XP (A Child), Re

On 26^th January 2014, an 8-month-old baby boy, M, died whilst in the care of his young mother, B, and her partner, A. After his death, he was found to have sustained a number of bruises and marks to his body, and an unusual fracture to his right tibia. B and A were arrested and interviewed. An extensive post mortem examination was carried out, which concluded that the cause of death was “unascertained”. At the time of M’s death, B was pregnant with a child, of whom A was the father. On 19^th April 2014, she gave birth to the baby her second son, X. In view of the circumstances of M’s death, the local authority started care proceedings in respect of X, and the case was thus allocated to me for a fact-finding hearing. This judgment is delivered at the conclusion of that hearing.

Initially it seemed that the case would involve an investigation into the cause of M’s death, and whether one or both of the adults was responsible. In the event, the local authority has not sought a finding to that effect. The focus has rather been on the causes of the fracture and bruises, and whether M was, as alleged by the local authority, neglected by his mother and her partner.

B, the mother of M and X, was born in 1994 and is therefore now aged 20. She comes from a large family and has five sisters. Sadly their father died some years ago and thereafter B and her sisters were brought up by their mother, whom I shall refer to as the maternal grandmother. The grandmother gave evidence before me, as did three of B’s sisters. One of her sisters has accompanied B to court and sat with her nearly every day. It was plain to me – and confirmed by a community midwife who has known the family for a long time and gave evidence before me – that they are a close family who are accustomed to giving each other strong emotional support. One of B’s sisters, L, is currently looking after X, and is willing to carry on doing so, should that be necessary.

When she was 16, B started a relationship with a man, C, by whom she became pregnant in the latter part of 2012. In the course of that pregnancy, she had a recurrence of depression which she had previously experienced following her father’s death. The relationship came to an end after C was allegedly violent towards B.

In the early part of 2013, B met another man, A, on Facebook. A is about eight years older than B having been born in 1986. He had been in a number of early relationships but had no previous children. B and A started a relationship and A spent increasing amounts of time staying with B at her mother’s home. B also spent time staying with A at his mother’s house.

On 9^th May 2013, B gave birth to her first son, M. They were only in hospital for about 2 hours and then B returned with the baby to her mother’s home. Unfortunately, however, relations between A and B’s mother and sisters were strained. In her oral evidence, the maternal grandmother said that neither she not her other daughters really liked A. One reason was that they believed that he was taking drugs, and indeed A admits that he is a regular smoker of cannabis. In addition, A and B would tend to stay in B’s room, and on occasions the grandmother heard A shouting at B. After two or three weeks, the maternal grandmother asked A to leave, whereupon B decided to go with him and they and M went to live at A’s mother’s house. In oral evidence, the maternal grandmother described how she had not expected B to go with A, and added that B had left the property immediately without her belongings or the baby’s clothes. Subsequently, one of her sisters had taken the clothes round to A’s mother’s house. (In passing, I note that it was the evidence of A’s mother that B and gone to live in her house before M was born. Other witnesses disagreed, and having heard the evidence, I am satisfied that A’s mother’s evidence is incorrect and that B, with M, went to live at A’s mother’s house two to three weeks after M was born, although throughout the period B had been staying some nights at that address.)

B and M were registered with a GP’s surgery and received regular visits from the health visitor. On a home visit on 27^th June, a routine test of B for post-natal depression revealed a very high score. B said she was feeling rubbish and crying all the time. She was referred to the doctor who re-prescribed anti- depressants. The medical records suggest that she told the GP that she was having difficulty bonding with the baby. There were, however, no signs of any problems with the baby. On the contrary, M was doing well, putting on weight, and giving all appearances of being well looked after. In oral evidence, B described M as being generally an easy baby. Observations of other professionals, in particular the health visitor, were that there were no difficulties in the relationship between mother and baby. On 23^rd September, for example, the health visitor noted warm communication between the adults and between the adults and M. On that occasion, however, B said that she had stopped taking the antidepressants and that she was aware that her mood levels and confidence had lowered as a result. The health visitor suggested that the mother should approach some agencies for support. It seems the mother did not take up this suggestion.

According to B’s evidence before me, by this stage difficulties had begun to arise in her relationship with A. It is important to note that she said nothing about this at the time but only much later after the relationship had broken down. At this time, there was little contact between B and her family. B said that the reason for this was that A did not like her seeing the family and did not want them interfering in their lives. It is B’s case that A was very controlling and obsessively jealous, accusing her of having relationships with other men. In his evidence, A denied that he was either controlling or obsessively jealous. He said that both he and B agreed that they would stop using Facebook to avoid the possibility of relations with other people. It was B’s evidence that A would restrict her access to her mobile phone and also on occasions would lock her in the bedroom when he went out, and sometimes stayed out all night. A denied that this was true, saying that, if he went out, B would lock the door from the inside to prevent his mother disturbing her. These issues came to a head when B discovered she was again pregnant in August or September 2013. For some reason, A, and his mother, held the belief that A could not have children and B was therefore accused of being unfaithful. There was talk of DNA testing and on one occasion, when the couple were arguing in the bedroom with M present, his mother came upstairs to intervene and observed A tap or slap B on the face. A accepts that he did “tap” B and says that he apologised profusely for it afterwards.

