England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING AT BRIGHTON

		20/02/2015

HHJ Jakens:

1. This case concerns BT who was born on 24^th October 2012 and is now two years old. He is represented through his Guardian MP by Miss Youden
2. These are care proceedings brought by East Sussex County Council represented by Miss Simmonds in relation to BT. His mother is BH, represented by Mr Tregoning, and his father is JT represented by Mr Bergin. BT lives with his paternal Grandmother TT and she is represented by Miss Harney.
3. Everyone in the case supports the making of a Special Guardianship Order in favour of the paternal grandmother. However before that can happen, there are two important aspects of the case which require determination. The first, which has been the subject of this hearing, is how it was that while BT was in the care of his mother, BH (and having contact with his father; JT) he came to suffer bruising on 3 occasions. The second issue will be how any findings I may make in relation to the bruises suffered by BT may impact upon his future care and family relationships.
4. This hearing was listed for three days to finalise matters for BT. However the planning and preparation of the case was not adequate, and has resulted in a delay which means that the case will now be determined as regards the longer term welfare issues during March.
5. I intend to set out my critique of the preparation in this judgment before coming on to the substantive issues. I hope that the criticism will prove to be constructive but it has been a cause of real concern and the omissions involved I trust will not be repeated. I intend to publish this judgment as an illustration of how poor planning and preparation can affect the smooth running of the court and the lists. The court is under a stringent obligation to use its time well and case-management needs to be understood and observed by everyone involved in the process. More seriously, it can affect the quality of the decision–making process. I refer the parties to the case of Re A (A Child) [2015] EWFC 11, a decision of the President.

Background to the hearing.

6. The proceedings were issued on 8^th September 2014 and the Local Authority sought an interim supervision order and supported a child arrangement order in favour of paternal grandmother. Those orders were made on 29^th September 2014. On 8^th December the matter was case-managed towards a final hearing of 3 days by HHJ Probyn. There was non-compliance with her directions – JT was due to file his statement on 20^th January and the Guardian was due to file her final analysis by the 27^th January. I received both of those documents on the 28^th January, 2 hours of which had been earmarked out of my diary as reading time.
7. It appears not to have crossed any minds that 2 hours reading time (however welcome) for a Judge who needs to be in command of the issues is not a great deal when the Judge is faced with three dense lever arch files to study. That time was completely destroyed by subsequent events. I had to excavate the bundle working from the index to see what was still missing – quite a significant amount as it happens including updating statements, a meaningful threshold document and a coherent Scott Schedule and a completed witness timetable. I heard the evidence on 29^th and 30^th January and have subsequently required extra, unplanned time from the diary to complete this judgment.

The "Threshold document"

8. As frequently happens, a "composite threshold document" had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

"Scott Schedule"

9. There were similar problems with the "Scott Schedule". When I finally received that document, it was unclear what findings the local authority was actually requiring. These schedules assist the court in identifying the local authority's case on the evidence. In this case the version I received (again at the eleventh hour) contained cut-and-pasted evidence in one column, and the parents' replies in the subsequent columns, but no indication what it was that the local authority were alleging had happened to cause the injuries. When I requested clarification, a new Schedule was sent which contained some unformed findings against BH but also, more worryingly, new findings sought against JT on the basis that he failed to protect BT from being injured. The case instantly changed shape as a result, and in my view this woolly approach to serious facts and matters was entirely unacceptable. The local authority know that they must prove their case, and what their case is must be supported by the evidence in the case and all parties must know at the earliest possible moment what the case against them is. To compound the issues in relation to the Scott Schedule, two of the findings sought were withdrawn at the very start of the hearing. It causes confusion and time-wasting for the court, but of course it is the Respondents who are directly and unnecessarily troubled in circumstances such as those which arose in this case. The court needs to know what the local authority says the evidence shows, and how it is they say, as in this case, the injuries are likely to have been caused, and in addition, by whom, when and how if there is evidence to support findings in relation to those questions. That was missing in this case until the afternoon before the hearing was due to begin.

Witness template

10. If there is to be a hearing with evidence it is an essential part of good planning that the parties use time at advocates' meetings to prepare, from their instructions, a coherent and accurate timetable for the case. I had no witness template until the day of the hearing, despite having issued clear guidance locally on multiple occasions in court and in writing that I expect that document to be perfected in time for the IRH in any case so that it can be scrutinised and amended as necessary at that hearing, and so that court time can be properly used. The value of having the trial advocate attend the advocates' meeting cannot be underestimated. By that time they should know what the issues are and have formulated a time estimate for each witness, whether in chief or in cross-examination, and they will be required to stick to that estimate at the final hearing which is listed around those estimates. If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

