CA & Anor (Fact Finding and Welfare: Rib Fractures), Re

The following admissions are made by the mother (M) and the father (FB) of the youngest child (CB):

The Local Authority invited further findings and the following was agreed:

Allegation 4 was in dispute:

I find on the balance of probabilities that:

I am satisfied that the threshold test for the making of public law orders is made out.

In relation to welfare I have decided it is in the welfare interests of CA for there to be a final Child Arrangements Order for her to live with FA and it is in the welfare interests of CB to make a Special Guardianship Order in favour of the Maternal Grandparents.

I am concerned with two children. CA who is a primary school aged girl and CB who is an infant boy, they are maternal half-siblings. FA is the father of CA and FB is the father of CB. The mother is M. I am using this notation to anonymise the parties and mean no disrespect to them.

The Local Authority say, and I do not believe it is in issue:

CA is currently living with FA and has been since 16 June 2025 subsequently pursuant to an interim Child Arrangements Order made on 31 July 2025. CB is living with the maternal grandmother and her husband (the MGPs) pursuant an Interim Care Order. He has been living there since 20 June 2025.

FA and FB have parental responsibility for CA and CB respectively and it is shared with the Local Authority in respect of CB.

The Local Authority invite the court to make findings (see below) but in any event invite the court:

In the course of the social worker’s evidence she clarified (b) above saying that M moving into the MGP’s home would only be “subject to the work being undertaken and a sustained period of separation and an assessment to make sure the direct work had landed”. After she had given evidence the Local Authority clarified to the parties that the CIN plan would be for a minimum of 3 months and referrals will be made for work. Upon completion of the work then under an SGO the kinship team will remain involved and they or M can make a request to be reassessed via the MASH team and the assessment will be carried out by the safeguarding team. I note this could be reflected in the final order if I agree.

The MGPs are content with a Special Guardianship Order and do not invite the court to make a Care Order for CB.

M disputes causing injury to CB and seeks to care for both children; in the alternative she agrees the Local Authority care plans but seeks a greater level of time with the Children.

FA agrees CA should live with him under a final Child Arrangements Order and spend time supervised with M.

FB disputed causing injury to CB but as set out below under “Findings/Threshold” he changed his position such that “it is reasonable to conclude that the force used by the father [in bearhugging CB] was out with normal handling as such is the most likely cause of CB’s rib fractures”; he does not put himself forward to care for CB and does not oppose the Local Authority plan but seeks more time with CB (fortnightly rather than monthly) and seeks a Child Arrangements Order setting out the arrangements. In terms of M caring for CB he considered a phased return to her care would be possible and she could undertake protective work with the Children in her care.

The Guardian supports a Child Arrangements Order for CA to live with FA.

The Guardian supports the Local Authority plan for CB provided the right package of support is in place noting the MGPs are concerned about the financial support which would be less than they receive under the current Interim Care Order. She had considered that if the plan was for M to move in with the MGPs a Care Order would be in CB’s welfare interest. In her oral evidence she had considered the Local Authority’s clarified plan set out above and recommended a Special Guardianship Order. She was content with the Local Authority’s plan of work for M together with a working agreement.

In relation to contact if findings are made against M then the Guardian would support the Local Authority plan but if no findings are made then would not object to it continuing at the current frequency, that is to say twice a week.

In relation to a return to M’s care the Guardian says that “M needs to show that she has made and sustained change, embedded learning, and can act protectively prior to resuming full- or part-time care of the children. It is not in the children’s interests for them to be returned to her care prior to this assessment. This would cause further disruption for them in the event that M is not in fact able to evidence her ability to sustain separation and act protectively.”

I have considered the bundles (core, medical and contact notes) and in particular the documents referred to in the agreed reading list plus a more recent updated kinship assessment.

I heard oral evidence from the parenting assessor, Mr Tolerton, the social worker, Ms Lightfoot, M, FA, FB and the Guardian.

I remind myself that the burden of proving the need for any public law order rests with the Local Authority on the balance of probabilities.

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

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

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

“56.

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

i)

…

ii)

If the local authority’s case on a factual issue is challenged, the local authority must adduce proper evidence to establish the fact it seeks to prove. If a local authority asserts that a parent "does not admit, recognise or acknowledge" that a matter of concern to the authority is the case, then if that matter of concern is put in issue, it is for the local authority to prove it is the case and, furthermore, that the matter of concern "has the significance attributed to it by the local authority".

iii)

Hearsay evidence about issues that appear in reports produced on behalf of the local authority, although admissible, has strict limitations if a parent challenges that hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in "great, or indeed insuperable" difficulties in proving the fact or matter alleged by the local authority but which is challenged.

iv)

