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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> A, Re (Care Proceedings: Non-Accidental Injuries: Identifying the Perpetrator) [2025] EWFC 54 (14 March 2025) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2025/54.html Cite as: [2025] EWFC 54

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IN THE FAMILY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/03/25

This judgment was handed down remotely at 10:30am on 14 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives, following hand-down of the private judgment on 20 November 2024 and subsequent anonymisation. ............................. MS JUSTICE HENKE

Ms Justice Henke:

Introduction
 


1. The child for whom I am concerned is A. A was born in Summer 2022.
2. His mother is M and his father is F. At the time of A's birth, his mother was 21 years old and his father 19 years old. A's parents have been engaged since December 2021. At the time of this hearing, they were in a continuing committed relationship. A's father has parental responsibility for him by reason of having been named on his birth certificate.
3. A and his parents were known to the local authority before his birth. Following his birth and once he was discharged from hospital, A was voluntarily accommodated on 18 November 2022, when A was placed by the local authority with his parents at The Assessment Centre for a residential assessment. On 28 November 2022 A was placed in the interim care of the local authority, a London Borough. A and his parents remained at The Assessment Centre until 12 January 2023 when A was admitted to hospital with suspected non-accidental injury. On discharge from hospital on 27 January 2023, A was placed in foster care. A has remained placed with the same foster carer throughout. He is described as thriving in foster care. A has contact with his parents. Initially it was thrice a week but in March 2024 it was reduced to twice a week. F's commitment to contact has been described by the local authority as poor. The contact notes show that when A sees his parents, the quality of contact is good.
4. It is the local authority's application for a public law order which is before me. In relation to that application, A's parents have conceded that the statutory threshold condition in S31 CA 1989 is met. However, the factual matrix which underlies the statutory threshold is not agreed. The purpose of the hearing before me has been to settle that factual matrix to enable, if appropriate, future welfare assessments to take place and for future welfare decisions to be taken in relation to A on a proper factual basis.

The Issues

5. The factual issues which are in dispute, and which are at the heart of the case arose at the Assessment Centre where A was placed with his parents on 18 November 2022. Whilst their A sustained a number of injuries including fractures. It is in relation to those injuries that I am asked to determine:

i) Who caused them?

ii) Whether either parent failed to protect A?

iii) Whether A was forcibly fed by his father thereby damaging his lingual frenulum?

iv) Whether either or both of A's parents failed to seek medical advice or treatment for A within a reasonable time in relation to the bleeding in A's mouth?

v) Whether the parents' handling of A in the Assessment Centre presented a risk of physical harm?

This Hearing

6. This hearing has been a fact-finding to determine the factual matrix which underlies the threshold condition in this case and to specifically answer the questions posed in the preceding paragraph.
7. The evidence has been contained within two bundles – a main bundle and a supplemental bundle. Taken together there are in the region of 4000 pages of evidence, all of which I have read.
8. The oral evidence was heard from 1-19 July 2024 The evidence over-ran, mainly due to a failure on behalf of The Assessment Centre to properly warn their witnesses. Written submissions were received from all parties on 23 July 2024 and brief oral submissions in reply on 24 July 2024.
9. At the time the evidence over-ran, I warned that the time set aside for judgment writing had been used up for the witnesses, that the end of term was approaching and that my diary for the remainder of term, the vacation and the new year was heavily listed. The consequence was that judgment would be delayed. This term I notified the parties that it was ready to be delivered and listed the case for a hearing at Counsel's convenience.

The Parties' Positions in Closing

10. The local authority submit in closing that both parents had the opportunity to cause the injuries. Although there was CCTV in The Assessment Centre, the court, like Professor Fleming, is, they say, unable to discern by viewing the CCTV footage alone whether or not A was injured. Further there were periods when the parents were out of sight in The Assessment Centre. There were two occasions of which the parties are now aware when A was in the bathroom with his father alone and there were other occasions when A was out of view because of blind spots on the CCTV. The local authority thus in closing aver that A either sustained his injuries in plain sight of the staff viewing the CCTV and/or that they happened whilst he was out of sight. They say that both parents had the opportunity to cause the injuries.
11. It is the local authority's case that both of A's parents know what has happened to him but despite being given every opportunity to tell the court what has happened, they have chosen not to do so. It is submitted on behalf of the local authority that both parents have chosen to lie about the levels of supervision they experienced at The Assessment Centre in order to advance a case of complete absence of opportunity to inflict harm. The only explanation for this lie is to detract attention from the reality of how the parents' care of A was supervised and the opportunities that they both therefore had to inflict harm. It is said that this lie has been repeated extensively since the parents left The Assessment Centre and has been adopted as a mainstay of the parents' pleaded case. It is submitted that confusion or stress in the immediate aftermath of arrest is not an adequate explanation for the repetition of this lie until clear evidence was presented that demonstrated that the parents were regularly unsupervised in areas that they were aware were not covered by CCTV. In all the circumstances, it is said that this lie draws the credibility of both parents into doubt.
12. In closing the local authority submit that F damaged A's frenulum at or about 21.15hrs on 25 December 2022 by forceful feeding and that F knew what he had done.
13. Subject to one modification, I am asked by Counsel on behalf of the local authority to make all the findings set out in the local authority's schedule at A324-330. The local authority's primary case is that the fractures were caused by the mother and/or the father and that both remain in the pool of perpetrators. In the event I find, on the balance of probabilities, that the father caused the fractures, I am asked to find that the mother failed to protect A.
14. The Mother in the closing submissions prepared on her behalf by Counsel has conceded that the threshold is met in this case based on her capacity to care for A at the relevant date. It is conceded that there was a risk of physical and emotional harm arising out of her capacity to carry out unaided basic care tasks. It is accepted that as of the relevant date without ongoing support M would not have been able to meet A's needs. However, it is submitted that the local authority cannot satisfy the court on the balance of probabilities that M caused the injuries to A. Equally it is submitted that there is no real possibility that she inflicted those injuries.
15. Two specific submissions are made in relation to the case pleaded against M. They are that:

i) Lying a maximum of 3 minutes without moving with A on her chest (in which she was merely asked did you fall asleep and the worker could not assert that she was, in fact asleep); and

ii) placing A on the bed for 21 seconds whilst she stood in front of him the whole time before picking him up,

do not meet the three elements set out by Peter Jackson LJ in Re B-T (A Child: Threshold Conditions) [2020] EWCA Civ 697. I have re-read that decision and specifically reminded myself of paragraph 45 of the judgment:

45. There are three elements to the harm required by the threshold condition in section 31(2) of the CA 1989 : it must be actual or likely; it must be significant; and it must be due to parenting that is not reasonable.

Further it is submitted on behalf of the mother that neither alleged event provides an evidential basis for asserting that there is a real possibility that the mother caused the injuries.

16. On behalf of the mother, it is asserted that there is an inherent unfairness in the local authority raising video evidence which emerged during the trial and which M did not have any proper time to consider. By seeing CCTV footage of events, it is submitted that it has been possible for M to remember matters far better, but the court is reminded that it is still 18 months after the event. It is argued on her behalf that to attack M's credibility on matters which were not disclosed until day 9 of this hearing is unfair given her learning needs, overall cognitive functioning and poor working memory.
17. Having heard the evidence, it is submitted on behalf of the mother that it is beyond doubt that F was responsible for the torn frenulum on 25 December 2022. It is submitted that it is inherently unlikely that both of A's parents have caused him injuries and that there is no rationale in this case for asserting that there are two likely perpetrators. M is clear in closing that she does not believe and is not asserting that F ever intended to hurt A but has to conclude on the evidence that as she did not do anything to A, the only option in the absence of any other explanation is unintentional harm caused by F. The local authority has failed to properly particularise the basis on which they assert she failed to protect A. Accordingly I have reminded myself of Re L-W (Children) [2019] EWCA Civ 159, in which it is stated that:

"62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child."

63. Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children's best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries.

64. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, "nearly all parents will be imperfect in some way or another."

18. In the closing submissions on behalf of the father, he too concedes that the threshold criteria is met in this case on the basis that at the time protective measures were taken for A there was a likelihood of future physical and emotional harm and father accepts that he would not have been able to care for A and meet his needs without support at that time. However, the father denies he inflicted any injury on A thereby causing fractures to his ribs and wrist. He also denies that he force-fed A thereby causing him any injury to his frenulum. The father does not assert that the mother caused any fractures to A nor does he assert she caused his torn frenulum. The father does not put a positive case against any specific member of staff at the Assessment Centre but raises the possibility that as he did not cause any of the injuries, they must have been caused by someone else.
19. On behalf of the father it is submitted that this is a complex and unusual case. It is argued that A may not have been diagnosed with a specific genetic condition but there are still unknowns about his physiology and there are other unknown unknowns. On Father's behalf it is contended that it is open to the court on the totality of the evidence to consider whether this is a case of unknown aetiology – Re R (below).
20. In closing those acting on behalf of the Child's Guardian chose to draw the Court's attention to "relevant matters to assist in the fact-finding exercise" - Lancashire v D E [2008] EWHC 832 (Fam) paragraph 19 applied. The court is grateful to them for their endeavours.
21. On behalf of the Assessment Centre, their advocate in closing chose to answer a number of specific questions. They are as follows: -

i) Did the Assessment Centre fail to adequately supervise A's bath time? It was submitted that when the family arrived at the Assessment Centre, they signed a "Working Agreement." Paragraph 3 of the agreement included the parents agreeing to be observed by a staff member whilst undertaking all care tasks in relation to A. Paragraph 4 of the agreement says the parents should "report all basic care tasks with A to staff so this can be observed in person or via camera/or be recorded." It is averred that the evidence demonstrates that the parents failed on several occasions to follow these important rules and principles. It is said that they failed on several occasions to verbally inform staff before starting to bathe A. The father told the court that the reason why he sometimes failed to wait for staff was because he just wanted to get things done quickly, because other residents might want to use the bathroom. It is submitted that he also told the court that he was always expecting someone to come up. Mr X (junior) gave evidence that when parents took A to the bathroom without informing Assessment Centre staff first, they usually went to the bathroom without adequate preparation for A's bath. That meant that when staff arrived at the bathroom, they would have to go back to the family's room to bring adequate items of clothing or whatever else was needed for A. This would usually result in A being left on his own with his parent or parents. One of the rooms, apart from the staff toilet, where there is no CCTV at the Assessment Centre is the bathroom.

