England and Wales High Court (Family Division) Decisions

IN THE PRINCIPAL REGISTRY
OF THE FAMILY DIVISION

		First Avenue House, 42-49 High Holborn, London England WC1V 6NP
		17th October 2008

JUDGE HOROWITZ QC:

1. This is a fact finding hearing in care proceedings which concern TF, a girl born on 1st December 2003, and her younger brother, FL, born on 2nd December 2007.PRIVATE 
2. The facts with which I am concerned, which are said to cross the threshold, entirely arise in connection with FL, in connection with injuries noted in early January this year. The question is whether, broadly, these are accidental or non-accidental and, if non-accidental, do they constitute care below the appropriate parenting standard imposed by section 31 of the Children Act 1989.
3. ED is a young mother to both children. TF is her child by her former relationship to NF, who plays no part in these fact finding proceedings, though he is represented at the beginning and now again at the close of proceedings. The mother was within a day or two of her 17th birthday when she was born.
4. In August 2006, the mother met DL, her current partner, and the father of FL. They have been in a serious relationship since December 2006. They do not live together full time. That needs to be qualified: the mother is in housing association accommodation and in receipt of benefit, which would be lost if she cohabited on a full time basis with the father. He for his part lives in one bedroom accommodation shared with other young people. He has the sole use of his bedroom, the shared use of a bathroom and lavatory upstairs and kitchen. But, the evidence is that they spend four/five nights a week and weekends together, usually at her place but sometimes at his.
5. At 11.00 am or thereabouts on 7th January of this year, which was a Monday, the mother arrived at A&E at Whipps Cross Hospital. She was accompanied by her own mother VK and her sister Amanda. The party was seen by Dr Y, the paediatric registrar, the presenting complaint was facial bruises. It was noted that there were bruises to both upper eyelids, though that to the right was worse, bruises to the right left scalp and the side of the left face. There was a conjunctival haemorrhage and there was bruising across the nasal bridge beneath both eyes, bilateral (that is both sides).
6. The registrar raised a query whether there was an underlying basal fracture. The explanation he received from the mother at admission was that she had dropped the brother off the night before to father and had collected him at about half past seven in the evening the following day. She had received an explanation from her partner, DL, that the baby had fallen off the bed while he was out of the room going to the lavatory. On his return to the room, he found FL lodged between the bed and the bedside cabinet in his bedsit, a gap measured when he reconstructed the layout of the room to the police very shortly afterwards at something like 20 centimetres.
7. Later mother noticed there was a redness of both eyelids which had got worse, the forehead became more swollen and so she brought FL in. It was noted that he was feeding well, there was no vomiting, he was not sleepy, but he was irritable on handling. He was admitted onto the ward.
8. There was a CT scan and a skeletal survey. Dr D, the consultant paediatrician, arrived and met the mother at about half past four in the afternoon. The CT scan returned a normal scan with no evidence of intra-cranial haemorrhage, but mild generalised brain swelling later confirmed by a subsequent MRI scan. The skeletal survey revealed that both clavicles (collar bones) were fractured. The X-rays were sent on to Dr R of Great Ormond Street Hospital. She reported that on her reading of the X-rays the clavicular fractures were recent, within four to seven days, but she also picked up rib fractures on both sides, numbers 5, 6 and 7 on the left and 4, 5 and 6 on the right, with a periosteal reaction (the beginning of new bone formation) suggesting they were older than 7 to 10 days, putting them outside the likely time frame of the clavicle injury.
9. Section 31 proceedings were instituted on 31st January 2008. An Interim Care Order was granted. Under that order, FL was moved to foster care where he remains. TF was at first placed with her father, but later, in around April, moved to the maternal grandmother after some sort of altercation (about which I know very little) between the paternal grandmother and aunt while, to be fair to him, father was out at work.
10. Directions were given by me as long ago as March of this year, which included instructions to Dr J, a consultant paediatric radiologist, and Dr B LLoyd, a general paediatrician at the Royal Free Hospital in Hampstead where he is the named doctor for child protection. Provision was also usefully made for JD of Resolutions, who has a strong reputation and experience in working with parents where there are difficult questions of parental interaction and capacity to be answered, to give a preliminary assessment moving, if the threshold were found to be crossed, to a full risk assessment. So that work usefully has already been commenced. I was told he has had at least one meeting with the parents.
