A (Death of a Baby), Re

This judgment concerns the death of B, born on 28 January 2011. He died in hospital in the early hours of 12 February 2011 as a result of severe head injuries sustained at home on the night of 11 February. He was two weeks old.

This has been a fact-finding hearing, whose conclusions are relevant to the welfare of the two children that are the subject of these proceedings:

The findings also affect arrangements for a child that is expected in January 2012.

The injuries to B could only have been caused by one or both of his parents (to whom I shall refer as M and F) or by C, who was then aged 4½.

M is aged 26 and is a British citizen. F is now 35 and came to England in 1999 on a visitor’s visa. He has no valid leave to remain here, his last application having been refused in September 2011.

The parents met in 2005 and C was born on 17 August 2006. Shortly before the birth, M obtained a small first floor flat, consisting of four rooms: a bedroom, a bathroom, a living room and a kitchen. F maintained his own address but was a frequent presence in the home.

In 2007, M and F went through a traditional marriage ceremony.

In 2009, M became pregnant again. The pregnancy was unplanned and M decided to have an abortion, which was performed in December 2009. M told a midwife that her decision was made because she was concerned F would leave her as he had done previously and that she would not be able to cope on her own.

In September 2009, C started at nursery. In April 2010, he was diagnosed as having an autistic spectrum disorder. In September 2010 he started at school.

In May 2010, M became pregnant with the twins.

On 23 May 2010 the police were called to the flat following an incident of domestic violence, to which I refer below.

In January 2011, F formally moved into the family home, although this was not much of a change as he was already spending so much time there.

B and J were identical twins, born on 28 January 2011 by Caesarean section. They were both healthy and were discharged home with M on 31 January.

On 3 February, the parents and children went out by car to register the twins’ birth and for M to visit the housing department to pursue her application. Apart from that trip, which M found difficult, she and the twins remained in the flat until 11 February.

On the night of 11 February, B was injured, and on the morning of 12 February he died.

C and J were then placed with a paternal aunt. M also lived there for a short time, with the children being under the aunt’s constant supervision.

On 18 February, the local authority (‘the LA’) began care proceedings in relation to C and J and these were immediately transferred to the High Court. I gave directions on 25 February, 10 June and 8 July.

The LA had concluded that it was not realistic to expect the aunt to supervise M’s contact with the children and on 25 February, M moved out and returned to her own flat, where she and F have lived since.

The parents have had very regular supervised contact.

On 18 May, the parents were married in a civil ceremony. Permission, necessary because of F’s immigration status, had been granted by the Home Office on 23 March.

On 24 June the children moved to live with foster parents after the demands of looking after them as well as her own children proved too much for the aunt.

On 29 July, B’s funeral took place.

On 3 August a Coroner’s inquest was held, following which the police investigation came to an end. I refer to the inquest below.

Medical evidence was gathered by the police investigation and for the purpose of these proceedings. An experts’ meeting took place on 3 October.

In March 2011, M became pregnant again; the baby is due in early January 2012.

During the course of 13 days, I read the relevant documents contained in five files and heard evidence from the following witnesses. Where identified by full name, they gave evidence as expert witnesses.

In the circumstances, C and J have been represented by different Guardians.

In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children)(Care Proceedings: Standard of Proof) [2008] UKHL 35. Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.

Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.

The police records describe a call made by a neighbour of the parents. Officers attended at 23.25. M told them that F had just driven away with C and that he had beaten her up and thrown her around. She thought he was drunk as she smelled alcohol on his breath. They had been having a heated argument about her wish to return to work. F had grabbed her hair and pulled it. He then grabbed her by the throat and lifted her off her chair. She then hit out at him in self-defence. M said that she had wanted to separate four times in six years and that ‘this is the worst it has ever been’. F had not returned with C two hours later.

However, on 4 June 2010, when the police spoke again to M, she said C was safe and well, that it had never happened before and that she didn’t want any police involvement. There had been no assault, she was happy to have F at her home, and she would not make a statement. The police took no further action.

In her statement in these proceedings, made in March 2011, M says that she does not remember all the details, but does recall an argument about a water bill. Her main memory is that during the course of the argument F grabbed her from behind by her hair and yanked her head backwards and forwards. She retaliated by pulling his top and scratching his chest. There was a lot of screaming and shouting. She says that she was angry with F and that there is a possibility that she might have exaggerated what happened when speaking to the police.

In her evidence during the hearing, M appeared to have difficulty in remembering the incident. She could recall her hair being pulled, but not being yanked backwards and forwards, nor being grabbed by the throat and lifted off the chair. Asked about F’s denial of violence in his statement, she said that he might not remember the incident. She did not consider that she had been assaulted because she had not been injured.

F says that the incident was nothing like as serious as M describes. There was shouting but he did not pull her hair or assault her in any way. He left with C to avoid the argument escalating.

In the morning, the twins woke at 05.30 or 06.00, and she fed them. C then got up and F got him ready and walked him to his school nearby. F then collected his car and went out to help someone fix his car.

She spent the morning at home with the twins. At about noon C was returned from school by a teaching assistant. The twins were awake and C was watching television. She gave him his lunch and fed the twins.

