England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT EAST LONDON

		11 Westferry Circus, London, E14 4HD
		18 March 2016

HER HONOUR JUDGE CAROL ATKINSON :

1. On 10^th July last year I delivered a Judgment at the conclusion of a fact finding hearing concerning R, a little boy who was then 9 months old. I have published that Judgment - Re R (Fact Finding), [2015] EWFC B95 (15 July 2015). It is essential reading for a full understanding of the facts of this case and the reasons for the findings that I made. I have no intention of repeating that detail here.
2. In summary I found that:

i) R had suffered 11 fractures in all four limbs;

ii) Those injuries were deliberately inflicted and more likely than not in at least two separate episodes;

iii) The injuries were inflicted whilst he was in the care of one or both of his parents;

iv) There was no evidence which enabled me to determine which of them had inflicted the injuries and so I was left having to find that it was one or other of them.

3. Shortly after the decision in July, R was moved from foster care into the care of his maternal grandparents. He has remained in their care ever since. He is happy and settled and fortunately has been undisturbed by the length that these proceedings have taken to come to a conclusion.
4. Just prior to the commencement of the final hearing in November 2015 the father, apparently without notice to anyone, indicated that he had some important information to impart. There then began a process, the detail of which I will rehearse in due course, at the conclusion of which he purported to describe how he had squeezed R's limbs on two separate occasions in a way which he considered might well explain his injuries. The experts in the case have confirmed that if he did what he has described in those accounts this would be capable of explaining the injuries to R.
5. Just prior to this hearing the father retracted that account. He replaced it with another explanation for the injuries suffered by his son. The most recent account has not been put to the experts but everyone is agreed that it does not explain the injuries.
6. So, the issues for me to determine at the conclusion of this hearing are:

i) Whether I should review and alter my original findings of fact;

ii) What final orders I should make?

Decision

7. At the conclusion of the evidence in this case I can confirm that I am quite satisfied that I must amend my findings of fact. I am now able to identify the perpetrator of these injuries as the father. So far as the mother is concerned, she must take responsibility as someone who did or should have known that her child was in pain following the first of the two assaults but did not act and therefore failed to ensure that he received treatment and failed to protect him from harm.
8. Once I had delivered my decision on the fact finding the parties resolved the issue of final orders between themselves, everyone supporting the continued placement of R with his maternal grandparents. This outcome I firmly endorse as being in R's best interests.
9. Let me explain how I have come to these conclusions. First I need to summarise the new and changing accounts.

The new and changing accounts

10. The parents each filed statements in the weeks following the Judgment. Their positions were almost identical – that whilst they respected and accepted my decision, they each maintained that they would themselves never do anything to harm their son. By that means they acknowledged that it must have been the other parent who caused him harm. They repeated that they had separated, had no or minimal contact with each other and had no intention of resuming their relationship. Finally, neither of them had any further information to give regarding the events leading to the injuries. They each separately sought the return of R to their care; the mother suggested living with the grandparents, the father stated he could manage alone.
11. The Think Family Service had carried out a parenting assessment of these parents prior to the last hearing concluding that their skills as parents were good enough. Following the fact finding they were instructed to carry out a risk assessment. In keeping with the position set out in their statements, both parents denied they had harmed R and were forced to conclude that it must have been the other. The assessor concluded that neither parent was able to take any responsibility for the harm suffered by R. With no further details the assessor commented that she was left unable to identify the trigger for the abusive behaviour which led to the injuries. Think Family concluded that the parents continued to present separately and together as high risk to R.

November 2015 hearing

12. The final hearing was listed 4^th-6^th November 2015. The father filed his "final" statement dated 3^rd November. It repeated his post-findings position that he had "never deliberately hurt" his son, he could "only imagine that R was harmed whilst in the sole care of" his mother. It indicated that he no longer put himself forward as a carer for R in the light of the risk assessment and supported the placement with the grandparents continuing. By this time the mother had taken the same position and no longer put herself forward to care for R. The hearing looked to be the last and indeed I was invited to reduce the time estimate as a result.
13. On the morning of 4^th November I was informed that the father had information that the court needed to hear about the circumstances surrounding R's injuries. Something, I was told, that he had never revealed before. After this the father produced a series of written statements setting out possible explanations for the injuries suffered by R.

