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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R (Fact Finding), Re [2015] EWFC B95 (15 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B95.html Cite as: [2015] EWFC B95

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IN THE FAMILY COURT AT EAST LONDON

		11 Westferry Circus, London, E14 4HD
		15/07/2015

HER HONOUR JUDGE CAROL ATKINSON:

1. At 14.50 hours on 29^th December of last year, a 10 week old baby, R, was presented at QEH, A&E, by his mother, (M) and maternal grandparents (GM and
2. GF) with swelling to his left leg and a concern that he was not feeding. X-rays taken later that day of the left leg revealed 3 fractures. R was admitted.
3. Further x-rays were taken the following day of the whole of his body. Those x-rays revealed a further 8 fractures – making a total of 11. In addition to the three fractures of the left lower leg there was one fracture in the upper right leg, three in the lower right leg, two in the left arm and two in the right arm. There was also bruising observed some of which has been subject to dispute but there are now 3 places in which it is accepted that there were visible bruises – on the top of R's left foot, above R's left upper eyelid and two parallel bruises on his left cheek.
4. Treating physicians considered that R's family was unable to describe an event or a series of events which might have explained so many significant insults to a non-ambulant child. Accordingly, a referral was made to the police and social services and so began the proceedings with which I am concerned.
5. The local authority issued its proceedings on 21^st January 2015. The case was listed before HHJ Mitchell sitting in East London at Bromley. Early on in the timetable the matter had to be re-allocated to me in order to guarantee judicial continuity going forward. Delay was caused initially by a request for evidence (agreed as necessary) from a geneticist. I heard the Issues Resolution Hearing on 12^th May and accepted that this was a case in which, unusually, there should be a split hearing. That was because there was one issue which would determine the threshold in the case – the injuries, and if non accidental, who had caused them. At that stage in the case there was a growing concern at the possibility of some genetic or organic cause. Thus the case was timetabled to a fact finding hearing which I have concluded over 4 days split in time to accommodate expert witnesses.

Issues to be determined

6. It is the local authority case that R has suffered significant harm and that harm is attributable to the care given to him by one or both of his parents.
7. There is no issue that he has suffered significant harm; aged 10 weeks he has suffered 11 separate fractures spread between all four of his limbs.
8. The issues for me to determine can be summarised as follows:

i) whether those fractures and the bruising have been deliberately inflicted;

ii) If they have been deliberately inflicted, whether I am able to determine who perpetrated the injuries;

iii) Whether in the light of those findings, the so called threshold is crossed.

