X, Re

This is a fact-finding hearing in care proceedings in relation to a young child, X, born in January 2024. X is in foster care where she has been throughout these lengthy proceedings.

In the early hours of 16.02.2024, the parents called an ambulance and attended A&E with X. X was reported to have had an episode of vomiting, choking and becoming unresponsive. She was treated with fluids and kept under observation and subsequently discharged home with advice.

Later on 16^th, X re-attended A&E due to twitching of the right leg which then became more widespread. She deteriorated and was intubated and ventilated. X was transferred to Kings College Hospital Paediatric Intensive Care unit for further management. X underwent further investigations including, CT, MRI, Skeletal survey, and blood tests.

The purpose of the hearing is to determine the nature and cause of a number of injuries/abnormalities identified by medical professionals, following X’s admission to hospital on 16th February 2024. These fall into three broad categories namely: intracranial injuries; markings on her body alleged to be bruising; an abnormality on her Xray, said to be a fracture.

The Local Authority asserts that the abnormalities identified represent injuries which were inflicted by one or both of her parents, as set out in their schedule of threshold findings, amended at the conclusion of the hearing (and appended to final submissions).

X’s parents deny inflicting any of these “injuries” upon her although the father is worried that he may have inadvertently caused X’s intracranial injuries by running upstairs with her after her collapse. The parents deny the bruising and deny that X had a fracture.

The proceedings have taken a long time to reach this point, mainly because of the need to obtain a number of expert reports and then subsequent delays in listing.

Permission was given for most of the experts to give evidence by Mr Justice MacDonald in A Local Authority v X and others [2025] EWFC 137.

The parties have benefitted from representation by specialist counsel, Ms Brown KC and Ms Baker for the LA. Mr Momtaz KC and Mr Jagutpal for the mother. Mr Storey KC and Ms Slee for the father and Mr Hussein and Ms Fox for P by her Guardian. I am very grateful to counsel for their hard work on this case.

The hearing has been an attended hearing with two exceptions. The court granted Mr Storey KC permission to attend remotely for personal reasons. Mr Storey had a good quality video and audio link so this accommodation caused no difficulties during the hearing. Mr Storey’s client was attended in court by Ms Slee and his solicitor, except on a couple of occasions when he was just with his solicitor. The father was content with this arrangement. Mr Storey was at court on the day his client gave evidence. The second exception relates to the medical experts, each of whom gave evidence via video link.

Good arrangements were made by all parties for attendance during the week of industrial action on public transport, and there were no significant delays.

This will be a long judgment. I propose to provide a summary of the relevant background to the case in section 1. I shall then set out the law in section 2 and turn to review the evidence in section 3. I propose to consider the expert evidence first in Section 3A I shall then deal with the factual evidence 3B and my findings in respect of the witnesses. Finally in Section 4, I shall consider all of the evidence, the wider canvas in order to reach a determination on the balance of probabilities as to whether the Local Authority has proved its case.

X was born in January 2024, she is the first child of the mother and father.

The mother and father had been in a relationship for a few years prior to X’s birth living in a property the mother inherited upon the sudden death of her own mother.

Each of the parents has experienced poor mental health. The maternal grandmother died unexpectedly approximately a year before X’s birth and this loss devastated the mother. The father comes from a close-knit family but has had a difficult relationship with his father. This has played out during X’s life and the investigation into her injuries in a police call-out and the father being excluded occasionally from his family home.

The parents lived in the maternal grandmother’s home. It is undisputed that the couple found it difficult to maintain the property to an adequate and hygienic standard. Perhaps understandably, the mother has found it difficult to remove things which belonged to her mother from the property. Consequently, the house became cluttered and dirty despite the assistance of friends and social workers to help the couple address the mother’s hoarding issues. In addition, the family had three cats and the evidence suggests that the parents were not motivated to deal with litter issues in a timely way.

Prior to X’s birth, although there had been some progress in relation to the state of the house, the evidence suggests that there had been a deterioration.

X was born on 11^th January by caesarean section. The mother was not in active labour but her waters had broken when the caesarean was performed.

On 13^th January, both X and the mother were discharged from hospital, and they went home. The mother told a family friend Mrs BB in a message sent on 14th that the “house is pretty bad. [The father] didn’t realise how much until yesterday and the cats decided to destroy pretty much everything while we were in hospital.” She was very worried about what the midwife would say when she visited on 14^th.

The first night was described by the father in a text message to his sister as “the worst night of our lives”, during which they [the parents] had “multiple mental breakdowns”. The mother’s description to Mrs BB that it was a “really bad night to be honest”. The house was too cold, and X’s lips were turning blue, on father’s account, so the couple decamped downstairs, and father had to turn on an electric heater. Eventually X settled.

On 13^th January, the mother’s statement describes her falling backwards from a squatting position in front of the washing machine with X in her arms. This was put forward as a possible explanation for X’s injuries.

On 14^th January, the family was visited at home by family friends, the BBs, who were very concerned about the state of the property. Mrs BB had been a good friend of the maternal grandmother and had taken on a maternal role in relation to the mother. The BBs kindly offered that the couple could stay with them for a while, while the house was cleaned and de-cluttered.

The family stayed with the BBs from 14^th January to 11^th February.

During this time, the BBs did not observe any difficulties in the mother’s care of/handling of X but there were occasional concerns about the father. They observed the parents tended to bicker about who was responsible for parenting tasks. The father was observed to be very stressed “tearful and pulling at his hair”. He had to be prompted to support X’s head and had also been observed to be heavy handed when winding her. On one occasion Mrs BB was woken up by the sound of him slapping X on the back. She went and took X to her mother. The father agreed in cross-examination that he had been hitting X hard enough for Mrs BB to have been woken when sleeping on another floor. He agreed it was “quite a whack” and also that it left no marks on her.

None of the BBs witnessed any bruising or unusual marking on X during the period she was living with them. To them she seemed like a healthy normal contented baby. This was in sharp contrast to the BBs’ experience of their grandson who had been born with a range of health difficulties.

On 11th February the parents moved back to their home. The mother had not been looking forward to moving home and the day before the move, she was distressed and self-harmed.

On the same day, shortly after they arrived home, the paternal grandparents visited for a roast meal cooked by the father. The mother was unhappy with the visit because she felt the family had not had any time to settle back in.

Later that evening, after the paternal grandparents left, the father sent Mrs BB a message saying that when the mother was alone with X, he had heard X screaming bloody murder and her breathing was really weird. He said “I’m kinda scared, what do you think it could be?” Mrs BB gave the couple sensible advice: to go to the hospital if in doubt. The parents did not take X to hospital.

Ms Brown KC asked the mother what happened during cross-examination but the mother said she did not remember. She denied shaking or hurting X.

On 13^th February, the father was signed off work by his GP. The family went shopping but did not have enough money to purchase the items they had selected. They had to put them back which was embarrassing.

On 14^th February, the parents argued about a nappy change. The mother has accused the father of becoming angry and throwing a chair. She said he ripped X’s nappy off roughly. The father agrees he was emotional but denied hurting X. The father has said the mother may have hit X with a book and shaken her. Later he sent a message to the mother saying X made a cry “not sure if hurt her”.

On 15^th the day was spent with the father’s family. This caused friction between the mother and father, the mother not having wanted to go and being quite hostile to the excitement shown by the cousins. X was noted to be sleepier than usual: “not herself” according to the father. She had a 5 oz feed at about 1600/1630 and then another full 5oz bottle at 1730. There has been an issue about how much she was fed. X then slept and F assumed this was because she had so much milk. Apart from a short period of about 15 minutes when mother and father popped to the shops, X was in their care.

The family returned to their home arriving at about 8pm. X slept until just after the parents had gone to bed. The father tended to her and described her as “fussy”. Over the next few hours, he tried, intermittently, to feed and wind X and get her to sleep. In his written evidence, he described trying to put X in her cot once and then getting into bed himself but she started crying. He took her downstairs so as not to disturb the mother. There he tried feeding her again, eventually falling asleep on a sofa with X lying on top of him.

He realised he needed to put her in her cot. He raised her up and she vomited over him after which he noticed her breathing was “weird” and it sounded like she was choking. He sat her on his knee supporting her head and patted her back. He checked for an obstruction in her mouth. X went limp and he thought she was not breathing. He panicked and ran upstairs to the mother. An ambulance was called, by which time X had recovered consciousness and X was taken to hospital.

The paramedics noted a strong smell of cat urine on X’s chair.

X arrived at hospital at about 3am. The presenting complaint was noted: Vomiting (Pt vomited then dad noticed pt stopped breathing for about 30secs. Pt feeding well. Opened bowels 3/7days ago. With strong smell of urine and cats on the baby as per LAS. Pt awake and crying in triage.

Overnight, X was examined. The notes indicate: initially she was lethargic however then very alert and active. At times hard to console but has been more settled as time has gone on in A&E Settles more in parent arms. Initially when unsettled and inconsolable had brief breath holding episodes after crying fit lasting only a few seconds duration Also had short and sharp breaths. Senior review with Dr Maria - nil concerning breath holding episodes and related to crying. At second review 20 mins after initial review and when more settled, respirations had settled and nil breathing holding noted.

Neither parent could remember whether X was undressed fully during either examination.

The mother and father left the hospital and decided to go for breakfast at the Toby carvery, arriving just before 10. About an hour later the mother went to change X’s nappy and noticed her leg twitching.

The parents took X to the nearest Urgent Care centre for a consultation with a GP because of concerns about her leg. She was referred onwards to A&E for a paediatric review arriving at hospital at about 1pm where a seizure was witnessed and further seizures were observed occurring for 2-3 minutes intermittently. X was intubated and transferred to Kings College Hospital PICU. The investigations revealed intracranial injuries. Neither parent was able, to the satisfaction of the treating medical team, explain those injuries. The father had been concerned about his run upstairs and voiced his concern about whether he had injured X en route.

Mr Jarosz, the paediatric neuroradiology consultant, reported that the imaging was concerning for membranes, the significance of this being that the old blood might represent a chronic SDH (subdural haemorrhage).

None of the treating radiologists identified any fracture but there was a question mark over whether there was a mesenteric injury. It was this query which later resulted in the Part 25 application for the instruction of Dr Olsen.

The relevant legal principles are well known and uncontroversial. They were summarised perhaps most conveniently by Baker J (as he then was) in Re L and M (Children) [2013] EWHC 1569 and also re JS (A Child) [2012] EWHC 1370 (Fam), Re BR (proof of Facts) [2015] EWFC 41, Peter Jackson J (as he then was) and Re A (No 2) (Children:findings of Fact] [2019] EWCA Civ 1947, [2020] 1FLR 755, Peter Jackson LJ at $93-99.

The relevant date for the purposes of deciding whether the section 31(2) Children Act 1989 criteria are crossed is the date on which the Local Authority initiated protective measures (Re M (Care Order: Threshold Conditions) [1994] 2 FLR 577). In this case that was 16^th February 2024.

The burden of proof is on the party seeking to prove the allegations it makes. In this case that means that the burden lies with the Local Authority throughout in respect of the allegations it makes in its schedule of findings as to causation of injuries, number of events which resulted in those injuries, identification of perpetrator and, if no perpetrator can be identified, in satisfying the court who from the list of potential perpetrators should be placed in the pool. Allegations of failure to seek medical attention and overall failure to protect are also made; and the burden of proving those rests with the Local Authority. The mother carries the burden of proving the allegations of domestic abuse she has made against the father.

The standard of proof is the simple balance of probabilities – Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35.

The court can find only that something happened or that it did not happen; the system is binary; there is no room for a finding that something “might have” happened – Re B (ibid). The court must not reverse the burden of proof; the parents do not have to provide an alternative explanation for X’s injuries.

Findings must be based on evidence and inferences that can properly be drawn from the evidence, not on suspicion or speculation – Re A (A child) (Fact Finding Hearing: Speculation) [EWCA Civ 12]

The court surveys a wide canvas of evidence. It must take account of all the evidence and consider each piece of evidence in the context of all the other evidence – Re T [2004] EWCA Civ per Dame Elizabeth Butler-Sloss at para 33 – “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to the other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the Local Authority has been made out to the appropriate standard of proof.”

Expert evidence in particular must be considered in the context of all the other evidence. The role of the court is different to that of the expert. The judge (not the experts) considers all the evidence. Experts advise, judges decide. The judge (not the experts) makes the final decision – A County Council v KD & L [EWHC] 144 Fam per Charles J. Where the evidence permits, and subject to the need to give its reasons for disagreement, the court may come to a conclusion which is contrary to a body of expert evidence (Re B (Care: Expert Witnesses) [1996] 1 FLR 667.

In Re R (Children: Findings of Fact) [2024] EWCA CivLord Justice Peter Jackson said at paragraph 33: It is wrong to describe the medical evidence as the canvas against which the other evidence was to be considered. Medical and non-medical evidence are both vital contributors in their own ways to these decisions and neither of them has precedence over the other. He said the ‘canvas of evidence was small, densely filled, and the court could see it all’ (31) and that the court had been called upon to ‘evaluate a number of competing improbabilities’ (33). The Court of Appeal concluded that the judge had not carried out the necessary evaluation of the evidence for and against the local authority’s case or meaningfully synthesise[d] an assessment of the probabilities (39).

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

When considering inherent improbabilities, the court must be careful to focus on the evidence it has before it in the particular case – Re BR (Proof of Facts [2015] EWFC 41.

