B e f o r e :
: HHJ Vincent
||K and L
||(Acting through Children's Guardian, NA)
||3rd and 4th Respondents
Alex Forbes, instructed by Oxfordshire County Council for the Applicant
Howard Wilson of Wilsons solicitors for the First Respondent mother
Anne Donelon, instructed by Bastian Lloyd Morris, solicitors for the Second Respondent father
Stephen Crispin, instructed by Oxford Law Group for the intervenor IJ
Melanie De Freitas, instructed by Reeds solicitors, for the children's guardian
Hearing dates: 26th, 27th, 28th February 2018, 1st, 2nd, 5th, 6th and 9th March 2018
HTML VERSION OF JUDGMENT
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- I am concerned with two children; K who is four and a half, and his little brother L , who is two. L has a diagnosis of a serious life-limiting genetic disorder known as ARX, and has very high level of need. ARX affects the muscles; L cannot sit up unaided and has poor muscle control. He is developmentally delayed. ARX causes infantile spasm syndrome, which L experiences, although his seizures are fairly well-controlled through medication. He is fed by means of a PEG tube, previously a naso-gastric tube was fitted.
- K and L 's mother, EF , has some difficulties with reading, writing and communication, although in July 2016 she was found not to have a learning disability by the City Learning Disability Team, and when assessed by Dr FF for these proceedings, he considered that she did not satisfy the criteria for a diagnosis of significant learning difficulties/disabilities. The mother had two younger brothers who also had ARX genetic disorder, and very sadly both have died, one aged seven, and most recently her brother R died in April 2017 aged eighteen. The mother's older sister S and her two children live with their mother.
- The boys' father is GH. He and the mother have had an 'on/off' relationship, and separated permanently in around October or November 2016, but they get on relatively well and are generally supportive of one another. The father has a diagnosis of fibromyalgia, but is still able to work full-time as a security guard.
- The mother has also had an 'on/off' relationship with the intervenor in this case, IJ, for the last ten years. He is a lodger in the maternal grandmother's home.
- The local authority has been involved with the family since around the time L was first diagnosed with ARX in about April 2016. In February 2016 the health visitor had understood L to be named AJ, and that IJ was his father. By April 2016, he was being referred to by all as L. In May 2016 L 's mother accidentally gave him an overdose of his epilepsy medication. In June 2016 K 's nursery made a referral to the local authority when twenty bruises were identified on his body. There were concerns about mother's ability to care for L's complex needs and to provide basic care to K. L was placed on a child protection plan in June 2016. That was stepped down in November 2016, but K was stepped up to a child protection plan at that time.
- Doctors advised in December 2016 that L should be fitted with a naso-gastric tube, but it was not fitted until July 2017. The mother has accepted that she cancelled appointments to do this, which caused a delay, and this put L at risk. After the NG tube had been fitted, and when L was still in hospital, concerns were raised by nurses on L's ward; it was suggested that the mother had been feeding solid foods to L and was not always following their advice. The mother agreed to go and live with K and L 's father following L's discharge from hospital around 3rd August 2017. L was placed back on a child protection plan for neglect on 21st August 2017, but it was agreed that the mother could return to her own home with the boys, which she did on 22nd August 2017.
- Prior to proceedings the mother was working on Mondays, Tuesdays and Thursdays and occasional Saturdays. IJ would come and collect the children and their mother and take them to their maternal grandmother's house, and then drive the mother to work, returning to collect her three or four hours later.
- On 2nd September PGM looked after L and mother and K went to see father in the evening.
- On 5th September 2017, the mother and the boys stayed with the father so that the parents could take K to school together on his first day at primary school, the following morning.
- When he arrived at school on 6th September for his first day at school, K had a vertical scratch underneath his left eye, and he told his teacher that his mum had hurt him by slapping him.
- K was seen at a child protection medical that day, and photographs were taken the next day of bruises and marks on his body. In total I have counted that sixteen bruises or marks were identified.
- K's mother said that her friend IJ was responsible for the scratch on K's face; K had fallen and as IJ had put his hand out, his thumbnail had caught K's face. A bruise at the top of K's inner thigh was said to have been caused when IJ was looking after K and K had climbed onto the kitchen worktop and fallen down into a gap between the worktop and the cooker. The mother said that she was responsible for a mark on K's neck with petechial spots; she said that she had grabbed him to stop him running out of a shop. The mother had no explanation for any of the other bruises.
- A child protection meeting was convened following which K and his brother L went to live with their father. The father works shifts as a security guard and his mother, PGM, helped him to look after the boys.
- Proceedings were issued on 11th September 2017. The father's position at the time was that he would wish to care for both boys long-term, but he did not feel able to give up his job at that stage when it could not be known whether he would be assessed as able to care for both of them. At a hearing on 20th September 2017 I decided that L should move to live with a specialist foster carer during these proceedings. K remained with his father. Unfortunately, L came down with a virus and spent the first week or so of his placement in and out of A&E and was then admitted to hospital where he remained for a further two weeks.
- On 15th September 2017 K showed his teacher a bruise on his left nipple and said that his father had hit him. K attended a second child protection medical with his father and photographs were taken of the bruise. As well as this bruise, the scratch on his face and a bruise that had been identified at the previous medical, the doctor noted multiple bruises on K 's shins, an oval bruise in the middle of the back of K's left thigh, and a bruise on his buttock. So far as the bruise to the chest was concerned, GH said that K had put a clothes peg on his nipple when playing, and when he pulled it off he screamed. The father did not have any explanations for the other injuries.
- At school on 9th November 2017, K's teacher was helping him put on his coat when he lifted up his shirt again, and showed a bruise in the middle of his chest, between his nipples. The teacher reports that K said W (a girl in his class) 'had done it.' At a contact session after school that same day, K was reported as having said, 'daddy hurt me again, mummy hurt me again
daddy makes me cry.' The supervising social worker asked K what he meant and he said, 'daddy hurts me, mummy you always do hurt me.' His maternal grandmother, MGM was there, and she said 'that's enough now', and no more was said.
- K was taken to a third child protection medical. On this occasion the doctors who saw him identified (at my count) thirty-eight bruises and marks on K's body. They concluded that several of the bruises could be explained by accidental injury given K's very active behaviour, but some of the injuries, in particular the circular bruise in the middle of his chest, were suspicious for non-accidental injury. They also identified a bruise to K's right check and linear bruises to the back of K's left calf as concerning. Marks identified on K 's forearm were described as injuries which could have been caused by K raising his arm to defend himself, also suggestive of a possible inflicted injury. K did not give any explanation for any of his injuries to the doctors.
- The father accepts that the injuries to K's left calf may have been caused by him when he was playing a tickling game with K and pulled him towards him by the lower legs. He says that small scrapes or scratches under K's right eye and on the bridge of his nose were caused when K ran into a glass door at school, and also into a door handle at home. He asserts that the bruising on K's chest was caused when he was at school, and that K had also showed it to him and told him that W was responsible. He has no explanation for the other injuries.
- This hearing was originally designed to be a final hearing, encompassing a fact-find and final welfare hearing, but during the course of proceedings, as the further allegations were made in respect of the injuries sustained by K when he was in his father's care, it was decided to use this hearing as a fact-finding hearing only.
- L remains in foster care and is doing well. K remains living with his father, supported by his mother, PGM. The boys are having regular contact with their mother and L is seeing his father regularly. K's school has continued to document any marks or bruises that they have seen on him, and to record incidents or explanations given. K has continued to sustain a number of injuries from falling over, and colliding with classmates in one way or another. There are a number of bruises and marks seen on him which were not witnessed by school staff and K has not been able to explain how they were caused.
- The local authority, represented by Mr Forbes, has not made final recommendations, awaiting the findings from this hearing, before identifying what further assessments may be needed. The authority's parenting assessment of the mother in respect of a carer for either boy is negative. The local authority's assessment of the father is positive, but notes there are unanswered questions about some of the many bruises which K has sustained while in his care.
- The mother is represented by her solicitor Mr Wilson. She would desperately like both boys to be returned to her, but would accept them being placed with their father if that were not possible. She does not want L to go into foster care, she does not want the boys to be separated from one another.
- The father, represented by Miss Donelon, is putting himself forward as K 's carer, but has come to a decision that he is not able to care for L as well.
- The guardian, represented by Miss De Freitas, maintains a neutral stance at this fact-finding hearing.
- Mr Crispin represents IJ, who was joined to the proceedings as an intervenor, for the purposes of defending the allegations against him in respect of some of the injuries to K.
- I am grateful to all the legal representatives for their help in this case.
Findings sought by the local authority
- The parties have had useful discussions about threshold, and the parents accept that threshold is crossed. Their composite document is attached as Annex 1 to this judgment, and helpfully shows which matters are accepted, and which remain in dispute.
- Paragraph 1 of the threshold document alleges that the parents have caused and would be likely to cause physical harm to K by deliberately inflicting injuries on him.
- Mother accepts the allegation at paragraph 2 that she has been unable to enforce the boundaries she has set for K and as a consequence K's behaviour is chaotic. It is acknowledged that K is very energetic and that the mother was looking after two children, including L, who has significant disabilities.
- Paragraph 3 and its sub-paragraphs relate to mother's management of L's complex health needs her ability to follow medical advice. The local authority's allegations are accepted for the main part, in particular in respect of the accidental overdose and the delay in arranging for the naso-gastric tube to be fitted. Two allegations remain in dispute; (i) that on 24th July 2017 the mother finished L's feed ten minutes early, contrary to medical advice; and (ii) that on 26th July 2017 she fed him solid food contrary to medical advice.
- Paragraph 4 alleges that the father failed to protect L from the risks posed by mother's failures to meet his needs. This is disputed.
- Paragraph 5 relates to IJ and notes that in July 2017 he was in hospital holding L while he was asleep, that on another occasion he was asleep and squashing L who was in his arms, and that K sustained injuries while in his care. While it is accepted that these incidents occurred, it is denied that 'it is unsafe for the children to have been left with IJ', as pleaded.
- Paragraph 6 alleges that the mother has allowed K to be in bed with her and IJ while he was sleeping naked, and this was inappropriate. The mother accepts that IJ sleeps naked but says that she did not allow K to be in bed with her and IJ, but only to be on the bed with his own quilt cover, which he carried from his own bed.
- The Court may only consider whether to make a care or supervision order if satisfied that the threshold test is passed, as set out at section 31(2) of the Children Act 1989:
'A court may only make a care order or supervision order if it is satisfied
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child's being beyond parental control.
- The relevant date for determining whether the children were suffering, or were likely to suffer significant harm is 11th September 2017, the date proceedings were issued, but subsequent incidents may be pleaded in the threshold document as evidence of the risk it is said a parent would have posed to their child at the time protective measures were taken.
- 'Significant harm' must be 'significant enough to justify the intervention of the state and disturb the autonomy of the parents to bring up their children by themselves in the way they choose' (Re MA (Care threshold)  1 FLR 431. The Court must be satisfied that the harm is caused by the care given to or likely to be given to the children, not being what it would be reasonable to expect a parent to give the children.
- What is significant harm? At paragraph 27 of Re B (a child)(Care proceedings: threshold criteria)  UKSC 33, Lord Wilson refers to the case of Re L (Children)(care proceedings: significant harm)  EWCA Civ 1282:
.the rehearing was conducted by Hedley J and, by his judgment reported as Re L (Care: Threshold Criteria)  1 FLR 2050, he declined to hold that the threshold was crossed. He observed, at para 50, that "society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent"; and, at para 51, that "significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it" but that "it is clear that it must be something unusual; at least something more than the commoIJlace human failure or inadequacy".
