INTRODUCTION

1.      This is a complex and troubling case involving extensive documentary evidence. The extent of the evidence and the nature of the allegations which has required extensive forensic analysis, reflected unfortunately in the length of this judgment. I am concerned with a young boy, J (dob: 2017) who is now aged between 3 and 4 years. J has been placed in foster care since 2 October 2019, initially accommodated, but since 24 October 2019, subject to an interim care order.

2.      J’s parents are AB (aged 24) and CD (aged 25) to whom I shall refer to as M and F from now on. J is the first child for both parents.

3.      M’s current partner is XYZ who was joined as an intervener to these proceedings on 2 April 2020 on the basis that findings may be made against him in respect of some of the injuries caused to J in October 2019 and which the local authority asserts are inflicted injuries. I shall refer to him as XYZ.

4.      This is a case in which, although there is a vast volume of documentary evidence which warrants detailed forensic scrutiny, ultimately it remains a case in which one of the central issues is credibility - the credibility of M, F and XYZ, as well as other lay and professional witnesses.

5.      This court is not required to make findings on every issue in the case. The court is only required to make findings on the relevant issues and those which assist in the determination of the matters before it at that time.

6.      I have therefore followed that practice in this judgment. I am very conscious that there may be other issues. I have endeavoured to remain focused in this hearing on determining only the facts necessary to properly resolve the issues before the court and to deal with the case justly.

THE FACT-FINDING HEARING

7.      This fact-finding hearing took place before me over the course of 21 days on 2-6, 9-13, 16-20, 23-27 November and 9 December 2020. It was heard entirely remotely with the agreement of all parties in light of the prevailing Covid-19 health crisis in the UK.

8.      Throughout the hearing I have considered all the relevant evidence in the case available to me at that time. Failure to mention any specific part of the evidence should not be taken as an indication that I have failed to consider it.

9.      During the fact-finding hearing I heard oral evidence from a number of lay, professional and expert witnesses, including –

•       Dr L, consultant paediatric neurologist (treating clinician)

•       Dr EP, paediatric specialist registrar (treating clinician)

•       HV, health visitor

•       Dr U, consultant paediatrician (treating clinician)

•       EF, head of safeguarding children at the Hospital Trust

•       GH, social worker

•       Professor Peter Fleming, consultant paediatrician (expert)

•       Dr SP, consultant paediatrician (treating clinician)

•       IJ, deputy designated safeguarding lead

•       KL, manager, teacher and designated safeguarding lead

•       MN, early years practitioner

•       BX, previous team manager

•       Dr Gwen Adshead, consultant in forensic psychiatry (expert)

•       Dr Anand Kumar Saggar, consultant in clinical genetics (expert)

•       Dr Diana Birch, paediatrician (expert)

•       Dr S, consultant paediatrician (treating clinician)

•       M

•       F

•       Paternal grandmother (PGM)

•       XYZ

10.  I received and considered written submissions shortly after the conclusion of the oral evidence, and also heard short oral submissions on behalf of the LA, M and F at their request.

11.  I am extremely grateful to all advocates for their assistance. I am also very grateful to the parents and XYZ for the dignified way in which they conducted themselves throughout the proceedings.

LEGAL FRAMEWORK

Burden of proof

12.  In any fact-finding exercise the burden of proof of proving any allegation lies on the party seeking to prove the allegations. In this case it is the local authority that brings these proceedings and identifies the findings they invite the court to make. Therefore, the burden of proving the allegations rests with them. Those against whom allegations are made do not themselves have to provide an explanation or context for any disputed allegation or to prove that any allegation is false.

13.  The burden of disproving a reasonable explanation put forward by the parents falls on the local authority (see Re S (Children) [2014] EWCA Civ 1447 where Macur LJ said at paragraph [10] –

‘… it was for the local authority (i) to disprove the possible explanations for injury, whether accidental or congenital and (ii) establish that, on the balance of probabilities, the whole of the evidence led to the conclusion that the injuries were non accidental rather than simply incapable of being explained otherwise.’

14.  The burden of proof should not be reversed. There is no obligation on a parent to provide an explanation. If an explanation or hypothesis is put forward by or on behalf of a parent which is not accepted by the court, the failure to do so does not establish the local authority case. In Rhesa Shipping Co SA v Edmunds (HL(E)) [1985] 1 WLR 948 Lord Brandon said at pages 955G-956D –

‘…the late Sir Arthur Conan Doyle…describes…Mr Sherlock Holmes as saying to…Dr Watson: “How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth?’…In my view there are three reasons why it is inappropriate to apply the dictum of Mr Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case…

The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regards to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated…

The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden.

15.  In Re BR (Proof of Facts) [2015] EWFC 41 Peter Jackson J, as he then was, said at [15]-[16] –

‘[15] … 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. However, if the judge’s observations are understood to mean that account should not be taken, to whatever extent is appropriate in the individual case, of the lack of a history of

injury from the carer of a young child, then I respectfully consider that they go too far.

[16]           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.’

16.  The concept of the pool of perpetrators does not alter the general rule on the burden of proof - see Re B (Children: Uncertain Perpetrator [2019] EWCA Civ 575. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown.

Standard of proof

17.  The appropriate standard of proof is the civil standard of the simple balance of probability as confirmed by the House of Lords in Re B (Children) [2008] UKHR 35 per Lord Hoffman at paragraph [2] –

‘If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.’

18.  This means that if the local authority or another party proves an allegation to this standard, that fact must be treated as having been established and will bear on all future decisions concerning the children. Equally, it means that if allegations are not proved to that standard, then they must be disregarded completely. However, it does not follow that a rejection of evidence mandates a judge to find that it is false; see Re M (Children) [2013] EWCA Civ 388.

19.  The inherent probability of an event remains a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 131 In Lord Hoffman said at paragraph [15] –

‘[15] Common sense, not law, requires that in deciding this question regard should be had, to whatever extent appropriate, to inherent probabilities.’

20.  However, it is not the case that the more serious the allegation, then the more cogent the evidence needs to be to prove it. In Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 131 Baroness Hale said at paragraph [70] –

‘[70] My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under s 31(2) or the welfare considerations in s 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.’

21.  There is therefore no logical or necessary connection between seriousness and probability. In Re B (Children) [2008] UKHR 35 at [72-73] Baroness Hale said –

‘[72] As to the seriousness of the allegation, there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other

seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.

[73] In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some- one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.’

Judicial approach to evidence

22.  Findings of fact must be based on evidence not speculation; see Re A (Fact Finding: Disputed findings) [2011] 1 FLR 1817 at [26] Munby LJ (as he then was) said –

‘It is an elementary position that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation.’

23.  In Re B (Children) [2008] UKHR 35 at Baroness Hale said at paragraphs [31-32]

‘[31] … In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed

without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.

[32] In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.’

24.  The judge must decide if the facts in issue have happened or not applying the binary system made plain by Lord Hoffman in Re B (Children) [2008] UKHR 35 at paragraph [2]. This applies to the conclusion as to the fact in issue, not the value of individual pieces of evidence (which fall to be assessed in combination with each other).

25.  The court must take into account all of the evidence and consider each piece of evidence in the context of all the other evidence and look at the overall canvas. Evidence should not be assessed in separate compartments. The judge must assess and evaluate the evidence in its totality; see Re T [2004] 2 FLR 838 where Butler-Sloss P said at paragraph [33] –

‘Evidence cannot be evaluated and assessed separately in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward ... has been made out to the appropriate standard of proof.’

26.  The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them; see Re W and another (Non-accidental injury) [2003] FCR 346.

27.  See also Ryder LJ in Re M (Children) [2013] EWCA Civ 388 at paragraph [6] –

‘[6] When any fact-finding court is faced with the evidence of the parties and little or no corroborating or circumstantial material, it is required to make a decision based on its assessment of whose evidence it is going to place greater weight upon. The evidence either will or will not be sufficient to prove the facts in issue to the appropriate standard. As has been said many times in one form or another, the judge is uniquely placed to assess credibility, demeanour, themes in evidence, perceived cultural imperatives, family interactions and relationships.’

28.  However, in assessing and weighing the impression which the court forms of the parents, the court must also keep in mind the observations of Macur LJ in Re M (Children) [2013] EWCA Civ 1147 at [12], that –

‘Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.’

29.  That need for caution and the dangers of over-reliance on demeanour (and the research base to support that danger) was echoed by Leggat LJ in Sri Lanka v The Secretary of State for the Home Department [2018] EWCA 1391 at paragraphs [40-41] –

‘40. This is not to say that judges (or jurors) lack the ability to tell whether witnesses are lying. Still less does it follow that there is no value in oral evidence. But research confirms that people do not in fact generally rely on demeanour to detect deception but on the fact that liars are more likely to tell stories that are illogical, implausible, internally inconsistent and contain fewer details than persons telling the truth: see Minzner, “Detecting Lies Using Demeanor, Bias and Context” (2008) 29 Cardozo LR 2557. One of the main potential benefits of cross-examination is that skilful questioning can expose inconsistencies in false stories.

41.       No doubt it is impossible, and perhaps undesirable, to ignore altogether the impression created by the demeanour of a witness giving evidence. But to

attach any significant weight to such impressions in assessing credibility risks making judgments which at best have no rational basis and at worst reflect conscious or unconscious biases and prejudices. One of the most important qualities expected of a judge is that they will strive to avoid being influenced by personal biases and prejudices in their decision-making. That requires eschewing judgments based on the appearance of a witness or on their tone, manner or other aspects of their behaviour in answering questions. Rather than attempting to assess whether testimony is truthful from the manner in which it is given, the only objective and reliable approach is to focus on the content of the testimony and to consider whether it is consistent with other evidence (including evidence of what the witness has said on other occasions) and with known or probable facts.’

30.  When considering the ‘wide canvas’ of evidence the following section of the speech of Lord Nicholls in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 remains relevant –

‘[101B] I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, proposed changes within the membership family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.’

31.  In Westminster City Council v M, F and H [2017] EWHC 518 (Fam) Hayden J said at paragraph [25] –

‘[25] The Local Authority must, ultimately, assess the manner in which it considers it can most efficiently, fairly and proportionately establish its case. The weight to be given to records, which may be disputed by the parents, will

depend, along with other factors, on the Court's assessment of their credibility generally. Here, the reliability of the hearsay material may be tested in many ways e.g., do similar issues arise in the records of a variety of unconnected individuals? If so, that will plainly enhance their reliability. Is it likely that a particular professional e.g., nurse or doctor would not merely have inaccurately recorded what a parent said but noted the exact opposite of what it is contended was said? The reaction of witnesses (not just the parents), during the course of oral evidence, to recorded material which conflicts with their own account will also form a crucial aspect of this multifaceted evaluative exercise. At the conclusion of this forensic process, evidence can emerge and frequently does, which readily complies with the qualitative criterion emphasised in Re A (supra)…’

Evidence arising since the commencement of proceedings

32.  In M (A Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424 at 440 Lord Templeman clarified that even if the risk of significant harm has reduced or disappeared since protective measures were taken, this does not preclude the court from making a care order so long as the threshold was met at the time those protective measures were taken.

