England and Wales County Court (Family)

 

Case No: DO13C844

IN THE BOURNEMOUTH AND POOLE COUNTY COURT]

 

IN THE MATTER OF [THE CHILDREN ACT 1989]

 

AND IN THE MATTER OF A (A CHILD)

Date: 28^th February 2014

 

Before :

 

His Honour Judge Bond

 

 

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Between :

 

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Mr. Hand for the Bournemouth Borough Council    

Miss O’Hara  (instructed by Aldridge and Brownlea for O)

Mr Blount for H

Miss Whitby for C

 

Hearing dates: 24^th February – 28^th February 2014

     8^th April  - 10^th April

Written submissions directed by 15^th April 

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JUDGMENT

1.        This case concerns a child (C) who was born on 31^st July 2013.  Her father is H (the father).  Her mother is O (the mother).

2.    This is a fact finding hearing and hearing as to Threshold.  The local authority’s case is set out in the Revised Schedule of Proposed Findings dated 16^th February 2014.  The principle allegations are:

(a)    C suffered fractures of the 11^th and 12th right ribs.  According to Dr. Halliday the rib fractures occurred between 30^th September and 28^th October 2013 which is prior to C’s removal by the father from the mother;

(b)    Fractures to the right radius and ulna. According to Dr. Halliday the arm fractures were most likely to have been caused between the 4^th and 7^th November 2013 which is after C had been removed by the father.  It is accepted by Dr. Halliday that dating fractures is an inexact science but the doctor is clear that the rib fractures are older than the arm fractures.  There were therefore two episodes of injury. 

(c)    An unexplained abrasion of the right forearm.    

 

3.    Chronology:  The mother who comes from China arrived in the UK on 6^th March 2103.  The parents married on 8^th April.  The mother alleged that shortly before the marriage ceremony the father assaulted the mother by slapping her.

4.    On 31^st July 2013 C was born.  C and her parents moved to live with the paternal grandparents.

5.    In October there were two incidents involving C.  The first was when C was in her Matrix Light II car seat/cot.  It was in the upright position in the car.  The father had left the car.  When he returned the seat was in the flat cot position.  The father put the cot back to the upright position.  Shortly thereafter there was a click and the straps had become tangled.

6.    Later in October when C was in the seat in the car in the upright position the father had to make an emergency stop.  The straps had tightened as a result of which the parents decided to carry C in the flat position in the car. 

7.    On about 15^th October the father travelled to Taiwan and Hong Kong and retuned to UK on 29^th October.  His arm was in a brace.  The father was therefore out of the country during part of the radiological window during which C’s rib fractures are said to have occurred.

8.    On 31^st October C was in the push chair.  On removing C from the car the father noticed that the straps were once again tight and bunched.  The father rethreaded them.    

9.     On 2^nd November when returning to the grandparents’ home the push chair tilted forward as the parents were going down some steps to the house.  It is said by the father that C was caught in the hood material and C’s right arm was trapped and compressed by the roll/carry bar of the cot.  C fell further to the front of the pram and to one side.  The father said that C had a small graze on her arm and another on her head.  The mother said that C slept for 12 hours thereafter as normal and took also took the right amount of milk.

10. The push chair was available in court.  The father gave a number of demonstrations of what he said happened at the various incidents.  

11. On Sunday 3^rd November there was an argument between the parents.  The father says that the mother began to sob, wail, scream and cry and also to slap herself around the face and neck.   The father asserts that the mother’s bizarre and aggressive behaviour gave concern for her mental health and posed a risk to C.  The father left the house with C and went to the house of his former partner, JF, in Southampton.

12. At an earlier stage in the case there was a suggestion on behalf of the father that JF was a possible perpetrator of C’s injuries.  That is no longer the position although JF was called as a witness.

13. The mother says that she was distressed by the father’s behaviour and that he assaulted her by twisting her neck and forcing down her head and tried to strangle her.  She sustained a red mark on her neck.   The father left with C. He sent the mother an abusive text message and threatened she would not see C again.  C was out of the mother’s care from 4^th November until 9^th November.

14.  On Monday 4^th November the father returned to his parents’ home. He was not allowed to remove C’s equipment.  He drove to Newport to arrange for a passport for C.  They both stayed at the Days Inn Hotel.

15. On Tuesday 5^th November the father drove with C back to Southampton and stayed at the Days Inn at Rownhams.  He met JF and their daughter Katelin.

16. On 6^th November the father visited JF’s home.  The local police, having been alerted by the Dorset Police, arrived to check that C was safe and well.  The mother says that the father sent her a text saying that he intended to take C for a three week holiday to Scotland.

17.  On 7^th November C’s passport arrived by post.  On 8^th November the father took C to the New Forest and stayed at the Days Inn at Portsmouth.  The father and his parents remained on non speaking terms.

18. On Saturday 8^th November the father took C to Scotland.  Having reached Newcastle he decided to turn back.  He was stopped by the police on the A1 near Harrogate in the early hours of Saturday morning.  C was taken to Harrogate hospital where she was noted to be distressed and crying uncontrollably.  She had a swollen right forearm which was tender.  She has limited movement of her right arm.

19. The father says that when he was stopped C was moving her arm normally and did not appear distressed.  She had cried when the father changed her but that was not unusual.  There was nothing unusual about her cry.  C put up both hands to grasp her bottle.

20.  Law

21. The local authority must satisfy the court that the requirements of section 31(2) Children Act are met (The Threshold Criteria).  In order to do so in this case the local authority seeks to prove a number of matters.