- In Re S (A Child)  EWCA Civ 25 Ryder LJ considered the use of the phrase, "non-accidental injuries":
- 'The term 'non-accidental injury' may be a term of art used by clinicians as a short hand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
- The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.'
- The burden of proof is on the local authority making the allegations to substantiate them. The parents do not need to prove that they are not true.
- Mr Crispin has referred me to the case of Re M (fact-finding hearing: burden of proof)  EWCA Civ 1580, in which the Court of Appeal warned against the dangers of inferring that because the parents had not given an explanation for an injury, the real explanation must be a sinister one. There is no requirement upon the parents to satisfy the Court that these injuries were accidental.
- The local authority must not only prove on a balance of probabilities the facts on which it relies, but must link the facts upon which it relies with the assertion that the children are at risk by demonstrating exactly why, on the given set of facts, the children are at risk of significant harm.
- The standard of proof is the balance of probabilities. Thus disputed allegations only become proven facts if it is more probable than not that they occurred. At paragraph 13 of his judgment in Re B  UKHL 35 Lord Hoffman states that 'the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not'.
- Findings of fact must be based on the evidence. In Re A (a child)(fact-finding hearing: speculation)  EWCA Civ 12 Munby LJ said, 'it is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.'
- Some of the evidence before me is relevant and some of it is not. I remind myself of the direction that a judge gives to a jury in the Crown Court that the fact finding tribunal does not need to decide every point that is raised. It is only necessary to decide those points that will assist in determining the central issues before me.
- I have to decide this case on the evidence before me at trial. Again, as in a criminal case, as the jury is directed, I may come to common sense conclusions based on the evidence that I accept. However I must not speculate about what evidence there might have been.
- I must take account of all the evidence and each piece of evidence in the context of all other evidence:
'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 and exercise a totality of the evidence to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof.'
(Re T  EWCA Civ 558 at para 33, per Butler-Sloss P.)
'A factual decision must be based on all available materials; i.e. be judged in the context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.'
(A County Council v a mother & others  EWHC Fam 31 Ryder J)
- Hearsay evidence. Butler-Sloss LJ in Re P (child: compellability as witness)  FCR 337 at 344; sub nom R v B CC, ex p P  2 All ER 65 at 72, said: 'A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon'. When considering the evidence of the witnesses I must take care to identify those parts of their evidence which is part of their direct recollection, and those parts of their evidence where they are reporting what someone else has said, and to assess the relative weight of such evidence accordingly.
- I remind myself of the direction that, in a criminal case, would be called the 'Lucas' direction because it is based on the case of R v Lucas  QB 720. If proved that a person has lied, the Court must analyse the relevance of the lie to the issues in the case. A lie may be in relation to an issue that has no relevance to the real issues before the court. Lies may be told for many reasons. A person may lie out of a sense of shame, misplaced loyalty, humiliation, embarrassment, panic, fear, confusion, emotional pressure, a desire to conceal other misconduct or for many other reasons.
- The evidence of the parents is very important and the Court must be able to form a clear assessment of their credibility and reliability. I further remind myself that credibility alone cannot decide this case and that, if a court concludes that a witness has lied about one matter, it does not follow that he or she has lied about everything.
- Any findings of fact are for the Court to make based on the evidence before it. No weight should be given to the opinions of others about the credibility of a particular witness.
- With all this carefully in mind, I turn next to the evidence in the case, and then set out my conclusions and analysis in respect of each of the disputed matters on the composite threshold document.
Dr Kate Ward
- Dr Ward is a consultant paediatrician and is designated doctor for safeguarding for Bradford, Airedale, Wharfedale and Craven CCGs (Clinical Commissioning Groups). She has prepared a detailed report about K and L, and gave evidence by videolink for a whole day.
- There was no challenge to her conclusions in respect of L. She sets out in detail his history and in particular notes the serious consequences to him of the accidental overdose and the delay in having his naso-gastric tube fitted.
- So far as K was concerned, Dr Ward has meticulously recorded each of the bruises and marks seen on him, and matched up to the various notes body maps prepared by the doctors who assessed him at the three child protection medicals. She has seen all the documents in the bundle, and both boys' medical records. She has set out a detailed chronology, and analysed the evidence of histories given at the time or after the marks were discovered, and recorded explanations provided by the parents. The nature of bruising is such that it does not in itself give an indication of when the injury was caused, nor in usual circumstances does a bruise give more than a clue as to how it was caused.
- Dr Ward notes that tests have been done on K 's blood and excluded any disorder; he is not in the category of 'easy bruisers'.
- Dr Ward sets out each of the injuries discovered, in June 2016 at examination by K 's general practitioner, and thereafter at the three child protection medicals. She states where she considers it is not possible to say whether injuries were accidental or non-accidental.
- Her oral evidence was very impressive, she came across as thoughtful and considered in her views, and ready to concede where she accepted that the weight of the evidence did not support a conclusion that it was more likely than not that a particular injury was inflicted or non-accidental. In general, she defended her opinions robustly and with confidence. She had built up a thorough and comprehensive knowledge of the case, and brought to it her evident analytical skills, clinical experience over some thirty years as a paediatrician, and knowledge of relevant research.
- Mr Crispin skilfully took her to some of the research upon which she relied, and she accepted the limitations of statistics, but she was clear that her opinions were based not just on statistical research, but her own experience and training, and her expert analysis and assessment of the particular injuries to K. For example, with regard to the two small circular bruises sited down and to the left of K's left nipple, photographed on 7th September 2017, she noted that research suggests that injuries at this location are much more likely to be non-accidental injury, but also referred to her own experience of examining hundreds and thousands of children annually and it being exceedingly rare to see bruising at this site. Her analysis goes on to consider the mechanism in which the injury was most likely to have been caused and the effect of sustaining an injury in this sensitive area of the body for K in terms of the likely pain he would have felt. The opinion in respect of these two injuries is demonstrably not over-reliant on statistics. Dr Ward has taken a similarly disciplined and thorough analysis with respect to all the bruises and marks which she has assessed, while accepting the limitations of the evidence.
- Mrs C is the safeguarding lead at K's primary school. She explained the procedures in place when an injury to a child was reported by a member of staff, and the circumstances which might trigger a referral to her, and then by her on to the local authority. She exhibited to her statement various reports filled in by staff members at the school. She had prepared a list of all the marks and bruises noted by staff from 6th September 2017 through to 23rd January 2018.
- Mrs C was asked if K was abnormally boisterous or over-active. She said he was a very active child who enjoys physical play, to be outdoors, who likes to climb, jump and build with things. She said he engaged with such activities with a great deal of enthusiasm, she said he was a risk taker, but she did not think that he was markedly different from many other children of his age and stage of development. She noted that since he had started school K had improved in his ability to socialise with other children, he was learning about sharing and had improved his understanding of the rules and boundaries in the classroom.
- AB is K and L 's social worker. She has prepared three statements in these proceedings, and the parenting assessments of both mother and father. She saw K at a child protection meeting at his mother's home on 4th September 2017 and did not notice any bruises or scratches on him, although he was doing some painting at the time and had paint on his face, hands and clothes.
- AB confirmed that she had seen many loving and warm interactions between K and his father, and the contact records show some warm interactions between K and his mother. She, or colleagues, are visiting the father weekly and she said that when she has seen K at his father's house he has appeared very happy, excited to see her, and while he enjoys running about, she has also seen him to be calm and able to sit down with his father or with her. She has not witnessed K have any accidents.
- AB's reports and statements are detailed and she has collected together a large amount of information from different sources, setting out clearly the evidence she relies on to come to her conclusions. Her evidence is very helpful to get a clear understanding of the relevant chronology, of the day to day lives of the children, and of the family dynamics.
- Ms M is a friend of both the mother and father, having lodged in the father's house for about seven years, so at times when the mother and the boys were living there too. She was obviously extremely apprehensive about giving evidence, but answered all the questions put to her in a straightforward way, and I was satisfied that she was doing her best to help the Court and that she was truthful in her answers. She has known the family for a long time, and gets on well with K, and sometimes plays with him, but mostly she comes home from work, makes a cup of tea for herself and the father if he is there, and then goes up to her room where she stays for the evening. She keeps herself to herself.
- Like other witnesses, she said that K could be active, but he also could be quiet and settled, especially when sitting with his father. She described the very loving bond between K and his father. It was put to her by father's counsel that K was 'always tearing around', but she said, no he's full of beans sometimes but sometimes he sits and plays with duplo lego or a fire truck, and sometimes he will sit to read a book.
- She said she had been there when K had been running and banged into a door handle, and hurt either his chest or his arm. She had not witnessed any other injuries or particularly noticed any other bruises on him, and she was not aware of any incident involving a clothes peg until the father had mentioned it to her on the way to Court that morning.
- PGM is a loving and devoted grandmother who has shown an incredible commitment to her grandchildren, coming to stay with her son when L and K were there and caring for both boys, and continuing to come to stay on a regular basis, about four nights a week, taking K to and from school and looking after him until his father gets back from work.
- According to a schedule prepared by the father, PGM stays at the father's house on Sundays, Mondays, Wednesdays and Thursdays, arriving at the house at around 8pm (unless she has collected K from contact on a Monday or Thursday). She takes K to school on Mondays, Tuesdays, Thursdays and Fridays.
- After school K has contact with his mother on Mondays and Thursdays until about 6.15 p.m. Even on the nights that she is not staying over, PGM collects K from school on Tuesdays and Fridays and looks after him until about 6.15 when the father returns from work. The father looks after K from 6.15 p.m. every night, giving him a bath most days and putting him to bed. He does not work on a Wednesday; that is the only day that he takes and collects K from school. K is in his sole care from around 6.15pm on a Friday until 8pm on a Sunday night when PGM comes to sleep over.
- PGM had been on holiday with the family in Butlins in June 2016 shortly after which K's nursery identified more than twenty different bruises on his body and made a referral to social services. PGM was unable to help as to the possible cause of any of these bruises, she said she couldn't remember, save to say that it had been a very active holiday with K going go-karting, climbing walls, and going on zip-wires. It is not immediately obvious to me how any of those activities lead to bruising; I note that K was a couple of months short of his third birthday at the time, so one would imagine all such activities would be set for his age and stage of development and supervised.
- She accepted that her suggestion that K had bruised his cheek when getting stuck between two arcade machines was just an idea she had thought of, she couldn't really say how he had come by the bruise.
- So far as the more recent injuries are concerned, she said that she had seen some bruises on K but never worried that they were anything other than K being an active child. She said he has always had bruises but she wasn't concerned, and hadn't thought about how they might be caused. She said like GH when he was young, K seemed to feel no pain when he was injured, and although she noticed bruising she just put it down to a 'bit of rough and tumble'.
- She said that K was an active child and described him as a very active and boisterous little boy, a bit of a daredevil, but said he had calmed down a lot since living with his father. He now goes to bed on time, he'll hold her hand to cross the road, and his behaviour was a lot better.
- I have no reason to doubt any of what she said, but it remains of some concern to me that K has been seen to have so many bruises, from a very young age, and she is so incurious about it. There does appear to have been an acceptance by her, and all members of the family, that as none of the bruises on their own could be classified as a serious injury in its own right, that there is no real need for concern, and they are just injuries which 'happen to K '; as if it is a part of his character that he gets bruised and bumped. She does note that K had hardly any bruises or marks over the Christmas period when he was not at school.
- MGM has a learning disability and does not read or write, but she had been helped to prepare a witness statement. Like the paternal grandmother she said that she had only ever seen little bruises on K from when he had been playing and she never saw any bruises on him that worried her. She said that K was a very active little boy and would climb onto her worktops to get to things.