33.  In Re G (Children) (Care Order: Evidence) [2001] EWCA Civ 968 at paragraphs [9-15] Hale LJ (as she then was) confirmed that although the time that threshold must be established is the time at which protective measures are taken, further developments or evidence which comes to light after that date may still be considered at the hearing.

Credibility, memory, recall and reconstruction

34.  The evidence of witnesses and the explanations given by them are of the utmost importance and a clear assessment of their credibility and reliability must be made by the court. In the context of the consideration of a wide canvas of material in reaching the factual decisions in the case, investigations of fact should have regard to the wider context of social, emotional, ethical and moral factors. The assessment of credibility generally involves wider difficulties than mere ‘demeanour’, which is mostly concerned with whether the witness appears to be telling the truth as he or she now believes it to be. With every day that passes the memory becomes fainter and the

imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance.

35.  Every time a court has to assess ‘memory’ and ‘credibility’ it is faced with a difficult process and a sometimes almost impossibly difficult problem. In Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Leggatt J (as he then was), confirmed the importance of a proper approach to memory and eyewitness testimony –

‘[16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.

[17]          Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).

[18]          Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our

present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

[19]          The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20]          Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.

[21]          It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference

between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.’

Hearsay evidence

36.  Hearsay evidence which must be considered in the wider context. Proper caution must be exercised in view of the fact that hearsay evidence has not been the subject of formal challenge in cross-examination.

37.  In R v B County Council ex parte P [1991] 2 All ER 65 (at 72J), [1991] 1 FLR 470 at 478, Butler-Sloss LJ observed that –

‘A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon.’

38.  When assessing the weight to be placed on hearsay evidence the Court may have regard to the matters set out in section 4 of the Civil Evidence Act 1995 even in cases (such as this one) where the Civil Evidence Act does not strictly apply.

39.  Section 4 of the Civil Evidence Act provides that –

(1)  In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2)   Regard may be had, in particular, to the following—

(a)   whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)   whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)    whether the evidence involves multiple hearsay;

(d)   whether any person involved had any motive to conceal or misrepresent matters;

(e)    whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f)     whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

Expert evidence

40.  In considering the evidence of an expert witness, the court must not confuse the functions of the expert and the judge whose roles are distinct. It is for the court to make the factual decisions based on all the available evidential material in the case, not just the scientific or medical evidence; and all that evidence must be considered in the wider social and emotional context; see A County Council v X, Y and Z (by their Guardian) [2005] 2 FLR 129.

41.  If the court disagrees with an expert’s conclusions or recommendations an explanation is required; see Re B (Care: Expert Witnesses) [1996] 1 FLR 667 and Re D (A Child) [2010] EWCA 1000.

42.  In Re B (Care: Expert Witnesses) [1996] 1 FLR 667 Ward LJ gave the following guidance as regards the evidence of expert witnesses –

‘The expert advises but the Judge decides. The Judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the Judge suspends judicial belief simply because the evidence is given by an expert.’

43.  Butler-Sloss LJ continued –

‘An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the Judge to give reasons for disagreeing with experts’ conclusions or recommendations. That, this Judge did. A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes.’

44.  In A County Council v K, D and L [2005] EWHC 144 (Fam) Charles J emphasised at paragraph [39] that the roles of the court and the expert are distinct, and that it is the court that is in the position to weight the expert evidence against its findings on the other evidence. A paragraph [44] he noted that in cases concerning alleged non- accidental injury to children, properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision.

45.  At paragraph [49] Charles J went on to make the following observations about the judicial function –

‘i) The court has to take into account and weigh the expertise and speciality of individual experts and is often assisted by an overview from, for example, a paediatrician.

ii)   In a case where the medical evidence is to the effect that the likely cause is non accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof.

iii)   The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury (or human agency) and the clinical observations of the child, although consistent with non accidental injury (or human agency) of the type asserted, is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that on the balance of probability there has been a non accidental injury (or human agency) as asserted and the threshold is established.

iv)   Such findings have to be based on evidence and findings of fact to the civil standard and reasoning based thereon.

46.  In assessing the expert evidence the court must bear in mind that in cases involving a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bring their own expertise to bear on the problem, and the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see the observations of Eleanor King J (as she then was) in Re S [2009] EWHC 2115 (Fam)).

Unknown and disputed cause

47.  The court is not precluded from making a finding that the cause of harm is unknown. In Re R (Care Proceedings: Causation) [2011] EWHC 1715 (Fam) Hedley J said at paragraph [10] –

‘[10] ... there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.’

48.  The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

49.  In Re U (Serious Injury: Standard of Proof); Re B [2004] EWCA Civ 567, Butler- Sloss P explained at paragraph [23] that –

‘i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

ii)   Recurrence is not in itself probative.

iii)     Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause.

iv)   The Court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice.

v)     The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.

Lies

50.  The court should be cautious when evaluating the evidence of a dishonest witness; see

R v Lucas [1981] QB 720 –

‘If a court concludes that a witness has lied about a matter, it does not follow that he has lied about everything. A witness may lie for many reasons. For example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure...The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just case, or out of shame or out of a wish to conceal disgraceful behaviour from their family.’

51.  In Re A (A Child) (No.2) [2011] EWCA Civ 12 Munby LJ, as he then  was,  observed –

‘[104] Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness – as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core. It is trite that there are all kinds of reasons why witnesses lie, but where the issues relate, as here, to failed marital relationships and the strong emotions and passions

that the court process itself releases and brings into prominence in such a case, the reasons why someone in the mother's position may lie, even lie repeatedly, are more than usually difficult to decipher. Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.’

52.  In Re M (Children) [2013] EWCA Civ 388 Ryder LJ said at paragraphs [7-8] –

‘[7] A Lucas direction is a criminal direction derived originally from a case on corroboration, R v Lucas [1981] QB 720. It is used to alert a fact-finding tribunal, that is a jury in a criminal trial, to the fact that a lie told by a defendant does not of itself necessarily indicate guilt because the defendant may have some other reason for lying; that is, he may lie for innocent reasons. A witness may lie because she lacks credibility, or because she has an innocent motive for lying. If she lies about the key fact in issue, that is one thing; if she lies about collateral facts, that may be quite another. A judge of fact may not be able to separate out every fine distinction, but may nevertheless conclude that an allegation is proved, despite the fact the witness has lied about other matters.

[8] This is often simplified in the circumstances of emotionally-charged allegations remembered through the fog of distress and relationship breakdown as a core of truth surrounded by sometimes exaggerated and sometimes badly recollected or hazy memory. There may also be an overlay of deliberate untruth arising out of the anger and distress of the breakdown and/or the nature of the application before the court…’

53.  In Re H-C (Children) [2016] EWCA Civ 136 the Court of Appeal confirmed that the Lucas approach applies in family cases. Thus, the court must first determine if the alleged perpetrator has deliberately lied, and then, if such a finding is made, consider why the party lied. McFarlane LJ stated –

‘[98] The decision in R v Lucas has been the subject of a number of further decisions of the Court of Appeal Criminal Division over the years, however the

core conditions set out by Lord Lane remain authoritative. The approach in R v Lucas is not confined, as it was on the facts of Lucas itself, to a statement made out of court and can apply to a "lie" made in the course of the court proceedings and the approach is not limited solely to evidence concerning accomplices.

[99]          In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of R v Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.

[100]      One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton [2001] Crim. L.R. 251.

In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt.’

Repeated accounts and possible reported discrepancies

54.  Peter Jackson J (as he then was) in Lancashire County Council v. The Children and Others [2014] EWFC 3 stated that –

‘[9] … in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further

possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story- creep" may occur without any necessary inference of bad faith.’

Identification of perpetrator

55.  It is in the public interest that those who cause non-accidental injuries should be identified; see Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2005] 1 FLR 285, CA.

56.  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.

57.  The approach which should be adopted in relation to the identity of a perpetrator has been the subject of recent consideration by the Court of Appeal in Re B (Children: Uncertain Perpetrator [2019] EWCA Civ 575 where Jackson LJ reviewed the line of relevant authority and summarised the approach to be taken in ‘uncertain perpetrator’ cases as follows –

‘[46] Drawing matters together, it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection. It is a means of satisfying the attributable threshold condition that only arises where the court is satisfied that there has been significant harm arising from (in shorthand) ill-treatment and where the only 'unknown' is which of a number of persons is responsible. So, to state the obvious, the concept of the pool does not arise at all in the normal run of cases where the relevant allegation can be proved to the civil standard against an individual or individuals in the normal way. Nor does it arise where only one person could possibly be responsible. In

that event, the allegation is either proved or it is not. There is no room for a finding of fact on the basis of 'real possibility', still less on the basis of suspicion. There is no such thing as a pool of one.

[47]          It should also be emphasised that a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense. As is made clear in Lancashire at [19], O and N at [27-28] and S-B at [43], the person is not a proven perpetrator but a possible perpetrator. That conclusion is then carried forward to the welfare stage, when the court will, as was said in S-   B, "consider the strength of the possibility" that the person was involved as part of the overall circumstances of the case. At the same time it will, as Lord Nicholls put it in Lancashire, "keep firmly in mind that the parents have not been shown to be responsible for the child's injuries." In saying this, he recognised that a conclusion of this kind presents the court with a particularly difficult problem. Experience bears this out, particularly where a child has suffered very grave harm from someone within a pool of perpetrators.

[48]   The concept of the pool of perpetrators should therefore, as was said     in Lancashire, encroach only to the minimum extent necessary upon the general principles underpinning s.31(2). Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof.

[49]  To guard against that risk, I would suggest that a change of language may be helpful. The court should first consider whether there is a 'list' of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability and should seek, but not strain, to do so: Re D (Children) [2009] EWCA Civ 472 at [12]. Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list: "Is there a likelihood or real possibility that A or B or C was the perpetrator or a perpetrator of the inflicted injuries?" Only if there is should A or B or C be placed into the 'pool’.

