C1 and C2 (Children: Fact Finding), Re

I have made the following findings:

I have anonymised the parties and other key features to avoid identification from this published judgment. I apologise to the parties for the consequential impersonality of the judgment.

I am concerned with 2 young children, C1 and C2.

The following summary is taken from the Local Authority case summary:

The parents have been married for 10 years. Prior to these proceedings the family were not known to children’s social care or the police.

The Local Authority invite findings beyond that which is admitted by the Mother, Father and Paternal Grandmother which I will set out in detail below.

I will set out the individual responses below.

The Guardian does not advance a positive case. She says that if the fracture was caused accidentally by the Paternal Grandmother she still says threshold is crossed because the Children are at risk of harm from domestic abuse and on the basis of the Father’s admission of a failure to seek medical intervention. She says that there is a paucity of evidence of the Mother losing control and inflicting the fracture.

I have considered the trial bundle, in particular:

I heard oral evidence from Dr Oates and Dr Robinson remotely, from CB, the Paternal Grandfather, Mother, Father and Paternal Grandmother.

I must consider if the Local Authority has proved that the threshold test set out in section 31(2) Children Act 1989 is met. It provides:

I remind myself that the relevant date for the purposes of making the assessment is the date on which the Local Authority initiated the procedure (Re M (Care Order: Threshold Conditions) [1994] 2 FLR 577) but subsequent events and behaviour are capable of providing relevant evidence about the position before the relevant date (Re L (Care: Threshold Criteria) [2007] 1 FLR 2050).

In relation to threshold I refer to the summary of the principles set out by Sir James Munby (then the President of the Family Division) in Re A (a Child) [2015] EWFC 11 which was given by Aikens LJ in Re J (a Child) [2015] EWCA Civ 222:

“56.

The fundamental principles underlined by the President in Re A, which, as I say, are not new and are based on statute or the highest authority or both, can, I think, be summarised thus:

…

v)

It is for the local authority to prove that there is the necessary link between the facts upon which it relies and its case on Threshold. The local authority must demonstrate why certain facts, if proved, "justify the conclusion that the child has suffered or is at the risk of suffering significant harm" of the type asserted by the local authority." The local authority’s evidence and submissions must set out the arguments and explain explicitly why it is said that, in the particular case, the conclusion [that the child has suffered or is at the risk of suffering significant harm] indeed follows from the facts [proved]".

vi)

It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm [my emphasis]…".

vii)

When a judge considers the evidence, he must take all of it into account and consider each piece of evidence in the context of all the other evidence, and, to use a metaphor, examine the canvas overall.

The Mother relies upon Re L-W Children [2019] EWCA Civ 159 in relation to the allegation of failure to protect, reminding me of the need for a causative link between a failure to act on a relevant event or events and risk to the children.

The Guardian relies upon King LJ’s judgment in Re G-L-T (Children) [2019] EWCA Civ 717:

Counsel for the Guardian submits, accurately as I find it, it is for the Local Authority to prove that a reasonable parent would have detected the nature of risk, acted differently and more protectively and the risk was one that met the seriousness of a threshold finding.

I remind myself of the fact-finding self-directions that I must give myself adapted from the helpful summary of Munby P in Re X (Children) (No 3) [2015] EWHC 3651:

Munby P continued:

In relation to experts in Re B (Care: Expert) [1996] 1 FLR 667 at 674 Butler-Sloss LJ said:

In his President’s Memorandum on Witness Statements dated 10 November 2021 McFarlane P said:

I also direct myself to the judgment of Peter Jackson J (as he was) in Lancashire County Council v The Children [2014] EWHC 3 (Fam):

That should be borne in mind when considering perceived differences between accounts over time and generally when considering a witness’ recall.

As to propensity to cause harm to children I refer myself to Ryder J in Lancashire County Council v R [2010] 1 FLR 387:

As regards demeanour I have regard to Peter Jackson LJ in B-M (Children: Findings of Fact) [2021] EWCA Civ 1371:

In relation to electronic messages I remind myself of the observations in Stocker v Stocker [2019] UKSC 17 in which Lord Kerr cautioned against “elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (i.e. an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on”.

I remind myself of the Lucas direction from R v Lucas [1981] QB 720, elaborated on by Macur LJ in Re A [2021] EWCA Civ 451:

What I have said above in relation to memory applies to a consideration of whether a person is, in fact, lying; that is to say whether they are dishonestly not telling the truth.

Peter Jackson LJ summarised the questions to be answered in Re S (A Child: Adequacy of Reasoning) [2019] EWCA Civ 1845 at paragraph 3:

In Re BR (Proof of Facts) [2015] EWFC 41 he said the following:

The following summary of the law is taken from the Family Court Practice paragraph 2.312[20]:

The commentary in Family Court Practice continues:

The composite schedule of findings identifies the following facts are agreed:

The following findings remain in issue, I have adopted the same sub-headings as in the schedule but numbered the allegations consecutively although in my analysis I have addressed them in a different order:

I make a number of more specific observations about credibility below but note that initially, and understandably, the Mother was very upset and clearly anxious about giving oral evidence. I bear in mind in assessing her credibility that giving evidence is stressful and the circumstances of doing so could not be much more serious than about an injury to her child which she is alleged to have potentially caused. That said, she in fact settled into giving evidence, she made concessions where it seemed appropriate and stuck to her guns on other occasions. Generally, I formed a positive impression that she was doing her best to recall what happened.

Again, I will make specific observations about credibility below. Generally, I note that the Father at times struggled to answer questions with long pauses preceding some answers. I formed the impression this was at times because of the emotion of events he was being asked about but at other times it seemed he was struggling to reconcile differences between accounts he gave at different points in time.

One particular difference which may be of more general relevance was between his first and second statement. In his first he said that when he “checked” C1 when he visited his parents after a call from Paternal Grandfather to return to their home “she did not seem to be in any discomfort and I felt she was moving both her arms normally” [C43/33]. By contrast, in his third statement he said “My description of C1’s presentation from 24-27 December was not accurate. She was not fine. She was clearly favouring her left arm…” [C251/5]. His reply to a question in cross-examination on this change suggested a reluctance to be forthright. He said “I think at the time of producing that [first] statement I…didn’t understand the signs of how she was…I don’t know.” When pressed there was the following exchange in which I intervened as there was some inconsistency in answers (underlined):

Accordingly, there was an admission of deliberately not having told the truth. The following day, a continuation of the Father’s oral evidence, he appeared to initially row back from this saying this was not an example of him “saying untrue things to mislead the court” and he “wasn’t telling an untruth to mislead the court”. When he was cross-examined by counsel for the Guardian however he once more conceded he was “trying to manipulate the court into thinking [he] hadn’t been medically negligent and minimising the presentation of C1’s symptoms”.