- When the boys lived with their mother, she would go to MGM's house two or three times a week and would sometimes stay. When she was working, MGM would look after K and L at her home. IJ would be there as he lives with MGM and he would be the one to drive the mother to and from her home to her mother's or to work. She was a bit unclear about IJ and EF 's relationship at the moment but thought IJ was spending around three nights a week at her home.
- Her description of a very 'hands-off' approach to parenting was consistent with the social worker's observations, in particular in that she said K liked to eat sweets and would often climb onto kitchen worktops to get sweet treats out of the cupboards. This is behaviour described by IJ and K 's mother, but they don't ever seem to have told him not to do it. On one social work visit, JS saw that K and his six-year-old cousin were playing in a room at the back of the house with the door shut, and they had been given a whole packet of bourbon biscuits and a family bag of Maltesers to share by their grandmother. MGM said K would tip all the toys out of their boxes and climb on furniture and jump off it. She said he'd get told off but this wouldn't stop him, 'what can you do?'
- MGM's recollection of specific events was muddled and in particular with regard to the incident when K is said to have fallen down between the worktop and the cooker, was inconsistent with what was said by IJ.
- She accepted that at a contact session on 9th November 2017 K had said 'daddy hurt me again, mummy hurt me again', 'daddy makes me cry
.. daddy hurts me, mummy, you always do hurt me.' MGM accepted that she had effectively brought this conversation to an end, by saying 'enough now'. In cross-examination she was asked why, and she said, 'we were there for contact, the more you pester with questions the more he'll say things .. I said just carry on playing with K .. and override what he said'. She said that contact was a valuable time, they only got to see K and L in contact. When asked again, she said, 'if we ask him we get punished for it'. I can understand entirely the desire for contact to go well, for her to want K not to be distressed and just to have a nice time playing with his mum, brother and grandmother. However, again, this evidence demonstrates to me the lack of curiosity within the family about K 's injuries. Also in that brief flash of evidence the grandmother's deep mistrust of the local authority and professionals was seen. The context for this is that she has been the carer of two children with ARX and has built up significant experience as a result, but has not always agreed with the approach of professionals. She said she did not have help from professionals throughout this time.
- S is the mother's sister. She lives with MGM. They are noted in the papers as being estranged at one point, and I am not quite sure of their relationship now. She said that K would play with her two children at MGM's house. Her description of the mother's and IJ's relationship was rather different from that of the other witnesses. Her description of what she had been told about the 'scratch' incident was also different from what the mother and IJ had said. She said she had never seen any bruises or marks on K . She was asked if she thought K was abnormally active and boisterous and she said she didn't know, but had in the past thought maybe he should be checked for ADHD, but nothing serious.
- IJ has been extremely unwell in hospital with a heart condition and it was to his very great credit that he managed to come to Court at all, particularly in challenging weather conditions. He was visibly in pain and suffering a great deal and although we took some breaks, it soon became clear that he was unable to continue giving his evidence. Enquiries made of him after the weekend were that he remained very ill and I did not consider it reasonable to ask him to return to Court, nor proportionate in all the circumstances to arrange for him to complete his evidence by videolink or other method, or to delay the hearing until such time as he could do so.
- I must therefore be cautious when assessing the weight that I give to his evidence because he had to leave Court before all his evidence had been tested by cross-examination Mr Forbes cross-examined him for around an hour and a half but had not asked IJ about all topics before he left Court. None of the other advocates was able to cross-examine him. I am also aware that while he was giving his evidence, he was obviously fatigued and troubled by pain, he was dehydrated, but could not hold down water. On any view this must have been distracting.
- Perhaps understandably, given his difficulties, sometimes his evidence was unclear and his explanations were not always easy to follow. His description of the incident where K is said to have fallen down between the cooker and the kitchen worktop was generally a bit more clear and consistent, although IJ said he was in the toilet at the time it happened and only came across K once he had fallen and was trying to get himself out. In oral evidence he said that K was facing him i.e. that he had already climbed up onto the worktop, but in his police interview he said to the police that K had only put one foot up on the worktop and as he was trying to put the other foot up onto the cooker he had missed and gone down the gap. That cannot be right, or else K would have been facing away from IJ and it would have been the left leg that went down the gap. Later in the interview IJ said he was 'sort of going to climb down'. IJ couldn't explain how K had climbed up on to the worktop without there being a step or a chair to help him. He said 'he's a little monkey he can actually pull himself up.'
- IJ said K was a lively little boy who doesn't always listen to adults, 'you need to stop him getting into trouble' - he said he would do this by sitting down with him and reasoning with him. He denied that he had ever grabbed or slapped K , and said he had never seen the mother slap him.
- In the police interview IJ is told that EF had said K had been a bit of a pain that day. The following exchange takes place:
'IJ: Yeah he weren't listening
IJ: It was K being K and he was having one of his days where even AB (social worker) could see on the Wednesday she came round and he was putting paint he put a little bit of paint on AB's jumper and a bit on my cheek and I was repeating myself and it's just K being not listening to you.
HB: yeah ok
IJ: It's just K all over. I don't I don't
HB: So he has days like that sometimes?
HB: As well?
IJ: Yeah I don't smack him it's just sometimes it's like erm it's like anyone when you're asking them to do something either he'll listen or he'll just
IJ: Completely bump you and ignore ya
HB: ok so, so what do you do how do you react if he doesn't listen, how do you discipline him is what I'm asking?
IJ: I just ignore him, I just get to the point where I've asked him say three or four times
HB: mmm hmmm
IJ: I say no more because he's to me there is no point
IJ: Because there's no point in getting yourself worked up or wound up because of K being his usual I'm not listening to you
- He was asked if he'd ever lost his temper with K and said, if he was to lose his temper he'd walk away, 'I'd rather walk away. If I know my blood's gonna boil or I'm gonna shout at him and get really na [sic] raise my voice it'd be like I'd rather walk away.'
- Later in the interview IJ describes K as very boisterous, says that he climbs on the furniture, that he sometimes sits and punches him (IJ) in the face. This is also mentioned in his witness statement. However, in both his witness statement and in the police interview he denies hurting K , and says he calmly sits beside him and tells him what he shouldn't be doing. He said to the police, 'I don't see the point of hitting a child, if you try and get round it and try and talk to him sensibly and then I will' (this sentence ends abruptly, it seems the next question then comes in from the police officer).
- The mother is a vulnerable person and explained that she does struggle to communicate with others, although she prefers the term learning differences to learning difficulties. She has really struggled with her confidence and self-esteem. In her witness statement she says she has no trouble with oral communication but does struggle with reading and writing. She has written me a letter and also prepared for me a letter in powerpoint form which contains a lot of lovely photos of the boys, many of them with the mother and other family members.
- It was clear that she loves K and L with all her heart, and they are everything to her.
- She has had a lot to contend with over the past few years; discovering that she was a carrier of ARX, dealing with L's diagnosis and caring for his needs have obviously been overwhelming at times. In 2017 she then lost her younger brother to the disease. One or the other of her children has been subject to a child protection plan for most of the last two years.
- Counsel did their best to put questions to her in simple form and I was satisfied that she did understand the points being put to her, and she was not easily suggestible; she was clear when she disagreed with an answer. She said that she did really find it difficult to remember dates or to work out how many months ago something might have happened.
- Even allowing for difficulties with dates, time and memory more generally, there were a number of parts of her evidence where she contradicted what she had just said, or which were different to things she had said in her witness statement, or was recorded as saying to other people, and which also conflicted significantly with evidence given by others. I was not persuaded that these discrepancies in her evidence were because of any difficulties with her understanding of a question or problems with dates, times or memory, or any difficulty with expressing herself.
- In her response to threshold the mother suggested that when K tells people he is hurt, 'he is referring to his feelings and not his physical well-being'. She describes him as a demanding child who needs lots of attention. She says if he doesn't get his own way he will lose control and get angry. She describes him climbing everything; kitchen surfaces, his bunk bed, the sofa, and that he has 'no regard for his own safety', and 'no fear'. She says he seems not to feel pain and if he is hurt physically, 'he seems to get over it in a matter of seconds.'
- Having regard to the evidence of other witnesses, and in particular that of AB, who has specifically explored with K his understanding of the word 'hurt', and having regard to the incident reports from school where an accident has been witnessed, as well as IJ's description of K crying when he fell down the side of the cooker, K's father's description of K crying when he says he was hurt by a peg, mother's description to police that K cried when she says IJ scratched him, it would seem clear that K has certainly been seen to cry with pain when hurt. K has also said clearly to adults when he has shown them an injury that he has been hurt. There is no evidence anywhere of K saying to anyone that he is hurt and meaning his feelings are hurt. In fact, his mother specifically says he struggles to express his feelings. In my judgment there is no basis for saying that K is a child who does not feel pain, nor that if he tells someone he is hurt, he is referring only to his feelings.
- The mother's description here and her evidence in general however is consistent with the impression that I have formed from all family members of a lack of concern if K jumps from a bunk bed, climbs up on to a kitchen work surface, or puts himself in a position of danger; he is 'just being K '. Similarly, there is a generalised lack of concern at an injury itself; despite the very great number of bruises that have been seen on K , his family members have said they have not particularly noticed bruises, but if they did, they were not worried about them. It would not perhaps be surprising if K had picked up on this, and if told that injuries were nothing to worry about, might not always look for a response from his carers if he suffered an injury when with them.
- EF's evidence about whether or not she had ever slapped K was inconsistent. In her witness statement she said, 'I deny hitting K or physically abusing him but accept to having on rare occasions slapped him as a form of reasonable punishment.
I accept that some marks might have been caused by me but resulted from accident and or appropriate and reasonable punishment.'
- In her oral evidence, she contradicted this statement and said no, she had only ever slapped K once.
- In November as part of the parenting assessment she was asked what she understood as physical abuse and she is recorded as saying, 'what I did to K . I tapped his face. Slapped. I think it was a tap but I'm not sure.' She said she did it in response to K biting her, was remorseful, and said it would not happen again. At around the same time she is reported as saying to AB that 'a long long time ago' she slapped K on the bottom, when he bit her younger brother R. In January AB noted the mother had said that she had smacked K on the bottom but she could not remember when, and that in fact it had been her mother MGM who was with K when he bit R and she didn't know if her mother had smacked K but didn't believe she would have done. She told the social worker that when she was a child and had been naughty her mother had marched her down to her grandfather and he had smacked her hard; 'it used to really hurt, I couldn't sit down'.
- I am not convinced that the mother has confidence about what might or might not be reasonable chastisement, and part of the reason she may have struggled to give consistent evidence in this respect is that she is aware there may be a difference between what she, and members of her family, see as 'appropriate and reasonable punishment', and what the local authority or the Court may think is appropriate or reasonable.
- In her oral evidence she described what she said was the only time she had hit K was she thought about two or three months before he had gone to school and told them that his mummy had slapped him. She said this was probably what K was remembering when he told the teachers. She told me that she was destroyed by what she had done. She told me that immediately afterwards, K had held her face and said mummy, it's OK, but she had said no it is not, and had not slept for three days. This account does not appear in her witness statement nor did she mention such an incident to the police even though she was asked if she had ever hit or slapped K. It is different from the description she gave to the social workers during the parenting assessment. It is an account that is inconsistent with her only 'tapping' K, and if she genuinely felt so terrible about it, it is hard to see that she herself regards it as 'reasonable punishment', as she now suggests in her witness statement.
- In his police interview, IJ was asked if K had any punishments, not physical, punishments for his behaviour. IJ also seemed to identify that EF was confused about what might be reasonable punishment when he said:
'EF gets confused how to punish him because when a lady's come round who works on the social services they turn round and say sometimes about giving him a cuddle and even myself how is that disciplining a child? By giving them a cuddle and it's basically you know, sometimes she tries to put him on time out but K being K he doesn't listen anyway.'