11. The section 31 threshold on which the Local Authority rely is set out in the bundle at A32, dated July 2008. Paragraph 9 sets out 7 injuries, but numbers 5 to 6 have now been deleted thereby implicitly accepting the mother's response to threshold that these relate to a persistent discolouration on the arm and leg, still visible, and there since or very shortly after birth. There remain extensive bruising to the left cheek, extending to the left side of the forehead and skull, significant bruising beneath both eyes, the conjunctival haemorrhage and the two sets of fractures to which I have referred (the clavicle fracture and the rib fractures).
12. The Local Authority seek findings, broadly, that the clavicle fracture occurred within a window of not more than 11 days before 7th January, caused non-accidentally, most likely by significant excessive squeezing or hitting upon the shoulder or forceful pulling or yanking on the arm or arms. In regard to the rib fractures, they seek a finding that these were sustained in a different time window, not less than eleven or perhaps not more than twenty-five days before 7th January, that is in a different but overlapping I think by one daytime frame, again caused by, they say, significant excessive squeezing or compressing forces applied to the chest. It is said by the Local Authority that to inflict either/or both of those sets of injuries requires force out with beyond outside rough, clumsy or inexperienced handling an therein constitutes inappropriate parenting within section 31.
13. As to the bruises, of course it is accepted bruises are notoriously hard to date and according to the medical evidence we received the science of dating by colour seems to be abandoned and the dating process becomes harder, but the Local Authority seek a finding that these are caused by direct blows or otherwise causing impact by force and again outside even rough handling.
14. I have described the parents living arrangements. I should add that the mother told me, and I accept, that the effective distance between them is one hour on the bus - for her anyway; she does not drive. He is an agency driver. It is also their case, and I accept, that the father would visit many times a week and during those visits played a full hands on role as a father, involved in the changing and feeding and so on. Additionally, as I have said, she would, much less frequently, go over to his place. There were specific dates around the Christmas party season when -- and in itself it is no criticism of the mother -- she went out, leaving the father, DL, in charge. One was 15th December when, according to her, he was in charge when she popped out to get a pizza and was away for an hour plus. On 22nd December she went off to a party. She says she was away for something like 3 hours, was reluctant to go, missed the baby terribly when she was there and came back a bit early. Father puts the time she was out at 5-6 hours, but it has a greater significance in that it is identified by both of them as the first extended period on which he was in sole charge.
15. On 5th January FL was delivered to the father to look after overnight at his bedsit because he had asked to spend time with him. Mother says she dropped him off at 7 p.m. and, as I have said, already collected him around 24 hours later at 7.00 or 7.30.
16. It is accepted, rightly in my judgment, that whatever occurred is to be explained by the actions or admissions, or combination of them, of mother and/or father and there are no third parties involved such as, for example, the maternal grandmother. The Local Authority, therefore, inevitably seek findings against both as possible perpetrators and they are plainly within the band of reasonably possible perpetrators if I find non-accidental injury and, again, in accordance with established practice in the alternative, failure to protect, itself capable of constituting parenting below the section 31 standard.
17. The Local Authority say that the father is the most likely perpetrator on the basis of his being in sole charge on the night of the 5th and would go on to infer from there that he is the more likely perpetrator of the bruises if they were inflicted on an earlier occasion.
18. In respect of the mother, the Local Authority further say that she failed to protect both generally and specifically by going late to hospital as she did on the mid morning of the Monday, having recovered FL in the early evening of the Sunday.
19. There have been tentative suggestions in the papers in the light of certain observations by the doctors that there may or may not be some genetic predisposition and the mother has given some account of the presence of such a potential disorder in her larger family. Osteogenesis imperfecta (producing weaker bones) allied to what I think would have been known in the past as rickets has been suggested. Its presence has been decisively negatived by Dr A, an endocrinologist, whose report was so decisive that he was not required to attend. There was a further detailed enquiry, properly made of him, which he promptly and helpfully answered which again negatived any further rare explanation.
20. The father has accepted that he was careless in leaving FL in the room while he went to the lavatory for ten minutes. On that basis he says he accepts that he allowed the accident of the fall to happen and that itself, as he properly accepts, takes him below the acceptable parenting standard producing results which he says he now deeply regrets.
