England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre, 33 Bull Street Birmingham B4 6DS
		24/05/2013

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MRS JUSTICE HOGG :

The Introduction

1. These proceedings relate to three small girls, being A born on 2 November 2005, and now 7; L born on 26 January 2009 and now 4; and E who was born on 4 April 2012; she is just 1.
2. A and L are full sisters. Their father is DH. They have the same mother as E but her father is MI.
3. This is a fact-finding hearing. The principal issue I have to decide is what occurred to E before her presentation and admission to hospital in the early hours of 1 July 2012, when she was 12 weeks and 5 days old. Until then she had been in the care of her parents. Since her admission and subsequent discharge she has been in foster care with regular contact to her parents and sisters.
4. A and L have been in the care of MI's parents since 2 July when their mother and MI were arrested on suspicion of injuring E. They have had regular contact with their father DH and members of his family.
5. Mr and Mrs I would wish to care for the girls and E long-term in the event they cannot be looked after by their mother and MI. Their own father wishes to care long-term for the two girls, and if not him his mother and stepfather have put themselves forward as long-term carers for them.
6. In addition to considering what happened to E prior to her admission to hospital I have to also consider whether or not MI represents a risk of sexual harm to the girls should they, or any of them, return to his care in that he displays distorted thinking and attitudes to sexual boundaries and abuse or actual sexual abuse. There is an allegation that he assaulted his 10 year old female cousin in 2008 for which he was arrested, charged, and later acquitted in 2009, but upon which the Local Authority rely.
7. Although he sought to persuade me that I should not 're-open' that allegation I decided against him. The cousin and her mother, his mother's sister, were willing to give evidence, and indeed gave evidence to me. If he is to be considered as a carer for any of the three girls the allegations raised against him are serious and very relevant as to whether or not he is a safe and appropriate person to care for a child.
8. I have also heard evidence concerning DH, and whether he poses a risk to his daughters of sexual harm. This again is of importance when considering their long-term care. DH as an adolescent was convicted with another in 1990 of sexual abuse against younger boys when all were at a special boarding school.
9. He has been the subject of a risk assessment by the Lucy Faithfull Foundation which reported that from their perspective he presented a low risk of sexual harm to his daughters. I have heard evidence from the maker of that report and DH, and have had to consider whether in fact he presents a risk, and the level of its significance.

The Law

10. The relevant date for the purposes of considering the threshold under S.31 of the Children Act is when protective measures for the three girls was initiated on 2 July 2012 after E's admission to hospital; of this there is no dispute.
11. The relevant standard of proof is that of the balance of probabilities and nothing else.
12. Baroness Hale in Re B 2008 UKHL 35 said:

"The seriousness of the allegation does not require a greater degree of certainty."

"Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, when relevant, in deciding where the truth lies."

Parental Limitations

13. Fact-finding cases are always difficult. There is a necessity for the parents to understand the evidence some of which may be complex medical evidence; some may be particularly painful to hear.
14. Parents in general find the hearings difficult, and frequently emotionally draining. In this particular case there has been an added dimension. The mother has very severe learning difficulties, although she has capacity. She has her own special advocate, who has helped her throughout the hearing and no doubt in consultations with her legal team. I have received reports as to her cognitive abilities, and how best to facilitate her ability to understand the evidence and play a full a part in the process as is possible. Fortunately she also has a very experienced legal team of Queen's Counsel, Junior and Solicitor.
15. The upshot of the reports is that the mother has a limited ability to listen and concentrate and requires a break every 45 minutes or so, with the break being of 20 minutes or so. She also tires during the day, and thus is unable to sit through an entire court day until 4.15pm. Thus, while ensuring she has sufficient breaks, we have endeavoured to hear as much evidence as possible in the mornings and finish early. This to some extent may explain why the hearing has taken so many court days, but the extra time taken was necessary and appropriate given the difficulties the mother labours under.
16. MI has similar difficulties but not so profound. No doubt he has benefitted by the shorter days and breaks for the mother. He too has an experienced legal team of Senior Junior and Junior, and Solicitor to help him understand the evidence and advise him.
17. I am grateful to all Counsel who have responded to the mother's difficulties with consideration and respect; in so doing they have assisted me in the conduct of the hearing.

The Threshold

18. Very shortly before the commencement of this hearing MI provided two documents which materially changed his position. Up to then he had denied any knowledge or responsibility for the injuries to E, save perhaps for some inadvertent bruising to her while changing her.
19. On the 18 April and 22 April 2013 he filed his last statement and interim response to the Local Authority's statement of Threshold. In those documents he accepted that the threshold criteria as set out in Section 31 of the Children Act had been met in relation to E. He accepts that E suffered significant harm attributable to the care given to her by himself, and gave accounts accompanied by a video demonstration as to how he said the injuries occurred. He denied causing the fractures deliberately, but accepts "I must have caused them", and that he must have handled E inappropriately, adopting Dr Coren's description of the force required as "grossly excessive".
20. He made it clear that from his perspective that he was "certain" the mother had not harmed E, or any of the children.
21. As a result of his concessions the mother in her position statement accepted that "as a matter of law the Section 31 threshold criteria had been crossed", but that the crossing was not attributable to the care or lack of care given by the mother, who has been a reasonable parent at all times, and that she is a good and caring parent to all three girls.
22. The consequence of the concessions by MI altered the focus of the investigations concerning E's injuries to some extent.
23. The father had provided explanations which put the responsibility onto himself. The investigation was not so much about who might have caused the injuries, although that issue remained relevant, but how and whether the father's explanations were consistent with the injuries E had sustained.

The Chronology

The early days

28 January 1973: DH was born. He is now 40.

9 September 1980: The mother was born. She is now 32.

16 February 1982: MI was born. He is now 31.

16 October 1990: DH, then 17, was convicted of 4 charges of indecent assault against a boy under the age of 14 years. He was sentenced to 2 years probation.

24 December 2004: The mother and DH met. She was 24 and he was 31.

2 November 2005: A was born.

16 June 2007: The mother and DH marry.

13 June 2008: MI was arrested on suspicion of sexual assault on his cousin B aged 10: and later charged.

26 January 2009: L born.

31 March – 2 April 2009: The criminal trial R –v- MI (re allegation concerning B). He was acquitted.

August 2010: The mother and DH separate. About this time the mother and MI commence their relationship and start living together shortly afterwards.

More recent events

4 April 2012: E born at 37 weeks. The mother had been induced for medical reasons. E weighed 2460 grams, about 5.5lbs, and was in good condition.

6 April 2012: E was discharged home to her parents and half-sisters.

7 April 2012: E seen at home.

9 April 2012: E was in hospital for weight loss.

11/13/16/19 April 2012: E seen at home, or at the clinic.

22 April 2012: E seen at hospital with mild rash.

April/May: E diagnosed with reflux and prescribed Gaviscon for 2-3 weeks.

30 April 2012: E seen at hospital with reflux and vomiting.

22 May 2012: E seen by Health Visitor.

25 May 2012: E seen on referral at hospital on failure to thrive and vomiting. The mother reported that E was "very irritable".

29 May 2012: E seen by Health Visitor.

23 June 2012: E was left with MI while the mother went out with her brother's fiancée VF

28 June 2012: The mother says she first saw bruises to E's chin described as faint brown/green in colour.

29 June 2012: The mother left E with MI who took her to his parents during the day.

30 June 2012: The mother went out in the evening. E was left in the care of MI. 9.30pm MI drove the mother to the city centre with E in the car. A and L were staying with Mr & Mrs I. According to MI on his return home he fed and changed E. He noticed for the first time bruising on her legs and chest. E became distressed and difficult to settle and seemed in discomfort and pain. He took her for a drive to help settle her to sleep. On their return home she woke up and be put her in her buggy and walked her around the block for about 15 minutes. He arranged to collect the mother with E as he was worried about her. On her return home the mother noticed E seemed to have a temperature and marks on her chest and back. The parents decided to take her to hospital.

