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England and Wales Family Court Decisions (other Judges)
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Cite as:  EWFC B85
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Case No. SD14C01129
IN THE FAMILY COURT
SITTING AT BRIGHTON
Sussex Family Centre
1 Edward Street
Date: Wednesday, 1 April 2015
MR RECORDER FAROOQ AHMED
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WEST SUSSEX COUNTY COUNCIL
(by his Children’s Guardian, LJ)
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Miss Rosamund Hollingsworth (Solicitor) appeared on behalf of the Applicant Local Authority
Miss Luisa Morelli (Counsel) appeared on behalf of the First Respondent mother
Miss Gemma Taylor (Counsel) appeared on behalf of the First Intervener, mother’s partner
MH, the Second Intervener appeared in person
Miss Sarah Taite (Counsel) appeared on behalf of the Second Respondent child
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.
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MR RECORDER FAROOQ AHMED:
Summary of the main findings
1. The section 31 criteria are satisfied in respect of K.
2. The only individuals in respect of whom there is a real possibility that they caused physical injuries to K are S and L.
3. There is no real possibility that M caused any harm to K.
4. The old bruise to the forehead was caused accidentally – Injury 1.
5. No findings can be made about the cause of the blood in the ear and no findings are sought or made – Injury 2.
6. In respect of the possible small bruise to the ear pinna, no findings are sought or made – Injury 3.
7. The facial bruising in Injury 4 and Injury 5 was self-inflicted by K by coming into contact with the tray of his high chair.
8. Although the court is deeply suspicious about the bruising and cut to K’s genitals, the mother and L having lied about the circumstances, it is not able to make a finding as to whether these were inflicted or accidental injuries. They therefore remain unexplained.
9. The fractured clavicle (collar bone) is an injury which was inflicted in a loss of temper – Injury 6.
10. The clavicle fracture was inflicted by either S or L, but it is not possible to determine which one of them caused it.
11. There is no finding that the mother culpably failed to protect K from L, nor that he failed culpably to protect K from her.
12. Both the mother and L shared the care of K. The mother and L each failed to provide reasonable care to K in that they avoidably left him for extended periods in his high chair. This resulted in him being frustrated and banging his head, causing him injury. He was thereby also placed at risk of emotional harm.
13. There is no finding that either the mother or L delayed in seeking medical treatment for the fracture.
14. The person who did not inflict the fracture injury did not notice or did not recognise that there was something wrong with K despite the symptoms being there to be seen.
15. The pulling out of his own hair by K cannot be attributed to an unreasonable level of care from either the mother or L.
16. The shaving of K’s head hair was believed by the mother and L to have been advised by the doctor. It was not unreasonable care and the resulting scratch to the back of the head did not amount to significant harm.
17. The mother and L exposed K to domestic abuse and caused him or placed him at risk of significant emotional harm.
18. I am concerned with K, who is a child aged 18 months.. He is accommodated with his maternal grandmother, , with his mother's agreement under s20 of the Children Act 1989 (CA89). This is a fact finding hearing primarily to investigate various injuries to K, seen when he was about 12 months old, to consider whether they are inflicted injuries and if so whether the court is able to determine who caused them.
19. The mother is S. She is aged 19 years.
20. The putative father of K is J. He has, however, denied that he is the father (F76) and has played no part in the proceedings.
21. The mother's former partner is L. They were effectively living together at the relevant times and shared the care of K. L was therefore invited to intervene in these proceedings and has done so.
22. K's present social worker is HS. His Children's Guardian is LJ.
23. There was an application at the start of the fact finding hearing for an adjournment. All advocates agreed amongst themselves that the case could not proceed. However, I did not agree with them. It was very late in the morning and two doctors were due to give evidence that afternoon and needed to be completed that day. I was of the view that owing to the shortness of time, the decision on whether to adjourn the hearing could wait until after their evidence had been given. If I then decided that the case could not proceed because the application for an adjournment had turned out to be well-founded, the case could start afresh, with transcripts of the doctors’ evidence being obtained with the doctors being called again, if necessary. There would have been nothing wrong with that course, even if it meant a change of advocates and judge. However, I was astonished that there was consternation to the extent that the advocates interrupted my Judgment to object to my decision to hear the doctors before deciding whether to adjourn the hearing. That interruption was not appropriate. The delivery of judgments must not be interrupted in that way and particularly not to express disagreement. It was conduct which fell short of what the court is entitled to expect from advocates.
24. I gave a detailed judgment setting out my reasons for refusing the adjournment. Miss Taylor had wanted the case to be adjourned because L had to have things explained to him very carefully and she needed to go through a large number of papers with him and to be reminded of what was said in them. I considered that that was not necessary. Further, a large bundle of text message transcripts had just been produced by the local authority and Miss Taylor and other counsel wanted time to go through that. I took the view that an adjournment could not be justified because of the inordinate delay that would result and that counsel could and would have to manage, especially as the texts were sent and received by their lay clients, and the local authority had indicated which ones they relied upon.
25. The more substantive reason for the adjournment application was that M, who was an intervener, was not legally represented. No counsel appeared to have considered whether she should still be in the pool of potential perpetrators, having regard to the evidence now filed. Such matters must be kept under review by the parties’ legal advisers as new evidence is received.
26. M babysat for a couple of hours within the window for the clavicle fracture and was therefore invited to intervene. However, having reviewed the evidence on paper, I removed her from the pool of possible perpetrators on the first day of this hearing as there was no real possibility that she had caused any injury. In a detailed judgment, I observed that the only reason for her to have been included in the pool was mere opportunity, which was something less than a real possibility. I was of the view that there had to be something more than mere opportunity for the possibility to be a real possibility. In any case, there there were positive factors pointing away from her being responsible for the fracture. She was not in the pool for any other injury in any event. She gave evidence on the first day of this hearing and was allowed to leave. No party took the opportunity in cross-examination to suggest that she had caused any of the injuries because that was not the case of any party. There is no real possibility that she caused any injury to K. The only people who are in the pool of potential perpetrators of the injuries to K are his mother and L.
The hearing and evidence received
27. The hearing took place over a period of 7 days from 16 March 2015, with one of those days being for submissions and today for delivery of this Judgment.
28. I heard oral evidence from the following witnesses:
a. Dr Nigel Davies – consultant radiologist
b. Dr Michaela Gallen – medical doctor
c. Dr Pauline Shute – consultant paediatrician
d. Dr Karl Johnson – consultant paediatric radiologist
e. Dr Venkata Vitta – general medical practitioner
f. AB – social worker
g. S – the mother
h. L – mother’s former partner
29. I have read and taken into account all of the relevant material in the index of documents. I have taken account of the written and oral evidence and the submissions by each party, including the authorities that the advocates helpfully cited.
Dates of issue of care proceedings, the threshold criteria and significant harm
30. The 26 week period expires on 30 April 2015, care proceedings having been issued on 23 October 2014. That latter date is the relevant date for establishing when the s31 Children Act 1989 threshold criteria are met in respect of each child. However, I am entitled to rely upon events prior to those dates and also on information acquired subsequently which is capable of proving the state of affairs when the proceedings began, in accordance with the principles set out in Re G (Children) (Care Order: Evidence of Threshold Conditions)  2 FLR 1111.
