Bracknell Forest Council v Mother & Ors

On 25 April 2023 CA was examined at Frimley Park Hospital and had the following marks on her body [F13]:

Left deltoid region – 2cm x 1.5cm

Beneath the left deltoid region – 0.5cm x 0.5cm

Linear mark on left forearm near wrist – 2.5cm x 0.5cm

Small mark posterior axillary line – 0.5cm x 0.5cm

Left Leg, medial aspect shin, 2cm above ankle joint– 0.5cm x 2.5cm, linear

3cm below popliteal fossa left leg – 0.5cm x 0.5cm

Admitted.

Each of the marks described at 1(a) to 1(f) was a bruise.

Not proved.

Each of the bruises was caused between CA being seen by the Health Visitor on 14 April 2024 and the morning of 25 April 2023.

The marks first appeared between 24 and 25 April 2023. They were not bruises.

Each of the bruises was inflicted by Mother and/or Father by application of an impact force in excess of normal or rough handling.

Not proved.

The perpetrator of the injury, and any other adult present at the time the injury was inflicted would have been aware that CA had been hurt.

Not proved.

Background

CA was born [in April 2023] at 40 weeks 2 days gestation. She was healthy on delivery and discharged from hospital the next day with the only issue noted to be forceps marks on her face [J220-224].

CA was seen by midwifery on 6 April 2023 when advice was given to increase the milk offered to her. There were no other concerns [J192-193].

At a midwifery visit on 8 April 2023 CA again presented as healthy with no concerns. The notes record ‘birth marks = none noted’ [J177].

On 14 April 2023 checks for CA were passed over to the Health Visitor service. Again, noted no concerns for CA, and no birth marks [I5] [J159].

At 09:13 on 25 April 2023 Mother text two photographs of marks on CA’s shoulder and forearm to Father with the message “Just found these on CA [C78].” Father replied, “They look so bad babe” and “I’m really worried I did it babe.” Throughout the subsequent exchanges Father suspects himself as the cause of the marks. Father asked Mother to delay seeking advice from family members and medics, saying “No they will tell every one [C79]” and in reply to a message from Mother suggesting she see the doctor “Ok just scared to call them. Think it could make it worse [C83].”

Mother telephoned 111 at 13:24 that day and sought advice in respect of CA for “purple patches on skin” [K11]. The operator recorded the concern as ‘easy or unexplained bruising’ and ‘abnormal bruising’ and asked Mother to take CA to a treatment centre within one hour – it appears the call ended 14:06. Mother took CA to Frimley Park Hospital, noted arrival time 14:52 [K16].

At hospital CA was examined first by Dr Gabrielle Todd in the presence of Mother [C180]. Dr Todd noted marks to the left shoulder, left wrist and left ankle. Mother having no explanation for the marks Dr Todd called the A&E Registrar Dr Arifa Ali, who in turn notified consultant paediatrician Patrick Aldridge. Mr Aldridge reviewed medical records in preparing his statement dated 30 June 2023 and considered the marks in keeping with bruises [C216].

Given the apparent bruising and lack of an explanation the hospital staff were concerned about non-accidental injury. At 19:30 CA was examined by Paediatric Consultant Maisara Soliman [C189], and Dr Nirubhan Veeraragavan, Paediatric Registrar [C208]. Dr Veeraragavan produced a full report including body map [F1]. The conclusion/diagnosis was “unexplained bruise in a non-ambulant child-? Cause” [F11].

CA was referred to dermatology and examined by Dr Sara Sherif on 26 April 2023 who considered the marks to be bruises and not in keeping with vascular malformation or alternative organic causes [C177] [J70].

Alistair Patton is a Paediatric Consultant. He saw CA on 26 April and 18 May 2023. He reviewed the medical records and prepared a report dated 18 May 2023 [F46] and a witness statement dated 16 June 2023 [C184]. He considered the marks to be more consistent with bruising than birthmarks or other vascular malformation.

CA was deemed medically fit for discharge and was therefore sent home with her parents under a safety plan agreed by the Local Authority.

A strategy discussion took place on 27 April 2023 attended by social care professionals, Detective Sergeant John Denard, Paediatrician Alistair Patton, and Stefan Mantke who is lead safeguarding doctor at Frimley Park hospital [F18]. There was discussion of the skeletal surveys and Dr Patton noted “on the second review there appears to be some abnormality around the surface of the bones within the left arm. These may well be nothing [F22].” Dr Mantke added “I’ve seen this description quite a few times now in the last two to three years … it might be an incidental finding. But that’s the reason why we always need to do a completion of a skeletal survey [F23].”