Meanwhile, relations between B and A’s mother had also become strained and in September A’s mother gave A and B a month’s notice to leave the property. On 18^th October, B, A and M moved to bed and breakfast accommodation. This was plainly a difficult time for B and A. As a result of this move, B and M had to change health visitors, and it seems that no health visitor saw M again after this move. In addition, the restrictions imposed by the bed and breakfast accommodation meant that they had to be out of the property throughout the day. During this time, there was only very occasional contact between B and her family. It is B’s case that she felt increasingly isolated and that, although she was in love with A, she found the restrictions he imposed on her life very difficult. On one occasion around this time, B and M were visiting A’s sister’s house, and were left alone for a time with A’s niece, J. According to J, B handled M roughly when changing his nappy. This is emphatically denied by B.

In November 2013, the family was allocated a flat. Although this was temporary accommodation, it was manifestly much better than the bed and breakfast accommodation. This move necessitated a changed of GP’s surgery. The community midwife pressed B to register with a new surgery, but records show that she did not do this until early January, some seven weeks later.

At Christmas 2013, B, A and M visited B’s mother and sisters on Boxing Day. It sees that this was a successful visit. A was welcome into the house and indeed some of B’s sisters said openly to him that they had been wrong about him. At this point, M had just started crawling, using his arms but not his legs, and had also been given a baby walker in which he scuttled around the floor. He was plainly the centre of attention during this visit, and in evidence the maternal grandmother and B’s sisters said that A was good with M. It might have been thought that this happy occasion would have led to a resumption of closer ties between B and her family. After Christmas, however, there was hardly any contact between them. It is B’s case now that this was because A was controlling and possessive. A disagrees, and says that, as far as he was concerned, there was no reason why contact with B’s family should have been interrupted. It is clear, however, that B, A and M were living an isolated life, with hardly any contact with friends or family, save for A’s mother.

Up to this point, however, there were no concerns noted about M’s care and he seemed to be making good progress. He was mobile and crawling and beginning to cruise around the cot holding the bars. It is the evidence of B and A that he regularly used to bump himself as he was crawling about the floor. A said in evidence that he regarded this as normal behaviour for a little boy because he was learning. It is the evidence of B and A that, on one occasion when he was in his baby walker, they noticed that he was not stepping on one foot. They examined him but could find nothing wrong. It is also the evidence of B and A that the mattress in M’s cot did not fit so that there was gap between the end of the mattress and the end of the cot through which M’s leg or arm got stuck on occasions. There also described three or four occasions when he fell off the bed on which he had been left. According to B and A, however, there were no signs that he had sustained any injuries as a result of these events, although it is A’s evidence that he did suffer regular bruises. Indeed, A says that a new bruise seemed to appear almost every day.

On 21^st January 2014, community midwife Anna J saw B at the children’s centre. A and M were also present. M appeared well and was appropriately dressed for the cold weather. The midwife had no concerns. Noting that B had missed an appointment with her consultant to discuss the outcome of a DVT test, she urged her to attend hospital clinic the following day. In the event, B did not attend as agreed. The midwife texted A to find out if she had attended and received a reply saying that she had not got there, but was going down to the doctor the following morning. A added that he would make sure that she attended. In the event, B did not go to the doctor. She contended in these proceedings that she did not need to do so as she already knew the outcome of the test and that no further treatment or action was required.

It is the case advanced by B and A that, during this week of 20^th to 24^th January, M developed a cold. Earlier, when the family had been living in the bed and breakfast accommodation and M had developed a runny nose, A had purchased a nasal spray which thereafter they applied to M, and B told the court that a second spray was subsequently purchased in January. Both B and A say that M did not like having the nasal spray applied and would struggle so that they would have to hold his head when using it. By the end of the week, M’s condition had worsened. In their evidence, B and A give somewhat differing accounts of his condition. A says that he was being sick on Thursday and at various times thereafter over the weekend. B says that until Saturday night he was just coughing up phlegm. Over the weekend he was very unsettled and on the night of Saturday to Sunday he and the adults hardly slept at all. At one point, in the middle of the night, he took a bottle of milk but then vomited up the entire contents. B says that eventually on the following Sunday morning they finally managed to get M to sleep around 12.00 noon or 12.30 pm, wrapping him up swaddled tight in a blanket and placing him down in his cot next to their bed on his front with his head turned to one side. The reason for placing him in this position that B was concerned that he might be sick and there was concern that he might suffocate. It is B’s case that they themselves then went to sleep for several hours in bed. In his oral evidence, A said that he recalls attempts being made to get M to sleep but the last thing he recalled before falling asleep himself was that B had M with her lying on the bed. At some point before he fell asleep, however, A sent a text message to a friend about a cannabis deal.

