N (A Child) (Death of Sibling), Re

Introduction

This case concerns care proceedings brought by a local authority (“the LA”) in respect of N aged 3, following the unexplained death of her sibling, A, aged almost 4 weeks. Their mother is “M” and their father is “F”. N remains placed in foster care.

Mr Nick Goodwin KC and Mr Matthew Maynard appeared for the Local Authority, Ms Sara Lewis KC and Ms Carolyn Jones for M, Mr Michael Jones KC and Mr Matthew Carey for F and Ms Kirstie Danton and Mr Adam Carrolan for N, through her Guardian. I am very grateful to all of them for their assistance in what was an emotionally difficult case.

The totality of the expert evidence now shows that A sustained:

Dr. Du Plessis, the neuropathologist, raises the possibility that A was suffocated as well as shaken. However, the LA have not pleaded this, and it is not necessary for them to do so. I therefore place no weight on this suggestion.

As well as the evidence as to A’s injuries, there is extensive baby monitor footage showing F’s conduct towards N on the night of A’s death, and the days before. The footage that I have watched, and to which I refer below, is as follows;

The local authority first became involved when F’s oldest daughter O (born 2018), by his former partner P, sustained unexplained injuries. She was taken initially to A&E by her mother on in December 2018, aged approximately four weeks, with bruises to her ear, arm and nostril. The medics raised the possibility that the marks were linked to a virus, and she was discharged home. The local authority undertook a child and family assessment in February 2019.

In July 2019 P attended her GP complaining that F had assaulted her, kicking her head and body after an argument. She reported a headache, backache, bruises to her forearm and tenderness to the side of her head. She said that F had been domestically violent for over a year and had previously slapped her leg and grabbed her throat when she was holding O. He was verbally controlling and would not let her socialise. This complaint precipitated a strategy discussion and s.47 investigation, leading ultimately to O being deemed a child in need under s.17. The case was closed in February 2020, an assessment concluding that the parents were working co-operatively with professionals.

In May 2020 P again took O to hospital with bruising to her ear, arm and genitals, together with scratches to her neck and a possible bite mark to her arm. She reported that F had bitten O but did not know how the other marks were caused. A strategy discussion took place; proceedings were issued under Part IV CA 1989 and O was placed in foster-care under an ICO.

In May 2021 HHJ Davies, sitting in the Family Court, handed down a judgment following a fact-finding hearing, making findings that F had inflicted injuries including biting O’s arm and bruising her ears, head and buttocks. He had stopped taking his medication, had become overwhelmed and had lost control. O’s mother had exposed her to a volatile and dysfunctional parental relationship. The court found that F had been physically violent to the mother, pushing her over in 2019 and injuring her hand and back, then being physically abusive on at least two further occasions. The court noted that F accepted he suffered from anxiety and had a short temper, for which he required medication, with which he was not always compliant. He had been referred for domestic abuse work but did not significantly engage.

Later that year the local authority ceased its involvement with O – the parents had separated, and F was not engaging with contact.

F was subsequently prosecuted for assaulting O, ultimately pleading guilty and being sentenced for biting her arm. Within his basis of plea, accepted by the Crown, he asserted that he did not know how she came to sustain her other injuries. In July 2024, he was sentenced to a 24-month community order for cruelty and neglect, including unpaid work, 20 days of rehabilitation and a programme requirement to undertake work to “build better relationships”.

The F accepts that he has a history of chronic poor mental health. In 2016, aged 17, his GP diagnosed anxiety, depression and panic attacks. His presentation was variable – improving in March 2018, then deteriorating in May 2019 when he reported depressive symptoms, “mainly anger issues” and stress, when O was 6 months old. He said to the GP that he had been verbally abusive and physically abusive (without stating to whom). The diagnosis of a mixed anxiety and depressive disorder was repeated. By June 2019 anti-depressant SSRIs had improved his mood, his anger issues had “reduced” and he reported he was coping better. His assault on P, described above, followed a month later.

In August 2019 he told his GP he had stopped taking Sertraline as he felt it was not helping. He did not feel anxious or depressed but said his main problem was anger. He wanted help with anger management but had not been able to access counselling. By October 2019 he wanted to go back on Sertraline. His anxiety persisted through to 2022 and beyond, his GP noting 6 months after N’s birth that he was still anxious, did not want to leave the house and was off work.

M’s medical records also disclose chronic low-level mental health issues. Her mother took her to the GP in 2008 aged 11, seeking counselling, because she had witnessed domestic violence, a police raid at home and had moved house on several occasions. In 2019 her GP diagnosed anxiety, low mood following her father’s death (she was his carer) and some suicidal ideation and self-harm. This continued into 2020. In May 2020 there is a record of a domestic violence incident in which M slapped and pushed her (then) partner Q during an argument, then cut her own hand with a knife.

In December 2020 M and F began their relationship. In June 2021 they phoned Children’s Services, saying that M was pregnant with N and requesting an assessment, knowing the significance of the findings made by HHJ Davies a month before. The local authority held a strategy meeting in relation to the unborn baby on 08 December 2021 and initiated a s.47 investigation. In December 2021 N was placed, pre-birth, on the child protection register under the category of physical harm. The safeguarding plan ruled out F having unsupervised contact, provided for daily social work visits, referred both parents to “New Era” to undertake domestic abuse work, required a family group conference and incorporated an assessment of F’s emotional state.

N was born in early 2022. For an initial period, she was placed on a child protection plan, and the F was not allowed to be with her unsupervised. By August 2022 her child protection plan was stepped down to a child in need and F was permitted unsupervised care. The review conference in September 2022 noted evidence of “significant work” undertaken in terms of safe and nurturing parenting. Much positive parenting was identified, and L was considered settled and relaxed. F was assessed as being better able to manage his frustrations. M reported that N would always come first, and she would contact the relevant agencies if she thought there were any safeguarding issues. Fourteen months after N’s birth, in March 2023, Children’s Services brought her child in need plan to an end, and the case was closed.