31. I must be satisfied that the s31 criteria are satisfied before I can consider making any public law orders. I am so satisfied.
The position of the parties
32. The local authority set out the findings it sought in its schedule dated 9 March 2015 and amended on 20 February 2012. It now seeks the findings set out in the schedule dated 24 March 2015. The mother and L each deny causing any injury. The Children’s Guardian has taken an essentially neutral position.
The burden and standard of proof
33. In relation to factual allegations, the burden of proof lies on the party making those allegations, namely the applicant local authority.
34. I must decide disputed issues of fact by applying the civil standard of proof. Neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof applied. A disputed allegation only becomes a proven fact if it is more probable than not that the disputed event occurred. Re B  UKHL 35.
35. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. As Charles J observed in A County Council v K D & L  EWHC 144 (Fam) at paragraph 49:
“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”
36. Determining the facts is a difficult task which must be performed without prejudice or preconceived ideas. The court is guided by many things including the apparent probabilities, any contemporaneous documentation records, any circumstantial evidence tending to support one account rather than the other and the overall impression made by the witnesses.
37. The evidence of the parents and any other carers is of great importance. It is essential that the court forms a clear assessment of their credibility and reliability.
38. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas  QB 720).
39. In Re D,  EWCA Civ 472 the Court of Appeal referred to the case of Re K (Non-Accidental Injuries: Perpetrator: New Evidence)  EWCA Civ 1181 and in particular to paragraph 11:
“11. We do not resile from the propositions stated by this court in paragraphs 55 and 56 of its judgment in Re K:
 As a general proposition we think that it is in the public interest for those who cause serious non-accidental injuries to children to be identified, wherever such identification is possible. It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred. Any process, which encourages or facilitates frankness is, accordingly, in our view to be welcomed in principle.
 As a second background proposition, we are also of the view that it is in the public interest that children have the right, as they grow into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.
‘The crucial phrases in the two paragraphs we have cited from Re K, however, are “wherever such identification is possible” and “if the truth can be ascertained”. Nothing in Re B, in our judgment, requires the court to identify an individual as the perpetrator of non-accidental injuries to a child, simply because the standard of proof for such an identification is the balance of probabilities. If such an identification is not possible – because, for example, a judge remains genuinely uncertain at the end of a fact finding hearing, and cannot find on the balance of probabilities that A rather than B caused the injuries to the child, but that neither A nor B can be excluded as a perpetrator - it is the duty of the judge to state that as his or her conclusion. To put the matter another way, judges should not, as a result of the decision in Re B, and the fact that it supersedes Re H, strain to identify the perpetrator of non-accidental injuries to children. If an individual perpetrator can be properly identified on the balance of probabilities, then for the reasons given in Re K it is the judge’s duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification. There will inevitably be cases - of which this, in our judgment, is one – where the only conclusion which the court can properly reach is that one of the two parents – or both - must have inflicted the injuries, and that neither can be excluded.
There do remain some cases in which the evidence is not sufficient or clear enough to allow the court on the balance of probabilities to exclude one parent, or positively identify the other as the perpetrator. In those situations, there is a danger to be avoided, of making findings based on speculation rather than on sufficiently substantial evidence.”
40. Any findings of fact which I make must be based on evidence. These may include inferences that can properly be drawn from the evidence, but they must not be based on suspicion or speculation. I am entitled to take into account admissions made by each parent, whether made in statements or through their legal representatives.
41. I must take into account the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to a conclusion as to whether the case put forward by the local authority has been made out to the appropriate standard of proof. Evidence should not be compartmentalised.
42. In Re M  EWCA Civ 1580, it was held that the absence of a satisfactory explanation from the parents for an injury did not lead to the conclusion that there must be a malevolent explanation. The burden of proof should not be reversed. The parents are not required to satisfy the court that an injury was not an inflicted injury. It is for the local authority to satisfy the court on a balance of probability that it was an inflicted injury and not an accidental or otherwise benign one.
43. I must consider whether it has been proved by the local authority that it is more probable than not that the injuries were inflicted. If so, I must examine the evidence to see whether it is possible to identify the perpetrator of these inflicted injuries, applying the test of the balance of probabilities and the principles set out in the case of Re S-B (Children)  UKSC 17,  1 FLR 1161, and in North Yorkshire County Council v SA  EWCA Civ 839.
44. If the court cannot positively identify a specific perpetrator, or perpetrators, it has to ask itself whether there is a real possibility that a particular person was involved in the causation of the injuries. If there is such a real possibility, that person should be identified as remaining within the pool of possible perpetrators. If there is no such real possibility, that person should be excluded from that pool.
45. Where experts identify that something is possible but unlikely, that unlikely possibility still needs to be considered with care since, on marriage with other evidence, it might become a probability.
46. In Re R (Care Proceedings: Causation)  EWHC 1715 Fam., Hedley J observed:
“There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown…”
47. In Re U (serious injury: standard of proof)  EWCA Civ 567 it was said that the cause of an injury or episode that cannot be explained scientifically remains equivocal and the court must always be on guard against the over-dogmatic expert. Here, that is said to include Dr Shute.
The events leading to the care proceedings
48. On 3 September 2014, K (then almost a year old) was taken to his GP, Dr Vitta, by his mother and L owing to concerns that K had bruising and a cut or split to the underside of his penis. When seen again on 8 September 2014, Dr Vitta was concerned about the bruising and also about K’s general appearance, which had deteriorated. He referred K for a paediatric assessment at the hospital. Dr Anna Mathew, a consultant paediatrician, examined K and found him to have a number of bruises. These were to his ear, left cheek, right cheek, penis and scrotum. He had old crusted blood coming from his ear and a bony swelling to his right clavicle (collar bone), which was fractured. Dr Mathew considered the unexplained bruising to be suggestive of non-accidental injury and the unexplained fracture to be likely to be a non-accidental injury.
49. K remained in hospital until 12 September 2014 when he was discharged into the care of the maternal grandmother, with the mother’s consent under s20 CA89. The local authority duly issued care proceedings on 23 October 2014.
50. The initial hearing was on 11 November 2014. The instruction of Dr Karl Johnson was approved to provide paediatric radiological evidence. L was invited to intervene.
51. On 12 December 2014, Mr Recorder Pollard listed the matter for a fact finding hearing.
52. At a review hearing on 29 January 2015, I approved the invitation to M to intervene and for Dr Shute to provide an addendum report. I gave permission for Dr Taylor to be instructed to provide a cognitive assessment of L. The resulting report sets out at E52 advice on how to facilitate his proper participation in the proceedings and to obtain the best evidence from him to take account of his memory limitations, poor concentration and his limited vocabulary and verbal comprehension. I found L to have very little difficulty in following the questions. I consider that he was able to give the evidence which he wished to give, as was the mother. There were a couple of occasions when he started to have difficulties and the court therefore rose to allow him a break.
