Derbyshire County Council v X & Ors

In this matter I am concerned with a fact-finding hearing within public law proceedings instigated in respect of a young child, A. A is now aged nearly 16 months of age. Her mother is X aged 21. Her father is Y aged 22. They are referred to as Mother and Father throughout this Judgment. They are in a relationship together but do not currently live together. They both share parental responsibility for A with the local authority Derbyshire County Council who hold an interim care order for A who is placed in foster care pursuant to that order.

The proceedings came about when bruising was noticed to both of A’s hands and fingers during the course of a planned home visit by the health visitor to the mother’s home address on 15.3.24.

A was then aged 11 weeks and a non-mobile infant. This triggered a sequence of events resulting in a child protection medical and a referral to Children’s Services.

Mother informed the Doctor , who undertook a child protection medical and examination of A on 15.3.24, that she noticed marks on A’s left hand around 8pm the night before, just before having a bath. A photograph was taken by the parents and the mother reported that the marks had faded by midnight. The Mother reported that as she was getting A undressed on 15.3.24 (in order to be weighed by the Health Visitor), she noticed the marks again. Both parents informed the Doctor conducting the Child Protection Medical that neither had left A unattended with any family members in the last week.

The Child Protection Medical documented the following bruising to A which she opined were “more likely non-accidental”

The marks were recorded in a diagram and clinical colour photographs were taken which appear at E17 ff.

As a result of the clinicians undertaking the child protection medical concluding that the hand bruising was more likely than not inflicted or non-accidental in nature, A was admitted to hospital for further investigations which included an array of blood testing.

A skeletal survey which took place on a second attempt on 19 March 2024 showed A to have sustained an undisplaced fracture to her left 6^th rib. This too was considered to be an inflicted or non-accidental injury.

As a result of the injuries, the local authority sought an interim care order which was granted by the Family Court at Derby on 20 March 2024, and at that time A, following discharge from hospital, was placed in the care of a family member who had been the subject of a positive viability assessment.

The court went on at subsequent hearings to give various directions for medical and other disclosure, and also gave permission for the parties to instruct two experts to report as to A’s injuries. They were Dr Olsen, who is a consultant paediatric radiologist, and Dr Crawford, who is a consultant paediatrician

Unfortunately the placement with the family member came to an end and A was placed in foster care not long after the issue of proceedings. She has remained there to date. Assessments were undertaken of the parents themselves who wish to have A returned to their care and of a number of family and connected persons carers. The parents continue to present as a couple and are now expecting their second child who is due in August 2025.

On 17 December 2024 the matter came before the court for a contested fact-finding hearing to determine how A had come to suffer the bruising and the rib fracture. At that hearing it emerged that there was a possible alternative explanation for the rib fracture, which was noted on the second endeavour of the skeletal survey on 19 March. At the first attempt on 18 March, the day before, A had been administered 2 lots of sedation but it had not been possible to undertake the survey as she was still moving and in distress. The parents were concerned that she had been crying for longer than usual when they attended hospital on 18 March, and that the treating medical professionals at the Royal Derby Hospital where she was admitted could have been responsible for causing the fracture whilst handling A.

That issue led to an adjournment of the hearing in December. A number of statements were taken from the medical professionals who had been involved, including two radiographers, and the treating paediatric doctor on 15 March 2024 (the doctor who had undertaken the task of administering sedation to A before the aborted X-ray). The NHS Trust was invited to intervene but declined that invitation although their legal representative attended two case management hearings. The Trust was entirely co-operative with the further case management directions set by the court to investigate this possible explanation, for which the court is grateful, and I know the parties have expressed this too.

The possibility of such mechanism along with the further statements having been a cause for the rib fracture (but not the bruising to both hands which the parties accept was sustained before A was admitted to hospital) was put in writing to the experts, Dr Olsen and Dr Crawford. They did not consider this to be a likely explanation.

At a hearing before me on 3 March the Trust explained that the treating paediatric doctor on 15 March 2024, who in any event had a very limited recollection of administering the sedation to A, was not available to give evidence as she was abroad and no longer with the Trust. The matter was already set down for a fact-finding hearing before me on 7 – 9 April 2025. The parties were given the opportunity to make further enquiries but no-one sought to apply for a witness summons for the treating paediatric doctor or for her to be compelled to give evidence remotely. Both the mother and father have shortly prior to this hearing, lodged position statements which set out they are not seeking for findings to be made against any of the health professionals within Royal Derby Hospital that they inadvertently or otherwise were responsible for the rib fracture. I have not therefore heard from any of those individuals although have the benefit of statements within the bundle.

The local authority have filed and served a schedule of findings which appears at A25 Save for the exception of the wording which follows after the Father’s surname in para. 4 (relating to culpability of the Trust, now no longer pursued by anyone), they stand by that schedule and seek a finding that either or both parents inflicted the bruising and the rib fracture; that both have failed to provide an explanation, and also pleaded is a failure to protect by the parent who did not inflict the injuries.

Both parents deny being responsible for the injuries and deny knowing who caused them or how.

Both have provided details of the events leading up to 15 March and neither assert that A was left alone or unsupervised with any other individual who would have had the opportunity to do so.

So the issues I have to determine are whether the injuries were inflicted, and if so, who caused them.

In the course of this hearing I have had the benefit of a bundle of documents running to about 1650 pages, a helpful opening note from the local authority and position statements from the parties. I have heard oral evidence from the following witnesses: Dr Olsen, Dr Crawford, Mother and Father. I have also had the benefit of succinct closing submissions and a helpful summary of authorities within the case law.

