England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT
Sitting at

		THE LAW COURTS, MARY RD, GUILDFORD, SURREY GU1 4PS
		24 May 2016

His Honour Judge Nathan:-

1. This has been a fact finding hearing within care proceedings brought by Blankshire County Council. They concern a little boy called X who was born in 2012 and his brother Y born in 2016.
2. On 22^nd November of last year when X was 3 ¼ he was brought to Accident and Emergency at St Pauls hospital Townsville by his mother. He had severe bruising to both sides of his face from his ears downwards. The doctors who saw him there were of the view that these injuries were compatible with inflicted injury. So began a chain of events that led to these proceedings and a subsequent care application on the birth of his brother Y in 2016, consolidated with the original application.
3. X had not himself previously been known to social services. He lived with his mother EM who had been separated from his father LT for several years. She had had a relationship with DS for about a year and was heavily pregnant with his child. They did not live together but spent substantial amounts of time together in particular at the times immediately before these injuries were noticed. He had helped her with practical tasks particularly in the latter stages of what was a difficult pregnancy.
4. EM - who I will refer to as 'the mother' had noticed the marks on the morning of 22^nd November when X awoke. She was so concerned about them she sent photos to her mother who later came round and advised her daughter to take X to hospital, something EM eventually did but after a delay of some hours.
5. The mother had been to a family party at a café run by her mother the previous evening and had taken X with her. She and DS deny that anything that they did could have caused injury to X after their return home and before he awoke the next morning. Both say that there was some boisterous to rough play with X at the party by various guests and they maintain that this may explain the injuries. Hence three of the guests are interveners in these proceedings. The Consultant paediatrician instructed, Dr Kathryn Ward, like the presenting doctors is of the view that the injuries were likely to have been inflicted and that the descriptions given of things done at the party cannot explain them. The local authority seeks findings against the mother and her partner as being the likely perpetrators.
6. The facts in more detail are as follows:
7. X's injuries seen at St Paul's were these: He sustained injuries to the right ear and cheek, bruising to the right side of the face and bruising to his right ear pinna. Within the ear he also suffered purple bruising. On the other side of his face he had injuries to the left ear and cheek, significant bruising to the left side of face and purple bruising to the left pinna and within the ear. He also sustained bruising along the left side of the chin.
8. The mother's family are all of Portuguese origin. The party that took place on the day before the injuries were discovered was at a cafe. The cafe is run by the maternal grandmother MF. The party was held for the 50th birthday of JL, and organised by a friend of his, CI. Both were of course there. In addition to the maternal grandmother, other members of EM's family present, were the mother herself and her partner DS, her 15-year-old sister T, her brother AC who was helping behind the bar, and her cousin MS and her partner A. JL's son B (known as B) was also there. He is 18 years old and played with X at the party. He is the first intervener. His girlfriend RF was with him. Their friend HH spent much of the evening with them and they both also played with X. They are the second and third interveners.
9. There is little doubt that X was a boisterous little boy that evening. He ran around at the party, occasionally banged into things, chased a dog, pulling its tail, was lifted up by his ankles, passed around and at some stage he threw up. It is these events, or some of them, that the mother and DS say may have either individually or taken together caused X's injuries.
10. The mother described the following things that happened to X at the party in her statement in these proceedings.

i. Teenagers picking him up and holding him upside down

ii. at one stage when facing upside down towards one of them, his head dangled between his legs

iii. putting his head between the leatherette tub chairs

iv. getting overexcited, and bumping the right side of his face into a table.

v. Jumping up on the teenagers laps and on the chairs.

vi. Running passed DS and seeming to catch his eye on DS's hand

vii. He played with a balloon and one of the teenagers popped it – he was a bit upset at that stage but happy when DS got another one.

viii. X was sick and maternal grandmother took him into the toilet (as reported by her sister). X explained, apropos of this that "the children had been holding him upside down and spinning him around which he didn't like"

ix. After this X still appeared to be enjoying himself and was still active and playing with the teenagers even after numerous times of being called to sit with his mother.

x. On the way home he had a fairly red face (paragraph 19)

xi. Next day after the injury was seen "he said that they had picked him up and threw him around". The mother commented "I was totally shocked"

11. However, no one present at the party reported that X had anything other than a good time – subject to minor tears on one or two occasions. Indeed the evidence is he did not want to leave. When he left, he had no marks on his face, though he was red and hot.
12. After the party the mother, who had taken her own mother's car says she dropped her sister off, then drove around for about 20 minutes to get X off to sleep. On arrival DS carried the half awake X up to bed. The mother changed him and she says, he went back to sleep. DS had by then fallen asleep on the sofa downstairs, but he was then awoken and came up to bed with the mother. Not long after and at about 1.15, the mother received a call from her own mother who had realised that the café keys were on the car key ring. The mother got out of bed, put something on over her pyjamas and left her home for the café, leaving DS and X in their beds. On her return which is likely to have been 40 to 45 minutes later, she checked X, whom she says was asleep and alright, and went back to bed.
13. It was at 9 am the next morning that X came into her room. According to her witness statement she saw the marks to X's face immediately she opened the blinds. She described them as awful and that she was QUOTE: "totally shocked". DS in his statement used the word 'horrific' for what he saw. He told the police that it made him feel sick and that QUOTE: " just thinking about it makes me want to cry" whilst in his oral evidence he said he was very shocked by what he saw. At 9.47am the maternal grandmother received a text from her daughter attaching two photos of the injuries and blaming JL's son, that is B.
14. Even by then the mother said she was scared of the consequences of going to hospital because she felt she might be accused of causing the injuries by doctors or social workers. Her mother told the police that she arrived at her daughter's mid morning. She said that her daughter should get X checked at hospital. At some stage EM spoke to her sister G who warned her that she might be accused of inflicting injury on X. Social services had been involved with the family when she was young. After some considerable delay, X was taken to nearby St Paul's shortly after 5 p.m.
15. The conclusions of the doctors that the mother's explanations could not account for the injuries led to the intervention of police, social services, private law proceedings by X's father leading to his securing a Child Arrangement Order and then these proceedings. The mother, her mother and DS say X when asked by them – indeed in one instance when questioned by the grandmother on video - said his injuries were caused by the 'children' or 'kids'. This was an expression they say means one or a number of the interveners. LT has said that X also used such an expression to him.
16. Where necessary in order to explain my findings I will give further detail about the matters I have just set out, but at this juncture these details are sufficient.