(ii). Did the Assessment Centre fail to protect A adequately? It is submitted that it is wrong to assume that the Assessment Centre staff failed to protect A adequately. Evidence revealed there were occasions when the father was seen to be heavy handed or rough handed when handling A. Staff intervened on such occasions, advising the father to be gentler with A. It is submitted that the Assessment Centre was diligent in its observations of A and ensured any bruising, marks or injuries were evidenced by body maps and photographs, brought to the attention of the local authority, and that A was taken for medical attention at the GP, Hospital B or that medical attention was sought from 111 in relation to the mouth injury.

(iii) Did Ms H cause injuries to A on 4.1.2023? It is submitted that it is clear from the CCTV evidence of 4.1.2023 and the expert medical evidence in the proceedings that A's injuries could not have been caused by Ms H.

(iv) Did the Assessment Centre staff cause A's injury when they had sole care of him in the absence of his parents? It is submitted that the evidence has shown that A was looked after by the Assessment Centre staff on five occasions without his parents. On behalf of the Assessment Centre, the evidence of Ms N, Ms X (senior), Mr X (junior), Ms D, Ms S and others is relied upon. In evidence, the Assessment Centre staff have confirmed that there were always other staff members in the staff room whenever A was taken to the staff room. Hence, A was never truly alone when taken there. It is averred that evidence from Ms N revealed that the only time that A was truly alone with staff members was when he was taken to the GP for his immunisation; and this was because his parents were unable to wake up to take him to the GP for his appointment.

The Law

22. I now turn to the law which I apply when making findings in this case.
23. In order to make a care or supervision order the local authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish the statutory threshold set out in s.31 (2) Children Act 1989. It also means that the Article 6 and 8 rights of A and his parents are engaged.
24. The relevant date for the purposes of threshold in this case is 18 November 2022; the day upon which he was voluntarily accommodated. Since that date protective measures have been in place continuously.
25. In the context of this case I have reminded myself of Ryder LJ's judgment in Re S [2014] EWCA Civ 25. In particular I have read carefully paragraphs 19-21 of that judgment wherein he says this:

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 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.

26. In respect of the task of determining whether the 'facts' have been proven the following points must be borne in mind as referred to in the guidance given by Baker J (as he then was) in Re L and M (Children) [2013] EWHC 1569 (Fam) confirmed by the President of the Family Division in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 47 – 24. See also the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011] EWCA Civ 12, [2011] 1 FCR 141, para 26. The burden of proof is on the local authority. It is for the local authority to satisfy the court, on the balance of probabilities that it has made out its case in relation to disputed facts. The parents have to prove nothing, and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)] although as Peter Jackson J (as he then was) confirmed in Re BR (Proof of Facts) [2015] EWFC 41 at paragraph 41 the nature of the history given by a carer of a child who has suffered a serious injury is a matter that doctors are entitled to have regard to in forming their opinions. The weight given to that opinion is of course a matter for the judge.
27. The standard of proof to which the local authority must satisfy the court is the simple balance of probabilities. As Lord Hoffman observed in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35: "If a legal rule requires facts to be proved, a judge must decide whether or not it happened. There is no room for a finding by the court that something might have happened. The law operates a binary system in which the only values are nought and none". The test remains the same regardless of the seriousness of the allegations. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred. Putting it simply if a matter is not proved to have happened then I must approach the case on the basis that it did not happen.
28. Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The dividing line between the drawing of inferences and speculation may not be a clear one; it is essentially a matter of judgment what is legitimate inference and what is insupportable speculation - Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 [2011] 1 FLR 1817 and Re A [2015] (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 [2016] 1 FLR 1.
29. In relation to the issue of similar fact evidence and propensity, the local authority has reminded me of Peter Jackson LJ in S (Children: Findings of Fact) [2023] EWCA Civ 1113 para [30]:

"I also consider that the judge was in error in relation to the issues of propensity and hindsight bias. The question of propensity or similar fact evidence arises where an individual's behaviour in other circumstances makes it more likely that he will have behaved in the manner now alleged: see R v P (Children: Similar Fact Evidence) [2020] EWCA Civ 1088, [2020] 4 WLR 132 at [23]. In that case, the question was whether a's behaviour towards one partner was admissible in relation to allegations made by another partner. Here, the court was concerned with a sequence of events within the same family. Self-evidently, one finding about a parent's behaviour towards a child might be relevant to another similar allegation and there was no need to resort to the concept of propensity or to erect artificial barriers around the assessment of evidence. Similarly, the well-known concept of hindsight bias cannot deflect the court from making a common-sense assessment of the evidence as a whole, and I do not understand the judge's apprehension that the local authority was asking him to do something unusual or impermissible."

30. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors - A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam). The court is not limited to considering the expert evidence alone. Rather, it must take account of a wide range of matters which include the expert evidence but also include, for example, its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence rather than adopting a compartmentalised approach. The court invariably surveys a wide canvas- Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567. The wide canvas is of fundamental importance. In Re T [2004] EWCA Civ 558, Dame Elizabeth Butler-Sloss P put it as follows: - "Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof". Thus, the opinions of medical experts need to be considered in the context of all of the other evidence. It is important to remember that the roles of the court and the expert are distinct, and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. In relation to the wide canvass of evidence I have reminded myself of Lord Nicholls' speech in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80 wherein he stated that:

"[101B] …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. The evidence received in this case, as is invariably the case in proceedings involving allegations of injury includes expert medical evidence from several specialists. However, as observed by Dame Elizabeth Butler-Sloss P in Re U, Re B, supra: "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 may throw a light". In the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim, Lord Justice Judge, as he then was, observed: "What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge." Case law has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause. That was articulated by Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim 126 at paragraph 1:

"Where a prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.".

In Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam, Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further at paragraph 10:

"A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete 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".

Later in the judgment at paragraph 19 Mr Justice Hedley added this observation:

"In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer nonaccidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made."

Specifically, in Re U (supra) Dame Elizabeth Butler Sloss stated at paragraph [23]:

"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 proper 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."

32. In addition I have reminded myself of the following propositions: -

a. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed: "It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.

b. Later in the same judgment, Mr Justice Charles added at paragraph 49: "In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established."

c. As Mr Justice Ryder (as he then was) observed in A County Council v A Mother and others [2005] EWHC 31 (Fam) "A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be".

d. The inability of a parent to explain an event cannot be relied upon to find an event proved. Per Re M (A Child) [2012] EWCA Civ 1580 at §16

e. The burden of disproving a reasonable explanation put forward by the parents falls on the local authority: Per §10 of S (Children) [2014] EWCA Civ 1447.

f. There is no burden shifted to the parents to prove a natural cause for symptoms. In Lancashire County Council v D and E [2010] 2 FLR 196 FD Charles J said:

"[36] The exercise of identifying a perpetrator, or pool of perpetrators, forms part of the exercise of considering whether there was an inflicted injury. In my view, it is important to remember this because it removes or reduces an approach which considers the overall question from the standpoint that someone with the opportunity to injure a child has to show that he or she did not do so. Again, in my view, the approach of the local authority and the guardian, at times, came perilously close to this. The correct position is that a medical view as to the most likely cause of injuries is that that cause is clearly established as a real possibility that has to be considered, in all the circumstances of the case, together with the other possibilities, in determining whether a child was the victim of an inflicted injury."

g. In Re M (Fact finding: Burden of Proof) [2013] 2 FLR 874 at paragraph 881 Ward LJ stated:

"That, too, was the effect of the judge's view of the case: that absent a parental explanation, there was no satisfactory benign explanation, ergo there must be a malevolent explanation. And it is that leap which troubles me. It does not seem to me that the conclusion necessarily follows unless, wrongly, the burden of proof has been reversed, and the parents were required to satisfy the court that this is not a non-accidental injury."

33. The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them - Re W and another (Non-Accidental Injury) [2003] FCR 346.
34. In Y, V and B (Fact-Finding: Perpetrator) [2024] EWCA Civ 1034, Lord Justice Baker stated the legal principles to be applied when considering whether a perpetrator or pool of perpetrators can be identified. Having considered the authorities which explain how the attributability condition is S31(2) can be met by a pool finding, he stated this:

7.  It is therefore possible in cases of non-accidental injury for the attributability condition to be satisfied without identifying the person who inflicted the injury. But it is well established that a court should where possible endeavour to identify the perpetrator. The standard of proof for identifying a perpetrator is the balance of probabilities: Re C (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11 ; Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678.

[…]

Baroness Hale, endorsing the earlier statements in the Court of Appeal in North Yorkshire County Council v SA [2003] 2 FLR 849, said (at paragraph 43):

"If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."

35. Paragraph 11 of Lord Baker's judgment summaries the recent guidance on how a judge should approach the task of identifying whether someone is in the pool of perpetrators. That guidance had been given by Peter Jackson LJ in Re B (Children; Uncertain Perpetrator) [2019] EWCA Civ 575. At paragraph 46 of Re B, Peter Jackson LJ explained the purpose of the concept of the pool in these terms:

"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."

36. Then at paragraph 49, Peter Jackson LJ gave the following guidance:

"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 … 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'."

Finally, Lord Justice Baker reminded us in Re Y, V and B supra that Peter Jackson LJ in Re B added these further observations:

"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."

37. In the past it has been suggested that a court in care proceedings should "not strain to identify a perpetrator". That suggestion has now been disavowed: Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348. Thus, the straightforward position is as summarised by King LJ in that case at paragraph 34:

"The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B [2019], he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question."

38. Finally, I direct myself to how I should treat any lies that I find have been told when I evaluate the evidence. I should take care to ensure that I do not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth - Re H-C (Children) [2016] EWCA Civ 58 at paragraphs 97-100. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything R v Lucas [1981] QB 720. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child (H v City and Council of Swansea and Others [2011] EWCA Civ 195). In Lancashire County Council v The Children [2014] EWFC 3 (Fam), at paragraph 9 of his judgment and having directed himself on the relevant law, Jackson J (as he then was) said:

"To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might inelegantly be described as 'story-creep' - may occur without any necessary inference of bad faith."

