R BL (Supervision Order), Re [2015] EWFC B36 (13 February 2015)

Ms Celeste Irvine was instructed by the LB of Newham

Mr Matthew Hellens was instructed by Blavo & Co on behalf of the Father Mr BL

Ms Siobhan Kelly was instructed by Miles & Partners LLP on behalf of the Children’s Guardian

MS. RECORDER LAZARUS:

1 I am now going to give judgment in the case relating to R BL. This judgment is given on the last afternoon of a five day hearing. It is therefore by its very nature an extempore judgment, albeit that I am attempting to make it as full as possible in order to assist the parties and Mr. BL and the Local Authority in particular. I anticipate that I will be correcting and adding to any transcript in order to produce a perfected final judgment.

The positions of the Parties

2 This is an application by the London Borough of Newham. They originally applied under s.31 for a care order in relation to R. Their plan now is to support the making of Special Guardianship orders to Mr. and Mrs. SQ. They have to that end produced an amended final care plan setting out the support package for such a placement, a Special Guardianship report approving of the SQs as Special Guardians. Although there was a hiccup last week just before this hearing when the Local Authority chose to inform the court that because of financial difficulties the SQs were in, the local authority were withdrawing support for the Special Guardianship and would be seeking to adjourn this hearing and apply for placement orders and issue a placement application, fortunately that altered on the first morning of this hearing when full details were available. So I am pleased to be able to say that the Local Authority’s position is that it does not seek to remove R from those who know her or indeed from an ongoing relationship with her father. The Local Authority supports findings being made, the threshold being met and a supervision order being made in conjunction with the Special Guardianship order that I have mentioned.

3 The child, R BL, was born on 17^th November 2013, so she is fourteen months old. She has a Guardian, Fran Bulsara, who is represented by counsel. Miss Bulsara has not expressed an opinion in relation to the findings that are sought by the Local Authority, save for appropriate observations by her counsel during the course of evidence and submissions. She too supports the making of a Special Guardianship order and supervision order and perhaps implicitly suggests that findings are appropriate in this case. But she also supports the making of a child arrangements order in order to regulate the contact that the father should have if she is placed with the SQs.

4 R is currently living with foster carers under a s.20 agreement that was signed by her father in March of last year. R’s mother, SG, born on 8^th September 1994 is of an Indian family and she, unusually, has played absolutely no part in these proceedings and effectively abandoned R and Mr. BL on 28^th January last year when she returned to India. She has not returned to this country nor has she been in touch with any of the professionals or with Mr. BL since that date save for a single conversation with the Guardian last September. I will come onto her involvement when I look into the history of the case. I am satisfied that she has been aware of these proceedings and has chosen not to be involved and that is fair and in the interests of justice to proceed in her absence.

5 The father of R is Mohammed BL who was born on 4^th May 1989. He is of a Pakistani family. The parents were not married. Mr. BL is an asylum seeker in this country in a somewhat uncertain situation as a result. He speaks Urdu as his native tongue. He has an interpreter at court, Mrs. Khan, who, other than one morning when she was replaced by another interpreter, has provided an excellent service to this court and to Mr. BL. The father is in the situation of no longer being supported by his own family who, because of the circumstances of R’s birth, have disowned him. Due to Miss G being Indian and Hindu and Mr. BL being Pakistani and Muslim, their respective parents thoroughly disapproved of their relationship and of R’s birth. It resulted in significant difficulties soon after R was born and, as I say, Mr. BL’s parents disowned him. Mr. BL resists the findings that are sought by the Local Authority and would like R returned to his care. I will come on to the points made on his behalf by his counsel later in my judgment.

6 Mr. and Mrs. SQ are not parties to these proceedings, but Mr. SQ has from time to time attended court. They are an older couple with three older children and they are close friends with Mr. BL, having befriended him in this country and being of a similar origin to Mr. BL. They are content to become R’s Special Guardians and have expressed agreement with the revised support plan put forward by the Local Authority and are in support of maintaining the relationship between R and Mr. BL if she is in their care. As I say, they are not parties, they are not represented. However, I have seen Mr. SQ at court.

7 I have read all the documents filed and additional documents that have been handed to me during the course of the proceedings. I have heard evidence from the social worker, Miss Hlengwa; Miss Van Rooyen and Mr. Campbell from the Amber Project; Dr. Rylance, Paediatric Consultant; from the father and from the Guardian. I have also seen position statements from each of the parties and heard submissions.

The Law

8 This case is governed by the Children Act 1989. The welfare of any child is paramount and no order should be made unless it is in the interests of the child. In coming to my decisions in this case I have borne in mind the paramountcy principle, the no order principle and the need to avoid delay. I have applied the welfare checklist and considered those matters that the court must have particular regard to as set out in s.1 of the Children Act 1989, in particular:

· The ascertainable wishes and feelings of R considered in the light of her age and understanding;

· Her physical, emotional, educational needs;

· The likely effect on her of any change in circumstances;

· Her age, sex, background and any relevant characteristics;

· Any harm she has suffered or is at risk of suffering;

· The capability of her father and of the SQs in meeting her needs; and

· The range of powers available to the court.

9 I am aware that Mr. BL’s and R’s Art.8 rights under the European Convention of Human Rights to family life are engaged. Any intervention of this court must be to promote those rights, balance competing rights and in doing so to give appropriate precedence to the welfare of R and ensure any intervention is necessary and proportionate. I have borne in mind the principle that it is preferable, bearing in mind her needs, for her to be brought up, if possible, within her family. A further stipulation prior to granting any s.31 order, here being the supervision order sought by the London Borough of Newham, is that I may not make such an order unless the threshold criteria are satisfied and I will come on to that element in a moment.

10 The standard of proof is the civil standard, i.e. the simple balance of probabilities, and where I describe events or make findings I have applied the balance of probabilities, the burden of proof being on the party seeking the finding. In making any findings, I have considered all the evidence and submissions, both oral and written, even if every potentially relevant factor may not be specifically cited. I will come on later in my discussion of some of the issues to consider the law in relation to fact finding in more detail. I give myself what is called the Lucas direction, namely that just because a witness lies about one thing it does not mean that they are dishonest in all things. Additionally, I bear in mind the recent guidance in Re S [2014] which makes the further point that non-disclosure or lying does not necessarily mean parenting or ability to co-operate is impaired.

11 In the light of recent case law issuing from the Supreme Court and the Court of Appeal, I remind myself of the guidance provided in the leading cases of Re B, Re B-S and Re G [2013] and most recently the helpful analysis of the President of the Family Division in Re R [2014] and in particular paras.44 and 50-55 and para.69 which reiterates the principles that can be drawn from those cases. I am reminded in particular of the global and holistic approach referred to in Re G and Re B-S requiring me to look at realistic options and consider their pros and cons in terms of R’s welfare interests. Bearing in mind that those cases I have referred to are concerned with the permanent removal of a child from a family by adoption whereas here it is a plan for the child to be cared for under a Special Guardianship order and that that order should be made to good friends of Mr. BL, nonetheless it is a marked intervention in terms of removing a child from the care of her father and limiting their relationship to some extent. So the same principles will therefore apply while taking into account the less drastic features of this type of intervention by comparison with adoption. I derive from those authorities that I must look at all the options at how R’s needs will be met with an holistic rather than a linear approach, bearing in mind that it is one of her welfare interests to be brought up within her family and not simply a question of ignoring that in favour of some better placement which would be a disproportionate intervention if in fact her father would be able to look after her safely enough and well enough.

The Background

12 The parents met in September 2012 in a nightclub. In about February/March 2013 they had entered a full relationship and underwent a Muslim marriage, a nika, and began living together. The mother in fact fell pregnant shortly around that time resulting in R being born on 17^th November 2013. On 22^nd November 2013 the mother self-referred to Newham Social Care requesting that her four day old baby, R, be fostered and providing the information that her parents were unhappy with her having had the baby and were ordering her to have the baby fostered. At that time her parents were staying with the family in England and were leaving for India the following day, but on the understanding that the child would be fostered. The mother stated that her father was unhappy with her marriage and that this child would ruin his reputation. She was tearful and emotionally torn stating that Mr. BL wanted the baby to remain with the family.

13 An initial assessment was carried out on 29^th November when both parents confirmed that they did not want R fostered. At an office appointment with the Social Services department on 13^th December, the mother informed them that she would be travelling to India on 16^th December and would return to the United Kingdom on 22^nd December and that R would remain in the father’s care. So the mother then left on 16^th December, having expressed the intention to also complete a modelling portfolio.