Chronology

11. It has been a major exercise in hearing this case to discover the basic chronology of events. The Social Work chronology whilst very thorough, is at times impenetrable and obscures what I consider to be the essential narrative, such as who was caring for B, when and where: where, for example, BH was living, and when and where he was seeing JT; when and by whom his injuries were seen, who is reported to have said what to whom about them and so forth. Without this information readily to hand, the time required to fit the pieces of the time line together is very great, particularly when the hard information is scattered about in three bundles and has to be recognised and collated. In future I expect to see the child's narrative clearly set out in any chronology which is probably the most useful document in any case where findings of fact are being sought.
12. The essential task is to discover what was going on for B. In terms of his injuries there are still defects in the time line, such as, in reality over the relevant period, when it was he was with JT. The parents' responses are really very shallow in terms of information about specifics, times and dates. All in all the case is poorly evidenced as regards fundamental pieces of information which would normally be expected, particularly when the local authority is seeking findings of fact against not just the mother but also the father.

Medical evidence

13. I was not supplied by the local authority with those colour photographs of B's injuries which clearly existed. It is standard that any court being required to determine the cause of injuries must have the best available evidence from which to work. In the bundle there are indistinct photocopies of the June injuries which were of no use to myself or the parties. Original colour images are a vital tool. Luckily copies were eventually supplied, but the local authority must in future supply best available evidence. This was a fundamental omission.
14. Sadly, it is the lay parties and ultimately BT who are most affected by these defects. Poor presentation cannot help but generate frustration and judicial comment. Indeed this judgment so far which has huge meaning forBT and the parents has been taken up with procedural matters which should not cloud the real importance of the issues for them and for the child.

B's parents and the Threshold Criteria.

15. The threshold was ultimately agreed save in relation to BT's injuries, and it reveals the many factors which have led to BT being placed primarily in the care of paternal grandmother. BT's parents are both young and sadly for both of them their childhoods were very difficult and have left their mark. Both of them are vulnerable and have a lot of issues to contend with of their own. This was very noticeable when BH gave her evidence – she clearly had some very damaging experiences which still show as deep emotional scars - and she comes from a family which has been beset with a lot of serious issues including substance misuse, mental health issues and domestic violence. Both of the parents were offered support from the Family Nurse Partnership and the social worker since before BT was born, as of May 2012.
16. The agreed threshold document shows in BH's case that she has suffered from on-going mental health issues including poor anger control, and deep feelings, at times suicidal, likely to have been generated by her serious mistreatment at the hands of her parents and by being bullied as a child at school. She was diagnosed by Dr S on 6^th January 2015 as suffering from an impulsive type of emotionally unstable personality disorder, in a very penetrating and distressing report which reveals the depths of BH's current and previous traumas and difficulties. It is to be hoped that she will access support and avail herself of treatment to overcome the problems which she has to deal with, not least for the sake of getting things right for BT in the future and not revisiting on him the awful things which she experienced as a child, a hope she clearly holds. She has a volatile relationship with her own mother. She is also beset by a form of epilepsy.
17. JT too has a history of aggression when younger, depression, and self harm, but these appear to be something he has largely overcome. He was exposed to domestic violence in his family and has had treatment for the traumas he experienced.
18. In both families there have been concerns about inappropriate sexual boundaries and activities. I note BH was sexually abused as a child and JT's extended family features sexual abuse. For the purpose of this judgment it is not necessary to divulge intimate details of this aspect of the case.
19. It is agreed that the parents did not prioritise BT's needs when he was in their care, specifically by not seeking medical attention when it was needed. It is also agreed that for different reasons, their relationship with BT has been poor, in BH's case because she was inappropriately harsh with him, in JT's case because he lacked insight. Further, he accepts he found it hard to engage with professionals and BH accepts that she is very isolated apart from her links to JT and his family.
20. Neither parent at this point in time, due to their own difficulties, is able to parentBT together or solely and they recognise this. Their histories as regards the abuse they each suffered and the impact upon them of that abuse, as well as the kind of behaviours which have resulted in each case, makes disturbing and concerning reading. On a more positive note, they have been offered services to address their difficulties which they must do if they are to have a chance of adjusting towards a more functional adulthood. Given that they are both young, it seems to me that there is potential still for them to avail themselves successfully of help and support. If they are considering more children in the future they must know that the progress they can show will be of very real importance.
21. Time will tell and BT appears to be safe under the current arrangements despite a concern which I hold that paternal grandmother is a cannabis user. I accept that this has been addressed in the evidence but I am concerned about this aspect of her life and hope to be told in due course what it is proposed should be done to avoid BT being in any way exposed to the low-level criminality and contact with the drug users' world implied by the illegal use of cannabis in his home.

