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Cite as: [2019] EWHC 1511 (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: [2019] EWHC 1511 (Fam)
Case No: LN18C01043

IN THE BIRMINGHAM FAMILY COURT

21/05/2019

B e f o r e :

MR JUSTICE WILLIAMS
____________________

Between:
M County Council
Applicant
- and -

The First Respondent
- and -
The Second Respondent
- and -
The Third Respondent
- and -
The Children 'A' &'B'
(By their Children's Guardian)

RE: A Child (Threshold: Inflicted Injury and Domestic Abuse)
1st Respondent

2nd Respondent

3rd Respondent

4th 5th Respondents

____________________

Anita Thind for the Applicant
Nigel Sleight for the 1st Respondent
Brendan Roche for the 2nd Respondent
Anne Williams for the 3rd Respondent
Hari Kaur for the 4th - 5th Respondents

Hearing dates: 7th - 21st May 2019

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Williams:

  1. On 3 December 2018 an interim care order was made on the application of M County Council. At that time AE remained critically ill in hospital where he underwent major surgery on 4 December 2018. His father is the second respondent in these proceedings.
  2. A was 2 years and 2 months old when he was admitted to hospital on 29 November 2018. Investigations revealed healing fractures to his ribs and scapula, but more worryingly they revealed abdominal injuries including a laceration to his liver. Without treatment he would have died. The presence of numerous bruises together with the healing fractures and the abdominal injuries and the lack of explanation led the treating clinicians very quickly to suspected non-accidental injury. His stepfather, initially an intervenor and now the third respondent in these proceedings, was arrested on suspicion of GBH that night. The first respondent, A's mother, first respondent was arrested the following day.
  3. On 18 December the first respondent gave birth to a daughter, B. The first respondent gave consent to her being accommodated in local authority foster care pending a further hearing and on 21 December 2018, the local authority issued care proceedings so that on 9 January 2019 B also was made subject to an interim care order. Although it does not appear that her paternity was in dispute it was confirmed by DNA testing that the third respondent was her father. A and B are now the fourth and fifth respondents to these proceedings represented through their Guardian.
  4. The Issues at this Hearing

  5. Although this hearing was initially listed as a final hearing to determine both the threshold criteria and the appropriate welfare orders that should be made in respect of A and B, by the time the matter came before me for an IRH in April it was clear that the position in respect of B would not be capable of resolution at this hearing. Further assessments in relation to possible family placements needed to be concluded before any view could be reached on the realistic options for her future.
  6. In addition, it emerged that the only realistic option in respect of A was placement with his father. In respect of the second respondent no criticism is made of his parenting of A. Even the first respondent accepts that she is not currently in a position to offer care to him and that he should go to live with his father. That is the case even if she is wholly exonerated of responsibility for causing his injuries and for failing to protect him from those injuries. In part that derives from the fact that she concedes that she failed to protect him from emotional abuse linked to the assaults that she says she suffered at the hands of the third respondent and that she did not seek medical treatment sufficiently swiftly but also from the fact that she is currently homeless and unable to provide any sort of home for him. A plan has been agreed between the local authority, the second respondent and the Guardian which provides for a staged transition for A from foster care to the care of his father.
  7. The proceedings have come before me over the last 2 weeks principally for determination of the issues relating to the responsibility for the causation of the injuries to A, but also to determine the extent to which the first respondent failed to protect A. Within those issues I have also had to consider a number of other factual issues bearing upon the extent to which the local authority has satisfied the threshold criteria for public authority intervention in the lives of this family.
  8. Thus the central focus of this hearing was on what had happened to A between July and November 2018; how had he sustained such serious injury? Was it accidental or inflicted? If the latter, was it the first respondent or the third respondent who had done it? If the latter, had the first respondent failed to protect him and to what extent?
  9. The threshold document dated 22 April 2019 [A157] runs to some 10 pages setting out a very detailed description of the findings sought and the evidence in support. I do not intend to repeat that document in this judgment. The essential elements of the threshold including amendments made at the conclusion of the evidence are as follows:
  10. i) As at 3 December 2018 A had suffered and was likely to suffer significant physical and emotional harm and neglect.

    ii) As at 18 December 2018 B was at risk of suffering significant physical and emotional harm and neglect.

    iii) Such harm to A and B was attributable to the care given or likely to be given to them by the first and/or third respondent it not being care which it would be reasonable to expect a carer to give to them.

    iv) On or before 26 July 2018, A was assaulted by the first or third respondent and suffered significant bruising and swelling to his scrotum. Neither the first or third respondent took A for medical treatment which would reasonably have been expected following such an injury.

    v) On or before 29 November 2018 A was assaulted by the first or the third respondent and suffered multiple bruises, a torn frenulum, a laceration to the liver, leading to pancreatic/kidney/bowel/mesentery injuries, multiple left-sided rib fractures and a left-sided scapular fracture.

    vi) The bruising and abdominal injuries were caused separately to the rib and scapular fractures. The bruising and abdominal injuries were likely to have occurred between the 22 and 29 November. The rib fractures and the scapular fracture were likely to have occurred between 30 October and 22 November.

    vii) The assaults which caused the rib and scapular fracture consisted of the first or third respondent punching or kicking A or pushing him very heavily onto a hard surface.

    viii) The assault which caused the bruising and abdominal injuries consisted of the third respondent kicking A with a shoe or boot or punching him with a fist.

    ix) On or around 11 October 2018, A suffered bruising to his right chin, around his neck, to the middle region of his chest and to the right side of his abdomen. The bruising was wholly or in part the result of inflicted injury by either the first respondent or third respondent.

    x) A has experienced prolonged and severe emotional abuse and neglect whilst in the care of the first and third respondents.

    xi) B was likely to suffer significant physical harm and neglect if she were living in the same household as A and being cared for by the first or third respondent.

    xii) The first respondent has failed to protect A and B in that she continued to expose A to physical and emotional harm:

    a) From the domestic violence the third respondent perpetrated upon her; including incidents in July August and November 2018.
    b) From the third respondent losing his temper and using inappropriate physical force on A.
    c) Subsequent to the commencement of proceedings she continued to have contact with the third respondent on 18 January 2019 and 20 March 2019 despite stating they had separated, that bail conditions prohibited their being in contact with each other and him assaulting her.

    xiii) The third respondent is a man of violence having assaulted the first respondent on at least 3 occasions in July, August and November 2018 in the presence of A. He has further assaulted her in March 2019. He also assaulted A on 26 November 2018 by forcing food into his mouth exacerbating his existing injury and by slapping him on the bottom.

    xiv) The third respondent has lied to the police and the court regarding the nature of his relationship with the first respondent and the child A by concealing incidents when he was the perpetrator of violence against them.

  11. The schedule of agreement between the medical experts identified a small skull fracture which the LA originally included as part of the threshold. As a result of the oral evidence and the uncertainties as to its nature, how it might have been caused, how it might have appeared in its original form and as to timing the LA no longer pursued findings in relation to it. This was an appropriate decision given the evidence in relation to it.
  12. The first respondent's position is set out in detail in her response dated 7 May 2019. In summary she:
  13. i) Accepts the injuries sustained by A.

    ii) Asserts that the injuries observed on 26 July 2018 were the result of an accident on a trampoline on 25 July 2018.

    iii) Denies causing any of the bone fractures or the abdominal injuries sustained in October and November 2018 but accepts the expert evidence as to the mechanism by which they were probably caused.

    iv) Avers that some of the bruising and soft tissue injuries were the result of an accidental fall that A sustained at the beginning of November 2018.

    v) Accepts that she failed to protect A from emotional abuse arising from the domestic violence she experienced and that she failed to seek appropriate medical attention for A following some of the injuries he sustained.

    vi) Denies that she failed to protect A from physical assaults on him by the third respondent on the basis that, whilst she had suspicions that he may have been mistreating A, her suspicions were not such as to require her to take further action beyond that which she did.

    vii) Accepts that she was the victim of several assaults by the third respondent which she failed to disclose to the police or to protect A from.

    viii) Accepts that she has continued to have some contact with the third respondent but avers that this has primarily been the result of his intimidation of her.