The Background

39. The background is drawn from the chronology which has been agreed between the parties and thus contains admitted evidence. Where I have made findings which go beyond the admissions, I have said so and given my reasoning.
40.  A was born by spontaneous vaginal delivery in the footling breech position in Summer 2022 at the Hospital A. He was 16 weeks premature. His actual estimated due date was in November 2022. A weighed 790 grams at birth which plotted on 75^th centile. His mother had been given a full course of steroids prior to his birth and an intravenous infusion of magnesium sulphate. His Apgar scores at one minute was 7, at five minutes was 9 and 9 again at ten minutes.  He established spontaneous breathing within one minute but because of progressive difficulty with breathing, he was intubated and started on ventilatory support with intermittent positive pressure ventilation at six minutes after birth. He was given artificial surfactant and transferred to the neonatal intensive care unit. Over the first few days of his birth, A made good progress.
41. On 4 August 2022 A stopped breathing and was placed on assisted ventilation for 36 hours. Thereafter he was continued on CPAP until 24 August 2023 when he was weaned onto high flow oxygen therapy until 30 August 2022 when A was transferred to Hospital B. Hospital B is closer to his parents' home. The transfer was made primarily to facilitate parental visits.
42. Whilst in Hospital A and Hospital B A underwent extensive tests and investigations, the results of which have all been available to the experts who have reported within these proceedings.
43. Prior to A's birth the local authority began a Child and Family assessment. It concluded on 31 August 2022. It captures the hospital reporting concern that A's parents had only visited him 8 times in two weeks despite being given oyster cards to assist them with the cost of travel.
44. Whilst A was an inpatient, staff at both the Hospital A and the Hospital B raised concern about the infrequency of his parents' visits. Consequently, on 7 September 2022. a Strategy Discussion was held. The outcome was that a S47 Inquiry would be commenced. That Inquiry concluded on 23 September 2022 with a recommendation that an Initial Child Protection Conference should be held. That conference took place on 27 September 2022. At that Conference, A was given a Child in Need plan and his parents were advised to visit him several hours a day to enable them to learn to care for him. Sadly, however, concerns continued to be expressed about the lack of parental visits to A. His mother stayed with him from 11-13 October 2022, but the hospital continued to emphasise the need for daily visits for several hours duration to enable his parents to learn to care for him.
45. By 4 November 2022, A was medically fit for discharge. On 18 November 2022, A was discharged from hospital and placed with his mother and father at the Assessment Centre.
46. On 24 November 2022 A returned to hospital for a routine ultrasound on his hips which took place at about 11.25 am. I note that no concerns were raised by the clinicians about A. The same day, at about 14.30pm, M told members of staff at the Assessment Centre that she believed that F was cheating on her by communicating online with other women.
47. At 20.42pm on 24 November 2022, F reported to staff at the Assessment Centre a square shaped mark on A's right leg. The father says that the mark was not there in the morning. He had noticed it when the mother changed A's nappy. M states that she did nothing to cause it. The father took a photograph of the mark. A further photograph was taken by Ms M, a member of staff at the Assessment Centre that day and another the next day.
48. On 25 November 2022 A attended Hospital B for a mid-morning eye review.
49. At 11.59 am that morning a member of staff rang the local authority about the mark reported the night before. Staff considered the mark non-suspicious and likely to be a strawberry birth mark. They would monitor it and seek medical attention if changes were noted.
50. At 17.20pm on 25 November 2022 A's parents were spoken to by staff at the Assessment Centre about the marks on A's right leg and foot. A was taken to Hospital B where he was examined by a Paediatric Registrar. The Paediatric Registrar observed several marks on A which could be explained but also the following for which there was no explanation, namely: -

i) 1cm x 1cm x 1cm triangular red area, posterior and superior to the lateral malleolus of the right foot (the outer aspect of the right ankle).

ii) 1cm x 0.5cm red mark located on lateral surface of lower leg, superior to the lateral malleolus (above the right ankle).

iii) 1.2cm linear red mark on lateral aspect of right foot/5th toe.

iv) 0.3cm x 0.3cm red mark on left lower leg, medial aspect of the anterior tibia.

v) 1.5cm x 0.4cm red mark on left lower leg, lateral aspect of the anterior tibia.

vi) 0.3cmx0.2cm red mark on left lower leg, medial aspect of the anterior tibia.

vii) 1.6cm vertical linear red mark overlying Achilles tendon of left leg.

Each of the above marks were considered to be consistent with bruising. Father suggested that each of them could be due to tight clothing.

51. As a consequence of the above, A was admitted to Hospital B for observation and investigation. Those investigations did not include a skeletal survey.
52. A Strategy Discussion on 28 November 2022 concluded that there was no evidence of a non-accidental injury given the CCTV footage from the Assessment Centre and given a skeletal survey had not been deemed necessary. A was therefore discharged back to the Assessment Centre where he continued to be placed with his parents for residential assessment.
53. On 30 November 2022 a detailed health visitor assessment was carried out in the family's bedroom at the Assessment Centre. F was observed to take the lead in answering most of the questions. A had a full physical examination which included removing all his clothes. No marks or bruises were identified on A. Further health visitor assessments on 14 and 20 December 2022 again identified no problems. A's weight continued on the 75^th centile.
54. I draw the specific dates and events in this paragraph from the agreed chronology which, on the basis of the admissions made, I find proved. Whilst at the Assessment Centre on 29 November 2022, F was told to wind A more gently as it sounded over the monitor as if he was being heavy handed. It was also observed in the Assessment Centre on 3 December 2022 that F appeared to be stressed out when holding A and there were concerns that he was too rough stroking his head. On 12 December 2022 Father was again told to wind A more gently. On 16 December 2022 A attended an appointment with a Community Neonatal nurse. During that appointment the marks on his skin, including a 2cm x 0.5 cm reddish area on the lateral surface of his left arm were discussed with the nurse suggesting it might be skin writing. There are several occasions set out in the chronology when the Assessment Centre staff recorded that A seemed distressed and cried excessively when F held A to feed him, most notably on 19 December 2022. On 20 December 2022 staff at the Assessment Centre entered the family's room in response to hearing A scream twice. No explanation for the screaming was sought. The next day F reported hearing a clicking noise from A's chest area to Assessment Centre staff but no bruises or marks were observed. At 9.40am on 24 December 2022, M brought a mark on A's leg to the attention of staff at the Assessment Centre. The mark was photographed. The next day a body map was completed. It shows a line of redness on A's right leg together with a red spot. Later the same day, namely 25 December 2022, at or about 21.36hrs M ran out of their family room with A in her arms shouting that A is bleeding from his mouth. F observed bleeding coming out from under A's tongue. Despite this episode possibly indicating damage to the lingual frenulum, which Professor Fleming states is a marker for potential significant abuse by forceful feeding, it appears that after repeated failed attempts by staff to get through to 111, staff at the Assessment Centre gave up and no medical attention was sought for A. Later the same day at 22.19 hours, F is observed throwing A up in the air and when told not to, replies he has been trained in it. By 26 December 2022 A is noted to be unsettled and to be crying uncontrollably. On 30 December 2022 A attended a routine eye clinic at the hospital. No concerns were noted.
55. On 4 January 2023, M and F reported concerns about a staff member at the Assessment Centre. I have viewed the relevant CCTV footage; a staff member can be seen picking A up from the floor whilst sitting on the bed and almost losing her grip which meant that she had to grab him to stop him from falling. A cried out. A was taken to see the GP that evening. He was checked over and no concerns were noted. A was returned to his parents at the Assessment Centre.
56. On 9 January 2023, F was observed at the Assessment Centre to rough handle A during a nappy change at 15.40pm. The incident included A being pulled down the changing mat by his right ankle by his father. A scratch to A's left heel was pointed out by F and noted by staff. That evening staff recall hearing heavy patting over the monitor.
57. On 10 January 2023 a staff member heard A scream very loudly when being picked up by F. They went to the parents' room to investigate.
58. On 12 January 2023 A went to Hospital B for an injection. F held both of A's legs for the injection to be administered. The staff members present discussed the scratch/scrape which had scabbed on A's left heel with the nurse. A small thin red line was seen on his shin and a small red circle on the right side of his calf, which looked to be the result of clothes pressing on his skin.
59. At approximately 16.00 pm on 12 January 2023, F was changing A when he noticed a large bruise on A's right thigh which he drew to the attention of staff. The mark was placed on a body map and photographs were taken. At 18.30 hrs A was seen by a GP who advised attendance at Hospital B. There, A was assessed at 21.30hrs in the Paediatric Emergency department where the following was noted:-

i) Non-blanching linear lines red in colour around 1 cm in length over the right iliac fossa.

ii) A large area of bruising measuring 7cmx 4.5cm x 2.5cm which was bluish in colour

iii) Linear scratches on the left ankle 0.5cm-1 cm

iv) A brown circular mark on the right posterior calf which was 0.5 cm.

60. A had an ophthalmic review the next day which revealed no evidence of retinal haemorrhages. A had a skeletal survey whilst in hospital (see below).
61. On 20 January 2023, M and F were arrested for GBH with intent. On the same day the placement at the Assessment Centre was terminated.
62. On 21 January 2023, M was interviewed under caution by the police. She had a solicitor present. Within the interview M stated that she did not do anything to harm A. She went on to say me or my partner did not do it. Within that interview at G163 M clearly denied that there was any room in the Assessment Centre which was not monitored.
63. F was arrested the same day. He gave a prepared written statement under caution. Within that statement he accepted that he can sometimes be too heavy handed but not to the extent that he caused fractures and asserted that A had not shown any signs of distress or pain to cause him to seek medical attention for his son. He specifically denied causing A any injury and queried whether A had a medical issue with the bones in his body as he had been born prematurely.
64. On 27 January 2023 A was discharged from hospital into foster care where he has remained to date.