The formulation of "Threshold" issues and proposed findings of fact must be done with the utmost care and precision. The distinction between a fact and evidence alleged to prove a fact is fundamental and must be recognised. The document must identify the relevant facts which are sought to be proved. It can be cross-referenced to evidence relied on to prove the facts asserted but should not contain mere allegations ("he appears to have lied" etc.)

v)

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

vi)

It is vital that local authorities, and, even more importantly, judges, bear in mind that nearly all parents will be imperfect in some way or other. The State will not take away the children of "those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs" simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm [my emphasis]. Even if that is demonstrated, adoption will not be ordered unless it is demonstrated by the local authority that "nothing else will do" when having regard to the overriding requirements of the child’s welfare. The court must guard against "social engineering".

vii)

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

In relation to failure to protect King LJ’s in Re G-L-T (Children) [2019] EWCA Civ 717 said:

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

Munby P continued:

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

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

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

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

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

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

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

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

The following summary of the law is taken from the Family Court Practice paragraph 2.314[20]:

The commentary in Family Court Practice continues:

So far as the law on welfare issues is concerned my paramount concern is the Children’s welfare. In assessing whether to make an order I must take account of the matters set out in section 1(3) Children Act 1989 (welfare checklist). I must then have regard to the realistic options put forward taking a holistic and balanced as opposed to linear approach to them consistent with the guidance given in Re B-S (Children) [2013] EWCA Civ 1146.

In reaching a final decision I must start from the position that the least interventionist alternative is to be preferred applying section 1(5) of the Children Act; I must not make an order unless I consider that doing so would be better for the child than making no order.

I remind myself I must also have regard to Article 6 and 8 ECHR rights. Pursuant to Re B (Care: Interference with Family Life) [2003] 2 FLR 813 I must not make a public law order unless I am satisfied it is both necessary and proportionate and no other less radical form of order would achieve the need to promote the welfare of the child.

If I make a Care Order I must consider the permanence provisions of the care plan pursuant to section 31(3A) Children Act 1989 and the contact provisions pursuant to section 34(11) Children Act 1989.

When assessing risk of harm I must ask (by reference to the summary in Re T (Children: Risk Assessment) [2025] EWCA Civ 93 at paragraph 33):

The consideration of a Special Guardianship Order under section 14A Children Act 1989 engages the welfare checklist (section 1(4)(b)) and it must be proportionate. I can only make such order if there is a report before me (section 14A(11)) and before making such an order I must consider if I should make a Child Arrangements Order (section 14B(1)).

A number of facts are agreed and I set them out below:

In relation to this the Guardian reports:

The schedule of agreed facts continues:

The Guardian summarises the medical evidence in this way:

The Local Authority invite further findings in support of threshold. The following were accepted by M and FB in their response documents filed on 16 January 2026 and 13 January 2026 respectively:

That left two findings outstanding:

In relation to allegation (9) FB says the relationship ended after the hearing on 30 October 2025 and M says she accepts she “took some time to accept that F must have caused the injuries to CB- she separated from FB upon gaining full understanding of the medical evidence” and was “very concerned about FB’s mental health”. Accordingly, I consider this to be a matter relevant to welfare but make the finding alleged.

And:

M says:

FB said:

On the evening of the first day (set aside for judicial reading) FB filed a revised position statement stating:

General observations of demeanour should never form the sole basis of any finding of fact but they are part of the broad canvas of assessment of credibility and they feed into the assessment of the allegations.

I make the following observations in relation to M and FB:

I found M to be a straightforward witness, she made concessions when appropriate, for instance when she admitted making mistakes in the police interview and when I asked her why she had said there were no occasions she was scared FB would hurt CB (in cross examination on behalf of FB) when she has previously said that she asked FB to stop holding CB too tight she agreed that did in fact worry her.

There were some inconsistencies in relation to whether CB cried when FB was hugging him which I will consider in more detail below.

FB was also a straightforward witness but crucially his position changed on the evening of the first day of the trial as set out above. He has given this explanation in the course of oral evidence:

There remain very significant inconsistencies in FB’s account (believing he did not use sufficient pressure to cause injury compared to thinking he did) and this was most evident from his answer to a series of questions I asked him:

It is really very difficult to reconcile how in August 2025, when the statement was approved, FB not only thought the pressure he applied to CB on hugging him was insufficient to fracture his ribs but actively compared it to the type of pressure (by swaddling) that really could never cause a fracture or at least not on the medical evidence before me.

That is compounded by the fact FB did not mention any of these bear hugging incidents as possible causes of the fractures to the police.

Counsel for FB addressed the delayed admission of causing rib fractures in closing submissions and in particular said that delay in admitting fault could be ascribed to it being “a process to confront the fact [he] may have hurt a child” and there is some evidence to support that at [F302/8.11] when in the parenting assessment there were the “shoots” of an admission albeit not solidified until the start of the hearing:

As regards the comparison to swaddling (i.e. going further than just saying it was not hard or excessive pressure) it was agreed on behalf of FB that he was either lying or mistaken, the latter perhaps because he had zoned out.