  14. The second respondent primarily seeks to progress the placement of A with him. He doubts that the first respondent is capable of having been the perpetrator of the injuries sustained by A based on his experience of her. However, he is highly critical of her failure to take action to protect A from the third respondent. He is also critical of the response of A's GP to the injuries which were observed on 26 July 2018 and invites me to take steps to initiate an investigation into how it was that no further steps were pursued in the summer of 2018 to establish how those injuries were sustained.
  15. The third respondent's position set out in his response to the threshold dated 7 May 2019 is broadly speaking to deny any responsibility for any injuries sustained by A and to deny any abuse of the first respondent. In respect of the 3 significant sets of injuries he says that:
  16. i) The July injuries were not caused by him and he understood from the first respondent that they were sustained as a result of an accident on a trampoline.

    ii) The bone fractures were not caused by him and he understood that A had fallen down some stairs in late October to early November 2018 which he attributed the soft tissue injuries to. He accepted the bone fractures were not consistent with a fall but could not offer any explanation as to how they could have been sustained. He did not attribute them to the actions of the first respondent either as a direct allegation or inferential.

    iii) The abdominal injuries were not caused by him. Nor did he attribute them to the first respondent. He stated that he believed A had fallen down a set of stairs in the house on 26 November 2018 and believed this was probably the cause of those injuries.

    iv) He states that A had a good relationship with him and he had done nothing to emotionally abuse A.

    v) He denies assaulting the first respondent on any occasion but accepts there were some arguments which did not go beyond the ordinary.

    vi) He denies assaulting A on any occasion.

  17. By the conclusion of the evidence the Guardian's position had crystallised into a submission that the third respondent was the probable perpetrator of all of the injuries sustained by A. Further the Guardian submitted that the evidence demonstrated that from July 2018 onwards the first respondent was aware of the third respondent's propensity for serious violence to her and probably to A. It was to such an extent that her failure to remove A from the home that she shared with the third respondent represented a serious failure to protect A and it amounted to a prioritisation of her interests over that of A.
  18. This Hearing

  19. For the purposes of this hearing I was provided with 5 lever arch files of documents. Of those the principal components which I have read comprise:
  20. i) the witness statements,

    ii) the expert reports,

    iii) police disclosure in particular the interviews of the first respondent and the third respondent,

    iv) sections of the medical notes,

    v) documents downloaded from the phones of the first respondent and the third respondent in particular photographs and text messages,

  21. Miss Thind on behalf of the local authority provided a case summary together with chronologies and tables relating to the medical records. They were of considerable assistance. The other parties provided position statements or responses to threshold shortly prior to or at the commencement of the hearing. Various documents have been provided during the course of the hearing, not least the most recent statements of the first respondent and the third respondent which dealt both with the principal issues but also, at my request, descended into the circumstances and timing of the photographs of A which were included in the bundle but in respect of which there was some uncertainty over their dating given the limited information from the police in respect of when they were taken. I understand that the phones are awaiting a more detailed analysis by the police which has been delayed as far as I can ascertain by the backlog of work within that data extraction unit. Certified translations of the text exchanges were also provided to me.
  22. I have heard evidence from the following witnesses:
  23. i) Dr Oates, consultant paediatric radiologist

    ii) Dr Mecrow, consultant paediatrician

    iii) Dr C, consultant paediatrician who treated A on his initial admission to hospital

    iv) SW, the social worker

    v) The first respondent who gave evidence over the course of about a day and a half

    vi) The third respondent who also gave evidence over the course of about a day and a half.

  24. Mr Lander the consultant paediatric surgeon who had provided an expert report was ultimately not required to give evidence.
  25. It had also been expected that evidence would be given by some of the other medical staff who treated A on his admission, and who witnessed both what was said about his injuries but also the interaction between A and the first respondent at hospital. Statements had not been taken from these individuals by the police and ultimately no statements from them were provided and so they did not give evidence. Dr C's evidence covered much of the territory that those other treating medical staff would have given and the first respondent was able to put her case to Dr C.
  26. After hearing submissions from the parties on Thursday 16 May, I reserved judgment to be delivered in written draft either on Friday 17 May or Tuesday 21 May. I indicated to the parties that it was likely to be a lengthy judgment and so it has proved. In order to aid the parties and the legal teams I indicated that I would include a summary of my analysis and conclusions to assist the parties to understand the outcome without the necessity for the entirety of the judgment to be interpreted to them before the hearing resumed. That summary can be found at paragraphs 58-75 below.
  27. The Law

  28. In order to make a care or any public law order the local authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish the statutory threshold set out in s.31(2) Children Act 1989.
  29. (2) A court may only make a care order or supervision order if it is satisfied
    (a)that the child concerned is suffering, or is likely to suffer, significant harm; and
    (b)that the harm, or likelihood of harm, is attributable to
    (i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
    (ii)the child's being beyond parental control.
  30. The relevant date is 3 December 2018.
  31. In respect of failure to protect all parties agree that the statutory framework provides for an objective standard. What would a reasonable parent do? Issues connected with the effect of domestic abuse or financial vulnerability on the first respondent's response to events might fall for consideration not at the threshold stage but rather might feature in the court's determination of welfare issues, in particular relating to risk and capability.
  32. The burden and standard of proof

  33. In respect of the task of determining whether the 'facts' have been proven the following points must be borne in mind as referred to in the guidance given by Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam) confirmed by the President of the Family Division in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 24. See also the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26.
  34. The burden of proof is on the local authority. It is for the local authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)] although as Mr Justice Peter Jackson (as he then was) confirmed in Re BR (Proof of Facts) [2015] EWFC 41 at #41 the nature of the history given by a carer of a child who has suffered a serious injury is a matter that doctors are entitled to have regard to in forming their opinions. The weight given to that opinion is of course a matter for the judge.
  35. The standard to which the local authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred [Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at paragraph 15]. Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not [Re B at paragraph 2]. If a matter is not proved to have happened I approach the case on the basis that it did not happen.
  36. Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The dividing line between the drawing of inferences and speculation may not be a clear one; it is essentially a matter of judgment what is legitimate inference and what is insupportable speculation. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors [A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam)].
  37. The court is not limited to considering the expert evidence alone. Rather, it must take account of a wide range of matters which include the expert evidence but also include, for example, its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence rather than adopting a compartmentalised approach. The court invariably surveys a wide canvas. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to a conclusion.
  38. Thus, the opinions of medical experts need to be considered in the context of all of the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. Cases involving an allegation of non-accidental injury often involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. 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. When considering the medical evidence in cases where there is a disputed aetiology giving rise to significant harm, the court must bear in mind, to the extent appropriate in each case, the possibility of the unknown cause [R v Henderson and Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam)].
  39. "Today's medical certainty may be discarded by the next generation of experts. Scientific research may throw a light into corners that are at present dark. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities."
  40. The evidence of the parents and of 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 [Re W and Another (Non-Accidental Injury) [2003] FCR 346].
  41. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. The Court of Appeal has recently considered the law where only two possible perpetrators are identified. In Re B (a child) [2018] EWCA Civ 2127 Lord Justice Peter Jackson said,
  42. [19] The proper approach to cases where injury has undoubtedly been inflicted and where there are several possible perpetrators is clear and applies as much to those cases where there are only two possible candidates as to those where there are more. The court first considers whether there is sufficient evidence to identify a perpetrator on the balance of probabilities; if there is not, it goes on to consider in relation to each candidate whether there is a real possibility that they might have caused the injury and excludes those of which this cannot be said: North Yorkshire County Council v SA [2003] EWCA Civ 839, per Dame Elizabeth Butler-Sloss P at [26].

    [20] Even where there are only two possible perpetrators, there will be cases where a judge remains genuinely uncertain at the end of a fact-finding hearing and cannot identify the person responsible on the balance of probabilities. The court should not strain to identify a perpetrator in such circumstances: Re D (Care Proceedings: Preliminary Hearing) [2009] EWCA Civ 472 at [12].