[50]   Likewise, it can be seen that the concept of a pool of perpetrators as a permissible means of satisfying the threshold was forged in cases concerning individuals who were 'carers'. In Lancashire, the condition was interpreted to include non-parent carers. It was somewhat widened in North Yorkshire at [26] to include 'people with access to the child' who might have caused injury. If that was an extension, it was a principled one. But at all events, the extension does not stretch to "anyone who had even a fleeting contact with the child in circumstances where there was the opportunity to cause injuries": North Yorkshire at [25]. Nor does it extend to harm caused by someone outside the home or family unless it would have been reasonable to expect a parent to have prevented it: S-B at [40].

[51]  It should also be noted that in the leading cases there were two, three or four known individuals from whom any risk to the child must have come. The position of each individual was then investigated and compared. That is as it should be. To assess the likelihood of harm having been caused by A or B or C, one needs as much information as possible about each of them in order to make the decision about which if any of them should be placed in the pool. So, where there is an imbalance of information about some individuals in comparison to others, particular care may need to be taken to ensure that the imbalance does not distort the assessment of the possibilities. The same may be said where the list of individuals has been whittled down to a pool of one named individual alongside others who are not similarly identified. This may be unlikely, but the present case shows that it is not impossible. Here it must be shown that there genuinely is a pool of perpetrators and not just a pool of one by default.

[60] [The concept of a] pool of perpetrators is a departure from the norm and every effort must be made to ensure that the departure operates in a principled way.”

58.  In this case the issue of uncertain perpetrator arises in relation to the bruising to J seen on 2 October 2019. Therefore, the issue for the court must be to consider whether the actual perpetrator can be identified on the balance of probability and the court should seek, but not strain, to do so; see Re D (Children) [2009] EWCA Civ 472.

59.  Only if the court cannot identify the perpetrator to the civil standard of proof, should the court go on to ask whether there is a likelihood or real possibility that any of the people on the list, was the perpetrator or a perpetrator. Only if there is, should those people be placed into the ‘pool’.

Threshold

60.  In Re J (A Child) [2015] EWCA Civ 222 Aikens LJ set out the following fundamental principles at paragraph [56] –

‘ii) If the local authority's case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".

iii)   Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.

iv)  The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.).

v)   It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the

child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority. "The local authority's evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]".

vi)   It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local  authority,  in  the  first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child's welfare. The court must guard against "social engineering".

vii)   When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall..

The role of culpability in establishing the threshold criteria in s31 CA1989

61.  In Re D (A Child) (Care Order: Evidence) [2010] EWCA Civ 1000, Hughes LJ (as he then was) highlighted the objective nature of the threshold test, noting that –

‘…it is abundantly clear that a parent may unhappily fail to provide reasonable care, even though he is doing his incompetent best’.

62.  In Re B (A Child) Threshold Criteria) [2013] UKSC 33 Lord Wilson said at paragraphs [30] and [31] that, when establishing threshold, there is –

‘no requisite mental element to accompany the actions, or inactions, which have caused or are likely to cause significant harm’.

63.  In Re S (Split Hearing) [2014] EWCA Civ 25, Ryder LJ held at [19]-[21] –

‘[19] The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

[20]          The court's function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, 'accidental injury' is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a 'non-accidental injury', there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.

[21]          The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored

a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.’

RELEVANT BACKGROUND

64.  Both M and F were subject to local authority involvement as children.

65.  M was removed from her parents’ care at the age of 10 and placed in foster care, after experiencing neglectful parenting, physical abuse from her father and exposure to domestic abuse and emotional abuse. It is also recorded that M experienced sexual abuse, although the identity of the perpetrator is not known. Throughout M’s childhood in foster care, and since, she regularly reported being pregnant and experiencing miscarriages.

66.  M has reported that her father was a violent drunk and that she looked after her brothers as her mother had nervous breakdowns. The police disclosure includes more recent allegations of aggressive and abusive behaviour by M’s father towards her. It was reported that she obtained a non-molestation order against him in 2016 after he assaulted her.

67.  F was known to social services since the age of 12 in 1997. There were four referrals made between 1997 and 2010, all of which related to an unsafe, unhygienic home environment and the appearance of the children. F reported to Dr Adshead that his mother had suffered from depression as a child and his father had been away a lot when he was growing up. He said he had very few memories of his childhood owing to a traumatic experience at the age of 9 when a school friend died.

68.  In around late May 2012 M became pregnant at the age of 15 which was confirmed by a pregnancy test completed by the school nurse in June 2012. M saw her GP and attended a consultation/counselling session at the Marie Stopes clinic in Town A. Following discussions with her foster carer, M attended two appointments in July 2012 to terminate her pregnancy. However, M also maintained for many years a false account that she had a baby daughter called ‘Lily Gower’, whom she said was born in February 2011, and whom she claimed died of Sudden Infant Death Syndrome (SIDS) at the age of 6 months. This account was provided regularly to the doctors who treated J as well as social work professionals. M also maintained this false account to F and to XYZ, as well as to F’s mother, PGM. M insisted her account was true, in the

face of professionals’ assertions that there were no records to confirm the child’s existence. This account was maintained to professionals until her response document shortly after these proceedings commenced in October 2019.

69.  In early 2016, before she met and commenced her relationship with F, M obtained a tattoo on her back depicting ‘Lily’.

History of the parents’ relationships

70.  M’s relationship history with F and XYZ has been at times almost impossible to discern. However, what is clear is that her relationship with both men, as well as with other men, has been complicated, convoluted and often overlapping.

71.  In around March 2016 M and F met and commenced a relationship. Two days after they met M reportedly moved into F’s family home, and it is reported that the parents separated and reconciled on a number of occasions.

72.  In about July 2016 M became pregnant.

73.  M reported (subsequently) that on 1 January 2017 F raped her.

74.  On 8 April 2017 J was born. Very shortly afterwards the parents separated and M returned to live in her own property with J.

75.  On 20 April 2017 M presented at the hospital with PQ, her new partner.

76.  On 25 May 2017 M told the health visitor that J was now having his care shared between her and F as they have now separated.

77.  On 13 July 2017 PQ was seen as M’s partner by the health visitor, and he was seen at subsequent home visits until March 2018.

78.  On 24 July 2018 M told the SW that she and F had resumed their relationship. However, by mid-end September 2018 it appears that the relationship between M and F was finally ended.

79.  On 30 August 2017 M reported to police that she had been sexually assaulted whilst in her home alone with J by an unknown stranger.

80.  On 16 September 2018 M reported she was in a new relationship with a man called RS, and in October or November 2018 M began a relationship with a man called TU.

81.  M reported (subsequently) that in mid-October 2018 F raped her.

82.  On 30 October 2018 F described M to the police as his “girlfriend”. In November 2018 M and XYZ began their relationship, were engaged in early December, then separated in mid-December 2018.

83.  M has reported (subsequently) that in mid-November 2018 F raped her.

84.  On 7 December 2018 M alleged to the police that F had raped her on three occasions. However, at her request, F was not arrested or interviewed.

85.  In January 2019 M and XYZ were reconciled, but on 30 January 2019 M stated that they had separated again and that she had only got engaged because she was drunk.

86.  On 6 February 2019 M was reported to be in a relationship with a man called TU.

87.  On 7 March 2019 M and F resumed their relationship for a very short period, and later in March 2019 M and XYZ were reconciled. In April or May 2019 XYZ moved into M’s home to live with her and J.

88.  On 30 July 2019 M reported that XYZ had hit her and that she had been staying at her parents’ house to get away from him. However, on 31 July 2019 M retracted her concerns and said they had been misinterpreted.

89.  From that point M and XYZ have remained living together and have presented as a couple throughout this hearing.

Summary of relevant medical history

90.  J was born in 2017 at which point his parents were still living together at the home of the paternal grandparents.

91.  On 20 April 2017, at the age of 14 days, J was taken to the GP by his paternal grandmother (PGM), who reported that whilst on the bus and J was asleep she saw that one of his arms and one of his legs were making twitching

movements. The GP referred J to the on-call paediatrician at Hospital A, where he was admitted as an in-patient until he was discharged home on 28 April 2017. During that admission J was under the care of Dr U, consultant general paediatrician. In evidence she confirmed the accuracy of the entry dated 20 April 2017 taken by a junior doctor at 10:50. After he was seen by junior doctors, Dr U was asked to review him clinically herself due to his age and concern about his presentation with possible seizures. She confirmed in evidence that the history of the death of an earlier child and the jerky movements in J had been given to her by one of two junior doctors, and that it had been the combination of those two factors that made them come and seek her out as the more senior colleague. Those junior doctors had picked up that this was potentially very serious. She was clear that the SIDS was a significant and relevant factor for the hospital staff.

92.  She said in evidence that she has a clear memory of this case. She and her colleagues are always concerned about a very young baby and she explained that, understandably, parents are usually naturally quite concerned about children at that age if they are having jerky movements. Upon her review, she noted that the history was that M had a history of non-epileptic attack disorder (NEAD) and depression. She also gathered there was a history that M had had a previous child who had died from SIDS at 6 months. She said for parents in those circumstances they are, in her experience, quite understandably even more anxious.

93.  She noted the reported jerking had been seen by the paternal grandmother and said it was M who was questioning whether or J had been jerky because of the heat, but that M also said that she thought J might not have had this episode. Dr U explained to M that the history was worrying because J was a 12 day old baby with jerking episodes, and she told M that she wanted to make sure they didn’t miss anything.

94.  On examination Dr U noted he was normal, but she also considered that the history of abnormal episodes of movement in such a young child was concerning for infection and/or an underlying metabolic or neurological abnormality which could have been evolving. She considered this was also concerning in the context of a family there had also been a previous child’s death from SIDS. She therefore made a clinic plan for him to be covered for infection with IV antibiotics and to have bloods taken, including for a metabolic screen. He had an ECG and was admitted to the ward and an MRI of his

brain was requested. A plan for an urgent EEG was made and to plan a lumbar puncture. A plan was also made to consider anticonvulsant treatment if there were further episodes of seizure.

95.  That evening Dr U had had a long discussion with the family who wanted to self- discharge J. M felt that he was back to normal and that the episodes were due to heat. She discussed the case with M, M’s partner (PQ) and PQ’s mother. Dr U stated that M felt she wanted to discharge J because he now seemed well and also intimated that PGM had made up about the seizures to stop M going to City B. Dr U discussed her concerns about possible infection and seizures, and said she felt J needed to remain in hospital in case of further deterioration, offering a variety of options including babysitting by hospital staff. Dr U also explained to M that the results of the MRI report, which had suggested a possible microbleed/developmental venous anomaly, increased her clinical concern at the time. However, the family remained adamant they wanted to discharge J. In the end, Dr U explained the risks were unknown and she felt she would have to refer to the local authority if they did leave. Ultimately, M then agreed for J to stay overnight and there were no further issues. J was reviewed the following day during a ward round. There had been a documented episode of jerking, but otherwise he was stable. He continued on his antibiotics and a plan was made for a lumbar puncture and to discuss his case with the Hospital B neurology team.