Discrepancies in accounts are not necessarily to be taken as lies in the sense that they can only be explained by guilt (as per Macur LJ in Re A, B and C (Children) [2021] (ibid). As Jackson J (as he then was) said in Lancashire County Council v The Children (by their Children's Guardian), M & F [2014] EWHC 3 (Fam) para.9 "in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the account. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process that might inelegantly be described as "story-creep" may occur without any necessary inference of bad faith."

It is not uncommon for people to tell lies during the investigation or during the hearing. The court must bear in mind that a witness may lie for various reasons such as shame, misplaced loyalty, panic, fear, distress and the fact that the witness has lied about some matters does not mean that he or they have lied about everything – R v Lucas [1981] QB 720. In Re A, B and C (Children) [2021] EWCA 451, Macur LJ said this [para 57]: “I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis, or itself determines that such a direction is called for, to seek counsel’s submissions to identify (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principle of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court.”.

The Court of Appeal decision in Re H (Children: Uncertain Perpetrator: Lies) [2024] EWCA Civ 1261 provides a refinement to the dicta of Macur LJ in Re A, B and C (Children) [2021] EWCA Civ 451 on lies. Lord Justice Peter Jackson considered the existing authorities in relation to lies (Re H-C (Children) [2016] EWCA Civ 136 and Re A, B and C) and said this at paragraph 20: Lies, where they are admitted or alleged, will form just one part of the overall evidence in relation to family proceedings. The underlying purpose of the Lucas direction is to ensure that proven lies are assessed with a sense of proportion.

At paras. 22 and 23 he said that the ‘austerity direction’ from Re A, B and C (above at 55) “in the normal run of cases” is “neither necessary nor appropriate”. He said: “it will be sufficient for the judge to recall that the true significance of a lie must be carefully assessed, for all the well-known reasons noted by the judge in the present case. A general exclusionary rule, exclusively directed at lies, would be inconsistent with the duty on the court to consider all the evidence. Once it has done that, its conclusion in an individual case may be that the lie was told to conceal guilt, but that is a conclusion, not a test. Wherever a lie is found to be relevant to the fact-finding exercise for some other good reason, that element of the evidence should be factored in.”.

In D and A (Fact-Finding : Research Literature) [2024] EWCA Civ 663the Court of Appeal concluded that the judge’s exhaustive analysis of research literature was unnecessary and disproportionate, that it had become the prism through which she assessed the rest of the evidence and she had failed to reach her decision on the basis of the totality of the evidence. Lord Justice Baker said:

When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is the balance of probabilities [Re S-B (Children) [2009] UKSC 17], the first stage being to identify any person who had the opportunity. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. The court must not assume that because Person A is more likely to have inflicted the injury than Person B that this establishes on the balance of probability that it was Person A. Where it is impossible for a judge to find on the balance of probabilities, for example that parent A rather than parent B caused the injury (but where there is a real possibility that each caused the injury) neither can be excluded from the pool. In Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 11348, the court confirmed: “The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or they cannot do so, then, in accordance with Re B (2019), he or they should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

It is only if the court cannot identify a perpetrator that the court will need to seek to identify the pool of possible perpetrators on the basis of the real possibility (or likelihood) test, namely that if the evidence is not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. The conceptual conflict this presents with a binary approach mandated by authority is obvious, but it has been endorsed by the Supreme Court and logically is not inconsistent with the section 31 statutory threshold. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43]. The need for care to be taken not to reverse the burden of proof when the court considers the pool of perpetrators was considered in B (Children: Uncertain Perpetrators) [2019] EWCA Civ 575. [para 48]“Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleadin to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof”.

Research and Authorities - Mr Storey KC has produced a bundle of medical research featuring the well-known key papers on birth-related subdural haemorrhages (“SDH”). He has also provided a large bundle of authorities which he has invited the court to consider, some of which are already referred to above but some of which are first instance decisions. As Ms Brown KC has submitted, these are not citable decisions, Practice Direction on the Citation of Authorities [2001] WLR 100. Any court determining such serious allegations is required to do so by considering all of the evidence in that particular case. Baker LJ observed in P and E (CareProceedings: Whether to Hold Fact-Finding Hearing) [2024] EWCA Civ 403 at § 5: These principles have also been the subject of comment in a number of first instance decisions. Understandably counsel and judges sometimes cite these decisions because they illustrate the principles being applied. As this case illustrates, however, there is a danger in seeking to follow too closely another first instance decision which of course will have turned on its own facts.

So, whilst it is important to consider medical and expert evidence in the context of established scientific research, the court has to keep an open mind to all plausible potential explanations, as indicated by the evidence. The court has to consider the evidence of the expert witnesses in this case in relation to this child, and in the context of the totality of the evidence in this case. Every person is unique and each case must be approached with that firmly in mind.

In that context, I agree with Ms Brown KC that reminding an expert of their previous engagement with an advocate yields little useful evidence; asking medical experts to acknowledge findings in reported decisions where judgments have been given on the totality of the evidence does not necessarily result in useful relevant evidence in the present case and asking medical experts (as happened in this case) to comment on a judicial summary of medical evidence given by other experts in another case, without the medical experts in this case having a proper opportunity to consider the medical information and aetiology in that case, does not yield relevant evidence. I agree that Dr Ward was polite when asked about this but noted she did not know the aetiology of the injuries under consideration in the case to which she was referred.

Is contained in the three bundles which have been prepared for this hearing. The main bundle (running to 3205 pages); the supplemental bundle (at over 1000 pages) and the medical bundle of hospital and other medical records (at 1624 pages). I have read the evidence in the main and supplemental bundle and been referred to and then read selected documents in the medical bundle. I have heard oral evidence from Dr Hogarth, Mr Jayamohan, Professor Saggar, Dr Olsen and Dr Ward, the opinion of Dr Keenan being unchallenged. In addition, I have heard the oral evidence of witnesses of fact; namely the mother; the father; four members of the BB family with whom the parents lived for about a month following X’s birth because of the state of the family home. I have also heard from members of the father’s family. Finally I heard evidence from the child’s social worker who has been allocated throughout these proceedings and who gave evidence not only about her interactions with the parents but about her assessment of Mr and Mrs BB as prospective special guardians for X.

The court received reports containing the opinions of a number of experts who met in January 2025 to discuss their opinions as relevant to the issues in this case.

I found both the written evidence and the oral evidence of those experts who gave evidence of enormous assistance in this case. Each gave fair and balanced evidence within the area of their expertise and did not stray into areas reserved for the court. I am confident each was trying to assist the court with frank answers. None gave the impression of being reluctant to consider plausible alternatives.

The cross examination of the experts developed the possible alternative explanations. This was helpful because a court in a case such as this should consider very carefully all possible explanations which emerge from the factual evidence. A medical possibility may become a probability in the circumstances of the case.

Dr Keenan, Consultant Paediatric Haematologist at the Alder Hey Children’s Hospital, Liverpool reviewed X’s medical records. He provided an initial report which did not identify any clotting disorder in X. However, he required additional results/testing for specific abnormalities before he could give his opinion. Unfortunately, his addendum was sought before those results had been obtained, resulting in further delay. Finally, the results of the required investigations were provided to him. His opinion dated 29^th November 2024, confirmed : The testing of blood clotting is now complete. No blood clotting disorder has been identified. The bruising and bleeding observed in X should be considered to have occurred in a child with a normal blood clotting system. This evidence has not been challenged in this hearing and I accept Dr Keenan’s opinion.

Professor Saggar, Consultant in Clinical Genetics and Senior Lecturer in Medicine provided the following opinion:-

After the oral evidence of Mr Jayamohan, Dr Hogarth, Professor Saggar and Dr Olsen, the mother produced a video showing that she was able to place her hands on the floor from a standing position. A person’s ability to do this is part of the assessment undertaken by a doctor when examining for HSD (Hypermobility spectrum disorder)/EDS3. I allowed this video to be adduced in evidence because it was plainly relevant to the issues to be determined but I agree with Ms Brown KC that the evidence could and should have been provided much earlier in the proceedings, after Professor Saggar gave his opinion set out above. It should have been made available to the experts prior to the preparation of their reports. Had this been done, it would not have been necessary for Professor Saggar to be recalled following his providing a written response to the video.

Professor Saggar confirmed, when recalled, that the mother’s “Beighton Score” (the diagnostic checklist of symptoms) should be reassessed to increase by 2 points from 5/9 to 7/9. This meant that the mother’s scores were unusual and outside those expected for a pre-menopausal woman of her age. Professor Saggar opined that the higher Beighton score, the mild facial asymmetry and red markings on her skin meant she may have a very mild manifestation of EDS Type 3. If mother had EDS3, X stood a 50% chance of having EDS3.

Much of the subsequent questioning of Professor Saggar was predicated on the basis that X was likely to have EDS3/HSD by virtue of Professor Saggar’s revised opinion in relation to the mother. I allowed this because of the equal chance he described, that X had some form of EDS3/HSD inherited from her mother. This means that EDS3/HSD cannot now be excluded. However, Professor Saggar’s evidence was also that HSD could not be diagnosed by genetic testing – it was a diagnosis made clinically. When he examined X, he found no evidence of joint laxity or other symptoms to suggest she might have HSD, save that he did observe some transient red markings on handling her. In other words, there was nothing definitive either way. Given the potential significance of EDS3/HSD to the disputed issues in the case, I have approached the evidence on this issue in the following way. Whilst the evidence indicates an equal chance X has EDS3/HSD (and so the LA has not proved X does not have this condition), it is insufficient to support a finding as to a positive diagnosis. I have, therefore, approached this by considering the potential impact of EDS3/HSD on issues of causation, as if such a diagnosis had been/were capable on the evidence of being made, because of the importance and significance of these findings to X and her family.

Significance of EDS3/HSD to the abnormalities/injuries

Bruising - In relation to bruising, Professor Saggar indicated that one of the commonest features of EDS Type 3 was easy bruising caused by capillary fragility. The issue of propensity to bruise was not static and may change over time because it can be caused by a number of factors not EDS. Because it was not static, he considered a limited amount of weight could be attached to the fact of no further bruising in foster care, whereas if the bruising continued it would be important. I understood from this answer that he meant that if the bruising had continued this would lend support to a diagnosis of EDS Type 3 in X

Fracture - Propensity to fracture for lesser force in those with EDS was a more controversial topic. Where there is force or trauma (eg a road traffic accident or skiing accident) there is a significantly increased risk: 3-4 times more. It has been suggested this is not seen in babies as they are not exposed to normal levels of activity. He discounted the Holick paper which he considered to have been discredited and confirmed that the majority (which I understood to be mainstream) view was that there was no elevated risk of fracture with normal handling of a baby and that fractures were not seen in babies and even small children unless there was a clear identifiable precipitate force.

Intracranial injuries He acknowledged that the impact of EDS Type 3 on the risk of intra-cranial bleeding in the context of clear excessive force akin to a shaking injury was unknown. There are no studies on this. There have been cases he has been involved in where smaller falls (which I understood to mean falls from a shorter distance than would be expected in a child without EDS) have caused intra-cranial bleeds. He could not exclude a greater propensity to bleed if a sufficiently adequate excessive force were exerted. He was asked by Mr Storey about the fact that as connective tissues is associated with the formation of blood cells, there may be greater vulnerability. He replied that not every gene will be expressed in every tissue so that takes us back to the clinical picture. He said we see children, because they are so flexible, they fall and get bruising but we don’t see them presenting with clinically symptomatic intera-cranial bleeding. Clinically we don’t see an increase in intra-cranial bleeding. He agreed that in principle it could extend to the vessels in the brain but observed that there were other genes which gave strength to those vessels. Mr Storey suggested that he would be able to show the court many cases in which the court has accepted that EDS Type 3 does involve susceptibility to intra-cranial bleeding for lesser force. Professor Saggar accepted he could not exclude it. It would not, however, account for the parenchymal injuries.

When cross examined by Mr Hussein, Professor Saggar confirmed that even if an intracranial bleed could occur from lesser force, force would still be involved. He had already answered to Mr Storey to confirm that the father’s description of the run upstairs, if accepted, would generate viable precipitate force.

I accept Professor Saggar’s opinion that the mother probably has mild EDS3/HSD. This means there is a 50:50 chance that X has it although that had not been Professor Saggar’s clinical diagnosis on examination of X.

Dr Olsen, Consultant Paediatric Radiologist provided the single joint expert opinion. The evidence of Dr Ward, Consultant Paediatrician is also relevant.

Dr Olsen opined that the imaging showed that X had a healing fracture of the left acromion (shoulder blade), more precisely, a fracture at the junction between bone and cartilage towards the side. The fracture had, most likely, occurred on or after 24.01.2024 although this was an estimate rather than a determination. This injury was uncommon. Dr Ward described it as a rare injury.

Dr Olsen identified no evidence of abdominal trauma (the suspected mesenteric injury) or other bone abnormalities. He identified no radiological signs of bone fragility or underlying medical conditions, whilst acknowledging that bone fragility can never be excluded by radiological observation alone.

In his opinion, the fracture was likely caused by direct impact, sharp pulling, or twisting of the left arm. He accepted in oral evidence a number of alternative possibilities. Severe seizures could be a cause if the force generated were sufficient to cause a fracture. The injury could possibly be a flailing injury. In accepting this possibility, he was in effect entertaining hypotheses which were consistent with the known mechanism for such a fracture.

