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Cite as: [2014] EWHC 4524 (Fam)

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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.

		Neutral Citation Number: [2014] EWHC 4524 (Fam)
		Case No: PO14C00293

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

18/12/2014

B e f o r e :

THE HONOURABLE MR JUSTICE BAKER
____________________

Between:

	IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE MATTER OF XP (A CHILD) A LOCAL AUTHORITY	Applicant
	- and -
	B (1) A (2) XP( by his children's guardian) (3)	Respondents

____________________

Sarah Earley and Nadia Tawfik (instructed by Hampshire County Council ) for the Applicant local authority
Alison Ball QC and Rosein Magee (instructed by Churchers Boletho Way) for the First Respondent B
Tina Cook QC and Mark Chaloner (instructed by Biscoes Solicitors) for the Second Respondent A
Mark Tooley (solicitor of Larcomes LLP) for the Third Respondent XP by his children's guardian
Hearing dates: 1st – 5th, 9th – 12th, 15th, 16th and 18th December 2014
____________________

HTML VERSION OF JUDGMENT
____________________

The Honourable Mr Justice Baker :

Introduction

On 26^th January 2014, an 8-month-old baby boy, M, died whilst in the care of his young mother, B, and her partner, A. After his death, he was found to have sustained a number of bruises and marks to his body, and an unusual fracture to his right tibia. B and A were arrested and interviewed. An extensive post mortem examination was carried out, which concluded that the cause of death was "unascertained". At the time of M's death, B was pregnant with a child, of whom A was the father. On 19^th April 2014, she gave birth to the baby her second son, X. In view of the circumstances of M's death, the local authority started care proceedings in respect of X, and the case was thus allocated to me for a fact-finding hearing. This judgment is delivered at the conclusion of that hearing.

Initially it seemed that the case would involve an investigation into the cause of M's death, and whether one or both of the adults was responsible. In the event, the local authority has not sought a finding to that effect. The focus has rather been on the causes of the fracture and bruises, and whether M was, as alleged by the local authority, neglected by his mother and her partner.

Background

B, the mother of M and X, was born in 1994 and is therefore now aged 20. She comes from a large family and has five sisters. Sadly their father died some years ago and thereafter B and her sisters were brought up by their mother, whom I shall refer to as the maternal grandmother. The grandmother gave evidence before me, as did three of B's sisters. One of her sisters has accompanied B to court and sat with her nearly every day. It was plain to me – and confirmed by a community midwife who has known the family for a long time and gave evidence before me – that they are a close family who are accustomed to giving each other strong emotional support. One of B's sisters, L, is currently looking after X, and is willing to carry on doing so, should that be necessary.

When she was 16, B started a relationship with a man, C, by whom she became pregnant in the latter part of 2012. In the course of that pregnancy, she had a recurrence of depression which she had previously experienced following her father's death. The relationship came to an end after C was allegedly violent towards B.

In the early part of 2013, B met another man, A, on Facebook. A is about eight years older than B having been born in 1986. He had been in a number of early relationships but had no previous children. B and A started a relationship and A spent increasing amounts of time staying with B at her mother's home. B also spent time staying with A at his mother's house.

On 9^th May 2013, B gave birth to her first son, M. They were only in hospital for about 2 hours and then B returned with the baby to her mother's home. Unfortunately, however, relations between A and B's mother and sisters were strained. In her oral evidence, the maternal grandmother said that neither she not her other daughters really liked A. One reason was that they believed that he was taking drugs, and indeed A admits that he is a regular smoker of cannabis. In addition, A and B would tend to stay in B's room, and on occasions the grandmother heard A shouting at B. After two or three weeks, the maternal grandmother asked A to leave, whereupon B decided to go with him and they and M went to live at A's mother's house. In oral evidence, the maternal grandmother described how she had not expected B to go with A, and added that B had left the property immediately without her belongings or the baby's clothes. Subsequently, one of her sisters had taken the clothes round to A's mother's house. (In passing, I note that it was the evidence of A's mother that B and gone to live in her house before M was born. Other witnesses disagreed, and having heard the evidence, I am satisfied that A's mother's evidence is incorrect and that B, with M, went to live at A's mother's house two to three weeks after M was born, although throughout the period B had been staying some nights at that address.)

B and M were registered with a GP's surgery and received regular visits from the health visitor. On a home visit on 27^th June, a routine test of B for post-natal depression revealed a very high score. B said she was feeling rubbish and crying all the time. She was referred to the doctor who re-prescribed anti- depressants. The medical records suggest that she told the GP that she was having difficulty bonding with the baby. There were, however, no signs of any problems with the baby. On the contrary, M was doing well, putting on weight, and giving all appearances of being well looked after. In oral evidence, B described M as being generally an easy baby. Observations of other professionals, in particular the health visitor, were that there were no difficulties in the relationship between mother and baby. On 23^rd September, for example, the health visitor noted warm communication between the adults and between the adults and M. On that occasion, however, B said that she had stopped taking the antidepressants and that she was aware that her mood levels and confidence had lowered as a result. The health visitor suggested that the mother should approach some agencies for support. It seems the mother did not take up this suggestion.

According to B's evidence before me, by this stage difficulties had begun to arise in her relationship with A. It is important to note that she said nothing about this at the time but only much later after the relationship had broken down. At this time, there was little contact between B and her family. B said that the reason for this was that A did not like her seeing the family and did not want them interfering in their lives. It is B's case that A was very controlling and obsessively jealous, accusing her of having relationships with other men. In his evidence, A denied that he was either controlling or obsessively jealous. He said that both he and B agreed that they would stop using Facebook to avoid the possibility of relations with other people. It was B's evidence that A would restrict her access to her mobile phone and also on occasions would lock her in the bedroom when he went out, and sometimes stayed out all night. A denied that this was true, saying that, if he went out, B would lock the door from the inside to prevent his mother disturbing her. These issues came to a head when B discovered she was again pregnant in August or September 2013. For some reason, A, and his mother, held the belief that A could not have children and B was therefore accused of being unfaithful. There was talk of DNA testing and on one occasion, when the couple were arguing in the bedroom with M present, his mother came upstairs to intervene and observed A tap or slap B on the face. A accepts that he did "tap" B and says that he apologised profusely for it afterwards.