Background

9. The mother in this case is the eldest child of the GM. Her mother married GF after she was born and together they have four children – half-siblings to the mother.
10. The mother and father met and formed a relationship in July 2012. At the time the father was, I believe, living with his mother. The father is the youngest of his sibling group. In August 2012 his mother, sadly, and, I believe, unexpectedly, died.
11. The parents continued in their relationship though did not live together. In due course the mother discovered that she was pregnant with R. The couple were delighted at the news. The pregnancy was not straightforward in the sense that at a 20 and then 35 week scan the mother discovered that the baby was not growing as expected and had a small head. There was a possibility that he might have a cleft lip and cleft palate. The parents were advised to consider a termination at 35 weeks but chose not to. They decided that they would be happy with their child no matter what his disability.
12. On 20^th October 2014, R was born. In fact, other than a cleft lip, he appeared to be suffering from none of the predicted disabilities. Needless to say, the parents were delighted. R was discharged from hospital with the mother who returned with him to the home of the GM and her extended family.
13. The mother remained at the home of GM until December. The father, who was working at a restaurant at the time, visited about 2 times a week when his work schedule would allow. The couple had a room in the grandparent's house where they could care for their child alone. The father would stay over when he could.
14. There has been an issue regarding the registration of R's birth which is raised on the papers but not really pursued in the case. Nothing turns on it. The significance of it for this history, however, is that R's 8 week check was not carried out by a GP but rather by a Registrar in Neonatology at KCH. Nothing of significance was noted during that examination which the parent's describe as being carried out forcefully.
15. The next day (17^th December 2014) the parents moved out of the home of the grandparents and into their own accommodation which they had managed to secure from the local authority. On the same day the father took a period of extended leave from work in order to be at home with his new family.
16. The parents prepared the flat as best they could. The father cleaned it, I understand. They have both remarked that it was very quiet by comparison to the grandparents' home which is loud with children.
17. There has been evidence from each of the parents that on the blinds in the bedroom it looked as if the word "hell" or possibly "help" had been written. The mother joked about it being a sign of something bad in the house. The father undoubtedly found it unsettling.
18. On 18^th December the mother, father and R went on an outing with the nursery at which the mother is employed. Nothing of note happened. The following day the mother was due to go out for the evening with her work colleagues but was unable to due to the combination of a difficulty finding a taxi and concerns that arose regarding R. Whilst she was getting ready the father was feeding R. He noticed that R had been sick on his bib and that the bib appeared to contain blood. Mother did not see R being sick but observed the stain. Father thought R felt hot and so decided to bathe him. When taking him out of the bath he noticed that he had had a bowel movement and that there appeared to be blood in what he had passed. The father called the mother. In due course the parents took R to the hospital where R was examined and kept in overnight. No cause for concern was found and he was discharged.
19. The parents and R went to stay with the maternal grandparents on Christmas Day over until Boxing Day. On their return home they both told the police that R was out of sorts but that he seemed to settle over the Saturday (27^th).
20. At about 8pm on 28^th December R became unsettled again, according to the mother. She noticed that he had a blue mark on the top of his foot. She showed the father. Neither of them knew what it was. Mother touched the mark but R did not react. They googled blue marks and "Mongolian Blue marks" came up. R was grizzly and would not settle for long – dropping off for only 15 minutes at a time. The mother called the GM and sent a picture of the mark but the GM could not see it clearly and advised that they kept an eye on it. They called 111 but did not get any answer as to what it was.
21. The mother and R went to bed eventually leaving the father watching the football on the TV. Father fell asleep on the bed in the sitting room. At 2am R woke screaming. He was hot. He had a swollen leg. The mother texted her own mother but received no reply. The father had been suffering from what the couple thought were flea bites and they wondered whether this was what was causing the swelling to R's leg.
22. At 5am R woke again. He fed normally then went back to sleep. At 9am when the mother woke the father had taken R out in the buggy. On his return the mother, who had been trying to register R with a local GP finally opted to try and register R with her own GP near her mothers and secured an appointment with the GP at 4.30pm. The mother then took R to the GMs and the father went into work to collect his wages. When the GM saw the leg she said that it was "not normal" and she insisted that the mother call an ambulance. When told that the ambulance would take an hour the GM called the GF to come home from work and take them to the hospital. At the hospital the injuries summarised above and detailed further below were discovered.

The Law

23. The local authority brings this case and it is for the local authority to prove the facts. The standard of proof is the balance of probabilities: I have to be satisfied that it is more likely than not that the event occurred. It is as simple as that. Where an allegation is a serious one, there is no requirement that the evidence must be of a special quality. Nor does the seriousness of the consequences of a finding of fact affect the standard to which it must be proved. To quote Jackson J: Re BR (Proof of Facts)[2015] EWFC 41

" It is exceptionally unusual for a baby to sustain so many fractures, but this baby did. The inherent improbability of a devoted parent inflicting such widespread, serious injuries is high, but then so is the inherent improbability of this being the first example of an as yet undiscovered medical condition. Clearly, in this and every case, the answer is not to be found in the inherent probabilities but in the evidence, and it is when analysing the evidence that the court takes account of the probabilities."

24. Evidence comes in many forms and in my discretion the different forms of evidence will be more or less persuasive. In this case there has been evidence from experts and from lay parties. There is no magic in the evidence of an expert. All witnesses come to the witness box as equals. They may not leave as equals but that is a matter for me to assess. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence.
25. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. Each piece of evidence must be considered in the context of the whole.
26. Whilst it is not for the parents to provide an explanation as to the possible causes of any injuries, there are situations in which the medical and other evidence points to the fact that the absence of any explanation is of significance. To quote Jackson J again (Re BR supra):

"It would of course be wrong to apply a hard and fast rule that the carer of a young child who suffers an injury must invariably be able to explain when and how it happened if they are not to be found responsible for it. This would indeed be to reverse the burden of proof………. Doctors, social workers and courts are in my view fully entitled to take into account the nature of the history given by a carer. The absence of any history of a memorable event where such a history might be expected in the individual case may be very significant. Perpetrators of child abuse often seek to cover up what they have done. The reason why paediatricians may refer to the lack of a history is because individual and collective clinical experience teaches them that it is one of a number of indicators of how the injury may have occurred. Medical and other professionals are entitled to rely upon such knowledge and experience in forming an opinion about the likely response of the individual child to the particular injury, and the court should not deter them from doing so. The weight that is then given to any such opinion is of course a matter for the judge."

27. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas [1981] QB 720).
28. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849). In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).
29. Let me turn now to the evidence. I do not intend to recite it all, only those parts which will enable me to explain my decision making. I have nevertheless considered it all.

Medical evidence filed in the proceedings

30. Let me begin with Dr Shaw-Smith, the consultant clinical geneticist. His opinion is to be found at E76-79 of the Bundle. Having made extensive enquiries he concludes that there is no convincing evidence that R's fractures were as a result of an underlying diagnosis of Osteogenesis Imperfecta (OI), any other connective tissue disorder or skeletal dysplasia. In his report he observes that even if R had suffered from a form of OI he would have expected his carers to have been able to give a history of a mild trauma which could have explained the fractures in a child with OI though not necessarily in a child without. He was influenced in his conclusions by the fact that R had suffered no ongoing fractures since being in foster care - something which does not support a diagnosis of OI. His report is unchallenged by the parties.
31. For the sake of completeness I should record that just prior to the commencement of the fact finding hearing there appeared to be a further test regarding R, the purpose of which was unclear. It was as a result of awaiting the outcome of that test that this hearing was delayed. I do not need to recount the detail of that here. Suffice to say that Dr Shaw Smith was untroubled the test, considering that it made no difference to his opinion. In fact the tests have now returned showing no abnormalities.
32. I turn then to Dr Watt, consultant paediatric radiologist. In his reports he has identified 11 fractures. Those 11 fractures have been set out by Mr Jubb for the local authority in a very helpful schedule indicating the type of break, where it was identified, when the x-ray was taken, the suggested mechanism and the timing (so far as the radiological evidence is concerned). I have asked for that schedule to be appended to this Judgment in an amended form to rectify some errors identified during the hearing and grouping the fractures into the two separate incidents by reference to timing.
33. It will be seen from that schedule that there are 11 fractures in all four of R's limbs. They fall into two distinct groups by reference to their likely timing. The first group, identified by the observation that Dr Watt made of early new bone occurred, on his evidence, between 9^th and 23^rd December. They are the 3 fractures to the lower right leg and the 2 fractures to the right arm. The second group showed no evidence of healing making them more recent and occurring probably after 18^th/19^th December. These were the 3 fractures to the lower left leg discovered on admission, a fracture to the upper right leg and 2 fractures to the left arm.
34. None of the fractures were fully displaced. They were a combination of metaphyseal fractures which require a pulling and twisting mechanism and transverse fractures caused by bending and snapping or by a blow. The majority were transverse.
35. Because of the evidence of healing described above, Dr Watt was of the view that the likelihood was that these fractures were caused in two separate episodes. Not necessarily a single event in each occasion. Indeed because they are spread between the four limbs there is more likely to have been a series of insults to the limbs leading to the fractures.
36. Though reluctant to stray too much into the issue of pain, Dr Watt agreed that there would be likely to be pain at the time that they were inflicted such that it would have been obvious to the perpetrator that they had caused harm. Thereafter he agreed that pain responses vary and could be confused with distress in a baby for other reasons by another carer who had not witnessed the trauma.
37. Dr Watt was asked about possible explanations. Specifically he was asked whether it was possible that the leg fractures could be cause by the pulling on R's leg by an over enthusiastic 5 year old. He agreed that the action of pulling could have caused the injuries but he considered that a 5 year old would not be able to apply sufficient force.
38. He was also asked about the possibility that the fractures may have been caused by the mother or father rolling onto R in bed. Again he agreed that in the event that when the parent rolled onto R the limb in question was entrapped in some way and then force applied that this is a mechanism which with sufficient force could cause a fracture. However, there are so many of these fractures in so many different places he maintained that it was improbable that they were caused in this way. This would involve R having to have his limbs entrapped in a most unnatural way and on a number of occasions. Dr Watt thought that highly unlikely.
39. I have seen Dr Watt give evidence on a number of occasions. He is, in my view, an impressive witness. He is precise, clear, limits himself to his own areas of expertise and is always willing to consider alternatives so that his evidence is considered, fair and balanced.
40. Dr Yadav, the paediatrician, was less impressive as a witness. I was surprised to hear him defer to the radiologists on timing. In my experience the radiologist can only ever give a wide time frame whereas a paediatrician can often narrow that window through forensic analysis of the clinical signs. So far as I can see he has carried out little forensic analysis of the clinical observations of the treating doctors or of lay parties so as to try and assist the court in narrowing the time frame for these injuries. It may be that there was little to go on here. That is certainly true so far as the lay witnesses are concerned. I have considered whether that has hampered me in my determination but I have concluded that it has not.
41. On the issue of pain Dr Yadav has been confusing and therefore equally unhelpful. In his written evidence he boldly stated that the fractures would have been painful at the time of insult and for some time thereafter making injury obvious to a carer. On the back of that assertion the local authority has had misgivings about these grandparents. Yet in the experts meeting Dr Yadav rowed back to the position we all understand which is, that there will have been evident pain at the time of the insult such that the perpetrator or any other carer there at the time will have been aware that the child was hurt. However, whether that pain continues and if so for how long depends on many things. It depends on the child. It also depends upon whether these fractures were displaced – a displaced fracture giving the most pain for longer and for obvious reasons because the bones rub at the break. Other fractures, he told us in evidence, in particular metaphyseal can be asymptomatic and not even discovered on examination.