There is a further inconsistency in FB’s recollection of whether CB cried out when he was bear hugging him. In his oral evidence he said he did not but to the parenting assessor he had said he questioned “whether he genuinely didn’t show any signs, or if he was not paying enough attention to him” [F302/8.11].

When he was cross-examined on behalf of M there was the following exchange:

Quite properly these were leading questions but as the Guardian pointed out through counsel in cross-examination “it’s never been the case you’ve suggested you didn’t remember because you zoned-out”: it was not asserted in the updated position statement received on the evening of day one, it was not evidence given in-chief and it was not put to M in cross-examination that FB appeared “zoned-out” at the time of her witnessing the bear hugging. Separately M did volunteer that at times she came downstairs and CB was on FB’s chest and FB was “spaced out and crying at points sometimes” but did not relate that to the bear hugging incidents. Whilst it might be a possible explanation it is not one that is clear on the evidence.

In his police interview FB said his mental health had been much better since CB was born [H210] but M strongly disagreed setting out in some detail how it had deteriorated quite significantly. M disagreed with FB’s assertion to police that caring for CB was “easier than I thought it was going to be” [H211] and it does not appear entirely consistent with FB’s separate assertion to the police that he could get overwhelmed with the crying [H211] or his statement that after CB’s birth he was struggling with his mental health [C42] and needed to go for a walk in the garden or the local park when he was unable to settle CB [C53].

He was asked about that in the course of cross-examination on behalf of the Local Authority:

I still struggle to see how his mental health was both much better and after CB’s birth he was struggling with his mental health.

FB’s credibility is also undermined by his change of position in relation to whether the bite mark could have been spotted by M and FB prior to it being noticed by the health visitor (see below under the heading “Capability of parents: Mother” and “Supervision generally”).

For completeness, although raised on behalf of M, the expert evidence does not easily allow a finding that something less than excessive force was required to cause the fractures. Although it was left open by Dr Olsen (paediatric radiologist [E18/3.7] and [E25/8.3]), Dr Austin ruled it out (paediatrician [E40/1.4]).

The window for the two groups of fractures is reported to be probably 19 May 2025 [E23/7.9] to 2 June 2026 [E23/7.7.1] and 2 June 2025 to 16 June 2025 [E23/7.7.2].

“Bear hugging” is put forward as a possible explanation by M and FB as above. Dr Austin (paediatrician) considered that as an explanation and discounted it [E49/5.13]. Dr Olsen (paediatric radiologist) also considered it:

In her police interview on 17 June 2025 M said variously:

I was asked to view her demonstration of the hugging which appears at around 1 hour 10 minutes into the VRI. She demonstrates the left arm and right arm overlapping (hand to opposing elbow) over the chest.

In her written evidence M says the incident described to the police at [H161] occurred on 9 June 2025 at about 19.30 [C45/9] and the hugging which she describes as a “bear-hug” occurred 3-4 times and “CB didn’t cry when FB did does this” [C46/12] and “would wriggle a bit but didn’t cry during the hug or afterwards” [C46/13]. She has not witnessed a significant incident where CB could have sustained rib fractures [C46/11]. When she gave oral evidence she said that CB could sometimes be unsettled but did not cry a lot, she would sometimes be putting CA to bed and “hear crying from downstairs” and “sometimes go down and check on him” (that is FB and CB) and a lot of the time “found CB on FB’s chest, sometimes he was still crying but I could tell that FB was still very disturbed, very emotionally distressed…he looked out of it…spaced out and crying at points sometimes”. Later she agreed CB may have cried on the occasions that FB bear hugged CB causing him to go red and pull a face.

There was this exchange in cross-examination on behalf of the Local Authority:

In answer to my question she agreed maybe she is closing her mind to the possibility that FB inflicted harm more violently, she said “I can’t really answer for sure as I don’t know what happened”.

In her second statement she describes FB especially struggling with CB crying when FB would stare at CB blankly [C57/3] and “would get particularly frustrated during the night feeds” to the extent M would find FB “curled up on bed in tears” [C58/4] and “worsened to the point he was not able to help with feeds at all” at the end of May 2025 [C58/9].

When she gave oral evidence she accepted there were times when FB was alone with CB, particularly when M was putting CA to bed and FB/CB were downstairs and when M was preparing the feed in the nighttime and FB/CB were upstairs. FB concurred in his oral evidence.

In his police interview FB said variously:

As above, I note FB did not mention the hugging described by M in her police interview.