Meanwhile, relations between B and A's mother had also become strained and in September A's mother gave A and B a month's notice to leave the property. On 18^th October, B, A and M moved to bed and breakfast accommodation. This was plainly a difficult time for B and A. As a result of this move, B and M had to change health visitors, and it seems that no health visitor saw M again after this move. In addition, the restrictions imposed by the bed and breakfast accommodation meant that they had to be out of the property throughout the day. During this time, there was only very occasional contact between B and her family. It is B's case that she felt increasingly isolated and that, although she was in love with A, she found the restrictions he imposed on her life very difficult. On one occasion around this time, B and M were visiting A's sister's house, and were left alone for a time with A's niece, J. According to J, B handled M roughly when changing his nappy. This is emphatically denied by B.

In November 2013, the family was allocated a flat. Although this was temporary accommodation, it was manifestly much better than the bed and breakfast accommodation. This move necessitated a changed of GP's surgery. The community midwife pressed B to register with a new surgery, but records show that she did not do this until early January, some seven weeks later.

At Christmas 2013, B, A and M visited B's mother and sisters on Boxing Day. It sees that this was a successful visit. A was welcome into the house and indeed some of B's sisters said openly to him that they had been wrong about him. At this point, M had just started crawling, using his arms but not his legs, and had also been given a baby walker in which he scuttled around the floor. He was plainly the centre of attention during this visit, and in evidence the maternal grandmother and B's sisters said that A was good with M. It might have been thought that this happy occasion would have led to a resumption of closer ties between B and her family. After Christmas, however, there was hardly any contact between them. It is B's case now that this was because A was controlling and possessive. A disagrees, and says that, as far as he was concerned, there was no reason why contact with B's family should have been interrupted. It is clear, however, that B, A and M were living an isolated life, with hardly any contact with friends or family, save for A's mother.

Up to this point, however, there were no concerns noted about M's care and he seemed to be making good progress. He was mobile and crawling and beginning to cruise around the cot holding the bars. It is the evidence of B and A that he regularly used to bump himself as he was crawling about the floor. A said in evidence that he regarded this as normal behaviour for a little boy because he was learning. It is the evidence of B and A that, on one occasion when he was in his baby walker, they noticed that he was not stepping on one foot. They examined him but could find nothing wrong. It is also the evidence of B and A that the mattress in M's cot did not fit so that there was gap between the end of the mattress and the end of the cot through which M's leg or arm got stuck on occasions. There also described three or four occasions when he fell off the bed on which he had been left. According to B and A, however, there were no signs that he had sustained any injuries as a result of these events, although it is A's evidence that he did suffer regular bruises. Indeed, A says that a new bruise seemed to appear almost every day.

On 21^st January 2014, community midwife Anna J saw B at the children's centre. A and M were also present. M appeared well and was appropriately dressed for the cold weather. The midwife had no concerns. Noting that B had missed an appointment with her consultant to discuss the outcome of a DVT test, she urged her to attend hospital clinic the following day. In the event, B did not attend as agreed. The midwife texted A to find out if she had attended and received a reply saying that she had not got there, but was going down to the doctor the following morning. A added that he would make sure that she attended. In the event, B did not go to the doctor. She contended in these proceedings that she did not need to do so as she already knew the outcome of the test and that no further treatment or action was required.

It is the case advanced by B and A that, during this week of 20^th to 24^th January, M developed a cold. Earlier, when the family had been living in the bed and breakfast accommodation and M had developed a runny nose, A had purchased a nasal spray which thereafter they applied to M, and B told the court that a second spray was subsequently purchased in January. Both B and A say that M did not like having the nasal spray applied and would struggle so that they would have to hold his head when using it. By the end of the week, M's condition had worsened. In their evidence, B and A give somewhat differing accounts of his condition. A says that he was being sick on Thursday and at various times thereafter over the weekend. B says that until Saturday night he was just coughing up phlegm. Over the weekend he was very unsettled and on the night of Saturday to Sunday he and the adults hardly slept at all. At one point, in the middle of the night, he took a bottle of milk but then vomited up the entire contents. B says that eventually on the following Sunday morning they finally managed to get M to sleep around 12.00 noon or 12.30 pm, wrapping him up swaddled tight in a blanket and placing him down in his cot next to their bed on his front with his head turned to one side. The reason for placing him in this position that B was concerned that he might be sick and there was concern that he might suffocate. It is B's case that they themselves then went to sleep for several hours in bed. In his oral evidence, A said that he recalls attempts being made to get M to sleep but the last thing he recalled before falling asleep himself was that B had M with her lying on the bed. At some point before he fell asleep, however, A sent a text message to a friend about a cannabis deal.

B and A have given a graphic and harrowing account of what happened next. B said that she woke soon after 4 pm in the afternoon, could not hear M making any noise, and jumped out of bed. When she looked in the cot, she saw him pale and lifeless. She screamed and A jumped and ran over to the cot. He got M out of the cot and B then left the flat to call an ambulance. It is her case that she did not have access to a mobile phone at this time because A had restricted her use of her own phone and she thought his phone was not working properly. It was therefore necessary for her to leave the property to use a neighbour's phone to call an ambulance. Having done so, she then ran back to the flat making the call as she ran. I have heard the recording of the ambulance call from which it is plain that the mother was hysterical while A was trying to resuscitate M. The ambulance crew arrived quickly and took over. M was taken to hospital by ambulance. The paramedics noticed that he was cyanosed but did not notice any other marks on his face. Despite all the efforts of medical staff to save him, they were unable to revive him and he was pronounced dead at 17.20 Afterwards, he was held by B and A while the consultant paediatrician, Dr S, took an initial account of what had happened. At this point, it was noticed that M had a number of bruises and marks, mainly on his face. It is B's case that they were not there when she put him down to sleep in the cot at about midday and she did not see them herself until he was in hospital. At one point, she exclaimed that it looked as if he had been beaten up, whereupon A said words to the effect of "don't be daft".