The Evidence

The Clinical Evidence 

65. The clinical evidence before the court is not in dispute. None of the clinicians were required to give evidence. Their evidence which I summarise below is thus drawn from their documents and is admitted.
66. I have before me a report by Dr N, Consultant Paediatrician and Named Doctor for Safeguarding. It has been written in conjunction with Dr X, Paediatric ST4. It was written after they met with A, his father and the keyworker from the Assessment Centre on the night of 12 January 2023. The history given was that the father noticed bruising to A at about 1pm on 12 January 2023. A had had an injection that day and his father wondered whether the bruising may have arisen when he was holding A for his injection although he was uncertain of the exact cause. 
67. On examination it was noted that A was able to fix and follow. In terms of his gross motor skills, he was unable to roll and was making little effort to push up from his chest. He had passed his hearing screen. No social smile was witnessed during the examination. 
68. The father was described as attentive to A when he posseted and to have initiated changes of clothing when required. He ensured A's nappies were changed with some assistance from the key worker. He handled the baby "gently and with care".  
69. On examination A's frenulum was found to be intact. Non-blanching linear lines red in colour around 1cm in length were seen over A's right iliac fossa. There was a large area of bruising measuring 7cm in length and 4.5cm and 2.5cm in widest and narrowest width. The mark was bluish in colour. The areas of bruising consisted of two distinct linear blue lines on the lateral aspect. The bruises on the medial aspect were wider and less well-defined.  There were also two linear scratches on the left ankle which were 0.5cm - 1cm in size and there was a brown circular mark on A's right posterior calf of 0.5cm.
70. The clinicians considered that the large area of bruising with linear markings was suggestive of non-accidental injury in an immobile baby and that the brown circular mark could be from pressure applied by fingers. The remaining marks could have accidental causes and were not regarded by the clinicians as suspicious. 
71. Other investigations taken at the time showed that A's Vitamin D levels and his copper levels are normal. According to Dr N, A's clinical presentation was not in keeping with vitamin C deficiency. If he had vitamin C deficiency, he would expect to see bleeding from the gums.
72. A's CT scan was all normal. However, the skeletal survey which the clinicians had ordered showed multiple rib fractures including multiple posterior rib fractures and a fracture of the left distal radius (bone in forearm). The fractures, particularly the posterior rib fractures, were considered by the clinicians to be suspicious of an inflicted injury.
73. Dr M saw A during his ward round on 14 January 2023 and then again on 15 January 2023, and twice more on 20 January 2023.  Throughout his stay in hospital, Dr M observed a happy baby who handled well and was not in any distress when examined. On first examination, he considered A's muscle tone was more appropriate for a two-month-old rather than his chronological age of 5 months. On 18 January 2023, Dr M noted several new linear marks typical of bruising over his left lower leg. It had been seen for the first time by staff at 9am that morning. The parents had left about 5-6pm the evening before. On 20 January 2023, Dr M took photographs of the marks.
74. A and his parents attended the Genetics Clinic at Hospital B on 17 January 2023. The Consultant in Clinical Genetics, Dr G, concluded that A's skin problems are unlikely to be genetic given the history provided by his parents and her examination of him and his mother. Later genetic sequencing and dosage analysis did not identify any underlying genetic cause for his clinical presentation. The testing excluded more than 99% of the pathogenic variants but did not completely exclude a diagnosis of osteogenesis imperfecta. Dr G recommended a further assessment.

The Experts' Evidence

75. The evidence of the court appointed experts has been accepted before me with the exception of Prof Fleming who was required to attend for cross-examination. I thus begin by summarising the accepted expert evidence.
76. Dr Michael Hall, Visiting Professor of Neonatology at Southampton University provided a report for the court within which he emphasised that he is not an expert in non-accidental/inflicted injury cases but that he has experience of working as a general paediatric consultant for about 20 years. Whilst he did not give an opinion in relation to the timing of the fractures and the mechanism for the wrist injury which he said should be addressed to a Consultant paediatrician with expertise in non-accidental injury/inflicted injury, he did comment on the causation and mechanism of the rib fractures. In his opinion, they would not have occurred spontaneously or as a result of self-inflicted injury. There is no history of CPR and there is no evidence of a medical condition, such as osteogenesis imperfecta or osteopenia of prematurity, which would pre-dispose to bone fractures. In his opinion there is no evidence that the rib fractures are attributed to A's premature birth. There is no evidence of any form of metabolic bone disease on the skeletal x-ray, and the chest x-ray taken on 7 October 2022 does not show any rib fractures. In such circumstances, he opines that the rib fractures must be presumed to be inflicted and that they are not likely to be accidental given the level of force required to fracture the relatively pliable ribs of young babies. The mechanism for the rib fractures is most likely, in his opinion, to be forcible squeezing of the chest.
77. Dr Karl Johnson, Consultant Paediatric Radiologist prepared a report for the court dated 1 September 2023. It has not been challenged. In his opinion the x-rays show normal bone density. According to him, there is no evidence of any underlying metabolic bone disease. In Dr Johnson's opinion the appearance on the scans and x-rays indicates that from a radiological perspective there is no evidence of any bone disorder including that related to prematurity. It is his expert view that A is at no greater risk of bone fracture than any other child of similar age. Dr Johnson deferred to neonatal specialists in relation to any bone disorder related to prematurity. 
78. A skeletal survey undertaken on 19 January 2023 showed that there was a healing fracture of A's distal left meta diaphysis. In his opinion it was 2-5 weeks old as of 19 January 2023. In addition he identified healing fractures of:-

i) the posterior aspect of the right 2^nd, 4^th, 5^th, 6^th, 7^th and 8^th ribs.

ii) the anterior aspect of right 4^th, 5^th 6^th 7^th and 8^th ribs.

iii) the anterior aspect of the left 3^rd, 4^th.5^th, 6^th,7^th, 8^th, 9^th and 10^th ribs.

iv) the left 5^th, 6^th, 7^th and 8^th rib.

From the amount of healing response seen on the survey, Dr Johnson estimated all the rib fractures to be between 3-8 weeks old.  However, Dr Johnson reminded the court that radiological dating of fractures is difficult, imprecise and a subjective estimation.

79. In Dr Johnson's opinion the four groups of rib fractures may have occurred at the same time from a single event or possibly on four separate occasions. He could not be precise as to the exact number of events but given the relative symmetrical appearance of the fracture patterns, the posterior and posterolateral fractures and the anterior fractures on both sides of the chest are likely to have occurred at the same time. In his opinion, the distal left radial fracture could have occurred at the same time as the rib fractures but was caused by a separate application of force and a different mechanism.
80. Each of the fractures is a result of a significant force being applied to the bone, The amount of force required is unknown but it is greater than that used in the normal care and handling of a child such as normal domestic handling, over exuberant play or rough inexperienced parenting. In his opinion throwing and catching a child would not cause rib fractures unless it was done with excessive inappropriate squeezing force.
81. Rib fractures are typically the result of a severe, excessive squeezing compressing force applied to the chest. The fracture to the left radius is the result of a blow, impact or bending, snapping action applied to the limb. The radiological appearances of the fractures do not distinguish between inflicted injury and accidental injury.
82. Dr Saggar, Consultant in Clinical Genetics and Senior Lecturer in Medicine, provided a report to the court dated 26 February 2024. He was not required to attend to give evidence. His report is accepted before me. Dr Saggar found some minor evidence that A had inherited hypermobile spectrum disorder from his mother which might explain his propensity to get red marks more easily than the average person. The same susceptibility may also explain his propensity to bruise with lesser force. However, he would not bruise spontaneously. The level of force to sustain such bruising is not known but may occur with normal or rough handling which is not intended to be abusive. In his report, Dr Saggar discussed the controversial relationship between fracture risk and HSD/HEDS in small children particularly those under the age of 1 year. In his opinion A's fractures cannot be adequately explained by an inherited/genetic syndrome in the absence of a plausible and precipitant force/forces that could adequately explain each fracture. He accepts that it is not his area of expertise to define what contribution prematurity and/or a prolonged period of immobility may have made to increasing the risk of fracture if A had inherited a risk from his mother for HSD. However, he did not consider that any further gene testing is indicated. The tests conducted revealed no gene mutation and the lack of any corroborating clinical or radiological features do not suggest a diagnosis of Osteogenisis Imperfecta. In his opinion, that leaves a residual risk of less than 1 % that A has a bone fragility disorder.
83. Prof Ng, Honorary Professor, Consultant Paediatrician and Paediatric Endocrinologist, provided a report to the court dated 10 January 2024. Again her evidence was accepted before me. She concluded that there was no biochemical or radiological evidence of a metabolic disease of prematurity. There is no evidence of hypocalcaemia. There is no evidence of Vitamin C deficiency scurvy and no need to test further.
84. Dr Keenan, a Consultant Paediatric Haematologist, provided two reports to the court. His first was dated 29 December 2023 and his second 28 March 2024. There was no challenge to his evidence before me. He concluded that after extensive testing, no blood clotting disorder was identified. In his opinion, the bruising observed in A should, on the balance of probabilities, be considered to have occurred in a child with a normal blood clotting system.
85. Professor Fleming was required to give evidence before me. There was no direct challenge to his evidence; rather there was an exploration of his evidence by the parties. He gave his evidence in his characteristically understated and calm fashion. He was precise, knowledgeable and reasonable in his evidence. I accept his evidence.
86. Professor Fleming is Professor Emeritus of Infant Health and Development Physiology and an Honorary Consultant Paediatrician and Neonatologist. His report is dated 16 April 2024. Professor Fleming agrees with:-

i) Dr Hall that there is no evidence that A's fractures could be attributed to A's premature birth and no evidence of any underlying metabolic bone disease.

ii) Professor Ng and her conclusions, recognising her as an expert in her field.