22. At the start of the case the local authority alleged that C’s injuries were inflicted by one or other of the parents.

23. In order to determine whether a particular person was the perpetrator of non-accidental injury, the burden of proof rests upon the local authority and does not shift.  The allegations have to be proved to the civil standard of proof – Re B Care Proceedings: Standard of Proof) [2008] UKHL; 2 FLR 141 35 and see Baker J in Re JS [2012] EWHC 1370 (Fam). It must be shown that the alleged incident is more likely to have occurred than not.  This is otherwise referred to as proving the case on the balance of probabilities.

24.  Although it is desirable that the court should, if possible, identify the perpetrator(s) it should not strain to do so – Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2-10]1 FLR 1161. When a court is seeking to identify the perpetrators of non-accidental injury the test of whether a particular person is in the pool of possible perpetrators is whether there is a real possibility that he or she was the perpetrator.

25.  It may be that at the conclusion of the evidence in a case, if the court finds one or both of the injuries to have been inflicted, it is not possible to identify a single perpetrator. In that event both the parents remain in the pool of possible perpetrators for one or both of C’s injuries.

26. In the case of Re B (Above) the House of Lords explained that neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.  There is no “heightened standard” and no legal rule that “the more serious the allegation, the more cogent the evidence needed to prove it”.

27. Further as was pointed out by Lord Hoffman in Re B (Above) there is no room for a finding that a fact might have happened.  The law operates a binary system in which the only values are zero and one.  The fact either happened or it did not.

28. It is always open to a judge to rule that the cause of an injury remains unknown – see Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715.  The court must examine and assess the wide canvass which is provided by all the evidence- Re U, Re B (Serious Injury: Standard of Proof) [2004] EWCA Civ 567.   The evidence of the parents is very important.  The expert evidence is a part of the evidential jigsaw and must be weighed against findings on the other evidence. The court must be careful to avoid speculation, particularly where there is a gap in the evidence – Re A (A Child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12.

29. The hearing began on 24^th February.  It was anticipated that the evidence at least would have concluded by the end of that week.  During her oral evidence the mother alleged that the contents of the statement which she had signed did not accord with the instructions that she had given to her lawyers.  After considering the position overnight her counsel and solicitors withdrew from the case.

30. Thereafter counsel for the father in formed the court that her client no longer wished her to act for him.  Counsel therefore withdrew from the case.  Consequently the case was adjourned part heard on 26^th February.  When the matter returned for a directions hearing on 8^th April, the parents had each instructed a new legal team.   There was a further directions hearing on 1^st April when the father applied for permission to recall JF who had previously given evidence and to submit a significant number of additional written questions to each of the medical experts. 

31. I gave permission for JF to be recalled to answer two of the questions which the father had included in his request.  

32. By the time of the hearing on 1^st April the father had not filed the statement that should have been filed by 24tth March. Further I only received the list containing the father’s list of questions for the doctors just before I came into court.  The list is extensive and I needed further to consider them.  It seemed likely that in his statement, which was now due on 3^rd April and would be seen by the doctors, the father might raise a number of the matters which he mentions in his list of additional questions.  For these reasons I adjourned consideration of the questions.   In fact because of an error in Miss Whitby’s office, the additional questions were nevertheless sent to both doctors.  Professor Wyatt responded. I therefore decided that it would be unrealistic to refuse or limit Dr. Halliday’s response.        

33.  Evidence:    There is a large body of written evidence and material.  This includes evidence which was submitted in earlier proceedings.  There are medical and hospital records, and material which has been disclosed by the police.  There are reports by the jointly instructed experts, Dr Halliday and Professor Wyatt. I have read the statements of the parents, and the other witnesses.

34. The first witness was Dr. Halliday.  She gave evidence via a video link on the first day of the hearing.  Her report at C 2002 is dated 29^th January.

35.  C was found to have suffered the following injuries:

36. Fractures of the 11^th and 12^th right ribs.  According to Dr. Halliday the rib fractures occurred between 30^th September and 28^th October 3013 which is before the father removed C from the mother.

37. Fractures to the right radius and the right ulna.  According tom Dr. Halliday the arm fractures were most likely caused between 4^th and 7^th November 2013 which was after the father had removed C.

38. Unexplained abrasion of the right forearm.

39. Dr. Halliday agreed that that dating fractures is an inexact science but she was clear that the rib fractures were older than the fractures of C’s forearm.  There were therefore two episodes of injury.

40. Before Dr. Halliday gave her oral evidence the father was also sworn in so that he could demonstrate to the witness and to the court how he maintained that C’s arm was fractured because of a fault in the design of the pram.  .

41. As to the mechanism for the arm fractures, the doctor was sceptical of the father’s suggestion that C’s arm was trapped in the pram.  The doctor thought that the fabric of the hood would have prevented the arm getting into a position where it could be trapped and compressed.  It was further put to the doctor that if a heavy bag of shopping had been hanging on the pram’s hood, this may have caused the hood to close with a chopping movement on C’s arm.   

42. The doctor was of the opinion that considerable force had been necessary to break both C’s bones in her forearm.  She doubted that either of the father’s suggestions would produce sufficient force

43. As to the rib fractures the doctor emphasised that these are caused by direct pressure which causes leverage over the Spinal Process of the spine. In her view there is no body of reasonable opinion which supports a suggestion that such fractures may be caused by pressure to the front.      