    [21] In what Mr Geekie described as a simple binary case like the present one, the identification of one person as the perpetrator on the balance of probabilities carries the logical corollary that the second person must be excluded. However, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together, and no doubt comparing the probabilities in respect of each of them. However, in the end the court must still ask itself the right question, which is not "who is the more likely?" but "does the evidence establish that this individual probably caused this injury?" In a case where there are more than two possible perpetrators, there are clear dangers in identifying an individual simply because they are the likeliest candidate, as this could lead to an identification on evidence that fell short of a probability. Although the danger does not arise in this form where there are only two possible perpetrators, the correct question is the same, if only to avoid the risk of an incorrect identification being made by a linear process of exclusion.

  43. So an approach which surveys a very broad canvas, which weaves all of the evidence together in all of its facets, which draws appropriate inferences from the evidence and from common sense and which incorporates the likelihood of one rather than the other being the perpetrator is the correct approach.
  44. When looking at how best to protect a child and provide for his future in a pool of perpetrators conclusion, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43]
  45. Lies/Withholding Information

  46. The family court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth [Re H-C (Children) [2016] EWCA Civ 136 at paragraphs 97-100].
  47. 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 at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [R v Lucas [1981] QB 720]. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [H v City and Council of Swansea and Others [2011] EWCA Civ 195].
  48. In Lancashire County Council v The Children [2014] EWFC 3 (Fam), at paragraph 9 of his judgment and having directed himself on the relevant law, Jackson J (as he then was) said:
  49. "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 accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person hearing accounts given by others. As memory fades, 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."

  50. All the evidence is admissible notwithstanding its hearsay nature, including the evidence in local authority case records or social work chronologies which is hearsay, often second- or third-hand hearsay. The court should give it the weight it considers appropriate: Children Act 1989 s.96(3); Children (Admissibility of Hearsay Evidence) Order 1993; Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703.
  51. The Parties' submissions

  52. Following the conclusion of the evidence I heard oral submissions from the parties over the better part of a day. I cannot incorporate in this judgment the breadth and depth of those submissions but hope to extract the essential points made in support of the parties' respective cases.
  53. Miss Thind based her submissions upon a written document provided overnight 'outline closing submissions'. As already noted the local authority's position is that the first respondent and the third respondent are both possible perpetrators of the genital injuries sustained by A in July and the rib and scapular fractures sustained by A in October/November. However, they identify the third respondent as the perpetrator of the abdominal injuries sustained in late November.
  54. i) The evidence establishes that A lived in a household where violence, verbal aggression and intimidation from the third respondent was a regular feature.

    ii) The medical evidence is almost all agreed in respect of the timing, nature of the injuries and the mechanism for causation. The medical evidence all supports deliberate infliction rather than accidental mechanisms.

    iii) The local authority rejects the explanations given in respect of any of the injuries as they do not adequately explain them.

    iv) Neither the first respondent nor the third respondent are reliable or truthful witnesses.

    a) By reference to a helpful tabular summary Miss Thind demonstrates by sampling inconsistencies in the first respondent's evidence (the difference between her account to police of the relationship between A and the third respondent and her oral evidence; her account of whether A had any injuries on him on the morning of 29 November); lies the first respondent has told (her police interview as to the third respondent's violence to her and A); the emergence of entirely fresh evidence (tickets purchased to go to Lithuania after 2 August 2018); information withheld from police (third respondent force-feeding and smacking A on 26/11/18). The court can infer from her lies that they corroborate guilt having regard also to the number of opportunities available to the first respondent to seek help or report the third respondent's abusive behaviour, her detached demeanour at hospital and in the witness box and A's response to her at hospital and in contact.
    b) The third respondent's demeanour in the witness box was evasive avoidant and self-serving. He minimised any behaviour which might show him in a bad light. He has a disregard for the law as demonstrated by his driving convictions and persistent breach of bail. His evidence was inconsistent as to the number timing and circumstances of falls (the big slipper incident) and in some respects, was implausible.

    v) In respect of the July injuries, the medical evidence points to the likelihood of them being inflicted rather than accidental. Only one accidental mechanism was identified by Dr Mecrow and the first respondent's account is not consistent with that mechanism given that the trampoline had a safety net around it and A's reaction afterwards was suggestive of only a minor incident. Given that it occurred after the first recorded incident of violence from the third respondent to the first respondent it is more probable that this was not an accidental injury but rather an inflicted injury. The evidence does not sufficiently identify who caused it but only the first respondent and the third respondent are in reality possible perpetrators. The first respondent's numerous and misleading accounts of falls A has sustained together with the deficiencies in her account identify her as a possible perpetrator.

    vi) The evidence in relation to how the genital and fracture injuries were sustained does not clearly identify the circumstances in which they were sustained

    vii) In respect of the fracture injuries the medical evidence establishes they were inflicted injuries and were not consistent with any sort of fall. The accounts given by the first respondent and the third respondent of a number of falls around this time cannot explain the injuries and in any event the accounts are inconsistent as to the circumstances of and the number of falls he sustained. The absence of any sufficient explanation combined with the apparent attempt to initially blame them on falls supports the medical evidence that they are consistent with inflicted injury. The evidence does not sufficiently identify who caused them but again only the first respondent and third respondent are in reality possible perpetrators of them.

    viii) In respect of the abdominal injuries, the totality of the evidence points to the third respondent as the perpetrator. The medical evidence together with the evidence of the first respondent and third respondent suggests the injury was sustained on 26 November. The third respondent had sole care of A in the early evening of 26 November and says A fell down the stairs. The medical evidence establishes that such a fall is a highly unlikely explanation for the injuries, 'beyond the realms of reasonable likelihood' (Dr Oates). The other evidence of the third respondent's propensity to lose his temper, to use violence, to behave aggressively all point to the injuries being inflicted and he being the perpetrator. The first respondent's account of an incident that night of third respondent force-feeding and smacking A and assaulting her supports him behaving violently that night.

    ix) The evidence overwhelmingly supports the conclusion that the first respondent was aware that A was being harmed by the third respondent and she ought to have taken steps to protect him. She prioritised her needs over A's. This course of conduct persisted right up until the morning of 29 November when she left A in the care of the third respondent when she knew had very strong grounds to believe that he was assaulting A.

  55. On behalf of the first respondent Mr Sleight submitted that:
  56. i) The evidence demonstrated that the first respondent was an unlikely perpetrator of injuries to A:

    a) There were no concerns about her parenting of A prior to July 2018. His medical records and the evidence of the second respondent show she was an appropriate parent.
    b) Injuries only begin to emerge when she begins to live with the third respondent.
    c) The nature of the assaults causing the bone fractures and the abdominal injuries is very similar and it is improbable that two separate perpetrators were carrying out similar assaults on A.
    d) Would she have taken A to the doctors the following day if she was the perpetrator?

    ii) She accepts she failed to protect A from emotional harm arising from his exposure to domestic violence and in failing to seek medical treatment for him sufficiently early. She accepts there was material sufficient to put her on alert to a potential risk to A from the third respondent but had not seen him assault A and so cannot be said to have failed to protect him in this way. She made up the story about police and social services involvement in November in order to ensure the third respondent did not harm A.

    iii) The court should not use any lies she has told as corroborative of her guilt as a perpetrator or otherwise. There are many other reasons which explain in particular why she did not give a truthful account to police when interviewed. Her belief that she may be returning home to the third respondent during interview is reasonable, and if she was the victim of domestic violence she would have had good reason to be fearful of the third respondent's response had she disclosed either his violence to her or her suspicions about his violence to A.

    iv) The court should be cautious as to what it reads into the photographs. Dr Mecrow has not analysed or commented on them. Their dating and what they show is unclear. For instance, those at K411/412 probably show A eating with a spoon rather than having a swollen face at that point.

    v) The totality of the evidence supports her account of domestic abuse:

    a) He is a man with a criminal record and has little respect for laws or social norms
    b) He is demonstrably a man with a temper in drink
    c) Her account of the incident in July is broadly consistent whereas his account given in his witness statement is wholly different from that he accepted in cross examination
    d) He had a selective memory when challenged as to the details of incidents
    e) He is capable of being threatening and abusive; the texts provide a flavour.
    f) The evidence shows he is jealous of the first respondent and suspects her of being unfaithful. His assertion that on seeing a sexually suggestive message in August only led to him feeling sad is wholly implausible and inconsistent with other evidence about his attitude towards her. Her evidence of being hit on her right arm is consistent with him being left-handed and her evidence of being asked about the bruise and giving an innocent explanation to the health visitor is a detail which suggests her account is truthful. Further her evidence of considering leaving to go to Lithuania suggest something was badly wrong.

    vi) In respect of the July injuries she thought it was attributable to an accident on the trampoline although she accepts there may be another explanation. The medical evidence, both contemporaneous and expert, does not point conclusively one way or the other.

    vii) In respect of the rib and scapula fractures they are caused by a similar mechanism to that of 26 November. This points to her not being a possible perpetrator. The medical evidence is that A's response to those injuries would not have been such as to alert a non-perpetrator carer to the presence of such serious injuries. Her taking him to the hospital to deal with the swollen soft tissue around the frenulum is also a contrary indicator for her being the perpetrator. She denies holding A back from medical treatment whilst his bruising resolved. She took him because the frenulum had become swollen.

    viii) In respect of the abdominal injuries the first respondent's belief is that it must have happened before she got home. Although her accounts in her first witness statement at paragraphs 8 and 27 do not match up her oral evidence and her police statement paint a picture which the court can rely upon which would show the third respondent was in a highly aggressive mood that night.