21. The mother does not accept that she was in delay, to any extent that can be criticised, in going to the hospital. Both parent otherwise reject any non-accidental explanation for all or any of the observed injuries. However, on the father's limited concession both agree and suggest the proper way forward is for these 4 threshold findings to be made on that concession to utilise the instruction to resolution and proceed to risk assessment. The Local Authority say it is not a sufficient threshold finding. Given the nature of the issues in dispute and the importance of them for further work in the family if I find them made out, in my judgment it would have been wrong for me to accept and proceed only on the limited basis and concession father made.
22. The burden therefore remains on the Local Authority to satisfy me. They must do so to the civil standard of the balance of probabilities, recently clarified by the House of Lords in re B (Care Proceedings Standard of Proof) [2008] UKHL 35 and also reported -- I have taken my citation, Mr Stewart, from the FLRs and the Weeklies -- [2008] 2 FLR p141. Broadly, as the profession now well recognises and have been usefully guided, the court cannot conclude risk of a child suffering particular harm if the allegations cannot be proved. The House of Lords decision, in particular the well-known dictum of Lord Nicholls in H v R and M v R, a later decision, form a coherent set of principles, but reasonable suspicion is not to be found in section 31. The standard of proof is the balance of probabilities more probable than not. There is no heightened civil standard. There is no need for a general blanket application of requiring cogent proof to the civil standard. In Lord Hoffmann's pungent phrase "civil litigation returns a binary answer zero no, one yes". But in applying the standard of a balance of probabilities, I should have regard to inherent probabilities and in this particular case I would find it appropriate, and I do, to bear in mind that the infliction of fractures is not normal.
23. The parents' case is that the rib fractures may well have occurred during the mother's caesarian delivery when the baby was manually removed, including, as the hospital notes tell us, forceps which of course normally apply to the head. The parents say collectively and individually that the likelihood of necessarily rough handling to achieve the removal of the child from the mother's uterus is such that it is sufficient that the Local Authority are impeded from establishing on the balance of probabilities that there was an non-accidental cause. They say that they believe the effect of the ribs broken during the delivery process persisted and is an explanation for what is said to be FL's irritability on being handled and his propensity to cry when picked up until calmed. It is of course a fact that escaped birth specialists and the parents, but to be noted that Whipps Cross Hospital on 7th January, as Dr Duthie ruefully acknowledged, did not pick up the rib fractures on the X-rays that were taken on admission.
24. It is suggested, further, that because these were unknown, unrecognised rib fractures, there was no deliberate process of rest or healing to leave them alone, thus taking the healing process outside the normal dating parameters relied on by the Local Authority as informed by their experts, particularly Dr J. As to the other noted injuries which are accepted and which are said as appears to be the case to have occurred on the night the father was on duty, they were the combined accidental consequence of the careless fall. In the fall, it is said, it is likely that FL fell and bruised his face, head and eyes against the bedside cabinet, the side of it or the edge of it, the plugs on the floor in a socket collection - not the sockets themselves, but the hard edge of the back of the plug, and even possibly the feeding bottle which the father had placed in his mouth when he went out to the lavatory. It is suggested that the likely explanation is that the 1st clavicle broke on the fall and the 2nd would have been broken when the father, in panic and stress coming back into the room and seeing the fallen baby, picked him up roughly -- he told the police he did so -- simultaneously by the leg and harm, causing stress fractures which could have broken the other clavicle.
25. In order to determine that issue, I heard evidence from JW, the allocated social worker, who has been responsible for working with the family since 17th January, from AJ, the health visitor; HC, now a health visitor but then a trainee; JD, the hospital based midwife. I heard from Dr J, the consultant paediatric radiologist, and Dr L, as I have said. I have read Dr D's report and I read the report of Dr Allgrove to whom I have referred and Dr Rosendahl, to whom I have also referred, the radiologist carrying out back-up inspection of the X-rays at Great Ormond Street Hospital. I heard both mother and father. The parties have been represented. The guardian who kept a low profile, which is the guardian's election and often the right course when she wishes to remain above the fray in the contentious fact finding process. Otherwise I received assistance from all three advocates who presented their cases clearly, concisely and analytically. In addition, I was provided by Mr Stewart and Mrs Trustman for the mother with helpful written submisisons
26. JW agreed that the father presented a positive picture at contact. He seemed used to doing nappy changes, which he did well and appropriately on the 2 occasions she observed him in April 2008. He showed no aggression, he showed no anger or particular defensiveness and, perhaps as important, none seems to have been reported back to her within the social work team. She did describe him as clueless with children. I am not entirely sure what she meant by that. She seemed to derive it from making rather more than I would have done from him rocking FL, she thought too rigorously, in the car seat in which he was placed at the end of contact and putting him behind his legs so that he might accidentally tread on him on another occasion during contact. I find that a little odd. I do not find it necessarily inconsistent with the positive handling to which she spoke, but I bear in mind that in taking an overall impression of the positives and negatives she observed of father, they are of course on the artificial and limited occasion of supervised contact.