The Law

17. I make no apology for setting out in short form the invaluable summary of the law set out in Re JS (2012) by Baker J:

a. First, and very importantly, the burden of proof lies with the local authority.

b. Second, the standard of proof is the balance of probabilities; Re B [2008] UKHL 35.

c. Third, findings of fact in these cases must be based on evidence including inferences that can properly be drawn from the evidence, but not on suspicion or speculation

d. Fourth, when considering cases of suspected child abuse, the Court must take into account all of the evidence and consider each piece in the context of all the other evidence. As Dame Elizabeth Butler-Sloss, then President, observed in Re T [2004] EWCA Civ 558: "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."

e. Fifthly, the opinion of medical experts needs to be considered in the context of all the other evidence. The roles of the Court and the expert are distinct. It is the Court that is in the position to weigh up expert evidence against the other evidence.

f. Sixth, the evidence of the parents and any other carers is of the utmost importance. It is essential that the Court forms a clear assessment of their credibility and reliability.

g. Seventh, the Court should bear in mind the Lucas direction. Respondents may tell lies for all sorts of reasons that may include misconceived attempts to bolster an otherwise truthful account. Such lies may not mean they are lying about everything

h. Eighth, paraphrasing Mr Justice Hedley in Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam), it is always open to a judge to rule that the cause of an injury remains unknown

i. Penultimately, when seeking to identify the perpetrators of non-accidental injury, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849). I would add that in Re S-B Children [2009] UKSC 17 Lady Hale said that in such pool of perpetrator cases "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 was a real possibility that a particular person was involved"

Evidence

18. The evidence I have received was as follows:

I had 2 lever arch files and documents that included

1. local authority statements and assessments,

2. The statements of the mother and DS. Added to these were statements made in these proceedings by all 3 interveners.

3. Comprehensive police disclosure and statements from many witness who were at the party, transcribed interviews with the mother and DS,

4. Hospital notes and records

19. I heard oral evidence from:

The maternal grandmother, the mother, DS, all three interveners, the mother's brother AC and Dr Ward

20. I should say that the advocacy in his case was of a high order all round. I pay particular tribute to the thoroughness and familiarity with detail of the advocates for the interveners all of whom were instructed at the very last minutes and did a really first class job.

The Medical Evidence and my findings arising from that evidence

The medical evidence

Dr Ward

21. Dr Ward read the police statements and analysed the observations of the witnesses about what X had done and been subjected to at the café. She set this out at page E109/110. She dismissed each event described by witnesses at the party as being a possible cause of the injuries.
22. She recorded that a clotting disorder was excluded as a cause of the bruising. She repeated the well known evidence that bruising cannot be scientifically timed, and that bruises whilst uncommon in immobile children increases in frequency as children become more adventurous such that in a 1999 US study 60% of children between 24 and 35 months have reported bruises on visits to physicians offices in the USA.
23. She made the following points from the research:

i. There are common characteristics that separate abusive from non abusive bruises:-

a. Abusive bruises are found on parts of the body where bruises are not found due to normal daily activity. A 1999 study showed that bruising through normal daily activity was rare when found on, among other places, the cheek;

b. A 2005 review of 167 published articles found that most bruises in walking children occur over bony prominences and in the front of the body. However abusive bruises tended to be away from bony prominences and involved, inter alia, the head, neck and face;

c. Abusive bruises tend to be larger and multiple and occur in clusters;

d. Some carry the imprint of an implement;

e. Dr Ward summarised: "these studies suggest facial bruising is suspicious of non accidental injury . While facial injury has been shown to be uncommon in non abused children it is a frequent finding in abused children".

24. Having examined the numerous photographs (from mother, hospital and police) as well as the body maps and reports from treating physicians, Dr Ward concluded as follows:

Right hand side of face.

1. The bruising observed which covered different plains of the face on the right hand side was inconsistent with a blow from a solid object which might cause a diagonal bruise across the cheek and ear but not across all plains of the face extending right down to the jaw. That was more likely to be caused by a hand which would mould to the contours of the face. Thus the likely cause for the injury to the right hand side was a forceful slap.

2. So far as the left hand side was concerned, this again crossed multiple plains and demonstrated some linear components over the left cheek (Page E108, bottom of page and third paragraph page E109). For the same reason given in relation to the right hand side this, said Dr Ward, was consistent with a forceful slap but could have been caused by a separate injury such as a grip or grasp.

25. Both left hand and right hand side injuries would have been immediately painful and resulted in crying for a period of minutes and anyone present would have been aware that the child was injured by the child's response.
26. So far as the marks to the chest were concerned, Dr Ward was of the view that it was possible that they were caused by the so called 'rough handling' at the party, and that they may not have caused significant discomfort nor been noted by a carer at the time. She specifically dealt with other actions described at the party at E109 to 110 to dismiss them as possible causes.
27. Other actions not specifically dealt with in the original report were answered as a response to later questions in her second report with the same conclusion.