Before I turn in detail to the evidence I have read and heard this is now an appropriate point for me to set out the applicable legal principles.

The burden of proof lies squarely on the local authority who as applicant bring these proceedings. It is for them to prove that the child has suffered or is likely to suffer significant harm so as to satisfy the threshold criteria of section 31(2) of the Children Act 1989. The standard of proof to be applied is that of the simple balance of probabilities. neither more nor less. “Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies”: Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35

I am bound by what was said in BR (Proof of Facts) [2015] EWFC 41 - at paras 7.3 and 7.4, Jackson J set out the following guidance:

“… The court takes account of any inherent probability or improbability of an event having occurred as part of a natural process of reasoning. But the fact that an event is a very common one does not lower the standard of probability to which it must be proved. Nor does the fact that an event is very uncommon raise the standard of proof that must be satisfied before it can be said to have occurred.”

I remind myself that findings of fact must be based on evidence not speculation. The court must determine if the facts in issue have happened or not. There is no room for finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. Either a fact happened or it did not.

I remind myself that “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the Local Authority has been made out to the appropriate standard of proof: Re T [2004] EWCA (Civ) 558.

This was re-emphasised inRe Y (Children) (No.3) [2016] EWHC 503 Fam and it was spelled out very clearly further that:

“…amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision.

…cases involving an allegation of non-accidental injury often involve a multi- disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others.

…. the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability.”

Hearsay evidence is admissible but I must be careful about what weight I can attach to such evidence.

I remind myself of the revised Lucas direction: if the court concludes that a witness has lied about one matter it does not follow that he has lied about everything. A witness may lie for many reasons, for example out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure.  Counsel’s submissions should identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be  determined that  the only explanation for the lie(s) is guilt. 

I remind myself of what McFarlane LJ said in Re H-C (Children) [2016] EWCA Civ 136:

“To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.”

In uncertain perpetrator non-accidental injury cases, the approach has crystallised as a result of Re Y, V and B (Fact-Finding: Perpetrator) 2024 EWCA Civ 1034 .where the Court of Appeal reinforced with approval at para 52 what Peter Jackson LJ had said in Re B (Children): Uncertain Perpetrator) 2019 EWCA Civ 575 at para 49 of Re B:

“The court should first consider whether there is a ‘list’ of people who had the opportunity to cause the injury. It should then consider whether it can identify the actual perpetrator on the balance of probability... Only if it cannot identify the perpetrator to the civil standard of proof should it go on to ask in respect of those on the list is there a likelihood or real possibility that a or B or C was the perpetrator or a perpetrator of the inflicted injuries?”

I had a wealth of written evidence within the bundle. I now summarise the oral evidence I heard on 7^th and 8^th April. It is not possible nor desirable for me to set out each and every matter I have read and heard but I am satisfied I have considered all of the relevant material.

The first witness to give evidence was Dr Oystein Olsen, who attended remotely. He is an eminent expert in his field based at Great Ormond Street Hospital in London and has a huge amount of experience in paediatric radiology as his report and CV set out. Dr Olsen confirmed his report dated 5.8.24 at E44 and his two sets of replies to questions, dated 16.9.24 at E105 and dated 24.2.25 dated E110.

Within the written report at E44 ff, Dr Olsen had considered the material provided to him, including the parents’ accounts, and had stated:

This would take the occurrence of the rib fracture back to 5 March.

Dr Olsen’s oral evidence was observed by Dr Crawford who was present on the video link. He confirmed there was one fracture present only and no others. Dr Olsen accepted in cross-examination by counsel for the mother that you cannot draw an inference about bone fragility from the radiological evidence alone.

He confirmed that the window for the dating of the rib fracture was the 2 weeks before, from approximately 5.3.24 - 19.3.24. The timing could date back further but the further back you go the less likely this was. The mechanism involved had to cause a bowing of the rib, this could take place in even a fraction of a second. The terminology of non-accidental injury covered a wide array of scenarios and could include excessive and rough handling of the child. A child aged 3 months (as A was) could not have caused it herself. It was not birth-related.

Dr Olsen was asked by father’s counsel about possible mechanisms. It would have been caused by a compression of the chest. If the baby had been lying on her right side on an unyielding surface and a heavy object was on the child, this could lead to the bowing of the rib, it would need to be a heavy object with great velocity. A falling object could have caused this with momentum caused by sufficient mass and velocity at the time of the impact. I pause, as neither parent has suggested anything fell or was dropped onto their daughter.

Dr Olsen’s evidence did not deviate from his written conclusions. His oral evidence was clear and he would not be drawn into matters outside his area of clinical expertise such as A’s likely pain reaction which he was clear was a matter for Dr Crawford to address and not him.

Dr Crawford was next to give her evidence, having been present for that given by Dr Olsen. She is a highly experienced consultant paediatrician and has very considerable and lengthy expertise in her field as a clinician and an expert witness. She too appeared remotely. She confirmed her undated report received on 5.8.24 at E67, and her replies to questions dated 18.2.25 at E106.

Within her written evidence, Dr Crawford concluded:

Dr Crawford confirmed, after hearing Dr Olsen’s evidence, she had no changes in her conclusions to report.