27. She described the mother as positive and cooperative throughout, with appropriate reaction to the loss of her 2 children. That is entirely consistent with the mother's presentation towards me.
28. Dr J gave evidence via video link. He spoke to his report and to the joint conference held with Dr L, the contents of which have been helpfully properly and fully transcribed. Dr J is an experienced witness. Both he and Dr L gave evidence courteously, calmly and fairly. Both of them were properly willing to enter into discussion and consideration of points put to them by all the advocates and I am indebted to both of them.
29. Dr J's report of June 2008, which we have at E264, is based solely on the X-rays. He reports normal bone density with no signs of metabolic bone disease, which is then and is no longer in no contention. He noted the Whipps Cross X-rays showing the clavicle fractures and there to be found apparently the rib fractures of 7th January, confirmed by the Great Ormond Street examination on 30th January. He accepted what is there described and the dating process. He observed there was no new periosteal growth on either clavicle on 7th January, but some healing observed on the later 31st January, which helped him fix his dating process to not less than eleven days, though Dr R (who was not called) would have gone for a tighter time, a 4-7 day bracket. Of the ribs he noted some evidence of healing around the fractures. His preferred dating is 11-25 days. In his report he said considering the point that was earlier being put of which he was aware that they were not in his view old enough to be birth related. He properly added that radiological dating is a matter largely of impression, subjective and necessarily imprecise, in short a professional judgment.
30. Dr R herself noted a moderate periosteal reaction around the fractures, suggesting to her too that they were older than the clavicle breakage.
31. Dr L, in his function as a doctor reporting with an overview, dealt with the genetic component in his work, now deleted. He did not consider the rib fractures were birth related, nor on consideration of the medical records of the birth to which he had access did he categorise this caesarean delivery as traumatic. He did not consider that the forces in the drop from the bed could cause the rib fractures. The clavicle which was initially suggested by the mother to be birth related as well could not, he said, be related by the dating evidence to the birth. As to locating it within the explanation offered by the father, he allowed for the possibility that one clavicle might be broken in the fall, though he thought it was a slight one. The mechanism would be a blow to the clavicle, if non-accidentally caused, or severe squeezing, very much the same as he and Dr J advanced for the rib injuries.
32. In their evidence neither doctor shifted on major components of their report. Dr J confirmed that the rib injuries were likely to have caused by the application of force beyond rough handling, even by the inexperienced. He observed that low level falls do not commonly cause rib injuries – a general proposition with which Dr L concurred and which I accept, but the doctors did make these observations, answers or concessions in the course of discussion and cross-examination on the part primarily of the parents. Dr J noted that on his timing there was an overlap of a day or so. The X-rays were not of the finest quality and it was, therefore, theoretically possible that everything occurred on one day. He conceded that rib fractures can occur at birth or even be caused by coughing. The compression or manipulation involved in removing a child could cause a rib fracture, which can be missed on X-ray. I have already observed that they have been. He conceded, too, that fracture healing is variable. He said the window within which something is likely to happen, the question of healing and how well depends, among other factors, on how well the fracture is immobilised and allowed to heal and access to blood supply. Dr L also agreed that rib fracture could occur at birth. He described it as "extraordinarily rare, barely possible, but an explanation". Dr J thought that a single fracture to the clavicle could occur by yanking both arms causing tractional force and thus a fracture to the shoulder. But he did think that yanking upwards by both arms is a difficult explanation because it would require the application of very severe forces. It became a little more possible, he allowed, if there was a pulling up not by both arms but by arm and leg, as I have already described father told the police. In that event though, he would be looking to see and would expect to see the fractional forces or the torsional forces applied producing a fracture elsewhere and along the arm itself. Dr L, as I understood his evidence, was himself rather more doubtful whether yanking by the arm could cause the one clavicle fracture. He queried it was unlikely and found difficulty in accepting that sufficient force could be applied.
