Neutral Citation Number: [2018] EWHC B18 (Fam)
Case No: PR16C00650
IN THE FAMILY COURT AT PRESTON
Sessions House
Lancaster Road
Preston, Lancs.
PR1 2PD

Date:  Friday, 12 January 2018

Before:

HER HONOUR JUDGE MITCHELL
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Between:

	THE LOCAL AUTHORITY	Applicant	
	- and -		
	(1) MOTHER
(2) FATHER
(3) THE MINOR by his Children's Guardian
(4) (Intervenor)	

Respondents	
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MR ROTHERY for the Applicant Local Authority
MS HOBSON for the 1st Respondent/Mother
MS HARVEY for the 2nd Respondent/Father
MS BLAND for the 3rd Respondent/Children's Guardian
THE INTERVENOR was not represented
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Judgment Approved

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

HER HONOUR JUDGE MITCHELL: 
1.	This is my judgment in relation to a final hearing in care proceedings concerning a little boy, B, who is just over five years old.  B suffered injuries in August of 2016 which are the subject matter of the investigation in this case.  His children’s guardian is represented by Counsel, Ms. Bland.  Mother is, represented by Ms. Hobson.  The father is represented by Ms. Harvey and the application for a care order is brought by the local authority represented by Counsel, Mr. Rothery.   The final person I need to mention is the intervenor, who was the mother’s partner, boyfriend in August 2016.  He lived in the South of England, where the mother also originates from.  On 19th December 2016 he was made an intervenor to these proceedings to answer the allegations in the local authority threshold against him.  That is at B30 in the bundle.  
2.	B lives with his father under a child arrangements order made on 28th July of this year by Her Honour Judge Singleton QC.  That order in itself confirms an order made on 8th June by Judge Bland.  The child arrangements order also provides for B to spend reasonable time with his mother.  Not long after Her Honour Judge Singleton's order was made the father interpreted the child arrangements order to allow B to spend weekends with his mother Friday to Sunday, two overnight stays unsupervised.   Those have been B’s living arrangements since then.  The parents live close together.  The father speaks to B while he is with his mother and sometimes calls in at the mother’s home.  The mother calls him at the father’s home after work during the week.  The parents are clearly on very good terms.  They respect each other’s place in B’s life.  They trust one another in the care of B, and it appears to be a very positive family situation in which professionals have seen B to be thriving and making great progress.  B has a large, close and supportive family on both sides and his grandparents have been present throughout this hearing.  
3.	The local authority’s application notes the one incident of injury to B, which occurred at the mother’s home in August 2016.  If it were not for this incident the threshold for the making of a public law order would not be crossed.  Intervenor was present at the mother’s home at the relevant time.  This has been described as a one issue case.  The central issue is who caused these injuries to B?  There are other ancillary issues to do with the circumstances of the night in question including failure to protect, non-disclosure of information.  
4.	The threshold for the making of public law orders is therefore in issue and the factual matters need to be decided in order to establish whether or not the threshold is crossed. The application was made by the local authority on 23rd November 2016.  It can be seen therefore that there was a delay between August and November.  The proceedings should in my view have been issued sooner, but it is right to note that the parents agreed and indeed wished further enquiries to be made outside of court proceedings.  Happily, B was already living with his father, having moved there straight after the injuries occurred.  Prior to that he was accustomed to sharing time between his parents' homes on a 4 night/3 night split of the week.  From B’s point of view he noticed change, but not, I would suggest, drastically.
5.	The background to the case is that on 28th August 2016 B’s parents took him to the GP walk-in centre local to the mother’s home for injuries to his face.  The mother had B with her and had phoned the father to say she was going to the walk-in centre and they met in the car park at the centre.  From there they were referred with B to hospital and Dr. H examined B and identified seven injuries.  Her report is at H100-104 and she notes a brown  bruise to the bridge of his nose, a small cut to the top of his lower lip, bloodshot aspect to the left lower eye, 4 cm scratch mark below left eye extending up to the corner of the left eye and  extending upwards towards the eyebrow, a small blue purple bruise to the side of the left face level with the left eye with slight swelling, a 3cm scratch mark to the left side of the face over the cheek bone in front of his ear.  That was unusual in a curved shape, multiple red dots to both eyelids just above the eyes and also below the eyes, more on the right than the left; a small bruise to the chin, which was probably accidental.  It is not part of this case.  