44.  AT C2009 of her report Dr. Halliday deals with the timing of the two injuries.  As to the forearm and considering the first X rays of 9^th November, the Doctor estimated that the fractures were less than 11 days old which suggests that they occurred on or after 31^st October.  Upon considering the nature of the associated soft tissue swelling, which is the result of damage to the tissue, the doctor reduced the window to 5 days from 9^th November.  The doctor agreed that the presence of soft tissue swelling, which she said was quite marked in this case, is nevertheless a less precise guide than the healing process of the bone. 

45. The doctor agreed that a displacement of a bone can happen after the initial fracture.  This requires more force and therefore more pain.

46. There was a further X ray on 11^th November.  From this the doctor felt able to say that the window for the injury which caused the fractures was likely to be between 4^th and 7^th November 2013.  

47. As to the mechanism both the medical experts told the court that this was likely to have been either a direct blow to the arm, a direct impact caused by the arm being trapped between two hard surfaces or a sharp angulation such as may be caused by the child being picked up by one arm.  

48. As to the father’s demonstration the doctor thought that if C’s arm had been trapped as the father had said it is possible that the fractures were caused in that way.  The doctor thought that would be an unusual mechanism and was not within her experience.

49. Dr. Halliday reported the rib fractures to be between 2 and 6 weeks old on 11^th November 2013.  They therefore occurred between 30^th September and 28^th October 2013.   

50. The doctor pointed out that the rib fractures were towards the back and low down near to the spine.  The doctor did not accept the father’s explanation.  She said that fractures which occurred at this site carried a strong association with squeezing of the chest. In such a situation the ribs are levered against the spine.  In the doctor’s opinion accidental injuries to the ribs occur generally at the side of the body.

51.  The doctor agreed that someone who was not present at the time a fracture happened but later simply saw an unhappy child would not know that the child had sustained a fracture.

52.  The next witness was Professor Wyatt.  He gave evidence from the witness box having listened to Dr. Halliday.  His report is dated 8^th February at C2013.

53. As to the timing of the injuries he deferred to Dr. Halliday.  The professor’s expertise consisted in commenting upon C’s clinical presentation.  In his opinion C’s presentation at hospital on 9^th November is consistent with the radiological timing.  The clinical signs of particular relevance [J9010] were that the right arm was swollen and tender and had limited movement. Further at J9045 it is recorded that C was “unsettled and crying ++” which the professor thought suggested a prolonged period of upset. It was striking to the professor that there is a marked discrepancy between the father’s description of C up the point of admission to hospital and the observations of her distress in hospital. The professor did not think that anxiety caused by C’s separation from her father accounted for the distress particular if one took into account the clinical signs.

54. It is right to point out that the father’s description of C on 6^th November moving her arm normally and putting both hands to the bottle is not consistent with the occurrence of a recent fracture.  In his experience limited movement is generally accepted as a sign of a fracture in the affected limb.  A patient will try to keep the limb still to reduce pain which will be localised to the one affected limb. The regular administration of calpol would to some extent also reduce the pain.  It is not possible for the Professor to say from these clinical signs if the injury was accidental or not.  In the case of a non-ambulant child such an injury is more likely to be the result of non accidental injury.

55. There are three possibilities:  accidental injury caused by trauma, inflicted non accidental injury as the result of trauma or a fracture the principal cause of which is an underlying bone problem.  The latter was not likely to be a relevant consideration in this case although the father had at some stage been investigated because of concern that he might have suffered from reduced bone density.

56.  The professor did not think that the father’s explanations were a likely cause of either the arm or the rib injuries. If so they would be the result of very unusual freak accidents. It is right to bear in mind that such things do happen. Having, however, seen the father’s demonstration with the pram hood, the professor could not see how C’s arm could get into the right position for it to be squashed. He pointed out that prams of this sort are very carefully designed. There is no record of either set of fractures to have been caused as the father has suggested. 

57.  As to the rib fractures the professor said that these are generally less painful than long bone fractures.   At the moment that such a fracture occurred the person holding the child would have been aware that something had happened.  The child would cry, settle but tend thereafter to be fractious.   

58.  JF made a statement to the police on 14^th November 2013 [8090].  Following that statement she had only spoken to the father on two occasions, the last being in late November.  She lived with the father for a period which ended about 6 years ago. She had found him to be controlling and it was difficult to stand up to him. Miss JF described that his daughter Katelin loved the father and that he had undertaken much of her care.  His contact with Katelin went well.

59. At about 7 pm on Sunday 3^rd November she had received a telephone call from the father.  As I understand it Miss JF had seen the father and C for lunch on that Sunday. She saw no reason to be concerned for C.

60. During the telephone conversation the father asked to borrow Miss JF’s car.  No mention was made of C in the telephone call.  Miss JF drove from her home to Bournemouth, collected the father who stayed the night at her house.  The father later told her that he was worried for C’s safety.  Either on the Sunday or Monday (4^th November) the father said he was concerned about C’s arm although that is not mentioned in Miss JF’s police statement.  At some point he also mentioned an incident when the father may have said that C had fallen out of her pram on Saturday 2^nd November and had hurt her head and arm.  He had also mentioned that there had been difficulties with the car seat and that a wheel had fallen off the pram.

61. On Monday 4^th the police arrived at Miss JF’s house as she was leaving to take her mother to the doctor.

62.  On Tuesday 5th November the father and C left Miss JF’s home at lunchtime having stayed for the night.  C was well and not showing any distress during the morning.  The father had not said anything about C receiving medication.   When Miss JF held C she settled with her right side towards Miss JF’s body.  The father spoke of spending a few days away with C.  He left with C to arrange for to have a passport.  Miss JF saw them both again at a hotel on Wednesday 6^th.  She was alone with C for about 20 minutes while C as asleep.  She did not see them on Thursday 7^th.

