England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT SITTING IN CHELMSFORD
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF JB

		7th March 2016

1. This judgment follows an 8 day fact finding hearing within public law care proceedings which was listed at the instance of the local authority to determine -among other findings sought by the local authority - whether a young child, JB suffered non-accidental injury in December 2014 and/or in August 2015. If I find that JB suffered injuries which cannot be explained as accidental in origin –and it is of note that it is not put forward as a positive case by any possible perpetrator that there was any specific incident which was the direct cause of the injuries suffered by JB -I am invited by the local authority to make findings as to the likely perpetrator or perpetrators of the alleged harm suffered by this child in order to enable the local authority to progress the case and to ensure that any future placement for JB is safe for the remainder of his minority.
2. JB is the only child of JR ("the mother"). His father is JC ("the father") who was represented throughout the fact finding hearing but is not in the pool of perpetrators for having caused any harm or injury to his son on the basis that at the time JB sustained injury he was having no contact to his son. At the time of JB's admission to hospital on two separate occasions in December 2014 and August 2015, the mother was in a relationship with SB which had begun in June 2014. Although they were not living together, it is clear that the mother and SB had an intimate relationship which meant that JB came into frequent contact with SB and led to SB playing a role in the overall care and supervision of JB prior to and at the time of his admissions to hospital. In those circumstances, SB was joined as an intervener within the public law proceedings - for the purposes of the fact finding hearing only - and was legally represented throughout the hearing.
3. As the hearing progressed and at the request of JB's guardian following the emergence of new evidence in the case, I took the unusual step of joining BF and VF as Second Interveners to the proceedings on the grounds (a) that the local authority (in an amended schedule of proposed findings) specifically sought a finding from the court that the injuries caused to the child in December 2014 and in August 2015 had been non-accidental and (b) that BF and VF –who had believed at the time of JB's first hospital admission that they were JB's paternal grandparents- had been involved in caring for JB not only in the period prior to his first admission to hospital on 20^th December 2014 but also after his discharge from hospital and in the intervening period prior to JB's re-admission to hospital on 21^st December 2014. BF and VF were offered and accepted legal representation (paid for by the local authority) and having received a bundle of relevant documents, they prepared a joint written statement and gave oral evidence at the fact finding hearing.
4. The local authority only became involved with this family when JB was admitted to hospital on 20^th December 2014 at the age of 17 months. Although some concern had been expressed by the health visitor in the early months of his life about the mother's lack of engagement with health services, no serious problems had been identified about the quality of the care given to JB by his mother following his birth.
5. On 20^th December 2014 JB's mother took him to hospital and explained that he was not weight bearing on his leg and appeared to be generally unwell. The hospital notes recorded the mother stating that JB had not suffered any injury or fall. No swelling or bruising to the ankle, thigh or foot was noted on examination and both his lower limbs were noted to be intact with "nil obvious deformity" and no bruising. He was found to be fully weight bearing on the right leg. His hip was xrayed (with no identifiable injury) and he was discharged home with a diagnosis of tonsillitis for which medication was prescribed.
6. On discharge from hospital on 20^th December 2014, he was placed by the mother in the care of BF and VF (with whom he had spent considerable periods of time in the period leading up to December 2014) as the mother was feeling tired and unwell. While he was in their care (for approximately 1.5 hrs on 20^th December 2014) BF and VF noticed that JB could not stand up without falling over again and that he was unable to push a toy trolley without collapsing to the ground. They advised the mother by telephone on 20^th December 2014 that JB had a problem with his legs and she then asked for him to be returned to her care. He was returned to his mother's care mid-afternoon on 20^th December 2014. The mother kept JB overnight with her at her flat and then took him back to the hospital at 4pm the next day (21^st December 2014) explaining on this second admission that she was particularly concerned about JB's inability to weight bear on his left leg. She advised the medical staff at the hospital that JB had not stood up for two days and described him as "shuffling". The mother was "sure" that there was no history of trauma to the limb and that JB had only been away from her when he had been sleeping. The examining doctor described JB as partially weight bearing intermittently on the left leg but not obviously in pain and with a full range of movements in all joints when lying down. Moreover, he was weight bearing on his right leg.
7. Following xrays of JB's lower limbs he was found to have a fracture to the top of the left shin bone (a buckle type fracture) for which no explanation was forthcoming by the mother. His left leg was placed in a plaster backslab above the knee. Following a full skeletal xray, a further similar buckle fracture was seen to his left forearm (wrist) for which no explanation was given. Both fractures looked recent in origin.
8. At a strategy meeting on 24^th December 2014 the paediatrician at hospital, Dr Brigit VM, dated the fractures to less than 7-10 days old and said that both fractures could have involved a degree of pulling and twisting. She said that it would be "extremely unusual" for a child to sustain both fractures at the same time. The second identified and unexplained fracture (to the left wrist) was a source of serious concern for Dr VM. The local authority were advised at the date of the strategy meeting that the mother did not have a boyfriend and that her only support was from the paternal grandparents (BF and VF).
9. In her statement dated 24^th December 2014, Dr VM (who had examined JB at Hospital on the morning of 22^nd December 2014) recorded the mother's history of events leading to JB's hospital admission and specifically her insistence that there had been no falls, traumas or memorable events in the days prior to JB's hospital admission which could account for his injuries. Dr VM also noted the mother's description of living alone with JB in a one bedroom council flat, being his full-time carer and stating specifically that in the 24hours before the first presentation to hospital she had been JB's sole carer. Dr VM's written evidence was that while children of JB's age frequently fell over every day, both witnessed and unwitnessed, for a child to sustain one fracture was rare "but to have two fractures of different long bones from simple falls would be exceptionally rare". She also said that the common mechanisms for the fractures were a "twisting rotation force" and that potentially rough handling by a pull and rotation mechanism could have caused the fractures. She said that in circumstances where there was no evidence at that stage of underlying bone disease there was "a good chance that these injuries were inflicted upon JB".
10. Dr S (a Consultant Radiologist) prepared a written report dated 30^th December 2014 following referral to him of the xrays by the hospital. He noted that in relation to the xray of the left tibia and fibula there was a small bulge on the lateral aspect of the proximal tibial shaft at the top end which could only be seen on the anterior posterior view and could not be identified as a "definite cortical break". On the lateral view there was a "slight kink" in the anterior proximal cortex in the left tibia with a little soft tissue swelling. Dr S also described a "buckle type fracture" in the left distal radius (wrist) similar in appearance to that seen on the left tibia. In his report Dr S said this: "He is 17 months old and there are two potential recent fractures. They could both have occurred as one event if he had had a significant fall for example if he had been running, tripped over and landed on his left knee and left wrist causing buckle fractures at both sites". Dr S said he would have expected JB to cry in pain at the time. He saw no injury in the right leg which would account for JB non-weight bearing on this limb on 20^th December 2014 and which had resolved within a 24 hour period. He opined: "while the radiological features (assuming the left tibia is a fracture) could be non-accidental, they could equally be accidental in terms of a 17 month old running, tripping and falling and then showing specific symptoms of failure to use the wrist or right leg for a few days thereafter….cortical fractures in a 17 month old have a low specificity for non accidental injury but it is slightly concerning that there is no clear history of how and when this happened even if this was after the fractures were identified".
