Wrexham Borough County Council v CJB & Ors

I have before me an application for a Care Order with regard to the child KGH. She was born on 22^nd August 2013 and she is therefore some ten months old.

The parties and their legal representation are as follows.

Wrexham County Borough Council bring the application; they are represented by Miss Morris.

K’s mother is CJB. She is present today, as she has been throughout the hearing, and she is represented by Mr Dodd.

K’s maternal grandparents MB and DB are represented by Mr Champaneria. They have permission to apply for a Child Arrangements Order.

K herself is represented by her Guardian Mr Craig Taylor and by Miss Erwood, K’s counsel.

The other party who was present today and throughout these proceedings is Mr MEH. He is a litigant in person and has been assisted by his mother Mrs HH as a quasi-Mckenzie Friend, she having been present until Mr H gave his evidence, when she decided that she wished to leave the courtroom. She in fact left the precincts of the Court after giving evidence herself.

At the outset of these proceedings Mr H was believed, certainly by the Local Authority, to be K’s father and he was so registered on her birth certificate. During the course of these proceedings, it has become evident that her paternity was an issue and DNA testing was undertaken in March 2014. That testing confirmed that Mr H was not in fact K’s birth father and on 14^th May 2014 Mrs Recorder Morgan made a declaration of parentage under the Family Law Act 1986 as a prelude to a rectification of K’s birth certificate by the Registrar of Births and a change in K’s second name (or surname).

Mr H therefore ceased to be an automatic Respondent, but he became instead an Intervenor being permitted by the Court to defend serious threshold allegations of multiple inflicted injuries to K involving both fractures and soft tissue injuries. Mr H (who was at the outset of these proceedings legally represented) ceased to receive a public funding certificate, hence he has represented himself during this hearing. I make no observation about how precisely that state of affairs came about, but in an attempt to assist him in his disadvantaged position, I permitted his mother to be present during the course of this hearing. The absence of public funding for a litigant answering serious allegations with potentially long-lasting adverse consequences for him is obviously unsatisfactory.

The outcome of the paternity testing in relation to Mr H came as a surprise certainly to Mr H’s mother Mrs HH and to his step-father Mr AW and I will refer to this aspect again in the course of my judgment.

The hearing began on 2^nd June 2014. It continued on 5^th and 6^th June 2014 and concluded this week on 9^th and 10^th June 2014.

In addition to the relevant written documentation which has been treated as evidence in this case, I have considered also the oral evidence of the following witnesses:

The background

K is the mother’s third child. K’s half-sibling, M who was born in 2007, lives with her maternal grandparents Mr and Mrs B in R [name of village given]. Another half-sibling, DLO born in 2009, lives with his paternal grandmother Mrs E in W [name of town given].

As the Guardian has mentioned, there were concerns about neglect and home conditions by the mother in W (see page 6 of the Guardian’s final report) and Mr B in his oral evidence to me told me about this period in the mother’s life.

In or about 2012, the mother began a relationship with Mr MH. This was described to me by the two of them as being an on-off relationship. Certainly there had been a separation in the course of 2012 and the mother plainly had a sexual encounter with someone else leading to K’s conception towards the end of 2012, K of course having been born at the end of August 2013.

The other candidate for paternity identified in the course of these proceedings was JA, a doorman by occupation. He also has undergone a DNA test and he is not K’s father either. A further candidate has been mentioned during the course of this hearing, but I have no means of knowing whether this be correct or not.

The relationship between the mother and Mr H was resumed and in the early months of 2013 it is the common position now of the mother and Mr H, that Mr H was informed of the pregnancy and of the possibility that he might not be K’s father. The maternal grandparents Mr and Mrs B were also aware of this prior to K’s birth.

Despite this uncertainty, Mr H and the mother agreed that K would be raised as Mr H’s child. Mr H was present at K’s birth and they each of them procured a false registration of her birth. Following failed attempts to get Mr A to accept his responsibilities, this plan was pursued jointly by the mother and Mr H.

Obviously, in the light of the DNA testing, Mr A has no responsibility to discharge, the mother now accepting the validity of that DNA test, despite an earlier suggestion by her that the incorrect donor had been DNA tested by the Local Authority in Mr A’s case (a suggestion which I regard as wholly fanciful).

Mrs HH and Mr W were, however, kept in ignorance of this uncertain paternity and they assumed the role of conscientious paternal grandparents, welcoming K as part of their family and baby-sitting regularly after her birth. It was only in the course of these proceedings that this deception was disclosed to them, and understandably they were shocked to learn the truth.

This active concealment by Mr H and the mother is a demonstration of their lack of candour and it reflects very badly upon their credibility. This was a deception which was maintained for a significant period of time, it was a planned and not a momentary deception and it involved a false registration of paternity. This I am afraid is but one instance of the mother and Mr H’s lack of honesty and deceit.

During the summer of 2013, the mother moved to an address in WR in NB, W [address given]. This was compact accommodation; a terraced house with two bedrooms upstairs and a living room, kitchen, utility room and a bathroom downstairs. K’s cries of pain in response to any inflicted injury would very easily be heard by any adult sharing this accommodation if perpetrated within that domestic environment.