63. On Friday 8^th November C’s passport arrived by post at Miss JF’s house.  She later gave it to the father in a car park.

64. Miss JF was asked about the way in which the father handled C.  She described his manner as very confident.  She agreed with her statement at I8100 where she described Father’s handling as “quite roughly, firmly”.  It also seemed to Miss JF that the father thought that C was acting deliberately if C did not feed as he expected her to.  She saw no difference in the way he handled C between 3^rd and 7^th November.   

65.  The father had told her that after he had returned from China he felt there was no bond between him and C.  He told her of times when the mother lost control of herself.

66.  When the  hearing resumed on 8^th April an application had been made by the father’s new counsel to recall JF.  I gave limited permission for JF to be asked further questions on behalf of the father.

67.  JF said that on Sunday 3^rd November she took 5 or 6 photographs of C on that Sunday and others in the period up to 7^th November.  JF confirmed that C appeared to favour being held by JF with C’s right side towards JF’s body.  The father had mentioned to her a possible difficulty with C’s left arm when C was lying on the bed. JF could not see that there was a difficulty but told the father that if he was worried he should take steps to have the matter checked. She had no recollection of a conversation with the father in the hall of her house on the Monday about C’s arm.    I thought that Miss JF was a reliable witness.   

68. The mother first gave evidence on 25^th February. She had the help of an interpreter in Mandarin. She has been together with C in a mother and baby placement since 7^th January.  She has not seen father since 5^th November except at court. During her oral evidence the mother said that much of statement at B1033 did not accord with her instructions.  She said that the grandfather went through the draft statement with her, became angry and forced her to sign it.  Having heard the grandfather about this, I do not accept the Mother’s account about. I think the mother was upset and very confused.  I do not think that the grandfather should have been put into this position.  He did his best to help.  She said that she was given blank forms to sign. She was also concerned about the contents of her police statement at I 8057 and the transcript of the interview at I 8214.  During her evidence she was taken through those documents and corrected parts of them. It later became clear that the mother’s solicitors and counsel were in professional difficulties and requested permission to withdraw.

69. While in the witness box on 25^th February the mother said that she had never seen the father throw C in the air and catch her.  The mother had not done so.  On 3^rd November she thought that C looked unwell.  She had a cold and was teething.  She was given calpol and bonjella.

70. She did not see C between 3^rd and 8^th November which covers the period during which the doctors think that the arm fractures probably happened.  As to the rib fractures the mother could give no explanation.  She had not seen C cry when held around the chest although there were times when she feared the father held C too tightly.

71. As to the push chair the mother agreed that there were difficulties with it.  There were a few incidents in the car when C cried. C was never comfortable in it when in the upright position. 

72. On 2^nd November when she, C and the father returned to the grandparents house, the father would not let her help carry the pram down the steps but told her to go ahead and open the door. It was dark.  She did not see what happened but a heard a loud bang. C cried.  The pram was leaning against the wall and the hood was half up.  She could not see if C was trapped in the pram.  The father did not tell her then or later over the weekend that C’s arm was had been trapped.  C fed normally and slept for 12 hours.  

73.  The mother said that the F had told her a number of lies about himself.  The father later admitted this in his oral evidence.  The mother said that the father had made up stories about buying an expensive house, having been a spy and having obtained a PHD in the USA which was funded by the FBI.   He never told her that he suspected her of working for the Chinese intelligence agencies.  

74.  The mother described the occasion when the parents were staying in Wales and the father slapped her face.  She described another occasion when she said that the father gripped her throat – I 8150.    She said that sometimes the father has a problem with controlling his anger.  The mother later in her evidence admitted that on one occasion she had bitten the father’s hand because he had his hand over her mouth.  The mother agreed that on the Sunday morning when she was very upset and not well she had slapped herself on the face. 

75. She was referred to the text message (I 8149) which she received from the father during the afternoon of 3^rd November.  She described it as hurtful.  I agree. It contains a threat that the mother will never see C again.

76. When the hearing resumed on 8^th April the mother returned to the witness box.  She had filed a further statement dated 4^th April (B1121).  She expanded upon the incident of 2^nd November. She was very worried about C and was screaming at the father who had refused her offer of help with lifting the pram.  There was an argument between the parents at about 0830 on the morning of Sunday 3^rd.  The father took C out until about 16.00 when the mother fed C.  C was upset.  She was crying and the mother described C’s voice as hoarse.  She only took 60mls of milk and was given calpol and bonjella.

77.  Following the father’s return from China on about 28^th October, C cried whenever the father tried to pick her up.  The mother thought that because the father had been away  C thought he was a stranger.  The grandparents were of the same view. C gradually became used to the father again.   Following C’s birth, which was very difficult, the mother was not well and the father did the majority of C’s care.

78. During her evidence on this occasion the mother was taken through the various incidents when it is said there was a difficulty with the pram.  She also gave further details of the occasion when she said that the father held her by the throat.

79.  While making allowance for the difficulties in assessing a witness when evidence is given via an interpreter and bearing in mind the mother’s view as to her first legal team, the mother generally impressed me as an honest witness.  She clearly loves C and has found these proceedings bewildering and distressing. 

80. The father gave evidence.  He has put in two statements, B1019 dated 13^th December and B1139 dated 3^rd April.  The latter is a very lengthy statement. He is not an easy witness to assess.  I agree with the paternal grandfather that the father is an intelligent man.  He has a powerful personality and it would not be easy for someone in a close relationship with him to resist his wishes.  Some of his behaviour appears bizarre. 