Account (1) given on 4^th November

14. At court on the first day of the hearing I insisted on seeing an account of at least the gist of the instructions being given by the father before being prepared to consider an adjournment. A signed witness statement was prepared by his Counsel at court.
15. In that statement the father says that he has been suffering undiagnosed depression since the death of his mother in 2012, and that he was "scared of saying this before as I didn't want to go to prison. I didn't do anything deliberately to hurt R but there are things/events that have happened which I haven't been honest about". He then describes the following incidents:

i) An occasion before moving out of the grandparents when he accidentally sat on R who was on the bed. He said "I heard a crush/crack noise like wood snapping". He sat on R's upper legs. Crucially he said that R wasn't crying and was quiet and still.

ii) An occasion when co-sleeping with R and he woke up "on top of him";

iii) Two occasions when he rolled on to him;

iv) The bruise on the foot was caused when he was bathing R and his foot hit the bath tap – he didn't cry;

v) He also mentioned that he had wrapped R very tightly in blankets, possibly been too rough when changing him and "maybe" forced his limbs when changing him.

16. On receipt of that account I discounted the "explanations" given by the father as being insufficient to found a basis for re-opening my fact finding. We were told, however, that there was "more to come".

Account (2) given the following day

17. The father then filed a second signed statement. In that statement he sets out that following the first day of the hearing detailed above, he spoke to his solicitor on the telephone overnight and confirmed that the information that he had given to Counsel was accurate and he had some additional details to give. Those additional details amount to another account – "Account (2)". He goes on to describe two separate incidents as follows:

"one day during the first week of moving in to the flat R wouldn't stop crying. He was in his Moses basket in the front room and [the mother] was in the kitchen. I was in the front room with R. I couldn't cope with the crying. I looked at R and I told him "stop crying. I can't handle the stress". He looked at me but wouldn't stop crying. I squeezed both of his legs together and pushed them down quite forcibly into the Moses basket and I believe I heard a crack. I then squashed his arms down in to the Moses basket. I picked him up by both of his arms so he was hanging by his arms for a few seconds and he cried even more and I then I put him back in the Moses basket…….. I broke down crying and ran to bathroom…[the mother] was asking if I was ok …. I said needed toilet and I stayed there until I calmed down…"

"On another day R was sitting in his bouncy chair and was crying. I was in the living room with him and [the mother] was asleep in bed. I was eating breakfast and he continued to cry. I went up to R and I squeezed his arms and pushed them into the bouncy chair and I then did the same with his legs. He carried on whinging and I grabbed his foot and bent this really hard which I believe caused the swelling and the bruise identified"

18. The father confirms in this statement that he did not go to the hospital because "couldn't face it". He then apologised to R, the mother and her parents for the anxiety he had caused them.

29^th November statement

19. The father filed a further statement on 29^th November which maintains this account and gives additional detail. Specifically, he dates the first incident to 19^th Dec at 10am adding "I was tired and I remember I had cared for R throughout the night before" – and the second incident to 28^th Dec mid afternoon 3-4pm "the above were the only two occasions when I lost control with R and I am deeply ashamed as to my actions…." He also says that it was he who sought to persuade the mother not to go to hospital, contrary to his earlier assertions.
20. In this statement he also reveals that it was a shock when the mother was pregnant, that he had advocated a termination and did not really feel ready to have a child – "R was much harder work than I ever imagined. When R cried I couldn't settle him and I felt terrible that I had to rely on [the mother] to meet his needs. I accept that I became upset and frustrated when he cried and I found it hard to cope with my feelings at these times. It was a complete shock that I was capable of hurting my baby….I should not have said at any time that [the mother] may have caused R's injuries because she did not…I have not been put under any pressure by anyone to give this evidence…I am filled with remorse….."
21. A further statement was filed by the father to deal with the phone contact details. No further detail of account was given in that statement, which was dated 10^th December. Likewise no further information or account was detailed in a statement dated 11^th January 2016 which was filed by the father to deal with a lost phone.

Extensive contact between the parents

22. I pause here to mention that following the fact finding hearing it was discovered that contrary to the assertions made by the parents that they had separated and had no contact they had in fact been in extensive contact by telephone and text in the weeks before and the months after the hearing. At least 53 calls up to 5^th November - 939 mins of calls 15 Oct to 28 Oct. Indeed, that contact continued right up to this hearing. The evidence is voluminous on this.

The mother's evidence

23. The mother's statements which followed the father's "admissions" expressed shock at the revelations but added little by way of additional information.
24. Just prior to this hearing she filed a final statement in which she accepts that she has been contacting father and asking him about the injuries. She reports that this prompted him to say that Account (2) is a lie. He said it because he felt he deserved to suffer. The truth, he then tells her, is that he fell down the stairs with R. She made no mention of this conversation in her statement of 8^th Jan even though she had the conversation, she says, as long ago as Dec 2015. She concludes – " I do not believe this new information" " I want him out of my life but I can't seem to achieve that at this moment"

Account (3)

25. It was not until this account was filed by the mother that the father filed a final statement retracting his earlier accounts of deliberately inflicting harm on R.

