London Borough of Haringey v A & Ors

This is the judgment following the hearing of a fact-finding determination within proceedings brought by the London Borough of Haringey for care orders in respect of two children, C , born in 2021, and D, born in Autumn 2022. The children's mother, A, is the first respondent, the children's father, B, the second respondent, and the children are the third and fourth respondents through their Guardian, Keisha Brome. All parties have been represented by counsel – the local authority by Ms Munro, the mother by Ms Wilson, the father by Ms Hurworth, and the children by Dr Jackson.

I have considered the voluminous documentation contained within the six volumes of the trial bundle. In addition, I have heard oral evidence over three days from Dr Johnson, consultant paediatric radiologist; Dr Rahman, consultant paediatrician; the mother; the father; and the parents' friends, E and F. I have considered the helpful oral submissions of counsel.

The findings sought by the local authority in their schedule dated 30 November 2023 are:

The parents accept the injuries as described but have remained consistent in denying that either of them intentionally caused harm to D at any time. The parents consider it likely that the father caused the bruising to D accidentally when asked to hold him firmly during the pre-operative procedure to repair his cleft lip and palate on 24 February 2023 when D was hungry, distressed and wriggling. The parents both say that the anaesthetist asked him on two or three occasions to hold D more firmly.

The parents were unaware of the rib fracture until told by the hospital on their account. The only incident the parents can think of which might have caused the rib fracture was on 11 February 2023 when they left the children for a few hours with their friends, F and E, who were staying with them over the weekend. The friends reported that C had climbed onto the bed and was found by F in the beside-me cot, on top of D.

The parents met in 2017. They have been in a relationship since September 2019, lived together since November 2019. They were married in 2021.

Both of the parents agreed that the father was very hands-on in sharing all aspects of care with the mother. At the twenty-week scan in June 2022, they were told that the baby had a cleft lip and palate. They both agreed that a termination was not an option for them. D was born by caesarean section at the North Middlesex Hospital at thirty-six weeks gestation. He remained in the neonatal intensive care unit for 9 days to stabilise and enable his feeding routine to be established. He required a special adapted squeezy bottle to be fed with a specialised teat, as well as the careful syringing of his palate after each feed to prevent infection. The parents spent most of the time in hospital with him whilst C stayed with her maternal grandparents nearby.

I am grateful to Ms Wilson for preparing a detailed chronology. On 17 October D was seen by the health visitor. On 20 October D was seen by his GP for reflux. On 26 October D was taken to the A&E department at North Middlesex Hospital, reported to be unwell and diagnosed as a brief resolved unexplained event in an infant. On 10 November D was again taken to the Accident and Emergency at the North Middlesex Hospital and noted to have “blisters roof of mouth, dehydrated, possible blister in mouth from rubbing of bottle, not clinically dehydrated, safe to go home.”

On 18 November D was again seen in the paediatric clinic and, on the same day, was reviewed by the GOSH multidisciplinary review team. On 21 November D had his six-week examination by telephone. On 28 November he was seen by the health visitor. On 30 November he was seen by a practice nurse at the GP surgery, to have his vaccinations. On 12 December he was seen by his GP, and noted to have a URTI, chesty cough and difficulty feeding. On 18 December he was taken to A&E at the North Middlesex Hospital with vomiting, a chesty cough and was monitored and discharged. On 19 December he was again taken to A&E with vomiting and admitted for observation and a likely viral illness.

21 December is the beginning of the date range, according to Dr Johnson, the radiologist, for the rib fracture. On 22 December D was taken to A&E at the North Middlesex Hospital, by ambulance, with gastro oesophageal reflux, noted to be monitored overnight for further episodes of vomiting and reflux, to be followed up by the GP. On 29 December he was seen at the GP surgery for vaccinations and noted that, “His mum feels his reflux is better with Omeprazole.” On 30 December he was seen by the health visitor and it was noted:

The parents were noted to be attentive to his needs for comfort and feeding in the clinic, and the mother reported that she is much better and well now and that the father was well and receiving social support from the family.

On 5 January 2023 D was seen at the GP surgery by the practice nurse, and on 11 January, the surgery texted the parents to report that D's stool sample showed that he had rotavirus. On 13 January D was seen at the GP surgery by his GP and was noted to be alert and active and smiling and the comment was, “Rotavirus, slow recovery, no dehydration.”

On 17 January the father called the GP surgery, concerned about D's ongoing green stools. The GP noted that the rotavirus infection causes the gut to remain inflamed for a while, which could explain the green poo and also him being unsettled. On 26 January D was seen by the practice nurse for vaccinations. On 31 January he had an ultrasound of his scrotum. On 1 February he was seen at the GP surgery for a cough and a blocked nose. On 8 February Dr Johnson's probable range for the rib fracture ends, although he accepts that it is possible that it occurred on 11 February.

