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Cite as: [2016] EWFC B102

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

IN THE FAMILY COURT AT WEST LONDON

Case No: ZW16

Gloucester House

4 Dukes Green Avenue

Feltham

Middlesex

TW14 0LR

Monday, 26 ^th September 2016

Before:

HER HONOUR JUDGE CORBETT

B E T W E E N:

LONDON BOROUGH OF BRENT

and

A & B

Transcript from a recording by Ubiqus

61 Southwark Street, London SE1 0HL

Tel: 020 7269 0370

1. Relevant people/bodies named in this judgement

(abbreviations are used throughout the judgment as set out here)

LA - London Borough of Brent

A - a child aged 6

B - a child aged 15 months

M - A & B's mother

FA - A's father

FB - B's father

P - mother's partner and Intervener in proceedings

MR N FRY appeared on behalf of the Applicant LA

MS D LEWIS appeared on behalf of the First Respondent M

MS S ROSS appeared on behalf of the Second Respondent FB

MS G HONEYMAN appeared on behalf of the Third and Fourth Respondents

MR G BAIN appeared on behalf of the Intervener P

JUDGMENT (Approved)

HHJ CORBETT:

1. The local authority issued an application for a care order on 15 March 2016. Apart from the initial case management hearing, I have had responsibility for case-managing this case since it was issued.

2. This hearing was listed as the final composite hearing but it was agreed during the late stages of the evidence that I would give my judgment as to the facts found and as to threshold criteria only, and that I would hear the evidence of the Guardian and submissions as to the children's welfare at a final hearing on 3 and 4 October.

3. I am concerned with 2 children: A, date of birth 25 September 2010; and B, date of birth 24 April 2015. M is the mother of both children. The father of A is FA, who does not have parental responsibility and has had no contact with A since A was approximately six months old. The father of B is FB, who shares parental responsibility for him. P was the mother's boyfriend at the relevant date in February 2016. Until 22 February 2016, the children, A & B, had always lived with their mother. Prior to 22 February, these children were not known to Children's Services. They were healthy children whose development was good. They had healthy relationships with their mother and each other and were loved and well cared for by their mother and extended family.

4. I shall refer to FB as 'the father'. The mother's three-year relationship with the father lasted until approximately August 2015. The mother and P did not know each other before they met for the first time outside a sho at the end of November 2015, beginning a relationship about two weeks later. P met the mother's children before Christmas 2015 and by January he was staying at her home three or four nights a week. At this point he was 19 years old, although some records would place him at 20 years old. The mother is some five years older.

5. Last September she had begun an access to midwifery course and attended college three days a week. P was working as a roofer and also spends time as a football coach to young children. He has, according to the PNC check, three previous convictions for possession of cannabis, two whilst he was a juvenile, and, during the course of these proceedings, a further conviction for possession of cannabis.

6. I have heard evidence over six days and received, from the advocates, detailed written submissions. It is not my intention to rehearse every point in evidence and submissions but only those which have guided my decisions and those which I considered I needed to determine. I have to say that I have been greatly assisted by the high calibre of advocacy and submissions. The preparation for this hearing by the local authority legal department has been excellent.

7. The Precipitating Event . On 22 February 2016, B, who was then almost 10 months old, sustained serious head and eye injuries. He had begun to take his first steps on 27 January and he was able to stand. On 22 February he was in the sole care of P at the mother's flat. The mother had left the flat at approximately 8.15am to take A to school. At 9.06am a call was received by the emergency services from the landline at the mother's flat.

8. P can be heard speaking to the operator with the mother in the background from the start of the transcript. P told the operator, 'My girlfriend's little one, he dropped off the bed and he's breathing but not waking'. He went on to say that this happened 'this morning' and that he really could not tell the operator what caused the fall. The mother can be heard in the background talking to B and also providing the correct address for the flat and the date of birth for P to then give to the operator.