The police were informed of what had happened and B and A were arrested on suspicion of murder. They were held over night in custody and interviewed the following day over several hours. Transcripts of these interviews, running over 500 pages, are included in my papers. A and B gave a full and detailed account of what they say had happened in the weeks and hours leading up to M's collapse. They described how he would knock into things, and gave various explanations of how he might have acquired bruises, but were unable to offer any explanation as to how and why he had died. In the interviews, both were fully supportive of each other. In particular, and in contrast to her later comments, B spoke in glowingly warm terms of her relationship with A. Subsequently, each of them was taken back to the flat and separately recorded on video giving demonstrations about things that had happened to M, for example how he had knocked his head while crawling or while in his cot.

Having been released on bail, B and A went to stay with B's mother where they remained for several weeks. During this period relations between B and A and B's family were much warmer than previously. B's mother and sisters were fully supportive of B and A. After a few weeks, B and A were allocated a new flat, having been understandably reluctant to return to the previous property, and they moved there in February 2014. Both B and A were manifestly in a state of great distress and shock throughout this period. It is B's case now that A continued to be controlling towards and on occasions was abusive. She describes one incident when he held her by the neck against the wall. A denies that he assaulted her in that way.

Meanwhile, the investigation was continuing into the circumstances of M's death. The pathologists, Dr. Cook and Dr. Fowler, catalogued and described the various bruises and marks on his body. At the initial post mortem on 28^th January 2014 rigor mortis was not present but there was hypostasis in two patterns of distribution, one pattern over the front of the body on the upper chest and left side of the face and the other on the back. Dr Cook noted a number of marks and injuries as recorded in a series of photographs taken shortly after death and later at the post mortem. These comprised of fourteen marks to the head at various sites and included an abrasion over the back of the top of the right side of the head, a blue bruise to the centre of the forehead, a series of bruises on the right cheek and jaw line of differing colours, a blue bruise to the left temple, a brown bruise to the upper part of the left cheek, scratches and abrasions on the nose and nostrils and small bruises on the upper and lower left eye lid. There were pin point dots on the outer aspect of the right arm, a dark pink bruise on the outer ankle and a green bruise on the left side of the back of the chest. Apart from two bruises on the face, none of the marks on the face showed deep bruising within the fat. It was also discovered he had sustained a fracture to the distal right tibia some weeks prior to his death.

The internal examination revealed no significant abnormalities and this was subsequently confirmed by histological examination. Microbiological tests revealed the presence of infection in the throat swab plus other signs of infection thought to be post mortem contaminants. Neuropathological examination confirmed no evidence of traumatic brain injury, nor other changes to suggest infection or congenital malformation. Examination of the eyes were normal and toxicology tests were all negative Osteoarticular pathological examination conducted by Professor Freemont confirmed the fracture of the tibia and revealed that the presence of no bone disease to predispose M to an increased fracture. Professor Freemont concluded that the fracture had no association with M's death

At the conclusion of the investigation, the pathologists were unable to identify the cause of M's death. Their conclusion as to the cause of death was expressed as "unascertained".

B was due to give birth to the new baby in April. The local authority convened a pre-birth case conference and decided to start care proceedings. On 19^th April 2014 B gave birth to her second child, X. The local authority applied for and was granted an interim care order and X was placed in foster care upon discharge from hospital. A children's guardian was appointed and she visited B and her family and spoke to B and the maternal grandmother about the circumstances of M's death. Exactly what was said during these conversations remains unclear, but the evidence of B and her mother is that afterwards there was a furious argument between B and her family in which the grandmother, and in particular B's sisters, confronted B about what had happened to M, and asserted that either she or A must have been responsible for M's death and injuries. It is B's case that it was at this point that she realised that, as she had not harmed M, it followed that A was responsible. Having reached this conclusion, she decided to end her relationship with A forthwith and did so in the course of a short telephone call. Since then, there has been hardly any contact between B and A, save on a few occasions, including when X was in hospital with suspected meningitis. When they were living together, B had portrayed her relationship with A as being happy. Afterwards, however, she alleged that A had been controlling, jealous and on occasions abusive. A emphatically denies that he behaved in this way. After ending their relationship, B returned to live with her mother.

The police investigation is continuing. B and A remain on bail. In the course of the care proceedings, the local authority carried out further assessments, following which X moved to live with B's sister L. By all accounts, he is doing well there and making very good progress. He is having regular supervised contact with his parents on separate occasions each week.

In view of the fact that the case involved the death of a child, the care proceedings were transferred and listed before me. After various case management hearings, a fact-finding hearing took place in December 2014.

The issues and hearing

It is the local authority's case that X is likely to suffer significant harm in the care of his parents, B and A, due to the physical harm and neglect suffered by his half sibling M whilst in their care.

It is important to record that the local authority has not sought to argue in this hearing that either B or A were responsible for M's death. Instead, at the start of the hearing, the local authority sought the following findings:

(1) M died on 26^th January 2014. The cause of his death is not known and can best be described as sudden unexpected death in infancy. B and A failed to prioritise M's needs, and failed to ensure that he was protected from known risks associated with sudden unexpected death in infancy namely

(a) Smoking in the family bedrooms;

(b) Putting M to sleep in a room which is overheated for his young age;

(2) At the time of M's death, and whilst in the care of B and A, he has sustained a number of injuries, namely

(a) a fracture of the right distal tibia

(b) a number of bruises and marks on his face and head and

(c) a number of other bruises and marks elsewhere on his body, in particular an abrasion to the scrotum;

(3) The tibial fracture was caused by the application of excessive force by either B or A between 3^rd November 2013 and 17^th January 2014. At the time of the fracture, M would have been in pain and showing distress. The perpetrator of the injury, and anyone observing the incident, would have been aware that he had been hurt. Following the initial period of distress, M would have been unwilling to bear weight on his right foot for several days. The perpetrator of the fracture failed to seek appropriate medical attention.