Mr H did not live full time with the mother at this address. He spent approximately four or five nights per week with the mother and the remainder of his time at his own mother, Mrs H’s address in R [name of village given]. This pattern continued both before and after K’s birth. The mother was apparently claiming a variety of State benefits and Mr H’s wages were limited, hence this subterfuge became necessary. It is an arrangement of course which is commonly encountered by the Courts, but again it is a basically dishonest arrangement.

Mr H worked a minimum of sixteen hours per week with M [name of employer given] and when he was offered additional shifts, he worked those as well.

The mother was basically a full-time mother, but she worked part-time employed at BB [name of employer given] following K’s birth and in particular, in approximately October and November 2013.

The mother and Mr H jointly undertook all the routine tasks of child care and despite the fact that Mr H had no previous experience of caring for infants, he and the mother would feed, bathe, change and dress K when required, including night-time duties when that was necessary. It was confirmed to me by the two of them that K was basically cared for by them, i.e. the mother and Mr H.

Occasionally, and for limited periods, third parties would look after K. Mrs HH and her partner Mr W cared for K on alternate Sundays and overnight once per month, approximately. K would also be looked after by her maternal grandparents or by a maternal aunt. However, the mother and Mr H both confirmed to me that K would always be returned to their care without any apparent sign of injury or distress and it has not been suggested that any third party apart from Mr H and the mother are potential perpetrators in this case.

The adults therefore who had most access to K and the greatest opportunity to inflict injury upon her were the mother and Mr H. For much of the time, they were in the home with K together. Sometimes the mother would be alone with K, for example when Mr H was at his mother’s staying or when he was at work. Sometimes, and less frequently, Mr H would be alone with K, for example when the mother was at work or visiting. Accordingly, the pool of perpetrators is confined essentially in this case to two adults; her main carers, namely the mother and Mr H.

Both the mother and Mr H were interviewed by the North Wales Police on 3^rd January 2014. It is true that Mrs HH and Mr W were also interviewed by the police on 9^th January 2014, but no one has seriously suggested in this case that they caused K’s multiple injuries.

In general terms, the mother and Mr H confirmed to me that K was an easy baby to care for. They have tried to convey an impression of domestic harmony, which I am afraid contrasts very starkly with the unchallenged medical evidence in this case. Although they have maintained on various occasions and to a number of different individuals during these proceedings that they have separated, it was confirmed that Mr H only in fact moved out of the mother’s home address on 14^th May 2014 and their emotional entanglement is, in my judgment, far from over.

K’s medical presentation

For the purposes of this section, a number of medical reports from a variety of sources have been obtained. Since there is no dispute about the medical evidence, I propose to rely primarily upon the second opinion reports of Dr Sprigg and Dr Wild, rather than the reports of the investigating clinicians. More particularly, there is also a statement of medical concurrence which summarises the agreed medical position in this case, namely that K sustained multiple inflicted non-accidental injury. Indeed, for these purposes, the statement of concurrence (see F142 to F147) may be read into this judgment.

On 30^th September 2013, following a medical examination at YWM [name of hospital given] at 11:56 hours, a number of soft tissue injuries to K were identified. These were first apprehended that morning during the morning feed and following the involvement of the health visitor, the hospital presentation was facilitated.

A skeletal survey, an eye examination and blood testing were all normal. The following injuries were identified:

Dr Brendan Harrington’s report (see I74) indicated that when K arrived on the ward:

“…some additional non-blanching patches had appeared on K’s trunk and lower limbs”.

These marks made the doctor concerned about an evolving septicaemic blood infection. However, the marks on the right forearm and the hands were not in any pattern which the doctor had ever seen arising due to a septicaemic illness. A tentative suggestion of an evolving haemangioma (a birth mark due to an abnormal proliferation of blood cells below the skin) was made by the doctor. This somewhat inconclusive medical conclusion was, however, of sufficient concern to lead to a multi-agency strategy meeting on 3^rd October 2013 at the hospital.

The parents’ account of K’s presentation (and I may describe Mr H and the mother as the parents for the purposes of this judgment, by way of shorthand) appears at page I54 to I56. It is obvious that both the mother and Mr H had access to K overnight on 29^th to 30^th September 2013. There is also some suggestion that K was unwell or unsettled on the morning of 30^th September 2013.

Having regard to the then inconclusive nature of the medical conclusion (which has now of course been revised by the second opinion clinicians particularly having regard to subsequent developments) K was discharged from the hospital and was returned to the care of her mother and Mr H. However, the social worker Deborah Collins together with the health visitor Debra McCloud by periodic fortnightly visits kept K’s situation under review. Furthermore, the mother and Mr H were told by Dr Harrington to return K to hospital if any more marks/bruising to her became evident.

On 5^th November 2013, there was a Child in Need meeting and then on 2^nd December 2013 an important home visit by Miss Collins to WR [address of family home given]. It was late afternoon, dark outside when Miss Collins called but she was allowed into the family home and she had the opportunity to see K. There was no evident mark visible to K’s face, K appeared to be “happy and contented” and Miss Collins held K for approximately ten minutes until she became “a little niggly” (see I62). The mother mentioned her own health (vertigo or migraine) and her job, and Mr H mentioned his additional working hours and his early starts. However, in general terms, nothing caused Miss Collins any concern during this visit. Indeed, Miss Collins discussed the ending of the Child in Need Plan with the mother and Mr H because things were going so well. There had been in fact a Child in Need meeting planned for the following day, 3^rd December 2013.