The fracture site (being at the bone-cartilage interface) made it akin to the metaphyseal fracture more commonly found towards the ends of the long bones of the limbs. Such fractures often do not show any typical fracture-healing (callus) at x-ray imaging. The absence of callus at X’s left acromion therefore does not assist the differential diagnostic consideration.

Is there a fracture? The parents understandably highlight the fact that three treating medical professionals did not identify and diagnose the fracture during the period of X’s admission and subsequent treatment. It was put to Dr Olsen in cross-examination that in those circumstances, he was mistaken in his opinion. Dr Olsen remained firm in his opinion that such a fracture existed. He made no criticism of the expertise of any of the other treating medics. He could not explain why or how those medics. had not seen the fracture but in his opinion the asymmetry between the two shoulders was undebatable.

I have considered the factors which emerged in the oral evidence which could be capable of undermining the existence of such a fracture. On the parents account, there was no swelling; no bruising and there were no marks which anyone identified on X (including those other adults who spent time with X). Nor was there any description of difficulty or distress shown by X d when her left arm was manipulated. This evidence could support an analysis there was no fracture. However, I have concluded that it is difficult to place much weight on this evidence. The only way in which X could indicate pain at 5 weeks old was to stop using her arm and to cry. The evidence suggests that she was a baby whose crying did exasperate and worry the parents. Why and how would they know whether their child was in pain rather than simply hungry or colicky? I accept that there has been no evidence that anyone noticed any failure on X’s part to move her arm, but I consider that even an experienced carer would not necessarily assume that a lack of movement in a weeks’ old baby would suggest that she had suffered a fracture. It is something in a child of this age that might well go unnoticed.

Mr Storey KC points to the fact that this evidence has not been challenged by the Local Authority. He submits the court is faced with an expert who is not 100% sure and three consultant radiologists who have not identified the fracture. He says it would be extraordinary for the court to find a fracture in those circumstances.

I disagree. Dr Olsen does not need to be 100% sure in is opinion, although he did say the existence of the abnormality he identified was undebatable. I have not heard evidence from the treating radiologists and am unaware of what their response would be to Dr Olsen’s opinion evidence as to the diagnosis of a fracture.

The position is, therefore, that I have unchallenged evidence as to the fact of what the treating medics. identified on imaging they reviewed in the context of treatment and Dr Olsen’s opinion evidence. There is no expert evidence before me which contradicts the opinion of the jointly instructed single joint expert. I find he gave convincing evidence on this issue.

I am satisfied on the balance of probabilities that X suffered a fracture acromion.

Whether the fracture existed from birth to 24^th January was “not impossible but highly unlikely” in Dr Olsen’s opinion. I accept that evidence and find it likely that the fracture occurred after 24^th January as Dr Olsen opined.

There is no identified medical reason to consider that X might be predisposed to suffering fractures. There is no evidence she has suffered a fracture at any other time, including now, when she is mobile. Such a fracture, as Dr Olsen described could be caused by twisting, pulling or by impact. Hypothetically it could be caused by a seizure but it would need to generate sufficient force to cause a fracture. Dr Ward considered it unlikely such a fracture would have been caused by seizures alone. In her opinion it was and more likely due to trauma, possibly associated with shaking. She noted that no plausible accidental mechanism was provided by the parents. I shall return to this later.

Dr Ward, Consultant Paediatrician had reviewed the medical notes and examined the photos taken of X.

Dr Ward charted X’s developing symptoms and the treatment/investigations undertaken in tabular form in her report. She notes that at the point of transfer to Kings College Hospital, no body map had been completed and no bruises noted on examination in the course of acute management.

By 1.30am on 17^th February, after transfer to Kings, there is a record of Dr Panniker speaking to both parents to inform them that there were someunusual, purplish marks on her buttocks. Photographs were taken. The parents were unaware of the marks.

At 1344 on 17^th the parents were spoken to by Specialist Registrar Stephenson who described the marks as “apparent bruising”.

On 18^th at 14.15, a note was made that the bruises noted on admission were not worse and it was recorded that the police photographer attended to document the bruising.

By 1850 on 19^th, Dr Pal-Madjics, Consultant Neurologist reviewed X and noted Neither the bruises on the buttocks, nor the abdominal marks, were present at this stage. Her opinion was that the fact the marks to buttocks and abdominal marks had disappeared meant they were more likely to be bruises than birthmarks.

In the experts’ meeting, Dr Ward acknowledged the difficulty in deciding on the existence of bruising in a child on the basis of scrutiny of photographs. She had to depend on the description of the treating clinicians in relation to abdominal bruising because she did not see this on the photographs. During this part of her oral evidence it became clear that she had not seen the body worn footage, so it was provided to her after her evidence. She provided a short written response. It showed: dark greyish lesions over the buttocks with linear element on the right and circular on the left but couldn’t see any truncated/abdominal mark.

Dr Ward considered that several marks on X had an innocent explanation and were consistent with birthmarks or medical procedures (e.g., heel pricks, cannulation). There was no organic cause for the marks on X’s buttocks and trunk. Her opinion was that these marks represented bruising not birthmarks. She noted they resolved within days. The colour of a bruise was not a reliable indicator of its age. Scientific evidence does not support using bruise colour to determine timing.

Dr Ward noted that unexplained bruising in a young, pre-mobile infant is highly significant and rare. Accidental bruising in such infants is extremely uncommon (0–1.3%). She noted bruises in pre-mobile infants were considered to be sentinel injuries which were important warning signs of possible abuse.

Inflicted bruising was more likely to be found away from bony prominences (e.g., buttocks, trunk, face, neck, arms). X’s bruising to the buttocks and trunk was identified on sites uncommon for accidental bruising especially in a non-mobile infant.

Dr Ward concluded that the pattern and location of the suspicious bruises on X’s buttocks and trunk (linear, away from bony prominences) were highly concerning for inflicted injury. She noted the bruises had not been explained by the parents.

The bruises were likely caused by blunt force trauma, such as slapping or gripping. Given X’s’s age and immobility, she could not have caused these bruises herself and were highly suggestive of non-accidental injury, likely inflicted, likely through blunt force trauma such as slapping or gripping). I found Dr Ward’s evidence fair and persuasive.

The extent to which the court can/should attach weight to this opinion evidence is linked to the late re-assessment of the mother by Professor Saggar and his revised opinion that she likely has a mild form of EDS3, one of the symptoms of which is propensity to bruise for lesser force.

In his report Professor Saggar had assessed X as having a Beighton score of 4/9 but elsewhere in his report noted that diagnosis was made on clinical grounds and that a Beighton score of 5/9 alone is not sufficient to diagnose HSD. He had concluded: There is no evidence of any significant vascular fragility syndrome in the child or either parent. The extensive gene testing has excluded any mutations in the known genes for the different subtypes of Ehlers Danlos syndromes (EDS) and specifically the vascular type of EDS has been confidently excluded on molecular and clinical grounds.

Professor Saggar, when recalled to give evidence, did acknowledge the possibility of X’s having EDS3. Although no diagnosis has been made, there is a significant chance that she has it by virtue of Professor Saggar’s re-assessment of the mother. Its potential relevance is that if so diagnosed, X might be susceptible to bruise for lesser force.

X has experienced some bruising in foster care but the evidence suggests that this has been at a relatively low frequency even after becoming mobile.

Professor Saggar had noted in his written report the occurrence of transient red skin markings on X on handling: There is some redness on handling seen on the back and lower abdomen. When recalled to give evidence, he was asked about the red marks he had noticed when examining X. It was put to him that the marks identified by treating medics had appeared quickly, were red and disappeared very quickly. This is the parents’ case although I note the marks were observed on 17^th and had only disappeared by 19^th. Professor Saggar said that red marks which came quickly and went quickly without going through colour-stages would strongly suggest the marks were not bruises but he deferred to Dr Ward on this. He agreed with Dr Ward that one would not expect bruising on a child of this age.

Mr Hussein asked him about the relevance of the foster carer’s description of X walking around and knocking herself as children do without bruising. He replied that it would indicate her susceptibility to bruise at this age and it would be difficult to extrapolate from that any firm conclusions about the position at 5 weeks of age.

The change in Professor Saggar’s assessment of the mother’s having EDS3 no doubt influenced the subsequent answers he gave on the potential significance of the red marks he had observed on X. However, whilst X has a statistically significant chance of having EDS3. Professor Saggar had not diagnosed any connective tissue disorder as a result of his physical examination of X despite his noting the red marks and her Beighton score of 4/9. Given that the clinical examination is the key diagnostic tool, there being no identified gene which is linked to EDS3, to the extent that he strongly suggested the marks identified on X were transient marks rather than bruises, I understood him to be acknowledging the possibility of marks arising from the statistical possibility of inherited EDS3.

Dr Ward had been very clear, however, that the markings on the trunk which she identified from the body worn footage, descriptions and the photographs did represent bruising, as most of the treating medical professionals who noted them in the records had concluded. I accept the evidence of the single joint expert paediatrician on this issue, to whom Professor Saggar deferred.

There is no dispute that the intracranial injuries are as set out in the LA revised schedule of findings, namely:-

The issue which falls to be determined is the nature of these injuries: were they inflicted or did they occur as a result of inadvertent but rough/reckless handling or spontaneously in the context of existing chronic subdural haemorrhage (SDH) which dates back to birth?

Relevant to the determination of these questions are the following questions:

Dr Hogarth, Mr Jayamohan, Dr Brocklesby, Dr Keenan, Professor Saggar and Dr Ward provided opinion evidence relevant to the nature and cause of these identified abnormalities.

The written expert reports and the transcript of the experts meeting in relation to the intracranial injuries in this case is strongly supportive of an analysis that the acute injuries, and also, perhaps the “old” blood identified on the imaging, resulted from trauma, and likely a shaking mechanism.

However, it is important to acknowledge that the experts cross examined on this point all conceded that this was a complex case in which a number of symptoms commonly identified as associated with a shaking type injury were not present.

Before reviewing the evidence, I remind myself that opinions formed from imaging reflect the appraisal of an artefact, pathology being the gold standard. Fortunately for X, she has made a full recovery from the injuries she sustained and there is no pathologist’s evidence in this case. Nevertheless, it is important to acknowledge, as did those experts who were asked, the potential limitations of a review of imaging. This is particularly so where, in a case such as this, complexity has been acknowledged. So, for example, although there are no visible “membranes”, it does not mean they are not there, as Dr Hogarth and Mr Jayamohan conceded. Having said that, the court has to determine the case on the basis of the evidence it has and not stray into areas of speculation.

Written opinions - The reports contained the following opinions which it is necessary to set out.

Dr Hogarth: “Overall, the CT and MR head scan findings are highly concerning for an inflicted shaking injury, likely occurring at some point in the 10 day period leading up to the CT head scan. No other cause for the findings has been identified on the basis of the investigations performed to date. The possibility that there was more than one injurious episode separated in time cannot be excluded on the available neuroimaging evidence. The cavity in the left inferior frontal lobe could be the legacy of an earlier injury but a birth-related cause cannot be entirely excluded. The inferior frontal cortical contusions and the multiple thrombosed bridging veins, in particular, are suggestive of a more recent shaking injury.

Mr Jayamohan: “The significant changes seen are of possible focal seizures on the 15th afternoon, then overnight 15th/16th, a presentation of vomiting, apnoea (stopping breathing), severe limpness, a non-normal cry, she may or may not have had twitching during this episode depending on the history preferred by the Court. She then represented later that day with seizures, was found to have evidence of raised intracranial pressure associated with fresh bleeding in multiple locations and in multiple layers in the brain, an acute effusion, possible chronic subdural collections, areas of injury to the brain tissue, some markings to the back of the head and no evidence of bacterial meningitis.

Dr Ward: “X had multifocal, multilateral subdural haemorrhages, subarachnoid haemorrhage, thrombosed bridging veins and parenchymal brain contusions. These findings are consistent with traumatic head injury, most likely caused by rotational acceleration-deceleration (shaking type) injury. The injuries likely occurred within 24 hours of hospital admission, although multiple episodes cannot be excluded. X experienced focal seizures progressing to generalised seizures and encephalopathy. These were classified as acute symptomatic seizures, secondary to brain trauma.”

Dr Brockelsby: “The mother was not in active labour during the caesarean and the delivery was uncomplicated and without the use of instruments. Dr Brockelsby described it as: straightforward, there was no additional suggestion of challenges with the delivery that would have predisposed X suffering an intracranial haemorrhage. He opined: it would not be possible to suggest that some of these injuries did not occur with the birth process as these are injuries are relatively common with birth. However, the fact that the caesarean section was recorded to be straightforward with no untoward challenges, that subdural haematomas associated with delivery are normally within the posterior aspect of the cranium and there were anterior ones it would highly unlikely that these did occur with birth. In my opinion, it is more of a theoretical chance that these occurred with the birth than a realistic one.

Professor Saggar: “Clinical and genetic testing did not identify any syndrome or gene mutation that would predispose to cerebral bleeding and or brain contusion. It was notable that there was no history of any plausible, precipitant force. There is also no evidence of any significant connective tissue disorder to support any susceptibility to bleeding or bruising. And:

In light of his revised opinion, the final two sentences of the second extract, represent Professor Saggar’s opinion which attracts weight.

Experts’ meeting – Following the receipt of the expert reports, there was an experts’ meeting in January ‘25. The overall consensus which emerged from that meeting was that X’s injuries were consistent with trauma, likely non-accidental. There was no underlying medical or genetic condition found to explain the injuries. The imaging and clinical findings support recent shaking injury, possibly within 24 hours of admission. Some uncertainty remained regarding the timing and number of trauma episodes.