87. Within his report Professor Fleming set out that infants with a birthweight of less than 1000g have an incidence of 15% for metabolic bone disease of prematurity. However, in his opinion given A's medical and clinical history as set out in his report, Professor Fleming does not consider that A was at an increased risk of metabolic bone disease of prematurity and considers that sequential measurements of Alkaline phosphatase, Calcium and phosphate levels show no evidence of it. He agrees with Dr Hall, Dr Johnson and Professor Ng that in A's case there is no evidence of that condition. He does not believe that the use of caffeine is relevant to the causation of A's rib and arm fractures. In his opinion there is no evidence of significant hypocalcaemia in this case. There is no significance in A's low albumen level. There is no clinical evidence that A has suffered a vitamin C deficiency and Professor Fleming does not believe that vitamin C deficiency is a plausible explanation for A's injuries. Likewise it is his opinion that it is very unlikely that significant copper deficiency could have contributed to the injuries.
88. According to Professor Fleming, if A does have an inherited form of Hypermobile Ehlers Danlos Syndrome, that would lead to more easily marked skin and the possibility of easier bruising. However, it would not explain the multiple fractures he sustained. Given the possibility that his skin marked easily, Professor Fleming cannot explain how the episodes that led to fractures did not apparently lead to any identifiable skin marks or bruises, although it is possible that the skin was protected by overlying clothing and if the wrist injury occurred by the pulling of A's hand then, in Professor Fleming's opinion, trauma to his skin would have been minimal.
89. In relation to A's reaction to the fractures, Professor Fleming was asked in evidence about A's pain response to the fractures. In that context he stated that although staff at the Assessment Centre did not identify any specific incidents when A was considered to be in pain, there were episodes which they reported when A was thought to be uncomfortable or distressed when being held by his father. According to Professor Fleming, in many instances of infants having fractures of ribs or long bones, the period of easily identifiable discomfort is reported to be short, and carers who were not present at the time the injury occurred commonly fail to recognise that any injury has occurred, even when seeing the baby handled within an hour of injury. In relation to the clicking sounds F reported hearing, Professor Fleming explained that "popping" sounds have been reported in several cases of infants presenting with rib fractures but he does not know whether this is a feature suggestive of a rib fracture or is independent of them in this case.
90. In terms of likely cause, mechanism and timing of A's fractures, Professor Fleming gave a clear opinion that in the absence of an identifiable underlying condition or a reported accident, the most likely explanation is one or more episodes of inappropriate rough or vigorous handling either deliberate or accidental within the time frames Dr Johnson considers likely. If the court concluded that there is no occasion when A has been mishandled, then it is possible that a mild form of Ehlers Danlos Syndrome may explain the easy marking and easy bruising. However, in relation to fractures, in Professor Fleming's opinion either A has an underlying susceptibility to fractures arising from an as yet unidentified condition or he has been subject to inappropriate, rough or abusive handling, either accidently or deliberately on at least one occasion.
91. In relation to the bleeding observed from A's mouth on 25 December 2022, in his written report Professor Fleming considered that the episode is strongly suggestive of an episode of forceful feeding leading to damage to the lingual frenulum. In the experts' meeting, Professor Fleming commented that bleeding underneath the tongue in a young infant is a significant finding. It was not followed up at the time and has not occurred again.
92. In his oral evidence Professor Fleming told the court that the father's description of the 'split' under A's tongue would fit with damage to the lingual frenulum. The lingual frenulum may be damaged by forceful feeding or over vigorous feeding in young babies. Damage to the lingual frenulum is a feature that paediatricians look for in insensitive or over vigorous handling or response. In terms of force required to cause the tear, Professor Fleming was of the opinion that the tear is consistent with forces that were inappropriate for that child. However Professor Fleming could not comment on the circumstances nor motivations behind such actions. In terms of the mechanism described by the father of the teat going under the tongue and damaging the skin, Professor Fleming considers that is highly likely to be correct. Professor Fleming was not aware that any tongue tie had been observed in A and, in terms of causation, if the frenulum was further forward as in babies with tongue tie, the tongue cannot come up. Thus in his oral evidence, Professor Fleming refuted the possibility that bleeding might occur in this situation without significant force and opined that it would be 'quite the opposite'.
93. Professor Fleming's opinion was that anybody present at the time of fracture injuries would be likely have realised that something inappropriate had happened. However, a carer would not necessarily 'automatically' have noticed that there was an injury. Professor Fleming's opinion was that the general consensus amongst clinicians is that somebody would have realised that something inappropriate had happened.
94. In terms of what Professor Fleming meant when he described inappropriate handling, he told the court that the use of inappropriate force does not imply that the person applying that force knows that the force is inappropriate. He said that it may be accidental, or it may be clumsy or it may be abusive; but when looking at the force (setting aside any motivation which may be a wider consideration) he accepted that the force is beyond normal handling appropriate for the child who is injured. Further, when asked by the Court in relation to unknown or unrecognised conditions (genetic or otherwise) having seen the investigations that had been conducted, he cautiously stated that there was nothing to indicate that A had a time-limited underlying condition which could account for his injuries.
95. Professor Fleming was asked to view a number of video clips taken from the CCTV at the Assessment Centre. In relation to those clips he stated within his report that it is clear that F found the process of looking after A quite difficult and at times stressful. However, there were no clips which he viewed when the behaviour of either parent seemed inappropriate or likely to cause A possible injury. Professor Fleming noted the very loud patting noise heard whilst F was holding the baby on 12 December 2022 and stated that this does seem more vigorous than would be usual for such a small baby, but there was no distress evident from A at that time.
96. The court appointed experts in this case met on 3 May 2024. I have the transcript of that meeting before me. In so far as they altered their respective views or amplified what they had to say either in that meeting or, where applicable, when they gave oral evidence, I have reflected their evidence in the paragraphs above.

Social Workers and other professionals

97. The initial social work evidence to the court was provided by the original Social Worker. Her statement was before the court and dated 16 November 2022. In March 2023 an updating statement was provided by a second Social Worker. In reality the statements set out events, opinion or concerns reported to the social workers by others. They thus added little to the findings I am asked to consider making.
98. Mr K was an Independent Social Worker who had been instructed by the Assessment Centre. His report to the court is entitled a Midway Assessment. I formed the impression that he was an honest witness who gave his evidence professionally. He knew the mother had a cognitive impairment and additional needs. He accepted in cross-examination on behalf of the mother that he was not trained in PAMS assessment. He told me that in the Assessment Centre, the service manager is PAMS trained. His work would feed into their report. His report was a midway report; a snapshot. There was no PAMS overview because the full assessment was abandoned when A was found to have injuries. His report was largely observational with some analysis. His report highlighted concerns including the parents' continuing need to be prompted to care for A and their tit-for-tat interaction around providing caring tasks for A. He had concerns that F told M what to do and was quite controlling of her. There were also positives including that the mother was gentle and caring. In relation to the father, Mr K told me that he was chatty and engaging and appeared to be listening to advice but there was a concern that he was not accepting key concerns. There were risk factors that he raised in his report in relation to bathing, communication, denial of key concerns. He felt a full assessment was worthwhile but he had guarded concerns about the outcome given that by January 2023 they were still needing prompting to provide good enough care for their son. He accepted that his assessment was incomplete and that given the parents' cognitive functioning and special characteristics a PAMS assessment was necessary.

The Assessment Centre Staff

99. I read and heard from a number of members of the staff at the Assessment Centre. In the sub-paragraphs that follow, I summarise their relevant evidence and, where appropriate, make my assessment of their reliability and credibility. In doing so, I have sub-divided the witnesses, into those who had managerial responsibility or were linked to the management of the Assessment Centre, and the Family Support Workers.

Management

i. Ms X (senior). Ms X (senior) is the Registered manager and company director of the Assessment Centre. She has been running the Assessment Centre for 8 years. When she gave her evidence, it was obvious that she had pride in the centre, was defensive of it and its practices. After all, the whole purpose of the centre is to safeguard, and A had been injured whilst staying there with his parents and she and the centre had much to lose. That said, I formed the view that she was ultimately a truthful witness who gave evidence upon which I could rely.

Ms X (senior) told me that she does not have any social work experience; Mr K was to provide a parenting assessment. The PAMS element of the assessment was to be conducted by Ms N. The PAMs assessment was not included in the Midway assessment. She had no direct contact with the parents.

In terms of observation in the placement, she told the court that the CCTV covered all areas except the bathroom. She accepted that there were blind spots in the parents' room, namely behind the door and from the chest up by the room's window. The CCTV did not have audio but there was a baby monitor. A member of staff should be present when all care tasks are carried out and parents are expected to notify staff if they intend to carry out such tasks. She had not reviewed the CCTV footage relevant to A's stay at the placement because the police had taken it. At the time staff had seen the father rough handle A and had intervened. That was recorded in the logs which they had reviewed after A was found to have been injured. She had not asked any member of staff if they had caused injuries as staff had reported their safeguarding concerns. Staff had taken A into the office but there was always at least one other member of staff there. She could not countenance any member of staff having caused the injury. They had a safe recruitment policy

ii. Mr X (junior). Mr X (junior) gave evidence before me twice. He is Ms X's (senior) son. He was the key worker who worked with the family. He had concerns about the tit-for-tat between the parents; about them not getting up early enough etc. The mother was overall gentle and caring but had to be encouraged to do tasks. The father could be gentle with A but he was also heavy handed when patting his back and touching him. You could hear the father on the monitor patting A's back. He was mortified that A was injured on the Unit. Mr X (junior) actually broke down in tears when giving evidence and was clearly devastated at what had happened but also, I considered during his first time in the witness box, defensive of the Unit and worried about reputational damage. When he gave evidence for the first time he had not seen the CCTV footage of the time A was at the Unit because it had been in the possession of the police. When he returned to the witness box for the second time, he had had the opportunity to view selected parts of the CCTV. Having done so he had to accept that there were two occasions when A had been in the bathroom with his father without supervision in January 2023. Mr X (junior) accepted in cross-examination on behalf of the mother, that the father had a habit of not reporting that he was going to carry out a care task before he did it. However, in cross-examination by the father, he had to accept that on 4 January 2023 the father had said over the monitor that he was taking A for a bath. I got the impression from listening to what the witness said and the way he said it, he had informally relaxed supervision of the father with A because he did not consider A would come to harm in his care and that he could leave him to bath his son. I have asked myself why then did his log entries not reflect that conclusion or the lack of supervision on two occasions. I have decided that there is only one answer to that question - that is that he knew the tasks should be supervised and that was what the local authority expected of the Unit. What had happened was not consistent with the 24/7 monitoring and supervision the local authority had requested of the placement. I consider that Mr X (junior) was a defensive witness. When he gave evidence on the second occasion, he did not appear to me to understand the import of two occasions when there was no supervision or of his log not being accurate on those occasions.

The Family Support Workers

iii. Ms N. She is PAMS trained. Her role was to do work with the family and Mr K was the ISW responsible for doing the assessment. He would receive all updates and they would have conversations. She would work with the parents and give them verbal feedback. She had not completed any direct work with the parents.