9. The ambulance crew attended at 9.19am and the history given to them by the mother and P was an unwitnessed fall from the mother's bed. The ambulance notes record a 'possible ? haematoma' to the left front forehead. The mother, P and B were taken by ambulance to Hospital. The possible haematoma noted is corroborated by a photograph of B taken on 10 March 2016, which I have seen, taken in hospital showing, it appears, a bruise on his left front forehead, which Dr Jayamohan told the court would not have been caused by any of the operations which B underwent.

10. There were no external signs of injury around the head or spine noted at St Mary's Hospital but bruising to both thighs was recorded. B was intubated, that is a breathing tube inserted, and taken for a CT scan which showed a large and extensive left-sided acute subdural haemorrhage causing significant midline shift to the right.

11. B underwent emergency neurosurgery. A left-sided craniotomy was performed and the dura was tight which indicated acutely raised intracranial pressure. Once that was opened, a large acute subdural haematoma with fresh blood was found and removed. The underlying brain looked normal and was pulsating. A bridging vein was found to have torn; its bleeding point was identified and controlled. After that the dura was approximated and the bone flap replaced.

12. B was transferred to the intensive care unit at Great Ormond Street Hospital, arriving there at 4.30pm on 22 February. B was kept sedated and on neuroprotective treatment. The next day a repeat CT scan took place and on 28 February it was decided to start to reduce sedative medication and he was transferred to a neurosurgical ward on 2 March.

13. An ophthalmology review on admission to Great Ormond Street had shown bilateral large multilayer retinal haemorrhages, too numerous to count. The initial medical findings from the treating medical experts were as follows: in the opinion of the consultant ophthalmologist, Miss Solebo, B suffered bilateral extensive retinal haemorrhages consistent with non-accidental head injury and in the opinion of Dr Chong, consultant paediatric neuroradiologist, he also suffered a large and extensive left-sided acute subdural haemorrhage. There was no evidence of skull fracture or focal scalp swelling or structural cause for the bleeding. Dr Chong commented that large unilateral subdural haemorrhages are consistent but not typical of abusive head trauma.

14. Dr Bhate formed the opinion that B had sustained severe head injury with extensive intracranial bleeding and bilateral haemorrhages, is very likely to have long-term neuro ‑ disability, the extent of which will become clearer over the next few weeks. He was not able to say whether the bruising on the thighs could be the result of play, as described by the mother and P, but, in terms of the head injury, possible mechanisms were said to be a direct impact or acceleration/deceleration. Dr Bhate was of the opinion that acute subdural haemorrhage of the retinal haemorrhages, particularly unilateral, are rarely reported to occur following low level falls. He was of the opinion that non-accidental injury was the more likely cause.

15. B was discharged from Great Ormond Street Hospital on 26 March and placed in the care of his maternal grandmother and her partner, together with A, who had been there since 22 February. A positive special guardianship assessment has been carried out in relation to the maternal grandmother and her partner, in the event that the children's welfare means that they should live with them rather than with their mother.

16. B was recently reviewed by Dr Muller, Consultant Paediatrician on 11 August 2016. Dr Muller has provided a report. B is said to have made 'some progress. His main issues are right-sided weakness, query right hemianopia', which is loss of part of the field of vision, 'right femoral vein thrombosis and continuing medication for seizure post-extubation and post-trauma prophylaxis'. Dr Muller said:

'Currently B is walking with one hand held. He has decreased use of his right hand. He is elevating his right arm to shoulder level. He is using his left hand to guide his right hand to his mouth. He has no grasp and his tone is increased. He was following objects well with his eyes. There was no obvious unusual head turning. Full visual assessment will need to be carried out when he is older'.

17. Since the children have been in the care of her mother, the children's mother is reported to have devoted herself to the children, spending a great deal of time with them at her mother's home, in accordance with the local authority's written agreement.