The schedule of findings sought by the local authority
53. These are set out in a final document dated 24 March 2015, which was produced after the evidence had been completed so as to take account of the evidence. It added allegations of inadequate supervision and neglectful and reckless parenting. It repeated an allegation of failure to protect, made in the amended schedule of findings sought dated 9 March 2015. Allegations should not normally be added after the evidence is complete, but here is no prejudice to any of the respondents arising from the late inclusion of the supervision and neglect allegations because such allegations naturally flow from the accounts given by the mother and L. Those accounts include that K hit his face on the high chair tray and when falling from the sofa.
54. The local authority has listed the injuries found as follows:
Injury 1: Small old bruise left forehead above right eyebrow.
Injury 2: Old crusted blood visible over left tragus and coming from left external ear.
Injury 3: Possible small bruise upper aspect of left pinna.
Injury 4: Linear bruise over left cheek.
Injury 5: Small scratch/bruise right cheek below right eye.
Injury 6: Fracture of the lateral third of the right clavicle.
Injury 7: Small bruise dorsal aspect of penis.
Injury 8: Bruise over left scrotum extending just onto the perineal body
55. In coming to conclusions about the injuries and how they were caused, I have considered them separately in turn and then looked at them as a whole with all of the evidence to see whether that makes any injury more or less likely to have been inflicted.
56. No party seeks a finding in respect of the ear and I do not make any finding. In oral evidence, Dr Nigel Davies raised a mere possibility that the ear drum had a hole in it (perforation of tympanic membrane). He said that he was just raising a hypothesis. He added that what could be seen in the middle ear could be just inflammation.
57. Dr Michaela Gallen could see blood at the ear drum. She thought that it could be trauma to the ear itself, perforation of the ear drum or a middle ear infection, especially as K was pulling at his ear.
58. That evidence indicates various medical explanations for the blood in the ear. I cannot say whether one is more likely than another. I am therefore unable to make a finding that it was or was not an inflicted injury, even taking into account the findings that I do make in respect of other injuries.
The injury to the penis and scrotum
59. The mother and L took K to see their GP, Dr Venkata Vitta, on 3 September 2014. H291. Dr Vitta says in his police statement, dated 23 December 2014, that the mother had noted a bruise-like discolouration about 3 to 4 mm in size on the top of the shaft of the penis with a small split in the skin on the underside of the penis. She told the doctor that it was not there when he woke up that morning and she noted it about three hours later. She also mentioned that K was a bit grumpy that day. Dr Vitta advised her to treat K with antibiotic cream on the penis and to come back for review on 8 September 2014. Dr Vitta was unable to remember whether Lspoke at all.
60. In paragraph 4 of her statement dated 19 December 2014 (C59c), the mother says that on 3 September 2014 she got up with K at around 6 am and changed his nappy. She said that she changed his nappy again when she woke at around 9 am. She was wiping his bottom and around his penis when she noticed that was a bruise and slight swelling to his penis on the top and a slight cut underneath about 1 cm long. It looked red and sore and therefore she took K to the doctor. She states again in the same statement, at C59f, that the bruise was not there at 6 am, but that she did notice it at around 9 am that morning and took him straight to the doctors.
61. The mother’s case subsequently became that she had been in the bathroom when L called her out to show her the bruising. She took a photograph of it (H306), sent it to her mother for advice and then went to the doctor. L said in oral evidence that he had not known until his December police interview that the mother had taken a photograph of the genital area and that he saw it for the first time at the interview.
62. L signed his statement on 5 January 2015. C63. At C61, he says that he believes that he was changing K’s nappy and that he was the one who first noticed the bruising and cut to his penis. He thinks that the mother was tidying the flat and says it was not unusual for him to help change K's nappy if the mother was in the middle of doing something. That is different from his saying that he did not feel comfortable changing the nappy without the mother being there, which he said later. He said in oral evidence that the last time that he had seen K’s penis before 3 September 2014 had been the evening before when mother changed his nappy.
63. In oral evidence, the mother confirmed that on 3 September 2014 she got up with K and after she had a bath, L called her in to the lounge to show her the penis and bruising. She said that she was upset, took a picture of it and sent it to maternal grandmother and then phoned the GP. She said she was worried and upset as she had never seen this before. She described K as being a bit restless for a few days before this. She also confirmed that K wore a nappy all the time.
64. L stated in oral evidence that the mother had been in the bathroom for about 15 minutes. She came into the room and he saw the penis and said “come and look at this.” He said that he had not started changing K’s nappy and that he would not do it unless she was in the room. He had changed the nappy a few times. He did not do it correctly the first time, but he had no problems after that.
65. When Dr Vitta examined K again on 8 September 2014, the bruise on the penis had started to get better and had reduced in size. The split in the penis had healed. He noted that K looked grumpy, that he did not look happy and that he had a haggard look. K's face appeared drawn. The mother told Dr Vitta that K was pulling his ears and was not eating or drinking very well.
66. Dr Vitta was concerned about the bruises and K's general appearance and referred him to the hospital.
67. The history of his attendances at the surgery is that he was seen on 21 August 2014 in relation to pulling his hair out from the top of his head, he having attended at Accident and Emergency (E10). Prior to that he was seen on 16 May 2014 with an infection. Other visits appear to have been routine.
68. In oral evidence, Dr Vitta was shown a photograph of the penis (H73), taken by the mother at about 11 am on 3 September 2014. He could not recall having seen the photograph before. He thought that the bruising looked much bigger in the picture, but that it was difficult to say whether it was the same as what he had seen on the day. He said that there was no difference between the description being of a split or a cut. It was not a scratch as it was deeper. Dr Vitta was very clear that the diagnosis was that it was a bruise that he saw. He said that it was settling by 8 September 2014, so that made it more likely to be a bruise than a simple mark on the skin. He did not agree that the bruise could fade away in six hours as that was too short a time. He thought that the photograph may have been a day or two old by 3 September 2014. He was clear that it was too short a time for the bruise to be as big as it was and to have shrunk that morning.
69. Dr Vitta did not remember noticing any restriction of movement in K on 3 or 8 September 2014, but it appears that he may not have seen K fully undressed. He did not notice the multiple bruises, nor any swelling around the collar bone. He indicated that he may have seen swelling, but not documented it. He said that it was likely that the split would cause any swelling of the penis, rather than swelling cause the split. He could not recall examining the whole of K’s body on 8 September 2014. He said that if he had seen dry blood in the ear, he would have noted it. I note that as at 22 August 2014 K was crawling, but able to walk holding an adult’s hand (F25).
70. Dr Vitta said that someone pinching the penis and sharp nails could have caused the cut and the bruising. He said that he was not an expert on bruises and had never seen such a thing before. He was unable to think of an innocent explanation for the cut and the bruising to the penis and scrotum.
71. Dr Vitta confirmed there was no infection and the cream had been prescribed as a precaution to prevent infection, given where the site of the cut was.