- With regard to the evidence about whether K was sharing a bed with her and IJ when IJ was naked, her evidence was again confused and conflicting, but she did ultimately accept, as IJ clearly did, that K had at times been in a bed with IJ when he was naked. She said in her evidence 'I don't really mind but if it causes problems with other people, he'll have to address it.' Later, she was asked if she thought it was appropriate, and she said, it's been done for such a long time, K was used to it. She then said well sometimes she felt a bit funny about it, but if she did, she kept herself to herself. In closing submissions it has been said on her behalf that she accepts it is not appropriate for a child of K 's age to share a bed with his mother and IJ, who is not his father, and when IJ is naked in bed. My impression of this evidence again is that the mother is really unable to form a judgement independently about this, and would have been guided to an extent by the reactions of those around her; in particular IJ, but also her parents if this was accepted by them all as normal.
- EF accepted that on three occasions she had grabbed K by the back of his neck when he was running out of a shop and that marks might have been caused as a result. She said this was not punishment, but she was stopping him from running into a road.
- In her police interview, the mother does appear to blame K for the injuries that were seen. She says early on in the interview, 'all I know is [K] is a pain in the bum
getting up to mischief.' She says IJ forgot to tell her about the accident when K had fallen down the side of the cooker but after she saw bruises on his leg she asked him and he remembered. She said she was upset and angry that K had slipped because she tells him all the time to climb but he always does.
- For the vast majority of injuries that have been observed on K while in her care, the mother was unable to give particular explanations other than to say as others have, that K is a very active child and puts himself in danger very often.
- K was born when his mother was living with her parents, but at some point shortly after this he and Ms Burden moved to live with GH in his house until K was about four or five months old. The mother then returned to live with her mother, the mother says to support IJ with the anniversary of a family bereavement, but she stayed there for approximately sixteen months before returning to GH's home (Spring 2015) for about nine months. L was born at the end of January 2016 and the mother went with both boys back to her mother's home. There was an issue around L's parentage and GH has said effectively he asked the mother to choose between him and IJ. The mother and the boys returned to live with GH in mid-May 2016, but finally separated in the autumn, although the mother remained living in the house with the boys until she was rehoused to her present address in January 2017.
- Even when K was not living with his father all the time, he has seen him regularly, and the social workers carrying out the parenting assessment have noted a loving and warm relationship, his father observed to be gentle, kind and reassuring to K. GH is evidently proud of K, K runs to see him when he comes home from work, and says 'daddy!'. The father gives K lots of attention, is patient with him, is encouraging him to be independent for example when getting ready for school, to observe rules and boundaries, for example by asking him to put a toy back in the box before picking another one. He is working well with the school and K has made very good progress in all areas during his first year at school.
- Like others who know K well, the father describes him as a lovely little boy, loving, caring and active; he says you have to keep doing things to keep his mind busy. He said also that K could be quiet and would like to snuggle up to him to watch cartoons or DVDs. Like Mrs C, GH said that K could sometimes be a fussy eater.
- Although perhaps to a lesser extent than with the mother, I did find GH to exhibit the same lack of curiosity and concern as she and others in the family have about many of the injuries that K had sustained. Like her, I found his evidence to be inconsistent at times. He said he had a clear memory about some matters but then seemed to struggle to recall quite basic details. At other times he has said he has no clue about how something might have happened but then supplied an explanation some time later.
- The father was perhaps more confident than the mother to express a view that he did not think K 's injuries were as serious as the local authority is suggesting. He did not regard any of K 's injuries as particularly worrying. He too seemed to shrug off the worries of the nursery that had identified twenty bruises on K when he was not even three years old, and said essentially they would have been down to the rough and tumble of the nursery and other children. He has said that K is very active and causes injuries to himself in the course of his normal playing. In her parenting assessment, AB identifies some tension between the father and the local authority about this; implying the father seems to feel that the local authority is overly suspicious about K 's bruises. AB reports GH had said he felt that he could no longer play with K , but could only put him in front of the TV, and that he would have to strip K off every night and tell him that 'the social wants to see all your bruises.' On a visit, K was screaming in a high pitched (but happy) way, PGM said, 'don't do that, AB will think I'm hurting you.' The impression from this paragraph is that GH and his mother felt at risk of being blamed by social workers for all injuries K might get.
- He says in his statement that when K came round on 5th September he immediately noticed the bruising to his face, neck and shoulder and sent photos to his mother. He had already seen the graze to K 's right leg and the bruise at the top of his inner thigh on 2nd September and had accepted mother's explanation that this happened when K fell down the side of the cooker when IJ was looking after him. The father says he was unhappy about it and effectively told the mother off about letting K climb up on the worktops and leaving him in the care of IJ. The father says he noticed more bruises when he gave K a bath and was very concerned. K was on a child protection plan but the father made no report to social services and did not mention any of these injuries to K's teacher at school. He said he was not surprised later on that day to have been called into school, but I query if he was genuinely concerned about K returning to the care of his mother after school that day why he did not feel the need to report these injuries to social services.
- In her statement dated 11th December 2017, AB said that on that date the father was yet to sign a written agreement around the local authority's expectations that he must record and report any accidents or incidents which had led to bruises or marks to K, and to record all bruises and marks to him.
- While the father has reported injuries to the local authority, he has not done so consistently. For example, on 12th January 2018 K would not take his hat off at school but when he was persuaded to take it off he had a big red and blue bruise on the left side of his forehead. K said he didn't know how he got it, when his father was asked he said they had banged heads, but he had not thought to report it because he had not seen a bruise.
- On 15th September 2017, which was a Friday, the father dropped K at school. A safeguarding form filled in later records as follows:
'K's dad dropped him off this morning and informed that the mother has been awarded supervised contact for both children in court yesterday.
He asked if I was aware of some marks on K's face and I said that I was as nan had informed us yesterday. He then went on to say that K has a bruise on his chest now and shrugged his shoulders. He never gave any further explanation of who when or why.
Mr M and myself [different author from paragraph above] spoke to K. He showed us his chest and said 'daddy did this, he smacked me' (made flat handed slapping motion on his abdomen) This was after I asked him how he got a bruise on his chest. Fresh bruise size of 10p covering left nipple.'
- This document is hearsay, and evidence only that a note was taken on this day recording as above, it is not evidence of the truth of its contents. However, the father has not suggested anywhere that this note is not accurate or that he did give any fuller explanation to teaching staff on this day about how K might have got this bruise. Notwithstanding that the father had said that he would inform social workers about all marks on K's body, it was the school that informed the social worker about this later that day. Again, even though on his case he knew that there was a non-sinister explanation for this injury, that K had accidentally pinched himself with a peg, I would have expected the father to have been on the phone to AB almost immediately to report it.
- Apart from the specific explanations given in the schedule in respect of the 'peg' injury, father says he hasn't got a clue as to how the majority of injuries that have been caused to K during the time he has cared for him have happened. He has suggested that linear marks to the back of K's left leg might have been caused in a tickling game. It was easy to picture the game K crawling away from him on a bed, and him holding him by his calves and pulling him back towards him but, as Dr Ward suggests, much harder to see how injury could have been caused to K. The father did accept in cross-examination that the injuries might not have been caused that way, he was just trying to help by thinking of an explanation. The father has suggested in his statement and to different individuals that he has a lack of sensitivity in his hands; he says he cannot use them to feel the temperature of bath water for example. He said this is due to symptoms of fibromyalgia, but another time suggested it was because he had worked with pneumatic machinery and driven motorbikes, and then has suggested that because in the past he has spent time 'conditioning' his hands, for example by putting ball-bearings or nuts and bolts in a bag and repeatedly punching it to make his hands stronger, this has caused a lack of sensitivity. There is no evidence before the Court that loss of sensitivity in his hands is a symptom of his fibromyalgia. The father's evidence was unconvincing in this respect.
- In the parenting assessment it is noted that the father was having a difficult time in early January 2018 when he was dealing with a bereavement, the symptoms of his fibromyalgia had been flaring up, and he was seen to be short-tempered with K and raised his voice to him. Even though on any view taking on the care of both L and K in early September must have presented some challenges, the father said to me in oral evidence that he did not remember struggling particularly, and his mother was caring for L in the day while he was at work. He did accept that it is hard work looking after K who wants him to play with him and that after a time being down at his level, the father's pain does start to trouble him. Like his mother, IJ and MGM, the father says that K has been 'difficult to control from day one'. Nonetheless, he said he was clear that he could not remember a time when he has felt he has been struggling with K, and that he had not found it stressful to care for both boys for the two weeks that he did in September. Although the parenting assessment has very much which is positive about the father, I am sceptical to hear that the father denies that he met with any challenges at this time. The parenting assessment is a very balanced document which as well as the positives, does show the understandable challenges that caring for both children would present to any carer.
- The father notes that when he was at nursery K used to push other children around and snatch toys from them, and that he had been punched by other children. He said K had had a lot of bruises there. He did not think the suggestion that K's bruise on the cheek from being hit by water pressure at Butlins was unrealistic, nor the notion that the injury could have been caused by K getting caught between two arcade machines. He is prepared to accept that the markings on K's chest in November could have been caused either by W punching him or by K slamming a plastic bucket against his chest; in either case, the injury happening at school. He says that K has had a lot more injuries at school than during the school holidays. When each of these injuries was discussed with the father however, he did accept, and repeatedly said, that he did not have a clue how any of the injuries was caused. Even with the peg injury, he accepts that he did not see it happen, he said he could not understand what K was saying to him when he went to comfort him, and that it is his assumption, because there were pegs on the floor by K, that is how he hurt himself.
- I have read notes of a pre-interview with a police officer and K at his school on 6th September, and the transcript of the police interview itself which took place later that day. I have read the transcripts of police interviews with the mother and with IJ.
- The police interviews are significant because they record what the mother and IJ said very shortly after the time the injuries were discovered, and when their recollections could be expected to be at their best.
- I must be cautious as to the weight that I give to the evidence of K 's interviews with the police. He was only just four years old at the time. He was shown a video clip at the start of the interview which was to prompt a discussion about truth and lies, the police officer asked about the girl in the film, 'was she not telling the truth?', and K then agreed, 'she wasn't telling the truth'. Moments later, when the police officer said 'yeah the little girl told a lie didn't she', K said 'she didn't
She's in the bathroom.' It is not very clear that K did really understand about lying, and he was not then told that it was important that when he was answering questions he should speak the truth and not lie, the interview just proceeds from there.
- K was very easily distracted during the interview and some of his answers don't make an awful lot of sense, or he contradicts himself. There are a couple of times when leading questions are used, for example the idea of the mother hitting K comes from the police officer (HB):
'HB: K, when your mummy hurts you how does she hurt you? Does she hit you? Or does she
K: [shouting] there's playdoh on him!
K: See he made footprints
HB: K can I just ask you a couple more questions and then I
K: OK, you can
HB: Oh thanks. K, you know that you said that your mummy hurts you, how does she hurt you?
HB: Does she hit you? Does she do something else?
K: She hurts, mummy hurts me
HB: How does she hurt you?
K: She just hurts me
- Then another leading question, suggesting that the mother uses her hands:
HB: Does she use her hand?
K: She hurts me with her hands
K: Just on
- A little later on, K is playing with dinosaurs and the police officer tries to bring the focus back to the interview, she asks more leading questions:
'HB: K what does mummy do with her hand? Does she hit you
K: Yes, she hits me
HB: Where does she hit you? Whereabouts on your body?
K: She hurts me. She hits me.'