1 July 2012 (2.28 am): E and her parents arrived at the hospital where the marks (bruises) were seen. She was admitted.

2 July 2012 (11.33 am): A skeletal survey was carried out; reported on by Dr Chapman, and later by Dr Halliday. The Local Authority having been informed earlier of the situation interviewed the parents who could not explain the injuries found on E. The parents were subsequently arrested. Thereafter the Local Authority held a strategy meeting and later Police Protection Orders were made in respect of A and L. E's parents agreed the Order; girls should remain with MI's parents.

9 July 2012: The Local Authority applied for a Care Order in respect of E.

11 July 2012 (11.38am): A further x-ray survey on E's chest and rib cage again reported on by Dr Chapman and in due course Dr Halliday.

13 July 2012: First Interim Care Orders in respect of E. She was later discharged into foster care where she has remained.

24 July 2012: Child Protection Conference in respect of A and L.

31 July 2012: The Local Authority apply for care orders in respect of A and L.

10 August 2012: An Interim Residence Order in respect of A and L was made in favour of Mr and Mrs I (MI's parents) where the girls have remained ever since with an Interim Supervision Order to the Local Authority.

E's Injuries

24. E arrived in hospital at 2.48am on 1 July 2012. She was with both her parents.
25. It was noted by nurses and doctors that she was "very irritable" and there were bruises over her body. No explanation was given by the parents to account for the bruising, save that as the father "wore signet rings" they may have caused it, or maybe the family pets.
26. In all there were 21 bruises and marks on her body.
27. There were bruises to her chin on the left, bruises to her lower neck above the sternum, to the left hand side of her chest, to the right side of her abdomen, to her left scapula, along her spine, on her right thigh, knee, shin and calf, and to the back of her lower left thigh.
28. Photographs of the bruises were taken, and I have seen copies of those photographs.
29. The skeletal surveys conducted on 2 July and 9 July revealed a total of 15 or 16 fractures. Dr Chapman was the radiologist on duty at the hospital, and gave the initial report. He has since been treated as an "expert" for the purposes of these proceedings.
30. Dr Chapman saw the following fractures on the survey performed on 2 July 2012:

(i) Healing fractures of the posterolateral arc on the left 6^th and 7^th rib: they are on adjacent parts of the ribs and were almost certainly sustained at the same time. He estimated them as being 3-5 weeks old;

(ii) A fracture of the anterolateral arc of the right 6^th rib, which could be of the same age as those above, but he could not be that definite;

(iii) A healed fracture of the posterolateral arc right 10^th rib which he considered to be at least 5-6 weeks old;

(iv) A healed fracture of the middle third of the left clavicle which he thought was at least 5-6 weeks old, but not birth related;

(v) A healing fracture of the distal metaphysic of the left radius (the end of the bone above the wrist). There may also be a further metaphyseal fracture of the adjacent ulna. He estimated it to be up to 3 weeks old;

(vi) A healing metaphyseal fracture of the left distal femur (the end of the thigh bone above the knee). He considered it to be up to 3 weeks old.

31. On the survey performed on 9 July 2012 he found the following additional injuries:

(vii) Healing fractures of the extreme anterior end of the left 4^th, 5^th, 6^th, 7^th, 8^th and 9^th ribs. In retrospect he said the fracture of the left 7^th rib is visible on the earlier x-rays. The fracture being at the junction between bone and cartilage is difficult to age as such fractures do not heal in the same way or at the same rate as bone alone. He thought these fractures were more recent than the others.

(viii) There were definite healing fractures of the posterior end of the right 6^th and 7^th ribs which would have been sustained during a single event. Again in retrospect the fracture to the 6^th rib may have been present on the earlier film and probably showed early callus formation (healing process) at the time. The fractures were approximately 10 days old.

32. He did not identify any evidence of an underlying medical condition to explain the fractures in either set of films. Nor was he aware of any explanation to account for those fractures.
33. Various tests were undertaken at the time, and since. No underlying cause has been discovered to account for either the bruising or fractures E sustained.
34. On the basis that the fractures were of the age as Dr Chapman indicated they would have been sustained within the following windows:

(i) "At least 5-6 weeks old" as at 2 July 2012 on or before 21-28 May 2012. E would have been not more than 6½/7½ weeks old;

(ii) "Between 3-5 weeks old" between 28 May and 11^th June 2012, when E would have been between 7½ and 9½ weeks old;

(iii) "Up to 3 weeks old" on or after 11 June 2012 when E would have been between 9½ and 12½ weeks old;

(iv) "Up to approximately 10 days old" after 24 June but before 2 July 2012.

35. As he said in evidence to me, and echoed by Dr Halliday, the ageing of fractures in children is not an exact science, but that with knowledge of healing processes and the rate of such processes and the appearances of the processes on film radiologists can provide a window of time during which the fracture would have been sustained. It can only be an "approximate" window and not strictly defined, as bones heal at different rates in different children. Clinical observations and lay descriptions of symptoms, or accounts of events or incidents which could account for a fracture may well be able to narrow the window, or provide even a more exact time of injury.
36. Dr Halliday, Consultant Paediatric Radiologist at University Hospital, Nottingham, was instructed to report on the skeletal surveys as an expert. Her report is dated 23 November 2012.
37. She found:

(i) Healing fractures of the left 6^th and 7^th ribs laterally, which she estimated to be between 2 and 6 weeks old;

(ii) A healing fracture of the right 6^th rib which could be of a similar age;

(iii) A fracture of the posterior end of the right 10^th rib which she thought was between 6 and 12 weeks old;

(iv) Fractures of the anterior ends of the left 6^th and 7^th ribs which were less than 11 days old;

(v) A healing fracture of the left clavicle which was between 6 and 12 weeks old;

(vi) A healing metaphyseal fracture of the distal left radius, being between 2 and 6 weeks old;

(vii) A healing metaphyseal fracture of the left femur of a similar age;

(viii) Fractures of the left 4^th, 5^th, 8^th and 9^th ribs and fractures at the posterior ends of the right 6^th and 7^th ribs, all of which she thought were less than 11 days old.