B and A have given a graphic and harrowing account of what happened next. B said that she woke soon after 4 pm in the afternoon, could not hear M making any noise, and jumped out of bed. When she looked in the cot, she saw him pale and lifeless. She screamed and A jumped and ran over to the cot. He got M out of the cot and B then left the flat to call an ambulance. It is her case that she did not have access to a mobile phone at this time because A had restricted her use of her own phone and she thought his phone was not working properly. It was therefore necessary for her to leave the property to use a neighbour’s phone to call an ambulance. Having done so, she then ran back to the flat making the call as she ran. I have heard the recording of the ambulance call from which it is plain that the mother was hysterical while A was trying to resuscitate M. The ambulance crew arrived quickly and took over. M was taken to hospital by ambulance. The paramedics noticed that he was cyanosed but did not notice any other marks on his face. Despite all the efforts of medical staff to save him, they were unable to revive him and he was pronounced dead at 17.20 Afterwards, he was held by B and A while the consultant paediatrician, Dr S, took an initial account of what had happened. At this point, it was noticed that M had a number of bruises and marks, mainly on his face. It is B’s case that they were not there when she put him down to sleep in the cot at about midday and she did not see them herself until he was in hospital. At one point, she exclaimed that it looked as if he had been beaten up, whereupon A said words to the effect of “don’t be daft”.

The police were informed of what had happened and B and A were arrested on suspicion of murder. They were held over night in custody and interviewed the following day over several hours. Transcripts of these interviews, running over 500 pages, are included in my papers. A and B gave a full and detailed account of what they say had happened in the weeks and hours leading up to M’s collapse. They described how he would knock into things, and gave various explanations of how he might have acquired bruises, but were unable to offer any explanation as to how and why he had died. In the interviews, both were fully supportive of each other. In particular, and in contrast to her later comments, B spoke in glowingly warm terms of her relationship with A. Subsequently, each of them was taken back to the flat and separately recorded on video giving demonstrations about things that had happened to M, for example how he had knocked his head while crawling or while in his cot.

Having been released on bail, B and A went to stay with B’s mother where they remained for several weeks. During this period relations between B and A and B’s family were much warmer than previously. B’s mother and sisters were fully supportive of B and A. After a few weeks, B and A were allocated a new flat, having been understandably reluctant to return to the previous property, and they moved there in February 2014. Both B and A were manifestly in a state of great distress and shock throughout this period. It is B’s case now that A continued to be controlling towards and on occasions was abusive. She describes one incident when he held her by the neck against the wall. A denies that he assaulted her in that way.

Meanwhile, the investigation was continuing into the circumstances of M’s death. The pathologists, Dr. Cook and Dr. Fowler, catalogued and described the various bruises and marks on his body. At the initial post mortem on 28^th January 2014 rigor mortis was not present but there was hypostasis in two patterns of distribution, one pattern over the front of the body on the upper chest and left side of the face and the other on the back. Dr Cook noted a number of marks and injuries as recorded in a series of photographs taken shortly after death and later at the post mortem. These comprised of fourteen marks to the head at various sites and included an abrasion over the back of the top of the right side of the head, a blue bruise to the centre of the forehead, a series of bruises on the right cheek and jaw line of differing colours, a blue bruise to the left temple, a brown bruise to the upper part of the left cheek, scratches and abrasions on the nose and nostrils and small bruises on the upper and lower left eye lid. There were pin point dots on the outer aspect of the right arm, a dark pink bruise on the outer ankle and a green bruise on the left side of the back of the chest. Apart from two bruises on the face, none of the marks on the face showed deep bruising within the fat. It was also discovered he had sustained a fracture to the distal right tibia some weeks prior to his death.

The internal examination revealed no significant abnormalities and this was subsequently confirmed by histological examination. Microbiological tests revealed the presence of infection in the throat swab plus other signs of infection thought to be post mortem contaminants. Neuropathological examination confirmed no evidence of traumatic brain injury, nor other changes to suggest infection or congenital malformation. Examination of the eyes were normal and toxicology tests were all negative Osteoarticular pathological examination conducted by Professor Freemont confirmed the fracture of the tibia and revealed that the presence of no bone disease to predispose M to an increased fracture. Professor Freemont concluded that the fracture had no association with M’s death

At the conclusion of the investigation, the pathologists were unable to identify the cause of M’s death. Their conclusion as to the cause of death was expressed as “unascertained”.

B was due to give birth to the new baby in April. The local authority convened a pre-birth case conference and decided to start care proceedings. On 19^th April 2014 B gave birth to her second child, X. The local authority applied for and was granted an interim care order and X was placed in foster care upon discharge from hospital. A children’s guardian was appointed and she visited B and her family and spoke to B and the maternal grandmother about the circumstances of M’s death. Exactly what was said during these conversations remains unclear, but the evidence of B and her mother is that afterwards there was a furious argument between B and her family in which the grandmother, and in particular B’s sisters, confronted B about what had happened to M, and asserted that either she or A must have been responsible for M’s death and injuries. It is B’s case that it was at this point that she realised that, as she had not harmed M, it followed that A was responsible. Having reached this conclusion, she decided to end her relationship with A forthwith and did so in the course of a short telephone call. Since then, there has been hardly any contact between B and A, save on a few occasions, including when X was in hospital with suspected meningitis. When they were living together, B had portrayed her relationship with A as being happy. Afterwards, however, she alleged that A had been controlling, jealous and on occasions abusive. A emphatically denies that he behaved in this way. After ending their relationship, B returned to live with her mother.