B's history in brief

22. Against the background of these significant difficulties, BT began life in the care of BH. There was a pre-birth assessment in June 2012. He was born in October 2012. Initially BH and BT lived with her mother in circumstances where there was such concern about the damaging relationship between the adults that BH moved to a young mother's placement on 22^nd July 2013.
23. On 3^rd October 2013, bite marks were seen on BT's arm. BH was at this time living at the Salvation Army Hostel. JT was visiting daily on his own account. JT believed that another child had bitten BT, and he also says that BT had a habit of biting himself.
24. There are report of incidents of domestic abuse and volatility between the parents, not least on 13^th October when they began fighting out in public resulting in the grandmother removingBT for his safety.
25. On 16^th October 2013, linear marks were seen on B's arm when he had been taken to A and E for a viral illness. BT was still living with BH and seeing JT. At this time concerns were being noted about BH's physically rough treatment of B. The parents failed to bring BT to his review appointment. The Social Worker CH took the case to child protection. Dr P spoke to the Social Worker prior to the conference and her view was that child protection medical should have been requested and a forensic dental opinion sought to determine causation.
26. On 20^th December 2013 BT was seen to have sustained bruising to both sides of his torso which were seen by a duty Social Worker and a CPT Officer. Different explanations have been offered by BH. However, no Child Protection medical was requested despite the on-going concerns. The view of the CPT was that BH's explanation of rough tickling / grabbingBT to avoid a fall was acceptable. Dr P, however, later on reviewing the case, took the view that these injuries seen were likely to have been non-accidental in nature. Shortly after this in January 2014, BT was seen by a podiatrist for problems with his gait, and was seen to be hypermobile with ligamentus laxity in his lower limbs.
27. A risk and parenting assessment by the team was commissioned by the local authority which was completed in February 2014 which made recommendations for treatment and intervention to reduce the identified risks to BT.
28. He was seen with a cut lip by Housing Association staff on 3^rd April 2014.
29. On 2^nd May 2014 he was seen by Housing Association staff with what was thought to be bruising and a bite mark, but there was no child protection medical until the 5^th May. On that occasion he was seen by Dr K who recorded "old fading bruises on his back and thighs, which are possibly abnormal". The parents appear to have referred the bruises from this time to the paternal grandmother on or around the 28^th May but they did not seek medical help for B.
30. At a strategy meeting shortly thereafter, the meeting concluded that the bruises were more likely to have been caused by a lack of supervision rather than inflicted injuries, but that any further injuries would lead to a S 47 investigation. The court now has the benefit of hindsight in this case, enhanced by the professional opinion of Dr P who told me that there were lessons to be learnt from this scenario, which relate directly to child protection procedures in my view.
31. Despite the identified injuries, the concerns continued during the weeks that followed, as set out in the chronology. BH was hostile to the social worker during May 2014, and the mental health assessment concluded during that month indicated the need for a formal mental health diagnosis. Into June there were concerns about the physical care given to BT, and on 11th June bruising and bite mark were noted at the crèche
32. Next day, 12^th June, BT was moved to live with paternal grandmother, where JT was living and continues to live, as does BH. Paternal grandmother and her partner Mr R were subsequently assessed positively as carers for BT and have provided him with continuity throughout. BH also lives there and has done so since June 2014 and paternal grandmother supervises the parents' contact with BT and provides for him as his primary carer. The move appears to have benefitted BH in particular and she is seen to have improved her relationship with BT in that setting.
33. When BT was seen by Dr P at the Hospital on 13^th June, she described injuries to him which in her view were likely to be non-accidental in origin. Specifically she noted:

i) Right anterior cubital fossa, a semi-lunar, arced brown non-blanching mark (bruise) with a faint opposing semi-lunar mark. In keeping with a faint bite mark. No petechiae or teeth imprints seen.

ii) 0.5 cm bruise to right mid thigh

iii) 0.75 bruise to right knee

iv) 2 cm bruise to left buttock cheek

v) 2 cm bruise to right buttock cheek and adjacent 1 cm bruise to right buttock cheek

vi) In frog leg position, 1.5 non-blanching brown bruise on inner thigh

vii) Superficial scratch to ankle.

Assessments

34. The assessments in the case are not challenged at this stage. They are very comprehensive and it is clear that work is required to assist both these parents to manage their issues and live and survive in a world which is difficult for both of them to negotiate at times. Both extended families appear to have profiles of generational dysfunction and it is to be sincerely hoped that with work on offer to the parents they can both find a way to break out of this cycle and function at their best to offer BT a more positive childhood, within the limits of the arrangements in place for him, than they themselves experienced. Since June 2014 the arrangements whereby BT lives with his grandmother in the same household as his parents appears to be functioning although he has had bumps and bruises. Of concern are bruises noted to his buttocks on 19^th January 2015 which had been noted in the diary kept for him and clearly attributed to a witnessed fall.

The issues which are the subject of this hearing.