She had had A in her sole care and thus was on the list of those who had had opportunity to injure him. Nevertheless, she gave her evidence fairly and professionally. She was obviously an honest witness. She had taken A to a GP's appointment because his parents could not be raised from their sleep. She told me she had handled him appropriately on the journey to the surgery and back and whilst in the surgery. Her logs were accurate and reflected what she had observed. Her view of the mother was that she was extremely slow at tasks and very gentle. In relation to the father, she told me that he was very pleasant and clearly loved A and M. Her concern was he needed to be more gentle with A and that he did not know his own strength. She had never seen him intentionally harm A. No worker ever suggested at the time that either parent would have intentionally harmed A.

iv. Ms S. She was another honest witness. When monitoring the CCTV, she would write her note at that time but if out of the office, she would make it as soon as she could. When she had said at C346 paragraph 10 that the father had been heavy handed and impatient with A, what she had meant was that he was not very gentle and she had had to remind him to be a bit more gentle as A was so small. A would get frustrated and he would cry. She had noticed that A developed a high pitched cry which you would hear if you picked him up too quickly. She noticed it when A was handled and mentioned it to management.

v. Ms E gave evidence before me. She had not worked much with this family. In her statement to this court she described how A's parents would need a lot of prompting and would not always naturally attend to A when he was crying. In evidence her view, which I accept, was that this family needed more prompting than other families that she had worked with. She noted that A cried very loudly and he had a unique cry - very high pitched. She did not know the reason for it. She and other members of staff were concerned about it. She had observed the family more closely after the staff (Ms Z and Ms O) had spoken about it. I found her to be a calm and considered witness who was obviously honest.

vi. Ms Z. In her statement to the court Ms Z described M as being slow when tending to A's needs. In relation to the father she described him as sometimes needing to be prompted to meet the child's needs. In her statement and in her evidence before me she described how every time the father holds the baby he just screams, an unusual scream, and that every time A screamed she or another member of staff would go upstairs immediately to check on him. Ms Z told me that she had seen the father be rough with A on one occasion and a bit impatient with him. He would lose his temper and say to A - why are you crying? She had heard A's unusual scream only 3 or 4 times but on each occasion his father was holding him. The staff had thought at the time that A might be teething. A's parents had made a complaint about her which had been dealt with at the time. The father later apologised to her about it. It was clear from the manner in which she gave her evidence that she bore the parents no ill will. Ms Z was a member of the night staff. The night staff raised concerns with management about A's unique cry. The mother was gentle and slower with A in carrying out tasks. The father was too quick. She could not explain why every time the father held A, he screamed. She told me that she saw nothing to suggest that the father had hurt A. I found Ms Z to be an honest and fair witness.

vii. Ms D. She was an honest and nervous witness. She had had sole care of A but denied harming A. I accept her denial. She told me that overall the mother was very gentle with A but needed prompting to care for him. She had a polite and respectful working relationship with the father. She had observed that A was more upset when held by his father but observed that might be because he held him more. She observed tit-for-tat between A's parents. She observed the father on occasion to be irritated with A.

viii. Ms H denied ever hurting A and when cross-examined on behalf of the mother about a specific incident when she had lost her grip on him momentarily said - absolutely not, not too tight. She had not in panic or to stop him falling gripped him too tight. I found her to be an honest witness and an impressive witness. She was open and reasonable in the answers she gave. I accept her denial. When she was cross-examined on behalf of the father, she had concerns that father had been too heavy handed with A. She could not recall if he cried with others, other than the father. When she spoke about the father, she did so professionally and with care. Despite the fact that the parents had effectively accused her of causing A injury, she did so without any ill-will. Her answers when questioned on behalf of the parents were measured and professional.

ix. Ms J. She told me that she had intervened to tell the father to support A's back on one occasion. She described the father as being a nice person. He was more hands on than the mother. He was attentive but could be heavy handed. He would rush and we would tell him to slow it down.

x. Ms M gave evidence to me by link from Uganda. She confirmed her statement and was an obviously truthful witness. She had had a normal relationship with Father, just as she would with any other client. She had heard A's unusual scream and seen the father comforting him.

xi. Ms A. Ms A confirmed her statement. She had no independent recall in the witness box and her evidence was accordingly brief.

xii. Ms T was a weekend worker who confirmed her statement. She did not know what A's cry signified: babies cry. She regarded the father as lazy as it would be his turn to get up to care for A but he would nudge the mother to do it. From what she saw nothing caused her to consider A was at risk of harm

xiii. Ms C. Ms C confirmed her statements. She too told me that the mother was soft and caring with A. She had had a good relationship with the father. She remembered a little bit of conflict between the parents.

xiv. Ms P. Ms P confirmed her statements. She had no recollection of events beyond that which she had recorded in her notes.

xv. Ms R. It was apparent as she gave her evidence that Ms R had little independent recollection beyond her observations in the logs but she was able to tell me about the events of 25 December 2022. She had heard M say that A was bleeding from his mouth. She was worried by that bleeding and panicked. She could not get through to 999 and so dialled 111. Later that evening she had intervened when Father was playing airplanes with A.

xvi. Ms O set out in her statement her concern that every time F held A he would scream and cry. Other staff members experienced the same thing but we thought F just had a firm grip on him due to his stocky build.

xvii. Ms R . She gave a statement within which she set out the time line for evening of 25 December 2022 as follows:

18:23 - M and F take A upstairs and put him in the cot. M and F are resting on the bed on their phones. 19:30 - M and F are playing charades in the lounge with the other residents. A is upstairs asleep in his cot. 20:18 - A is wriggling around in the cot awake and then falls back to sleep 20:45 - M leaves the lounge area and goes to the room to check on A. 21:10 – F knocks on the door to request the Infacol as A's feed is coming up. He also informs that he will also be changing his nappy 21:15 – F changes A's nappy and does this competently whilst engaging with A throughout. 21:26 – M knocks the door and requests medication Desogestrel 21:45 - M came running downstairs in a panic to inform A was bleeding from the mouth. Staff assisted and called 999 who advised to call 111. Whilst calling Father observed the bleeding was coming from under A's tongue 22:19 - F started to throw A up in the air and was advised by staff not to do that. F's response was he is trained in it. Staff also asked for F & M to take off the disco lights so staff could observe A attentively. Both parents agreed and appeared fine with this. 22:25 - Staff called Duty Manager Ms X (senior) to advise whether to continue feeding A as both M and F cannot get through to 111. Duty Manager advised to keep feeding as normal. 22:35 - Staff inform M and F to continue feeding. F appears frustrated as he does not want to keep calling 111 as he says A is now settled. Staff inform him that even if they go to sleep staff will take over and call as this was protocol 22:38 - M is in the kitchen making A a 6-ounce bottle 22:50 - M is feeding A a 6-ounce bottle in the bedroom 23:12 - A has stopped feeding and fallen asleep. M has put him back in the cot to sleep. 23:30 - F is changing A's nappy whilst he is on a phone call which appears to be a friend.

The challenge to her evidence did not alter the timeline.

The Parents' Evidence

100. The Mother gave evidence with her intermediary sat next to her. She had a timeline to assist her and regular breaks. Her evidence was taken in accordance with the intermediary's report and the ground rules I approved. The ground rules were observed throughout the hearing to facilitate understanding of the process and the evidence given by the other witnesses.
101. In her evidence in chief, M told me that when A had been born, he had been kept in hospital. At that time, she did not know that she could stay overnight. She also told me that she was worried whether he was going to make it, by which she meant survive. She had had a bad experience with hospitals in the past. Towards the end of his first stay, she accepted she did know that she could stay over if there was a room and told me that she did when there was availability. From what she said and how she said it, I gathered that she was telling me she was anxious about going to hospital. In cross-examination she could not recall why she had not stayed between 13 October and 8 November 2022. She thought it was because when she asked to stay, they said they had no space. She denied it was because F could not stay with her.
102. In cross-examination, M accepted that A had been an unplanned baby who had been born very early. She did not know much about how to care for him. She and F accepted that they needed support. She was asked if she had any worries holding A at that point and she answered – yes and no.
103. It was clear to me that both in her words and how she gave her answers that the mother accepted that she needed help and support to care for A. In cross-examination by the local authority, she said she accepted that on 14 December 2022, she had asked who did she need to ask if she wanted to stay longer. She had asked that question in my judgment because she knew that she could not care for A without help and support and she was rightly seeking further help. I didn't feel great – I take tasks slower than everyone else. Later in cross-examination, she told me that by the time A had been placed at the Assessment Centre, she had felt a little more confident handling him. She could wash his front but not his back without help. She told me that she was never rough with A.
104. When cross-examined on behalf of the Assessment Centre, M explained that she was too gentle with A. To me she said I was too gentle, too slow. She had not noticed that A was uncomfortable if she or anyone else put their hands around his rib cage. Instances were put to her of when the father picked up A and he would scream. In relation to 10 January 2023, M accepted that A was inconsolable and thought that was because he didn't like being picked up in that way.
105. She did not like being at the Assessment Centre but I had to do it for A. F did not like it at the Assessment Centre - too much stress to handle- people telling us different things. Mother accepted that sometimes F would have difficulty getting up. He had really bad insomnia. He would get stressed and have to step out of the room to have a vape. According to M, F's family would stress him. They thought her too quiet and too shy. They preferred his ex-girlfriend. They preferred their first child to F. M felt his parents manipulated him. M told me that when they were at the Assessment Centre, she received a message from another woman that suggested that F was in contact with other women. She did not accept the contemporaneous note made by the Assessment Centre that she appeared very upset by this. Having listened to her give evidence, I formed the view that the note was indeed correct and that she had been very upset at the time. As M gave her evidence, it became clear that she was protective of F and prepared to explain his actions away and minimise them. For example, when asked why F had not taken up many contacts with A since they left the Assessment Centre, she told me that he had been at the Job Centre and unwell. Objectively, I find that those reasons alone would not account for the extent of his poor attendance record.
106. In relation to the father's handling of A, the mother's evidence was that he was gentle with him. Instances were put to her such as one where he did not support A's head; another where he held A above his head and momentarily let him go before catching him and another where he played airplanes with him. In relation to each, it was clear that the mother had witnessed it and not perceived any risk to A. She told me that she thought it was normal. In relation to holding A above his head and momentarily letting go, she acknowledged that the staff had said not to do it. However, M told me she felt comfortable because A was doing ok. If I had felt uncomfortable I would have said. Other examples of the father taking unnecessary risks or being, as the local authority see it, rough-handed, were put to the mother. In response, M said – it didn't seem rough to me.
107. In cross-examination, M told me that the father found it difficult to feed A – I did too sometimes. In relation to the events of 25 December 2022, she told me she felt panicked because she saw blood coming out of his mouth. She was frightened. It was the most stressful thing. She had looked in A's mouth and he had a little cut underneath his tongue. She was worried and shocked by it. Every time he fed, A would put his tongue over the teat. When it happened when she was feeding A, she would take the teat out and place it gently over his tongue. When M was asked if she thought the bottle had caused the cut under A's tongue, there was a long pause and then no answer. There was another long, unbearable pause with no answer at the end when she was asked if she thought the father had done something wrong when feeding A on 25 December 2022. On behalf of the local authority, M was then asked if at the time she had thought that the father had caused the cut and she said she thought he might have caused it. It appeared to me that she knew he had caused it but just could not bring herself to say it. As the cross-examination progressed, the mother was asked why she had not raised in her first statement to the court, the cut A sustained on 25 December 2022. There was another long pause and no answer. The question was repeated very carefully and sympathetically but again there was a long pause before the mother said I don't know why not. In relation to her second statement when she said I don't know what caused A's mouth to bleed, she was asked why she had not said the father had done it. She said eventually she had not said that because she wasn't sure, she wasn't there.
108. In chief in relation to supervision in the Assessment Centre, she told me that her first statement to this court was wrong when it said there had been staff supervision at all times. When asked what the supervision actually was, her evidence was that I want to say it was true at the beginning.. at the end there was less supervision. In cross-examination she accepted that when she had said in her statement to this court that they had been supervised morning, noon and night that was not true. M also accepted she had told the police in her interview by them that I was being watched all the time. She said the shock of what had happened had messed with her mind. She had been monitored the whole time but the father had not been towards the end of the placement at the Assessment Centre. When asked some further questions in cross-examination it became clear to me that she had known that the father had spent time with A in the bathroom alone towards the end of the stay. She could not explain why she had not said that before this hearing and told me that before viewing the video footage during the trial, she had not thought about the bathroom being a place where there was no supervision.
109. M denied ever harming A. When cross-examined on behalf of the local authority, she told me that she did not believe that F would harm A. She had been shocked and distraught when she found out A had been injured. She had asked F if he had caused the injuries and he had said no and she believed him. When at the end of the cross-examination, the case was put to her, M said that the father couldn't do that to his own son. In cross-examination on behalf of the father, M told me that she loves everything about the father. He is very nice. He is caring. He has a heart of gold. He is quite smart – he's smarter than me. He loves A.
110. The father was the last witness to give evidence. In chief he told of his love for his son which was evident from the words he used and how he said them. He described M as loving, kind, caring and loveable.
111. In his statements to this court he failed to mention that there had been two occasions when he had not been supervised with A. However, during the trial he recollected they had occurred and in chief he told me about the two occasions when he had been left unsupervised in the bathroom with A. In answer to a question from me, he said - few times already in the bath before they [the staff] came in – no more than seconds. F told me he had been shocked to find out his son had rib fractures and a fractured wrist. In chief he told me he had no idea who had caused them - not me.
112. On behalf of the local authority, F was questioned about his time at the Assessment Centre. He stated he hated his time at The Assessment Centre. He accepted he had not liked the routine. He suffers from insomnia and had found it hard. Lack of sleep would impact on his mood. He had wanted to do day feeds because that would help with his sleep pattern. Lack of sleep was a stressor for him. He also accepted that whilst at the Assessment Centre, the mother thought he was flirting with other women through social media. In relation to a message sent on 24 November 2022 referring to him feeling stressed, he told me that he was referring to being a new father; there had been lots of change and his relationship with his parents - they did not get on.
113. In his first statement to this court F described an occasion when I was lifting him up, holding him and then throwing him upwards a little bit, momentarily letting go and catching him again under his armpits.
114. He accepted that whilst he had been at the Assessment Centre, he had been told several times that he was too rough handed. He had been told to be more gentle and slower when changing A's nappy. He had been told that not every day - a few days apart. On another occasion he had been told he was too rough when winding him. By 26 November 2022, he told me he was doubting his own ability to parent. I knew I was rough handed. Later, but still in cross-examination on behalf of the local authority, he accepted that sometimes he got overconfident and he did not realise what he was doing. He would do his best to follow the advice given. He did not accept that he thought he knew best when caring for A. He told me about an occasion when A cried so much, M asked for staff to come up. A was catching his breath. After 14 December 2022 he, A, would cry like that.
115. In relation to 25 December 2022, he accepted he could be heard saying it's not bleeding anymore. He had seen A's tongue would go up and around the teat before. He denied he had got frustrated when feeding A and had forced the bottle into A's mouth causing injury. He had not mentioned this incident in his second statement because it didn't come to mind.
116. F denied causing any of the fractures to A.
117. In cross-examination, F did not suggest that the mother may have caused the injuries. In relation to Ms H, in evidence he accepted Professor Fleming's evidence and did not now consider it a possibility that she had caused A's injuries. When asked if he had done it he said he did not believe either he or M had caused the injuries. He said if he had done it, he would have known about it at the time.
118. When cross-examined on behalf of the Assessment Centre, F stated that he had never been intentionally rough with A but he stated more than once that he may have inadvertently. When cross-examined on behalf of the mother, F was asked if he might have used more force than was appropriate without meaning to do it, to which he replied - Based off memory, I don't think so. ... usually, I have a vague memory. In relation to the cut under A's tongue when asked about that he said - I have no memory of it [causing it]. He was asked about holding A in the air and letting him go momentarily before gently holding him and drawing him into his chest. He accepted he had been told to stop it several times, but I would forget about it. He told Ms Warner on behalf of the Guardian that this was a soft movement.
119. Listening to F's evidence, I noted that he said more than once he had not intentionally harmed A; i.e., he had not deliberately inflicted injury upon him. I thus asked him questions to explore whether he had caused the injuries but was reluctant to admit doing so because he would be thought to have deliberately inflicted that harm when he may have done so unintentionally, not knowing his own strength. F told me that he could not remember doing that - Can't remember. Not to my knowledge. It could have happened.
120. At no point during his evidence did F accept that he had caused A injuries but there were pauses before he answered a number of questions about whether he had caused the injuries and the overall impression I gained was that on occasion he was on the cusp of admitting something.
121. In cross-examination, F accepted that since they had left the Assessment Centre, he had not attended as many contacts with A as he should have done.