In his first statement he says he is not responsible for causing the fractures and suggests they may have been caused by CB falling off a bed (although in fact M caught him and this scenario is discounted by the medical experts [E49/5.13]) [C39]. He accepts there have been times when each of them has been alone with CB [C40]. He says that he cuddled CB to try to settle him and “When CB cries, I do this to keep him cuddled up to me to try and settle him. I do not do this tightly however on one occasion CB went red in the face” [C40] but “This would not have been enough force to break his ribs and CB did not cry out with distress when this happened” [C41]. He gives further details about this in his second statement when he says it was on 2-3 occasions but on only one did CB go red in the face which would have been between 8 May and 9 June 2025 which is in the window of injury for the rib fractures. In this statement he says CB was already crying. He thought “it was probably less pressure than a swaddle” [C55/12].

Following the statements referred to above he reported to the parenting assessor variously: “he did not cry excessively”, he held CB in this way “when he was sleepy or crying a little”, “he said he “admit(ted) the use of force was excessive” and he regretted it now” but “didn’t think it was “too hard”, and he would describe his actions more, as cuddling, or swaddling CB up” [F301].

FB’s explanation (given in oral evidence) for the difference between his case and the evidence of Dr Olsen was essentially that they were talking about different things: Dr Olsen about what might commonly be understood to be a bear hug, as FB said, “in normal standards”, but his version of it was “in excess of what would have been needed to fracture his ribs” but not done in anger or malice. However, he accepted CB did not cry out or scream, he did not perform the action suddenly and there was no sound or a feeling of something giving way. M’s oral evidence was that she did not hear CB cry out. In fact FB’s evidence is of the opposite, in his statement he said, “I would give him a tighter hug when he was crying so he would feel more secure and it worked to calm him down”. The only explanation FB could give of why that opposite reaction to a rib fracture might have presented was “maybe CB has high pain tolerance”. As counsel for FB reminded me “memory is fallible” and the parents are being asked to recall something that happened a long time ago.

In terms of crying generally, I note that M’s initial evidence is that CB did not cry when being hugged in the way described by her although a gloss was put on that in her oral evidence as set out above. FB’s written evidence was that CB was already crying. To the parenting assessor he said, “he did not cry excessively” and CB had been “sleepy or crying a little” [F301/8.6]. He was asked about M’s evidence that he would wriggle but not cry and said he could not comment on why her evidence was inaccurate.

When he gave oral evidence FB said when he held CB:

In relation to his mental health FB says he has a diagnosis of depression from 2019 and 2 weeks after CB’s birth he was struggling with his mental health as he felt guilty about losing a relationship with his first child [C42]. In his second statement he says when CB would cry and he was unable to settle him he would “go for a walk in the garden or down to the local park. I was never angry at CB for crying I was more frustrated that I could not settle him” [C53/3]. He re-iterated that in oral evidence.

There are a number of other matters that form, or potentially form, part of the evidential canvas:

The section 47 assessment dated 19 June 2025 records CA saying “mummy and daddy get angry. When they get angry they hit things…Mummy hits FB’s face and FB hits Mummy’s face” [F63] but no finding is pursued on this and it is hearsay evidence from a child. I attach no weight to it.

I was invited to take account of FB’s previous conviction but it was a long time ago (2015) and there is no other evidence of abuse by FB save by CA which I have discounted above. I attach no weight to this.

FB was challenged on how he could have allowed CB to head butt him 3 times on 9 June 2025 but given that he was on his account holding FB under the arms with both hands I can see his options to act quickly to prevent the second and third were probably limited. I attach no weight to this evidence in relation to the rib fractures.

It was submitted this was small house and likely that M would have heard FB injuring CB if it had happened as described. First that would depend on whether CB cried out on which the evidence is very uncertain and even if he did M’s evidence was also that whether she could hear CB downstairs would depend on the noise being made upstairs and when putting CA to bed she would “sing or read stories and whilst doing that can’t hear downstairs”.

M has parented CA without any concerns from statutory services or the Local Authority and none raised by FA.

In the extracted phone records there are some potentially relevant messages:

The health visitor commented on M’s handling of CB on 3 June 2025 as “gently tactile” [MED A369] and she did not apparently seek to avoid medical appointments notwithstanding by that stage at least one group of rib fractures had been sustained.

Similarly the parents agreed that on 9 June 2025 M “asked FB whether we needed to go to hospital” (M’s oral evidence) and M “was very concerned” about the bruising and “almost ready to get dressed and take CB to hospital” but after discussion they agreed to monitor the situation (FB’s oral evidence).

There is insufficient evidence to conclude the parents colluded and agreed that FB is to take the blame for the benefit of M. I would have expected a more consistent story from them on hearing CB cry out for instance.

There is insufficient evidence to determine that M was the perpetrator, there is simply no evidence of her acting violently, forcefully or physically inappropriately to CB.