38. She saw no evidence of an underlying medical condition to explain the fractures.
39. In short Dr Chapman and Dr Halliday were largely in agreement as to the fractures seen and the approximate ages of each. Where they differed in their estimates was explored and explained in their oral evidence.
40. The oldest injuries, the fractures to the left clavicle and right 10^th rib posteriorly, were described as being at least 3-5 weeks old or between 6-12 weeks old.
41. The doctors agreed it was difficult to assess these fractures with any certainty as they were old, but still in the process of healing, and still visible. By 12 weeks such fractures in small babies would usually have healed and no longer be visible. Both doctors were asked whether either or both fractures could be birth related. Without totally excluding that possibility they both thought that from the appearances on the films the fractures were a long way from being healed, and were nearer the 6 week margin (21 May) than the 12 week margin (9 April).
42. Dr Halliday was certainly more comfortable with an event closer to the 6 week margin. Dr Chapman was clear he thought a birth related injury was unlikely.
43. Dr Halliday was asked about her dating of 2 to 6 weeks in respect of the ribs and metaphyseal fractures. Dr Chapman thought these were between 3-5 weeks or up to 3 weeks in respect of the metaphyseal fractures.
44. Both Dr Chapman and Dr Halliday agreed that by 6 weeks metaphyseal fractures usually have healed and are no longer visible. In Dr Halliday's opinion those fractures had the appearances of more recent fractures, and were likely to be nearer to the 2 week margin (18 June) and Dr Chapman thought nearer 3 weeks in age; neither was rigid.
45. Both doctors agreed that the more recent injuries up to 10 or 11 days old as at 2 July could have occurred at any time up to the longer margin. They agreed very recent fractures are not visible on films until some healing occurs, the earliest known being some 4 or 5 days after the event. By 10 or 11 days there is evidence of healing. For this reason "follow up" x-rays are taken about a week after the first x-ray in such cases as this to see whether there are any further but more recent fractures which are not initially apparent.
46. The doctors were agreed in their evidence as to the mechanisms required for the various fractures sustained.
47. Both said that to fracture ribs there required to be severe squeezing or compression of the chest. They each said that if CPR was being administered correctly to an infant it would be necessary to compress the chest by ?rd and while sometimes fractures of the ribs occurred, they were rare. Each indicated that considerable force would be required to cause a rib fracture beyond that of normal or even rough handling.
48. In the absence of an underlying medical condition making the infant susceptible to fractures and in the absence of a memorable event or accident involving considerable force rib fractures in an infant of this age are a significant predictor of non-accidental injury: multiple episodes of rib fractures supports the conclusion that there has been inflicted injury.
49. Both considered that an adult holding an infant in both hands around the chest and squeezing with considerable force would be sufficient to cause rib fractures.
50. Those fractures at the back of the ribs close to the spine require more than mere squeezing or compression with considerable force. Such fractures require leverage of the rib in relation to the spine. Thus, were the infant held in adult hands while facing the adult the fingers would be around the back of the child and while squeezing the chest would dig into the child at the back, and assuming considerable force was used would be sufficient to manoeuvre, lever the ribs against the spine thus causing the fractures.
51. Fractures to the mid area of the clavicle in an infant of this age are usually the result of a compressive force along the length of the bone. The doctors agreed that if an adult was holding the infant face to face in his/her hands and squeezing the chest with force the adults thumbs could well be pressing on the clavicle, and if the force was sufficient could cause the bone to fracture, and that a fracture to a clavicle could occur with the same squeezing mechanism and at the same event as fractures to the ribs.
52. Dr Chapman indicated that such a fracture could be accidental in origin: the radiology could not determine whether or not such a fracture is accidental, but if it were accidental then he would expect some history of a memorable event or explanation from the carers. There was none.
53. Metaphyseal fractures are a result of a pulling and/or twisting of some force applied to a limb, and do not occur during normal or even rough handling. They are strongly associated with non-accidental injury. Dr Halliday pointed out that to cause a metaphyseal fracture a totally different mechanism is required to that of causing a fracture to a rib or clavicle, but they could occur during the same incident, but not necessarily so.
54. The doctors agreed that whilst it was not specifically within their expertise, they had some knowledge, and would expect that a child sustaining a fracture to a rib, clavicle or metaphysis would suffer pain and show distress for some time, perhaps 10 minutes or more before settling, but then on being moved in the course of normal handling may suffer further pain, or in the case of fractured ribs sense pain on breathing and be generally miserable for some hours or days.
55. None of the fractures E sustained would be visible externally and thus may not be apparent to either the perpetrator or a carer. However, the perpetrator or an observer of the incident would become aware after the causative incident that the infant had changed in demeanour, and that the perpetrator's actions were excessive and wholly inappropriate. It would be a "memorable event" and one which the perpetrator would be aware. A carer who was not aware of the perpetrators wrongdoing might realise the child was not behaving as normal, was miserable or distressed when being moved or handled normally, but not know or realise there had been a boney or metaphyseal fracture.
56. Before the doctors gave their oral evidence MI had produced his interim response to the threshold and last statement in which he described the events which he thought might have caused some of the injuries to E. He also re-enacted those incidents with the use of a life-size doll, and in one incident a car seat on a table. The doctors were able to view the videos of the re-enactments, and asked their respective opinions as to whether any of the descriptions could account for some of the injuries. They had both previously been asked to consider MI's explanations in writing before the hearing.
57. Both Dr Chapman and Dr Halliday remarked that there was no explanation provided by MI to account for the metaphyseal fracture to E's left radius and perhaps ulna above her wrist, and that this remained "unexplained".
58. Dr Chapman, having considered the latest evidence from MI, was "not impressed". He did not consider that MI had described or demonstrated sufficient compressive or squeezing forces to cause fractures of the ribs or clavicle.
59. He discounted MI's leaning forward to pick up a ball with doll/E in his arms as demonstrated in the first video. He wanted to see a "hugely" memorable incident with compression to the chest. He did not accept that MI demonstrated the required level of force.
60. Dr Halliday was of a similar view, and described it as an "innocuous" and "common place" movement. She did not think it could account for the rib or clavicle fractures.
61. The second video was of MI picking up the doll/E from someone's lap, holding her to his left shoulder and then to his right while he said he held her tight. Dr Chapman likewise discounted this as being capable of causing clavicle rib fractures. Dr Halliday expressed a similar view and questioned whether anyone would be able to apply sufficient force to an infant's chest while holding her in the manner described, and had it happened it would have been very obvious at the time that totally inappropriate force was being used.
62. The third video was that of MI struggling to release the buckle of the baby car seat while on a table (not in a car). The doll/E was in the seat and strapped in. He moved her left leg firmly and swiftly to the side. He says he may have twisted it at the same time. He then struggled pulling on the straps before the buckle was released.
63. Both Dr Chapman and Dr Halliday said that if there was force and a twisting action to E's leg when MI moved it there was a possible explanation for the metaphyseal fracture. It would depend on the level of force, and a twist. A mere sideways movement would not be sufficient and Dr Halliday said it did not look like a very forceful movement, and wondered whether sufficient force could be produced given the restrictions of the car seat itself.
64. Dr Chapman said that he did not see sufficient compressive forces to cause rib fractures, and in any event as E's back would be against the firm back of the car seat the leverage required to fracture the ribs next to the spine would not be available.
65. Dr Halliday expressed a similar view that there was insufficient force shown.
66. The final video was that of the doll/E sitting on MI's knee while he winded her by patting on the back. He raised one hand, she fell back and with his hand grabbed her by the chest/abdomen.
67. Dr Chapman said that it was an improbable explanation for any rib or the clavicle fracture. In evidence he could not rule it out provided considerable force was involved.
68. Dr Halliday having seen the video changed her mind from her written evidence when she said the grab may be possible to account for some of the rib fractures. After seeing the video she withdrew from that position. She did not think it possible that there would be sufficient force if only one hand was used.
69. Dr Coren, Consultant Paediatrician of St Mary's Hospital, and Imperial College, London, was jointly instructed to consider the bruising sustained by E, and whether there should be concern drawn from the three children's medical records that their presentations to the General Practitioners and other medical staff were excessive and unnecessary. This latter issue he was able to deal with in his report in which he said "I do not think from the overall picture that any of the three children was subject to any unnecessary examinations, procedures and treatment".
70. Dr Coren noted that it was reported that E had sustained 19 small bruises (the Guardian says there were 20) in addition to the fractures identified by Dr Chapman and Dr Halliday. He reported that "the presence of multiple fractures and bruising in a baby of less than 3 months seems to represent overwhelming evidence of non-accidental injury". There was no underlying medical condition which could give rise to such bruising, and no explanations or history of incidents proffered at the time of writing his report on 11 January 2013 by the parents.
71. He noted that E was 3 months old on admission and on that basis was immobile and could not have caused injury to herself, and noted that babies of that age do not bruise on normal handling. "Normal winding of a normal baby does not cause bruising, and normal handling of a baby even if the carer wears rings does not occur. It is extremely unusual to see even a single bruise on a baby of that age".
72. In his view bruising in a normal baby, even in isolation, is significant evidence of non-accidental injury.
73. He described all the bruises as being very small. He had had sight of the body map prepared by Dr Jyothish, Consultant Paediatrician, who examined E in hospital on the evening (about 8.00pm) on 1 July 2012, and also photographs taken at about that time. He said it was not possible to accurately date the causative incident of the bruising because how a bruise develops depends so much on the individual and the nature of the bruise. However, he was able to say that as on 1 July they were likely to be no more than 7 days old.
74. Even in evidence he would not be drawn to narrow that window of time.
75. He was unable to describe the degree of force with any particularly required to cause bruising to E, but said:

"A reasonable individual caring for a baby would know that the level of force he/she was using was 'grossly excessive'. "

"To cause bruises and fractures there would need to be grossly excessive force which would be obvious at the time".