72. A section 47 enquiry had been commenced on 22 August 2014 owing to concerns about possible domestic violence and drug use in the mother’s household with L. F24. She had been living with him since about late May 2014 (F26). The social worker, AB, saw the mother, L and K’s genitals on 4 September 2014 (C41). That was the day after they first saw the injury to the penis. The mother told AB that she had changed K's nappy on the morning of 3 September 2014 and had not noticed anything. Later in the morning, L had noticed swelling and a small cut. He had told the mother, and she contacted her own mother and her doctor. The mother showed the photograph to AB, who thought that it had clearly improved from the picture taken the day before. C42. L said in oral evidence that he had been out of the room and did not see the photograph.
73. L was asked in police interview to show his fingernails. It is recorded in the transcript that they were seen to be quite short. However, L said that he did get sharp edges on the fingernails. He added, “… obviously I wipe him and it could’ve done. You know, I'm not saying it can't or – because it could of, but I'm not aware of it happening." H182. The mother declined to show her fingernails during her police interview.
74. L also suggested in police interview, at H181, that K may have twisted himself so much around so much in his high chair that he hurt his genital area.
75. Dr Shute was invited to consider the photograph of K’s penis as taken by the mother on 3 September 2014. She stated that bruises with medical causes are usually less discrete. She did not consider that it looked like an infection and she found it difficult to think of other medical causes for such a discrete injury.
76. Dr Shute relies on evidence from the Welsh Systematic Review Group, which she says suggests that bruises to the face and soft parts of the body are more commonly seen in abused children than non-abused children. She further says that it is recognised that infants who are mobile commonly sustain bruises to bony prominences. She says of injuries 4 and 5 (the facial bruising) that these are uncommon sites for accidental injuries and in her opinion on the balance of probability are non-accidental injuries (E15). She further relies in her 3 October 2014 report upon the absence of an explanation and upon there being no organic or medical cause. E16.
Analysis and findings in respect of the penis injury
77. I find that K sustained an unexplained injury to his genital area, which may have been accidental or inflicted. I am deeply suspicious that it was an inflicted injury, but I cannot so find on the evidence. The injury was bruising to the penis and scrotum and a 3 to 4 mm cut to the underside of the penis. It is seen in the photograph which was taken on 3 September 2014. I find it very unlikely that L was not aware of the photograph until December 2014. It is likely that he and the mother would have talked for some time about the bruise and cut and what they were going to do about it.
78. I am unable to say precisely when the injury was sustained, but that it is likely to have been on the morning of 3 September 2014. There is no medical evidence to date the injury, but the responses of the mother and L are consistent with the bruising have been first seen on that morning.
79. Before coming to conclusions, I have taken into account that the mother and L were appropriately concerned, that they immediately sought medical attention and that K was much loved by them.
80. The evidence from the mother and L relating to what was seen on the penis and scrotum is murky and unsatisfactory. I find that neither the mother nor L has told me the whole truth about what happened to K’s genitals.
81. I remind myself in accordance with R v Lucas that a person is not guilty merely because they have lied, as I find that they have deliberately done. I am therefore entitled to consider whether this supports the case against each of them. I must consider why each of them lied. There can be many reasons, and they may possibly be innocent ones in the sense that they do not mean guilt. If I think that there is, or may be, an innocent explanation for his lies then I should take no notice of them. It is only if I am satisfied on a balance of probability that each of them did not lie for an innocent reason that their lies can be regarded as evidence supporting the case against them.
82. The mother lied in her first statement in these proceedings, she lied to the doctor and to the police in a prepared statement that it had been her who had first noticed the bruising to the genital area. Her reason for doing so was because she “thought it would look bad for L if he was the one to have discovered the bruising.” That was an attempt to mislead investigating professionals in order to protect L.
83. I reject L’s evidence that he would not change K’s nappy unless the mother was in the room. I find that he did not tell me the truth about that. There was no reason for him not to change the nappy at any time. He had had no problems in changing the nappy after the first time. There was no reason for the mother having to be there when he changed a nappy. He said in his own evidence that it was not unusual for him to help change K's nappy if the mother was in the middle of doing something. It is an obvious inference that he would be changing the nappy himself because the mother was not able to do it, she being otherwise occupied. I find that there were many occasions when L changed the nappy when on his own, as did the mother.
84. There is a diagnosis by Dr Vitta that this was a bruise. Neither Dr Vitta, nor Dr Shute gave a direct opinion on how much force would be required to cause such a bruise. However, Dr Vitta said that if someone had pinched the penis, it may have caused the bruise by bursting a small vein. Dr Vitta is not an expert on bruising, but I find that a general medical practitioner, and Dr Vitta in particular, is sufficiently qualified to identify whether something is or is not a bruise. In any event, Dr Shute confirmed on being shown the photograph that it did not look like an infection and that it looked like a bruise. She found it difficult to think of medical causes for such a discrete injury. I note that it is in a protected area, especially as K always wore a nappy. There is no evidence that the injury could have occurred as a result of moving about in the high chair. That is no more than speculation by L. Dr Vitta's opinion, after some soul searching was that someone pinching and with sharp nails could have caused what he saw. He was unable to think of any innocent explanation. I note that L said in interview with the police that he had sharp nails and that he could have done it accidentally. The mother did not show her fingernails in interview.
85. Dr Shute’s evidence should be treated with a degree of caution. Dr Shute was not a jointly instructed witness as she had been instructed by the police and the local authority to prepare an overview report. However, both the mother and L were of the view and agreed at the directions hearing on 28 January 2015 that Dr Shute could provide the paediatric overview (B82). That was after she had provided the October 2014 report for which Miss Taylor now criticises her. However, Miss Taylor did not represent L at that hearing and she makes some valid observations, which I take into account.
86. Dr Shute accepted during cross examination that she did not have an account from the mother or L when she made her observations as to non-accidental injury and accepted that she had quickly jumped to conclusions of non-accidental injury without knowing what the mother had said. She accepted she should have taken mother’s account from her police interview when considering her opinion. However, she had the explanations by the time that she gave her evidence. I also note that Mr Recorder Pollard’s order of 12 December 2014 made provision for the statements of the mother and L to be disclosed to Dr Shute. The order was not strictly required. All relevant documents could and should have been sent to Dr Shute.
87. Dr Shute relies upon the absence of explanation for the injuries, including the penis area, the lack of an organic or medical cause, and upon their being in uncommon sites for accidental injuries for her conclusion that they are non-accidental injuries.
88. Despite considering carefully all the evidence, I cannot say, even on a balance of probability how this injury was caused. I cannot say that it was probably inflicted deliberately because there is insufficient evidence to support such a finding. The injury remains unexplained. I cannot say, on the evidence, that it probably was or was not the result of an accidental movement of the hand, nor even that it was or was not caused by inadvertent roughness, all of which may be possible explanations. Even if this injury was inflicted deliberately, I am not able to say which of the two adults who had care of K inflicted it. Those adults are the mother and L. My reasons for not being able to identify a particular person as the perpetrator are the same as those in respect of the clavicle injury.
