart rate) for AS was above 100 at all times and cardiac compressions are only required it goes below 100 at any time.

The next explanation put forward by ES is that SS somehow caused the injuries to AS. In her statement at C143 she suggests that possibly SS tried to pick AS up when she was out of the room. It was also put in cross examination by Mr Fuller to Dr Yadav that SS may have fallen onto AS. However, ES herself accepts that she has never seen SS be rough with AS and the occasions on which she left AS and SS together were only brief ones. SS is described by all who know her as a very caring and loving little girl, the first one to go over to a child who has fallen over – as ES told me in her evidence to me. ES said that SS would get a particular guilty look on her face if she had done something and she at no point noted such a look after leaving the two children together. Nor did she hear anything from either child (since a child falling on another may cause either to cry out in some form) to suggest that there had been an accident. Coupled with the natural protective reflex of a falling child not to land with their full body weight on another child, as noted by Dr Yadav, this therefore seems really very unlikely as an explanation for the rib fractures. It also seems unlikely as an explanation for the bruises and marks, which were not on an exposed part of the body. Again, as noted by Dr Yadav, AS was wearing clothes as it was winter and the injuries were on areas of his body covered by those clothes.

The next explanation proffered by the parents is in relation to an overlaying incident in bed with AS. As acknowledged by Dr Yadav, it is not regarded as particularly good practice for child under three months to sleep in the same bed as their parents because of the risk of a parent inadvertently rolling on top of the child and causing injury. Dr Yadav told me that any child rolled on inadvertently by his parent would feel pain not only from the fracture but also from being crushed by the adult on top of him. Injuries occasioned by overlaying are often very serious indeed, he told me, and can result in death. They are also typically related to breathing problems caused by being crushed but it is very rare to see fractures. Dr Yadav was therefore of the opinion that whilst this was a possible mechanism, it was not likely. Neither parent can recall an incident where AS cried out in pain whilst in bed with them asleep and therefore they put forward this possibility on the basis that AS did not cry out when it happened. ES in particular is a light sleeper on her own account. She told me very clearly how she would wake quickly to tend to AS when he was crying so as to avoid SS being disturbed. The unusual nature of the injuries in relation to an overlaying incident, coupled with the absence of any memorable incident and the fact that this also occurs in a month when AS sustains bruises and marks on 4 separate occasions, does lead me to conclude that this is simply not a likely cause in this case.

The final explanation put forward by the parents relates to how they have handled AS. From his red book record AS was no doubt smaller and lighter than SS had been at birth, as ES told me. ES said to me in evidence (and which she had also told the Police in interview at I148) that she and BA had become used to handling a boisterous 3 year old and that maybe they should have handled AS more carefully. I simply cannot see how this could explain bruising and fractured ribs to a non-mobile 7 week old baby as this would require more than normal force being inflicted, as noted by Dr Yadav and Dr Watt. Even vigorous handling would not account for the rib fractures and bruising, in their opinion and I concur with this view. Dr Yadav concluded that the bruising is likely to have been caused by blunt force trauma from fingertips or thumbs when an adult gripped AS with undue force. There is no really discernable pattern to the bruising seen on 29^th January 2015, beyond what has been noted about the general lines of the bruising and the fact that there are no bruises on AS's back. No precise mechanism for the bruising beyond Dr Yadav's conclusions can therefore be identified. I therefore cannot make any detailed findings about how the bruising was caused, beyond finding that the bruising was more likely than not to have been caused by the application of significant force beyond normal or vigorous handling and that they arise from some form of blunt force trauma, likely to be fingertips or thumbs.

In relation to all of the injuries, my findings are therefore as follows:

I am satisfied on balance of probabilities that AS sustained injuries, namely fractured ribs on his right hand side, bruising as seen on 29^th January 2015 and 21^st January 2015. In the absence of a likely accidental cause for the injuries the only conclusion that I can reach is that, on balance of probabilities, these were inflicted injuries. I am not satisfied that the marks seen on AS's torso on 2^nd and around 9^th January 2015 were bruises, nor that there is sufficient evidence to satisfy me on balance of probabilities that these were inflicted injuries. In relation to the inflicted injuries, the perpetrator would have been aware that that their actions were likely to cause significant injury and should have sought prompt medical attention.