Dr Ward's oral evidence

28. She was very skilfully cross examined by a number of advocates but in particular Mr Green for the mother as well as Ms Haywood for B (who had only been instructed the day before).
29. In summary Mr Green's challenges were these:-

i. That the report ( which was filed late and without explanation for delay) was rushed as exemplified by a number of errors

ii. That the original report dealt with some specific actions at the party that the mother and DS contend might be mechanisms of injury but failed to deal with each and every one. Accordingly, the general conclusion in the first report cannot be sustained. Moreover, the conclusions in the second report (which did indeed deal with those matters, in particular an observation in AC's police statement) were ones which were predetermined by the original conclusions and not approached with an open mind.

iii. Dr Ward's answers to questions in oral evidence about those later matters (in particular the passage from AC's statement) were given for the first time, were not based on any acceptable expertise or evidence.

My findings about those contentions are these:

30. The mistaken reference to X's age was probably a typo. I do not accept that Dr Ward was belabouring under any mistake about his age. But even if she had been, as she said in her oral evidence, it would not have made any material difference to her conclusions.
31. Nor was I persuaded that her explanation for the first 3 photographs taken by the mother at J52-54 (photos said to the have been taken before the party) evidenced a determined view to diagnose non accidental injury without evidence:

i. First she had numerous other photos showing very specific and severe bruising, among which these earlier photos were included.

ii. Second, the first photo I have in colour in my bundle - J52 does indeed appear to show a darkened area in the front left hand side which looks puffier than the right hand side. As the photo was not taken from an angle that would show the linear bruises to both sides this was a not an unreasonable conclusion to reach in the light of all of the other evidence. Second, she had the mother and DS own statements referring in graphic terms to the injuries.

iii. Third, in any event, the central opinions expressed by the doctor are based on the side view photographs of X both left and right. It is these that show linear marks the existence of which are an important evidential ingredient of her conclusion that they were caused by a hand.

iv. The submission that this report was rushed and these points are symptomatic of rush is simply unsustainable on any overview of, in particular the first report. It runs to some 41 pages. It is patently thorough. It contains a powerful analysis of the mother's social history, X's medical history, the evidence from police and hospital of the events of 21^st and 22^nd November, and all of the relevant research. It is well written and elegantly expressed. The point about the typo really is de minimis. The point about the 3 photographs for J52 only marginally more substantial.

v. I was satisfied that the marks to the right hand side were horizontal and several in number. I was also satisfied that the mark on the side and near to the hairline that joined to the downward or horizontal marks could not simply be described as a vertical mark. Accordingly it did not undermine the description of horizontal linear marks that were said to be indicative of a hand mark. Indeed I was satisfied with the cogency of the explanation given for it –namely that it could represent the bones in the hand above the fingers. I was also satisfied that their was a linear quality to the marks on the left hand side and that Dr Ward had dealt with this in her report as patently she had done at the bottom of page E108 where she used the words "some linear components".

vi. Her rejection of the suggested mechanism of injury (mentioned only by AC in one line he himself now challenges the complete accuracy, if not the substantial gist of,) was compelling, logical and based on a knowledge and experience of gripping injuries.

vii. Dr Ward is a paediatrician of 31 years experience with 25 years specialist work in child abuse. She is a member of 2 safeguarding boards and Vice Chair of one. Yet she did not come across as jaundiced, cynical or determined to see abuse where it was unjustified.

viii. She could not see how a child could be lifted by the head without the palms being placed on both sides under the jaw. Either the child could not be lifted without this or the fingers and nails would grip into the face. There was no evidence on the skin of this.

ix. I was of the view that she was fully entitled to arrive at the general conclusion – given her expertise – that these very vivid and severe bruises and marks, described by the mother and DS in such graphic terms would have been immediately painful and resulted in crying for a period of minutes, moreover that anyone present would have been aware that he had been injured. She was therefore entitled to conclude that they were inconsistent with the shared descriptions of X's generally happy presentation during and at the end of the party as set out in all or almost all of the police and other statements.

32. Mr Bugg for DS in carefully crafted submissions supported Mr Green and added a gloss to some of his points. I was however completely unpersuaded that the use of supplied hospital notes not originally in the bundle, meant that she relied on any material that might have misled her.
33. Nor was it right that only in the witness box did she say why she rejected the hypothesis that 'squashing' his head and cheeks in the palms was likely to have caused the injuries. First, in her addendum report she made the point that considerable force would have been required to cause this bruising. That was inconsistent both with the mechanism suggested and the overall evidence of the party. Second in the addendum she again referred in this context to the fact that a forceful slap will give swelling linear bruises and petechia. But for a grasping motion to cause such injuries significant and inappropriate squeezing force would have to be applied, but nobody witnessed this. Moreover the criticism that it was not an expert skill to observe in the witness box that she could not imagine how this could be done is not merited. She has seen many gripping injuries in her practice.
34. Of course, I have to be cautious about medical experts asserting propositions that they are not entitled to on their experience and expertise. I am satisfied that Dr Ward did not go beyond her remit. Overall I found her report (which as it happens reached the same view as the treating doctors) to be comprehensive, thorough, well argued, evidence-based as well as founded on good research and her own clinical experience.
35. Having said that, these cases are not decided on medical evidence alone. That evidence forms only part of the jigsaw I have to consider. I therefore move on to the evidence of the lay witnesses

Evidence of maternal grandmother.