A review strategy discussion took place the following day, again attended by Dr Patton and John Denard, but Dr Mantke was not present. The meeting discussed the significance of the radiology and was reminded of the comments made the day prior [F39-40]. Subsequently, on 31 May 2023 an Initial Child Protection Conference was held, attended by John Denard on behalf of the police. The minutes record that the police told the meeting “Another Paediatrician involved in one of the strategy discussions was not overly concerned about the markings, which isn’t in Dr Patton’s report [F72].” Dr Mantke is the only other medic to have attended a strategy discussion along with John Denard, on 27 April 2023. Dr Mantke does not appear to have had any other input, apart from seeing CA briefly on 27 April 2023, after her examination in ophthalmology, when he diagnosed periorbital cellulitis [J42].

CT scans and x-rays were carried out, including a follow-up x-ray on 9 May 2023. No evidence of injuries was identified [C198].

The Local Authority issued care proceedings on 4 May 2023 and applied for an Interim Care Order for CA and her parents to be placed in a residential unit.

CMO 1: 9 May 2023 [B47-55]

An urgent ICO hearing took place on 9 May 2023. The Local Authority was not granted either an ICO or ISO, and the family remained at home under a written agreement.

20.A police disclosure order was not made as disclosure had been requested under the protocol [A6].

The Local Authority issued a Part 25 application for a paediatric assessment prior to the hearing. The application was adjourned to the Case Management Hearing on 24 May 2023.

CMO 2: 24 May 2023 [B56-60]

22.At the hearing on 24 May 2023, the court approved the instruction of Dr George Rylance, consultant paediatrician.

The matter was listed for a contested ICO hearing on 9 June 2023.

24.The matter was listed for a pre-trial directions hearing on 15 September 2023 and a separate fact find hearing 9, 10, 16 and 17 October 2023.

The Local Authority was directed to file and serve statements from the staff at the hospital.

CMO 3- 9 June 2023 [B64-67]

26.At the contested ICO hearing on 9 June 2023 the application for an ICO was refused.

The local authority was directed to file and serve a schedule of findings sought at the fact-finding hearing by 31 August 2023. The parents were to file their responses by 12 September 2023.

…

CMO – 15 September 2023 [B90]

The hearing was listed as a pre-trial review. The Court considered Dr Rylance’s recommendation that an expert paediatric haematologist be instructed, and Part 25 application issued by the Local Authority, and approved the instruction directing that the report be filed by 6 November 2023.

Extensions of time were granted for the SGO and parenting assessments – 5 January 2024.

34.A timetable was set for final evidence, and a final hearing listed split in to a fact finding hearing (19-27 March, seven days) and welfare hearing (22-29 April, five days).

…

43.Neither parent suggests there is any other person who had any opportunity to cause even one bruise to CA…

On 25 April 2023 CA was examined at Frimley Park Hospital and had the following marks on her body [F13]:

Left deltoid region – 2cm x 1.5cm

Beneath the left deltoid region – 0.5cm x 0.5cm

Linear mark on left forearm near wrist – 2.5cm x 0.5cm

Small mark posterior axillary line – 0.5cm x 0.5cm

Left Leg, medial aspect shin, 2cm above ankle joint– 0.5cm x 2.5cm, linear

3cm below popliteal fossa left leg – 0.5cm x 0.5cm

Each of the marks described at 1(a) to 1(f) was a bruise.

Each of the bruises was caused between CA being seen by the Health Visitor on 14 April 2024 and the morning of 25 April 2023.

Each of the bruises was caused by either Mother or Father.

Each of the bruises was inflicted by Mother and/or Father by application of an impact force in excess of normal or rough handling.

The perpetrator of the injury, and any other adult present at the time the injury was inflicted would have been aware that CA had been hurt.

Local Authority revised schedule of findings [Z28];

Mother’s response to the schedule of findings sought [Z31];

Father's response to the schedule of findings sought [Z35];

Statement of Mother dated 19 May 2023 [C68] including text messages [C77];

Statement of Mother dated 15 March 2024 [C339];

Statement of Father dated 19 May 2023 [C130];

Statement of Father [Z23];

Statement of EH, Maternal Grandmother [C327];

Statement of CL, Maternal Great Aunt [C347];

Statement of Dr Gabrielle Todd, accident and emergency paediatrician [C179];

Statement of Dr Maisara Soliman, consultant paediatrician [C189];

Statement of Dr Nirubhan Veeraragavan, paediatric registrar and safeguarding medical report [C208] [F1];

Statement of Dr Sara Sherif, consultant dermatologist and corresponding notes [C176] [J70];

Statement of Dr Alistair Patton, consultant paediatrician [C184] [F46];

Paediatric report of Dr Rylance dated 22 August 2023 [E8];

Amended addendum report of Dr Rylance dated 12 September 2023 [E40];

Second addendum report of Dr Rylance dated 19 February 2024 [E148];

Addendum haematology report of Dr Russell Keenan, consultant paediatric haematologist (incorporating the original report) [E97]; and

Dr Keenan’s response to questions [Z19].