On the balance of probabilities I find that the rib fractures were caused by FB in what he and M have described as a bear hug. There is no evidence of any other possible precipitating event. I have considered whether FB is making it up to fit the expert evidence and exonerate M but I accept the suggestion that FB is likely to have gone through a process of reconsideration over time; if he had no recollection of a more serious incident perpetrated by him and thought it unlikely it was M then it is a rational conclusion and consistent with his emerging thought process to the parenting assessor. The form of hug described by M and FB does not sit on all fours with the mechanism suggested by Dr Olsen (pulling the whole torso towards FB rather than forcing the spine into the chest) but it is not far-fetched to reconcile the two, it would only have taken FB’s fists to move closer together (his elbows moving further apart) by approximately four inches to more closely match the mechanism. The force exerted as described by FB initially does not match that required but there is evidence of excess force (the evidence of CB going red on at least one occasion and wriggling) and some evidence FB may not have been fully aware of his actions (the evidence M gave of sometimes seeing FB spaced out with CB on his chest). The absence of a marked scream or cry from CB in the described scenarios may have been because it was masked by CB already being unsettled or FB not being in a fit state to accurately recall. The fact M did not hear a marked scream or cry is explicable by reason of her being in another part of the house, perhaps putting CA to bed.

What I cannot determine are the exact circumstances of the fractures. I cannot identify a date or time save within the windows set out by Dr Olsen. I cannot identify whether FB caused the fractures in anger or as a grossly inappropriate attempt to sooth CB but given the medical evidence I do not consider anything turns on this from a welfare point of view: It is as dangerous to an infant for a perpetrator to have deliberately inflicted injury as it is for a perpetrator to have been so lacking appropriate perception of their actions as to cause such a serious injury, noting excessive force causing visible deformation of the infant’s torso was required.

Having made this finding I need to go on to consider if M was present or aware of the fractures having been caused by FB. I find she was not. It was adverse to her case to admit seeing FB bear hugging CB in a way she considered inappropriately forceful yet that was a concession freely made at the earliest opportunity in police interview. I found her to be a reliable historian doing her best in traumatic circumstances. That said, her lack of positive action in response to FB’s parenting will weigh heavily in my welfare assessment.

Finally, I have to consider if M failed to protect CB. The Local Authority do not expressly plead this as part of threshold and it is very significantly tied into an assessment of M’s capacity and I will consider it as such below when considering welfare matters.

Stepping back and considering the test in section 31 there can be no doubt that in light of the agreed facts and agreed further findings together with my finding on Allegation 4 threshold is plainly proved met on the balance of probabilities.

I now turn now to the considerations under section 1(3) Children Act 1989.

The Guardian records that CA “found it very difficult to open up about her home life and family relationships” but “observed a positive relationship between CA and FA” and she “feels safe and happy in the care of FA” [unpaginated internal page 23].

The Guardian identifies that CB is too young to express his views but she observes that “he appears to have a strong bond with his carers” [unpaginated internal page 23].

The Guardian summarises the position for CA in this way:

In relation to CB he suffered the injuries set out above requiring, in relation to the fractures, hospital admission and investigations (skeletal surveys). The fractures are healed but the injuries and resulting investigations represent an adverse childhood experience [C87/4.2]. Bringing matters up to date the Guardian reports CB being “described as being a healthy boy however he has struggled with Eczema for which he has been engaging with the GP which can cause him some discomfort” [unpaginated internal page 16].

The together and apart assessment records the Children having had “limited experience of being parented together” [F236] (around 3 months) but CA having shared she “has a strong emotional connection to CB” [F236] although observation has shown her engagement with CB to be “inconsistent” during contact times, sometimes ignoring CB and “becoming demanding of her mother’s attention when her mother is focused on CB” [F237]. Advantages of placement together are a strengthening of the sibling bond and shared experiences with an avoidance of the complexity of contact if in separate placements. Disadvantages are disruption to CA’s current placement and differing developmental needs. It is reassuring that the social worker describes:

When she gave oral evidence she said that the current weekly sibling contact will end after proceedings end but within the draft CIN plan there is provision to consider a safe, workable plan for sibling contact which will form part of the meeting with the wider family immediately post-decision; she did not want to put too much of a burden on the MGPs by setting the contact too high (given they would also be involved in managing maternal contact with CA and CB as well). If there were difficulties in the relationship between FB and the MGPs there were alternative family members who had offered support.

Under the Local Authority care plan CA would remain with FA. This has been the situation since last summer and for 50% of the time prior to that. There is a note that CA sometimes misses M. That is mitigated to some extent by proposed ongoing contact arrangements.

Similarly the plan for CB is a maintenance of the status quo in terms of placement and no risk of emotional harm is expressly identified although CB will not be brought up in the care of a parent under an SGO and if under a Care Order would be subject to the intrusive consequences of being a looked after child. At age 18 the SGO will end and there may be some emotional turmoil associated with this as there would be with a Care Order coming to an end.