On the morning of 3^rd December 2013, Mr H noticed a mark to K’s face. Mr B told me in oral evidence that at about ten o’clock that morning he called round to see his daughter and Mr H. This apparently was at the instigation of Mrs HH who had not heard from her son for a little while. Mr B saw K for about ten or fifteen minutes. There was no obvious sign of injury to her face and K’s carers (i.e. her mother and Mr H) did not point out any injury to Mr B.

An interval then passed until the health visitor became involved, and at about 13:30 hours (see J141) the health visitor confirmed a number of injuries and noted a significant weight loss down from 5.82kg on 5^th November 2013 to 5.63kg on 3^rd December 2013. The Child in Need meeting was then followed by a Child Protection Medical at M Clinic [name of clinic given] which was undertaken by Dr Daniel. Thereafter, an admission at YWM was arranged.

Initially, Mr H attended the health visitor, the meeting and the child medical and he was joined later by the mother at the hospital. It is unclear to me whether this was due to the mother being upset or indeed whether the mother suffered from flu at the time.

The following soft tissue injuries were noted by the clinicians:

Subsequent skeletal examinations revealed more serious bony injuries to the left side. There is a skeletal diagram at page F86 which identifies the sites of injury:

The mother and Mr H were questioned about these injuries. In general, their account was that the multiple bruises had come from nowhere, i.e. they had become apparent on the morning of 3^rd December 2013. Each of them had access to K on 2^nd December 2013 and 3^rd December 2013, and indeed over the intervening weeks since 30^th September 2013.

There is some suggestion that K suffered from colic or teething and she may have been niggly on 16^th November 2013. However, there is no convincing and credible explanation given by either of them, either to clinicians, to social workers or to the police for these multiple and very serious inflicted injuries. This very significant omission unavoidably affects their overall credibility and of course their reliability.

They have each of them, respectively given accounts about their own movements and their care of K. Sometimes there are differences between them, but for additional reasons that I shall come to in a moment, their credibility (each of them) is extremely poor. Accordingly, it is impossible for me to determine even on a balance of probability whether their account of what happened in WR in the hours leading to K’s presentation on 30^th September 2013 or 3^rd December 2013 is true or not. In reality, once the door closed on that home, I have no idea precisely what occurred, still less why and how it came about.

The medical evidence is clear, and I shall summarise from the Schedule of Concurrence and from the other medical evidence in this case:

Having regard to these extremely serious injuries, a joint investigation followed and protective proceedings were initiated. An Emergency Protection Order was obtained on 6^th December 2013. An application for an Interim Care Order followed and the first such Order was granted from 13^th December 2013. K has been accommodated by Local Authority foster carers but with contact provision being afforded both to the mother and until recently to Mr H as well, despite the fact that he is not of course K’s birth father. The case was then transferred to the County Court (as it then was) and timetabled for this hearing. Assessments have been undertaken in relation to the mother and also in relation to the maternal grandparents, Mr and Mrs B.

The Local Authority’s Plan and the response of the parties thereto

The Local Authority propose that K should be placed with the maternal grandparents under a Child Arrangements Order. The effect of such an Order, whereby K would be directed to live with Mr and Mrs B would be to confer parental responsibility upon them for the duration of that Order, which they would share of course with the birth mother. That is the effect of Section 12(12) of the Children Act 1989 as amended by Schedule 2, paragraph 21(3) of the Children and Families Act 2014. This would be coupled with a Supervision Order for a period of twelve months. The Local Authority would assist with the supervised contact arrangements for the mother, away from Mr and Mrs B’s home (at least initially), with the maternal grandparents eventually taking over this responsibility.

A process of introductions has already started, since K has already stayed overnight with Mr and Mrs B and with M at their home and this is to be continued and to be accelerated, with a view to K’s imminent placement with them. It is expected that this process will be complete within approximately two weeks and by 22^nd June 2014. During this period of introduction, the mother’s contact with K would temporarily come to an end, but would be resumed thereafter.

Following this temporary interruption, the Local Authority propose contact between K and her mother at a frequency of once every week. I should indicate that the current contact arrangement is twice a week and therefore there would be a reduction from that level. The Local Authority, having listened to the Guardian’s evidence, have proposed a modification to that arrangement, so that the mother’s contact should be facilitated at a frequency of fortnightly for approximately two hours once the process of introduction has been completed. The mother is opposed to that reduction and would wish to have the more frequent weekly contact (at the very least) as originally proposed by the Local Authority.

No contact is proposed for Mr H and he has decided not to continue with, nor to press for future contact with K. This of course replicates his parents’ position. There is no blood link and the emotional tie objectively is extremely limited, bearing in mind K’s removal since last December. With regard to Mr H, it is proposed that there should be an Order spelling out precisely that there is to be no contact between him and K, and that is accepted by every party and accepted by Mr H as well.

Mr and Mrs B obviously support this Plan. I have their written submissions made on their behalf confirming that to me.

The mother accepts the Plan for placement (if of course K cannot be returned to her care), but since she resists any finding that she is involved in any way in inflicting injury upon K, it follows that if this finding were to be made, she remains a potential carer for K and would press that position upon the Court.