  57. On behalf of the second respondent Mr Roche took a broadly neutral position as to who was responsible for A's injuries. However, he did draw my attention to the following matters;
  58. i) If the first respondent was heavily pregnant and in a delicate state of health could she have delivered the blows?

    ii) The impression from the first respondent in the witness box is that we haven't heard the whole truth.

    iii) The second respondent strongly believes the first respondent failed to protect by remaining in the relationship and failing to seek medical care immediately. The photographs demonstrate very worrying injuries. There seems to be a delay in presenting A.

    iv) Her attitude to use of medical facilities within her pregnancy suggests that she was aware of the ability to get medical assistance and her failure to do so cannot be explained by any cultural issue.

    v) The video is hard to interpret. Same with photos. The transcript doesn't show abusive language but the appearance of the video is not reassuring as the third respondent says it was. Taken with M's account of A being wary would be consistent with A being scared of the third respondent.

  59. On behalf of the third respondent Ms Williams submitted as follows.
  60. i) He accepts the medical evidence as to the rib injuries and is unable to offer an explanation save that he denies any punch or kick. In respect of the abdominal injuries, he attributes them to the fall down the stairs which remains a possibility having regard to the medical evidence.

    ii) He denies causing any bruising whether by force feeding on 26th or on any other occasion or the exacerbation of the frenulum injury. He has given an explanation for the injuries seen in the photos at K423 to 425 and his belief is that all of the injuries visible were caused in that incident when A tripped whilst wearing large slippers. Ms Williams points out that bruises can be caused in many ways and it would be wrong to infer that the bruises are older and indicate another incident. There is no expert opinion to support that.

    iii) In respect of the genital injuries in July, there is no evidence to support the conclusion that even if caused deliberately they were caused by him. The medical evidence as is accepted by Dr Mecrow is very limited in respect of this injury. The first respondent told him of an accident which he believes occurred and explains the injuries. Her evidence of seeing a change from redness to bruising in the aftermath of the trampoline incident and accidental explanation. It clearly happened whilst A was in her care not his.

    iv) There clearly was a fall in October as the first respondent describes one which caused quite significant facial and other soft tissue injuries. Although that does not explain the fractures it is not incumbent on him to provide an explanation for them. The first respondent was the primary carer and he spent relatively little time with A. A was taken to the doctors when the frenulum injury became infected and there was still some residue of the bruising then. The evidence does not support a deliberate decision to keep A away from doctors. The first respondent's assertion that A frequently returned from another part of the house where he had been with the third respondent with an injury is inconsistent with what she told police. In any event she now says she did not allow A to spend time with the third respondent so how could he have caused injuries?

    v) He has given an explanation which would account for the abdominal injury. He accepts that he was cross that night but this was to do with A having been left in the rain and being cold and wet. It was not because he had had to go to pick him up. The first respondent's account of him force-feeding A and assaulting her on that evening is completely inconsistent with what she told police and her own initial statement. The photo at K462 is dated 26 November and time that 19:13pm which is consistent with the third respondent's account of A falling downstairs and then perking up and going out to the shops.

    vi) In more general terms, the third respondent's driving record may demonstrate recklessness, but in no way is it probative of guilt of these serious injuries. The way he speaks of A in his evidence is in affectionate terms and suggests he is unlikely to cause him injury. His account of limited chastisement demonstrates appropriate discipline.

    vii) Ms Williams also cautions in respect of the use of the photos. She submits that the use individuals make of phones in 2019 is entirely consistent with the father's account of having taken photos upstairs and sent them to the first respondent downstairs. No sinister motive should be inferred; that would be insupportable speculation. The video is consistent with his account of encouraging A to make use of the shower.

    viii) The first respondent's account of domestic violence is unreliable. She denied any violence when interviewed by police. Her subsequent accounts are inconsistent with each other and indicate they are fabricated. If he had subjected her to such violence she had many opportunities to report them and to leave him. The fact that she did not do so suggests it did not happen. She was regularly seeing medical staff in relation to her pregnancy. At the hospital on the 29th, she was alone with medics at various times and made no allegations to them. She had friends who she could call upon to assist, whether S or the second respondent or others. The third respondent has been consistent and emphatic in his denials. He describes minor arguments and accepts that he lost his temper in July. His evidence is more credible.

    a) In respect of the March 2019 incident he has given a clear account which is consistent with the CCTV evidence. She approached him and they walked in a friendly way back towards his house. This is inconsistent with her account of him forcing her to return with him. The fact that he immediately went to the police station after she rushed out is consistent with him being innocent of any wrongdoing. He wanted to ensure the police were aware there had been a breach of the bail conditions and to make sure she was not setting him up.
    b) His account of the argument in July and the absence of any violence is more consistent than the first respondent's account.
    c) Likewise his account of what occurred in August is more consistent than the first respondent's.
  61. On behalf of the Guardian Ms Kaur made the following points.
  62. i) The Guardian invites court to take the first respondent out of the pool of perpetrators essentially for the reasons identified by the first respondent. The Guardian also points to her physical handling in contact which does not show any harshness. The Guardian also submits that if the first respondent is telling the truth about domestic abuse, as he submits she is, this clearly identifies her not as a perpetrator of violence but a victim of violence.

    ii) The totality of evidence points to M being a victim of violence as is A:

    a) There are multiple risk factors present; a new relationship, financial pressures, loss of temper whilst in drink, jealousy, a degree of coercion or control, aggressive language in texts; lawlessness and a lack of respect for the law as demonstrated by his repeat driving convictions and breach of bail.
    b) The message described at C53 #24 of the third respondent traumatising A together with the text referring to hysterical attacks.
    c) Her account of telling the third respondent that police and Social Services were involved. Why else would she do it but as a feeble attempt to protect A from violence?
    d) Her police statement contains elements which have the appearance of authenticity; not being able to sleep on her right side, the detail of her reminding him she hadn't been able to wash her own hair.
    e) Her accounts of 26 November 2018 given in the police statement is broadly similar to her statement. Although she did not link them in her statement which appears to divide up abuse to her and abuse to A they are broadly consistent with each other and her oral evidence.
    f) The July incident if accepted shows him to be a violent man; persistent, violent to a third party, to his pregnant girlfriend.
    g) The parties accept that the photographs show various injuries. It is not a question of whether they do show injuries but what the court can infer from them. It would be a legitimate inference for the court to infer that the photographs at K423 425 show two separate sets of injuries. It would also be legitimate to infer that they show inflicted injuries and that the delay in taking A to hospital between the end of October and 6 November was because the first respondent and the third respondent wished to wait for the bruising to subside before they did take him to a medical practitioner.

    iii) In respect of the July bruising the explanation given by the first respondent doesn't adequately explain the injury. On the history of the case the court can conclude this was an inflicted injury.

    iv) The totality of the evidence relating to 26 November points to the third respondent as the perpetrator of the injury. The mechanism described by the experts is of a very serious assault. He gives an account of something in order to explain the injury which does not accord with the expert evidence but was something he offered to the first respondent that night. On testing in cross examination his account seems wholly implausible in respect of why he took A upstairs. The medical evidence doesn't rule out A going for a walk later as neither Dr Mecrow or Mr Lander provide detail on the nature of his response over a period of a couple of hours later.

    v) M said in her statement at C56 that there were odd incidents it wasn't said for the first time in the witness box.

    vi) The evidence establishes that she failed to protect from July onwards. She should have left after the first incident of violence. Her fabrication of the involvement of police and social services in November demonstrates her awareness of the risk the third respondent posed. She refers at C56 to her concern at the instances of A reappearing with an injury after having been alone with the third respondent elsewhere in the house and finding bloodied wet wipes under his bed. She failed to take protective action in respect of the violence A was experiencing from the third respondent which she knew or ought to have known of. In addition she failed to seek appropriate medical attention at various stages including after being informed of the alleged fall on 26 November his condition was such that she ought to have taken him for medical attention. Her continuation of a relationship of sorts with the third respondent into 2019 demonstrates a continuing failure to act protectively.