I remind myself of the revised Lucas direction. This was a clear “deliberate untruth” and it related to a significant issue (C1’s symptoms). However, when I ask myself whether it was “told for a reason advanced by or on behalf of [Father]…which does not point to [his] guilt” I note that the untruth could have been either to exculpate himself from having caused an injury or, as he advanced, to exculpate himself from failing to take appropriate action to seek assistance or indeed both. Whichever is the case it is evidence of his lack of candour, even in his final statement and evidence in chief.

In relation to domestic abuse the Father accepted he has “minimised how I behaved to the Mother but not lied”.

The Paternal Grandmother found the process of giving evidence distressing; I formed the impression she was doing her best to recall the relevant events.

I will take these three allegations together.

The Mother, Father and Paternal Grandmother’s case is that the injury was caused by the Paternal Grandmother accidentally on 24 December 2023.

The parents accept the following messages were sent:

In her second statement the Mother explains this was his “humour” and the Children always seemed to know it was a Sunday night when the Father would need to be working on Monday.

In her second statement she explained the first of these two messages was a quote of what the Father had said “in a moment of exhaustion and upon feeling very overwhelmed. I was very cross with him for saying this about the children but it was a ‘one off comment’ and not a common thread or true reflection of how he felt about being a father.” [C245/14].

In her police interview the Mother accepted “There have been a few times when I've said to him, 'Gentle, gentle.' Where maybe he's picked one of them up a bit quickly, possibly. And I said, 'Gentle, gentle. Be a bit more gentle with them.'” [J8]. In her first witness statement she said:

When she was first spoken to by police, prior to the formal interview she is recorded to have said (and agreed in cross-examination this was accurate) that:

In cross examination it was put, in terms, that was something she felt it was important to tell the police, i.e. that it was highly relevant to the injury but she said she had been asked if she had ever seen the Father taking out his frustrations on the Children and that was the only time she could recall it so it was important to answer that question.

The Mother’s account of the evening/night of 23 December 2023 into the morning of 24 December 2023 was explored in cross-examination. She was taken to the following messages:

She was asked if the night before had been horrific, she could not remember, she was asked if she expected it to become horrific after the Father assumed care (normally around 04.00) and she said “potentially yes” but no more so than normal with young children.

Her oral evidence was that between hand-over of care to the Father and the Father leaving the house with the Children (and dog) on 24 December 2023 she did not see the Children. There is accordingly a window in which the Father could have caused injury. There was an exploration with the Mother about the Father’s behaviour in leaving the house with the Children. She said it was not uncommon on a non-working day for him to “leave the house quietly so I could catch up on sleep”; I do not consider that his actions are therefore suggestive of trying to hide an injury from the Mother.

In his witness statement the Father says:

The Paternal Grandmother’s evidence was that on taking over care on 24 December there were no concerns about C1, she was a “normal happy baby”, in the course of undressing them there was no reason not to move the Children’s limbs and there were no “squeaks, cries or grimaces” and before the incident when Paternal Grandmother thought she had injured C1 there was no point when her arm was noticed to be “floppy, different or abnormal”.

In the course of the Paternal Grandfather’s oral evidence he produced a photo with metadata indicating it was taken on 24 December at 10.53 in which C1 can be seen with her right arm up. This was a more detailed view of one of a series of photos seen in the message log at [J620]. It suggests there was no injury prior to this time.

There is a message to the Paternal Grandfather from the Father:

In her first statement the Mother says that having dropped the Children with the Paternal Grandparents she and the Father went shopping, the Paternal Grandparents phoned to say they could look after the Children for longer but needed more milk and when the Father arrived to deliver the same the Paternal Grandmother was upset and concerned she had hurt C1 [C53/7].

I now turn to consider the parties’ evidence individually:

The parents reported to the hospital on arrival that (my emphasis):

The Mother’s explanation to the police at hospital is reported as follows (my emphasis):

In her police interview she said (my emphasis):

This is a different explanation from getting stuck in the pram. When the Mother gave evidence she said that she had initially told the police “pram suit” not pram. That would be consistent with saying it was “quite thick”, it would be an unusual turn of phrase to say a pram was “quite thick”. I find on balance the police record is wrong in this respect. In coming to this conclusion I bear in mind I have heard no direct evidence from the police about how the note was taken, including whether it was contemporaneous.

However, that account is also apparently different from what she told family friends sometime later. She was taken to a statement given on 21 March 2024 [J461] in which it was reported that the Mother told them that the Paternal Grandmother “was attempting to put C1 into her pram suit” (as opposed to not remembering if the arm was being put in or taken out). I found her explanation credible: she said prior to the interview she had been in a police cell for 5 hours, the interview was at 02.00 and she “didn’t clearly remember the details that was passed along” to her, she felt it important to know the details so she later confirmed them with the Paternal Grandparents.

In her police interview the Mother said (my emphasis):

In her statement and then her oral evidence she said the first she knew about a potential problem with C1 and the visit from CB to check C1 over was in a call from the Father at 13.51. The comment to police differs (she told them she was made aware of the incident in the phone call from Paternal Grandfather) from this evidence. She said she got it wrong, she was “distressed and exhausted and muddled some of the communication on that day”. What the Mother now says is consistent with the Paternal Grandfather’s evidence and I note that on the following page of the police interview transcript she said “I don’t know if [the Father] necessarily told me there and then” and when asked “When did you become aware of it within that day” she said “Erm, mid-afternoon, maybe three o’clock-ish, very roughly, perhaps”. Again, I accept that evidence given the context of the interview (timing and trauma of arrest), the internal inconsistency in what she told the police and the consistency of her later version with evidence from the Paternal Grandfather.

The Father was cross-examined about inconsistencies in his evidence about the plan for 24 December 2023. As noted above there was a contemporaneous text message to Paternal Grandfather cancelling a bike ride but there was no reference to this to the police in interview. The Father said:

That is quite different from the account now advanced: there was a planned bike ride, the Father cancelled and went on a dog walk and dropped the Children with the Paternal Grandparents who said they would look after them whilst the parents shopped ([C42/28-29]). In oral evidence the Father said:

He seemed to be saying that having discussed it the night before with the Mother it was fortuitous that the Paternal Grandparents offered to care for the Children.

As above, on arrival at hospital it was reported the Paternal Grandmother was removing the arm when the incident occurred.