14 The next significant entry in the chronology is that on 20^th December when the father, having sole care of R, had a visit from the health visitor at about 1pm when all was found to be well. Later on 20^th December a call was received by the emergency duty team from Dr. Rothenberg, Paediatric Consultant, on the children’s ward at Homerton Hospital informing that R had been brought into hospital shortly after 9pm. He gave an account describing that the father had said that he had stood up while holding R, felt dizzy and fell on the floor landing on top of her. The police had been alerted and had been to the hospital taking photographs. On examination R was observed to have black marks on the back of her head and the sides of her jaw on both sides. A subsequent investigation was done and a CT scan showed an undisplaced right parietal bone fracture of her skull with mild swelling of the scalp overlying and no evidence of internal haemorrhage. The doctor’s opinion expressed to the Social Services at that time was that the parietal fracture was consistent with the fall as described by the father, but the bruising around the face did not match the mechanism in an obvious way. On 22^nd December the father had been interviewed by the police and the mother had returned to the United Kingdom. I note at this point that we have the notes of that interview in the police records disclosed for these proceedings, but, unfortunately, the police have informed the parties that they no longer have the tape of the interview or a transcript of it. So we simply have the noted version from their records. There was then a strategy discussion on 23rd December and the parents signed a written agreement indicating that Mr. BL will always be supervised while caring for R.

15 On 16^th January 2014 the mother informed the social worker that she would be travelling to India at the end of that month. On 27^th January another written agreement was signed agreeing that Mr. BL would be supervised at all times. The chronology filed here suggests that the agreement stated that the family would be residing with Mr. SQ while the mother was away. In fact that is not what the agreement said, but the agreement said that there should be full time oversight of Mr. BL’s care at all times to include supervision by Mrs SQ. So there was some confusion about which adults Mr. BL was to ask to oversee his care of R by virtue of that agreement. On 28^th January 2014 the mother did indeed travel to India and R was left in the care of her father. As I understand it, they did go for some time to stay with the SQs.

16 At some point in early February the father went to Scotland. He says travelling with a family friend and staying with friends in Scotland. However it was not until 7^th February that Mr. BL informed the social worker by text that he was there with R. He refused to give the address, but said that he was returning to London.

17 On 10^th February R was seen at home. Mr. BL appeared to be alone caring for her, albeit he said that a friend, a Mr. Farouq, had moved in four days previously who had been giving him support, although he did not appear to be present at the time of the visit. Also on 10^th February the social worker telephoned the father’s GP. It was noted that there were no previous notes regarding blackouts and that Mr. BL was not scheduled to have any tests taken that day. That call resulted in the father actually visiting the GP that day and having a consultation with him of which I have seen the notes. I will come to that later in my judgment. As a result also of that visit, increased support was put in place, a plan was implemented with the social worker to visit weekly and family support workers four times a week. It is also the same date, 10^th February, of what is called the “single assessment” by the social worker of the family situation, which has been filed in these proceedings.

18 On 7^th March 2014 the father attended his new GP practice on which occasion no blackout symptoms were reported. A new patient review was undertaken by the Practise Nurse and a dipstick test showed positive for some sugars, although subsequent blood tests revealed no abnormalities. On 14^th March 2014 there was a family group conference. Mr. SQ attended that conference with the father and indicated that it would not be possible for him and his family to continue to support Mr. BL and R as previously due to the SQ’s personal circumstances, but he would provide support when he could and when requested. An initial child protection conference was held on 18^th March and R was made subject to a child protection plan under the category of physical abuse. On 19^th March a parenting assessment referral form was completed and sent to the Amber Project Team. We have now seen that referral form also filed in these proceedings. On that same date R was accommodated under s.20 and she was placed in foster care. She has remained in that placement to date. On 28^th March a medical report was received from the new GP practise at Carpenter Road stating that R was registered with them and had been brought in on 17^th March 2014 for her first immunisations when she had appeared normal.

19 The Local Authority issued its application under s.31 on 2^nd May 2014 supported by the social worker’s, Miss Marquis’, statement of 2^nd April. Since then the Local Authority have filed the Amber Project Team assessment of the father, dated 1^st August 2014, which covered an assessment period over June and July 2014 and a further and final statement on 23^rd October 2014. In relation to Mr. and Mrs. SQ the Local Authority filed the viability assessment, dated 13^th June 2014, and a full and positive Special Guardianship assessment report, dated 14^th August 2014.

20 The father filed an initial statement on 19^th May 2014 and a second statement, dated 23^rd January 2015. Prior to the father’s second statement being filed, reports were received from Dr. Rylance, the medical expert instructed in these proceedings, dated 30^th December 2014, and an addendum, dated 20^th January 2015, which had followed a telephone conference with Dr. Rothenberg in order to clarify some of the terms that she had used in her report and in which telephone conference she confirmed her agreement with Dr. Rylance’s opinions. Finally, an important document is of course the children’s Guardian’s report of 23^rd January 2015.

21 I turn next to the composite response document showing the Local Authority’s findings sought and the father’s responses to that document. It is fair to say that the principal issue is the question of the injuries sustained by R on 20^th December 2013. The Local Authority there sets out that they consider that those injuries (which I will come onto in a moment) were likely to be due to an inflicted injury by R’s father. That is denied by Mr. BL and it forms the core of this case. The other matters sought and referred to in the threshold document, either flowing from that or being issues of a more minor nature which either by themselves or even perhaps taken together, would not necessarily meet the threshold criteria of establishing significant harm or the risk of it in order to permit this court to go on to consider any further orders. However, I will deal with the remaining matters in the threshold criteria at this point.

· As I say, the first two paragraphs deal with risk of physical harm based upon the injuries.

· The third paragraph states that the parents did not take R to follow up medical appointments after the injuries were sustained. This is not accepted by the father and I deal with it a little later in my judgment. I do not consider that that is a principal issue on which a great deal turns in this case.

· The fourth paragraph is that neither parent had registered the child with a GP until 17^th February when essential vaccinations were already overdue. That is accepted by the father, although he points out the significant difficulty in attempting to register R because the mother had gone abroad and it was the mother who would trigger the registration of R at a GP practice. The social worker in her evidence conceded that a letter had to be written by the previous social worker to assist with this process. I do not consider that this is a major point to be taken against the parents.

· Paragraph 5 suggests that the father wrongly reported to his GP on 10^th February that R had suffered bruising only and no fracture. He accepts that, but states that he believed that the GP would have had access to all the details in any event. Again, I consider this is probably a reasonable explanation and that not a great deal can be said to turn on it.

· Paragraph 6 relates to marks said to have been seen in early March on R’s cheeks, which the father explained had occurred when he playfully pinched her. The Local Authority were originally claiming that these were excessive and of a bruise type. That matter has been withdrawn by the Local Authority on the basis that there is no direct evidence before me by any witness of these marks as to their description. So there is really insufficient evidence for this court to be able to come to any determination on that point.

· Paragraphs 7 and 8 relate to the breach of the agreements that the father would be supervised in his care of R. The father accepts that he unintentionally breached it due to a misunderstanding about what was meant in the agreement. I have briefly referred to this already. What is said on behalf of the Local Authority is that the father should well have known that he should not have travelled to Scotland without giving the details of this trip and the adults overseeing his care of R to the social worker beforehand. He accepts he should have told the social worker, but says there was someone with him at all times. There is no evidence before me to suggest that there was not someone with him at all times and that was the important point of the agreement. I have taken the point made on his behalf by his counsel that, while we are familiar with the expectations within family proceedings and might see it as particularly amiss to have unintentionally breached the safeguarding agreement in this way, for Mr. BL he was (as he understood it) at all times overseen and therefore the breach was an unintentional one and it does not take the matter a great deal further.

· Paragraph 9 relates to the asylum application made by the father and the risks to R if she were to be obliged to return to Pakistan with her father. The father accepts that this is a problem for both him and R. I am uncomfortable about this becoming an element of significant harm because this is a matter yet to be adjudicated upon by the relevant agencies in this country and there are many steps before an enforced repatriation to Pakistan would take place. So, while it is a risk that both Mr. BL and R face, it is uncertain whether that risk would actually ever manifest itself at the end of those asylum proceedings.

· Paragraph 10 of the threshold document cites verbal and physical fighting between the parents in R’s presence. The Local Authority have accepted that this does not appear to be a case of significant domestic violence. It would appear from the evidence that this has been largely a matter of some disputes between the parents, particularly after R’s birth as to what should happen to her. As a result, it is more a matter of fact to be considered as part of the context of the more serious incident resulting in R’s injuries rather than a factor of significant harm in itself. Although it is noted that the father accepts a single occasion when he held her shoulders and pushed her down onto the sofa because she was very angry and verbally abusive and trying to scratch him, that the argument took place in the living room in their small flat and R was in the bedroom. But I will come on to the father’s accounts of his relationship with the mother later in this judgment.