Mr Jayamohan opined that the absence of neck/spine injuries did not exclude shaking injury. He and Dr Hogarth agreed that there were acute effusions and discussed timing of brain injuries. He remained supportive of an analysis that trauma was cause of brain dysfunction leading to seizures. Dr Hogarth identified mature cortical injuries possibly dating to birth or postnatal trauma. He noted limitations in imaging sequences for detecting soft tissue injuries. He opined one could not reliably date parenchymal brain injuries and acknowledged possibility of multiple trauma episodes. He agreed with Mr Jayamohan that trauma was most likely cause of neuroimaging findings.

Dr Ward agreed with the radiological findings and the description of focal seizures. She observed that the absence of retinal haemorrhages did not exclude rotational injury. She agreed trauma was the likely caused brain dysfunction and seizures. In her opinion a recent shaking injury within 24 hours of admission but she could not exclude multiple episodes. Dr Keenan confirmed there was no identified no haematological cause/contributory factor. Mild platelet function disorders had not been tested due to X’s age but were in his opinion unlikely to explain bleeding. Dr Brocklesby contributed on the topic of birth-related trauma and fractures: clavicular fractures were common in vaginal births; whereas skull and long-bone fractures more likely in caesareans. He had never seen acromion fracture at birth. Professor Saggar confirmed his report that there were no findings of a genetic disorder explaining bleeding or fractures. He assessed X for osteogenesis imperfecta and other connective tissue disorders; all tests normal. He examined parents and confirmed there was no evidence of inherited connective tissue disorder.

Oral Evidence

Mr Jayamohan confirmed there were no changes he wished to make to the opinions expressed in his written reports or contributions to the experts' meeting.

He clarified the presence of fresh subdural haemorrhage (“SDH”) and effusive processes supporting his opinion of recent trauma.

He interpreted the video evidence from the Toby Carvery of X’s leg twitching on 16^th as showing focal seizures. His evidence about the live photo from the 15^th was that this could either be a myoclonic jerk, which could be insignificant, or it could be a sign of early seizure activity. It was not possible to discern from the very short clip. If the court was satisfied that this was a twitch of the left leg, it lent supported an analysis that the acute injuries occurred prior to the twitch.

In Mr Jayamohan’s opinion the brain changes could not be explained by seizure activity unless there is very long seizure activity. This was clarified as normally after 30 minutes, whereas in X’s case the evidence was of 2-3 minute seizures followed by gaps. The gaps allowed the toxins to be washed away, Mr Jayamohan explaining that the brain changes would only occur once the oxygen had been used up and the toxins (by products) had built up in the body, in circumstances where the body had not been able to wash them away. He made an analogy of a runner not getting cramp after a short sprint but getting cramp after a long sprint.

He also acknowledged possibility of birth-related SDH because of X’s age but was careful to prefer the timing description in the first three weeks of life. He accepted spontaneous bleeding could occur from membranes in the context of chronic SDH. However, he reiterated he had not been able to see the membranes on the imaging and nor had Dr Hogarth. He acknowledged that the court would look to the evidence of Dr Hogarth on that issue.

Whilst acknowledging the possibility of chronic SDH, he emphasised fresh blood and fluid: some of the fresh subdural blood may be caused by that but in no way would that cause X’s clinical presentation. In no way would that cause effusion and at the back of the head where fresh blood was seen by Dr Hogarth….so potentially explains some fresh blood but not all the other findings.

He accepted that if the father had run up the stairs without supporting X’s head, such a mechanism could explain some of the brain findings.

He was asked by Mr Storey to respond to the following hypothesis in the context of a chronic birth-related SDH:-

“Storey KC: His journey starts when this occurs [vomiting] and puts child in front of him, and flips her down onto knee and patting her on the back to evacuate airway, when getting nowhere slips back up to shoulder and pats on back left hand on baby getting nowhere and starts screaming out and picks her up and runs upstairs and says in a panic one hand on bottom and one on back head could have been moving around, and turns stairs and top of second then right turning and in through door and onto bed where she starts patting X on back so lying face down on back. There is quite a lot of potential for head movement cause intracranial bleeding?

JJ: So, yes within that description are opportunities where, if had been an uncontrolled movement of head then that can cause the same injuries as seen through a shaking injury because that is what it is. So ultimately if the court says, heard from parents and from F and clearly uncontrolled flexion extension then [ note unclear but …] intracranial findings, as child shaken by abusive – as long as court happy for what caused it then that would explain all of the findings. But court needs to look at those.

He accepted this could be a case where there had been progressive encephalopathy possibly from earlier injury. He reiterated shaking injury as most compatible explanation but did not exclude possibility of multiple injurious events.

At the conclusion of his evidence in response to questions from Mr Hussein he confirmed that his opinion remained that birth-related SDH following a non-instrumental caesarean was very unlikely. X had suffered injuries occurring on more than one occasion.

Mr Jayamohan gave careful and persuasive evidence in this case, acknowledging its complexity but he remained firm in his opinion as to likely causation, whilst being prepared to acknowledge possible alternatives subject to the court’s assessment of the wider factual evidence. I accept Mr Jayamohan’s opinion.

Dr Hogarth - Emphasised the limitations of neuroimaging in distinguishing birth-related from inflicted injuries. He acknowledged possibility of birth-related SDH due to X's age, although he did not see membranes on the imaging. He agreed with Mr Storey KC that it didn’t happen frequently that SDH would “hang around develop membranes and become chronic”.

He described the imaging showing signal change in the left frontal cavity which he opined looked mature. He reiterated that the increase in subdural fluid between CT and MRI supported an analysis there had been a recent effusive process.

He maintained that the right parietal abnormality could be a small shear injury or seizure-related. He deferred to Mr Jayamohan on whether a seizure would be likely to cause this abnormality and whether it was a shear (not for me to weigh in on) but he did agree under cross-examination that if X had been having focal seizures off and on, he wouldn’t be surprised if he saw cortical signal change on corresponding part of the brain. This would be a plausible explanation. If it was a shear, this has a traumatic cause – shake or shake impact. It is due to forces that have caused some disruption to the axons where they plug into grey matter cortex. Can be acceleration deceleration. Later he added: If the expert paediatrician advises that there was no episode of seizures that occurred that lasted for a sufficient duration to cause the focal restricted diffusion, then the court may prefer the alternative explanation that the finding is due to trauma. Both Mr Jayamohan and Dr Ward (to whom he deferred) discounted seizures as a likely cause of this abnormality. I accept their evidence.

Mr Storey KC directed Dr Hogarth to three parts of the medical records at which the opinions of the treating medical team on the possibility of chronic SDH and invited him to reconsider his evidence on the lack of membranes supporting the presence of chronic SDH:

Dr Hogarth emphasised that neither he nor Mr Jayamohan had seen membranes although he accepted that didn’t mean they weren’t there. He replied: Yes the description that is being offered here is what I might say not a hard interpretation or finding. Put it with a certain softness – “concerning for” . When I report these scans for forensic purposes for the court I will say whether membranes or not. If clear membranes I will say that is what I have found. Not seen anything on T2 image I can identify confidently as a membrane. Wonder if [they were] looking at strands of blood along arachnoid membrane. That is what Siddiqui talking about coating of high-density blooding lying over high arachnoid. Wonder if seeing thrombosed bridging veins and streaking around them. My reading of the scan don’t see clear cut evidence of membrane formation. Absence of feature doesn’t lead us to conclude couldn’t have been chronic subdural collections.

Dr Hogarth went on to explain the significance of the depth of the fresh subdural collections in the context of his acknowledgment of the possibility of chronic SDH: -”well what I said is it depends on what weighting court puts on observation that depths increased. I don’t reject it, [the possibility of chronic SDH] but I am saying something more complicated than the way that opinion [the extracts put by Mr Momtaz above] framed. Let me just find part of my report which deals with this. So, at line 244, I say “there are no features that suggest a chronic SDH is more likely than a combination of fresh SDH and traumatic subdural effusions. The increase in the depth of the subdural fluid collections between the CT and the MR scan is good evidence of an effusive process. The possibility that there was also a pre-existing chronic SDH as well as fresh SDH and an effusive process cannot be excluded.” So, I am saying I don’t see positive features like a membrane confirming chronic subdural collection but absence of that finding doesn’t exclude a finding of a chronic subdural collection. However, can’t ignore increase in depths between CT and MRI and rate and scale of the increase is considerably more than one could comfortably explain by chronic subdural but have to accept the possibility of pre-existing chronic subdural as well as fresh subdural blood and effusive process. Clearly limit to analysis here because of lack of any previous imaging [ie from birth] which would make these questions clear and easy to answer. So are some limits. So I don’t reject the proposal from Dr Jarosz but on closer inspection have to deal with findings about increase in depth between CT and MRI and struggle to invoke that with effusive process. This is what most neuroradiologists accept.

Dr Hogarth agreed that had there been birth-related SDH, movements of an unsupported head could provoke subdural effusions and the cortical findings. The run up the stairs could have caused some injuries. There could have been previous injuries. Considering the evidence of family members to which he was referred, he said: - I think we can approach it by saying that if we explore the scenario that we have some birth related subdurals which we may have. If we say there has been rough handling which has disrupted healing mechanisms. If we then say there has been a running upstairs in context of the round, we could approach it and say, what the scans are showing re the subdural collections could potentially have arisen from that series of events. That is a legitimate angle to look at it from.

Mr Storey developed this theme with Dr Hogarth, asking him to consider the hypothesis put to Mr Jayamohan (not identical):

Pausing there, it is important to note that both the answers given by Mr Jayamohan and by Dr Hogarth to Mr Storey KC as set out at paragraphs 140 and 151 respectively, contain descriptions of the rotation of X’s head which are not contained in the evidence of the father.

Dr Hogarth agreed that it was possible that the pressure effects of cerebral collections could cause clinical symptoms but reiterated that small rebleeds are generally asymptomatic.

Dr Hogarth disagreed with the treating medics interpretation of the scans as showing evidence of an arachnoid cyst. He thought it was possible they were talking about frontal lobe talking about what we were discussing re parenchymal injuries, they called it cystic change. He added that he didn’t do that as he had been trained not to do that by fastidious trainers who didn’t like to use word cyst which means has to have cellular lining which doesn’t apply. Cyst like would be reasonable but cystic is imprecise. Nonetheless. What I can say to the court is that there is no cyst anyone has seen despite the invocation of the word. They are referring to cavities talking about and areas of frontal lobe damage which looked old to me and could extend to birth -can’t go any further than that.

Dr Hogarth carefully answered questions within the area of the expertise of interpreting the imaging and declined to be drawn into conclusions as to what happened. For example, asked by Mr Hussein whether not leaving aside the issue of chronic birth-related subdurals, there was at least one traumatic event? He said: What we can say is that we have the change between CT and MR head scan which leaves me in a position where I can’t avoid suggesting there has been effusive process in that interval between the scans. When one sees that if you reach immediately for close proximate traumatic event close to CT head scan. Of course difficulty there is scope for the court to consider both through presence of pre-existing SDH collections. I can’t really say to the court this is scenario I favour. Able to assist the court with what might fit and what might not but not going to settle on a particular scenario that stands out as being one plausible.

I found Dr Hogarth’s evidence as careful, fair and persuasive as that of Mr Jayamohan and I accept his opinion.

Professor Saggar confirmed there were no identified genetic condition found in X to explain injuries. Despite the revision in his opinion resulting from the new video evidence provided by the mother, he maintained that the intra-cranial injuries and specifically the parenchymal injuries were unlikely to have been caused by EDS3 (if indeed X had that). I have set out his other relevant evidence above.

Dr Ward confirmed her written report. She clarified X’s seizures were brief and well-managed, making seizure-induced fracture unlikely. She maintained her opinion that the bruising she had identified in her report was likely consistent with inflicted trauma. She supported timing of the acute injuries within 24 hours of hospital presentation. She accepted the accounts of father’s handling during collapse as a potential but less likely mechanism for the acute injuries. She agreed that the injuries were consistent with inflicted trauma based on constellation of findings.

Dr Brocklesby – gave evidence about X’s birth. He had already observed in his report that this procedure was, in effect, an elective caesarean as the mother’s waters had broken but she was not in active labour. Birth was a traumatic event for both mother and child, including birth by caesarean section. To the extent that it was possible to know (because most babies are not scanned after birth) birth related injuries were relatively common. He accepted that the summary of the research set out by Baker J in Re S (as he then was ) remained apt.

Birth related injury

This is a convenient point at which to consider the evidence on this possible cause of earlier intracranial injury. This is important because on X’s imaging there was old and fresh blood and if there had been birth-related subdural haemorrhages which became chronic, re-bleeds can occur spontaneously for no force or for lesser force.

The well-known research papers of Whitby, Rooks and Looney have been considered in many cases involving intracranial injuries in babies. The Looney paper supports an analysis that SDH occur in a proportion of vaginal deliveries. Rooks’ paper evidences the occurrence of SDH in both vaginal and caesarean deliveries. Statistically the incidence of SDH in spontaneous vaginal delivered babies is (at least on the basis of this research) much higher than in babies delivered via caesarean section. In Rooks, the percentage of babies which suffered SDH following spontaneous vaginal delivery was 51% (32 of 63) whereas only 18% (4 of 22) of the babies delivered by caesarean also suffered SDH. Two of the caesarean cohort of babies were delivered with instruments (1 x forceps and 1 x vacuum) and 3 of the 4 caesarean deliveries which resulted in SDH followed oxytocin-augmented labour.