Dr Crawford confirmed she had been sent a series of photographs just before she gave her evidence, these were (a) 4 photographs taken by Mother at a supervised contact session on Friday 4.4.25 which she believes shows a small bruise to A’s right hand ring finger above the knuckle, (b) a photograph taken by the contact worker at that same session (c) a photograph taken by the foster carer on 4.4.24 and one on 7.4.25. Dr Crawford considered the mark to the finger, which appears to be pale-reddish and small, to be a non-specific mark.

She confirmed that the mechanism for the bruising to A’s hands and the rib fracture last year would have consisted of two separate, that is individual mechanisms, and represented two incidents. A was likely to have cried for a few minutes when the bruising was sustained. She was likely to have screamed when the rib fracture occurred. It would have been painful, but babies quickly settle down and such fractures are therefore very difficult to diagnose. Babies learn to breathe in such a way that keeps their ribs still, it is movement which causes pain from a rib fracture. She confirmed as set out in her written report that a carer would have raised they had caused excessive force at the time it happened.

Counsel for the local authority asked Dr Crawford about the parents’ account that on 14.3.24 they saw the marks which they say then faded and came back the next day. She said she did not believe they would have faded altogether, the colour may have changed a bit and then the colour returned. They would have still been there. They looked like quite marked bruises.

She had considered the differential diagnosis of metabolic bone disease due to prematurity very carefully but A had none of the risk factors for this. She had taken into account the blood test results. She did not believe A had metabolic bone disease of prematurity. Rib fractures in babies were not common and have a strong association with non-accidental injury. The force used would have been more than rough handling. It was rare for a health professional to examine a baby and be able to say there are rib fractures, the example she had cited of a nurse noticing fast and shallow breathing and considering a rib fracture was present was rare. If a carer was not present when the rib fracture occurred they would be unlikely to suspect the child had a chest injury with a fractured rib.

Dr Crawford was asked about the mark photographed by mother and others from last Friday. She commented that pre-mobile babies (as A was, in March 2024) without a blood disorder do not bruise themselves. As they get older, they get more knocks and bangs, if the mark (which she considered non-specific) were a bruise it was likely to have been accidental in some way.

Counsel for father put to Dr Crawford that when the bruising occurred if another carer was not in the room would they have realised what had happened? She said that they may have heard A crying but not realised. The absent carer would not have known what occurred. She considered that babies do settle very quickly.

I pause to note that it was not directly put to Dr Crawford on behalf of either parent that A was a child prone to easy bruising.

That concluded the expert evidence in the matter.

The third witness to give evidence was A’s mother.. She confirmed the following documents: her response document at A9, her further response document dated 19.10.24, her timeline at C43, her statement dated 30.4.24 at C78 and her further statement dated 17.1.25 at C247.

Mother confirmed she was happy to be pregnant and seeing her daughter’s heartbeat on the scans and seeing her develop had made her happy. She knew it wasn’t A’s fault she wasn’t gaining weight after birth as she should. She had done combination-feeding, breast-feeding her and giving her formula milk. She had not found looking after her difficult. She denied having caused the bruising or the rib fracture.

She had first noticed the hand bruising on 14.3.24. Mother had felt really ill and had been sick, she had got into the bath. A had always been within her sight - as you can see from the bathroom door into the bedroom. However she said she could not see A when she had got into the bath. Father had then brought A in to the bathroom a few minutes later, informing her he had cleaned her up after a poo. A was now undressed. When he got her into the bath they had noticed the marks on her. They tried to open her hand which was shut. Mother said the colour started to ease and faded a bit. She was monitoring it but knew the health visitor was coming the next day. She had told the health visitor who wanted to weigh A first, that she had concerns, when asked.

Mother explained she had seen a mark to A’s hand last Friday (4.4.25) at contact when eating.

Mother was asked a number of questions by counsel for the local authority. She did most of the caring for A. Father would never take A to the shops or the park by himself. She had questioned him after the events of 15.3.24. She wanted to know what had happened to her daughter. He had told her he hadn’t done anything. She hoped he had not lied to her.

Mother said she had felt poorly on 13.3.24 although had not put this in her timeline, she had a headache, so went to bed early at about 8 or 9pm. She had done A’s night feed. She said that Father had been next to her in bed and they shared the task, feeding her half the bottle each, so they both fed her, he moved A back to the Moses basket, and she had cleaned her bottom.

On 14.3.24 she had been sick before she had had her bath. She wanted to clean herself up. Earlier on, Father had gone out, leaving the flat at around midday, returning at 6 or 7 pm, so she had been looking after A for 6 or 7 hours. Mother said she was used to looking after her siblings as a child. That was harder than being an adult caring for a new-born baby in her opinion. She agreed that this was the worst she had felt since having A, who had been discharged to her care on 1.2.24, so about 5 weeks ago. She had only noticed bruising to A’s left hand.

It was put to Mother that Father had said in his police interview that he had lifted A by her underarms to hand her to Mother in the bath. The mother agreed if this had happened she would have told him not to hold her like that. He had said to her he had not noticed the bruises.

It was put to her that she had said in her police interview at G96, that the marks had faded by midnight, Mother said they had faded but not completely gone. She hadn’t taken any further photos of this as she was trying to get to sleep. If they had stayed the same colour she would have got help and dialled 111.

Mother denied finding things challenging or difficult or frustrating. She had never lost her temper with A. She was upset A wasn’t gaining weight as she should have, but she knew it wasn’t her, that is, A. Mother had thought it was her fault. But she was expressing her breast milk into a bottle so could see how much she was giving her.