· Paragraphs 11 and 14 relate to a failure to provide R with a cot, a suitable bath and sufficient milk formula on an occasion. This is accepted to a limited extent. I do not consider that these are matters of central importance in terms of significant harm. They were minor matters of practical provision for R and there were no other examples to suggest that this was a neglectful set of habits in parenting R.

· Paragraphs 12 and 13 relates to the mother’s failure to prioritise and her abandonment of R. Of course, that is accepted by the father. He accepts that his finances and accommodation are uncertain and precarious because of his asylum status. Again, I do not consider that those matters are central to findings of significant harm.

So the core issues to be considered by this court are the injuries suffered by R and the circumstances relating to those core issues.

The Medical Evidence

22 The court heard from Dr. Rylance via video link. Also available to the court were the earlier reports, notes and bodymaps prepared by Dr. Rothenberg and her colleague. I note at the outset when considering the medical evidence that it is not disputed on behalf of the father that R suffered the injuries that have been described nor, as I understand it, are the forces required and the mechanisms described by Dr. Rylance disputed by the father.

23 I turn, firstly, to the fracture to her skull. This was a simple linear fracture of the right parietal skull bone of some three centimetres in length. Dr. Rylance confirmed that there is no evidence of an underlying bone disorder that would make R’s bones more likely to fracture and that such a fracture would require a significant impact somewhere along the line of the fracture; therefore on the right side of her head, at some point just above her ear, where that line lay. His evidence also was that it was necessary for that point of impact to be the primary point of impact in order to cause such a fracture and, if any other part of her body had hit anywhere else first, the force would have been dissipated such that any subsequent impact on her head would not have resulted in a fracture.

24 Turning to some matters of detail that Dr. Rylance was asked about. He confirmed, as set out in his report, that a fall from ninety centimetres or greater would provide sufficient impact to cause such a fracture in a one to two per cent of babies. Some of his evidence was that a similarly forceful impact, as would be represented by a fall from ninety centimetres or greater, would cause such a fracture. He also pointed out that if a fall had caused this fracture then that same fall would not have caused the bruising that was also seen on R’s face as that blow causing the fracture would have been the point of impact sufficient to cause the fracture and, therefore, would not have been sufficient impact to also cause the bruising. He also pointed out, when challenged by counsel for the father, that if R had been in the father’s arms then she would either have been protected by his arms or if she had been jolted out of the father’s arms when his own arm hit the floor there would have been insufficient force to cause the fracture in either of those scenarios.

25 I turn then to Dr. Rylance’s evidence in relation to the bruising. He spent some time, both in his first report and in his addendum report, in setting out his understanding of what these bruises were, where they lay and what Dr. Rothenberg had said about them; and in particular in his addendum report, having had a telephone conference with Dr. Rothenberg, when she had clarified that what she had referred to as “discolouration” on her bodymaps of R should properly be identified as bruising and that she agreed with his opinions in relation to R’s injuries.

26 Looking at the bodymap and recalling Dr. Rylance’s evidence: He clarified that on the left side of her face there were indeed two bruises: (a) a linear bruise some three centimetres in length and coloured red just below her ear and behind the edge of her jaw marked as a “linear red mark” on the bodymap of which he understood that to mean a very narrow bruise of some two to three millimetres in width; and (b) a two and a half by two centimetre bruise at the base and back of her jaw just below her ear described as having “non-specific edges and being of yellow/purple colouration extending on to the neck”. On the right side of R’s face there are three marks on the bodymap shown: One is a five millimetre scratch just in front of her ear, but the other two marks (described as (d) and (e) on the bodymap) show two bruises: (d) a bruise of about two by three and a half centimetres running from just in front of the earlobe down onto the jaw and running just forwards and below the rear of the jawbone, described as an area of dark purple discolouration with some redness; and (e) a bruise of two and a half by half a centimetre of dark blue colouration appearing to be in front of the ear in the region of the cheek, but Dr. Rylance properly conceded that he could not say whether it was solely in the area of soft tissue or in some way might have fallen over a more bony area such as the cheekbone. Nonetheless, the overall picture is of two distinct bruises on each side of R’s face.

27 Dr. Rylance’s clear evidence was that these would have required impact to cause them, not normal handling. He added that they would not have arisen as a result of any blood or bleeding disorder, so no coagulation tests were required. He gave various appropriate rationales for this, but the most pragmatic and obvious being that R has neither before nor since suffered from any type of easy bruising. He confirmed that the colours of the bruises were not of any significance, save that their colours meant he could confirm that they had occurred within forty-eight hours of being described in the way that they were.

28 He also stated, very clearly, that it was not possible to bruise both sides of her face and twice on each side from a single fall because a single fall would bruise one side only and it would be unlikely to bruise in two places on that side. Again, he gave very clear evidence that one can only imagine achieving this type of bruising of two bruises on both sides from multiple impacts and this would have required an impact on each side in each place. He also confirmed that bruises would not result on one side of the face and then, by R rolling, having bruised one side of her face, result in further bruises on the other side of her face following the first impact.

29 Dr. Rylance also paid some attention to the three centimetre linear bruise on the left side of her face just below her ear near her jawline. He described that this required an impact with something of about that dimension or slightly larger, so therefore not simply an impact by the skin over her jawbone on the floor or a flat surface. He rationalised this by his reference to the gradual and rounded angle and shape of a baby’s jawbone not providing a sharp enough edge to achieve such a bruise by that means.

30 When questioned by father’s counsel he confirmed that, if she was in the father’s arms, it would not be possible to cause the bruises by the pressure of the father’s arms around her head nor by bouncing out of his arms onto the floor and that the mechanisms that he was questioned about covering the varieties of options relating to the fall described by the father could not explain the two separate bruises on each side of her face.

31 So considering the totality of the injuries and the medical evidence relating to those injuries and bearing in mind that Dr. Rothenberg (albeit that she, in her initial report dated 23^rd December, indicated that the parietal fracture was consistent with a fall as described by the father, although the bruising does not match the mechanism) upon further consideration of the issues and at the professionals’ telephone conference between her and Dr. Rylance, agreed with Dr. Rylance’s analysis, I therefore note and accept that Dr. Rylance ruled out the possibility of R suffering all her injuries in a single fall and ruled out the various possible permutations of the alleged fall as a means of explaining all those injuries. I find that Dr Rylance’s evidence was clear and cogently backed up by appropriate explanations based upon his medical knowledge and experience, and I accept his analysis of the range of injuries suffered by R as discussed above, their type and nature, and the forces and mechanisms required.

32 I note here that I do not, by virtue of that expert opinion, take any step towards considering that this might by way of an absence of a benign explanation lead to (as a result of simply that medical expert opinion) a negative finding against the father. But it is an important element of the evidence in looking at these injuries and the facts in this case and the totality of the evidence relating to them. I found Dr. Rylance to be helpful and to be fair. He was a clear witness who did his very best to answer as carefully as possible in relation to the matters that were put to him, and provided rational and experienced explanations.

The Incident on 20^th December 2013

33 This would appear to fall into four significant elements:

i. The context in which it took place;

ii. the reason the father claims as to why there was a fall in the first place;

iii. the fall itself as claimed by the father; and

iv. the immediate aftermath.

34 In considering this incident I have heard evidence from a number of witnesses. I have heard evidence from the father (and I will come to important aspects of that later), but, suffice it to say at this point, he is a very personable young man. He spoke very softly from time to time. He mainly looked down while giving his evidence. It was noticeable that his answers throughout the course of his oral evidence contained internal inconsistencies. He became upset on one occasion, which I shall revert to and comment on later. I found that my overall impression was of a witness who, from time to time, gave clear and forthright answers, but on occasions became vague and inconsistent in ways that reflected another witness’ important description of his demeanour (Mr. Campbell, who was describing his discussions with the father during the Amber Project assessment).

35 We also have from the father his accounts to other people, which formed part of the evidence before me. His accounts to Dr. Rothenberg on 20th December, when I note of course he had no interpreter. I acknowledge therefore that some of her notes of what he may have said may be of limited value, save that the father had the opportunity to answer questions before me about what he had said to Dr. Rothenberg with the benefit of an excellent interpreter and careful questioning during his oral evidence. Indeed, even within that oral evidence, the father contradicted himself in relation to what he had told Dr. Rothenberg (and I will again return to that later).