6.	There are photographs of B’s face labelled 28th August at H5-8 in the bundle.  They show what I would describe as significant injuries.  They are upsetting photographs to look at.  Both the mother and the father have described being upset when they saw B’s face that day.  They are not serious injuries in respect of being life threatening or disabling or anything like that, but they are significant in that the cause of them clearly involved this small child being hit around the head and indeed hit in the face.  This is a horrible thing to contemplate.  Dr. H discussed B’s injuries with colleagues on 31st August.  I have looked at that also in her report.  Her conclusion was that the bruises raised suspicion of the mother about what she knew about the injuries.  The conclusion was that there were four distinct areas of different direct traumas and that the injuries were unexplained and therefore no accidental possibilities needed to be considered.  The doctor said that it was impossible to see how one accidental mechanism could be the cause of injuries in four distinct areas.  The mother has provided no explanation which the doctors found plausible.  In that situation an initial child protection case conference was held on 26th September, and then a public law outline meeting on 11th October.  At that stage the mother was to put in writing a further explanation she wanted the doctors to consider, that the injuries might have been caused by an accidental impact with the door or door handle of B’s room.  This was, the mother accepted even at the time, speculative and was based on something B had said, although on investigation during her evidence she acknowledged that B had not at any stage said he had bumped himself on the door.  In any event Dr. L did not accept that that speculative explanation could be the cause of the injuries at different sites and impacts.  So it was that proceedings were issued.
7.	Within court proceedings Dr. Y, a consultant paediatrician, was instructed to provide expert evidence.  His report is at E1 in the trial bundle.  Dr.   Y similarly found blunt trauma injuries to both sides of B’s face likely to be non-accidentally inflicted injuries.  He said that B would have been distressed and cried out in pain and anxiety.  I make clear there has been no suggestion at any stage that the father has had anything to do with the injuries to B.  The mother, for her part, denies causing the injuries.  She has been interviewed by the police on 28th August.  Her interview record is at G1-18 in the bundle.  She describes B being unsettled during the evening after going to bed.  He got up a number of times and he had a dirty nappy more often than usual.  She described attending to B about 5 o’clock in the morning when she had gone to bed when he was very distressed. There was a thunderstorm that night and during attending to him she saw by the light of her mobile phone a scratch to  B’s face, but she did not see other injuries before the morning.  At about 9 o’clock she saw the rest of the injuries and that is when she contacted B’s father and went to the walk-in centre.  
8.	Intervenor was present at the house that night.  He was interviewed on 21st September and he too denied causing any injuries to B. Intervenor has resisted participating in these proceedings.  He has not attended any hearing voluntarily.  Local authority solicitor has been in e-mail contact with intervenor throughout the proceedings.  In February 2017 he was telling her by e-mail that he had nothing to say since he would have been asleep at the time the injuries were caused.  On 15th February he said in an e-mail:  “I am aware of what would happen if I ignore the court, but I have nothing to hide or lose.  I did not do anything to harm B.”  On 1st March 2017 in an e-mail he said that the mother was aggressive, violent, volatile, hostile, unpredictable and uncontrollable in the six months they spent in a relationship.  He said she physically assaulted him numerous times.  He said “I do not think she would harm her child.”  That is at B37(aa) in the bundle.  He also said that the father had messaged him saying that the mother assaulted him, that is the father.  The father told me in his evidence that this was untrue.  
9.	The potential importance of intervenor’s knowledge and evidence about the events of that night is obvious.  The local authority issued a witness summons to secure his attendance at the final hearing listed before District Judge Bland in May 2017.  But he did not appear.  B55 is an order made by Judge Bland on 8th June.  It records that the service of the summons on intervenor is defective because no conduct money has been provided and therefore the summons was unenforceable.  But in May all parties agreed to proceed with the final hearing in any event.  No party argued that the hearing should be adjourned.  