At about 15.00, the health visitor came to collect something that she had left inside one of the babies’ Red Books and M went outside to give it to her as she could not park. Then they all had a nap in the living room. It was unusual for C to have an afternoon sleep, but he may do if he is sickening for something. She woke up because the twins were waking. When C woke, he was scratching his stomach. M checked him and suspected that he had chicken pox. At 18.31 (timed by her mobile phone bill) she called F to ask him to buy calamine lotion and Piriton on his way home. He walked to the pharmacy and she spoke to the pharmacist during the course of the call. It was also during this call that F told her that he hurt his eye at work.

M also called the community midwife service and eventually spoke to a paediatrician who told her that the twins should have immunity from chicken pox for about 6 months.

M says that she fed the twins and put them in their chairs at around 19.30. The feed was normal and she had no concerns about them. The twins were usually bathed in the living room, but they had been bathed the day before and were not due a bath that day.

The twins were asleep in their chairs by the time F returned at about 20.00. She believes that she clipped them in as a matter of habit, and snapped the tray down. C was awake when F returned. She was watching Eastenders.

When F returned, M put the lotion on C and looked at F’s eye. He would not agree to go to hospital. As far as she was concerned, F did not go out again that evening.

She made C and F a meal. She also made up four bottles and put them in the fridge. She then changed out of her dressing gown. She wanted to see how she would manage with a trip outdoors. Before leaving, she told F to watch the children closely, as she had seen C put a blanket on one of the twins earlier on.

At about 22.15, she left the flat to go to Tesco. She says that the twins were asleep in their swing chairs when she left and that C was in his sleeping suit playing or watching TV. He was not wearing his glasses. F had taken off his clothes and was watching TV and using the computer, perhaps listening to the radio. She had not used the computer herself that day. C’s normal bedtime was nine o'clock, but he was later that night because of his nap. He was not tired when she left. He is a very good sleeper and not a child who wakes in the night after going to sleep. She thought he might go to sleep while she was away and the twins would wake up at some point, perhaps in about half an hour. She did not expect F would go to sleep, but wondered whether his injury and the drink at dinner might have had a part to play.

M described her trip to Tesco and her return to the flat at about 23.40. In evidence she said:

She described the position of the children, lying on their backs with B nearer the door with his head away from her and J lying in a line in the same way with his feet just beyond B's head. C then walked to the left of them and stood over them. He was wearing his suit but with the bottom half hanging loose behind him. He was quite calm. The twins were in their sleeping suits as before. She said "look at B's head" or "look at the babies" and C said "look at the babies".

She did not enter the bedroom or shake F’s legs in the way he describes. He did not see her pick B up and she had not said "we're in trouble". Asked about F’s account, she said that it may be his way of talking.

She called the ambulance within a minute of entering the flat.

She said that a number of things had been moved from the time of her departure to the time the photographs were taken. Items such as blankets, pillows and a carrier bag had been pushed from the sofa onto the floor. Some biscuits and crumbs were on the floor. Some baby care items had been taken off the table and were lying on the floor. Two candles that she thought had been on the kitchen window ledge were on the floor, with fragments of red wax scattered about. Washing had been pulled from the washing machine on the kitchen floor. The patch on the carpet was not wet, but was an old oil stain caused by C dropping a large bottle of cooking oil some time before.

She confirmed that C loved having the twins around, and that there was no concern about his behaviour. He is a caring and affectionate little boy, and had never been violent. She had not seen him undo the harnesses on the swings, but he had opened the buckle on their car seat on the one occasion that they went out. He did this by pressing a button on the front. He cannot use the computer and is not allowed to touch it. She described C climbing onto the kitchen work surface and burning himself on one occasion.

She had no idea how the twins came to be on the floor, and (she said) nor did F. She assumes that it was C because he was there when she returned. She denied that there had been an argument between F and herself on the night of B’s death. Everything was fine when she left. She had no reason to worry about leaving the children in F’s care. She would not protect F if she knew he had done something. She had not done anything to B, nor seen anything being done to him. She was unclear about whether or not she had mentioned the possibility of C banging B against a wall to Mr T or anyone else.She didn’t understand why F had slept through and hadn’t heard anything. She accepted that if he is lying about being asleep, then it meant that he knows something about how B was injured. She had told the Coroner that it was not fair to C to decide that he had harmed his brother. She relied on this court to help her to find out what had happened.

She said that she had been happy to become pregnant because she felt very empty after losing B. She married F because the licence had been applied for before the twins were born and was only valid for three months. Asked how she could have married F when B’s death was unexplained, she said that what F had told her was all that she had. She did not know the medical evidence at that time. She considered that if it was shown that F "had a hand in it" they could separate.

She accepted that she had not told the full truth to her GP in 2009 in order to make sure that he referred her for a termination. She had told him that she and F had been separated at that time. However, she said that they had split up at times after arguments.

She said that the issue for her was whether it was her son or her husband who had injured B. When it was put her that she might have caused the injury, she said that this might be a possibility for others, but not for her.

F can understand and speak basic English but gave evidence through an interpreter.

He got up by 09.00 and dropped C at school. While he was doing that he had a call from a friend (a Mr A) who needed work done on his car. He returned home and drove to his workplace, arriving at about 10.00. Mr A did not in fact arrive until 16.00 or 17.00 and F waited for him at the garage. When the car arrived he worked on changing the brake pads and was accidentally hit on the left eyebrow by a spanner while trying to loosen a nut, an event witnessed by Mr A. He sustained a cut which bled badly. He put TCP on it. He was seen at hospital after B died and was noted to have a superficial laceration requiring no treatment.