In March 2024 the F went to a walk-in clinic reporting back pain and was prescribed co-codamol. In early June 2024, F’s probation officer, made a referral to the local authority because of M’s pregnancy with A and F’s disclosure that he had stopped taking his medication. He was reporting as being depressed (but not seeking help from his GP) and was no longer working. Ms Gordon was aware that F had stopped taking his medication at the time of O’s injuries. Analysis of F’s phone shows that he made notes in August 2024 regarding his depression. The F appears to have made frequent notes on this phone as a way of remembering things. He said in oral evidence that he did this in order to support an application for Personal Independent Payments (PIP) based on his mental health.

There were a number of communications from the Probation Service to Children’s Services, raising concerns about the F stopping his medication and the M being pregnant. Children’s Services noted that M was engaging with ante-natal maternity services, and no safeguarding concerns had been raised. The parents were already looking after N and social work involvement had concluded following positive parental engagement. They noted that there would be some professional involvement from maternity and health visiting services after A’s birth and further work would be done to explore M’s mental health and the couple’s support network. The assessment of the LA was that there appeared to be no justification for starting proceedings or convening a child protection conference.

A was born in mid-2024 at 38 weeks. His delivery was uncomplicated, and he was discharged home healthy after 24 hours. Pre-birth ultrasound scans disclosed no intracranial bleeding. Nurses visiting M at home in the week following birth reported that she was feeling emotionally and physically well. A new birth visit by a health visitor in August 2024 elicited no concerns. At a new birth GP appointment also in August 2024 M raised no issues with her own mental health and A was fine. The M and F now say that the M was suffering from post-natal depression and was frequently crying and very low. The M said that she was worried that if she raised this with the GP then Children’s Services might get involved and the children be removed.

There are a large number of notes on the F’s phone to himself. One in August 2024 states; for example, “At least 3 to 4 days per week I have difficulty eating food as I don't have an appetite for anything due to my depression. My partner has to prompt me to at least try and eat something multiple times a day which I never end up eating anything for those 3 or 4 days each week”. He also refers to his own “severe anxiety” and says that he never mixes with other people because of his anxiety levels.

Also in August the M created a note on her phone saying, “feelings of hating oneself, closing off, wanting to cry, wanting to be me again, not caring about myself anymore, not wanting to go out”. This note was modified later that month.

The phone disclosure shows:

A had some reflux symptoms in the first 2-3 weeks, but the parents then moved him onto an anti-reflux formula, which seemed to largely solve the problem.

A week before his death, A had developed a cold which, as F stated in a message to his probation officer, “has been keeping him awake, crying all night I think”. Both parents Googled “why does my baby keep being sick” and “why does my newborn throwing up milk”. F seems to have caught A’s cold (“I have a really bad chest”).

In later August 2024 the parents took both children to visit the paternal family at a caravan park in Rhyl for the day. Both parents say that by this date the F had recovered from his cold.

A day after the return from Rhyl, the babycam footage commences. There was a babycam in N’s room, which recorded footage. There was also a baby monitor which the M said she took around the house with her and had next to her bed at night. That did not record. In respect of the babycam footage it appears that the machine had limited data storage and deleted recordings more than a few days old. Therefore, the Court has recordings from this date but not before that. The consequence of this is that it is not possible to know whether the very concerning footage shows a serious deterioration in the F’s behaviour to N, as the parents suggest, or whether the same behaviour was happening throughout A’s life or even earlier.

On that day, the parents left N alone in her room, crying, for an hour from 7.36am. F eventually came into her room and told her to “shut your bloody gob”. At around 10.25am there is footage of the M being in N’s room and changing A’s nappy while the F is speaking quite loudly and aggressively to N. There is no doubt that N was being “challenging” in the way an unsettled two-year-old who is seeking parental attention can be. However, what is notable about this video is that the M takes absolutely no role. She spends a very long time changing the nappy and totally ignores N and the F and does not intervene when the F was being very unpleasant to N. It is possible, though this is fairly speculative, that there is a clue to the M’s behaviours here. She simply ignored what she did not want to see or hear. She takes no steps to intervene in the F’s very heavy-handed conduct towards N.

In the afternoon there is footage of N crying again. F threatened to smack her. In the early evening there is footage of him interacting nicely with her.

The following day, N was left to cry in her room for 2½ hours from 06.00am. F was verbally aggressive when he came in at 08.31am, picking her up, putting her onto her bed, pointing in her face and saying, “stay on your bed…stop taking the piss and wait”. At 10.26am she was still in her room when F came in to put her socks on and told her “If you aren’t going to listen, I’ll smack your bum, I’ve had enough of ya, gob shite”. I have watched the footage and the F’s conduct crosses a line – it is abusive. Both parents left N in her room, highly distressed, for extended periods. The M claims not to have known N was very upset and to have been wholly surprised by the babycam footage. I return to this below.

During the same day the parents took the children to the shops. By 7.03pm, F was back in N’s room changing her nappy, threatening to “smack your bum dead hard” when she messed around. He called her a “shit head” when she put her mouth on his shoulder – “no, you don’t bite, yeah it’s where you bit innit, you naughty shit head”. M put N to bed at 7.42pm and she fell asleep just after 8.00pm.

The events of the rest of the night (during which A died) remain known to the parents alone. The independent evidence is limited – the chronology incorporates the timings of A’s feed (entered onto a Baby Tracker app on both parents’ phones); M’s entry into Ns room to check on her just after midnight (as seen on the babycam); the timings of the parents’ phone usage before going to sleep and one entry of the M’s bedside light. The parents’ accounts of the evening have differed materially at different points.

The parents’ first account, at the hospital and as recorded in Dr Bhat’s notes was:

“Parents reported that A was three weeks old and in good health, with no preceding illnesses. They put him to bed at 11:45pm, which is their normal routine and dad gave the last feed. He had a full feed and normally takes 4oz. He has a moses basket in the parents' bedroom, and he was put into the moses basket on his back. Mum said she checked on him (both children) about an hour later and both were sleeping. Parents then went to bed and said that A did not wake up during the night at all for a feed, and they say he hadn’t been waking up as much overnight because his milk had been changed about a week ago. He had been started on it for reflux”.

The M’s oral evidence was that she went downstairs after putting N to bed. At some point she fed A, it was very difficult to pin down a time and then put him down asleep on the sofa. She and the F watched one or perhaps more films. She changed A and got him ready for bed downstairs. They went upstairs at around 11pm with A asleep. She initially said she then put A in his basket, went downstairs to make his milk, and then had a bath. During this time F fed A. The M said she was in the bath for 30/40 minutes but said she did not use her phone, watch anything or listen to music. She said it took a long time to wash her hair.