36. She is a devoted and loving grandmother, clearly moved to drive to her daughters when she saw pictures of bruises and to confront B when at first she thought he might be responsible. What I suspect is her deep and understandable fear that her daughter might be found to be culpable and that X might therefore be removed from her family led to her being less than straightforward in her evidence in a number of respects and therefore on those matters unreliable. First, I am not satisfied either on or about the 2^nd day at the hospital or indeed at any time there, that X demonstrated a slap and said he had been punched by the children. Not only was the grandmother inconsistent about who was there and how this came out, it is wholly implausible that she would not have told the police this 2 days later and that she would have forgotten it. Had she done so she would have phoned them to tell them. If she was motivated to confront B's father about what happened, she would have done this. This information was added, I am quite satisfied, in order to build a case against someone other than her daughter. Similarly, her confused evidence about the redness of X's face. He may well have had one. But the grandmother tried to emphasise this point, and said inconsistent things about it because she was unable to remember exactly what she had said minutes before. I'm not satisfied his face was any redder than would be consistent with a child who was hot and who had been running around actively. Finally, she was simply unable to give any adequate explanation as to why it was that she had wanted to take X to hospital in the morning, had then delayed for many hours but then taken him to hospital. In my view the truth was that the mother had persuaded her not to for some hours for fear that social services would take action on seeing marks that the family foresaw would be seen as evidence of non accidental injury.

Evidence of mother

37. The mother was not a straightforward witness. There were important aspects of her oral evidence which were inconsistent with what she had said on earlier occasions, or inconsistent with what DS had said. There were a number of significant occasions where she was unable to give a plausible explanation for significant events, where she was evasive and she was quite determined to either emphasise or if it suited her case, take a stance that might suggest that the injuries were occasioned at the party.
38. In answers to questions by Ms Haywood as to the number and content of conversations with X about what had happened at the party, she said empathically that X had not said to her that the teenagers were QUOTE: "picking him up and throwing him around". DS though had said at paragraph 18 [at C98] that when questioned by the mother herself, in his presence immediately upon discovery of the injuries on the Sunday morning that X had said QUOTE: "they were picking me up and throwing me around". Most conspicuously though the mother had said at paragraph 21 of her own statement at [C91] QUOTE: "I asked him what they done to him and he said that they picked him up and threw him around. I was totally shocked". Had she been totally shocked, in my view she would have remembered this. It would have been important and noteworthy, indeed noteworthy to witness. Though the police had taken statements from and/or interviewed 10 people at the party including the mother and DS, none had seen such a thing. It was a small room. The mother was keeping an eye on her son and it is curious that something she regarded as so shocking was not seen. Her inconsistency both with her own statement and DS is in my view because this was a piece of invention that she had forgotten.
39. She was also inconsistent in her accounts of when her mother arrived and when they went to hospital. The grandmother had been sent photos of the bruising. She must have been shocked and upset at injuries to her grandson. She was sufficiently moved by them to later tell JL. She is unlikely to have delayed in going to her daughter's for any great time. She didn't have to go to work in the morning. It is unlikely there was any great delay in the grandmother going to her daughter's house. In her police statement at J 69 she said having spoken of receiving the text at 9.47 and the accusation against B QUOTE: " I then drove with BLANK to EM's house in the mid morning".
40. In the mother's statement in these proceedings at paragraph 22 page [C91] she said of her mother and the text she sent her "she was very upset when she saw these pictures and came over to see X herself". There are some notable aspects of the grandmother's statement I will come back to, however, it is implicit from it and in the passage I have just quoted from the mother as well as all of the circumstances that that the grandmother's arrival was relatively prompt if not rapid. Yet the mother did her best in her oral evidence about the events of that day when she had delayed going to hospital for some 7 hours to be as vague as she could about what was happening during this very important time lag.
41. In so doing she moved the goal posts in a way that was inconsistent both with her mother's and her own statement and inconsistent with her oral evidence about her mother's arrival. In her evidence in chief she said "mum arrived just before or after lunch". This was both deliberately vague but also - and despite it's vagueness - inconsistent with her statement and her mother's. Very shortly after this, and again in evidence in chief she said that QUOTE: "between giving him breakfast and mum arriving I got him ready to take to hospital . I then got myself ready. Then I gave him lunch". Thus as logic dictates the grandmother arrived before lunch – indeed in my judgment it was well before lunch.
42. Accordingly the mother's first account of this in her evidence in chief was untrue. She knew it to be so and was untruthful in order to fudge the delay.
43. She was also expressly inconsistent with whether or not they went to St Paul's hospital via the mother's café.
44. In more than one passage in her oral evidence she told me she had not been able to see X's face when she returned late in the small hours, adding on one occasion that it was dark. Yet she told the police at J 133 QUOTE: " like when I checked him at about half one and he seemed OK. Didn't have any bruises on his face when I looked". Unquote. Either she looked and she could see, and there was nothing, or she could not see as it was dark. Both could not be right.
45. The following morning X's injuries were revealed to her. I would have expected something so shocking to have been memorable to her and DS. He said to the police in his interview at J 107 "I think I was asleep and X was saying "oh my face… my face hurts". Yet the mother said that he was not in pain and indeed the only pain expressed was when she touched what she described as 'the bruise'.
46. This inconsistency was, I was satisfied, part of her deliberate attempt to play down his condition so as to justify the delay, the evidence of which she was so evasive about.
47. Although she had admitted to being scared of going to hospital even before she spoke to her mother and particularly after she had spoken to her sister G, she was at pains to elaborate on what a lengthy and protracted process it was to get herself and X ready to take to hospital, given her lack of mobility at the time. Yet DS was there and had in recent months dressed and changed X, whilst she had been able to jump out of bed to get to her mother's the night before very speedily and to get home at - on her evidence -near breakneck speed.
48. In my judgment any mother concerned about her sons injuries as opposed to social services intrusion would have dropped everything and rushed there. I was satisfied I was still not getting the truth out of the mother about the delay that day.
49. Moreover only after much probing did she feel obliged to agree with me that the wholly untruthful account given to the hospital on her arrival – I QUOTE from numbered page 8 of the medical notes: " mother …..doesn't drive, waited for her mother to give them a lift" was misleading. As she does in fact drive, had possession of her mother's car, had her mother present at her home and advising hospital literally hours before, it is obvious that the account that she decided to give the hospital was calculated to deceive them.
50. There was then her evidence about the events at the party. When it was put to her that had X been punched he would have screamed and she would have heard it, she said 'I can't comment'. She used the same phrase when what was an obvious attempt by B to help X on the tub chairs was put to her. When it was put to her that if no pressure had been exerted to his face when he was dangled by his legs such a manoeuvre would have been unlikely to cause injury. To this she said 'I don't know'. Yet in relation to both, she knew very well.
51. Similarly she was unequivocal in cross examination that she had seen him only being lifted by his ankles the once (as was apparent for the surrounding evidence). Yet in her police statement she had used the expression 'a couple of times" in my view to embellish. Moreover, she had seen no more than X being passed from lap to lap. Indeed given the sitting positions of the teenagers no more than that could have happened. Accordingly her earlier claim that X was thrown was also an exaggeration. And so in one way or the other she had sought to give a misleading account of what had happened at the party insofar as she was able.
52. I will deal with just 3 more unsatisfactory areas of her evidence. First was her journey back to the café in the small hours. Two things are of note, one just another exaggeration. She claimed twice in her evidence that the journey would have been no more than 10 minutes each way. This contradicted her own mother, and a google search of estimated time at that time of night showed the journey to be 18 or 20 minutes depending on route. Given the time needed to get into the car, start it, get out of the car and give her mother the keys and get back into the car and restart it, drive home and come in, she must have been away for X for between 40 and 45 minutes. The second thing of note about this (and in my view this is important and I will come back to it), is that she said nothing about this journey to the police at all in her first interview. Yet this exceeds 70 transcribed pages. Although many pages are wasted on formalities, it is replete with detail. She could not possibly have forgotten this as she now claims. When one examines the flow of the interview it is apparent that she deliberately left it out.
53. The second to last unsatisfactory area was in relation to DS. Only two months before she had texted that she was QUOTE: " scared, that he was getting violent". So much so that she QUOTE: "would rather stay back" and that "he wouldn't listen if she sent him home" and that "she had to deal with her own problems" even if QUOTE: " it means getting hurt once in a while". She was cross examined about this and claimed it had been taken out of context. She denied that he had in fact been violent. She denied the very word she had used because it was not direct physical violence to her. He was simply throwing things around, throwing objects having been drinking. She was in my judgment making very light of this behaviour in a way that was unsustainable. In the same way she made light generally of the effect on DS of drink. Nor was I satisfied that I was getting the truth from her as to why she did not feel able to leave X with DS alone (save for perhaps one modest occasion) though they had been in a relationship for a year.
54. The final area was her assertion that X had volunteered that he had been punched (though a slapping motion had been indicated) by the so called 'kids'. Her failure to mention this important indeed seemingly crucial information in her statement, to the police or to the social worker is inexplicable. She claims to have mentioned it to Jamma Umoja. They did not record this though they could not have been unaware of its importance.
55. In summary, the mother was a wholly unreliable witness.