The police investigation is continuing. B and A remain on bail. In the course of the care proceedings, the local authority carried out further assessments, following which X moved to live with B’s sister L. By all accounts, he is doing well there and making very good progress. He is having regular supervised contact with his parents on separate occasions each week.

In view of the fact that the case involved the death of a child, the care proceedings were transferred and listed before me. After various case management hearings, a fact-finding hearing took place in December 2014.

It is the local authority’s case that X is likely to suffer significant harm in the care of his parents, B and A, due to the physical harm and neglect suffered by his half sibling M whilst in their care.

It is important to record that the local authority has not sought to argue in this hearing that either B or A were responsible for M’s death. Instead, at the start of the hearing, the local authority sought the following findings:

I propose to consider these findings sought by the local authority under the following headings

I shall consider the various points raised by the parents and guardian in response to the local authority’s allegations in the course of the analysis below.

The hearing took place over 13 days (including one reading day). The papers consisted of statements filed in these proceedings, police statements and records, expert reports, medical notes and local authority records. Twenty four witnesses gave oral evidence in the following order: CG, one of the health visitors allocated to the families; J, A’s niece; J’s mother; Anna J, community midwife allocated to B during her second pregnancy; Dr Cook, forensic pathologist who carried out the post mortem examination of M’s body; T, B’s sister; L, B’s sister; LC, a community midwife who attended B in her first pregnancy; RW, the social worker originally allocated to the case at the start of the proceedings; Dr Cartlidge, consultant paediatrician instructed as an expert witness; Dr Fairhurst, consultant radiologist; Professor Freemont, consultant osteoarticular pathologist; Dr S, a consultant paediatrician on duty when M was admitted to hospital on 26^th January; Dr P, a community paediatrician who served as the designated doctor for safeguarding; KG, a paediatric nurse on duty when M was admitted to hospital, KB, a neighbour of the family; KT, paramedic; Paul Dorkins, toxicologist who reported on drug testing on the parents; the maternal grandmother; E, another of B’s sisters; CS, ambulance technician; A’s mother; B and finally A.

The advocates appearing in these proceedings prepared full preparatory documents and written closing submissions. B and A were separately represented and had the benefit of leading and junior counsel – Alison Ball QC and Rosein Magee on behalf of B and Tina Cook QC and Mark Chaloner on behalf of A. The local authority’s case was skilfully presented by junior counsel Miss Sarah Earley. On behalf of the guardian, Mr Mark Tooley unsurprisingly had a less prominent role at this hearing. I am grateful to all the advocates, and their instructing solicitors, for their hard work and assistance in this case. At the conclusion of the hearing, all of the advocates produced lengthy written closing submissions with accompanying schedules amounting to over 200 pages. It would be impossible and disproportionate to deal with each and every observation made in those submissions in this judgment. Suffice it to say that I have read and re-read them and taken all submissions into account.

The law to be applied in care proceedings concerning allegations of child abuse is well-established. I have summarised it in a number of reported cases, and have those principles, and the authorities from which they are derived, firmly in mind. What follows is a summary of those principles.

The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence and the court must be careful to avoid speculation. When considering cases of suspected child abuse, the court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Cases involving allegations of non-accidental injury will invariably include expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. I bear in mind that medical opinion is evolving and that today’s medical certainty may be discarded by the next generation of experts and that scientific research may throw a light into corners that are at present dark. The court always bears in mind the possibility of the unknown cause.

The evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas[1981] QB 720).

To this I add the following insight of Peter Jackson J in the case of Lancashire County Council v The Children [2014] EWHC 3 (Fam), para 9. Having quoted my summary of the law from an earlier case he added:

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

In order to make a finding that a particular person was the perpetrator of non-accidental injury, the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified although, where it is impossible for a judge to identify the perpetrator on a balance of probabilities, he or she should not strain to do so. The test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator.

Before considering the evidence on the various findings sought by the local authority, I shall make some general observations.

B came across in court as immature and was at times volatile, truculent and impetuous. Of course, I take into account the traumatic experience she has lived through, and it was unquestionably an ordeal for her, as for A, to have to re-live the events leading to the tragic loss of her son, whom I am satisfied she adored. I also take into account the fact that on the first day of the oral evidence she had come to court without her medication and was undoubtedly under a further degree of stress as a result. In her oral evidence, B became extremely upset because she can only remember how M was after he had died, and cannot recall how he was before, nor the sound of his voice. I accept the submission made by Miss Ball and Miss Magee that this makes the forensic task more difficult. However, taking those points into account, alongside the other points made by her counsel, I did not find her an accurate witness, and I formed the view that in some of evidence – for example, about M’s condition in the days leading to his death – she minimised the seriousness of matters. Reminding myself of the Lucas principle, however, I conclude that she did so because she was ashamed or embarrassed by her mistakes as a mother, because it is extremely important to her to be seen as having been a good mother, and because she desperately wants to have the opportunity to be a good mother to X. I did not form the view that she was concealing any information that might have implicated her in M’s death.