- Nonetheless, there are a significant number of times in the interview when K is very clear that his mum has hurt him. These answers are not given in response to leading questions, and he gives a clear description. He is able to clarify if he thinks the police officer has misunderstood him, and he does not simply agree with what is said to him, but is firm about whether something did or didn't happen. What he says in this interview, when looked at together with all the other evidence, in particular the notes of what he has said to teachers at school and in the presence of social workers, does therefore carry some weight.
- I have read the contents of all the bundles, which include notes of child protection strategy meetings, the medical records of both boys, full police disclosure, incident reports from K's school, and contact records.
- The contact records note meetings between the mother and her children, sometimes joined by her mother, MGM. They contain much that is very positive, but also show just how difficult it is for the mother, as I imagine it would be for any carer, to manage dividing her attention between L and K. From his actions K is often seen to be very kind, caring and loving towards L, but also demanding of attention from his mother, particularly if her focus is on L at the time.
Findings in respect of disputed threshold allegations
Paragraph 1: injuries to K
Allegations against mother, father and IJ
- Shortly before 21.06.2016 mother or father inflicted a bruise to K 's cheek. This was caused deliberately by a direct blow.
- There is a body map filled in by K's general practitioner, but no photographs of any of the twenty injuries identified by the nursery who first made the referral. I have had regard to Dr Ward's evidence and note that a number of bruises were identified on 's legs and his back. She is of the opinion that these could well have been caused by going down a water slide.
- There is no description of the bruise to K 's cheek, the body map is not specific enough; I have no information to tell me whether this was on the soft fleshy bit or up near the cheek bone. I cannot find on a balance of probabilities as Mr Forbes invites me to, that it was 'strikingly similar' to other bruises later seen on K's cheek.
- In my judgment the explanations given by the parents and PGM were not at all satisfactory, and lead to some suspicion about how this injury was caused, but that is not enough in all the circumstances to lead me to a finding on a balance of probabilities that this injury was deliberately inflicted upon K by either of his parents.
2(i) Shortly before 06.09.2017 mother inflicted a linear scratch to K 's left cheek. This was caused by K moving away as mother deliberately attempted to strike him.
- I am satisfied on a balance of probabilities that the mother did inflict this scratch injury to K 's cheek. I am unable however to say whether she was grabbing at him to stop him running away from her or she was deliberately attempting to strike him, but I am satisfied that she was using excessive force in order to discipline him in some way. The fact that the mother has in my judgment deliberately concealed the true circumstances of the accident from professionals and the Court makes it more likely that this was a deliberate infliction of injury, as does K 's account that she scratched him after telling him he should go to bed.
- K told three different people that his mum had scratched him. He told his teacher HB, 'mummy did this
mummy hit me like this' (motioning a slap on the face). He said the same to another teacher, LP. He said it to the police officer in the pre-interview, 'mummy hurted me
yes, mummy did
just on here, scratched me she did' , and again during the ABE interview, he is asked how he got the scratch and he says 'I felled ov, I didn't, I, mummy scratched me like this.
that's where mummy hurted me
. Mummy said I've got to go to bed.' Later on he is asked about IJ, who he calls [Didi], and says 'Didi hurted me' and he is asked, so who did the scratch on your eye? Who was that, and he says, 'Didi - not Didi, mummy'. He is then very clear that it was his mother who scratched him and 'Didi just sitted down'.
- While I take into account the limitations of the ABE interview, K was not asked leading questions about this, he is very clear and consistent in his answers and seeks to clarify the police officer's misunderstanding when she thinks he says that IJ was the one to scratch him. The overall effect of this evidence is extremely compelling.
- I found the mother's suggestion that in making these reports K was mistakenly remembering a time when she had slapped him some two or three months before, even though she said that had not left any mark on K, to be wholly incredible and I did not believe her.
- The mother's evidence about whether or not she has slapped K, how hard, and how many times - 'on occasions', or 'only once' - was inconsistent and in my judgment, unconvincing. IJ said that she was 'confused' about how to discipline K, and that was an impression that I formed of her. In her own childhood, physical punishment appears to have been the norm, and she has reported that her mother had encouraged to bite K back if he bit her. I am satisfied on a balance of probabilities that the mother has slapped K more than once.
- Between them, the mother and IJ have given very differing accounts of this incident, and I did not find either of them to be reliable witnesses about how the scratch happened. It was said that K had grabbed sweets from the kitchen counter and as he turned to run away from his mother IJ grabbed him. It was said that K grabbed the chocolates and ran to the bedroom where IJ was lying on the bed and K fell against his outstretched arm. It was said that in fact the chocolates were on the side in the bedroom and K ran into the bedroom to try to get them but fell onto IJ's arm. On another occasion the mother said that IJ was in the sofa when K grabbed the sweets and ran away, colliding with IJ. In my judgment the reason that there were so many different accounts, and neither IJ nor the mother were able to describe to me in a clear and straightforward way the way this accident happened is that neither of them was telling the truth to me about it.
- The fact that IJ called K 's social worker to tell him that he had been responsible for the accident does not to my mind make it more likely that he was responsible, particularly when he did not make the call until 7th September. Whether they are in a relationship or not at the moment it is clear that they are very important to one another and IJ would wish to support the mother. In my judgment he has tried to support her in this case by taking the blame for the injury to K, when he was not responsible.
2(ii) Shortly before 06.09.2017 mother inflicted a bruise to K 's right cheek. This was caused deliberately by a direct blow or a forceful gripping or squeezing action.
- I am satisfied on a balance of probabilities that the mother did inflict a bruise on K's cheek either by a direct blow or a forceful gripping of squeezing action.
- Again, K's reported account adds weight. In the handwritten notes of the pre-interview assessment, there is the following record, 'my mummy did it' (re small bruise on face right cheek). It is not completely clear from the father's witness statement, but he says the mother said the significant bruising to K's leg happened when IJ was caring for him, and 'did not provide an explanation for the smaller injuries noted by Dr Wright'. I do not know whether he is including the cheek injury. He says, 'I asked K about the bruising whilst he was in the bath and he first said he did not know before saying that the First Respondent (mother) was responsible).
- Dr Ward's opinion is that this injury was more likely than not to be inflicted. She has had regard to the site of the injury, noting that injuries to the soft tissue need to be caused by contact with something; a direct blow such as a slap or potentially a gripping or squeezing action, and that bruises on the face do not happen as the result of every day handling; greater force would be required.
- The fact that the mother has not been able to offer any explanation for the injury does not of itself indicate that she must have been to blame, but her suggestion that it must have happened at school was not credible, and forms a part of the whole evidential picture which leads me to my conclusion that this was an inflicted injury.
- In my judgment this was not reasonable punishment, but force in excess of what was reasonable and would have caused K pain.
2(iii) Shortly before 06.09.2017 mother or IJ inflicted a bruise to K 's left shoulder. This was caused deliberately by forceful grasping.
- Dr Ward considers this injury to K's shoulder could have been caused accidentally or non-accidentally.
- The mother has accepted that she has on occasions reached out to grab K when he has been running away from her; it is a description she has given not just about his running out of a shop. She suggested to me that she had reached out and grabbed him by the back of the neck.
- K is described by both mother and IJ as a child who they think won't listen, and won't be told what to do. The environment described by them is one where K is climbing the furniture and kitchen worktops, jumping off, and running off in all directions. The mother has accepted that she has struggled to put boundaries in place to manage K's behaviour.
- The mother accepts that on more than one occasion she may have reached out to grab K and caused a mark to his neck as a result.
- In all the circumstances I am satisfied on a balance of probabilities that this injury was caused in the same way, and the mother did reach out and grab K shortly before 6th September 2017, and in doing so caused him to sustain a bruise. I am satisfied that she used excessive force and would have caused pain, but would accept that she was not trying to punish K but to control his behaviour.
- While IJ was spending a lot of time with the mother and K at around this time, there is no other evidence to suggest that he grabbed K , and I exclude him as a possible perpetrator of this injury.
2(iv) Shortly before 06.09.2017 mother or IJ inflicted a bruise to K 's left forearm. This was caused deliberately by either a forceful gripping or grasping action or was a defensive injury as a consequence of K raising his arm to protect his face and trunk from abusive injury.
- In the pre-assessment interview K again indicates that it was his mother who hurt him and indicates his left arm. He says 'she scratched me, she did'. He says he said 'ouch, very loud'. He is noted to have said, 'she hitted me', but these are rough notes, and K did not repeat this in the ABE interview, nor is there a record of him saying anything about this injury to his teachers at school.
- This is a large bruise with a corner to it on the left forearm. On any view it is not a scratch. Dr Ward initially said principally because of the site of the injury that it was more likely than not to be a non-accidental injury, but in cross-examination she accepted that research on this was perhaps more ambivalent and felt unable to maintain that view.
- No plausible explanation has been given for this injury by the mother or IJ, and there are certainly suspicions about how it may have been caused. However, in all the circumstances I am not satisfied that the local authority has established to the standard of a balance of probabilities that this injury was inflicted by either mother or IJ.
2(v) Shortly before 06.09.2017 mother or IJ inflicted two bruises to K 's trunk, diagonally below his left nipple. This was caused deliberately by a forceful gripping or grasping action.
- These two small bruises are less than half a centimetre in diameter and are on K 's trunk, to the left side of K 's left nipple. Dr Ward comments that research findings are that bruising to the trunk is very rare in accidental injury. While she notes that these bruises could have been inflicted by separate blows, in her opinion it is more likely than not that these bruises were caused by gripping or grasping of the chest; a pinch. However, Dr Ward also speculates that these two bruises form a cluster with two bruises at the base of K 's spine (2(vii)), formed by a gripping or grasping action with both hands, which she would not discount as having been accidentally caused.
- The father said in his first witness statement that when he gave K a bath on the 5th September he was concerned about the extent of bruising to K 's body, but he does not particularly mention these two bruises.
- K did not point these injuries out to any adult and has not given any explanation about them. On other occasions when he has had injuries to his chest he has pulled up his shirt and showed his teacher.
- No explanation has been given by the mother, or IJ, nor has the father been able to give an explanation for these injuries. The absence of an explanation is not evidence of ill-intent, but one part of the overall picture. Given that K saw his father on 2nd September and 5th September, there seems no particular reason why it should be said that it is more likely than not that the mother or IJ were the perpetrators of injury rather than the father. I say this not to seek to raise a new allegation against the father, but to highlight that there is a lack of evidence, other than the fact of opportunity, and the absence of an explanation, to suggest that either the mother or IJ was responsible.
- Although there is expert evidence that these two bruises were inflicted upon K rather than being caused accidentally, I am not satisfied that the local authority has proved to the standard of a balance of probabilities that they were deliberately inflicted upon K by one of his carers. This allegation is not made out.
2(vi) Shortly before 06.09.2017 mother inflicted petechial bruising to K 's left clavicle area. This was caused recklessly by mother forcefully grabbing K to prevent him running out of a shop.
- The mother accepts that she may have caused these marks. She said in her witness statement that she reached out to stop K from running away from her but missed and hit his neck. However, in her oral evidence she could not have been clearer that she intentionally grabbed him by the scruff of the neck; she showed me how she had grasped her hand around K's neck from behind and said she had done this on three separate occasions.
- IJ was asked about bruising to K's shoulder and to his neck and he said that on 'a few occasions' K would go into a shop and pick something up and come running to him, EF has been worried he would run into the road and although he thought it was, 'not intentional, she has to grab him
I don't think she means to grab his skin and sometimes she might catch him by accident.' This account, given very shortly after the injuries were discovered, is consistent with what the mother is saying.