The Father is reported by JD (a family member) to have told her on 25 December 2023 that (my emphasis):

The Father’s initial account to police was (my emphasis):

In cross-examination he was asked about the reference to 20 minutes which was inconsistent with the text message timings which suggested the call from Paternal Grandfather (not Paternal Grandmother) was at 13.09 [J637] in circumstances where his evidence was that he had left the Paternal Grandparents at 10.30 to 11.00. He said the reference to 20 minutes was in fact he had been shopping for 20 minutes when the message came.

In his police interview the Father said (my emphasis):

As with the Mother this is a different explanation from getting out of a pram and indicates removing the arm from clothing. When the Father was cross-examined he said he “didn’t understand the significance [of this point] and the important part was whether it was lifting out or in to a pram suit”. That explanation is consistent with a message sent by the Father to his brother on 25 December 2023 in which he said “I think she [Paternal Grandmother] was taking her vest off” [J492]. When cross-examined on behalf of the Paternal Grandmother the Father explained that one reason why he may have misunderstood the mechanism was because the focus on 24 December 2023 was C1’s health, there was no discussion of the incident with Paternal Grandmother on 24 December 2023 and on 26 December 2023 the focus was again C1’s health and he agreed he knew Paternal Grandmother was worried about the incident (the inference being he did not want to probe further). When the Paternal Grandmother gave evidence she said the focus on 26 December 2023 was “how is it getting on…by then I’d gone in to shut down and didn’t want to talk about it as I’d get upset”. This evidence is consistent and credible.

He was also asked about the reference at hospital to “they were too warm” ([I514]); he said that was him referring to the fact they were too warm inside on arrival with him earlier in the day.

He was also asked about the inconsistency with the reference to the Paternal Grandmother calling him (in the initial account to police and in the interview) and said that was incorrect and he said his mother had called (rather than his father, which he says is the correct information) because “the topic was regards to my mum” which I understood him to mean the important piece of information in his mind was that it was his mother who had caused an injury and he was not focused on who made the phone call to him. That was corrected in his third statement ([C251/4]).

In his first statement he described checking C1 later in the day and “she did not seem to be in any discomfort” [C43/33]. In oral evidence he clarified he did not “examine” her, he held her and comforted her. In his police interview he said he “was kind of feeling around the, the arm area…just having a little, you know, a little play around with it…and she didn’t seem in pain at all” [J34f]. I set out in more detail below the evidence given to police about symptoms.

The Father exhibited a photo said to have been taken on 25 December 2023 which shows C1’s right arm being raised up without apparent discomfort [C69]. He was asked about the failure to show this photo or the video that the Paternal Grandmother had sent him on 24 December 2023 showing C1 moving her right arm without apparent discomfort (see below and [C238]). There was a suggestion that the video has been deliberately concealed by the Father. First, there was no evidence of it being found on his phone and second he told the police he may have deleted it (police interview [J38ab]). In relation to the first point counsel for the Father makes the fair point that there is no report on how the messages that have made their way into the bundle from police disclosure came to be downloaded by the police and there is at least one error apparent on the face of the that disclosure in that in the section that is supposed to be messages between the Father and the Paternal Grandfather there is in fact a message that appears to have been sent to the Paternal Grandmother’s email account via iMessage (at [J620]).

When cross-examined on behalf of the Mother it was put to him that the fact he mentioned the video when asked by the police suggested he was not trying to hide the video. I agree with that.

This concern also needs to be considered in the context of the Father being interviewed at a time when it was believed C2 had also suffered fractures in relation to which the Father offered an explanation that he might have caused the injuries to C2 by way of a rather odd burping manoeuvre.

In any event, the Father gave what I found to be a credible explanation that whilst he did not know whether he was given an opportunity to share the video and photo at hospital, “I don’t know after the diagnosis of fracture that it was needed, it was then, transpired she was not okay and had a fracture”. I can see the layperson’s logic of an understanding that a video apparently showing she was okay when in fact she appears to have suffered a fracture would not be of assistance to diagnosis. It is of course important to perpetration but that was not the focus of the treating clinicians.

The Paternal Grandmother’s initial account to police was (my emphasis):

In her police interview there was a different description (my emphasis):

She was also asked about C1’s presentation before the incident described and the Paternal Grandmother could not recollect anything unusual when she had removed C1’s suit on arrival [J35m-J35n] which she confirmed in her statement ([C221/10], [C222/12] and [C222/14]).

In her subsequent witness statement she said:

The Paternal Grandmother exhibits a video she says she took at 15.03 which shows C1 moving both her arms without apparent discomfort.

In oral evidence she said:

I later asked if what she felt (the “stick bone”) could have been the pram suit seam which she denied. She described the suit as about half an inch thick and I asked if she agreed she would have had to have been applying quite a lot of pressure to feel the bone through the skin and the padding of the pram suit. She agreed. I find this a very important piece of evidence. Her recollection of feeling the bone is the sort of memory that does not require a reconstruction of what force or movement was undertaken, it appears to be a clear, distinct recollection and it does demonstrate significant force being applied. However, when cross-examined on behalf of the Guardian she denied she was gripping the arm, she was “applying pressure with finger tips” and whilst she accepted using more force than she normally would she was not agitated or in a hurry and her demonstration of the movement in court again seemed quite benign.

When the Paternal Grandfather gave evidence he was initially quite defensive and antagonistic to the questions although I acknowledge that is consistent with anxiety about the process, fear of the possible outcome of proceedings and a natural feeling of antipathy towards the Local Authority who bring the application. During the course of his evidence that presentation diminished and to his credit as the evidence proceeded he became more reflective and thoughtful.

In his statement to the police he described C1 crying out, “a pain cry” [J35ay] and in his witness statement describes his back being turned at that point so he did not witness the cause [C214]. In his oral evidence the cry was described as one not heard from C1 before and probably not from anyone else. He said that Paternal Grandmother “told me that she was just trying to put C1’s arm into the pram suit sleeve, and it was a bit stuck so that it was difficult to get the arm into the sleeve, so she had to give it a bit of a tug” [C214/11] and “It looked as though C1’s arm had gone floppy” [C215/12].

There was a marked inconsistency in relation to the initial report of his comments to police and his evidence now (my emphasis):

In answer to Local Authority questions he said “I think the reference to pram should be reference to sleep pod” and the police had made a mistake. He observed there was a further mistake in that they referred to the outer garment as a “sleeping bag” which it was not. However, that correction came after he had read the police note and confirmed it was accurate; he then gave a different answer to the Paternal Grandmother’s questions saying the reference to “pram” should in fact have been to “pram suit” and he had earlier been “confused”. There was also the following exchange with counsel for the Guardian who referred the Paternal Grandfather to his statement at [C215/13] which records “CB asked what had happened and then placed C1 back on the snooze pod”:

That reversed the earlier evidence and potentially undermines his other evidence. I do not criticise him for this because he is attempting to recall something in forensic detail which happened many months ago, was traumatic and when experienced was not expected to form part of this investigation; it is nonetheless relevant to the view I take of his evidence more broadly.