Mr Momtaz KC put to each of the witnesses the summary of the key findings identified by Baker J (as he then was) in the case of re S (A Child)(Care Proceedings; Surrogacy)[2015] EWFC 99, paragraph 107. Each expert asked to consider this summary agreed this was still an accurate summary which had not been undermined by any subsequent research, and I proceed on that basis.

So, whilst the Looney and Rooks papers include theories as to the cause of birth-related SDH arising from the statistics, no firm conclusions as to the cause of these SDH have been drawn, was highlighted in that summary. So, for example, in Rooney it was postulated that that the compressive forces exerted on the fetal skull during labour may be a factor in the occurrence of these injuries, but no firm conclusion could be drawn on this topic as it would not acknowledge statistically small group of caesarean deliveries where those circumstances did not arise but where such injuries have occurred (the 2/4 for example in Rooks which were non-instrumental or 1/4 which did not follow a trial of oxytoxin-induced labour). This does mean that it is difficult to extrapolate reliable conclusions from the current research, because babies are not routinely scanned at birth.

Each of the experts questioned on this topic during the hearing was careful to acknowledge this and to acknowledge the possibility of some of the injuries occurring as part of the birth process. However, the research does support their joint opinion that whilst birth-related SDH which then became chronic was to be acknowledged as a possibility which could not could not be excluded, even if X had suffered birth-related SDH which led to chronic collections this would not explain the acute injuries, which were likely the result of trauma. On this point, the hypotheses put to Mr Jayamohan and Dr Hogarth by Mr Storey involved mechanisms which replicated a shake.

Mr Jayamohan reported that when considering all of the injuries including the bi-frontal cortical changes and effusions, attributing all of the injuries to birth-related SDH was so unlikely as to be hypothetical. Considering the age of the different SDH:- While the significant increase in the subdural collections with the imaging seen, associated with the rising fontanelle, would be in keeping with an acute effusions, there is a possibility that there was already some chronic subdural collections present when the child was imaged. Radiologically it is not possible to distinguish between them fully, although there is no supportive evidence of chronic subdural collections such as membranes. Looking at the head circumference, I note that it had gone from the 75th centile at birth up to the 91st centile by the 17th and then stayed as such. This would be in keeping with either acute and chronic or just acute.

He then stated:- if there were to be bilateral chronic subdural collections, then I consider them in conjunction with the cortical changes seen bi-frontally. A non-instrumented elective caesarean section has the lowest risk of subdural collections in an otherwise well baby with the studies of Whitby, Looney and Rooks attached. Associating this type of delivery with subdural collection that has remained and become chronic is, in my view, a possibility, albeit highly unlikely. However, if I am then considering the brain imaging findings, I think that to consider that this baby with a non-instrumented caesarean section at term developed both subdural collections that remained and become chronic, and bilateral frontal brain injury becomes so unlikely as to be hypothetical in my view. I cannot fully exclude it, but it really becomes very unlikely.

Dr Hogarth opined: The seminal papers on this topic indicate that most birth-related subdural bleeds end to resolve within one month and all at 3 months. The theoretical possibility that the bleeds persist for some unknown reason in some cases is often raised as a consideration. When subdural bleeds fail to resolve, they can re-bleed due spontaneously or from otherwise innocuous mechanisms. When this happens, the patient would not be expected to be symptomatic. Re-bleeds that occur in the context of chronic subdural haematomas are small in volume and usually come to lie in the dependent part of the collection when imaged on the CT head scan (Bradford R et al 2013 and Wright JN et al 2019). As X was only just over 1 month old at presentation, there could be some birth-related SDH contributing to the appearances; however, the change in depth of the subdural collections and the bulging fontanelle would be more in keeping with traumatic subdural effusions close to the time of presentation.

Dr Brockelsby did accept under cross examination that his proposition that the location of some of the bleeding was a contra-indicator to birth-related injury was probably not safe to rely upon but I do not accept Mr Storey’s submission that Dr Brocklesby’s evidence can be discounted because of his lack of knowledge. I find his evidence to have been fair: he conceded he should not have been so firm on the “location” point swiftly.

There is no peer-reviewed research which points to a specific cause for birth-related SDH, but these research papers do indicate that the commonest situation in which there are birth-related intracranial injuries are spontaneous vaginal deliveries with complications including instrumental deliveries with a small number of mainly instrumental caesarean deliveries. The opinions of Mr Jayamohan and Dr Hogarth as to the likely link between any birth-related SDH and X’s injuries (in particular the parenchymal injuries and encephalopathy) arises out of and is consistent with this research.

I accept Ms Brown’s submission that the cross-examination of these experts did not undermine their opinion as to the likely cause of X’s injuries. It merely expanded upon evidence already highlighted in their reports as to the possibilities which the court would need to consider when reviewing the totality of the evidence and making findings. As they were very careful not to stray into the areas reserved for the court, this involved listing the possibilities. This is nevertheless important evidence for the court to consider in the context of the wider canvas of evidence, because a possible medical cause may be found by the court to be a probably medical cause once it has reviewed all of the evidence.

The evidence of all of the experts, examining the case from different fields of expertise support an analysis that it is possible but unlikely that all of X’s intracranial injuries can be attributed to birth-related chronic SDH and rebleeds; there is no positive evidence of the existence of chronic SDH but the possibility cannot be excluded; even if she had chronic SDH, whether caused by birth related injury or postnatal trauma, this would probably not account for the increase in the depth of the SDH collections identified by Dr Hogarth on the imaging between CT and MRI and it is likely that these are acute effusions caused by trauma. The parenchymal injuries and encephalopathy are most likely attributable to a recent traumatic event, a shake and unlikely to be caused by a rebleed.

The parents

The evidence of the mother and the father is of vital importance in this case. Each has participated fully in the proceedings and demonstrated unwavering commitment to contact with X, in proceedings which have on any view continued far too long. I am confident that they love their daughter very much.

Both the mother and father have vulnerabilities arising from their mental health and their life experiences. I accept the characterisation of their relationship as co-dependent in the context of what other witnesses described as their neediness.

The father struck me as an emotional man. I have no doubt he loves his daughter very much and believe him when he described her as the love of his life. He remains, I find, strongly committed to the mother and he told me honestly that he still loves her. When he gave this answer in his oral evidence, his voice cracked with emotion.

He was prepared to acknowledge the enormous stress which had been bearing down both on him but also upon the mother after X’s birth. The process of sorting through the many hoarded belongings had been stressful and caused conflict between himself and the mother. In this and other respects his evidence was honest. He did not disagree with some of the BBs’ descriptions of his poor handling of X. He accepted that X had not been bruised on any of these occasions and that the bruising (if it was bruising) observed on her in hospital was likely caused by harder force than he used on those occasions.

He admitted that the house was in a poor state and that this had caused them stress and also that he was worried about his job and aware of possibility of being sacked as early as 11^th February and that, as he admitted to Dr Ratnam he was finding it difficult to regulate his emotions.

He accepted he had been stressed by X’s crying and agreed that when he felt overwhelmed, he should not have been looking after her.

He was also missing intimacy with the mother. He freely admitted banging his head and pulling at his hair on occasions. He felt like he had failed X. He agreed that he had been upset that the mother had not wanted his family to visit and been upset about how she spoke about them.

However, there were aspects of the father’s evidence which lacked credibility generally and in particular (but not exclusively) in relation to the period after 11^th February when he, the mother and X moved back home from the BBs which I shall deal with after setting out my impression of the other witnesses.

The motheris also vulnerable because of her mental health issues and the losses she has suffered. At the time of X’s birth, she relied on the BBs for emotional and practical support. She was under enormous stress as a result of the deterioration in the condition of the house and her seeming reluctance to take hard decisions to deal with it: whether to re-home the cats or to clear out the cluttered home.

Although the mother was able to speak about the existence of stressors upon her and the father, she did tend to minimise the impact upon her. For example, by caveating any acknowledgement of stress “at times”; “yes and no”, being” embarrassed” in the shop when they couldn’t pay for the goods rather than stressed by it. Responding to the suggestion that she felt pressurised by having to de-clutter the house for sale, she said she wouldn’t say that. She did not accept that she missed intimacy with the father and when asked about the tension between them arising out of a lack of intimacy, she responded, somewhat coldly, that he had toys he could use on himself. In none of these answers was the mother saying or denying anything of particular individual relevance to the issues in dispute but during her evidence I formed the impression that she was tending to downplay her own difficulties.

The mother was dishonest in many aspects of her evidence and my impression grew that she was motivated not to give full and frank evidence to assist the court to determine the truth in respect of X’s injuries but could be motivated to exculpate herself. She is a clever woman and she has, I find, adopted a manipulative strategy in connection with these proceedings. One example of this arises out of her allegations of domestic abuse. I will return to this later.

Other Witnesses Of Fact

The evidence of both sets of friends and family was helpful and to differing degrees each of the witnesses, when asked, demonstrated an understanding of the odd and co-dependent relationship between the mother and father. I find that they were doing their best to recollect relevant events and were doing their best to tell the truth. Perhaps unsurprisingly, the emphasis of some of their evidence was to interpret events they were describing in a way which was more sympathetic to the parent with whom they have the closest relationship. This was most clearly demonstrated by their evidence about the controlling behaviour of the other partner: the BBs’ impression was that the father was controlling of the mother. The father’s family tended to think it was the mother who controlled the father. As both parents accepted in their oral evidence, each of them demonstrated clingy and needy behaviour.

I do not find the emphasis of close family and friends surprising, given their allegiances. Nor does it invalidate the truthful observations they made about the parents’ care of X and the constellation of practical and emotional difficulties the parents were encountering. It is normal to interpret events with the benefit of hindsight in a way which fits one’s preferred narrative, particularly when there is an ongoing police investigation into potential crimes against a child.

So, for example Mrs BB was shocked to hear from the paternal grandmother during a discussion after X had been removed into care, that the father told his mother he had googled shaken baby syndrome and baby cremations. It was clear she considered this significant. The conversation she had with the paternal grandmother probably reinforced in Mrs BB’s mind that if someone had inflicted an injury upon X, the father’s odd behaviour in conducting these internet searches might be relevant.

The BBs

It was clear that the BBs have been an enormous support to the mother since the death of the maternal grandmother, with whom Mrs BB was friends. Since then Mrs BB had taken on a maternal role with the mother. She, and from time to time, other family members had rightly advised the couple to seek help to declutter and clean the property and the mother to obtain assistance in relation to her hoarding problem, it being clear to her family that the property was not fit for a baby. Their evidence was of assistance in relation not only to the pre-birth period but their observations of the parents’ care of X during the weeks the young family stayed with them. Mrs BB did not think the couple was ready to have a baby and the adult daughter of Mr BB said their parenting was “odd and lazy”. They argued with each other over who should take over

I find that the BBs were honest in their description of a couple of occasions during the period that the family lived with the BBs after X’s birth, when the father did not adequately support X’s head and also when he was winding her by slapping her back. The father did not challenge these accounts.

Mrs BB described hearing a “loud smacking sound” from one floor above where the father was with X. She was in bed drifting off to sleep and the noise woke her up. She went downstairs into the living room and saw the father attempting to wind X, “holding her facing him with his hand on her bottom and patting her back” . X was crying and the father was upset. She didn’t know if it was a normal cry or not. Ms BB said she asked the father if he was overwhelmed and upset and he said yes. She added that X had settled very quickly afterwards and that she didn’t think if it had been hurting her or that it was “a lasting hurt” because X didn’t continue to cry. She took X to the mother. Ms BB confirmed that this was the incident which had prompted her to send a message the following day to the mother on 19^th January: “Thinking that it may be wind… she shouldn’t need to be patted so hard…[the father] was patting her very hard last night which is why I went down.” She agreed with Mr Storey that the father was doing this openly and was not in any way resentful when she suggested that she took X to give her to the mother, nor had the position of X’s head worried her in any way on this occasion.

She had also seen him moving X up and down while holding her under the armpits in an attempt to wind her and had also seen the father bounce X on his knee. This had not alarmed her. He was “gentle and [the head] was supported to my knowledge so he would hold the baby under the chin on the front with his fingers underneath the armpits. She also confirmed she had said “support her head” to anyone who was holding her “to be honest”.

Mrs BB confirmed that she had seen X naked and having a bath and she had never observed any marks on X of any kind other than birthmarks.

The adult daughter of Mrs BB said she had been concerned that father wasn’t supporting X’s head properly. Other than that, she was not concerned about his handling of X. She had seen dad hitting his own head and pulling at his hair and on that occasion, she suggested that he give X to the mother, which he did. I accept the adult daughter of Mrs BB’s evidence on this issue.

The adult daughter of Mr BB had taken some photos of mother’s property which demonstrated just how unsuitable it was for a baby after X had been born. She thought the parenting of X by both parents was “odd and lazy” but confirmed she did not see either behaving in a malicious way. She accepted that in relation to the support of X’s head, the most she could say she had seen was that he had been showing off his superbaby and how strong she was, whilst not appreciating her weakness.

She also confirmed that the mother had been sufficiently upset before the move back to her property to self-harm. She thought the mother was worried about moving away from the support her family had been able to provide while the family were residing at her parents’.

Mr BB had seen the father holding X and not supporting her head properly on one occasion. The head was not lolling backwards as she was able to support her head but it had worried him anyway because he knew the head needed support.