A was extremely defensive on a number of occasions in his evidence. As a result of a psychological assessment which confirmed that A suffers from dyslexia and would find it difficult to assimilate and understand documents and participate in proceedings involving documents, certain ground rules were drawn up and agreed to cover his participation in these proceedings in particular his evidence. In assessing his evidence, I take into account that he has dyslexia and that he is very sensitive about this. He spoke about this at some length to the police, saying that it made him annoyed with himself because he could not do things like other people. He described this as “childish” and it made him get frustrated and annoyed with himself. In his statement the father stresses that he struggles to read and has felt under pressure by the large number of documents in this case and how complicated they are. There have been things that have confused him and sometimes he did not understand questions he had been asked. He thinks his best version of what occurred must be as set out in the police interviews which took place closer to the time of the incidents. He said that as time has gone by things have become more blurred and sometimes he doesn’t know whether he is remembering things that occurred or things that he has been told. He too was plainly distressed about the tragic loss of M, whom in his own way he plainly loved. He too was not always a reliable witness, and has also minimised some of his behaviour, for example his cannabis use. In his case however, as with the mother, I did not form the view that he was concealing any information that might have implicated him in M’s death.

In addition to their statements and oral evidence at the hearing, I have evidence about what they said to the police. The interviews conducted by the police in the immediate aftermath of the case are of particular importance in this case. Over the course of several hours, B and A were interviewed separately and contemporaneously. They had very little time to confer prior to being arrested, and no opportunity to do so afterwards. It is a striking feature of their interviews that there are very few inconsistencies between their respective accounts. Of equal importance are the reconstruction interviews recorded on video. In each case, B and A demonstrate a series of incidents and matters of relevance to the investigation. Their accounts in interview, and their demonstrations recorded on video, are spontaneous and detailed to a degree that is uncommon in cases of suspected child abuse. They contain a significant amount of free narrative. In the circumstances of this case, and in particular their personal limitations, I consider this to be particularly significant. It is regrettable that Dr. Cartlidge had been unable to watch the reconstruction videos before attending court. Having seen them myself, I took the view that it was imperative that he did so, and accordingly his evidence was delayed to enable him to do so. He said that he had found them extremely helpful and indicated that the “flavour” of his evidence may change as a result.

At the time of their interviews, and until after the start of these proceedings in April 2014, B and A presented as a close couple who were devoted to each other. That changed dramatically following the breakdown of their relationship shortly after the proceedings started. Asked in her police interviews on 28^th January about her relationship with A, the mother described it as “quite amazing” and said he was the only person she had been comfortable with and able to open up to and felt safe with. She said that he was her “life”. Every relationship had its ups and downs but in this case she said that there was “never nothing bad”.

The mother says that since she has separated from the father she has come to realise that his behaviour towards her was unacceptable. It is her case that he was abusive towards her during her relationship. She describes him as being controlling, saying that she had to choose between him and her family and getting angry with her if she had contact with them. On several occasions he shouted and screamed at her when they were out at the shops. He did not allow her to have a bank card or mobile phone or a front door key. She asserts that, on several occasions when they were living with his mother, he would lock her in the bedroom overnight while he was out of the property.

A denies the B’s allegations about his being controlling towards her. In oral evidence, A denied that he had restricted her using the phone, saying that she could use it whenever she wanted. He also denied locking her in the bedroom, saying that instead she had locked the door herself to prevent his mother coming in. The father thinks that he and the mother had a good relationship but describes her as being very jealous and possessive. He recalls a couple of occasions when they would “really shout at each other”. He said that B would shout more than he did, and that he would rather walk away. Later, however, in cross-examination by Miss Ball, he gave a rather different picture, saying that in general it was his practice when challenged to stand his ground.

A asserted that any difficulties in the relationship were caused by B’s family. He described B’s family as a “pack of wolves” who stuck together. They were strong characters and he was nervous of them at first, although relations had improved at Christmas when he was made to feel part of the family. Cross-examined by Miss Ball, however, he said that he thought B’s family had played a big part in what had happened between him and B, and that when she was away from her family they got on fine. He said that it had been entirely her decision whether or not to see her family. He said that he had not done anything to stop her seeing them.

B also alleges that A has been physically violent to her. She alleges that he struck her in the face while they were living with his mother. In oral evidence she said that this occurred in their bedroom while they were having an argument about the paternity of the child she was carrying. A’s mother came upstairs and witnessed the blow, described by A and his mother as a tap but by B as a slap. Afterwards, his mother said that he should not have done it. Afterwards, A apologised for what he had done. A accepted that he had hit B on this occasion, but described it as a tap.He said that she seemed hysterical so he “tapped her cheek and tried to shock her out of it. He said that it was the only time he has ever hit a woman and that afterwards he apologised as the mother describes.