96.  In her oral evidence Dr U said she had felt there was some underlying tension to M not wanting to stay in hospital. She felt it was important to document in the records that M was not giving her the answers that she would necessarily expect. She said M was giving her slightly unusual answers. She confirmed that her notes are contemporaneous, namely that she writes rough notes during the clinic appointment or consultation while the child is in front of her, then later types those notes up into a letter. She was quite clear that the source of the information or history at this appointment was

M. She made referrals for a sleep study and for a glaucoma check. She could not recall in evidence what the purpose of those referrals was, but thought it was because they were requested or required or recommended by Hospital B.

97.  The nursing notes from this admission raised concerns regarding the parents’ hygiene, sterilisation of bottles and possible lack of interaction with J. There were also concerns regarding the home environment, which delayed J’s discharge.

98.  On 21 April 2017 Hospital A contacted the paediatric neurology service at Hospital B with a request for advice about J. The referral stated that J had been admitted the day before aged 12 days old having been presented to have had 3 episodes of jerking/twitching of his arms, lasting for 1-2 minutes. He was also reported to have had some episodes with a change in his breathing pattern accompanied by some unusual leg movements. These episodes were reported to have occurred while he was in PGM’s care. The report also stated that J’s older sibling had died at the age of 6 months due to SIDS. M was noted to have a diagnosis of non epileptic dissociative seizures, and the PGM to have a diagnosis of epilepsy. J was documented to have a normal neurological examination, a normal EEG and an MRI scan reported as demonstrating a tiny hypodense region in the L cerebellar hemisphere. It was considered by Hospital B staff that it was unclear if these episodes were epileptic seizures, and that it was more likely they were more suggestive of a benign sleep myoclonus. It was therefore recommended that if further episodes were witnessed, samples should be taken for toxicology assessment.

99.  On 23 April 2017 J was commenced on phenobarbitone pending outpatient review and follow up at Hospital B.

100.                      It was agreed that J should be followed up by Dr L in the Hospital B paediatric neurology clinic as he provides an outreach service to the East County area. Dr L is a consultant paediatric neurologist currently based at Hospital B. His scope of practice includes acute neurology, management of epilepsy in childhood, complex motor disorders and neurorehabilitation following acquired brain injury. He has been a consultant for four and a half years. Review appointments were fixed with Dr L for 5 June 2017, 3 July 2017 and 14 August 2017, all of which were missed.

101.                      However, on 19 July 2017 the parents did attend an outpatient appointment with Dr SP, consultant paediatrician at Hospital A. It was reported to him that J had not had any further seizures since being discharged from hospital in April 2017. Dr SP therefore proposed weaning J off the anti-epileptic medication over the next two weeks.

102.                      On 11 October 2017 M called for an ambulance and reported that J had stopped breathing following a coughing fit. J was admitted to hospital overnight, and an ECG was performed.

103.                      On 6 November 2017 J was finally seen and reviewed by Dr L in the Hospital B paediatric neurology clinic. M told Dr L that for two months after J was weaned off phenobarbitone she had observed no abnormal movements, but that one month before the clinic appointment J had experienced an episode which she thought was a seizure - describing J’s eyes rolling up accompanied by jolting in the arms and legs - which she had not disclosed to the hospital staff during J’s October 2017 admission. M attended that appointment with her parents. F did not attend. M told Dr L that the events of 11 October 2017 caused her a great deal of distress as she had a previous child who died of SIDS at the age of 6 months. Dr L’s examination of J demonstrated no concerns and no signs of a neurological disorder. Dr L was not convinced that the episodes described were seizures. During that appointment Dr L reviewed the results of the MRI scan taken on 20 April 2018 with M and explained that it showed only a very small micro- haemorrhage in the L cerebellar region which he did not think was of any significance.

104.                      On 7 November 2017 J was reviewed by Dr U, noted to be well on examination with no abnormal findings. An EEG and sleep study were arranged, which took place on 15 December 2017 and 10 January 2018 respectively and raised no concerns.

105.                      On 8 January 2018 M reported to NHS 111 that she thought J had had a seizure. J was brought to hospital by ambulance and was seen by Dr S, consultant paediatrician, who commenced treatment with carbamazepine medication, an anticonvulsant. Dr S made arrangements for a further MRI head scan, blood testing, genetic testing and follow-up in clinic by him and also by Dr L.

106.                      On 11 January 2018 J was seen at an outpatient appointment by Dr L at his Outreach Neurology Clinic accompanied by M and F. Again, the neurological examination was unremarkable. Dr L expressed caution about labelling these episodes as definitive seizures. He suggested continuing the carbamazepine as a pragmatic treatment trial and asked M to try to capture video recordings of events witnessed by her in order for them to be reviewed in clinic.

107.                      On 22 February 2018 a further MRI scan was carried out under sedation, which was normal. The genetic CGH analysis identified duplication associated with chromosome 22q11.2 microduplication syndrome.

108.                      On 26 February 2018 the mother reported to NHS 111 that J had a three minute seizure and was now jolting, for a further three or four minutes. He was taken to hospital by ambulance but discharged home later the same day.

109.                      On 13 March 2018 J did not attend the next follow up clinic appointment with Dr U who subsequently wrote to the GP, the family and Dr S and discharged him from her care.

Subsequent actions of the local authority

110.                      On 30 May 2018 EF, Head of Safeguarding Children at the Hospital Foundation NHS Trust, compiled a chronology of J’s health records and co-ordinated the analysis of concerns arising from the chronology with Dr L and Dr S. Dr L and Dr S concluded that there was sufficient evidence of concerns to warrant a diagnosis of FII in J at Level 1, ‘Fabrication of signs and symptoms, including fabrication of past medical history’.

111.                      On 23-24 July 2018 J was admitted to the Ward R at Hospital C to trial weaning him off his carbamazepine medication.

112.                      On 29 November 2018 Dr S, EF and the allocated SW, VW, told M at a meeting about the diagnosis of FII (M was accompanied by the maternal grandmother). Dr S recorded –

‘The main reason for this appointment was to inform mother that all investigations towards diagnosis of fabricated induced illness was finalised and J fulfilled the criteria of fabricated induced illness. It was a difficult conversation but in the end we have agreed that J will remain under my care and I will keep seeing him annually and if there are other concerns raised by the family or social services I will be ready to see him in extra appointments out of clinical hours.

113.                      On 24 January 2019 the HV, and VW, SW, made a joint home visit to complete J’s developmental assessment. There was a

noticeable deterioration in all areas of his development other than in his gross motor skills.

114.                      On 5 February 2019 a Child In Need (CIN) meeting was held. M and F reported that J was biting, hitting and throwing things. However, they reported no further seizures since the hospital admission. At this point, VW was the allocated SW, and WX was her team manager.

115.                      On 20 February 2019 WX chaired a strategy meeting which was also attended by VW, a representative from the Police and EF, Head of Safeguarding. At that meeting EF queried why it had taken so long to convene the strategy meeting given that the information/chronology from Dr S and Dr L had been sent in July 2018; it was confirmed that although the hospital had sent the health analysis (she means the chronology), the LA had not been copied into the letter of 3 December 2018. EF recorded her frustration about the lack of activity and said there were many concerns at that time. The minutes of the meeting also record C53 –

‘EF advised she had sent VW the chronology on 28 September 2018 (on checking documents received, the documents EF refers to which have been uploaded to the system contains the draft watermark and are not signed and therefore were not considered as finalised confirmed documents).’

116.                      This failure to act is a matter of great concern in respect of the local authority’s actions.

117.                      At that meeting C52 the multi-agency participants decided that as there had been no further repeats of J being presented at hospital with claimed fits, and there was a robust Child in Need Plan in place, there were no additional known risks that met the threshold to convene an Initial Child Protection Conference at that time, or to initiate care proceedings. WX noted that this was not a case that the LA would have closed and ignored due to the concerns and that J was being supported under a robust CIN plan. She recorded that this strategy meeting was a formality under the guidance.

118.                      On 26 March 2019 the HV, completed J’s developmental review during a home visit. M reported that J had returned from

staying with F in dirty, inappropriate clothes, with a heavy nappy and with scratches to his arm.

119.                      On 28 March 2019 there was a further Child In Need meeting at which he was observed to be interacting with M and F appropriately.

120.                      On 9 April 2019 M told the SW (VW) that J returned from F’s care with a bruise. This bruise was seen by the SW, but it was also observed that D crawled under the sofa and hurt himself in the same place on a metal bar.

121.                      On 16 April 2019 the HV carried out a joint home visit with a community nursery nurse to carry out J’s 2 year developmental review. However, as M was not present, the full review could not be carried out.

122.                      In April or May 2019 XYZ says that he moved in to live with M and J. He said that M was J’s main carer, although he would help out.

123.                      On 26 April 2019 AZ became the allocated SW (until 25 October 2019); she was supervised by BX, team manager, during that period. BX also commenced as the team manager in April 2019.

124.                      On 8 May 2019 a further Child In Need meeting was held. I have not seen the minutes of that meeting. However, there are sufficient references in the minutes of the Strategy Discussion held on 15 May 2019 to provide a flavour of the escalating concerns by professionals at that stage, as well as in the report by AZ dated 31 May 2019. AZ is recorded as having described huge concerns at that CIN meeting regarding J’s emotional wellbeing. It was reported that J had been exposed to his parents being unpleasant to each other, and that M had been unable to control her emotions in front of J, shouting and becoming very emotional towards professionals and F. She was described as crying and shouting, and getting up and walking in and out of the room. J was described as not being distressed by this which was regarded as being extremely worrying to the SW and indicating that at 2 years old he was already normalising this behaviour. HV is described as having reported that at the end of that meeting F having stated that if J bit M, then she would bite him back. BX did not attend this meeting. In evidence she said that after the meeting both the SW and CW told her of concerns about the CIN not being progressed. She therefore took the view that the case should now be dealt with via the Child Protection route.