81. He denied causing the fractures to either the arm or the ribs or committing acts of domestic abuse.

82.   He first told me that after he had returned from China at the end of October C became distressed if the father held her.  This was difficult for the father particularly as in the period after C’s birth he had been the main carer as the mother was not well.   

83. On the night of his return he described how he had held C around her chest.  She became distressed and he handed C to the mother.  C calmed down but when returned to the father C again became upset.  

84. On the night of 31st October the father described another incident.  The father himself had an injured arm.  He picked C out of the pram and held her to his cheat with her head over his left shoulder.   He rubbed and patted her back which made her scream and become more distressed. C began to go purple.   The father handed C to mother who calmed her after about 10 minutes.  The father told the court that he now realised that C’s ribs must have been fractured at some point before 31^st October.

85.  JF had produced some photographs of C taken in early November.   The father contended that the pictures show a significant deterioration in C’s condition.  He said that the photographs show that C’s arm had probably been injured during the incident with the pram.     

86.  When asked questions on behalf of the local authority the father said that following the incident with the pram on 2^nd November, both parents had checked C.  There was no indication of harm other than a little speck on her head and on her arm. At this point in his evidence the father said that he was more worried about the mark on C’s head.  He said that C had been favouring her left arm since the Sunday and between 3^rd and 9th November had not been moving normally.

87.  He went on to say that he thought that between 2^nd and 9^th November, when C arrived at Harrogate Hospital, she had probably been bathed on three occasions. 

88. As to his conversation with JF, the father denied saying that C might have an injured arm.  He maintained that JF had changed C’s nappy on the Saturday.  He denied that on the Monday he had pointed out to JF that he was worried about C’s arm.  Her maintained that JF first mentioned it to him saying that he might want to have the arm looked at.  He denied that JF reacted to the father’s comment about the arm by saying that if he was worried he as the father should arranged for an examination. 

89. It was put to the father that at B1030 paragraph 48 he had said: “her arm was moving perfectly normal and she was putting both hands up to her bottle”   The father altered this oral evidence by saying that C used both hands sufficiently often so that it did not appear that her arm had been broken.  Nevertheless the father said that C used one arm on what he said were multiple occasions but her preference was to use her right arm. 

90. The father denied that he is a fantasist.    He agreed that he told the mother that he had a PHD which had been funded for him by the CIA.  He did this in order to check up on the mother who he believed worked for the Chinese intelligent agencies.  He said that his computers were under constant attack.  He admitted that he had told the mother a number of lies about himself.  He had met the mother via the internet in April/May 2011.  By the beginning of June he estimated that 40 machines were trying to breach his network.  He described himself as mortified that he did not explain this to the mother before they married and indeed had not done so before this emerged during this hearing.  He told the court that if the choice was between a loving relationship and the security of the UK, he would choose the latter.

91.  The father denied that he threaten to call UKBA so that the mother would be removed from the UK. I do not believe him.  I prefer the evidence of the grandfather on this point. He said that he hoped that by the purchase of a property in the UK he would be able to avoid the need for the mother to return to China in order to renew her visa but if UKBA learned of this, the mother would be removed.

92. The father gave a further explanation and demonstration both during this part of his cross examination and when at his request he was later recalled of the incident with the pram on Saturday 2^nd November.  He said that the weight of shopping which had been hung on the handle and placed on the shelf beneath increased the overall weight.  This together with the loss of a wheel contributed to the fall of the pram and forced him to let go of the pram.   C was asleep and she was propelled from a prone position to one where her head was above the rear rim of the pram. He agreed when asked about this on behalf of the guardian that C did not move very much.  Her right arm was said to be sticking out of the side and therefore vulnerable to a guillotine motion of the bar and hood.  He could not say if C’s arm was trapped.  When he lifted C out of the pram nothing restrained her arm.

93. With reference to the photograph at I 8150/1 the father denied causing the marks on the mother’s throat.  He denied putting his hands around the mother’s throat.  He asserted that the mother was self harming and in her struggle to release from what the father described as his light restraining grip the mother’s throat was injured by one of the father’s watches.  The father always wears a watch on each wrist.     He said that the mother had bitten his hand in May 2013.  He first said that was because the mother was suffering from Post Natal depression.  He then realised that mother was pregnant at the time.  He then asserted the incident must have been caused by the mother’s depression during her pregnancy.  The mother’s account which I prefer is that the father’s hand was over the mother’s mouth and she bit his hand to remove it.      He agreed that he did slap the mother during the incident in the shower in Wales but only to revive her.   He denied that he had been violent to Claire Bartrum (I 8052). He asserted that when JF had told the police (I 8100) of his poor behaviour the father said that the allegations were untrue.  She was his ex partner who was motivated by jealousy.  JF had wanted to marry the father and saw the mother as a theat. 

94. He was asked about the text message at I 8149.  He said that it was in response to a similar one from the mother and he did not mean it when he threatened to take C away so that the mother would never see C again.  He denied saying to his own father (I 8078) on 7^th November to tell the mother that he was going to take C abroad and the family would not see her again.

95. I was not impressed by the father.  He did not strike me as a reliable witness.  He seemed excessively concerned about persuading the court that his view of events must be the correct one.  

96.   The paternal grandparents both gave evidence.  Their various statements are at I 8069, I 8080, I 8103,I 8273 (a chronology) and, B1073.

97. They were both very hurt by the serious allegations made against them by the father.  They denied them. Having heard their evidence I prefer their accounts to those of the father where they differ.  I am satisfied that neither of the grandparents treated the father as alleged by him.