…The principles are conveniently set out in the judgment of Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam), to which I was taken. So far as material for present purposes what Baker J said (and I respectfully agree) was this:

21.  To this admirable summary I add three further points.

22.  First, that the legal concept of proof on a balance of probabilities “must be applied with common sense”, as Lord Brandon of Oakbrook said in The Popi M, Rhesa Shipping Co SA v Edmunds , Rhesa Shipping Co SA v Fenton Insurance Co Ltd [1985] 1 WLR 948, 956.

23.  Secondly, that the court can have regard to the inherent probabilities: see Lady Hale in In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] 1 AC 11, para 31. But this does not affect the legal standard of proof, as Lord Hoffmann emphasised in the same case (para 15):

“There is only one rule of law, namely that the occurrence of the fact in issue must be proved to have been more probable than not. Common sense, not law, requires that in deciding this question, regard should be had, to whatever extent appropriate, to inherent probabilities. If a child alleges sexual abuse by a parent, it is common sense to start with the assumption that most parents do not abuse their children. But this assumption may be swiftly dispelled by other compelling evidence of the relationship between parent and child or parent and other children. It would be absurd to suggest that the tribunal must in all cases assume that serious conduct is unlikely to have occurred. In many cases, the other evidence will show that it was all too likely.”

24.  Thirdly, that the fact, if fact it be, that the respondent … fails to prove on a balance of probabilities an affirmative case that she has chosen to set up by way of defence, does not of itself establish the local authority’s case. As His Honour Judge Clifford Bellamy recently said in Re FM (A Child: fractures: bone density) [2015] EWFC B26, para 122, and I respectfully agree:

“It is the local authority that seeks a finding that FM’s injuries are non-accidental. It is for the local authority to prove its case. It is not for the mother to disprove it. In particular it is not for the mother to disprove it by proving how the injuries were in fact sustained. Neither is it for the court to determine how the injuries were sustained. The court’s task is to determine whether the local authority has proved its case on the balance of probability. Where, as here, there is a degree of medical uncertainty and credible evidence of a possible alternative explanation to that contended for by the local authority, the question for the court is not ‘has that possible alternative explanation been proved’ but rather it should ask itself, ‘in the light of that possible alternative explanation can the court be satisfied that the local authority has proved its case on the simple balance of probability’.”

I agree with the judgment of Ward LJ. Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert. Judges are well accustomed to assessing the conflicting evidence of experts. As Ward LJ said, judges are not expected to suspend judicial belief simply because the evidence is given by an expert. An expert is not in any special position and there is no presumption or belief in a doctor however distinguished he or she may be. It is, however, necessary for a judge to give reasons for disagreeing with experts' conclusions or recommendations. That, this judge did. A judge cannot substitute his views for the views of the experts without some evidence to support what it is he concludes.

Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3.

This states that human memory:

is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but

is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore

is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.

To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record keeping or recollection of the person hearing and relaying the account. The possible effects of delay and questioning upon memory should also be considered, as should the effect on one person of hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural – a process which might inelegantly be described as “story creep” – may occur without any inference of bad faith.

No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable.

I therefore respectfully agree with what Macur LJ said in Re M (Children) at [12], with emphasis on the word ‘solely’:

“It is obviously a counsel of perfection but seems to me advisable that any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so.”

…

28…There will be cases where the manner in which evidence is given about such personal matters will properly assume prominence. As Munby LJ said in Re A (A Child) (No. 2) [2011] EWCA Civ. 12 said at [104] in a passage described by the Judge as of considerable assistance in the present case:

“Any judge who has had to conduct a fact-finding hearing such as this is likely to have had experience of a witness - as here a woman deposing to serious domestic violence and grave sexual abuse - whose evidence, although shot through with unreliability as to details, with gross exaggeration and even with lies, is nonetheless compelling and convincing as to the central core… Yet through all the lies, as experience teaches, one may nonetheless be left with a powerful conviction that on the essentials the witness is telling the truth, perhaps because of the way in which she gives her evidence, perhaps because of a number of small points which, although trivial in themselves, nonetheless suddenly illuminate the underlying realities.”