Conclusions on the Medical Evidence

42. The medical evidence points to the following conclusions:

i) R has suffered 11 separate fractures in all 4 of his limbs as set out elsewhere in this Judgment

ii) The mechanism necessary to cause the fractures is a combination of bending and snapping, a blow or impact or pulling and twisting.

iii) Whatever the mechanics the force necessary to cause the fractures is more than one would use in ordinary handling of a baby.

iv) The likelihood is that the fractures occurred on two separate occasions though on each of those occasions there could have been a series of events causing each separate insult.

v) The older set of fractures were likely to have been caused between 9^th and 23^rd December and the second set after 18^th /19^th December.

vi) Pain at the time of the insult would have been evident to the perpetrator and any carer present would have been aware that the child had been hurt but thereafter it is impossible to be satisfied that there would have been distress which would have been obviously indicative of pain or injury rather than anything else.

vii) There is no evidence to support the contention that R's fractures have occurred as a result of an underlying diagnosis of OI, other connective tissue disorder or skeletal dysplasia.

viii) It is unlikely that the fractures to the legs or any of them were caused by a 5 year old pulling on R's legs.

ix) It is unlikely that the fractures were caused by one or other of the parents rolling over onto R in bed.

43. As I have already stated the court does not consider the medical evidence in isolation. I must assess the medical evidence in the light of the other evidence. In the first place there is the evidence about this family – their lives and their personalities - which is of significance, and secondly there are the accounts of what they remember happening in the lead up to this traumatic event.

The birth family generally

44. The birth family in this case are not really known to social services. The mother has grown up in a happy family – eldest of 5 children. Her next eldest sibling is suffering some issues as a teenager but nothing out of the ordinary. There is no history of social services involvement. There is no suggestion of criminal activity, drug use or any form of risk taking behaviour. They work and always have done. The mother and her siblings have attended school and the younger siblings continue to do so. They are a decent hard working family living in a south east London suburb.
45. The mother works in a nursery and there have been no complaints about her handling of the children there.
46. The father's family are less visible but there is nothing to be taken from that. There is equally nothing contra-indicated in his family background. The fact that he does not have close relationships with all of his siblings tells me nothing other than he is normal. What is significant for me is that he is a young man who is in work and likes to work. That is a positive.
47. I have skimmed the parenting assessment of these two young people. The report is generally a good one. They are observed to have the makings of good parents and whatever they lack is something that comes from being first time parents.
48. Having said that, these parents are quite young and it is also right to observe that they found themselves thrown into living together with a baby. Again that may mean nothing but it is a fact that prior to the birth of R they had not lived together independently of family.
49. When R was born the early days were spent surrounded by the buzz of the maternal family. From 17^th December, very suddenly, it seems to me, they were in a strange flat on their own with a baby. It was noticeable during their interviews with the police and during their evidence before me that they both commented on how quiet it was in that flat – just the three of them. The father has said that he missed going to work. I entirely understand why that would be. The mother too must have missed the company of her work colleagues – no doubt that was why she was looking forward to the outing and the Christmas night out.
50. I have absolutely no doubt that when these parents tell me that they were delighted at the pregnancy and even more delighted at the arrival of R, they are telling the truth. Equally, I accept unequivocally that they love their son unconditionally, that he means everything to them and that neither of them would want to hurt him. However, after the euphoria of the birth, settling into life with a baby can be difficult at the best of times. In this case the parents must have had the added relief that R did not have the problems that had been predicted as possible. No matter how much a parent loves their child, lets be honest – they are hard work. Babies in particular. They deprive you of sleep, dictate what you can and cannot do and where you can and cannot go and in the early weeks you don't always get a great deal back. Being the parent of a new born can be a very lonely and isolating experience.
51. Whilst I agree that there is closeness in the maternal family there is no doubt that the move into independent accommodation with a baby so suddenly must have been to some degree isolating for them. I am shored up in this view by the lack of detail from either of them about what they did during the long days in that flat. They had no experience of being together for such extended periods of time with nothing else to do but look after this child. It seems clear that they shared the caring tasks but there is no impression given in their descriptions of a comfortable and contented existence; no sense of domestic bliss. That may be because they are looking back on those events through the prism of what has happened to separate them from R but nonetheless one gets the impression that it was all rather flat; anticlimactic perhaps.
52. It seems to me that the father's bad feeling that he had about their new home can be seen as an extension of that observation. I will deal with that further when I come to his evidence.
53. Against that background let me turn to the evidence of the parents regarding the events leading up to the presentation at hospital on 29^th December.