"those statements were not true and I do not know why I said it as I could never deliberately harm R…."

26. In it he seeks to explain that he told the mother what he now says is the truth because she was"entitled to know the truth and also because she should have an opportunity to have contact with R outside of the contact centre" and he lied in his November statements because "I believed that if I said I had injured him…. he would go back to [the mother]"
27. The statement itself is short on detail about what he says did happen simply stating that he tripped at the top of the stairs and fell all the way down the flight of stairs landing on R. "I heard something which was a cracking sound…I immediately picked R up from the floor…he cried for 3 mins…" He acknowledges that this fall is unlikely to account for all of the injuries sustained by R and so seeks to explain the others as follows – "I may have caused these in being heavy handed with R in my general care of him."

Repetition of Account (2) to others

28. On 14^th Dec the father saw Dr Falkowski. He made no mention of this fall. He maintains the account given earlier and the psychiatrist notes that "he was tearful when he talked about injuring R" confirming that he found caring for R stressful. In the psychiatrist's assessment "he was not able to control his frustration when R was crying and injured him as a result…there is a risk that he may have difficulty controlling his emotions again in the future if he becomes severely stressed again". She also notes that "he had difficulty giving a clear history…had to go over the dates several times to clarify them…I am not convinced that he has fully disclosed what happened at the time and what his emotions were…"
29. On 6^th Jan and 20^th Jan when the father met with Karen Cotner no mention was made of this final account. Again the November account is actively maintained and supporting detail given about the context in which he failed to give this account, why he avoided attending the hospital etc. Indeed he simulates the action for Ms Cotner using a teddy bear – see para 27 E629. "I didn't do it on purpose. There was nothing else in the room to squeeze" – he says and repeats that he heard a snap. It is right that he confuses the two incidents saying that it was during the second incident that he dangled R by his arms rather than the first. Ms Cotner was not convinced he was giving a full account. There was also a denial by him that R showed distress which is contrary to the November statement and causes her particular concern. There is an argument that this is the beginnings of the father starting the row back from his November "confession".

Medical evidence

30. Account (1) and Account (2) have been considered by the consultant radiologist who was the expert in the original fact finding and also by a newly instructed paediatrician, Dr Croft. It will be convenient for me to set out their evidence about this account here.
31. Dr Watt sets out in his addendum report that for an explanation to be adequate it must fulfil the criteria for timing, mechanism, and force and it must identify a memorable incident of significant distress to the child. He reminds us that in this case such an incident should have occurred in the 3 weeks prior to 29^th December and involve "bending and/or twisting injuries to all of R's limbs on a minimum of two separate occasions."
32. Dr Watt considers that Account (1) is insufficiently detailed to provide an explanation for the injuries. I should add that these accounts (rolling over into R) are similar to accounts posited half heartedly by the mother at the first hearing and rejected as being insufficient. Dr Watt comments that whilst the force and mechanism described by the sitting on R may have been sufficient to cause an injury to the leg, the clinical response from R is lacking. In other words, had his leg been broken he would not have remained quiet. Dr Croft agrees that the absence of any distress discounts this explanation.
33. However, Dr Watt considers that Account (2) does provide two incidents which could in combination account for all of the fractures identified radiographically. Dr Croft agreed that the description given by the father of R's reaction during Account (2) fitted with the injuries.