35. Unfortunately, what should have been a final hearing, due exclusively to the poor preparation of the case, has become a fact-finding hearing. It looks at the moment as though the additional time required before a final decision is needed will not be excessive, however it would have been infinitely better to have concluded the matter in one final hearing for the sake of BT.
36. The issue for determination is therefore the question of how BT's injuries came about. The conventional checklist for inquiry into injuries includes:- what the nature of his injuries was; whether they were caused non-accidentally or accidentally and whether there is an explanation for the injuries which I can accept as an accurate account; if they were caused non-accidentally, who is likely to have caused them; whether if, I identify one parent as having caused them I can exclude the other, and whether the parent who was not directly responsible failed to protect BT from injury; and whether, if I am unable to say who caused them I can identify a "pool" of potential perpetrators.
37. The local authority pinned their colours to the mast in relation to the findings sought just before the hearing commenced. There is a lack of analysis of the evidence in terms of JT's potential involvement in the case. For the record, the Schedule was amended in relation to the bruising seen on the 20^th December as follows:

"The Local Authority seeks a finding that these bruises were, on the balance of probabilities caused non-accidentally toBT by BH."

38. There is no mention of JT or any role he might have played in the scenario.
39. The second findings sought are in relation to the bruises identified by Dr K on 5^th May 2014. The amended Schedule says as follows:-

"The Local Authority seeks a finding that these bruises were, on a balance of probabilities, caused non-accidentally toBT by BH and that JT failed to protect BT or to seek appropriate medical advice".

40. This was the first time that that finding against JT had been specified.
41. As regards the third set of findings sought, again JT is included in the Schedule as follows:-

"The Local Authority seeks a finding that these bruises were, on a balance of probabilities, caused non-accidentally to BT by BH and that JT failed to protect BTor to seek appropriate medical advice".

42. The importance of a thorough Scott Schedule has already been discussed. Findings must be set out so parties can understand what they have to answer and in this case the last minute addition of JT was potentially unfair. The implications of this approach for a parent whose future care of their child or future children will be likely to be coloured in perpetuity by any findings made in a judgment are obvious.

The medical chronology and medical evidence.

43. Dr P gave evidence to me and it was clear that she was very concerned at the inadequacy of the investigations undertaken in relation to BT. There are child protection implications and lessons arising from this case.
44. I intend to identify the points at which in my judgment more should have been done to ensure that BT was fully protected.
45. Of course I have the benefit of hindsight. Nevertheless the history requires comment with that benefit.
46. In particular, where BT was repeatedly seen for injuries, and in the context of on-going serious child protection concerns, my chronology sets out the helpful observations of Dr P, who identifies omissions.
47. A pattern of injuries had begun to emerge by October 2013: unexplained bite-shaped marks seen on two occasions against a concern of "rough handling" and a non-attendance at a review appointment. The Social Worker was made aware by Dr P on 22nd October 2013 of the desirability of a Child Protection Medical and specifically a forensic dental opinion to determine causation of a bite mark.
48. Only two months later, there was bruising to BT's torso, but the lay social worker and lay child protection officer thought this was compatible with BH's account. It seems that clear advice was given on 22^nd October, and if so it seems to me that such information should have "travelled" with BT and been available to those dealing with him. The net result is that what may have been really significant injuries are now before me without the very best evidence to see what was happening to BT. There is no diagnosis, and the further examinations which would have been available in these circumstances were not afforded to BT, in my judgment potentially leaving him unprotected. No skeletal survey, which would have been likely to have been indicated give the site and nature of the bruising, was undertaken, so a chance to ensure his safety from physical abuse was clearly lost.
49. Further concerns arise from the way in which at the end of April, and early May, the new injuries to BT were handled. They came to professional attention on 2^nd May. For whatever reason, an email reporting bruising was not picked up until three days later. That indicates a lack of tight child protection procedures being available, where, against a recorded history of bruising and suspected bite marks, further injuries were seen. The child was left in the care of BH without swift recourse to a medical professional. Swift recourse means that a diagnosis can be sought, all necessary investigations carried out, an immediate history taken, photographs and any other necessary testing carried out as required, including, in the case of a bite mark, a forensic dental opinion.
50. Sadly for BT, three days elapsed, leaving him without the Child Protection medical his case clearly warranted, leaving him also in the care of his parent in whose care he had been when he sustained previous injuries, without any additional provision to safeguard him in the interim, as far as I am aware.
51. Sadly for BT again, the medical which was carried out was less than satisfactory in my judgment, against the known medical, child protection and social history. Again no photographs were taken and again the chance to obtain a forensic dental opinion was lost. The parents were clearly not able to be forthcoming.
52. Some further questions were put to Dr P following her attendance at court, when it emerged that a diary has been kept with BT's bumps and bruises being noted by the grandmother and also the parents. In addition BT had been seen with 3 bruises on his bottom at nursery on 19^th January, There was a specific explanation for this in that he had dropped onto toys when he jumped off a low table. The letter of January 2014 in relation to his attendance at a podiatrist due to his gait, with an opinion that he had hypermobile limbs was also referred to in the hearing, and it appears that Dr P had not been made aware of this.
53. Had the case been properly prepared these matters should have been thought about in advance. The parents have not fully evidenced their case. It may be that until the hearing the parents did not grasp the significance of the diary being kept and the visit to the podiatrist, but with hindsight, it is clear that they have been limited in their ability to give relevant details. I agreed for supplemental questions to be put to Dr P. I directed as follows:

17.2 Dr P shall be sent by the local authority:-

 

a) The Whoops Form and Body Map from Nursery dated 19 January 2015

b) The letter dated 16 January 2014 from the Specialist Podiatrist at F73 of the disclosure bundle

c) The entries from BH's diary for 28 June 2014, 1 July 2014, 11 January and 25 January 2015

d) The Police photographs of BT's injuries on 20 December 2013 (disclosed by the Police on 30 January 2015) and she shall be asked, a) whether the bruising reported on 19 January 2015 is consistent with the account(s) given and in respect of the diary entries at F135-147 (diary entries of paternal grandmother) and b) whether bearing in mind she said that she saw no sign of hypermobility whether (i) she had seen the letter from the podiatrist when she wrote her report and (ii) whether it changes her opinion and c) whether the police photographs of the injuries to the torso in December 2013 change her opinion.

54. She was also sent the statement of the Paternal grandmother
55. Dr P replied as requested. I received submissions form the parties on her replies which were as follows:-

1.Bruising on 19^th Jan

- It is a shame that nursery had not brought this to the attention of his social worker immediately and a CP medical performed at the time. I do not feel able to formally/officially comment on this body map.

-

- ( I pause to say that I note that this appears to be another missed Child Protection opportunity for BT).

e) Hypermobility

- The letter from the podiatrist written Jan 2014 is not filed into the child's medical notes held by ** the letter is from the podiatrist to the GP and had not been sent to **. I was therefore unaware of this letter until you brought it to my attention.

- Children have inherently more hypermobile joints than adults. Practitioners vary in their experience and some may use the label more regularly than others, particularly if they have limited experience of examining young children.

- Given that these are care-proceedings- if yet further bruising has been noted whilst the child has been in grandmother's care and that hypermobility is being questioned,  then I would suggest that the child is assessed by a Paediatrician with rheumatology expertise- such as  Dr J C (Hospital) and Dr C P (Hospital).

- f)Police Photos- I am unable to provide a Child protection medical opinion from these photos. I reiterate that torso bruising is not a common site for accidental bruising, and as stated in court- he should have had a CP medical performed that day.

- I would recommend that you seek opinion from his local Named or Designated Doctor in

56. Having considered these replies, in my judgment nothing of any real significance to the exercise of fact-finding which I have been asked to undertake has emerged from her, save that referral is recommended.
57. It must be clear that the retrospective view of this case gives me real concern.

The evidence as a whole

58. I view the medical evidence in conjunction with the evidence as a whole.

The facts which the local authority seek to have determined.

59. There are three sets of findings sought in relation to the following injuries seen on the following dates:

i) Bruising seen on 20^th December 2012 to BT's torso: seven bruises in all, 5 on one side and 2 on the other.

ii) Bruising seen on 5^th May 2014: 2 small bruises to his back right lumbar region, small bruises to his outer and inner right thigh and a bruise to the anterior aspect of this left thigh.

iii) Bruising seen on 12^th June 2014: 0.5 bruise to his right things, and 0.75 bruise to his right knee, a 2 cm bruise to his left buttock cheek, a 2 cm bruise and a 1 cm bruise to his right buttock cheek and a 1.5 cm bruise seen when he was laid in the frog-leg position on his inner thigh.