11. As no explanations were offered for the fractures by the mother (or her partner at the time, SB) JB was discharged from hospital into the care of BF and VF with a safeguarding agreement in place that the mother was unable to remove JB from their care. He returned to the care of his mother on 28^th January 2015 with assurances given by the mother to social services that she was not in a relationship with SB. She signed a written agreement on 2^nd February 2015 that SB would have no contact with JB when JB was in her care until further assessments were completed.
12. However (and this is not disputed by the mother) she in fact continued her relationship with SB in contravention of the written agreement after JB was returned to her care with SB spending time at the mother's accommodation and the mother and JB spending periods of time at SB's family home where he lived with his mother and father.
13. After JB returned to his mother at the end of January 2015 there was little if any contact between JB and BF and VF as the mother had had a very serious altercation with BF on 27^th January 2015 (the day before JB returned home) after BF had (correctly) challenged the mother's assertion that she was no longer in a relationship with SB and told her that (as a result of personal enquiries which he had made) SB posed a risk of harm to JB.
14. SB and the mother continued their relationship during 2015 and it is not clear how much the local authority knew about SB's involvement in the mother's life at the time they closed the case in May 2015. A multi agency child protection conference detailed that the mother was receptive to health and developmental support after JB's return to her care "with no concerns noted" about her care of JB at home. Nevertheless, at a home visit to the mother on 20^th May 2015, the health visitor had noted that the mother had asked for support with JB's behaviour and that she had described him as aggressive. She complained that she found it difficult to take him out to the park as a result of his behaviour. At a subsequent home visit by on 2^nd June 2015 the mother had reported to the health visitor that JB's behaviour had been getting worse in that he was hitting, spitting and was aggressive. She also told the health visitor that she had called JB a "cunt" on one occasion and that she found it hard to cope with his behaviour. The health visitor responded to the mother's concerns by referring her to the Children Centre to assist the mother in removing herself from the very small and cramped home conditions and to support her in undertaking the Triple P parenting programme to gain behaviour and parenting confidence.
15. On 25^th July 2015 JB was admitted to A&E with a swelling to the right cheek wall. The mother said that JB had been "left with her boyfriend" and he had noticed a scratch on the right side of JB's lip which had developed into a large swelling to the side of the face which the mother had noticed in the morning. JB had been unable to eat and drink at the time and was noted to have an area of discharge on the inside of the cheek. He was diagnosed with herpes simplex and discharged home on 31^st July 2015 to the care of the mother.
16. On 17^th August 2015, the mother attended her GP and was diagnosed with a depressive disorder for which she was prescribed anti-depressant medication.
17. On 23^rd August 2015 at 1022am JB was presented again to the Hospital by the mother. The mother advised the medical staff that JB had been with her partner (SB) the previous evening from 5pm onwards while she and her mother had gone to play Bingo. The photographs within the court bundle provide a clear picture of JB's state of health on admission to hospital. On any view he looked an unwell child. He had three bruises to the forehead and cheek (to the left side) and a bloodshot/discoloured left eye. He also had various marks to his back. The mother said that while she had been out, her boyfriend (SB) had telephoned her while he had been alone with JB saying that JB had vomited twice (around 5pm-6pm) and that his eye had been sore. SB had been told by the maternal grandmother to wash the eye with water. The mother said that after she returned to her flat, she saw that JB had some bruising to his face. She also said that (contrary to his usual routine) he had been very unsettled during the night and had woken 3 times within the first hour of her return home. She has described him as "jumping and crying" throughout the night but he had not had a fever and had responded to Calpol which she had given him at regular intervals throughout the night. The mother said that she had noticed the bruising on the left side of his face in the morning and she also said to the hospital staff that he wouldn't open his eyes and preferred to keep them shut. She said that when he had telephoned her, SB had described JB having a bruise and a red eye. The nurse noticed on his admission that JB had been withdrawn and sullen, would not open his eyes and had appeared "scared". The consultant paediatrician at the hospital (Dr P) advised the mother that the facial injury was "highly suspicious" of non-accidental injury and noted the mother's statement that she found it very difficult to believe that her partner could have harmed JB.
18. In her report dated 25^th August 2015, Dr P referred to JB's left eye being red and slightly swollen beneath with him not wanting to open his eyes. There was some redness to the conjunctiva and some discharge from the eye. JB also had 4 facial bruises to the left side of his face, a small red "petichia" (pinpoint bruising) behind the ear on the left side and a small red and blue bruise on the abdomen above the umbilicus. Other marks included scratches to the right shoulder, lower back, upper left thigh and left posterior calf. Further body marks were noted on 26^th August 2015. Dr P felt that bruising to the face and injury to the eye was "an unusual pattern for children to sustain accidentally". Without any consistent history of trauma given the injuries were "highly suspicious for non-accidental injury" and the mother's explanation of JB hitting himself in the face was "not consistent with the level of injury JB sustained"
19. A decision was made on 26^th August 2015 to discharge JB home to the care of his mother on 27^th August 2015. However after he was discharged to her care and following further concerns about the mother's general state of health and ability to protect JB from harm, the mother agreed to his reception in to foster care on 28^th August 2015.
20. In her statement to the police dated 23^rd August 2015 the mother referred to the phone call to her from SB during the evening of 22^nd August 2015 and his description of his eye as "a bit red". She said that when she had got home at about 940 pm, SB had told her that she needed to check on JB and that he had "escorted" her into JB's room where she had seen him lying in his cot in his nappy. She said that SB had showed her the mark on JB's face and she described it as a purple spot on his face a bit smaller than a smartie. She had seen no other marks on his body but described JB as being "really floppy" the next morning and not opening his eyes which was out of character for him.
21. In a second statement dated 1^st September 2015 the mother said that she had been at her mother's home on 22^nd August 2015 from 3-4 pm and that JB had had a haircut by her mother's partner. His hair had been shaved and he had not enjoyed sitting still while this was being done. She described JB as "agitated" but that after it had been done, she had been messing around with JB and had held him upside down. She said that he had then started to whinge and she had put him on his feet on the living room floor at her mother's address. She had then tried to settle JB and that in reaching towards him she had "outstretched her arms" and caught JB in the face. He had recoiled and had covered his left eye and cheek. She said that JB didn't cry and that she had never intended to hurt him but that JB would not let her remove his hands from his face. She had seen no injury but had noticed that his eye was watery as if he was about to cry but had recovered and after a cuddle had continued to play.