98.  The grandfather described how he had had concerns about the father’s mental health in the past. This had particularly been the case after the father’s wife had left him. He had lost his job and had suffered a motor cycle accident.  The grandfather described him as highly intelligent and with help he could be successful. He still fantasises. 

99. He was clear that the father had threatened the mother to have her removed from the UK.  Somebody had told UKBA as 3 Officers had arrived at the house at 0730 one morning.

100.          He described the father as being a caring parent especially in the early weeks after C’s birth when the mother was unwell.  The father found it difficult to deal with the situation after his return from China at the end of October when C cried if the father tried to hold her. 

 Submissions.

 

101.          Written submissions were put in on behalf of each of the parties.  In addition to his counsel’s submissions Mr. Apps put in further documents.

102.           Miss O’Hara, Counsel for the mother, came into the case half way through the hearing.

103.          She submitted that the medical evidence establishes that C’s injuries were non-accidental.  The only significant episode that the mother can recall was the event when the pram tipped on the steps at the home of the paternal grandparents’ home.  This, it is said, neither fits with the likely time window nor is followed by behaviour in C suggestive of a fractured arm.

104.          In paragraph of her written submissions Miss O’Hara considers the chronology of C’s care.  Because of the mother’s illness after C’s birth the father took over the care of C.  In the second part of October the father absented himself from the home and the mother took over care and was seen by the grandparents to be gentle and patient with C. 

105.           It is agreed that following the father’s return at the end of October C’s reaction to the father was adverse.  A number of observers noted that the father appeared to take it personally when C cried.  The grandparents were worried that the father was too firm in the manner in which he handled C.

106.           It is submitted that the father’s conduct last autumn had more to do with asserting his own position than with the welfare of C.  I agree with that.

107.          It is further submitted on behalf of the mother that she has been subjected to a pattern of lies, manipulation and violence at the hands of the father. I agree. Indeed the father admitted in evidence that much of what he had told the mother about himself was untrue.  Of the two parents it is submitted that the mother is the more reliable historian.  I think that is correct.

108.          Miss O’Hara strongly submits that the mother can properly be exonerated from any involvement in C’s injuries or failure to protect from harm.  I agree.

109.          Mr. Blount also came into the case half way through this hearing.  I am grateful for his help. 

110.          As I have already indicated the evidence and demeanour of the father gave cause for concern. I remind myself that it is necessary rigorously to evaluate all the evidence.  In this case also the father has admitted to telling lies to the mother about himself.  I do not think that he was truthful about the episodes of violence that he perpetrated upon the mother.  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.  It does not mean that the father has liked about everything else and in particular about the circumstances of C’s injuries.

111.          In his written submissions on behalf of the father, Mr. Blount emphasised that the father did not assault the mother, did not cause any of C’s injuries and had a close and loving relationship with C.

112.          The father has also handed in a number of further documents and his own additional written submissions which his Counsel has referred to but not further analysed.  I have attempted to deal with the major matters which the father has raised and which are not otherwise covered. 

113.          As to the allegations of domestic violence and abuse it is submitted that the incident in Wales culminated in the mother collapsing into the father’s arms and that he merely patted the mother’s cheeks in order to revive her.  It is said that the mother subsequently agreed with this account. I do not think she did or if so it is unlikely to have been an agreement with full understanding of what was being suggested.  As to the throat incident the father’s case is that he simply “cupped” the mother’s face as they both lay on the bed.  The mother agrees that they were on the bed together.  She had her back to the father.  He tried to turn the mother towards him and to hug her.  The mother resisted and screamed.  She agreed that the father was trying to stop her crying and held her face.  The father always wears two metal watches, one on each wrist.  

114.          The father says that the mother bit him on more than one occasion. I do not agree. I have seen a photograph of his injured hand which the father says was the result of such a bite.  The mother accepted that she bit him once in order to get him to remove his hand from across her mouth.

115.          The father agrees that the mother is a vulnerable person.  I think it may be that when distressed and frustrated by the father’s behaviour and her circumstances she cried and screamed.

116.          As to the injuries it is submitted that these were caused accidentally during incidents with the pram/car seat.  The rib fractures occurred it is said were caused in one or other of the 4 incidents set out in paragraphs 131-158 of the father’s recent statement.  The arm fractures it is said happened during the incident on 2^nd November. 

117.          It is submitted that there is no evidence of C being in the sort of distressed state that one would expect immediately following such injuries.   In his own document the father asserts that C screamed on a number of occasions in October when in her car seat and after the incident on 2^nd November.  The father was absent from the home for a significant period in October and C was distressed when held by him around the ribs after his return.

118.           It is said that the photographs taken by JF on 3^rd November suggest that there was an injury to C’s arm.  One of the photographs shows C in her pram with her left hand resting on the bottle.  The weight of the bottle was on the pram cover.  The second photograph shows C again in her pram but without a bottle.  Part of her left hand is visible. The right arm is not.   It is right that the mother said in evidence that in the picture C does not appear well.  The mother had earlier said that on 3^rd November C’s voice was hoarse and she had a runny nose.  She was given calpol.  When Miss JF saw C on 3^rd and during the following days she did not notice anything untoward. It does not seem that if at the time the father was worried about the right arm he took any action about it.  By 9^th November the arm is reported to be puffy, C distressed and there is limited movement.     

119.          In his own document the father says that Dr. Halliday’s evidence as to the timing of the arm fractures cannot be relied upon.  On the basis of Periosteal Reaction alone he says with reference to a paper by Drs Gallagher and Halliday, another by Dr. Chapman and Dr. Halliday’s evidence in this case, that the radiological window is variously: 31^st October to 7^th November (joint paper), 29^th October to 7^th November (evidence in the case) and 28^th October to 7^th November (Chapman paper).