Hair pulling by K
89. K was presented at hospital on 20 August 2014 with a history of hair pulling for the previous 4 weeks. He had a large bald patch on his head where the hair had been pulled out. E12. Dr Shute said that hair pulling can be a self-comforting behaviour in young children, but that its being to the extent of causing a bald patch in such a young child may well be indicative of distress. In oral evidence, Dr Shute said that it is often a sign of stress. Children pulling their hair out to the extent of making themselves bald was quite unusual. There was very poor research on hair pulling; it was just a concern that there was hair pulling. Dr Shute said that the evidence was quite weak, but that it was possibly part of a pattern.
Findings in respect of hair pulling
90. I find that when K was taken to hospital on 20 August 2014, he had been pulling his hair for the previous 4 weeks. That he was taken for medical investigation is likely to mean that his mother and L were concerned about it. It may or may not be the result of stress. There was certainly a high level of stress in that household, at least at times. I do not consider that the medical evidence quite makes the causal connection between the hair pulling and stress. The hair pulling does not satisfy the threshold criteria. I have found below that the domestic abuse is likely to have caused or would be likely to cause K significant emotional harm, so a finding adverse to the carers about the hair pulling would having added little in any event.
91. No obvious cause was found for K pulling out his hair. Medical advice given to his mother was to cut his hair short and to use mittens and try to deviate K from pulling his hair out. The mother says she was advised to cut or shave the head. The mother told me in oral evidence that she was worried about the hair pulling and that K was getting little bald patches. She said that she tried scissors, but that that did not work. It was easier for L to use clippers. She told me that she was really upset about cutting his hair which was long, blonde and curly. I have seen pictures of K with his hair and he is obviously a very handsome little boy. Not surprisingly, she said that it was not an easy thing to do. When the clippers went on, K cried and she tried to comfort him. It was upsetting for her to see him like that. It took about 10 to 15 minutes for him to calm down. L said in his police interview that K had been distressed at level 10 on a scale of 1 to 10 (H143). The mother said in oral evidence that he reacted badly to the vibrations and that he was twisting away from the clippers.
Findings in respect of the head shaving
92. I accept the evidence of the mother and L on this issue. At F45-F46, it is recorded that the mother told social workers on 22 August 2014 that she had been advised by the doctor to shave K’s head or to put gloves on him. That was before the concerns about injuries. It is unlikely that the mother would have lied about the advice to shave the head because no-one was criticising her then for it and she appears to have volunteered the information to the social workers. I am satisfied that she believed that she had been advised to shave the head, whether or not she was actually advised to do that.
93. I do not consider that the mother and L caused or were likely to cause K significant harm by shaving his head. The scratch to the head is minor and accidental, probably caused by not being careful enough with the clippers. That is not something that I should criticise the mother or L for because K was struggling as they were using the clippers and doing their best, as any reasonable parent would do. There is a photograph of the scratch to the head at H75.
94. The distress to him was considerable. However, the normal and necessary care of children can involve distress. Some show distress because they do not want to take unpleasant medicine. Others show distress when their hair is washed because they do not like the water going over their head. This was a 12 month old baby crying because he did not like the noise of the clippers and perhaps the feeling of them going over his head. However, his mother and L were doing what they reasonably thought was in his interests to stop him from pulling out his hair. The head shaving does not satisfy the threshold criteria.
The clavicle fracture
95. Dr Anna Mathew, consultant paediatrician, found a bony swelling of the right clavicle when she examined K at 3 pm on 8 September 2014. E8.
96. X-ray films were taken of K’s right clavicle on 8 September 2014. Further x-ray films were taken as part of a full skeletal survey on 9 September 2014. The right clavicle was again included in x-rays taken on 24 September 2014. E18.
97. Dr Nigel Davies is a consultant radiologist and was part of the medical team dealing with K when he was admitted to hospital on 8 September 2014. He reviewed the skeletal survey dated 9 September 2014 and concluded that there was a right mid-clavicular fracture. G79-81. He also gave oral evidence to that effect. There is no dispute the clavicle had sustained a fracture.
98. Dr Karl Johnson is a well known consultant paediatric radiologist who was instructed jointly by the parties and has provided written and oral evidence. He also concluded that there was a fracture of the right clavicle. E18. He found normal bone density and no evidence of metabolic bone disease. These appearances indicated that from a radiological perspective, K was at no increased risk of fracturing compared with any child of his age.
99. Dr Johnson indicated that the dating of fractures from the x-ray appearances is difficult, imprecise and subjective and is an approximation. However, he was very clear the fracture was no older than 11 days on 9 September 2014. He explained this by saying that there was no evidence of any bone healing around the fracture site. He said that evidence of bone healing typically starts to appear after 5 to 11 days. It was the absence of any healing response that indicated to Dr Johnson the fracture was no older than 11 days of age on 9 September 2014. He was pressed on the point by Miss Taylor. He replied that if there was a very clear account of an incident beyond 11 days by one or two days he could consider that. However there was not. He would not say that the fracture occurred two weeks earlier. He did not believe that this fracture was two weeks old. He said, "… by 11 days you start to see a healing response. Not beyond that. 11 days to 14 days is 25 per cent.”
100. As to mechanism, Dr Johnson said that a fractured clavicle is the result of significant forces applied to the bone. The amount of force required was unknown but in Dr Johnson's opinion it was significant, excessive and greater than that used in the normal care and handling of a child. He said that a fractured clavicle does not occur from normal domestic handling or rough inexperienced parenting. E18. At E20, Dr Johnson says that the fracture could result from a blow or impact around the clavicle, a fall on to an outstretched arm or from a pulling or yanking force. In oral evidence, Dr Johnson confirmed that significant force was required and that a fracture could result from a direct fall on to the collar bone or if force were transmitted along the arm. He gave examples, including a direct blow, falling and hitting a hard surface or squeezing of the collar bone. He said that one could not infer anything about mechanism from the position of the fracture.
101. Dr Johnson was clear that the fall from the sofa could not be the event which had caused this fracture as it was outside the possible window. That window was 11 days and at a stretch Dr Johnson would consider 12 or 13 days, but definitely not 14 days. The mother said that the sofa incident was about 3 weeks before 8 September 2014 (C59f). In oral evidence, she said that it could have been before the end of July 2014. L said in oral evidence that it was about a month before the head shaving (which was on 20 August 2014). That would place the sofa fall in July, well outside the 11 day window given by Dr Johnson. That makes discussion of 11, 12 or 13 days somewhat academic.
102. Dr Johnson said that at the time the fracture occurred, he would expect K to be in pain and show signs of distress. This initial distress would last some moments. Following this initial distress, the signs and symptoms relating to the fracture could be variable. It is important to note that he was clear that he would defer to the paediatrician in all respects of clinical presentation. For that reason, I prefer the evidence of Dr Shute as to how long and the degree to which he would be in distress after the event which caused the fracture.