When she went back into the bedroom, the F was putting A into the basket, after his feed. She then got into bed and used her phone. At some point she got out of bed and checked on A, who she said was breathing normally and seemed entirely normal. She said the bedside light was on at this point, so she could see A quite well. However, she said that she did not see the injury on his neck. When they were in bed, the F explained to M that A’s neck had been scratched when he had removed A’s bib, and the Velcro had scratched him.

As per her usual routine, M says she checked on N and A at 00.11am. One can see on the babycam footage that she went into N’s room and put her face close to hers for a few seconds, then left. She appeared to do the same at 1.28am. She said that she did not see the scratch/injury on A’s neck, even though she said in oral evidence that the lamp was on (I note that the lamp monitor says it was last turned on at 00.06am).

She said she slept through the night and heard nothing. On every previous night A had woken in the night and had a feed, but he did not do so that night. She said when she woke in the morning, she checked the time and wondered why A had not woken for a feed. She denied hearing N when she woke up, even though she was crying and screaming in the next room. She got up and touched A and he was cold. She denied using YouTube that morning, although the phone records show she did so five times at 08.28am.

The F’s version of the evening again seemed to change at different times. F initially told the police in interview that they both watched a film downstairs during the evening. F bottle-fed A 120ml of formula at 11.40pm whilst M was in the bath, then winded him, changed his nappy, swaddled him and put him in his Moses basket at the end of the parents’ bed. M came back from the bath and both parents stayed in their room on their phones until around 1.00am.

However, in his final police interview and in his oral evidence, he said that he and the M had brought A upstairs asleep and they put him in the basket. The M had made a bottle slightly earlier. The F put it on the bedside table and sat on the bed on his phone for about 30 minutes. A then started to wake, and the F tried to feed him. But A didn’t want the bottle - the F said he was fussy about anything other than very fresh milk. The F then put him in the Moses basket and went downstairs to make a fresh bottle. He then came back upstairs, collected A and took him downstairs to feed him on the sofa. He said to Ms Danton that the feed took about 30 minutes. It was during this feed that the F said he managed to scratch A on his neck when removing his bib. He then changed his nappy and brought him back upstairs and put him in the basket. The F then went back downstairs to sterilise the bottles. When he came back upstairs A had got his arm out of the swaddled blanket, so the F got him out of the basket, re-swaddled him and was about to put him back in the basket when the M came back into the room from the bathroom.

They both got into bed and the F then mentioned that A had been scratched by the Velcro. Even though the M subsequently got up twice to check A she says she did not see this injury, which is very obvious in the postmortem photo and had clearly bled, and says she did not check it.

There are a number of aspects of this narrative which are difficult to accept. Firstly, if the F did all these things, then the M was in the bath for an exceptionally long time. Even assuming the F’s timings on how long he was on the bed and how long it took to feed A are too long, all of this would have taken more than 40 minutes. Secondly, the F’s version of events was that he was calm throughout and that A was peaceful and not crying. This was almost two hours after the parents’ normal bedtime and the F described it as a busy day. We know from the webcam that the F had been in a bad mood in the morning and very short tempered with N. By the time he was feeding A at around 11.30pm the F must have been very tired. Thirdly, on this version of events, A was an extraordinarily quiet and compliant 4-week-old, even though he seems to have been being fed considerably later than normal and he had rejected his first bottle. Fourthly, I simply cannot believe that the M was in the bath wholly oblivious to whatever problems the F was having with A. Overall, I do not believe this version of the evening.

There is no further independent evidence until 8.05am the following morning when N got out of bed crying and stood at the safety gate at the door of her room. N is crying in the babycam very loudly until the F enters her room at 8.45am. It is in my view extremely unlikely that the parents did not hear this. The F told her to “get on your bed”, returned a minute later and spoke to her aggressively, grabbed her right arm, lifted her off the floor, threw her onto her bed, smacked her bottom, pushed her head back towards her pillow, pointed his finger in her face, threw a cushion over her face and threatened to smack her again. The babycam footage is very uncomfortable viewing.

The phone data says that the M used YouTube five times at 8.28am. The M denies this, but there was no technical challenge to the data. Therefore, the M was awake when N was crying and screaming next door.

At 8.51am the babycam audio picked up M shouting outside N’s room “F, he’s not breathing, A’s not breathing”. M called 999 at 8.52am, F began CPR (under the call handler’s instructions during the latter part of the call) and an ambulance arrived at 8.59am. A was already dead, noted to be cold with rigor mortis and hypostasis. A yellow substance (vomit/bile) was around his mouth and nose. He was formally pronounced dead by a paramedic at 9.03am.

There is body worn camera footage of the F showing the police the feeding app entry of A feeding at 10.12pm. It is now quite hard to tally this timing with the parents’ evidence, but I return to this matter below.

On the parents’ own account, A must have died whilst both were present in the bedroom. The coldness of his skin, the hypostasis and rigor mortis all indicate that he died some considerable time before the paramedics arrived. Neither parent has provided an account of any event that night that might have led to his death.

On arrival at hospital, Dr. Bhat took a parental history and performed a medical examination, noting petechial bruising to A’s eyelids and forehead, a 4.5cm linear purple mark to the right side of his neck and another 2cm mark there, together with redness to the sternum consistent with CPR.

A CT scan showed evidence of intraventricular and subarachnoid bleeding. There was some suggestion of a femoral fracture and tibial metaphyseal fracture on a skeletal survey. The hospital clinicians noted that the CT scan was unusual for a child who had died of SUDI (Sudden Unexpected Death in Infancy). A recommendation was made for a full post-mortem. Dr. Caroline Groves, the reporting consultant community paediatrician, wrote that “a traumatic cause is still the most likely as A was not symptomatic for Covid, as far as we have been told, and association of subarachnoid haemorrhage and covid is extremely rare. However, we cannot absolutely rule out a link”.

The parents were arrested and interviewed. Multiple police interviews followed.

N was placed in foster-care and the local authority applied for a care order.