On another occasion he had witnessed the father being “heavy handed with X as he described in his police statement. Asked about this by Mr Hussein he said he had seen father “hit X on the back and then it got progressively harder” as he was trying to wind her.

Each of the BBs confirmed that there were no occasions when they had concerns about how X was handled by her mother.

Nor did they have concerns about X and her health. She appeared to be a “normal contented baby.” None who were asked had observed any markings or bruising on X. None had heard X cry in an unusual way or in a way which led them to suspect she had sustained serious injuries. Mr BB described X crying “a bit more” in the last couple of days before her return home with the parents but attributed this to the fact that the parents had changed X’s formula and she had an upset tummy.

Mrs BB thought the father was a bit controlling of the mother because he tended to be around on “girls’ nights”. Her daughters agreed with this. The father explained this as either passing on messages from the mother who did not want to go or being in the house and watching football when they arrived. I accept his evidence on this topic.

The paternal family

I heard evidence from three members of the paternal family. The paternal grandmother, the paternal grandfather and a paternal aunt.

The paternal grandmother was a witness who gave forthright honest evidence about her son’s difficulties and the strained relationship between him and her husband. She acknowledged her husband’s drinking problem and the impact it had upon his behaviour. It had been like a “tinderbox” when the father moved home in 2024 after splitting with the mother and there was a furious row once the paternal grandfather found out he was still seeing the mother which resulted in the paternal grandfather asking the father to leave.

The paternal grandmother confirmed that the “twitch” live photos which had been taken at her house on 15^th were not taken because the twitch was noticed by any of the family present at the time. It was only (as the paternal aunt confirmed) after X’s injuries when looking back over the photos that the “twitch” was identified. I infer from this truthful evidence that whatever the “twitch” was it was probably a one-off or if not a one-off, not sufficiently frequent for anyone to notice it.

Generally, I found the paternal grandmother and the paternal aunt to be fair in their assessment of the parents. When asked about the observations of others of concerns about how her son winded X she, fairly, said this: red flags went up when he [the father] told me he was concerned about the way he was winding X and I remember when he was winding her, I thought he was more likely to make her sick rather than bring wind up. I can see why they were concerned about the way he winded her”. Elsewhere in her evidence, she said of the parents: “They are both pretty needy and both lazy and I don’t think they are really grown ups”. She agreed that her son was probably controlling of the mother to an extent but also said that the mother was controlling of him, checking where he was and always accompanying him whenever they visited so that it was not possible to speak to him alone. She also said “they are not grown ups or adults. They argue childishly about whose turn it is to do what. I don’t know they are just very similar personalities which doesn’t work well in a relationship”.

I find the paternal grandmother’s evidence was broadly truthful. I do not accept Mr Momtaz KC’s submission that she was trying to cover up for her son or that the paternal aunt was dishonest. He points to the father’s oral evidence in which he resiled from a statement he had made to the social worker that he thought X had been hit by the mother with a book and he thought she could have shaken her. The father said in evidence that he had been told to say this by his family. That specific allegation was not put to the paternal family members, although it was suggested to them that they had tried to get the father to say things against the mother, the implication being they were untrue and they were motivated by an agenda was to focus attention on the mother as a likely perpetrator.

This could provide an explanation for some of the inconsistencies in the father’s evidence connected to the mother’s care of X but that was not my impression of the evidence. To the extent that the paternal family were worried about the relationship, which they (and the BBs) considered unhealthy, they were acting as any interested family member would in trying both to support and protect their brother/son. The BBs agreed the relationship was unhealthy, so there was no duplicity involved in that part of the paternal family’s discussions with father.

In addition, the father had been going to file a schedule of allegations against the mother but then declined to do so. In his third statement, he explained his decision not to do so, attributing it to his renewed relationship with the mother. It was clear his own mother was not happy about this: he described her telling him that he ‘may as well go crawling back to her" [the mother]. Later in the statement he said: At the time, I was put under pressure by my family to make these comments about the mother. I was spending more and more time with my family and they were pointing things out to me. I believe that they influenced my views at the time about our relationship. That is not to say that anything in that statement was untrue, as it was true, but I believe I was put under pressure to prepare something.

To the extent that the father distanced himself from some of these things in his oral evidence, blaming his family, he has been inconsistent in the evidence he has given about the mother’s conduct but his explanation was not that the things he had previously said were untrue.

There was some questioning of the paternal grandmother about the time the parents stayed with her after their arrest. The BBs had visited and they had discussed X’s situation. She agreed that she had volunteered to the BBs what the father had told her about his internet searches. She was asked what she knew and thought about X’s injuries was made known to her, and she said she thought this sounded like shaken baby syndrome. Had she been attempting to cover up for her son and implicate the mother, she is hardly likely to have shared this information with the BBs.

X had been at the paternal grandparents’ home on Tuesday 15^th and the paternal grandparents had seen the family on 13^th, so it was important to hear their evidence about what happened. The paternal grandmother was there throughout the visit on 15^th and the paternal aunt had arrived before the parents. The paternal grandfather came from work later. All agreed that X had been sleepy on that day. The paternal grandmother said there had been a conversation the night before the visit about whether she had a thermometer at the home, so she assumed that X was ill.

The paternal grandfather admitted his difficulties with alcohol. He presented as confident and proud of his role as patriarch. My impression of him was that he is more assertive and less inclined to be conciliatory than his wife. He had been bitterly stung by the suggestion made by his son that he might have been responsible for inflicting the injuries upon X and made the point more than once that he had never raised a hand to the father and was confounded by the allegation. No party pursues any such finding at this hearing – rightly so. However, the fact of the allegation had clearly caused a significant rupture in his already difficult relationship with his son, and he had asked him to leave the family home as a result. Despite this, he had welcomed him back into the home later. The paternal grandfather was frustrated by his son’s allegiance to the mother and indeed it was discovering that the father had recommenced his relationship with the mother which prompted him to evict the father.

I found the paternal aunt to be an intelligent and truthful witness who gave persuasive evidence. She had visited X in hospital the day after she was born but on 13^th her three children were to meet X for the first time and were very excited. The night before the father had contacted her and asked her to bring a baby thermometer and she had thought that X was ill, a view reinforced by X’s appearance on 13^th. The paternal aunt described her as pale and not as responsive. The paternal aunt impressed me as an organised and competent parent. She confirmed that the condition of the parents’ house had improved after the cleaners went in but that she would not have been happy to take a baby there. There had been a message sent to her by the father on 14^th which said that they had the worst night of their life and both had multiple mental breakdowns. She agreed they were struggling.

There was a conversation about a thermometer on 15th, and she had assumed X was ill. Mr Momtaz asked her about the live photos which she and her mother had taken. She confirmed she didn’t notice anything odd at the time and subsequently when her mother had been looking back through the photos she had noticed the “twitch” which prompted her to re-look at the photos she had taken.

The paternal aunt agreed she had spoken to her brother about abusive relationships because she was worried about his relationship with the mother, a topic she agreed she had discussed with her mother and sister. She said she explained to him what coercive relationships can look like but described treading carefully because of his vulnerability. I note this is consistent with the account given by the father in his third statement of family members pointing things out to him.

It is undisputed that whilst at the BBs, the father googled “shaken baby syndrome”. This has not emerged from the forensic examination of the parents’ devices for reasons which cannot be explained but because the father told his own mother who then told the BBs later after X had been admitted to hospital. Asked about why he made this search, the father explained that he had been getting weird looks and was worried about his winding technique. I did not find this a credible explanation, given the evidence about how he winded her which involved slapping/whacking/patting her on the back. His winding technique did not involve (at least on the evidence in this hearing) any rotational force of X’s head.

The father was asked about 11^th February, the day they returned to live in the grandmother’s home. The paternal grandparents visited, to the mother’s consternation, and left in the early evening. Later on, there was a series of messages between the father and Mrs BB . In the first message, at 20.23, he says So I took X to bed and went downstairs to get the mother’s mask and out [sic] pillows. Before I got downloaded [sic] I heard her screaming bloody murder & her breathing was really weird. I’m kinda scared, what do you think it could be? And: she did leak through a nappy (poo) but it wasn’t as bad as her screaming suggested. Mrs BB replied: Oh no idea. If in doubt take her to the [local hospital] to get her checked. The advice was repeated in a subsequent message: if you’re in doubt take her. Noah’s very poorly and was here early part of the week. Better to be safe. Could be just bellyache from the milk switch. But I’d be on the side of caution. Neither parent took X to the hospital that night to have her checked.

The father had not mentioned this concern about X that night whilst she was alone with her mother in his statement of evidence. Instead, he said: In the evening of the 11 February when we were back home, my mum, my dad and my brother all came round for dinner. None of them were left alone with X. The mother was in the room with them the whole time. My family were playing with X but there was nothing out of the ordinary or that caused me any concern. This statement was misleading. He was asked about this in his oral evidence. He agreed there had been tension between himself and the mother that evening because she had not wanted the paternal family to visit. He had cooked the meal for everyone. When asked about the message that he had heard X screaming bloody murder, his answers were not forthright, he replied that it had been such a long time since then and he did not remember it. He didn’t know whether he asked The mother what had happened. He could not remember now her “screaming bloody murder”. Whilst it is indisputably true that these events took place a long time ago now, and that could impact upon his ability to remember events, he did not have any difficulty recalling the aspects of the evening which were unconnected to his concern about X. I found this part of his evidence was unconvincing and it was my impression he was evasive.

Ms Brown KC asked the mother what happened during this evening in cross-examination, but the mother said she did not remember. She denied shaking or hurting X. In the context of the stress upon her that night, and her clear recollection of other aspects of the day, I did not find her evidence credible.

After their return home, the father (and the mother) accept that they had lied to the BBs about whether the father was at work on 12^th (he was not) and they minimised this deception in their evidence. What is clear from the evidence, is that the family was under enormous stress at this time. The house deteriorated further during this period because when Mrs BB visited on 16^th, merely 5 days later, she said she was not impressed. She said there were dirty plates in every room, nappies in sacks on the floor, washing up to be done and bags and suitcases still packed.

On 12^th February, the health visitor called by telephone to enquire about how the family was settling in. The mother told her that the first night at home had gone better than expected. She agreed under cross-examination that this was a lie but she did not know why she had lied. She also told the health visitor that the father was going back to work at the end of the week. However, at this time, it was clear to the parents that the father’s job was in jeopardy. The mother agreed they lied about this to the BBs. Whilst understandable that the parents would feel embarrassed about these things, the lies meant that the family’s main support network was unaware of the increasing stress and pressure upon the couple.

It was not only the unacceptable home conditions which were impacting upon the parents, they were also under considerable financial pressure, which was exacerbated by concerns about whether the father would retain his job. Unfortunately, after he had been signed off work for a further period by his GP, on 13^th February, he was sacked by his employer. I have little doubt this added significantly to the level of stress the parents were experiencing in the lead up to X’s hospitalisation.

In addition to these external stressors, I find the parents were struggling with the care of X. Adapting to parenting is difficult and exhausting for all new parents but these parents had little resilience which would have enabled them to withstand the pressure, particularly in the context of the other challenges they faced. The evidence of all of the witnesses supports an analysis that they were finding parenting difficult and stressful. Interrupted sleep and her crying caused them distress. The mother said that hearing X cry provoked an almost physical response in her. The mother described putting X in her moses basket and walking away to calm down when she felt stressed. Alternatively she gave X to the father, although as she accepted in her evidence, this was a cause of stress to the father because he “didn’t know how to settle her”. Sometimes he pulled at his hair but she agreed he had done this throughout their relationship.

The 14^th February was a problematic day for the parents. The father had lost his job.

In his statement dated 7^th March 2024, less than a month after X’s hospitalisation, the father described an occasion on 14^th February when the mother was holding X and she made a noise that sounded like she was in pain. He said that this upset the mother, I took X and told her that she was fine. The mother then got her phone out and started watching Tik Tok and stopped crying. I then decided to do a nappy change. While doing it, I noticed a small hole on the sticky part which I thought would be okay to ignore but the mother was adamant it needed to be thrown away so I got a bit annoyed and got another nappy. The mother didn’t like my attitude so told me to go to bed. I went to bed and tried to go to sleep but couldn’t. The mother came up maybe an hour later, by herself, looking for the baby monitor. After leaving I started messaging her to see what was wrong as she had a look like she was upset/angry at me. After messaging for 5 minutes or so, that’s when I went downstairs to see X fast asleep in the mother’s arm. We then went to bed shortly after.

When being cross-examined by Ms Brown KC about 14^th February, the mother revealed for the first time, that she thought she might have hurt X. She became flustered and went red in the witness box. She had not mentioned this in any of her written statements. She then backtracked. Both parents denied that anything significant had occurred, Ms Brown asked the mother what she had done and she said I moved her slightly and she was fine. She was asked what she did that might have made her think she was hurt and the mother answered: I am not completely sure now. In my arms and got uncomfy and sort of moved meaning she moved. She then asserted that the father was in the room at the time. As described, this vague account of X sort of moving, did not seem to represent anything concerning at all.