Mother was asked about her view about whether the hospital staff had caused the rib fracture. She admitted there was a part of her which continued to think this. She denied protecting the father. A had never cried loudly when in her care, the entry at H53 was just A’s voice was coming through (which I take to mean developing).

Mother was clear in her evidence that A had never cried as in the form of a scream or in a high pitched manner. However in her evidence she said she had heard A cry in this fashion at the hospital on the day of the aborted skeletal survey, 18.3.24. She agreed - with discernible reluctance - that the photograph taken by the father on 14.3.24 of the bruising shows A crying but said this could have been because she was cold and being bathed.

On Day 2 of the hearing, 8 April, I heard evidence from the fourth and final witness, Father. He confirmed his response document at A12, his first statement dated 2.5.24 at C96 and his second statement dated 15.1.25 at C245.

Father confirmed he still did not know what the police decision was in respect of their investigation. He confirmed that Mother had done most of the care for A, he did some tasks but Mother would be in the same room most of the time.

Counsel for the local authority asked a number of questions in cross-examination. He was asked about his account in his statement at C99 that he had made up and fed A her bottle on 13.3.24 (the day before the bruises were noticed by the parents). He was asked if he had performed the task entirely on his own as the statement set out. Father said in the witness box in fact both he and Mother would have fed A, so it was a shared task in essence. He replied that he could not really remember now, a year on. He said he was not going to stop Mother from being the main carer if that was what made her happy.

On 14.3.24 he said he had gone out and was with friends in Swadlincote when he was contacted by the mother to say she was unwell. He replied, when asked in the witness box, to say as soon as he had got her message he went, he had to walk and it took him an hour.

He then said he had set off ½ an hour after she contacted him at around 3 or 4 o’clock and was back by six or seven pm in the evening. The father was quite vague about what he was doing when she contacted him, saying he was sorting something out but could now not remember what it was.

However, he was much clearer when asked about events in the flat, that she was not being sick for as long as 5 or 10 minutes (which is what the mother had said in her oral evidence). He described taking A out of her pushchair and getting her undressed and ready for the bath. Mother was running the bath. It would have taken him 2 minutes to undress her, she was wearing mittens which were attached to her babygrow. There was always lots of fluff in her hands. He did not notice any bruises and did not look at her hands. He said he had carried her cradling her in his left arm (he is right-handed) to the bathroom and as he passed her to A’s Mother, who was in the bath.

He agreed he held her under both arms to do this. This is what he told the police in his interview on 25 April 2024. Father was clear A’s Mother told him not to hold her like that, although it was put to him she does not recall this. She corrected him but it was the only time he had ever held A like that and it was not for long at all, just to pass her over.

He was asked about the photograph he had taken at 8.25pm that night at C127. He agreed that showed A crying, and he said she had cried when she got into the bath. A had not cried excessively. He was asked about how he had come to think he recognised his daughter’s cry at the hospital on 18 March when the skeletal survey was due to take place but was aborted. At this point in his evidence, as at others, Father presented as flat, emotionless.

He agreed that he had told the police that by the time of the 11pm or midnight feed that night on 14.3.24 he had said the bruises had “completely” faded. When it was put to him that Mother had said in her oral evidence they didn’t fade completely but were still present, Father said he was not sure. It would have been a dark room and you couldn’t see everything. He was steadfast that he hadn’t squeezed A’s hands or her side. He had not seen any marks to her right hand in the bath, it was just to the left.

In answer to questions put on behalf of Mother, he agreed that the mother was a very good mother and didn’t consider she was finding it exhausting. He said “we got the same amount of sleep” although it was put to him the feeds were every 4 hours and he was only there 3 nights per week on average. He said with A when you put her in the bath she cries but then when you start washing her hair and body she settles down.

Counsel for the child asked a number of questions. Father was asked about the events as well as his own mental health. He had been diagnosed with anxiety and depression at the age of 11, and was prescribed medication, he stopped taking this at around the age of 14 as it was making things worse in his view. However, becoming a father to A had not made him more anxious. He was unemployed but working for his dad on some days.

He explained the layout of the flat as you could see, when using the toilet or in the bathroom into the bedroom, across a hallway, if the doors were open, although not if you turned around to run the taps on the bath as the mother would have done. He accepted when undressing A on 14.3.24 it was the first period of time he had been on his own with A (with the mother nearby in the bathroom). However he said he wasn’t thinking anything when asked if he thought this was great or did it make him feel worried. This was the first time A had had a bath with the mother, normally they used her smaller baby bath to bath her.

There was no re-examination by Father’s counsel but the court asked some questions of its own, before giving all counsel the opportunity to ask further questions arising.

The father said when asked that mother had told him not to hold A like that when he passed her over holding her under both arms, he said to Mother, “I didn’t know that - I am trying to pass her over.” A had cried when placed in the bath and this was not out of the ordinary, after a couple of minutes she had settled.

He could not remember who had noticed the marks to her left hand whether it was he or Mother. He had put water on A, dried his wet hand then got his phone which was in his pocket to take a photograph. He agreed she was crying in the photograph but did not seem to understand when the court asked him if that contradicted what he had said earlier, that she was crying in the photo because she was going in the bath, as this had already happened.

The court was troubled by Father’s account about this and the discrepancies, including in respect of when A had cried – was it once, or twice?

I then heard closing submissions from all parties.