The oral evidence of the witnesses

60. I found Dr P to be a reliable, confident and extremely clear witness. She is a paediatrician at a Sussex Hospital. Her role as named doctor for Child Protection brings additional strength to her opinion in my view. She kept to her own area of specialisation and was extremely careful about what she was saying, and it is clear that she brings a wealth of day-to-day experience as a clinician working at the "coal-face" of a very busy children's hospital to bear. She explained how the report of the 6^th June came about: in her capacity as named doctor for child protection she had been concerned about what Dr K had seen and that no child protection medical had resulted. This was, she said, "extremely worrying" and I fully agree with that view.
61. I have no reason to doubt that Dr P's opinion is based in a great depth of knowledge and daily experience.
62. As regards the bruising to BT's torso seen on 20^th December 2013, she referred me to the large body of evidence in relation to the places where children may bruise easily and told me that the torso rarely bruised accidentally, and that in this case there were 5 bruises on one side and two on the other – not a single bruise- which heightened her concern. She said it was a shame that there had been no medical, particularly as there is a correlation between bruising to the torso and non-accidental injury. She told me that if she had seen bruises on his torso she would have requested a skeletal survey.
63. In particular she expressed her concerns about Dr K's medical on the 5^th May. She had reviewed it in her capacity as named Doctor for Child Protection. In retrospect she would have preferred a photograph rather than the body map and that a forensic dental opinion had been sought. She was concerned at the bite marks and the bruising to BT's back which are not common, and also about the bruises to his thigh which again are not common sites for childhood injury.
64. When she herself saw BT on 12^th June, although she could not put mechanisms to the bruises, she said that the location of the bruises was extremely unusual and there is large body of evidence which shows that bruising to the buttocks and genitalia are highly concerning for non-accidental injury. She did not accept that BH's explanation matched what she was seeing, and in particular the bruise she saw when BT was placed in the frog-leg position was highly unusual – she could count the number of times she had seen bruising in that area, which is very protected, on one finger.
65. She was not prepared to accept that BH's explanation for the bilateral bruising as having possibly occurred when she grabbed him to stop him from falling and although not impossible it was unlikely. On balance it was 51% more likely than not be have been non-accidental injury. As for bruising having been caused by rough tickling again, because it was bi-lateral injury to the torso, it was more likely to be non-accidental. She had not come across bruising like this where the explanation has been play. In addition she was clear that as for BH's explanation that she herself bruises easily, as does BT, it was not valid. Tests shown that BT does not have a disorder which pre-disposes him to bleeding, and together with the history given she had no reason to believe that he bruises easily.
66. I also note that she was asked about hypermoblity and gave her account of how there is a vast spectrum of hypermobility and when she had examined BT she had that in mind and was clear that his history was not in keeping with hypermobility.
67. Dr P told me that the cumulative picture was one of repeated patterns of injury associated with non-accidental injury as opposed to accidental injury,
68. She pointed out to me that BH's explanation that BT had possibly sustained bruises to his buttocks in June of this year by falling onto toys in the bath was a different explanation now. She was not prepared to accept that as an active mobile toddler, the bruises to BT's buttocks may have been caused by him falling onto toys on the floor. She said it was rare to have bruises in this place.
69. As regards the bite marks she had never seen a child of BT's age bite himself, although older children might give themselves "hickies". She said that if he had done it to himself he would have stopped at the point where it hurt.
70. As regards the parents' histories as given to her, she felt that BH had been vague and inconsistent.
71. I felt obliged to ask Dr P what lessons needed to be learnt from BT's case. She told me that there had been a missed opportunity from the evidential point of view in December 2013 – she wished that BT had had a CP medical that photos had been taken and investigations done which might have warranted a skeletal survey.
72. She said a further lesson could be learnt in that torso bruising is very rare If that is noted and there is a paediatric opinion then and there, the child ought to be seen. It requires skill to interpret bruising, especially to the torso and you need experience behind you to do so.
73. As regards the cumulative picture, she identified the themes here including the bites seen and was worried by that theme where there was no forensic dental opinion.
74. I heard from BH. It is a difficult experience to give an account before a court and I have taken BH's age and history (including her epilepsy) into account. She is however a really poor witness of fact. Her accounts to professionals have been inconsistent, but she was unable take the opportunity to provide me with any clear explanation as to what had happened to her son. Her replies were non-specific, vague and generalised and she appears to have little grasp of facts and very poor and unfocussed recall. I cannot place any reliability at all on her ability to give details. As between her being evasive or having some genuine difficulty with her memory so that details escape her, I found her evasive.