22. In his police statement made on 23^rd August 2015, SB described JB as being jealous of time spent by his mother with him (SB). He said that he and JB had been playing with a ball in the mother's flat on 23^rd August 2015 and JB had fallen over. He had then got up apparently uninjured and SB said that he had given him his dinner and washed him. He said that while washing him he noticed that JB had a carpet burn to the left side of his chest, a bruise on the right hand side of his face and a watery left eye. He said that he had removed trapped eyelashes from JB's left eye using tap water and that they had watched a film together sitting on the sofa. JB had later been sick on the sofa while they had watched television but he had not contacted the mother about the vomiting. He said that he had put JB to bed at about 815pm. In a subsequent statement dated 18^th October 2015 SB said that he had noticed a bruise on JB's face (to the side of the left cheek) after he had changed his nappy soon after arriving at the mother's flat. He said that he had then given him a bath and that he had been fine at this point. After falling in the flat (during the ball game) JB had seemed "generally content".
23. Following the institution of care proceedings, the court approved the instruction of Dr W who was instructed to respond to a series of questions relating to the injuries suffered by JB in December 2014 and August 2015. She noted that police checks in relation to SB had revealed that he was cautioned for a battery in 2009 (committed on his mother) and that no charges had been pursued in relation to an alleged assault on his mother in 2015.
24. Dr W concluded that there was evidence to support physical abuse of JB having sustained injuries on two separate occasions for which a consistent history was not available. She noted that JB lived in an environment where domestic violence had been reported. In relation to the bruising she opined that abusive bruises occurred away from bony prominences and occurred in soft tissue areas such as the ear, neck, cheeks and back and were often multiple. In this case she said that the bruising to JB's upper and lower eyelid, cheek and abdomen were soft tissue areas and raised concerns of non-accidental injury in the absence of a consistent history of trauma. The distribution of the facial bruises could also be seen if the face had been grabbed with sufficient force. In her opinion, the linear injury on the back suggested an implement causing injury after direct impact or JB falling on his back and making contact with an object with this pattern. She said that while this could occur accidentally, the absence of history was suspicious. She also said that in relation to the fractures in December 2014 JB would have been distressed by these injuries which might manifest by "appearing in pain at the time of the injury occurring and on subsequent handling".
25. In an addendum report dated 9^th February 2016, Dr W stated that the mother's explanation for the possible cause of the bruising (hitting JB with an outstretched hand accidentally in the face) would not account for all the injuries and the distribution of all the injuries in a child with a normal clotting screen. The description by SB of JB running over a ball and falling over and stopping himself with his hand before getting straight back up would not account for the extent of the facial bruising. Additionally the removal of eyelashes from JB's left eye would not have accounted for the bruising to the eyelids which was "more supportive of direct trauma from an impact".
26. In her oral evidence at the outset of the fact finding hearing, Dr W said that any child who had suffered the injuries which were identified to have occurred in December 2014 would clearly have been distressed and in pain at the time and this would have been evident to his carer who would have appreciated that all was not well with the child. Dr W said that the mother's explanation to the social worker of accidentally "elbowing" JB in the face in August 2015 (which the mother had subsequently denied saying) and/or grabbing JB in the face could have accounted for the finger like bruising to his face but only if sufficient force had been used. She also said that eyelashes and hairs present in the eye might cause a child to rub his eyes vigorously but would not cause bruising. In respect of the explanation that JB had been held firmly while having his hair cut and might have been hit accidentally, Dr W said that for him to have sustained such extensive the facial injury by this means would have involved "quite a bit of force". She could not be certain when the bruising had occurred (because bruising develops differently in different individual) but she speculated that there was a likelihood that the injury might have occurred on the evening or night of 22^nd August 2015.
27. Injuries in December 2014: In her first statement (the mother's response to threshold dated 23^rd September 2015) the mother stated that on 19^th December 2014 she, SB and JB spent the evening at the home of SB's mother. She said that JB went to sleep on arrival and woke up on 20^th December 2014 at 10am. She tried to give him breakfast but he did not want to eat. At about 1045am on 20^th December 2014 SB had taken her and JB back to her flat and at that point she had noticed that JB refused to stand up. She said that he kept falling to the floor and screaming. She said that she became very concerned and took him to hospital. On discharge from hospital on 20^th December 2014 she said that JB went to bed at approximately 10pm and woke up regularly during the night. On 21^st December 2014 he slept in later than usual and when he woke up he appeared to be very tired and would not move. She said that JB had been unable to stand up and refused to eat and drink. She had then taken him back to hospital where he had subsequently been diagnosed with two fractures in the leg and wrist respectively. The mother stated in September 2015 that she did not think she had witnessed a fall or accident which would have resulted in those injuries and she offered a possible explanation that JB might have fallen at the soft play centre on 18^th December 2014 when he had been in the company of TF.
28. In her final statement prepared within these proceedings the mother said that she genuinely had no knowledge of how the fractures to JB's arm and leg had occurred. She said that the only time JB had been left alone with SB had been for about 30 seconds when that had been at his parents' home on the morning of 20^th December 2014 while she had been in the bathroom.
29. In her oral evidence at the final hearing the mother reiterated that she had stayed at SB's house on 19^th December 2014 in the evening. She said that there had been one further occasion when SB had gone upstairs to deal with JB for around 30 seconds or so before he had been called down. The mother said SB had been alone with JB (a) at about 9pm on 19^th December 2014 when SB had gone to deal with JB for a very short time before his mother had called him down for dinner and (b) on the morning of 20^th December 2014 when she had been in the bathroom and she had heard JB crying. When she had arrived home with JB on 20^th December 2014 he had been unable to stand up and had just sat on the floor. When she had tried to make him stand up again JB had screamed and she had realised that he was in pain and that something was wrong. After he had been returned home by BF and VF later in the day on 20^th December 2014 she had stayed with JB and he had woken a few times during the night. The next morning he had been very warm, crying and fidgety and not eating or drinking much. She had decided to take him back to the hospital at 4pm on 21^st December 2014 when the fractures were then diagnosed.
30. Injuries in August 2015: In her first statement in September 2015 the mother referred to spending the afternoon of 22^nd August 2015 at her mother's house when she had seen no injury to JB's face. She referred to swinging him by the legs and then going to "stroke his head" with he left hand and accidentally hitting him on the left side of the face. She said that as he had moved his face away she had grabbed his face to make sure he was not hurt. She denied ever suggesting that she had accidentally elbowed JB. She said that while she had been at Bingo, SB had contacted her to explain that JB's face had not been washed and he had also told her that JB had vomited. She remembered seeing marks on one side of JB's face when she had seen him lying in bed and she also remembered SB saying "this is going to make me look like I've done something".