125.                      On 15 May 2019 a further strategy meeting was held although it is recorded as having been an Initial Strategy Discussion Meeting. This meeting was chaired by BX and attended by AZ, a representative from the Police, Dr S, the HV, EF (Head of Safeguarding) and CW, a SW assistant. The purpose of the meeting is recorded as being held for two reasons – ‘There is a diagnosis of Fabricated Induced Illness and the family have been under a Child In Need plan for over a year with a lack of progress and increasing concerns regarding M’s mental health’. At this meeting it was unanimously decided the case should be progressed to an Initial CPC to be held on 6 June 2019 and that the LA should commence a s47 investigation.

126.                      On 31 May 2019 AZ completed her report for the ICPC. Her concerns about M can be summarised as follows –

a.       Concern that M’s need to be loved had taken priority over J’s needs for security, stability and identity.

b.      M’s fixation with J being unwell and the need for medical attention is extremely worrying to the point that M has caused deliberate harm to J which could be long lasting.

c.       M denies that she fabricated having given birth and losing her baby, ‘Lily’, at the age of 6 months to cot death, even though the lack of records suggests this is untrue.

d.      M’s numerous reports of J returning from F’s care with bruising which had not been identified by any professional is extremely concerning.

e.       M’s lack of insight into how her ability to control her emotions in J’s presence represent concerns about her capacity to protect him from emotional harm and to promote positive wellbeing.

f.       Concerns that M has had multiple relationships to which J has been exposed when in the very early stages.

127.                      Concerns about F were limited to his capacity to protect J from any harm inflicted by M, and his poor, unhygienic home conditions.

128.                      There were also concerns about the long term impact on J of having received unnecessary treatment.

129.                      Those concerns were shared by the HV in her report to the ICPC dated 6 June 2019. At the ICPC on that date both parents attended, as did a representative from the Police, EF, the HV, and BX. AZ did not attend, nor did XYZ. It was recorded that M has reported she is pregnant with XYZ’s baby. It was unanimously agreed that J should be made subject to a Child Protection Plan under the category of physical abuse and the members of the Core Group were identified as the parents, AZ, the HV, EF and Dr S. It was agreed as part of the plan that Dr S would be the lead professional overseeing the management of the FII element of the case and that he would review J’s status on 9 December 2019. It was also agreed that Dr L would review J on 3 October 2019. It was agreed as part of the plan that AZ, SW, would see J at least once every 2 weeks to check on his welfare and to make ongoing assessment of the quality of his relationships with M and F, as well as to assess the quality of his physical living environment. It was agreed as part of the plan that HV, the health visitor, should complete J’s two year developmental check on 12 June 2019, and thereafter would visit him once every two months to check on his health and development and to offer any advice or support to M if required.

130.                      Critically, it was agreed as part of the plan that J should not be given any medication or be the subject of any medical procedure that was not based on an assessment and diagnosis made by a qualified health professional. It was also confirmed that if any member of the Core Group was of the view that the risks to J’s welfare were not reducing or were actually increasing, then the LA should seek legal advice to establish if the threshold for significant harm had been met and if so, whether it should be acted upon.

131.                      Both parents expressed their views to the ICPC. M stated that she had not maintained that J has seizures. M had also apologised to F for reporting to VW that J returned home from a weekend at his house with bruises. It was noted by BX that the SW (VW) had visited the home the following day but had been unable to see any bruises on J. M told the meeting that she loses her temper and was completing an online anger management course. However, M was also adamant that she had a baby who died at 6 months. She said she understood that there were no records of the death. She said she took a pregnancy test at school which was positive, and said that no matter what people say, she was still saying this happened.

Injuries to J

132.                      On 12 June 2019 HV made a further home visit with the community nursery nurse to carry out the outstanding two year developmental review of J. She observed marks to J - bruising to his L thigh (not thought to be of concern), a graze to his L elbow and a red block mark above his L elbow. M did not have an explanation for these marks. HV told M that the marks were unusual and a concern, and she informed the SW of the bruising that day. I have no difficulty therefore in finding that these bruises occurred to J and were plainly of such concern to the HV that she felt it necessary to report them to the LA, but I cannot go beyond that in terms of when or how or by whom they were caused. In oral evidence BX said she was never made aware of this referral, and to her knowledge no response was made by the LA to the health visitor.

133.                      The outcome of the developmental check identified that J was behind in his social and emotional development. HV made a referral to the Integrated Children Therapy and Co-Ordinated Team (ITACC) to determine whether this was environmental or developmental in cause. She also noted that J had difficulties with eye contact.

134.                      Less than two weeks after the ICPC, AZ carried out a home visit on 19 June 2019 at 17:30. She recorded that as soon as she arrived, M informed her that F had been harassing her since Tuesday. M showed AZ messages which stated how he missed her, asking her not to ignore him and how he missed his best friend. M’s replies were minimal and to the point. M also reported that she had received a telephone call from F stating that he had received a phone call from AZ on 11 June 2019 stating that if M failed the psychiatric assessment that J would be taken into temporary foster care. AZ told M that she had not had such a discussion with F, although she did explain to M that part of the psychiatric assessment would explore whether she is mentally well enough to be able to keep J safe. During this home visit M told AZ that F had been saying that J was arriving at his home with bruises, and that F had been accusing XYZ of causing them; M stated that XYZ had not harmed J, and said that J falls over and bumps into things a lot. M said that F had accused XYZ a few times. M took J’s tee-shirt off to reveal four fingerprint bruises - one in the centre of his back, and three to the left. AZ’s record states – ‘The bruising suggests he has been grabbed or held tightly’. AZ

also recorded - ‘Throughout my observations J did not go to M for any of his needs, and I did not witness an affectionate and nurturing relationship from M.’

135.                      The analysis of the information received at this home visit was recorded by AZ as follows –

‘It is concerning that from my observations J did not go to his mum for his needs to be met. M’s expectations of J suggests lack of understanding of what is appropriate at J’s age. M requires direct work focusing on exploring her understanding of J’s needs to be able to grow and be healthy as well as being able to reach his full potential as he gets older. It is a worry the bruising on J’s back appear to be finger print marks and their [sic] is still self-reporting of J being harmed.’

136.                      AZ recorded her plan of action as being to speak to F about the bruising, and to contact the health visitor. In oral evidence, BX confirmed that she had seen no evidence in the case records that the SW had in fact spoken to the health visitor as planned, other than a week later at the CGR meeting on 26 June 2019.

137.                      The bruises were of sufficient concern for her to referred to them as ‘worrying’. However, it is impossible to go beyond that and make any finding about when or how or by whom they were caused.

138.                      In her oral evidence BX accepted that AZ did not discuss the bruising, or the outcome of this home visit with her at the time.

139.                      Seven days after that home visit, on 26 June 2019, the first Core Group meeting took place. Neither BX or XYZ present at that meeting. The meeting was attended by both parents, the health visitor, AZ and EF (Head of Safeguarding). At the meeting the health visitor gave an update about J’s two year developmental check.

140.                      At the CGR AZ informed of her observations at the home visit on 19 June 2019. It was stated that at the time M told AZ that she had made HV aware of the bruising. This is not recorded in the case note of 19 June 2019. In any event, HV denied that she had been made aware of the bruising. It

was agreed that the SW and the HV should communicate any marks and self-reporting health issues with each other from then on, rather than accepting M’s word.

141.                      On 15 July 2019 AZ had supervision with BX. There is only a single reference to general allegations of bruising now being made by M in these notes, and no specific reference to the bruising observed by AZ during the home visit on 19 June 2019. BX confirmed in evidence that the SW did not mention the bruising she had seen to J on 19 June 2019 four weeks previously.

142.                      BX said in evidence that she eventually found out about the issue by chance on 25 July 2019 when she overheard the SW having a conversation about the case with CW, the SWA. However, BX’s note of the 25 July 2019 supervision still deals with the matter only superficially. The reason for this supervision was stated explicitly as –

‘Discussion with SW in relation to bruising seen to J during a home visit in June.’

143.                      The detailed notes state that the SW advised she had seen fading bruises which she thought might be grab marks about 4 weeks ago. In her evidence, BX said she had no memory of the context in which the SW had been shown J’s bruises. During their informal discussion on this day, the SW told BX that she had spoken to M about the bruising at the time and that M had advised that J may have fallen although this seems unlikely. The notes recorded –

‘Due to the bruising no longer being present, J being non verbal and unable to offer an explanation and M already having given her view on how the injury may have occurred, the decision is made not to hold a strategy discussion. SW reminded of the importance of discussing concerning bruising etc with her manager at the time these are observed in order to ensure all children are safeguarded especially in FII cases where there is the possibility of a parent or carer inducing illness or injury.’

144.                      Although in evidence BX said she thought the reason the SW had not told her about the bruising was because she did not want to expose J to further ‘over-medicalisation’ by a CP medical examination, this is not borne out in the supervision notes of 25 July 2019. Those notes begin by placing the discussion in the

context of wider concerns being raised by the SW about aspects of the case relating to CW. There is no reference to any concern about over-medicalisation at all at that stage.

145.                      Later that morning, at 12:00, a further CGR took place as planned. Neither EF or BX attended that CGR which was attended only by AZ, HV and the parents. At this meeting the SW reported that on 15 July 2019 (during a home visit), M had told her J had been self-harming by pinching himself on his arms which had been seen by DT (the parenting worker). The SW reported that DT had confirmed she had not seen J pinching himself or hurting himself in any other way. At the meeting M denied this, stated that DT had seen this, and said she had specifically asked DT to contact the SW which she had failed to do.

146.                      It is stated by the SW (in her report dated 23 August 2019) that on 30 July 2019 M reported (although to whom is not clear) that XYZ had physically assaulted her. In her oral evidence, however, BX could not remember having had any discussion with the SW about this important issue. BX said in evidence that she accepted there are gaps in the SW files. In relation to this issue I found her to be an unhelpful and unimpressive witness.

147.                      On 23 August 2019 the SW set out some information about the bruising she had observed during the home visit on 19 June 2019, and the matter was then discussed at the Review CPC on 29 August 2019. The SW and EF both attended that CPC, but BX did not attend. Both parents attended, but XYZ was not invited and did not attend. The minutes of the CPC recorded that M had said F caused the fingertip bruising seen on 19^th June 2019. It was also noted that M had removed herself and J from the family home in July 2019 when she alleged there had been a domestic abuse incident. However, M is noted in the minutes to have denied there had been any domestic abuse between herself and XYZ - she said they were ‘play fighting’ but that because at the time it had hurt, when she spoke to the SW she did not see it as playfighting.