(4) The majority of the bruises identified at post mortem were caused by rough handling and/or inflicted by B and/or A. At the time the bruises were sustained, M would have been upset. The perpetrator of the injury and anyone observing the incident would have been aware of this.

(5) The abrasion to the scrotum was caused by inadequately treated nappy rash.

(6) In the event that the court finds that one parent caused or inflicted M's injuries, the other parent failed to protect him.

(7) B and A neglected M's health needs by failing to seek timely medical attention for a number of injuries or conditions suffered by M namely

(a) Three or four occasions when he fell off the bed;

(b) The injury to his scrotum;

(c) Abrasions and reddening to his nostrils;

(d) The multiple bruises to his face and body and

(e) His ill health over the days proceeding his death, which included vomiting, diarrhoea, coughing, not settling or sleeping and feeling hot.

(8) B and A neglected M's health by failing consistently to engage with health services. Between 17^th October 2013 and 10^th January 2014 he was not registered with a GP. On two dates, he was not made available for an arranged home appointment with the health visitor.

(9) B failed to engage consistently with services to support her own emotional wellbeing and mental health.

(10) A regularly smoked cannabis, including in the hours prior to M's death. At these times, his ability to respond to M's needs would have been impaired.

(11) There was domestic abuse within B and A's relationship and B failed to take steps to remove herself and M from the abusive environment.

I propose to consider these findings sought by the local authority under the following headings

(1) Issues concerning B and A's lifestyle and relationship;

(2) General allegations of neglect;

(3) The fracture of the tibia;

(4) Bruises and other marks;

(5) Circumstances surround M's death

I shall consider the various points raised by the parents and guardian in response to the local authority's allegations in the course of the analysis below.

The hearing took place over 13 days (including one reading day). The papers consisted of statements filed in these proceedings, police statements and records, expert reports, medical notes and local authority records. Twenty four witnesses gave oral evidence in the following order: CG, one of the health visitors allocated to the families; J, A's niece; J's mother; Anna J, community midwife allocated to B during her second pregnancy; Dr Cook, forensic pathologist who carried out the post mortem examination of M's body; T, B's sister; L, B's sister; LC, a community midwife who attended B in her first pregnancy; RW, the social worker originally allocated to the case at the start of the proceedings; Dr Cartlidge, consultant paediatrician instructed as an expert witness; Dr Fairhurst, consultant radiologist; Professor Freemont, consultant osteoarticular pathologist; Dr S, a consultant paediatrician on duty when M was admitted to hospital on 26^th January; Dr P, a community paediatrician who served as the designated doctor for safeguarding; KG, a paediatric nurse on duty when M was admitted to hospital, KB, a neighbour of the family; KT, paramedic; Paul Dorkins, toxicologist who reported on drug testing on the parents; the maternal grandmother; E, another of B's sisters; CS, ambulance technician; A's mother; B and finally A.

The advocates appearing in these proceedings prepared full preparatory documents and written closing submissions. B and A were separately represented and had the benefit of leading and junior counsel – Alison Ball QC and Rosein Magee on behalf of B and Tina Cook QC and Mark Chaloner on behalf of A. The local authority's case was skilfully presented by junior counsel Miss Sarah Earley. On behalf of the guardian, Mr Mark Tooley unsurprisingly had a less prominent role at this hearing. I am grateful to all the advocates, and their instructing solicitors, for their hard work and assistance in this case. At the conclusion of the hearing, all of the advocates produced lengthy written closing submissions with accompanying schedules amounting to over 200 pages. It would be impossible and disproportionate to deal with each and every observation made in those submissions in this judgment. Suffice it to say that I have read and re-read them and taken all submissions into account.

The Law

The law to be applied in care proceedings concerning allegations of child abuse is well-established. I have summarised it in a number of reported cases, and have those principles, and the authorities from which they are derived, firmly in mind. What follows is a summary of those principles.

The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence and the court must be careful to avoid speculation. When considering cases of suspected child abuse, the court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Cases involving allegations of non-accidental injury will invariably include expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. I bear in mind that medical opinion is evolving and that today's medical certainty may be discarded by the next generation of experts and that scientific research may throw a light into corners that are at present dark. The court always bears in mind the possibility of the unknown cause.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).

To this I add the following insight of Peter Jackson J in the case of Lancashire County Council v The Children [2014] EWHC 3 (Fam), para 9. Having quoted my summary of the law from an earlier case he added:

"To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory faces, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as 'story-creep' may occur without any necessary inference of bad faith."

In order to make a finding that a particular person was the perpetrator of non-accidental injury, the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified although, where it is impossible for a judge to identify the perpetrator on a balance of probabilities, he or she should not strain to do so. The test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator.

B and A: general observations on evidence

Before considering the evidence on the various findings sought by the local authority, I shall make some general observations.

B came across in court as immature and was at times volatile, truculent and impetuous. Of course, I take into account the traumatic experience she has lived through, and it was unquestionably an ordeal for her, as for A, to have to re-live the events leading to the tragic loss of her son, whom I am satisfied she adored. I also take into account the fact that on the first day of the oral evidence she had come to court without her medication and was undoubtedly under a further degree of stress as a result. In her oral evidence, B became extremely upset because she can only remember how M was after he had died, and cannot recall how he was before, nor the sound of his voice. I accept the submission made by Miss Ball and Miss Magee that this makes the forensic task more difficult. However, taking those points into account, alongside the other points made by her counsel, I did not find her an accurate witness, and I formed the view that in some of evidence – for example, about M's condition in the days leading to his death – she minimised the seriousness of matters. Reminding myself of the Lucas principle, however, I conclude that she did so because she was ashamed or embarrassed by her mistakes as a mother, because it is extremely important to her to be seen as having been a good mother, and because she desperately wants to have the opportunity to be a good mother to X. I did not form the view that she was concealing any information that might have implicated her in M's death.