He gave credible evidence of the Paternal Grandmother saying that she had to give the arm a “tug” after he had turned around, within 30 seconds of hearing the cry.

He was questioned about the possibility of some collusion between 24 December 2023 and his first encounter with the police later on 28 December 2023. In answer to the Local Authority’s questions he said he thought he had had no warning the police would attend that evening until they arrived. He was taken to apparent telephone communication between himself and the Father at [J637-J638] but could not remember the content of the calls, initially thinking it was about the need to care for the parents’ dog but then (when I said I had understood that having been discussed on 27 December 2023) saying he could not remember the content. It was suggested the calls must have included a discussion about the police possibly becoming involved because a subsequent text message from the Father said “Let me know if the police do come and speak” [J624]. When questioned on behalf of the Father he was asked, effectively, if the calls might have been primarily about C1’s injury and the discovery of what then were thought to be healing fractures to C2 and their possible cause and he tended to agree. It is really quite impossible for me to be satisfied on the balance of probabilities that the calls were about possible police involvement let alone some plan to mislead the police in answer to any questions they may later ask.

CB’s evidence is that on 24 December 2023 she examined C1 at the Paternal Grandparents’ request. She says she used to be a trained nurse, C1 was initially crying but settled and did not appear to be in any discomfort in her right arm when she “felt very gently down” it [C193/6-9]. Her oral evidence was that at no point in undressing C1 did she flinch or “guard” by which she explained she meant the muscles going hard to limit the sensation of pain; she explained a very careful process of undressing (legs first, then left arm to “give more options to move her” and “careful in undressing her not to cause her pain or discomfort” and wanting it “to be a calm experience to help her to become calm”); she said that she did not remember having to move the right arm to undress C1; when feeling down the arms she was “trying not to cause pain or discomfort”; over the course of her attendance C1 gradually calmed such that by the end “she wasn’t distressed anymore, she was quite calm” and “wasn’t upset or distressed during the process of re-dressing”; in particular the checking of the arms was demonstrated as a gentle stroking down and “not palpating or moving the wrist or bending her arm”. Whilst at times, particularly towards the end of cross-examination, there was some (at times very extended) hesitancy I found CB to give evidence in a careful, thoughtful and apparently reliable manner. The only aspect of her evidence that caused me any concern was her recollection of when she was first told of the Paternal Grandmother’s explanation of how an injury might have been caused.

SH, a nurse, visited the Paternal Grandparents on 24 December and the Paternal Grandmother explained a concern about C1 having cried and shown discomfort. SH moved C1’s right arm and she did not seem to be showing any signs of discomfort and reassured the Paternal Grandparents and suggested they “keep a close eye on her” [C171/9]. SH was not available to attend court so the evidence has not been tested by cross-examination.

When the Paternal Grandfather gave evidence he recollected attending the parents’ home on the evening of 24 December 2023 where each of Mother, Father, him and his wife shared a bottle of Champagne but he said, and I accept as plausible given the modest quantity of alcohol, the parents “did not appear to be under the influence” and he “had no concerns about the Mother and Father then or in leaving the Children in their care”.

The Mother continues the chronology in her first statement saying that the Father and her “had an argument that night” as he had drunk too much, he was belligerent and he grabbed her arm and then slept downstairs [C54/10]. She elaborated on that in the course of cross-examination describing the Father coming in at some point after the last feed and before 01.08 on 25 December 2023 offering to help. She said she told him she did not need help and to go away “you’ve had too much to drink”. She thought he was drunk because he was swaying and did not go away. She was lying on the bed and “reached down to pick up a muslin I’d dropped” when the “Father grabbed me by the right arm and held it up by the side of my head” whilst she was cradling C1 in her left arm.

She also described that being preceded by a discussion about the plans for Christmas Day which caused her to be frustrated and upset but she said she and the Father were both “calm”. There followed a series of messages she sent the Father:

She was cross-examined about this by counsel for the Guardian, she was asked why the message was sent at all at that time, she felt she was being argumentative; she was asked if something had happened overnight that prompted the message and she denied it.

In her second statement the Mother explains:

The Father said in his third statement:

In oral evidence he also said it was a reference back to a message he sent:

The reference to 1pm, he said should be 1am which in context appears credible.

The messages continued:

The Mother’s credibility in relation to the events of the evening of 24 December 2023 was tested in cross-examination. She originally said that when the Paternal Grandparents dropped the Children back in the afternoon they shared a bottle of Champagne (consistent with the Paternal Grandfather’s evidence) and she later had 1-2 glasses of wine or sparkling wine but as to Father “I don’t know, not tracking it, I believe he just drank from the Champagne bottle, he may have had another alcoholic drink, if he did it would have been beer”. That contrasted with her later evidence that “I remember thinking he was drinking some alcohol throughout that evening” but she could not clearly remember what it was. When I asked her about that she said the latter explanation was correct. Given that she later thought he was drunk it is possible in fact he had drunk substantially more than she was prepared to concede initially.

In cross-examination her evidence was that in all the time from 23 to 25 December 2023 when the Children were in the care of the Father she did not hear anything unusual, did not hear either of them “screaming unusually”.

She also said that in the aftermath of the purported injury by the Paternal Grandmother no family member examined C1, “they were always gentle, they knew about the incident and knew we were a bit concerned and they were taking extra care, more than normal” with minimal movement of the arm.

Of the evening of 24 December 2023 generally the Father said:

When cross-examined on behalf of the Guardian the Father accepted he took over care of the Children in the early hours, that would normally have been at 04.00 but he could not remember the time. He was asked about his “loss of control” in assaulting the Mother overnight. He agreed he did not “have proper control” of his movements, that his “decision making was completely impaired at that point” and that after the assault he “carried on with slamming doors and shouting”. He had said he struggled to remember the handover of care at 04.00, he had frequently previously suffered “blackouts or memory loss from alcohol use” but denied his hazy recollection was because he was drunk.

Dr Oates’ evidence on causation was (my emphasis):

Having watched the Paternal Grandmother’s demonstration in police interview he said:

In the course of cross-examination he confirmed more than once that the mechanism described by the Paternal Grandmother was consistent, in particular the described mechanism given by her at [C223/18] would be concordant with the injury. He was clear that there had to be some twisting component but “there does not need to be a huge amount of that, just not completely perpendicular [to the bone]”. He was asked if the absence of overt reference to twisting in the first part of paragraph 18 could still be consistent and he said he agreed, “things happen quickly, the Paternal Grandmother did not get the spirit level out” whether twisting was perceived it was still required.