"Such injuries are not caused by normal handling of normal babies".

76. On being hurt by the force required to cause bruising a baby would react:

"He/she would be hurt, and become distressed, the whole body language and reaction would imply trauma. The baby would cry."

77. By the time he came to give evidence he had read MI's recent position statement, statement of evidence and seen the four videos of the incidents he described.
78. He rejected the possibility that E was bruised by MI merely handling her with heavy rings on his fingers. Had MI handled her "grossly" inappropriately it may be a different matter, but normal handling of a normal baby with big hands or big rings does not cause bruising. A level of force was required.
79. Before the oral evidence he had commented on MI's position statement giving some information relating to the incidents which he later described and performed on the video. The doctor said:

"I do not think he is realistic as the type of handling to produce the combination of injuries would have been multiple and obvious to the person that inflicted them."

80. He remained of the opinion:

"that E had suffered non-accidental injury due to grossly inappropriate handling".

81. Dr Coren had received greater information from MI by the time he gave his evidence, and simply said none of the descriptions or videos provided a reasonable explanation for the injuries E received:

"the level of force shown and description were understating what happened to E "

82. Mr Tughan on behalf of MI cross-examined him on the descriptions and videos. In respect of the first video and on the basis of the maternal grandmother's description of him leaning forward to pick up a ball with E in his arms "crushing" and "alarming" and that there was grossly inappropriate force on behalf of MI the Doctor conceded it might be possible to account for some of the fractures in this way, but as there were at least three episodes of fractures if it were part of a routine handling of E by him over a period of time it would be a "pretty horrific" experience for E.
83. Likewise in respect of the second video of Mr I holding the doll/E to his shoulder, Dr Coren said if excessive force was used it might have caused the fractures, but the video had to be an understatement of the event.
84. The third video showed MI releasing E from the car seat. The Doctor thought what he saw was reasonably normal, and acknowledged that it can be "tricky" to get a baby out of a seat. It was routine for all parents. If the video was an understatement it might have happened, but it would have been "beyond the pale" of reasonable handling.
85. Dr Coren accepted that the fourth video of the doll/E falling and being grabbed could be an explanation for some of the rib fractures in the context of "grossly inappropriate", "excessive force" being applied to E's rib cage.
86. Each of the videos and descriptions were prefaced by Mr Tughan on behalf of MI accepting he handled E "grossly inappropriately" in that context. The Doctor accepted that if the videos were also understatements of the event depicted that there may be explanations for the fractures. However, it did not explain the fracture to the right wrist or the multiple bruising over her body.
87. He commented that if MI had caused the injuries as he describes he would have used force which was much in excess of "being rough". That there were at least three different occasions when she sustained fractures, with at least five different applications of force. On each occasion the perpetrator would have known he was behaving "inappropriately" towards E, and the number of events necessary shows "a "pattern of behaviour" which would have been a horrific experience to such a young child".

Medical Conclusion

88. Thus, I have three experts all of whom consider that E most likely sustained bruising and fractures at different times and with different mechanisms which were non-accidental in origin. The perpetrator would have known that he/she was behaving excessively and inappropriately, and causing hurt and distress to the child. An observer of the incident would also have known that such behaviour was inappropriate and hurting the child. It may not be obvious to either that fractures were being sustained.
89. A non-observer or carer who had not witnessed or known of the events would be aware the child would be unsettled, crying or unhappy upon being handled, but would not be able to determine the reason for her distress.

Other evidence

90. I heard from the mother, her mother, MI, Nurse C, who was the Triage Nurse on admission to hospital on 1 July, and the Community Nurse SA who had seen and weighed E on a number of occasions in May and on 26 June.
91. SA was able to confirm that E was proceeding along her centile and there were no major difficulties, although the mother was concerned about her in respect of reflux and vomiting, and being a crying, wingey baby. There was no concern over the mother's ability to care for E. She had received the appropriate immunisations and no concerns were noticed at the 6 week check.
92. When weighed E was undressed and naked. SA when weighing E had never noticed any bruises or marks on her, although she may not always have seen her back.
93. Nurse C on 1 July took a note of E's presentation, and noted a number of bruises on her body, and accepted that Dr Stanhope the Consultant Paediatrician later that day had recorded additional bruising. The parents told her that they had noted some bruising and the mother said "she noticed the bruises and rash yesterday after you had her" whilst looking at the father. She had also been present during part of a conversation between the parents and Dr Stanhope.
94. On 1 July at 7.00am Dr Stanhope spoke with the parents and recorded in his notes that during the conversation E was crying a lot, and they had said "she had been unsettled since 10.00am yesterday"; been "in Dad's care"; "inconsolable, crying from 21.30pm last night".
95. Some time later that morning Dr Skone examined E with her parents present. Again a history was given of E crying for more that 12 hours, of being in the father's care only yesterday and in the evening he noticed bruises on her chin at about 9.30pm, and she was more unsettled so brought her into hospital. There was no parental explanation for the bruises but the father is quoted as saying he was "worried someone might think we have hurt her".