M has an Autistic Spectrum Disorder diagnosis.

Contact notes have generally been positive (Guardian [unpaginated internal page 10]) and the social worker notes M having engaged “consistently with professionals” and having completed key-worker sessions on various topics [C90/5.2] and is able to meet basic care needs [C90/5.4].

The parenting assessor reports variously that M can become frustrated when she feels misunderstood and can have a “meltdown” which she attributes to her autism [F272]; social work evidence of lack of oversight is reported to be accepted by M (“M acknowledged that her and FB’s supervision should have been better” [F293]); M admitted there were “points when the home conditions deteriorated” [F294]; but family time observations were generally positive [F296]. However, there was a concern about M’s “willingness to forgive FB” which “detracts from the serious injuries CB sustained, and her ability to consider the further risk of harm that FB could pose, if such issues were found by the Court”; the assessor was “concerned that she has not given her relationship with FB more thought at this stage, in light of her own view” [F310]. Nonetheless if no findings were made against M the assessor “would tentatively recommend that CB returns to M’s care, with considerable support from CB’s family, and that work is undertaken to develop her capacity to act protectively” [F320].

When Mr Tolerton gave oral evidence he said that his overall view was the same as in his report “but some factors are more complex now”. He referred to the mobile phone messages demonstrating “despite M’s concerns about FB’s mental health she had repeatedly left CB in his care” and he clarified that the tentative recommendation was tentative because he had anticipated a fact finding hearing and separate welfare hearing after some further assessment. He confirmed to the Guardian in cross-examination that “work and assessment had to be before reunification” and said that if separation from FB is not sustained that would put CB at risk of harm. He was asked if the work the Local Authority propose can be undertaken whilst CB was in her care and he said not because of concerns about M’s capacity to protect CB. He was asked about timescales for the work and agreed with the Local Authority evidence.

In her final statement M says that she has separated from FB and that she has “struggled to come to terms with the fact that FB had inflicted injury on CB [because she says it was not her] and this caused some delay in my separating from him”, she also says her ASD diagnosis means “it often takes me some time to process and comprehend a situation, and thereafter come to a decision and take action” [C139/4]. I note from her police interview that she had moved into FB’s home having moved out from the shared home with FA. I therefore accept a further drag on separating from FB may have been her housing situation. However, the social worker says that M was “able to articulate that, on the basis of her denial that she did not cause CB’s rib fractures, it must, by process of elimination, have been FB” [C82/3.12]. There is a double negative here but the meaning is she denied it so it must have been FB. I find it difficult to accept M’s assertion that it took her until October to process this. Her response to threshold dated 16 July 2025 accepts her and FB were the only people to care for CB prior to 16 June 2025 and the fractures could not have been caused in the course of appropriate handling [A7]; she has been represented at all times. The social worker also reports a conversation on 8 July 2025 in which she acknowledged “it must have been FB” and in which she demonstrated an asymmetry of response described as “muted emotional response towards FB despite serious injuries to CB, but reactive towards FA in a hypothetical scenario [in which CA was injured]” and this raises concern about risk appraisal [C91/5.8]. The social worker was concerned that even after 30 October 2025 the rationale for separation was “it was what the judge and the Local Authority expected” rather than child safety [C92/5.9], it was “compliance driven rather than intrinsically protective” [C92/5.10].

When M gave oral evidence she accepted she still loved FB (“love doesn’t just end”) and that she had said “I’d separated because the court had said so” but the context was that FB needed to work on his mental health and that was a priority for the safety of her children.

When FB gave oral evidence he said “it may have taken longer [to separate] I would put some of that down to M’s autism and changing situations being difficult for her and some of that was for me, I was holding on to relationship with someone I truly love and care for and I didn’t want to lose my family”.

The Guardian’s evidence was that she was concerned separation from FB would not be maintained and that it was not a “meaningful separation” because she said she hoped in the future to get back together with FB and the only reason it had ended “was because she felt the court had told her to”.

A further concern, irrespective of findings on the fractures, is highlighted in the social work evidence:

When M gave oral evidence she said that prior to 1 May 2025 “there were many periods when FB was crying, upset, upset with himself…there were many distressing times”. She was asked why, given concerns about FB, she did not take CB with her when putting CA to bed. She replied that it was not possible to settle two children and she wanted to focus on CA. Her response to the concerns about CB in FB’s care was to “make bedtime shorter” for CA, she would ask FB if he was okay and if she could pause bedtime and take over and put CB in the Moses basket and “occasionally I’d take CB off him”.