18. Initially, it had been thought that this was almost a single issue case, although the independent social worker, Kathy Diamond, in her reports underlined the mother's vulnerability in connection with her partner relationships. Since the end of July, it has become increasingly clear that the mother and P have deceived professionals about a number of matters, including their relationship and how much time P spent alone with the children, especially in the few days prior to B suffering his injuries on 22 February.

19. Injuries to B . The cause of B's serious injuries remains a core issue for the court. Four independent medical experts were instructed within these proceedings, namely Mr Newman, consultant ophthalmologist, Dr Saunders, consultant neuroradiologist, Dr Jayamohan, consultant neurosurgeon and Dr Cartlidge, consultant paediatrician. They all have substantial expertise in their respective fields of speciality and they have expressed views and opinions in the bounds of mainstream scientific and medical opinion. They agree that the following injuries have been sustained by B: a) a haematoma to the left forehead; b) large unilateral left-side subdural haematoma, causing significant mass effect and marked increase in intracranial pressure; c) an avulsed bridging vein connecting the cortex to the superior sagittal sinus; d) ischaemic injury primarily to the left cerebrum caused by the haematoma; e) bilateral multilayer (preretinal, superficial intraretinal, deep intraretinal) retinal haemorrhages of varying sizes involving the posterior pole and periphery and numerous too many to count with a macular/retinal fold in the right retina.

20. The experts also agree that the timing of the head and eye injuries is consistent with them having occurred shortly before 9.00am on 22 February 2016 and are not the result of any pre-existing medical disorder, condition or disease, or the result of any natural process, that the minor falls that B had suffered prior to 22 February were not sufficient to have caused or contributed to the injuries found that day, that the injuries did not result from shaking alone, that the eye injuries were not caused by the brain injuries or vice versa. In addition they agree that each piece of the medical evidence must be seen in the context of all the other parts of the medical and non-medical evidence.

21. Counsel for the Guardian, Miss Honeyman, prepared a summary of relevant medical evidence which was agreed by all of the advocates, following the four independent medical experts giving their evidence to the court. The purpose of this document is set out on the first page, namely to provide a succinct summary of the key aspects of the medical experts' evidence written, oral, and including their contributions to the experts' meeting which each expert confirmed as accurate in their oral evidence. The court also has agreed notes of the oral evidence given by each of those four experts.

22. Miss Honeyman's agreed document, is set out below:

'SUMMARY OF RELEVANT MEDICAL EVIDENCE

Purpose of this document

To provide a succinct summary of the key aspects of the medical experts' evidence (written, oral and including their contributions to the experts' meeting, which each expert confirmed as accurate in their oral evidence.) The court also has agreed notes of the oral evidence given by each expert.

All the doctors agree that:

1) B did not have any pre-existing condition that predisposed him to, or caused, the brain or eye findings.

2) The minor falls and accidents that B had suffered prior to 22.02.16 were not sufficient to have caused or contributed to the injuries found on 22.02.16.

3) The injuries did not result from shaking alone.

4) The eye injuries were not caused by the brain injuries (or vice versa).

5) Each piece of the medical evidence must be seen in the context of all the other parts of the medical and non-medical evidence.

Dr Dawn Saunders , Honorary Consultant Neuroradiologist, identified a unilateral left sided subdural haematoma (SDH) resulting in significant mass effect and raised intracranial pressure that required emergency evacuation and marked cerebral swelling resulting from the injury and raised intracranial pressure. Follow up imaging revealed irreversible parenchymal infarction of the left hemisphere and right anterior cerebral artery with some sparing of the deep grey structures of the brain. A single bridging vein was damaged at the time of impact and bled into the subdural space.

There is irreversible injury to almost his entire left hemisphere and some of his right hemisphere; he is likely to have residual neurological deficits for the rest of his life.

Dr Saunders confirmed that there were no brain stem changes.

The injury was very acute and likely to have occurred within a short period of when P called M at 9 am on 22.02.16.