The Family evidence

96. By the time the mother gave her evidence she had had read and explained to her the contents of the father's most recent position statement, statement and 4 videos. She was aware that he was saying that he was responsible for the injuries sustained by E, and had heard her own mother's evidence. Throughout her time in Court, and in particular while she was giving evidence, she had support and when necessary help from her intermediary.
97. She told me about her love for her children and for children in general. That for 10 years she had worked in a local nursery caring for babies and toddlers without any criticism or complaint. She loved the work, and would like to have continued it but had decided to leave employment when her marriage to Mr H broke down in 2010.
98. She told me how much she missed her daughters, and felt the separation deeply. She was upset at being apart from E for so long at such a young age. She said that for many years she saw her own mother almost daily, the girls also saw her very frequently, as well as their maternal great grandmother. The mother was grateful for the help and advice she received from her mother, and told me that as her mother is also looking after her own mother (great grandmother) she helps look after her mother by giving her meals.
99. The mother told me that Mr H whom she met in 2004 never told her about his convictions in 1990, and never let on that he had sexually assaulted anyone. She only learnt about the convictions as a result of these proceedings, and "felt sick" when she learnt she "could have lost my kids". After their separation in August 2010 she and Mr H were able to agree contact for the girls every Saturday and for there to be daily telephone calls. She saw contact for the girls to their father as important.
100. She met MI before the separation between her and Mr H. She saw her father regularly, and towards the end of the marriage her father and MI were living in their respective bedsits in the same house. She and MI met on her visits to the house. He seemed nice and reliable, they were able to talk together, and he played well with A and L.
101. After the separation their friendship developed, and a relationship commenced. She became pregnant by MI but suffered a miscarriage on Christmas Day 2010. She suffered a further miscarriage before becoming pregnant with E, who was a planned and much wanted child. It is not entirely clear when MI moved full-time into the mother's home. By October 2010 he was certainly staying in her home overnight, and was beginning to play a role in the lives of A and L. When he moved in full-time that role increased, but they did not call him Dad, "They only have one Dad and that is DH".
102. She was asked whether MI had told her about the allegation of sexual abuse involving B. She said that early in their relationship he had told her he had been accused of something serious, been tried at the Crown Court but acquitted. He did not tell her the nature of the allegation, saying it was in the past. Had she known she told me she would not have continued with the relationship, but she did not know, although now concedes she should have pressed him further.
103. She was asked about MI and accepted that on occasions he lost his temper. She had seen him do so and said he "explodes". She had seen him bang the table with his fist in the presence of her mother and the girls, who he scared and upset. She had seen him punch a dustbin in a shopping centre because he was angry after an argument with DH. He had hit a wall in the hospital when angry. She agreed he had a problem with his temper and had told him that he should do something about it, get help; go to an Anger Management Course. She did not say that he had assaulted her, rather that she had told him "if he ever laid a finger on her he would be out". If they had disagreements or arguments she tended to leave the room rather than let the situation deteriorate.
104. She agreed that she had seen MI be rough, heavy handed with A on occasions, although she said she did not think he ever caused her real physical harm. On occasions if she saw something she did not like she stepped in and told him not to do it again. On at least one occasion she told him that if he did that again he would be out.
105. She accepted that at times A did wind him up, and she had seen him grab A by the wrists and pull her, holding her so tight that he left marks. On a couple of times she saw him pick A up by an arm and a leg and carry her upstairs, causing A to scream. She objected to this and told him not to do so.
106. On another occasion, although she did not see the incident, she was told that he had pushed A so hard in the chest that he left a red mark just below her throat. She complained to him about this. Another time she saw a red mark on A's leg, who told her that it was caused by M smacking her. Again the mother protested telling him not to smack A as she could lose the girls: "If you smack them again, then it would be over and you would be out".
107. On occasions A had told her mother about an incident, but M would deny it telling A "not to lie".
108. She was not so clear whether and how often he might have hurt L; something which he denies, but her own mother saw some incidents when he mishandled L. The mother recognises now that she should have done more to prevent MI from hurting and upsetting the girls. She accepts that his conduct in the household on occasions was wrong, upsetting and sometimes frightening for the girls, and herself and her mother.
109. Asked about E's injuries she told me she never saw MI hurt her, and until she went to hospital on 1 July was unaware that E had been hurt. She told me that E suffered reflux and generally was a wingey baby, but she had no cause to think anyone had hurt her. She denied hurting E herself.
110. Both the mother and her mother said that MI was inexperienced with tiny babies, and being a 'new father' was reluctant to handle E or care for her until he felt some confidence. He says that shortly before the six week check he felt able to start picking her up and holding her. Thereafter, he gained in confidence, cuddled her, fed her and winded her. The mother and grandmother both noticed that he often failed to support her head, or held her in an uncomfortable unsupported manner. They told him how to hold and support her, showing him how to do so. Despite their help he resisted their advice and continued to hold her as before without proper support. He accepts that he was advised to hold her differently on a number of occasions, and although he was shown the correct way, continued to do it his way. He accepted he could be stubborn, and appear "to know best".
111. The mother left E on the 23 June with MI for about four hours in the evening while she went out with her friend V. On her return the 3 girls were asleep and "no problems" were reported to her. She also left E with MI on 29 June during the day time. He took her to his parents while he went to work. In due course E and MI returned home, and later that evening she and MI went to visit her father for a meal and a drink. Her own mother 'baby sat' the children and when she returned home at about 10.00pm her mother reported that all had been well other than E had suffered reflux. In her evidence the grandmother confirmed this and said she had not seen any bruising or marks on E.
112. On the 26 June E had been weighed by the Health Visitor, and either on 28 or 29 June the mother had bathed E. Neither reported seeing any marks or bruises on E's body.
113. The mother thinks she first saw bruising to E's chin on either 28 or 29 June, but her own mother does not recall seeing any on 29 June. The mother thought the bruising might have been caused by MI when he winded her as E moved her head around.
114. During Saturday 30 June A and L were with their father, DH. E, the mother and MI spent the day together, and neither reported anything untoward. In the evening A and L were taken to spend the night with Mr and Mrs I, to give the mother and MI a break. It had been planned that evening that the mother would go out again with her friend V, and MI would stay at home to care for E.
115. When the mother left MI and E together she says all was well with E. He drove her with V to the City Centre with E in the car seat at the back of the car. During the course of the evening she received a number of text messages or calls from MI indicating that E was not settling. Eventually, sometime after midnight, he with E came to collect her and V. On getting into the car the mother and V heard E crying, and the mother said something to the effect "that cry does not sound right". On reaching home she took E out of the car seat, she seemed hot and started to scream. She was worried and the parents took her to hospital.
116. According to MI, after he dropped the mother and V off he returned home, took E out of the car seat, fed and changed her, but she seemed unable to settle. At one point he took her for a walk in her buggy and a car ride which seemed to settle her, but on both occasions on returning home became unsettled again. He agreed he called or sent text messages to the mother as he was worried. In evidence to me he denied doing anything to her that evening.
117. The mother told me that when she told the police in her second interview that she thought "50:50 MI had injured E" she was thinking about what might have happened on the evening of 30 June when she was with V. She now accepts that he hurt her not just then but on other occasions, and that he caused the bruises and fractures. She accepts he 'grossly and inappropriately' mishandled her, meaning in her terms 'very rough handling'.
118. She has reflected upon the situation and now accepts that if the girls are to return home to her care that she and MI must separate. Currently they are still living under the same roof in her home, but she feels that the relationship has changed and he should move out, but says it may take him a little time to find somewhere else to live.
119. Before MI gave evidence I had also heard from the maternal grandmother. She confirmed she had a good relationship with the mother and girls, seeing them almost daily, and told me how much she loved and missed her grandchildren.
120. She told me about the mother's relationship with DH, that she had tried to help them sort out any differences.
121. She told me that she also got on with MI, that he had never done anything to her and had not seen him do anything to the mother. But, she said "He has his faults. He has a temper. He lashes out at bins, doors". She had seen him bang his fists on walls, doors, the table in front of the girls and mother; he had banged his own steering wheel. If the girls were present they were frightened, upset and cried; the mother got upset. On occasions she herself was upset. Once she left as she was so upset when she had seen him lift and carry A by her arm and leg, and told him off for it. She had spoken to him a "few times" about his temper, told him to control it, see someone about it, go on an Anger Management course. She said he was like a "time bomb", he "explodes".
122. She said she had seen him lose his temper with A. She had seen him push A hard on the chest leaving a mark on her chest. She told him off and subsequently he apologised to A. She said she saw him grab and pull both girls, A mostly, by the wrist and leave marks. She told him off. Sometimes she saw the mother come between the girls and MI, telling him to leave them alone, that she would discipline them, not him, and he stormed off.
123. She told me about the incident described in video one of MI with E in his arms leaning over to pick up a ball "It was alarming. He sort of crushed E. I told him off, not to do it. I lost my temper with him. He was like "its my daughter". He was calm, picking up a ball, not in a temper. E did not cry at the time but sort of grizzled".
124. She confirmed that on occasions she told MI how to hold E while he winded her, and to support her head "He was awkward with E".
125. She described E as being a "cry baby" from day one. She had reflux and was difficult to settle. She thought the mother was a good mother and cared for E well.
126. MI was the last witness I heard.
127. He told me that over the months his position had changed. The medical evidence had been received and explained to him. He was shocked and thought about it and pondered whether he could have caused the injuries. The doctors said there was no underlying medical reason for the injuries and he "could not imagine" the mother doing it. "She is so soft and gentle. I have no doubts about her". So I thought about it and whether I could have done it.
128. He had made the videos to help him explain what he had done, and how he may have injured E. "They showed what happened, but did not show the force I used". "I was grossly inappropriate"; "Very rough, very careless handling"; "It was extremely rough, extremely inappropriate handling. I have done my best to show what I did"; "I cannot recall how many times I behaved like that". He recognised that none of what he had depicted in the videos would explain how E's right wrist was fractured.
129. He told me that E was an 'unhappy' baby, she threw up; she cried and was wingey. It was upsetting. He said he lacked confidence with her and did not start to handle her until shortly before the six week check. Thereafter he grew in confidence as he handled and fed her more. He agreed that at times the mother and grandmother told him how to hold E and wind her.
130. He denied that he had ever lost his temper with E, but recognised that he was responsible for all the injuries. "It must have been me". He assured me he had told all that he can remember, and that there was nothing else he could remember to explain the injuries.
131. He admitted that he could be stubborn and had a bad temper, and he did "explode", and that his parents, the mother and her mother had all said at different times he needed to do something about it. Very recently, before this hearing, he had asked for a referral to an Anger Management course, but could not explain why he had not done it earlier.
132. He accepted that he had sworn and used foul language in the presence of A and L, that he had lost his temper in their presence and had banged walls, a bin, windowsills, door and the table; that such behaviour had upset and distressed the girls. He was adamant although he did these things in front of the girls, he did not swear at them or lose his temper with them. When dealing with them he was able to control himself.
133. He said at times he grabbed A by the wrist and pulled her to where he wanted. He was shocked when he saw marks on her. He accepted he had left a mark on her chest when he said he was teaching her how to defend herself at school: and had not realised he had marked her. He told me that on two occasions he had picked A up by her arm and leg and carried her upstairs over his shoulder "like a sack of potatoes". He told me A could be very domineering and tried to wind people up. He tried to discipline her, tell her not to do something, warn her and if she refused would carry out his warning. He tapped her on the leg, he made her do what he said, and his treatment of her was intended to discipline her: "It was about punishing and keeping her safe". He denied ever losing his temper with her. He said the mother was "too soft with A and that he needed to 'enforce' discipline".
134. He denied ever having had to discipline L in the way he dealt with A.
135. He also told me that following this hearing he and the mother would separate. He needed to find somewhere to live in the next few weeks and would then move out of the mother's home. He thought about going back to the North East. He wanted to remain in touch with A and L, and to have regular contact with E.