As to force he gave some very helpful oral evidence about his use of the phrase “would likely require an inappropriate force” to put this into context:

Dr Oates discounts the Father’s explanation of a burping manoeuvre causing injury “unless it was coupled with a significant and inappropriate level of force” [E58].

In relation to pain response in cross-examination he said that if the arm was moved post injury it would likely trigger a pain response but it depended on the extent of movement. The fracture is shown as un-displaced in the radiograph of 27 December 2023 but minimally displaced the following day. Dr Oates’ evidence was that it is unlikely it became displaced prior to 27 December and reset and a displaced fracture would be, in general terms, expected to be more painful than un-displaced.

In his evidence in chief he referenced the development of periosteal changes on the x-rays between 27 and 28 December 2023 and when cross-examined by the Mother he was asked about the relevance of that to dating and said:

The reason it was unusual was because it was rarely demonstrated in sequential x-rays and I understood him to mean it assisted greatly in the dating of the injury. He was asked if a fracture after 24 December 2023 was highly unlikely and he again referred to the periosteal change demonstrated and said “If the fracture was on 25 December 2023…I cannot say with certainty that it didn’t happen but I do believe it is unlikely, possibly very unlikely”. I understand all advocates to agree a summary of his evidence in this respect was that the fracture “most likely pre-dates 25 December 2023”.

In relation to mechanism Dr Robinson’s oral evidence was that he accepted the compatibility of the fracture with Paternal Grandmother’s description of her actions on 24 December 2023, he accepted the immediate aftermath was partly compatible with the fracture (the scream of C1 and the reported inability to use the arm) but did not accept the later examination by CB, SH and the Father was compatible [E119].

Dr Robinson’s written evidence was (my emphasis):

This evidence was explored at length in cross-examination and he summarised his evidence at the end of cross-examination on behalf of the Father saying there was a credible account of an accidental event that could have led to fracture but 3 examinations thereafter (CB, SH and Father) did not elicit the expected pain response but there was an expected pain response on examination on admission in that the admission note records (my emphasis):

In answer to a question from the Father about CB’s report of examination to the police [J457] he agreed it is a “fair assessment” to say it was not a clinical examination, it was “a limited examination” and he agreed the need “to be cautious about placing too much weight on that” and later, when asked if the examination was “no more than gentle touching that would not elicit a pain response” he said “it depends how it is done” but “SH moved the arm and that would cause discomfort in the aftermath of a fracture” and “CB said she removed clothing and that would have caused severe distress” and “they were not nothing, the clothes removed and feeling around the arm [by Father] I would expect pain and distress in the aftermath of the fracture”.

He also relied upon a video taken at 15.03 on 24 December 2023 [C238] which I have viewed and appears to show spontaneous movement of the right arm, including upper arm, without apparent distress. Although the movement was more limited than the left he said that was not unusual in infants. He said a majority of infants would hold the arm “limply by side”; a different response is not impossible but he had not seen it. He made reference to Farrell et al (Paediatrics January 2012) (see further below). In answer to a question from the Mother he said that a child could be comforted within a relatively short period of time post-fracture if the limb was kept still and that a carer might consider any crying there was as related to a pre-existing problem rather than attributing it to what turned out to have been a fracture such that “the pain response is not as accentuated as what I generally see in the aftermath of fractures”.

He was referred to the triage note on attendance:

He commented that the baby was likely being held at that point so that would not be inconsistent with a fracture (or suggestive therefore of an unusual pain response).

He did however acknowledge a possible unexpected lack of response on the Trauma and Orthopaedic team ward round on 28 December 2023 (my emphasis):

He agreed that was at a time when paracetamol had not been administered for 6 hours (see drugs chart [I621]) and the first record of the arm being immobilised was not until 29 December 2023 (see I441]). I asked him about whether he could rule out the fracture occurring as described by the Paternal Grandmother notwithstanding the apparent lack of pain response later that day and he accepted, quite properly, that “nothing is impossible” but he had never observed it. He earlier said “the aftermath is not always as we expect…it’s certainly the case infants differ in response to pain. If the radiological window is correct then the inability to use the arm is a sign of injury but the pain response is not as we would normally see”. In relation to Farrell he caveated his response by saying it was a study of mean age children of 3.7 years (plus or minus 1.6 years) not infants but 9% of carers did not report crying after an extremity fracture and 12% reported normal limb use post-fracture. He later provided the paper and the paragraph he was referring to appears to be:

He concluded saying “I wouldn’t exclude it [fracture on 24 December 2023 and abnormal pain response and some movement evidence on video] but from clinical experience it would be highly unusual”.

On re-examination by the Guardian he was asked about fractures with the combination of lack of pain response and not showing lack of movement in the immediate aftermath (i.e. on 24 December 2023) yet lack of movement and expected pain response recorded a few days later (i.e. on admission 27 December 2023 [I529]) and said “that would not be clinically possible. Farrell has shown a small proportion who do not cry but no forensic information that tells us the child suddenly exhibited symptoms”.

There seem to be the following alternatives:

I have no hesitation in ruling out injury prior to the purported incident with the Paternal Grandmother on 24 December 2023, i.e. scenario (a) above. That is consistent with the paediatric evidence, there is no evidence of a particularly difficult night on 23-24 December 2023, the Paternal Grandparents did not identify any abnormality prior to the incident with Paternal Grandmother and unless the Paternal Grandmother was colluding with one or both parents it would be a remarkable co-incidence for the Paternal Grandmother to think she had injured the right upper arm which had in fact already been fractured by one of the parents. I do bear in mind the possibility that the reason for C1’s reported distress as the Paternal Grandmother was inserting her right arm into the pram suit was because it was exacerbating an earlier injury, this would mitigate the co-incidence but that would also be inconsistent with the reported and immediately prior presentation at the Paternal Grandparents. Further, it is unlikely the Father would have taken the Children to the Paternal Grandparents if one of the parents had known C1 had suffered a serious injury at their hands; it would open up the possibility of discovery. On balance this scenario is implausible.

Similarly I rule out scenario (d); it does not sit well with CB and SH having been invited to check over C1 during the day, this would have preceded the injury. The parties were not cross-examined on this scenario and in the course of evidence counsel for the Local Authority agreed there was insufficient evidence to put this case.

There are 2 particular difficulties with scenario (b). The first is the force that would have been required by the Paternal Grandmother’s action because whilst the mechanism is plausible the demonstrated force as seen by the experts was not. Her evidence as to force was quite muddled. She told the police of a “little push” [J35e], in her statement she said it was a pull and used more force than a “little push” and that she could feel the arm as a tiny stick [C223], she told me of feeling a “stick bone” notwithstanding that the padding on the suit was thick but then told counsel for the Guardian the movement did not involve gripping and the demonstrated movement showed modest force. The second is what might be abnormal response to injury (a lack of crying and apparently normal movement). I will consider this in more detail below.