My Findings with My Reasons

122. A was born prematurely at 24 weeks. He was tiny and vulnerable. He needed gentle handling proportionate to his size and prematurity. He needed special care and, as his father put it in his first statement to this court, he and M knew he would need special care from us.
123. M is a vulnerable woman. She experienced significant neglect as a child and was removed from her own parents' care when she was 14 years old. She gave birth to A when she was 21 years old.
124. I have before me a report obtained within these proceedings and dated 9 January 2023 from Dr Emma Hines, a registered Chartered Clinical Psychologist. She assessed Mother and found that her cognitive functioning falls within the borderline range; namely within the 4% range. She has previously received a diagnosis of Dyslexia. Mother has a recorded diagnosis of ADHD but has not received treatment for this. ADHD can impact performance and there is a possibility that Dr Hines' assessment of M is a slight under-estimate.
125. F was 19 years old when A was born. He was placed in foster care as a baby before he was adopted by his second cousins. His parents report that as a child he was diagnosed with dyslexia and autism and was suspected to have ADHD. F disputes their account although he did accept when speaking to Dr Hines that he had been diagnosed with Dyslexia and Dyscalculia. Dr Emma Hines assessed him within the proceedings as functioning cognitively within the average range with some normative weaknesses within the working memory and proceeding speed domains. I accept her evidence.
126. A's parents met on social media. They are first-time parents. They love A very much. I find that, whilst their relationship had problems when they were in the Assessment Centre, it has endured and as at the time of the hearing before me was likely to continue. F has been described in the evidence before me as controlling of M on occasions whilst at the Assessment Centre. Having heard both parents give evidence, I find that the dynamic between them is more nuanced. F is the brighter of the two. That is a matter of which M is aware. She looks up to him and follows his lead. I find that she is acutely aware that F's family do not like her and consider, to use a colloquialism, that he could have done better. I find that on occasions in real life, just as he did in the witness box, F is likely to act with an air of superiority. He considers he knows better, and M accepts that he does.
127. A and his parents were placed at the Assessment Centre which was registered with Ofsted for a residential assessment. That assessment was necessary because there were concerns about both parents' ability to care for A. Both parents accept and admit before me that at the relevant time, namely when they entered the Assessment Centre, they were unable to provide him with the care a reasonable carer should give to him and that he was at risk of physical and emotional harm in their care. The harm he was at risk of suffering is by implication significant; otherwise, it would not have met the conceded threshold criteria.
128. I find that there was an agreement between the local authority (who were paying for and who required the assessment) that the Assessment Centre would monitor A 24/7 within the placement. However, in February 2023 Ofsted issued a compliance notice because serious shortfalls were found in the monitoring of two families at the centre that undermined safeguarding practice. Since those incidents a revised CCTV policy has been introduced at the centre and arrangements for monitoring the parents at the centre were strengthened.
129. At the time A and his parents were at the Assessment Centre, there was no CCTV rota in place. The staff were responsible for monitoring the CCTV at all times, but I find, as Ms X (senior) set out in her written evidence, there may have been times when the office was left empty briefly. In the bedroom A shared with his parents there was a blind spot behind the bedroom door when it was opened and another in the right-hand corner of the window in the bedroom. There is no CCTV in the bathroom. It is accepted on behalf of the mother and the father that in early January 2023 two bath times were wholly unsupervised. The father having heard Mr X (junior) give evidence on the first occasion brought them to the attention of the court. That is to F's credit. Mr X (junior) had to be recalled to give evidence to explain why the logs did not accurately record what had or had not taken place. In particular, the log of 4 January 2023 gave a misleading picture. It is written as if Mr X (junior) had directly observed the bath time when it is now known he did not. On the CCTV the father can be heard clearly calling that he is about to bath A and no one comes to supervise. On 7 January 2023 the father alerted the staff that he has just bathed A who he then took to the office. These are two clear breaches of the Assessment Centre's agreement with the local authority. I find that the Assessment Centre did fail to monitor A at all times. I find that towards the end of the family's placement at the Assessment Centre, it is likely that, as M told me in evidence, towards the end there was less supervision. I find that Mr X (junior) was aware of this. I find that his logs for the two known occasions do not reflect what actually happened because he knew that A was meant to be supervised constantly and he knew that he was not.
130. I find on the basis of all the evidence before me that whilst at the Assessment Centre, A suffered multiple fractures. He sustained 23 fractures to his ribs which fall into four groups:

i) 6 fractures to the posterior right side

ii) 5 rib fractures to the anterior right side

iii) 8 rib fractures to the anterior left side

iv) 4 rib fractures post laterally on the left side.

In addition, I find that whilst at the Assessment Centre, A sustained a fracture to his left wrist. He also suffered a tear to his lingual frenulum.

131. I find that the tear to A's lingual frenulum is likely to have occurred close to the moment when blood was noticed coming from his mouth on 25 December 2022. I accept the radiological evidence which provides a broad timeframe in which the factures are likely to have occurred. The rib fractures are likely to have occurred between 3-8 weeks prior to the skeletal survey on 19 January 2023. The wrist fracture is likely to have occurred 2-5 weeks before the skeletal survey.
132. I accept Dr Johnson's evidence that the four groups of rib fractures could have occurred from a single event or on four separate occasions. Each of the fractured ribs was likely to have been caused by a degree of force greater than that exerted when handling a baby normally. The mechanism is likely to have been severe excessive squeezing compression force applied to A's chest. The fracture to A's left wrist could have been caused at the same time or within the same time frame as the rib fractures but it was caused by a separate application of force and a different mechanism. It could have been caused by pulling his hand with a degree of force beyond what is appropriate when caring for a baby or by a direct blow or by bending it with inappropriate force.
133. According to Professor Fleming, the tear to A's lingual frenulum was likely to have been caused by forceful or over vigorous feeding. Again the degree of force would be beyond that which is appropriate when feeding a baby. When defining what he meant by the term inappropriate, Professor Fleming stated he was talking about a degree of force beyond that which was normally appropriate when handling a child. The term does not denote the motivation or intent of the person doing the handling. I accept his definition.
134. I find based on the medical opinion evidence which I view in the context of the evidential landscape as a whole that:-

i) A's blood clotted normally and that he was therefore at no greater risk of bleeding than any other child of his age and development; and

ii) there is no radiological, metabolic, genetic or other evidence that A suffered from or suffers from any bone disease or fragility, including osteogenesis imperfecta or osteopenia of prematurity. Accordingly, I find that A was no more susceptible to fractures than another child of similar age and development.