That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments…in formulaic terms:

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

4 Considerations relevant to weighing of hearsay evidence.

(1)     Had the local authority proved that the injuries were inflicted as opposed to being accidental?

(2)     If the injuries were inflicted, who had the opportunity to cause them?

(3)     Of those people, could one person be identified on the balance of probabilities as having inflicted the injuries (a conventional 'known perpetrator' finding)?

(4)     If only two people…could have caused the injuries, but the one responsible could not be identified it necessarily followed that there was a real possibility that each of them may have caused the injuries (an 'uncertain perpetrator' finding).

Risk factors and protective factors

On behalf of the Children’s Guardian, Mr Clive Baker has assembled the following analysis from material produced by the NSPCC, the Common Assessment Framework and the Patient UK Guidance for Health Professionals.

Risk factors

• Physical or mental disability in children that may increase caregiver burden

• Social isolation of families

• Parents' lack of understanding of children’s needs and child development

• Parents' history of domestic abuse

• History of physical or sexual abuse (as a child)

• Past physical or sexual abuse of a child

• Poverty and other socioeconomic disadvantage

• Family disorganization, dissolution, and violence, including intimate partner violence

• Lack of family cohesion

• Substance abuse in family

• Parental immaturity

• Single or non-biological parents

• Poor parent-child relationships and negative interactions

• Parental thoughts and emotions supporting maltreatment behaviours

• Parental stress and distress, including depression or other mental health conditions

• Community violence

Protective factors

• Supportive family environment

• Nurturing parenting skills

• Stable family relationships

• Household rules and monitoring of the child

• Adequate parental finances

• Adequate housing

• Access to health care and social services

• Caring adults who can serve as role models or mentors

• Community support

In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.

Uncertain perpetrator cases—If the judge cannot identify a perpetrator or perpetrators, it is still important to identify the possible perpetrators by asking whether the evidence establishes that there is a ‘likelihood or real possibility’ that a given person perpetrated the injuries in question (Re S-B (Children) [2010] 1 FLR 1161, SC; North Yorkshire CC v SA [2003] 2 FLR 849, CA). In such circumstances, it is all the more important to scrutinise the evidence carefully and consider whether anyone, and if so who, should be included as a possible perpetrator (Re S (A Child) [2014] 1 FLR 739, CA). However, it is not helpful for the judge to give an indication of percentages as to the likelihood that one or other of the possible perpetrators was responsible and judges should be cautious about amplifying in this way a judgment in which they have been unable to identify a specific perpetrator (Re S-B (Children) [2010] 1 FLR 1161, SC).

In Re B (A Child) [2018] EWCA Civ 2127, and Re B (Children: Uncertain Perpetrator) [2019] EWCA Civ 575, the Court of Appeal gave further consideration to so called ‘uncertain perpetrator’ cases. In Re B (Children: Uncertain Perpetrator), the Court of Appeal urged a change of terminology from ‘pool’ to ‘list’. The following principles can be drawn from the two authorities:

The concept of a ‘pool’ of perpetrators is one that seeks to strike a fair balance between the rights of the individual, including those of the child, and the imperatives of child protection;

A decision by a court to place a person in a ‘pool’ of possible perpetrators does not constitute a finding of fact in the conventional sense in that that person is not proven to be a perpetrator but is rather a possible perpetrator;

Where there are a number of people who might have caused the harm to the child, it is for the local authority to show that in relation to each of them there is a real possibility that they did so;

Within this context, the question is whether it has been demonstrated to the requisite standard that a person is a possible perpetrator. Approaching the matter by considering who could be excluded from a ‘pool’ of possible perpetrators is to risk reversing the burden of proof. The court must consider the strength of the possibility that the person was involved as part of the overall circumstances of the case;

In doing so, in future the court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury;

The court should then consider whether it can identify the actual perpetrator on the balance of probability [omitted]. At this stage, the correct legal approach is to survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on a balance of probability. Evidentially, this will involve considering the individuals separately and together and comparing the probabilities in respect of each of them. Within this context, the right question is not ‘who is the more likely?’ but rather ‘does the evidence establish that this individual probably caused this injury?’ In a case where there are more than two possible perpetrators, the Court of Appeal highlighted a clear danger in identifying an individual simply because they are the likeliest candidate, as this can lead to an identification on evidence that falls short of a probability;

[33] The evaluation of the facts which will enable a court to identify the perpetrator of an inflicted injury to a child will be determined on the simple balance of probabilities and nothing more. Having considered the matter afresh in the light of Elisabeth Laing LJ’s observation, I am of the view that to go further and to add that the courts should not “strain” to make such a finding is an unnecessary and potentially unhelpful gloss which has outlived its usefulness…

[34] I suggest, therefore, that in future cases judges should no longer direct themselves on the necessity of avoiding “straining to identify a perpetrator”. The unvarnished test is clear: following a consideration of all the available evidence and applying the simple balance of probabilities, a judge either can, or cannot, identify a perpetrator. If he or she cannot do so, then, in accordance with Re B (2019), he or she should consider whether there is a real possibility that each individual on the list inflicted the injury in question.”