Unilateral SDHs result from impact to the side of the head, can be space occupying and result in increased intracranial pressure. SDHs resulting from shaking are typically thin film and not space occupying. She cannot rule out a shake and impact injury but there must have been impact.

Unilateral SDHs are a very unlikely but possible outcome of a fall from a bed onto a floor; it is possible that the force of impact resulted in a very unusual force that damaged the bridging vein. This would have been more likely but still very unlikely had he been standing on the bed.

The issue of whether the retinal haemorrhages and in particular the retinal fold could have been caused by a fall from the bed is of particular importance in assisting the court to determine the cause of B's injuries.

Dr Saunders is cautious about referring in reports to legal cases in which the court made findings contrary to the expert advice. Sometimes the court's judgments have been based on evidence that was not based on good clinical or research evidence and could be wrong.

Mr Jayamohan , Consultant Paediatric Neurosurgeon, identified that B had sustained an acute subdural haemorrhage over the left cerebral hemisphere, caused by a torn bridging vein. He suffered acutely raised intracranial pressure with subsequent brain swelling requiring a period of intensive care. The subdural haemorrhage caused by a torn bridging vein required trauma to have occurred.

In his report he identified that the trauma could have been a non-impact or shaking event but was significantly more likely to have been an impact to the head. In the experts' meeting and in oral evidence he confirmed that impact would have been required to cause the injury, whether alone or in a shaking/impact event. The subdural haemorrhage was not typical of those caused by shaking, which tend to be thin film bilateral rather than space occupying unilateral. The fact that there had to have been impact did not mean that there had not been shaking as well; there was nothing in the brain findings that says, "This child has not been shaken".

B was likely to have been unconscious or have reduced conscious level from the time of or soon after the incident; if the court accepts the evidence of P that he was sitting up and normal when P went to get his milk, this was incompatible with the injury already having happened. He did not consider that there would have been a latent period when the child interacted normally. There could have been a period when the child had been unconscious and mistaken for a sleeping baby.

He considered that it is possible for a low level fall to cause this brain injury; equally it could have been an inflicted injury and it is not possible for him to distinguish between the two completely. If it was the consequence of an unwitnessed fall this would be a rare event, described as "exceptionally unusual" and was much less likely than an inflicted injury. The higher the fall the less unlikely, i.e. to sustain this injury from rolling off the bed (56 cms) was very unlikely or very unlucky and to sustain it falling from standing height (125 cms) would be unlikely or unlucky.

If there was impact only, there was one cause. If the eye findings (on which he defers to Mr Newman) were caused by shaking there are two causes for B's injuries albeit in one incident. In that instance he does not consider both injuries have the same root cause.

Mr Newman , Consultant Paediatric Ophthalmologist, confirmed that B was found on 23.02.16 to have widespread multi-layered retinal haemorrhages in both eyes and retinal/macular folds in the right eye. In his opinion the retinal haemorrhages are not due to birth, immunisations, vomiting, seizures, minor trauma, unwitnessed fall from the bed or raised intracranial pressure. They are unexplained but most consistent with those found following shaking or shaking with impact. They are consistent with having occurred at or around the time B became acutely unwell.

Studies show that short falls are unlikely to result in extensive retinal haemorrhages but unless acutely ill, not all children are examined after such falls so it is possible, but still unlikely that they may have retinal haemorrhages which are never identified and resolve without "scars". There have been few accurate reports of retinal haemorrhages following falls. A fall from the bed would be considered very unlikely to result in the extensive intraocular haemorrhages in both B's eyes but all falls are complex events and there are outliers where significant haemorrhages have been identified following short falls.