148.                      The minutes also noted the Chair’s concern about the LA’s failure to have dealt properly with the 19 June 2019 bruising –

‘The chair raised concern about what was done when the bruising on J’s back was seen on 19.6.19. In the report it concluded it may be due to rough handling or being grabbed. Was a strategy meeting held, a body map completed, discussion with management and the process followed (ie: to see a paediatrician)? Very mindful that previously mum has said there are bruises on her son, but they have not been seen. However, this has been described as fingertip bruising in an unusual place and currently unexplained. Given the diagnosis of FII we also need to ensure the procedures around this are considered.

AZ said that the matter had been discussed with management, although not at the time of the incident. The bruising was observed to be fading. It was decided by Team Manager to monitor to see if any other bruises appear as he was already on a Child Protection Plan and they were mindful of FII. M had stated that it was done by F when in his care, then stated it could have been done on the door of his toy cupboard.’

149.                      It was agreed that the SW would ensure a full body map was completed, and also that the Chair would raise with the team manager. It was also confirmed that should something arise in the future, the appropriate steps are taken.

150.                      On 9 September 2019 BX carried out a further supervision with the SW. She noted that this was provided given the concern raised by the CPC chair in relation to the issue. BX recorded as follows –

‘The social worker accepts completely that in any other situation she would have spoken to me immediately to request a strategy discussion. We explored the reasons why this did not happen and AZ felt that this process may have resulted in a medical for J and she did not want to subject him to any more intrusive medical interventions given the FII diagnoses and unnecessary procedures that he has experienced which is abusive and the very reason for him being considered to have suffered harm. We explored that this may have been the case but just because of the FII diagnosis he could experience other types of harm and the usual processes are not superseded by the diagnosis. AZ is clear around the need for observations as well as listening to parents and is clear around the thresholds for strats in any case.’

151.                      It was agreed at the supervision that the body map was to be recorded and to be sent to the safeguarding health for the bruises. The body map, such as it is, appears then to have been completed. It is signed by AZ but is undated. However, it had clearly still not been completed by 9 September 2019 – which was almost three months after the bruising had been seen by the SW. It shows a single faded bruise in the centre of J’s back and there is a reference to ‘tiny faded bruising’ although it is almost impossible to see where these marks are placed or indicated on J’s body. To say this body map is unhelpful does not begin to explain how inadequate this course of action was. As EF said robustly in the review CPC, as this was abnormal bruising, these injuries should have been checked with a paediatrician.

152.                      In her oral evidence, BX said that no other bruising to J was brought to her attention in the period June – October 2019, other than the 19 June 2019 bruising referred to above. However, she then conceded that she remembered CW, the SWA, noticing a bruise to J’s cheek but deciding that it was not significant and that M had said it had been caused by J banging into a tree. BX accepted she could not remember exactly how she had been informed about this bruising, accepted there was no decision making record confirming the decision not to proceed with any investigation, and accepted that they ‘probably should have had him medically examined’. There is a body map dated 17 September 2019 but it is signed by AZ, not CW. It shows a bruise marked on the L side of the face situated vaguely under the outer edge of the L eye. It is described by the SW as ‘blue/grey with red round the sides’. Again, the body map is worse than useless. There is also a photograph of the bruise which shows that a large dark mark on the L side of J’s face but nowhere near his eye.

153.                      If this bruise was indeed seen by CW, there is no explanation as to how it came to be photographed or drawn (inaccurately) on a bodymap signed by AZ. The fact that the bodymap is signed by AZ makes it impossible to find that she was unaware of this injury. It is therefore impossible to understand how in the light of the discussions at the CPC on 29 August 2019 and in supervision with BX on 25 July 2019 and 9 September 2019, she did not consider it important to raise the issue with her team manager. It is also impossible to understand how BX, for whom the issue of bruising became high on her alert list after the 25 July 2019 discussion with the SW, could not have known anything at all about this injury to a child on the case load of one of her supervisee social workers.

154.                      The local authority seeks no finding about this bruise and there is insufficient evidence to support any finding. However, the issue raises important questions to be considered by the local authority in terms of child protection and management procedures.

155.                      J had been made subject of a Child Protection Plan on 6 June 2019 under the category of Physical Abuse. He was seen by the SW during statutory child protection visits on at least seven occasions following that decision.

156.                      However, by the time J began attending nursery the following day on 18 September 2019, he had sustained or appeared to have sustained three separate areas of bruising which had not been investigated at all by the local authority. Again, this issue raises important questions to be considered by the local authority in terms of child protection and management procedures.

157.                      There is no evidence that the nursery was made specifically aware of these three incidents. On 4 September 2019 IJ and KL from the nursery visited J at home as part of their standard preparations for new children about to start at the nursery. The purpose of the home visit was to enable them to meet him with M, see his home circumstances and generally help J get to know them before he started at nursery. XYZ was present during that home visit.

158.                      On 16 September 2019 the nursery staff had their first contact with AZ, and the nursery chronology noted - ‘Child Pro. Physical: FII’. Beyond that short note, there is no evidence of any detailed information being given to the nursery by AZ.

159.                      On 19 September 2019 the nursery noted unexplained bruises to J’s back and rear of thighs. The safeguarding incident form was completed by MN, J’s key worker, who recorded that she observed the bruises at 2:30pm. She completed a body map on which she noted three small bruises to the middle of the L side of J’s back and one small bruise to the upper rear R thigh; she noted that all four bruises were no bigger than a 5p piece and yellow/brown in colour. MN spoke to M when she came to collect J that afternoon. She recorded that M told her the bruises had been reported. MN asked her to explain what happened anyway, and M told her they were unexplained, they had happened while he was at his dad’s.

160.                      It was recorded that the nursery would closely monitor J for any new bruises during every session when changing his nappy. There is no evidence that the nursery reported these bruises to the LA. This issue raises important questions to be considered by the local authority and the nursery in terms of child protection and management procedures.

161.                      On 24 September 2019 MN completed a Prior Injury Form which was countersigned by M. This form was accompanied by a body map which described three small scratches to the bridge of J’s nose and a small bump to the centre of his forehead. The note provided by F was that the accident had happened the previous Friday.

162.                      However, later that morning MN noticed three further bruises to J while she was changing his nappy, this time to his upper rear thighs and buttocks. Again MN completed a bodymap based on her observations at 10:40 and completed a safeguarding incident form. The bodymap shows three areas of bruising. One small red/purple bruise (about the size of a 5 pence piece) was seen on the L upper rear thigh, and a similar sized bruise (blue/purple in colour) seen on the R upper rear thigh. A third small (2-3mm), yellow/brown bruise was seen on the L upper buttock. MN spoke to F that afternoon when he came to collect J, but he said he was unsure about how the bruises had been caused as J had been with M the previous night. Again the action recorded was to continue to monitor each session and to keep recording. There is no evidence that the nursery reported these bruises to the LA. Again, this issue raises important questions to be considered by the local authority and the nursery in terms of child protection and management procedures.

163.                      On 1 October 2019 the SW visited J in nursery. There is no record of what she was told by the nursery of the two episodes of bruising observed by them, or what action she proposed to take. If she had been told, there is no evidence that BX was informed by her. KL said in evidence that she remembered speaking to the SW that day. She also confirmed that no bruising was noted to J by the nursery that day.

164.                      On 2 October 2019 the nursery staff noted further bruising to the backs of both J’s forearms which was unexplained, looked like possible fingermarks and which

had not been present the previous day. The nursery notified the SW team appropriately. However, no action was taken before the end of the day and therefore M returned home with J after nursery. It was M herself who sent photographs of the bruising to the SW about an hour after returning home.

165.                      On 18 October 2019 the LA issued care proceedings.

166.                      On 24 October 2019 J was made subject of an interim care order which remains in place to date. He is in foster care and has sustained no injuries since being in placement.

POSITIONS OF THE PARTIES

The local authority

167.                      This is a highly unusual case in which M accepts having lied about a critically important matter (the existence of the child ‘Lily’), but denies having lied about almost all other matters. Her acknowledgment of the lie about ‘Lily’ is qualified.

168.                      The local authority has summarised the lies told by M as falling into seven categories –

a.       Lies about the termination of pregnancy;

b.      Lies about ‘Lily’;

c.       Lies about her history of pregnancy and miscarriage;

d.      Lies about J’s symptoms and medical history;

e.       Lies about FS and the use of social media;

f.       Lies about the bruising to J; and

g.      Other lies.

169.                      The local authority invites the court to make ten substantive findings of fact, and two other findings that relate to risk posed by M and F (Allegation 5 and Allegation 11).

170.                      The substantive findings sought by the LA relate only to the parents and can be summarised as follows –

Allegation 1 - M has fabricated to healthcare professionals that J has had seizures.

Allegation 2 – M and F have exaggerated that J may have had a microbleed to his brain.

Allegation 3 - M has fabricated an account of having a daughter called ‘Lily Gower’ who died at the age of 6 months from SIDS.

Allegation 4 - M has reported a large number of pregnancies and miscarriages, at least some of which were fabricated.

Allegation 6 – as a result of M’s false accounts of seizures and having a sibling who died of SIDS, J has been subjected to unnecessary testing and procedures.

Allegation 7 - in the longer term, J was likely to suffer significant emotional harm where his life would have been medicalised as being an unwell child and where he would have been raised with a narrative that he had an older sibling who died at the age of 6 months from SIDS.

Allegation 8 - the parents failed to attend important medical appointments.

Allegation 9 - J was likely to suffer significant emotional harm due to the volatile relationship between the parents, which includes allegations made by M against F regardless of the truth of such allegations.

Allegation 10 - J was likely significant emotional harm arising from the instability of M’s various relationships which are likely to leave him confused, as well as being exposed to verbal and physical aggression.

171.                      The two findings that relate to risk are Allegation 5 and Allegation 10.

172.                      Allegation 5 relates to M. The LA invites the court to find that her behaviours fulfil the RCPCH criteria for FII and warrant also the paediatric diagnosis made of

J in June 2018 of fabricated and induced behaviour at level 1: fabrication of signs and symptoms including fabrication of past medical history.

173.                      Allegation 10 relates to F. The LA invites the court to find that he lacks insight into the concerns about FII in respect of M which mean that his capacity to protect J from this is limited.

174.                      The remaining Allegation 12 was initially related to M and XYZ, namely that on or shortly before 2 October 2019 M or XYZ inflicted bruising to J’s arms. However, at the conclusion of the hearing the local authority submitted that it is now possible to identify that it is more likely than not that it was M who caused those bruises. The local authority therefore no longer invites a finding that they were caused by XYZ, or that this is a case in which the identification of a perpetrator would involve the court straining to such an extent (or indeed at all) to identify a perpetrator, such that the only safe finding would be that there is a pool of possible perpetrators.