Only if the court cannot identify the perpetrator to the civil standard of proof should it then go on to ask of each of those on the list whether there was a likelihood or real possibility that they caused the injuries. Only if there is, should that person be considered a possible perpetrator;

In order to ensure that an imbalance of information regarding each of those on the list does not distort the assessment of the possibilities, in uncertain perpetrator cases, at the outset the court should ensure by way of case management that: (i) a list of possible perpetrators is created; (ii) directions are given for the local authority to gather (either itself or through other agencies) all relevant information about and from those individuals; and (iii) those against whom allegations are made were given the opportunity to be heard.

It is important to note that the court remains under a duty to consider the welfare of the child under ChA 1989, s 1(3) where that child has suffered injury and thereby significant harm, even where it is not possible to say who the perpetrator of harm is (Re S (A Child)). Note that the Court of Appeal has suggested that, in the context of the requirements of the Children Act 1989, s 31(2), the terms ‘non-accidental’ and ‘accidental’ injury are, in addition to being tautologous and oxymoronic, unhelpful, the threshold criteria not being concerned with intent or blame but rather with an objective standard of care (Re S (Split Hearing) [2014] 1 FLR 1421, CA).

Where the court is satisfied that the child has suffered significant harm, the threshold conditions under ChA 1989, s 31(2)(b)(i) will be met in relation to that child even though the court is unable to identify who within the pool of possible perpetrators inflicted the harm: Lancashire County Council v B [2000] 1 FLR 583, HL, in which helpful guidance is given as to how evidence needs to be tested to establish the threshold criteria for the purposes of s 31 where the perpetrator is uncertain. In determining whether a person is properly included in the pool of potential perpetrators, it is essential that the court weighs any lies told by that person against any evidence that points away from them having been responsible for the injuries (H v City and Council of Swansea and Others [2011] EWCA Civ 195). In these ‘uncertain perpetrator’ cases, the correct approach is for the case to proceed at the welfare stage on the basis that each of the possible perpetrators is treated as such (Re O and N: Re B [2003] 1 FLR 1169, HL). The House of Lords held in that case that it would be grotesque if, because neither parent had been proved to be the perpetrator, the court had to proceed at the welfare stage as though the child were not at risk from either parent, even though one or other of them was the perpetrator of significant harm. The judge conducting the welfare hearing should have regard to the facts found at the preliminary hearing when they leave open the possibility that a parent or carer was a perpetrator of proved harm and that conclusion should not be excluded from consideration.

[C78]

[C79]

[C80]

[C81-C82]

[C83]

[C84]

…

[C131/3]

I attach as annex 1 transcripts of the texts sent between me and the Mother that morning. I disclose these in good faith appreciating that they make me look bad. I felt extremely guilty and paranoid when I received the photograph and convinced myself that I must have done something to CA when I get her ready for bed that night. It was completely irrational as I did not do anything abnormal. I did not handle her heavily or roughly and I did not lose my patience with her. At no point did she show distress or cry or flinch away.

There was a telephone discussion with the Mother around the time of sending the text messages;

He could not “recall the specifics”;

He could not recall the content;

He discussed why he was worried he might have caused the injuries;

He could not remember if this was on the phone but it was definitely “brought up in hospital”;

When discussed at the hospital he “showed her how I held CA by burping her, to see if the marks would line up with the way that I held her and none of them did”;

He was worried he might have caused the marks because “I never held a new-born, always had that concern so when I saw the marks it reminded me of the concerns about holding a new-born, always thought they looked so fragile”;

“I always held her in a particular way if cradling, burping or changing her nappy I was thinking if the marks lined up with the way I held her that could have been something I caused, when I saw they didn’t line up I realised how stupid that was”;

When asked about what was said at the hospital he said “I was showing [the Mother] the way I would have held CA or burped her or changed her nappy and whether that lines up with any of the marks”;

He has 2 nieces and 3 nephews and “a lot of cousins that have a lot of babies” and described regular family meetings, when asked if handling those babies had ever been a problem he said “No, never”;

“I never really thought it was of any interest”;

Yet later agreed “if we knew what was in the phone calls it would change our impression of the text messages”;

“I believe my solicitor didn’t really give me the opportunity to put it in and I would have to deal with it later on;

When asked if he had actually told his solicitor about the conversation he initially did not answer the question and then said “No” and then slightly contradictorily “didn’t get into the depths of it and he said it would come up later on”;

He was asked why it was not in the second statement:

He agreed he had not told the social worker, the parenting assessor or the doctors about the conversation.