Dr. Lockyer (consultant forensic pathologist) and Dr. Malcomson (consultant paediatric pathologist) conducted a double-doctor post-mortem, identifying:

The post-mortem also revealed a range of bruises and tissue damage, much of which had not been visible to Dr. Bhat in the emergency department:

The police have instructed a number of experts and each of them has agreed for their evidence to stand in the Family Court.

The brain, dura, and spinal cord were removed for examination by Dr. Du Plessis. The cervical spine was removed for micro-CT examination, then for dissection by Dr. Du Plessis. Dr. Malcomson was to undertake the ophthalmic pathology and Professor Freemont was responsibility for the osteo-articular pathology.

Each of the experts instructed by the police has accepted an instruction under Part 25 FPR 2010. The finalisation of Dr. Lockyer’s final post-mortem report was delayed to a point that fell outside the child’s timetable in Family Court proceedings. In the light of the medical evidence that has been received, the local authority has confined its pleadings to the brain, eye and bony injuries rather than seeking to establish a cause of death. Although the parents at the Issues Resolution Hearing argued that it was not proportionate to undertake a fact-finding hearing in the light of their concessions on welfare (an argument I rejected), they have not sought to argue that it is inappropriate for the Court to proceed without a final postmortem report. I note that Dr Lockyer’s conclusions in that postmortem report will necessarily defer to the opinion of the three specialist experts who gave evidence to the Court.

A sustained unsurvivable head injuries, comprising:

Professor Freemont produced a detailed written report and gave oral evidence. He identified:

Professor Freemont also identified six metaphyseal rib fractures and a fracture to the shaft of the right 10^th rib inflicted approximately 5-10 days before death as a result of abusive chest compression. He was questioned on the timing of these fractures and on whether they could have a cause other than inflicted injury. He stated that the histological changes in these bones indicated that they occurred around 3 weeks after birth. It was apparent from his evidence that the timing of such injuries is necessarily rather imprecise. He was asked by Mr Goodwin whether it was possible that the injuries could have occurred somewhat before and thus be the source of the internet searches about a baby vomiting blood. He was clear that was quite possible because at that stage of ageing the timing of the fractures was “extendable”.

On the timing of these fractures, he was entirely confident that they were not caused at birth. Further, and in any event, he said that it is exceptionally rare for rib fractures to occur during normal births.

In respect to the rib fractures close to the time of death Professor Freemont stated that the amount of haemorrhage and localised tissue necrosis indicate that they occurred before death and before the start of CPR. The histopathological evidence effectively ruled out the possibility that these fractures were caused by the CPR,

Professor Freemont was asked a number of questions by Mr Jones to elucidate whether CPR with two thumbs (given by the paramedic), as opposed to the two-finger technique, might change his view as to whether the injuries occurred during CPR. This was on the basis that the thumb technique generates greater blood supply to the tissues and therefore might change the histopathology. Professor Freemont said that the type of haemorrhage in the bones effectively ruled out this possibility. Further A was cold when the paramedic gave the CPR, which further indicates very strongly that the child was already dead, and the CPR could not have caused the injuries.

He was also asked about the possibility that the earlier rib fractures were caused by N lying on A on the floor. Professor Freemont said that there was nothing in either his experience or the literature which would support posterior rib fractures being caused by overlaying.

Finally, he said that there was no evidence from his examination of the bones to suggest any underlying bone condition.

Dr Malcomson also produced written and oral evidence. He is an extremely experienced paediatric pathologist, who has a specialism in ophthalmic pathology. He was present throughout the postmortem. In his report he identifies:

In his oral evidence he explained that although there may be many causes of retinal haemorrhages, the optic nerve sheath haemorrhage points very strongly to trauma and to abusive head trauma in particular, and is rarely seen in other settings.

He was asked about other potential causes, such as sepsis, and said that there were no inflammation markers and no clinical history of inflammation which would point to sepsis. He said he could not formally rule it out until the final postmortem result, but it had a very low probability on the evidence that he had seen.

He rejected the suggestion that the eye injuries were caused by intracranial pressure, given the nature of the retinal haemorrhages and their very different pattern from those caused by intracranial pressure.

He said that there was no evidence of a link between Covid and retinal haemorrhages. Further there was no evidence of A having a blood clotting disorder and, in any event, it would be very unlikely to find such severe haemorrhage in the optic nerve sheath caused by a blood clotting disorder.

In relation to timing Dr Malcomson said that the subtle inflammation infiltrates in the eyes indicated that A had survived for a short period after the injuries were inflicted. It was apparent from his evidence that it was extremely difficult to time this period, but it seemed likely to be up to a few hours.

He was very unwilling to be drawn on the time of death but said that given the rigor mortis in the hands, the fact A was cold and the hypostasis, he thought that A “was not just recently dead”, when the paramedic was doing CPR.

Dr Du Plessis, a very experienced neuropathologist, produced a written report and gave oral evidence. He identified a hypoxic-ischaemic brain injury, following a cardiorespiratory arrest. He was unwilling to be drawn too far on timing but thought there was a short period of survival between injury and death, during which the hypoxic-ischaemic effects were operative on the brain.

There was also a hypoxic-ischaemic myelopathy (to the spinal cord) and a traumatic axonal injury in the lower brain stem., which would follow from a shaking event. There was an acute multicompartmental cranial subdural haemorrhage which indicated there had been subdural bleeding less than 48 hours before death.

There was an acute spinal subdural haemorrhage throughout the length of the spinal cord, which again pointed strongly to a traumatic injury.

His view was that the most likely cause was a shaking-type head injury, which led to what he described as “mechanical stretch related injuries”. He said that it was extremely rare in such cases to see an osteo-articular injury to the neck, so the fact that A did not have such an injury had no significance.

He found no evidence of any disease or organic condition that could have caused the various findings set out in his report. Further he said it was difficult to conceive of an organic condition that could explain the neuropathological findings and not be detected. He said that a choking incident, such as on vomit, is definitely not linked to the injury profile in this case. The injuries to the nerve fibres here are “purely traumatic” and cannot be the result of a hypoxic ischaemic injury.