When the father was asked about this in his oral evidence, he said he was sitting on the sofa with X and The mother received X and then started crying. He did not recall anything happening in the transaction which hurt X and couldn’t explain why she had cried. Shortly after he took her back she was fine. When pressed by Ms Brown about the fact that his statement 7/3/24 had referred to X making a noise which sounded like she was in pain, he said that he didn’t remember and thought the mother had exaggerated her crying. His observations of the handover (from him to the mother) he did not see the mother hurt her. The father downplayed the significance of this incident, that X had cried a little and he took X back to check her over, assuring mother she was fine. In his oral evidence the picture which was conveyed was that nothing had happened and he reassured the mother. Yet his written evidence stated X made a noise that sounded like she was in pain.

The parents then agreed they argued about whether X’s nappy needed to be changed. On the mother’s account the father became angry and threw a chair, then ripping X’s nappy off roughly. This is “allegation 14” on her domestic abuse schedule. The father told the parenting assessor he was very emotional and tired and threw the nappy across the room. He went to bed and the mother took over the care of X. She went downstairs alone with X before returning upstairs to the bedroom to collect the baby monitor. He denied hurting X.

Later on that evening, the father sent a message to the mother after 2200 to say X made a cry and not sure if hurt her. [I take this to be the mother’s concern] Not that long ago you were almost in tears because she’s crying. I then take over. You stop caring because of your phone/TikTok I go to do her nappy and struggle to get off the chair almost putting my arm (that all my weight is going on to keep me from falling on her leg. You looked up then went straight back to watching your phone without a care, I then point out there’s a hole in the nappy and you then say I need a new one when I don’t think we do.

Neither parents’ evidence in relation to the events of this particular evening and their care of X was remotely convincing. The father’s own statement referenced his having heard X crying as if in pain when mother was looking after her, whereas the mother’s description of that “event” simply involved a vague account of a 5-week old child moving which would be such a common occurrence that it made no sense for her to be concerned about having hurt X. The father’s oral evidence was inconsistent with his written evidence about what happened that evening. As for the subsequent description of the father ripping X’s nappy off, the father accepted taking it off and throwing it across the room in a state of emotion but it is difficult to know what to make of the account of his struggle to get off the chair in such a way as to stop him falling on [X’s] leg. Both parents were evasive about the events of this evening.

In addition, in her written evidence on the possible mechanisms for injury, the mother set out the history she had put forward for consideration. It covered the period from birth to presentation at hospital. She mentioned an occasion in January shortly after the family had returned home from hospital. She was at the washing machine and fell backwards while holding X. She mentioned the argument about the nappy on 14^th February in which the father, as she alleges, was rough removing X’s nappy. The impression conveyed by the chronology set out in the statement, and particularly by her inclusion of the falling backwards episode, was that she was giving a comprehensive narrative of all possible occasions when X might have been injured. Yet in her statement, she made absolutely no reference to her own belief that she might have hurt X on 14/2, instead highlighting the father’s alleged rough handling of X on this occasion.

As soon as she had given her evidence that she thought she might have hurt X in answer to Ms Brown, she went red and backtracked. Her answers were evasive and lacked credibility on what had happened and why this had not been mentioned before, either to the court or to medical staff on 16^th when X was presented to hospital. In this respect her evidence was materially misleading.

On 15^th February, the parents went to visit the paternal grandparents so that X’s cousins could meet her. The mother was unhappy about this visit.

The paternal grandmother said X seemed different from earlier in the week when she had visited the home on 11^th Then she had been engaged, was awake and making eye contact. On Thursday when she wasn’t sleeping, she wasn’t active and engaging she just had her eyes open. Mr Momtaz challenged her about this, but she maintained that X was very different on 13^th. The father agreed she was sleepy on this day.

When describing the events which led to X’s hospitalisation overnight on 15/16^th February, the father’s first statement concedes that throughout the whole duration of their visit to his parents on 15^th, X did seem a lot sleepier than usual. He attributed this to the fact she had a 10 oz feed.

Asked about X’s feeding on that day, the paternal grandmother confirmed she had more than one bottle but her milk was taken over a long period of time. She didn’t have two bottles in an hour. She “had a little then fell asleep and then woke crying to be fed. So, she was not getting a full feed. When she did finish, she was hungry and putting her fist in her mouth. We said – paternal aunt and I – that she was hungry “. It is clear from the messages between the parents that the mother felt undermined, judged and cross about the advice given to her by members of the father’s family. She told the father she wanted to go home. The fact the parents had spent time at the paternal grandparents did, I find, contribute significantly to her stress that evening. The father said they left at about 8pm, during which time X was asleep.

That evening, the parents say that the father looked after X and the mother went to bed. At about 22.44 he googled “baby cries” and “baby cry”.

By 11pm she was “fussy” so he tried to feed her but she kept falling asleep on him. He took her to her cot and laid down in bed but she woke up again crying so he took her downstairs again. He carried on trying to feed her until about 1am and she finished her bottle and went to sleep on his chest. He said: I started to fall asleep on the couch with her on me. I then decided that I needed to put her in her moses basket that was in the living room but as I lifted her up she then projectile vomited over me. I then heard her started [sic] to struggle breathing. It sounded like she was choking on something blocking her airway. I then put my finger in her mouth to make sure she wasn’t swallowing her tongue or anything was blocking her airway, but it seemed fine. She then stopped breathing completely and went limp in my arms in that position. I then picked her up and run upstairs shouting for the mother. I then passed X over the [sic] mother explaining to her that she projectile vomited over me and had stopped breathing. The moment I passed her over to the mother and instantly called 999. From the moment she stopped breathing downstairs to the phone call it was less a minute that I called 999. While I was on the phone with the paramedics X started to breathe, but it was very shallow.

In his oral evidence he said: “So I had taken X down to do a feed. Not fed for about 4/5 hours so thinking around time for feeding. Made a bottle about 4oz but recently moved to 5 intake thought drop to 4. Drinking about an once and trying to wind her she was falling asleep. Did a few times. Got her to finish bottle before gave up, falling asleep when winding, put on baby music fell asleep on my chest on sofa. In a weird point of sleep, snoring but aware was snoring so semi-awake bodywise asleep. Then realised couldn’t have her sleep on me. so got her from my chest, positioned myself up and gone to raise her to get up and she projectile vomited over my head.

He said in oral evidence that X seemed fine and he wiped his face and then her breathing “got a bit weird”. It sounded like she was choking so father described: “placing her on my knee and patting her on the back. Started to sound different then placed my finger in her mouth and stopped patting her on the back. Her tongue was in a natural position. Then patted her on the back and she went limp, and it felt like she wasn’t breathing”.

Ms Brown submits that when asked about why there was no record of his having vomit on his clothes when the paramedics arrived, his answer that he only had boxer shorts on, was a lie given to explain a potential discrepancy. However, I am unclear this is a genuine discrepancy in accounts as the ambulance records do suggest that the parents were asked to get dressed.

I note that the father provides quite a detailed account of what occurred just before, during and after X’s collapse and was also able to do so in his oral evidence. He described the sequence of events, demonstrating on a doll in the witness box. He stated he was panicked “from moment started breathing weirdly. So sitting on lap and doing that to her. [ demonstrating the pat/ slap on her back]. In a panic – a lot harder than I have shown – Head supported, so supported by my hand on the front. So gone from that position I believe then tried to support her. Don’t recall exactly tried to put in her mouth to check tongue. Then folded in on herself.” At the hospital, the father told staff that he sat her on his knee 'with hands supporting her jaw' and patted her on the back. During his oral evidence he described X’s collapse as her falling in on herself from this position.

At this point in his oral evidence, the father pushed the doll’s top half forwards to show how X had collapsed. He said: “when breathing got shallower and then moved her up and pulled her up onto my chest and ran shouted for the mother before I left living room and second time when running upstairs”. He was asked if he remembered how he had supported X’s head while going upstairs and he said: No, I don’t. Went tunnel vision – so all I could really see was what I was focused on. Everything blurred out. So do not recall anything from me running upstairs. I got to bedroom protected Xs head and chest and barged into door but don’t remember travel upstairs”.

He said he gave X to the mother who told him to call an ambulance. At 2.05am an emergency call was made by the father. Paramedics arrived about ten minutes later. By this time X was conscious and breathing. The father told them that she had stopped breathing for about 30 seconds and that he took her upstairs to the mother who patted her on the back about ten times and then she started breathing again.

The paramedics examined X and found X prone on her mother’s lap: patient being held over mums lap prone, receiving pats on the back. Patient alert, crying. Dad on scene. Patient maintaining reasonable tone, crying, inconsistently consolable. Appears pale, mum agrees not usual colour. CRT peripheral and central approx 3 seconds. Short sharp breaths between crying, no central cyanosis, wet mucous membranes.She was not floppy, had no neck stiffness, abnormal gaze, no high-pitched cry although the parents noted that this isn’t a normal cry. The paramedics noted the strong smell of cat urine on X’s chair.

The father has also said that he was worried he might have hurt her on his run upstairs and he told the social worker this. He was asked about this when he gave oral evidence. He described not remembering much about the run. Yet he had been able to provide considerable detail about what happened not only before but after the run upstairs, His oral evidence introduced a new description of the mother rough handling X when he handed her over to her mother in the bedroom. He said after I ran up the stairs gave X to the mother and the mother started whacking her on the back.

I accept Ms Brown’s submission that the detailed description given to the experts by Mr Storey KC as a potential mechanism for the intracranial injuries was in certain material respects speculative. The father said nothing which suggested that X had been “flipped” at any point, nor that any movement of X involved changes of direction or was undertaken violently or in a way which might involve an acceleration-deceleration rotational movement. Nor was there any description of the father’s using excessive force. The father agreed under cross-examination by Ms Brown that he had never said that he threw X up onto your [his] shoulders and he agreed with her that he did not believe he did [move X around violently). He confirmed that on his run upstairs, he had not wanted to take his hands off X but that left hand was on [her] bottom and don’t recall where and other hand - definitely on her and more likely than not right hand was – don’t dispute – always said I would have had right had on her but don’t recall where and whether I was protecting her head.

To conclude, although the father had worried about hurting X on the way upstairs, nowhere does he provide a description which could provide a solid evidential basis for a finding that her journey upstairs involved her head accelerating/decelerating in rotational movement which would likely cause an intracranial injury including parenchymal injuries and encephalopathy. Having said that, he had been observed to be rough in his handling of X and to fail to support her head on occasions.

The other aspect of father’s accounts which is inconsistent with the evidence, is that X’s collapse, the loss of consciousness and her breathing ceasing, clear signs of encephalopathy, preceded the run upstairs.

In hospital, X was examined but the notes are ambiguous as to whether or not she was examined fully naked. No body map was drawn and there is no reference in the notes to any bruising being identified on X. I proceed, therefore on the basis that there were no noticeable markings on her at that time although I bear in mind Dr Ward’s evidence that if can take hours, even 24 hours, for bruising to appear.

Having been kept in for a few hours observation, X was discharged in the morning after which the parents decided to go to a Toby Carvery for breakfast. There the mother took X to the lavatory and took a video of herself holding X, facing towards her in a baby sling. Her right leg was jerking. All those who had watched the video, including Dr Ward and Mr Jayamohan had assumed that it was the left leg but the effect of the mirror was demonstrated in a new video adduced by the mother in which she held a teddy bear in the same position with different coloured hairbands on each leg, clearly demonstrated that the leg which jerked was the right leg.

The parents took her to the local urgent care centre which then referred her on to the PRUH (hospital) where she was observed to have intermittent seizures and was subsequently diagnosed with intracranial injuries, was intubated and transferred to Kings College PICU.

The medical notes suggest that the mother’s behaviour was a little odd. F was keen to speak to me but M shut her eyes and tried to sleep and did not join the conversation (Bogdana Zoica). The history was taken from F who was keen to speak. In her oral evidence, the mother was asked about this and explained she suffers from sleep apnoea and sleeps at random times. She claimed not to have overheard the conversation. The medical notes do indicate that the father provided the history but they also suggest that the mother was present for at least one of two conversations about this.

I do not find the mother’s explanation of suffering from sleep apnoea credible. Whilst I accept she might well have felt tired, it is very peculiar that a mother whose child is being admitted to hospital and who was clearly very unwell at this point, having suffered a lapse of consciousness, could not summon the energy or the motivation to stay awake to speak to the medical treating team, even if only to assist them by answering their questions.

Marks on X which were considered to represented potential bruising were identified and photos were ordered which were taken later at about 1.50pm. The father said thatthey were not aware of them. The only thing he could thinkof was that they patted her on her bottom when she wasupset. I note he did not volunteer to anyone that the mother had been “whacking” X after her collapse. He stated that he was not aware and could notthink of a reason for a mark on her right lower leg. In the mother’s first statement she records that after X’s transfer to Kings College Hospital, a nurse enquired about bruising. [She] had been falling asleep and was confused and did not understand why X should be bruised. She had not seen any bruises when carrying out nappy changes. The mother stated she did not know how X came to be injured and denied causing injury or force on her in anyway.

The mother gave puzzling evidence about this conversation. She suggested that she had not been aware the doctor described unusual purplish marks on X because she had shut her eyes but was not in a deep sleep. Challenged by Ms Brown she could not remember when she knew about them except that she knew there had been mention of the marks before the police arrived at 3.22am. She agreed that she had not asked to see the marks. She became a little tearful in her evidence. She could not give any explanation as to why she had not asked to see them and denied it was because she had inflicted them.

When the father gave evidence, he said that there had been two discussions with professionals in which the parents had been asked about purplish marks on X but that the mother had been asleep on the second occasion. He agreed that both he and the mother had spoken and discussed what could have caused the bruising as not aware of them and didn’t know how they would have been caused. He agreed that when PICU he had not asked to see the marks because it was distressing to see her looking pale with tubes her nose. The father’s explanation appears plausible.