Mr A was to have been a witness but at the last moment the other parties and the court were informed that he would not be attending. It was said that he had gone abroad.

F says that he was at his workplace when he received M’s call at 18.31. He confirmed that he had gone to the pharmacy as she had described. He arrived at the flat at about 20.00. M told him that he should go to hospital for the cut over his eye, but he refused. He took off his overalls. The twins were asleep in their swings. C was in the living room. His dinner was ready and he ate it sitting at the computer table. He drank a bottle of Guinness from the fridge. He was listening to the radio on the computer. Before M left, she told him to watch out because C had put a blanket on one of the twins and because he had chicken pox. When M left, he was finishing his dinner. He knew that the twins’ bottles were in the fridge and that they were likely to need feeding while M was out. He intended to have a bath when M returned.

After no more than half an hour or so he took C to the bedroom. He turned on the television. He put C into the bed next to the wall and sat down on the opposite corner at the foot of the bed, which appears to be of the standard 4’6” width. After a couple of minutes of tossing around, C went to sleep.

F says that he then leant across the bed on his right elbow (and so towards C) and fell asleep himself.

The next F knew was that he was woken by M. In his statement he describes her doing this by shaking his legs, but in his evidence he said this:

F’s description of the twins’ positions on the floor differed from M’s. He said he didn’t hear J crying at any point. When he heard M’s shouts he was panicking, shaking.

F says that he saw the ambulance light flashing through the window and went down to get Mr T. He had difficulty understanding what Mr T was saying. He did not say anything about the child being thrown against the wall. He told him that he should hurry and that his son was dying.

He followed the ambulance to hospital about 20 minutes later, taking C with him.

On further questioning, F agreed that C is a normal loving child. Although his statement said that he had seen C opening the clips on the twins' swing seats and trying to undo them all the time, he had never seen this. He had only seen C opening the buckle on his own car seat on the trip to the registry office. He said that he was trying to say that C could open the twins' harnesses easily. He said C could put on the computer at any time. He could not say who had started the computer at 22.54. It could have been C.

He denied harming B and still feels pain at his loss. He thanks God that J is alive. He has never had any sympathy from anyone for his son’s death. It is very painful that this happened after his wife had left the children with him. He is deeply sorry for what happened. If his wife had not come back, things might have got worse. He rejected the scenario that he had caused the injuries to B by accident. You could not put such young babies on the floor. It must have been an accident involving C dropping B on to the floor. Asked why he was sure it must have been C, and not M, who would have had the opportunity to cause the injury while he was asleep, he said it was because he trusted her.

An automatic number plate recognition (ANPR) search showed F’s car driving at 18.00 at a major junction about 10-15 minutes away from the family home, which F is likely to have passed on his way home. The search showed M’s car driving at the same location (she would likely have passed the junction on her way to and from Tesco). The timings were given as 20.16 and 21.16. The car was not seen at any later time. I refer to this evidence below.

The family computer, which was in the living room, was examined by Dr G, a forensic computing specialist to establish what activity had taken place between 20.00 and midnight on 11 February.

At 20.39 the computer was switched on and there was internet activity until 22.23, at which point the computer (which enters a ‘sleep’ state after 20 minutes without use) entered a ‘sleep’ state.

At 22.27 M used an ATM machine to withdraw £10 at Tesco.

At 22.54 computer use resumed. The computer was roused from sleep by someone touching a key on the keyboard, or pressing the ‘on’ button briefly.

At 23.11 computer use ended and the computer entered ‘sleep’ state 20 minutes later.

At 23.15 M paid for goods at the Tesco checkout. She had been seen on CCTV entering and leaving the store.

At 23.21 M paid for petrol at Tesco.

M’s ambulance call was at 23.41. She told the operator that she had gone out shopping, leaving the children with F, and that when she came back the twins were on the floor: "it seems that my toddler has been throwing them around". She thought F had fallen asleep and she assumed that C had put the babies on the ground because he had been standing over them when she returned. She could not ask C what had happened because he is autistic. B had a head injury and was not breathing normally.

At 23.43 a CAD message was forwarded by the operator to Mr T (first response unit). The message on his screen read "Mum went shopping for an hour – left husband with children – came back and found twins on floor - ?autistic toddler threw them on floor".

At 23.48 Mr T arrived and saw F waiting outside the flat. He says that he asked F what had happened and that F said: "my son threw my baby against the wall, what for I don't know". Mr T had to ask three times because of difficulty in understanding F.

Mr T then went upstairs and found M holding B. He says that she told him that she had come back from shopping and that her four-year-old had thrown the baby against the wall. He said at first that the room was pitch-black, but that he could see that B was cyanosed. On further questioning, Mr T accepted that his police statement did not accurately record the CAD message (which made no mention of a wall), that there was a possibility that he had misunderstood F, that the room may have been lit, and that when talking to M his attention had naturally been on B, who was extremely unwell.

At 23.53, fragments of the conversation in the flat were recorded in the 999 call. An enhanced transcription shows M telling Mr T that she had gone shopping and left the twins with F, and that when she came back they were both on the floor and that it seemed like the toddler had thrown B around.

At 23.57 the ambulance arrived and took M and the twins to hospital. F and C followed in F’s car. In the ambulance M told Ms A that she came home and found both babies lying on their backs.

The ambulance arrived at 00.13 on 12 February. PC B was present when the ambulance arrived. B was received by Dr N. Mr T handed over to Dr N, explaining what he had seen and heard at the home address.