A was extremely defensive on a number of occasions in his evidence. As a result of a psychological assessment which confirmed that A suffers from dyslexia and would find it difficult to assimilate and understand documents and participate in proceedings involving documents, certain ground rules were drawn up and agreed to cover his participation in these proceedings in particular his evidence. In assessing his evidence, I take into account that he has dyslexia and that he is very sensitive about this. He spoke about this at some length to the police, saying that it made him annoyed with himself because he could not do things like other people. He described this as "childish" and it made him get frustrated and annoyed with himself. In his statement the father stresses that he struggles to read and has felt under pressure by the large number of documents in this case and how complicated they are. There have been things that have confused him and sometimes he did not understand questions he had been asked. He thinks his best version of what occurred must be as set out in the police interviews which took place closer to the time of the incidents. He said that as time has gone by things have become more blurred and sometimes he doesn't know whether he is remembering things that occurred or things that he has been told. He too was plainly distressed about the tragic loss of M, whom in his own way he plainly loved. He too was not always a reliable witness, and has also minimised some of his behaviour, for example his cannabis use. In his case however, as with the mother, I did not form the view that he was concealing any information that might have implicated him in M's death.

In addition to their statements and oral evidence at the hearing, I have evidence about what they said to the police. The interviews conducted by the police in the immediate aftermath of the case are of particular importance in this case. Over the course of several hours, B and A were interviewed separately and contemporaneously. They had very little time to confer prior to being arrested, and no opportunity to do so afterwards. It is a striking feature of their interviews that there are very few inconsistencies between their respective accounts. Of equal importance are the reconstruction interviews recorded on video. In each case, B and A demonstrate a series of incidents and matters of relevance to the investigation. Their accounts in interview, and their demonstrations recorded on video, are spontaneous and detailed to a degree that is uncommon in cases of suspected child abuse. They contain a significant amount of free narrative. In the circumstances of this case, and in particular their personal limitations, I consider this to be particularly significant. It is regrettable that Dr. Cartlidge had been unable to watch the reconstruction videos before attending court. Having seen them myself, I took the view that it was imperative that he did so, and accordingly his evidence was delayed to enable him to do so. He said that he had found them extremely helpful and indicated that the "flavour" of his evidence may change as a result.

B and A: their relationship and lifestyle

At the time of their interviews, and until after the start of these proceedings in April 2014, B and A presented as a close couple who were devoted to each other. That changed dramatically following the breakdown of their relationship shortly after the proceedings started. Asked in her police interviews on 28^th January about her relationship with A, the mother described it as "quite amazing" and said he was the only person she had been comfortable with and able to open up to and felt safe with. She said that he was her "life". Every relationship had its ups and downs but in this case she said that there was "never nothing bad".

The mother says that since she has separated from the father she has come to realise that his behaviour towards her was unacceptable. It is her case that he was abusive towards her during her relationship. She describes him as being controlling, saying that she had to choose between him and her family and getting angry with her if she had contact with them. On several occasions he shouted and screamed at her when they were out at the shops. He did not allow her to have a bank card or mobile phone or a front door key. She asserts that, on several occasions when they were living with his mother, he would lock her in the bedroom overnight while he was out of the property.

A denies the B's allegations about his being controlling towards her. In oral evidence, A denied that he had restricted her using the phone, saying that she could use it whenever she wanted. He also denied locking her in the bedroom, saying that instead she had locked the door herself to prevent his mother coming in. The father thinks that he and the mother had a good relationship but describes her as being very jealous and possessive. He recalls a couple of occasions when they would "really shout at each other". He said that B would shout more than he did, and that he would rather walk away. Later, however, in cross-examination by Miss Ball, he gave a rather different picture, saying that in general it was his practice when challenged to stand his ground.

A asserted that any difficulties in the relationship were caused by B's family. He described B's family as a "pack of wolves" who stuck together. They were strong characters and he was nervous of them at first, although relations had improved at Christmas when he was made to feel part of the family. Cross-examined by Miss Ball, however, he said that he thought B's family had played a big part in what had happened between him and B, and that when she was away from her family they got on fine. He said that it had been entirely her decision whether or not to see her family. He said that he had not done anything to stop her seeing them.

B also alleges that A has been physically violent to her. She alleges that he struck her in the face while they were living with his mother. In oral evidence she said that this occurred in their bedroom while they were having an argument about the paternity of the child she was carrying. A's mother came upstairs and witnessed the blow, described by A and his mother as a tap but by B as a slap. Afterwards, his mother said that he should not have done it. Afterwards, A apologised for what he had done. A accepted that he had hit B on this occasion, but described it as a tap. He said that she seemed hysterical so he "tapped her cheek and tried to shock her out of it. He said that it was the only time he has ever hit a woman and that afterwards he apologised as the mother describes.

In her statement, B said that on another occasion he had pushed her backwards causing her to hit her head on a chopping board, but in oral evidence she said that this had been an accident which occurred during an incident of horseplay. B also described how A would on occasions push her eyes into her head using two fingers, laughing and saying he was just messing about. A asserts that this occurred on only one occasion and that it was only meant as a joke, just as B would pull his ears, but that he did not do it again after B told him she did not like it. B alleges that A was violent to her on another occasion. Two weeks before X was born, he held her up by her head in the kitchen leaving her with finger marks around her neck. A's account of this incident is that he merely pushed B out of the way as he was trying to get out of the kitchen.

B does not allege that A ever displayed any violence towards M. In her statement, however, she alleged that he described M as a "brat" and that he could not connect with him because he was not his child. In oral evidence, B said that A would become angry if M's disturbed his sleep. B would take M into another room if he started crying. B said, however, that she had never thought that A would harm the baby. For his part, A said that, although he was not M's father, he treated him as his own.

It is plain that the couple were living near the breadline. The mother described to the police how they had been very short of money. "Sometimes we all go without toilet roll…or we won't have any food or any drinks…literally no food…we used to sit there eating custard like with nothing, just custard on its own". A told the police that he and the mother had no money. They were on income support getting "as little as you ever can get".

