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IN THE FAMILY COURT
(Sitting at Newcastle upon Tyne)

No. NE17C00788

The Law Courts, Quayside
Newcastle upon Tyne, NE1 3LA
Wednesday 23 May 2018

Before:

HER HONOUR JUDGE MOIR
(In Private)
B E T W E E N:

		NORTH TYNESIDE COUNCIL	Applicant

-  and -

(1)	AS
(2)	DA
(3)	AA
(4)	SS
(5)	ES

__________
MRS F WALKER (instructed by the Local Authority) appeared on behalf of the Applicant.

MISS H LOCKE, Solicitor, (instructed by Paul Dodds Solicitors) appeared on behalf of the First  Respondent.

MRS T TAYLOR, Solicitor, (instructed by Kidd Spoor Taylor Solicitors) appeared on behalf of the Second Respondent.

MR D PACK, Solicitor, (instructed by Beecham Peacock & Co) appeared on behalf of the Third Respondent.

MR J FLOWER, Solicitor, (instructed by Ward Hadaway) appeared on behalf of the Fourth and Fifth Respondents.
_________
J U D G M E N T
JUDGE MOIR: 
1	I am concerned with the welfare of two children, SS, who was born on [a date in] 2015 so now aged three years two months, and ES, born on [a date in] 2017 so aged 11 months.  Both are the children of AS.  SS is the child of DA and ES the child of AA whom, during the course of this judgment, I will refer to as “father”.  The children were made the  subject of police powers of protection which were exercised on 9 November 2017 and ICOs were granted on 10 November 2017.  SS was placed and remains placed with paternal grandparents.  ES, on discharge from hospital, was placed in foster care.

2	North Tyneside Council issued proceedings on 10 November 2017.  There had been no children’s services involvement with any of the parents or either of the children until 9 November 2017, when ES was admitted to hospital presenting with acute subdural haemorrhages, extensive bilateral retinal haemorrhaging and facial bruising.  The doctors who treated ES at the RVI thought at the time that there were two separate intracranial bleeds of different ages.  In fact, upon further investigation and examination, it was determined that there was only one subdural haemorrhage.  The clinicians were of the view that ES had been shaken.  SS was examined but there was no evidence that she had sustained any injury.

3	At the time that ES was taken to hospital, MC, the paternal grandmother of ES, was sleeping downstairs at the family property.  She had been staying for a few days to assist the parents in their care of the children and also because she said it gave her the opportunity to see both the children together.  Mother and father deny that they caused any injury to ES.  The evidence provided by MC was, quite frankly, bizarre and incomprehensible in that initially she denied any responsibility for causing ES’s injuries but, on 8 March 2018, she filed a statement within these proceedings that, on 17 November 2017 when she had ES in her care overnight, she thought that he was choking and so she shook him to relieve the choking.  She stated that she could not live with herself thinking she had caused the injuries to ES, which had prompted her to make the statement.

4	I heard oral evidence over six days from Matthew Clayton, a paramedic, Helen Buick, the allocated social worker, from mother, AS, father, as I have called him, AA and from the paternal great-grandmother, MC.

5	DA was represented throughout the proceedings, but it was not necessary for him to give any oral evidence.  The expert witnesses were not required to give oral evidence.  I read with care the reports provided to the court.  Reports were provided by Dr Rylands, consultant paediatrician, Mr Richards, consultant paediatric neurosurgeon, Mr Newman, consultant paediatric ophthalmologist and Dr Stivaros, consultant paediatric neuroradiologist.  I also had the opportunity to read the transcript of the experts’ meeting and the answers to the questions which had been posed to them on behalf of each of the parties.

6	Mother, father and paternal grandmother all accepted that the injuries sustained by ES were inflicted injuries.  The medical evidence that the retinal and brain haemorrhaging were caused by a single, forceful shake occurring on 9 November was accepted by mother and father and it seems probably by MC.  It is the local authority who bring this case and thus it is the local authority who bear the burden of proving it to the required standard of proof, namely the balance of probability.

7	Findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence, and must not be based on suspicion or speculation.  When considering cases of suspected child abuse, the court must exercise an overview of the totality of the evidence.  The opinion of the experts needs to be considered in the context of all of the other evidence and the court must be careful to ensure that each expert keeps within the bounds of their own expertise.  There is no question in this case but that the experts who provided evidence to the court were all distinguished experts, who were very well aware of the boundaries of their expertise.

8	The evidence of the parents and any other carers is of utmost importance.  It is essential that the court forms a clear assessment of the credibility and reliability of the parents and of course, in this case, MC.  A witness may lie for many reasons.  The fact that a witness has lied about some matters does not mean that he or she has lied about everything else.  I will make findings in this case that each of the witnesses - namely, mother, father and MC - have at times told lies within the course of these proceedings.  The legal concept of the balance of probabilities must be applied with common sense.  The court can have regard to inherent probabilities, but that does not affect the legal standard of proof.  The fact that a respondent fails to prove, on a balance of probabilities, an affirmative case that he or she has chosen to set up by way of defence does not of itself establish the local authority’s case.

9	I remind myself that, in addition, the court must guard against what has been called the insidious reversal of the burden of proof as described by His Honour Judge Bellamy in Re C & D (Photographs of Injuries) [2011] 1FLR 990 and also Re M (Fact Finding Hearing/Burden of Proof [2012] EWCA Civ 1580, per Ward LJ.

“There is in my judgment an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise, failing which there will be an automatic presumption that the bruise must have been an inflicted injury.  Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation.  As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove it”.

10	I bear this in mind when considering the bruising upon ES’s face which was seen on 9 November 2017.  The court must weigh up all of the evidence, whether given by an expert or given by lay witnesses.  In considering lay evidence, as per Macur LJ in Re M (Children) [2013] EWCA Civ 1147 at paras.11 and 12, but specifically where she set out:

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

11	I fully appreciate how difficult it must be for parents particularly, but also family members, to give evidence in a court which is an unfamiliar circumstance for them; and also in respect of matters which are so important to them.  It is not uncommon for witnesses to tell lies in the course of an investigation or hearing.  The court must be careful to bear in mind that a witness may lie for various reasons.  The fact that the witness has lied about some matters does not mean that he or she has lied about everything.  R v Lucas [1981] QB 720.  Where witnesses have made mistakes or told lies in their evidence, there must be an evaluation by the court.  In EPI Environmental Technologies Inc v Symphony Plastic Technologies plc [2004] EWHC 2945 (Ch), Peter Smith J said that the court should take into account the following:

“1.  It is essential to evaluate a witness’s performance in light of the entirety of his or her evidence.  Witnesses can make mistakes but those mistakes do not necessarily affect other parts of their evidence.

2.  Witnesses can regularly lie.  However, lies by themselves do not mean necessarily that the entirety of that witness’s evidence is rejected.  A witness may lie in a stupid attempt to bolster the case but the actual case remains good irrespective of the lie.  A witness may lie because the case is a lie.

3.  It is essential that witnesses are challenged with the other side’s case.  Often, a witness may face difficulties in recollection, particularly lay witnesses who do not have the benefit of being able to consult case records or notes of meetings”.  

12	In Lancashire County Council v The Children & Ors [2014] EWFC 3 para.9, Peter Jackson J said:

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

13	Again, I bear the advice of the learned judge in mind in approaching this matter, particularly when the events with which I am concerned occurred during a very short period of time when the participants in what was a traumatic incident were desperate about the welfare of ES.

14	In considering expert evidence, as per Ward LJ in Re B (Care: Expert Witnesses) [1996] 1FLR 667:

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

15	Clearly in this case, the evidence of the expert medical witnesses has not been challenged.  In considering the law which this court must apply, I consider those matters set out by Baker J in Re L & M (Children) [2013] EWHC 156 and more recently recorded by the President in Re X (Children) No. 3 [2015] EWHC 3651, which cases set out the various principles which the court must apply and those various principles to which I have just referred.  As I have already referred to, in this case, no one disputes the medical evidence which is presented to the court.  Neither is the threshold in dispute, save as to the identity of the perpetrator who caused the injuries to ES.  The threshold is set out by the local authority as follows: in order to establish that the threshold is crossed, the applicant relies upon the following.

“(a)  Whilst in the care of mother, AA and MC, ES sustained the following injuries:

(i)  acute subdural haemorrhage;

(ii)  sub-acute subdural haemorrhage;

(iii)  extensive bilateral retinal haemorrhages;

(iv)  triangular shaped bruise 0.5cm x 0.5cm to the forehead;

(v)  roughly circular bruise 1cm x 1cm to the right cheekbone.

(b)  These are all inflicted injuries.

(c)  The retinal and brain haemorrhaging were caused by a single, forceful shaking episode.  This occurred on 9 November 2017.

(d)  The bruising was caused by blunt impact trauma.  This was caused on or between 5 November 2017 and 9 November 2017.

(e)  Mother, AA or MC have inflicted these injuries on ES.

(f)  Mother, AA or MC have failed to protect ES from suffering these injuries.

(g)  Mother, AA and/or MC have all concealed the truth about the injuries inflicted on ES.

(h)  As a result of having witnessed and/or been exposed to the above, SS has suffered emotional harm.

(i)  As a result of being removed from the only home they know and being separated, both ES and SS have suffered emotional harm”.

16	Although MC does not need to answer to the threshold, she does so as to the findings sought.  Her position, as mentioned already, is confusing.

17	I turn then to the evidence which has been put before me in this matter.  Findings of fact must be based on evidence.  As Munby LJ, as he was then, observed in  Re A (A Child, Fact Finding Hearing, Speculation) [2011] EWCA Civ 12, it is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.  Further, in the case of Re A (A Child) [2015] EWFC 11, he emphasised that, if the local authority’s case is challenged on some factual point, it must produce proper evidence to establish what it seeks to prove.

18	In this case, the local authority has provided to the court the evidence upon which it relies to support the case it puts before the court.  When considering cases of suspected child abuse, the court must take into account all of the evidence and furthermore consider each piece of evidence in the context of all the other evidence.  As Dame Elizabeth Butler-Sloss, the President, observed in Re T [2004] EWCA Civ 558, evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

19	In considering cases of alleged child abuse, the court invariably surveys a wide canvas of evidence.  It must consider all the evidence and take into account each piece of evidence in the context of all the other evidence.  As Butler-Sloss, P, said in Re T and as was set out in Re U and Re B, evidence cannot be evaluated and assessed in separate compartments.  A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in coming to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

20	Mrs Walker, who appeared on behalf of the local authority, makes reference to the decision by Keehan J in A Local Authority v DB, RB & SM [2013] EWHC 406 (Fam).  She sets out at para.74 within her closing submissions, referring to the case that Keehan J decided:

“On the other hand and at least as important as the medical evidence for the judge was his consideration of the evidence of the mother and father.  Both were seen to be kind, loving and considerate people.  This was not a family with a history of violence or drug abuse.  The parents did not present with the sort of chaotic lifestyle that courts often see.  The contact between mother and father and the other children of the family was seen to be of a very high quality and so the question was how could this sit with an inflicted injury”.

21	It does seem that the case which Keehan J was faced with was very similar to this case which I must decide.  Mrs Walker continues at para.75:

“However, what the learned judge went on to find was that mother drank more alcohol than she was willing to acknowledge.  In this case, as will be set out further below, mother and father were less than open about the problems in their relationship.  MC either was always prepared to be hoodwinked by them or is not being honest either”.

22	I remind myself of the Lucas direction which is of course required.  This case is not about whether an injury was sustained or indeed about the mechanism which caused the injury, but about who inflicted the injury and the circumstances surrounding the infliction of the injuries.
23	The test the court must apply in seeking to identify a perpetrator is clear from the authorities.  The test of whether a particular person is in the pool of perpetrators is whether there is a likelihood or real possibility that he or she was the perpetrator - North Yorkshire County Council v SA [2003] 2FLR 849.  In order to make a finding that a particular person was the perpetrator of non-accidental injury, the court must be satisfied on the balance of probability.  It is always desirable where possible for the perpetrator of non-accidental injuries to be identified, both in the public interest and in the interests of the child; although where it is impossible for the judge to find, on the balance of probabilities, for example that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so - Re D (Children) [2009] 2FLR 668.

24	Clearly in this case, there is only one of three people who could have caused the injuries to ES: mother, father or MC.  Mother and father seek to have themselves removed from the pool, although do not actually blame anybody else.  When pressed, each was prepared to say it was not them and therefore must be the other or MC. At no stage did any of them state that it was one of the other adults present and that they believed that the other adult caused the injury.  Mother repeated in her evidence that she did not want to believe it and both mother and father repeated that they did not know how the injuries were caused.

25	I turn then to the body of the evidence, both written and oral.  As I have just referred to, there is only one of those three people who could have caused injury to ES.  The medical evidence as to timing is crucial.  I refer to the evidence of Mr Richards at E74.

“Timing is dependent on an accurate picture of his” - i.e., ES’s - “clinical state from carers and as described it is not entirely clear to me.  By the time he was behaving abnormally in terms of his posturing on the morning of 9 November 2017, the injury had occurred.  Events in the period leading up to this are not clearly described.  Given that there was a sudden, unusual sound, if that is accepted, then that may be the point of injury with him suddenly changing to a state of encephalopathy.  However, he was described in the early hours of the morning as not taking a bottle and this may indicate he had been injured at that stage, with the more acute behaviour that led to the emergency services being summoned being the first appreciation by the carers who had been in bed that things were not right.  If a point can be determined accurately by the court when he was behaving and interacting normally and feeding normally, then he would not have been injured at that point.  By the time the 999 call was made to summon assistance, he clearly had been injured.  The point of injury will be somewhere between the two, although whether it was at the point of change and parental concern or some hours earlier which, due to them being in bed, had not been appreciated, is not entirely clear”.

26	Of course, the court has had the benefit of the detailed oral evidence which the parents gave to the court, which Mr Richards had not had at the time that he wrote the report.  Dr Rylands also deals with the timing at E121 within the bundle and similarly, when Dr Rylands wrote his report, he had not had the benefit which the court has had of hearing the oral evidence.  At E122, para.95, Dr Rylands states:

“As clinical change is usually the best estimate for the time at which a subdural haemorrhage has occurred, the time of ES’s subdural haemorrhage is most likely to be immediately before he was first found to scream or make a strange, awful groan, noise, go rigid, go pale, be not responding normally followed by being drowsy and continuing unresponsiveness.  This was probably about 0430 hours on 9 November 2017.  The crying and unsettledness from 0200 hours to 0430 was described by the mother as not unusual for him”.

27	Para.97:

“ES changed significantly between around 0430.  His acute subdural haemorrhage almost certainly occurred within seconds or a minute or two prior to his changed behaviour as described in paragraph 95 above”.

28	At para.104 within the same report, Dr Rylands stated:

“When ES changed from being fairly normal to being clearly abnormal with signs of encephalopathy, a carer would know that there was something significantly wrong with ES.  His father and mother clearly recognised this.  Later knowledge that he had suffered a significant intracranial bleed would link any known inappropriate action and effect.  However, the parents were not able to identify any action of this type”.

29	Clearly, that position continued in the evidence which I heard in that none of the adults gave any description of any actions which could have been responsible for ES’s injuries.  At para.105, Dr Rylands states:

“A perpetrator of non-accidentally inflicted injury would be aware that the force involved and the nature of the action to cause a subdural haemorrhage was unreasonable in the context of caring as a reasonable parent for a child of ES’s age”.

30	Thus, I am satisfied that ES was injured immediately prior to his collapse.  The evidence which mother provided to me described ES as being unsettled, but said that there was nothing to make her think there was something wrong when she was caring for him.  She told me that he was just a usual, teething baby.  She said that he looked perfectly well and agreed that he was a perfectly functioning baby at 8.15pm when the parents went upstairs.  Mother also agreed that ES looked perfectly well when she and father went to bed at about 11.30 to 12 o’clock.  Father similarly said that, when he went to bed together with the mother at 11.30, ES looked fine.  He was asleep.  MC described that evening as just normal.  She saw no difference in ES’s presentation.  Mother and father went to bed about 11.30 to 12, she told me.  She then said she heard not a thing until she was woken up.

31	In her statement dated 12 December 2017 at C39 within the bundle at para.18, she states:

“Later that evening into the early hours of Thursday 9 November, I was woken up by AA shouting me.  I woke up quickly and went upstairs.  I believe AS said something along the lines of, ‘Something is wrong with ES’.  AS appeared hysterical.  I believe this was around 4.30am”.

32	Para.19:

“When I got upstairs, I recall that AS was standing at the top of the stairs.  AS was very upset and it was difficult to understand her.  I went straight into AS and AA’s bedroom to see what was going on.  AA was crying, ‘Mum, what is wrong with him?’  I believe AS was on the phone to the emergency services at the time”.

33	In her oral evidence to me, at first within that evidence, MC said to me that she could not recall whether AS came downstairs first and woke her or whether she heard AA shout, “Mum, mum”.  In cross-examination, she said:
 “I do recall AS did run down the stairs, opened the sitting room door and did say, ‘MC, there is something wrong’.”

34	MC said that she only remembered that this weekend.  Unfortunately, it is difficult to be satisfied that MC was being accurate in what she was saying to the court or whether she was seeking to align her recollection with the evidence of the mother and father.  Her written statement is clear as to her recollections.  MC said that she woke straight away and ran upstairs.  She said, “AS must have been upstairs first because AS was hysterical and on the phone”.  Save for the record of the time that the phone call was made to summon an ambulance at 04.44 hours and the arrival of the paramedics at 04.56 hours, the court is reliant upon what these three adults within the house say as to timing and what actually happened that evening.

35	During the course of that early morning on the following day, the parents were asked about what had happened as far as ES was concerned.  The father first gave an account to Matthew Clayton, the paramedic who attended.  The mother apparently “was too distressed to elaborate on the history the male had provided”.  Matthew Clayton, reporting the first account in time in respect of the injuries to ES, set out:

“The male reported that he was woken suddenly by the patient crying loudly.  When making an ascent to console him, he noted that the patient’s limbs were rigid and he was not responding normally.  When this episode stopped after approximately two minutes, the patient became drowsy and unresponsive, prompting the 999 call.  The male informed me that the patient had recently had his 16 week immunisations and had been seen at the emergency department in recent days, due to the patient’s parents becoming increasingly concerned that he had reacted abnormally to the vaccinations and had become dehydrated due to several episodes of vomiting”.

36	At 10.30am on 9 November, a history was given by the parents to Dr Bellis at the RVI.

“Mother reported ES woke at 2am and he was unsettled but looked well.  The parents were asked directly about how ES could have sustained injury but they stated that they were unable to explain it.  They denied any history of trauma”.

37	Dr Bellis also asked about the marks which had been noticed on ES’s face.  The parents described that ES’s sister, SS, may have accidentally fallen on him or dropped a toy on him.  The parents were interviewed later that afternoon by the police and they were again interviewed that evening at about 10pm or thereabouts.  They both provided Children Act statements, mother on 22 November 2017 and father on 21 November 2017.

38	When the court has only the accounts given by those persons most readily implicated as perpetrators, the reliability and credibility of those witnesses must be looked at very carefully.  As there are no independent witnesses as to the sequence of events concerning ES on that night, the court is reliant upon looking at the consistency of the evidence, not just in respect of what each person says occurred when asked to give a history of the matter themselves, but also as against the accounts which each of the other adults provides.

39	Of course, I recognise that an event of such upset and magnitude could cause panic and possibly confusion in attempts to recall the sequence of events later on.  Mother’s account in her Children Act statement at para.10 at C19 within the bundle describes:

“ES sleeps in a cot which is attached to my bed.  That night, he slept through until between 2 and 3am.  He was then whingy and making moaning types of noises, but these were normal noises for him and I assumed that he was teething.  I tried to give him a bottle which he did not want.  I tried him with water which he also did not want.  I changed his nappy, gave him some teething powder and his dummy and he then settled a little.  I am unsure whether we both then went back to sleep or whether he continued to grizzle a little, but he then woke up and was crying.  Whilst it is said in the hospital report that this was about 5am, I think it must have been earlier than that as I am sure that I called for the ambulance at 4.44am.  As ES was crying, he woke up SS.  SS shouted for me.  I nudged AA and said that I was going to settle SS and he would have to see to ES.  I then went into SS’s room and had been with her for two or three minutes when I heard a terrible noise.  This was a groan from ES the like of which I had never heard.  It was an absolutely awful noise.  AA then shouted at me to come because it was ES.  When I went back to the bedroom, I looked at ES and ES just did not look like himself.  I panicked and ran downstairs to where AA’s mum, MC, was asleep on the settee.  I woke her up and she ran upstairs and the two of them shut the door so that I did not have to see ES as I was distraught and to keep SS out and I then called the ambulance.  I did not touch ES until the ambulance arrived and the paramedics took him to hospital and I sat in the ambulance holding him”.

40	Father’s account in his Children Act statement at C24, paras.8 and 9, sets out:

“At about 4.40/4.45, AS woke me.  She said she was going to see to SS who had apparently been woken by ES.  AS later told me that ES had been awake from about 2am and she had not been able to get him back to sleep.  She told me that the noise he had been making had woken SS.  We sleep with our bedroom door open and SS’s bedroom door open.  The property is a two-bedroom property and my mother was sleeping downstairs.  AS got up to see to SS and I brought myself round, but still lying on my side of the bed.  I then heard ES make a strange grunting sound.  It was not the usual noise.  I rolled over to look in his cot and was alarmed to see him lying there on his back with his back arched and his arms held out wide.  I immediately picked him up and he was hot to touch.  He continued to hold his arms out rigid.  I was worried that he had had some sort of fit.  I panicked and began shouting for my mother and AS.  I cannot be exactly sure but I think AS came in first.  I remember her standing in the doorway in tears asking what was wrong with ES.  She looked in a state of shock.  She must have turned up first because I seem to recall my mother coming into the room past AS.  I pushed the door with my foot to make sure SS could not see what was happening.  AS was hysterical by this time.  

By the time I had removed ES’s baby grow to try and cool him down, my mother took him from my arms and put him down on the bed.  He was still holding his arms out rigid.  We keep night bottles in the bedroom and use water to cool them down.  I opened a bottle of the water and splashed it on ES’s face to try and cool him down.  I remember my mother opening his eyes and I could see that his eyes had rolled to the side.  My mother told me to open his mouth and to check that he had not swallowed his tongue.  I did so and I put my finger into his mouth.  I could feel his flat tongue so at least I knew he had not swallowed his tongue.  I then began rubbing and massaging his arms to try to relax them”.

41	In her police interview, mother described SS as screaming.  Then she wakes father with a nudge and goes to see SS.  After one minute, mother says she heard father screaming, “AS, it’s ES”.  Mother said she could not go through.  She was too scared.  ES was still crying and father shouting for mother to come here.  ES was making a horrible noise.  Mother went to get MC.  Father, in his police interview, said that mother says that she woke at 2am and ES was proper screaming.  It seems neither father nor MC heard this.  Mother fed ES and he took it all right.  Again, if she is correct, he could not have been injured at that time.  Mother woke father.  Father said that ES was making a funny noise.  Mother got up, sitting next to him, and said she was going to see to SS.  When on his own, father started to panic.  ES’s back was arched and father picked him up and screamed for mother and MC.  

42	MC was interviewed by the police also that evening, when she said she was woken by father shouting for her.  On going upstairs, mother was at the top of the stairs, outside the toilet.  If SS was screaming as mother stated in her police interview, bearing in mind the geography of the house, it is surprising that neither father nor MC heard SS screaming or thought to tell the police that they did.

43	In her Children Act statement, mother described SS as shouting for her.  Father, in his Children Act statement, describes mother telling him that she was going to see SS, who apparently had been woken by ES.  He did not mention SS shouting.

44	Father is described as a heavy sleeper.  On his account, he was unaware of any problem until he was woken about 4.40 either by AS or, according to his account to the paramedic, by ES crying loudly.  MC initially states that she was woken by father shouting to her and went upstairs and mother was upstairs by the toilet.  MC’s account remained the same until she gave oral evidence, when at first she could not recollect the order of things, but then said she had only just remembered the previous weekend, before giving evidence, that it was AS who opened the sitting room door to get her.

45	Mother said that, when AA shouted, “AS, come quick”, she panicked and ran downstairs to get MC.  I found MC to be unreliable as a witness.  I found her account given in her oral evidence of the shake when ES was choking, her confession in March, because she said she was so ashamed of herself, her continued castigating of herself, her lack of relief when the doctors had said she could not have caused ES’s injury because of the timing to be bizarre and confused.  Her repeated claim that she did not think she had done anything to ES but that “it was eating away at me” made it difficult to accept her as a witness of truth.  As Mrs Walker submitted, she oscillated between wanting to be in the pool or out of it.

46	MC denied that she, mother and father had colluded in a plan for her to take the blame so the parents would be able to get the children back.  She said they had never discussed her taking the blame.  According to the parents and MC.  They never discussed anything about ES’s injuries or discussed with each other how they were inflicted, save MC accepted some conversation on 9 November and the parents agreed that they discussed MC taking the blame.

47	The text sent by mother at C56 within the bundle, which was sent on 19 February 2018, reads as follows:

“Basically, they are saying that someone has definitely hurt ES and I think he has been hurt 42 hours before him taking poorly but I have never had him in my care at that time so now I am going to have to go against MC because she had him in her care and I hope she hasn’t hurt him.  It’s so bad”.

48	This text from mother again is confused and confusing.  There was no mention by the experts of any 42 hour period, but it is right that MC had ES in her care roundabout 42 hours before the discovery of the injuries to ES.  It could of course be part of a scheme to implicate MC, but it is not for the court to speculate and I do not do so.
49	Mother said in evidence that she did not want to believe someone had harmed her child, which is understandable but set against the background that ES had indeed been harmed and the parents were accepting that ES’s injuries were inflicted injuries.  It is also surprising that, even after the doctors exculpated MC, the parents maintained their rejection of MC.  If she was correct in her account and thought ES was choking and instinctively gave him a resuscitative shake which caused him no harm but seems to have stopped him choking, why then is father saying that his relationship with his mother was now rocky and not like it used to be?  MC had helped both mother and father out financially.  She was giving help and practical assistance when ES had been poorly.  She possibly had stopped him choking.  She certainly had not caused his injuries by the shake that she recorded, so why, it must be asked, was mother still not speaking to her, father saying that the relationship had been affected?

50	Mother said she would like to believe that it is her - namely, MC- and yet the medical evidence and the account given by MC ruled her actions out as a causative factor of ES’s injuries.  The whole scenario concerning MC is difficult to comprehend or disentangle.  Prior to ES sustaining his injuries, there had been a number of stressful situations and events within the household of mother and father.  ES had his injections on 1 November 2017 and was unwell thereafter.  The parents were so concerned that he was taken to hospital and, although not kept in, the parents did not return home until after midnight.  SS was not yet sleeping through, I am told, and only mother, according to mother, could settle her at night.  Mother maintained that she did not need help and liked to do everything herself.  Indeed, it seems that she did do everything herself.  She did all the night time feeds and caring without assistance from father.

51	MC in evidence stated that mother was shattered.  The parents both described ES as unsettled the night of 8/9 November.  It took them, according to the parents, two hours to settle him, so not a particularly relaxing evening.  Father had been working shifts with mother caring for the two small children, one born prematurely and, at the time the injuries occurred, only a few months old.

52	When father stopped working, money was an issue, although MC had helped them out.  Father had been found out by mother to be having an affair.  He said it was a one off.  Both said that the mother had confronted father.  Father said:

“We sorted it.  It was water under the bridge.  We bickered and had arguments and afterwards I was in the bad books”.

53	Mother said:

“I was upset.  He was upset.  We bickered about it but got over it”.

54	She went on to say, when asked why she had not told the social worker:

“We got over it.  It was water under the bridge, quite personal, not a concern at the time”.

55	I do not accept that the issue of the affair was as easily resolved as both mother and father now maintain.  When cross-examined, I find that mother was more honest and truthful when she said, “I felt my world had fallen apart”.  It was not long after she had given birth.  She accepted that there were heated arguments at first but continued to maintain that the upset was over in a few days and there were no major concerns about the relationship at the time; yet, she was texting DA, SS’s father, with whom she had maintained a friendly relationship, at C47 in the bundle:

“Will you help me?  I need out of this relationship.  I really do, but I need to move away without him knowing.  It’s went too far now and I can’t take it any more”.

56	At C49:

“I’m so fed up.  I’m basically being bullied into being with him.  He’s so horrible to me”.

57	Mother said that the bullying referred to the cheating and it was the only way that she could express it.  She did not want to tell DA about the affair.  She told me that DA had asked her to have an affair with him.  DA denied that he had done so and said it was the other way round.  I did not hear evidence from DA about this issue and I make no findings.

58	Upon the evidence before me, I cannot accept that the relationship between mother and father was anything other than troubled.  The texts indicate problems and it is naive to attempt to depict it as without real problems, referring to the affair as water under the bridge.  I am satisfied that the parents were well aware that it was relevant that there were problems in the relationship as far as the parenting assessment was concerned, but they suppressed the truth.

59	The parents lied to the social worker in the parenting assessment that their relationship was good, supportive and they had not argued.  Father stated that the social worker did not ask the right questions and said, “Shy bairns get nowt”.  It is indicative of the parents’ willingness to be less than honest in their report to others.  The adults were willing to lie about a number of matters in addition to the lies about their relationship.  Father had an affair and, perhaps unsurprisingly, had lied and concealed it from the mother.  All three adults lied about where father was living so as not to affect the mother’s benefit position.  MC either lied to the police at the outset and in her first Children Act statement or is lying now that the shake occurred at all.

60	It is impossible to place reliance upon what is said by any of the adults involved on that particular evening.  Mrs Walker very helpfully sets out at para.97 within her closing submissions: 

“The contradiction was apparent on the evidence before the court, whether oral, in statement form or within the police interview”.

61	More particularly, she also identifies the source of each piece of evidence to which she refers.  She sets this out at para.97.  I highlight those contradictions which I think are most relevant.  

“Mother stated in her evidence that, when ES woke about 2am, he did not want his bottle; yet father states that she told him that she had fed ES and he took it - G68.  Mother gave various times between 2 to 3am that she had woken with ES - medical bundle D85, G151, G181, G183 - although, when describing events to the police, does not describe up to two hours 40 minutes of being awake - G187 - and the account given to the court of trying the dummy, a bottle, checking his nappy, applying teething powder and checking her phone could not have taken more than a few minutes.

Mother states that ES was fine when she went to see SS - G188.  If this is right, then nothing had happened to him while she was caring for him.  Father states that mother woke him with a single nudge - G214; yet he is a heavy sleeper and ES was making a funny little noise - G73 - and was not crying.  Mother states that he was still crying when she left the room - G188 - crying and crying - G195 - screaming and upset - G216 - and that the crying continued when she had left the room.  Then it stopped - G222 to G223.  When mother left the room, father states that she said, “The bairn will wake up” - G121 to 122.  Mother states that SS was screaming - G150.

Mother states that she was out of the room for one minute - G150.  Then increased this to two to three minutes - G188.  MC stated that she was woken by AA shouting, ‘Mum, Mum, Mum’ - G245, G246, G252.  In evidence, she then went on to say over this weekend, having heard the evidence and challenge thereto, she had just remembered that mother woke her by coming downstairs, opening the door and shouting for her.  MC stated that mother was upstairs when she arrived upstairs.  Mother stated in evidence in chief that she followed MC up the stairs.  Mother states that AA and MC then shut the door so she could not see; yet she was able to see father sprinkling water on ES.  She also stated that she saw AA sitting on the side of the bed, holding ES, and saw his eyes as the bedroom light was on.

AA stated that he had not turned the light on, at no stage was sitting on the side of the bed and mother could not see what she stated she had seen from the vantage point she had in cross-examination.

The report from father to the paramedics was that he woke as ES suddenly began screaming - E33.  Father reported he was woken by a loud cry and went to console him - G47, C2 - and it was ES becoming drowsy and unresponsive that prompted the 999 call - G47.  Yet, mother and father maintain mother woke father up.

Mother, in evidence in chief, stated that she had changed SS’s nappy at some point after 4.40am; yet MC had to change SS’s bed as it was obviously wet from a leaked nappy and must have changed her nappy.  If MC is right, it suggests mother did not change the nappy or, if she did, she did so paying little heed to SS, as she did not notice the bed was wet.  She may have been paying little heed as she was distracted with what had happened to ES.

Father first made mention of hearing loss in an attempt to further distance from a woken child overnight as in his evidence in chief”.