36 Next in time are the notes of the police interview that took place on 22nd December and to which I have already referred. It is a great shame and a matter of some incredulity that the police appear to have lost this interview. It is therefore not available and we have only the notes. The father was taken to certain entries within those notes of the interview. Some entries he either could not recall saying to the police, some he accepted he had said, some he denied. I acknowledge that we have no better evidence than the notes. No witness from the police, who may have been involved in the interview process, was available. So it is a question of looking at what the father has said elsewhere, applying appropriate weight to what the notes say and treating the notes (because of the circumstances in which the transcript is unavailable) with some care.

37 I then heard evidence from Mr. Campbell and Miss Van Rooyen from the Amber team who carried out the assessment of the father last summer. I did not hear evidence from Miss Cope who was the principal author of the Amber Project report and who was the primary interviewer of Mr. BL during that assessment process. It is a great shame that I could not hear from her; she is both heavily pregnant and on compassionate leave following a family bereavement. I note that Miss Van Rooyen accepted that she had not discussed the occasion of the incident or the details of that with Mr. BL. However, Mr. Campbell attended court at short notice. It had become clear during the course of the first days of the hearing that he in fact had been the author of important notes of interviews with Mr. BL and in particular a note of a visit to Mr. BL’s flat and of the father’s description of the incident when Mr. Campbell asked him to explain what had happened. It was from Mr. Campbell that I consider I received very clear, direct, fair and helpful evidence. He was a particularly fair witness pointing out ways in which Mr. BL had been a well engaged and co-operative parent during the assessment, that he had shown some appropriate skills and capacity to learn and that he had shown a good interaction with his daughter and so forth. He also gave very clear evidence about the visit to the flat. He explained that before he visited the flat he had been unaware of the details given in relation to the incident, save that he was simply made aware that there had been some inconsistency in previous accounts. That to me is a helpful indication of the fair minded way in which he would have approached his discussions with Mr. BL, being unaware of what particular details or in what respects any previous inconsistencies had arisen, and this approach would have been entirely consonant with Mr. Campbell’s demeanour and attitude in giving his evidence. He also noted that, overall, the father was normally keen to answer and gave coherent and forthright answers with some energy and conviction in relation to most of the matters that Mr. Campbell had to ask him about. For example, Mr. Campbell interviewed him about his relationship with the mother on 18^th June and related issues. However, he noted in his notes of the visit to the flat on 11^th July and in relation to the explanation by Mr. BL of the incident that took place on 20^th December 2013 a distinct vagueness and confusion. He described it in his oral evidence as an “overriding vagueness” on that topic and said that it was out of keeping with his answering style in relation to other topics. This was a factor that I also noted during the course of the father’s oral evidence to some extent.

38 It is worth pointing out that the notes that we have from Mr. Campbell are dated 18^th June, 23^rd June, 11^th July and 15^th July (H28 on in the bundle) and were brought to court by Mr. Campbell following requests for those notes. He confirmed that he had made those notes as soon as possible after each session with the father; his practise being to make handwritten notes and write them up either straight after or at the very least within a couple of days. On that basis I consider that Mr. Campbell’s notes are good records of his discussions with Mr. BL and, where there is a difference between Mr. BL and Mr. Campbell, I overwhelmingly prefer the evidence of Mr. Campbell. He was consistently clear and fair and coherent in the evidence that he gave throughout his oral evidence before me. His answers fitted entirely and consistently with the written records.

39 Miss Van Rooyen, as I indicated, did not have direct discussions with Mr. BL about the incident, but emphasised in her role as a manager of Miss Cope the overall concerns set out in the Amber Project report relating to the numerous inconsistencies in relation to this incident and related factors and issues touching upon it whereas he worked well with them on a basic level. She was of course, however, unable to assist in relation to some of the specific comments made by Miss Cope. I nonetheless, however, do take into account the observations made by Miss Cope in her report of the concerns arising from Mr. BL’s accounts and in particular the apparent flatness of his demeanour at the time last June and July when he was talking with her about the incident and the inconsistencies that she noted from her work and Mr. Campbell’s work with Mr. BL. I obviously take into account that I have not heard directly from Miss Cope and it has not been possible for the father’s representative to challenge her by cross examination. Therefore I accord appropriate weight to Miss Cope’s evidence.

40 I heard the father’s evidence and read his written statements. His first statement is dated 19^th May and the key paragraphs that have particularly troubled me have been paras.11, 12 and 13 relating to his relationship with the mother and paras.26 and 27 setting out what happened on 20^th December according to him. At para.26, the father describes sitting and watching a cricket match on his mobile phone with R asleep on his lap:

“As the cricket match finished, I stood up with R and suddenly I felt really dizzy and my vision blurred. The last thing I thought was that I needed to protect R as I could feel my balance going. I moved a few steps forward cradling her and holding her tighter as I knew then I was going to fall. I fell onto the wooden floor under the low glass table in the living room. As far as I know I did not lose consciousness, but I could feel blackness descend over my eyes for a few seconds and I felt completely weak and unstable. I was trying to protect R when I fell. After the fall R started crying straightaway. I was not completely sure whether she had hit her head. As I recall, my right arm was under her neck and my right elbow had knocked the floor. I did not see any bruising on R’s face, but her face was red as she was crying.”

Paragraph 27 goes on to deal with him hugging her straight afterwards and not realising that he should have called an ambulance straightaway, calling for a taxi to take them to the hospital as he thought it would be quicker. While they were then waiting for the taxi, calling the mother and telling her what had happened. It was when he had arrived at the hospital and R was assessed, he says he then noticed her head wound and bruising on her face. Further paragraphs that have particularly concerned me in the father’s statement relate to his history of blackouts and further reference to his relationship with his wife in paras.47 and 48.

41 The father’s second statement is dated 23^rd January 2015 and the key paragraphs relating to the incident come under a heading “Dr. Rylance’s report”. I will come back to this in a moment, but I suspect that the heading above para.33 may be a relevant observation in terms of the changed account given by the father in this statement when I come to it in a moment. In para.34, the father says:

“To reiterate what happened as my first statement is not entirely accurate at paragraph 26 to 27 due to translation issues [I will come back to that point in a moment]. I stood up with R cradled in my arms from the sofa where she had been on my lap. The table was in front of me to the right. I suddenly felt really dizzy and my vision began to blur. The last thing I thought was that I needed to protect R as I could feel my balance going. I moved a few steps forward and to the side away from the table then and at that point a black mist descended in front of my eyes and I fell. I did not lose consciousness but could not see. When I could focus again, I was face down on the floor on top of my arms which were still in a cradling position. My elbow was painful. R was in front of me on the floor face down. I do not remember exactly whether or not she was lying more to one side than the other, but she was lying on her stomach with her face on the floor. I was initially in shock.”

In para.35, the father says:

“I note Dr. Rylance states the skull fracture is a possibility from R falling from my arms at the start of the fall. I am not sure at what point R came free of my arms and it may well have been at the start of my fall if I was unable to keep my grip around her. It all happened so quickly and she weighed so little. When I was standing she was cradled in my arms and my arm was under her neck. I now think it is likely that I dropped R at the start of the fall as this would explain where she was on the floor in front of me when my vision cleared. I should have clarified this in my first statement.”

At para.36, he says:

“After the fall, R started crying straightaway.”

The rest of this part of the statement goes on to refute the conclusions that Dr. Rylance comes to in his report.

42 Having set out the accounts that I have just referred to that covers the incident in question, I will return to the four elements of what is said to be the incident that led to R suffering the injuries that she has suffered.

43 That first element is the context. It was only at the very end of his oral evidence that the father was prepared to accept that this was a very upsetting and emotionally challenging situation being on his own with R at this time in December. R was a tiny baby of slightly less than one month old. The maternal grandparents, who had been in touch and visited from India, had placed significant pressure on the couple and in particular on the mother and had frankly interfered. The father acknowledged this in his oral evidence and in fact he was keen to emphasise it. That pressure had been, in particular, that R should be adopted or given up and that the mother should effectively return to India and leave this life behind. This was not what the father wanted.

44 The father was also isolated from his own family and to some extent at odds with them. Neither of the couple had had the courage to inform their respective parents of the marriage or pregnancy knowing, as they did, that their parents would fundamentally disapprove. I understand that both sets of parents were only informed of the relationship, of the marriage, of the birth of the baby actually on the day that R was born. This was a highly unusual and undoubtedly stressful state of affairs.

45 The mother then actually left on 16^th January. The father also ultimately (and I will come to it in a moment) accepted that shortly before she left they had had a fierce argument about giving up or fostering R, which the father did not want but the mother had been persuaded to pursue by her parents.