Oral evidence

34. The mother gave evidence first, entirely because she raised through her Counsel, and for the first time in these proceedings, allegations that she had been the victim of domestic abuse at the hands of the father. She gave little detail until asked for it whilst being tested in cross examination by Ms Coleman. Then she recounted some instances. I am not invited to make findings, nor can I, given the scant detail and the late notice of such allegations. I observe that these allegations were in contrast to the exchanges in the various text and What's App conversations passing between her and the father. Those messages show a couple who are still very much a part of each other's lives; not necessarily a couple but still linked by the loss of their child and of their relationship whilst seemingly oblivious to the fact that one of them has seriously hurt R.
35. The mother, encouraged it would seem by the grandmother, revealed a series of What's App exchanges between herself and the father in the days leading up to this hearing. The father denies them saying that the mother has created them for this hearing. I simply do not accept that. In the first place, they are almost as damning for her as they are for him. Secondly, she did not reveal them, her mother did. It would have involved a considerable "double bluff" on her part to achieve that convoluted means of disclosure. Thirdly, the conversation does not read as if fabricated. For instance, there are mistakes which are rectified, as people do on What's App, by repeating the word. I doubt anyone fabricating a conversation would think of building that in.
36. The exchanges are damning for the mother because they demonstrate the extent to which she is still enmeshed in her relationship with a man that she must know has harmed their child. However, I also consider that the messages show her trying to get him to admit what he has done in a rather obvious way. Far too obvious for the father, who equally obviously avoids the subject. They do not show them colluding to mislead the court in my view.
37. The father was not present on the first day of this hearing and I was told that he would not be available until day 3. He was working. Accordingly, I issued a witness summons on that first day for him to attend on day 2, which he did. He maintained that he had always said that he would be in attendance on the second day. I do not think that is true because otherwise I am sure that I would have been told that there was no need to issue a witness summons. Whilst I appreciate that work is of importance to him I have to say that I found it curious indeed that he was so unconcerned that there was a need to explain himself to the court.
38. His evidence when it came was really rather unimpressive. By way of example, he had no explanation for how he had given an earlier account which had, co-incidentally, been one which fit the injuries or why he had done such a thing. He could not explain why he felt unable to tell anyone about the fall down the stairs until now. He said that he did not think that he would be believed and whilst that might have explained why he felt unable to give that account after Account (2), it did not explain why he was unable to give the account of the fall right at the beginning of the proceedings.
39. He was pressed for detail regarding the fall down the stairs and lest there should have been any doubt this part of his evidence only served to undermine the veracity of the account as a whole. He began by giving the impression in chief that he had dropped R in the fall. Yet when he was cross examined it became apparent that he was saying that he had held onto him in front of his chest as he tumbled head over heels down a flight of at least 10 stairs, landing on his forearms with the baby clutched to his chest. Quite apart from the fact that this is a most unnatural way of holding a child, this account means that the full weight of his body would have landed on his forearms. Yet he records no injuries to his arms; only injuries to his legs. He had a sprained ankle, he said, and it took him a long time to walk to the shop after. There is no evidence of him exhibiting any sign of injuries by anyone else during that period.
40. He had to accept that such a mechanism failed to describe the application of force to any of the baby's limbs – rather the "crush" would have been to his body. There were no rotational forces described in this event. This account beggared belief. I am quite satisfied that it has been made up; indeed the impression was that he was still making up the detail in the witness box. For instance, he made an error in his evidence towards the end when he referred to "picking" R up from the floor. I reminded him that his evidence was that he had never actually dropped him but kept him in his grasp all the way down. He corrected himself saying – what I meant was when I got up off the floor "with him". He had forgotten that he refers to "picking R up off the floor" however in his written statement. The father could not actually give a full account of this because in my judgment it did not happen. This account is a lie.
41. As already set out I consider that the father has lied about the What's App messages produced by the mother and for the sake of completeness he has lied about referring to himself as the mother's boyfriend in a phone conversation with a cab driver. The phone number used by the person describing themselves as her boyfriend was, he accepted, his work phone. I do not accept that another work colleague would phone the cab company for her using his phone and saying that.

Reviewing findings of fact: the law

42. I have reminded myself of the guidance given by the President on the proper approach to the review of findings of fact in care proceedings in the case Re ZZ and Others [2014] EWFC 9.
43. In that case the President broadly approved the three stage approach set out by Charles J in Birmingham v H and Others (2005) EWHC 2885. The three stages are these:

i) The court considers whether it will permit any reconsideration or review of, or challenge to, the earlier finding. The court does not get beyond this stage unless there is some real reason to believe that the earlier findings require revisiting. As the President observed in Re ZZ (supra) "Mere speculation and hope are not enough. There must be solid grounds for challenge. But for my part I would be disinclined to set the test any higher."

ii) The second stage involves a consideration of the extent of the investigations and evidence concerning the review;

iii) The third stage is the hearing of the review itself. What arises of significance in relation to that third stage is a reminder that the legal burden of proof with regard to establishing the threshold remains at all times with the LA. I do not intend to re-direct myself on that issue. Reference can and should be made to what I set out in the first fact finding in this matter. However, there is an evidential burden on those who seek to displace an earlier finding. As the President explained in Re ZZ "in that sense they have to "make the running"". I have to consider the fresh evidence alongside the earlier material before coming to a conclusion in the light of the totality of the material before the court.