On timing, the neuropathology suggested a relatively short survival period after the injury, probably between 30 minutes and 2 hours although it could have been somewhat longer but was highly unlikely to be more than 12 hours. Dr Du Plessis said that conclusion followed from the limited brain swelling and the limited hypoxic-ischaemic injury.

Overall, the medical evidence is both clear and wholly consistent. All three experts point to clear evidence within their own discipline that A suffered from a very severe shaking type of injury on the evening/night of 26/27 August 2024. All differential diagnoses have been considered and dismissed. He probably survived for between 30 minutes to around 2 hours after the injury before he died. Combining Dr Freemont’s and Dr Du Plessis’s evidence, it was more likely to be an hour than 30 minutes. The period between his death and the time he was seen by the paramedic is extremely different to be precise upon but was probably at least an hour.

Dr Freemont’s evidence is that A suffered earlier rib fractures, which were not birth related and were extremely unlikely to be caused by N lying on him.

The M had the benefit of a lay advocate and had been described in advance as being both vulnerable and struggling to understand questions. She had been subject to a cognitive assessment by Dr Stephanie Boardman. Dr Boardman states that the M has significant limitations in verbal comprehension, working memory and processing speeds, particularly in stressful environments. That entirely accorded with my assessment of how she gave evidence. Counsel and I made every effort to ensure that she could give her evidence as well as possible.

Her evidence was at times quite difficult to assess. She frequently said she did not understand the questions, even when very straightforwardly put by Mr Goodwin KC, and said she did not remember many matters. But I noted that she was quite astute at avoiding questions and pointing out if they had already been asked. She also became quite heightened and angry when she felt herself to be “cornered”. My overall assessment was that she was more alive to the issues, and more deliberately avoiding difficult areas, than she was suggesting. She was highly avoidant of difficult issues and was extremely slow to accept that if she did not injure A then the F must have done so.

Overall, she was very insistent that she did not know the F was abusing N, as shown on the babycam footage, and had no idea how A had got his injuries. Sadly, there were many parts of her evidence that were simply impossible to believe. In particular, the suggestion that she did not know that the F was being so horrible to N and that N had been so upset in the days leading up to A’s death, and that the F had been so angry and aggressive with her. The family home is a fairly small two-bedroom house, with the bedrooms very close together. On the baby cam N is frequently crying very loudly and the F is shouting at her. The M claims that she slept through N crying on the mornings of August 2024, and did not hear the F shouting at her. In the context of the size of the house and there being no suggestion that the M was either an extraordinarily heavy sleeper or taking alcohol or drugs (legal or otherwise) the suggestion that she did not know what was happening in the house is not believable.

Further, the M was exceptionally slow to accept that if she had not injured A then the F must have done so. This went beyond a desire to believe one’s partner and not accept they had killed the child, and in my view indicated that the M was not telling the truth.

She claimed to be a very loving and protective mother, and I accept her genuine love for the children. But she seemed to be wholly unable to act on any desire to protect and was, deliberately or otherwise, determined not to accept any risk to the children from the F. Despite knowing that the F had assaulted O, and all the earlier involvement of Social Services, she appears not to have checked the baby cam, or the baby monitor to see how the F was treating N. She said she was shocked by the baby cam footage, but her only suggestion was that the F should do some courses. She accepted she heard the F call N a “gobshite” a couple of times and said she would “talk to him about it”. She also appeared to make no connection between the F’s aggression to N and what may have happened to A. She accepted that N could be very challenging but again saw no reason, on her evidence, to check how the F was coping with N. She said that from early August N had started waking up very early, around 5am, but left her to the F. She said this was because the parents had made an agreement that the M would largely look after A, but the F would look after N, certainly in the mornings.

The M said in oral evidence that she was hard of hearing, but that had never been said in previous statements or to the police, and there was no suggestion of it during her written evidence or medical notes. She accepted that even when the bedroom door was closed, she could hear raised voices in N’s room.

It was clear from the M and F’s evidence, that they lived a very isolated lifestyle. They sometimes saw the paternal grandparents, but the M said she only spoke to her own family twice a year. Neither parent appeared to see any friends, nor did any family members come round in the period after A’s birth, other than the paternal grandparents for one visit. So, this was a very isolated family, who went out little and had no family support.

The M was very keen in her evidence to downplay the F’s mental health issues. Although she accepted that he had told her about his mental health, she said she believed it was all related to his previous relationship. He had told her that he didn’t need to take the Sertraline any longer because he was no longer in that relationship. She said she didn’t believe his mental health affected his care of the children. She said he had given up work in March 2024 because of his bad back (sciatica), but the notes show the F told the probation officer, when the M was present, that it was because of depression.

She said she had noticed no change in the F’s behaviour, or specifically behaviour towards N, in the few days before A’s death, as is shown in the babycam footage.

In respect of the earlier fractures identified by Professor Freemont, the M and F both referred to N lying on A. However, neither parent suggested A was at all upset after this happened. The M did not suggest that N could have caused the earlier rib fractures.

She said the F had never mentioned to her that A had vomited up blood and when she asked him after A died; he had said that he forgot to mention it to her. Although she did the clothes washing, she had seen no blood on any bib or A’s Babygro.

She said she had suffered from post-natal depression; felt she was not good enough and would cry in the kitchen and the bathroom. She initially suggested that she didn’t seek medical help because she was dealing with it herself, but when pressed she accepted that the real reason was that she was worried about the involvement of Children’s Services. When answering questions from Ms Danton, the M made clear how intrusive she had found Children’s Services when N was very young. She said that the camera in N’s room was so that the parents could have evidence that the F hadn’t hurt N for Children’s Services. The irony of this evidence seemed to entirely pass the M by, but it indicates the degree to which the M seems to have accepted the F’s narrative that he had done O little harm and the findings of HHJ Davies were wrong. The M’s lack of “curiosity” in this regard is very consistent with her overall refusal to question or challenge the F.

The M’s evidence with regard to the evening prior to the discovery of A’s body is set out above. For the reasons I give there and in my conclusions, I do not believe parts of her account and am confident that she is not giving a full and accurate description of the events of that night.