The “confession” - Another aspect of the mother’s evidence which was very odd and called into question her credibility was her decision to go to the police to “confess” on the day after she had been arrested, explained by her as borne of desperation at the thought of X alone in hospital: - I was distraught at the thought about X being in hospital on her own without any family members. I had this idea of telling the police I was responsible because I thought if I said this X could be discharged to the care of the paternal family. I was not thinking straight. I accept that Mrs BB did not think this was a genuine confession, although she did have to talk the mother out of it. The mother’s explanation does not sit easily alongside her concerns about the paternal family, as articulated during the course of the hearing.

As her evidence progressed, I formed the impression that the mother, who is an intelligent woman, was dishonest and manipulative in relation to the presentation of her case. A clear example of this is demonstrated by the approach she has taken to her relationship with the father and the allegations she has made against him,

Domestic Abuse

On paper, the mother has advanced a case that she had been upset and frightened by the father’ alleged abusive conduct. Her allegations are set out at A20 of the bundle. It is agreed that the father did not hit or threaten the mother. She has made 14 allegations which I shall now deal with.

To the extent that the father has made admissions on these allegations, I accept his evidence.

Discussion

These allegations were only raised by the mother part-way through the proceedings. She made them, as she acknowledged during cross-examination by Mr Storey, at a time when she remained in a relationship with the father.

Many of the allegations made by the mother were readily conceded by the father including that the mother was likely frightened by his behaviour on the occasions he conceded he had either self-harmed in front of her or behaved impulsively (eg breaking the computer keyboard). She did not allege any physical abuse, except on the occasion she said the father had not responded to their agreed “safe sign” to release her neck from compression during sex, an allegation I do not find established, preferring the evidence of the father, who robustly and convincingly denied this allegation.

As the President said in in H-N & Ors (Children) (Domestic Abuse: Finding of Fact Hearings [2021] EWCA Civ 448 at [32]

This is just such a case. There are conceded occasions when the father behaved badly and frightened the mother. The father has also made allegations against the mother, some of which are supported by other evidence (for example that she used to call him to ask where he was). He was also, as he acknowledged in oral evidence greatly upset by the mother’s reluctance to engage with the paternal family which undermined his family relationships and upset him.

Both the BBs and the paternal family were concerned about the dynamic of the parents’ relationship, the BBs characterising the father’s conduct as controlling; the paternal family expressing similar concerns about the mother’s behaviour towards the father. What these family members and friends appeared to agree on was that the relationship was not good for the couple and they were both at fault in various respects.

I find that the mother was not/is not fearful of the father – at least no more than fleetingly on the isolated occasions conceded by him and certainly not to the extent she sought to convey. Nor do I find that she genuinely considers him to have behaved towards her in an abusive way. I find that the mother thought the father’s conduct was driven primarily by his mental health difficulties, as I find it was. She understood that very well because she was coping with her own mental health difficulties and had self-harmed herself. She was well aware, I find, that on these occasions, he did not intend to be abusive towards her.

The mother made these allegations, I find, to convey the impression that she had separated from the father when in fact they were still together. To the extent that she sought to maintain this impression, she continued to be deceitful. In her statement of 12^th March 2005 she states that the father does not know her new address and she did not intend to tell him after her move which was five days later. Her deceit on this topic continued into the witness box. At the commencement of her oral evidence, she said she wished to keep her new address confidential, the clear implication being that the father was still unaware of where she lived and she did not want him to find out her address. Yet it became clear both from her subsequent evidence and his, that the father had accompanied her to view the property before she moved into it and he had visited her there and even slept there. When asked why she had sought to keep her address confidential if the father knew it, she said it was because although he had been there, she replied that she was unsure whether he knew the precise address. This was not credible, and she had not explained any of this when she asked to keep the address confidential.

Another example of her attempt to convey the impression they had separated was her evidence she left from the back of the contact centre after contact with X with staff assistance, so that she would not meet the father. In fact, they have continued to have regular contact in all forms.

A further example lay in her admission that she had welcomed the father accompanying her to Bluewater part-way through this hearing. He could not go because he had arranged to meet his brother.

Viewed in the wider context of the allegations she made of domestic abuse, it was clear, and I find, that her intention was to create the impression that she had been and remained fearful of the father and needed to withhold her address from him.

Mr Momtaz KC submits that I should be careful not to place too much weight on mother’s dishonesty on this topic (if I find her to have been dishonest). He reminds me of the need for caution as to its potential relevance to the issues to be determined in relation to X’s injuries. He submits that the mother might be motivated by other factors which do not bear on her “guilt”. The difficulty I have with that submission is that, standing back from the chronology and considering the context in which the allegations were made, I am confident that the reason the mother made these allegations was to convey the clear impression to the court that the father was impulsive and quick to anger, precisely because she wanted to convey the impression that his “abusive” conduct was relevant to the issues to be determined and that it was, therefore, the father (rather than her) who was more likely to have inflicted any injury upon X. Apart from those allegations which were conceded by the father in respect of his handling of X, most of these allegations where innocuous when placed in their appropriate context by the father. In this she was both manipulative and deceitful.

So, whilst I find the allegations conceded by the father represent events which occurred, the significance of such findings is:-

Both the mother and father are intelligent individuals, but each has problems and vulnerabilities. My impression of the father is that he is an emotional man who remains highly committed to the mother. My impression is that the father could be motivated to lie to protect the mother. However, the impression I formed from the mother’s evidence is that she is far less invested in the relationship than the father. The omissions in her written evidence, both in relation to 11/2 and 14/2 when she thought she had hurt X, and her deceitful pretence at a much longer separation from the father that there has ever been, were motivated by a desire to exculpate herself. She has demonstrated a preparedness to be dishonest in her manipulation of the evidence to achieve this end.

For all of the reasons rehearsed in the judgment, I have come to the clear conclusion that neither parent has given a full and truthful account of the care X received.

The expert evidence supports the following analysis:-

Key points emerging from the factual evidence

Neither parent demonstrated sufficient maturity or resilience to cope well with the demands of a newborn baby in the context of the stressors identified above. They bickered about her care.

Each parent has been observed to interact with X very well during contacts which have taken place,

Each parent has demonstrated unimpeachable commitment to contact with X throughout these proceedings.

Whilst it is inherently improbable that a parent will act with excessive force in handling their baby, the stressors which were operating on the parents at the time of X’s birth and throughout the weeks after her birth until her hospitalisation, in the context of their mental health difficulties could well have resulted in momentary lapses in control.

The father was observed to fail to support X’s head on a few occasions, although none of the witnesses who observed this expressed any concern about the actual impact of these lapses on X. The evidence was expressed as indicating a risk something might happen.

There is no account in evidence provided by either of X’s carers of an accidental mechanism/s which would likely account for the constellation of her injuries as identified on 17^th February 2024.

There is no account in evidence provided by either of X’s carers of an incident which likely precipitated X’s collapse following the parents’ return home and up to the point X went limp.

The parents have been dishonest about aspects of X’s care and have not given a full and truthful account of what happened to X in the relevant period.

The evidence indicates there were occasions between their departure from the BBs and X’s admission to hospital on which X could have suffered injury.

The slight twitch observed on X’s leg on 15^th was not a symptom which anyone noticed until X had been hospitalised. It could have been an early sign of seizure activity but it is unclear from the clip which lasts less than a second.

By the morning of 16^th, X was having focal seizures as the clip from the Toby Carvery illustrates.

It is possible but unlikely that X suffered birth related SDH which developed into chronic collections. The mature parenchymal injury and the old blood is more likely explained by previous postnatal trauma, likely a shaking injury which occurred before the event which caused X’s collapse on 15/16^th. The father’s internet search for “shaken baby syndrome” at the BBs could support an analysis such an event occurred, as could the evidence of her altered state on 11^th and the mother’s concerns about whether she had hurt her on 14^th. I am not satisfied on the evidence I have heard that any of the previous episodes of heavy-handed care by father are linked to any of X’s injuries, although I accept they demonstrate inappropriate handling. This injury has not been explained. Even though the BBs did not witness an event other than the occasions or rough handling, if a traumatic event had occurred at their property, they would not necessarily have known. X did cry frequently - as all babies do. A fracture can be inflicted and a shake can occur within seconds. The parents were not observed every minute of the day at the BBs.

Turning to the injuries which resulted in X’s hospitalisation and considering those in the context of the totality of the evidence rather than in isolation, there is no account in evidence which explains either X’s fracture or the bruising to her body, both of which were traumatic in origin and could not have been self-inflicted, and the latter of which likely developed at some point during the 24 hours prior to its identification in hospital.

It is more likely that X’s acute injuries are explained by undisclosed traumatic event which included shaking rather than the father’s run upstairs. Whilst a hurried trip upstairs could possibly account for at least some of X’s injuries, it is unlikely. The father’s concessions in evidence that there was no violent movement or flipping of X does not support this analysis. Nor does the scenario of a run upstairs provide any plausible explanation for X’s encephalopathy and collapse prior to the run upstairs. X was shaken with excessive force on at least one occasion between 6pm on 15^th February (probably after they left the grandparents’ house) and before the early hours on 16^th February, or earlier.

For all of the reasons set out in this judgment, I have found (see 287-289) that the parents have not told the truth about what happened on the night of 15^th/16^th February. For the avoidance of doubt, I consider that I cannot safely rely on their evidence, uncorroborated as it is by anyone other than each other, that the mother went to bed and left X with the father until he ran upstairs to the bedroom with X, albeit their motivations to lie may be different.

I consider it to be unlikely that the injuries would have occurred in an undisclosed accident. Had there been such an accident, it is unlikely that the parents would have continued to lie about it during protracted proceedings in which they faced a far more serious allegation that injury had been inflicted.

Whether it was the mother or the father who inflicted X’s is not possible to discern, neither of them having been honest about the events which led to her hospitalisation.

BRUISING

X likely sustained unexplained bruising to her trunk and buttocks which was not observed in the early hours of 16^th February, either because it was not there or because she was not undressed, but was observed when she was re-admitted to hospital later on 16^th /17^th February and which persisted until 19^th February.

The bruising to X’s buttocks was likely caused by blunt force trauma. The bruising to X’s trunk was likely caused by forceful gripping, grasping or blunt force trauma. In both instances, the force used was beyond normal handling and recognisable to any independent observer as inappropriate.

It is unlikely that this bruising occurred in hospital, as a result of normal handling, as submitted by Mr Momtaz. Had this occurred, it is likely that there would be many other occasions when X had observable bruising and there were not.

The bruising was sustained in one or more incidents between 2^nd and 16^th February and more likely in the 24 hours before the identification of the bruising in the early hours of 17^th February.

FRACTURE

X likely sustained a fractured left acromium on a date after 24^th January 2024.

This was likely caused by direct impact to her shoulder, by twisting or by pulling her limb or as part of the injuries which could be sustained in a shaking episode.

X would have been distressed and in pain following the inflicting of the fracture and the bruising which would have been obvious to the perpetrator of that injury.

INTRACRANIAL INJURIES

It is likely that X sustained intracranial injuries on 2 occasions. The acute injuries (including encephalopathy, bi-frontal parenchymal injury and effusions) likely occurred in the 24 hours preceding her CT scan and probably in between the time the parents left the grandparents’ house in the evening of 15^th and the time of her collapse on 16^th early hours.

It is unlikely that X suffered chronic subdural bleeding, whether birth related or linked to other postnatal trauma, but even if she did, that would not account for the acute intracranial injuries from which she suffered in the 24 hours before the scans were undertaken in the early hours of 16^th February.

There is no plausible evidence advanced by either parent which would account for X’s sudden collapse and loss of consciousness on 15/16 February, clear signs of encephalopathy.

It is likely that X was shaken with excessive force on one or more occasion. The impact on X would have been obvious to her carer or a witness and could include screaming, irritability, apnoea, altered consciousness. After this X could have shown other signs of injury ranging from difficulties feeding, vomiting, irritability, lack of responsiveness, seizures or increased tone.

Having considered the totality of the evidence, I find that the head injuries, bruising and fracture were likely inflicted injuries.

The parents have not given honest and reliable accounts of the care provided to X during the period in which she was likely injured.

Each of them had the opportunity to inflict X’s injuries.

There is evidence which, at least collectively if not individually, could support a finding that the perpetrator of X’s injuries was her father:-

However, there is also evidence which points away from the father as a likely perpetrator:-

There is evidence which, again collectively, could suggest that the mother is a perpetrator of injuries:

Again, there is evidence which points away from the mother as the likely perpetrator: the father was, they both say, caring for X just before her collapse and the father had been observed to be heavy-handed in his care of X.

For all of the reasons set out earlier in this judgment, I have decided I cannot rely on the accounts of either of the parents. Considering the totality of the evidence, I have concluded that this is a case where it is not possible to identify a perpetrator of X’s injuries. There is a real possibility that either of them could have inflicted X’s injuries.

Each of the parents did, in the context of their knowledge of the problems and difficulties experienced by their co-parent, arising from the multiple stressors upon them and their own individual vulnerabilities, fail to protect X from harm as set out in paragraphs 36 and 37 of Ms Brown KC’s amended threshold.

It follows that I find that the threshold criteria in s31 (2) Children Act 1989 established on the basis of the findings herein.

There will need to be a risk assessment in this case after the parents have had an opportunity to reflect on the judgment.