33. Now it is unwise, not good practice and discouraged to rely solely on medical evidence. It needs to be weighed in context, a point made appropriately by Dr L. It will be recalled that he looked at in the joint meeting and made the observation, medically relevant at least, that looking at any particular element of the set of injuries there might be an explanation, not perhaps the most likely or even the unlikely, but one also had to look at the assembly and the context of all the injuries and had to look at context which can and does include in the medical spectrum issues such as delay in reporting.
34. I, too, have had the advantage of hearing the parties give an account and be tested on that account. It forms part of the material to approach what is always in these cases a puzzle because in cases of injury where the enquiry is whether they are accidental or non-accidental, the direct witnesses are generally only the perpetrator, if such there is, and someone who was with them or would have received an account from them. So my task is to see whether I can be assisted by listening to an account from each of the parents.
35. The mother gave evidence pleasantly, quietly and with appropriate distress. She is young; and, in my judgment, a little naive. She is plainly shocked and distressed at what happened. I do not think she set out to tell me a manifest untruth. I do have to consider the extent to which her recollection and her interpretation of her recollection looking back over things is affected by her attachment to the father, her wish to continue the relationship, not to think ill of him and not for him to think ill of himself. She remarked that when she received the first report from the father she did not want him to think he was a bad dad. She told me the birth was hugely traumatic and she received the impression there was a lot of pulling and shoving and generally pulling the new born about. It has to be taken into account that although she was not wholly unconscious she was under a sufficient degree of anaesthesia to make the whole procedure bearable. She also told me and confirmed the account she has already given of telling her mother, her sister and, she says, professionals such as the midwife how FL was crying all the time and more than she expected him to do.
36. DL gave evidence in a cooler manner. He was quiet, unemotional, phlegmatic and a little surprisingly lacking in affect. I am not wholly confident that I can come to the view that he was going out of his way to give me the fullest explanation that he could. He did, I thought genuinely, regret what he described as his carelessness in leaving the room, but he strenuously denied inflicting harm.
37. From their evidence in their statements given to the police, whose own investigation is in abeyance at present or rather I should say at an early stage, and their oral evidence together with the written and oral evidence of the medical professionals, the parents construct an alternative explanation. As I observed to Mr S, better formulation would be perhaps to say that their parents contend that their explanation is weighty enough to entitle me to find that the Local Authority has not proved its case to the requisite standard.
38. Let me deal firstly with the question of causation of the rib fractures on both sides of the chest. Reliance is placed on the accounts of crying said to be in pain reflective of the presence of the rib fractures right from birth, the fact that it has not healed within the time frame suggested by either/or both the two experienced specialists is said to be accounted for, the fact that it was not known, not provided for and the appropriate precautions not taken.
39. Having given the matter careful thought, I find that I remain with serious problems with this hypothesis. I accept as a starting point Dr L saying it is a barely possible explanation but the barely possible does of course happen and that of itself does not prove rule it out. I do bear in mind that his judgment, although he modified it a little, was that if one looked at it objectively as a professional, an obstetrician gynaecologist; this was not a birth experience at the traumatic end of the spectrum. There is, for example, no note, though that is only a mild indication either way, that forceps were applied to the body or of any examination to exclude rib fracture. I put that in as a mild indication on which I would not place a great deal of stress, but I note it nonetheless. The persistent crying presents a little of a puzzle too. It simply is not picked up in the notes we have by AJ, the midwife, HC, whom I found to be a conscientious student midwife and now a full member of the profession, or JD, the hospital midwife, equally careful. Nor do they carry a distinctive separate oral recollection. Of course, these are professional women who see an enormous number of mothers in the course of their professional and daily work. But it is nonetheless telling that there is no record of mother raising the issue to the extent that they note it, as it seems to me I am entitled to expect they would. Moreover, when three of them do not that seems a more telling and significant non-account than when one of them does not. MT suggests that they were too embarrassed, each of them and cumulatively to admit to professional oversight. I see what she means, but I would expect, hope and I find that they were professional enough not to run for cover quite in that way.