The difficulty with scenario (c) is that it relies on the site where the Paternal Grandmother thought she had injured C1 matching the actual site of injury later perpetrated by the Father. I note there is no greater likelihood of a parent fracturing a limb by pulling it if they lost control as compared to slapping, throwing, dropping or shaking which might cause a non-limb fracture, bruising or a head injury. I also note, but discount as being barely credible, the possibility of the Father deliberately choosing to inflict injury to the same place he perceived an earlier soft tissue injury had been suffered as a way of avoiding later detection: it would have required a degree of pre-meditation (as opposed to loss of control) and whilst there are messages suggestive of some malice towards the Children (“A banshee”, “you hate it / them”, “I hate them”) there is no prior evidence of that manifesting as a physical act against a child such as an unexplained bruise or witnessed act and the context of the messages is of a parent struggling to come to terms with sleep loss. I caution myself against attaching too much weight to short messages written in haste and saying such things is quite different from acting upon them.

Accordingly, the probability of soft tissue injury at one site and a fracture perpetrated at the identical site is low. On behalf of the Father I was also reminded of the lack of evidence, both in contemporaneous messaging between the parents and subsequently, of the Mother hearing anything abnormal when the Children were in the care of the Father although as I pointed out she may have been asleep and I found the suggestion that she would have been expected to wake up not one supported by the evidence.

The difficulty with scenario (e) is Dr Oates’ evidence which in particular relied on the unusual feature of seeing the development of periosteal changes which assisted in more accurate dating. That said, the evidence of the reported presentation on 25 December 2023 is suggestive on the paediatric evidence of no injury (no particular concerns reported on Christmas Day by JD [J466], Maternal Grandfather [J468] and Mother’s sister [J481]).

Returning to scenario (b) in more detail: As regards the apparently minimal force used by the Paternal Grandmother on demonstration I acknowledge the difficulty of demonstrating what happened both in police interview under caution (because of the jeopardy of the situation) and 8 months later in court (because of the passage of time). However, her reference to feeling the “stick bone” through the padded suit points the other way and I bear in mind the report of an unusual cry immediately afterwards. I also bear in mind neither expert is able to evidence the force necessary empirically (it would be unethical to test). Dr Oates said a “highly aggressive act with overwhelming force” [E44] is not required although “significant and inappropriate force” is [E77]. Of note Dr Robinson’s evidence was that on balance Paternal Grandmother’s actions caused “a painful but minor soft tissue injury” [E103]. I am reassured of the difficulty of interpreting demonstrations by the fact that I would struggle to see how the force the Paternal Grandmother demonstrated in court could even have caused a soft-tissue injury and of course she would at least sub-consciously not be wanting to injure her solicitor when she did demonstrate it. As Dr Oates said in his oral evidence in answer to a question from the Guardian’s counsel “it is really difficult to communicate levels of force” and he added “to interpret that”. I accept that.

I have considered if the Paternal Grandmother might be consciously or sub-consciously closing her mind to the possibility the parents, more particularly her son, might have later inflicted injury because of the horror of the consequences and instead she has focused on how it must have been her that caused the injury. I remind myself of the distress evidenced in the aftermath; she gave that evidence and she said that by 26 December 2023 she had “shut down”, Paternal Grandfather gave evidence of her distress [C214/11] as did CB [C193/4] and the Father. All that points to a genuinely shocking incident for the Paternal Grandmother on 24 December 2023 not an innocuous incident subsequently elevated in importance. That does not rule out the possibility of a nasty soft tissue injury caused by her but her having elevated that still further to “backfill” what must have happened. Counsel for the Guardian also pointed to the creep of evidence she gave about the force she used (from little push to pull to having used greater force). That would be consistent with Dr Robinson’s evidence:

I have considered Dr Robinson’s evidence in relation to the apparently settled nature of C1 between 24 and 27 December 2023. This might be mitigated by the evidence of minimal handling of C1 by CB and the family generally prior to admission on 27 December 2023. More importantly, in relation to the video taken on the afternoon of 24 December 2023 I note Dr Robinson does not rule out fracture and an unusual response which might be consistent with the findings of Farrell which might also be consistent with the ward round note from the Trauma and Orthopaedic team on 29 December 2023 where C1 was reported to be “not distressed” [I497] yet the arm was not splinted in any way until later that day [I441]. However, Dr Robinson was clear that an intermittent expected response was not within his clinical or forensic experience (i.e. immediate cry and reduced movement then abnormal response then response on examination on 27 December 2023).

C1’s response does require more detailed analysis and I bear in mind that more proximate evidence is generally more reliable before memory is re-written on each re-telling and I particularly bear in mind there may be a tendency on the part of the parents to paint a picture of a well-baby to ameliorate concern they failed to take action; the Father was explicit on this, it was the reason he lied about symptoms in his first statement.

On 4 January 2024 Paternal Grandfather reported an initial unusual cry to the police [J35ay]. In police interview on 31 December 2023 the Paternal Grandmother reported crying straight away, a sudden cry, with the arm going limp [J35q]. That is consistent with Dr Robinson’s evidence that:

At hospital on 27 December 2023 it was recorded, presumably from what the parents told the hospital, that “Since Christmas eve parents have noticed C1's R arm just hangs by her side” [I529].

On 29 December 2023 in interview the Mother told the police she was “aware that the arm was still floppy” and on 26 December 2023 was aware the arm was still “a bit floppy” and she was not presenting as “being in huge amounts of pain” implicitly therefore in some pain [J0f]. The Father told the police in his interview on 28 December 2023 “it was potentially, a bit, erm, floppy” [J34f] and “she probably was a little bit more, I don’t know, restless than normal” [J34k]. I set this evidence out in more detail below under Allegation 5.

It would follow that (absent the video at 15.03) there may not in fact have been an abnormal response to pain at all, rather the parents have sought to minimise it; the Father concedes this. The video is of course just part of the overall evidential canvas.

From all the evidence I conclude that if the Paternal Grandmother did fracture C1’s arm accidentally, there is no evidence of surrounding circumstances that would support a finding she did it in anger or in a state of loss of control.

I also conclude, agreeing with the Guardian, there is a paucity of evidence of the Mother losing control and inflicting the injury at any stage. Whilst there is evidence of lack of sleep there is no other evidence that would support such a finding.