31. In her final statement the mother referred to SB's regular abuse of her, most often verbally and occasionally physically. She said that she had seen him shouting and screaming at his own mother and calling her a "fat cunt" and a "slut".
32. She said that on 22^nd August 2015 she had received a call from SB (between 6pm and 630pm) to say that JB's left eye was watering and asking what to do. Her mother had told her to tell SB to wash JB's eye with cold water and let it dry. She said that she returned home at around 930 pm and that as soon as he had opened the door SB had offered to show her JB's face. She recalled seeing a mark on his forehead remembered that JB had woken up and cried. She said that after he had woken up she had seen one or maybe two marks on his face and some scratches. SB told her that nothing had happened during the evening but he had then told her that JB had been sick on the floor by the TV and sofa. She said that she had been annoyed at this point because she had expected him to tell her if JB had been ill while she had been out. She said that JB had a very restless night, was very fidgety and needed constant cuddling. SB had left very early the following morning (23^rd August 2015) saying that he had to get back to attend to his dog.
33. In her oral evidence at the fact finding hearing, the mother repeated that she had accidentally put her hand near JB's eye during the afternoon of 22^nd August 2015 but she said that she had not caused any mark to his eye. She said that SB had rung her twice while she had been at Bingo with her mother to say firstly that JB's eye was watering and secondly to say that he was angry that he could not work the controls on the TV. She said that when she had arrived home, SB had been quite worried and concerned (which was unusual) and had followed her when she had checked on JB. She had noticed one or two marks to his face but by the next morning more marks had appeared on his face. She had asked SB if JB had fallen over and he admitted that he had had a fall but she said that he had not hit his face. SB had left her flat at about 6am on 23^rd August 2015. She said that SB had sometimes referred to JB as a "retard" for no reason and complained that JB became jealous if he was affectionate towards her.
34. In cross-examination the mother agreed that she had initially denied that there had been any domestic violence in her relationship with SB. She had not realised that disclosing this abuse would have been a means of protecting JB. It had not been until the parenting assessment had been undertaken in October and November 2015 that the mother had described SB's "dramatic mood swings", his shouting and violence towards her and her knowledge that he had hit his own mother. She also agreed that she had continued in a relationship with SB when she had represented to professionals that she had no longer been in a relationship with him. She also agreed that there had been a serious incident between her and SB after the events of December 2014 when SB had pushed her out of his car and had reversed his car towards her. She agreed that despite these events she had still been willing for SB to care for JB on an unsupervised basis on about 4 occasions between January and August 2015. She also insisted that when social services had closed the case in May 2015 the social worker had made it clear to her that there was at that time no issue about her continuing in a relationship with SB.
35. The mother agreed that after the hospital admission in August 2015, she had sent SB an affectionate letter expressing sadness about the situation and saying how much she and JB missed him. She denied ever saying to the health visitor that she found it hard to cope with JB and insisted that the prescription for depression in August 2015 related to memories of abuse perpetrated on her by her grandfather. She also insisted that she had only been told about JB having vomited while in SB's care after she had returned home on 22^nd August 2015. She agreed that he police statement made no mention of bruising (only marks) and she denied (as SB alleged) that she had ever referred to a bruise on JB's face when she had returned home from Bingo. She agreed that in her third statement she had mentioned receiving three phone calls from SB while she had been out with her mother.
36. The mother denied that she had ever held JB's face with such force or pressure that she had caused him bruising while he had been round at her mother's house or that she had ever elbowed him. She agreed that until the court hearing she had never previously mentioned in her written statements that BF and VF had looked after JB on 20^th December 2014. She also agreed that she had complained about BF smacking JB too hard (and that this had been true) but she said that the serious altercation between her and BF on 27^th January 2015 had not involved him trying to strangle her even though he had been very angry about her continued relationship with SB.
37. SB's mother stated in oral evidence that her son and the mother had stayed overnight at her home address on 17^th December 2014 (and not 19^th December 2014) and she was sure that this was the right date. She agreed that her son had punched her in 2009 and 2015 which had led to police involvement. She insisted that she had only ever been punched once in 2009 (despite police evidence to the contrary) and she agreed that her son had called her on occasion a "fat slag". In April 2015 they had an argument about her son's dog (a French bulldog) after which he had "nudged" her and she had hit her arm on the doorframe. She had not pressed charges but she agreed that her son needed therapy to cope with his feelings and to express himself more appropriately. She said that on the morning of 23^rd August 2015 she had been looking after her son's dog so there would have been no reason for him to get home early. She said that her son suffered from Aspergers and had difficulty in controlling his emotions particularly if someone "got in his face" and became physically confrontational with him.
38. SB filed two statements in these proceedings on 10^th November 2015 and 4^th February 2016. In the first statement he agreed that he had looked after JB about 4 times on his own and that he had been "as good as gold". He accounted for his movements with JB on 23^rd August 2015 (after the mother had been dropped off at Bingo) and referred to noticing a mark on his chest which had looked like a carpet burn. He had also washed JB's face (which he thought had been dirty) until he realised that the mark on his face was in fact a bruise near his temple. He described JB as hot and irritable in the evening and scratching himself continuously, He had applied cream all over his body. JB had fallen over once while playing ball but had got up straight away. He had been tired and had kept rubbing his eye and making it sore. He had gently lifted JB's eyelid with his finger and a hair or eyelash had come out. JB had climbed on the sofa and had been sick. SB had watched cartoons with JB, given him some supper and put him to bed at about 8pm. He had woken once screaming and SB had put more cream on him, He had then noticed a scratch on the lower part of his back. When the mother had returned she had gone to check on JB and (according to his evidence) said to him that JB had a bruise on his face and wanted to know how it had got there. SB had said to her that it had already been there when he had brought JB home. He confirmed that all through the night JB kept waking up, crying and banging himself on his cot. He had left the mother and JB at about 630 am the next day.
39. In relation to the fractures sustained by JB in December 2014, SB said that he had picked up the mother and JB from BF and VF's home on 17^th December 2014 and gone back with them to his mother's home where they had stayed overnight. He thought that on the next day (18^th December) he had dropped off the mother and JB at the home of BF and VF at about 1015am. He said that he had only had a brief meeting with the mother on 19^th December 2014 (to take her round to her mother's house) and the next he had heard was on 20^th December 2014 when the mother told him that JB had been discharged from hospital with nothing wrong. SB had visited the hospital on 21^st December 2014.