M’s position

175.                      M denies all allegations made against her, save to the extent that Allegations 3 (‘Lily’ deception) and Allegation 8 (failure to attend appointments) are admitted to a qualified or limited extent. In respect of Allegation 3 (about the SIDS deception, M accepts that her account concerning Lily is untrue, but maintains that her social worker at the time made her have a termination. In respect of Allegation 8 M’s position is that she has explained the situation so far as she can recollect, and on the basis of her explanation it is submitted that the allegations relating to missed appointments have no probative value in respect of the issues of FII.

176.                      In respect of Allegation 12 (the bruising), it is not M’s case that XYZ inflicted the bruising. She maintains that the bruising could have been caused at the nursery, including by nursery staff.

F’s position

177.                      F’s case in relation to Allegation 2 (the microbleed) is that he has not exaggerated the significance of the microbleed such as to cause significant harm to J or to expose him to such harm.

178.                      In relation to Allegation 8 (failure to attend appointments) F accepts that he cancelled (to the best of his recollection) two medical appointments at Hospital B for J, including the appointment on 14 August 2017. However, he says that he cancelled this with M’s knowledge and consent and sought to rearrange any other appointments that he cancelled. His case is that he does not accept that this is sufficient to ground a threshold finding, but will respect any finding made by the court.

179.                      In relation to Allegation 9 (parents’ volatile relationship) F accepts that there were occasions when he and M argued and shouted in J’s presence, including at the CIN meeting on 8 May 2019, which he accepts was poor parenting and potentially harmful to J. Again, he questions whether the available evidence as to the extent and frequency of arguing is sufficient for a threshold finding of harm or risk of harm attributable to F’s parenting of J.

180.                      In relation to Allegation 10 (lack of insight) F’s case is that it is unclear what act or omission on his part is relied upon by the LA in asserting that he has demonstrated a lack of insight into the concerns of FII and limited capacity to protect. He invites the court to consider carefully whether he has yet had a real opportunity to develop insight and invites the court to reserve judgment as to his capacity to protect J.

181.                      F advances no positive case against M and awaits the court’s determination of the allegations against her.

XYZ’s position

182.                      In respect of Allegation 12 (bruising) XYZ accepts the medical evidence in this case in relation to the bruising, namely that the likely mechanism is forceful gripping or from very firm or vigorous handling of his arms by an older individual, but that it is not possible to date the bruising. He now accepts that the bruising is unlikely to have resulted from swinging J in the air, or from J banging his arms against a table.

183.                      XYZ invites the court to conclude that there is insufficient evidence to support a finding that there is a realistic possibility that he inflicted the bruises on J.

184.                      His stated position in closing submissions is that although he has never seen M behave in a way which he believes could cause injury to J, he accepts that if the court concludes that the injuries were deliberately inflicted, and that there is no realistic

possibility that he is responsible for them, then a finding that M inflicted the bruising is inevitable.

185.                      In particular, it is his case that rumours circulating in and around July 2019 to the effect that he had physically abused M and J were the catalyst for a regime in which thereafter he was never left alone with J. That position is accepted by M who states that it was strictly enforced. There is no evidence to counter this account by either M or XYZ, nor was this point challenged during the fact-finding hearing.

The guardian’s position

186.                      It is submitted on behalf of the guardian that the court may find, given the totality of the evidence in this case, that there is sufficient evidence to find that M has fabricated to healthcare professionals that J has had seizures, that she fabricated an account of having a daughter called ‘Lily’ who died of SIDS at the age of 6 months, that M has reported a large number of pregnancies and miscarriages, and that shortly before 2 October 2019 she inflicted bruising to J’s arms.

187.                      The guardian also submits that it is open to the court to find that M’s behaviour fulfils the criteria for FII and warrants the diagnosis made in relation to J in June 2018.

THE EVIDENCE

188.                      Taking account of all the evidence as a whole, my findings on the balance of probability are as follows (summarised in the attached Schedule of Findings Made).

ALLEGATION 1 - Fabrication of symptoms

189.                      The LA has particularised 10 different episodes in which it is alleged M has fabricated symptoms of seizures which were not observed by any other family member or professional.

190.                      Professor Fleming, instructed as an expert in these proceedings following application by M, concluded that the most likely explanation for the episodes in April 2017 was benign sleep myoclonus of infancy. The local authority indicated in its preliminary observations within the schedule of allegations that, having regard to the

divergence of view between Dr Birch and Professor Fleming and the relevant standard of proof required for the court to find that those episodes were fabricated seizures, it did not seek a finding in respect of April 2017. At the experts’ meeting convened on 7 October 2020, Dr Birch expressed agreement with the view of Professor Fleming concerning the April 2017 episodes.

EPISODE 1

6 September 2017 - M reported to HV that J was having seizures approx. 3 times per week

191.                      HV is a health visitor. She has made one statement dated 18 December 2019. She also prepared a report dated 6 June 2019 for a child protection conference. She gave evidence at the hearing and I found her to be a clear, articulate and careful witness. She has been a health visitor for six years. She made her statement from the electronic records. Those records were disclosed during the hearing and I accept them as an accurate account.

192.                      She described a home visit to M on 6 September 2017 for which her note clearly reads that M reported J was having seizures, approximately three per week. In her oral evidence she confirmed that account.

193.                      By contrast, M’s account of what she said to the health visitor on this date has been variable, self-serving and at times confusing and inherently inconsistent. For example, in her schedule response she said she did not report seizures as she had only observed absences at this stage but that what she had reported to the health visitor was what F told her he had observed plus the absences that she and PQ (her then partner) had observed and that collectively she thought this amounted to approximately three times a week. However, in her latest statement dated 3rd November 2020 she said she told the health visitor that F had told her that J was having seizures although she and PQ had only seen approximately three absences a week.

194.                      What is notable about this incident is that just two months previously on 19 July 2017 at the outpatient appointment with Dr SP M had reported that J had had no seizures since April. In evidence Dr SP confirmed that he had not been told that there had been any further seizures since discharge from hospital in April 2017 and it was clear to him that J’s development was in the normal range . He was clear in

evidence that as a direct result of what he was told by M, he suggested weaning down on the anti-epileptic medication with a plan to stop it. It is highly unlikely that Dr SP would have made such a recommendation or come to that conclusion have he had been told in any way that J was in fact still having seizures.

195.                      Where the evidence of HV and Dr SP differs on the facts from M, I prefer their evidence. I find that M fabricated symptoms of seizures on 6 September 2017.

EPISODE 2

11 October 2017 - M called for ambulance and reported J had stopped breathing followed by a coughing fit

196.                      The telephone recording of this 999 call was played twice during the hearing and I have also read the transcript of the call very carefully. I have also considered the ambulance records and the hospital records of the subsequent admission.

197.                      The ambulance records note that the ambulance was called at 21:53, was at the scene nine minutes later at 22:02, was at J’s side by 22:04 and then left the scene at 22:51. The notes recorded that on arrival J was found supine in bed, crying and moving all four limbs. M is described as having reported him having a non-productive cough for a week, and he was afebrile. She said he was heard to be coughing when he then went silent. She is reported as describing his chest not rising or falling, with breath sounds said to be absent. J was also described as having pallor. The ambulance records also described him as having had a seizure three days prior, and a possible vacant seizure that day. The ambulance crew saw no signs of any abnormal observations. No account was given to them of a seizure involving any description of jolting.

198.                      In the hospital records at 23:46 there is no account of a preceding seizure in the initial assessment. At 00:35 there is no mention in the history of a preceding seizure. At 00:38 J was described as very well alert and happily playing with his rattle on examination. In the discharge notification it was stated that J had been well on admission with no record of M reporting a preceding seizure on the date of admission.

199.                      Again, M's account of this incident in her various responses is variable. In her threshold response she said her recollection was that the ambulance did not arrive for

approximately 45 to 60 minutes after her call to the emergency services. However, in her recent statement she accepted on reflection that the ambulance arrived much more quickly than she had thought but she said it just seemed longer to her.

200.                      She was asked about the 999 call in detail in cross-examination and gave a detailed account most of which was completely fresh evidence. She said she went into J’s room to check on him and he was completely silent so went over to him and found him lying on his back. She said she noticed his chest wasn't moving up and down with no sound coming from him which was unusual. She said she leaned into the cot over the side to put her ear near to his mouth standing on the bottom bar of the cot. She said as soon as she couldn't hear anything she instantly ran out of the room to get her mobile and sent a message to F. Then she went straight back into his room and rang 999; at that point nothing seemed to have changed. During the telephone call she said F phoned her on her house phone which was on a little shelf just outside J’s room. Indeed the transcript does show that just a moment or two into the call an external phone was ringing.

201.                      The transcript also shows that M spoke to F and told him that J wasn’t breathing. She said that when she leaned into the cot she didn't think he was breathing. She said she picked him up for the first time during the 999 call by scooping him into the crook of her arm with her mobile on the loudspeaker before she picked him up, and she was asked why she hadn't picked him up at that stage. She described how she didn't know what to do but said she saw his chest rising and falling. However, a moment later when asked to describe the colour of his face, M then said - for the first time - that it was hard to see what was happening because the lights in the room had just blown and she could only see vaguely what she was doing. She gave this as the reason why she could not describe if there had been a change in his face. There is no reference to the quality of the light at all in the 999 call nor that she was having any difficulty seeing J. Nor was this account given in the first part of her evidence in the hearing about going into the room and leaning down into his cot.

202.                      She was also asked to describe the position of her hands but was unable to answer. She said that eventually took him out of the cot, put him on the play mat in his bedroom during the 999 call. She also said at some point she moved J onto her bed in the living room but she didn't remember him being on her bed when the ambulance crew arrived.

203.                      Her account about this incident was confusing contradictory and self-serving, and was also notably wholly lacking in empathy in the way in which she described J. It is unclear how much she could see J’s face in a room which was in almost total darkness and there was no mention of the light not being good enough in the 999 call in which M sounds largely able to articulate herself. The evidence she gave about the poor light in the witness box had not been mentioned by her previously, nor was there any mention of her leaning down into the cot and putting her ear to J’s mouth. Even if such a manoeuvre was possible (which seems inherently unlikely), she did not then give a coherent account about why she didn't lift him out of the cot immediately at that stage and take him into the living room where she could have comforted him, checked him and seen him properly.