Turning next to the issue of perpetration, I am very aware that there is much at stake in this regard. As Baker J rightly comments, there is both a public interest and in the interests of the child to try to identify the perpetrator if possible but that I should not strain to do so. All parties rightly identify that this case, as is inevitable when the only people who really know what happened are the parent or parents, is not an easy one to decide. The Local Authority accepts that much hinges on my assessment of the credibility of the parents. Both have been far from credible in certain regards, as I have noted already. The most significant features of the evidence in this case which may assist with identifying a potential perpetrator relate to the actions of the parents in relation to the injuries in the context of what was happening in the month of January. ES had been extremely ill and on her return home it is not disputed that she was still suffering from mobility issues as a result of oedema. AS was also, by all accounts, difficult to settle and would scream for hours. BA was working extremely hard and also having to take care of more around the house due to ES being ill. They also had to care for a lively three year old.

By far the most important feature of the evidence which suggests to me that ES did not inflict the injuries is that she was the one who pointed them out to BA, CS (in the case of the 5^th January) and ultimately to the Health Visitor on 29^th January 2015. She is also the one who sent the text to BA on 21^st January 2015. She also describes BA as being too rough in her opinion in his handling of AS when describing an incident in mid January during the night after AS had been awake for 4 hours with BA trying to settle him. It is, in my view, extremely significant that on 29^th January 2015, it was ES who drew the nursery nurse's attention to the bruises on AS. Had she not done so, she may have left that clinic with no-one being any the wiser. Equally significant to me is that BA consistently seems to have sought to minimise ES's concerns about the marks which she had found on AS and drawn to his attention. I am also very struck by the way in which she described raising the bruises of 21^st January and the over-forceful handling one night in January by BA. In the text she said she used the word "we" to try to avoid pointing the finger of blame. In relation to the incident in the night, she says that she challenged BA about it once, BA dismissed her complaint and she did not want to provoke him by taking the matter further. Given that she also seems to defer to him in assessing the seriousness of injuries (she said that he knows more about them than her given his Army training), I am able to infer that this may be a pattern of their relationship whereby she raises an issue and he dismisses or minimises it. As is pointed out by Mr Vater on behalf of the children and the Guardian, why would she lie about the incident in the night? She is clearly very loyal to her partner and told me that she views him as her "hero". She is also the one who has disclosed the existence of a second mark on AS's torso about a week after the one photographed by her on 2^nd January 2015. On balance, I find that despite her lacking credibility in some aspects in relation to whether or not the bruises were bruises and her inability to remember the 21^st January 2015 text message, and the fact that she was caring for AS during most of the daytime, I am satisfied that she can be exonerated as a perpetrator in light of her actions in bringing the injuries to the attention of BA and medical professionals. The inevitable outcome of this conclusion is that logically BA is therefore the only remaining person in the pool of perpetrators and I must find that he is therefore the perpetrator. In reaching this conclusion, I am not finding that he deliberately and intentionally inflicted the injuries upon AS. Much has been made by both parents about the use of the word "intentional", probably because they associate it with the criminal charge of grievous bodily harm with intent and the fact that it implies a deliberate cruelty. I find that what seems most likely in this case are momentary losses of control on the part of BA, when faced with a continuously screaming baby who simply would not settle, in the context of what everyone accepts was an extremely stressful time for all concerned. This does not in any way minimise the seriousness of the harm which AS suffered.

In terms of whether or not there has been collusion between the parents, as is rightly highlighted by Mr Vater the term does cover either conscious conspiracy or something more subtle. This is also linked inevitably to the issue of whether there was a failure to protect by ES. I have no hesitation in concluding that after she saw the bruises on 21^st January 2015 she should have sought medical attention at that point. She should also have done so after seeing BA handle AS roughly during the incident in the night and should have done more to remove AS from the risk of further rough handling by BA. Simply to have raised the issues twice and then let them drop is in itself a failure to protect. In terms of active collusion on the part of the parents, what evidence is there before me about this? Put bluntly, it could only be an inference drawn from their failure to mention or remember certain key items such as the 21^st January text. What seems more likely on the evidence before me is that ES is potentially vulnerable in the sense that she worships her partner as a hero and cannot reconcile what he has done with this view. This coupled with her known issues of anxiety and stress and natural insecurity following BA's affair in 2012 would make it highly probable that she would try to close her mind to the possibility that he inflicted the injuries. I find therefore that any collusion on her part has been more of the subtle variety, namely that she has closed her mind to the possibility that BA has inflicted these injuries and not challenged him as she should have done, nor assisted the authorities by providing as full and frank disclosure about what was going on as she should have in AS and SS's interests. She has therefore claimed not to remember certain key matters such as the 21^st January 2015 text and also to minimise the injuries and BA's part in them. To that limited extent only I find that ES has colluded with BA in trying to conceal matters.