On 11 February was the incident when C was found in D's cot with her knees on his body by their friends who were babysitting. On 16 February D was taken to Great Ormond Street Hospital. On 23 February he was admitted for surgery to his cleft lip and palate. He was discharged following the surgery on 24 February. On 27 February he was taken to A&E at North Middlesex Hospital, as the parents were concerned that he was dehydrated. The records note that he had surgery on 23 February, was discharged on 24 February, but Mum informed that the hospital should have weighed him before the operation, so they weighed him after, as the hospital were not satisfied with the number of wet nappies and they were concerned about dehydration. No bruising was noted. The baby was observed and discharged home. It was on 28 February, on the father's account, that he noticed the bruise on D's thigh. The parents were not concerned by it and assumed that it was caused by the father holding him tightly in the preoperative procedure.

On 28 February D was brought to A&E because of the parents' concerns about bleeding from his palate following surgery. A body map was then prepared to which I have referred, medical photographs taken which form part of the bundle on 1 March, and a full skeletal survey undertaken. The medical records of 1 March record the conversation with the senior paediatric registrar, who had examined D. He remembers examining the baby in a nappy on 27 February. No obvious bruising was noted by him during the examination, but he could not definitively rule out bruising on the backs of legs as he had not examined them in detail.

On 2 March there was a strategy meeting. The parents were noted to have been appropriate on all the occasions they had been seen and had responded appropriately to the baby's needs. They were upset by the process but also cooperative. All the medical professionals reported that the parents were entirely appropriate, that the child presented well and does not, on the surface, appear to be a child who is being abused.

On 3 March there was an email from consultant radiologist, “Re probable rib fracture. Likely to be at least eight weeks old. Obviously only a guide.” Completion of a skeletal survey took place on 3 March because the original film was not entirely clear. No further injuries were noted. On 8 March the consultant treating paediatrician, wrote in his report:

His parents were appropriate and cooperative throughout. At the strategy meeting on the same date, the nurse practitioner was noted to say, “It's going to be one of those really difficult ones, where the injuries are unexplained.”

After being discharged home, the parents' evidence has been consistent that they were managing well and were well supported by the maternal grandparents, although tired from the demands of two such young children, as any parent would be. Neither parent has any history of mental ill health, substance misuse, domestic abuse or involvement with police or statutory services. Over the next months D was seen on very many occasions by the professionals, as I have set out in some detail. This is not a child whose injuries were in any sense being hidden from scrutiny.

I directed a full parenting assessment which was prepared by Ms Montero and dated 18 July 2023. She notes:

She recommended a psychological assessment of the father. I have considered the psychological assessment of Dr Desai dated 2 August 2023. She concludes:

Dr Johnson, paediatric radiologist, reported to the court on 15 August 2023:

In his oral evidence Dr Johnson confirmed his written views. He explained that the force required to cause the fracture was unknown, but significant pressure, and that somebody observing it would realise that a child had suffered harm. I considered the report of Dr Keenan, a consultant paediatric haematologist. In a comprehensive report dated 16 November, he confirmed that the blood clotting investigations to date had not identified an underlying blood clotting disorder, and he recommended further testing. Those additional tests were carried out, and he concludes that, “The testing of blood clotting is now complete. No blood clotting disorder has been identified.”

Dr Rahman, consultant paediatrician, prepared a comprehensive paediatric overview and opinion in his report dated 23 June 2023. His opinion was:

As far as the rib fracture was concerned, he was awaiting the radiological report. In his addendum dated 20 November, he specifically comments on the rib fracture. The father has stated the following in his statement:

Two mechanisms have been proposed: C kneeling on D's chest appears to be a possible explanation, given her weight, however, the way the incident has been reported makes it unlikely that D suffered the rib fracture at that time. As no mention about the child's distress has been made at this stage, it is unlikely that this incident led to the rib fracture. C falling headlong is unlikely to cause a single rib fracture, as the force is unlikely to be concentrated on just a small area. D would have been in severe pain, taking a lot of consoling to stop him from crying when he sustained the rib fracture. No external signs are usually visible. A carer who was present when the incident happened is very likely to have been alerted by his cry of distress, however, they may not have realised that the child had sustained fractures. As no external signs will be seen on his body to alert a carer if they were not present at the time of the incident, they may have dismissed his discomfort on handling due to non-specific reasons.

In his oral evidence Dr Rahman accepted that there was a small possibility that a two-year-old child kneeling on a baby could cause the rib fractures. In response to cross-examination from the parents, he accepted babies’ pain responses were variable, but said, “I cannot accept that even a sleeping child would not be affected by a rib fracture.” He described it as very unlikely. His view was that the variation in pain responses was in how long and how loud babies cry for, not whether they cried at all. On the bruises he maintained his position that dating bruises is difficult and caution is required. He would expect bruising to appear in a matter of hours, due to blood leaking out of the damaged blood vessels. It was his view that a bruise occurring on 23 February must show up before 28 February and that you would have been able to see it on 24, 25, 26 and 27 February.