103. Dr Johnson says at E19 that it is possible for a mobile child who is walking or climbing and then falls over, using their arm to break the fall or who falls and impacts around the shoulder, to suffer a clavicle fracture. He added that clavicle fractures are not uncommon in independently mobile children as a result of an accidental event. Dr Johnson considered that if K had sufficient mobility and level of development to be able to self inflict this injury, it could be possible that the fracture occurred from an accidental event. He did not believe that it was possible for a child who was not yet walking to self inflict this injury unless they suffered some unusual or traumatic event. Dr Shute agreed with that opinion. Dr Johnson considered the absence of any history of such an event raised the suspicion of its being an inflicted injury, that suspicion being increased if the child was not yet mobile. E19.
104. Dr Shute was asked further questions following Dr Johnson's report. E87. She confirmed that at the time of admission on 8 September 2014, K was not yet walking independently, except in a baby walker. Three months later, he was described as cruising but still not yet walking independently. Dr Shute's view was that K was not sufficiently mobile to self-inflict this injury from an unwitnessed accidental event. E87. In oral evidence she added that his level of mobility was highly unlikely to result in a fracture. She said that there was always the possibility of a freak accident, but a fracture of the clavicle would require a degree of force. Dr Shute was at a loss to see how cruising around furniture by K could cause the fracture, unless he fell from a considerable height. Even then, a child would usually break their arm.
105. Dr Shute said in her written report that fractures of the clavicle in children usually caused severe pain and distress at the time of the event. This would gradually settle probably over the next 24 hours and would be likely to continue to cause discomfort for some days. This discomfort would be aggravated when K was handled and particularly by any handling or manipulation of the right arm, for example, dressing. It was probable that immediately following the injury to some days after, he would have been protecting himself from pain by not using his right arm. At the time of admission there was a clear bony prominence and it was likely that this would have been visible at the time of the injury. E87. In Dr Shute’s view, it would have been immediately apparent that K was in pain and distress, indicating that injury had occurred. Even if the carer had not witnessed the event, they would be likely to notice that the child was in distress and not using his right arm. The signs of discomfort when handled, relative lack of mobility of the arm and a visible deformity of the clavicle would be noticeable for some days after the event.
106. In her oral evidence, Dr Shute refined her evidence as to the expected presentation of K after the event which caused the fracture. She would expect acute distress for a short period of time of several hours, then settle down over 24 hours and then discomfort for a few days. She said, “Whenever you try to move that arm the child would be very distressed. When you pick the child up they would start to cry. A carer would think that there was something wrong, not teething. This would last for several days until the fracture settled down.” Dr Shute thought that a crawling baby would show distress. The nurses at the hospital noticed on 10 September 2014 when K was playing that he would not lift up his right arm. G182.
107. The mother told the Guardian that she was unable to think of a time when she felt that K may have been in pain, having fractured his clavicle. C22. The mother referred to the incident approximately 3 weeks prior to 8 September 2014 when K had fallen off the sofa. She recalled that he did cry and scream, but was comforted and she did not think that he had hurt himself badly. C59f. The mother said that that fall led to the bruise in the photograph that she took of K’s face. She added that she saw him pull himself up and falling over, but that he did not mark his face when he did that.
108. The mother said at C67/7 that she had not been present when K had fallen off the sofa as she was washing up in the kitchen. She said L had told her K had fallen on his face. K had been really crying, he had never cried like that before and she had never seen him so upset. She struggled to get him to sleep that night and he did have a disturbed night. However she conceded this incident was outside the time frame given by professionals (C67) and in oral evidence she agreed the fracture was a non-accidental injury.
109. In oral evidence, the mother said K had been his normal self in the days before admission to hospital and had been crawling. She did not notice any difference in his actions. She had not noticed him lifting one arm more than the other and had not noticed any swelling or lump. She said that K had a bath every day.
110. L invited the court to consider that K had fallen off the sofa a few weeks before the admission to hospital and that he had put his arms out to break the fall. K was distressed immediately but easily comforted (C62).
111. L stated that K had never been in pain the week before and had never woken up holding his arm or screaming in pain because of it (H177). He says that he was in the hallway when K fell off the sofa. The mother had been selecting a programme on the television and K threw himself off the sofa (H139).
112. L conceded in oral evidence that the sofa incident happened about a month before the hair shaving, which was on 20 August 2014. He stated he put K on the sofa whilst the mother was putting a children’s television programme on. He said that he was walking out of the room when K fell whilst L had his back to him.
113. L described very strong feelings for K, stating he made him feel worth something. If he was ever upset he would hug and kiss K.
114. In oral evidence the mother said that L sometimes dressed and undressed K. She said that she gave him a bath every day in the morning and had a very good opportunity to look at him but did not see the prominent bump. She bathed him the night before she took him to hospital. She did not notice that as she lifted his arm every day that there was any lump or discomfort. She said that he always used one arm more than the other. By 11 September 2014, he was seen to be using the arms symmetrically. G126.
Analysis and findings in respect of the clavicle fracture
115. It is not disputed that there was a fracture of the clavicle as it is there to be seen on the x-rays. I find that the clavicle fracture was an inflicted injury. It occurred between 29 August and 9 September 2014. That window is based on well-established medical knowledge about when bone healing occurs. That is a period of 11 days. Relying upon the evidence of Dr Johnson, whichever approximate given date one takes for the sofa fall, it is outside the window of possibility. The clavicle fracture was not caused by the sofa fall.
116. This kind of fracture can happen accidentally. I accept the evidence of Dr Johnson that the fracture was caused by significant forces applied to the bone. It was not the result of normal care and handling of K, nor of rough parenting. I am not able to say what precise mechanism caused the fracture, there being a wide variety of different ways of applying such force.
117. Apart from the sofa incident, which did not cause the fracture, the mother and L have not been able to suggest any other explanations. They do not have to prove that the fracture was not an inflicted injury, nor do they have to come up with explanations.
118. Having regard to the case of Re M, what is not permissible is for the court to say that because the parents have not provided an acceptable innocent explanation, the injury must be an inflicted one. That is not the case here. Re M specifically drew a distinction between bruises which were unexplained and cases in which there was a fracture. Here, there is a fracture. It is medically known it was caused by force being applied to the bone. There is no medical reason in K’s case to think that his bones broke more easily than would be normal. The key point is that there is no reported event to explain the fracture. If K had fallen from a height, that might cause fracture the collarbone, but no such fall is reported. At the time of the fracture being sustained, K was nearly 12 months old. There is a wealth of evidence K was not yet walking independently. He was cruising along by holding on to furniture.
119. The shortcomings in the evidence of Dr Shute to which I have referred do not mean that I should reject the whole of her evidence, especially where it does not involve the assessment of accounts and explanations given. She is able to give reliable evidence on medical issues which are objectively established, such as the level of distress that a child would have shown following such a fracture and what level of mobility a child would have at a particular age and so on.
120. I accept the evidence of Dr Shute that K was not yet sufficiently mobile for this injury to have resulted from an accidental event in which K was by himself. His level of mobility is also described by others. He would have to have fallen from a considerable height to fracture his clavicle. If there had been such a fall, either L or the mother would have been there to see it or to hear it. I accept the evidence of Dr Shute that it is likely that a fracture would have caused severe pain and distress at the time of the event. I find that those symptoms would gradually settle over the next 24 hours and would be likely to continue to cause discomfort for some days. I further accept Dr Shute’s evidence that manipulation of the right arm would aggravate the discomfort and that K would have been protecting himself from pain by not using his right arm. I further find that at the time of hospital admission there was a clear bony prominence which would have been visible at the time of the injury. K was a crawling baby, who would have shown distress when crawling.