46 As I say, it was only at the very end of his oral evidence that the father conceded how difficult and challenging and upsetting the situation was. Earlier in his evidence he had described himself as being happy and it was “okay” during this period. It was “not at all” a difficult time. I also contrast those comments with the father’s own comments in his first statement at paras.8-13 when he describes the course of events between R’s birth and the mother leaving when there was this period of very significant pressure upon them. He also describes at para.20 the great deal of anger he experienced from his family when he told them about the situation; that he and his family argued and he was very rude to them. Indeed, he confirmed that he last spoke to them in December 2013. This is one of the first examples that I have gone into detail about the father’s own inconsistencies. It was quite clear, by contrast with his Evidence-in-Chief when he was attempting to describe the situation as “not at all a difficult time”, as “okay” and him being happy, that later on in his evidence and on reflection looking at his first statement it must have been very far from the case. I find the fact of that minimisation is highly relevant when I come to consider the totality of the evidence.

47 The father also minimised during the course of his oral evidence the natural challenges of caring for a tiny baby on one’s own. At F26 and F27 in the bundle, which relate to the police interview, it is noted there that he said, “The first two days after [SG] left for India were a bit difficult as [SG] had been spoiling her. [Mr BL] explains that, during the last five days, he only managed three hours sleep a day. R kept waking up”. Firstly, when asked whether he had said that to the police, he denied saying it. It may be that there are significant errors in this note of the police interview as we do not have a transcript. However, I find it unusual in the extreme that Mr. BL could not even bring himself to comment in his oral evidence on what must have been the entirely natural experiences of caring for a tiny new baby on one’s own, including normal sleep deprivation. This was another example of attempting to minimise even the normal aspects of the context in which he would have found himself not to mention the unusual matters to which I have just referred.

48 Equally, in relation to the argument or arguments he is said to have had with the mother in the period leading up to her departure to India, we have another example of both inconsistency and minimisation. To the Amber Project (E206 and E208), the father describes his relationship with the mother as positive until after she returned from the first visit to India. He said that he had felt positive about this first trip and her motivations for going and that everything in relation to that was positive. However, to Mr. Campbell on 18^th June, when discussing his relationship (H31) (in the paragraph beginning “November 17^th 2013 R was born in Homerton Hospital…” and it is approximately half way through that paragraph), the father describes his parents-in-law visiting, lots of arguments on the telephone, that his parents-in-law desperately wanted the baby to be adopted and that his wife did not want to give up the baby. A few days later Mr. BL’s parents-in-law left and went back to India. He stated that after this happened everything went back to normal. Once they arrived back in India, the mother’s parents continued to telephone her each day stating that she had disrespected them and after seven days his wife started listening more and more to the advice of her parents and was persuaded to go back to India for a few days to sort it out. The father said that, just before she left, “we had a really big argument because she was saying that she thinks it would be best if she leaves and goes back for good. At this time I was looking after R and this is when the incident happened” (by ‘incident’ Mr BL was referring to the events of 20^th December, i.e. just before the occasion when R suffered her injuries). In his oral evidence Mr. BL accepted that he had said that to Mr. Campbell, so it is quite clear that an additional feature of this case was not the fact that everything had been fine and positive leading up to the first trip to India. In fact there had been a major falling-out just before she left on 16^th December. Mr. BL suggested in oral evidence that this argument might have happened as early as 12^th December. I am dubious about that date being fished out of the air at the last minute. I am inclined to prefer the evidence that Mr. Campbell has recorded here whereby it was just before she left and therefore far more likely to be very close to, if not on, 16^th December itself.

49 I also note that the mother, during the assessment by the first social worker, Miss Marquis, in what is called the “single assessment” dated 10^th February 2014, stated that there had been many fights between them and that she had been pushed around. While I fully accept that I have not heard from the mother and that therefore I can only give a limited degree of weight to that evidence, what I note is that, despite the claims in his oral evidence that everything was fine between them up to the birth, if I go back to his first statement at para.48, he himself says: “Back in the summer of 2013, [SG] was having severe mood swings and we were arguing a lot”. So the father is inconsistent between his own first statement and his oral evidence about the nature of his relationship with the mother. It would appear that the mother’s account is therefore not to be discounted in the light of the father’s inconsistency, his minimisation of a number of contextual factors including the nature of their relationship and his own evidence that they were arguing a lot. I find that this is yet another example of minimisation, yet another example of inconsistency and that indeed the relationship between the parents was comparatively fraught and that during the period immediately leading up to her departure to India they had at least one very serious argument. As to the father’s acceptance that he only touched her once on the shoulders to sit her down on the sofa because she was scratching his face in anger, I would be very surprised in the context of the level of minimisation that I have already referred to if that was the only example and the only way in which this couple touched each other during their arguments. I find that it is more likely than not that the situation was more volatile and difficult between them than he is prepared to admit. I therefore conclude looking at the totality of the evidence in relation to the context that the father was in a highly challenging, emotionally fragile position. The situation between the parents was not positive and, despite the health visitor’s brief observations of a father who was ostensibly coping, in fact this was a young man, a new parent, with a very tiny baby in a highly fraught set of circumstances with all its consequent stresses and strains upon him.

50 I turn to the reasons that the father has given for falling in the first place. He has said he got up from a cross-legged position, he felt faint or dizzy and suffered something like a blackout whereby he did not fully lose consciousness but his vision went dark and he fell. Obviously I para-phrase and I have read out carefully what he has written in his own statements, which admittedly is not completely consistent. I note that the word “blackout” was only first mentioned to him during his police interview apparently and that prior to that he says he would have been likely to have used the word “dizzy” or “spin” (“spin” being an english word he was familiar with in particular from cricket). This overall element of his evidence, I accept, has been consistently claimed by him. But I have to look at other aspects of this important factor. The history he has given of blackouts is inconsistent. He told the police (F29), when asked whether he had had previous episodes of dizziness, he said that he frequently suffered from dizziness before he married, but since then these episodes had subsided and the last time he went to the doctor to address this was just after he married in February 2013. There is no record of any such visit to any doctor.

51 Pausing there, I accept and appreciate there is no transcript and that it is therefore unclear if the father actually said this to the police. But I, of course, note that it is a note made by the police of the interview and that it is significantly different to subsequent accounts. I give it such weight as I consider appropriate in the circumstances and I will look additionally at the further accounts given by the father.

52 In the father’s first statement at para.47, he says:

“When I said I had a history of blackouts, I meant there had been one previous occasion in June 2013.”

This is the first and only occasion on which we hear that a blackout took place in June 2013. He says:

“On that occasion I just felt dizzy and the room went black for a few seconds when I stood up from sitting for a long period of time. I sat down and it went away after five to six seconds.”

The significance of this is that to the Amber Project he said that the previous occasion when he had suffered a blackout had been when he had been told by the mother that she was pregnant, which must have been in approximately March 2013. I find it astonishing and extremely unlikely that he would not have mentioned this episode in his statement and particularly that it was when he was told that the mother had fallen pregnant rather than simply citing an occasion in June 2013 at para.47. So the account given, which he accepts he gave to the Amber Project, is not consistent with the information given by him in his first statement at para.47. I also note that there is absolutely no record of any visit to the doctor in February or even March 2013 which might fit with the police note. There is, however, a note (which I find attached to the first social worker’s statement at C30) dated 30^th August 2013 when the father went to his GP and complained of feeling tired, getting pain during intercourse and having mouth ulcers. There is absolutely no reference in that GP entry to feeling dizzy or experiencing spinning sensations or light headedness or any other symptom that might possibly be equated to what he has subsequently described.

53 I then also note that, despite this very serious incident of blacking out on 20^th December 2013, no treatment was sought by Mr. BL until 10^th February 2014 which I understand was only prompted by the social worker asking him what treatment he had obtained and contacting that GP herself. The entry for that visit on 10^th February makes no reference to a previous history of a blackout or any similar symptoms. It makes no reference to the father having expected this matter to be familiar to the GP or to the GP practice because he raised it before with them. I also note that, in that visit on 10^th February, the father claimed that he had suffered no further episodes and was now very well as a result of eating properly and exercising. My first observation would be that I would have expected the father to seek prompt medical input given the severity of what he described occurring on 20^th December. Two months went by. That in itself is very surprising. I would then have expected to have seen a reference by the father back to both the history of having suffered a previous blackout or blackouts and to his assertion that he had raised it before at the GP practice. The father then changed GP and on 7^th March 2014 went for a new patient check as a result of registering with the new GP practice. No history of blackouts was mentioned to them at that time or indeed, it would seem, at all. I have seen a note of that from the Carpenter’s Road Medical Practice dated 28^th March (C29) also attached to the first social worker’s statement. He was seen by the Practice Nurse for a new patient check and he was issued with a standard urine dipstick test which showed some sugar in his urine, so the nurse explained that further tests would be required due to the possibility of there being diabetes. In fact this was subsequently ruled out by those blood tests. But even though the father had said to his previous GP that there was no longer a problem with suffering blackouts because he was eating and sleeping well, he then told the social worker in mid-March that his blackouts were due to diabetes. This was clearly not what he had been told and it was said in circumstances where he himself had said to his previous GP that there was no longer a problem. So I observe from this that the father was in effect proffering explanations to substantiate an assertion that he had suffered a blackout that were not substantiated by the medical advice he had received nor by what he had told his own previous GP, and were therefore at the very least disingenuous.

54 I also note that there has been no observation by any professional, either at the Amber Project or this social worker, of any step taken by the father to guard against future blackouts and I bear in mind Miss Van Rooyen’s evidence that she had observed contact sessions and had not witnessed any step taken to accommodate this possible risk. I note there has been no mention of his worries or concerns about the problem to any professional involved with the child protection issues and the type of physical steps that he might have been observed to have taken could have been, for example, to always ensure that there was a chair nearby, to always ensure that other adults were aware of the potential difficulties and to remain very physically close to another adult. I mention those merely as examples. No such steps were ever taken by him.

55 I have carefully borne in mind the submissions made on the father’s behalf that, if he were fabricating this disorder, he would perhaps have made it look like a real problem and made sure he reported it much sooner. Therefore the fact that he only went to his GP some two months later was not a sign of it being fabricated by him. However, what I conclude looking at it overall is that I am extremely unimpressed by the totality of the father’s evidence on this point. It is inconsistent in itself. He does not exhibit the behaviour of someone who has an ongoing problem or a real concern about such a problem. One would have seen it in the medical records. He would have sought prompt investigation, he would have mentioned it to his new GP and so I conclude that there really was no such history and that it was because it was not a real problem that he did not think to do that; there was no driving necessity. On the balance of probabilities I consider it unlikely that he suffered a history of a blackout or blackouts in 2013 or such a blackout on 20^th December 2013.

56 Turning to his account of the fall itself, I have reviewed all the versions of the fall that the father has given in his statements and in his oral evidence. I find that it presents a picture that is extremely vague, confusing and perplexingly inconsistent. I find myself entirely convinced by the evidence of Mr. Campbell that the father’s answers and accounts about this incident are out of keeping with his normal or other mode of responding to queries which is largely clear, informative and forthright. The Amber Project workers found him in the June/July assessment period to be somewhat flat in his emotional presentation when discussing this issue. There was a somewhat similar presentation here in that his voice often dropped, his face dropped and there was less level of expression when attempting to describe these incidents, save for a single occasion when he became tearful and upset when questioned by the children’s Guardian’s advocate. I am sure that this father loves R dearly, but it was to my mind highly significant that this sole expression of upset was after he had been sensitively but persuasively and logically pressed by the children’s Guardian’s advocate to acknowledge the logic, inconsistency and difficulty of his evidence and his situation and was in effect being pleaded with on behalf of the children’s Guardian to review his previous answers and consider if he should tell us anything else. That to my mind was significant and different to the otherwise largely flat response when attempting to describe what had happened. I ascribe that upset to that persuasive logical pressure when he could begin to see the corner in which he inevitably and regrettably stands in this case.

57 Looking at the account given to Dr. Rothenberg and the triage nurse (E1, E3 and F91), I have already observed that there were interpreter problems and so it is not in order to rely exactly on what is reported by Dr. Rothenberg that this material is relevant. What is relevant is that when the father was asked about these reports by Dr. Rothenberg in his Evidence-in-Chief and also when cross-examined by the Local Authority, he accepted that he had said that he thought he had dropped her and fallen on her, albeit he said that he had proffered this information by way of his own speculation having been invited by Dr. Rothenberg to say what he thought might have happened. He also then agreed that he could not actually have fallen on her because she was not under him, and that he knew that at the time, and so I find the nature of these answers that he gave to Dr. Rothenberg completely nonsensical and impossible to understand. Why would a parent in these circumstances proffer as speculation something which they must have clearly understood could never actually have happened? R, he says, was not under him, so why did he say to Dr. Rothenberg that he might have fallen on top of her? I find that the explanation he gives is completely implausible and, despite his counsel’s persuasive submissions that he was simply trying to help and was reacting to the types of questions he was being asked, it does not make sense to offer answers as a parent involved in such an incident that you, as that parent, know must not be the case. The only reasonable and honest response would have been to say that he could not have fallen her because she was not under him and to have said that at the time. I also note that towards the end of the father’s oral evidence he said, in fact, that he had told Dr. Rothenberg that he had seen the baby beside him. I note that Mrs. Khan in her translation of Mr. BL’s words used the word “besides” because that was a term that Mr. BL had specifically used. I think nothing turns on that. What does strike me as highly relevant is that he stated that this is what he had seen, not that this is what he was continuing to speculate. This was something he says that he had seen and that he had mentioned to Dr. Rothenberg completely contrary to his own accounts in his statements and elsewhere that she was on the floor in front of him. These accounts are in his statements that I have already read out. The father was also asked to explain in his Evidence-in-Chief by his own counsel why there was such a discrepancy between his first and second statements. His answer was it could be it was not interpreted correctly “or I did not know at that time [short pause] whether R was in my arms or not”. This answer, I find, is completely unsatisfactory. Of course by May 2014 he must have known what he knew and what he did not know, i.e. whether R had been in his arms or not. I note also that the wording used in his first statement is “I recall my right arm was under her neck and my right elbow had knocked the floor”. It is suggested that this might be a problem of interpretation. What it cannot be is a problem of interpretation or “I did not know at that time”. I very much doubt that it could be a problem of interpretation. This statement was collated without a rush, and with the benefit of an interpreter and with the benefit of the assistance of a solicitor. The signatures appearing on the last page are, firstly, that Mr. BL believes the contents of the statement are true; and, secondly, from the interpreter that he had read the contents of the document and the statement of truth to Mr. BL signing the document who had appeared to understand it and approved its content as accurate and the consequences of making a false declaration and made his mark in their presence. I would be astonished and I am not impressed by the suggestion that somehow there was some fundamental failure of interpretation about an issue so frankly and fundamentally central to the case.

58 I suspect that, by the time of the second statement in January, the father had by then seen the Amber Project report filed in August 2014 and Dr. Rylance’s first medical report. Indeed his answers in relation to the incident which are at odds with his first statement come under the heading, as I have already pointed out, of “Dr. Rylance’s report”. Instead I suspect that, rather than it being a question of not knowing at that time or a problem with the interpretation, it was far more likely to be that the father realised that he had given a different account to the Amber Project and also that he needed to amend his account given in his first statement to render it more consistent with that given to the Amber Project and to get around the conclusions in Dr. Rylance’s report, particularly as the account in his first statement could not even begin to explain the presence of the parietal fracture. If he really did not know what had happened, he would have said “I do not know what happened”. I also note in this context his oral evidence which he gave to this court: “I was holding R tightly because I did not want R to fall and I fell down like that” which is, in any event, at odds with his second statement where he says “I now think that it is likely I dropped R at the start of the fall”. I note that there are also inconsistencies (which I have already briefly referred to) about how he saw R lying after the fall, telling Mr. Campbell that she had her face on one side and telling the court in his oral evidence and in his second statement that she was face down. There are also further inconsistencies in the details of the fall. Mr. Campbell gave very significant and clear evidence about how confused the father had been about whether or not there was even a mattress in the room at the time. He also indicated to Mr. Campbell that he had landed very near the kitchen with R landing even further towards the kitchen units, but in his first statement he says he fell under the glass coffee table in the living room area. I have already mentioned the question of whether she was in front of the father or, as he told me in his oral evidence, “I saw her besides me and that is what I told Dr. Rothenberg”. I note from Mr. Campbell’s account of his visit to the flat with Mr. BL that if Mr. Campbell had been in the presence of someone who genuinely had not known what had happened because he had been unable to see or feeling faint then that is exactly the point that Mr. BL would have properly made on that very occasion. Instead Mr. BL was again attempting to give an account which was significantly vague, inconsistent and has not fitted with the other accounts to which I have referred.

59 There are some further minor inconsistencies which the Local Authority drew my attention to. For example, the distance R lay from her father. I do not take those into account. The father’s counsel has suggested that they are too minor to satisfy as genuine inconsistencies and I do not consider them further.