I considered the written statements of the parents. They are detailed and largely consistent with the accounts that they have given to all professionals in the time that the bruising was discovered. In their oral evidence I found them to be plausible, open and honest. They clearly love each other and both of their children, and they have a close and loving relationship with the maternal grandparents. Both parents were clear in their evidence that they had not noticed any bruising on D until 28 February. The father saw it first and showed it to the mother. Neither was particularly concerned and assumed that it was due to the father holding the baby tightly in the preoperative procedures, or from the surgery itself. Both parents confirmed that they were worried about his mouth, the stitches and the bleeding, and whether he had become dehydrated. They did not bathe him between 23 and 28 February. Their bedroom had the curtains closed and fairly dim lighting.

On the description of what they were told by their friends E and F, the babysitters on 11 February, there are some discrepancies between the father's written account and the later account given by F and E, but I do not find these discrepancies are significant and find that they may be accounted for by the fallibility of memory and the events having been talked about by the parents since then. The father was clear that C had climbed onto an upturned curry pot to get onto their bed. F did not remember that.

I found both parents to be sensitive, impressive witnesses, who did not seek to evade or exaggerate. I particularly noted the distress of the father when talking about how he must have unintentionally caused pain and bruising while holding D tightly for the pre-anaesthetic procedure. It was only during the trial itself that the mother said that she had WhatsApp messages from 11 February whilst the parents were out. A message timed at 22.34 asks, “How is D doing?” from her friend E. She replies saying, “Absolutely fine. He's been knock out asleep, apart from when C tried to climb in the cot with him.”

At a very late stage, at short notice and some ten months after the event, F gave two brief statements and oral evidence by video link to the court. He wrote in his statement:

In his oral evidence he confirmed that he had not seen C climb into the cot, so did not know how she got there. When he saw her, she was kneeling on D's stomach and lower legs. He described D after he scooped C off him as “grumpy a bit”, “semi-confused”. He said that there was “no wail, and he went back to sleep.”

After I had heard all the evidence and submissions, I was asked to admit into evidence the WhatsApp messages between the mother and her friend, E. She also attended a Teams hearing and gave oral evidence to me. In a WhatsApp message dated 18 July 2023, she wrote, “I said, as you'll likely be aware, there was a time when I looked after them and C went to hug him and accidentally knelt on him, leant on him and he yelled a bit, but he was fine.” In her written statement and oral evidence, she clarified that it was her partner, F, who had seen this first.

In her oral evidence, she confirmed that D yelled a bit. She heard it directly from the kitchen and through the baby monitor at the same time. It only lasted two to three seconds, and he managed to settle himself back to sleep.

The standard of proof is the balance of probabilities, as set out in Re B (Care Proceedings: Standard of proof) [2008] 2 FLR 141:

The burden of proof lies with the local authority. The binary system which operates in the Family Court is made plain by Lord Hoffmann in [2] of Re B above:

If the local authority establishes on the balance of probabilities a fact has been proved, the court will treat that fact as established, and all future decisions will be based on that finding. If the court is to determine issues of fact, its finding of fact must be based on evidence. Evidence may include inferences properly drawn, but not suspicion or speculation – Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12, Munby LJ. Whether a fact has been proved to a requisite standard of proof must be based on all of the available evidence, and in the context of the wider emotional and moral factors – A County Council v A Mother, A Father and X, Y and Z (by their Guardian [2005] EWHC 31 (Fam). The Court must not reverse the burden of proof – Re M (Fact-finding hearing: Burden of proof) [2012] EWCA Civ 1580, where the Court of Appeal allowed an appeal against a finding of non-accidental injury, which appeared to be based primarily on the absence of a satisfactorily parental explanation for the child's injuries.

If an explanation or hypothesis is put forward by or on behalf of the parent which is not accepted by the court, a failure to do so does not establish the local authority's case. The court is entitled to survey a wide canvas of evidence, as well as the expert medical and scientific evidence and when assessing each part of the evidence and the credibility of each of those giving evidence when coming to a conclusion. Re U (Serious Injuries: Standard of proof) [2005] Fam 134. This has been repeated and confirmed by the court on many subsequent occasions, and it is essential that the judge forms a clear assessment of the parents' credibility, responsibility and reliability. The parents must have the fullest opportunity to take part in the fact-finding part of the proceedings, and the judge will rest considerable weight on their evidence and the impression formed of them – Re W & Another (A Child) (Non-accidental injury) [2003] 2 FCR 346.