- Dr Ward considers that it is entirely possible that K 's injury was caused by the mother grabbing at K although she considers it concerning that K was grabbed either directly around his neck or by clothing being grabbed. Petechial spots are highly suspicious of non-accidental injury. In order to inflict an injury causing petechial marks to appear near to his collar bone the mother must have grabbed at him hard, and been much too rough. The fact that the mother admitted to doing this on three occasions suggests that she has a limited ability to contain K's behaviour and resorts to physical punishment/restraint when K is out of her control.
- This allegation is proved on a balance of probabilities.
2(vii) Shortly before 06.09.2017 mother or IJ inflicted two bruises to the base of K's spine. This was caused deliberately by either a forceful gripping or grasping action with both hands.
- Dr Ward does not discount these bruises as being accidental in a lively active child such as K. She speculates that they may have been formed at the same time as the bruises to the left side of K 's nipples as part of a gripping action by an adult using both hands, but she cannot say on a balance of probabilities that they were non-accidental.
- There is no other information about these injuries and I am not satisfied that the absence of an explanation from mother or IJ is sufficient to tip the balance of probabilities.
- This allegation is not proved.
2(ix) On 29.08.2017 IJ [or mother] inflicted a cluster of three bruises to K's inner and outer right thigh. This was caused deliberately by a forceful gripping action.
- In cross-examination Mr Forbes said clearly to the mother that it was not being suggested that she was responsible for causing these injuries. She has been asked if she had an explanation for them, and she has said that she accepted IJ's explanation that they were caused as part of the incident when K climbed onto the kitchen worktop and one leg fell down between the worktop and the cooker.
- IJ accepted in evidence that the bruises at the top of K's right thigh were unlikely to have been caused by the cooker incident. In the circumstances, Mr Forbes says the mother comes back within the pool of perpetrators, and he did explore in evidence with her the possible causes of these bruises if not the cooker incident, but it was still not put to her that she had been responsible.
- There is a photograph of the bruise at the top of the inner right thigh, but no photos of the bruises on the outside of the right thigh. Dr Ward notes that the soft tissue of the upper thigh is an unusual site for accidental injury. She does not consider that the pattern of bruising is consistent with K having fallen and knocked against a straight edge of the cooker or worktop as was described. She says it is possible that these injuries were caused by a gripping or grasping injury. She says she cannot exclude the possibility that they were caused by someone gripping his thigh in order to pull his leg out of the gap between the work surface and the oven but 'such bruising particularly the crescent shaped bruise would require force over and above that considered to be normal handling of a child.'
- Dr Ward did not have any photos of bruises on the outer thigh, she is working from the body map made by the assessing clinicians. In the circumstances, as she effectively concedes, she identifies that it is a possibility that these injuries should be regarded as having occurred at the same time as the bruise on the inner thigh, but without knowing their exact position, shape and appearance, it could not realistically be said that it was more probable than not that that collectively these bruises were formed by a gripping or grasping injury.
- Mr Crispin points out that bruises to the outer side of the thigh are not generally associated with non-accidental injury by experts; this is an area where accidental knocks can happen.
- Looking at the bruise in the inner thigh on its own, Dr Ward was unsure whether it was a crescent shape or whether it had once been a full circle which had receded over time to a crescent. Apart from the possibility of grabbing or grasping, she has not suggested another cause for this bruise.
- IJ's evidence was a bit muddled in places and it was hard to work out whether K had fallen as he was climbing up or climbing down, and whether his left leg was bent or not, but IJ has never suggested he saw anything but the aftermath of K's fall. The accounts given in his witness statement, to the police and in Court was broadly consistent, and I would accept that the scraping/grazes around K 's knee would be consistent with such an incident. One thing that is clear from the evidence is that K is a child who has climbed onto kitchen worktops from a young age. I am still a bit unsure how it is said a child who has just turned four could do so without a chair, step or stool to climb half way, but I am prepared to accept that he can, and that to this extent, IJ's account of this incident can be relied upon.
- IJ said he had helped K down by putting his arms around him, he said he had not gripped onto K's thigh. He said there was no need to; K's leg was not wedged in the gap and he was already freeing himself when IJ came along. That evidence seems to be consistent with what one sees in the photographs. If IJ were to have grabbed K very roughly by the top of the right thigh in a temper, he would have had to wait for K to extricate his right leg then grab him; it seems much more likely that, as he said, IJ got K down by putting his arms around K 's body.
- K has not made any clear disclosure to the police or his teachers about this bruising. The handwritten notes of the police interview suggest he was 'asked re bruise on leg' and the note beside says no more than 'cos I did', which does not suggest he was saying his mother caused it. The note underneath that is about the bruise on his right arm, and then it says, 'mummy did hurted me'. In the typed-up note of this interview the leg bruise is not mentioned. The leg bruise is not specifically discussed in his ABE interview.
- The local authority invites me to give weight to the conflicting evidence of mother, IJ, MGM and father about when or where they saw the bruises. I think it is unlikely that IJ did see the bruise, MGM was significantly muddled by details of evidence and I do not think she was seeking to mislead the Court about whether or not she had seen bruises. The mother's and father's evidence about when they saw these bruises was broadly consistent.
- This bruise at such a tender site of K 's leg is very alarming to see. For reasons given, I am not satisfied on a balance of probabilities that it can be said the bruises on the outer right thigh were caused at the same time, and as part of a gripping action, nor that they were inflicted rather than accidental. Having regard to all the evidence about this, I am not satisfied that it has been established that the bruise on the inner thing is more likely than not to have been an inflicted injury. I find that this allegation is not made out.
Allegations against father
3(i) Shortly before 15.09.17 father inflicted a bruise around the area of K's left nipple. This was caused deliberately by a forceful pinching action.
- This is a dark brown bruise about 2.5 cm x 2 cm below and slightly overlapping the left nipple. It is paler at its centre. Dr Ward considers it highly unlikely to have been caused by a slap, but says it was feasible that it was caused by a pinching mechanism and could have been caused by the application of a peg. Dr Ward says it has the appearance of an inflicted injury, but she cannot say whether it was inflicted by an adult or a child, but in her oral evidence she said she would seriously question whether a peg would cause an injury like this. She said that she would expect a much smaller mark and for lines from the peg to be visible. She says it would have been painful. It is in a sensitive area of the chest.
- I have not seen any evidence about how developed K's fine motor skills were at the time of this injury, and must be careful not to speculate as to whether I think it likely or not that a child who was only just four would have been able to manipulate a peg and clip it to his chest. However, Dr Ward was asked to give a view and she said she seriously questioned whether a child could have caused this bruise.
- The father said repeatedly in his evidence that he would never hurt K deliberately. He obviously loves K very much and they have been seen to have a close and loving bond. Although he has been seen on occasion to be short-tempered with K, in general he manages K's behaviour very well and is seen to be a calm, affectionate and reassuring presence to his son.
- In his witness statement dated 3rd February 2018 the father describes the 'peg' incident as follows:
'I was washing up in the kitchen and K was outside in the garden, playing. I then heard K cry out I then looked outside and saw that K had his top off and was on the woodchips. On making my way to K I asked him what was wrong. I noted that K had a peg in his hand. K was upset and I could not really understand what he was trying to say. K pointed to his nipple which was a bit red and I gave him a hug. When I was outside, I noticed that there were lots of pegs on the ground around him. I ensure that K does not have any access to pegs or hairclips as he has clipped himself with these in the past.'
- The father accepted in his evidence that he had not seen the peg attached to K's skin and K had not told him what had happened, so he was speculating as to how K got the injury. However, the father has recounted as fact to others that this is how the accident occurred; he told the mother this and when he took K to be seen by Dr R on 15th September 2017 she has recorded that the father 'said that K had put a peg on his nipple when he was playing. When he pulled it off, K screamed and required comforting. There was no bruise at the time. GH told me that he had noticed a bruise by K's nipple earlier today and therefore informed school. GH said he had not noticed the bruise before today as K does not have a bath every day and often K's care is done by his grandmother.'
- The impression from this statement is that GH had seen K with a peg on his nipple and it being pulled off (it is not clear if the doctor understood whether it was K or his father who had pulled the peg off). That was not the case. There are other concerns about this statement; PGM told me in evidence that she never gave K a bath, and his father looked after him from 6.15 p.m. GH said in his witness statement that he gave K a bath every day. In court he said no this was every other day. I would expect this little boy, who needs help to put his coat on, would need some help to change out of his pyjamas and into his school clothes, and to get ready for bed, whether he had a bath every day or not. The photographs show the bruise to be significant.
- If the injury had been caused some three of four days before one would expect it to have been visible at least for the past two or three days. It is surprising that GH did not notice it.
- Dr R (treating clinician) noted that the father was 'warm and caring to his son, but did express that he found caring for both children difficult in view of his medical condition, and lack of sleep.'
- Dr R has suggested that the mark looked too big for a human pinch, but that is not the view of the Court appointed expert witness. I do not accept that Dr R is better placed to comment than Dr Ward, in fact, Dr R was working on the basis of a witnessed accident which was not in fact the case, and may have made a difference to her conclusions.
- The father had reported the injury to the school when he dropped K on the morning of 15th September but was reported to have shrugged his shoulders and given no explanation.
- Despite the clear instruction from social services, he did not report this injury to them.
- K told his teachers that 'daddy did this, he smacked me.' This is the account he gave the first time he was asked about the bruise and is very significant. While it is noted that Dr Ward does not think this injury is consistent with a smack, K may not have the language to describe anything more sophisticated; he has said his mum or dad have 'hurted' him, 'scratched', 'or hitted' but not used particular language beyond that. That K said 'pegs' when Dr R asked him is not perhaps surprising after his father had just told her it was a peg.
- AB visited K and had a conversation with him during which she told a story about a girl who liked to play with pegs and put them on herself. K said he had never put pegs on himself. The note of the conversation shows that the topic was introduced with care and K was not led in one direction or the other.
- I was not convinced by PGM's evidence that K had played with pegs before and she had needed to put them out of the way. She said she had never noticed any bruising or distress as a result of him playing with pegs, and she couldn't remember if he had ever hurt himself as a result of playing with pegs. In the circumstances, I wondered why she said she thought they needed to be put out of K's way.
- In my judgment the father has also played down to the Court to a certain extent the difficulties that he has sometimes experienced in looking after his children, and managing his chronic pain condition. I am satisfied that there have been times that he has found it much more stressful than he suggested to me, and that at such times he has struggled to control his temper with K.
- While there is no direct description from K of the accident, and I am cautious about the weight that I give to what he has said, I have carefully considered the evidence from him, together with all the evidence on this issue. I am not persuaded that the father has been truthful to professionals to the Court about when it was he first saw the bruise, I find that he delayed in reporting it to school (and did not report to social services at all) in the hope that it would not be noticed. I do not think he is being truthful when he suggests that this bruise was caused by K putting a peg on his own body. In my judgment the reason that the father has not been truthful, is that he knows that this is not how the bruise was caused.
- Having regard to all the evidence in respect of this bruise, I am satisfied on a balance of probabilities that this injury was inflicted by an adult upon K. On a balance of probabilities, I am satisfied that it is more likely than not that the injury was inflicted upon K by his father.
4(i) shortly before 10.11.2017 father inflicted
injuries including a small telangiectasia below the midpoint to K 's right eye, a 0.5 cm red scrape to the right side of the bridge of K 's nose, and a bruise to K 's right cheek. These were caused deliberately by a slap or other blunt force trauma.
- The bruise which is the subject of this allegation is a very faint bruise in the middle of K's cheek in a very similar position to the bruise in allegation 2(ii) against mother. The photograph of K's face shows also a small red mark under his right eye and a small scratch on the right side of his nose.