He was asked about the message that reads “you said I was to ruth” and agreed it should be read as “you said I was too rough”. He said it was “not really rough, heavy handed, probably about sweeping up things” he was challenged that in the context it was about being too rough when holding CA but denied that.

[C181/3]

… I went on to examine her limbs I found multiple dark purple lesions on the side of her L wrist, across her L shoulder and on her L ankle (not completely circumferential). These marks where [sic] not raised, they were non-blanching and appeared to me to be consistent with bruising.

Evidence of Injury: (continue on separate sheet if needed and use body maps provided):

Bruise left deltoid region - 2cmx1.5cm

Bruise beneath this (posterior deltoid region) 0.5cm x0.5cm

Small bruise posterior axillary line 0.5cmx0.5cm

Linear bruise, left forearm near wrist 2.5cmx0.5cm

Left leg, medial aspect shin, 2cm above ankle joint, bruise 0.5cmx2.5cm, linear

3cm below popliteal fossa left leg 0.5cmx0.5cm

[E120]

366 The testing of blood clotting is now complete as best as can be done in a child under 1

367 year of age.

368 No blood clotting disorder has been identified.

369 Only mild platelet function disorders have not been able to be specifically tested for and

370 therefore not diagnosed or excluded.

371 Mild platelet function disorders are very rare.

372 The bruising observed in CA should be considered to have occurred on the

373 balance of probabilities in a child with a normal blood clotting system.

[E16-E18]

General comments on bruising and bleeding

39 A lesion that looks like a bruise, does not blanch with applied pressure at the site, does not have the characteristics of other skin lesions, and resolves completely within three weeks (but for most within 10 days) is highly likely to be a bruise.

40 Most bleeding into the skin (bruising) is caused by trauma.

Mechanism/causation of the bruise

41 The following are general mechanisms of bruising in young children:

• trauma

• vasculitis and blood vessel wall disorders

• increased pressure within blood vessels

• underlying coagulation defect or bleeding disorder

42 CA’s bruising has no characteristics of vasculitis or increased pressure within blood vessels

…

44… When a bruise develops from a red mark, the darker colour change and failure to blanch under sustained pressure which is characteristic of a bruise will take place in almost all developing bruises by 24h, in the great majority by 12h, many within 4h and frequently within an hour.

45 A particular characteristic of bruising is that it does not blanch on pressure. If blanching occurs, a lesion would not be a bruise. Direct examination is important and preferable to photographs. Doctors should generally be able to recognise most bruises on direct examination.

…

Underlying coagulation defect or bleeding disorder

48 This can be spontaneous or with minimal trauma. More intense bruising limited to a specific site can have a contribution from an underlying disorder of this type.

[E41-E42]

[E42]

The resolving process/becoming fainter and/or smaller is a continuing process. The time for change evident on the photographs and shown in the Table is a bit more rapid than usual in that ‘bruise’ 5 has resolved (complete) by 4d-16h at most and by 3d 16h at the earliest. Occasionally, bruises resolve completely by 4-5 days and so any of these bruises could be like those but the intensity of the appearance on 25.04.23 would suggest that the period of resolution would be longer.

Considering the opinion in 1.9, it is relevant to reconsider whether the marks were definitely bruises or not. My acceptance of the marks as being bruises was based on the comment of the examiner ‘no blanching’, the appearance on photos, and the opinion of the observing examiner clinicians and their descriptive terminology. If they blanched, they would not be bruises. If they did not blanch [words omitted confirmed erroneous in cross-examination], they could be other lesions but that would be very unlikely, because their appearance does not readily conform to other skin disorders. Even when as is the case for may [sic] skin problems, the superficial appearance is an expression of a systemic disorder, there will usually be systemic upset. CA did not have systemic problems. She was well in that respect.

You make reference in your report (para 66) of it being uncommon for bruises to heal

within 4/5 days – how uncommon is this?