75. I found her detached from events, and quite unable to provide me with anything approaching a clear or accurate account of things.
76. It was clear to me that BH blames a great deal of her problems on to her own upbringing which is sad to know.
77. It is also clear that she does not blame JT for causing injury to B. He was in his life at all relevant times but it is his case that he was never alone for long with him and BH was BT's main carer throughout.
78. In her written evidence she accepts that BT may have sustained bruises while he was in her care "but only ever through rough tickling or me having to clasp him tightly if he was wriggling in her arms in order to keep him safe". She says thatBT enjoys rough play especially being tickled and she feels that she may have become over-exuberant. JT confirms that she tickles BT "very hard". She says that the bruises to BT's buttocks may have been caused by him falling onto toys in his bath. She denies biting him. Her written evidence is inadequate. There is no attempt to separate out the specific injuries seen to BT. The lasting impression is of someone who is unable to focus or on what has actually occurred and wants to avoid difficult questions requiring clear and specific explanations.
79. In her oral evidence she told me that BT is not a child who cries so she did not know if she was being too rough with him. I was concerned by this. I was also concerned by her account that sometimes she got carried away and did not realise what she was doing.
80. All her attempts to explain the injuries do not equate with Dr P's view. For example in relation to the bruise seen by Dr P in June 2014 on the inside of B's thigh near his scrotum she said "when I am changing him I do tickle him there – it calms him down, makes him laugh and I distract him. He cries and wriggles so I can't dress him". This she says was not rough tickling but just a distraction. This simply makes no sense as an explanation for a bruise - it is difficult to see how ticking might distract BT so that she can dress him. More to the point the injury seen is a soft tissue injury in a very sensitive area and tickling does not equate with such an injury in my judgment.
81. She said that she notices red marks to BT after she has tickled him and then bruises would appear later, but that does not link to any specific time. She said that she would feel guilty and realise that she had hurt him. However she was clear she would never hurtBT intentionally.
82. The degree of detachment that this mother exhibits was illustrated by her reaction in cross –examination to the December bruising to BT's torso. She said that she did not think it was important to mention grabbing BT again, and that there was CCTV from the house where they were living. It is concerning that this has not been included in the evidence before me, but it is even more worrying that BH did not think it was important to evidence this event which she says was captured on camera. It was difficult to gauge how she felt or how she reacted at the time when she found injuries on BT – she says that she felt guilty when the bruises came up after she had seen red marks but this does not seem to have been an inhibitor.
83. Ultimately I judge it to be impossible to get an accurate account of events relating to BT from BH. Her evidence shifts and waivers to the point that it leaves me with no confidence in what she tells me or told others. Her account for example of how BT might have hurt himself while being potty trained included the observation that "they didn't ask me about it at the time so I didn't think it was relevant". I had the strong impression that as a young mother struggling on her own after a very difficult experience of being parented herself, her own issues were still very much to the fore in her evidence.
84. JT was able to give relatively clear account of himself in evidence, but as regards details and the accuracy of his observations, again I am left with the impression that he rather drifted through what were very significant events for B, without real focus on the implications for his son. He reported the May bruises to his mother but clearly that was an inadequate reaction. BH also was not proactive in seeking medical advice in relation to these injuries.
85. As regards the torso bruises he said "neither of us knew where they (the bruises) had come from, but they had decided something was not quite right about them." That worried me, because clearly there were conversations between them which are not recorded. Whatever the case he does not appear to have questioned BH's role in the bruises beyond her explanation of rough tickling.
86. Overall it is my impression from the evidence of both BT's parents that both of them were both less than observant and less than vigilant of BT. It appears he was often getting into scrapes with other children, falling over, getting bitten, being tickled "too hard" by his mother. They did not really seem to have communicated at all times about what was happening to BT either because I note from the father's evidence that the mother did not tell him about the police visit in the October which must have been a highly significant event.
87. Their lack of clarity of thought and, I find in the mother's case, frankness, about how BT might have sustained his injuries is in stark contrast to the clear account of what happened to him on 19^th January 2015 where there was a clear event, witnessed, which provided a coherent explanation for bruises which were seen.