The Guardian in his final written report recommends this Plan to the Court. The Guardian in his oral evidence had some reservations about a Supervision Order, in the absence of a Final Care Order to safeguard the placement with Mr and Mrs B. However, in the course of this hearing and having heard Mr and Mrs B give oral evidence, he was reassured about Mr and Mrs B’s protective capabilities (a conclusion which I share) and the Guardian therefore reverted to his original written recommendation with regard to placement. The Guardian, however, recommended that the mother’s weekly contact (as originally proposed) was too frequent. It should be reduced to once every two weeks for two hours; a recommendation which has now been accepted by the Local Authority.

There was no need for any Injunctive Order to exclude the mother from the maternal grandparents’ home according to the Guardian. The maternal grandparents could police the arrangements adequately and would have paramount regard for K’s safety.

Ideally, the Guardian indicated that the introductions should continue for a period of two weeks and be less rushed. Hence the Child Arrangements Order should effectively take effect in about two weeks time from 22^nd June 2014 (as now accepted by the Local Authority), allowing the Interim Care Order to run until then with the Local Authority promoting extended staying contact for the maternal grandparents in the interim to promote the Introductory Plan.

A defined private law Order for contact (or child arrangements) would then be appropriate for the mother, allowing the mother to spend time with K once every two weeks on a supervised basis; that was the Guardian’s recommendation to me. Of course, in this case if private law orders replace the public law orders, there would no longer be a process of statutory review and ultimately it would be left to Mr and Mrs B and the mother to make the arrangements with regard to K, but in Mr and Mrs B’s case they will have paramount regard, obviously for K’s safety.

The Guardian was of the view (as I have indicated already) that Mr H had no need to spend time with K for the reasons that I have mentioned already.

Although M of course is not my direct concern in these proceedings, I believe ideally that no distinction should be made between her and K and the Guardian I think agreed with that suggestion.

Having regard to K’s safety, the Guardian was quite clear – if the Local Authority become aware that the mother is having unsupervised contact with or access to K, a fresh threshold of significant harm would thereby arise and the Local Authority potentially would need to resort to a contingency plan which might involve K’s removal from the care of Mr and Mrs B. I hope that will not be necessary. In endorsing the Local Authority’s Plan, I of course am endorsing the ability of Mr and Mrs B to care appropriately for K throughout her minority.

The legal provisions to be applied

The findings relating to K’s injuries are relevant, both to Section 31(2) of the Children Act 1989 but also to Section 1(3)(e) of the Children Act 1989, i.e. in relation to both public and to private law applications.

The injuries inflicted in the period September to December 2013 are relevant to whether K suffered harm while in the care of her mother or Mr H.

The standard of proof, of course, is the balance of probabilities and this applies not only to the identification of “harm” but also to the identification of any perpetrator of such harm. That standard of proof, applies both to public and to private law proceedings and no distinction arises.

In this case, there is no real dispute about the harm sustained by K medically with regard to the extent and the likely causation of the injuries sustained. The real issue revolves around the identity of any perpetrator. All relevant factors can be taken into account in relation to this issue.

It was said by Lady Hale in the case of Re B [2008] 2FLR 141:

“31.

…day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.

32.

In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place.”

In assessing the inherent probabilities or improbabilities, in general I believe the following are more probable, unless there is evidence which leads me to a different conclusion:

If I conclude in a case of non-accidental injury that I cannot identify a perpetrator to the necessary standard, then in an uncertain perpetrator case I must consider whether I can identify a group of possible perpetrators applying the following test: is there a likelihood or a real possibility that an individual was the perpetrator of the inflicted injury? Again, this applies to public and private law proceedings without any distinction being made.

The threshold under Section 31(2) of the Children Act 1989 or the identification of “harm” under Section 1(3)(e) of the Children Act 1989 could be satisfied if I conclude that either a parent was a perpetrator of a non-accidental inflicted injury or in an uncertain perpetrator case, if the group of possible perpetrators was comprised of a parent and a carer, i.e. Mr H. If I am able to identify a perpetrator, then I should do so. However, I should not strain to do so where that is not possible. An innocent party can of course be tainted by an uncertain perpetrator outcome, which can have far reaching and very serious consequences. On the other hand, the consequences of the identification of the incorrect perpetrator could be disastrous both for K and perhaps for other children as well. Accordingly, the stakes in this case are extremely high.

In this case, it is suggested that both the mother and Mr H have lied or concealed the truth. This may be relevant if a lie is deliberate and is not mistaken. I remind myself of the guidance given in R v Lucas [1981] QB 70. A witness may lie for a variety of reasons and motivations which may not be related to culpability. The fact that a person may lie about one aspect does not necessarily mean that he or she is lying about another aspect. If there is no innocent explanation for a lie, then it can be taken into account in my overall assessment of that witness. The more significant and the more frequent be any lie, then of course the more relevant it may be. Of course, in this case there are only two potential perpetrators identified; the mother and Mr H.

In Care proceedings, if the threshold is established I must next consider the Local Authority’s Care Plan having regard to the paramountcy of K’s welfare, applying the so-called ‘checklist’ provisions under Section 1 of the Children Act 1989. In a private law case I must also consider the paramountcy of K’s welfare and of course the appropriate ‘checklist’ provisions.

In accordance with the Convention, a Care Plan must be a proportionate and a necessary response to the risk of harm. In Re B [2013] 2FLR 1015, a Care Order depriving a parent of his or her care of a child, particularly where this involves a placement outside the birth family by way of adoption, is to be considered as a last resort. In cases involving adoption, consideration of the pros and cons of each placement option is required. In this case, that outcome is not contemplated. Here, the Local Authority propose a private law order, entrusting K to the care of her maternal grandparents, and that is of course a familial placement.