I stated “A bruise can be considered to be an injury to the skin that would be expected to resolve completely without there being any residual effect on the skin after a week or two”. I used the term occasionally in paragraph 1.9 above. My use of that term implies 5-10% of bruises.

[E43]

What is the significance of the unusual shape of the marks?

They are unusual. I have previously commented on how some vasculitic lesions may appear to be similar. Another condition with like skin features, though usually widespread and not affecting local sites, is cutis marmorata (not cutis marmorata telangiectatica congenita). This condition can be present for a couple of days to a few weeks. In most cases, the lesions blanch but I have seen it where that is not clearly the case. There would not be expected systemic associated features in this condition.

The appearance of the marks is not typical of bruises;

The blanch test for bruising may be insufficient to exclude cutis marmorata;

The absence of marks 2-3 days after birth does not exclude cutis marmorata but it is unusual;

The time to resolution would be unusual for bruising and is more consistent with cutis marmorata;

The marks not appearing again in some form is consistent with bruising and cutis marmorata; and

He is reliant on the diagnosis of bruising by the treating clinicians, if that is incorrect then he cannot express an opinion that the marks are bruising.

[E21]

Timeframe for bruise injuries

58 The most useful indicator of bruise age is from independent reporting of the time when bruising was first seen provided that the reporter is involved with the child’s care continuously. In these cases, the impact (if that is the case) to cause the bruising will have occurred in the previous 24h, most likely within the previous 12h, and frequently within 4h.

…

60 The time taken for a bruise to disappear (resolve) may aid in the timing of injuries. Although this varies for most bruises, for those up to about 30mm diameter it is within 10 days and occasionally up to 14 days.

[E24]

80 Bruises uncommonly resolve completely within 5 days of first being evident but most do so within 10 days. It can therefore be presumed that the impact that caused the bruising occurred between the 14.04.23 (when she was last seen by her Health Visitor) and 25.04.23.

[F4]

Mom, [] noticed mark on her shoulder while changing her nappy this morning (25/04/2023) at 9am. First time Mom had noticed this. Undressed her fully and then noticed mark on her left arm and left foot. No marks noticed yesterday while bathing her. Discussed with family members and advised to seek medical attention. Concerned that they may have been bruises. Slightly unsettled past few days but thought this was due to feeding. No concerns about CA being unwell. No concerns about limb movements . Generally sleeping in cot next to the bed at night and in Moses basket downstairs in the morning.

Have not noticed any injuries. No prolonged periods of crying.

[C342-C343]

I do not remember if we fully changed CA’s clothes that night. We did not bath her that night, but we did undress and change her…when we changed the nappy we would see her bare legs and her fests at the time were short so we would have seen her arms to and I would have noticed anything unusual.

There was nothing unusual and no marks.

The Maternal Grandmother says that she did not recall any marks when she stood next to the Mother and CA when the nappy was changed on each of 2, 5, 9, 12, 19 and 23 April 2023 [C329/10];

The Maternal Great Aunt says she saw CA having her nappy changed on 23 April 2023 and there were no markings on her tummy or legs [C348/7]; and

The Paternal Grandmother says she saw CA having her nappy changed on 24 April 2023, her arms and legs were exposed and no marks were seen [Z51/1].

[E20-E21]

52 CA was [a few weeks] old when she first presented with bruises. These were unexplained in a child

who developmentally was unable to effect bruising herself.

…

Force to cause bruises

55 Children who are relatively immobile rarely have bruises and only then if a clear accident

explanation is provided.

…

57 There is no literature source or experimental data which provides information on the force to cause bruising in what are commonly used physical units of force (e.g., Newtons). Paediatric

experience demonstrates that bruising does not occur in normal handling or what is sometimes

referred to as ‘rough handling’ in infancy and generally pre-mobile children. It does not appear to occur in common everyday activities like nappy changing, lifting in and out of seats or ‘bangs’

against cot sides or baths. Even fierce play activity with siblings rarely causes any bruising. Holding tightly or ‘throwing up and catching’ babies does not cause bruising. The force required

to cause that bruising is significantly in excess of normal handling by carers at this age.

82 The mother described: Just before 18:00h on 24.04.23, the father passed CA who was wrapped in a blanket to his mother. He was standing; she was sitting. He was not sure that she had hold of her completely and for a split second it looked as though CA might fall. He grabbed hold of her, more than he usually would, to try and safely put her back in his mum’s arms. CA did not stir.

The force as described in the episode would not be expected to cause any bruising particularly when swaddled in a blanket which would dissipate force.