Counsel for the local authority referred me to the schedule of findings at A24 of the bundle and that their case had not changed, save that neither they nor any other party sought a finding that A's injuries were caused by an agent or employee of University Hospitals of Derby and Burton NHS Foundation Trust. To that extent paragraph 4 of the schedule is amended.

The local authority relied upon the medical evidence. There were two mechanisms for the injuries: squeezing of the hands and a squeezing of the side. Arguably, the bruising to each hand could represent two different incidents, or could have have been caused during the course of a single incident. Bruising cannot be medically dated. I was taken to the factual inconsistencies within the parents’ evidence although reminded it is not for them to prove anything.

The local authority asserted that each parent downplayed the difficulties arising from A’s premature birth, her failure to put on weight, the mother feeling sick and not having much sleep given the feeding pattern of a newborn baby. A was three months old but of course born premature so her feeding pattern was similar to a newborn.

The local authority did not seek to blame one parent more than the other and were not trying to persuade me that it was possible to make a clear finding that it was the father who was more likely to be responsible than the mother for A's injuries, or vice versa.

However it is plain that if it were not one who had caused the injuries it must have been the other. Counsel said that in relation to its pleading that there was a failure to protect, this would depend upon the scenario and the findings that the court made in relation to the events in question. For example, if the injuries had occurred in Mother’s care and Father was not present he would not necessarily have known anything had happened and it would be more difficult to find he had failed to protect A. The court was invited to consider making a finding as to whether either parent had been dishonest about the explanation provided.

Counsel for mother invited me to survey the broad canvas of evidence, as the law requires. I was taken helpfully to detailed entries within the bundle of evidence, which contain a number of undisputed positives, to which I shall return.

In particular I was taken to an entry at H282 of the health visitor notes dated 19.2.24 which sets out the mother was being very realistic and honest about the situation, she was tearful and concerned about A and wanting the best for her, putting her daughter above herself. This shows not only the mother’s commitment to her daughter but a commendable honesty with professionals and seeking out help.

It was submitted that nothing points to Mother being the perpetrator of the injuries. The medical evidence was that the rib fracture could be perpetrated within a fraction of a second: Dr Olsen. Doctor Crawford said that there could be two separate mechanisms for the rib fracture and for the bruising, and they could all be part and parcel of one incident of inappropriate behaviour towards A.

If the mother did not know that A had been injured, how could she be pursued for failing to protect or for failing to provide an explanation? Doctor Crawford had said even a trained health professional would not easily pick up that a child had suffered a broken rib. The evidence showed she was immediately concerned about the bruising she knew the health visitor was coming the next day and was ready to meet her, bringing the marks to the health visitor’s attention.

Counsel for the father, submitted that although it was said that he had difficulty in recalling the events, but he was clear he had not harmed his daughter. He did not say that the mother was responsible but it was accepted that the medical evidence is such that it must be either the mother or he who had caused A’s injuries. He had limited caring responsibilities and therefore less opportunity to harm his daughter. If he were not present at the time A was injured he would not necessarily know this had happened. The evidence is A would have settled very quickly after the bruising and after the repression. It remains his position that Mother is a very good mother. The medical evidence is only one element of the case and the court must consider the parents’ cooperation which has been very good throughout the course of the proceedings and the positives within the parenting assessment. Neither party is seeking a finding against the other.

I pause to note that neither parent submitted in closing that the non-specific mark to A’s right hand finger observed and photographed in contact on 4.4.25 was of any significance to the injuries in March last year.

On behalf of the child, counsel said that the guardian had listened carefully to both parents’ evidence but she was not putting a positive case on behalf of A that the evidence supported one rather than the other being the perpetrator. There are many positives about the parents. There is an absence of risk factors. When one reads in full the health visitor notes it can be seen that the parents were doing a very good job. I was reminded of the key legal principles and it was pointed out that a finding that one parent failed to protect is a serious finding not a bolt on or some form of automatic result, and should not be assumed in the light of the relevant caselaw.

The medical evidence was challenged at the hearing but essentially the opinion of both experts was unchanged. I am satisfied that proper medical investigations, including blood tests, have been undertaken to consider and exclude any underlying cause of A’s bruising and the bony injury, and that consideration has been given to the fact that the mother is a carrier of beta thalassemia.

Although I can of course depart from conclusions reached by an expert, I find that this is a case where the conclusions of Dr Olsen and Dr Crawford were clear and unequivocal and in line with a body of reasonable medical opinion. They were challenged by both parents in cross-examination but did not alter their respective opinions.

In relation to the bruising to A’s left and right hand, I accept the evidence of Dr Crawford that as a three-month old baby (born prematurely at 30 weeks weighing 984g then, weighing 2.55 kg and on the 0.4^th centile for weight as of 15.3.24 at the child protection medical) she could not have caused the injuries herself. I accept it is more likely than not that for the bruising to have been sustained, an adult squeezed the hands very hard indeed, with considerable force, outwith normal handling of a baby.

Whilst this could have been caused by two separate mechanisms (a separate squeeze for each hand) I consider on the balance of probabilities the bruising to both hands are likely to have been caused on one occasion and by one application of force. I accept that A would likely have cried out so the adult squeezing her would have known she was hurt. A carer who was not in the room would not afterwards have known that anything was wrong. I accept the bruising cannot be dated and that the parents noticed it on the left hand on the evening of 14.3.24, and that the health visitor (whose evidence was not challenged) noted bruising to both hands on 15.3.2.4 in the morning. I accept Dr Crawford’s expert opinion that the bruising noted in the evening of 14.3.24 would not have faded altogether later that evening, they would still have been visible and she described them as looking (from the clinical photographs) like “quite marked bruises.”