Discussion and analysis: reviewing the findings of fact

44. I insisted that the father put his new information into written form at the hearing in November in order that I could assess whether there was any solid ground for challenging my original findings; some real reason to believe that the earlier findings required revisiting. The first statement put together at court did not provide any solid ground to my mind. The accounts given then were so obviously not capable of providing any explanation of these injuries. As it happens that has been confirmed in the evidence of Dr Watt.
45. However, the second statement did raise a potential explanation and given the earlier absence of any information from the parents it did provide a sufficient basis to warrant investigation and a move into the second stage. That investigation has involved further evidence from Dr Watt and the instruction of Dr Croft, both of whom confirm that Account (2) is capable of providing a complete explanation for these injuries.
46. This hearing then has seen the third stage of the process. I bear in mind that the mother shoulders the evidential burden – she has to make the running. It seems to me that she, with the assistance of the father through his differing accounts, one of which provides a comprehensive explanation of what happened to R, has discharged that evidential burden such that I must now evaluate all of the evidence – the fresh accounts and medical evidence -alongside the earlier accounts and medical evidence.

Evaluation of the evidence

47. Of all of the new accounts given by the father the detailed account finally offered up in Account (2) and maintained as true until the beginning of this hearing is by far the most compelling account. It is chilling in its detail. It contextualises the father's behaviour describing his frustration at his inability to calm his child. It describes his emotions in a way which fits with what was going on and gives a compelling description of R's reaction.
48. Account(2) was maintained for the three months leading up to this final hearing and repeated to other professionals. When told to the psychiatrist the account was accompanied with appropriate emotion.
49. I appreciate that all the detail was not always present in each re-telling. For instance the details regarding R crying were absent when repeated to Ms Cotner but I am untroubled by that. There is no evidence to suggest that this was because it was being made up. Indeed the evidence suggests the father's increasing tendency to minimise that pain at the same time as distancing himself from his involvement in inflicting it. It is just as likely, in my Judgment, that the father became increasingly reluctant to describe R's true reaction as that would involve a direct acknowledgement of the pain that he had inflicted.
50. The father gives no plausible explanation of how he came to give such a detailed and accurate false account, if that is what it was, or why he maintained it for so long. He told me that he gave that account in a panic in order to try and row the mother out and right a wrong. Yet this account was not delivered in a panic. It took almost 4 months to emerge after the fact finding when he was actively being invited to offer up more information. It was not all blurted out during the day of 4^th, the full detail coming overnight to his solicitor once he had started the process of admitting that there was something more to tell.
51. Why maintain this account for another 3 months? He knew within a fairly short space of time that so far as the LA was concerned it made no difference to its recommendations. He tells me that he thought the fall would not be believed. As I set out above, that does not explain why he did not disclose the fall at the beginning when there is no obvious reason why he would consider it would not have been believed.
52. The LA and the Guardian are suspicious of what the mother knows of all of this but there is no evidence that Account (2) was a result of collusion between the parents. The manner in which the information emerged from the father did not allow this – even in spite of their telephone contact around the time of the November hearing. If the mother was party to this fabrication why retract it and having retracted it, leaving her exposed to blame again, why not reveal her role in the falsehood?
53. Account (2) is powerfully supported by the medical evidence. How so? Father did not suggest that he had taken the time to research and fit his account to the medical evidence. So, to find that it was untrue would involve finding that the father had delivered a hurried false explanation which just happened to accurately describe the correct mechanisms for a fairly unusual set of injuries – spread between 4 limbs. That is highly unlikely in my view. It is more likely that Account (2) fits the medical evidence because it is what happened.
54. Finally, the oral account given of the fall was frankly absurd and completely unbelievable. As I have set out already the father gave the clear impression that he was making up the detail from the witness box. So unprepared was he to give any credible detail of that account that I wondered whether he ever intended to come to court to give that evidence before he received my witness summons.
55. Very helpfully in her case summary, Ms Coleman set out my findings in summary. There are certain of my findings which stand unchallenged. In the first place the conclusions to be drawn from the medical evidence that I set out in the judgment at para 42 remain. What is open to review on the evidence that I have heard is broadly:

i) Whether the fractures were deliberately inflicted, as I previously found at para 75 of the earlier Judgment;

ii) Whether I am still unable to identify a perpetrator so far as the fractures are concerned, as set out in para 83.

iii) Whether there are any other findings to be made regarding the bruises.

Deliberate or accidental

56. I am quite clear, having evaluated the evidence here that these fractures were deliberately inflicted. I have completely rejected the father's final account of accident and so all findings in paragraph 75 stand. Of course with regard to the calling for medical treatment for R (para 75 (vii)) it would seem that it was the father, on his own admission who sought to dissuade the mother from seeking medical attention but she still has to face the fact that R was very obviously unwell and she did not seek treatment.