10.	The matter then proceeded.  The case was heard and judgment was given including findings being made.  The outcome of that hearing was successfully appealed by the mother, heard by Judge Singleton who made the child arrangements order to which I have already referred.  Judge Singleton listed the matter for pre-hearing review and final hearing before me in September 2017, by that stage already more than a year since B was injured.  At the review hearing before me, the intervenor did not attend.  Again the witness summons was unenforceable because on that occasion it stated the wrong court venue.  A further summons stating the correct venue was served on him in relation to the final hearing which was due to begin on 8th September.  He did not attend on that date, which was the Monday, and a bench warrant was issued.  There was communication between the local authority solicitor and intervenor during that week.  He surrendered himself to a court local to him on Thursday, 21st September and was brought to court, arriving here at about 3 o’clock.  My order of 22nd September then sets out the ensuing events.  On the 21st he said he did not want representation and did not see the need for it. But his evidence was not heard regrettably on the 23rd because of the lateness of the hour and the need for him to be given the opportunity to read various documents and to prepare a statement.  The local authority provided overnight accommodation for him and I should point out he did attend voluntarily on 22nd September, by which time, having thought about things overnight, he decided he did want legal representation and he sought an adjournment.  I allowed that adjournment.  The parties, apart from the mother, agreed that the case should be adjourned.  The intervenor assured me that he would see a solicitor.  He was warned that he must attend court this week whether or not he has representation and that if he did not attend the hearing could still go ahead and inferences could be drawn against him.  He has corresponded with local authority solicitor in the meantime.  He told her that he has not been able to obtain the services of a solicitor on legal aid and that he cannot afford to pay a solicitor nor can he afford to take time off work.  On 26th October by e-mail he said to her that he was happy for the court to proceed without him no matter what the outcome.  Given the indications that he would not attend voluntarily a witness summons was served on him again and conduct money was offered to him, although he refused it.  The summons was served on him on 28th December.  That required him to attend the hearing but he did not attend it.  That warrant was issued on Monday.  Regrettably that warrant has not been executed.  The bailiff has visited the address at which intervenor was served with the notice with the summons on 28th December.  Intervenor’s mother was there.  She denied that he lives at the address and refused to give any other address for him.  The court bailiff contends he is too busy to effect service and he cannot transport a detained person in his vehicle and the police in the locality do not regard a Family Court bench warrant and summons as a priority.  That is why it has not been possible to enforce intervenor's attendance at this hearing for the whole of this week.  The case has proceeded in his absence.  
11.	I set out at this stage the parties’ positions.  I note that an unusual situation has developed in which all parties agree that the current living arrangements for B should be allowed to continue including B spending regular time with his mother overnight unsupervised.  The local authority delegated to the father decision making about B spending time with his mother back in the summer of 2017.  The court approved that arrangement.  Unsupervised overnight staying began without the local authority realising.  The social worker did not regard it as a case which needed a close eye kept on it.  Those stays have continued over many months now with there being no incidents or ill effects, quite the opposite.  The father says in his evidence that he feels his decision to allow this development has been proved to be a correct decision.  The local authority and children’s guardian have come to the conclusion that even if the mother was the perpetrator of these injuries, it is nevertheless very unlikely that there will be any repetition of that.  The social worker said in her evidence that contact would need to be supervised if the mother is the perpetrator of the injuries, but she readily went on to say that she had struggled with making that recommendation.  It seems a logical recommendation and the common recommendation in circumstances where the parent has been found to have caused injury to a small child.  But because of what the social worker had seen of the mother and B in the months since she has been involved in this case she struggled to explain why supervision would be needed.  
12.	There is a difference between the parties about whether a child arrangements order that B should live with his father should be made.  The local authority and the children’s guardian say there should be such an order if the mother remains in the pool of perpetrators.  It is clear to me that this father is open to such an order being made and will take advice from professionals.  In relation to the factual issues the local authority seeks findings that are set out in Schedule A4-5, dated 19th December 2016.  The mother says that the intervenor caused the injury to B.  She also said in relation to the child arrangements order that the order is not needed.  The father is neutral in relation to the factual dispute, having no knowledge of what happened in the house that night.  Intervenor has denied causing these injuries but not played any part in this hearing.  The children’s guardian is neutral on the factual issues.  
13.	I have had two opportunities now to read the file bundles in this case and I have done so, both in September and then again refreshing my memory of the documents in preparation for this hearing.  I have also viewed videos prepared by the mother of the home she occupied in 2016, both in darkness and then using the light on her mobile phone.  I heard oral evidence from the social worker on her welfare assessment and from the father and then on day 3 of the hearing I heard the mother’s evidence.  Her evidence was heard in the absence of intervenor.  Everyone would have preferred him to hear her evidence, but since at that stage we had no indication as to when or whether he might be produced I did not consider it fair on the parents or think that it would be a proportionate use of court time to continue to wait for him.  He clearly knows of the proceedings and the seriousness of the matter.  He has had a trial bundle provided to him.  He has been given time to get representation, and he has indicated an agreement to the case going on without him.  No party urged me to wait any longer for him.  That was in contrast to the position in September when all but the mother agreed that the matter should be adjourned to give him time to get representation.  