At 01.15, a CT scan revealed severe skull fractures, with the brain herniating out of the right sided fracture.

At 01.30 the consultant paediatrician, Dr R, arrived. She noted that B’s head circumference was rapidly and visibly increasing.

About half an hour after arrival, when initial assessment of B had taken place, Dr N spoke to M and asked her what had happened. Dr N’s notes, made up several hours later, record this: “Mum thinks it could have been the older sibling who could have hit the baby’s head on the wall.” Dr N was at first confident that M had said this to her, but on further questioning she explained that the conversation took place in the room where B was being treated and that she now has no independent memory and relies on her notes. She believed that M had spoken of a wall or a brick wall, and did not think she had mixed up the two accounts given to her by Mr T and by M, but she could not be sure about this. Further, Dr N is recorded as telling a meeting on 16 February that M had confirmed what she had told the ambulance crew and again said that C had "swung the baby against a brick wall", but she could not now remember whether she had used these words or not.

PC B stayed with M at hospital for about an hour. During that time M told her that she had gone out for about an hour and on returning found both babies on the floor of the living room. F had been in the bedroom asleep. The 4 year old son was in the living room with the babies. F had had an injury to his head earlier in the day. M did not say anything about B being thrown against a wall. Had she done so, PC B would have noted it. She felt that C’s behaviour was strange, in that he had no regard to anything but attracting his parents’ attention.

At 01.30, M was also spoken to by TDC C. M said that on her return she saw the twins lying on the floor, close to each other, about 3 metres away from the chairs. J was crying but B was not. M said that C was standing over the twins, saying "look at the babies". M said she believed that C had thrown them there and that she thought this because C was the only one there and F was not in the room. When she shouted for him he did not respond and when she walked towards the bedroom she met him coming out. He had been sleeping and had just woken up. TDC C confirmed that M had not been speaking of C in a blaming way or describing him as being violent, nor had she mentioned a wall, or stamping or swinging.

At 01.30, F was spoken to at hospital by DS A. He said that before M left, she had advised him to keep an eye on C, who had a fascination with the twins. F then went into the bedroom with C and put him in the bed. He covered him with a quilt and C then fell asleep. F then lay next to him and fell asleep too. The next thing he knew was being woken by M, who was shaking him and screaming for him to wake up. The quilt was on the floor and C was not lying next to him any more. F described going into the lounge and finding the babies on the floor. He picked up J and M picked up B. She rang 999.

DS A noted that C’s behaviour was unusual for a 4-year-old at that time of night in that he was hyperactive and noisy and not apparently tired. He was fixated with F’s mobile phone and at one point climbed up the back of F’s chair to try and get it back.

Arrangements were being made to transfer B to a specialist paediatric unit, but he died before this could take place. He was pronounced dead at 03.25.

At 03.05 a bruise was seen on B’s chest, which had not been visible on careful examination at 01.30.

C and J were placed with their aunt, who had arrived at the hospital earlier.

At 03.15, TDC C and DS A inspected the family home, which had been sealed off.

At sometime after 05.30, the parents were spoken to by DS K. F said that C had fallen asleep first and that he himself had then fallen asleep on the bed. M had then woken him up, saying "look what C has done". M told DS K that C would look at and touch and kiss the twins, but would not hurt them.

At 07.30, M was formally interviewed by police at the police station. She said that she had no idea where C’s behaviour had come from. She described leaving F watching television, with C awake and the twins asleep. They were fastened into their chairs with "a lock kind of mechanism". When she returned, she heard crying. At first she was not surprised, thinking that they were ready for a feed. She then saw them on the living room floor, somewhere they had never been placed before. C was looking over them. She could see that something was wrong with B, so she picked him up and saw that he had a big swelling on his head. She shouted for F and went towards the bedroom and he poked his head out of the door. He said that he and C had been sleeping and he did not understand what had happened. She called for an ambulance. Washing had been pulled out of the washing machine in the kitchen.

At 08.44, F was formally interviewed by police at the police station. He was not interviewed as a suspect and managed to give his account despite the lack of an interpreter. He described the events of the day and explained the injury to his eyebrow and the visit to the pharmacist. When M went out she told him to keep his eye on C. He described watching C go to sleep and going to sleep himself, before being woken by M. He saw the twins on the floor and thought "Oh, what happened?" The ambulance was called.

Between 08.00 and 10.50, the flat was searched and forensically examined by the crime scene manager. No sign of disturbance to any walls was seen. Hemastix tests at various locations were negative for any signs of blood. No areas of impact were identified, nor was there any sign of the scene having been cleaned up.

During this period a video film of the property was made and still photographs were created from the video.

M was interviewed again on 21 March. She described events earlier in the day. She closely repeated her account of the scene when she returned to the flat. Everything was in a mess, not how she had left it. When asked about the sightings of her car earlier in the evening, she said that F may have gone out to buy a drink to have with his dinner. She was shown one of the chairs. She says that the twins usually have their harnesses on and that she was sure they did that night. C had tried to take the twins out of their seats before. When she left, F was sitting by the computer and watching television. She had kept an open mind as to whether it was F or C that had injured B.

F was interviewed under caution on 27 April. A solicitor and an interpreter were present. He gave a similar account to that given in his earlier interview. He said he couldn't understand how it had happened. He strongly denied harming B. He described how strong C is and said that he believed that C did it.