60 After the fall Mr. BL described R crying. His oral evidence was composed of three different versions of this element. I take into account also that he told the Amber Project that she had made no noise and only cried when he picked her up (E203, para.10.2). First of all, in his oral evidence, he said she cried a lot and after some time stopped. Later, in his oral evidence, he agreed he had said to Mr. Campbell that she cried initially for a few seconds only and then stopped and calmed down completely. Later still in his evidence, he agreed that he told the police that R was crying like he had never heard her cry before. Indeed, he went on to confirm that it was the cry of a baby who had been hurt and that she would not stop crying and that he only picked her up from the floor after she had started crying. These accounts are not consistent yet these are examples of things that the father was no longer unable to see and observe due to an alleged blackout or faint. He was over his faint. He had his vision back. He should have been fully aware of such details. Therefore, this should be an example of something about which he could give a very clear and consistent account to all child protection professionals involved and to this court. I find it particularly telling that he could not.

61 He accepted the note in the police record that the fact that R was not stopping crying actually led him to call the mother, although on the first occasion he called her he did not tell her what the problem was or what had happened. The police note then goes on to say that he then called the mother again and told her the truth and she then advised him to take R to hospital, so he called a taxi. He says he actually called a taxi before then. I find that, while I appreciate that the police note is imperfect for the reasons that I have mentioned, the father does accept that that element of the police note that I have referred to is an accurate account of what he said and indeed of what he did, namely that it was because she had not stopping crying that he telephoned the mother. In fact he went on to add and confirm that in the second telephone call he sent to the mother a photograph of R’s head for her advice. In the context of what he has accepted that he did in relation to these telephone calls I find that it is more likely than not that the note of what he said to the police only two days after the incident is most likely to be correct, namely that he telephoned the mother twice; on the first occasion he did not tell her what had happened, but on the second occasion he sent her a photograph and asked for her advice and did tell her something of what had happened - it is not clear exactly what he told her - and it was on her advice that he should take R to hospital that he then called a taxi.

62 The Local Authority also seeks to rely on the fact that the father forgot to attend a follow up appointment. I have already touched on this and I cannot take the matter any further. I do not think it is of particularly grave significance. It is unclear from where the follow up appointment letter would have been sent and how he would have received it and I consider nothing in particular turns on it. I do note, however, in this context, that the father has consistently said to the Amber Project, to the social worker and in court in his oral evidence that he regrets having taken R to hospital. When asked if he would do anything differently, in hindsight, he says, he would not have taken her. He has consistently maintained this. He bases this in part on the fact that she never received any proper treatment as he saw it, although she was undoubtedly carefully examined by a Consultant Paediatrician and subsequently subject to a scan to ensure that there was proper understanding of any difficulties she may suffer from and proper treatment therefore given, but also because he says that that was the point at which the Social Services and the police became involved. It is not just a worrying lack of insight about a tiny baby’s need for emergency medical assessment and input that concerns me, but the fact that it betrays a regret at bringing professional attention to R’s injuries and the father’s inevitable involvement and role in that. I find that his regret is a worrying reflection in the light of the unreliability of his evidence.

63 I have taken into account that Mr. BL loves R, that he became upset in the witness box (as I have described). I have taken into account that he has always denied hurting her and that there has been a degree to a limited extent of consistency in the terms of him always saying that he felt faint/dizzy and fell and there was some limited appropriate contextual detail such as watching a cricket match on his phone before he got up. I take into account that he has claimed he could not see everything and therefore that might impinge on his ability to give a clear account. I have taken into account that there is no evidence since this incident of any aggressive tendencies or losses of self-control, that he has a good rapport with R and that the social worker has described him in various ways as a good dad. But I cannot escape the litany of glaring inconsistencies that I have been obliged to review. If he could not see everything and so did not know what had happened, he would surely have said what he could see and did see and did know with clarity and would equally have pointed out what he did not know with some certainty as to those things that he could not comment on. Instead we have significant discrepancies relating to significant details, even of what he could have seen or said he had seen, such as the position R was in, and such as her crying. I do find that I have been presented with completely unsatisfactory and positively unreliable evidence by the father in respect of what might or might not have occurred on that day.

64 I turn to discussion and consideration of the law in relation to fact finding and what the implications of these glaring inconsistencies are and the conclusions that I have just drawn. As I have said, it is the civil standard of proof and the burden of proof is on the Local Authority. Re H [1996] and Re B [2008] are the leading case law relating to the standard and burden of proof. Suspicion is insufficient and clear evidence is necessary to establish serious findings. I also have reminded myself and referred counsel to the comparatively recently published decision of Re M [2012] in which Ward LJ summarised key points including as follows:

“…the essential propositions are self-evident. The burden of proof lies on the local authority to prove the case against the parents. The standard of proof is the balance of probabilities, and that means the same in this kind of case as in every other, a simply balance of probability. Suspicion is not proof, and the burden must always remain on the local authority and should not be reversed.”

The case dealt with non-accidental injuries and Ward LJ highlighted a key issue that the absence of a benign parental explanation for the presentation of a child does not, even in the face of united professional opinion that without such an explanation their conclusion must be therefore that the parents deliberately injured the child, lead to such a conclusion as it reverses the burden of proof. Further, Ward LJ said:

“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 are being required to satisfy the court that this is not a non-accidental injury.”

So it is for the Local Authority to prove on the balance of probabilities that it is more likely than not that Mr. BL assaulted R and that evidential burden is not satisfied simply if there is an absence of evidence of a benign explanation for her presentation.

65 Firstly, I remind myself that I must look at the totality of the evidence, the background, the injuries themselves, the medical evidence and the unique opportunity that I had to observe and listen to all the witnesses. I also note that Dr. Rylance, although he was drawn or tempted towards it, did not ever state that the absence of a benign explanation by Mr. BL meant that there must deliberately have been such injury by him. Nor do I consider that this is a case simply of there being absence of evidence of a benign explanation. I emphatically do not rely upon any suggestion that the father should provide a benign explanation or that because he has not been able to provide a benign explanation which fits with the forces and mechanisms described as necessary by Dr. Rylance to cause R’s injuries that, therefore, he has deliberately inflicted those injuries. I make no such leap, as referred to in Re M and I do not reverse any burden of proof nor require him to provide a benign explanation.

66 I bear in mind in particular all the submissions that were very carefully and properly made to me by each of the advocates in this case. The Local Authority drew to my attention the types of inconsistencies that I have already referred to and that there is no clear explanation and the start, the middle and the end of the incident are all (in terms of the father’s descriptions) uncleary; that he has, as a result of this, been shown to have lied about what happened and concealed something else that must have happened which he has felt unable to tell the court; that the father therefore cannot be trusted when he says he did not cause those injuries, although that is not because of an absence of benign explanation but the presence of lies, the presence of inconsistencies and the conjunction of that with all of the other evidence.

67 The submissions made on behalf of the father were that the inconsistencies can all be explained away by the father being affected by what he was being asked, by attempting to help by offering speculative solutions, by inaccuracies due to interpretation issues, by trying to do the best he can to help. With reference, for example, to the difference between the two statements, that he might not have been certain by then, i.e. by the date of the first statement as to what he did and did not know. That over such an important issue he would ponder and therefore appear vague and uncertain.

68 Pausing there, I have addressed most of those in terms of the considerations I have applied so far to the inconsistencies that I have been obliged to look at. I also note that it would be very unusual for someone to appear vague and uncertain about matters of fact, even if they were trying to think hard about them. Thinking hard and pondering might lead to a more certain answer not a less certain answer, so I do not find that submission persuasive. I have already referred to the submissions made in relation to the fabrication of a blackout and it was pointed out to me that, at least in oral evidence, there was some consistency with the father accepting that R had cried like she had never cried before. It was pointed out that perhaps these inconsistencies are because it is more genuine for the father not to appear to be following a script, but asking himself again afresh on each occasion. Again, I do not find that persuasive. Someone who knows something, knows they know it and says what they know. Someone who does not know something, knows they do not know it and says they do not know it. Instead we have here a truly surprising variety of inconsistencies indicative of an untruthful set of accounts. The father’s advocate acknowledged that Mr. BL had accepted that it was a time of emotional upset and turmoil when the mother left, but pointed out fairly that the health visitor had noticed that he was coping and had not found any concerns when she visited on the early afternoon of 20^th December. I have already dealt with the context, but I have taken into account those observations. It was also suggested that there might be an innocent explanation which the father has not felt able to put forward, which might explain the difficulties with his evidence.