14.	I heard submissions from the parties yesterday and in particular in relation to the law.  In relation to the fact finding process the advocates referred me to the guidance of Baker J in the case of Re L & M (Children) [2013] EWHC 1569.  I remind myself of those guiding principles.  The burden of proof is at all times on the local authority.  The standard of proof is the balance of probabilities. Findings of fact must be based on evidence including inferences but not on suspicion or speculation.  In particular from those principles, I note the importance of the evidence of parents and any other carers in forming a clear assessment of their credibility and reliability.  Ms. Hobson in addition referred me to the decision of MacDonald J in A Local Authority v HB [2017] EWHC 1437 (Fam), in particular the principle that there is no requirement on the parents to prove anything.  Where a parent seeks to prove an alternative explanation but does not prove that alternative explanation, that failure does not of itself establish the local authority’s case.  It must still be proved to the requisite standard.   
15.	In relation to making an order for child arrangements for B, B’s welfare is my paramount consideration and the welfare checklist in section 1(3) of the Children Act must be applied.  Section 1 also states that prejudice is caused by delay to decision making in cases regarding children, and that was part of my consideration in deciding to proceed even in intervenor’s absence.  I also bear in mind the least interventionist principle in section 1, namely that the court should not make any order unless the making of an order is better than not making an order.  That is something I need to consider, given the difference of opinion between the parties as to whether there should be a child arrangements order that B live with his father.  A particular aspect of the law on which Counsel assisted me is in relation to the drawing of inferences against intervenor in the light of his non-attendance and therefore his having given no evidence.  I was referred to a number of authorities:  Y and K (Children) [2003] EWCA Civ 669 which makes plain the competences and compatibilities of parents, and indeed witnesses generally, in these type of proceedings and makes clear on the basis of section 98 of the Children Act there is no right to refuse to answer questions on grounds of self-incrimination.  Re O (Care Proceedings, Evidence) [2004] 1FLR 161, and Re U (Care proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] 2 FLR 690.  In the first of those, Re O, Johnson J. dealt with an appeal in a case in which the mother had refused to give evidence.  He sets out what he describes as a general rule in paragraph 13.  He says:
“This decision, simply to attach no weight to the mother’s statements, was in my view wrong.  The judge could, and in my view should, have gone further.  As a general rule, and clearly every case will depend in its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.”
16.	In Re U Holman J did not draw adverse inferences against the father because his decision not to give evidence was based on legal advice.  No weight was attached by the court to the father’s evidence transcribed from criminal proceedings, where that conflicted with the mother’s evidence in the care proceedings.  In paragraph 30 Holman J. refers to the very broad discretion of the court to draw adverse inferences which must be exercised in a very difficult context.  He says Johnson J. comments in Re O, he refers to that as being very fact specific.  I have carefully considered those authorities in deciding how to regard intervenor’s failure to attend and give evidence at the hearing.  
17.	I turn at this stage to my analysis of the evidence.  I have already referred to there being four sites of trauma to B’s head.  It is agreed that there must have been at least two blows to his head.  These injuries happened between 8.30 p.m. – we know that, because at that stage he was in the bath and there was a Facetime chat with his grandma and no injuries to his face were seen, and all parties regard that as a reliable piece of evidence.  The next morning by 9 o’clock or thereabouts the injuries were seen by his mother and by 9.50 she had telephoned the father and spoken to him about this.  There is no evidence from B on which I feel I can rely as to what happened to him.  He has made comments about the noise or the bang hurting his nose, but I do not see that I can glean anything reliable from what B has said.  
18.	There were two adults in the house on the night.  Nobody else has suggested anyone other than the mother or intervenor was the perpetrator of B’s injuries.  The mother’s case is that intervenor caused the injuries.  She does not have the burden of proving that in order to defend herself, as I have already made plain by the reference to MacDonald J’s decision in A Local Authority v HB.  The only evidence I have about events in the house during that relevant time frame is the mother’s evidence, along with her police interview, her statement and the statement produced by intervenor.  