…

88 In the absence of an explanation, it is more likely than not that this bruise was not caused by an accident.

[E32-E33]

Likely cause of bruises 1-6 considered as a totality.

147 The marks seen on CA are highly likely to be bruises. They would be caused by impact.

CA was [a few weeks] old and developmentally incapable of causing bruising herself.

…

150 The nature and pattern of the bruising is unusual in my clinical experience and in the literature for both accidental and non-accidental trauma with regard to the shapes of some bruises (1 and 5) and to sites limited to a postero-lateral ‘band’ extending from shoulder to ankle Figure 75 earlier). This band may be speculative as regards suggesting a particular mechanism approach as to effect this, CA would probably have had to externally rotate her left leg. At her age, a flexed foetal position like the rest of her body would be the norm.

[E23]

151 Bruises 3 and 5 are linear or have considerable parts that seem ‘straight-edged’ without there being a specific recognisable impact object cause.

152 The six areas of bruising are extensive in sites affected albeit in ‘one plane or band’ and in a child of relatively small length and girth.

153 In a child of [this] age presenting with six separate areas of unexplained bruising, an accidental cause is unlikely, and an inflicted cause by an adult more likely. I believe that a separate ‘unknown’ cause category, not included in either of the two groups above, is small.

154 Notwithstanding the above, and my concerns about the nature of some of the bruising and my inability to be more specific about likely causal impacting objects, inflicted injury by exclusion is the most likely explanation for CA’s collection of bruises.

[E44]

On the balance of probabilities is this an inflicted injury?

If the lesions were bruises and the evidence suggests that they were, on the balance of probabilities it would be an inflicted injury. However, I emphasise the basis upon which I considered the lesions to be bruises as in paragraph 1.10 [i.e. that they did not blanch on examination see [E42/1.10] also noted above]. If the no blanching entry in the medical record were not confirmed, then much of what I have specifically opined regarding the skin lesion significance would not be sustainable.

…

Taken in the round looking at the marks holistically is it possible that we simply cannot tell the causation of the marks to the requisite standard?

If the marks were bruises - and I would conclude that to be the case if clinicians who saw the marks were to testify that they considered them to be bruises on the basis of clinical test and their experience - then I believe the requisite standard of causation would be met. Otherwise, I would be less than convinced.

[C72/16]

…for a split second the Father wasn’t sure whether his mum had hold of her completely. It looked like for a split second she was going to fall so he grabbed hold of her, more than he usually would, to try and safely put her in his mum’s arms. CA didn’t even stir.

Normal night/ evening routine and no noticeable marks on CA.

[C131/2]

The Mother went to bed at about 9.00 and I took over at this point feeding and changing her and then settling her in her Moses basket downstairs. When I changed her nappy I saw nothing at all unusual or concerning. I then played on my play station until about 1.00-2.00 and fed her

again. I changed her again and took her upstairs and put her in her cot in our bedroom. The Moses basket stays downstairs. I think I woke the Mother up. She is a light sleeper. I then went to bed and slept through until about 6.30. I am a very heavy sleeper. I got up had a shower and a cup of coffee and left for work. I knew nothing about the marks until the Mother sent me a picture via text.

There is no clear exculpatory narrative advanced by either parent, their evidence about the post-text message conversation is muddled and imprecise (“messy”) which points away from them having knowledge of the cause they are not prepared to share;

The messages themselves are brief and sent at a time when, on their cases, they had no real idea what had caused the marks and in circumstances where they were new parents and in the Father’s case an inexperienced parent (the Mother was a nursery worker pre-birth);

I remind myself the Father only had two small texted photos of the marks, I have the benefit of larger format photos, a greater number and a more organised arrangement of photos;

Whilst the Father’s explanation in his first statement is short and does not mention the specifics of what he now tells the court it is not inconsistent, he says he was “paranoid” and convinced himself he must have done something;

That is also consistent with his mind being put at rest by seeing where the marks were on attendance at hospital; and

It is such an “irrational” thing to think that holding a child in a particular way could cause these extensive marks that having satisfied themselves that was not the cause it is understandable they did not think to mention it to the clinicians.

[E21/62]

Most bruises that remain in or close to the skin will not be painful after the effects of impact which would not usually last for more than a few minutes. These impact effects of bruising relate predominantly to the action and force that causes it. The pain relates to the force of impact, and occasionally in repeated trauma, to fear related to the event. The common reaction of a child under 3y to a blow or sustained pressure leading to bruising would be to cry at the time of each impact.

[E24/81]

An impact force (sustained or short time hit) sufficient to cause the bruise would cause almost

all infants of 23 days age to cry.