69 In relation to the guidance in Re M it was suggested on the father’s behalf that, even if I find that those inconsistencies were inconsistencies and not simply for the reasons that were suggested in those submissions, it does not mean that I can go on to find that the injuries were deliberate or intentionally caused and that was too much of a leap; that there was no clear mechanism for causation and that it would be too speculative and it could be that we simply do not know. The submissions on behalf of the children’s Guardian were understandably brief and fairly pointed out that it was broadly the same version throughout, namely a faint and a fall, and that there had been some context to it. But the fundamental question was asked: Given the existence of these inconsistencies to what end did those inconsistencies go? Ultimately, there is a real doubt about the father’s account.

70 I very much emphatically rely on my impression of the totality of the evidence and, in particular, the nature of the injuries and their combination and their type. I will not go over the review of those injuries and the findings in relation to those injuries that I made in the earlier part of the judgment. I also particularly take into account the father’s inconsistencies, both over time and in relation to a number of absolutely key issues about the incident that cannot be due to interpretation difficulties or efforts to provide answers. This is not about the father being obliged to provide a benign explanation but having positively put forward inconsistent accounts and my being able to take into account his demeanour in the witness box, the accounts of others (in particular Mr. Campbell’s impressions that I have already referred to) and that the father has shown himself to be distinctly untruthful and an unreliable witness of fact. I therefore find that the Local Authority has been able to satisfy me to a relevant standard of proof and discharge the burden of proof on them and drive me to conclude that the father has been an inconsistent and dishonest witness of key issues and events in relation to that day. I cannot rely on his accounts of what he says occurs and I do not rely on them in order to require him to provide a benign explanation, but I am afraid looking at him as someone who has lied about and/or concealed the true events of 20^th December 2013.

71 Counsel for the Father has also rightly drawn my attention to an alternative possibility, which is that some other set of impacts occurred that led to the totality of her multiple injures about which the father had not felt he could be open. I deal with this as follows: in the light of the nature of his inconsistencies and assertions, I find it would be highly surprising if he had missed the possibility of confessing to such an innocent scenario. Even if such an innocent incident had occurred, the very fact of this silence and lack of proper explanation is extremely worrying in itself; and his failure to explain it in those terms is inexplicable if it were the case, as he had nothing to lose by so doing. As a result of these observations and my findings discussed above relating to his inconsistencies and unreliability, I cannot accept that there is any likelihood of his being unable to tell professionals or the court about some alternative innocent explanation for R’s injuries. There would be no logic in such a course. He has had numerous opportunities to do so, and what could be the purpose in so concealing an innocent explanation?

72 I do not believe his denials of there being an occasion between the time of the health visitor leaving and when he telephoned to go to the hospital when he suffered a momentary loss of self-control at a time of unusual stress and applied inappropriate force to R. I find that such force was applied by him to R during that afternoon or evening to cause those injuries, albeit we cannot know the exact actions. But we can know from the medical evidence the type of force and impact that would have been required and I rely on that medical evidence. In reaching these conclusions I have taken into account the whole of the evidence I have read and seen and heard and the submissions made by all parties. Therefore, I find that the threshold criteria are met in those terms.

73 I turn to the orders that are open to me to make and the welfare checklist. Bearing in mind those findings and considering the evidence of the father, Miss Van Rooyen, the social worker, Mr. Campbell and the Guardian, I consider the welfare checklist. I look at the possibility of reunifying R with her father and I look at the possibility of a Special Guardianship order being made to Mr. and Mrs. SQ. I look at them both in the round, bearing in mind the Art.8 rights of the father and R and R’s interests in remaining with her father if that would meet her needs. Turning comparatively briefly to the details of the welfare checklist:

· The wishes and feelings of R

I have no doubt that R loves her father as much as any fourteen month old does and can. If she could say so I am sure she would want a deep ongoing relationship with her father. I suspect that, given that she has been cared for by her foster carer primarily for almost the last year, she probably would want to continue to be cared for by her foster carer but that is not an option before me. I am sure that she would want to be cared for safely and in a loving home where her needs are met.

· I look in the round at her educational, emotional and physical needs, her particular characteristics and age, sex and background

She is a highly dependent infant going on toddler of fourteen months. She is a girl of a Muslim and mixed Pakistan/Indian heritage. Her father has observed already the need that she will have as she gets older for intimate care and input into her growing maturity as she becomes an older girl and the particular cultural background which requires that. I consider that she has the obvious fundamental needs for a stable, safe and loving home where all her needs are met. Her Mother has abandoned her due to the cultural strains upon this family. It is important both that her heritage is recognised, her vulnerability due to her mixed parentage in communities where strong views can exist as to such a mixed parentage is protected, and her cultural needs are met.

· In considering the question of harm

I have already referred at length to a number of findings made above and I consider that, although the circumstances have probably undoubtedly settled down in that the abandonment by her mother is now some long time passed and the emotional turmoil that the father was in in December 2013 is now over a year away and he will undoubtedly have grown and learnt through the process of these proceedings and the assessments and I accept that he has the capacity to learn more. While R was harmed at the hands of her father, the risk of future harm is probably low. But I do note the marked lack of insight into a child’s experience and a child’s emotional world and needs - in particular the father’s expression of regret at taking her to hospital at all and the very surprising request to film her sucking a lemon when she was quite a young infant and post it on You Tube for his and other’s amusement - although I do note that he has subsequently shown some ability to reflect on her feelings and attune himself to her during contact sessions. But nonetheless I consider that there is still, as Miss Van Rooyen pointed out and the social worker and Guardian were both concerned about, work to be done in terms of properly perceiving a child’s insight and emotional experience. I take into account (and in particular when looking at the capacity to meet her needs) that he loves R, that his contact is good, that he is described otherwise as a good dad; but there are those significant concerns about his insight and his empathy and his understanding of a very young child’s dependent needs. I do consider, given his experience of the past year and his expressions of regret and aversion to the involvement of professionals following R’s injuries, that there is a real risk that he would not seek medical or professional input if there were any future incident/accident or other need that might bring professionals to examine his care of R. I take into account, although it is a far from determinative factor, his practical circumstances and the level of uncertainty facing him because he is an asylum seeker with an insecure financial and accommodation resources available to him. It is not determinative and R would undoubtedly be a child in need who might trigger the provision resources if required, but it is nonetheless an uncertain element in terms of his capacity to meet her needs.

74 By contrast, Mr. and Mrs. SQ are proved parents who have three grown and well educated and emotionally stable children. They have had a very impressive assessment of their skills in the Special Guardianship report available to me. They have been shown to be very committed to R and not just to R, but to R’s ongoing relationship with her father. They have shown themselves to be very loving and to be able to develop their insight, so that the professionals have all expressed their trust in Mr. and Mrs. SQ’s ability not only to meet R’s needs but to be appropriately supervisory and protective as necessary. They have had some financial difficulties recently, but this is not determinative of their ability to care for R, and I have been assured of their wider family’s ability to assist them meet necessary outgoings.

75 Therefore, looking at the overall impact of the welfare checklist and the range of powers available to me - making no order, Special Guardianship order, child arrangements order, a supervision order - I consider it is overwhelmingly in R’s best interests to be cared for by Mr. and Mrs. SQ under the auspices of a Special Guardianship order which gives them enhanced parental responsibility. This will enable them to fully take control of an appropriately open and generous involvement of Mr. BL in R’s and their lives as is envisaged in the amended Special Guardianship plan that I have seen and the draft agreement. I accept the father’s arguments that if I make such an order there should be a child arrangements order to establish a minimum level of contact during the settling in period and during the currency of the supervision order, which will also facilitate the Local Authority’s involvement with a review process and which will then establish that thereafter it will be at the Special Guardians discretion with their enhanced parental responsibility powers. As I say, there is a highly appropriate plan to build Mr. BL into R’s life in a managed, supported and supervised manner ensuring that R builds on a safe, deep, ongoing relationship with her father.

76 I have seen the Special Guardianship plan and I approve it. I agree finally that there should be a supervision order to the London Borough of Newham - and I am grateful to them for agreeing to take it on notwithstanding that R will move shortly to live with Mr. and Mrs. SQ in a neighbouring Local Authority - and that that should last for twelve months to support the new arrangement, review contact and provide a foundation for the written agreement between the parties. I simply conclude by saying that I am extremely glad that there has been this very fortunate option available to R and Mr. BL and to express gratitude to the parties, to Mrs. Khan for her services and to the parties’ representatives for their assistance in this case.

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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> R BL (Supervision Order), Re [2015] EWFC B36 (13 February 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B36.html Cite as: [2015] EWFC B36

England and Wales Family Court Decisions (other Judges)