My Conclusions

136. It is to MI's credit that he has admitted responsibility for E's injuries, and the manner in which he described the mother's handling of her daughters and E as "so soft and gentle". Likewise, it is to DH's credit that he referred to her as being "a good and fantastic mother".
137. However, I am far from satisfied that I have heard the full truth as to what happened to E on no less than three occasions, maybe more. I accept that the videos using a doll may not have shown the force involved, but the videos in themselves do not explain the fractured wrist or quantity or positioning of bruising found on E. There must be further explanations.
138. It has been submitted by the Guardian and Local Authority that it is very likely that something happened to E at the hands of her father on the evening of 30 June. The mother is noted to have picked up on her unusual cry when she got back into the car.
139. The history taken from the parents by the doctors indicates that there had been a change in E during the course of the evening while with her father, and he himself said she was difficult to settle. I do not think he has been open and frank with the Court, and that there is more to be said, which, for whatever reason he may have he is withholding.
140. It is not certain when the other and earlier injuries were sustained. The earliest fractures are consistent with being a little more than 6 weeks old; shortly before the six week check. Such timing coincides with the father first handling E. The middle group of fractures would have been sustained after the check when the father was handling her more
141. The doctors are clear that whatever happened to E the perpetrator would have used considerable force to cause the fractures, and would have known at the time that he/she was behaving in a wholly inappropriate way towards a baby. It would have been a "hugely" memorable event. MI failed to recall and/or admit to the incidents depicted on the videos, despite thinking long and hard over many weeks and months. Not until shortly before this hearing did he offer any explanation other than damage caused by his hands and rings.
142. The doctors were not impressed with his explanations and videos, and would only accept the possibility of some of the injuries being sustained in the incidents described if considerable force was used; but as Dr Coren said, if this was the situation it would also entail a pattern of behaviour which would be a 'horrific' experience for E.
143. If these incidents did occur and, if they did involve considerable force as suggested by the father, he would have been aware of the events, they would have been "memorable", but yet he did not admit to them until very late in the day. It would mean he kept back the explanation for his own reasons, and failed to see that in so doing he let down his own daughter, the older girls and the mother.
144. As it is I do not accept that he has made a full and frank admission of the events which caused E's injuries. Even now he plainly has not told me everything.
145. I am not in a position to say how or when E was injured. I accept MI's admission that he must have been responsible. I do not think the mother hurt her in any way.
146. As I have said the most likely last event occurred on the evening of 30 June, but I cannot say what happened. What is clear that those and all the injuries were caused by someone, her father, using considerable force against her inappropriately and wrongly. Only the perpetrator knows what happened and when, but he has not given a full or any account.
147. On the evidence before me I am satisfied and find that the father caused the injuries to E, at times and in circumstances about which I can made no findings, but in such a way that I can find they were non-accidental in origin.
148. I regard his evidence with caution. He has sought to minimise his wrong-doing not only to E, but towards A and L. I accept the evidence of the mother and the grandmother and accept on a few occasions he was rough with L and grabbed her by the wrist, but the majority of their complaints of his behaviour related to his treatment of A.
149. I do not accept his evidence that he was able to control his temper while dealing with A. It is stretching credulity to say he could control himself with A, not lose his temper with her, when he was prepared to lose it in her and L's presence, hit objects, swear and use foul language at, and about others, and generally upset and at times frighten the girls.
150. I find he did lose his temper with A, and occasionally with L, and that he manhandled the girls as described by the mother and grandmother.
151. I find he is a man who has a bad temper, and has treated A in particular aggressively, roughly and harshly, causing her pain and upset. He mistreated L in a similar way, but to a lesser extent. His general behaviour within the family when he lost his temper was inappropriate and unacceptable.
152. In making these findings against MI in his treatment of E, A and L the threshold criteria set out in Section 31 has been crossed.
153. The mother is a loving, caring mother. She loves her children and wants them back in her care.
154. I accept her evidence, and that of DH and MI, that she was unaware of DH's convictions as he had never told her, and that she was unaware of the allegation against MI involving B.
155. I do criticise her that when MI told her that there had been a serious allegation against him, but that he had been acquitted, she should have pressed him further to ascertain the nature of that allegation. Without that information she could not make an informed decision as to whether or not she would enter into or continue her relationship with him. As a mother of two small children she had to consider whether the 'new' man in her life was a suitable and safe person to live with her and the girls, and knowing that there had been a serious allegation she should have been alerted and pressed for the information. She now accepts that this is something she should have done.
156. It goes without saying that DH and MI are both to be heavily criticised for not informing the mother as to their respective pasts.
157. The Local Authority accepts, as do I, that no issues were raised in relation to the mother's care of her children before E's admission to hospital, and all of the observers record her as a good parent.
158. The issue they now raise against her is that of failure to protect her children from MI.
159. I have already criticised her for not pressing him for further information about the allegation concerning B. I also criticise her with the speed she allowed her friendship with MI to develop into a relationship. Inevitably the girls would be involved as he started spending nights in the home soon after their parents had separated, and the father had left. It must have been confusing for them at the time, and potentially upsetting.
160. It is to her credit and indeed DH's, that whatever their differences they were able to agree contact for the girls, and the mother actively supported that contact.
161. The major criticism raised against the mother by the Local Authority and the Guardian is that she failed to protect all three girls against MI.
162. It is clear from the evidence of the mother, grandmother and even MI that he was a man with a bad temper. That he exploded, banged objects, swore and used foul language in the presence of the girls, and in so doing upset and distressed them as well as the mother and grandmother.
163. It is also clear from the evidence of the adults that MI attempted to discipline the girls and establish boundaries in an insensitive and wholly inappropriate way. He manhandled A, and L to a lesser extent; he caused them pain and upset and marked them. He called A "a liar" when she tried to tell her mother or grandmother what he had done.
164. The mother was aware of his temper, had told him to seek help, and the effect of his behaviour had on her daughters. She had told him not to treat A in the way he had, but she was unable to prevent him continuing to behave towards the girls in the harsh and grossly inappropriate way.
165. In evidence she told me that she knew MI's behaviour was wholly inappropriate, she knew it was wrong and harmful and needed to stop, but she was unable to prevent it, unable to persuade him to change, and unable herself to end the relationship.
166. She allowed him to remain living with her and the older girls, and later E. They were young and vulnerable children needing love and security, not harsh discipline and bad or explosive temper outbursts.
167. In this context I accept and find that the mother failed to protect her three daughters from harm, physically and emotionally.
168. Although I have made a general finding against the mother that she failed to protect E from her father's behaviour I am concerned that she felt she could leave E with him on 30 June. She was aware of his temper and ability to explode, she was aware he did not always handle her correctly and safely, despite her and her mother's advice, and had seen some bruising on her chin earlier on that day or the day before. She was also aware that at times E was wingey and difficult to settle. Against that, she said she did not think he would hurt his own baby, and she was so small. Indeed, I accept that there is no evidence to suggest that she knew he had previously hurt E on at least two occasions.
169. I am looking back, and in hindsight knowing that there had been previous but undetected injuries caused by the father, it is easy to say she was wrong to go out that night. Trying to look at the situation as she saw it, unaware of previous episodes causing injury, should I criticise her for leaving E?
170. In my view there were indicators available to her that she should be careful and cautious about leaving the twelve week old E with her father. I accept that when she left E she was settled and content, there was nothing in E's behaviour to indicate to the mother that she should not go out that night.
171. Whilst I have my concerns that she left E with her father I do not think that any criticism of mine saying she was wrong to leave E that night would in itself cross the threshold required by Section 31 of the Act.
172. However, I do find that her failure to protect all three girls does meet the threshold criteria. She was aware of MI's behaviour and that it was wrong and inappropriate, and she should have done more to ensure their safety, and physical and emotional well-being.