The F’s evidence was largely given in a rather flat monotone, with him being very slow to show emotion. I suspect that, like the M, he found the process of giving evidence and of talking about his emotional state, extremely difficult. The F had previously said that he had difficulties with memory, which is why he wrote notes on his phone. He very consistently in his oral evidence said he could not remember key events. It was hard to unpick what was genuine difficulty remembering matters that took place over a year ago, some of which were highly traumatic, and what was a deliberate refusal to answer the question. On many occasions when pressed, normally by me, he then said he did remember.

There were also a very large number of inconsistent accounts in his evidence, most notably in respect of the detail of the night of A’s death, where his account changed frequently. I ended up concluding that I could place very little weight on the veracity of his account. I have no doubt he was lying to me about what had happened, but what actually happened that night is only known to the parents and not possible to discern in detail.

He consistently denied harming A at any point. However, like the M he was exceptionally slow to accept that if he did not harm A then the M must have done so. He accepted that the M had been loving and caring to the children at all times, and he had never seen her behave inappropriately to them.

There are a number of instances where it can be shown beyond any doubt that he has lied. He was not truthful in his police interview in November 2024, before the babycam footage was available, when he said he had not shouted at N. He also lied to the probation officer when saying that he had been up all night with A and so could not attend an appointment.

He said that the probation officer’s notes that he had told her that he had left work because of depression, that he frequently went to the gym, and had minimal care of the children, were all misrecorded and mistakes by the officer. I find this impossible to believe.

However, these lies do not necessarily lead to a conclusion that he was lying about the injuries to A.

He accepted that he had been struggling with his mental health in August 2024 but denied it had been “really poor”. He said he suffered with anxiety and always had done. However, he suggested that when he recorded on his phone symptoms of extreme anxiety and lack of motivation, this was not referring to his contemporaneous mood at the time. He said that someone at the probation office had told him to record his mental health, including in the past, to support an application for PIP. I found this very difficult to accept, in the light of both the entries and of the unlikelihood of someone in the Probation Service effectively encouraging him to lie on a benefits application.

He was very slow to accept that not taking the Sertraline impacted on his ability to control his anger.

He was asked questions about biting O. He said he did not do this out of anger, but he eventually accepted that he had lost control. I note in respect of O’s injuries that there is a very serious injury to her ear, with horrible bruising. HHJ Davies found that the F inflicted this injury as well as other bruising, but the F continued to deny it.

He said he was disgusted by his behaviour to N as shown in the webcam. However, he then did everything he could to try to minimise what had happened. Initially suggesting that there was only one incident, saying that he “put her on the bed” whereas he was actually much more forceful than that, and saying he had only “tapped” her bum. He claimed to have been asleep when N was left crying and shouting for up to 2 hours. He said he was a heavy sleeper, but that he was the one who normally woke up in the morning to look after N.

He said that he had never seen the M lose her temper with the children and he had never had to intervene. He did say that he was the firmer parent with N, saying that the M would allow her to “get away with things”.

His only explanation for A’s fractures 5-10 days before his death was that N lay on him. However, he said A hadn’t cried when this happened and he wasn’t worried about it at the time.

In respect of the Google search for “baby throwing up blood”, at around the same time as those injuries, he said that the internet said that this was normal and therefore there was no need to seek medical attention. When I challenged him on this, because the NHS website makes clear that medical attention should be urgently sought, he said he had done further research because it was only little specks of blood. I found his evidence in regard to this not to be believable. The only possible conclusion is that he decided not to seek medical attention because he had injured A.

I have set his account of the night of A’s death out above. This account changed on frequent occasions. I fully accept the point made by Leggatt J in Gestmin that memory is a fallible thing, and this is particularly the case when related to highly traumatic events when someone has had to give an account multiple times. However, the level of the F’s inconsistencies, particularly in circumstances where there is a proven history of lying, means that I attach significant weight to the inconsistencies.

In closing, the LA only pursued findings of perpetration of non-accidental injuries against the F and did not seek a pool finding against the M. Mr Goodwin pointed to the totality of the evidence indicating the F caused the injuries, and a number of “anchor points” which showed the inconsistencies of the parents’ report. Many of these I refer to below in my conclusions and so do not repeat.

The LA relied on the totality of the medical evidence, and the fact that it was wholly consistent on the causation of the injuries and the timing of both the earlier rib fractures and the injuries on the night of A’s death.

On the issue of the M’s failure to protect they point to – her heavy reliance on the F and isolation from her own family; the smallness of the house and extreme unlikeliness of her not hearing the F’s behaviour to N and whatever happened on the night of the death; the injury on A’s neck; the inconsistencies in the M’s account. Further, the LA point out that despite the overwhelming evidence that the F injured A, the M has remained in a relationship with him and apparently wishes to continue doing so.

The LA ask me to comment upon the F’s evidence of his manipulation of his mother and sister, which I will refer to below.

Ms Lewis on behalf of M, referred to a number of the factors that I rely upon below for finding that the F was the perpetrator of the injuries. The real issue for the M therefore is the allegation of failure to protect, and her level of knowledge. Ms Lewis points out that all the evidence suggests that the M was loving and caring to the children and never harmed them.

She submits that the M’s narrative that she checked twice on the children is now supported by the babycam footage from N’s room. Further, as soon as she found A dead she was extremely upset and immediately called 999. This strongly suggests that she did not know he had been injured the night before. If she had realised that he was injured at 01.28am then she would have called an ambulance.

She said that the evidence supported something happening to A whilst the M was in the bath - the M might have been running the bath, or have been washing her hair, so it is very possible that she would not have heard what happened. When she checked him, she thought he was asleep, although the evidence now suggests that he was unconscious.

In respect of the mistreatment of N, the M did not hear anything abusive. When the babycam shows her in the room on the morning prior to the death, although the F is unpleasant to N there was no physical abuse. The M says that she had never seen him behave as shown on the babycam on the morning of the death.

Mr Jones on behalf of F had a difficult task. The F left the courtroom during Ms Lewis’s submissions and only returned very briefly during part of Mr Jones’ submissions. Mr Jones assured me he had full instructions.

The F’s case is that N caused the first set of injuries, and he has no explanation for the second set. He believes the injuries were due to some unknown cause.