DS

56. DS came across as hard and challenging. I was particularly struck by how this young man, only 23 and in a family court for the first time, could answer counsel back in a discourteous and almost menacing way. Some examples only are these. He said to Ms Van de Leij for the father "is that that hard to understand" at one point. At another, when she moved on from an alleged problem with alcohol, she said 'what about Cocaine', he said "what about it". When she suggested something to him he said "you can suggest, but it's not true". When later he says he heard AC's account he said in evidence he "thought about going to beat B up."
57. However having seen DS, his manner was consistent with the description of him by the hospital doctors at page 33 of the medical notes. "Step dad presents very hostile towards myself and Dr Irwin". I didn't hear any live evidence from the staff at Jamma Umoja and make no findings about things they say they witnessed. But Jamma had said - repeated at paragraph 6.11 of the social workers statement that on one occasion X had come to his mother, upset that DS had squeezed and hurt his hand. The report goes on "DS was then observed by staff to enter the room and get down to the child's level before repeatedly calling him a liar". …. "staff commented on the aggressive nature of DS actions towards a small child". I make these observations . First the word 'staff' is used, not member of staff. So it would seem more than one professional made the observations. Secondly, DS admits using the term but says he was not aggressive and his was misinterpreted. Yet these professionals in the plural were of the view this was aggressive. Third, the fact that DS can be shown through contact notes to be warm and loving on occasions, as his counsel says is the case, does not mean he can't also behave in this way. In my judgment his manner as described was entirely consistent with the person I observed in the witness box.
58. He gave me the identical line to the mother about the time when he was in the house two months before these events and she was outside and texting that she was scared, that he was getting violent, etc. He was not, he claimed, violent because he was in the house and she was sending the texts from outside in the car. In any event, he said he could not remember it as he had been drinking.
59. On that question the mother accepted that DS had told the social worker he had issues with alcohol and 'needed to limit himself to one beer to avoid problems'. DS said he didn't think that he had a problem with alcohol and didn't at the time of the party or now. The mother told me in her oral evidence that DS had 4-5 bottles of beer that evening. DS said at paragraph 11 of his statement he had about 4 bottles. In his oral evidence this had become 3 bottles. Yet even though this was not a particular late night, he is said to have fallen asleep on the sofa downstairs shortly after his arrival home before being roused to go up to bed.
60. A number of other aspects of his evidence were also unimpressive. He didn't properly explain the circumstances in the morning when these serious injuries were discovered. He both heard the mother exclaim 'Oh My God' and also claimed he continued to lay in bed taking another 10 -15 minutes to fully wake up, though he also claims to have got to bed at a not particularly late hour and this was 9 am. He was though he said sufficiently conscious to be able to hear X claim that it was the children who had caused his injuries.
61. There was also a contradiction between his description of X's behaviour to the police "bouncing of the wall" etc with his assertion that he didn't find him difficult to manage. Finally he purported to have no recollection of the mother's response to his alleged suggestion that she should go to hospital during the many hours he and the mother spent at home on the Sunday delayed going to hospital.