In the circumstances of this case, if I were to conclude that the mother was the sole perpetrator of K’s injuries, or even if she were involved in a pool of possible perpetrators, the absence of any convincing overall account of how the multiple injuries came about leads to a conclusion that the risk of future placement with the mother is either unacceptably high or is incapable of proper evaluation. As an uncertain perpetrator, she would have to be treated as a possible perpetrator. These injuries are multiple injuries caused in separate episodes, when K was only weeks old. If caused as a result of a loss of self-control, that was not an isolated episode but rather a repeated, a sustained and a serious absence of self-restraint. The risk to K’s future physical safety, as a vulnerable infant would be unacceptably high and would rule out the mother as her potential future carer.

In these circumstances, removal from her care would be the only proportionate response; an outcome which I believe is accepted by the mother herself if she is found to be the sole perpetrator or within the pool of possible perpetrators.

As I have indicated already, in this case happily there is a group of familial carers available to care for K and there is general agreement that this placement would be in K’s best interests. There is therefore no need for me to weigh up the pros and the cons of long-term foster care versus Mr and Mrs B’s potential care in these circumstances, since the outcome is perfectly obvious; and no one contends for any other different outcome. K’s placement with her half-sibling and with her maternal grandparents is obviously the least interventionist and most proportionate outcome in these circumstances. Mr and Mrs B have demonstrated already their ability to care for M, reflected in the assessment undertaken of them. Despite Mrs B’s use of a wheelchair, the social worker’s evidence was quite clear; with the assistance of Mr B, they could each of them (and the two of them together) provide appropriate parenting for both M and K as a couple throughout those children’s minority, if that became necessary.

The issue of perpetration and related factors

Both the mother and Mr H had the opportunity to inflict injuries within K’s home. On balance, the mother probably had the greater opportunity, but I could not conclude on this basis solely that Mr H should be totally excluded. His work records make it clear that he cannot be so excluded.

Neither the mother nor Mr H have previous convictions of any relevance nor is there any past indicator of behaviour which is remotely comparable to the behaviour evident in this case in relation to K.

These emerged as late allegations in the mother’s third statement dated 3^rd June 2014. Mr H accepts that he used cannabis but periodically and not to the extent alleged by the mother and without the effect upon his behaviour asserted by the mother either.

Two episodes of violence are alleged; one involving a push against a door, the second a head-butt to the side of the head. At best, Mr H was prepared to accept an elbow during his sleep. There is no supporting evidence in relation to either of these episodes of alleged domestic violence. On balance, having regard to the credibility and the timing of these allegations, I do not conclude on a balance of probability that Mr H was violent towards the mother as she alleges, still less that I can draw any conclusion that by reasons of these episodes he is more likely to be the perpetrator of K’s injuries.

Similarly, the cannabis misuse by Mr H does not lead me to conclude that he repeatedly injured K as the sole perpetrator. I believe these allegations are thrown in by the mother at the eleventh hour in an endeavour to assist her case.

Of more significance is the Facebook evidence produced by the mother originally to support the father’s cannabis misuse. This is more revealing in relation to other aspects of this case. These messages passing between the mother and Mr H essentially represent one long conversation between the two of them, between 15^th May and 1^st June 2014 approximately. This shows that despite their physical separation (apparently on 14^th May 2014, if indeed this occurred), they are still emotionally intertwined an enmeshed one with the other. Indeed, each of them previously indicated that their mutual separation had occurred since April 2014, because that was recorded in a Court Order on 7^th April 2014 (see D107). This earlier assertion is hardly consistent with this Facebook evidence which has come to light recently. Furthermore, the Guardian visited the mother on three occasions in April 2014 and in May 2014, only to find Mr H present on each occasion (see page 6 of the Guardian’s final report).

Each of them (i.e. Mr H and the mother) have confirmed their continued love for one another despite what has happened to K, and in the mother’s case, despite the allegations she makes against Mr H as a sole perpetrator (submissions made on her behalf today by Mr Dodd).

I should indicate that the mother and Mr H are a young and an attractive couple. It is obvious in the courtroom that they remain attached to one another. I could not possibly depend upon that mutual attraction evaporating despite their oral protestations that their relationship is over. Indeed, it became obvious in the course of Mr H’s evidence that before this case had started last week, he and the mother intended to get back together after the conclusion of this hearing. That is evident from the Facebook messages and it applies to a common desire by the two of them. To my mind, it is therefore equally likely that they may resume a future relationship and K’s future protection would be very much a secondary consideration for the two of them. The mother and Mr H’s enduring relationship, of course, flies in the face of the mutual hostility by their respective families which became evident in the course of this hearing, as the mother told me:

“Our families are at each other’s throats, arguing between themselves, my sister and M’s sister.”

As Mr H told me in evidence, he and the mother let the families fall out between themselves, while they carried on together. Indeed, they were having a sexual relationship at least as recently as the end of 2013, which was confirmed of course by the medical evidence in relation to the mother’s recent termination.

This section will deal with what appears to me to be the most significant and relevant indicators in this respect. This is not intended to be a comprehensive account of each and every untruth revealed by the mother and Mr H during this case (if I were to attempt that exercise, I would be here all day; and I need to keep this judgment to a manageable length).