121. I find that K sustained the fracture whilst in the direct care of the mother, L or both of them, that it was inflicted by one or other of them and that they both were or should have been aware of the symptoms which K had, arising from the fracture. Even if it were the case that they were not living together much at the time, the one with direct care of K would have told the other of the symptoms.
122. Whichever carer did not inflict the fracture failed to notice or did not recognise that there was something wrong with K despite the symptoms being there to be seen. The one that had inflicted the injury would or should also have seen the symptoms and connected them with his or her use of excessive force and loss of temper.
123. The evidence of the mother and L about K’s presentation in the days leading to the hospital admission on 8 September 2014 is unsatisfactory. I find that they went from home to the surgery, saw the doctor and then straight to the hospital (C59d/8). By then, the child had suffered the fracture. It occurred at some time before they left home. I am not able to say at what time or on which date after 30 August 2014. The latest time that it could have happened was not fully explored in evidence.
124. The mother told me that K had been his normal self during those days. L said that K had never been in pain in the week before and gave the impression that there was nothing out of the ordinary when asked whether there had been anything out of the norm (H177). To Dr Vitta, the mother said that K was not eating or drinking very well (H291). To Dr Mathew, L said that K had been very restless at night over the last 3 to 4 days and that he had been thrashing about in his cot and unable to sleep properly. There was no mention of that by the mother to Dr Vitta, or least there is no evidence that she mentioned it. The text messages at I-119 show that L said to the mother around 1 pm on the day of hospital admission (8 September 2014) that his instinct was that he “teethin well bad an ear ache an hes thrashin bout and bein very stressed over it.”
125. There is a significant lack of consistency between the evidence of the mother and L in the accounts that they gave to investigating professionals about how K had been in the days leading to the hospital admission. I can conclude from that they are not telling me the whole truth about the symptoms that they saw in K.
126. I do not make a finding that the mother or L failed to seek medical attention soon enough because that was not alleged or explored at the hearing and so any culpability in that regard cannot be assessed. Further, it is not known any delay caused or was likely to cause significant harm.
127. I find that the infliction of the clavicle fracture was not driven by any desire to hurt K, but was probably the result of force being applied to the clavicle area in a loss of temper when dealing with a strong willed, crying, uncooperative baby, which K could and was entitled to be.
Failure to protect
128. A finding of failure to protect does not automatically follow a finding that someone has caused a child harm. Any failure to protect must be shown to be a culpable failure to protect. That means that the person knew that the child was in danger of suffering significant harm from the other person in the household and yet failed to take adequate measures to remove or to minimise that risk.
129. I find that there was no real reason for either of the carers to think that the other might cause physical harm to K. There is no evidence that either of them had shown irritation with or been in any way violent towards him. I decline to make the finding that either carer failed to protect K from the clavicular fracture.
Identification of the person who caused the fracture
130. I have to consider whether the person who inflicted the clavicle fracture can be identified. I bear in mind the principles that I should identify the person responsible if I properly can, but that I should not strain to do so. The local authority submits that I cannot identify that person. The mother says that I can and that I should identify L, who in turn says that I should identify the mother.
131. I have concluded that I cannot identify the person who caused the fracture, save to say that it was either the mother or L. No factor nor combination of factors has sufficient weight to tip the scales one way or the other. Having considered the relevant factors, there remains a real possibility that L and the mother inflicted the clavicle fracture. Those factors include the following.
132. The care of K was shared between the mother and L. Whether the split was 70-30 or 60-40 as L variously said, each of them had ample opportunity to have caused the injury. Each of them is capable of misleading the authorities. For example, each deleted text messages to each other because they were in breach of bail conditions. Each of them has lied about important matters, although that does not denote guilt of itself. The texts show L to have a short fuse. Examples are at I-144, I-136, I-136 to 131 and I-130. These include instances where L has punched someone, nearly punched someone else, and smashed a glass cabinet (which he denied in oral evidence, but identified it as a lie which he had told). I find that he did smash the glass cabinet on the footing that his admission in the text message was true. His lack of convictions for violence or aggression is somewhat diluted by those admissions. The mother has used violence against L when she slapped him on 21 August 2014. The mother lied, she says to protect L in respect of the penis injury. She further lied, she says, by telling maternal grandmother that K had hit himself with a toy and bruised his face, whereas she says that the truth was that he had done it by falling off the sofa. She wanted to protect L, whom she says had care of K at the time.
133. That the mother gave a no comment interview to the police does not weigh against her. I find that she exercised her right to silence upon legal advice so to do. She has given a full account within these proceedings. That L showed his fingernails and the mother declined to do so does not provide any pointer to the truth.
134. L sought to distance himself from close connection with caring for K, especially nappy changing. I find that he often changed the nappy without the mother being there supervising him. He is just as capable of lying as the mother. That said, he was remarkably open and honest about many things. He accepted many of his faults.
135. L has not been seen to display irritation towards K, but neither has the mother. Both of them have a very close relationship with K and love him.
136. I do not accept L’s assertion that he only undertook such care of K as was permitted by the mother, given the nature of their relationship and as evidenced by the text on 7 September 2014 at 1442 where he gives the mother detailed advice about K’s sleeping routine (I-121).
137. The mother was not an impressive witness. She lied about not having been texting L on 14 February 2015, admitting it only when she was confronted with incontrovertible text message evidence by Miss Taylor that she had sent very warm messages to him on that day. They show that the mother had an infatuation with L. Equally, L was obsessed with her.
138. The mother seemed to me to be too ready to say that she did not know or could not remember when asked questions. Both she and L were at times nervous in the witness box, which is a very stressful place for anyone to be. I make due allowance for that.
139. The evidence abundantly shows both mother’s and L’s pride and delight in K.
140. L said in oral evidence that he did not have good control of his anger and he was quick to anger. Sometimes he would lose focus. He drew a distinction between anger and temper. He described anger as being red hot rage. Temper involved a build up. He said that if he was provoked, it went to anger. He was worried about it. He said that last summer it was difficult to control his temper. He was referred to I-144, which shows that he nearly punched someone. He accepts and I find that he has a history of angry behaviour, which has resulted in police being called. He also accepts a history of drug misuse and the use of cannabis.
141. Both the mother and L admitted being stressed by the other, which appears graphically from the text messages. The shortage of money and food added to the stress for both of them.
142. I take into account that K had suffered no injuries when in the sole care of the mother before L joined the family and has suffered no unexplained injuries since placement with the maternal grandmother. However, I am unable to give that much weight because K has been removed from the adults, one of whom caused the clavicle fracture. Further, the family dynamics changed when the mother took up with L. There were new stresses for both of them, which could have caused either of them to have lost control and injured K.