Perpetrator

57. It was argued on behalf of the father that he has presented so many different accounts to the court that if I reject Account (3), I cannot possibly be satisfied that Account (2) is the truthful one. I disagree. For the reasons that I have set out in my analysis of the evidence above, I am now completely satisfied that I am able to identify the perpetrator of these injuries: it is the father.
58. I am not entirely satisfied that the father is accurate in his dating of the first assault. He states that it was 19^th December at 10am and yet we know that R was admitted to A & E in respect of the blood in his nappy the next day (20^th). He was kept there whilst they took blood tests. Whilst Dr Croft does not record a full examination at that point he does set out that R was not found to have blood in his nappy at hospital. That rather suggests that they took off his nappy and handled his legs. If the first assault had taken place he would have had three fractures to his right leg at this point. Dr Croft maintains that there would likely be some sign of the fractures or discomfort on handling. Either the father has the date wrong or the signs identified by Dr Croft as certainly following the assault were not present. Given the number of fractures here I consider it more likely that the father has the date wrong. This apparent discrepancy does not, however, dissuade me from my conclusions that the father is the perpetrator. I have no reason to consider that his dating of the second assault is anything other than accurate.
59. The LA and Guardian both seek to argue that the mother should remain in the pool of perpetrators. I have challenged both Ms Coleman and Ms Donn to point to the evidence which would permit a finding that there is a "real possibility" that she continues to be a perpetrator. They too sought to rely upon the fact that none of father's accounts could be accepted given his frequent changes. I have dealt with that already. In addition they cite the fact that the mother has not been open and honest herself in her dealings with the LA, even after the father's revelations in November 2015. For example her dishonesty with regard to her ongoing contact and relationship with the father and her failure to reveal the December conversation regarding the fall until this hearing.
60. This is a classic "Lucas" point. The mere fact that this mother has not been honest about those matters does not mean that she is failing to tell the truth when she says that she did not harm R. More importantly, in circumstances in which I have found the father to be the person who inflicted these injuries, how can I then go on to find that she nevertheless remains in the pool of perpetrators? That would surely be perverse.

The bruising

61. In my earlier Judgment I remarked that with the exception of the bruise above the eyelid there was no account given of anything which could explain how these bruises have occurred. The father has now given an account of how the bruise to the foot occurred. Two accounts in fact.
62. In Account (1) he said that R hurt his foot on a bath tap and in Account (2) he described squeezing R's foot as part of the second assault. He has not suggested that it was sustained in any fall. He was not asked about this in his oral evidence. I assume that as he has sought to resile from Account (2) completely that applies also to the explanation regarding the foot bruise. I consider the Account (2) explanation to be far more likely and so I find that bruise was caused deliberately by the father in the manner that he has described.
63. In my previous Judgment I accepted the mother's account regarding the bruise above the eyelid. Dr Croft questions that for three reasons. First there are rarely bruises on a baby. I agree and set that out in my earlier Judgment.
64. Secondly, he considers that the "head butt" is not a credible explanation because a baby of that age would not have the "motive" power. Self -evidently, it cannot be the case that R intentionally moved his head to clash with his mother's. That is not, in my view, what she was describing. Perhaps a better description of what she described was a "clash of heads". I note that the admitting paediatrician records that R did not have control over his head and I note also that she does not question the explanation that was given by the mother from the outset, remarking instead that the other injuries remained without explanation. Dr Croft's third reason is that this is another bruise on a child who has multiple unexplained injuries.
65. I am still unable to be satisfied that it is more likely than not that this is a deliberately inflicted injury. It might well be but I cannot be satisfied, even on the balance of probabilities. For me it is of significance that in circumstances in which this mother was unable to offer any detail about what happened to R she offers the "head butt" explanation immediately. I consider it likely therefore that this is true. R had a "floppy" head. Dr Croft does not explain how his head could not have fallen forward when not properly supported and struck his mother in the way that babies do. Dr Croft does not consider whether, following a clash of heads, a bruise above the eyelid would be likely. Accordingly, my findings with regard to this bruise remain unchanged.
66. The situation with regard to the two parallel bruises on R's cheek remains the same. Like the foot bruise, this is a bruise which cannot have been inflicted through normal handling. There is no further evidence and so my finding that it was deliberately inflicted remains. As for perpetrator, given my findings identifying father as perpetrator of all other injuries it is more likely than not that he is the perpetrator of this injury too.