    The Evidence

  63. Attached is a detailed chronology appendix A which sets out both the factual and some of the procedural background to the case. Incorporated within the chronology is much of the documentary and oral evidence that I have read and heard although it cannot incorporate everything. Insofar as I have needed to determine matters of fact I have to some degree incorporated that evidence and my conclusions within the chronology. The chronology needs to be read together with the analysis and conclusions below.
  64. There are some gaps in the evidence. The evidence relating to the genital injuries in July is itself limited. The medical records are very spartan. The accounts are given relatively late in the day; the first respondent's account emerges from a discussion with the social worker during the parenting assessment it not having formed part of the Threshold when originally drafted. No one else who was present, or allegedly present has been spoken to. Others who might have provided statements have not done so. The third respondent's father and his partner who were present in the house on the evening of 26 November do not appear to have been approached either by the police or the local authority or the father to give evidence. The downloads from the parents' phones are limited. They do not cover the i-messaging which the first respondent suggested was the parties' primary vehicle for communication as opposed to texts. The evidence in relation to the photographs which have been downloaded from the phones is not entirely satisfactory in respect of the dating of the pictures, albeit ultimately both parties gave evidence which suggested that the photographs in broad terms were consistent with the dates which appeared on them. For reasons which were not entirely clear, Dr Mecrow had not had the opportunity to comment on the photographs of A and thus the interpretation of what they showed was more limited than it might have been. Dr C was invited to comment on them and did so albeit she identified the relatively poor quality of the photos as a limitation in any event. Thus some caution has to be deployed in relation to the use of the photographs. I do not consider that it is possible to draw some of the inferences that Ms Kaur on behalf of the Guardian invited me to make; for instance that the injuries seen were only consistent with a non-accidental infliction. However, the photographs and the text messages with their limitations have to be fitted into the overall canvas of evidence and play their part within it. The videos of A were also made available to me. I did not have a transcript of the comments that the third respondent was making whilst A was in the shower. Again I am cautious about what one can infer from the videos but on the other hand one cannot ignore them. They do have some evidential value.
  65. I also have regard to the fact that both the first respondent and the third respondent have given evidence via an interpreter and more importantly that their communications with the hospital and social services and police were conducted through interpreters or without interpreters.
  66. In determining the facts, I have surveyed a broad canvas, looking at the totality of the evidence and how the constituent parts fit together to make up a whole. I am conscious that in parts the jigsaw is incomplete and in others the picture which emerges is unclear. However in other aspects the totality of the evidence paints a very clear picture indeed.
  67. Part of the problem in determining the facts is that neither of the key witnesses of fact, namely the first respondent and the third respondent are reliable historians. Plainly their credibility is a significant component in determining the facts. Fortunately the existence of some contemporaneous evidence or agreed facts provide assistance in determining which of the two is the more reliable overall. My assessment of the first respondent and the third respondent set out below draws upon and feeds into my assessment of the evidence in appendix A.
  68. The first respondent gave evidence over about a day and a half. She gave evidence through an interpreter although I got the impression that she understood quite a lot of English as she answered questions before they had been interpreted for her. She herself says that her English has improved significantly over the last months so it is difficult to know with any certainty what her level of English was in November of last year. Her witness statements were provided in English and without interpreter's certificates. Dr C appeared to be satisfied that the first respondent understood in large measure what was being said to her and she was able to relay a history which Dr E and Dr C were able to take down without interpreters. The first respondent was generally polite and cooperative during her evidence; there were only very rare moments where she was argumentative they coming at the end of a long day. She did not come across as aggressive but as a rather passive individual. Someone who is reactive rather than proactive. At times she appeared to give up or be resigned. She did not appear to be a person who is likely to be capable of losing her temper in a way that would cause her to inflict violence upon another. There is nothing in her history which points at that as being a likely facet of her character. There were occasional moments when her body language changed. Whilst reading presentation and body language is tricky I thought it perhaps significant that when she denied ever having smacked A she appeared to become somewhat flustered, rapidly blinking. This perhaps was an indication of her knowingly lying during her evidence. This was an isolated incident though. The first respondent demonstrated little emotion throughout her evidence. There were occasions when her aura of detachment slipped and she appeared tearful. Such flashes appeared to occur when she was talking about her son. I did not get the impression that she did not care and that her detachment was a reflection of that. The evidence of her caring for A prior to July 2018 together with her attachment to A and B as seen during contact and the evidence of her distress at times at the hospital and her attempts to comfort A by holding his hand, smiling at him and speaking to him all appear to support the conclusion that she does care for her children and is engaged with her emotions. It seems to me more likely that her apparent detachment during her evidence is a protective response to prevent her being overwhelmed by events and the emotions they would provoke. She is currently homeless and without work and facing the loss of her children whilst also coping (if I so find) with the aftermath of the infliction of serious violence upon her and upon A. Whilst there were moments during her evidence where she sought to avoid responsibility, there were more where she accepted that she had let her son down.
  69. There are clearly some very major issues to do with her reliability as a historian. The difference between her police interview in which she maintained she had a good relationship with the third respondent and that he had a good relationship with A are in startling contrast to her statements in the family proceedings and to the police and indeed to her oral evidence. Even between her statements in which she gives an account of domestic abuse there are significant discrepancies. There are some significant differences between her police witness statement given on 8 January and her family court witness statement given on 15 January. The account of the train of events on 9 July is significantly different. Her account of 26 November in her family court statement does not identify the force-feeding incident and the assault upon her as having taken place that night but rather on an unspecified date in November. It is clear that her recall of dates and the sequence of events is poor. What is the explanation for these differences? It could be an indicator of dishonesty but could also be a product of an unreliable memory. The overall picture which emerges from all of her evidence is a broadly consistent account of incidents of violence being inflicted upon her. I agree with Mr Roche's submission made on behalf of the second respondent that there is a sense that she has not told the full story. Again that may be because she is dishonest or it may be because she is not yet emotionally able to come to terms with some of what has happened. During robust cross examination, her core account remained intact. Some of her responses seemed to be spontaneous and to demonstrate a degree of indignance which lent credibility to her answer; for instance, when it was suggested that the third respondent had not tried to strangle her and had not smacked A on 26 November. Likewise when it was floated to her that she had herself caused the injuries she sustained in March 2019. Small details provided an authentic feel to her account. Her recall of the conversation in which she reminded the third respondent of the bruise he had inflicted on her in August and how it had made it painful for her to wash her hair, the third respondent being picky about the way clothes were folded, her account of sausages being fed to A during the incident on 26 November. Her account of having made up a story that social services and the police were taking an interest and had visited the home is in itself corroborated by the third respondent's police interview. She said this was because A's had become unhappy in his presence and she suspected he was doing something. In addition her evidence that she considered leaving the third respondent and returning to her home country was corroborated to some extent by the third respondent's own evidence of her having said she wished to go to her home country. Given the difficulties in her pregnancy and her lack of finances seems improbable that she would have been referring to this as a holiday. She gave appropriate explanations for not having disclosed what was happening earlier in particular when she was challenged about why she had not given an account of domestic abuse and suspicion of child abuse to the police. Whilst at the police station, I'm satisfied that she did believe that she may be returning to the home she shared with the third respondent and that this would have been sufficient to make her fearful as to his response. In any event given the circumstances in which she was interviewed with A critically ill in hospital and she having been arrested on suspicion of GBH, I do not consider that her failure to give a full account to police is a matter which within 'Lucas' terms provides corroboration for her being a perpetrator of abuse or even a fabricator of an account of domestic abuse. Far more probable an explanation for that account is fear of the third respondent, fear of the situation she was in, and shame about her inaction. The existence of the abusive text messages from the third respondent together with matters such as his acceptance of his loss of temper on 9 July and his disregard for the law, as demonstrated by his driving record and his breach of bail, all tend to support the first respondent's general narrative.
  70. The third respondent also gave evidence over the course of a day and a half. His presentation was very different from the first respondent. His attitude was rather insouciant or cocky, occasionally rather condescending. He repeatedly questioned the relevance of his driving convictions asserting that he had been punished and they were now forgotten. At times he appeared surprisingly candid for instance fully accepting that he had smashed the car up and had lost his temper and was shouting and swearing. At other times after appearing to be candid he would seek to alter or minimise a concession he had made. He rapidly changed an argument on 10 July into a 'discussion'; seemingly realising that an argument was more consistent with a subsequent alleged assault. He was assertive throughout and at times he came across as argumentative often taking issue with questions which had been put to him or confidently asserting that that question had already been asked and answered. He remained calm even under considerable pressure although his combativeness indicated at times he was probably quite wound up. There were flashes of irritation. He also seemed very detached from events. When questioned about the rib and scapula fractures he showed no interest in seeking to understand how they might have happened. He said he had no thoughts in his head about it and that he was hardly seeing the child and so had no explanation.
  71. His statements and his oral evidence demonstrated significant inconsistencies or the suppression of the truth. His account of 9 July incident in his family court statement painted a picture of a relatively innocuous event. His oral evidence in stark contrast depicted a deeply unpleasant and frightening outburst of violent behaviour albeit towards an inanimate object. His account of the fall in October/early November which led to the facial injuries and the injury to the frenulum is inconsistent. On one account in his statement in these proceedings he was at work when it occurred, on another in his police interview at K376, K378, and K382 he was at home. Many of his explanations seem highly implausible. His assertion that his response to the receipt by the first respondent of a sexually suggestive message was one of sadness was completely irreconcilable with his jealousy and aggressiveness demonstrated by his text messaging. His suggestion that a text message that he appears to accept sending which made reference to injecting A with water was a joke stretches incredulity. If it was a joke it was a joke which illustrates a worrying sense of humour. In cross examination in relation to the alleged assault in March he accepted that there was no one else in the property, that no one had any motive to assault him or the first respondent and could offer no explanation for how the first respondent came by the extensive injuries that she sustained on that occasion and which were immediately witnessed by the kebab shop and the police within minutes of her leaving his property. In the police interview having earlier said that A had no problems with his mobility, he later asserted that he was a clumsy child who was always falling over and walking into things and that was how he received his injuries. His assertion that the video of A in the shower amounts to a reassuring picture shows either dishonesty or a complete lack of empathy with a little boy's emotions. His account of leaving A upstairs on 26 November whilst he went to retrieve the buggy from the car made little sense in terms of why he took him upstairs and left him in his room. Even more significantly his account of not having heard anything as A fell down the stairs or of A crying afterwards or of the fact that neither his father or his partner heard or saw anything or came to A's assistance all sounded highly implausible. His assertion that A had been terribly cold and wet when he picked him up from the hospital and that he then sustained a significant fall down a set of stairs but he then considered it appropriate to walk to the shops in the rain shortly afterwards also appeared improbable.
  72. Whilst neither the first respondent or the third respondent are very reliable witnesses I consider the first respondent to be inherently a more honest individual and more likely to feel the obligation to tell the truth in comparison to the third respondent.
  73. Although there was little evidence of any interaction between the first respondent and the third respondent over the time they were in court or whilst they were each giving evidence, the characters which emerged from their evidence suggest the nature of the likely dynamic between them. Supplemented by what emerges from the text messages I conclude that the first respondent is the more passive and compliant of the two, a woman likely to seek to avoid conflict and to find it hard to assert her needs in the face of a stronger character. The third respondent is clearly a more dominant and assertive character, someone who does what he wishes regardless of the consequences for others. I conclude he is a man who has a brittle temper, is capable of highly abusive indeed offensive language and who whether in drink or otherwise would be capable of losing his temper.
  74. Medical Evidence