- These two red marks are recorded as happening at school on 8th November 2017 and they have been crossed off from this allegation; it is no longer suggested by the local authority that these were inflicted injuries. The father took photographs of these two injuries at 15.22 on that day and sent to AB. At 16.46 he sent another photo of the mark to K's chest, saying K had said that W had punched him, and that he was not happy there had been three marks in one day.
- On 9th November in the morning when PGM dropped K off at school she pointed out the two red marks on the face and the chest injury and reported that K had said W had punched him. Later in the morning when a member of staff was helping K to put on his coat he lifted up his shirt and showed her the bruise and said W had punched him, and had pointed to the mark near his eye and said she had done it as well.
- K then attended contact after school on 9th November, where he said that his mummy and his daddy hurt him. K said that 'daddy hurt me again', 'mummy hurt me again', 'daddy makes me cry'. The social worker asked K what he meant and he said, 'daddy hurts me, mummy you always do hurt me.'
- AB took K home to GH and it does not appear from any notes that anyone had noticed the bruise to K's cheek at that point, the afternoon of 9th November.
- K went to school the next day (his grandmother having got him up and got him ready for school) and attended the third child protection medical on 10th November 2017, after school, recorded to have taken place between 15.10 and 16.50. There are no records of any injury to his cheek having happened at school.
- Dr Ward confirmed that bruises cannot be dated, and don't appear immediately, so it is not possible to say whether or not the injury which led to this bruise happened before the 9th November, after the end of AB's visit with the father on 9th November or during the day of 10th November. Even though the school has been meticulous at recording injuries, this is a very faint bruise that is not immediately obvious and could have been missed.
- Dr Ward suggests that the location of the injury and the absence of an explanation as to how it occurred is strongly suspicious of non-accidental injury. I am not sure why she considered a very similar bruise seen on K's cheek on 6th September 2017 at the same location to be more likely than not to be an inflicted injury, and not this one, but it is of course not just the location of the injury that determines the probabilities of its being inflicted, but all the circumstances.
- On 6th December 2017 the father had a meeting with JF, social worker when they went through each of the injuries on the body map and discussed possible causes. It is noted that school had confirmed that the scratches on K's face appeared at school and had been documented. So far as the faint bruise on the cheek was concerned, it was recorded that nobody had an explanation and the father said he did not know how it had happened.
- However, in his response to the schedule of findings, the father has more recently suggested that he was told by a teacher at school that the injuries to K's face were caused when K ran into a glass door. The father goes on to say that he recalls 'around the same time, K ran into the door frame/handle at home as he rushed to go upstairs with the father in order to tend to the family fish. No additional marking was noted as a consequence of the accident at home. The father is unable to comment on the origin of the bruise to K's right cheek but denies that he would have been responsible for inflicting the same.'
- It is very odd that the father is not able to say when K ran into a door, and given that he met with a social worker specifically to discuss that K had said his daddy had hurt him on 9th November, and K was due to attend a child protection medical on 10th November, it is strange that he did not think it worth mentioning at the time. The father said in his evidence that he really has not a clue how this injury happened, but he was just trying to think of possible explanations to help the Court. I have to say that this explanation came across as disingenuous.
- When asked in her oral evidence Dr Ward said she considered it highly unlikely that a bruise to the soft part of K's cheek could have been caused by him running into a door or a door handle, she said that one expects injuries to the bits of the face which stick out; the forehead, nose, chin, referring to the 'T' distribution of injuries.
- Dr Ward considers this injury to be highly suspicious of an inflicted injury, but not more likely than not. There is unsatisfactory evidence as to when it might have been caused, and I cannot exclude the possibility that it was caused at school during the day on 10th November, but equally, it is not a very obvious bruise and could have taken time to develop or simply been missed. K said on 9th November that his daddy had hurt him again and had made him cry. He has had an injury at this site before, I have found on a balance of probabilities it was because he was slapped by his mother. K was talking about being hurt by his daddy and by his mummy. I was unimpressed with the father's evidence in respect of this bruise; I found him to be evasive.
- On a balance of probabilities, I have come to the conclusion that this injury was inflicted on K by his father, and that the reason he did not mention his suggested explanation for it to social workers at the time, and then gave an explanation much later which was improbable, is because he is hiding from the Court the true circumstances in which it happened.
4(ii) Shortly before 10.11.207 father inflicted a bruise and petechial bruising as well as a linear scratch to the middle of K 's chest between his two nipples. This was caused deliberately by a forceful pinch.
- This bruise is roughly centred between K 's two nipples. In the photograph taken at the medical on 10th November 2017 is circular, and pale blue, there are distinctive petechial marks on it towards the top of the circle and a horizontal scratch with what look almost like puncture marks at each end. This bruising is very different from the other bruises and marks on K, but it is noticeable that this is a fourth injury on a part of his body that is more associated with inflicted or non-accidental injury, than accidental injury.
- As noted above, the father took a photograph of this injury at 16.46 on Wednesday 8th November 2017 and sent a picture to AB, reporting that K said that W had punched him. His photo is a bit blurry, but shows the mark to be quite pink and the petechial rash is darker, and the horizontal scratch looks raised and bumpy, unlike in the later photograph.
- PGM told a member of staff at school about the mark the following morning. Then at about 9.50 a.m. K went up to a teacher asking for help to do up his coat and lifted his shirt and showed her the bruise on his chest. In her report she described the bruise as 'bright in colour and fresh
red in areas with green and purple'. The teacher noted, 'without asking K said W had punched him and pointed to his chest he then showed me his eye and said W had done this as well. I asked where did this happen? And he pointed to the climbing frame and said when we were in the den.'.
- At a strategy meeting on 13th November Mrs C brought a photograph of a bucket stiltand explained that at the end of the day on Wednesday 8th November K was helping to tidy up and had grabbed a bucket from another child. As they both tugged at it the cord rubbed against K 's neck causing a mark, and the bucket was said to slam into his chest with force.
- Dr Ward says this injury would have been caused by a painful and memorable event and it is highly unlikely that a child punching K through clothes could have caused it, similarly she considers it highly unlikely that blunt force from a bucket stilt would cause a circular bruise with petechiae and a scratch through clothes. She thinks the injury could well be the result of a pinch mark either with adult fingers or an object such as a peg. She considers it highly unlikely that K would have inflicted this injury on himself and the injury is not consistent with a pinch mark by another child. On a balance of probabilities, Dr Ward considers this to be more likely than not a result of an inflicted injury.
- The father relies on the explanation given by K or the school. AB witnessed the father asking K about this injury and did not feel that he was saying anything to K that was suggestive to her of coaching or leading. K again said it was W.
- I am not able to say on a balance of probabilities what caused this injury to K's chest. If it was a pinch with fingernails you might expect two linear marks, not one and a cluster of petechiae at the top. I am not sure the scratch would be so straight, nor what the explanation would be for the 'puncture' type marks either side of it. The earlier photograph taken by the father doesn't look at all like fingernail marks. Dr Ward, to whose opinion I defer, does think that it could well be a pinch or a peg mark, but I do not understand her to be saying either is more likely than not. I accept her evidence that it is highly unlikely to have been caused by another four-year-old child punching K, nor a collision with a small plastic bucket. I accept her evidence that this is an inflicted injury, but I do not consider it can safely be said (and I don't understand Dr Ward to be saying) that on a balance of probabilities it was more likely than not to have been inflicted by an adult hand.
- Even though I have already found that the father has inflicted an injury upon K in his chest area, and he has not provided an explanation for this injury which I am satisfied was inflicted, I am not satisfied to the standard of a balance of probabilities that he was the perpetrator. K was asked specifically about this on a number of occasions and said repeatedly it was W. Unlike on other occasions, the father did take a picture of this injury and draw it immediately to the attention of the social worker.
4(iii) shortly before 10.11.2017 father inflicted a cluster of four bruises around K 's left elbow. This was caused deliberately by a forceful gripping action.
- The cluster of bruises around K's left elbow are all on bony surfaces and at a site where children often fall and knock themselves. However, Dr Ward notes that they clustered together and notes that it is possible that they represent gripping or grasping injuries. She says, 'I cannot be certain whether these are accidental or non-accidental in origin but the clustered nature of the bruises means that one cannot dismiss these as accidental injuries.' She described the elbow and forearm as a 'handle' by which children could be grabbed.
- Staff at school have meticulously documented injuries witnessed or marks seen, but it is acknowledged by all that K is a very active child and they would not have been able to see every incident which resulted in a bruise.
- The father has not been able to provide an explanation for this cluster of injuries.
- I share Dr Ward's concern about these injuries, and I would accept that the pattern of bruises might be consistent with an adult grip or grasp. However, the assessing doctors did not carry out a test by putting an adult hand on the bruises, and did not identify these particular injuries as being suggestive of non-accidental injuries.
- There are certainly grounds for suspicion, but I am not satisfied the local authority has established on a balance of probabilities that these injuries were inflicted by K's father.
4(iv) shortly before 10.11.2017 father inflicted a cluster of two bruises and three linear marks to K's right forearm. This was caused deliberately by a forceful gripping action or was a defensive injury in consequence of K raising his arm to protect himself from abusive injury.
- Dr Ward does consider it to be more likely than not that these bruises and marks were inflicted. They were also identified by Dr H as suggestive of inflicted injury. This is the soft underside of the forearm, not Dr Ward says, normally associated with accidental injury. These linear bruises are also similar with the linear bruises that the father has accepted he is likely to have caused to K's lower leg.
- Dr Ward was not very convinced that the marks on K's leg could have been caused by the tickling game described by the father; Dr Ward said the injuries which caused those marks would have been painful and K would not have been laughing, but crying in pain.
- The father seems to identify that he has a loss of sensitivity in his hands. He gave three different explanations, none of which was convincing. He has not been observed to have any difficulties with every day tasks during the parenting assessment, and there is no medical evidence to support his assertion that it is a symptom of his fibromyalgia. Nonetheless, that the father has said this on a number of occasions indicates to me that he is aware that he may literally have been insensitive to K in the way that he has handled him, and it is for this reason that he accepts that he could have caused marks to K.
- The father has done very well to help put boundaries in place for K and has often been seen to manage his needs very well. However, there is also evidence directly from him that K is difficult to manage, and that he has at times told social workers and medical professionals, or it has been witnessed, that he is struggling to manage him not just when he had to cope with L as well, but at times when his pain levels have been high, or he has had other issues to deal with. He has been seen to be short-tempered with K, and to grab at his arm to take a pillow from him, even in the presence of a social worker.
- In my judgment these bruises were more likely than not inflicted by the father handling K too roughly and not being sensitive to the likelihood that K would be hurt as a result.
4(v) shortly before 10.11.2017 father inflicted two parallel linear bruises to the back of K 's left calf. This was caused deliberately by a forceful gripping of squeezing action, or by a slap.
- Father accepts responsibility for causing these bruises which he says were caused by the tickling game. If however K was crawling away from him and he was gripping him round the calves to pull him back, with K on his tummy, it must be his thumb that would be pressing into the left calf, whereas these marks are two very clearly linear bruises. If he was pulling K back towards him holding onto both legs as he says, then one would expect the same pattern of marks to appear on K's right calf, but there are no marks there at all.
- Dr Ward considers these marks are consistent with a gripping, squeezing or slap mark and in her opinion it is more likely than not that these bruises were the result of non-accidental injury. She notes that the shin is a very common place for children to get accidental injury, but not the soft areas at the back of the calves.
- I am not persuaded that the father's explanation for this injury is credible, and in my judgment he is not being truthful about the way these bruises were caused. I accept the evidence of Dr Ward that on a balance of probabilities these were inflicted injuries, and I am satisfied on a balance of probabilities that they were inflicted by the father.