Macular or retinal folds are either due to abnormalities under the retina caused by severe conditions (which B does not have) or likely due to traction of the vitreous in trauma. They have been found in severe crush injuries to the skull involving fractures and brain compression/injury and in shaking type injuries. In the latter the cause is the shearing forces caused by shaking and the interaction of the vitreous gel at points of strong adhesion, usually along retinal vessels or the posterior pole of the retina itself, and the shearing forces cause the retina to split (retinoschisis) or to lift, causing folds. In clinical practice they have not been found following short falls. The presence of retinal/macular folds in the presence of retinal haemorrhages is consistent with and strongly suggestive of a shaking type injury. Retinal folds are not however pathognomonic of non-accidental injury.

He was referred to cases in which the court's judgment did not follow his opinion and accepted that perhaps he should have referred to them in his report. The outcome of legal cases however did not create a scientific explanation and he considered his opinion to be in the mainstream of ophthalmology.

Dr Cartlidge : Consultant Paediatrician

Dr Cartlidge gave an overview of the medical evidence. He did not disagree with opinions of the other experts that B's injuries were rare outcomes of a fall from the bed but did not consider it helpful to talk about probabilities.

In his report he concluded that the SDH and retinal haemorrhages were caused by trauma; while he did not exclude a non-accidental cause, he thought it was plausible that B stood on the bed and then fell to the floor causing the head injury.

He considered that B was capable of standing on the bed but would not have been steady and had he fallen would not have had saving reflexes. He would not have been able to jump upwards. The maximum height of his head prior to the fall was calculated at 125 cms standing on the bed.

He considered the bruise on B's forehead shown on a photograph taken on 10.03.16 and thought it could have been the site of impact (whether by a fall or inflicted.) He considered that the external injury (if the bruise did result from the impact) did not indicate a very severe impact. If B had fallen and' hit his forehead he would have been likely to bounce and end up on his back or his front, less likely on his side.

At the time he wrote his report he did not appreciate the significance of retinal folds as opposed to retinal haemorrhages and therefore did not specifically comment on them. The matter was then discussed in the experts' meeting and Dr Cartlidge considers this a pivotal issue. He defers to Mr Newman on this issue.

He considered that there was one incident and one cause for B's brain and eye injury.

He considers it part of his professional duty to include in his evaluation and reports the outcome of legal cases in which the court having considered all the evidence decides against the weight of medical opinion. He accepted that he did not include all cases or attempt an epidemiological survey of them'.

Findings sought

23. At the commencement of this hearing, the local authority sought findings as follows: that B's injuries were sustained as a result of inflicted injury, namely a trauma to the head on the morning of 22 February; secondly, that B's mother left B in the sole care of P from approximately 8.15am to 9.00am that day, during which time he inflicted the traumatic head injury to B. Further, they sought a finding that the mother has failed to protect B by leaving him unattended in the sole care of P and that she has misled her family, childcare professionals, legal advisors, and the court by maintaining that she had separated from P when she had not.

24. As a result of the emerging evidence, I invited the local authority, through their counsel, Mr Fry, to consider what findings it sought in relation to threshold criteria. The local authority invites me to find the threshold criteria met as set out in paragraph 1.7 of Mr Fry's submissions. The local authority submit that at the relevant date, 26 February 2016, both children were suffering and likely to suffer significant harm in the form of neglect, emotional harm, and physical harm with actual physical harm to B only. They are reliant on the following. 3A to D: emotional harm and risk of physical harm. The relationship between the mother and her partner was at times volatile; featured heated arguments and physical violence. On one occasion, A was present within the home when she struck P with a physical object during a heated argument. B) Neglect and risk of emotional harm: the mother failed to prioritise the needs of the children over and above her own, in particular by leaving them in the care of P overnight on 18/19 February 2016 and for 54 hours from 5.00am on 19 February to 11.00am on 21 February 2016. C) Neglect and physical harm to B, in that they assert the mother left B alone in the care of her teenage partner P from 8.15am to 9.00am on 22 February during which time he sustained serious head, brain, and eye injuries in P's care. D) Likelihood of neglect, emotional, and physical harm: the mother has a history of poor relationship choices and vulnerability which poses potential risk to her children in the future unless this area of risk is addressed.