  75. Mr Lander sets out a summary [E82] in relation to the serious abdominal injuries.
  76. It is my conclusion that A suffered a violent blow to the upper abdomen, this was delivered by blunt object such as a shoe or boot delivered in a kick, or by a fist in a punch. This was, in all probability, an inflicted non-accidental injury. It is more likely that A was standing at the time but it is possible that he was lying down. There may have been two blows, but one blow provides a sufficient mechanism to cause all the injuries. The injury was most likely inflicted between Monday, 26 November 2018 and Wednesday 28th November. The perpetrator would have been aware that he or she had inflicted suffering and pain and that serious damage was likely to have been caused by the blunt injury. The injury lacerated the liver and it was life-threatening. The fact that the liver itself has needed no surgery does not detract from the seriousness of the injury. It is only by good fortune that the liver injury was no worse since had the laceration been a fraction more extensive it could have been fatal. The initial blow also compressed the mesentery of the small intestine against the spine, damaging the mesentery and the blood supply to 40 cm of jejunum. The pancreas was injured but has probably recovered. A was taken to the GP and then hospital. He lost a quantity of blood into the abdominal cavity and became quite unwell as a result. He went into pre-renal failure and needed a lot of intravenous fluid to keep his circulation going. He had an acute kidney injury but this was because of blood loss and not trauma and his kidneys recovered. A was fortunate that his liver injury was manageable without an emergency operation. Unfortunately, the devascularised jejunum died over the next few days and an abscess and inflammatory mass developed around it. On the 3rd or 4th of December 2018 the wall of the dead jejunum failed from gangrene and it then leaked a lot of intestinal content into the abdominal cavity and A became very unwell once more. At a life-saving emergency operation on 4 December the 40 cm of dead jejunum was removed, but A was too sick to join the bowel together and he returned to intensive care for 2 days rest after which he had a 2nd operation at which the bowel was repaired.

  77. The photographs taken on 29 November at the hospital show the extensive bruises that A had sustained. They are unpleasant and concerning to view.
  78. The evidence of the 3 medical experts is set out in detail in their reports. It was supplemented by the consolidated schedule of agreement [E263].
  79. The conclusions from the medical experts is largely agreed and unchallenged. Attached at appendix B is a table summarising that evidence.
  80. Analysis

  81. Thus the fundamental issues that I need to determine having regard to the medical evidence and the positions taken by the parties are:
  82. i) Were the injuries observed in July 2018 the result of an accident or an assault on A and if the latter was it the first respondent or the third respondent who assaulted A?

    ii) Were the rib and scapula fractures sustained by A in October/November 2018 caused by the first respondent or the third respondent?

    iii) Were the liver laceration and other abdominal injuries sustained by A between 26 and 29 November 2018 caused by the third respondent?

    iv) Did the first respondent fail to protect A from serious physical abuse in that knowing or having good reason to believe that it was taking place she failed to remove A from that environment?