204.                      The fact remains that there is no independent corroboration of M’s account that J had stopped breathing. Professor Fleming was asked to listen to the 999 call (although he had read the transcript in any event) and in evidence stated that although M was clearly very upset, it was also very clear that whatever had happened to J at the start of the call, by the time of the first rescue breath he was breathing. Ultimately all the tape confirms is that J was making no noise for the early part of the call but then was heard to be gurgling . Professor Fleming also observed that for most of the tape the action was after J was breathing. In summary, he could say nothing more than this tape was consistent with the baby not making a noise but he certainly couldn't put it any higher than that. He said in evidence that he has dealt many times with children where parents cannot tell if the baby is breathing or not. But he said that what M has described in this case is not to be characterised as a seizure. He also said that although M had described an apnoea, he could not say that one had occurred. He said babies can have 10 to 12 second apnoea episodes very regularly and in most circumstances it is not correct to say they have stopped breathing.

205.                      In light of the ambulance notes which do not indicate that J was presenting in anyway abnormally and in light of the lack of independent corroboration of this episode, M’s account lacks coherence and credibility. I find that M has fabricated symptoms of seizures occurring on 11 October 2017.

EPISODE 3

On 6 November 2017 M gave an account to Dr L of J having had ‘absent episodes’

206.                      There is a second element to this incident whereby M describes J’s eyes having rolled up and his arms and legs jolted for about 30 seconds in the period after J had stopped breathing but before the ambulance crew arrived on 11 October 2017.

207.                      She described this incident in the appointment with Dr L on 6 November 2017. M said this had happened during the evening of the 11th of October before J was brought to hospital by ambulance.

208.                      However there is no record in the ambulance notes or in the hospital admission notes or in the hospital discharge notes the following day of any account being given by M of such seizure activity. In cross-examination M explained she had not described this account to the 999 operator or to the hospital because it already happened earlier that evening and she had other things on her mind. She accepted in evidence that she had, by contrast, been at pains to repeat the lie about the SIDS episode with ‘Lily’ to the ambulance crew and the hospital but had omitted to mention a very recent seizure. However, when she was asked to explain the conundrum she was simply unable to do so.

209.                      Her lack of explanation is just as important in evaluating the credibility of what she says as much as any account that she has given, particularly when it is considered in the overall pattern of her reporting. I must consider the totality of the evidence as well as the forensic detail of each episode. Her evidence about this lacked any credibility.

210.                      In evidence she denied having used the word ‘seizure’ to Dr L although she said it was a ‘labelling’ issue, rather than someone saying something she didn't say. However, she agreed that his account is something she reported that she saw. She said she very rarely uses the word seizure. She was quite clear she did not see arms flapping and flailing (which she said F had told her that he had seen) but reported everything else that she saw. She said however that she herself did not call that episode a seizure.

211.                      In his clinic letter following the appointment with Dr L he reported M having told him that his eyes rolled up there was jolting in the arms and legs which was not synchronous on the episode had probably lasted only 30 seconds. He reported M saying that this episode preceded the later event of J coughing in bed and then being found reportedly floppy and unresponsive by M. Although there is no reference to the word seizure, in evidence Dr L was clear that his recollection of the appointment was that M said she was concerned that the episode was a seizure. In his clinic report dated 30th of November 2019 Dr L does use the word seizure. He said M was the main historian although at times there was some confirmation by the maternal grandparents who accompanied her to the appointment.

212.                      In his evidence Dr L said he could not recall any reference being made in this first appointment in November 2017 events having been witnessed by the F but not by M. His clinic letter is dated 15 November 2017 and clearly describes two episodes being reported by M, firstly the episode where his eyes rolled up and accompanying jolting in the arms and legs, followed by an incident later that night where M found J floppy and unresponsive in his cot. Dr L was asked who reported the incidents to him and he was clear in evidence that they were reported to him as being observed by M.

213.                      It is right that there is a discrepancy between Dr L’s contemporaneous clinic letter and his report dated two years later in terms of M’s use of the actual word ‘seizure’. Although Dr L said he did not believe he made a mistake, he did confirm in evidence that an accurate history is absolutely essential to his working practice and said he would have stressed to M the importance of providing a clear picture during that consultation. He confirmed that his usual practice is to make brief handwritten or electronic notes during a consultation then to dictate his clinic letter at the end of the clinic on the same day. He said that as he does his letters in the clinic room they are predominantly based on his recollection. His clinic letter can therefore be taken as a contemporaneous letter, not least because it refers in the first sentence to him having reviewed J in the clinic that day. He agreed in evidence that his clinic letter and the account given by M of the description of the jerking movements therefore represents the best evidence of what she said. He was clear that he dictated it on the evening of the consultation appointment and that it included everything important to M’s description.

214.                      He accepted in evidence that a layperson may give a different definition of a seizure and he agreed that the term seizure is often used to describe a number of different things. He said that benign sleep myoclonus is not uncommon and it is not uncommon for that particular movement to raise concerns in a parent about seizures. By contrast his report dated 30 November 2019, which includes a reference to M saying that J had experienced an episode she thought was a seizure, is dated over two years later. I accept therefore the clinic letter dated 15 November 2017 represents the best evidence of what Dr L was told by M and where it differs to the later report, I accept the earlier letter as the most accurate account. I therefore cannot find that M used the actual word ‘seizure’ to report this incident when talking to Dr L. However, I do find and accept that the account given by M as reported by Dr L in the clinic letter is accurate and represents the best evidence of her account at that time, and it is quite plain that her account included a description of seizure-like activity.

215.                      In respect of this aspect of the evidence, M was inconsistent and variable in the extreme. There is no consistent or coherent explanation about her failure to mention something to ambulance and hospital staff that was so obviously important, namely the ‘seizure’ preceding the ‘apnoea’ episode. Taken in the round, M’s account of the whole episode that she said had occurred on 11 October 2017 simply does not stand scrutiny as a cogent or credible piece of evidence.

216.                      By M’s own account, this must have been a terrifying evening where she thought her baby had stopped breathing, followed by a jolting seizure like activity which she agreed in evidence was the first full seizure that she had seen. It is unthinkable that she would not have thought to tell the hospital about this shortly after arrival, particularly as the initial assessment at the hospital was no more than an hour and a half or so after the ambulance crew arrived at J’s side and particularly in light of the previous recorded history.

217.                      The only reasonable explanation is that she has lied. I find that M has fabricated her account of symptoms of seizures or seizure-like activity occurring on 11 October 2017 in her discussion with Dr L on 6 November 2017.

EPISODE 4

7 November 2017 - M reported to Dr U that J was having ‘absent episodes’ once or twice a week

218.                      On 7 November 2017 J was seen in the outpatient clinic by Dr U. She is a consultant general paediatrician based at Hospital D. She has provided a statement dated 14 January 2020 and she gave oral evidence.

219.                      In evidence she confirmed that her habit is to take rough notes during a clinic appointment as the child is actually in front of her which she then types up into a letter. I have seen her notes and I have also seen her clinic letter which she confirmed she wrote that evening after the clinic, although it is not dated until 19 November 2017. I accept that letter as a contemporaneous account of the clinic appointment.

220.                      In that letter she refers to the fact that J had already been seen by Dr L at Hospital B. She reports the history given to her by M in the clinic appointment as including a description of J seeming to have have some ‘absent episodes’, whereby he would be well in himself but then suddenly seem as though he is staring with his eyes rolled back. She reported M saying that on occasions he could fall back and become unresponsive for around a minute, but will then come round and look as though he is playing. In her clinic letter, Dr U commented that these episodes sounded possibly too long in duration to be simple absence episodes.

221.                      In evidence Dr U said that she could not remember who had accompanied M to that appointment; although she thought maybe a grandmother, she could not now say which one. All she could say was that she saw M with one other person. Both PGM and M accept that it was PGM who was also present at this appointment. However, in M’s recent statement there is a shift in emphasis from her schedule response. She now claims that she thinks PGM told Dr U during that appointment that F had seen seizures. She also claims that she thought PGM had reported how J was with them and that he had apparently seen seizures in addition to M calling J to inform him about the absences.

222.                      In evidence Dr U was unable to recall anything other than she had documented in her letter. She does not remember anything else about the appointment, including whether or not F said he had seen seizures. However, in evidence she agreed

that if she had been given a history of another parent witnessing episodes, she felt sure she would have documented the fact because she takes such comprehensive notes at the time. There is no reference in her clinic letter to corroborate M’s recent account. I accept her evidence in that regard.

223.                      Although PGM could not discount the possibility, she could not remember telling Dr U that F saw seizures. In cross-examination she said that if F had seen seizures and told her about them she would remember. She was clear that she did not remember any such thing . She also said that if she had seen seizures herself she would remember that very clearly, but she does not.

224.                      In F’s evidence, he said he could not remember telling PGM that J was having seizures or even what label he was using to describe any behaviour by J. Where their evidence differs from M in this regard, I prefer the evidence of PGM and

F. M’s statement is hearsay evidence which is uncorroborated to the required standard and on which I place only limited weight, not least because it has not appeared until much later in M's written evidence. It is a self-serving account that can only have been introduced to bolster M’s case.

225.                      I also accept Dr U’s evidence in preference to that of M. There is absolutely no suggestion in Dr U’s written material or her evidence to support M’s recent account that PGM described F seeing seizures. In cross-examination Dr U said she suspected she would have recorded alleged comments by PGM about seizures as she keeps detailed notes for most parents, and she said she thought she probably would have documented it because she wrote a reasonable amount of detail so they were obviously talking about it. She went on to say it was the main focus of the consultation, so again that made her think she probably would have documented it although she conceded she could not now remember the exact word wording three years down.

226.                      The only reasonable reason for the absence of any record of PGM having reported to Dr U that F had told her that he had seen seizures is because no such thing was ever said. I find that M has introduced this theme of evidence in her most recent statement in a self-serving way to bolster her own case and has been untruthful in that account. I find that M has lied in her account to Dr U on 7 November 2017 that J was having ‘absent episodes’ once or twice a week, and that she also lied in saying that PGM had told Dr U these were witnessed by F.

EPISODE 5

8 January 2018 – J was brought to hospital by ambulance with M reporting that he had been having increasingly frequent absence seizures and two seizures in which his whole body was jerking with eyes closed

227.                      It is the LA’s case that on 8 January 2018 M stated that J had two seizures, the second of which was prolonged for more than ten minutes, and that she presented J as having had an escalation in seizures over the last three to six months.

228.                      Once again M has given conflicting accounts of this incident.

229.                      In her schedule response M stated that J had been with F for the weekend and that on his return home F reported to M that J had had seizures at the weekend also seen by PGM. M said that F had not taken J to hospital but that he had been eating and drinking fine. In that response she made no mention of any seizure having been reported or observed on the bus on the way home to her.