The father accepts that he smokes cannabis but denies that he did so in the bedroom or when he was near M. In oral evidence, he said that he smoked it three or four times a week. Asked about drug taking in interview, the mother denied taking any drugs but said that the father "smokes a little bit of weed". In oral evidence, she accepted that she had been trying to protect A at this point in the interview, and that the reality was that it smoked it regularly and on occasions had used a bong. She claimed that she protested about this but was told that it was nothing to do with her. B told Dr. Morton that A would go mental if she did not give him money to buy cannabis. In oral evidence, she described how he took some money which she had received as a tax rebate and spent it on cannabis. A denied knowing anything about a tax rebate.

It was the evidence of both B and A that they did not smoke tobacco in the flat. When challenged as to why the police photographs of the flat showed that the ashtrays by each side of their bed were full, they alleged that they used to take them outside when they smoked.

The local authority asserts that the mother failed to engage effectively with services to support her emotional well-being and mental health. Plainly, the mother did not seek medical advice about coming off anti-depressant medication when she found she was pregnant. Equally, she failed to attend an appointment in January to see her obstetric consultant. She was referred to various support groups, but did not pursue these options. These points are not substantially challenged. It is pointed out on her behalf, however, that, looked at overall, B was seen on a fairly regular basis by professionals.

General allegations of neglect

In general terms, there was at the time little if any independence evidence of neglect. All professionals who saw M during his lifetime found him well looked after. Only one or two appointments with health visitors were missed. Although B had failed to follow the advice to register with a G.P. local to their new address for several weeks, she had ultimately done so. There were no concerns about his weight or cleanliness. At post mortem, Dr Cook confirmed that M was a well-nourished little boy with no evidence of neglect. Photographs were produced showing M being treated with affection and pride by both B and A. In passing, I should refer to a few photographs relied on by the local authority which show M with stickers on his face and in similar odd situations. The local authority submit that this shows that A and B viewed M as something to ridicule at times. I do not consider that these few photographs warrant such a finding in the context of all the other evidence.

The parents assert that, on three or four occasions, M fell off the bed. On each occasion he cried, but, when comforted, he seemed to recover and there was no evidence that he had suffered any harm. The father accepts that on these occasions it would have been better to have him checked out by a doctor.

The father says that he has never seen the mother deliberately hurt M. He does, however, refer to how the mother used to handle M when changing his nappy. When M tried to crawl away, she would grab him and pull him back by the leg and then flip him over. The father says he does not think she intended to hurt him.

Some evidence of possible significance was given by the father's niece, J, now aged 13. Some months after M died, she told her parents about an incident she had witnessed in which the mother was said to have handled M roughly. The police were informed and J interviewed on video. Prior to her interview, J wrote a short note about the incident.

In her interview, J said that the incident had occurred in September or October 2013, that is to say when M was between 4 and 6 months old. It occurred at her home when the father and her own parents had gone out leaving J in the house with the mother and M. J described how the mother had been sitting on the sofa with M either changing his nappy or his clothes. In her interview, J continued:

"She was like shouting at his face as he was trying to look out the window or look at the door or see where A went. He was really attached to him. B was getting so annoyed because he wouldn't keep still and then she was looking at me saying "he doesn't listen". She was being really forceful and putting all her anger like to him and forcefully like with anger slamming him on the sofa because he wouldn't keep still."

She added that the mother was being "really rough with the way she was putting him on the sofa". She described how M's eyes "went all like big and he was sort of panicking…" J said that her reaction was that the mother was not supposed to be doing that with a baby and that she wanted to say something but "just didn't have the guts to say it to her".

In her interview, J said that she was not that close to B. She was not sure if she liked her or not. She added, however, that she was "really close" to the father, A. She said that, since M died, A had been visiting her house a lot and that they were trying to take his mind off what had happened. Asked why she had now decided to say something about the incident, she said that it had been building up inside her and then decided it would be better if she said something. In interview she said that the first person she told was her mother and subsequently her father who told the police.

J gave oral evidence by videolink at the hearing before me. Cross-examined by Miss Ball on behalf of the mother, she agreed that during the incident M had not wanted to be changed; the mother was telling him to come back and grabbing him by the waist; the mother had laughed and giggled and looked at J. She added, however, that she thought that the mother was being rather rough and not very motherly or nice. Asked to describe the noise that M had made, she described it as "squinnying." This word was also used repeatedly by the parents in the course of their interviews. J agreed with me that she meant something like whinging.

J agreed with Miss Ball that the father had been very upset and bitter about the breakup of the relationship and that she felt sorry for him. She said that she did not really like the mother, but was very close to the father. She did not agree with Miss Ball that she had exaggerated her account. She said she had heard rumours about how M had sustained his injuries and died and that some people were thinking that the parents might have been responsible.

J's mother (the father's sister) also gave evidence. In contrast to J's account to the police, she said that J had mentioned the incident to her own father first, before she mentioned it to her. Cross-examined by Miss Ball, she agreed that, whenever she saw the family, M always seemed well, healthy, fine and happy. She had no concerns about how either the father or the mother handled him. In answer to Miss Cook, she said he seemed like a really happy baby. The father was always playing with him and he seemed more of a daddy's boy who was looking out for his father all the time. She thought that the mother wasn't so loving although she agreed with Miss Cook that B had been good with M as well.

Having analysed J's evidence in the context of all the other evidence in the case, I do not attach any significant weight to it. I do not think that J has deliberately exaggerated her account but, in the light of her answers to Miss Ball in cross-examination, I do not believe that the incident was entirely as described in her interview. The mother may have been irritated by M, and may have handled him firmly, but, as J told Miss Ball in cross-examination, she was laughing at the time and it does not seem that M was unduly upset. I do not accept that this is significant evidence of rough handling. I think it likely this incident may have assumed greater importance after the tragic death of M and the break-up of the relationship between the parents when the father's family was supportive towards him and concerned what was being suggested as to how M sustained his injuries. Similarly, I do not accept A's account of B pulling M back when he crawled off while having his nappy changed to be evidence of significant rough treatment. I accept B's account of how she treated it as a sort of game.