19.	The mother gave evidence before me for almost a full day.  She was articulate and detailed in what she said.  She was ready to say when she could not remember a detail and I accept that these events were a long time ago and there will be small details that she will not be able to remember now.  She has made her own enquiries on a number of matters: about the workings of Playstation Home Screens, and she showed the video that I have already referred to.  Her love for B was absolutely clear and I have no hesitation in recognising and accepting that, and also her anguish that he suffered the injuries he did in August 2016 was very clear.  She was a forceful witness at times.  She was critical of Doctors H and L.  It is equally clear that she accepts Dr. Y’s report and accepts his evidence.  She was very evidently frustrated at intervenor’s lack of engagement with this process.  She became visibly very upset several times during her evidence.  It seemed to me that she was frustrated at not being able to explain or satisfactorily answer questions about what happened to B.   It seems also to me that she feels guilty about being the carer for B when he was injured.  I accept that she is a good mother.  This episode is the only criticism which is laid against her by anybody.  She provides good home conditions for B and I have seen his room and lots of toys and the bed in the video.  She has historically sought medical attention appropriately when she felt it was needed.  She has a good relationship with his dad.  There are texts which show that she is respectful of the mother of intervenor's daughters and in my view that shows her as being a woman who has sensitive feelings, empathy & understanding.  She told me she did not drink alcohol and I have no reason to disbelieve her about that.  She has used cannabis but has taken advice.  She previously only smoked cannabis when not caring for B and has taken advice about reducing and managing its use.  I accept the inordinately long care proceedings have taken a toll on her both emotionally and financially, and I regret that, and I express the same regret to the father, although perhaps it has not been quite so emotional for him.  
20.	An issue has been made by the local authority of the mother not telling medics that intervenor was present when B was injured.  The mother says that his presence was mentioned at the walk-in centre.  She makes the point that the father knew that intervenor was present in her house on the night in question and she says that at the hospital the relevant notes are notes of her answer to the question “Who lives at your house?” and she notes that intervenor did not live there.  She in her evidence made the important point that she was claiming benefits at the time and the question of who lived there was of significance.  I have considered the evidence carefully in relation to this and whether the mother could have been hiding intervenor’s presence in her house from the notes on B’s injury.  I do not find there to be anything sinister in the way she dealt with the question at the walk-in centre and the hospital.  
21.	A lot has been made of her not putting on the main room light when she went to see to B at 5 o’clock when she heard his crying and screaming hysterically.  I have watched the video she made of her moving around the house in the dark and then with her phone screen on.  I accept her point that many people would move about their house, to go to the toilet, perhaps to get a drink of water during the night, in the dark without putting any light on. Because it is your house, you know where you are going, even without the light on.  I can accept that many people would go to try to settle a crying child in the night without putting the main room light on so as to avoid disturbing the child, waking the child any further.  I can accept those assertions.  But I am surprised that, if things went as she described, that when she saw the scratch to B’s face under his left eye using the light of her mobile phone, given that she described him as having been "hysterical", I am surprised that she did not at that stage investigate more thoroughly and put the main light on.  I think that is a troubling aspect of her evidence that she looked at the scratch and then left it at that.  It does not quite ring true.  
22.	The mother’s case that intervenor assaulted B was based effectively on her assertion that it was not she who had carried out the assault, and therefore it must have been him.  She did not claim to offer any positive evidence of intervenor assaulting B.  Mr. Rothery makes two points which he says undermine the mother’s evidence.  Firstly, that intervenor did not generally carry out a parenting role in relation to B.  There was an agreement between the two of them that they would not seek to be parents to each other’s children.  Intervenor had taken B to Jungle Gym that day, and he had over the previous months put pressure on the mother about her toilet training of B.  As I understand it, he had not taken on dealing with the toilet training himself, simply that he had advised the mother about what he thought she should be doing.  He did not actively parent B.  I agree with Mr. Rothery’s submission that that being the case, that situation is likely to have reduced any pressure or stress which intervenor might otherwise have felt being in a household with an unsettled young child.  It was not his responsibility to settle B.  There was no requirement or expectation on him to see to B, and it seems to me there was no reason for him to feel pressured or get stressed or get to the point of losing control if B was unsettled that night.  If he had gone to B during the night to care for him, that would have been the first time the intervenor had ever done such a thing.  That was the mother’s own evidence.  After the mother settled B she went downstairs to get a drink of juice and her evidence is that intervenor was downstairs asleep on the floor with headphones on.  If he had had headphones on prior to B becoming upset that night that seems to me all the more reason he would not have been disturbed by B’s crying.  The second point Mr. Rothery makes is that when the mother went downstairs to get her drink of juice she described intervenor being on the floor "sparko", meaning fast asleep.  The mother said this categorically to the police in her interview on Monday, 29th August.  At G6 she said to the police:  “I wish I knew what had happened. All I know that it wasn’t me and it was not (intervenor), because when I went into that bedroom and I went downstairs to get a drink quickly (intervenor) was sparko on the floor, not on the sofa. He was on the floor with his headphones on like this because he’d been on his Playstation and there’s no way that he could have got from upstairs down there.  I would have heard him when I was in the room with B and there is no way.  He was sparko when I went down there.  B was screaming.  (Intervenor) was not in bed.  He was still downstairs.  I didn’t check on (intervenor).  I went straight to B.  B’s door was shut as well.  He was still in his bed.  There is no way in this world that I would not have heard (intervenor) run downstairs if he had hit my child.”