Mother's evidence

54. As a witness I found the mother troublingly vague. I don't know why she was so vague. When she was questioned, for instance, about her sudden separation from the father she was unable to describe how she had broken off their relationship and her reasons why seemed unconvincing. She was quite flat when she gave her evidence. She smiled a lot but I do not think that indicated her mood. I think she smiled when she could not remember or answer, not unlike a child. Sitting behind her Counsel, she spent most of the hearing on the verge of tears, looking constantly towards her mother for support.
55. I was left with a feeling that she had not told me everything that she knew or believed. Again, using the separation as an example, I was less than convinced that she wanted to be separated from the father or knew why she was separated from him. I caution myself that there could be many reasons for this presentation but it made an impression on me none the less.
56. The mother stood by the account of the days during the window of opportunity set out in her written evidence. I do not intend to rehearse that evidence here. It is significant in my view that there is no identification by her of any traumatic episode or even obvious pain reaction in R until his waking up with a swollen leg, other than the suggestion made that he was in pain on Boxing Day.
57. It was clear from her evidence that:

i) When living at the grandparents home she bore most responsibility for the day to day care of R;

ii) Prior to 17^th December the father visited a couple of times per week but when he was there he took on as many child care tasks as he was able. He particularly enjoyed bathing R.

iii) After 17^th December they shared the care of R. She would do most of the daytime care and the father would support her by getting up in the morning and letting her sleep on. At those times he was alone with R.

iv) She did not see R actually vomit or pass blood on 19^th/20^th but she did see the blood on the bib.

v) She agreed that R was "out of sorts" on return from the Christmas festivities on Boxing Day. Whilst she described R crying as if in pain to the police she has rowed back from that a little in her oral evidence but not significantly so in my view.

vi) She witnessed no traumatic event which might have been responsible for any of these injuries except for the head-butt in respect of which her evidence has been consistent.

58. It is not for the parents to provide an explanation but as I have already rehearsed it is a factor taken into account by the experts and one which I am entitled to weigh in the balance.
59. The mother has admitted to sleeping in bed with R. Her evidence on this matter though was it happened on one or two occasions when she had been feeding R and nodded off with him beside her in bad. She was at pains to emphasise that she did not sleep with him in bed all night. What is more, there was no evidence that she remembered rolling onto him or that she was woken by him crying or in pain. She recounted nothing remarkable about these instances.

Father's evidence

60. The father has been described by a number of professionals in the case as not making eye contact. That has not been my experience of him. He looked me in the eye frequently during his evidence. I noticed as he sat in the body of the court that he does tend to bow his head and wondered whether that is what had been noticed. The point is that I did not feel unable to connect with him through an absence of eye contact.