40. In his oral evidence, SB said that he and the mother had separated for about 2 weeks in November/December 2014 and that 17^th December 2014 had been the date of their reconciliation. He agreed that there had been some domestic violence between him and the mother but that he had not spat at her (as she alleged) and had not been controlling of her. He said that the mother used to hit him and throw stuff at him. He denied going upstairs anytime on 17^th December 2014 (or 19^th December 2014 as the mother alleged) and said that there had never been a period of 30 seconds when he had been alone with JB.
41. In relation to the events in August 2015 SB said that he had not mentioned to the mother that JB had vomited when he had spoken to her while she was out with her mother nor had he mentioned any bruise. He had just mentioned JB's watery eye. He agreed that while he had referred in his statement to "lashing out" at his mother in the past, he had only punched her on one occasion in February 2009 even though the police records referred to a 2inch bruise to his mother's right forearm and a graze to her right shin which had caused his father to call the police. He had not "lashed out" at JB's mother and her description of domestic violence in their relationship had been exaggerated and largely untrue. He agreed, however, that if people got "in his face" he argued back but he denied ever trying to strangle JB's mother. He firmly denied putting cream on JB's body at any time to cover bruising or putting him to bed as soon as possible to ensure that the mother did not notice any injury. He had not left early on 23^rd August 2015 to avoid being present when JB awoke with evident facial injuries.
42. In her evidence at the hearing, VF said (contrary to her written statement but having checked her on-line diary for the relevant period) she remembered that she and her husband had looked after JB during the afternoon of 17^th December 2014 and that during a period of 6pm-730 pm he had been in the sole care of her husband (BF) and her son while she had been helping her father's partner move to a care home. She remembered JB coming round at about midday on 17^th December 2014 and that all had been well. Her other son, TF (who was believed to be JB's father at the time) had taken JB and the mother home that evening. VF had then seen JB on 20^th December 2014 in the afternoon (after his first hospital admission) as the mother had been feeling unwell. After giving him something to eat, she had noticed that something was wrong with his leg as he had not been standing properly and his left leg had given way. She had telephoned the mother and told her that JB needed to go back to the hospital. She had returned him to the mother's care and had next seen him at the hospital on 21^st December 2014 when he had been discharged into her care.
43. VF said that there had been a serious disagreement between the mother and her husband on 27^th January 2015 after her husband had seen SB's car around the side of their house and her husband had realised that SB was still a part of the mother's life. It had been a bad row. JB had been returned to the mother's care on the next day (28^th January 2015). There had been no involvement with the mother until November 2015 when a DNA test was sought to ascertain JB's paternity and she learned that her son, TF, was not JB's biological father.
44. In cross-examination, VF agreed that JB had spent significant periods of time in their care after his birth (2-3 times each week) with the longest period being at least 6 weeks when the mother had been in hospital and JB was about 10 months old. She confirmed that JB had not fallen or had accident in her home on 17^th December 2014. On 20^th December 2014 she said that JB looked as though he was in pain when he could not put his left leg down ("you could see he was hurting") but he had not been screaming.
45. In response to questions about her husband's treatment of JB, VF said that he had only ever tapped JB on the hand and had never smacked him hard. She also said that the mother's account to the social worker of him trying to strangle the mother was wrong and had been inaccurately recorded by the social worker. She said that the mother had never been scared of her husband and knew that he was a good man.
46. In his oral evidence, BF referred to himself as the adopted grandparent of JB and to him and his wife treating the mother as their daughter. He said that on 20^th December 2014 his wife had said to him that the hospital must have misdiagnosed JB because he could not stand up. He said that there had been a conversation at the hospital between him and the mother the next day when he had asked her if she had been telling the full facts and she said that JB had been round at SB's house when it had "happened" and she believed that SB was responsible particularly as he had said to her that "something was the matter with JB" after she had come out of the bathroom and before she had gone downstairs on the morning of 20^th December 2014.
47. BF said that the serious row on 27^th January 2015 followed his realisation that the mother had not separated from SB (the day before JB was to be returned to her care) and BF's own enquiries about SB which had led him to conclude that he was a "violent lunatic" who could not control himself, a "paedo" and someone who "turned on a tenner". BF said that he had been very angry with the mother ("you make my blood boil") and that the social worker had made it worse when she had arrived and had refused to understand his point of view. In cross-examination BF said that references in the social work records to him "smacking" JB hard were quite untrue and all that he had ever done was to protect JB from SB.
48. On 19^th February 2016, Dr VM and Dr W were asked the following further question (which I approved) following the evidence which had emerged in the case that BF and VF had cared for JB in the intervening period between the two hospital admissions in December 2014: "If JB already had the fracture to his leg and wrist, how likely was it that this would have been noticed by those examining at the hospital on 20.12.14"
49. In her response Dr VM referred to JB's "althralgic gait" at the first assessment on 20^th December 2014 and the difficulty in specifically diagnosing the area where the pain was coming from. As the medical staff could not pinpoint the area where the pain was coming from and as hip problems could cause deferred pain, the hip had been xrayed and found to be normal. She said that they did have a positive finding of the lower limb causing symptoms but not an exact location for the pain. In her oral evidence on 23^rd February 2015 (by telephone) she said that a child can weight bear on a leg even when a fracture has occurred. She believed that the fracture found on 21^st December 2014 was probably the same fracture which would have been identified had his legs been xrayed on 20^th December 2014 but something else could have happened to give him a second fracture. In relation to the wrist, Dr VM commented that even when it had been known that JB had sustained a fracture, he had still been using the wrist on the ward when she had seen him (on 22^nd December 2014) and he had only shown minor signs of tenderness on specific testing. There had been no swelling, redness or bruising of the area and it had only been when there had been very specific pinpointing of the wrist that the child had pulled away and had been reluctant for the examination to continue.
50. Dr VM repeated in oral evidence that for a child to sustain two fractures in two different long bones was "exceptionally rare" and she said that for a child to fall and sustain two fractures in one incident was "very uncommon". She also said that children at the age of 17 months have bones which are much more bendy and that the bones bend before they snap. This was relevant to a child having suffered a double fracture of two unrelated bones and was indicative of "significant force" being used to cause the outside layer of the bone to break.
51. In an email response, Dr Wsupported the professional views of Dr VM and said that JB had presented as non-weight bearing and that if an x ray had been done of the whole limb it was "more likely than not that the fracture would have been seen on his leg at initial presentation". JB had, however, been managed as a case of reactive arthritis which had not been an unreasonable diagnosis "given he had no history to suggest trauma". She agreed with the evidence of Dr VM.
52. The Law: The law is well known in this field and uncontroversial. It can be summarised as follows:

1 There is only one standard of proof in these proceedings, namely the simple balance of probabilities [Re B 2008 UKHL 35]

2 The burden of proof is on the party making the allegations, it is not reversible and it is not for the other party to establish that the allegation(s) are not made out

3 The inherent probability or improbability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Common sense not law requires that in deciding this question, regard should be had to whatever extent appropriate to inherent probabilities –per Lord Hoffman in Re B at paragraph 15

4 If a fact is proved, the law operates a binary system in which the only values are 0 and 1. It is therefore open to the court to make the following findings on balance of probabilities:

(a) that the allegation is true

(b) that the allegations is false

As Lord Hoffman observed in Re B "if a legal rule requires the facts to be proved, a judge must decide whether or not it happened. There is not room for a finding that it might have happened; the law operates a binary system in which the only values are nought and one"

5 Findings of fact must be based on evidence and not speculation. As Munby LJ observed in Re A (Fact Finding: Disputed Findings) 2011 1FLR 1817 "it is an elementary position that findings of fact must be based on evidence including inferences that can properly be drawn from the evidence and not suspicion or speculation"

6 If a court concludes that a witness lied about a matter, it does not follow that he has lied about everything. A witness may lie for a number of reasons: R v Lucas [1981] QB 720

7 When carrying out the assessment of the evidence, regard must be had to the observations of Lady Justice Sloss in Re T [2004] 2FLR 838 where she said (paragraph 33) "evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise and overview of the totality of the evidence in order to come to the conclusion whether the case put forward (by the local authority) had been made out to the appropriate standard of proof

8 Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof in determining the facts. In our legal system if a judge finds it more likely than not that something did take place then it is treated as having taken place. If he finds it more likely than not that it did not take place then it is treated as not having taken place. He has to find for one side or the other. He is not allowed to sit on the fence. Sometimes the burden of proof will come to the rescue; the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely on the burden of proof.

9 In Re S-B (children)(non-accidental injury) [2009] UKSC 17 the Supreme Court held that the court should determine the following in order:

(a) Whether any of the injuries were caused non-accidentally

(b) If they were whether the court is able to identify the perpetrator on a balance of probabilities. The court should not strain to identify the perpetrator [para 34]

(c) A finding on balance of probabilities was preferable to no finding at all for many reasons, the main one being that it would promote clarity in identifying future risks to the child and the strategies necessary to protect the child from them, A finding would also enable the professionals to work with the parent and other members of the family. Furthermore there would be long-term benefits for the child in knowing the truth, if it could be ascertained [paras 36-38]

(d) If the court cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will be desirable for the same reasons as those given above. It will help to identify the risk to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run [paragraph 40]

(e) If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the court will have to consider the strength of that possibility as part of the overall circumstances of the case. The test is not whether the person can be excluded as perpetrator.