Tibial fracture

Expert evidence on M's tibial fracture was provided by Dr Joanna Fairhurst, consultant paediatric radiologist, and Professor Anthony Freemont, professor of osteoarticular pathology at the University of Manchester. Dr Fairhurst's examination consisted of an examination of the skeletal survey carried out at the hospital immediately after M's death. Professor Freemont's analysis consisted of the examination of a number of bones, including histological examination of blocks taken from the bones. Dr Cook, the pathologist, confirmed in evidence that osteoarticularpathology is the "gold standard" for detecting the presence of bony injury.

Dr Fairhurst found x-ray evidence of a healing transverse/short oblique fracture of the right distal tibial diametaphysis (the shin bone towards the ankle). It is important to note that, although located at a point very close to the metaphysis, this was not (as was apparently suggested initially, and mistakenly assumed by Dr. Cartlidge) a metaphyseal fracture. Prof Freemont stressed that the fracture here was diaphyseal (i.e. a fracture of the bone shaft) as oppose to metaphyseal (a fracture of the growth plate). From its radiological appearance, Dr. Fairhurst estimated it to be most likely to be between 3 and 12 weeks old at the date of the x-ray. In oral evidence, she conceded that Professor Freemont would be able to date the injury more accurately as a result of this histological examination. From his examination, Professor Freemont confirmed the presence of what he described as a small fracture of the lower tibia and was able to age the fracture between 3 and 6 weeks old at the date of death. He reported that this had an unusual appearance in that it was a unicortical fracture (i.e. on one side of the bone only) in which the two fractured ends of the cortex were displaced slightly outwards. In oral evidence, Professor Freemont explained that the unusual nature of this fracture was that the bone ends of the fracture pointed outwards, whereas normally they were seen as being overlapping or pointing inwards.

As to the mechanism of the injury, Dr Fairhurst advised that transverse fractures of the distal tibia may occur from a direct blow to the lower leg or from indirect forces being applied to the leg, for example if it is gripped and forceably bent. She did not consider it likely that this particular type of fracture would be caused by a twisting motion, for example if the child's leg had been grabbed and "yanked" and the baby then "flipped" over in the manner suggested by the father in the course of his interview. Dr Fairhurst advised that the force required to cause a transverse fracture is well in excess of that used during normal day to day handling of a child, even during rough play. She added that these types of fractures are not seen as the result of a fall and are not typical of the fracture patterns seen in accidental injuries sustained by toddlers. The medical literature indicates that over 90 per cent of all tibial fractures seen under the age of 18 months are due to non-accidental causation. In cross-examination, Dr Fairhurst was asked some questions concerning her evidence as to the literature. She was clear that this was an accurate summary of the research evidence and added that in her clinic x-rays are carried out in many children for all sorts of reasons and this type of fractures are not habitually seen.

For Professor Freemont, the fact that this was not a metaphyseal fracture made it very unlikely that it was caused by a yanking/twisting motion. Had such a force been applied, to a site so close to the metaphysis, Professor Freemont would have expected the metaphysis to have been involved in the fracture and there was no evidence that this had occurred in this case. He considered a twisting force to be extremely unlikely in this case although he could not completely rule it out. In his written report, Professor Freemont suggested that the unusual appearance of the fracture suggested a short sharp compressive force had been applied along the line of the tibia. In oral evidence, he was asked how such a force could have been inflicted and suggested that one example would be by a fall. However, given the degree of elasticity into a child's skeleton, it would require a fall of a considerable distance to cause such a fracture. Questioned by Miss Earley on behalf of the local authority, he agreed that the fracture could have been caused if the child had been slammed down on a hard surface in such a fashion as to cause a compressive force to be inflicted along the line of the tibia.

However, in the course of his oral evidence, Professor Freemont modified his position as to the causation of the fracture. He said the reason why he had originally thought it was a compressive force was because the two bone ends turned outwards. Having thought about it further, and in particular in the light of Dr Fairhurst's report, he accepted that another explanation could have been a bending force as she described. In answer to Miss Earley, Professor Freemont went so far as to say that on reflection, and following the questions put to him in cross-examination, he now felt that a bending force was rather more likely than a compressive force.

From his examination, Professor Freemont was able to confirm that there is no evidence of underlying bone disease that might have predisposed M to an increased risk of fracture. On behalf of A, Miss Cook and Mr. Challenor submitted at the conclusion of the hearing that the evidence sometimes sought in fracture cases – to test for collagen deficiency or genetic abnormality – had not been carried out and therefore the court could not rule out the presence of such factors.

As to M's response to the injury, Dr Fairhurst said at the time the fracture occurred she would have expected him to be distressed and to show continuing signs of distress for some time thereafter. Any carer present when this fracture occurred would be aware that he had suffered a significant injury. Subsequently, Dr Fairhurst would expect M to show distress when his leg was moved, and be reluctant to bear any weight on the leg for several days after the fracture occurred. In his report Dr Cartlidge said that the fracture would have been painful for about 5 to 10 minutes after it was sustained. Thereafter the pain would have eased but it would have been exacerbated by movement of the right ankle and by weight bearing on the right foot. The right ankle would initially have been tender, especially if firmly pressed. There might have been swelling near the right ankle. Any person witnessing the causal event would have realised that M had been hurt but in an infant with limited mobility the consequential reduction in willingness to bear his weight might have been inconspicuous.

B and A have suggested various ways in which this fracture might have been sustained – that he had got his leg stuck between the bars of the cot; that he had injured himself when he fell down the end of the mattress into the cot slats; that he injured himself while in the baby walker, and stepped on a toy; or that he sustained it when he fell off the bed.