The concerns expressed regarding father's belief in "bad spirits"

61. A major part of his evidence was directed towards the issue of his religious beliefs. This part of the evidence has troubled others more than it has me. I note that even the Guardian alerted the parenting assessors to his belief in "evil spirits". It was put to him from early on in his evidence that he had told the police in his interview that he believed his son to be occupied or possessed by the devil/ an evil spirit. This has caused some to insist that he has a possible mental health issue. There is no other evidential basis for this assertion.
62. I have found this young man to be completely open and frank about his religious beliefs and from where they emanate. He has been brought up by a mother whose religious beliefs might be considered by some to border on "superstition". However, when you peel it back and give him the opportunity to explain I have found nothing concerning in his views.
63. I am quite satisfied that what he was seeking to explain in his police interview and in his evidence before me was a strongly held belief that something other worldly and possibly disruptive, evil if you like, bringing bad luck could be warded off through prayer. There is nothing unusual in such a belief. Many mainstream Christian faiths have their homes blessed by a priest before occupying. Other faiths have prayers written on paper rolled up into a container and nailed above the door to keep their home safe. The crucifix over the entry to the home. The blessing of a baby by a practising catholic before christening lest anything untoward might happen. Crossing your fingers. In my judgment these are all examples of the same thing.
64. He denies that he has been accurately reported by the SW. I have not heard the evidence of the SW – it has not been necessary but I am prepared to believe that even if it she accurately recorded what she believed he was saying it was misunderstood and I am prepared to believe that because of the reaction I have seen to this subject – the excitement that is has caused - just in this hearing.
65. In his interview with the police he was questioned for 3 ½ hours without a legal representative. He is led by the officer questioning him on many of these issues such that it is not clear what he might have volunteered. He didn't have a chance. I am afraid that I consider that he has not been given the chance to explain himself to his partner and her family either. I think it entirely possible that in this case everyone has been looking for an explanation as to how this baby has suffered such significant injuries in the care of a couple about which there have been no contra-indications to date. As a result, those investigating seem to have been prepared to latch onto anything apparently unusual. In my view this issue about extreme religious beliefs is a red herring.
66. Turning to his evidence of the events leading up to the presentation at hospital on 29^th December his account also followed his written evidence. When it comes to the events immediately before the presentation to hospital I think the father gives a fuller and more detailed account than mother but as will become apparent I am concerned it is not as full as it could be. He confirmed that:

i) Although he told the police that he was at the GPs home more often than he was (which I might add would have been contrary to his interests if he was seeking to avoid being identified as perpetrator) he has confirmed the mother's evidence that it was probably about twice a week;

ii) He agrees that they shared the child care tasks after 17^th December;

iii) He supports the mother's account of the head butt;

iv) He agrees that he missed going to work;

v) He was rather firmer about the fact that R was "out of sorts" on Boxing day.

The delay in taking R to hospital.

67. Father insists that on the morning of 29^th December when R's leg was obviously swollen he had advocated the calling of an ambulance but had been overruled by the mother – she disputes this. There is also the curious evidence regarding the calling of an organisation called Grabadoc. In fact the parent both say that it no longer exists and actually what was called was 111. Father says it was called a number of times and mother says only once.
68. What I find curious and troubling about the events of 28^th/29^th December is the failure of either of these parents to react to what was an obvious injury to their child. This is in complete contrast to their rush to hospital on 20^th December. The mother says that he had woken at 2am "screaming" – an "unusual cry". He was "very hot" and he had a "swollen leg" – it was "red and larger than normal". The mother texted the grandmother but it was 2.30am and unsurprisingly she did not respond. She did not even follow up with a call. I find it astonishing that neither of them took any action at that point.
69. The next day they took R for some fresh air and fixed up a GP appointment. He was due to be seen at 4.30pm that afternoon – over 12 hours since his leg had been observed as swollen and he had been screaming, apparently in pain. Whether father advocated the calling of an ambulance or not what is clear is that he did not feel the need to follow that through and indeed he went off to work rather than accompany the mother to the GP.
70. It took the GM to look at the leg and tell the mother that they needed an ambulance before there was any urgency in the situation. In fact so concerned was the GM that when they were told they would have to wait she got the GF to take them to the hospital.
71. Neither of the parents has explained why it was they took so much time to get R to the hospital on that day. They are both vague in their evidence about what was going on in that flat immediately before the discovery of the swollen leg and immediately after. During their evidence, whilst the father did acknowledge that with hindsight he thinks that they should have got treatment sooner there was no reason given for why they did not see that at the time. It should have been obvious. Indeed I am satisfied that it was obvious and I am left wondering why they reacted in this way. This crucial piece of evidence adds to my general concerns that neither the mother nor the father are giving a full account of what was happening in that flat around that time. What this means is that I cannot be certain that either of them have told me everything.