DS L described the overall investigation. These were significant aspects of his evidence:

Synthesising this information, a reliable working timeline on the evening of 11 February is as follows:

On 16 February, a post-mortem examination was performed by Dr W, under the supervision of Professor Risdon, revealing the following injuries:

Professor Risdon’s report describes the examination:

Specialist examination of the brain was carried out by Dr Al-Sarraj, who found severe damage:

Specialist examination of the eyes was carried out by Dr McCarthy. He found extensive fresh haemorrhage in the extradural, intradural and subdural spaces of each optic nerve, but no retinal haemorrhages. The presence of extensive damage to the nerve in the absence of retinal haemorrhages is somewhat unusual.

Dr Cartlidge advises that B was a healthy infant prior to the injury. He did not have any medical condition that made him more susceptible to skull fractures or intracranial injuries.

All are agreed that death was due to severe head injury. Dr Cartlidge, with whom other witnesses agree, says that B would have become unconscious immediately and would not have cried out at the pain that he would otherwise have experienced. There would have been an obvious, immediate and extremely frightening change in the baby’s condition from the moment of injury.

Dr R considered that this might have been caused by the resuscitation attempts, although it was not at the point on the chest where pressure would normally be applied.

Professor R did not feel able to hazard an opinion as to the cause of the bruise.

All doctors emphasised that the absence of experimental evidence made it impossible to give scientific information about the amount of force required to cause these injuries, but all were agreed that it would be severe. Injuries of this gravity are very rare (neither very experienced paediatrician had ever seen their like in a living child) and are normally only seen after very severe road traffic accidents.

Nor, according to Mr Richards, is it possible to say whether B’s infancy would make his skull more or less likely to fracture in response to a given force. On the one hand it was less strong than an older child’s skull, while on the other it was more flexible. Professor Risdon was of the same opinion.

Dr Cartlidge and Dr McCarthy were more inclined to emphasise the vulnerability of the head because of B’s extreme youth. The head is designed to withstand substantial birth force, but not to withstand impact.

Dr R said that her department commonly sees linear fractures, but not multiple fractures without a history. She said that it was impossible to exclude the injury being caused by a 4-year-old but that it would require significant force.

Professor Risdon reports that the head injury, with its long front to back fractures, was caused by crushing. The post-mortem findings alone do not make it possible to say whether impact was also involved. Support for there having been one or more impacts is found in the advice of Dr Al-Sarraj, which Professor Risdon accepts. However, the findings are not easily explained by impact trauma alone, because the fractures are bilateral and similar.

Professor Risdon emphasised how extremely rare these findings are. He could only recall one remotely similar case in his lengthy experience: it had been accepted by a jury that head injuries of this kind might have been caused by a child jumping on to the head of a baby from a top bunk, no such event having been described.

He was not prepared to exclude the possibility of the injuries being caused by a child stamping or jumping on the baby’s head. He noted that the context did not contain previous evidence of violence to children, nor any forensic evidence of assault on the baby by an adult.

Dr Al-Sarraj advises that the evidence of impact injury was very clear on the basis of the brain appearances, while the findings from the spinal cord were less clear. However, extradural bleeding in the spinal cord is likely to be associated with trauma (e.g. stretching, perhaps as a result of violent movement of the brain, which is part of the same structure), and while the subarachnoid and axonal damage may equally be due to ischemia, when taken together with the extradural bleeding the appearances in the spine point to a traumatic cause.

Dr Al-Sarraj further notes that the pattern of brain injury does not always correspond with that of skull injury. The existence of a left-sided haematoma of this nature may be related to the left-sided fracture, but it may also be a countercoup injury following a blow to the right side. On the other hand the extent of the right-sided damage to the brain is an indication of impact to that side of the head.

He further advises that on the basis of his examination, the appearances were more likely to be due to impact and violent movement than to a crushing force alone. Crushing by steady pressure might explain the fractures but would be more likely to cause focal damage and would not explain the diffuse damage to the brain and spinal cord. He accepted that a heavy jump from a good distance might explain the changes to the brain and could not rule out the injury being caused to the head in a static position but felt that an injury sustained to the moving head was more likely, consistent with the head being hit against a hard surface once or more than once.

Dr McCarthy reports that the findings in the eyes are consistent with significant head trauma and particularly with crush head trauma. Based on ophthalmic findings in isolation, the injuries are consistent with compression alone but some movement of the head cannot be excluded. Multiple severe movements of the head, such as shaking produces, are very unlikely because of the absence of retinal injury, which is associated with shaking. He considered that the evidence of skull and brain pathology would give the more reliable indicator of possible mechanisms.

Dr Cartlidge considers that the head injury was a single event caused by a crushing mechanism, this being more likely than two impacts because (1) the skull fractures are strikingly symmetrical, indicating a similar direction of force on each side of the head, (2) a mechanism of crushing force with the head being compressed against the floor is easily envisaged, and because (3) two or more impacts would be unlikely to have a similar direction of force.

He agrees with Mr Richards that the primary impact was to the right side of the head. He is of the view that there must be a crushing element and that impact alone without some continued crushing force is most unlikely. He cannot discriminate between the head having been still and the head having been propelled into a hard object. Had the head struck an untextured hard object, external marks would not necessarily be seen.

He considers that the most obvious mechanism would be someone standing, stamping, jumping or falling on to the side of the head. The absence of external scalp damage makes a stamp or jump or a kick by a shoe-wearing adult unlikely.