The Allegations concerning B

173. The allegations arose in 2008 and MI was tried and acquitted in April 2009. He has always denied the allegation and protested his innocence and he did so to me. I have read the transcripts of his police interviews and evidence at the Crown Court.
174. B and her mother K gave evidence to me. I also watched and read the transcripts of B's ABE interview which she gave on 30 March 2008, and the transcript of her evidence to the Crown Court.
175. B, K and MI gave evidence to me.
176. In their final submissions the Local Authority urge me to find that MI abused B as she alleged, and continues to allege.
177. B is MI's first cousin. She was 10 years old in 2008 and is now 15. K is his mother's older sister and his Aunt.
178. Before the allegations it is accepted that MI had been a loved, welcomed visitor to K's home. K said B looked upon MI as a big brother; he thought he was more like an Uncle figure.
179. He had been a regular visitor to the home since he was about 15. He used to come in for a cup of tea, take the dog for a walk, often with B or her brother J. He was welcomed and trusted by the family. There was no friction, arguments or difficulties between either B and MI, K and MI or between K and Mrs I. Since the allegations there has been a total estrangement.
180. Neither sister has spoken nor has B or K had any contact with MI.
181. The allegations arose from an event on 20 March 2008. MI was at K's home. It was suggested that he should teach B to play her guitar which she had been given at Christmas 2007. B and he went into the dining room for the lesson while K and J were in the sitting room watching television.
182. During the course of the lesson B alleges that MI touched her vaginal area over her jeans, that he rubbed the area with his hand for a short period, 2 or 5 seconds.
183. She did not tell her mother immediately, but eventually did so on 28 March 2008. She gave her ABE interview on 30March 2008.
184. Throughout B has been consistent in what she alleges, that MI indecently touched her during the guitar lesson. In some of the detail her accounts have been inconsistent, as to how far apart her legs were, how many times her brother came into the dining room or passed by the door, the precise position of the guitar at the time of the touching.
185. The alleged incident occurred while both were sitting close to each other on the sofa close enough for him to put her fingers on the guitar strings. They were alone at the time of the incident.
186. Her evidence has been criticised by Mr Tughan on behalf of MI pointing out the inconsistencies, and cross examining her on them.
187. MI has been consistent in his denial. He did not do it. His hand did not touch her vaginal area. In evidence, he accepted that had he wanted to touch B in that area it would have been possible to do so, but he did not want to, and did not do it.
188. B in her ABE interview appeared to be an intelligent co-operative and alert 10 year old seemingly wanting to answer the interviewer, willing to clarify and correct information where necessary.
189. In evidence to me she again was intelligent, co-operative, willing to answer questions; and an attractive, well-presented young woman.
190. The inconsistencies in her accounts were put to her and she was willing to concede them. She did not seek to embellish her account. She remained constant and said:

"I told the police the truth. I told them he inappropriately touched me in my vaginal area. He started rubbing it against my will. I remember it, and it is as I told the police."

"He touched me. There is no doubt in my mind."

191. After the alleged incident she was upset but did not tell her mother immediately. In fact, she went to stay with her father who lived nearby that evening, but did not tell him either. She saw MI a couple of times during the next few days and tried to avoid him. This was something which her mother also noticed and which she thought unusual given the closeness there had been between the two.
192. Although B had very much wanted the guitar and it was a Christmas present, she told me that after the alleged incident she never played it again, and eventually it was disposed of as it brought back memories of that day.
193. MI accepted he was a welcomed visitor to the home, and that there had been no argument or friction between him and the family. The only explanation he could offer for B making the allegation was she was under the influence of her mother or father. He sought to say that because her mother had overheard her elder daughter S say something five years earlier about possible inappropriate touching by him, that she had borne a grudge against him. B told me that at the time of her allegation she was unaware of S saying anything.
194. In any event K seemed to have discounted any impropriety at the time and continued to welcome MI into the home, and to trust him. She told me had she had any doubts about him he would not have been a regular and welcomed visitor.
195. K also acknowledged to me that for a long period of time she has encountered difficulties with her mental health. She has abused drugs, alcohol and taken overdoses. She was fragile emotionally, but clear that she had discounted any impropriety by MI with S and put it out of her head. It was only revived after B made her allegation.
196. I ask myself, was there some sort of grudge or hidden agenda? Was B under some malign influence of one of her parents?
197. Having seen K in evidence I accept what she says. She trusted MI; he was loved and welcomed to the home. He was valued by her and J and B. There is no evidence that she bore a grudge towards MI, or in some way influenced B to allege what she did.
198. B herself was clear, measured, co-operative, prepared to concede inconsistencies and to admit her memory as to detail may not be as good now as it was nearer the time. She remained constant and firm. She said what happened and that she remembered it.
199. There is no evidence to show either there was a grudge or that B was under the influence of a parent.
200. The fact that she sought to avoid MI immediately after the event, and never played her guitar again adds only to her account.
201. B clearly believed MI had touched her as she alleges. She was an impressive witness. She has been constant over 5 years and once again was willing to give evidence.
202. I have come to the clear view that I do not accept MI's denials of the allegation, and make the finding that he did touch B inappropriately on her vaginal area during the guitar lesson.

Risk Assessment of DH

203. DH has put himself forward as a long-term carer of his daughters, A and L.
204. On 26 October 1990 DH was convicted of 6 linked offences of indecent assaults on boys under 14 at Bromsgrove Magistrates Court. He was sentenced to 3 years probation. At the time of the conviction DH was 17. The offences were committed while he was a pupil at Rhydd Court School in Malvern. It was a boarding school for boys with special needs and he was attending the school as a result of behavioural problems including injuring a girl pupil at his school by throwing a chair at her. He was expelled from that school and sent by the Local Authority/Education Authority to Rhydd Court. He was a pupil there for about 2 years.
205. The boys who were his victims were younger than him. DH told me that he acted in concert with another boy who together required the younger boys to commit oral sex upon him in a cupboard. In the court records it is said the boy victims were taken to "a wooded area and DH indecently assaulted them by putting his hand down their trousers and underpants onto the genitals".
206. DH and Mr Smith from the Lucy Faithfull Foundation who conducted a 'risk assessment' on DH, both gave evidence to me.
207. Mr Smith in his report and evidence to me was of the opinion that DH represented a 'low risk' of abusing his daughters. He said there was an absence of 'well documented' risk factors:

(i) The abuse occurred when DH was at school (aged about 17);

(ii) It occurred over 25 years ago;

(iii) It was against boys and not girls;

(iv) There have been no sexual convictions or reported allegations of sexual abuse since;

(v) There has been no general offending during his adulthood;

(vi) There are no signs or reports of violence or antisocial behaviour or abusive conduct towards partners;

(vii) The incest-taboo is present – it is not fool proof but "it is a significant protective factor";

(viii) He did not display any obvious distorted thinking which involved minimising or legitimising the sexual abuse of children generally, although he showed naivety about the necessity of physical boundaries between fathers and daughters.