Grandparent's evidence

72. GM filed one statement and made one to the police. The GF also filed a statement. There is no conflict between them in their evidence. They add nothing of significance to the history in my view.
73. They have confirmed that during the time that mother was living with R at their home she did bulk of the caring though MGM would help as would their 15 year old, M. M never alone with R. The GM raised the issue of her youngest, Mi, who is 5, being a little rough at times with R and describes an occasion when she was pulling his legs. Significantly there was no evidence that R was overly distressed by this. The grandparents record nothing of note over Christmas period.
74. The GM confirms mother's account of sending the text in the early hours of the morning and her advice that an ambulance should be called once she had seen the injury.

Were these injuries caused deliberately?

75. Standing back, as I must, and considering the whole of the evidence, giving no special status to the experts, carefully weighing all that is known about these parents into the balance, I am nevertheless quite satisfied that the fractures sustained by R were deliberately inflicted.

i) I accept the medical evidence that they have no genetic or organic cause.

ii) I have borne the possibility of an unknown cause in mind but consider this highly improbable added to which the evidence of likely cause is overwhelming.

iii) I accept the medical evidence that it is unlikely that they were caused by a 5 year old pulling on R's leg or by the mother rolling over on one or possibly two occasions. A 5 year old would not have the physical power to cause a break and in any event this would explain only metaphyseal leg injuries. The account given by the mother of rolling over comes with no detail - about frequency for instance. The medical evidence is shored up by the fact the in relation to each of these events there is no account given that the leg pulling or the co-sleeping was marked out or punctuated by any distressed behaviour on the part of R.

iv) I am satisfied that the injuries would require force beyond normal handling.

v) These are extensive and significant injuries to a baby by reason of their number and the fact that most of them are transverse fractures. I am quite satisfied that when R suffered these injuries he will have been in pain and obviously so, so that the perpetrator would have been aware that they had caused him harm.

vi) Whilst I weigh in the balance the positives regarding the parent's family histories and the observations of them in the parenting assessment, this of itself is insufficient to call into question the medical evidence.

vii) I am very concerned that the parents have not given a full and frank account of the events of that evening. On their own evidence they failed to secure proper medical treatment for R at a time when he was clearly injured. The absence of any explanation as to why they waited so long to take him to a doctor raises a real possibility that they are both seeking to conceal something from the court.

76. For these reasons I consider the case that these fractures were non accidental in nature and therefore deliberately inflicted is overwhelming.
77. The bruises here are of no less significance when compared to the fractures. I must consider three separate instances of bruising. Bruising in a non-ambulant child is always of significance. In case it is not obvious, a baby of R's age cannot move himself around in a way that an older child does sustaining bruising from his/her normal interaction with the world in which he lives. There is no evidence that there is any organic cause for this bruising. With the exception of the bruise above the eyelid, like the fractures, there is no account given of anything which could explain how these bruises have occurred.
78. Let me deal with the bruise above the eyelid first. The mother has been consistent in her description of an occasion when she had been holding R and his head had flopped forward towards her face and made contact with her head/ cheek. That has been considered as a possible explanation for the bruise above the eye. The account is supported by the father and has been consistently and spontaneously given by them both.
79. It is significant in my view that this is the only account of a possible trauma that these parents relate. It is one part of their evidence that has a ring of truth about it and I find that I am not satisfied that the local authority has been able to discharge the burden of proof in relation to that injury. I am not satisfied that it is more likely than not that this was an inflicted injury.
80. That is distinctly different to the evidence regarding the other two bruises in respect of which there is no history given. Turning first to the bruise on the foot, I am satisfied that there is no reason why a bruise in that place on R's foot would have been caused by ordinary handling. It is right in the area of the first discovered leg fractures and where R had a swelling. Accordingly, I am satisfied that it is more likely than not that this bruise was inflicted.
81. I am satisfied that the same applies to the two parallel bruises on R's cheek. This too is a bruise which cannot have been inflicted through normal handling. There is no suggestion that R had fallen on his face or been hit in the face by anything. I am entitled to weigh that absence of history in the balance and having done so I find myself satisfied that these facial bruises were likewise deliberately inflicted.

Who caused the injuries?