An adult could in his view cause this degree of injury by standing, stamping or jumping on to the child, or perhaps by falling on to the child, depending on the mechanism of fall. The possibility of the baby being sandwiched between an adult who had been pushed and a hard object (e.g. a wall) could not be excluded, but is problematic, because the adult’s reflexes would probably save the child.

As to whether the injury could have been caused by C, he thought that of the possibilities (falling onto B, standing on B, dropping B, stamping or jumping on him), only jumping, probably with both feet, could in his view generate the necessary force. The impact would have to be to the side of the head, with force on the parietal prominence, not on the forehead. This makes it more likely that if the child was on the floor, he would be on his front, as the face would then be to the side. If he was on his back the face would be to the front or oblique, and these fractures would not result from pressure on the forehead. There would not necessarily be visible external injuries.

Dr Cartlidge was clear that C is not strong enough to have swung B against the wall.

Mr Richards said that the pattern of fractures was very unusual. It was most likely caused by impact with crushing – a blow with continuation of the force. The extensive brain changes on the right side suggest impact to that side, if impact was involved. He could not say whether the head had been static or moving.

The extent of the fractures was similar, if not more severe, than those suffered by a child falling from a first-floor window or being ejected from a fast-moving car. Mr Richards speculated that the damage could have been caused by an adult stamping, jumping or standing on the head, or by the child being thrown or hit against a wall. He had no experience such an injury being caused by a child being crushed by a falling adult.

Asked whether C might have caused the injuries, Mr Richards thought that the only conceivable mechanism would have been an accurate jump from height onto the head.

Dr Al-Sarraj conducted a number of tests, the most specific of which related to the early signs of neuronal ischemia. This showed that the damage to the brain occurred a few hours before death. Dr Al-Sarraj gave the bracket for maximum survival at 4-6 hours, emphasising that this was a scientific estimate and not an accurate measure.

Dr Cartlidge estimated that B was unlikely to have survived his injuries for more than about 30 to 60 minutes without medical attention. The clinical features do not contradict the history of B being normal at about 22.30 and moribund at about 23.40. He was very likely injured within about 30 minutes of the arrival of the ambulance, by which point he was near death.

Mr Richards reports that the CT scan shows an extremely severe head injury, with damage throughout the brain, indicating that B was going to die. The scan does not assist with timing, other than showing changes that were recent. Based on the child’s clinical state, the visibly increasing head swelling seen by Dr R, and the CT scan, he assessed the injury as occurring within a few hours of the observations. It depended on whether B’s condition was constant from the moment of injury, in which case Dr Cartlidge’s more specific estimate might be right, or declining, in which the period could be longer. Based on experience, he could not draw conclusions from measurements of heart rate, breathing rate or oxygen saturations, as these are variable and do not pin down the time that had passed since injury. He said that a neurosurgeon is at least as well placed to advise as a paediatrician. Overall Mr Richards concluded that the injuries were caused within a few hours of death and after B was last seen as normal.

Professor Risdon said that the injuries were so severe that the child was extremely unlikely to survive for longer than an hour or so without life support. However, circumstantial evidence was a surer guide to timing than pathology. Particularly with a very unusual injury, the overall context was essential.

C’s nursery referred him for assessment. He was assessed by an educational psychologist in February 2011 who found him to have significant difficulties with social understanding, language and communication. In April 2010, a specialist clinic diagnosed that he has an autistic spectrum disorder. He has poor eyesight and wears glasses.

In September 2010, he started at mainstream school, mornings only until February 2011 but full-time since then.

C’s motor development is normal, though he has been noted to have some slight delay in fine motor skills. His weight and height are on the 75^th centile. In February 2011, when he was 4½, he weighed 19 kg, which is average for a 5-year-old.

In December 2010, C was assessed to be functioning at the level of a two-year-old child and to have significant learning difficulties. It was recommended that he receive a statement of special educational needs, but in fact the LA’s SEN service have informed the parents that his needs are being met at his current school, where he receives significant additional support.

Evidence was given by Ms P, the school special needs co-ordinator. She has known C well since September 2010. She describes C as "a lovely boy, smiley, cheerful and willing to comply with directions". He likes routine and can have tantrums if he does not get what he wants. Change can upset him but he quickly recovers. He has some level of interest in social interaction. He can play in an obsessive way and be fixated with particular toys. There was no significant change in behaviour after the birth of the twins. He has never caused the school any concern for the safety of other children, nor been aggressive, violent, erratic or unpredictable, nor has M ever described him as behaving in that way at home. He has not been seen to jump around on furniture at school.

Ms S, C’s current social worker, describes him as an active, playful 5-year-old who needs additional guidance and one-to-one support but is not more difficult to manage than an average 5 year-old. He can have tantrums, like a younger child. She notes that he has some difficulty in fine motor skills, and is not able to put on shoes with Velcro straps.

Neither parent has suggested that C has ever behaved in an erratic or dangerous way. They have described him as being interested and loving towards the twins. They report that he has had more tantrums since being in foster care.

C’s foster parents, who have a 4-year-old son of their own, do not report any erratic or dangerous behaviour by C.

Records of C’s contact with his parents show that he does become boisterous at times, jumping about on furniture and occasionally pushing the supervisor. Ms S did not regard this as being out of the ordinary for a boy of his age, and nor have the parents expressed concern.

The police considered whether C could be interviewed about the events of 11 February. Having consulted C’s school and taken specialist advice, it was concluded that C should not be interviewed.