The Law

88. The local Authority must prove its case on to the requisite standard of proof, the balance of probabilities. Since this case began the judgment of the President in Re A (A Child) [2015] EWFC 11 has been published and it deals with fact-finding and proof and the burden on a local authority to prove the facts it relies upon based on evidence, not on suspicion or speculation.

My findings

89. Firstly these findings have taken into account the submissions made by all parties and the evidence in relation to BT's observed hypermobility, the fact that he is an active toddler and has suffered other bruises, and the all the evidence I have heard and read.
90. I do not agree with Mr Tregoning that by suggesting a further alternative assessment, Dr P is accepting that one possible cause of the bruising is because of BT's hypermobility and the bruising seen therefore likely to have been accidental injury. That, with respect to Mr Tregoning, does not equate with Dr P's evidence in respect of the bruises seen, which is closely specific as regards the nature and presentation of the bruises to BT. Neither do I accept that the diary evidence of BT getting bumps and bruises calls the "mechanism for the bruising" to be called into question. Dr P was unable to pinpoint the mechanism save to say that the bruising was likely to have been non-accidental. The diaries differ in quality as explanations from the explanations proffered by the mother. They are specific, fixed in time and witnessed, - for example, the observed cause of the recent bruising to BT's buttocks, unlike the injuries in relation to which findings are sought. That is a truly qualitative distinction.
91. Turning first to the assertion that the father failed to protect BT from the injuries relied on, I remind myself of the context of his relationship. I accept that mostly he did not see BT on his own. I have to ask if am able to exclude him from the "pool of perpetrators" as regards BT's injuries.
92. I find that JT was aware of the injuries to BT, but that he was not able to readily recognise them as serious and possibly non-accidental. I accept that he never saw BH actually hurt BT, but he was aware and had seen that she ticked him roughly. Another father might have been more concerned by what was happening to his son, but JT was in a relationship with BH and does not appear to have had the ability or common sense to have questioned BH's handling of BT, and his awareness of medical matters appears limited. He appears not to have seen BT distressed by what on his own evidence was rough tickling, and if that is right then he would have little to go on to link the injuries seen to BT with non-accidental injury caused by the mother when he was not present. JT was not the one to seek medical advice after the first set of injuries to BT. Perhaps given that the professionals accepted BH's explanations, he was less concerned than might otherwise have been the case.
93. In December 2013 it is ultimately unclear to me what he knew or when he became aware of the injuries to B. On 28^th April 2014 he reported the next set of bruises seen to BT to his mother. I do not know what his relationship with BT's doctor was at the time, but it is fair to infer that it simply may not have occurred to him that a reoccurrence was so serious that it warranted more than a mention to his mother, given the previous injuries to BT were not considered serious enough to warrant active child protection or a medical. Even so that is a very generous view. Clearly a reasonable parent would have been alert to the significance of bruises by this time and been alert to the need for a medical view and should have sought medical advice and in failing to do so he failed to protect BT.
94. JT was involved in the enquiries in June. It remains unclear to me what he actually knew and when he knew it at the time the injuries reported to BT in June were seen at the crèche.
95. In those circumstances it is difficult to find positively that he failed to protect BT from being injured by his mother on this occasion.
96. As regards excluding the father from the pool of perpetrators, I have very cautiously excluded the possibility that he and BH somehow colluded here. It would require a degree of sophistication which is unlikely in my judgment to have been available to them having heard their evidence. The local authority says that JT cared for BT on occasion but frankly it is impossible on the evidence to identify any one occasion at around the relevant times when JT had B in his exclusive care and the Local Authority have not provided me with any indications of any such time which they rely upon as a window of opportunity for JT to have caused injury to BT. The local Authority does not seek to prove him responsible. It is likely that he was on his own with B at some points but BH was the main carer and all sets of injuries occurred when she was his primary carer and again the context of her admissions and also against the observations of her rough treatment of BT. I also include the partial acknowledgement by BH that she may have been responsible for the bruising. I find on balance that it is likely that the injuries to BT were caused by something that happened to him when he was in the care of his mother.
97. As regards the schedule of findings sought in relation to the mother, turning firstly to the bruises seen to BT's torso on 20^th December 2013 BH's acceptance is that she tickled BT roughly, engaged in rough and tumble and hurt him and grabbed him to prevent a fall, does not provide me with an adequate or plausible explanation for these bruises as seen at the time. It is striking that if BH was aware that she was bruising him that she did not stop doing what she was doing so that the injuries were not repeated. I cannot say how the bruises to his torso were caused, but I accept Dr P's evidence that they were likely to have been non-accidental in nature. BH's explanations as regards how the injuries may have been caused are not reliable. She may have interacted roughly with BT, or grabbed him as she described but that alone is not likely to have caused the type of bruising seen at the site it was seen. They therefore are likely to have been caused by something that BH did to BT to cause bruising when he was in her care. I cannot say she caused the injuries deliberately, nor what she did, but clearly whatever happened went beyond normal, careful and appropriate handling of a child and play with a child, and was harmful because it caused bruises to his torso.
98. In relation to the bruises seen in May 2014, I accept that these are more likely than not to be injuries which were caused non-accidentally. BH has not provided any account consistent with the injuries seen at the sites seen. She may have interacted roughly with BT or tried to stop him toppling over, but that alone is not likely to have caused the type of bruising seen at the sites it was seen. The injuries are therefore likely to have been caused by something BH did to BT to cause the bruises when he was in her care. I cannot say that she caused the bruises deliberately, nor how they were caused, but clearly whatever happened went beyond normal, careful and appropriate handling of a child and play with a child, and was harmful because it caused bruises.
99. In relation to the bruises seen by Dr P on 12^th June 2104 upon which the local authority still rely, I accept her evidence that the bruises seen are likely to have been caused by non-accidental rather than accidental events and so likely to have been caused by something BH did to BT when he was in her care. Again I cannot say that BH caused the bruises deliberately, nor how they were caused, but I am satisfied that whatever happened went beyond normal, careful and appropriate handling of a child and play with a child, and was harmful because it caused injuries.
100. The cumulative picture here is supportive of my findings. There is a worrying pattern of injuries in the form of suspected bite marks (about which no findings can be made), and bruises, in places where it is rare to find injuries in children. It is of course impossible to say on the evidence just what happened to BT in any detail but the pattern supports the finding on the evidence that the injuries resulted non-accidentally.
101. In the absence of more reliable evidence the full picture as regard the injuries to B over time is not likely now to emerge. There is no way of establishing how the bits marks may have been inflicted, nor what a skeletal survey might have revealed, if anything.

FINALLY

102. As regards Dr P's evidence I would like to stress the message here that bruises are not a matter for interpretation by those without expertise. In a case such as this, where there is a considerable background of child protection concerns, it is clearly inadequate for non-medically qualified professionals to assume that a parent or carer's explanation for bruising or suspected bite marks is true. An expert medical eye is required to analyse bruising, proper records need to be kept, including photographs. Again where there are concerns about bite marks, not least when they are seen in conjunction with bruises, subject to a medical opinion to the contrary it would appear that a forensic dental opinion is desirable to see if the explanations can fit with the injury, and whether it was caused by an adult or a child. An opportunity was missed in December 2013. Further opportunities were missed as a result of the May 2014 medical examination which, against BT's history, could have gone further. I am grateful to Dr P for her vigilance in this case which has left me with real concerns about the adequacy of protection afforded to this little boy.