The position of the mother: collusion, knowledge and failure to protect

67. In the previous Judgment I did not go on to consider the extent of the knowledge of the non-perpetrator or indeed the issue of failure to protect, given that they were each still in the frame as perpetrator.
68. The LA has stepped away from the suggestion that this mother "colluded" with the father in concealing the fact that he was a perpetrator. That is, in my view, entirely appropriate. Although she has clearly colluded with him to conceal their continuing relationship, there is absolutely no evidence that she has colluded to conceal the fact that he had deliberately inflicted the injuries upon R.
69. There is, however, a good deal of evidence regarding what she is likely to have known or should have known about what was going on at the time and that comes from Dr Croft. Dr Croft's evidence on this is not challenged. What he says can be summarised as follows:

i) After each of these assaults R would have cried immediately and would have continued to be "fussy" for more than half an hour;

ii) It is likely that there would be signs of a fracture such as swelling or redness, or loss of function - of the sort seen on 29^th Dec after the second assault.

iii) In addition some signs of pain or discomfort would have been apparent for a day or two on handling.

70. I remind myself that the group of fractures identified, which are the ones which are likely to have followed the first assault were 3 fractures to the lower right leg and the 2 fractures to the right arm. The second group were the 3 fractures to the lower left leg discovered on admission, a fracture to the upper right leg and 2 fractures to the left arm. None of the fractures were fully displaced. They were a combination of metaphyseal fractures which require a pulling and twisting mechanism and transverse fractures caused by bending and snapping or by a blow. The majority were transverse - snapping.
71. The mother's evidence on R's presentation around the time of the first assault was that she did not notice any fussy or grizzly behaviour around 19^th/ 20^th December. She only remembered R being "out of sorts" on return from the Christmas festivities on Boxing Day. To the police she described R crying as if in pain at that time but she rowed back from that in her oral evidence.
72. It seems to me that on the strength of the unchallenged evidence of Dr Croft I am driven to conclude that following the first assault which was every bit as significant as the second, it is likely that R would have been showing some signs at least of discomfort on handling. She was the person handling him the most at this time. I do not find that she knew or should have known why he was out of sorts. There is absolutely no reason why she would or should have recognised that his behaviour was as a result of sustaining fractures. That applies to the first and second event.
73. However, on seeing the mark on his foot and then the swelling to his leg she should have known that there was something serious amiss and that he needed medical attention immediately. We know now that she was dissuaded from this by the father. This is not, in my view, indicative of her collusion with him to conceal injuries but rather it demonstrates very clearly her tendency to follow his lead – even in matters concerning the health and welfare of her son. It is part and parcel of her enmeshed and dependant relationship with him. A relationship which continued, at the very least, until this hearing.
74. What is most troubling about the mother has been her inability to prioritise R's welfare over her relationship with the father. Once it was established that R had suffered such significant injuries she must have known that it was the father who caused them. Of course, many parents continue living in hope that an alternative accidental cause will be identified. All hopes of that should have ended with my earlier Judgment and if they did not end there they should have ended the moment that the father described how he had caused the injuries. And yet she continued in a relationship with him which sees her on occasion being abusive and challenging of him but more often being playful, flirtatious, supportive of him and relying on him to support her. They continue to share the agony of the past events seemingly without reference to the fact that the reason they are separated from each other and R is because the father seriously assaulted their child. The focus is all about the dreadful situation that has befallen them and very little if anything about how R has suffered.
75. I make no findings in respect of domestic abuse.

Welfare decision

76. The threshold is crossed and R's welfare is now paramount in my decision making; I must make the order which is in his best interests. I am guided in my assessment of his best interests by the welfare checklist to which I will shortly refer. Any order I make must be the least interventionist – so if no order is needed I should not make one and if I can manage the outcomes through less intervention and control that is what I should do.
77. I must bear in mind that delay in making decisions is to be avoided as it is generally contrary to the interests of the child and the timetable for the child must be examined with care at all stages of these proceedings. These proceedings have gone on far too long. I have taken some time to consider why. In the first place we were blown slightly off course by the spectre of some genetic explanation for the injuries. It was that issue, and the possibility of an organic cause, I suspect, that informed the decision made by Judge Mitchell to list the case for a split hearing. However once it became clear that an organic explanation was not likely and a delay arose because of the filing of experts reports the necessity for a split hearing disappeared. The case should then have been listed for a final hearing encompassing all issues. By then the case was allocated to me, and it is my fault that it was not. I am clear now that it was unnecessary to have a split hearing in this case once the issue on threshold became the identification of the likely perpetrator. A further three months has been added by the father's further disclosures. The only good news is that this has not had a direct impact upon R.
78. I am able to make a whole raft of orders in relation to R, but in this case there is now agreement that R should remain where he is – with his maternal grandparents. The legal framework proposed to secure that placement is a Special Guardianship Order. In spite of the general agreement, I must nevertheless approve the making of this order. I confirm that I do and I can explain why briefly under the headings of the welfare checklist.

Age, sex and circumstances

79. R is now 16 months old. He is happy and settled in his placement with his grandparents where he has been since August 2015. I note from the Guardian's report that he continues to suffer the physical consequences of the injuries that he has sustained in that he has one leg longer than the other due to the healing bones. She states that the prognosis is unknown.