Ms Danton, on behalf of the Guardian, took the same overall approach as the LA. She made careful and full submissions but given that they mirrored those of the LA and I have accepted most of them below, I do not need to repeat them. She pointed to the fact that the Amazon Echo light did not come on after 12.26pm, suggesting that A had been injured by the time the parents went to bed.

She also referred to a contentious piece of evidence in the parents’ feeding app. There was a still photo from the bodyworn footage taken by the police on the morning of their attendance, with a caption, that suggested that A had been fed at 10.12pm. The F showed this to the police. However, when the phone was seized and the app examined, it showed a last feed at 11.40pm. Ms Lewis objected to this being relied upon as it was not put to the M. Given the clarity of other evidence, I decided to not place reliance on this material. However, it has the potential to be an important piece of evidence if there are other proceedings.

There is no dispute between the parties on the legal principles and the case law that should be applied in this case. I consider that the summary set out below is an appropriate analysis of the relevant caselaw, and it is not necessary to set out the various cases that lie behind this summary.

The burden of proof is on the LA. There is no obligation on the parents to provide explanations for injuries or ‘memorable events’ although the court is entitled to weigh the absence of such explanation alongside all the other evidence in the case. The civil standard of proof applies, namely the balance of probabilities. If the LA proves that it is more probable than not that a disputed event occurred, then it becomes an established fact for the purposes of these proceedings. If the event in question is not proved, it is treated as having not occurred. That is the binary system that operates in the Family Court.

The court must reach decisions in relation to disputed allegations on evidence, not speculation or rumour. It may, however, draw logical inferences from evidence that it has accepted.

The court must reach a conclusion in respect of each separate allegation but must also take care not to compartmentalise its analysis – the entire canvas of evidence must be surveyed, and each piece of evidence must be considered in the context of the other evidence.

The role of the judge and the expert are very different. The responsibility for making decisions always rests with the judge and not the expert - the expert advises, and the court decides. It is important that the expert evidence in this case is considered as part of the overall evidence in the case and not analysed in isolation.

When considering the expert evidence, the court must keep the following firmly in mind.

The answer to the issues or an allegation in this case cannot be provided by the expert opinion alone. The expert medical evidence must always be combined with the factual evidence before a proper conclusion can be reached by the court and inevitably the parents’ accounts will be an important part of its analysis. It is important that each expert keeps withing the bounds of their own expertise and defers, where appropriate, to the expertise of others. Recurrence of injury is not in itself probative.

If the court disagrees with an expert’s conclusions or recommendations an explanation from the court is always required.

The court will be mindful of the fallibility of memory, particularly in a case where multiple accounts have been given, and the fact that it is now 14 months since A sustained the injuries. The court will acknowledge the dangers of inferring that because a parent has not explained how an injury was caused; the real explanation must be a sinister one.

Where it is alleged that a person has lied, the court must approach this allegation with considerable care, as highlighted in R v Lucas [1981] QB 720. First, having identified the alleged lie in issue, it must ask itself whether the LA has proved, on the simple balance of probabilities, that the alleged lie has been told. The court must accordingly seek to distinguish a lie from, for example, “story creep”, mistake, confusion, memory failure or distortion arising from impairment.

Once the court has undertaken that analysis it will move to the second stage, by which it will consider why the proven lie has been told. This is important because people may lie for many different reasons - embarrassment, a sense of shame for having caused an injury accidentally, a desire to hide some other wrong-doing or a mistaken belief that lying might improve their position.

If a lie is proven, then the relevance of the lie to the court’s enquiry must always be carefully considered. Some lies, irrespective of how unpalatable they may be, will have absolutely nothing to do with the ultimate facts in issue of the case, save perhaps assisting the court with an analysis of the person’s general credibility.

Finally, it is also imperative that the court reminds itself that just because a person lies about one issue, it does not automatically follow that they have lied about everything.

In cases where there is an allegation of one parent failing to protect the children, it is important that this is not simply a “bolt-on”. There must be clear evidence of a failure to act appropriately to a likely or known risk.

The issues to be determined in this case are:

The finding that these were non-accidental injuries is straightforward in this case. A suffered catastrophic injuries, involving the most serious injuries to his head, neck and spinal cord and to his ribs. Those injuries are set above. All the expert witnesses agree that by far the most likely cause is a serious shaking event, with the ribs being strongly squeezed. There are also injuries to the neck. The LA does not allege that A was suffocated, but it does rely on the neck injuries as further evidence of a very serious assault upon a 4-week-old baby.

All the experts reject the suggestion of any other cause. There is no indication of any underlying genetic or organic cause. A has been subject to intensive investigations, and these have produced no evidence to support any alternative cause of the injuries.

The expert witnesses are also entirely consistent on timing. A was dead by 9.00am, and had probably been dead for an appreciable time, well over an hour. Beyond that it is very difficult to tell, but he was cold, and rigor mortis had set in. There is also consistency between Professor Freemont and Dr Du Plessis that A survived for a period after he was injured. This seems most likely to be between 1-2 hours, but there is some flexibility on either side. Trying to ascertain the timing any more precisely is not necessary for the purposes of the decisions I need to make.

There are only two possible perpetrators, the F and the M. I have no doubt in concluding the F caused both sets of injuries, for the following reasons.

Firstly, there are the F’s acknowledged mental health issues. He accepts that he suffers from anxiety and depression and there is a history of anger issues. The evidence is that his anger issues were more under control when he took Sertraline, but he had stopped doing this in March 2023. He accepted in oral evidence some level of anxiety and stress in the period after A was born.

Secondly, there were a series of very serious stressors on the F. He ceased work in March 2024 and told the Probation Office this was because of depression but suggested to the Court it was back pain. This must have had some impact in terms of financial pressures. He had been waiting for 2 years for his criminal trial, and the sentencing hearing was only 3 weeks before A was born. This must have been extremely stressful, given the possibility he would be sent to prison, then after A’s birth there was the burden of the sentence and the role of probation. He had two young children, and the babycam suggests that N was an often unhappy and demanding two-year-old. This is not in any sense to criticise N, but the evidence suggests a child who was desperate for attention and love, and certainly in the days before A died she not getting it. The parents both said, and the evidence supports, N waking up very early after A was born, so both parents will have lacked sleep. All these pressures were exacerbated by the fact the parents had effectively no support and were very isolated.