40. The point made by the Local Authority is that the mother was not shy in mentioning other matters. She did like the first midwife, for example. That was carefully noted, taken on board and another midwife subsituted, hence AJ. None of them note or told me in evidence that he cried every time he was handled or changed. He was never taken to the GP for it and the picture that was presented to me was not entirely consistent either. He was sometimes described as always crying; he was also described as irritable just when handled. Then mother said he would sometimes cry until comfortable and sometimes moan. The father's primary description was that he was "fussy" when he was picked up and would give what he called a "kind of moan" and then settle. So I am not getting, it seems to me, a very clear and coherent picture here, in reconstructing what is said to be the discomfort from the broken ribs all the way back to birth.
41. Nor did I, as I understood the evidence, receive from either parent a precise identification of a particular spot of discomfort, such as when he was being picked up by his side rather than pulled up by the shoulders or when his arms would be lifted up to change his babygrow or his T-shirt or the like. It is suggested and indeed it is fact that DJ introduced an element of uncertainty in the dating process if the rib fractures occurred from birth. But there was not, as Mr S agreed in the helpful discussion we had when he addressed me yesterday, any consistent, real or clear exploration in evidence as to exactly how the healing process becomes arrested or suspended.
42. One bears in mind that from nought to five weeks this is a baby starting from total or near total torso immobility. It is not a question of a child who could walk about or toss from side to side or bend or even sit up moving the injured area So what is, I ask and I have no received no answer to help me, the arrest in the healing process that might have occurred to explain why we are so far out of the usual time band? Of course, there is healing noted, but it is the beginnings of healing as identified at Whipps Cross, at Great Ormond Street and of course in a 2nd report at E200 which bears the remarkable date of 18th January, referring to an examination on 31st January, so that date has to be wrong, and stamp received on 4th April, so I think it is somewhere around March and refers to the 2nd examination, of which I have an imperfect record, which Dr R said she wanted anyway where she picks up significant callus formation at least on one side. She also notes periosteal formation on the other side of the ribs which she describes as "subtle".
43. I also note that Dr J told me and I accept, his proposition and understanding, that in a very young child he would expect healing to accelerate.
44. For all those reasons if seems to me, and I so find, that the birth hypothesis is not capable of being founded on any evidence sufficiently for me to entertain it.
45. There was an incident of crying particularly remarked on. It is logged by JW when she met the mother on 31st March of this year for a long chat. Mother said it was either 15th or 22nd when FL cried in a particularly strong way. If it is the 22nd that does locate it on that first occasion when father was alone for several hours with FL and for the first time. Mother was not entirely comfortable dealing with that note. She was at first moved to accept it and then inclined somewhat to retreat and say it is really no more than the crying I was talking, she explained, all the time. I find it significant that it is logged as a particular occasion in her recollection given in that long conversation, probably one of the first long conversations she had with JW, back in March.
46. It therefore seems to me that I am bound to find to the requisite standard that there has been non-accidental injury causing the rib fractures by excessive force compression, of squeezing, and I find and accept that on the evidence it was caused in such a way what whoever did it would know that they was acting outside normal parenting. The question whether it would leave palpable tenderness that would be observed by the other parent is in the context of this case a little more difficult to deal with. I deal with identifying the perpetrator to the extent that I can after considering the events of January. That, as I have already said, occurred when, so the father says, he went out of the room for may be ten minutes. He no longer contends that it was when the rib injuries were inflicted or occurred and his sequences, one clavicle broken by the fall the other in retrieval and as I have already observed the bruising against the cabinet, possibly the bottle.
47. I have considered this explanation with a great deal of care, placing it within the notes that I have, the evidence that I heard, the account given by the father. It presents, it seems to me, queries and difficulties. FL was, as I have already noted, barely mobile. The doctors are rather unsure, Dr D and Dr L, have difficulty in grappling with the ability of FL to wriggle. Why, one asks, would he fall out of or move from his admittedly slightly precarious, but still prone position lying on his back making a dent by his small body on the softer of the two cushions that we can see in the picture -- the grey one, not the hard red one -- so as to fall over at all. Even if he fell, the doctors between them can each of them accept one fracture separately explained, but have a problem, as indeed I do, with the double combination. The fall is a possible cause, says Dr J, of one fracture. Dr L noted it at the joint meeting as being very doubtful, pointing out that babies often fall out of beds and very rarely fracture. Dr J, as I have already noted, and as for the possibility of the yank to the arm and leg but would be looking for the likely presence, though not the inevitable presence of a fracture on the arm too. Both doctors agree that the clavicle injury would be painful. Exactly how would vary from case to case. Dr J said without measurement for significant time.