Needs

80. R has the needs of any other toddler. He needs a stable and permanent home in which he can be safe from injury or any other future harm. He needs to be loved, nurtured, stimulated and free to reach his potential. He needs carers who will prioritise him and ensure that he has all necessary access to health and education.

Wishes and feelings

81. R is too young to express his wishes and feelings. I consider that most children, if able to understand, would express a wish to be with their parents or natural family. I am sure that R loves his parents but he is unable to understand the implications of the findings that I make with regard to their ability to keep him safe from harm.

Capability of his mother, father and grandparents to care for him

82. Whilst it is commendable that the parents have each indicated their agreement that R should remain living with his grandparents, the reason that I endorse that outcome on his behalf is not because they consent but rather because they are unable to offer him good enough care. I do not intend to set out in full the conclusions of the risk assessors, Think Family but I must summarise why that is.

Father

83. The father has been identified by Dr Falkowski as someone who has difficulty in controlling his emotions, particularly when stressed. She considered that this could affect his parenting. The father was referred to CBT to help him deal with his emotions but he has failed to take up that referral suggesting, as Dr Falkowski observes, that he has limited insight into his problem. Of course the suggestion of CBT was made at a time when the father had admitted harming R. He has now retreated from that position and it is difficult to see him seeking help for a problem that he does not accept that he has. All the time he does not seek help, he poses a risk of significant harm to a child, it seems to me.
84. That is borne out by the Think Family risk assessment. Ms Cotner considered the father to be pre-occupied with how the injuries to R affect him and his life as opposed to how they have affected R – something that I have observed in both parents myself. Think Family considered that he posed a serious risk of significant harm to R or any other child in his care.
85. The Guardian comments that the Think Family assessment is thorough and reflective and she agrees with the conclusions – as do I.

The mother

86. The mother did not cause these injuries but she must take responsibility for her own failures. As I have already observed, what is more troubling about her is her continued involvement and dependence upon the person who she knew had harmed their child.
87. Think Family have expressed concern that she too has been pre-occupied with the impact of these events upon her, rather than R, and that she almost minimises the impact on him. The Guardian notes in her report that the mother's continuing exchanges with the father "demonstrate a worrying immaturity and I would be highly concerned at….. her ability to prioritise a child above her interpersonal relationships". I agree and consider that without addressing these issues she too is unable to provide a safe home for her son.

The maternal grandparents

88. The maternal grandparents have provided a high standard of care to R since his placement with them in August last. They have, in my assessment, had to tread a very difficult line between providing support for the mother whilst at the same time making it clear that they have an over-riding commitment to the care of their grandson. They have done that sensitively and expertly and they have never wavered through all of the twists and turns that this case has thrown up. The road ahead for them as a family is still fraught with potential difficulties but I have every faith that they will negotiate them with only R's interests at heart.

Harm suffered

89. I have dealt with this already.

Effect on R of any change

90. R is happy and settled in his grandparent's home. To change that now would be disruptive to him.

Placement and order securing placement

91. The balance then falls overwhelmingly in favour of a placement with the grandparents. The most appropriate order will be a Special Guardianship Order which will empower them with parental responsibility that trumps that of the parents.

Contact

92. I approve the arrangements that have been rehearsed and agreed between the parties during the hearing. The father will take up supervised contact once a month subject always to his ability to maintain a commitment to that level of contact. Should he fail to maintain that commitment then it will be reduced to twice a year.
93. In relation to the mother there was a slight disagreement with regard to frequency. The Guardian and LA were keen for me to endorse a minimum. They maintain that once a month is the base line to which should be added the inevitable family gatherings which probably double those visits making a pattern of roughly once a fortnight but there should be no more than that. The Guardian highlighted the potential for stress in the family by the more frequent appearance of the mother and the need for R to settle in. The mother is supported by the grandparents in her request for the freedom to visit weekly in a more natural way.
94. I agree with the grandparents. The mother is a part of this family. It would be entirely unnatural to restrict her access to her mother and siblings simply because of R's presence in the home. It seems to me that this would be more likely to lead to tension and stress. R does not need to settle in. Happily that has happened and he has no doubts, even now, about who his primary carers are.
95. I trust these grandparents to be the arbiters of frequency and I chose not to impose a maximum upon them or even express a view. They understand, I know, that to have the mother in their home too frequently risks the boundaries being blurred around who is R's primary carer. On the other hand, they need to be able to see their daughter as do their other children. They will know when it is too much and I have every faith that they will then act to restrict it.