Thirdly, there was the history of the F’s assault upon O. It is important to be clear how serious this was. The F admitted to biting O, which is itself a deliberate act that suggests a really serious loss of control. But there was also a very unpleasant injury to her ear and bruising to her leg, which HHJ Davies found the F was responsible for. I have no reason not to accept HHJ Davies’ findings. This was a really unpleasant assault on a young and wholly defenceless child.

Fourthly, there is the babycam footage showing the F to be angry, aggressive, bullying and to some degree physically abusive of N (though nothing approaching what he did to O). As Mr Goodwin said, the F was plainly in a foul mood on the morning of A’s body being discovered and on the edge of losing self-control.

Fifthly is the evidence of the earlier fractures and the F Googling “baby throwing up blood”, within the timeframe of those fractures. He was obviously lying about the outcome of his internet searches, and the obvious reason for not seeking medical attention was a fear that he would be found to have injured A.

Sixthly, is the fact that the F has told highly inconsistent versions of what happened on that night, which I consider in more detail below.

On the other hand, the evidence does not support a finding against the M. In terms of her care of the children there is nothing to suggest that she was ever violent with them or lost her temper. The limited video evidence shows her to be calm and patient with N. She was undoubtedly also under considerable pressure and seems to have had post-natal depression, but she seems to have turned this inwards in terms of being quiet, highly reserved and being upset with herself. There is nothing to suggest she took her unhappiness out on the children.

Importantly, the babycam footage supports a finding of her being shocked and highly upset when she found A dead, and immediately ringing for an ambulance. If she had injured A herself then her response in the morning suggests that she would have called an ambulance when it happened.

In my judgment both parents have lied about the events of the evening prior to the discovery of A’s body, after the point N went to bed. The F has told highly inconsistent accounts of who fed A, where he was fed and of his movements. I fully take into account the principle in the caselaw that memory is highly fallible, particularly when someone has been asked to recount the same events multiple times and where the events were highly traumatic. However, there is clear evidence that both parents were not honest the morning after A died, saying that A slept through the night and that N woke up at 7.30am. I do not believe the M only woke up just before she found A.

Further the level of inconsistent accounts from the F is in my view more than a muddled memory. The F has done what he can to distance himself from responsibility.

It is not possible for the Court to know what happened to A that night. The only people who know are the parents and they are refusing to say. However, in respect of both parents, their account of the evening makes little sense. They both said they usually went to bed between 9-10pm and can give no coherent reason as to why they stayed up 2 hours later that night. They said they were watching one or two films, but neither could remember what.

The M said she was in the bath for 30-40 minutes, but the F’s account of what he did would have taken significantly longer than that. Most importantly, I think it highly unlikely that the M could have been in the bath and not heard the events that led up to A’s injuries. It is possible that the assault was quick, and A went quiet, but it is overwhelmingly likely that A was crying before that, perhaps because he would not take the bottle and that is what led to the F losing his temper. I repeat, this was a small house, and the idea the M was lying in the bath oblivious to events seems farfetched.

Further, the M’s evidence about not knowing about the neck injury is very difficult to believe. Both parents say the F told her once they got into bed. She checked on the children at least once after that (I am not sure precisely when the F told the M about the neck injury). Even if I accept that the F swaddled A in a way that somewhat hid his neck, which seems very unlikely, if the M had been told he had scratched his neck, surely, she would have looked. It would be most peculiar not to do so, unless she knew the F had injured A, hoped that he would be alright and continued with her approach of deliberately not facing up to the F’s behaviour and the risks he posed to the children.

In the morning, I am confident the M lied again. The Evidence Matters material shows the M looking at YouTube at 08.28am. I have no reason not to accept this evidence, and the M does not suggest that the F had her phone. She was therefore awake when N was screaming at the top of her voice. She therefore undoubtedly knew how distressed N was but chose to ignore it.

In my judgment, she knew that the F had injured A the night before, and she chose to do nothing about it, presumably hoping he would recover. This seems more than odd behaviour. But the M’s presentation in the witness box fits with an assessment of her being highly passive in respect of the F, either incurious or uninterested in his actions to the children, and emotionally unwilling or unable to step in to protect them. I suspect, although I cannot know, that neither parent realised how badly injured A was. I have not heard paediatric evidence and therefore will not speculate on his condition immediately after injury. But assuming the F did swaddle him up, they may both have hoped and the M possibly have assumed that he would be alright in the morning. That does not alter my conclusion that the M knew the F had injured him and took no steps to protect him, by getting medical help or even properly checking him herself.

The broader evidence of the M’s failure to protect is overwhelming. She knew about the F’s assault on O and the level of concern of the Children’s Services. She knew, certainly in the days before A’s death and quite possibly from much earlier, that he was losing his temper with N and being highly aggressive to her. I do not believe that she could have slept through N screaming and the F being unpleasant to her on the three mornings where there is babycam footage. But further, the M said she slept with the monitor next to her bed in order to hear N but claims to have heard nothing untoward.

The M was extremely isolated, and wholly emotionally dependent on the F. She seems to have decided to do nothing that would jeopardise that relationship, and to prioritise the relationship well above any active protection of the children. That does not mean that she does not genuinely love and care for the children, but she was not prepared to act to protect them, despite the clearest possible warning signs.

I therefore find she failed to protect both children, as pleaded by the LA.

The final issue is welfare. The welfare outcome is agreed - that there is a final care order with a care plan of N staying in foster care, but an assessment being undertaken of the paternal great aunt and uncle.

The LA ask that I refer to the F’s evidence gave when asked about his relationship with his family. It was apparent from his evidence that he had sought to manipulate his family, in terms of what they said to the LA and him seeing N. More worryingly, his mother and sister appeared to be prepared to go along with this. Paternal Great Aunt and Uncle are very close to the paternal grandmother.

This does not mean that they should be ruled out as carers for N. However, I am concerned that the paternal family appears to have remained convinced that the F did not harm A, and to be hostile in some communications to the LA. This is despite the fact that he had been convicted of a serious assault on O.

There will need to be a very careful assessment before N could be placed with the Paternal Great Aunt and Uncle. I am also concerned that if criminal proceedings are instigated that will create an enormous further stress for the extended family. This will have to be carefully considered.