In relation to the left sixth rib fracture, I accept the expert medical evidence which is that this was likely to have been caused by a forceful squeeze, from side to side, using excessive force by an adult. A could not have caused this herself. The perpetrator would have been aware their action was inappropriate. It was more than rough handling, to cause a rib fracture in a baby is a rare event and requires the application of considerable force. I accept Dr Crawford’s evidence that A was likely to have screamed out when it occurred and it would have been painful but she would thereafter have settled. A carer who was not present would not have known afterwards that anything had happened.

I am satisfied that on the balance of probabilities that both the bilateral bruising and the rib fracture were inflicted injuries. I have not been provided with any innocent explanation for how they might have occurred.

The position in relation to the hospital was explored in careful detail leading to the adjournment of the December hearing and further written evidence was obtained. The parents were no longer seeking findings against any of the hospital professionals in relation to the rib fracture and this was clearly confirmed prior to the start of this hearing.

For the avoidance of doubt, I discount the possibility that any of the health professionals involved in undertaking the skeletal survey of A were responsible full having caused the rib fracture. Having read the relevant statements within the bundle and the evidence of the medical experts I have no hesitation in rejecting such a possibility.

Having considered the timelines and explanations of the parents as to who was present and caring for A within the relevant time frame from the 5th of March 2024 onwards, I find in conjunction with the medical evidence about this that the list of perpetrators boils down to A's mother and A’s Father.

I turn to survey the broad canvas of the evidence I have about Mother and Father. Mother has had a problematic childhood which is not in any way her fault. She was placed in foster care from the age of 11, going on to form a good bond with her foster carer, and even taking their surname. The history is more fully set out within the mother's own statements and also within the parenting assessment at C164 onwards of the bundle. She has lived in independent accommodation since 2021 and considers she has overcome her teenage mental health difficulties which were linked to her adverse childhood experiences. A was born when she was aged 20.

The birth and its aftermath was a difficult - and I expect scary - experience as the mother needed a C-section and A was born prematurely at 29 plus 6 weeks which is worrying for any parent – she needed to remain in intensive care transferring hospitals to the Derby Royal. I accept, as mother’s counsel points out, that the observations of the mother whilst A was in ICU were positive. When A was discharged home to her mother's care on the 1st of February there was an intensive period of visiting by the health visitor, due to A's prematurity and what was described as faltering weight gain. The mother breast fed her and also fed her bottled milk so it was combination feeding. I have been referred to positive observations, including for example the observation of breastfeeding on the 4th of March which says good weight gain 33 grammes per day - breastfeeding observed - lovely latch to breast - A content to suckle - Motherconfident to show me - Mother appeared very skilled and natural with breastfeeding - good parental interaction.

I was referred to an entry dated 19th of February 24 at H282 which I do not repeat but which I agree shows that the mother was wanting the best for her daughter and was tearful as she was concerned about her. I accept that this shows how mother was being honest with professionals trying to help her. But it is not a failure to admit you are struggling. I give the mother credit for this and do not hold it against her - quite the contrary.

Since the issue of proceedings, the observations of the mother’s care of A and her undoubted deep love and affection for her during family time and in the parenting assessment are very positive. I also remind myself that she has entirely cooperated with these proceedings and with the process and is only aged 21.

Father’s childhood was less problematic than that of the mother’s, although he struggled when he was of secondary school age. He is reported to have dyslexia and had teenage anger issues, leading to him being excluded from school. Childrens Services were involved for a period of time.

His relationship with Mother appears to have been a stable one. He was involved with A following her birth and has been an interested father, although the health visiting notes and those from other professionals prior to the issue of proceedings focus more on the mother as she was undoubtedly A's primary carer and they lived separately. The health visitor comments he was in bed on a couple of occasions when she visited. The observations of Father caring for A and working as a team with Mother, during family time and in the parenting assessment, are positive. I accept that he genuinely loves his daughter, and he too has entirely cooperated with these proceedings and with the process. He is now aged 22. The parents understandably wish to be a family and parent together.

I agree there is an absence of risk factors, which can in other cases before the Family Court involve issues such as domestic abuse, unmanaged mental health issues, and substance abuse. I approach this matter on the basis those issues do not arise here.

I consider the evidence I have received from the parents, which is extremely important, as the medical evidence cannot be viewed in isolation.

I accept that all of the evidence provided points to the mother providing very good care for A who was discharged home only as of 1st of February 2024 to her care. Mother was keen to point out to the court that as she has, as a child, been used to caring for her younger siblings, that caring for A was not hard, indeed she referred to it as easier as she was now an adult herself. I did detect that the mother appeared to be minimising how challenging the situation must have been for her. I am not sure she was being entirely honest with herself or with the court about matters at that stage in her evidence, which I accept is a stressful process and when she would have felt under great scrutiny. When she was asked about being unwell on 13th and 14th of March, she said she was used to feeling headachey and then sick when having her menstrual period.

I consider I am able to accept Mother's evidence that it was she who noticed the bruises to A’s hand - her left hand - first when Father passed A to her in the bath. There are certain other aspects of her evidence which I am less able to accept.