120.          The father is particularly critical of Dr. Halliday’s approach to the question of soft tissue swelling.  He says that this is highly unreliable.  He says that when C was at Harrogate hospital her arm was likely to have been manipulated and this is likely to have caused soft tissue injury. If so this would affect the timing of the injury and supports his contention that soft tissue damage occurred at hospital on 9/10^th November.  The father submitted that C was showing no sign of distress before she was admitted to the hospital at Harrogate.

 

121.          In her oral evidence the Doctor referred to the x-rays which were taken on 9^th and 11^th November. As at 9^th November she said that the fractures were less than 11days old (31^st October) but that the presence of soft tissue swelling on that image reduced the window to 5 days from 9^th November.  The doctor’s examination of the x-ray of 11^th November in her opinion reduced the window to 4^th - 7^th November

122.          When cross-examined by the father’s former counsel Dr. Halliday accepted that soft tissue swelling, which she said was quite marked in this case (M11010), is a guide and a “softer” sign.   She remained of the view that the injury was likely to have been caused within 5 days of 11^th November (M 11025).

123.          The father pointed out that in his short report at J9015 dated 9^th November Dr. Sapherson, who was not called to give oral evidence, said: “there is no evidence of either soft tissue swelling or peri-osteal reaction making it difficult to accurately to date but I suggest less than one week”.  This suggests that the earliest date for Dr. Sapherson’s window is 3^rd November.  Dr. Halliday suggested 5 days from 9th i. e. from 4^th November.   In respect of the images of 9^th November Dr. Sapherson, appears to have arrived at a similar conclusion to Dr.  Halliday. 

124.          In his report dated 11th November at J9016 Dr. Sapherson has nothing further to say about the arm fractures.  He gives no window for the rib fractures.

125.          The father contended that because Professor Wyatt relied to a large extent upon Dr. Halliday’s report he was mislead as to the dating of the arm fractures.   I do not agree that Dr. Halliday’s evidence on this point is flawed and see also Professor Wyatt at M11049. 

126.          As to mechanism Professor Wyatt agreed that an arm might be fractured by a guillotine motion if it were directly trapped between two very rigid forceful objects (M11036).  Both experts saw the father’s first demonstration.  They did not see his later demonstration with a doll.  Given the forces at work and the nature of the pram’s construction neither thought that this was the cause of the arm fractures in this case.  

127.          Both Dr. Halliday and Professor Wyatt saw and considered the additional material and questions put to them by the father.  Neither altered her/his opinion.

128.           As to the rib fractures Professor Wyatt considered this at M11039.  He agreed with Dr. Halliday that the incidents in the car were very unlikely to have caused these.  

129.          Starting at paragraph 151 of his document the father attacks the evidence and motives of JF and his parents.  Having seen and heard those witnesses I reject the father’s allegations. 

130.          Starting at paragraph 183 the father has summarised his main points.  He goes on to invite the court to make 34 findings.  The most important are those contained in paragraphs 1, (i), (ii), (iii), (iv), and then 1, 5 12,13,16, 24 and 30.  I have also read a letter from him dated 22^nd April.                  

131.          On behalf of the local authority Mr. Hand submitted that this hearing is not only concerned about C’s physical injuries but also about the circumstances of the parents’ relationship.    

132.          Paragraphs 2-5 of the Revised Schedule of Proposed Findings contain allegations and Findings sought in relation to the relationship.  The local authority contends that the threshold under section 31(2) CA is established on those matters alone.  Paragraphs 6-8 deal with C’s injuries. It is said that the threshold is crossed on this basis also.

133.          In paragraphs 2 - 7 of his submissions Mr. Hand conducted a survey of the matters which he says support the local authority’s case that the parents’ relationship was a turbulent one.  At paragraph 28 he summarises the position and invited the court to find that as at November 2013 that in respect of C’s stability and security she was likely to suffer significant harm.

134.          Starting at paragraph 9 Mr. Hand considered C’s injuries.  He referred to the evidence of Professor Wyatt. In his report of February 2014 the Professor made the following points:

·         The description of C given by the father whilst alone with him is not consistent with the clinical description of her appearance at hospital

·         The fading bruise on C’s right wrist and the abrasion on the right forearm are consistent with excessive forceful handling of the right arm but are not conclusive evidence of that.

·         The car seat incident on 2^nd November is a possible but unlikely cause of the fractures to the right forearm.  It is pointed out that C’s behaviour during the 24 hours after the incident was not observed to be unusual.  The incident occurred 2 days outside Dr. Halliday’s likely radiological window.

·         The clinical description of C and of the arm on 9^th November is consistent with a fracture having occurred up to 3 days earlier rather than a week earlier.

·         As to the ribs the Professor was concerned that no accidental explanation had been given but the court must be careful about this point as there is a danger of reversing the burden of proof

·         The mother was worried that the father held C too tightly

·         At paragraph of his report Professor Wyatt said that rib fractures are likely to have been caused by excessive mechanical forces exerted on the chest by adult hands.

 

135.          In his oral evidence Professor Wyatt said that there would have been what he described as a very unusual freak accident for the car seat to have been responsible for the rib fractures.

136.          As to the arm injury the Professor was of the view that the clinical presentation on 9^th November pointed to the injury having occurred within a very small number of days before 9^th November.  He thought that the infliction of the injury on 2^nd was possible but very unlikely.  