In her statement, B said that on another occasion he had pushed her backwards causing her to hit her head on a chopping board, but in oral evidence she said that this had been an accident which occurred during an incident of horseplay. B also described how A would on occasions push her eyes into her head using two fingers, laughing and saying he was just messing about. A asserts that this occurred on only one occasion and that it was only meant as a joke, just as B would pull his ears, but that he did not do it again after B told him she did not like it. B alleges that A was violent to her on another occasion. Two weeks before X was born, he held her up by her head in the kitchen leaving her with finger marks around her neck.A’s account of this incident is that he merely pushed B out of the way as he was trying to get out of the kitchen.

B does not allege that A ever displayed any violence towards M. In her statement, however, she alleged that he described M as a “brat” and that he could not connect with him because he was not his child. In oral evidence, B said that A would become angry if M’s disturbed his sleep. B would take M into another room if he started crying. B said, however, that she had never thought that A would harm the baby. For his part, A said that, although he was not M’s father, he treated him as his own.

It is plain that the couple were living near the breadline. The mother described to the police how they had been very short of money. “Sometimes we all go without toilet roll…or we won’t have any food or any drinks…literally no food…we used to sit there eating custard like with nothing, just custard on its own”. A told the police that he and the mother had no money. They were on income support getting “as little as you ever can get”.

The father accepts that he smokes cannabis but denies that he did so in the bedroom or when he was near M. In oral evidence, he said that he smoked it three or four times a week.Asked about drug taking in interview, the mother denied taking any drugs but said that the father “smokes a little bit of weed”. In oral evidence, she accepted that she had been trying to protect A at this point in the interview, and that the reality was that it smoked it regularly and on occasions had used a bong. She claimed that she protested about this but was told that it was nothing to do with her. B told Dr. Morton that A would go mental if she did not give him money to buy cannabis. In oral evidence, she described how he took some money which she had received as a tax rebate and spent it on cannabis. A denied knowing anything about a tax rebate.

It was the evidence of both B and A that they did not smoke tobacco in the flat. When challenged as to why the police photographs of the flat showed that the ashtrays by each side of their bed were full, they alleged that they used to take them outside when they smoked.

The local authority asserts that the mother failed to engage effectively with services to support her emotional well-being and mental health. Plainly, the mother did not seek medical advice about coming off anti-depressant medication when she found she was pregnant. Equally, she failed to attend an appointment in January to see her obstetric consultant. She was referred to various support groups, but did not pursue these options. These points are not substantially challenged. It is pointed out on her behalf, however, that, looked at overall, B was seen on a fairly regular basis by professionals.

In general terms, there was at the time little if any independence evidence of neglect. All professionals who saw M during his lifetime found him well looked after. Only one or two appointments with health visitors were missed. Although B had failed to follow the advice to register with a G.P. local to their new address for several weeks, she had ultimately done so. There were no concerns about his weight or cleanliness. At post mortem, Dr Cook confirmed that M was a well-nourished little boy with no evidence of neglect. Photographs were produced showing M being treated with affection and pride by both B and A. In passing, I should refer to a few photographs relied on by the local authority which show M with stickers on his face and in similar odd situations. The local authority submit that this shows that A and B viewed M as something to ridicule at times. I do not consider that these few photographs warrant such a finding in the context of all the other evidence.

The parents assert that, on three or four occasions, M fell off the bed. On each occasion he cried, but, when comforted, he seemed to recover and there was no evidence that he had suffered any harm. The father accepts that on these occasions it would have been better to have him checked out by a doctor.

The father says that he has never seen the mother deliberately hurt M. He does, however, refer to how the mother used to handle M when changing his nappy. When M tried to crawl away, she would grab him and pull him back by the leg and then flip him over. The father says he does not think she intended to hurt him.

Some evidence of possible significance was given by the father’s niece, J, now aged 13. Some months after M died, she told her parents about an incident she had witnessed in which the mother was said to have handled M roughly. The police were informed and J interviewed on video. Prior to her interview, J wrote a short note about the incident.

In her interview, J said that the incident had occurred in September or October 2013, that is to say when M was between 4 and 6 months old. It occurred at her home when the father and her own parents had gone out leaving J in the house with the mother and M. J described how the mother had been sitting on the sofa with M either changing his nappy or his clothes. In her interview, J continued:

“She was like shouting at his face as he was trying to look out the window or look at the door or see where A went. He was really attached to him. B was getting so annoyed because he wouldn’t keep still and then she was looking at me saying “he doesn’t listen”. She was being really forceful and putting all her anger like to him and forcefully like with anger slamming him on the sofa because he wouldn’t keep still.”

She added that the mother was being “really rough with the way she was putting him on the sofa”. She described how M’s eyes “went all like big and he was sort of panicking…” J said that her reaction was that the mother was not supposed to be doing that with a baby and that she wanted to say something but “just didn’t have the guts to say it to her”.

In her interview, J said that she was not that close to B. She was not sure if she liked her or not. She added, however, that she was “really close” to the father, A. She said that, since M died, A had been visiting her house a lot and that they were trying to take his mind off what had happened. Asked why she had now decided to say something about the incident, she said that it had been building up inside her and then decided it would be better if she said something. In interview she said that the first person she told was her mother and subsequently her father who told the police.