It seems odd that Father has consistently told the police and, during this fact finding hearing, the court, that he passed A to her whilst holding her underneath her arms - yet Mother did not seem to have a specific recollection about this. An odd thing if this happened yet she, as a mother who was observed to be confident with her little baby, and who does not appear to have fully trusted the father to care for A by himself, does not recall it.

The father says the mother told him not to hold her like that, the mother agrees she would have told him this if she saw him doing this but has not mentioned this in her police interview or any of her statements. So there is a discrepancy in their respective accounts. I accept the father would have had a clear recollection at the time of his police interview on the 25th of April. I accept he did hold A in this way and that it was inappropriate for such a small, premature baby. I consider this demonstrates his inexperience. A had only been discharged 5 weeks ago, she was a very small baby still, and it is unfortunate that by now the father did not know better.

I turn next to what both parents have told me about A crying. Neither parent reports a memorable incident when A was crying or screamed out. I have considered the mother’s timeline and both parents’ accounts of who was present with A in the lead-up to 15 March. I note there is an entry at H53 when the paediatric neonatal nurse said that the mother had said A had cried loudly. That was on the 15th of February by which time A had been in her mother's care for about two weeks.

When it was put to Mother that the photograph taken by the father on the 14th March shows A to be crying, Mother said this could be because A was cold as she was not wearing any clothes and was in the bath, it could be because her hand hurts. She said “I can't speak for her.”

Mother expressed this in quite a different manner to how she had spoken about her feelings on becoming a mother at the beginning of her oral evidence. She appeared oddly detached at this point in her evidence, which I was struck by, as at the beginning of her evidence, Mother’s love and warmth for her daughter was very evident.

Mother said A would cry but would settle upon being given a dummy or a bottle she had never cried in pain in her care. It seemed to me that there were points in her evidence when Mother was indeed downplaying the challenges she was facing in undertaking virtually all of the primary care for her daughter. On this day, the 14th of March, and it seems the day before, she was feeling unwell.

It seems surprising that the parents asserted that the marks to A's hand had faded and had completely gone by the midnight feed that evening. This is what the father stated initially and is also what Mother said in her police interview at G96.

Yet in the witness box both parents’ accounts developed, and each said the marks had faded but had not completely gone. The court is troubled by this aspect of the evidence from both parents. I note there is no photograph to demonstrate one way or the other, but I am mindful of Dr Crawford’s evidence which is that the marks would not have disappeared. Moreover at the time of the child protection medical the next day A had significant bruising to both hands.

So I am troubled by aspects of Mother’s account and I am not satisfied that she has told me about everything that really happened up to the 15th of March when the health visitor came. There were some aspects of her evidence which were less credible than others.

In relation to Father's evidence, while I make allowance for the fact that giving evidence to strangers in a courtroom is a daunting task, and that over a year has passed since the events in question, I found him at times to be a witness who minimised (almost to the point of dismissing) the very real challenges of looking after A (which fell to Mother). I am not convinced he was as motivated a father as he could have been in March last year. Even if it worked for the couple for the mother to assume primary care, it does seem to me as though he could have done more, although I note the mother herself doesn’t lay this criticism at him.

Within Father’s written evidence at C 99 he stated that on 13th March he gave A a bottle whilst Mother was sleeping, whereas in his oral evidence in court he said they would have divided up the task of giving her the bottle. His statement was signed on 2nd May 2024. He said he couldn't really remember, when asked why his account was different in court. It was not clear to me whether he is now trying to say that he was never left alone to care for A - or whether it is simply a case of his memory not being very good as he claims.

I am concerned about the discrepancies within the father’s written evidence, particularly in relation to the timings of when he got the mother’s message saying she was ill. He originally stated he went straight back, if so he would have been at her property by about 4 or 5pm, but in his police interview, and within statement dated 2^nd May at C100 he said he got back at 7pm. His account has varied as to whether he set off by foot as soon as she contacted him or whether he had something to do (although he could not say what) for half an hour before leaving. I remind myself that the timing of the photograph he took at C127 is 20.25 hours. I am troubled as to whether the father has now sought to say he was in fact left with care of A for a much shorter window of time than he had originally stated. I bear in mind he does not assert a positive case that the mother caused the injuries, and nor does she say it was him.

I’m also troubled by the discrepancies in the father’s account about A not having ever cried in an unusual or loud manner, given what he said to me about her crying in the photograph, which of course is a photograph only and has no audio. I am mindful that the photograph is only one piece of the available evidence and that I must not view evidence in separate compartments.

Based on his answers in the witness box, she cried twice, once (but not in any way out of the ordinary) getting into the bath and then again afterwards after he had dried his hand and got his phone out. This does not fit with the mother’s account, which does not match what can be seen in the photograph.

So I come to the unfortunate conclusion that neither parent has been honest with me about A’s crying.

In relation to the inconsistencies – the timing of father’s return to the mother’s flat, the way the father held A when passing her to the mother in the bath, their accounts about her crying, and what the marks looked like by the late night/midnight feed, I consider and apply the revised Lucas direction. I have considered carefully whether the parents may have given different accounts out of shame or fear or other reasons such as loyalty. I accept entirely that a lie itself is not proof of guilt. These do not seem to me to be merely collateral matters and relate to crucial events surrounding the discovery of the bruising.

I remind myself the burden lies on the local authority and it is not for the parents to prove anything. I accept the parent’s accounts are very important and also there is a wide canvas of evidence to weigh up, including all the positives about how committed the mother in particular was to A and the good care she was providing, and all of the positives in the parenting assessment about both parents. However I am not persuaded that either parent has given me an unvarnished, warts and all account of what has happened.