Irrespective of findings on the fractures, the social worker and the Guardian raise concerns about M’s ability to identify and respond to CB’s needs:

When the social worker gave oral evidence she said the first incident was “a 3 week old baby and the injury was not noticed by the parents” (that is the bite mark). M accepted she had missed the bite mark/bruise on CA’s leg, she conceded she “should have noticed it”, agreeing it was “pretty obvious” and that she was doing nappies and bathing CB around once a week. FB’s oral evidence differed in that he suggested (contrary to the agreed facts) that the mark could have been caused the night before its discovery by the health visitor and may have been missed by the parents because “we keep the room dim at night”, “my house is quite dark” and “I tend to keep the rear curtains closed so the room isn’t overly bright”.

The social worker was also asked about witnessing CA placing a button battery in her mouth on 27 May 2025, it was initially in her hand then placed in her mouth and she witnessed it directly. When M gave oral evidence she accepted CA had the battery in her hand but did not accept it was placed in her mouth, CA, she said, showed the social worker and the social worker removed it. I do not make a finding either way; it is enough to observe that CA should never have had access to such a dangerous object and M accepted “we must have put it down” when fitting a battery to a toy.

In the event of no findings against M on the fractures the social worker says:

The plan of work is set out in the draft CIN plan at [F326].

When she gave oral evidence she said that the timescales were dependent on “how M gets on with” the work but there would need to be a “sustained separation from FB of at least 12 months”.

The Guardian reports:

The Guardian also reports that she was told separately by M and FB on 8 January 2026 that “they continue to provide one another with lots of emotional support” and “M has also reported that longer term she wishes to resume the relationship with FB” and is “currently homeless with little stability” [internal page 14].

There is a practical difficulty with reunification with M in that she is subject to bail conditions as she remains under police investigation in respect of the rib fractures and if there are criminal proceedings there might be further disruption for the Children [C93/5.15].

Although I have not made findings against M on allegation 4 the concerns set out above are very serious and all the professional evidence points to a lack of capacity to provide safe care to both children at present.

The social worker records:

The Guardian records CA’s needs to be “met to a good standard” in FA’s care [unpaginated internal page 22].

FB says after the last hearing (i.e. 30 October 2025) he ended his relationship with M and says, “there have been some difficulties in M finding alternative accommodation” and there have been times thereafter that she has stayed with him but in separate beds [C143/5]. I make the same observations as above in relation to the delayed separation noting his response to threshold at [A13] and the fact he has been represented at all times.

A letter from FB’s GP [I27] records a diagnosis of depressive disorder and irritability and anger with self-harm and suicide attempts. As at August 2025 he was having counselling which had been in place for the previous year and a half. He is recorded as acknowledging that his mental health “limits his ability to consistently meet CB’s needs” [C95/5.21].

The Guardian notes the same concerns as above in relation to M not separating from FB as applying equally to FB not separating from M and he “was open that his mental health is a barrier to him being in a position to care for” CB. The Guardian also refers to previous convictions, including for battery in respect of a former partner, in relation to which FB “does not feel that his criminal history has any relevance to the current proceedings” [unpaginated internal page 15].

Contact notes have generally been positive but there have been concerns raised about FB’s handling of CB which has been described as “’heavy handed’ at times” (Guardian [unpaginated internal page 10-11]).

The parenting assessment records variously that FB’s mental health “had “always been up and down”…it would drop really quickly” [F274]; he had “difficulties with anger when he was young” but not since becoming an adult, now he “will go quiet and walk away if he can” [F276]; and situations outside his control can make him stressed and “he can appear agitated, snappy or distracted” which he manages by “walking away” [F277].

This largely follows from the admissions and findings above. CB suffered fractures on two separate occasions. Non-admissions by the perpetrator parent have meant that the Local Authority has been unable to identify an intervention to prevent recurrence and CA and CB have had their relationship with the non-perpetrator disrupted [C81/3.8 and 3.10].

Viability assessments were completed of CA’s paternal aunt and uncle and paternal grandparents. These were positive.

Viability assessments were completed of CB’s maternal aunt and uncle which was negative and of his step aunt and partner to provide respite to the MGPs which was positive.

The Guardian says:

The Guardian records CB’s “needs are met to a good standard” in the care of the MGPs [unpaginated internal page 23]. She records the MGPs preferred outcome being for M to move into the family home to support CB’s day to day care [internal page 5] but I note her observations above (under the heading “Capability of parents: M”).

The assessment of the MGPs is summarised by the social worker in this way:

That accurately reflects the kinship assessment save that it cautioned the MGPs had “not yet had access to all relevant reports, including the outcome of ongoing parenting assessments and any fact-finding hearing” [F162]. The addendum report notes that a significant number of further documents have been shared with the MGPs and it is reported:

They have confirmed that they would be willing to care for CB under an SGO and if M was to move in with them they seek clear guidance from the Local Authority.