4(vi) shortly before 10.11.2017 father inflicted a cluster of bruises to K 's right knee. This was caused by a forceful gripping action.
- Dr Ward says these bruises could be consistent with a gripping injury but could be accidental, although she notes that each of these three bruises would need a separate application of force.
- Suspicion remains about the cause of these bruises, but given that K is such an active child and has at times been seen to have a large number of bruises on his knees and shins, I am not able to say that is more likely than not that these injuries were inflicted on K by his father.
Paragraph 3: allegations in respect of mother's care for L
3(e) on 24.07.17 mother finished L's NG feed 10 minutes early (contrary to medical advice).
- The mother's evidence was that she stopped the feed when the timer buzzed. The contemporaneous notes are clear that this was ten minutes earlier than it should have ended, meaning that L did not receive the full feed. The contemporaneous notes are clear and I am satisfied that this allegation is made out. The mother's suggestion that the nurse had fabricated the notes because she had a grudge against her was not in my judgment at all credible.
3(g) on 26.07.17 mother fed L solid food contrary to medical advice.
- Again the contemporaneous notes are clear that L's vomit was found to have solids in it, and this was accepted by the mother. The only way this could have happened is if L had been given solid food. The wider context is that the mother, supported and strongly influenced by her mother, who had particular experience of raising children with ARX, had expressed strong views about L's feeding and frequently conflicted with medical staff about the issue of whether or not it was safe to give him solids. L's treating clinicians were very clear that it was not safe.
- L was in the mother's care at the relevant time. I am satisfied this allegation is proved on a balance of probabilities.
Paragraph 4: allegation that father has failed to protect L
Father has failed to protect L from the risks posed by mother's failure to adequately meet his medical needs as set out at paragraph 3 [of the threshold document].
- I am not satisfied that this allegation is proved. L's father was involved in discussions with doctors and social workers and made clear that he accepted their advice. He was fully supportive of the decision to fit the naso-gastric tube and tried to persuade the mother to follow the doctor's advice.
- I would accept his evidence that he was taking a back seat at the time, he did not have parental responsibility, the mother was making it clear that she felt better able to look after L and his particular needs given her experience of two siblings with the same. He had separated from the mother but wished to remain on good terms with her so as to maintain his relationship with the boys. She then experienced a bereavement when her brother died, and it is understandable he was sensitive to her needs at the time, stepping back. He was reassured that appointments had been booked for the procedure, but I do not consider he ought to have gone to the mother's house to ensure that she took L.
- It is clear that the delay in fitting L with the naso-gastric tube and the other identified deficiencies in the mother's care of L have put him at risk of significant harm, to the extent that his very life was at risk, but it is not obvious to me that this was communicated to the father at the time or that he was told by doctors that he should be doing more than he was.
Paragraph 5: allegation that it was unsafe for the children to have been left with IJ, given the incidents that happened in his care.
- IJ was found on two occasions to be caring for L and allowed himself to fall asleep while he was holding L, thus presenting a risk of harm to L. It was unsafe for L to be left alone with IJ for this reason.
- IJ was looking after K when he fell down the side of the cooker and injured his leg. IJ was not supervising K appropriately at the time and K was placed at risk of harm as a result.
- I have not made any findings that IJ has inflicted any injuries upon L, but in respect of the incidents specifically pleaded, I am satisfied that IJ's care fell short of what would be expected from a reasonable carer. It is a matter for assessment as to whether the children should be left in his care in the future.
Paragraph 6: allegation of inappropriate behaviour
The mother has allowed K to be in bed with her and with IJ whilst IJ was sleeping naked. This amounted to an inappropriate lack of appropriate boundaries.
- The mother's evidence about this was conflicting, but IJ gave straightforward evidence about it and I find that the mother did allow K to be in bed with her and IJ when he was naked.
- The mother now accepts that it was inappropriate for K to be in bed with her and IJ while he was naked. I am not entirely persuaded that she fully understands why this might be, as opposed to recognising that others have said to her it is inappropriate, but that is not relevant to whether or not the allegation itself is proved.
- It will now be for the parties to consider the contents of this very long judgment and to discuss the next steps in these proceedings.
- With respect to the injuries that I have found to have been caused by the father and the mother, I have not always been able to say whether the injuries were deliberately caused, or were caused 'accidentally' in the sense that the mother or father did not intend to cause harm to K, or did not realise they were hurting him. The father repeatedly said in his evidence that he would never intentionally hurt his son. Dr Ward also tried to make clear that in trying to identify the likely cause of any single injury, she was not trying to find out a motive but the mechanism of the injury.
- Both the father and the mother and others have said that K is a child who doesn't cry or doesn't seem to feel pain. However, I have found that he clearly is a child who feels pain. He knows when he is hurt and has been described, even by his parents, as crying at times, and he told the police that he said 'ouch, loudly' when he has been injured. Dr Ward is very clear in her evidence of the pain that K would have suffered as a consequence of the injuries which led to the bruises and marks she described. It may be that there has been a certain amount of 'normalisation' of K's injuries over the years and he has learned to model his responses to his carers; if they have said a bruise or a mark or a fall is nothing to worry about, then he may have learned not to cry when he has felt pain. This may in turn lead them to think that he has not been hurt, he is not in pain, a bruise is of no significance to him. Nonetheless, there can in my judgment be no doubt that K has suffered significant harm as a consequence of all the injuries that he has sustained, whether non-intentionally or deliberately inflicted.
- I have taken note that K is a very active and physical boy and that his mother has struggled to put boundaries in place for him, and this has obviously at times led to chaotic behaviour, and risk-taking, in particular climbing on furniture and then jumping off it. However, K can also sit nicely and quietly and focus on a task, and he is doing very well at school in learning the rules and how to get on with other children. There is no evidence therefore that it is part of K's essential nature that he is more likely to be injured than other children, but more that the way he has been parented has created a situation where his behaviour has not been well managed and has been allowed to escalate out of control.
- Although I regard the injuries sustained by K as concerning, particularly those where it would appear that K has been punished with physical force, I recognise that K, and L, are very much loved by their parents and wider family. There is evidence of good parenting from both his mother, father and grandmother. On any view, K has made huge progress since September.
- There is no doubt in my mind that his mother and father love K very much and have a great deal to offer him as parents. It is my sincere hope that from here they can be supported to see and understand K's needs better, and to learn to respond to him in a more appropriate way when they are perhaps, for understandable reasons, feeling challenged.
9th March 2018
Family Court, Oxford
ANNEX 1: COMPOSITE THRESHOLD DOCUMENT
THE FAMILY COURT SITTING AT OXFORD
CASE NO: OX17C00138
IN THE MATTER OF s31 CHILDREN ACT 1989
IN THE MATTER OF: K and L
B E T W E E N :-
K & L
(Acting through Children's Guardian, NA)
3rd and 4th Respondents
CONSOLIDATED THRESHOLD DOCUMENT
All parties agree that the threshold criteria under section 31 of the Children Act 1989 is hereby satisfied on the basis that, as at the relevant date, being 6th September 2017, K and L were suffering and/or were likely to suffer significant harm, such harm being attributable to the care given or likely to be given to them if orders are not made, not being what it would be reasonable to expect a parent to give to them:
Those passages that are underlined below remain in dispute.
- In accordance with the separate Schedule of Findings Sought in Respect of Deliberately Inflicted Injuries each of the parents has caused and/or is likely to cause significant physical harm to K by deliberately inflicting injury.
- Mother has set boundaries for K but has been unable to enforce them. As a consequence K's behaviour is chaotic; he sometimes runs around the flat climbing onto furniture and work surfaces, thereby placing himself at risk of signficant physical harm. It is acknowledged that K is very energetic and that Mother was looking after two children, including L with significant disabilities.
- L suffers from a life limiting genetic condition, ARX and has complex health needs which Mother has failed to manage appropriately and/or manage in a timely manner, thereby putting him at risk of significant physical harm:
a) On 16.05.16 L was admitted to hospital following the mother having inadvertently given him an overdose of his anti-epileptic medication. Whilst this was not done deliberately Mother had trouble reading the label - this placed L at risk of coma, unconsciousness and/or drowsiness and a variety of other consequences detailed in the report of Dr Ward at E139.
b) In January 2017 L's GP made an urgent referral to the Hospital in relation to L's unsafe swallow. The hospital informed the mother that he needed to have a nasogastric tube (NG tube) inserted, to be tube fed. They were very clear that this procedure was vital to prevent the risk of L aspirating food and/or drink into his lungs which could be fatal. The procedure was arranged to take place in February 2017 but because Mother felt overwhelmed and unsupported she failed to agree to L undergoing the procedure and missed two appointments delaying the procedure until the end of July 2017.
c) The delay in securing appropriate medical treatment resulted in the following increased risks (albeit that Mother was not aware of this at the time):
a. Significant weight loss;
b. The development of microcytic anaemia associated with iron deficiency;
c. An increased risk of morbidity and mortality from infections and serious illnesses as a result of suppression of immune function;
d. An increased risk of speech and language and global developmental delay;
e. An increased risk of developing abnormal lung function and long term airway injury.
d) When in hospital on 23.07.17 (waiting for his NG tube to be inserted) the mother, against medical advice, gave L a small amount of water through a syringe via his mouth
e) On 24.07.17 mother finished L's NG feed 10 minutes early (contrary to medical advice).
f) On 23.07.17 Mother fed L a bottle of milk left contrary to medical advice.
g) On 26.07.17 Mother fed L solid food contrary to medical advice.
h) On 27.07.17 the maternal grandmother stated that, "we will give you [L] chips and vodka". This was intended humorously, but Mother accepts that it was not an appropriate thing to have said
i) On 27.07.17 the mother threatened to discharge L against medical advice, although this was said in the context of her being upset and she did not have any intention to discharge him until he was ready
- Father has failed to protect L from the risks posed by Mother's failure to adequately meet his medical needs as set out at paragraph 3 above.
- The mother has left the children in the care of IJ (her MGM's lodger and her ex-boyfriend). Whilst in IJ's care, the following have occurred:
a. Whilst L was in hospital in July 2017 on one occasion L was in IJ's arms when IJ was asleep and there was a potential risk of harm.
b. On another occasion L had to be removed from IJ's arms as IJ was asleep and squashing him.
c. The mother was aware that K sustained injuries whilst in the care of IJ.
It was therefore unsafe for the children to have been left with IJ.
- The mother has allowed K to be in bed with her and with IJ whilst IJ was sleeping naked. This amounted to an inappropriate lack of appropriate boundaries.
Mother asserts: The mother has allowed K to be on the bed in his own quilt cover which he carried from his own bed, but not in the bed with her and with IJ. IJ was sleeping naked in the bed.
ANNEX TWO: SUMMARY OF JUDGMENT
Note: this summary is to help the family understand the findings of the judgment. It is not meant to add to or put any gloss on the findings or the judge's reasoning which is set out in detail in the full judgment.
K and L
- K and L are happy little boys who are loved by their mum, dad and all their family.
- K and L love each other. K is very kind to L. L smiles and is happy when he sees K.
- Because L has ARX he needs a lot of attention.
- K is a very active little boy. Like all children, he wants and needs attention from the person looking after him.
- It is hard to look after both K and L together because they both need a lot of attention.
- Sometimes it is hard to manage K on his own, even if L is not there.
- K has been hurt and K can feel pain. K is very brave and does not always cry, but he does feel pain if he is hurt.
- EF loves K and L with all her heart. L and K love her.
- EF has needed a lot of help to learn how to look after L. She has done her best for him but she has made some mistakes: