London Borough of Barking and Dagenham v R & Ors [2022] EWFC 216 (B) (11 October 2022)

HER HONOUR JUDGE SUH:

1 This is a case involving the London Borough of Barking and Dagenham, R and E, who are the parents of N and D.

2 This is a fact-finding judgment. During the fact-finding hearing the London Borough of Barking and Dagenham were represented by Ms Hendrick, the mother by Mr Lafazanides, the father by Ms Wiseman, and the children, through their guardian, Ms Slaughter, were represented by Ms Choudhury. I am very grateful for the calm, clear and courteous way that counsel have given me great assistance during the hearing of this case. They have represented their client's interests well. I am also very grateful for the interpreters, without whom we would not have been able to have a fair hearing.

BACKGROUND

3 I am going to start by setting out the background to these proceedings by reference to issues that are not in dispute. I hope E, R, you will not mind me calling you "father" and "mother" during this judgment for ease of reference. The father came to the UK in 2018. He was on a visitor visa and had no permission to work and no recourse to public funds. The parties married on 30 December 2019. This was an arranged marriage. The mother came to the UK in September 2019, and she was around 19 years old when she came to the UK. The mother was on a student visa.

4 At first they lived with E's sister, and his parents were visiting during COVID. They then moved to a rented property for a number of months. They moved into a loft room in 2020, before N was born. They sub-let this from another family, so the parents lived in the loft room with N with an ensuite bathroom and the use of a shared kitchen downstairs. I think there were about 30 stairs from the ground floor to their room. The mother had an ectopic pregnancy before becoming pregnant with N, and this required an operation. The parents agreed that the mother was not very happy living at this property in December 2021, and the room was not very spacious for both them and the baby.

5 On 4 December 2021, the mother called the police and later went to hospital with N, alleging that the father had assaulted them both ("the first account"). In February 2022, the mother gave a second account of how N's injuries came about, and she explained that she had slipped on the stairs ("the second account").

Parties' positions and key submissions

6 The local authority's position is that they continue to seek the findings in their Scott Schedule. Ms Hendrick submitted that if the court could not be satisfied as to the mechanism of injury, then both parents should be included in the pool of perpetrators. Mr Lafazanides submitted that the marks on N's upper back, as recorded on the body map, were only witnessed by one doctor and therefore I could not be satisfied that they were there. He submitted that the marks seen on N were consistent with the mother's second account of slipping on the stairs and submitted that a number of marks on N could be mottling or eczema.

7 The father denies causing injury to the mother or to N. He denies a history of domestic abuse, or chronic excessive alcohol consumption. He said he was glad that the mother has now told the truth. Ms Wiseman adopted Mr Lafazanides' submission and submitted that the local authority had not come up to proof in relation to the injuries. She submitted that the injuries were not carefully checked by medical professionals over a period of time to ascertain whether they were bruises, or to help the court to draw conclusions about the level of force used. She highlighted the discrepancies in the mother's first account, and she submitted that a two-handed squeeze mechanism was not borne out by the evidence.

8 Ms Choudhury remained neutral on behalf of the guardian, but she tested the evidence before the court. She submitted the medical evidence was sufficient to allow the court to find that N sustained bruises. She highlighted that both experts maintain the first account of the mother was more consistent with the marks on N, and she submitted that the finding of a failure to protect N could be open to the court if the court accepted that the mother's second account was untrue.

THE LAW

9 I received a comprehensive agreed note of the law from counsel, which I annex to this judgment. I am very grateful for the work that went into it. I made sure it was printed out and given to the parents so they could go through it with counsel and their interpreters. I will make reference to the key legal principles as I analyse this case to ensure I direct myself with precision, but I make it clear the legal framework in its entirety, as agreed by counsel, is the one which I apply.

THE EVIDENCE

10 I may not mention every piece of evidence in what is already an overlong judgment, but I bear it all well in mind. I will give a broad overview of the evidence and then refer in greater detail to specific parts of the evidence when I look at the findings sought, and I will highlight the evidence I find most relevant and compelling. I am grateful to the local authority for the bundle for this hearing. There were a number of additional documents sent in electronically, notably additional statements from the parents, and access to the electronic police recordings. I remind myself to look at the broad canvass of evidence when making findings of fact, and the court must only proceed on findings of fact and inferences properly drawn, not suspicion or speculation.

11 In addition to the written evidence, I heard oral evidence from the expert, and the treating clinician. I heard from both parents. A note of all evidence was taken during the hearing, and I have been able to cross-refer to it in my deliberations. Where there was any potential ambiguity about the accuracy of that note, counsel were involved in ensuring we all had an accurate record.

12 There are a couple of considerations I will mention in relation to the interpretation of evidence. It has been alleged that one or other party was lying about some of the evidence, and I remind myself that people tell lies for different reasons, and just because a party lies about one thing does not mean that they are lying about everything. I remind myself that sometimes people lie to bolster a just cause, or out of shame, or a wish to conceal disgraceful behaviour from their family.

13 I asked counsel to take me through the structured approach in the case of Re A, B and C (Children) [2021] EWCA Civ 451. Ms Hendrick made submissions on each of the issues before the court, structured according to para.58 of that case, so that my Lucas direction can be tailored to the specifics of this case. I will record for ease of reference the submissions she made and my analysis them in the analysis section. Mr Lafazanides submitted the mother's first account was a lie, but thereafter that she has told the truth.

14 I remind myself that a witness demeanour, how witnesses come across can be for many different reasons, and is not necessarily determinative of whether they are telling the truth or not. Where evidence is indirect evidence or hearsay, I remind myself of the potential weaknesses of the evidence of this type, and the inability of counsel to cross-examine in relation to that evidence, notwithstanding its admissibility. So, the evidence of the residential unit, Dr Campbell, the writers of some of the medical and nursing notes, and the neighbours, fall into this category. The weight to be given to this hearsay evidence is a matter for me to decide.

15 I do bear in mind the significant passage of time which has passed since some of the issues which are in dispute. I am mindful of the vagaries of memory, which do not necessarily indicate untruthfulness, alongside the importance of contemporary documents where available.

16 I am going to look at the evidence now. I will first give a chronology of the case, which I think is important, from the written evidence, and then I will summarise the medical evidence, and the oral evidence given in court. These sub-divisions are a helpful structure, but I make it clear I look at the wide canvass and have oversight of all the evidence.

Chronological analysis of the written evidence

17 First, it is helpful to set out a chronology of events by reference to the written and recorded evidence. The court has heard evidence of a number of possible factual scenarios, and it is instructive to record what the bundle tells me about the order of events. I note that there has been some confusion around the numbering of the bundle and where a page number appears at both the top and bottom of a page I have referred to the number at the top of the page.

18 I look at the CCTV from a neighbour's house on 4 December 2021. It shows the father came home at 13:44. He does not appear to be unsteady on his feet. At 16:46 the neighbours come home. At 16:50 the mother leaves the home. She does not appear distressed, although it is hard to see anyone's face in the CCTV in any great detail. She pauses to look at her phone and she walks on steadily. At 17:11 the CCTV shows the father leaving the home. He walks steadily with hands in his pockets.

19 PH is the first person who provides evidence of speaking to the mother and seeing her after she left the home. He says in his written statement that he received a call from her at 16:40 asking if he required a lady to care for our children:

"I told R (the mother) that we did not require any help. Then R suddenly started crying on phone (sic) and said to me her husband had assaulted her and thrown her out of the house. She said she'd been standing around for an hour and didn't know what to do. I told her to come to our house."

20 He called her from the train and her phone was off. He rang the the housemate of the mother and father, who told him he had seen the mother in the kitchen half an hour again (sic) and she was okay. He received a phone call from the mother at 5:30 to 6:00 p.m.

"She told me she'd charged her phone in the shop and was now standing near the gym."

He met the mother at the gym, and at 6:20 took the bus with her to his home. He recorded:

"On seeing me she started crying and said she was suffering having been thrown out of the house. When I reached R at the gym she told me her husband had hit her in the face. On reaching home I saw bruising on the left cheek of R, a red rash on the left cheek of her daughter. R told us her husband has been assaulting her for the last two years and she didn't report him to the authorities as she expected him to reform. I was very upset to see the injury on the small daughter and R so I called the police."

21 PH's wife is called KH. She is the next person to record seeing the mother that evening after she left the home.. She says:

"At 5:00 p.m. I got a call from my husband telling me R had called him crying and had said that her husband had beat her and her daughter and removed them from their home.....At around half six she arrived here with my husband and her baby. She was in a very bad condition, crying, and her face was red. I would say she looked very upset. I asked her what happened and she told me her husband is drinking alcohol a lot and had started drinking alcohol that morning. She then said he'd beat her and her daughter and removed them from the house. She arrived at our address with pram. On her arm was a yellow Sainsbury's bag, and in the pram was her baby. The baby was sleeping when they arrived and that's when R showed me the baby's face, which had a mark."

22 The police are called to PH's house, and the mother gives an account to them of what has happened through LanguageLine. This is captured on body worn camera. The officer in the case repeats in English what the interpreter has heard from the mother:

"It's been going on for two years, verbal and physical assaults. Today he slapped her and pulled her hair and also laid hands on their baby."

The recording shows the mother appearing upset and the baby cries throughout some of the recording.

23 Photos taken of the mother's cheek and N's cheek at PH's house are in the bundle. These were not taken by a professional but purport to show a red/blue mark on the mother's cheek and a mark on N's cheek, and a mark about N's right hip. PH took a video of Ncrying, which seems to me to be taken in order to show a mark on N's cheek.

24 An ambulance is called at 20:28. They arrive at 21:55. They leave the scene at 22:10, and they arrive at hospital at 22:16. Clinical handover is at 22:30. There is no mention of an interpreter being available in the ambulance. The police were in the ambulance, and the Ambulance Service record there was a language barrier with the mother to get the accurate details of the event. The body map that the ambulance provides shows bruising/contusion to the head and hip. It is clear from the medical notes the trauma team were called on the mother's arrival at hospital with N. An account is then given to the police, the treating clinician speaking Hindu with the mother. This is recorded at H40 of the bundle and H24 in the police notebook, and by body worn camera.

25 The police summary in writing in the bundle was no substitute for watching the entire recorded interaction. For example, the police notes do not make it clear that the doctor is taking the history in Hindi rather than a professional interpreter. I will record the main points here. The doctor reports:

"Basically this mum described it happened between 4:30 and 5:00 p.m., just before 5:00 p.m. It happened in the loft. Mum, dad and baby were there. The other family were out. The father has a regular habit. He is drunk and starts abusing her. The mother said the baby wants and be quiet."

26 The record of the body worn camera interpretation is:

"He picked up the baby, pinched her cheek very hard, pulled her hair at the front, he picked up the baby, shook her five times a little bit hard. The baby's cot was there. He dropped the baby, not gently."

The doctor then shows, imprecisely, a height that looks like approximately half a metre:

"The baby became drowsy slightly and started crying. No exact loss of consciousness. No up rolling of the eyeballs, but the eyes went here and there. The baby was crying and then quiet for some time. He slapped mum on both cheeks three times, pushed her so hard her leg hit the drawers. He pulled her hair as well then took her by the wrist and dragged her out of the house. She came back saying she wants her kid, but since then the child was in her hand and she did not drop the child anywhere. Dad put the bag and put the baby's everything, bottles diapers, and put mum and the baby outside. He got the pram from upstairs. Mum waited 5 to 10 minutes to see if he would let her back in and was confused what to do so got a bus to her cousin's house."

The body worn camera shows the mother showing her phone to the medical staff. The treating clinicians complete a body map at 23.00, and a safeguarding booklet. The treating clinician makes an entry in the medical notes at 01:15.

27 The police footage from 4 December 2021 showed their attendance at the family home in the meantime whilst the mother was absent, and they take photos of the parents' loft room. There is an account given to the police by the mother via LanguageLine on 5.12.21 at 10:02. That is at H29 of the bundle. I am going to call that "the LanguageLine account".

28 The mother gave another account to the police in interview on 5 December (H91 and H173). This was not audio or video recorded. It is described as an ABE interview in the police bundle, and I will refer to it as "the ABE interview" as a shorthand, but I make it clear it is not a formal ABE interview. This was taken between 17:17 to 19:44.

29 The father gave an account to the police in interview in the early hours of 6 December 2021. I have watched this and seen the note of it at H48 in the police disclosure.

30 An account was given to the social work team on 7 December 2021 through LanguageLine by the mother. They also spoke to the father in preparing their first statement.

31 The first involvement of the court was when they made an interim care order on 10 December 2021 and N was discharged to foster care. On 22 December 2021,the housemate, gives a statement to the police. On 31 December 2021, RL, housemate, gives a statement to the police. The police records show on 2 January 2022 the father's bail conditions were not extended. The matter was before HHJ Thain on 13 January 2022. I have the position statements for that hearing in the bundle. The mother's position statement was that she had separated from the father and had no intention of resuming her relationship with him. The guardian's position statement records the mother's position as being she will not reconcile with the father given what she has described as domestic violence. The guardian's position statement also records the father might be prepared to reconcile with the mother if she apologised to him.

32 The court approved the mother's move to a residential unitwith N on 13 January 2022. HHJ Thain ordered a residential assessment of the mother at that hearing. The mother arrived at the residential unit on 14 January 2022. At the time of arrival at the unit, the unit record that the mother told them she had separated from the father, and reported domestic abuse, and that the father assaulted N. For the chronology, on 16 February 2022, AM, a child housemate, gives an interview to the police. The residential unit record the mother speaking to the father on 19 January 2022. The father was asked in evidence when he started speaking to mother again. He said he did not remember exactly, but about a month after the bail conditions lifted, and the mother accepted she was speaking to the father around then. On 24 January 2022, there was a hearing before HHJ Thain, where she ordered PEth testing and hair strand testing for the father.

33 On 8 February 2022, the mother gave an interview to the police. She made "no comment" to all allegations put to her, or responds to questions by reference to her prepared statement. She does, when asked if she pinched or squeezed N says: "How can you say that I've done it" but otherwise gives a "no comment" interview. Her pre-prepared statement says:

"On 4 December 2021 my husband was ignoring me and this upset me. I collected items for my daughter together with a carrycot. I went to the leave the property and I was carrying a Sainsbury's bag on my arm with the carrycot. I had my daughter in the other arm. As I was walking down the stairs, my foot slipped, and the bag and carrycot went down the stairs. I protected N using both my arms. I believe that's how N sustained her injuries. I've never neglected or assaulted N. I've never left her alone for long periods of time."

34 She gave a second statement during that interview that says:

"I wish to clarify I did not leave N upstairs crying. I have not left her alone. The other family that I used to live with left their children alone in the property and told me to look after the child. I had a bathroom attached to my room so I did not have to go downstairs. If I wanted breakfast I would take N downstairs with me into the kitchen."

35 The mother gave a statement in these proceedings on 14 February 2022 in which she said she had had an argument with the father, she was going downstairs with her pram in her left hand and N in her right hand, and a bag on her arm. She said that 20 steps down she nearly slipped, the pram and bag fell out of her hand, and N was about to fall. She said she banged her head on the banister and whilst stopping her from falling she grabbed her tightly.

36 I have hair strand tests for the father dated 22 February 2022. The findings suggest that he consumed chronic excessive levels of alcohol in the period from end of October 2021 to end of January 2022. The PEth showed a level not in the excessive range. This means no biochemical evidence of recent excessive alcohol intake, and the PEth covers one month prior to the sample collection. On 24 February 2022, the father gave an interview. That is at H169 of the bundle, and I have seen a recording of it. It is a "no comment" interview to the police.

37 At the time of the midway report on 9 March 2022, residential unit reports that R denies the relationship was abusive, and she does not feel that E should be punished for her mistake, namely that he had assaulted N. The final report from the residential unit is 22 April, and they record no indication that R would harm her child physically and point out many positive things about her parenting.

38 The father's parenting assessment is dated 25 April 2022, and it is in the bundle. I will highlight some key observations of the parenting assessor. The parenting assessor meets with both parents and says:

"It appears to me that there are significant difficulties in the relationship. Neither parent agreed with this. They state they are being in daily phone video contact and this is a source of comfort in very difficult circumstances. Each parent remained rooted in the position that they are going to jointly care for their children and therefore the issue of future contact arrangements is not relevant."

39 Further on in the report, at E159, the reporter records:

"E states there has not been any domestic abuse in the relationship and neither had he roughly handled or caused harm or injury to N."

At E162 she records:

" E does not accept the results of the hair strand test."

At E164:

"E's view is that the injuries sustained by N are accidental."

At E171 she says:

"E has shown little willingness to discuss how the allegations point to relationship difficulties. He places the allegations made by R in the context of her making a mistake through being stressed and also annoyed with him for not being able to afford to move into larger accommodation."

40 I have a psychological report of both parents dated 30 April 2022. Dr Campbell says that he tried to explore the local authority's concerns with the mother. He says:

"My attempts to explore a lot more than this did not succeed. She was not, for whatever reason, coming across as inclined to open up. I asked her whether there were problems in her relationship with her husband, she said: 'Our relationship is fine'. I asked what about the aggression allegations in the papers, she said: 'I said in my first statement that he was but in my second statement I told the truth'. I asked her why she didn't tell the truth in the first place, she replied: 'Because as a mother I wanted to hold onto my child'. I commented it was a strange lie to tell and she said: 'Yes I regret it'. I said: 'Your husband could have got not serious trouble with the police', she said: 'I didn't think about that. I regret it'. R came across as inclined to reveal nothing negative to me, or almost nothing."

41 Dr Campbell spent time speaking to E:

"I asked who he thinks caused the injuries and he said: 'I don't know. Then my wife went to say I fell to the hospital and the hospital called the police'. I read out the allegations R had made to E and he replied: 'That's all a lie'."

Dr Campbell's view is:

"E's closing of ranks is not quite so complete as he believes his wife caused the injuries."

42 An addendum report from the residential unit was ordered and came in on 25 May 2022. On 10 May, HHJ Thain approved a move to a mother and baby placement for N and her mother. D was born soon after. On 21 July, HHJ Thain made an interim care order in relation to her. On 28 August, HHJ Thain gave directions preparing for a fact-finding hearing. On 14 September 2022, was the first hearing before me, when the local authority were having difficulty getting hold of the treating clinician. I addressed that issue and listed a pre-trial review on 21 September 2022. The fact-finding hearing was held between 26 and 30 September 2022.

Medical evidence

43 The treating clinician was the paediatric ST4 who examined N on arrival at hospital. Her written report of 17 December 2021 records what is seen broadly on the body worn camera footage. She records the mother's report that:

"N's father, E, was intoxicated at home and began to shout at R and N. R tried to reason with E, asked him to be quiet as she wanted to put N to bed. E then picked up N from her cot, pinched her left cheek, pulled the front of her hair, lifted her up and shook her five times. He then squeezed her chest with his hands for one to two minutes, dropped her from a height of approximately 50cm onto a cot mattress. Following this N was drowsy for quite a few seconds and then began to cry. During this time E slappedR three to four times, pulled her hair, pushed her onto a cabinet causing her to knock her left leg."

44 The examination, which is recorded at E6, shows no bruising swelling or areas of tenderness to N's scalp. The treating cliniciansets out the body map findings. Those which are material are: mark 1, the upper back central left erythematous patch 1 x 1cm; mark 2, the upper back central left erythematous patch 1 x 0.5cm; mark 3, the lower back overlying left hip 2.5 x 1.5cm red patch of skin; mark 6, upper back right 1.5 x 1cm red patch and 1 x 0.5cm red patch, and, finally, mark 11, the left cheek 2 times erythematous circular marks 0.5cm and 0.3cm diameter. I note where the treating clinician thinks a mark is consistent with eczema, she says so expressly, that is mark 7 on the abdomen.

45 The report of the treating clinician says that:

"N had several findings on her body map examination, in particular over the front and back of her torso, left check, and left arm. Marks to N's torso, 1, 2, 3 and 6 on the body map, appear consistent with a history of being squeezed, and marks to the left cheek, number 6 on the body map, also appear consistent with a history of cheek pinching. Given N is non-ambulant she is extremely unlikely to obtain these marks from accidental injuries and therefore the injuries described are likely to be inflicted and consistent with physical abuse."

She goes on to say:

"On N's skeletal survey and MRI brain there do not appear to be any acute or healing fractures or brain haemorrhages, although these may not necessarily have occurred with the history of physical abuse that R describes, which is shaking, squeezing and pulling of hair. Although there are no confirmed scratches on the initial skeletal survey this will be repeated in two weeks' time."

46 The body map and the treating clinician's reports draw on the contemporaneous written medical notes, which are clearly written and detailed. The documentation in the notes is prepared by the treating cliniciansand is thorough and detailed. The body map is a meticulous piece of work dealing, for example, with the BCG scar on N, which is a relatively small mark. It is prepared by both the treating clinicians and they both sign it.

47 I will look at the oral evidence that the treating clinician gave. The treating clinician was a careful witness who gave the impression of wanting to be accurate. She openly said when she could not remember something, and her responses were considered and thoughtful. She maintained that the marks which she saw, which were eczematous, were indicated on the body map, and that mark 6 was not one of them. She declined to speculate or go beyond what she had observed. The treating clinician said, from her notes: "The mother said father lifted N up and squeezed her chest between his hand for several minutes". Ms Wiseman asked her: "Are we to assume that was a two handed grip?" The treating clinician declined to speculate saying: "Thinking about the size of the child, or the age, we might have thought that, but without a full indication we cannot know for sure". Ms Wiseman asked her: "What injuries would you expect from a squeeze around the chest, a two-handed squeeze?" and the treating clinician said: "I'm not sure I can comment on that". She did accept that she did not see marks on the front of N's chest or armpits which might suggest thumb pressure on the front of the child.

48 She described the process of taking a history from a patient as starting with an open question and then clarifying with more specific information. This description appears consistent with the body worn camera footage in which the treating clinician takes a history and the mother does most of the talking, uninterrupted. The treating clinician was clear in relation to Ms Choudhury's questions that she can tell the difference between mottled skin, bruising and eczema. She said if the mother had mentioned eczema this would have been included in the history section of the safeguarding booklet.

49 I look at the written evidence now of Dr Mittal dated 30 March 2022. He is a consultant paediatrician. He is open that he has not personally examined N. He says:

"I've not seen the colour photographs of the imagery and I'm providing a report on the basis of the documents."

He picks up that there are no concerns about N's growth and development. He points out that N was a babyat the time of presentation at the hospital, and at that age a baby is concerned non mobile as they are not able to move on their own at this age. He says there is no evidence of any medical or organic cause from the review of medical records, and all radiological investigations and brain scans have been reported as normal.

50 He looks at the injuries and sets out those which are significant. In his opinion, those are mark 11 on the body map, mark 2 on the body map, and mark 6 on the body map. He says:

"I am aware the mother has provided different explanations to the hospital and the police. If the court accepts the explanation provided by the mother in the hospital then the mechanism of injuries may be consistent with the injuries seen. The cheek has a thick buckle of fat. The common mechanism to cause a bruise on the cheek is by squeezing or pinching with force. The marks on the left lower back and right upper back could be caused if the baby is held tightly with significant pressure. The explanation provided to the police that the mother slipped on the stairs is not specific enough and not consistent with the injuries seen in N."

51 He records the father's description of an incident in the father's statement:

"She picked up N from the bed, flung her over her shoulder quite aggressively. I cannot remember if she picked up the bag first or N, but she also picked up the baby bag and put the milk bottles in there."

Dr Mittal says:

"The above mechanism may be consistent with the injuries on the back. However, it does not explain how the injuries occurred on the left cheek."

52 In his second report he clarified that he had seen additional updating information. In court I asked him what he had seen, and he confirmed it included videos, photos, the additional statements, and the police disclosure material. He does not change his view as a result of the photos he has seen. He says in relation to the red patch above the left buttock: "Please note this was actually the right buttock but the examining doctors describe it as the left buttock". This was not a point that was highlighted in submissions to me, or the subject of questioning, and it seems to me it is the only point where he departed from the treating clinician's view or questioned the accuracy of her recording. In answer to written questions which pointed that there are no intercranial injuries or subdural haematoma, he replies:

"As per current medical literature the intercranial injuries including subdural haematoma and retinal haemorrhages in abusive head trauma are caused by rotational acceleration, deceleration forces following violent shaking. It is not necessary at these injuries would be present in cases of alleged shaking".

53 Dr Mittal gave oral evidence, and he explained that he is a paediatrician with 30 years' experience. He has held roles specifically related to safeguarding.

54 He gave his evidence in a balanced and reflective way. Mr Lafazanides put to him the mother's explanation that the injuries were caused when she fell down the stairs. He says: "I do not accept that explanation for the marks on the cheek. It's possible the marks on the back could have happened from a fall downstairs". He did not accept the child's head hitting a banister could cause the marks on the cheek. Ms Wiseman asked him what injuries he would expect to see if the baby was squeezed. He said it is difficult to make an interpretation of that, but he thought the body map was consistent with a child being squeezed. Ms Wiseman pressed him and asked whether the mark on the back was more consistent with a one-armed hold rather than a squeeze, and he replied "Yes". She asked: "Is the mark on the back more consistent with the mother's second account than a squeeze" and he replied "Yes". But he maintained his position that there was no explanation for the mark on the cheek in the mother's second account.

55 To summarise the medical evidence, the treating clinician who heard the mother's first account, and examined N, found the marks on the body to be consistent with the history given to her by the mother, and Dr Mittal's view was that the mother's first account was consistent with the totality of N's injuries, and he did not resile from that in the witness box. I remind myself it is a judge's job to decide a case and not an expert, and that the medical evidence is one part of the evidential jigsaw, so I look now at the parents' accounts.

Parents' evidence

56 The evidence of the parents is of utmost importance, and it is essential that the court forms a clear assessment of their credibility and reliability (Re B-R (Proof of Facts) [2015] EWFC). The parents must have the fullest opportunity to take part in the hearing, and the court is likely to place considerable weight on their evidence and the impression it forms of them ( Re W and Another (A Child: Non-Accidental Injury) [2003] FCR 346).

57 The court ensured, and I am grateful for the assistance of the solicitors, that there was a translated bundle of main documents as well as the English bundle.

58 I am not going to read out all of the parents' written statements, but I have read them and re-read them several times and will refer to the key points in my analysis. I will record the impressions the parents' made on me in court. With both parents I bear well in mind that they gave their accounts through a court appointed interpreter. When evidence is being translated there may be times where clarification is needed, or the meaning of words in translation needs further elucidation. I bear that in mind and caution myself that the parents should not be placed at any disadvantage due to the use of interpreters.

59 Towards the end of the father's evidence, Ms Wiseman alerted me to the fact that her instructing solicitor was concerned the father may be criticised for being elusive due to interpretation difficulties, and I am alive to the impact of interpreters. We have had two court interpreters throughout. I stopped the proceedings. The interpreter in the witness box with the father at that time confirmed to me that he was relaying the questions faithfully. The interpreter who was listening and not actively engaged in translation at that point did not raise any concerns with the quality of interpretation when I asked him. I asked all those involved to stop the proceedings and tell me if there were any further difficulties. No one did, and the matter was not raised in submissions. Similarly, the mother's evidence was that previous interpreters at the residential unit came from a different area and had a different accent. I checked that she could clearly understand the court interpreter, and she said she could. So, I make full allowance for the use of interpreters, and the stress of coming to court, when I look at the parents' evidence.

60 However, even making full allowance for the use of interpreters, the father did come across as evasive. He frequently asked for questions to be repeated and answered questions with questions of his own. I have re-read my notes carefully. The questions asked by counsel were clear and specific in the English version. When he had trouble understanding longer questions, counsel broke the points down. I accept that nuance may be lost in translation, but many of the points the father queried were not complex ones, and many of the questions he asked to be repeated involved Ms Hendrick quoting back to him his own interview or statement. For example, his own statement in English states that the mother flung N over her shoulder quite aggressively. When Ms Hendrick puts this to him he asked for it to be repeated five times.

61 I have reviewed all the questions asked by each counsel, and it seems to me the father was more inclined to ask for a question to be repeated or answer it with a question of his own when the points being put was less favourable to the parents' positions. For example, he answered all questions from his counsel and the majority of the questions from Mr Lafazanides without requests for repetition or rephrasing. He said to Ms Hendrick: "I know you have your questions but I want to say what I want to say". He answered several questions with elaborate digressions from the points put. At times he came across as combative.

62 I gained the strong impression he was resentful of Social Services stopping him seeing his daughter. He spoke in idealised terms about the vision he had of N's growing up and taking her to the park. He said he was not angry with his wife for lying in her first account and had not asked her why she did this. Overall, the impression I formed of the father was not of a very convincing witness.

63 The mother's evidence-in-chief, when speaking about N, was open, detailed and spontaneous. This was in sharp contrast to her answers in cross-examination. Again, I make allowances for the nature of cross-examination, which make someone feel defensive. However, many of Ms Hendrick's questions received the formulaic response: "I lied at the time and I told you why I did lie". The mother shut down any train of questioning that tried to put to her a narrative different from her own. For example, Ms Wiseman asked her about whether she was thinking about getting E into trouble during the time she left the house on 4 December. She said: "I can't say anything at this moment" and when pressed: "I don't want to say about this".

64 Several matters were raised by the mother in the witness box for the first time. For example, she said she was wearing bangles which broke when she slipped with N on the stairs. She said that PH was drunk when the police arrived and that is why he lied about the bruising he saw on her face. She maintained her second account in the response to any questions asked by Ms Hendrick. She did not wish to reconsider her position when she was asked to do so repeatedly. Sometimes, when she was asked a question that got to the heart of the issues, she would reply at length, and tearfully, about how much she loved N. For example, she gave this response when Ms Choudhury asked her if she had failed to protect N.

65 Listening carefully to both parents in the witness box over a number of hours I noticed some subtle similarities in the themes that they both returned to, and some of their phrases. They had different interpreters, but sometimes the translation of their turn of phrase was similar. For example:

(1) The father said: "I only drink to my limit when I feel I am in control. The mother said he would only drink as much as he could manage. Their similar form of words was picked up by Ms Hendrick and put to the mother. The mother pointed out herself she was not in the room when the father gave his evidence about drinking, which made the similar response even more striking.

(2) The father said he was happy to improve: "If we need to sort out a better way we will do that. We are here because I want my child" he said. The mother said: "Don't take the child away from me. Whatever you want me to do I will do and my husband will do". Both parents digressed to give a response about how they were willing to change, willing to work with the social workers, and willing to do anything to keep N together. This was not in answer to the question asked, and I noted they both gave these assurances when pressed hard by counsel on points that might have been viewed as unfavourable to them (for example, when Ms Choudhury put to the mother she failed to protect N, and when Ms Hendrick put to the father that he said in his first interview that the mother was a hundred per cent responsible this was the response).

(3) Both stressed the mother is a new mother immature. She described herself as childish.

(4) Both referred to hormones as a possible reason for the mother being emotional.

(5) Both highlighted how difficult it was for the father to be away from his children.

(6) Both stressed how they were well educated.

(7) Both asked rhetorically who could hurt a child.

(8) The father's written evidence suggests the mother's bruising might be caused by cramps, and the mother suggested in the witness box she suffered cramps that might cause blue spots on her skin.

Some of these similarities might suggest they had an agreed line to take, or some of them may be sheer coincidence.

ANALYSIS

66 Before I look at the specific facts to be found I want to make some general observations about what life was like for N's parents. The parents had been married a short time when COVID hit. The mother had an ectopic pregnancy. They were a young couple living in a culturally different country to their country of birth, and although they have some grasp of English it is not their mother tongue. The loft room is cramped. They had to go up and down stairs to the kitchen. The father worked long hours. The mother was often alone with N. COVID restricted her ability to go most places, except the park. They did not have an extensive network of family and friends. The mother had her own mother or sister-in-law on the phone. The mother described being tired and lonely. Health visitor appointments seemed to have been on the phone, and they were not entitled to any state benefits. The mother wanted to move and was not happy at the property. The immigration status of both parents was not settled, and in written evidence both referred to strains in broader family relationships. They were socially isolated.

67 When asked why she rang PH, the mother said: "I only knew him". He was an acquaintance rather than a close friend. Clearly this was a difficult time for the family. The mother was considering an abortion when she became pregnant again, and the father did not want her to do this. I think the reason she might have been considering this was because things were so hard for her. I know now that she loves N and D. I do not criticise her for considering her options when she became pregnant for a second time. She accepted in the witness box that she was at breaking point. From what both parents said in court, they had a disagreement about their living conditions when the father came home from work.

68 Against this background, I remind myself of the case of B-R (Proof of Facts) [2015] EWFC 41 in which Jackson J sets out risk factors and protective factors in cases such as this. I can see that there were a number of factors that increased risks within the family. There were many protective factors missing, like a supportive family environment, household rules and monitoring, enough money, good housing, access to face-to-face healthcare, and caring adults who might have provided a role model, or been mentors, or provided community support. The presence or absence of any particular factor proves nothing. Children, of course, can be well cared for in disadvantaged homes, or abused in fortunate ones. Each case turns on its own facts. But the analysis above, nonetheless, provides a helpful framework by way of background against which I must establish the facts in this case.

Injuries

69 The first question I need to answer is: what injuries, if any, were there on N? This is the local authority's allegation 1 in the schedule that they have provided:

When presented at hospital on 4/12/21, N had the following injuries:

i. 2 red circular marks on the left cheek (Mark 11 on the body map).

ii. A red patch on the lower back (Mark 3 on the body map).

iii. 2 patches on the upper right back (Mark 6 on the body map).

70 The father's position is he has no knowledge of the marks. The mother's position is that she accepted the injuries set out in the schedule, save for the two patches on the right upper back. The mother accepted, through counsel, that the two red circular marks on the left cheek were a bruise. It is documented as such by Dr Y on 12 December 2021 (see page G50). He describes a fading bruise on the left cheek. This was the treating clinician's view, which she records in her response to a written question. The entries made by doctors in the medical notes on 5 December 2021 records "2 x 3mm dark marks on the L cheek" (G35 noted by consultant paediatrician). On 6 December 2021 it is recorded "No new bruise apart from the left cheek" (see doctor's entry at G38).

71 Looking at the entirety of the medical notes, and the evidence, I am satisfied that N had two red circular marks on her left cheek on presentation at hospital, and that they were a bruise.

72 I now look at the two patches on the right upper back. Mr Lafazanides asked me to determine if they existed at all. He submitted it would be unsafe to find that there were two patches on the right upper back because it is not documented by the ambulance body map, and only the treating clinician saw it. The treating clinician's body map refers to this as mark 6. I look at the ambulance body map. The ambulance staff were with the mother for 15 minutes, in transit for six minutes. The records show they used the blue light, so this was deemed an emergency. The mother gave evidence she held N and N was undressed by the ambulance team. I accept Dr Mittal's evidence that the focus of the ambulance team is different from paediatrics team. They are concerned with sustaining life. That view is consistent with the documentation they fill in. They record the key survey of airway, breathing, circulation. One clinician puts their name to the notes, which were written up afterwards at 22:57, and noted:

"Noted obvious injuries to face with bruising and red mark to the right side of the abdomen".

The ambulance team were involved for a short time, some of which they were in transit.

73 I do not think that Dr Mittal's assessment of the role of the paramedics shows the rigidity of thought on his part, as Mr Lafazanides suggests. Dr Mittal acknowledged the different roles that they have to the paediatric team, and he said that "both were right in their way". It is also incorrect to say that the marks on the right upper back were only witnessed by the treating clinician. Her oral evidence, and the body map itself, record that she was accompanied by the ST3 paediatric doctor so there are two specialist paediatric doctors. With all due respect to the ambulance team, they are paramedics skilled in emergencies, they are not qualified medics trained in assessing children.

74 It is also wrong to say that the only place the upper back marks are documented is the body map. The notes suggest to me that N's arrival at hospital was treated as a trauma call, and on 4 December 2021 at 22:30 the general surgical registrar and the SHO attend N. They note: "Redness on upper back on assessment" (G20). On 5 December 2021, the locum consultant paediatrician notes marks and bruises seen on the child, and their notes, entered at 12:45, suggest that the writer carried out an examination. They document x2 3mm dark mark on left cheek, x 1 3mm red mark right shoulder, the BCG scar, and a left knee mark (G35). I have already quoted the entry from the medical notes on 6 December 2021 at 11:55: "No new bruises apart from left cheek, right shoulder, left knee marks seen by Dr A on 5/12/21" (G38). It seems from the notes that five medics were involved in documenting the right upper back marks, so I am satisfied that there were two marks on the upper back on presentation at hospital.

75 How should I characterise the red patch on the lower back, mark 3, and the two patches on the right upper back, mark 6? The treating clinician's answer to written questions stated she believed the marks to be consistent with bruises. Elsewhere, she simply refers to them as "marks". She accepted she did not see N after initial examination. She accepted no photos were taken after her involvement, and believed that this should have been the process in relation to skin changes in particular. She accepted, in response to Ms Wiseman's questions, that the evidence from days later would have been helpful in diagnosing a bruise. Dr Mittal said there was no protocol for diagnosing bruises, and that UV light and the blanch test were not used by paediatricians.

76 Mr Lafazanides submitted I should be cautious about labelling the other marks, in particular mark 6, as a bruise, because there were no pictures taken and an evidential gap in relation to any change colouration of these marks. Ms Wiseman endorsed his submissions on behalf of the father and said that the bruises are by definition hard to diagnose and require observation by qualified professionals over a period of time, that might be said to be lacking in this case. She cautions particular care with nursing notes, because nurses are not trained as paediatric doctors. It is fair to say that Dr Y's notes of 8 December, which record a fading bruise on the left cheek, are followed by nursing notes later that day that record "No bruising found". Counsel agreed the analysis of the literature on bruising set out by Dr Mittal, and that the paper on bruising in infants and toddlers, suggests that the diagnosis of bruising depends on the clinicians' visual diagnosis and that there are no hard and fast rules about the ageing and colouration of bruises and no standard confirmatory test. Ms Hendrick accepted on behalf of the local authority that photos of the marks should have been taken.

77 I consider the red patch on the lower back. In the absence of clear evidence as to the progression of the mark on the lower back, I am not satisfied it would be accurate to describe it as a bruise. It is described in the body map as a reddish patch, and that is consistent with the photo I saw. I find, on the evidence, there was a red patch on the lower back on presentation of N at hospital.

78 How should I characterise the two patches on the upper right back? In the absence of clear evidence as to the progression of mark 6, I am not satisfied it would be accurate to describe it as a bruise, but it is described on the body map as red patches and by the trauma team as redness on the upper back. I am satisfied that there were two red patches on the upper back on presentation of N at the hospital.

Were the injuries inflicted and possible causes?

79 I go on to look at whether the injuries were inflicted and possible causes of the injuries. The findings the local authority seek, and the factual issues that arise, are so hard to separate that I will look together at the various explanations given for the marks on N and the different versions of events put forward.

80 I pause to remind myself that I must look at all the available evidence, and that evidence cannot be evaluated and assessed in separate compartments. I have to have regard to the relevance of each piece of evidence to the other in order to exercise an overview of the totality of the evidence. First, I am going to analyse the evidence I have in relation to the parents' behaviour and relationship before 4 December 2021. I will then look at the more specific issues that are raised in the local authority's schedule.

Parents' relationship and behaviour prior to 4 December 2021

81 I am first going to analyse the evidence in relation to the parents' relationship generally and then look at the specific allegations the mother made about the father on 4 December 2021.

82 I have got the third party hearsay evidence from those who shared a house with the parents at the family home. The neighbour says:

"I would say that R and E do not have a very good relationship. They always argue and fight in the early hours of the morning when we're asleep. They're (sic) arguing would often wake me up. I will often hear her screaming, him shouting, although I cannot make out exactly what is being said. Sometimes this would go on for about half an hour. I would hear banging, running, and a lot of ruckus. During these arguments I would hear the baby crying. I had never seen them argue as they always argued in their room, not downstairs...... They've been arguing regularly since they first moved in."

83 Their daughter gave an ABE interview to the police. She said:

"Lady was crying and screaming, I think he would be hitting her.....

Every day I would hear fight noises, like the man hitting the woman. She would cry. I heard one time her crying and him shouting to stop."

84 Both parents gave evidence that the housemates were lying. In the father's first interview he told the police he could not say why his neighbours might have said this. The explanation given in court by both parents for why the housemates might lie is because the 14 year old daughter had been drunk on occasion and nearly tripped over N. I found this a very confused and confusing account.

85 The father in the first police interview explained his wife fights him verbally every day. In the parenting assessment the assessor notes that the father did not accept there were difficulties in their relationship and says they had a settled home. The independent social worker describes his description of the relationship as "idealised". This is not consistent with what the father told the police: "Hardly a day goes by without an argument about some minor thing".

86 The mother's account, consistent in all her reports to the police and the social worker, has been that the father has been abusive physically and verbally. Her first account to the hospital shows her interrupting the doctor and the police officer to start speaking without a break, tearfully and spontaneously. There were a few prompting questions from the nurse. The mother points to her forehead, her cheek, and her lip, and the doctor summarises: "She has just been me the extent of the abuse that has been going on for so long". The doctors understood her to be describing previous injuries to her forehead caused by the father, and the mother shows them her phone.

87 The account of the mother to LanguageLine on 5 December 2021 was:

"I used to receive physical beating, physical harm from my husband every day. He used to hit me on my face. I had bruises on my lips and my face. I took all the pictures when I received this physical harm on my phone."

88 Her witness statement for these proceedings, in which she resiles from the majority of her first account, has her maintaining that the father previously hit her but this was only when his parents were here: "After that he would never hit me". She said in court the father pushed her a little and the father-in-law told him off for this.

89 The father says in his witness statement of 14 March 2022:

"I've never raised my hand to my wife or my daughter, nor did I hurt my wife in any way. I know she gets very bad cramps and sometimes they cause her bruising."

90 Both parents accepted there was some verbal arguments, and both refer in written evidence to the other shouting. Both minimised this in oral evidence and stressed that although speaking louder than normal, the family downstairs would not be able to hear them when the door was closed.

91 The residential unit recorded:

"On arrival at the residential unit, R advised she did not wish to

maintain a relationship with E given her reports of domestic abuse. In time, this

changed, and she reported wanting to try and re-establish their relationship if he made

changes and had 'coaching' about his behaviours. At this current time, R is denying

that her relationship was abusive, and has stated she does not feel E should be

punished for her 'mistake'; namely, stating that he had assaulted N. She has minimised

the concerns around domestic abuse that she initially reported, and when shown evidence of

her previous reports of abuse, has presented as avoidant and defensive, which has been

highlighted to her".

92 On 17 January 2022, R spoke to the residential unit worker about her relationship. She stated she was worried about the children's future and about what she could tell them about their father. R was clear in that discussion that E had been abusive to her a lot and that his family witnessed this in the UK.

93 On 9 February 2022, the residential unit include a detailed description of R taking part in a Freedom Programme session and giving specific concrete examples of dominating behaviour by her husband. Ms Hendrick put these to the mother. The mother stated at the time she did not have an interpreter and the Freedom record is inaccurate. This is not consistent with what the residential unit say in their report. At E49:

"Interpreters have been used for sessions around domestic abuse and reflective social worker sessions that have looked at the situation on 4 December. During Freedom Programme sessions the website pages have been translated and videos have been used in reflective social work sessions with sub-titles."

94 When asked when what of her Freedom session had been mis-recorded, or mis-interpreted, by Ms Hendrick, the mother said if she went out of the house, that bit was inaccurate because N was young and it was COVID so mostly her husband would go out.

95 The residential unit's impression is that when domestic abuse was broached R tended to clam up, become quieter, and give only simple answers, and it often, to them, felt like she was repeating what she had heard or read.

96 I have read N's GP notes. The mother attended a consultation on 28 January 2022, and it records a history of domestic abuse. It reads:

"Discussed with mother. Mother reported there was physical and verbal violence from N's father towards N and her."

97 The local authority submit that both parents have minimised the difficulties in their relationship. It was accepted by both parents they had a disagreement on the afternoon on 4 December and their relationship was under considerable pressure at this time. Both their first accounts record shouting and verbal disagreements, which they sought to minimise in evidence. As the proceedings have continued, both presented their relationship in a more positive way, but I am satisfied that their first accounts are more likely than not to be accurate. The mother gives a clear account of physical and verbal abuse over a period of months, and it seems to me that their relationship was a volatile and unhappy one, and I will consider it in more detail when I go on to make my findings.

Alcohol use

98 I will look at the father's use of alcohol as part of the background. The accounts given to the hospital, to the treating clinician, was that:

"He was drunk as usual. It's his regular habit. He is drunk and starts abusing".

The doctor's translation makes it clear her understanding was that the father was definitely drunk at the time of the alleged assault. The ABE interview at the hospital on 5 December 2021 records the mother saying:

"He was drunk. He appeared drunk because of his smell and when I asked him he admitted he'd been drinking. He'd come from work but maybe he went to the pub after work. He started carrying on alcohol drinking, which was called Haigs Club".

I note a Haigs Club bottle is visible in some of the photos taken on 4 December 2021 by the police.

99 At the interview with the social worker on 7 December 2021 R reports E regularly drinks alcohol and confirmed when asked that he gets drunk, and there is a change in his behaviour when drunk, and also reports that he pushes and slaps her when drunk. R told the residential unit on 20 January 2022: "E is a good man, except when he drinks". When asked about this in court she said: "When you drink you normally get drunk and you look like a drunk person". This is hard to marry up with her assertion that E only drank as much as he could manage. In the mother's statement in these proceedings she finally says:

"When he gets drunk he doesn't hurt anyone. He finds minor fault in normal things like not enough salt in the food."

100 In oral evidence she said that he used to drink in the evening and he would go to sleep after drinking. She gave evidence that she smelt drink on her husband when he returned home but he was not drunk and did not continue drinking at home on 4 December 2021. She gave evidence she would tell him not to drink, which might suggest that she found his drinking problematic. I have already recorded that CCTV does not record father staggering or worse for wear visibly.

101 The father's most recent statement takes issue with the hair strand test taken in June 2022, but this was over six months after the events of December 2021. In the police evidence he says he drinks occasionally. He said in court he knows his limits when he drinks. The police photos show several bottles of spirits, Vodka and Whiskey, in the accommodation. They appear to be empty, or nearly empty. I counted around five of them. The father accepted these bottles were his but said they were old, and he would drink a bottle of spirits over three to four weeks. He was defensive about the results of the first hair strand test and gave the impression he might have regretted taking it. He said he did it for his child. The manner in which he explained why he took the first hair strand test suggested to me he did not know what it might show, and he wanted to be open and honest and wanted the judge to know. It seems to me it came as a genuine surprise to the father that the test showed chronic excessive usage.

102 Counsel suggests that because the first hair strand test is not segmented, I can accept the father's account that his drinking increased when N was removed. But the test that shows the most recent consumption over the previous month prior to the testing, the PEth test, shows no recent excessive alcohol usage. The reading of 178 shows social or moderate consumption. So, the PEth reading contradicts the assertion that his alcohol intake increased only after N's removal. I look carefully at the hair strand test results themselves. On the declaration, E declared he did not declare consuming chronic excessive amounts of alcohol. The ETG reading is 82.6 pg/mg.

103 Looking at all the evidence, it suggests to me that the father had a habit of drinking, and drinking to excess, and I think it more likely than not he was drinking at a chronic excessive level around 4 December 2021. I will go on to look in more detail at the day itself later in my analysis.

Causation of the marks on N on 4 December 2021

104 Having considered in detail the parents' relationship and some of the background, I am going to look now at the whole picture and the causation of the marks on N which were presented at hospital on 4 December 2021.

105 Counsel noted that in December 2021 the foster carer contacted the GP concerned about a red mark on the back of the child's head. The doctor considered it was a birth mark or a pressure area where N rests her head. Either way, says the doctor, it does not look like anything to worry about. This is not a mark that was seen on the body map, and I do not think this assists me in determining the causation of the marks on N on 4 December 2021.

Were the marks caused in hospital?

106 Mr Lafazanides asked me to consider whether the marks could have been caused in hospital and suggested to the treating clinician that the injuries could have been caused by handling at the hospital since they were not all documented on the ambulance body map. I asked the mother who had held the baby other than herself, and she replied she held the baby at PH's house. It is fair to note that the police officer also held N. This is caught on camera, and it is not suggested the police officer handled N in such a way to cause injuries. The body worn camera footage shows a nurse holding N at the hospital, and since the time N came to PH's house she was always with more than one adult until she was admitted and examined. The mother gave no evidence that she saw anyone else handle N roughly.

107 Mr Lafazanides took the treating clinician to the differences on the body map completed by the ambulance and those completed by the hospital, and asked her if the marks she identified happened after arrival at A&E. She said: "You can never say for certain but knowing the interactions of the staff members with the child in my presence they are unlikely to have happened in hospital". Both KH and PH see the marks on N's face, and PH records this on his phone. So, I think it is unlikely that any injuries were caused by the handling of N at the hospital between the time of the ambulance arrival and the completion of the body map.

Were the marks eczema?

108 I consider whether the marks are eczema. Mr Lafazanides asks me to consider whether the marks on the body map are eczema and whether we need a dermatologist. He resurrects the father's application for a dermatologist that HHJ Thain adjourned. He presented no CVs or questions for the expert and gave me no timeframes for such a report.

109 The mother prepared a statement with photos dated 29 September 2022, in which she said N suffers from eczema. The first of those photos in time is March 2022. The Child Protection medical of 6 January 2022 is a careful examination and contains no mention of eczema. I have seen GP notes from N's records. 24 February 2022 is an entry by the GP surgery:

"Mother reports N is itching her stomach and the top of her legs. This has the previously happened and the mother used Sudocrem, which helped. Advised mother to speak to pharmacy about creams and lotions for skin."

There was a report of eczema to the GP in August 2022, and 22 September 2022. There is an entry from 11 March 2022, which reads that N has been itching and scratching her body. It is described by the doctor as a rash on her back. The first prescription for medication treating dry skin is 7 March 2022.

110 The treating clinician was asked about marks on the body like number 6 and was asked if this could be attributed to eczema. She said: "Yes, but I indicate on the body map where skin changes are like eczema and number 6 is not one of those areas. I don't believe they were consistent with Eczema. The skin changes were indicated on the body map that were marked 7". She said: "It's difficult to say now if it was or not. Only seeing the child once limits my ability to comment". The treating clinician was clear in her answer to Ms Choudhury she could tell the difference between eczema, mottling and bruising. She said if mother mentioned eczema it would have been recorded in the safeguarding booklet.

111 Dr Mittal was asked if there is any benefit from the instruction of a dermatologist. He said: "In my opinion a dermatologist will not add anything and will not help the court in deciding anything. Dermatologists do not get involved in these types of cases. They will not be involved in clinical practice. A paediatrician has more clinical experience with these cases".

112 I ask myself whether I should adjourn now and instruct a dermatologist, and whether that is necessary to resolve proceedings justly. I apply the criteria set out in section 13 of the Children and Families Act 2014. I consider any impact which giving permission would have on the welfare of N. It, of course, would cause delay. The questions that the dermatologist would be asked would be whether the marks on N on 4 December 2021were eczematous. The paediatrician is an expert that the court already has available, who explained that dermatologists are expert in skin conditions, but paediatric skills include preparing body maps and distinguishing between mottling, eczema, bruising and other marks. I look at the evidence which could be given by another person on the matters on which the dermatologist could give evidence. Evidence has already been given by a treating clinician who confirmed she could tell the difference between eczema, mottling and bruising. The treating clinician saw the child on 4 December 2021, and the dermatologist could only go on the body map and photos taken months later as well as the GP notes and the Child Protection medical, which I have seen. The impact on giving permission would lead to delay. I do not have a costing, and I do not have the matters prescribed by the Family Procedure Rules.

113 In my view, the treating clinicians's body map is detailed, she distinguishes between those marks that might be eczematous and those which are not. I am satisfied that marks 11, 3 and 6 are not eczema, and I do not think it is necessary for a dermatologist opinion to resolve these proceedings justly.

Different accounts of 4 December 2021

114 I look at the various accounts now that the parents have given of how the marks on N might have been caused. I remind myself the burden of proof is on the local authority. It is not for the parents to establish that the allegations are not made out. The burden of proof is not reversible. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations. The burden of disproving a reasonable explanation put forward by the parents falls on the local authority.

The father's accounts

115 The father's account of the injuries to professionals in this case I summarise as follows:

(1) In his response to threshold on 10 February 2022 he says he witnessed the mother shouting at the baby and slapping her cheeks on two occasions.

(2) At C13 the social worker's statement records him saying that the mother may have pinched N. When asked, he denied that she had pinched her before. He says the mother shouts at N out of anger but does not mention slapping.

(3) He describes the injuries as accidental to the independent social worker (E133) and says he does not believe the mother caused them (page E126).

(4) Dr Campbell records the Father telling him that the mother caused the injuries.

116 I look at the father's first formal account of how the injuries came about. In his interview on 6 December 2021 he gives some explanation to the police about how the injuries may have come about. I return to the exact words used in the recording as the police summary in the bundle is not verbatim. He describes the mother picking up the baby in the interview and demonstrates her lifting the baby towards her shoulder. He is asked: "Did you see the baby hit anything or bang against something else?" He says: "I didn't follow the mother out of the room but where we live there are lots of stairs, it is narrow, and it is possible she may have hit the baby on the way down as she was carrying the bags, prams, and lots of things". He was asked: "Does your wife lose her temper?" He replies: "She loses her temper and that is the reason this has happened. She fights with me for no reason and said she's going to report me to the police and get me deported and she will live on benefits. She could fabricate that I've hit her or hit the child or done worse." He goes on to say: "She's been threatening me about this for a long time and it has come true today".

117 I interject my analysis of the interview at this point to note that in oral evidence his account varied on this point. First in evidence he said that she made this threat to have him deported once, he then said it was once or twice, and when pressed he said: "She may have said it many times but I was ignoring her".

118 He was asked to describe in more detail to the police how the mother picks up the baby, and he shows lifting towards the shoulder and says: "She could have dropped the baby". "How did the baby react?" asked the police: "Crying". "Has she made allegations to you of harm to her and your daughter?" and he says: "When the baby left the house there was nothing like this on her body. The wife has done everything herself to trap me. She has done all of this. The baby did not have a single scratch when she left the house. The wife did it, a hundred per cent".

119 In court he was asked about this interview, and there was one point in the questioning when he became notably evasive and digressed at length about how glad he is the mother has now told the truth. The local authority's case is that the father's account in this police interview is a deliberate lie about the significant issue of who caused injuries to N, and that it was told to hide the fact that he inflicted the injury.

120 Ms Wiseman submits that the father gave a hypothesis about how N was harmed in interview and that he was not actively seeking to blame the mother. However, the words he uses: "The wife did it, a hundred per cent, and she did it to trap me" suggest otherwise. In interview he actively volunteers information about the mother hurting N in relation to questions that do not require him to implicate his wife.

121 In the witness box the mother accepted those parts of this account that might fit with her own second account that said the father was lying when he said she injured N on purpose to get benefits.

122 I look at the father's account in his statement on 14 March 2022. In this statement he states he believes the injuries to N are an accident, and if this is accepted by the court he wishes to reconcile with his wife. He states the false allegations have damaged the trust in the relationship, but he is willing to work to resolve this.

123 In the witness box he denied he was angry about the false account the mother gave first and said he did not ask her why she had done this but was happy she told the truth, and there was no point in asking why she lied. This was somewhat unconvincing given that the first account had led to his arrest and to him not seeing his daughter for a number of weeks, a point he stressed repeatedly in evidence.

124 Although the main point of his second statement was to say that he was glad the mother told the truth, he also makes two observations in this statement about the mother's interactions with N. Firstly, about the mother shouting at N and touching N's cheek. I analyse this further:

(1) In his statement of 14 March 2021 he said the mother hit N on the cheek area twice and shouted at her.

(2) His account about this to the independent social worker appears to suggest that the interpreter might have misunderstood this point.

(3) In court he minimised what he had said he saw the mother doing by describing it as a "light tap, a loving tap". He accepted Mr Lafazanides suggestion that this was a loving stroke by the mother on N's cheek, and he struggled to explain why he would therefore have a go at his wife for this. He explained the translation comes up in English as "hit". The English version of his documents record an unpleasant action by N's mother towards N's cheek, and that is the clear force of the collective meaning in English of his own evidence.

(4) He was asked by Ms Hendrick whether he mentioned this in his statement because he wanted to provide an explanation for the mark, and in response he was evasive and digressed. When this was put to the mother she suggested the father may have misunderstood because she had not shouted at N, and maybe he did not see properly when he said she hit N on the cheek.

125 The second point the Father draws out in his statement of March is the mother picking N up on 4 December 2021. This is at C41 of the bundle. He says: "She picked N up from the bed and flung her over her shoulder quite aggressively." In the witness box he sought to minimise the shouting that he describes in the witness statement, where he says: "She started shouting loudly that I was telling her to work". The mother suggested she did not pick up N forcefully but normally. When the father was asked to explain the words used in his witness statement, he did not answer the question directly put him, despite being asked five times by Ms Hendrick.

126 The local authority submits that these two incidents described by the father in his statement are not deliberate lies but exaggerations to bolster his first account.

The mother's accounts

127 The mother's first account given to the police, hospital and social workers is of an assault on N by the Father followed by an assault on her.

The mother's first account of the assault on N

128 The mother's account of the assault on N does contain inconsistencies:

(1) The CCTV evidence and the neighbours evidence do not support the mother's account that she was thrown out of the house and was knocking on the door to be let back in and waited five to ten minutes. The neighbours do not see her in distress, and she leaves of her own volition. A careful reading of all the narrative accounts given by the mother about her departure from the property reveal a level of ambiguity in recording. Sometimes it is recorded that the father pushed her out of her room (see the LanguageLine account and the ABE), and sometimes it is recorded he pushed her out of the house. She told LanguageLine and KHthat the father would sometimes shut her out of her room and make her sleep or sit on the stairs.

(2) The second inconsistency in the first account is whether she mentions E biting N. This is mentioned to the doctors, in the LanguageLine account, and in the ABE interview. I notice in the body worn camera footage from PH's house there seems to be an issue of interpretation when the officer in the case speaks to LanguageLine. The officer speaks to LanguageLine about what the mother has told them and then says, and I quote verbatim: "He has pinched the child. Sorry was that pinched or bit? Okay pinched, pinched". But I remind myself that I must not speculate whether this is an interpretation issue, or whether or not there were other occasions when this turn of phrase might have raised an issue of interpretation.

(3) There are different accounts of when the mother told the father she was pregnant. The treating clinician says she disclosed that she is currently pregnant and told the father last month. The social workers record at C11 that the mother told the police that she had informed E that she was pregnant at 4.35 on 4 December 2021.

(4) There are inconsistencies of account about what the mother has seen the father do in the past. The body worn camera footage to the doctors and police at hospital records as follows: "This has been happening on a regular basis, the shaking and squeezing, and she cooks in the kitchen, and when she comes back the baby is always crying. She's seen this a lot of times" says the treating clinician. In the ABE interview, the mother said she used to do the dinner and he was looking after N, and she would see him hitting N in the cot. To the social worker on 7 December 2021, she says she has never seen E be violent before to N, but she would leave N in their room to check on the food and hear N crying. She suspects that E may have harmed N but never saw this happening.

(5) There are also inconsistencies in her account about whether she let the father hold N when he was drunk. That is inconsistencies picked up by the social worker on page C12.

(6) There are inconsistencies about whether the father dropped N into the cot, or a bed, and the height from which she was dropped. I note here the 50cm height was actually an estimate the police officer volunteered himself when watching the conversation between the treating clinicianand the mother, otherwise the mother is broadly consistent in describing a 30cm drop. The social worker records the following about the height of the drop "R demonstrated this using a table at the hospital and not the actual cot that she says N was dropped into so this may not be accurate."

(7) The number of times the father shakes N is sometimes given by the mother, sometimes not. On one occasion she says about five, on another five to ten times.

(8) The body worn camera footage at the hospital records the mother told the doctors that the father squeezed N's chest for one or two minutes. The mother is seen holding her hands up when she speaks of this, and then she points to the baby. Although she is mainly speaking her first language, she says at this point in English: "Look bruises there and there" pointing to the child. I cannot see the first site she points to, but the camera shows her pointing under the child's armpit. From the way that the mother holds her hands up in the body worn camera footage, it is not very clear at all where on the child she was held precisely. The doctors speak to the mother and report back in English: "squeeze her chest basically". The way that the squeeze is described to the social workers is as follows: "R held the doll in front of her, facing her, with the fingers on the back of the doll and her thumbs on the front in the rib area". The ABE interview says the mother squeezed her by holding either side of her waist badly, and R says she has marks on her back due to this. There is no video footage of either the social work interview or the ABE interview to see how the mother demonstrated any squeeze.

(9) Whether the father placed N on a bed or a cot varies across accounts.

The mother's first account of the assault on her

129 As I have already recorded, the mother told KH that the father beat her that day and had beaten her before. She tells PH that the father hit her in the face, and PH took photos of the mother's check, and recorded a video of N's cheek on his phone.

130 The body worn camera footage at the hospital captures the treating clinician's translation:

"He slapped mum on both cheeks three to four times, pushed her so hard she hit her leg on the drawers. He pulled her hair as well".

The LanguageLine account on 5 December 2021 is:

"He started beating me up. He pulled my hair so badly so many times, pushed me, my leg hit the dresser draw which gave me a bruise on my leg. He slapped me many times on the face".

131 The ABE interview records:

"R went to the cot to get N but before she could E turns to R, he has pulled her hair using both hands causing my whole body to turn and face him, and some hair actually being pulled out due to the force he is using. This made me dizzy and disorientated as I'm pregnant. E then started slapping R in the face approximately five to six times. This was hurting her. He then pushed R causing her to fall against the draws causing a bruise on her leg."

132 The mother's first reports of this assault on her are clear and consistent. In court she simply denied that it happened. The photos of the mother and N which were taken at PH's house are more consistent with her first account of both her and N being assaulted. I have no expert evidence on the photos, but the local authority points to PH's statement in which he says: "I saw bruising on the left cheek of R".

133 Ms Hendrick asked the mother about these photos, and she explained that when she is under pressure she gets red marks, and then went on to say it was cold outside. When asked if PH was lying she said for the first time in the witness box that he had been drinking. The body worn camera footage from the police does not show he is obviously drunk, and nor does the police evidence record their impression of him being under the influence. PH clearly points out in the body worn footage to the police officers the mark on N's face. The mother insisted there was no bruise on her face.

134 When asked about this by Ms Choudhury, the mother's explanation as to why these photos were taken varied, and her evidence on this point was notably evasive and shifting. She first told Ms Choudhury that PH took the photos because her hair was very bad, and then she said she let him take the photos to show the police as evidence. She could not give a clear explanation of why PH took the photos of N, but eventually appeared to accept that she asked him to take the photos. When asked about the photo of her leg, she initially told Ms Choudhury it was due to cramps, and then said she might have hit it on the banister. So, the mother's response to the questions on the photos taken by PH was deeply unconvincing and shifting.

135 When I analyse the various records of the mother's first account, I caution myself that the account at the hospital was taken by a doctor and not a professional interpreter, but the doctors said on camera they can understand each other. It is also important to note that the first two reports with the police presence were video recorded, but the remaining reports were not video or audio recorded. I do not know if the mother's visual demonstrations of how N was held is accurately described in the written report of those interviews. I note, for example, in passing that the body worn camera footage summaries are broadly accurate but lack the detail contained when you watch them back verbatim.

136 I bear in mind that if the mother's account was broadly true then she would have undergone a traumatic experience, which could manifest itself in many ways in her reporting. Just because she has not given an entirely consistent account does not necessarily mean that her evidence is untrue, and this, of course, applies to any inconsistencies in any of her accounts, as experience has shown that inconsistencies in accounts can happen when somebody is telling the truth or not. This is because if someone has a traumatic experience, like the kind alleged in this case, their memory can be affected in different ways. It may affect a person's ability to take in and later recall the experience. Some people may go over an event afterwards in their mind many times and their memory may become clearer or develop over time. But other people may try to avoid thinking about an event at all and then have difficulty in recalling it accurately.

137 I bear in mind the words of Jackson J in Lancashire County Council v C, M and F. He says:

"I would only add that in cases where repeated accounts are given of events surrounding an injury the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility of course is that they are lies designed to hide culpability, another is they are lies told for another reason, further possibilities include faulty recollection or confusion at times of stress when the importance of accuracy is not fully appreciated, or there may be an inaccuracy or mistake in record keeping or recollection of the person hearing and relaying the account."

138 I also remind myself that in re-telling an event people are unlikely to use exactly the same words each time and that an unwavering rigid account which is rehearsed may suggest a lack of honesty. The court has to calibrate all of these things carefully.

139 It seems to me that the main points of each version of the mother's first account are broadly consistent. They include: (a) the father pinched N's cheek; (b) the father pulled N's hair; (c) the father shook her about five times; (d) he squeezed N; (e) he dropped N from a height onto a soft surface; (f) he slapped the mother several times, pulled her hair, and pushed her onto a cabinet, and (g) that the mother left with N.

140 I have watched several times the body worn camera footage recording and both recordings show mother in a state of distress, although, again, I caution myself that demeanour is not a reliable indicator of veracity. I note that in those recordings she speaks fluently and spontaneously, and I have already recorded how she interrupts the police officer and the doctor to tell them more at one point. The account to the treating clinician in particular contains a great deal of detail which appears to be offered without many questions being asked or any prompting. The local authority's case is that this first account is the truth.

The mother's second account

141 I have looked at the mother's prepared statement for the police on 8.2.22 where she says:

"I was carrying a Sainsbury's bag on my arm with the carrycot. I had my daughter on the other arm. I was walking down the stairs my foot slipped and the bag and the carrycot went down the stairs. I protected N with both arms. I believe that is how N sustained the injuries."

142 This account was first given on 14 February 2022 in written form by way of a statement in these proceedings. It is:

" I had N in my right hand, the bag on my arm and the pram in my left hand. I started going downstairs, 20 steps down I nearly slipped. The bag and pram fell out of my hand and N was about to fall. She banged her bead on the banister and whilst stopping her from falling I grabbed her tightly."

143 The account of the fall given to the residential unit is different. It refers to the child hitting a wall. The mother explained this reference to a wall by saying the residential unit spoke using an interpreter who spoke with a different accent so words might be translated differently. Ms Hendrick was careful to ascertain that the banister is on the left as you come down the stairs and the wall on the right. I look at E6 of the bundle, where the treating clinician finds no bruising, swelling or areas of tenderness on N's scalp.

144 Dr Mittal was asked about the mother's second account where she describes hitting N's head: "Would you expect to see injuries?" he was asked. He says: "Children fall all the time because the body is very elastic" and he gave the example of falling from a bed.

145 In chief she says: "I was angry at the time and I was trying to go quickly". She said: "I was holding N on my right arm, wearing my bag on the left, holding the pram in my left hand. I tripped and caught N on the left-hand side. She hit a rail. I was wearing bangles. She was hit by bangles and the bangles were broken."

146 In cross-examination the mother was asked by counsel if she was holding N on her right whether or not it was more likely that the right side of her face would hit the banister. She mother that she was wearing bangles and these two things hit her. She demonstrated in the witness box how she moved from holding N on her right to holding her on her left to stop N falling. It seemed to me she showed a two-handed hold. Ms Hendrick put the mother that her written statement referred to N hitting her head, which suggests the top of her head rather than her cheek made contact. The mother maintained it was the side of N's cheek that was hit. The mother was asked why she was so upset on the body cam footage if on her second account she had nearly dropped N a couple of hours previously, and she replied because she had nearly dropped N for the first time.

147 The mother's second account contains inconsistencies about whether N's head or cheek made contact with the wall, or the banister, and the fact she was wearing bangles on both hands was mentioned for the first time in the witness box. I give myself the same guidance about inconsistencies of account which apply with equal force to both accounts. The description of how the bag came free from her left hand, and how she dropped the pram whilst catching N remained unclear to me, even after hearing her evidence in the witness box. The way in which N was falling, and the manner in which she made contact with the banister remained vague, even after the mother had answered questions.

148 I look at the context and timing of the mother's second account. I have already set out from the chronology that the change of account took place after bail conditions had been lifted for the father and the parents were back in touch. On 19 January 2022, the senior support worker at the residential unit records that she, the mother, was speaking to E on and off during the days prior. The mother informed the support worker, that the conversation was brief, that E had told her he missed N only, and she needed to eat as she was pregnant. She also informed the support worker that her father had told her that if E received help they could be together as a family. The residential unit tried to explore the change of account. They record as follows:

"I asked R to help me understand the different stories and understand which was true and establish how N became injured. R gave a vague answer saying she disputes with her husband and he always argued with her during the pregnancy. She then stated: 'We were living in the loft and there were many stairs. This incident happened and I went to my brother's house. I didn't notice the bruises. My brother said this is very dangerous that she has bruises'. The interpreter commented she could not understand from R what the link was to my question, and R said it was not translating very well."

The support worker records:

"I was worried at the time this this avoidance of the question and expressed I was worried, but I still didn't know what had happened, and it felt as though R did not want me to know. R at this stage commented: what I told the police yesterday is the truth."

149 The advocates have explored very carefully with R why she might change her first account. She repeated in the witness box that her first account was wrong. She described it as "my silly act" and says that it was a "misunderstanding" to the residential unit. When asked by Ms Hendrick about what she was thinking, she said she was "empty headed" when she gave her first account.

150 She was asked expressly why she lied in her first account. She said she was worried N would be taken by Social Services. It is hard to understand this rationale for a number of reasons. The mother herself was instrumental in calling the police. On her own account no one would have known about any of this unless she had alerted them. Social Services were not involved with the family.

151 I note the mother's accusations against the father were first made to PH and KH, and that they were involved before any mention had been made of taking N away by any professional. If the mother was worried about N being removed, it is hard to see why she was involved in speaking to the police. Ms Choudhury explored the accounts given by PH of the mother crying when she rang him, and the mother said that she was not crying and that she lied to PH in her first account.

152 The medical notes show very clearly that there was a delay in getting hold of the social workers, and they did not attend the hospital until 7 December 2021. The medical notes record, as far as I can see, for the first time on 7 December at 18:20: "M disclosed that Social Services told her that they may take the baby from her for a little while. M very upset and crying". There is no mention that I have been able to find in any of the medical or police records before this date of anyone saying that N would be taken away.

153 On 8 December 2021, the mother, even after Social Services are involved, is telling the nursing staff that the father was abusive to her. I look at the the nursing notes on 8 December 2021, 06:30: "Mum talk about issues with her husband and how he was badly treating with her." On 8 December 2021, 06:35 the nursing notes record: "Mum tells nursing staff dad he her and shows photos." The nursing notes of 9 December 2021 record: "Mum receives phone call from dad's number and blocks him."

154 The mother later contradicted herself in relation to Ms Wiseman's questions and agreed she thought that if she told the police she would get a property with N. It is hard to reconcile that with her position that she feels N would be taken away from her.

155 Another explanation given for the mother's first account was that she was angry. The mother said to Ms Hendrick she was very angry when she gave her first account and said: "Whatever was coming out of my mouth I was saying". But the mother's first account was one from which she did not resile for a number of weeks. She maintained her first account after she arrived at the residential unit, and first formally retracted it in February 2022. She described herself as confused and angry when speaking to Ms Hendrick about why she called the police that evening. However, if her account was adopted on the spur of the moment in anger then it is notable that when she had days and weeks to calm down she did not immediately retract it, even when police and Social Services were involved, and even when HHJ Thain sanctioned the removal of the child under an interim care order.

156 The mother was asked about the delay in correcting her first untruthful account and said she corrected it with the police at the first opportunity. She could not explain when asked why she did not correct it by telling the social work team, or her solicitors, and she replied: "What I'm saying now is true". I note that there was a court hearing both on 13 January and 24 January 2022. The orders from both occasions suggests that the parents took part and spent time giving instructions to their representatives through interpreters. There was an opportunity to retract the first account via her lawyers during court appearances.

157 Ms Choudhury carefully put to the mother other possible explanations for her change of account. The mother denied she was lying to protect the father, denied she was lying because she was worried about bringing up the children on her own, as she had told the residential unit, and denied it was because she did not want to live as a broken family. She was insistent that she had her "own brain".

158 The local authority submit the second account is a deliberate lie by the mother, and it goes to the significant issue of how N was injured, and this deliberate lie is suggestive of guilt because the mother knew what happened to N, has tried to hide it, and in doing so failed to protect her. The local authority submit the father's support for the mother's second account is a deliberate lie on his part.

CONCLUSION

159 The parents have had a full opportunity to take part in these proceedings, and they were given time to re-watch the police footage before giving evidence. Their evidence, and the impression I formed of them, must be given the most careful consideration. The evidence of both parents was evasive and gave me the impression they were not being straight with the court. Neither parent, I am afraid, was credible, or convincing, and so I can attach little weight to what they said to me in the witness box.

160 The mother's first account of the assault on her was clear, the father slapped her, pulled her hair, and pushed her. She told the police, PH, and the doctors the same thing about what happened to her. The photos taken of her on that day are consistent with her account. The mother's reference in court to cramps, explaining the bruising on her legs, was not one which was convincing. The reasons she gave for lying in her first account are deeply unconvincing, and in the witness box her explanations about PH'sphotos undermined her credibility significantly, and I formed the impression that her evidence in the witness box was constantly shifting.

161 Looking at all the evidence of the parents' relationship, I am satisfied that against the backdrop of a volatile relationship the mother was assaulted by the father on 4 December 2021. I am satisfied that he slapped her, pulled her hair, and pushed her into furniture. Looking at all the evidence, I am satisfied the relationship was characterised by verbal abuse and that this assault was not the first instance of physical abuse in the relationship perpetrated by the father on the mother.

162 I look at the mother's first account about N. It seems to me that the inconsistencies about N's alleged assault are on more peripheral matters. Her narrative on the main points is clear, and the main account given by the mother is that Ns cheek was pinched, the father shook her about five times, squeezed N, and dropped her from a height of about 30cm onto a soft surface. She makes the same main points over the course of days in the context of speaking to the police, the social worker, and medical staff. As the former President of the Family Division said:

"Any judge who has to conduct of fact-finding hearing is likely to have experience of a witness whose evidence, although shot through with unreliability as to details with gross exaggerations and even with lies, is nevertheless compelling and convincing as to the central core."

163 The inconsistencies in the first account of N may be explained by the traumatic effect experienced on the mother's recall, the angle at which she saw the assault, or her bolstering her account in order to be believed and taken seriously, or a combination of all those factors. Of course, another explanation for her first account is that it is a lie, and I have considered that possibility very carefully. Her second account lacks detail, despite her having a chance to explain it in the witness box. The first mention of the bangles was in the witness box. Dr Mittal was clear that the mother's second account could not explain the mark on N's cheek. This, of course, was said before the mother said to the court that she was wearing bangles, but nobody asked for Dr Mittal to be recalled.

164 Dr Mittal accepted the mother's second story may explain the mark around the waist as a one-handed grip. However, the mother's report of the second account at times involves her describing a two-handed handling of N, and that is how she appeared to demonstrate it in the witness box when describing catching N on the stairs. Both medical professionals take the view the first account is consistent with the totality of the marks on N, and their evidence bears considerable weight as it was measured and balanced. The mother's account did not become clearer when she was asked to explain it, and though aspects of the other accounts may explain some of the marks, only the mother's first account provides a cohesive explanation for the totality of the injuries. The father minimised his description of the mother lifting N onto her shoulder in court. In any event, that could not explain the mark to her cheek.

165 I have considered carefully the different explanations for the marks on N, and I have concluded that they are not explained by eczema or by handling in the hospital. The wide canvass of the evidence leads me to conclude, on the balance of probabilities, the mother's first account is more likely than not to be true in relation to how N's injuries came about. I think it more likely than not the reason father mentioned in his first interview the mother had touched N's cheek was to provide an explanation for the cheek mark that excluded him. Similarly, his suggestion the mother flung N aggressively on her shoulder served the same purpose. These were deliberate exaggerations and misrepresentations of the mother's everyday interactions with N to protect the father.