23.	G16, “ intervenor wasn’t even upstairs.  That’s certainly impossible.  I would have heard, yeah.  Okay, I am a heavy sleeper but anything to do with B the slightest movement….”  She is absolutely clear that the intervenor is downstairs.  She has used the word "sparko".  In her evidence this week she said that he might have been pretending to be asleep, having gone back downstairs to the living room after the assault on B.  But that is clearly not what she thought back in August 2016.  She gave clear evidence on the video of the size of the house.  The top of the stairs is between the two bedrooms.  Then there is a passage round the corner of B’s bedroom to the bathroom behind his bedroom.  Again I have thought carefully about the evidence in relation to those points made by Mr. Rothery.  I simply cannot accept that intervenor could have been in B’s room assaulting him and then manage to leave that room without the mother noticing anything, without her hearing or seeing anything until she sees him on the floor in the living room downstairs.  Intervenor would either need to hide in the passage and then sneak past B’s bedroom doorway.  In the time period he would have needed to do that the mother herself went back to her bedroom to get her phone and back into B’s room, crossing the top of the stairs where intervenor would have needed to get out. Or intervenor would have needed to have got out of B’s room and downstairs before the mother got to her bedroom doorway, and he would have had to do that silently but very quickly.  It would have been a very daring thing to do and then he would need to finish by cooly pretending to be asleep downstairs when she came down.  Ms. Hobson on behalf of the mother submits that intervenor would have had ample time to do that and that the mother may not have reacted immediately to the very first cry that B made; B might have been shocked and not cried immediately.  Mr. Rothery says these scenarios I have just gone through are highly improbable and unrealistic, and that is my view too.  
24.	A further point which has to be addressed when considering the mother’s evidence is why intervenor would assault B in the situation that the mother describes existing that evening.  Why did he suddenly assault a sleeping child?  She herself recognised the unlikelihood of that happening.  Again in the police interview she is clear that despite being a heavy sleeper she reacts quickly to any noise from B during the night when he cries.  If B had been disturbed and making a noise which annoyed intervenor, the mother would have heard all of that.  As I have already indicated, I do not see why in the circumstances between them the intervenor would have felt the need to act at all in that situation.  There is no evidence to support the idea that intervenor lost his temper that night.  I take into account the case that was put forward about intervenor having assaulted his own mother in the past, that he punched the mother’s iPad and broke it in anger.  He has admitted that.  He clearly has acted in temper in the past.  But there is no evidence to support the idea that he lost his temper that night.  
25.	It is those three points that show the unreality of the mother’s account of events that night. I do not believe that she has told me everything she knows about the events of that night, although I cannot say why she is choosing not to do so.  In accordance with the guidance from MacDonald J. to which I have already referred, of course the mother’s failure to prove her alternative explanation does not prove the local authority’s case against her.  I must also look at intervenor’s position and the evidence about him too.  Essentially he said that he was asleep downstairs until about 5 or 6 o’clock in the morning when he went upstairs to the mother’s bed. She agrees that he was in the bed when she woke up about 9 o’clock.  He denies hurting B. He provided a statement to the court in September with the assistance of the children’s guardian’s solicitor where he said the same.  He also in that statement makes allegations against the mother that she has been violent to him.  Because he has refused to attend court and give evidence and be cross-examined I have come to the conclusion that I must attach no weight to his statement and police interview where what he says in those documents conflicts with the mother’s account.  In fact the factual details he gives are very similar to what the mother says, but of course his denials conflict with the mother’s account.  I attach no weight to the allegations he makes against the mother.  I disregard those completely.  