It is notable that B and A both referred to a possible injury to M's foot in their interviews at a point when the fracture has not been discovered. The mother described to the police how M had hurt his foot while in his walker. She said that he stood on a toy and after that he found it quite hard to walk. He would walk on tip toes on one foot whereas he put the whole of the other foot down. He disliked having his ankle touched for a time. The mother said that his foot and ankle did not look swollen or bruised. He was just struggling to put his heel down and his ankle seemed tender to the touch. After a couple of hours he was running around again.

A described to the police how M had injured his foot while walking in the baby walker. He said that he had stubbed the bottom of his foot or the ball of his heel where they had seen a little mark. The father said that it obviously did not bother M that much because he had cried for a couple of seconds and then was fine. For a while he had lifted his foot up and didn't want to put his foot down flat. The father thought that that he had been limping on his left foot for the good part of the day and the following day he had a pretty sore foot. He had cried when his foot had been touched and the father said that it was a cry that it hurt him. He thought that this had occurred a week or two before the interview.

In his statement, A said he saw M trap his leg in the bars of the cot and between the mattress and the cot. The mattress was not a perfect fit for the cot and M did seem to get his foot stuck in there. He gave a detailed demonstration of this in the reconstruction interview. In oral evidence, A said that he had fallen down between the cot slats on three occasions, twice trapping his leg and once his arm, but B said that A had only told her of one such incident.

Dr Fairhurst was not particularly impressed by these various suggestions. As to the suggestion that he had got his leg stuck between the bars of the cot, or alternatively that his leg had become stuck between the mattress and the end of the cot, with his leg falling between the cot slats, Dr Fairhurst in her report said that she did not believe either of these explanations could account for the injury. In each case, M would not be strong enough to inflict injury on himself in this manner. If a fracture was caused by one of his carers releasing his foot from the cot, then in Dr Fairhurst's opinion expressed in her report, any reasonable carer responsible would be aware that they had used inappropriate force, that M had suffered a significant injury and this would therefore have been a memorable event. Furthermore, the description of his responses to these incidents was not what she would expect from a child who had just sustained such a fracture. In oral evidence, however, she conceded that if his leg had been trapped, he may have been distressed or upset and therefore it may be more difficult for the carer to identify any difference in his symptoms of distress once he had been removed from the cot. She added, however, that she would still expect the carer to identify that his leg had been trapped and that they were applying inappropriate force. As for the third suggestion made by the parents – that M had hurt his leg while walking over toys in his baby walker – Dr Fairhurst was clear that this could not account for the injury since he would not be strong enough to inflict it on himself and that his response was not what she would have expected from a child who had just sustained such a fracture. In cross-examination, she said it was difficult to see how sufficient force would be applied in these circumstances because the point of a baby walker is to suspend the weight of the child. She could accept that there might be a degree of bending on the foot in the scenario proposed on behalf of the mother, but she did not believe that this would lead to a sufficient force being applied to cause a fracture. In her report, Dr Fairhurst therefore reached the conclusion that no plausible explanation had been offered for M's tibial fracture and consequently the finding was highly suggestive of non-accidental injury.

At the time of his evidence, Dr. Cartklidge was still under the misapprehension that this was a metaphyseal fracture. Such a fracture was usually caused by a yanking or twisting of the adjacent joint, in this case the right ankle. Dr. Cartlidge was unaware that Professor Freemont's examination had revealed that it was diaphyseal as opposed to metaphyseal. He was also influenced by the assertion in Professor Freemont's report that the force involved was compressive, although expressing some scepticism about this. Dr Cartlidge thought that this would be unusual in an infant only able to pull to stand, but thought that M landing on the foot after falling or being dropped could produce such a force. He did not think that the fracture resulted from normal handling or rough play. He thought it very unlikely that the fracture was self sustained without a carer being aware that an accident had happened.

In his report, Dr. Cartlidge did not see how M could inflict the injury by himself with his foot down the slats of the cot, although the mattress did not fit the cot and if he got his bottom stuck it might provide sufficient leverage force. It was more likely that someone had yanked him out roughly and quickly. Dr Cartlidge thought that this might have been sufficient to cause the fracture by producing a bending mechanism. He could appreciate how it might happen if the person involved had not appreciated that the foot would not become free easily. The symptoms would not be obvious because M was not yet standing, and the signs would be non-specific to anyone not present when the injury was sustained. The signs would be non-specific to anyone not present when the injury was sustained. Cross-examined by Miss Cook, Dr Cartlidge agreed that the fracture could have been caused if M had been pulled out of the cot while his foot was trapped down the side of the cot bars, although he characterised such an event as careless. Professor Freemont thought that this might result in a fracture, but only if the baby was facing into the cot when he was removed.

In his evidence, Dr Cartlidge also suggested that, if M had fallen off the bed and in doing so his foot had become stuck in the wooden surround, it could have led to forces sufficient to cause the fracture, although merely falling off the bed by himself as demonstrated in the reconstruction video would not cause the fracture. In oral evidence, Dr. Fairhurst accepted that, if M had fallen from the bed and in the course of falling his foot had become trapped in the wooden frame of the bed as illustrated in the photographs, and he had then proceeded to fall to the floor, that could generate a sufficient force to lead to the fracture.

Professor Freemont thought that this was the type of motion that could result in the fracture. By this mechanism, his foot would be fixed creating a fulcrum behind the site of fracture. He thought that this was the type of fall which might result in a fracture although he was uncertain whether M's weight would be sufficient for a fracture to result. There is however, no evidence that M's foot did get trapped in the wooden bed frame as postulated by Dr Cartlidge.

In my judgment, however, the most striking feature of the expert evidence about the fracture was the unusual nature of the fracture. In his report, Professor Freemont concluded:

"This is a single very minor fracture at a single time point a few weeks before death. It was not associated with the child's death, and it is not possible to say even whether this is an accidental or non-accidental injury, but there were none of the features typically associated non-accidental injury."

In oral evidence, he conceded that he was not saying that it could not have been caused non-accidentally, but rather that it was not a fracture that was associated with non-accidental injury. He himself had never seen this type of fracture associated with non-accidental injury. In fact could not recall any case in which he had seen an isolated fracture of this nature in any circumstances.

Bruising