J gave oral evidence by videolink at the hearing before me. Cross-examined by Miss Ball on behalf of the mother, she agreed that during the incident M had not wanted to be changed; the mother was telling him to come back and grabbing him by the waist; the mother had laughed and giggled and looked at J. She added, however, that she thought that the mother was being rather rough and not very motherly or nice. Asked to describe the noise that M had made, she described it as “squinnying.” This word was also used repeatedly by the parents in the course of their interviews. J agreed with me that she meant something like whinging.

J agreed with Miss Ball that the father had been very upset and bitter about the breakup of the relationship and that she felt sorry for him. She said that she did not really like the mother, but was very close to the father. She did not agree with Miss Ball that she had exaggerated her account. She said she had heard rumours about how M had sustained his injuries and died and that some people were thinking that the parents might have been responsible.

J’s mother (the father’s sister) also gave evidence. In contrast to J’s account to the police, she said that J had mentioned the incident to her own father first, before she mentioned it to her. Cross-examined by Miss Ball, she agreed that, whenever she saw the family, M always seemed well, healthy, fine and happy. She had no concerns about how either the father or the mother handled him. In answer to Miss Cook, she said he seemed like a really happy baby. The father was always playing with him and he seemed more of a daddy’s boy who was looking out for his father all the time. She thought that the mother wasn’t so loving although she agreed with Miss Cook that B had been good with M as well.

Having analysed J’s evidence in the context of all the other evidence in the case,I do not attach any significant weight to it. I do not think that J has deliberately exaggerated her account but, in the light of her answers to Miss Ball in cross-examination, I do not believe that the incident was entirely as described in her interview. The mother may have been irritated by M, and may have handled him firmly, but, as J told Miss Ball in cross-examination, she was laughing at the time and it does not seem that M was unduly upset. I do not accept that this is significant evidence of rough handling. I think it likely this incident may have assumed greater importance after the tragic death of M and the break-up of the relationship between the parents when the father’s family was supportive towards him and concerned what was being suggested as to how M sustained his injuries. Similarly, I do not accept A’s account of B pulling M back when he crawled off while having his nappy changed to be evidence of significant rough treatment. I accept B’s account of how she treated it as a sort of game.

Expert evidence on M’s tibial fracture was provided by Dr Joanna Fairhurst, consultant paediatric radiologist, and Professor Anthony Freemont, professor of osteoarticular pathology at the University of Manchester. Dr Fairhurst’s examination consisted of an examination of the skeletal survey carried out at the hospital immediately after M’s death. Professor Freemont’s analysis consisted of the examination of a number of bones, including histological examination of blocks taken from the bones. Dr Cook, the pathologist, confirmed in evidence that osteoarticularpathology is the “gold standard” for detecting the presence of bony injury.

Dr Fairhurst found x-ray evidence of a healing transverse/short oblique fracture of the right distal tibial diametaphysis (the shin bone towards the ankle). It is important to note that, although located at a point very close to the metaphysis, this was not (as was apparently suggested initially, and mistakenly assumed by Dr. Cartlidge) a metaphyseal fracture. Prof Freemont stressed that the fracture here was diaphyseal (i.e. a fracture of the bone shaft) as oppose to metaphyseal (a fracture of the growth plate). From its radiological appearance, Dr. Fairhurst estimated it to be most likely to be between 3 and 12 weeks old at the date of the x-ray. In oral evidence, she conceded that Professor Freemont would be able to date the injury more accurately as a result of this histological examination. From his examination, Professor Freemont confirmed the presence of what he described as a small fracture of the lower tibia and was able to age the fracture between 3 and 6 weeks old at the date of death. He reported that this had an unusual appearance in that it was a unicortical fracture (i.e. on one side of the bone only) in which the two fractured ends of the cortex were displaced slightly outwards. In oral evidence, Professor Freemont explained that the unusual nature of this fracture was that the bone ends of the fracture pointed outwards, whereas normally they were seen as being overlapping or pointing inwards.

As to the mechanism of the injury, Dr Fairhurst advised that transverse fractures of the distal tibia may occur from a direct blow to the lower leg or from indirect forces being applied to the leg, for example if it is gripped and forceably bent. She did not consider it likely that this particular type of fracture would be caused by a twisting motion, for example if the child’s leg had been grabbed and “yanked” and the baby then “flipped” over in the manner suggested by the father in the course of his interview. Dr Fairhurst advised that the force required to cause a transverse fracture is well in excess of that used during normal day to day handling of a child, even during rough play. She added that these types of fractures are not seen as the result of a fall and are not typical of the fracture patterns seen in accidental injuries sustained by toddlers. The medical literature indicates that over 90 per cent of all tibial fractures seen under the age of 18 months are due to non-accidental causation. In cross-examination, Dr Fairhurst was asked some questions concerning her evidence as to the literature. She was clear that this was an accurate summary of the research evidence and added that in her clinic x-rays are carried out in many children for all sorts of reasons and this type of fractures are not habitually seen.