The LA at the outset very properly presented a case that allowed for B’s injuries to have been caused by either parent or by C. Having heard the evidence, it submits that a finding can properly be made against F alone. It is also critical of M’s refusal to confront the real prospect that F was responsible, raising concerns about her capacity to protect the children in future.

M denies responsibility for the injuries, or knowledge of how they occurred, or of being neglectful in leaving the children with F. She does not assert a positive case against F or C. She does not accept criticism of her response to events.

F asserts that the court can be satisfied that the injuries were caused by boisterous behaviour by C, perhaps as a result of jumping onto B from furniture. He relies on the absence of any previous concern about his parenting: for him to be responsible would represent behaviour that came out of the blue.

On behalf of C, a finding that F was responsible for the injuries is sought. F's account is described as incredible and M’s evidence as unsatisfactory, although not in such a way as to make it likely that she caused the injuries herself. C’s Guardian invites the court to reach conclusions that are as clear as possible as a basis for future orders.

On behalf of J, an analysis of the evidence was presented, without any particular case being advanced. The analysis draws attention to shortcomings in the evidence of both parents, and the weight of the argument points in the direction of F as being responsible for B’s injuries.

The parties’ detailed opening and closing submissions are contained on the court record and I have taken account of them in full.

B died as a result of catastrophic, extensive and brutal injuries sustained in a home setting. They are at or beyond the extremity of the experience of any of the immensely experienced doctors who have advised, or indeed the experience of the court.

Severe force would be required to cause such injuries. It would not be safe to assume that the degree of force might be less for a baby of B’s age than had he been an older infant.

The injuries were caused by crushing force, probably following impact to the right side of the head. They were not caused by shaking or by one impact alone. An impact/crushing mechanism better explains the findings than multiple impacts. The evidence of all experts was of considerable assistance, but I particularly accept the combined opinions of Dr Al-Sarraj and Mr Richards on this question.

I find that the only realistically possible way in which C could have caused B’s injuries would have been by jumping on him from height. It is unlikely, though not completely impossible, that a two-footed jump from ground level could have caused the injuries, and extremely unlikely that C could have caused them by stamping on B with one foot, however hard.

Although it is impossible to be categoric, it is very probable that the fatal event occurred no more than an hour before the ambulance call, and quite probably well within that time. I found the evidence of Dr Cartlidge helpful on this question. The way in which his views evolved during his evidence was a sign of careful thinking and he should not be criticised for it.

No conclusions can be drawn about the bruise on B’s chest.

C has never displayed any propensity to aggressive or reckless behaviour. His normal behaviour towards B and J has been gentle and inquisitive. His autistic spectrum disorder does not increase the likelihood of his having injured B by acting violently or carelessly. His observed physical behaviour is fairly normal for a four-year-old, and for the purpose of this enquiry, I find no reason to treat him as being likely to behave differently from any other child of his age.

Having considered the evidence, and examined the child seat, I conclude that it would not be impossible for C to open the clips of the harness, but that it would represent a considerable achievement for him to manage it.

The records created during the course of M’s trip to Tesco demonstrate that she was there between 22.27 and 23.21.

No conclusions can be drawn about the ANPR results. Given that

In contrast, the evidence in relation to the family computer is significant. It was activated at 22.54 and remained active for a quarter of an hour. It was probably activated by F, but it makes no difference if it was activated by C touching the keyboard.

In examining how B came by his injuries, I am in the end not assisted by reports of statements made by the parents that night, or by reports of their demeanour. Collectively, the parents had 12 discussions in stressful circumstances during the course of the night:

Looking at these discussions overall, I am not in a position to find that either parent referred to B having been thrown against the wall. The account of this comes only from Mr T and Dr N. Having carefully considered their evidence, I am quite sure that they both genuinely believe that they heard reference being made to a wall, and they may be right, but the possibility for confusion or contamination is too great for me to rely on that information: see paragraphs 77 and 83 above. Nor, for completeness, can I be satisfied that F referred to a wall (as opposed to "the world") in his later interview, not referred to above.

I am not satisfied that the patch on the living room floor was wet. If it was, it would surely have been noted and investigated by the crime scene manager.

I find that the parents had a violent argument on 23 May 2010. It involved significant violence by F towards M, as described by her to the police at the time. It also involved more minor violence by M toward F. I reject M’s statement that she exaggerated the incident and I reject F’s denial of violence. The incident does not establish a propensity to injure children, but it demonstrates three things: F’s capacity to be violent on occasion, the parents’ capacity to be untruthful, and M’s tendency to make excuses for F.

In contrast, having heard the account of the parents alongside all the other evidence, I accept M’s account of events at home on 11 February up to the time of F’s return.

It has not been established that the parents had a disagreement that evening. I make no finding about how the cut to F’s head was caused.

I find that M left the flat at about 22.10, that she returned at about 23.35, and that she made the 999 call within a couple of minutes of entering the flat.

It was the first time that the three children had been out of M’s care and that F had had responsibility for them in M’s absence.

The only reliable information about what happened during M’s 1½ hour absence is that

I have carefully considered the photographs taken the following morning and M’s evidence about the state of the flat when she returned: see paragraph 48. At first, I believed that this might offer clues to whether C might be responsible for the injuries. In the end, I have been unable to derive much assistance from this information:

I find that B was in good health when M departed and that he was injured in her absence. In reaching this conclusion, I take account of the following matters:

I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.