  83. In answering these questions and in the discussion that follows, I draw upon all the evidence, analysis and conclusions on matters of fact, great and small, that are contained earlier in this judgment and in particular in the chronology. The extent of the documentary and oral evidence that has been heard on central and peripheral issues is considerable. Even this lengthy judgment can only include reference to evidence which bears centrally upon the issues I am determining. I do however have in mind much else that I have read and heard but which cannot be incorporated in this judgment or chronology.
  84. I conclude that it is unlikely that the first respondent is a perpetrator of any of the 3 significant sets of injuries that A sustained. Indeed I do not consider that she would deliberately cause any injury to A, although I conclude it is more likely than not that she has on occasions smacked A as a form of chastisement. Her denial of this was an example of dishonesty arising through fear or shame. However, all of the other evidence about the first respondent points away from the likelihood of her as a perpetrator of violence upon her son. The evidence is that she provided appropriate care to A prior to July 2018. This emerges both from the medical records which show a child being presented appropriately for inoculations or minor problems and developmental checks but also from the acceptance that she provided appropriate care by both the second and third respondents. Having seen her give evidence and having heard something about her interaction with her children, there is no sign of her having a personality which would be consistent with the infliction of a high level of violence upon a child. Her general meekness or passivity and the absence of evidence of a temper support this conclusion. The fact that she was experiencing a fragile pregnancy would also point away from the likelihood of her using highly physical violent behaviour. Nor is she a drinker or consumer of drugs which might render her emotionally unstable. I do not consider that the lies she has demonstrably told can be deployed to corroborate any evidence which might identify her as a perpetrator of violence. However she has clearly failed to protect A in a variety of ways. Those failures to act however are qualitatively different to the infliction of violence upon him. I do not consider that her failure to protect him adds any support to an argument that she was the perpetrator.
  85. The medical evidence in respect of the injuries strongly supports deliberate infliction by the use of serious violence in respect of the rib and scapula fractures and the abdominal injury. Although both Dr Mecrow and Dr Oates could not entirely rule out the possibility that a fall down stairs could have caused the abdominal injury, even that remote possibility only comes into play if A landed on some blunt boot or fist-shaped object at the foot of the stairs with the equivalent force of a kick or a punch. There is no suggestion that this was the nature of the fall that occurred. In respect of the rib and scapula fractures the falls described by the first respondent and the Third Respondent are simply inconsistent with the injuries A sustained at that time. The medical evidence as to the relatively low-level injuries sustained by young children through falls downstairs based as it is on some research provides a firm evidential foundation for the opinions expressed by the doctors based on their own clinical experience. The fall down a few stone steps described by the first respondent might well cause some soft tissue injuries such as those seen on his shin or perhaps even some on his face. A fall down a few stairs as described by the third respondent might cause some minor grazes or bruising. However they do not get close to explaining how this little boy sustained 6 left-sided rib fractures and a most unusual fracture to his left scapula. They are however consistent with a forceful blow delivered to A's chest while he was backed up against a wall or perhaps a stamp or punch whilst he was lying on the floor.
  86. The medical evidence in relation to the genital injuries observed in July 2018 is less clear and satisfactory. Dr Mecrow himself noted that he would have been reluctant to offer any opinion had there not been the subsequent injuries which can be deployed to support the conclusion that those injuries were more likely to be inflicted than accidental. Dr Mecrow considers that the injuries could be accidental but only by the unusual mechanism of A having fallen with legs akimbo on to a hard surface. This could have occurred on the metal edge of a trampoline. I do not think Dr Mecrow offered an opinion in respect of the degree of protection that a nappy might have afforded in such a situation but as a matter of common sense it seems likely to have cushioned any impact to some degree. The first respondent's account of the alleged accident is far from full or satisfactory. She did not see it happen but says she became aware of A on the ground outside the trampoline crying. Both the first respondent and the third respondent say that initially redness was observed around his groin which developed into bruising and swelling by the following day. The fact that they are in many ways highly unreliable witnesses is far from a conclusion that they never tell the truth. The medical records in respect of the visit to the GP the following day do not illuminate matters much. A reference to an abdominal injury, no description of the history, a reference to A&E. No referral on to social services suggests the GP was either satisfied with the explanation given. The alternative is laziness or incompetence; both of which seem less likely. The circumstances in which the explanation came out about this injury namely in the course of discussions between the first respondent and the social worker in the course of the parenting assessment do not suggest fabrication on the hoof. Although this is the least serious of the injuries it is one which has caused me considerable deliberation. Had the bruising to A's groin which was noted in November 2018 been considered to be a product of deliberate infliction rather than blood tracking that may have added support to the conclusion that the injury in July 2018 was deliberate but that is not so. Nor is there any evidence to suggest any sexual or element of sadism in the other injuries inflicted which would probably be required if this injury was deliberately inflicted by pulling or twisting of the genitals. Taking all of the evidence together I do not conclude on the balance of probabilities that this injury was inflicted by deliberate assault upon A.
  87. The evidence from the photographs of A through October and into November including those taken by the hospital appear to show a little boy who was carrying significant bruising for much of that period. The photographs at K423 to 425 taken in the aftermath of the 'big slipper' accident show a variety of injuries. They appear to show grazes which would be consistent with a carpet burn. However they also show a significant bruise on the right jaw line and two bruises to the centre-left chest area. They are sufficiently different in appearance that they cannot be in my view of the same nature. The darker marks which appear to be bruising do not appear to be carpet burn grazes. It is also hard to see how that combination of injuries could be caused by a fall onto a carpet or between a bed and a wall or radiator. The appearance of the marks on the chest and jaw are of bruises which would not be likely to come up within the moments that had elapsed between the alleged trip and the taking of the photographs. I therefore consider that those photographs do show two sets of injuries.
  88. It is of course possible that A has at times suffered accidental injuries as well as inflicted injuries. Little children do have accidents. The description of the first respondent of an accident when A fell down some stone steps itself has a sound of authenticity to it. It may be that he then suffered some soft tissue injuries to his legs and face.
  89. The timing of the rib and scapula fractures is placed by the experts in the window of 30 October to 22 November. Dr Oates in his report [E67-8] emphasises this is an approximation and that the two studies he refers to would place it in the 8-35 days or 1 - 5 weeks old categories. In oral evidence he said they could be up to 2 months old although he thought it unlikely. Five weeks or 35 days before 29 November is 25 October. The dating of the photographs taken by the first respondent and third respondent of A is not established with certainty but their evidence together with that of the dates themselves puts some of them in the period 26 October to 5 November. It appears likely that the photographs at K450 dated 27 October are taken shortly after an incident in which he was injured and that those at K409, 411 and 412 show the bruising having developed by 29 October. Those at K413 and 415 appear to show the bruising slowly reducing such that by the time A visited the hospital on 6 November the bruising was no longer very obvious. Given the extensive nature of the bruises which are visible at that period it seems likely that they were sustained during the same incident that caused the rib and scapula fractures. The difference of 3 days between the photos of 27 October and the opening of the window identified by the experts for the causing of the fractures seems to me to be reconcilable given the experts accept that there is a degree of imprecision in the dating of the fractures. There was thus some very significant event which not only fractured A's ribs and scapula but also caused significant bruising to his face and probably an injury to his frenulum. The experts agree that the most likely cause of the fractures was a direct blow to the chest by punching, kicking or being pushed very hard onto a hard object. It seems probable that in the course of the delivery of that punch, kick or push that A also banged his head so as to cause those injuries. That was a very significant and violent assault which the perpetrator would have known was likely to cause very serious injury. As Dr Oates noted it was more chance that no internal injuries were also caused given the severity of the blow. A must have been in considerable distress immediately afterwards and considerable pain. At his age and with his limited language he may well have been unable to communicate what had happened to a non-perpetrator. The experts agree that the symptoms he would have displayed thereafter would not have put a non-perpetrator carer on alert to the fact that he had sustained fractures to his ribs and scapula.
  90. However even to the non-perpetrator it was obvious that this little boy had sustained a serious injury. The extent of the bruising to his face and the swelling to his jaw area is obvious from the photographs of 27 October and 29 October.
  91. When A was taken for medical treatment on 6 November 2018 to the Hospital they were told that he had fallen down some steps 4 days ago and hit his face. Having regard to the photographs and the parents' accounts it appears that that account was wrong. In fact, he had sustained the injuries more like 10 days before. Thus the photographic evidence and the medical evidence and the parents' accounts of the dating of the photographs broadly align. It is in the aftermath of this visit to the hospital that the first respondent told the third respondent that police and social services had been contacted and were visiting the house. She herself says that she told him that because she had become concerned that A was fearful of him. He confirms he was told this and that he understood social services and/or police had visited the home. The combination of the evidence that A had sustained very serious fracture injuries together with obvious facial bruising and the first respondent's evidence that she was sufficiently concerned to fabricate a tale of social services involvement point to the likelihood not just that she was suspicious but that she believed that the third respondent had seriously assaulted A. She describes how on occasions A would return from another part of the house sporting an injury which the third respondent attributed to an accident. I conclude on the balance of probabilities that on an occasion in late October she observed A with the serious facial bruising that is seen from the 27 to 29 October and that she was given an explanation that this was the result of an accident, but that she by that stage at the latest had come to believe that the third respondent was the cause of the injuries rather than an accident. Only that level of belief is consistent with her fabricating the social services story. I do not conclude that the first respondent had directly witnessed an assault of the nature which caused the fractures and facial bruising because I do not believe that even she would have tolerated that and nor do I believe that the third respondent would have committed such an act in her presence. Perhaps the explanation of the fabricated social services story is that the first respondent and the third respondent did indeed delay taking A for medical attention because they were aware of and discussed the possibility of social services involvement given the severity of the facial injuries. Whether the delay was the result of a joint decision, or the third respondent placing the first respondent under pressure not to seek medical attention I am unable to discern. However I am satisfied that there was a delay in seeking medical attention that was linked to a fear of social services intervention and that the first respondent then played that card after she had taken A to the hospital in, as Ms Kaur described it, a feeble attempt to provide some protection to A.
  92. Taking all of the evidence together leads me to conclude that the third respondent is a man who is capable of serious violence. His loss of control and undisputed use of physical violence to the car on 9 July illustrate how for him the relatively modest event of a car breakdown could translate into a serious loss of control. That he was under the influence of alcohol only to a modest extent is a more rather than less worrying feature. It suggests that only relatively minor frustrating events or minor changes to his physiology can lead to loss of control. The text messages display a threatening attitude towards S and her partner. I accept that the third respondent also sent offensive texts to the first respondent and that there is evidence that he was jealous and suspicious. I accept the first respondent's evidence (corroborated in part by the third respondent's own response) that she accused him of causing trauma to A, and that he responded with a further threatening text referring to injecting A with water. The evidence in respect of his propensity to use violence is graphically illustrated by the photographs of the first respondent's injuries taken by the police after the incident on 20 March 2019. The evidence of the first respondent together with the contemporaneous or near contemporaneous evidence from the police and the kebab shop and his implausible account show that on that occasion he subjected the first respondent to a vicious beating using implements such as a tablet and a rolling pin. It is inconceivable that the first respondent would have inflicted the injuries shown in those photographs upon herself and why on earth would she, within moments of an assault by a stranger, run into a kebab shop and complained that the third respondent had assaulted her. Her evidence of the assault upon her on the 9 or 10 July is consistent with the father's behaviour on that occasion. I also accept her evidence in relation to the August and 26 November assaults upon her. All of these strands of evidence weave together to point to the conclusion that the third respondent is capable of serious violence with relatively little prompting. He has little respect for the law; within 6 weeks of being banned for 12 months he was again arrested for driving whilst disqualified, he has been in breach of bail conditions on at least two occasions that we know of. He was working long hours, he was under financial pressure, he was suspicious of the first respondent's fidelity, he was about to become a new father, he was looking after and financially supporting a 2-year-old. He has a quick temper. I conclude that this toxic combination led him to inflict serious violence not only upon the first respondent but also upon A.
  93. I am unable to determine the precise circumstances in which he came to punch, kick or forcefully push A into a wall or similar so as to fracture his ribs and scapula. I am satisfied that he caused those injuries though.
  94. The medical evidence identifies that the abdominal injuries were sustained between the 26 and 29 November. The account given by the third respondent and the first respondent of A's deteriorating health from the morning of the 27th onwards leads me to conclude that an event occurred on 26 November which resulted in him suffering those near fatal injuries. That the third respondent himself gives an account of an event on that day which he would say explains those injuries indicates that it was indeed on the evening of 26 November that A sustained those injuries. Were those injuries the result of a fall down the stairs as described by the third respondent or were they result of a punch or a kick delivered by the third respondent? The totality of the evidence leads me to the inevitable conclusion that on balance of probabilities it was the result of a punch or a kick delivered by the third respondent. I reach that conclusion because of:
  95. i) The medical evidence as to the probable causation of the injury together with the improbability of the mechanism of a fall down the stairs.