I have considered the evidence and the oral submissions in the light of the legal framework in this puzzling case. There are concerning injuries in a non-mobile child. The combination of bruising and rib fractures are timed by the experts as occurring on at least two separate occasions. As far as the rib fracture is concerned, Dr Johnson and Dr Rahman accept that it is possible for it to have been caused by the C incident, but Dr Rahman's view is that it would have caused significant pain for a short period of time, which does not fully accord with the babysitters’ or parents’ evidence.

Of the ten bruises, Dr Rahman accepts that nine out of ten of the bruises could have been caused by the father gripping a wriggling, distressed baby to enable him to be anaesthetised. He did not accept that the larger bruise would have been caused that way. Furthermore, the hospital entry for 23 February says, “No bruising noted”. The parents changed the baby's nappy, washed him, stripped him down to his nappy several times a day between 23 and 28 February, albeit in a darkened room. If the bruising was there, surely they would have seen it. The hospital again did not note any bruising on the admission on 27 February at 4.00 a.m. The local authority submit that there were two occasions when looking after this vulnerable, needy baby became too much for the parents and that one of them lost their self-control when sleep-deprived and injured the baby and that the other parent has colluded. They do not posit a specific mechanism for them injuring the baby, but they had care of the child; no one else did during the relevant times.

I accept that C and D are the much-loved and wanted children of both parents. There is a plethora of evidence of the closeness of the parents’ relationship with each other. There is convincing evidence from several sources of their individual, strong, attuned physical and emotional parenting abilities. The maternal grandparents have a close relationship and frequent contact with them and the children. The parents sought medical advice for D for their health concerns on very many occasions after the period when he was allegedly injured by them. There is no evidence of any attempt to conceal or hide D from professional scrutiny, quite the opposite. If even one parent had injured D and the other was not aware of it, allowing this amount of professional contact from health visitor, practice nurse, GP, specialised cleft palate nurse, and the hospital would be surprising.

Both parents have been largely consistent in their accounts, explanation and bafflement shown when the fracture was identified. They have only ever come up with one possible scenario, that C unintentionally caused it in a partially witnessed incident by an independent observer babysitter, confirmed to have happened on that day by a WhatsApp message on the night, well before any fracture was discovered. Neither parent has had any involvement with police, social services, alcohol or drug misuse, mental health services and there is no evidence of post-natal depression in the mother.

The children have lived with the grandparents and the parents together in their home under section 20 for some ten months, without any further concerns being noted by anyone. They have cooperated fully and willingly with all the assessments and investigations. Their friends and family all report them to be calm and coping, with no evidence of any arguments or anger management issues. There have been no historic concerns over their care of either child, other than in respect of these injuries. The parenting assessment shows that the children were well cared for and well presented, that the parents have been receptive to advice, adhered to suggestions and were proactive in seeking help and scheduling appointments.

The specialist nurse for D's cleft palate and the health visitor both reported positively on the parents’ management of D's health needs, and the psychological report on the father similarly finds no concerns impacting on his ability to parent. It is within this context, when I saw the father demonstrate in the witness box how he was holding the wriggling baby and told to grip tighter on two or three occasions, I found it easy to accept that a child might have been bruised in the way D was during that episode. It would be unusual, but I do not find it impossible to believe, that the extent of the coloration of the bruising and, therefore, the appearance to the parents did not become obvious to the parents caring for the child post-serious surgery, particularly on a child with darker skin, until some five days later.

I find as a fact that C was found with her knees on baby, D, inside the beside-cot, on 11 February by F, and that he did not see how she got on top of the baby. I accept that the baby did cry out before F came into the room. E's evidence, corroborated by the late disclosed WhatsApp message, refers to that cry. The lack of a cry and distress in the baby, which gave concern to the paediatrician, is not sufficient enough for me to discount the parents' explanation for the fracture. Both experts accept the mechanism and timing are possible. I find that these explanations, incomplete as they are, are a more likely explanation than that one of these otherwise impeccable parents, with no evidence of depression, drugs, alcohol or other concerns, no evidence that they were not coping, deliberately injured their much wanted baby on two separate occasions, and that the other parent either has colluded, putting their children at risk, or was not aware of it. It just does not sit with their willingness to have D seen by so many professionals throughout the relevant period and risk being discovered.

In particular, if an assault had occurred between him being seen at the hospital on 27 February and being brought to the hospital on 28 February, it is unlikely that these intelligent parents would have brought him there voluntarily, when the bruising was obviously going to be seen and questioned. For all these reasons, on the balance of probabilities, I do not find the local authority to have proved that the parents caused the injuries. The threshold for state intervention is not met. This is a single-issue case, and the proceedings are dismissed.

The local authority and the hospital were entirely correct and thorough in their safeguarding procedures. This is a testament to the social work teams' work and to the parents that, despite the high stakes involved, they have worked so cooperatively together over so many months, and I particularly want the maternal grandparents as well to be acknowledged for the huge role they have played.