53. Findings: I have gone into the evidence in this case in considerable detail because I am very conscious of the responsibility which I have been given as a judge sitting in the family court to try and ascertain where the truth lies in relation to events in December 2014 and August 2015 which led to this young child being admitted to hospital on separate occasions with significant injuries. I remind myself that I must not make any unfair assumptions nor should I make findings which are not supported by the evidence which has been distilled in the course of this judgment. As part of the fact finding exercise, I am required to consider the accounts of events given by the various witnesses and the extent to which inconsistencies in their respective accounts (and particularly the inconsistencies in the narrative given by the mother) guide me as to any findings which I should make. However, I must not jump to conclusions and make findings which are not justified on the evidence and, more specifically, I must exercise caution before finding that any individual or individuals must be responsible for both set of injuries because they involved the same child and occurred within a short time of each of other. In other words, I should address the evidence in relation to each hospital admission separately rather than make composite findings or draw inferences which may not reflect the true state of the evidence.
54. It is of considerable importance to record in a case of this nature that I have had the opportunity to see all and any alleged perpetrators of harm to this young child give oral evidence at the hearing and their evidence has been fully tested in cross-examination. A most relevant feature of parties giving oral evidence at a court hearing is my assessment of the characters and the demeanour of the relevant parties and the extent to which I accept or doubt the truthfulness of their evidence.
55. The December 2014 injuries: I am satisfied that in the absence of any clear narrative account by either the mother or SB which preceded JB's hospital admission on 20^th December 2014 –with the mother having specifically advised the medical staff on admission that her son had not suffered any injury or fall in the days preceding his admission –that I was not being told the truth about events in the mother's household in the days prior to JB's admission to hospital. JB was a young child who was learning to walk and his inability to weight bear on one leg in December 2014 was not something which occurred "out of the blue" but was (as I find) attributable to a cause or an event which was not disclosed to the doctors at the hospital. In my judgment there had to be a cause or at least some form of explanation put forward for the diagnosis on 21^st December 2014 that JB had two fractures of recent origin in two long bones in different parts of the body.
56. It was not acceptable (and it remains unacceptable) for the mother -as JB's full-time carer -to have maintained the position that she had no idea how her son came to suffer two serious injuries in December 2014. Having seen the mother's demeanour when giving evidence –and much of the mother's evidence was unsatisfactory and inconsistent –I reject her evidence that she knew of no event or incident which had occurred in the days before he was admitted to hospital which had caused him to suffer injury. I am satisfied that the mother took JB to hospital on 20^th December 2014 and again (belatedly) on 21^st December 2014 because she was really worried and fearful about his condition and that (despite her evidence to the contrary) she was in fact perfectly able to assist the medical staff about the origin and cause of the fractures but specifically chose not to do so.
57. From a safeguarding perspective I need to address why it was that the mother persisted in saying that nothing had happened to JB under her watch (and while she had been spending time with SB) in the days prior to his hospital admission.
58. One possible explanation for the mother's failure to be frank about a significant and unusual event or events which would have caused her son much pain and distress is that she herself inflicted injury on her son and was not prepared to accept personal responsibility for harming him. That is of course a perfectly rational conclusion to draw from the evidence (or lack of credible evidence from the mother) in conjunction with my finding about the mother's lack of honesty to the court. However, taking an overview of all the evidence, there is no indication from the papers that the mother is of a violent or unpredictable disposition or that she had experienced practical or emotional problems in caring for JB in December 2014.
59. I am in no doubt (and it is well documented) that the mother did her best to be a competent parent to her son while he was in her care in his early months. Prior to December 2014 she also had the advantage of regular babysitting arrangements offered by BF and VF which gave her some respite from caring for him. I was left with the impression that this mother is and was a dependent and needy young woman (albeit with an assertive and determined side to her character) but not someone who had the innate disposition to harm her child. In those circumstances, while it is possible that she was responsible for JB's injuries in December 2014, I think it unlikely.
60. It is clear from all the evidence in this case that the fractures of JB's left leg and wrist occurred within a relatively short time frame prior to his hospital admission (7-10 days previously) and that the injuries may have occurred during the course of one significant incident or on two separate occasions. Although other individuals were involved in caring for JB between 17^th and 20^th December 2014 (including BF and VF and their son, TF on different occasions) I am satisfied that from all the evidence I heard -which necessarily included the presentation of BF and VF when giving oral evidence - that JB suffered no harm or injury at their hands in the period prior to 20^th December 2014. I am also satisfied that JB did not suffer any identifiable injury during the brief period of time that he spent at BF and VF's home on 21^st December 2014. Having regard to the medical evidence, I think it most likely that both fractures had occurred at the time of JB's admission to hospital on 20^th December 2014 even though they were not formally identified until the next day.
61. With that in mind, and against the backdrop of excluding BF and VF as possible perpetrators of any injury to JB -a child for whom they had great affection and had shown a demonstrable ability to care safely for him on many occasions during the early months of his life - and having expressed the view that the likelihood of the mother have caused the fractures to her son can be put at no more than a possibility, I need to consider whether any other individual or individuals may have injured him. While I am not satisfied that injuries of this type could have occurred during one or two 30 second periods on either 17^th or 19^th December 2014 when SB was apparently in the company of JB, I am entitled to look at the wider picture and in particular to assess the evidence in the case relating to SB's character and temperament.
62. What I know of SB is that despite the best endeavours of his own mother to protect her son when she gave oral evidence, he can be unpredictably violent when roused, he has aggressive and controlling tendencies -which may at least in part be attributable to a diagnosis of Asbergers -and that his mother believes that he needs therapy to address various controlling aspects of his character. On his own admission SB cannot cope with people "getting in his face" and he is not a person to back off when challenged. Apart from very limited experience of playing with his young nephew, he was someone in December 2014 who was not familiar with the behavioural habits of a young demanding child. Moreover, I am satisfied that as the relationship with the mother progressed from June 2014 onwards, neither JB nor SB were happy that they had to share the mother's attention and that SB sought to assert his position within the relationship to the detriment of JB.
63. Having regard to his admitted violence towards his own mother in the past and his "short fuse" I am reluctantly forced to conclude that an incident did occur in the days preceding JB's hospital admission in December 2014 when JB was harmed by SB and that the injuries inflicted were not accidental in origin.