25. The local authority also submitted that the mother and P have colluded to hide key facts from the police, from professionals, and from this court, and it was the local authority's submission in their final submissions, as they have submitted at the outset, that P inflicted the traumatic head injury to B. A crucial issue in dispute at this hearing has been whether the injury sustained by B were inflicted by P or as a result of an accidental injury. No other person is in the potential pool of perpetrators.

26. The Mother's Position . The mother accepts that B was injured at the time and date pleaded by the local authority, except she says it is unclear when the bruise was sustained. She accepts that she lied to professionals and to the court and her family about her relationship with P and she accepts that she has a history of poor relationships. Her case is that she struggles to accept P inflicted the injuries on B and she said in evidence, 'My gut is I don't think he could have done it'.

27. The mother agrees that she failed to protect her children by exercising poor judgement in allowing P to become part of her household so quickly and by leaving the children with him while she spent a weekend in Amsterdam.

28. B's father's position in relation to factual and threshold matters is that, in short, he invites the court to consider that both the mother and P 'could have lied' about the true cause of B's injuries.

29. P's Position . In his closing submissions, Mr Bain sets out that P denies inflicting serious injuries to B. It is P's position that the local authority has failed to establish that P inflicted a serious injuries on B; that there is no evidence of propensity to a loss of temper or control on the part of P, which is a key evidential matter to weigh into the balance. Further, P says that B was seriously injured as a result of an unwitnessed fall from the mother's bed. He accepts that he was wrong to leave B unattended on 22 February and he regrets his failure to prevent this accident from happening.

30. The Children's Guardian held no specific position as to whether the injuries were caused by a fall from the bed or by another accident not disclosed by P or whether, as the local authority sought, they were inflicted by P.

31. Miss Honeyman has, on behalf of the children, explored the factual matters contained in both the medical and the lay evidence on the children's behalf. Through Miss Honeyman, her counsel, the Guardian submitted that if I were to find that B fell from the bed in an accidental way, that fall was foreseeable and avoidable and P neglected to take simple, common-sense precautions to prevent injury to B.

32. As to the threshold criteria, the Guardian submitted that the mother exposed both children to the risk of significant harm by leaving them in P's care for 54 hours in the three days immediately prior to 22 February, and that she exposed B to significant physical harm on that day by leaving P in sole charge of B, without agreeing this with P and without giving instructions so that B would be kept safe.

33. The Guardian submitted that the mother knew or should have known that P was too inexperienced or immature to be left looking after either or both children. It was the Guardian's submission that B's mother left P with far too much responsibility for childcare at his young age and without sufficient guidance, and, overall, the children were exposed to a volatile relationship and were at risk of emotional harm by witnessing their mother's domestic violence towards P.

The Law

34. The advocates are agreed as to the law which the court has to consider in cases such as these and I insert here the advocates' agreed summary of the current law

The analysis of Baker J in the case of Re JS (A Minor) [2012] EWHC 1370, is the correct approach to a fact finding hearing. That approach was incorporated by HHJ Corbett in the case of LB Hounslow v M and F [2015] EWFC B214 (17 December 2015):

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

2. Secondly, the standard of proof is the balance of probabilities [ Re B] [2008] UKHL 35. If the local authority proves on the balance of probabilities that J has sustained non-accidental injuries inflicted by one of his parents, this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that J was injured by one of his parents, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B: "If a legal rule requires facts to be proved (a 'fact in issue') the judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are nought and one".

3. Third, findings of fact in these cases must be based on 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 properly be drawn from the evidence and not on suspicion or speculation".

4. Fourthly, when considering cases of suspected child abuse, the court 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 Butler-Sloss 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 to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof".

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

6. Sixth, in assessing the expert evidence I bear in mind that cases involving an allegation of shaking involve 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 King J in Re S [2009] EWHC 2115 Fam).