This is a young vulnerable non-mobile baby who sustained significant bruising to both hands prior to 15 March 2024 and sustained a rib fracture between 5 and 19 March. These are uncommon injuries and the medical evidence is that they were inflicted. Someone caused them, whether in a moment of frustration or exhaustion or perhaps malice. Yet neither parent is able to pinpoint an incident when A cried out or screamed in pain. I accept such injuries can be caused in a flash – less than a second, a fraction, said Dr Olesen for the rib fracture, and the bruising can also be caused in moments.

I am further troubled by the evidence of the mother, because if her account is to be believed, she could see and hear A when she was in the bathroom (save for when she turned around to turn the taps on), yet she noticed nothing. If A was injured by the father at that time, around 8pm, it is likely that A would have cried out when her hands were squeezed. Yet the mother did not note anything of concern. I’m also troubled by the fact the father undressed her and removed her mittens attached to the babygrow and did not spot any marks. Neither parent has suggested that A was injured in the process of being carried to and placed in the bath with the mother, nor in the bath itself. Nor do I have a satisfactory explanation as why she is apparently crying in the photograph taken after the bruises were noticed.

Having considered all of these matters, I find I cannot accept the evidence of either parent about the events in question.

I find the bilateral hand bruising and the rib fracture were inflicted and were either caused in one incident (but two mechanisms) or possibly in two separate incidents, as I have already set out. Considering all of the evidence, the most likely timing for the bruising having been sustained is on 14 March when the parents (the mother first, it seems) noticed it. The rib facture was on the balance of probabilities sustained at the same time as the bruising or earlier in the time-frame from 5 March onwards when A was in the parents’ care.

I have considered whether I am able to identify a perpetrator.

The mother did the majority if not virtually all the caring and it could be said she had the most opportunity, given that the father stayed over roughly 3 (though not necessarily consecutive) nights per week. She had had a C-section, which is a big operation, she was getting little sleep and caring for A, whose weight was faltering, which was a significant responsibility and burden. She was only 20. She was feeling unwell on 13.3.24 and worse on 14.3.24 when she was sick. She had contacted the father but it seems to have taken him a while to get back to assist her and to provide support. On his account when he did so, he held A in a way which the mother recognised as being inappropriate and he says she chided him for this. She seems to have been protective in many ways, but as I have remarked, I did detect her downplaying how challenging things must have been for her at times, especially when she was feeling below par and the father clearly was much less capable than her and not, I find, particularly proactive.

Could she, in a momentary loss of control, have inflicted the injuries, during one incident (both the bruising and the fracture) or possibly two separate incidents (the fracture then the bruising) when the father was not present, possibly before he arrived at the flat in the evening of 14 March. Or even at a time when he was present in the flat (which it is agreed is not a large space) but not aware of anything untoward?

I’ve also got to consider the fact that the mother noticed the bruising first, and was rightly concerned. This happened after the father had had sole responsibility for A for a very short period of time as she was vomiting, running water for a bath, and then having a bath. He had to physically get A out of her babygrow and mittens, clean her and bring her to the bathroom. He had done only very limited tasks before and the mother had always been there close by; he now says the day before in fact they had both divided up the task of giving A her bottle. Some new fathers can feel resentful of the huge changes a newborn baby’s arrival brings. Father was inexperienced. I find he presents as much less mature than the mother, and had less experience with young children than her and he may well have felt pushed out.

Could he have inflicted the injuries on 14 March when the mother was unwell and in the bathroom and not as vigilant as she might otherwise have been, so that she did not know A was hurt? This would mean the bruising and rib fracture happened in the course of one incident. There does not seem to have been any other occasion when the father would have had the opportunity to cause the injuries, in the absence of the mother who was generally present and on hand.

Another possibility is that the parents have colluded with each other and that the court has far from a clear picture about what in fact happened.

I recognise that to be able to identify a perpetrator would make it possible to identify the real risks to A (and her unborn sibling) and the steps to protect her and it will help professionals working with the family, and will be of value to A in the long run: per Baroness Hale in Re S-B 2010 1 FLR 1161

Having considered the possibilities in the light of the less than honest accounts I find I have been given by the parents, I am unfortunately unable to identify the perpetrator from the list of two.

I find there is a real possibility that the mother was the perpetrator. I find also there is a real possibility the father was the perpetrator.

Without seeking to reverse the burden of proof in any way – it lies at all times on the local authority - I have thought very carefully about whether I can exculpate the mother but for the reasons set out above I do not consider I can.

I have thought very hard also about whether it is possible to exculpate the father but again, I cannot.

I am unable to pinpoint the precise incident or incidents, if there were two, in which A sustained her injuries. The evidence about the bruising points to it being more likely than not that it occurred on 14 March 2024. On balance, I am able to find it is more likely than not that the same perpetrator caused both the bruising (to both hands) and the rib fracture.

I find it was one of the parents who perpetrated the bruising and the rib fracture. That parent and the other (non-perpetrator parent) have both failed to provide an honest explanation about what happened. I make no finding about a failure to protect, in the circumstances. I have considered whether there was a failure to seek medical attention promptly but given that the parents knew the health visitor was coming the next morning and the mother appropriately brought the bruising to her attention, I make no finding under this head.

I urge both Mother and Father to reflect on this judgment and to consider their positions.

That is the judgment of the court.