143. L showed honesty when he told the social workers on 22 August 2014 that he had done “every drug other than heroin,” but stopped in about late December 2013 as his grandmother had had a heart attack and he had promised her that he would stop and had done so apart from cannabis. F26.
144. L spoke about K on 22 August 2014 with warmth and pride in his voice. F26. The mother accepted in oral evidence that she could not pin point any time when L had raised his voice, demonstrated irritation or shown rough handling of K.
145. L’s grandmother said that she worried about L’s mental state at times, explaining that he does “shout a bit” and that she sometimes has to tell him to lower his voice.” F27. At F28, it is recorded that “[she] explained that if L gets angry or frustrated, she walks away and tries to advise him to count to 10 before reacting. She said she knows how to manage his behaviour and calm him down.” When asked if she thought there was anything that the social workers should know that might impact on K, she stated that the only concern was the shouting that L sometimes did, but this was only when there was a problem or stress such as issues with housing. She said that he was a "lovely boy most of the time."
146. L conceded that how he presented when angry and frustrated could be alarming for a small child. In cross-examination by the mother, he conceded that at the time of their relationship that he had not had the control he should have had.
147. The maternal grandmother said that she noticed changes in the mother during the summer of 2014 when she was in a relationship with L. She had raised her concerns with mother's social worker. The changes which she mentioned were that the mother was more agitated and worried about things more (such as bills), there had been a decline in personal hygiene and her behaviour was described as "very jumpy." Changes noted in K by her included aggressive behaviours such as banging toys, not being so smiley or happy in his demeanour and wanting to sleep with the light on. F63-F64.
The facial bruising
148. These are the linear bruise over the left cheek and a small scratch/bruise of the right cheek below the right eye, which are injuries 3 and 4. Injury 1 is not an inflicted injury, there being no evidence support a finding that it was inflicted.
149. The medical evidence relating to the facial bruising comes from Dr Anna Mathew and Dr Shute. Dr Mathew was not called to give oral evidence. She is a consultant paediatrician who examined K in hospital at about 3 pm on 8 September 2014. She sets out the 8 injuries to which reference has been made.
150. Dr Mathew's opinion is that K presented with several unexplained bruises and that routine investigations had not suggested a medical cause for them. She considered that the pattern of bruising to the face and that the bruising the penis and scrotum were suggestive of non-accidental injury. She said that it was not possible to date the bruises. E8.
151. Dr Shute says in her first report that injury 1 is in a common accidental site for this age group. E15. In respect of injuries 4 and 5, she says that these are in uncommon sites for accidental injuries. She concludes that on the balance of probability, these are non-accidental injuries. E15. She adds that investigations have not revealed an organic/medical cause for the injuries and that no explanation has been given to account for any of the injuries. E16. Her final conclusion is that all of the injuries are non-accidental, save for injury 1.
152. In oral evidence, Dr Shute said that she had formed her opinion around the pattern of bruising and in the absence of any explanation from carers, she had considered them to be non-accidental. She accepted that the mother's explanation (C59d-C59e) of the linear bruise being caused by K banging his head on a hard plastic tray in frustration would cause the shape. However, she was of the view that a child who bang his head in that way is distressed and that that was a cause for concern. In the alternative, she considered that the explanation is not true. She said that the linear bruise did not look like an infection. Another suggestion made by the mother was that the facial bruising resulted from K falling backwards and the tray which he was holding hit him in the face. C66.
153. The mother in her prepared statement to the police during interview on 10 September 2014 (H88) said that she believed the bruises were due to K pulling himself up, wobbling, and sometimes he hit his face. The mother mentioned, almost in passing, that K head butted the high chair tray to a contact supervisor, on 26 September 2014. In oral evidence both mother and L said that K would bang his head when frustrated and left alone in the high chair and that this caused the facial bruising in injuries 4 and 5. Their evidence was that the head-butting of the tray was a frequent event and was associated with leaving K on his own. Mother said in oral evidence that she had witnessed him doing this on 7 September 2014, prior to the admission to hospital when she had been in the bathroom and was on her own at that time. L said in oral evidence, that his and the mother’s usual routine prior to some point before 8 September 2014 was that one of them would get him up, put him in his high chair in front of the television, and then get back to bed and to sleep, until they heard K crying.
Analysis and findings in respect of the facial bruises
154. I find that on a balance of probabilities these are not likely to have been inflicted by a carer. There is insufficient evidence to support a finding that either mother or L inflicted them. I do not consider that because the clavicle fracture was inflicted by one of them, it sufficiently supports a finding that the facial bruising was probably inflicted by one of them. Dr Shute said that she had formed her opinion around the pattern of bruising and in the absence of any explanation from carers, she had considered them to be non-accidental. That is to place the burden of proof on the parents, requiring them to show that they did not cause the bruises to the face. I am unable to rely upon that part of the medical evidence. Further, Dr Shute accepted that the shape of the linear bruise was consistent with the child banging his head on the high chair tray. The small scratch or bruise on the right cheek below the eye is likely to have been caused in the same way.
155. I very much doubt that the mother understood the meaning of the word reckless when that was put to her in cross-examination, but she clearly accepted that she had sometimes not supervised Kproperly. She conceded that she had at times left K in the high chair too long and he had become frustrated. I find that K had a strong temper, that he would scream and bang his head and face on the tray. She said that there were times she witnessed him do this and he would have hurt his face. I accept the mother’s evidence about that as it is evidence given by her contrary to her interests and because it is accompanied by an acceptance that she should have taken steps to prevent the facial bruising. I find that L should also have taken greater steps to prevent the facial bruising. He could have taken him out of the high chair and he could have been more insistent with the mother. I accept L’s oral evidence that K was put in the high chair for extended periods. This led K to become frustrated and he would swipe his toys off and head butt the high chair. L was in the flat a great deal of the time and shared the care of K with the mother. It is not helpful to give percentages to the time that each spent caring for K. They both cared for him for substantial periods, mostly together.
156. The mother and L accept and I find that K was exposed to domestic violence and other abuse between them and that he must have suffered significant emotional harm as a result. This included an incident on 21 August 2014, the date of the head shaving, when L dragged her by her top and she slapped him. This was in the context of an argument which culminated in L telling the mother to take K and leave his flat, at 11 pm.
157. In oral evidence, L admitted that on one occasion K woke crying when L slammed a door in an argument, denying mother’s account that he followed her in and continued the argument. The mother and L both accepted that K would have been exposed to angry arguments between them in a small flat, and that he would have been aware of such arguments even if not in the same room at the time. Mother sent a text to L threatening to call the police if he shouted in front of K one more time. The mother accepted in oral evidence that she probably did this because he had raised his voice in K’s presence.
158. L’s capacity for using physical force against the mother violence was not limited to the flat. M spoke of an occasion where L had become aggressive and dragged the mother out of a shop as he had been annoyed with the amount they had taken to choose a DVD. I found M to be a truthful witness because she was willing to say things about L in his favour as well as against him.
159. I make the factual findings set out in this Judgment. The threshold criteria are satisfied and the court will consider the welfare issues in due course.
End of Judgment