48. The father reports the opposite. Nothing occurred to disturb his sense that not much had gone wrong. At about 2 or 3 in the morning he gave FL a feed. He slept well. This is after 2 fractures, extensive bruises across the eyes and side of the face. I find that very hard to accept.
49. I also consider and find puzzling why if there was a fall of a baby with so limited muscular tone control, ability to put his arms out and so on, why is he so neatly found fallen prone on his front with his legs in a straight line, as father told me, behind him, not at some sort of angle and just falling as if he has gone neatly and vertically through the narrow chute presented by the 20 millimetre gap. If he was bruised by contact on the way down or on meeting the plugs, why is the bruising as it were symmetrical? Why are the objects that he encounters aligned against each eye? Why does the father stay in all day? It is not as if he is in a flat with a great creature comforts; it is a bedsit in, as the picture I have plainly tells me, cramped accommodation. He had the pram with him; why did they not go out? He did not walk out, he did not meet anyone.
50. According to the mother, it was left for her to take the initiative to ring. She called him at 11 or 12 o'clock in the morning and he says when she rang he promptly told her what has occurred. Why had he not done so earlier? It does seem to me that the alternative explanation I have given is a constructed hypothesis and no more than that, that it does not fit the medical presentation, it does not fit plausibly the account given by the father himself and has the further difficulties that I have already described and so I am bound and I do find that the infliction of the clavicle injury and the bruises is non-accidental, by excessive force and perpetrated by the father.
51. I do not find that the parents have put themselves to concoct a false storey. The way that the bruises, for example, come up on and after 5th January tend strongly to support occurrence around that time. I have already said that I found that the bruises are likely to have been the result of non-accidental inflicted injury. Taking the story as a whole, I cannot propose such complete confidence in the mother that I can take the positive step of exonerating her. But I do find, for the assistance of those working with the parents in the future, that the probability is by a large margin that it was likely to have been the result of actions taken by the father, either when he was alone with FL on the many occasions when they were staying together and he would have got up to change him or feed him in the middle of the night or otherwise take care of him.
52. I deal with the issue of the alternative that I need to consider in regard to each parent. Plainly, if I am wrong about the actual perpetrator then the father has failed to protect. Has the mother failed to protect? So far as the early rib injuries are concerned, in relation to those it seems to me that I am in difficulties in making a positive finding that she was specifically put on enquiry around 22nd December. I remain, however, troubled that the distress likely but not inevitably, to be the result of the rib injuries was not picked up by her. So far as the main charge against her not taking FL to hospital on time or in good time, JW accepted the proposition this could be described as the action of an inexperienced parent. I reject that, not least because I have heard rather more evidence I think than she has. She was not after all an inexperienced mother; she was a second time mother. There was also some history of difficulty in the first marriage which might have put her on enquiry.
53. I am satisfied, too, on the assembly of all the evidence, that is the statements of her mother and Amanda, what she has said in statements in her police interview that it took Amanda to prompt her to go, and I do not accept mother's evidence that she was about to do so anyway and that the light bulb lit up above both of them simultaneously. I think there was an element of holding back, hoping, less culpably in her case, that things might go away. I think that is undoubtedly what lay behind the father's late reporting, hoping it would all go down or not turn out to be serious in the end. He was wrong. The mother was wrong not to have taken FL to hospital.
54. I appreciate that this is criticism made of her after the event happened, but it was an emergency. There was some damage to the skull and it would not have taken much more for this injury potentially to have been a much more serious incident and it really was essential to get medical attention and to get it earlier than was done.
55. Those are my findings. I have already described the pattern of life between the parents; they are a parenting couple, they are a de facto household. It necessarily follows from the findings I have made that there is absent public law intervention that 2^nd statutory limb made out of future risk which must apply both to FL and to TF. The extent of that risk and how it impacts on future parenting is something very much to be explored in further assessment from the highly experienced JD, from the guardian's work and social services and any risk assessment and, indeed, the parents joint and separate reaction to my findings. I will deal with those matters at 2 o'clock. And also with the Metropolitan Police issue. Unless that is, it may be that you come to some agreed solution which I agree with. And I think the outlines of the future work as foreshadowed in my March order. Can we deal with those matters at 2 o'clock?