B, HH, and RF.

62. Whist each is an individual whose evidence stands alone, I make the following general comments. First Mr Bugg cautioned me against attributing undue weight to witnesses simply because they might be well spoken, more affluent and better educated then the mother and DS. Of course, that must be correct. None of those things affect veracity. As it happens I have absolutely no idea about the relative affluence of any of them as against the mother. As to education – all I know of them is that they are all about to do A Levels. The second thing I record is this. All freely admitted discussing this case between themselves. I thought that was entirely natural and that they were straightforward about it. There was nothing in the least bit sinister about the fact that their texts were no longer available and I accept the explanations given. They had nothing to hide. Deliberately abusive behaviour was not alleged against any of them. Though the police made enquiries none of them could have felt under credible threat of a charge, and none are parents who might fear the consequence of findings in family proceedings. In fact I found all of them to be truthful, straightforward and honest witnesses. On any occasion that there is any clash between their evidence and that of the mother or DS that I have not expressly dealt with I prefer their evidence.

AC.

63. In his police statement he said he saw JL's son and friend lift X up by squashing his head and cheeks in the palm of their hands. He was quite clearly speaking in the plural. In his oral evidence however he insisted it was just one. The contradiction was because, he said, the police had misrepresented what was put into the statement. He had however signed on each page including at the beginning where there is warning of possible prosecution for false statements.
64. No one else witnessed this incident. AC was working behind the bar at the time. I am not satisfied either as to his ability to clearly see what he says he saw, save that he certainly didn't hear, or see anything that so troubled him that he intervened in any way. Most of all, I was troubled by his partiality. He was of the view that one doctor –as he believed it be - whose report he had not seen, had concluded that there was non accidental injury and the finger was being pointed at his sister. He was dismissive of this view and clearly angered by it. He and the family had clearly discussed these things before he spoke to the police. I was not satisfied that his evidence was reliable.