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

8. 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".

9. Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam:

"There has to be factored into every case which concerns a disputed 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".

The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

10. Finally, when seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator -” see North Yorkshire County Council v SA [2003] 2 FLR, 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable, where possible, for the 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 the judge to find on the balance of probabilities, for example, that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so -” see R D (Children) [2009] 2 FLR 668, Re B (Children) [2010] 1 FLR 1161".

In the context of the requirements of the Children Act 1989, section 31(2), the threshold criteria is not concerned with intent or blame but rather with an objective standard of care. Ryder LJ in the case of Re S (A Child) [2014] 1 FLR 1421 highlighted that term 'non-accidental' is a catch-all for everything which is not an accident. It is also a tautology the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction'. [19]. In this case, 'the medical expert had left open the possibility of an accidental cause, albeit it was unlikely and in that circumstance anything between accident and deliberate, infliction must also have been possible'. [23]. The Court of Appeal in Re S made clear the bounds of fact finding hearings are confined to discrete (medical) issues and not for matters appropriate for trial in the social and welfare context [32].

It is the task of the court is to decide on all of the evidence before it and it can depart from the view of expert evidence provided sound reasons are given for doing so ( Re B (Care: Expert Witnesses) [1996] 1 FLR 667 at 670 per Ward LJ).

Determining the facts is a difficult task which must be performed without prejudice or pre conceived ideas. The court is guided by many things including the inherent probabilities, any contemporaneous records, any circumstantial evidence tending to support one account rather than the other and the overall impression of the characters and motivations of the witnesses. (Re B per Baroness Hale)

As Bracewell J said in Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FIR 200: '[24] ...Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened'.

When confronted with cases which turn almost exclusively upon expert medical evidence it is helpful to have in mind the comments of Butler-Sloss P in Re LU & LB 2FLR 263 when the Court of Appeal chose to provide guidelines in particular in consequence of the case of R v Cannings [2004] EWCA Crim 1

a. The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

b. Recurrence is not in itself probative.

c. Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

d. The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

e. 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 will throw light into corners that are at present dark.

In Re W (Children) [2009] EWCA Civ 59 Wilson LJ said: "The moral which I draw from this case and will never forget is that an hypothesis in relation to the causation of a child's injuries must not be dismissed only because such causation would be highly unusual..."

It is very important to guard against a reversal of the burden of proof as occurred in Re M [2012] EWCA Civ 1580 where the Judge had found that absent a parental explanation there was no satisfactory benign explanation ergo there must be a malevolent explanation. Ward LJ stated that this conclusion did not necessarily follow unless wrongly the burden of proof had been reversed.

Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance. Re BR (Proof of Facts) [2015] EWFC 41; Jackson J

"It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof... Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge".

Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. Jackson J: Re BR (Proof of Facts) [2015] EWFC 41

"It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities".

Although the head injury cases might to the casual observer suggest that all children fit in a particular mould and can be expected to react in the same way to a given trauma or set of natural circumstances,, that is simply not so . Charles J in Lancashire v D & E in the same manner as Mostyn J in Lancashire v R [2013] EWHC 3064 (Fam) drew up a list of anomalous features particular to the case before them which encouraged them away from the Local Authority's assertion that in each of those cases the cause of the child's injuries had a non-accidental etiology.

The assessment of credibility generally involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance. Lancashire v R [2013] EWHC 3064 (Fam). Propensity evidence must be treated with great care in family law ( Re CB & JB (Care proceedings: Guidelines) [1998] 2 FLR 211). Character is admissible only in relation to credit.

When considering the LA's Threshold allegations the court must apply the principles emphasised by the President in Re A (A Child) [2015] EWFC 11 and by the Court of Appeal in Re J [2015] EWCA Civ 222. In short;

-the local authority must first establish the facts of each and every allegation, including how the parenting has fallen below the standard of a reasonable parent;