82. I am completely unable to determine who caused these injuries. It is agreed that there are only two possible perpetrators. I can neither identify one as the sole perpetrator nor rule out either of them from the pool.
83. I am satisfied that there is a real possibility that it was one or the other of the two parents who harmed R and for the following reasons. First, there is nothing in the evidence which enables me to narrow the time frame such that I can be satisfied that it was more likely than not one of them rather than the other. It seems to me that they have had equal opportunity to perpetrate these injuries. I accept that before 17^th December the mother had the greater opportunity but I consider it more likely that the injuries post date the move to the flat. There has been absolutely no evidence from the grandparents that R was grizzly or out of sorts whilst the mother cared for him in their home. On 16^th December he had a thorough 8 week check at the hands of a registrar in hospital and nothing concerning was noted. Add to that the fact that whilst in her mother's home I believe that the mother must have felt more supported and less isolated and I am led to the conclusion that R probably did not suffer injury in the home of the grandparents. Once in the flat the parents were caring for their son separately and together.
84. I cannot determine when the two sets of injuries occurred. I do not think that I need to. There is a possibility, but I put it no higher than that, that the first set of injuries occurred before the Christmas visit to the grandparents – hence the evidence about R being in pain on Boxing Day – and the second set after that and close to the admission to hospital but before the development of the bruise and swelling. However, I cannot be satisfied of that time line – not least because I am reliant upon the parent's account of how R was on Boxing Day and after. However, it seems to me that even if I was able to pin these injuries down to a narrower time frame the fact remains that both of these parents were there and caring for R throughout so the problem of being unable to chose between them remains.
85. I do not consider that the mother's vagueness is sufficient to cause me to be able to identify her as the more likely perpetrator. Likewise, I do not consider that the father's religious beliefs mark him out as a prime candidate. In short there is nothing to point to one or other of them evidentially.
86. The most significant piece of evidence is again the failure of either one of them to present at hospital after seeing the swollen leg. That was a decision they effectively made together and neither of them felt so strongly about the decision not to seek immediate treatment to counterman the other. I am satisfied that they both knew by then that something was wrong with their son and for reasons that they have chosen not to reveal in these proceedings they did not react as a protective parent would.

Threshold

87. It follows from those findings that I am satisfied that R has suffered significant physical harm and that harm is attributable to one or other or both of his parents. The threshold is self evidently crossed.

Case No: ZE15C00039

Re: R SCHEDULE OF FRACTURES SUSTAINED BY R

No	Date of X-Ray	Area of the body injured	Type of injury	Whether healing	Estimated date of trauma (+ medical professional) + mechanism	Comment
1	30/12/2014	Lower right leg	Non-displaced sclerotic healing fracture of right proximal tibia of transverse orientation	Yes sclerosis	Between 9 – 23 December (Tuesdays) Bending/snapping or blow/impact
2	30/12/2014		Spiral fracture of right distal tibia	Yes (early new bone)	Between 9 – 23 December (Tuesdays) Twisting/rotational mechanism
3	30/12/2014		Metaphyseal fracture of right distal tibial metaphysis	Yes (early new bone)	Between 9 – 23 December (Tuesdays) Pulling/twisting or pulling and twisting
4	30/12/2014	Right arm	Incomplete fracture of right distal radial shaft	Yes (early new bone)	Between 9 – 23 December (Tuesdays) Bending/snapping
5	30/12/2014		Incomplete fracture of right distal ulnar shaft	Yes (early new bone)	Between 9 – 23 December (Tuesdays) Bending/snapping
6	29/12/2014 (Monday)	Lower left leg	Transverse fracture of left proximal tibia with moderate soft tissue swelling	None	After Thursday 18 December Bending/snapping or blow/impact
7	29/12/2014		Transverse fracture of left distal tibia with no angulation	None	After Thursday 18 December Bending/snapping or blow/impact
8	29/12/2014		Incomplete greenstick fracture of the left distal fibula at the same level	None	After Thursday 18 December Bending/snapping or blow/impact
9	30/12/2014 (Tuesday)	Upper right leg	Transverse orientated fracture of the right distal femur	None	NB 19 December Bending/snapping or blow/impact
10	30/12/2014	Left Arm	Transverse fracture of left distal radius of a torus configuration	None but some sclerosis	NB 19 December Bending/snapping
11	30/12/2014		Incomplete buckle fracture of left distal ulna with minimal volar angulation		NB 19 December Bending/snapping

Dated: 8^h July 2015 revised 17 July 2015