137.          Following the oral evidence of both the medical witnesses the father submitted further written questions to each.  In relation to the marks on the arm noted on 9^th November the Professor thought it unlikely that they had been caused on 2^nd and that the marks seemed to be consistent with someone having gripped the arm.

138.          Mr. Hand referred to Dr. Halliday’s report where she deals with the mechanism which she says is likely to have caused the injuries to C.  For the rib fractures a squeezing of the chest is required, that is to say an application of force to the front and back. This was confirmed in the oral evidence (M11013) and in reply to the further written questions. The fractures to the arm require either a direct blow or more likely a sharp angulation at that point. It is pointed out that in her oral evidence the doctor did not agree that the rib fractures could have been caused by the car seat in any of the events suggested by the father. 

139.          As to the arm fractures the Doctor thought that the incident with the car seat was a possible but unlikely cause.  The father made a number of complaints about the car seat but continued to use it.

140.           Mr. Hand conducted an analysis of the incident of 2^nd November and submits that the likely radiological window and the relevant evidence does not support the contention that the arm fractures were caused in this incident. I agree. Indeed in his statement at B1030 paragraph 48 the father reported that up until the removal of C from his care on 9^th November “her arm was moving perfectly normal and she was putting both hands up to her bottle”.

141.          Mr. Hand submitted that in this case the court can properly conclude as follows:

 

·         C suffered non-accidental injuries as earlier described;

·         That the father was the sole perpetrator of the  injuries;

·         The father would have known at the time that he had injured C and should have sought medical attention.  He failed to do so;

·         The parents’ relationship was turbulent and chaotic and marked by incidents of domestic abuse;

·         Having removed C on 3^rd November the father’s subsequent care of her was chaotic until his arrest on 9th November;

·          As a result C had suffered and was likely to suffer significant physical and emotional harm at the time proceedings were begun in November 2014.

 

142.          From paragraph 6 in her written submissions on behalf of the guardian, Miss Whitby reviewed the evidence and the articles which the father he wished the Dr. Halliday to consider.

143.          Dr. Halliday considered these.  Those relating to pain were outside her expertise.  The Wikipedia entries were not peer reviewed.

144.          As to the arm fractures it is pointed out in paragraph 8 that in the doctor’s opinion the soft tissue swelling is more likely due to the fractures than to any other event. 

145.          Professor Wyatt at M11053 described the nature of the pain following a fracture.  His view was that this level of pain was reflected in C’s presentation at hospital on 9^th November and not as a result of separation from normal care givers (M11054).  If that is so the evidence of the father to the effect that C was not distressed in the car when he was stopped by the police is not accurate.  The police did not observe C to be upset.

146.                It is pointed out that the father’s parents said that after the incident of 2^nd November said that C settled quickly.  Neither recalled any mention by the father that the mother had agreed that the father had only tapped the mother on the face in order to calm her after the incident in Wales.   Neither had seen the mother harm her own neck. They agreed that the mother hit her own face when distressed.

147.           It is submitted in paragraph 23 that the explanations given by the father as to mechanism for the two sets of fractures are not plausible.  I agree.  I also accept the mother’s account as to the causation by the father of the red marks on the mother’s neck and of the incident in Wales.

148.          Miss Whitby submits that the father is not a reliable witness.  She points, for example, to the father’s change of account when he belatedly asserted that JF had twice bathed C at her home and once at The Days Inn Hotel.  This is not mentioned in his statements.  I agree that, if true, it is a vital piece of the evidential jigsaw particularly as at an early stage in the case there was consideration as to whether JF might be in the pool of possible perpetrators.

149.          Miss Whitby also submitted that stories which the father told the mother about himself do not help his case.

150.          It is submitted on behalf of the guardian that the court can safely make the findings requested by the local authority.

          

Conclusion.

 

151.          The fractures to the right forearm were non-accidental.  They were inflicted by the father between the 4^th and 7^th November 2013 during a period when C was either mainly or wholly in his care;

152.          The mother had nothing to do with these injuries;

153.          The father would have known that he had injured C. He should have sought medical attention and failed to do so;

154.          The rib fractures:  I accept the medical evidence that fractures of this nature are indicative but not determinative of non-accidental injury.  The manner in which the father was seen to handle C caused concern. I reject the explanation that these were caused by the car seat. On the other hand the radiological window is wide (2-6 weeks between 30th September and 28^th October).  For some of that period the father was not at home.  The evidence about this is unclear.     There is the danger of acceptable inference turning to speculation and that given the view that the court and others have formed of the father, concluding the father inflicted this injury and it was non-accidental.   I am of the opinion that the court cannot find that these injuries were non-accidental.  I do not know what happened.

155.          The parents relationship was a turbulent and chaotic;

156.          I am satisfied that the father assaulted the mother in Wales by slapping her face as she says.   I also find that in the course of a protracted incident of domestic violence on 3^rd November 2013 the father inflicted the injuries to the mother’s throat.

157.          The father wrongly removed C from the mother’s care on 3^rd November. He sent the mother text message threatening that she would not see C again.  Thereafter he provided chaotic and unsatisfactory care for C until his arrest on 9^th November.  

158.          Consequently by reason of these findings C had suffered and was likely to suffer significant physical and motional harm as at the date when protective measures were started in November 2013.

159.          The mother did not cause any injury to C.  In so far as she was involved in incidents of domestic violence I find that she was the innocent party and that the father was the instigator of such events.  In so far as her reaction might be said to be extreme I find that this was because of her isolation, distress and frustration caused by the father’s treatment of her.

 

24^th April 2014                                                                 HHJ Bond.