166 In his first interview the father says: "Where we live there's a lot of stairs. It's narrow, it's possible she may have hit the baby on the way down. She was carrying the bags, the pram, lots of things." The mother's second account is that she did hit the baby on the way down, and I find it was unconvincing and, in my view, more likely than not to be untrue. The mother denied any of the motivations for changing her account Ms Choudhury carefully put to her, and it seems to me that once she was back in touch with the father she made up her mind that the best chance of keeping the children was to ally herself with him, and she has stuck to that position doggedly.

167 I accept the injury to the cheek is consistent with a pinch mechanism. I accept Dr Mittal's evidence that the cheek is a thick buckle of fat, and the common mechanism to cause a bruise to the cheek is by squeezing or pinching it with force. I find the bruise on N's cheek was inflicted upon her most likely by squeezing or pinching with force.

168 I look at the marks on N's body and I accept there are no marks on the front of N's body that might suggest a double hand squeeze. At times the mother has demonstrated N being held with two hands, both in her first and second accounts. None of the physical demonstrations I have seen were very precise, and I decline to speculate as to why there were no marks on the front of N's body. The mother's first reports are clear, there was a squeeze around the chest and waist. I take into account the size of a five month old child and an adult hand, and note it may be possible a child could be squeezed in both places. The squeeze and shake described by the mother in her first account involves N being handled roughly with pressure, and I conclude that the marks on her upper and lower back are consistent with being held tightly with pressure, and I find the injuries to N's lower and upper back were inflicted upon her most likely by N being held tightly with pressure that was significant enough to leave red marks hours later on presentation at hospital.

169 The totality of the evidence does not lead me to find that N was bitten, as the mother mentions in some of her accounts. No medical evidence supports this. The totality of the evidence does not lead me to find that N's hair was pulled on 4 December 2021. The body map does not provide any corroboration to the hair pulling, or biting, and there was no bruising to redness on the scalp noted at hospital. No puss is found on examination, and the body worn footage does not show any when the mother runs her fingers through N's hair.

170 I find that the main points of the mother's account to the hospital, to the police, and to the social workers, are more likely than not to be true, and that the mother and N were assaulted by the father on 4 December 2021, and her first account is consistent with the likely mechanism that caused N's injuries.

171 I am satisfied that the marks on N are not due to an underlying medical condition, they are a cluster of marks, not on bony prominence, the marks are on the face, trunk and upper back, and I find that N, aged five months at the time of presentation, was non ambulant and unlikely to have sustained these injuries accidentally. I found the mother's second account implausible.

172 I take into account the HST evidence of chronic excessive alcohol usage over the test period, including 4 December 2021, and the mother's first reports that the father had been drinking that day, and in her final evidence in which she maintains she smelt alcohol on him. I accept he was not staggering on CCTV. However, looking at all the circumstances, I think it more likely than not the father had a drink that day and he assaulted N and the mother afterwards. I accept he was not drunk to the point of staggering before or after the assault, but it seems more likely than not to me that he had been drinking.

173 The local authority ask me to find that the father pulled N's hair on previous occasions leaving pimples and missing hair, and that the mother failed to report this and protect N. The body worn camera footage, as I have already highlighted, records:

"This has been happening on a regular basis, the squeezing and shaking. She cooks in the kitchen and the baby is always crying. She has seen it lots of times, constant pulling of hair, puss, constant cleaning of the hair follicle."

174 In LanguaeLine she gives a report. This is at H29 of the bundle. It is not entirely clear from this report exactly what the mother said she thought she saw and what she thought had happened when she was cooking. This is not a verbatim account, and the police record of it contains obvious typos. The ABE interview that was recorded in the police disclosure says:

"Due to parts of N's hair being pulled throughout the five months by E she had to treat her head because part of her head was full of puss. It was treated last Friday."

I checked the GP notes. There was no appointment anywhere near this date.

175 The social worker records on 7 December 2021:

"R informed the social worker she has never seen E be physically violent towards N prior to this but said she would leave N in their room with E and go down and check on the food and she would hear N crying. R suspects E may have harmed N but never saw this happening. She also said she thinks E pulled N's hair before because when she cleaned N's hair she noticed pimples and missing hair."

176 For completeness, the GP notes of 28 February mention cradle cap, and on 24 February 2022 there was a physical examination. The GP records:

"The mother also showed me what looked like a small patch of cradle cap on her head. The mother advised it was a pimple at first but turned into what it is now. Advised to also show pharmacist."

177 It seems to me that the mother's account to the social workers through LanguageLine on 7 December is more likely than not to be true. Having reviewed the totality of the evidence, it seems to me that the mother was being hypervigilant in the aftermath of the assault and reported to professionals her concerns even though she had not seen the father pull N's hair in the past. It seems to me this is an area of her original report in which it is more likely than not that she exaggerated and speculated. It seems to me that the mother was suspicious of the father given the abuse she had suffered, and exaggerated her first report in this respect, and the court does not find facts on the basis of suspicion. I do not know if N had puss in her hair from time to time, and I must not speculate, but I note the cradle cap is a presentation with a puss like substance often found along the hairline.

178 I look at whether there has been a failure to protect N. I did not find on the evidence before me that the mother had witnessed the father being abusive to N before 4 December 2021. I found that the father was abusive to the mother before 4 December 2021, and although it is easy to say with hindsight that R could have left the relationship earlier, I bear in mind how isolated she was and leaving would have been an immense practical challenge. It seems to me more likely than not that the father's assault on N and the mother on 4 December 2021 was the trigger for the mother leaving. It seems to me that when she was assaulted she was trying to pick up N and intervene. Given that she too was a victim of assault on 4 December, I do not find a failure to protect N on that occasion. In fact, the mother's actions in leaving and going to PH were brave ones, and it seems to me she was initially trying to protect N and herself.

179 Since the mother has changed her story and got back in touch with the father, she has insisted the injuries to N were accidental, and in my view she has colluded with the father in this. In doing so, she has not acted in a protective manner towards the girls. I find it telling that both she and the father say they were willing to learn and do courses, but this does not sit easily with her own case that this was all about a slip on the stairs and there were no deep-rooted problems in their relationship.

180 The mother has changed her story, she has minimised the difficulties in their relationship, she has minimised the amount the father drank, and in doing this she has failed to protect the girls. The plan she proposed for her and the father to care for the children with social work oversight is naïve and plays down the significance of what happened to both her and N. This, in my view, amounts to a failure to protect the children.

181 That is my judgment.

__________

Annex

AGREED NOTE OF LAW

Burden and standard of proof

1. There is only one standard of proof in these proceedings, namely the simple balance of probabilities: Re B [2008] UKHL 35. Neither the seriousness of the allegation nor the seriousness of the consequences makes any difference to the standard of proof to be applied in determining the facts.

2. The burden of proof is on the party who makes the allegations; it is not reversible and it is not for the other party(s) to establish that the allegation(s) are not made out. As Mostyn J said in Lancashire v R [2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations (paragraph 8(vi)).

3. It is the local authority that brings the proceedings and identifies the findings they invite the court to make. The court is not bound by the cases put forward by the parties, but may adopt an alternative solution of its own: Re S (A Child) [2015] UKSC 20. Judges are entitled, where the evidence justifies it, to make findings of fact that have not been sought by the parties, but they should be cautious when considering doing so: Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10.

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

5. In Lancashire County Council v D, E [2008] EWHC 832 (Fam) Charles J stated the following:

"35. A natural progression of reasoning is to consider first what injuries there are, then to consider whether they were inflicted, and thus the range of possible causes. Those steps are not conducted by reference only to the medical opinion, albeit that there may often be no other relevant evidence as to the existence of injuries and consequent illness. Causation is different because as to that an important factor is the consideration of how, when and by whom an injury could have been inflicted becomes a necessary part of the analysis.

To take an easy example: if a well-reasoned medical analysis leads to a conclusion that a child's airways were blocked at a particular time, but it can be shown from a video, or third party personal surveillance that no one did or could have blocked the child's airways during that period, that conclusion has to be revisited. I make this point because in my view at times the approach of both the local authority and the Guardian in this case came perilously close to an approach which, on the basis of the expert medical evidence, proceeded on the basis that: 'R' was the victim of a shaking injury because the medical opinion was that this was the most likely cause of his injuries, and the
relevant exercise was to consider whether, given their care, and thus the opportunity they had to so injure 'R', the parents could show that they did not injure him."

6. The inability of a parent to explain an event cannot be relied upon to find an event proved. See Re M (A Child) [2012] EWCA Civ 1580 at §16 - the view taken by the Judge was:

"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".

7. Peter Jackson J in Re BR (Proof of Facts) [2015] EWFC 41 stated as follows:

"[7] The standard of proof is the balance of probabilities: Is it more likely than not that the event occurred? Neither the seriousness of the allegation, nor the seriousness of the consequences, nor the inherent probabilities alters this. "

8. Having heard all the evidence, it is open to the court to conclude that the evidence leaves it unsure whether it is more probable than not that the event occurred and accordingly, that party who has the burden of proving that event has occurred has failed to discharge the burden: The Popi M, Rhesa Shipping Co SA v Edmunds, Rhesa Shiping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948.

9. Where a respondent does seek to assert and prove an alternative explanation for a course of conduct but does not prove that alternative explanation, that failure of itself does not establish the applicant's case, which must be established to the requisite standard: The Popi M.

10. If a fact is to be proved, the law operates a binary system in which the only values are 0 and 1, therefore it is open to the court to make the following findings on the balance of probabilities: (a) that the allegation is proven, or (b) that the allegation is not proven.

11. As Lord Hoffmann observed in Re B "if a legal rule requires the facts to be proved a judge must decide whether or not it happened. There is no room for a finding that it might have happened; the law operates a binary system in which the only values are naught and one".

12. Findings of fact must be based on evidence not speculation, as Munby LJ observed in Re A (Fact Finding: Disputed Findings) [2011] 1 FLR 1817 at paragraph 26 "it is an elementary proposition that findings of fact must be based on evidence, including inferences that can be properly drawn from evidence and not suspicion or speculation".

13. Failure to find a fact proved on the balance of probabilities does not equate, without more, to a finding that the allegation is false: Re M (Children) [2013] EWCA Civ 388. If the evidence in respect of a particular finding sought is equivocal, then the court cannot make a finding on the balance of probabilities as neither the burden nor the standard of proof has been discharged: Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 Family

14. The decision on whether the facts in issue have been proved to the requisite standard must be based on all the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors: A County Council v A Mother, A Father and X, Y and Z [2005] EWHC 31 (Fam).

Questions for the court

15. In Re S [2019] EWCA Civ 1845, Peter Jackson LJ set out the fundamental questions to be asked in fact-finding hearings of this type:

"The questions that the judge therefore had to ask were these:

(1) Had the local authority proved that the injuries were inflicted as opposed to being accidental?

(2) If the injuries were inflicted, who had the opportunity to cause them?

(3) Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional 'known perpetrator' finding)?

(4) If only two people [x or y] could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an 'uncertain perpetrator' finding).

(5) Once these questions had been answered, had it been proved that the [x] had failed to protect [the child] from being injured or covered up what she knew about how he was injured?"

Definition of a non-accidental injury

16. In Re S (Split Hearing) [2014] EWCA Civ 25 Ryder LJ, at paragraph 19 of his judgment, stated:

"The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of s 31(2) of the CA 1989."

Evidence

17. Findings of fact must be based on evidence. As Lord Justice Munby, as he then was, 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"

18. When carrying out the assessment of evidence, regard must be had by a judge to the observations of Butler-Sloss, then President, in Re T [2004] 2 FLR 838 at para 33:

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

19. As Butler-Sloss P further observed in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 , the court "invariably surveys a wide canvas". Regarding the "wide canvass of evidence" the court may give regard to Lord Nicholls in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80:

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

20. The evidence of the parents and any other carers is if the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them: Re W and another (Non-accidental Injury) [2003] FCR 346. The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore, contemporary documents are always of the utmost importance: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403, per Lord Pearce; A County Council v M and F [2011] EWHC 1804 (Fam), [2012] 2 FLR 939 at paras [29]-[30]; Mostyn J in Lancashire CC v R [2013] EWHC 3064 (Fam) at paras 8 and 51. The inability of a parent to explain an event cannot be relied upon to find an event proved: Re M (A Child) [2012] EWCA Civ 1580.

21. In Swansea County Council v MB & Ors [2014] EWHC 2842 (Fam) Moor J stated:

"[27] There have been numerous first instance authorities that confirm this approach. Bracewell J observed in Re B (Threshold Criteria: Fabricated Illness) [2002] EWHC 20 (Fam); [2004] 2 FLR 200 at Paragraphs 24 and 30 that:-"Although the medical evidence is of very great importance, it is not the only evidence in the case. Explanations given by carers and the credibility of those involved with the child concerned are of great significance. All the evidence, both medical and non-medical, has to be considered in assessing whether the pieces of the jigsaw form into a clear convincing picture of what happened.