26.	However, I do not consider it right to go further than this and draw an inference against him that he is guilty of the assault on B.  In my view the situation in this case is not the same as it was in Re O.  In that case there was a clear allegation against the mother and no one else involved.  She chose not to give evidence in her own defence.  Here I have two possible perpetrators and in fairness to all concerned, including B, I must weigh all the evidence, including the evidence about the mother.  There are other potential reasons for intervenor’s non-attendance other than his avoiding answering difficult questions about B.  He has not obtained representation.  He says he cannot afford to take the time off work.  Whilst I may not think those are sufficient reasons for his non-attendance, the case of Re U shows that the court should take into account the reasons a person gives for not giving evidence.  Intervenor has shown a complete lack of respect for this entire process and for the people involved.  Ms. Bland on behalf of the guardian urges me to balance any view I take about his non-engagement.  My view therefore is that I attach no weight to his evidence where it contradicts the mother, no weight at all to the allegations he makes about her.  But I do not draw an inference of his having assaulted B.  I am frustrated, as I know the parents are, at the court’s inability to get intervenor here this week using the bench warrant process.  I extend the court’s apologies to them for the inefficiency of that system.
27.	Where does this leave my consideration of the evidence?  One of these two adults assaulted B.  On the evidence I have, the assault happened out of the blue. There was no lead-up to it, no row or frustration.  Neither of these two adults is an obvious candidate for doing such a thing.  But one of them clearly did.  So the fact that it is surprising that this assault happened does not really help me to decide between them.  The local authority submits to me how unlikely it is that intervenor would act in this way. Ms. Hobson in her submissions says there is no reason why it is likely the mother acted in this way, but one of them did.  Even after all this time and all the gathering of evidence, the recounting of events, I do not believe I have been given the full story of that night.  Something happened to cause one of them to hit that little boy and I am afraid I do believe that the mother knows more than she has said, as of course does intervenor.  I do not know why the two of them will not tell me the full story, but no love is lost between the two of them now.  There is no reason for them to be protective of one another.  But in the absence of a full and therefore reliable account it is impossible for me to identify an individual perpetrator to the requisite standard of proof.  The evidence in its totality does not enable me on the balance of probabilities to identify the perpetrator.  I remain genuinely uncertain.  Either of them could have done it and there is not sufficient evidence to satisfy me of which one it was.  However, the pool of perpetrators can be identified using the test in NYCC v SA. The evidence does establish that there is a likelihood or a real possibility that either the mother or the intervenor is the perpetrator of B’s injuries, or indeed, referring to the local authority’s Schedule, there is a possibility that it was both of them.  Therefore that finding on the Schedule is made out.
28.	In relation to finding 10 I do find that both the mother and intervenor have concealed information about how the injuries were caused.  That, however, also seeks a finding that these injuries were inflicted by the intervenor alone.  The mother failed to protect B from being injured by intervenor.  On the evidence I have heard the mother had no reason to anticipate that intervenor would assault her little boy.  Clearly, she has said as much herself in her evidence, the injuries did happen that night when she was looking after him with intervenor present.  But I am not satisfied that a finding of her failing to protect B from intervenor is appropriate.  Given that she remains in the pool of perpetrators and that the circumstances as to what happened that night are not entirely clear to me, I do not think such a finding (failure to protect) would really add anything, and therefore I do not think it is appropriate to make that finding.  
29.	In relation to welfare and disposal aspects of the case B’s welfare is my paramount consideration and the welfare checklist is applicable.  The arrangements on the ground for B are agreed and I do not seek to disturb those.  I accept the professionals’ assessments, that the chances of the mother assaulting B again are very unlikely and that the father can provide sufficient safeguards.  The father must consider carefully the evidence, which he has heard twice now I think.  He knows the mother better than me, I accept that, and he may disagree with my findings.  I ask him to think carefully about the evidence and whether in his own mind the mother’s account really makes complete sense.  The father needs to be able to act protectively in relation to B and for that reason in my view there should be a child arrangements order that B lives with his father.  (Mother distressed, leaving court) And a second child arrangements order, that the father shall make B available to spend reasonable time with the mother, and that will include staying overnight with her.  The parents in effect will decide between them what reasonable time means.  I am satisfied that orders are needed in this case.  These orders are in my view in B’s best interests. They reflect his needs but also take into account the harm that he has suffered.  
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