208. Against that conclusion there were other factors to be considered:

(a) His daughters had suffered soreness around their vaginal areas, although there was no evidence to suggest DH was responsible;

(b) There would be no other adult living permanently with him and the girls if they were to reside with him such an adult could be a protective influence;

(c) Mr Smith could not rule out risk completely, the risk was low, not very low; and DH was a convicted abuser in the past;

(d) Mr Smith was concerned about DH's lack of candour and openness. He was "less than honest". He had given various accounts of the abuse he himself had committed whilst at school: he appeared contradictory about whether or not he himself had been a victim of abuse whilst at school, and if so by whom. In this respect Mr Smith thought DH was being deceptive either by internal shame or because he was trying to impress, manage or possibly obtain a favourable report. He did not accept DH's statement "I didn't get anything out of it (the sexual offences)" given the repeated overt sexual acts.

209. I heard DH in evidence. I have to say he was inconsistent, and unreliable.
210. During the course of these proceedings, including his statements, position statements, discussions with Mr Smith and his oral evidence, DH has given various accounts of the offences he committed and abuse he says he suffered while at the school.
211. He told me he had "blocked" out the past, that when he tried to think about the offences he felt sickened and disgusted with himself, and could not recollect the detail over so long.
212. It was noticeable that in his first disclosure to this court about the offences he said "he inappropriately touched a younger boy at the school". It now emerges that he may have abused as many as 7 younger boys, and it was not merely touching as he required them to perform oral sex upon him, that he was not acting alone but with another boy. It is to say the least a confused and uncertain picture that DH gives. It is also not clear as to whether he was abused himself, and if so by whom: members of staff or other pupils, although to me he alleged abuse only by one other pupil whom he named.
213. I do not accept that DH has been open and frank with the Court about these matters. I accept that over the course of the years some details would have faded from his memory. I accept he may be ashamed at what he has done, or embarrassed to admit what may have been done to him, and those feelings may have caused some reticence on his behalf, but he knows the importance of being candid and open with the Court, and the assessment. He puts himself forward as a long-term carer of his daughters and he knows that the Court and others would want to know that if the girls were placed with him that they would be safe, secure and well cared for, and that the Court would need to be satisfied that he had been honest, however distasteful the details may be to him, and could be trusted.
214. I agree with Mr Smith that in respect of the offences DH lacked candour. His accounts are inconsistent and I remain at a loss to know how many younger boys were molested, although I accept there may have been 6 or 7. I do not know whether there were repeated incidents with each victim or over what period the offences occurred. I still only have a very general outline, and would have expected greater detail despite the passage of time. I do not accept DH's evidence that he has "blocked" it out, or his memory is that poor. In my view he is holding back, preferring for his own reasons not to divulge all that he recalls.
215. I also noted with interest that throughout his relationship with the mother he never disclosed to her that he was a sexual offender against children. It was a deliberate choice by him. He was fearful that he would lose her, the relationship, his family. That in itself is an understandable fear, but it was not open and honest of him not to tell her: she became his wife and mother of his children and entered into the relationship and marriage in good faith, but in ignorance of the truth. She had no idea of his past and no idea that her daughters may be at risk from their father, or even at risk of removal from her upon the Local Authority becoming aware and perceiving a risk to the children. His failure to tell the mother deprived her of being able to make an "informed decision" whether or not to continue with the relationship, or otherwise protect the children. His failure did her and the children a gross injustice.
216. I was also concerned that he breached an undertaking he gave to me on 8 February 2013 when he undertook "not to attend for contact with his daughters save as agreed". He had been warned by me in Court, and in the General Form he signed as to the possible consequences of breaking that undertaking. The Local Authority agreed that the girls should spend a week with his mother and step-father over Easter but that he should not be present. He let it be known in his statement dated 19 April 2013 that he also stayed in the property during the week the girls were there. He was at work during the day, was never left alone with the girls, but he slept over night in the property. It was a clear breach of the undertaking. He told me that when he gave it he thought he would be able to stay with his sister or a friend when the girls were with his mother, but within hours of the hearing heard that was not possible. He did not inform anyone of that change.
217. DH's behaviour in this respect is concerning. He gave his word, knowing the possible consequences; he broke it. What would the girls think if he was committed to prison for that breach? It would not help them. Can this Court rely on him in future to do as is required of him?
218. Additional to his lack of honesty and openness he has also shown himself to be unreliable and irresponsible.
219. During the assessment interviews DH told Mr Smith about an assault he had suffered in his mid twenties at the hands of a JM and another man, and that JM had been convicted for that assault. DH indicated that there were sexual overtones during that assault given the words used against him and the nature of some of his injuries, and he himself wondered whether it was a 'revenge' attack given his convictions some years earlier.
220. During the course of the hearing DH's mother came to court and informed Counsel as to her knowledge of the assault and injuries sustained. She said she thought her son was about 20 at the time.
221. Mr Smith was dubious about the veracity of DH in connection with the assault. It had never been mentioned earlier, and as he said "it did not stack up".
222. In an effort to clarify the situation I made various orders for disclosure from the local hospital where DH and his mother say he was treated, from the local Crown Court where it is said JM was convicted, but to no avail. There are no records, either lost or destroyed, or never there. Attempts by DH's solicitors to seek information from the police and CPS so far have not produced results.
223. DH is now 40. The assault whether he was 20 or 26 is now a long time ago and records may well have been lost, destroyed or archived and difficult to retrieve. Without further information in respect of JM it may be difficult, if not impossible, to trace relevant information.
224. Doubt has been cast on DH's account of the assault, and if it is true questions have been raised as to the motivation for the attack. It is unfortunate, that despite Mr Smith's report being available in November 2012 that the significance of the assault only became apparent during the course of Mr Smith's evidence, and time has been very limited in seeking extra information.
225. Until more is known either to corroborate DH's account or otherwise I am not in a position to consider what if any weight or significance should be placed upon it.
226. Thus I have put to one side the issue of the assault, and based my view of DH on the matters which are known, and the evidence I heard.
227. Given my findings there will be a "disposal" welfare hearing later this year and it may be that further information as to the assault will come to light, which will help clarify the situation.
228. I have to consider whether or not he presents as a risk of being a sexual abuser to children and in particular his daughters.
229. Like Mr Smith given the conviction I can not exclude him as being a risk.
230. I do not know the full extent of his offending in 1990. I accept that there are no relevant convictions or allegations of sexual misconduct to children or adults since. I accept there is no evidence to indicate that he has behaved in a sexually inappropriate way to his daughters, but against that he has failed to be open and frank to the Court and the processes and to his children's mother.
231. He has chosen to withhold relevant information. Mr Smith, on the information known to him, assessed DH as "a low risk". I add the words "at best" a low risk. I cannot say he represents a lesser risk. In the absence of greater candour I cannot say with confidence he represents a greater risk. I am concerned by his lack of frankness and to honour his promise to the Court. It indicates that he is unreliable and puts his personal interests high on his agenda. I sum up. He is a risk but I am not able to further quantify the risk.
232. Having said that and having criticised him, DH, in his evidence and to his credit referred to the mother as being a "good" and a "fantastic" mother. It was clear to me he loves his girls and that they love him, and from what I have read enjoy his company and his family and their contact with him and them.