    ii) The implausibility of his account of his actions from collecting A throughout the evening until the first respondent's return.

    iii) The history of the third respondent having previously assaulted both the first respondent and A.

    iv) The pressures that the third respondent was experiencing with an imminent court date where he might face prison, financial pressure, imminent fatherhood, his anxiety about the first respondent's fidelity, the long hours he was working.

    v) This little boy's fear or wariness of the third respondent demonstrated by the first respondent's evidence and the video as well as A's demeanour in hospital whilst his mother and the third respondent were present.

    vi) The fact that the third respondent behaved aggressively to A whilst giving him his tea and later assaulted the first respondent.

  96. Although of relatively little consequence given my findings in respect of the two very serious sets of injuries I also conclude having regard to the totality of the evidence that the third respondent hit A on at least one other occasion so as to inflict bruises on him. The evidence is insufficiently clear to enable me to identify on how many occasions this may have occurred. The significant number of bruises photographed on 29 November together with the photographs taken by the parents showing a number of occasions of bruising being present satisfy me that on at least one other occasion bruising injuries were inflicted on this little boy by the third respondent.
  97. The first respondent accepts that she failed to protect A from exposure to domestic violence and that she failed to seek medical treatment for him sufficiently promptly in late October and immediately after 26 November. However I conclude that her failure to protect A goes beyond this. She was aware of the third respondent's propensity to violence, she having experienced it herself. By late October I am satisfied that she believed that he was inflicting injuries upon A as well as upon her. Whilst she cannot have been aware of the severity of the injuries that A had sustained in the form of the fractures the other injuries which she was aware of were sufficiently worrying to require her to immediately take steps to protect A. Her fictitious reference to social services and the police of itself is a sufficient demonstration of her awareness of the risk the third respondent posed to her son. By any objective measure she failed to act as a reasonable parent would. Subjectively she may be able to rely on her own fear of the third respondent and his likely reaction to her seeking to remove herself and A. Subjectively her lack of action may be explicable by her own vulnerability in terms of housing, finance and the imminent arrival of her second child. Even up until the morning of 29 November she continued to expose her son to the risk that the third respondent posed. Thereafter she did not disclose to police and social services the truth of his violence to her and her suspicions until early January. She failed to give a full account to the treating team at the hospital or the QMC; this could have had consequences. When interviewed by police she shielded the third respondent by failing to disclose his domestic violence to her and her concerns about his being violent to A. Whilst I accept that she may have been fearful that upon her release from the police station she may have been returning to a home she shared with the third respondent and that he may have discovered what she had told the police it was still an example of her putting her own interests before those of her critically ill son. She continued to conduct a liaison of sorts with the third respondent up until March. I understand to some extent the predicament she by then was in, being homeless and with limited resources she could call upon to sustain her. However as a consequence of her failure to protect A from the third respondent he suffered injuries which could have killed him. When Mr Roche submitted that the second respondent believed the full story was still not being told I believe he is right. Perhaps the guilt that the first respondent carries arising out of her failure to take steps to protect A has prevented her so far from fully recognising her failings.
  98. Conclusion

  99. I am therefore satisfied on the balance of probabilities that:
  100. i) The injuries A sustained in July 2018 were accidental.

    ii) In between October 2018 November 2018 the third respondent assaulted A on at least one occasion and inflicted bruising on him.

    iii) On or about 27 October 2018 the third respondent assaulted A by punching, kicking or pushing him against a wall fracturing 6 left ribs and his left scapula and causing serious facial bruising.

    iv) On 26 November 2018, the third respondent assaulted A by punching or kicking him in the abdominal region lacerating his liver and causing the associated damage to his mesentery which resulted in the secondary organ failures and gangrene leading to the operations on 4 and 6 December,

    v) From August 2018 onwards the first respondent failed to protect A:

    a) From the risk of serious physical injury she having good reason to believe that the third respondent was assaulting A and causing serious injuries to him.
    b) By seeking timely medical treatment for him.
    c) From significant emotional harm through exposure to domestic violence perpetrated upon her by the third respondent.
  101. The threshold criteria are therefore fulfilled. In respect of A the care plan is agreed. The only realistic option for A is to go to live with his father and I approve the proposal for a transition.
  102. The position in relation to B requires further assessment of family members and perhaps of the first respondent. That will be the subject of further consideration following the delivery of this judgment.
  103. APPENDIX A

    APPENDIX B


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