I turn to consider whether F’s explanation that C caused B’s injuries is credible. If it is not, the inescapable conclusion is that they were caused by F.

For C to have injured B in the way suggested by F calls for the combination of a large number of circumstances of varying degrees of individual improbability:

I next consider the quality of F’s evidence. I take account of the fact that it was harder for me to assess than it might have been if we shared a language. Added to this, F was a rather undemonstrative witness who had the benefit of a demonstrative interpreter. However, in the end, I have found it possible to reach a firm conclusion about F’s credibility.

I found F to be an unconvincing witness. His evidence was unsatisfactory in a number of specific respects, of which these are just examples:

In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries. Lies may be told for other reasons. The burden of proving responsibility remains on those that allege it.

Nonetheless, in the present case there are a very limited number of possible explanations for untruthfulness on the part of F. It might have arisen from shame at a failure to supervise the children, allowing C to injure B. However, as F has in fact alleged that C is responsible, this is not a likely explanation. It might have arisen from shame at having injured B accidentally, for example by standing on him. When I asked him about this possibility, F completely denied that this had happened. The only other explanation for untruthfulness would be because F had assaulted B and is unwilling or unable to admit it.

My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries. A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole. I reject F’s case.

I find that F caused B’s injuries. I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account. I do not accept that he fell asleep at all, and doubt that C did either. I think it highly unlikely that C removed the twins from their seats and find that they were probably removed by F. What precisely happened is known only to F, who refuses to reveal it, and possibly to C, who cannot describe it. I decline to speculate on how the event occurred. The only plausible aspect of F’s account was his description of his feelings of guilt, but these do not spring from guilt at neglecting to supervise C, but from knowledge of what he did to B.

It is difficult to imagine such injuries being caused accidentally, and as F gives no such account, it has to be assumed that they were caused deliberately in what must have been a terrifying assault. As matters stand, F has not only caused the death of one child but has thrown the blame on another; it is even possible that he arranged the twins on the floor to make it look as if C was responsible. Unless and until what happened is understood, there must be a risk of repetition.

M is not to be criticised for leaving the children with F, whatever the circumstances of her departure. B’s death could not have been foreseen, and her distress at having left the children that night is genuine. Up to that night, she had not failed to protect them.

The position since then is different. While M did not fail to protect, she has undoubtedly failed to protest. She has doggedly turned her face away from the likelihood that F was involved. She has never even suggested that he might have injured B, instead choosing to marry him and become pregnant by him without even waiting to hear the medical opinions, let alone the court’s conclusions. While continually asking others to help her to find out what happened, she has made no meaningful effort to do so herself. It is not enough to say “I don’t understand why F slept through and didn’t hear anything”, and then leave it to others to explain how that could possibly have been.

M’s actions cannot remotely be compared to F’s, and some understanding and sympathy is due. She has lost a child in tragic circumstances, been separated from her other children, and is now pregnant again. However, by her response to B’s death, she has let him and the other children down. She has put her own dependence on F ahead of the interests of her children. This cannot continue if she is going to parent C, J and the expected child safely without F’s involvement.

On 3 August 2011, HM Coroner held an inquest into the causes of B’s death. No legal representation was present. Very limited evidence was taken from Professor Risdon and DS L. Neither parent gave evidence. The Coroner entered a verdict that B’s death was an accident caused by C. The police marked the case as ‘no crime’ as a result of the verdict.

No party has invited me to attach any weight to this verdict, no doubt for these reasons:

For these reasons, the LA, supported by C’s Guardian, submits that the Coroner’s verdict was fundamentally flawed. It is not for me to determine that submission, but I well understand its basis. I will direct that a copy of this judgment is sent by the LA to HM Coroner. I also give permission for the judgment to be disclosed in the course of any attempt that may be made to rectify the verdict. Such an application would now be narrowly out of time, and as such could only be entertained in exceptional circumstances. I hope that the circumstances that I have described in relation to this inquest are and would be considered to be exceptional.

I acknowledge that the functions of the Coroner and the family court are quite different. However, the verdict in this case did nothing to make M confront the obvious possibility that F was responsible for B’s fatal injuries, and was clearly unhelpful to the position of the children with whom I am concerned.

The parties will now need a short period of adjustment followed by a process of intense discussion and assessment. Any proceedings taken in relation to the new baby shall be transferred directly to this court, consolidated with these proceedings and reserved to me if available. Ms Shepherd will resume her role as Guardian to both two children and will no doubt be appointed to represent the interests of the new baby. Likewise, I expect the LA will want to ensure that Ms S, who has been present throughout this hearing, continues as social worker for all three children.

The LA has put forward proposals for the next steps that must be taken. Subject to any matters of detail raised by the parties, I will approve those plans, which will be incorporated in my order. The order will also fix any necessary dates for the final resolution of these proceedings.

Although there are bound to be challenges to any parent in looking after two or three children in such difficult circumstances, the focus of the work with M should be on issues of safety and separation. I have heard nothing in these proceedings to suggest that she is not a competent parent in normal circumstances.

I express the thanks of the court to all the witnesses who assisted in this inquiry. A copy of the judgment should be sent by the LA to the expert witnesses and to Dr R and DS L.

All parties have been expertly represented, making the court’s task easier than it would otherwise have been. I would particularly thank Ms Grief and Mr Edwards and the team that instructs them for the efficient way in which the case has been prepared and presented.