As to sibling separation the social worker summarised the together or apart assessment in her final evidence in this way:

As regards CA I have covered the parenting assessor’s recommendations above but the social worker was asked about the suggestion he made about returning to the shared time arrangement for CA between M and FA [F320]. She said, “it feels a hypothetical one in that we are nowhere near that stage, there were so many other things to consider, the M’s separation from FB, where she would be living, if she moves in with the MGPs and whether it would be in CA’s interests to be living 50% of the time in that home”. As counsel for FA said a further point is a different order would run the “risk of disturbing the current arrangement that is working for CA”.

The Guardian has considered whether a Child Arrangements Order for CB in the care of the MGPs would be sufficient and says:

When the social worker gave evidence about the framework under which there could be consideration of M moving in with the MGPs she said, “the MGPs are absolutely capable of making decisions for CB, he’s thriving in their care, they are willing to accept advice, they will continue to have support under the SGO”.

I come now to consider the balancing exercise that is required by B-S. I have identified a return to M’s care (as to 50% or 100% of the time), remaining with FA and placement with MGPs as the only realistic options for CA; return to M/FB is discounted as they have separated, return to FB alone is discounted as he does not put himself forward to care and foster care is discounted because there are family members willing and able to care.

Realistic Option 1: Return to M’s care (potentially under CO)

Realistic Option 2: Remain with FA under CAO

Realistic Option 3: Placement with MGPs under SGO

Realistic Option 4: Placement with MGPs under CO

I discount options 3 and 4 on the basis that they do not represent the least interventionist alternative. Whilst they have the benefit of placement with CB (see my assessment below) the sibling bond is not such that justifies a separation from her birth father or mother. I discount the option of a Care Order in M’s care as the Local Authority could not lawfully authorise this placement.

Given the identified risks of harm in the care of M I do not consider placement with M (50% or 100%) to be in CA’s welfare interest and placement with FA represents a continuation of the current placement and is least disruptive (with lower risk of emotional harm) to CA.

In relation to CB I consider the realistic options are a return to M’s care and placement with MGPs under an SGO. A return to M/FB is discounted as they have separated, return to FB alone is discounted as he does not put himself forward to care and foster care and a Placement Order is discounted because there are family members willing and able to care.

Realistic Option 1: Return to M’s care (potentially under CO)

Realistic Option 2: Remain with MGPs under SGO

On balance, and for the same risk reasons as for CA, placement with M is not in CB’s welfare interest. Continuing to be placed with the MGPs again is least disruptive to CB. As to whether M moves in with the MGPs, under an SGO that would be a decision for them but the professional evidence does not tend to support it for now.

The care plan is for at least monthly sibling contact for 2 hours, contact with M monthly for 2 hours and additional indirect contact. All the evidence suggests FA and the wider paternal and maternal family are keen to support contact. The Guardian was asked about the plan and was clear that monthly with M was a minimum but she understood the thinking was that “once a week would be the ideal” which she supported in the event of no findings of perpetration against M and she agreed she could envisage a greater level of contact “if M is able to continue to make safe choices”. In closing submissions M accepted that it is a dynamic process and she “does not seek to go behind what the Guardian says about the work M has to do”. In light of my findings M was not the perpetrator of the rib fractures that might suggest a greater level of contact but there are other concerns for M which I have set out above. I am not in a position to give an indication save to adopt what the Guardian recommended, much will depend on the work that M now engages in under the CIN plan but I do not consider that a defined order is in CA’s welfare interests at this stage: it is not necessary given the supportive family and it requires dynamic assessment over the coming months.

The care plan is for contact with M monthly for 2 hours supervised by a family member, contact with FB monthly for 2 hours supervised by the paternal grandparents and additional indirect contact.

FB sought a Child Arrangements Order to spend time with CB in his position statement for the PTR although it was not expressly pursued in closing submissions; in light of my findings that is not an order that it is in the welfare interests of CB to make at present. There will need to be some time for all those with parental responsibility to adjust to the findings I have made and to settle into the arrangements. The Local Authority, with the support of the Guardian, will arrange a Family Group Conference or similar under the CIN plan and that is the best place for matters to be considered and agreed. The Guardian agreed “it is dynamic and has to be reviewed” but she considered a minimum of 12 times per annum supervised was appropriate. In the event it is not possible to reach agreement it remains open to FB to make an application for a defined order under section 8 which in the normal course would be allocated to be heard by me.

I am invited to give some indication of what I consider would be in CB’s welfare interest in respect of M. The Guardian said in oral evidence that in her discussion with the social worker she understood the recommendation for monthly contact was “a minimum” but there were many variables. She agreed where it was safe there should be as much contact as possible. I agree.

In light of the above analysis I make a Child Arrangements Order for CA to live with FA and a Special Guardianship Order for CB in the MGPs’ care.

I reassure M and FB that they have roles to play in CB’s life but both need to co-operate with the work recommended by the Local Authority to enable that to be safe.