Summary of evidence about the party

65. I look at the things said about the events at the party by the 10 witnesses interviewed by the police. The mother, DS, CI, MS, MF, B, HH, RF, AC and JL. Of these, 7 have given oral evidence and I have already given my impressions. Three did not.
66. First I look at their general recollections. Nothing that any of them said was consistent with X having suffered the sort of injury described by Dr Ward and that would have been painful at the time of infliction and would have caused X to cry out in pain such that anyone present at the time would know that he was injured.
67. In fact the reverse. At paragraph 21 of her statement in these proceedings, the mother said that she had been keeping an eye on X while at the party and other than when he bumped his cheek on the table and when the balloon popped, he had not seemed in any distress. In her oral evidence she said that in fact he was upset to go home. She told the presenting doctors, as Dr Ward recorded at page E 85 of the report, that she thought he was enjoying himself through the evening, saw him laughing and giggling and did not appear upset or distressed at any point.
68. DS told the police at page J105 of the events just after X was sick that and I quote " he doesn't seem to be bothered by it and just went straight back and kept on playing". CI who described the incident when B held X upside down by his ankles, said that "X was happy" at the time, and that afterwards "X came over and sat on my lap. I gave him a cuddle. He was fine. At the end of the evening she said that when he left he was fine not crying and not upset". MS described how X was fine after he hit a chair leg on the right side of his face, that she tried to pick him up but that he was okay and didn't want to get up. When he left, he had a red face and was sweating from playing so much. There was no bruising on his face. HH described how after X knocked into the side of chairs he always had a smile on his face and how after he was pulled over by hands under his armpits he didn't moan or complain and was absolutely fine. RF described how the play with him was not aggressive and if anything, and I quote "it was the child hitting at the boys". AC said that he didn't see anything wrong with the play, but X was getting overexcited. At the end of the evening he saw his sister pick X up and apart from being hot and having a red face, he seemed fine. He didn't want to leave and there was nothing untoward when they left. JL said that all he could hear from X during the evening was laughing and never crying, and that he appeared to be enjoying himself
69. I move on to specific incidents where witnesses described X's body coming into contact with an object or X being handled in a way that a witness found either noteworthy or concerning. I will set out the evidence and give my findings in relation to each, noting before I do that it is the mother's case that a combination of X's collisions with various objects that evening might be the explanation for his injuries.
70. First this: The mother said at paragraph 15 of her statement that she recalled, and I quote "the teenagers taking him up and holding him upside down. At one stage he was facing upside down towards one of them and his head was dangling between his legs. CI saw B holding X up by his ankles, noting that B was sitting down when this happened and that he was not holding X very high. She asked him to calm down. She commented that X was happy. The grandmother saw B holding X up by his ankles upside down, and that X said he was fine (her police statement page J 68). B admitted that he held X upside down, and that he lowered his head between his knees, however he did not lock his head between his knees.
71. This is my note of the mother's answers to cross-examination by Miss Hayward on this point. "I saw him dangle by ankles – whether it was locked or not I can't say- it was between his knees". Ms Haywood: "if there was no pressure it was unlikely to cause injury". Answer: "I don't know". Question – "only if his head was squashed between his knees really hard would it have caused this – and he would have screamed". Answer: "yes - I agree he didn't scream".
72. Indeed, no one saw X's head locked between his legs and thus there is no evidence that X's head engaged with B's knees. In order to cause these injuries or any part of them this would have been essential. Moreover, not only would his head have had to engage with B's knees, it would have had to have engaged forcefully and painfully. Yet CI's evidence was that at this time X was happy. This was also B's evidence and MF's evidence was that he was fine, whilst the mother was forced to admit that she did not hear X express any distress. The mother's oral evidence on this point, which I have just set out in full, was indicative of her unwillingness to accept the obvious. This event could not have caused these injuries. I have already dealt with the mother's unsatisfactory evidence, but in conclusion on this point, her use of the expression "the teenagers" is a further indication of the unreliability of her allegations and evidence. Only B held X in this way, and not his friends.
73. The suggestion that X was spun around by the teenagers. None of the 10 witnesses saw this. The mother claims that X told her that this had happened. DS corroborates this. If X said it, it was not necessarily a reliable description of what had happened, but I am not able to accept on a balance of probabilities that he did so. B expressly denied this and I accept his evidence. In any event, the mere fact that he was spun around is not consistent with any of the bruises described.
74. The allegation that X had been picked up and thrown around. This is something repeated by the mother and DS in their statements. In her oral evidence, the mother expressly denied that X had said this. I have already dealt with this. No other witness described such a thing happening. I do not accept that X ever said this, or that it ever happened.
75. Putting his head between the armrests of two chairs and flipping himself over and being encouraged to do this by the teenagers. This was an allegation made by DS. Mother also said that she recalled him putting his head between the leatherette chairs. B's evidence was that he did not put his head between the chairs or encourage him to do this. X was however doing it voluntarily and that he bumped his head on the tubchair that B was sitting on whilst he was playing this game. The description he gave was not of a traumatic event nor did he describe X being upset by it. In my judgement, DS has exaggerated what he claimed to have seen. I accept B's evidence, but on the evidence of either of them, what happened was not consistent with either the injuries described by Dr Ward or the reaction to the force that would have caused them.
76. The allegation that X was jumping up on the teenagers laps. To the hospital, and again as recorded by Dr Ward at page E 85 she said she saw the boys throwing X from one seat to another and landing on his bottom in the seat of a padded armchair. X was laughing, not crying during this game. In her police interview at page J132 she also said that she saw them, that is to say the teenagers, throwing X from chairs, though she added he was not crying and didn't look like he was being mistreated or harmed in any way, though she said that she had gone over and sat there for five minutes just asking him if he was okay. It was clear from the answers that she gave to Miss Haywood in cross examination, that the distances between the chairs, which were set close to each other in a small space precluded X being thrown in the way described. In reality, X was being passed from chair to chair. In my judgement this was an exaggeration by the mother, and a deliberate one. B denied that the mother had in fact gone over and sat with them at this juncture for about five minutes or at all. I accept his evidence. However even if the mother was right, the incident that she described, which she had to accept was neither distressing nor consistent with the appearance of mistreatment or harm, could not have caused any of the marks to X's face.
77. The mother's description of X getting overexcited, bumping the right side of his face into a table. She set this out at paragraph 15 of her statement and said that she checked that he was alright and told the teenagers to calm down. X seemed, she said, absolutely fine. DS purported to corroborate this incident at paragraph 12 of his statement when he said "at one point I heard X cry and I saw EM go over to him. The teenagers told her that X had smacked his head on the metal table I think. I saw EM calm him down and then X came over to me. He was touching the back of his head and said you had to kiss it better, so I did. Then he ran off and he seemed fine".
78. B did not however see X bump his head on the table. Indeed no one else witnessed this. Again, I prefer B's evidence to that of the mother's. No other witness said it happened. He says he did not see this happen. It would follow that he would not have told the mother that he had smacked his head on the metal table, as DS alleges, if it didn't happen. Indeed on the face of it there is a contradiction between the mother's claim that she witnessed this happening, and DS claim that the teenagers (in the plural) told her it had happened. Again, this is, in my judgement the mother and DS trying to make the events of the party account for the injuries. However, they don't. Even if the mother's evidence were right, the fact that on her account "he was absolutely fine" is inconsistent with Dr Ward's evidence of the effect of the infliction of the injuries. Moreover his face coming into contact with an inflexible single metal object cannot, on Dr Ward's evidence, account for the series of linear marks which extended across all plains of the face and down onto the jaw. Finally, DS account was that X on this occasion "smacked his head". This was not the side of the bruising and is inconsistent with the mother's account that this incident related to the right side of X's face.
79. Allegations relating to the teasing of X with a balloon or balloons. The mother says that X played with a balloon. One of the teenagers popped it and X was a bit upset at that stage. MS said that X was jumping up and tried to get the balloon and cried. AC said that they were rubbing his face and hair with balloons to get the effect of static, something that he did not see anything wrong with, but that X was getting overexcited. He did note though that later X burst into tears when one of his favourite balloons burst. B said "he was rubbing balloons on X's hair to make it stand on end, something he found very funny. He did not however rub the balloon's on his cheeks".
80. I prefer the evidence of B to that of AC. However, even if AC were right, simply rubbing balloons on the side of X's face could not, on Dr Ward's evidence, have caused these injuries or any part of them. In contrast to when the balloon was later popped and when X cried, this was playful behaviour, something that caused no distress whatsoever, and that AC did not see as anything wrong.
81. The mother's contention that he ran past DS, and caught his eye on his hand, causing him to cry for a little while. This may, or may not have happened. If it did, it does not appear to be in any way related to the marks on X's face, and the fact that he cried for a little while is also inconsistent with Dr Ward's description of the effect on a child of the infliction of such injuries
82. MS statement to the police that X hit a chair leg with the right hand side of his face". She went on to say that she then tried to pick him up, and that he was okay and didn't want to get up. She went on "he actually punched my face in a playful way" for the reasons that I set out in relation to the metal table leg alleged by the mother and DS, the injuries and analysis given by Dr Ward are not consistent with impact of this sort. In any event, this appears to have been trifling from the surrounding description given by MS of the effect on X afterwards.
83. Hitting the back of his head on a chair, as described by B to the police in the summary at page J 86: this is not the site of the injuries recorded
84. being pulled over by HH by putting his hands under X's armpits. This is something described by HH to the police in the summary at page J 87. He told the police that X did not moan or complain and was absolutely fine. In my judgement this in itself is entirely inconsistent with the linear marks to both sides of X's face, moreover X's reaction is also inconsistent with those injuries.
85. X banging his head on the window. HH said at page J 87 that this was simply him hitting his head slightly on the back of his head on the window, but she rubbed it better and he was fine. This was related by RF at page J 90 in the police summary. However at paragraph 7 of the statement that RF signed in these proceedings she said that he banged his forehead on the shop window when trying to catch the balloon. He only cried for a few seconds and she gave him a hug and he was instantly better. In my judgement, whether it was the back of his head or his forehead, neither side relates to the injuries in question. Moreover X's reaction is inconsistent with the force required to have caused the injuries in question
86. AC's evidence to the effect that X and I quote "friend on occasion lifted X up by squashing his head and cheeks in the palms of their hands" AC was a cross examined by all of the Advocates on this particular question and I have already commented on the reliability of his evidence. I do not accept that he was lifted in this way.
87. The more generalised assertion that X was crawling around on the floor: this does not appear to have been a cause of any impact injury.
88. In summary, in my judgment B, RF, and HH engaged with X in a way that was boisterous. It was not abusive, even if it was very energetic and physical. It was sufficient for B to be told to calm down, but I am satisfied that it was that no more than that.
89. The preponderance of the evidence that evening is that X really enjoyed himself so much so that at the end of the evening he did not want to go. Moreover on B's evidence X had been cuddling B. In truth, it was highly unlikely that significant bruising could had occurred there.
90. The assertion that X said it was the kids is also wholly unreliable. He may well have said this to LT. There are careful guidelines about interviewing children for good reason and real dangers about discussing things with them and thereby suggesting things to them - as I suspect happened here.
91. I am therefore quite satisfied that nothing on the evening of the party caused any of these injuries to X and that none of the teenagers were in any way responsible for any of them.
92. Summary of conclusions on the evidence:-