135. Of course, I factor into my consideration the possibility that A may have suffered at the relevant time or may still be suffering from some unknown medical, genetic or metabolic condition which has yet to be discovered. However, based on all the evidence I have heard and read, I consider that in this case that is unlikely. However, it remains a residual possibility which I factor in when considering what has caused A's injuries.
136. I find that whilst at the Assessment Centre, A spent most of his time in the care of one or other of his parents or both. Between them, they carried out most of his caring tasks. There were, however, times when A was cared for by staff in the absence of his parents. Having heard the evidence, there were only really two such occasions, namely when Ms N took A to the GP for his immunisations. I have heard evidence from her. She denies causing him harm in any way when A was in her care. On 14 December 2022 A was again cared for in the absence of his parents briefly for about 30 minutes, most of which was spent in the staff room. I find on the evidence I have read and heard that when in the staff room at least one other member of staff would have been present. Thus there was really no opportunity to cause him harm unwitnessed by anyone else on that occasion. I, however, also take into consideration Professor Fleming's evidence, which I accept, that having viewed a selection of CCTV clips he could not say whether or not the video demonstrated an event which had caused a fracture. The video records motion and action, it may not capture force or strength used. I accept that there would also have been audio at the time and at the time the baby monitor would have provided the video with a sound track which may have assisted the viewer at the time to discern whether or not an injurious event occurred. What we know from the logs and I now find as a fact, is there were events when the staff at the Assessment Centre intervened because they were concerned for A and I have set those out in the background above. However, there is no event recorded when the staff intervened and suspected that A might have been injured. I accept the submission of the local authority that the fractures A sustained may have been caused in plain sight. They may not have been detected at the time because the video does not capture force. I further accept Professor Fleming's evidence that those who are not present when fractures actually occur commonly fail to recognise that the child is injured. The discomfort and immediate pain can be short lived and non-perpetrating, non-witnessing carers may simply consider that the baby is crying which is a non-specific sign. However, I also accept his evidence and find that the person who caused the fractures may not have known the bone was broken but would have known that something inappropriate had happened.
137. I have read and heard the evidence of many of the staff who worked at the Assessment Centre. They were day and night time family support workers. Whilst the parents did not directly accuse any one of them in the hearing before me of harming A, some were on the list of people who had the opportunity to cause harm. They were understandably anxious when giving evidence and sometimes fearful. However they each gave their evidence calmly and with compassion. I have already made my assessment of the relevant independent witnesses. I find that they did not cause A's injuries. Specifically I find that Ms H did not cause any injury. She was an impressive witness. She was clearly truthful. The occasion when she nearly dropped A was caught on CCTV and viewed by Professor Fleming. I accept his evidence that nothing he witnessed on the relevant clip is evidence of Ms H causing A to sustain fractures.
138. I find on the basis of the evidence I have before me and in particular on that seen in the logs, in the mobile phone extracts and the parents' answers in cross-examination that whilst M and F were at the Assessment Centre they experienced a number of stressors which were in play. It is clear from the parents' evidence that neither parent liked being at the Assessment Centre and F hated it. He did not like the routine. F complained that his sleep pattern was disturbed and accepted that lack of sleep was a stressor for him. By 24 November 2022 M was, I find, confiding in staff that she was worried F was cheating on her. There was stress from F's family which impacted on him directly when he saw his sister on 10 December 2022, and indirectly on M when he recounted to her his family's negative view of her. I further find that as from about 13 December 2022 A was increasingly difficult to settle. There are logs requesting Calpol and teething gel dated 13^th and 17 December capturing the parents' requesting Calpol for him and teething gel on 14 December 2022 and everyday thereafter until 29 December 2022. In addition, Infacol was administered on 22, 23, 25 and 29 December 2022. I do not consider that this period is indicative of A having suffered injury but I find it is likely that as from 14 December 2022, A was harder to settle and thus caring for him became more difficult for his parents, who already needed help with their parenting skills.
139. In relation to M I find that there is evidence from a number of staff members that she was calm, gentle and caring towards A throughout. I accept their evidence. Whilst there is evidence that M may have had opportunity to cause A's fractures, I must look at the evidential canvas as a whole and the theme that runs through all the sources of evidence is that she was calm, gentle and too slow when caring for him. I do not consider that she caused A any injury.
140. There is also evidence that F could be gentle and caring with A. However he was not always so. F accepted that on a number of occasions he had been told by the Assessment Centre staff that he handled A too roughly (see paragraph s 54 and 114 above). Having been told, I find he nevertheless proceeded as he considered best. I find that he would take risks with A. His description of holding A as set out in paragraph 113 of this judgment comes from his own statement. A was a tiny, pre-term baby and this in my judgment was risk taking behaviour. He took further and other risks, including playing airplanes with his son as recorded on the video of the evening on 25 December 2022. These are but two examples. I find also that F could be too rough with A when caring for him. He had a tendency to rush tasks and thus proceeded too quickly and abruptly. He had been told that he tapped A's back too roughly when winding him but he proceeded to continue do so. He could become frustrated with A and could become stressed out when feeding A. He did things too quickly and sometimes, as he admitted, he got over confident when caring for A.
141. In relation to the events of the evening of 25 December 2022, I accept the timeline given by Ms R. I find that by 21.10 hrs on that evening A was bringing his feed back up. F requested Infacol for him. F changes his son's nappy at 21.15hrs. At 21.26 M requests Desogestrel for him. At 21.45 hrs M comes running downstairs to inform staff that A is bleeding from his mouth. It is accepted that the bleeding was coming from under A's tongue. The only explanation is the cut seen beneath his tongue. It is accepted that in the moments prior to blood being seen coming from A's mouth, F was feeding A a bottle. I accept M's evidence that A had a habit of putting the teat under his tongue and that you had to proceed carefully and put the teat on top of his tongue. Whilst I do not know exactly what F did that evening because he has not told me, I find on the evidence that it is likely that:-

a) F, like M, knew of A's habit of putting the teat under his tongue and that as a consequence, he knew, as she did, he needed to proceed gently when feeding A.

b) That evening, A had been difficult to settle. He had needed Infacol and Desogestrel.

c) On his own admission F found feeding A hard. It, in any event, made him stressed and frustrated.

I find that it is likely that F was stressed when feeding A on 25 December 2022. I find that it is likely that he became frustrated when feeding him as he had previously on 3 December 2022. I find that on 25 December 2022 and shortly before 21.45hrs, F had given A his bottle without taking the care that a reasonable parent should have given to him. He did not ensure that the teat was not under A's tongue, and he placed the bottle in A's mouth with inappropriate force, sufficient to cause the lingual frenulum to tear. I find that M's reaction was almost immediate at the sight of the blood. She might not have seen F cause the injury but she saw the aftermath. M did not tell the court the truth when she said she didn't know what caused A's mouth to bleed. I find that she knew that A had been fed by his father shortly before blood came from A's mouth and that she knows in her heart of hearts that F caused that injury. However, I find that she simply could not bring herself in evidence to say he did it.

142. I find that F's behaviour after the blood was sighted is consistent with him knowing that he had caused the injury. I accept that by 22.35 hrs he was frustrated with the inability to get through to 111 and wanted to stop trying. I considered that M went along with F. She looks up to him and follows him. They are A's parents and whilst they point to the staff who did not seek further medical attention, that does not relieve them from their responsibility to care for A as a reasonable parent should have. I find that they should have at least taken him to the GP or a call-in centre to have him checked out the next morning.
143. On behalf of M, it is submitted in closing that as F caused the lingual frenulum injury, it is inherently improbable that there are two perpetrators and that I should factor that in when considering the fractures and who caused them. However, I balance against that that the mechanism to cause the fractures would have been different.
144. However, standing back and considering all the evidence as a whole, I find that it is likely that F caused the rib fractures and the wrist fracture. He did so within the radiological time frame which I have already accepted above. I cannot on the evidence pinpoint an event or events and say that is exactly when the fractures occurred. However, F has accepted that on occasion he was too rough when handling A, he was too rushed when carrying out care tasks for his son and he took risks with A. F would not take advice about how to handle his son and thought he knew better. Given the number of fractures and their sites, I find that there is likely to have been more than one occasion when F used more force than a reasonable care giver would give to A and caused his rib fractures and his wrist fractures. I have already accepted Professor Fleming's evidence that the person causing the injury will have known that they have done something inappropriate even if they do not know that they have caused fractures. I find that F does know that he has harmed A by being too rough with him and using too much force when playing with him and carrying out care tasks. I find that he has chosen not to tell the court what has happened for fear of being thought to have deliberately harmed his son. I find that F did not set out to harm his son but he was over confident in his own ability; too rough when handling A and took risks. He used inappropriate force when handling his son and caused the fractures.
145. In relation to M's alleged failure to protect, I take into account that the Assessment Centre themselves did not consider that F would have caused A injury. Thus, whilst they recorded risk taking behaviours and rough handling, they did not intervene to remove A or to stop F carrying out caring tasks. Indeed they bought into his self-confidence and, as I have already found, towards the end of the placement did not supervise him as thoroughly when caring for A as they ought. Having heard the evidence I find that M bought into that confidence, just as the Assessment Centre did. I find that, as she told me in evidence, she did not perceive his handling to be too rough and, although he did things she would not have contemplated doing, she did not perceive him to be a risk (see paragraph 106 above).
146. This judgment is intended to be read as a whole. It establishes the factual matrix in relation to the issues before me which I have delineated above. Given the findings I have made and the admissions of the parents, I do not consider it necessary nor proportionate to make any further findings. This judgment will be handed down on 20 November 2024. I will give the parties time to consider it before deciding what further steps are needed to determine A's future welfare and whether or not an anonymised version of this judgment should be published.