I am left with scenario (b) (Paternal Grandmother on 24 December 2023), scenario (c) (Father on the night of 24-25 December 2023) and scenario (e) but limited to Father (Father between 25 and 27 December 2023). The only evidence of an incident that could have caused a fracture is in relation to scenario (b). The evidence that tends to undermine that first, inadequate force, is explicable having regard to the limitations of demonstration and second, unusual response, is explicable on the basis of C1 being an outlier or fitting the normal profile but with minimised reporting. Whilst scenario (c) and (e) are possible they present the marked difficulty of the injury site being the same as on 24 December 2023 and I find it implausible the Father would have the presence of mind to inflict injury at the same site knowing he could later try to blame his mother.

Accordingly, I am drawn to conclude the Local Authority, upon whom the burden rests at all times, have not proved C1’s carers non-accidentally inflicted a fracture on C1 and rather the Paternal Grandmother caused the fracture accidentally.

On admission the parents are reported to have told the hospital that “Since Christmas eve parents have noticed C1's R arm just hangs by her side. Today she has seemed uncomfortable/unsettled” [I529]. Dr Robinson’s evidence was (my emphasis):

His oral evidence was that a non-observing carer would be “likely to see increased fractiousness” in the child but would not know there had been a fracture and there was “no obvious swelling or bruising”.

Although the Mother’s response to the allegation was that she “did not notice that C1 was more unsettled/distressed” and the Father denies the allegation (the Paternal Grandmother accepts it) that is not really entirely consistent with the evidence which I will address further below in relation to allegation 5. I am satisfied this allegation is proved on the evidence of Dr Robinson and the parents and Paternal Grandparents themselves.

The Father accepts this allegation. It is denied by the Mother and Paternal Grandmother.

The Mother told the police (my emphasis):

I note that this account to police differs from her first witness statement (about a month later) in which says she first noticed C1 not moving her arm “late on the afternoon of the 26^th December 2023” [C52/4].

She continued in her statement that:

In her oral evidence she said that “she cried a lot during that period and it’s possible that I didn’t notice that it was specifically related to the arm” but by 26 December 2023 she had “confirmed to myself there was something not quite right having had a subconscious niggling concern something was not quite right”.

The Father said:

In his oral evidence he said she was actually “favouring left over right arm” which was missing from his statement.

In his police interview he said (my emphasis):

That differs from his first witness statement:

He continued in his statement:

He corrected that in his third statement:

It is clear from the record of presentation at hospital and police interviews that there was still evidence of an injury, the floppy arm, on Christmas Day and Boxing Day.

The Paternal Grandmother’s evidence is:

She also exhibits a video taken at 15.03, as noted above, which appears to show normal movement.

CB’s written evidence was that “I did say if she did appear to be in pain or discomfort then they should at that time seek medical attention” [C193/11] and she confirmed that in oral evidence. I am not sure that significantly undermines the parents/Paternal Grandmother’s case as there is no evidence of pain and discomfort as distinct from floppiness or lack of use although I do accept both may be the result of pain or discomfort, but it might be said to be a counsel of perfection to link floppiness to pain in the absence of crying.

The Paternal Grandfather’s evidence, in support of the assertion hospitals were busy, told me that he receives twice daily news updates by email from the local paper which included “don’t go to the [local] Hospital…an article that said keep away.

Dr Robinson’s evidence is:

My conclusion is that some unusual behaviour was noted on 24 December 2023, the parents and Paternal Grandmother were re-assured by CB in particular that day and coupled with concern about attendance at the local Accident and Emergency Department I am not satisfied the Local Authority have proved the failure to seek further medical advice that day was unreasonable. However, stepping back this was a baby who had plainly suffered some injury at the hands of the Paternal Grandmother which caused her such concern as to call a neighbour and symptoms (at the very least floppiness) continued to be present on the most contemporaneous documentary evidence on 25 and 26 December 2023 yet formal medical attention was not sought until 12.49 on 27 December 2023 [I514]. There were perhaps three options open to the parents: attend at hospital, make a GP appointment or call NHS 111. The first and second options may have been difficult, perhaps as regards a GP appointment impossible but the last was always an available option. When assessing the extent of concern I am entitled to take into account the Father’s admission: he was in fact so concerned that in retrospect he accepts threshold is met by reason of the failure to seek medical attention. That, coupled with what I have said above and Dr Robinson’s evidence, leads me to conclude the parents unreasonably failed to seek medical attention from 25 to 27 December 2023; having been re-assured on 24 December 2023 they could not reasonably continue to rely on that when there was no apparent improvement.

I do not make a finding against the Paternal Grandmother. She cannot reasonably be said to bear a responsibility for seeking medical advice save in the immediate aftermath of the injury and whilst C1 was in her care at which point she had re-assurance from CB.

In closing submissions the Father accepted threshold was met on the basis of a failure promptly to seek medical attention for C1. As noted above I have found the parents behaved unreasonably in failing to seek advice from 25 to 27 December 2023. I have to ask if that failure caused or was likely to have caused C1 to suffer significant harm. The harm that might arise is pain. The likelihood of that is high: even at its lowest on the police interview evidence there was ongoing floppiness, an indication of a reluctance to use the arm likely arising from pain or discomfort. This was an infant demonstrating reduced movement in a fractured arm which evidences significant harm.

This is denied by the Mother (she said in cross-examination she was “not-confident” it was used but she was not aware of it”) but it is admitted by the Father in his response to the allegations ([A183]) but when he gave oral evidence he said he did not remember giving Calpol between 20 and 27 December 2023 and after being taken to the GP record at [I228] which does not indicate the GP advised Calpol for reflux he said “I don’t remember giving Calpol” and the response to allegations was “an oversight”.

There is a screenshot of messages taken at 01.22 on 25 December 2023 found on Mother’s phone:

The Mother and Father say this was a message exchange on 20 December 2023 following an injection on 19 December.

The Father says the administration of Calpol on 24 December was “because of her reflux, not the injury” [A183] although his oral evidence about the administration of Calpol thereafter was equivocal.

I cannot see how, if there was administration of Calpol after 24 December 2023 that would meet threshold. Even on a cursory consideration the administration of Calpol was not contrary to the manufacturer’s recommendation.

The Mother’s response is that she “advised father against it”. The Father denies the allegation.

The Local Authority rely upon messages between the parents on 20 December 2023:

In oral evidence Dr Robinson agreed that such administration as is demonstrated here (1 hour short of the recommended time) “would not put the child at risk of significant harm”.

I accept the allegation but limited to 20 December 2023 based on this evidence; there is no other evidence of excess medication. I accept Dr Robinson’s evidence that there was no risk of significant harm.