So far as the mother is concerned, there is an issue of some significance around K’s paternity and the agreement between Mr H and the mother. There are a number of aspects relating to this issue. I bear in mind of course that these individuals have been together with ample time for discussion, for collusion and of course for conspiracy.

Firstly, I have already dealt with the concealment from Mrs HH. That impacts upon Mr H as well as the mother. However, the mother maintained to Deborah Collins that she had never had a sexual relationship with Mr JA (see I7), and she maintained this in the Witness Box. Accordingly, she was adamant to Miss Collins that Mr H was K’s father. I accept Miss Collins’ oral evidence about that. The mother lied about this aspect to her and she maintained that lie in this courtroom.

I accept also that the mother told the health visitor/midwife in early 2013 that Mr A was the father, that he (Mr A) was her partner and that they were saving up for accommodation. The mother accepted this lie, saying that she did not want the health visitor/midwife to think that K was the product of a ‘one night stand’. Mr B also had reason to believe that Mr A was K’s father rather than Mr H, he having been told as much by his own daughter.

I conclude that the mother has played fast and loose with this issue, saying whatever is of perceived advantage to her at any particular time.

Mr and Mrs B in discussions with the Guardian have confirmed a relationship between Mr A and the mother (see page 5 of the Guardian’s report). The mother denied this in an interview with the Guardian as recently as 12^th May 2014. She knew nothing about Mr A (she said) and this I find is another lie by the mother to the Guardian.

This dishonesty is compounded because neither Mr A nor Mr H in fact are K’s father. Indeed, incredibly, the mother told me that she could not identify K’s father nor indeed any occasion at the relevant time when she had sexual intercourse with another. She told me that there had been occasions during this time when she had drunk alcohol to excess and suffered memory loss. However, she did not indicate to me that when she regained her consciousness and awareness, that she had been subjected to sexual intercourse without consenting to it nor being aware of it. Indeed, to the contrary; she asserted that no intercourse had taken place on these occasions.

It is of course true that the birth of every baby is a miracle, but in K’s case I do not believe this literally to be the case. The mother, I conclude, is concealing the truth in relation to K’s conception for reasons of her own.

Another candidate has been mentioned by Mr H in relation to paternity, and that is SJ. I should be careful in relation to this individual because he has not been given any notice of these proceedings nor has he been involved in the proceedings. As I have said already, I have simply no idea as to whether there is any truth in this allegation or not.

In this context, it is important to remember that neither the mother nor Mr H told the police nor social workers at the outset that there was any uncertainty about K’s paternity, nor indeed did they disclose the agreement that Mr H was to bring K up as his child. This would be a very relevant factor in the Child Protection investigation. For example, if Mr H had not bonded with K because of his underlying uncertainty about paternity, that could be a very important factor in relation to the issue of perpetration. That factor was not disclosed to the authorities conducting that investigation.

I accept the evidence given to me by Mr Gareth Morris. On 24^th February 2014 the mother did exaggerate her presentation to him of her symptoms following an overdose. She pulled herself together when the paramedics arrived. This was but one example of the mother’s histrionic and exaggerated responses to professionals, probably to elicit sympathy. The overdose seemingly was a response to the receipt of Dr Sprigg’s report. Although somewhat inconsistently, the mother in her oral evidence (like Mr H) told me that she only appreciated the significance of Dr Sprigg’s evidence, when he gave it live on Monday of last week. This in the case of both of them (the mother and Mr H) I believe to be another lie; they have each realised, since at least the police interview in January 2014, how serious the position was with regard to K and who was in the frame and what injuries occurred. To say that that realisation dawned upon them on Monday of last week is simply untrue.

Next, in relation to the mother’s credibility and incredibility, I turn to Miss Collins’ evidence (which I accept). At a Child in Need meeting in November 2013, the mother reported that the maternal grandmother had only one year to live due to her ill health. Mrs B denied saying anything of the kind in her oral evidence to me. The maternal grandmother, while she has difficulty with her mobility (which I have seen for myself) is not to my knowledge suffering from an imminently life-shortening condition. K would hardly be placed with her if she were. This is therefore another exaggeration by the mother, probably to gain sympathy.

Next, in relation to the mother, the mother lied to the social worker Miss Blyth on 14^th April 2014, when she attributed her missed contact to a burglary which had been reported by her to the police and she asserted that she had had to wait several hours for the police to attend to take the relevant details. No such report was in fact logged by the North Wales Police. Whether the mother was actually burgled or not, I do not know. The Guardian said to me that was not the case, on the basis that the mother’s home and the living room in particular was so confined that she could not possibly sleep through the removal of her belongings. The Guardian may indeed be correct with regard to that, but somewhat curiously Mr H was prepared to come to the mother’s aid at the eleventh hour and he suggested that things had indeed gone missing, although I would not take that as a reliable indicator that it was necessarily the case. However, what is beyond peradventure is that the mother certainly lied about reporting any incident to the police, probably to cover up for a missed contact. This was a sustained lie; it was not a slip of the tongue. The mother admitted this lie about the police report in the courtroom last week. The lie about police involvement was given to the Guardian again as recently as 12^th May 2014.

Next, in relation to the mother, the mother accepted that the first sentence at paragraph 2 of her statement (see D34) was a lie, i.e. that she believed that Mr H was K’s father up to the DNA test. In the light of their earlier agreement to treat K as Mr H’s child despite her uncertain paternity, that, it seems to me, was an irresistible concession by the mother.