i. The medical evidence as to the size of the bruises, their position on the face and their absence elsewhere means these bruises are more consistent with inflicted than accidental injury.

ii. The medical evidence that these injuries were caused by a hard forceful slap to both sides of the face is compelling.

iii. The medical evidence that the injuries were inconsistent with any described event at the party is compelling.

iv. My observations of the oral and written evidence of the witnesses at the party is entirely inconsistent with any injury being caused at the party

v. No event, no mark to X, no aspect of his behaviour or presentation before the party is consistent with the injuries occurring before the party. Yet a carer would have reported any of these things.

vi. The injuries must have therefore been occasioned after the party and before 9.47 am the next morning and they were inflicted deliberately.

vii. Only the mother and DS were present at those times. Both have chosen to lie to the court and to professionals. I remind myself of the X direction. In my view the lies told were not told to embellish the truth, but to cover up what happened.

viii. It is however implausible that both caused these injuries. One did. The other either knows or suspects that the other is a perpetrator

93. The local authority invite me to rest my findings on the basis that both could be perpetrators. I will not do so.
94. Dr Ward at pages E77 – 80 sets out a history of the mother's family's extensive involvement with social services when she was herself a child, when her family were subjected to physical abuse by her father, who was convicted on more than one occasion of assaults on the family. Indeed he went to prison. On one occasion he slapped one of his children in the face. On another the oldest child suffered bruising at his hands. It was not put to the mother that these examples of abusive parenting to which she was subjected might have impacted on her own parenting. Nor is there any expert evidence that she might have herself had a propensity to act in this was as a result of her experiences. I do not therefore attribute any significance to this information in deciding who was the likely perpetrator of X's injuries.
95. What is in my view significant though is this. In her police statement the mother decided, deliberately in my judgment, not to tell the police that she had left the house for a not insignificant period leaving DS alone with X. In her oral evidence she deliberately underestimated the journey time and therefore the time she was away. There can only be one reason for that. It was not to protect herself from an accusation of inflicting injury. It must have been to protect DS.
96. In my judgment this can only be because she either knew or she suspected that he caused the injuries. If she suspected it , she cannot have caused them. Her loyalty to him was overwhelming and misplaced. She minimised his propensity to violence and gave implausible explanations for the occasion she texted about his violence. She minimised his alcohol consumption.
97. There is evidence, that she herself accepted that he can be very adversely affected by alcohol. There is evidence that he can become very aggressive in those circumstances –again the texting incident. There is evidence that he has had to confine himself to only one drink. The evidence is that he drank a good deal more on that evening, that he has deliberately understated it and that so inebriated was he that he fell to sleep on the sofa on his return home. There was a good reason why in one year of a relationship the mother would not leave him alone to look after X, though she was not in my judgment prepared to be candid about it. Moreover there is good evidence that X was a very boisterous child and difficult to manage on that evening.
98. We will never know precisely what happened on that evening. Only one, possibly two adults really know. But it is very possible that when the mother left that evening, X, who had been difficult to get to sleep, woke up when through the paper thin walls he heard the door slam. He cried, DS went in to him to calm him and in drunken frustration at X's distress at not being comforted by his mother slapped him very, very hard on both cheeks. X would then have cried loudly and strongly for some time until he cried himself to sleep well before the mother returned 40 minutes or so after she left.
99. Whether DS has ever admitted this to the mother on being questioned by her we cannot know. Whether she fears his reaction or simply believes that covering all of this up is the best way of preventing her children being removed from her I also don't know. What I do know is this has been the absolute height of folly by her with the most profound of consequences.
100. Whether these injuries occurred precisely as I have surmised I do not know. There is however a real possibility that these injuries were perpetrated by DS and not the mother.
101. I therefore make all of the findings sought at paragraphs 1-4 of the composite threshold. As to paragraph 5 I find that DS inflicted these injuries. I also make the findings sought at paragraph 8 . I also find that the mother has by her actions failed to protect X.