Both parents deny the Mother walks on eggshells and dreads every night that the Father drinks because she knows that she will “end up paying” and both deny the Father’s drinking is excessive and problematic.

The Local Authority rely upon the following messages:

It is also relevant that the Mother described the Father as drunk when he assaulted her on the night of 24-25 December 2023.

The parents’ case unravelled in the course of cross-examination. The Father’s evidence was that from mid-December to Christmas Day he was drinking “a few beers a night and at the weekend 6-8 cans” and was drunk “4 nights out of 7, every other night”. The Mother’s evidence was that he was abusive when he had too much to drink, she agreed his behaviour became “obnoxious, aggressive or abusive”. From mid-December to Christmas day his episodes of drunkenness were “more frequent than before mid-December”.

When cross-examined on behalf of the Local Authority the Father said “for the large part” he was in control when drunk, the implication being not always, later there was this exchange:

On this evidence I find the Father’s drinking was problematic; his admission of being out of control and argumentative when drunk on the night of 24 December 2023 supports the Mother’s evidence that his drunkenness tended to result in obnoxious, aggressive or abusive behaviour.

I have some difficulty finding his drinking was excessive as I do not really know what is being alleged. His hair strand test reported on 15 March 2024 covering the period of “a number of months…typically more than 6 months” [E73] would probably have covered the period in the lead up to Christmas 2023 and was reported as not demonstrating excessive consumption [E72].

The Local Authority rely upon the following message:

In her second statement she said:

There is really no reason to doubt this explanation. I accept the message was sent but do not accept it is evidence of the parents struggling to control their emotions, frustrations and behaviour in the context of parenting as alleged.

The Local Authority rely on the following messages:

In her second statement the Mother says “I suspected that the noise of a door banging would have made the children scared, which is why I asked Father to stop doing it the few times he did.” [C245/14].

My conclusion, based on the contemporaneous message at 01.08 on 25 December 2023, is that the Children were in fact scared by the Father slamming the door and shouting on at least once occasion.

The parents accept the majority of the allegations relied upon with the exception of allegations 9-11 above on which I have made findings that the Father’s drinking was problematic and the Children were scared by the noise of a slamming door and shouting on 25 December 2023 and the further exception that the Father did not accept the Mother had asked him to be gentle when handling the Children on several occasions as opposed to once. It is not proportionate to make a finding either way on this last point and I proceed on the basis it was once only.

The Father does not accept ongoing abuse but does accept the Children were exposed to it on 24 December 2023.

In summary, what is accepted is that in May 2022 the Father bit the Mother when they were on holiday when she was pregnant; and again whilst they were on another holiday he grabbed her wrist to prevent her from leaving the room when he was snoring and on 24-25 December 2023 when she was feeding C1 he also grabbed her; and his drinking resulted in a tendency to be obnoxious, aggressive or abusive; and he was actually abusive after getting drunk on the evening of 24 December 2023. In cross-examination the Mother said that she considers she was a victim of domestic abuse from the Father, it was physical and verbal and it escalated after the birth of the Children. She sent a message to him consistent with that evidence (my emphasis):

When cross-examined on behalf of the Local Authority the Mother accepted at least a risk of harm if not a risk of significant harm (see below).

Given the admissions and my findings there is clear evidence of domestic abuse by the Father. The Local Authority have satisfied me this put the Children at risk of significant harm, in particular relying upon the assault of the Mother on 24-25 December 2023 whilst feeding C1.

For the avoidance of doubt there is no evidence of abuse by the Mother to the Father and I do not make that finding.

The Local Authority allege a failure to protect “from the Father’s abusive and uncontrolled behaviours”, in particular relying on the message at 01.29 on 25 December 2023 following the Father’s assault of the Mother, failure to report abuse and failure to support a police investigation.

In her second statement the Mother says:

In her oral evidence she said her focus was on the Children at the time and “I felt that I needed to be able to speak to the Father to get to the bottom of what happened and I didn’t feel that not co-operating was harming the children.”

She was particularly asked about the admitted assault on the night of 24-25 December 2023. She said she did not feel scared after the Father left the room even though she “could hear some clattering around going on, the slamming of the door and shouting” and the assault “felt like the crescendo of the argument was over”.

She agreed in cross-examination that if she had allowed the Father to care for the Children in the early morning of 25 December 2023 (i.e. after the assault and evidence of the Father having been drinking) then “potentially” they would have been at risk of harm but she could not remember when the handover was. She did say she “didn’t feel it was inappropriate to leave them with him…if I’d felt it was stupid I wouldn’t have done so”.

There were also these exchanges:

Taken on its own it is difficult to see the incident on the night of 24-25 December 2023 as justifying immediate action, the Mother gave a warning she would call the police if it was repeated. However, when taken with the build up to this incident it becomes more borderline. I bear in mind it was Christmas, there were additional pressures (seeing family, the Father being around more because he was not working) and I also take into account the enormous pressure both the Mother and Father were under in dealing with two very young children. It might have been that the Mother would have followed through on the warning had there been a repeat of the Father’s actions after Christmas but these proceedings intervened. I find that the Father has minimised his behaviour (on his admission) and it is apparent the Mother has sought to do so too, the full picture only really emerging in the cross-examination of both parents. That will be a matter for a subsequent welfare analysis and reminding myself of G-L-T I must be careful not to elevate that to a threshold finding.

Since I have found the fracture not to have been caused by the Father it cannot be said that was the significant harm the Mother should have protected the Children from. There is no evidence at all of harm to the Children from domestic abuse. There were three incidents of physical violence spaced apart (one at which C1 was present), I do not downplay their significance, but I cannot be satisfied that together with the Father’s drunkenness this was sufficient to alert the Mother to a risk of significant harm to the Children such that she should have acted differently and, perhaps, separated from the Father or reported his behaviour to the police.

I have found threshold is met in relation to the parents’ failure to seek medical attention from 25 to 27 December 2023.

I have found threshold is met in relation to the Father’s domestic abuse of the Mother.

The Local Authority invited me to take account of the Father’s admitted dishonesty in relation to C1’s presentation as set out in his first statement [C43] as going to threshold. I am satisfied this meets the threshold test. Threshold must be met as at the date of protective measures, which in this case was 29 December 2023 when the parents signed an agreement for the Children to be accommodated pursuant to section 20 Children Act 1989, but evidence after the event is relevant to its assessment at that time. The Father has demonstrated a willingness not to tell the truth about a serious matter (C1’s symptoms) in order to protect himself. That is likely to impact the care given to the Children not being that which it would be reasonable to expect giving rise to a risk of significant harm because the Children’s welfare cannot be properly or fully assessed by professionals.

I have set out a summary of my findings at the outset of this judgment and they form part of the judgment.