62	Clearly, those are the inconsistencies which Mrs Walker identified in her closing submissions.  They are inconsistencies upon which I rely, save that I do not rely on Mrs Walker’s comment that mother might not have been paying much attention to SS as she was distracted with what had happened to ES.  This is speculation.

63	While I accept, as I said before, that panic may cause confusion in remembering thereafter, the contradictions highlighted are significant and not all explicable by confusion caused by panic.  No acceptable explanation has been given for the bruises to the face.  The account of SS causing them was not accepted.  The evidence of Matthew Clayton was persuasive that it was not the oxygen mask.  He was a careful and a patently honest and accurate witness.  Of course, it is not for the parents to provide an explanation or prove the bruises to be accidental.  However, the evidence of Dr Rylands that they were inflicted injuries was not challenged and thus the court finds that they are non-accidental bruises to the face which, according to the medical evidence, are without any explanation as to how they were caused.

64	The ABE interview of SS and her comments in the car and at nursery cannot be relied upon.  The ABE interview was of little probative value and the comments too vague and uncertain.  I do not take any comments or actions by SS into account in reaching my findings.

65	The medical evidence has not established any clear link between the bruises and the subdural or retinal haemorrhaging.  Therefore, I cannot make a finding of fact that they are linked.

66	MC’s evidence to the court was that, in a small house, you could hear everything; yet she says she was not roused from sleep until either father shouted or mother went downstairs.

67	The distilled and analysed evidence seems to support what Mr Flower set out at p.6 in his submissions.

“Mother awoke at 2am on 9 November 2017.  The father remained asleep.  Mother changed and fed ES.  She fell back asleep at some point.  Her recollections of this time are unclear.  Mother woke again, roused by SS calling for her and ES crying.  She nudged father into consciousness, left the room to attend to SS and, very shortly after that, ES made a loud noise and arched in his cot as if having a fit.  In these circumstances, mother would have had care of ES for all or some of the period from 2am to nearing 04.40.  Father would have had care of ES between the period of mother leaving ES with him as she went to see SS to the time he called mother and the paternal grandmother for assistance, which was put at a matter of minutes.  Mother’s evidence started at one minute and reached a maximum of three minutes.  The ambulance was called at 04.44”.

68	The difficulty for this court however is that I find each of the adults has been less than truthful with the court about issues concerning this family and these children.  The court can therefore place no reliance upon what each of them says and there is no independent evidence.  As they were prepared to lie about their relationship and the benefits, it is difficult to be certain that they have not lied about events surrounding ES’s injuries, particularly when there are so many inconsistencies in the evidence provided to the court.  The court should, if at all possible, identify the perpetrator.

69	Both mother and father had the opportunity to cause the injury to ES.  Both had been subject to stress in their lives leading up to 8/9 November 2017.  It seems both had been willing to blame MC and yet, on both their accounts of what occurred on that evening, she did not have the opportunity to cause harm to ES.  She was not left alone with him.

70	Further, I am satisfied that, if she had been left alone with him and had the opportunity, the parents would have been very quick to identify that opportunity for MC to have caused the injuries.  They did not do so.  I find it unlikely that MC caused ES’s injuries.

71	As between mother and father, I am unable to distinguish the perpetrator.  While mother had a longer period of time caring for ES than father, a shake violent enough to cause the injury only takes seconds.  Mother’s response to ES’s condition was noted to be strange by the father and MC and by Matthew Clayton, but people react in different ways to traumatic events.  Thus, it cannot assist me in identifying the perpetrator.  It is unlikely that the perpetrator sought deliberately to harm ES.  It is likely to have been a momentary response arising from frustration and stress.  Sadly, it often results in serious injury or death.  Presently, ES is reported as doing well and hopefully the sequalae to the shaking will be limited.  It is not yet clear.

72	As far as the parents are concerned, ES and indeed SS deserve to know in due course what and who has caused the disruption to their lives which means that, for the past six months, they have been separated from each other and their parents.

73	The local authority and the court need to identify the risk of any child being placed in the care of AS and AA, whether separately or together.  To assess the risk, the local authority and the court need to know exactly what happened on that evening.  The local authority is able to work with parents if they know what occurred and what was behind it.  I urge both parents, AS and AA, to think very carefully and provide an accurate account and explanation of what occurred that night so that the risk to SS and ES can be correctly identified.  If the risk can be identified, it may be able to be managed to the benefit of ES and SS.

74	Thus, I find the facts as set out and in accordance with the judgment that I have given.  There is also included of course failure to protect.  MC’s evidence and indeed the description of the household is of a very small household where everything can be heard.  I do not accept that mother and father were unaware of exactly what caused the injuries to ES, whether they were the actual perpetrators or a bystander.  I do not accept that there was never any discussion about it.  MC’s role in any discussions is unclear to me and I make no specific finding against her in that regard. 

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