[28] The expert evidence does not sit in a vacuum nor is it to be interpreted in isolation from the other evidence. Even if an expert says that that there are a number of possible explanations for some occurrence, it is still open to the court to find on the evidence as a whole which is the probable explanation (see, for example, Re B (Non-accidental injury)[2002] EWCA Civ 752). Charles J said in A County Council v K, D and L:-"...it is the court that is in the position to weigh the expert evidence against its findings on the other evidence and thus, for example, descriptions of the presentations of a child in the hours or days leading up to his or her collapse, and accounts of events given by "zers"...properly reasoned expert medical evidence carries considerable weight but, in assessing and applying it, the judge must always remember that he or she is the person that makes the final decision."

22. As Mr Justice Ryder (as he was) observed in A County Council v A Mother and others [2005] EWHC Fam 31:

"A factual decision must be based on all available materials, ie. Be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be."

Unknown and disputed aetiologies

23. Mr Justice Baker (as he then was) highlighted the importance of affording proper consideration to the possibility of an unknown cause in Devon CC v ED [2013] 968:

"62. With regard to the latter point, recent case law has emphasised the importance of taking into account to an extent that is appropriate to any given case the possibility of the unknown cause. That was articulated by Lord Justice Moses in R v Henderson and Butler and others [2010] EWCA Crim 126 at paragraph 1:

Where a prosecution is able by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted.

In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches, even where, on examination of all of the evidence, every possible known cause has been excluded, the cause may still remain unknown.

63. In Re R (Care Proceedings: Causation) EWHC 1715 Fam. Mr Justice Hedley, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further at paragraph 10: A temptation there described is ever present in family proceedings too and in my judgment should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities. Later in the judgment at paragraph 19, Mr Justice Hedley added this observation: In my judgment a conclusion of unknown aetiology in respect of an infant represents neither a provision of professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.

24. The court is not precluded from making a finding that the cause of harm is unknown. The judgment of Hedley J in the case of Re R (Care Proceedings: Causation) [2011] EWHC 1715 sets this out:

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

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

Lies/untrue evidence

26. In R v Lucas [1981] 1 QB 720 (in particular pages 723 G-H, 724 C-G & 725 G-H), the Court of Appeal held that for a lying statement made out of court to be capable of amounting to corroboration: (i) it had to be deliberate, (ii) relate to a material issue, (iii) the motive for lying had to be a realisation of guilt and a fear of the truth and (iv) the statement had to be shown to be a lie by admission or evidence from a witness who was independent and other than the accomplice to be corroborated.

27. Lies told in court which fulfilled those four criteria were available for consideration by the jury as corroboration, but the mere fact that the jury preferred the evidence of an accomplice to that of the person charged, who therefore must have been lying in the witness box, did not enable them to treat the lying evidence as corroborative of that of the accomplice. Since the appellant's lie had not been shown to be such by evidence other than that of the accomplice who was to be corroborated, the apparent direction that a lie was capable of providing corroboration of the accomplice's evidence was erroneous and the conviction would be quashed.

28. More recently, in Re H-C [2016] EWCA Civ 136 (in particular paras 97-102), the Court of Appeal has considered the application of R v Lucas within family proceedings. McFarlane LJ (as he then was) emphasised at paragraph 100:

"One highly important aspect of the Lucas decision, and indeed the approach to lies generally in the criminal jurisdiction, needs to be borne fully in mind by family judges. It is this: in the criminal jurisdiction the "lie" is never taken, of itself, as direct proof of guilt. As is plain from the passage quoted from Lord Lane's judgment in Lucas, where the relevant conditions are satisfied the lie is "capable of amounting to a corroboration". In recent times the point has been most clearly made in the Court of Appeal Criminal Division in the case of R v Middleton (Ronald) [2001] Crim LR 251. In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt"

29. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child: H v City and Council of Swansea and Others [2011] EWCA Civ 195.

30. It is not uncommon for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for various reasons, such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or she has lied about everything

31. More recently the Court of Appeal, leading judgment of Macur LJ in the matter of A, B and C (CHILDREN) [2021] EWCA Civ 451 discussed witness lies and the Lucas direction, observing as follows:

"54. That a witness's dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms: "that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything". But this formulation leaves open the question: how and when is a witness's lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire 'Lucas' direction as given, when necessary, in criminal trials.

55. Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary: "1. A defendant's lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D's guilt. 2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D's lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. ...

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said: "99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie.

Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice. 100 ... In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt."

57. To be clear, and as I indicate above, a 'Lucas direction' will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe X or Y on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness's reliability of recall on a particular issue.

58. That a tribunal's Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.

Credibility

34. The court's assessment of the parents and other carers of the child is very important. As Baker J (as he then was) said in Re JS [2012] EWHC 1370:

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

35. In Lancashire County Council v C, M and F (Children; Fact Finding Hearing) [2014] EWFC 3, Jackson J (as he then was) stated:

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

36. Commenting on the assessment of credibility, Mostyn J in Lancashire County Council v R [2013] EWHC 3064 said:

"The assessment of credibility generally involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. With every day that passes the memory becomes fainter and the imagination becomes more active. The human capacity for honestly believing something which bears no relation to what actually happened is unlimited. Therefore contemporary documents are always of the utmost importance".

37. King LJ in Re A (A Child) [2020] EWCA Civ 1230 referred to the need for a balanced approach to the significance of oral evidence said:

"41. The court must, however, be mindful of the fallibility of memory and the pressures of giving evidence. The relative significance of oral and contemporaneous evidence will vary from case to case.

What is important, as was highlighted in Kogan, is that the court assesses all the evidence in a manner suited to the case before it and does not inappropriately elevate one kind of evidence over another."

38. More recently, Peter Jackson LJ in B-M (Children: Fact Finding) [2021] EWCA Civ 1371 [§§28-31] stated that:

"28. Of course in the present case, the issue concerned an alleged course of conduct spread across years. I do not accept that the Judge should have been driven by the dicta in the cases cited by the Appellants to exclude the impressions created by the manner in which B and C gave their evidence. In family cases at least, that would not only be unrealistic but, as I have said, may deprive a judge of valuable insights. There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2) [2011] EWCA Civ 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case: "Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core... Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities."

29. Still further, demeanour is likely to be of real importance when the court is assessing the recorded interviews or live evidence of children. Here, it is not only entitled but expected to consider the child's demeanour as part of the process of assessing credibility, and the accumulated experience of listening to children's accounts sensitises the decision-maker to the many indicators of sound and unsound allegations.

30. None of this will be news to specialist family judges and in future I would hope that in conventional family cases any submissions that unduly labour arguments based upon the dicta that I have been considering will receive appropriately short shrift.

31. As to the fallibility of memory, the dangers are again familiar to working judges, as are the problems of suggestibility in children"

Pool of perpetrators

36. When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator: North Yorkshire County Council v SA [2003] 2 FLR 849 . In order to make a finding that a particular person was the perpetrator of a non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable where possible for the perpetrator of a non-accidental injury to be identified, both for the public interest and in the interests of the child, although, where it is impossible for a judge to find on a 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] 2 FLR 668 , Re SB (Children) [2010] 1 FLR 1161.

37. In Lancashire County Council v B [2000] UKHL 16, it was held that although the local authority may be unable to identify which of the carers of a child are responsible for the injuries, the threshold conditions of s.31 Children Act 1989 can be satisfied (and, on the facts of that case, they were).

38. In Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, Peter Jackson LJ reiterated the importance of the "likelihood or real possibility" test:

"The "likelihood or real possibility" test suggested in Re O and N and adopted in North Yorkshire was decisively approved by the Supreme Court in Re: S-B (Children) [2009] UKSC 17, a case where injuries must have been caused by one parent or the other. Baroness Hale, describing it as, colloquially, a pure "whodunnit", said this:

"40. ... [If] the judge cannot identify a perpetrator or perpetrators, it is still important to identify the pool of possible perpetrators. Sometimes this will be necessary in order to fulfil the "attributability" criterion. If the harm has been caused by someone outside the home or family, for example at school or in hospital or by a stranger, then it is not attributable to the parental care unless it would have been reasonable to expect a parent to have prevented it. Sometimes it will desirable for the same reasons as those given above. It will help to identify the real risks to the child and the steps needed to protect him. It will help the professionals in working with the family. And it will be of value to the child in the long run.

41. In North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849, the child had suffered non-accidental injury on two occasions. Four people had looked after the child during the relevant time for the more recent injury and a large number of people might have been responsible for the older injury. The Court of Appeal held that the judge had been wrong to apply a "no possibility" test when identifying the pool of possible perpetrators. This was far too wide. Dame Elizabeth Butler-Sloss P, at para 26, preferred a test of a "likelihood or real possibility".

42. Miss Susan Grocott QC, for the local authority, has suggested that this is where confusion has crept in, because in Re H this test was adopted in relation to the prediction of the likelihood of future harm for the purpose of the threshold criteria. It was not intended as a test for identification of possible perpetrators.

43. That may be so, but there are real advantages in adopting this approach. The cases are littered with references to a "finding of exculpation" or to "ruling out" a particular person as responsible for the harm suffered. This is, as the President indicated, to set the bar far too high. It suggests that parents and other carers are expected to prove their innocence beyond reasonable doubt. If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case."

39. Peter Jackson LJ, in his analysis, continued that: "it can be seen that the concept of a pool of perpetrators seeks to strike a fair balance between the rights of the individual, including those of the child, and the importance of child protection... It should also be emphasised that a decision to place a person within the pool of perpetrators is not a finding of fact in the conventional sense... the person is not a proven perpetrator but a possible perpetrator"

40. Peter Jackson LJ sets out the correct approach for the court to considering real possibility:

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

41. The court may refer to the risk factors and/or factual evidence that show there is a 'real possibility' that a person within the pool is a, or the, perpetrator. It is important to ensure that the evidential basis for that 'real possibility' is properly set out, not only for point of being able properly to know the basis for inclusion, but most importantly for the assessors at the next stage to know as clearly as possible, what risk factors applied to form a basis for the risk assessments to inform the welfare stage.

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

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

Exoneration

42. In cases involving pools of perpetrators, it may be that the one or more individuals seeks to be exonerated by the court, as observed by Hedly J in Re AA (and 25 others) (Children) [2019] EWFC 64, paragraphs 263-273:

"I have been asked by a number of parties, and indeed a number of guardians, to go beyond the findings made and expressly to exonerate named individuals from complicity in the matters alleged. The reason why named individuals might seek such a finding is clear enough...

the quest for exoneration is entirely proper and requires careful consideration. It must not be driven by sympathy but by the evidence alone. If the court has concluded that someone did not do something alleged, as distinct from its not being proved that they so acted, then in common justice the court should say so. That is what I understand exoneration to mean in this context...

So what is the test for exoneration? All parties agree that it is more than simply a finding that a specific allegation has not been proved against them. I suggested an analysis that whilst the legal burden of proof at all times remains on the local authority, a party seeking exoneration assumes an evidential burden to satisfy a court of their innocence on a balance of probabilities...

where the court accepts that a party has given frank evidence, specifically accepted by the court, then the court should say so, and assuming that evidence to be consistent with exoneration, the court should say that too. That is conceptually clear, simple, and in accordance with justice. On the other hand, where the court has heard evidence about which the court has doubts or indeed concludes that it has not been wholly frank, then, although declining to make a finding, it should go no further than that"

Factors relevant to factual framework

43. In BR (Proof of Facts), Re [2015] EWFC 41 Peter Jackson J (as he then was), whilst acknowledging that each case turns on its own facts, endorsed an analysis of relevant factors to be considered by the court which had been prepared by counsel for the Children's Guardian from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

44. The risk factors were:

a. Physical or mental disability in children that may increase caregiver burden

b. Social isolation of families

c. Parents' lack of understanding of children's needs and child development

d. Parents' history of domestic abuse

e. History of physical or sexual abuse (as a child)

f. Past physical or sexual abuse of a child

g. Poverty and other socioeconomic disadvantage

h. Family disorganization, dissolution, and violence, including intimate partner violence

i. Lack of family cohesion

j. Substance abuse in family

k. Parental immaturity

l. Single or non-biological parents

m. Poor parent-child relationships and negative interactions

n. Parental thoughts and emotions supporting maltreatment behaviours

o. Parental stress and distress, including depression or other mental health conditions

p. Community violence

45. The protective factors were:

a. Supportive family environment

b. Nurturing parenting skills

c. Stable family relationships

d. Household rules and monitoring of the child

e. Adequate parental finances

f. Adequate housing

g. Access to health care and social services

h. Caring adults who can serve as role models or mentors

i. Community support

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> London Borough of Barking and Dagenham v R & Ors [2022] EWFC 216 (B) (11 October 2022) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2022/216.html Cite as: [2022] EWFC 216 (B)

England and Wales Family Court Decisions (other Judges)