Finally, the mother admitted that she had misled Mr H to believe that M was in fact her sister rather than her daughter.

In relation to Mr H, there are also serious issues of credibility. I have referred already in the passage relating to the mother to a number of untruths and concealment of truth shared by Mr H as well as the mother, but in relation to Mr H specifically, paragraph 1 of his second statement of evidence is untrue in the light of his oral evidence to this Court about K’s uncertain paternity and the agreement between him and the mother with regard to K’s upbringing as a child. In this regard, Mr B gave a far more truthful account (see E63, paragraph 26).

Secondly in relation to Mr H, paragraph 3 of the same statement is untrue:

“I have now separated from C.”

As at 19^th March 2014 (the date of that statement) that assertion was, I find, deliberately untruthful. In that respect, the mother’s assertion to the same effect in paragraph 8 of her statement of 12^th March 2014 is also deliberately untruthful. These two individuals will lie and lie without conscience in Court statements with or without a declaration of truth, despite being warned of the possible consequences of such conduct.

In relation to Mrs HH’s desire to leave Court abruptly during Mr H’s evidence, I need to exercise caution with regard to that before concluding that she was so disgusted with her son’s overall performance in the Witness Box, as an accomplished liar, that she in effect abandoned him to his fate. That, it seems to me, would be a dangerous and an unfair inference to draw without hearing from Mrs H directly about what her motivation was.

This of course is the substance of the mother’s case against Mr H, i.e. that he can be identified (as a result of this hearing) as the sole perpetrator of K’s injury.

In paragraph 10 of her statement of 2^nd June 2014 (for the first time), the mother gives the following account:

“I recall in or around February 2014 MH returned home from a shift at M [name of employer given] and told me that he had left work early and attended at the police station. He mentioned that on one occasion in November 2013, when I was working a shift at BB [name of employer given], he was changing K’s nappy on the sofa. He went to grab either the wipes or the nappy and K rolled off the sofa. MH went to grab K to stop her from falling and grabbed her by the arm and leg and yanked her up back onto the sofa. K cried for a few minutes and then stopped. MH told me that if K had carried on crying, he would have come to work to get me. As K had stopped crying, he thought she was okay and then she went back to sleep. The next day, MH told me he was going to see his solicitor to inform her. He returned a few hours later and admitted that he had not been to the police station and his solicitor had told him the mechanism he had described could not have caused the injuries. In Court on 14^th May 2014 it became evident that MH had not told his solicitor about this incident at all. I recall that on the day MH told me he had been to the police station, I telephoned my father to involve him.”

Now, it follows from the earlier paragraph that this also must have been in February 2014, the narrative continues:

“A conversation then took place between my father and MH which I was not party to. I do not know exactly what was said between them. I do know that my father told MH to be careful because he could get himself into a lot of trouble.”

Mr B (the maternal grandfather) at page E92 of his statement on 23^rd May 2014 says this in relation to a statement by the social worker Miss Blyth (see E63):

“C did call me and said, ‘Dad, you’re never going to believe this but MH has left work early and gone to the police station and admitted that it was him that caused these injuries to K.’ I said, ‘Are you sure?’ She said he had left work. MH was with her. I asked that she put him on the phone. I asked him what this was all about. He said that he had been to the police and that he had been advised by the police to go his solicitor first and then speak to them. I said, ‘You want to be careful. If this is true, you will be in serious trouble.’ I asked him why is he saying this now. He said that at least C can get K back. I told him it doesn’t work that way. A day or two later I spoke to C and asked what the outcome was with MH and the police. She said that he had not been to the police at all.”

Mr B in his evidence thought this had happened in December 2013, about one week after the hearing which took place on 12^th December 2013 before me. Assuming the date referred to by the mother was February 2014, there is no explanation by the mother for the delay in disclosing this extremely important conversation. Miss Blyth (see E63, paragraph 26) recalls a similar conversation with Mr B before Christmas 2013, but that again is reported in the context of a fabricated admission by Mr H with Mr B advising caution.

There are of course very significant differences between the accounts given by the mother on the one hand and by Mr B/Miss Blyth on the other. The thrust of Mr B’s account is that Mr H was prepared to give an account to the police to facilitate K’s return to her mother. Furthermore, the timing of this disclosure (according to Mr B) is at variance with that of the mother’s. Is it December 2013 or is it February 2014? It is to be remembered that Mr H of course was interviewed by the police on 3^rd January 2014. It was certainly not disclosed to the police by Mr H in that interview, nor by anyone else to the police as a reliable confession of injury by Mr H. Otherwise (I infer) it would have been used by the North Wales Police in the course of that interview.

I should also note that this explanation by the mother (and this was Dr Sprigg’s evidence), even if it might potentially account for the metaphyseal fractures (and this would amount to an inflicted injury in itself) would not account for the transverse forearm fracture nor of course would it account for the soft tissue injuries. At the very best, the account given by the mother in paragraph 10 above would be a partial and an incomplete account of K’s injuries. Of course, the mother might allege that Mr H, having admitted such serious wrongdoing is more likely to be the sole perpetrator of the remainder of K’s injuries as well.

So far as Mr H is concerned, in his oral evidence he denied telling either the mother or indeed Mr B what is alleged above. He said this simply did not occur and essentially the mother has made up this account about him, as has Mr B.