Finally I have to deal with the factual issue about whether or not ES told CS about the injuries found on 29^th January before ES drew them to the attention of the Health Visitor. This also touches on one of the areas of dispute about what was said by CS to social workers on 30^th January 2015 and 3^rd February 2015.

JA clearly believes that she accurately recalled her conversation with CS when she was giving me evidence about it. She believes that CS told her that ES had shown her the marks on 29^th January 2015 before ES went to the Health Visitor's clinic. CS was equally clear that she did not say this and was not shown the marks. As JA herself accepted, she could not remember everything discussed in that meeting. Her original handwritten notes were clearly written at some speed and not as a verbatim record of the discussion. Although she denied that she had originally written "GP" before overwriting it with "Health Visitor" when recording what CS said about advising her daughter, it does appear that she wrote something else underneath the words Health Visitor first. JA only typed her notes up after this meeting on 13^th February 2015 due to pressures of her workload. She did not believe that she had conflated two different versions, adding information that she was aware of from her colleagues to that obtained from CS. Although she said that her recollection was clear when she typed her notes up on 13^th February and this enabled her to add details, this is nearly two weeks later. MS was equally clear that when she observed WP conducting the viability assessment on 3^rd February 2015 that CS only said that she had been told about a mark on AS by ES, not that she was shown it. This was despite her initial recollection having been that, as at C190 in her statement, she was told by CS that she had been shown the bruising. It does seem likely to me, given the apparent alteration of whatever JA wrote underneath the words Health Visitor and the delay in her typing up the case notes, that her recollection of what CS said to her is faulty. She may therefore have conflated two different incidents into one (namely the early January linear mark on the torso with the 29^th January bruising) and assumed subsequently that CS had been referring to the 29^th January 2015 when she was actually referring to the early January linear mark. In coming to this conclusion, I do not mean to criticise JA. She was clearly handling a very high caseload as the duty social worker for that week and it does seem plausible that she has simply conflated two different things in her memory as was suggested by Ms Mitchell for CS. Whilst I note that it is unlikely that ES only noticed the bruises for the first time when feeding AS in the clinic, and in fact it seems more likely that she probably saw them before, I cannot be satisfied on balance of probability that CS did say that ES had shown her the bruising on 29^th January 2015 prior to ES going to the Health Visitor's clinic.

Conclusions

In light of my findings, the remaining issues relate to threshold. As has been noted by Mr Fuller, the Local Authority has approached this fact-finding hearing as one which is also to resolve threshold in relation to both children. In relation to AS, given that I have found him to have suffered from injuries inflicted by BA on three occasions (the bruising on 21^st January, the bruising on 29^th January 2015 and the fractured ribs), I have no difficulty in determining that the threshold criteria in relation to AS under section 31 are crossed and I doubt that any party would seriously argue about that. However, in relation to SS the position is less clear-cut and I must confess that I am surprised to be asked to make a determination at this point in the proceedings in relation to her. Whilst the interim threshold are crossed in relation to her, just as they were in early March, that is not at all the same as saying that therefore final threshold must be also. Interim threshold as caselaw continues to reiterate are not determinative of final threshold. A finding that interim threshold criteria are met is simply about establishing a safe holding position in light of the then evidence. Obviously my findings in relation to AS are relevant in terms of whether it is necessary to revisit those interim threshold findings, for example if I had not made the findings of inflicted injuries then it is unlikely that I would continue to find interim threshold met in relation to SS. However, the findings that I have made reinforce the interim threshold findings which I made on 5^th March in this case but do not enable me to determine the likelihood of future harm to SS at this point. In particular, it seems to me that the key issue in determining whether or not final threshold are met in her case will relate to the risk assessment which all parties agree will be necessary. I am therefore not minded to make a final decision about section 31 threshold in SS's case at this point and will adjourn that to be determined during the final part of this split hearing in due course.

In relation to the areas to be addressed by the risk assessment, I do agree that it would be helpful for me to highlight the particular areas that would assist me by particular consideration. To this end I would suggest that areas to be considered include the parent's abilities to withstand stress and the impact of any ongoing mental health issues such as may affect ES's ability to make decisions independent of BA and BA's ability to cope with the stresses of parenting and acceptance of constructive criticism in this regard, their general relationship dynamic and how this may affect their ability to protect and put the interests of their children first.