64. On balance of probabilities I therefore find that SB was responsible for the fractures caused to JB in December 2014. However, although there is no evidence that the mother witnessed her partner harming her son (although this is of course a possibility) I think it more likely than not that she had reasonable cause to believe that her son had been hurt by her partner in the days preceding his hospital admission (JB's general demeanour and state of health would have alerted her to something being wrong with him) and that she was prepared to turn a blind eye in the hope that whatever SB had done to her son would heal naturally without complications. Of course I cannot be sure that this is the right scenario. However, bearing in mind this mother's almost desperate need to remain in a relationship with SB, I think it more likely than not that she covered up for his ill-treatment of her son because this was her preferred option.
65. I am satisfied from all the evidence –including the social work records -that the mother was very attracted to and dependant upon SB and that in December 2014 (6 months after the relationship had begun) she was prepared to lie to excuse his culpability. She was also prepared to lie to the hospital staff in order to convince herself that SB was safe to be in the company of her son when she knew that this was not the case -and I find that she may have tried to communicate her concerns to BF on 21^st December 2014.
66. I do not think that this is a speculative finding about the mother's failure to protect JB because the mother conceded during the course of the parenting assessment in October/November 2015 that SB had been violent and abusive towards her and towards his own mother. I believe that the mother also knew that SB was capable of harming her son (to whom SB had no blood tie) if JB misbehaved or interfered in his relationship with the mother. Although I make no finding that the mother participated in any injuries inflicted on her son in December 2014, I am satisfied that she was not truthful about events preceding the hospital admissions in December 2014 and that despite offering very limited windows of opportunity for SB to have harmed JB, there was in fact opportunity for SB to cause injury to JB and that, in anger or frustration, he did cause him harm which was not accidental.
67. In my judgment, this mother was involved in a relationship with SB which she could not contemplate leaving, a relationship which she knew was abusive and a relationship which led to her denying her son protection from someone who was capable of violence and who had such control over her that she was prepared to lie for him in relation to unexplained fractures. In those circumstances, I am bound to reflect upon the mother's priorities in December 2014 and the extent to which JB continued to be exposed to the risk of harm as a result of her determination to remain in a relationship with SB from January 2015 onwards.
68. Injuries in August 2015: On 23^rd August 2015 JB was presented to hospital once again by his mother. The admission photographs show a sad, neglected and injured child. The location of the bruising (principally to soft tissue areas) and the type of bruising (finger pointing) combined with a red, swollen and watery eye which was so painful that he wanted to keep his eye closed, were all indicators of non-accidental injury.
69. On this occasion the mother was a little more forthcoming about the recent history in that she disclosed that JB had been cared for by SB during the evening of 22^nd August 2015. However she was at pains not to blame SB for any misconduct towards JB. On 1^st September 2015, she proferred an explanation for the facial injuries which led to her assuming responsibility for what had happened (hitting JB with an outstretched hand) which was (as I find) yet another attempt to maintain her relationship with SB and to eradicate from her mind the unwelcome thought that he had injured JB when he had been in his sole care the previous evening.
70. The mother's written and oral evidence about what had happened on 22^nd August 2015 was riddled with inconsistencies (examples including whether SB had or had not told her that JB had vomited while she was playing Bingo, the number of phone calls which SB had made to her and whether or not she had seen bruises or marks on JB's face on her return) and I am satisfied that the mother only changed her position in relation to the probable cause of her son's injuries when she realised the impact on her wish to resume care of JB in the future if she did not face reality.
71. Although the evidence is contradictory on this point (because the mother said different things at different times) I believe that while the mother was playing Bingo with her mother during the evening of 22^nd August 2015, she was alerted on more than one occasion to the fact that SB was having difficulty in caring for JB and that whatever the reason for his calls (anger with the TV controls, seeking advice about a problem with JB's eye or advising her that JB had vomited) I am satisfied that she was made aware during the evening that JB was not in safe hands. Unfortunately she was not prepared to cut short her evening enjoyment and at a time when (as I find) she was finding JB's behaviour difficult and demanding, she took a chance that all would be well when she got home. While she may not have been fully in the picture about SB's criminal antecedents at the time, she knew (a) that SB had a short fuse and was capable of being violent to her (and there had been a nasty incident between them after December 2014 which she recounted in oral evidence) and (b) that there was some two -way jealousy between SB and JB which put JB potentially at risk of harm if he were left in the sole care of SB. Against this background and combined with phone calls from SB during the evening of 22^nd August 2015, the mother was (as I find) put on notice that her child was at risk of harm but she refused to act to protect her son. Moreover, in her statement of 1^st September 2015 she was prepared to blame herself for his condition when presented at hospital (thereby exculpating SB) and was also content to write to SB subsequently in extremely affectionate terms expressing sympathy for him that he was "going through this" and stating how much she missed him.
72. Although SB was calm when giving his evidence at the hearing, the reality is that he is not someone with the character or disposition to deal with the challenges of life and (as I find) the challenges which JB placed in his path on the evening of 22^nd August 2015. He is a man who responds to challenges by unpredictable and sometimes violent behaviour (demonstrated to his own mother and towards JB's mother) and he is someone who has identifiable mental health issues which are incompatible with the demands placed upon the carer of a young child. I have no reason to believe that he intentionally set out to harm JB on 22^nd August 2015 but I am satisfied that he was unable to cope with JB's behaviour (which may have included unexpected vomiting) and that in an angry response to JB's demands and behaviour, he caused all the marks and bruises which were seen on JB's hospital admission on 23^rd August 2015. Moreover I find that in a state of panic he tried to conceal some of the bruising or marks which he had caused by excessive application of cream to his body. When he realised that he had hurt JB in the eye he then made up a story about removing a hair or eyelash which was deliberately dishonest.
73. While I have already said that in my judgment the mother failed to respond to obvious warning signs that SB was not coping well with JB's care on 22^nd August 2015, there is no convincing evidence that once the mother returned home, she was put on notice by SB that he had harmed JB and that she therefore colluded with him to protect him (SB). I find that when she checked on JB on her return home, there was no indication at that time of the extent of the bruising to his face and body. I have concluded that it was not until the next morning (23^rd August 2015) that the mother realised the extent of his injuries and took appropriate action in referring him to the hospital.
74. These are the findings which I make in this case.