On balance, having heard all three witnesses, I conclude on a balance of probabilities that there was a telephone discussion between Mr B and Mr H about some sort of disclosure being made by Mr H in relation to K to assist the mother in having K returned to her care. I accept that Mr B advised caution and (on his evidence) spoke to Mr AW about this incident as well. I do not, however, believe that this amounted to a credible confession of injury by Mr H with regard to K, nor was it perceived and treated in that way by either Mr B, by Miss Blyth nor indeed by the mother herself. Indeed, according to Mr B’s oral evidence to me, the mother told him by reference to Mr H:

“The dick has gone to the police and admitted it.”

That hardly indicates a serious acceptance by the mother of a confession made by Mr H.

Furthermore, I believe the mother has embellished this episode and moved its timing to February 2014 (after the police interview with Mr H) probably to point the finger at Mr H, making its detail more compatible with the medical evidence and amplifying the detail as well. Unfortunately for her, it does not account for all of the injuries, so it would not be wholly exculpatory of itself in any event.

Mr H, however, is lying again when he denies any conversation took place at all with Mr B. I suspect a clear admission by Mr H in his police interview on 3^rd January 2014 in the terms outlined by the mother would have certainly led to police action in relation to Mr H.

The mother, therefore, is not telling me the whole truth about this alleged “confession” by Mr H and I would certainly not make a finding that he was the sole perpetrator of K’s injuries or indeed of some of her injuries on the basis of such an eleventh hour and timely allegation by her.

Where, therefore, does this leave me in relation to the mother and Mr H? The Local Authority and the Guardian and indeed Mr and Mrs B’s advocate ask me to find that K’s injuries were perpetrated while in the care of Mr H and the mother without identifying a single sole perpetrator of those injuries.

Mr H denies that he is the sole perpetrator and by inference he contends that it is the mother who is responsible. In essence, he relies primarily upon the greater opportunity that the mother had to perpetrate K’s injuries.

So far as the mother is concerned, she indicates (as I have said already) that she believes that Mr H is the sole perpetrator. I am reminded of the effect of the Lucas direction, to which I have referred already. It is said on the mother’s behalf that the lies acknowledged by her are not determinative of culpability; she has an explanation, a different explanation, for several of them, and the mother has of course asserted that the confession made by Mr H to her in February 2014 is accurate and can be relied upon. Again, in relation to that issue, I have dealt with that already.

It is asserted on the mother’s behalf that Mr H is an accomplished liar with poor credibility and that accordingly I can reach a conclusion that he is the perpetrator of K’s injuries. I am afraid that I cannot accept that submission made on the mother’s behalf nor the submission made on Mr H’s behalf. Even on a balance of probability, I cannot distinguish between the two of them. They are both unreliable, they are both serial liars. They can lie to professionals; they can lie in Court statements. They both had the opportunity to inflict injury, the mother has been a neglectful parent historically and K was of course not Mr H’s child.

In being unable to identify a sole perpetrator, I have a terrible feeling that the mother and Mr H may be well satisfied with that outcome. They will have saved their own skins and they will probably regard that as a victory. In reaching that conclusion, I have the feeling that I have failed K, but I have done the best that I possibly can.

The findings of fact, therefore, are as follows on a balance of probability:

The conclusion in this case

Having regard to the findings I have made, it is unavoidable that K cannot be returned to the care of her mother and the only appropriate placement for her is with her maternal grandparents Mr and Mrs B.

I accept therefore the Local Authority’s Plan, recommended also by the Guardian in this case. As I have said already, Mr and Mrs B have demonstrated their care for M. They appear to me to be sincere in their wish to protect her and to care for K as well.

Accordingly, I make the following Orders. A Child Arrangements Order will take effect from 22^nd June 2014 and K will live with Mr and Mrs B under that Order with effect from that time. K will spend time with her mother once every two weeks for two hours, on condition that this is supervised either by the Local Authority or by Mr and Mrs B. Having regard to the findings I have made already and in the light of the Guardian’s evidence that contact is primarily for reasons of identity, and having regard to the safety aspects involved, this level of contact is, in my judgment, suitable and appropriate and in accordance with K’s welfare. I reject the mother’s claim for more extended contact in relation to K.

In the meantime, the Interim Care Order will continue until 22^nd June 2014. The Local Authority will continue to promote contact with Mr and Mrs B and K by way of introductions. During this process the mother’s contact should be temporarily suspended to facilitate K settling in with Mr and Mrs B.

K should be prohibited from spending any time with Mr H, so in effect an old style “No Contact” Order is appropriate in his case.

There should be a recording that a breach of the Order with regard to the mother’s future unsupervised involvement with K may result in the establishment of a fresh threshold of significant harm and potentially K’s removal from the care of Mr and Mrs B under the aegis of an Interim Care Order. I have no reason to believe that this will occur, but it is as well to spell out the parameters of the protection that will be afforded.

It follows from what I have said already that I regard both Mr H and the mother in this case to be potentially dangerous individuals who represent a significant threat to the safety of children.

There should also be included a twelve months Supervision Order in favour of the Local Authority in this case.

There should be No Order with regard to costs, save for the usual funding assessments.

If the parties wish there to be a transcript, those legally funded will share the costs of that.

There is permission to disclose the transcript to the Criminal Injuries and Compensation Authority for the purposes of any application anybody may wish to make in relation to K’s injuries.