For Professor Freemont, the fact that this was not a metaphyseal fracture made it very unlikely that it was caused by a yanking/twisting motion. Had such a force been applied, to a site so close to the metaphysis, Professor Freemont would have expected the metaphysis to have been involved in the fracture and there was no evidence that this had occurred in this case. He considered a twisting force to be extremely unlikely in this case although he could not completely rule it out. In his written report, Professor Freemont suggested that the unusual appearance of the fracture suggested a short sharp compressive force had been applied along the line of the tibia. In oral evidence, he was asked how such a force could have been inflicted and suggested that one example would be by a fall. However, given the degree of elasticity into a child’s skeleton, it would require a fall of a considerable distance to cause such a fracture. Questioned by Miss Earley on behalf of the local authority, he agreed that the fracture could have been caused if the child had been slammed down on a hard surface in such a fashion as to cause a compressive force to be inflicted along the line of the tibia.

However, in the course of his oral evidence, Professor Freemont modified his position as to the causation of the fracture. He said the reason why he had originally thought it was a compressive force was because the two bone ends turned outwards. Having thought about it further, and in particular in the light of Dr Fairhurst’s report, he accepted that another explanation could have been a bending force as she described. In answer to Miss Earley, Professor Freemont went so far as to say that on reflection, and following the questions put to him in cross-examination, he now felt that a bending force was rather more likely than a compressive force.

From his examination, Professor Freemont was able to confirm that there is no evidence of underlying bone disease that might have predisposed M to an increased risk of fracture. On behalf of A, Miss Cook and Mr. Challenor submitted at the conclusion of the hearing that the evidence sometimes sought in fracture cases – to test for collagen deficiency or genetic abnormality – had not been carried out and therefore the court could not rule out the presence of such factors.

As to M’s response to the injury, Dr Fairhurst said at the time the fracture occurred she would have expected him to be distressed and to show continuing signs of distress for some time thereafter. Any carer present when this fracture occurred would be aware that he had suffered a significant injury. Subsequently, Dr Fairhurst would expect M to show distress when his leg was moved, and be reluctant to bear any weight on the leg for several days after the fracture occurred. In his report Dr Cartlidge said that the fracture would have been painful for about 5 to 10 minutes after it was sustained. Thereafter the pain would have eased but it would have been exacerbated by movement of the right ankle and by weight bearing on the right foot. The right ankle would initially have been tender, especially if firmly pressed. There might have been swelling near the right ankle. Any person witnessing the causal event would have realised that M had been hurt but in an infant with limited mobility the consequential reduction in willingness to bear his weight might have been inconspicuous.

B and A have suggested various ways in which this fracture might have been sustained – that he had got his leg stuck between the bars of the cot; that he had injured himself when he fell down the end of the mattress into the cot slats; that he injured himself while in the baby walker, and stepped on a toy; or that he sustained it when he fell off the bed.

It is notable that B and A both referred to a possible injury to M’s foot in their interviews at a point when the fracture has not been discovered. The mother described to the police how M had hurt his foot while in his walker. She said that he stood on a toy and after that he found it quite hard to walk. He would walk on tip toes on one foot whereas he put the whole of the other foot down. He disliked having his ankle touched for a time. The mother said that his foot and ankle did not look swollen or bruised. He was just struggling to put his heel down and his ankle seemed tender to the touch. After a couple of hours he was running around again.

A described to the police how M had injured his foot while walking in the baby walker. He said that he had stubbed the bottom of his foot or the ball of his heel where they had seen a little mark. The father said that it obviously did not bother M that much because he had cried for a couple of seconds and then was fine. For a while he had lifted his foot up and didn’t want to put his foot down flat. The father thought that that he had been limping on his left foot for the good part of the day and the following day he had a pretty sore foot. He had cried when his foot had been touched and the father said that it was a cry that it hurt him. He thought that this had occurred a week or two before the interview.

In his statement, A said he saw M trap his leg in the bars of the cot and between the mattress and the cot. The mattress was not a perfect fit for the cot and M did seem to get his foot stuck in there. He gave a detailed demonstration of this in the reconstruction interview. In oral evidence, A said that he had fallen down between the cot slats on three occasions, twice trapping his leg and once his arm, but B said that A had only told her of one such incident.

Dr Fairhurst was not particularly impressed by these various suggestions. As to the suggestion that he had got his leg stuck between the bars of the cot, or alternatively that his leg had become stuck between the mattress and the end of the cot, with his leg falling between the cot slats, Dr Fairhurst in her report said that she did not believe either of these explanations could account for the injury. In each case, M would not be strong enough to inflict injury on himself in this manner. If a fracture was caused by one of his carers releasing his foot from the cot, then in Dr Fairhurst’s opinion expressed in her report, any reasonable carer responsible would be aware that they had used inappropriate force, that M had suffered a significant injury and this would therefore have been a memorable event. Furthermore, the description of his responses to these incidents was not what she would expect from a child who had just sustained such a fracture. In oral evidence, however, she conceded that if his leg had been trapped, he may have been distressed or upset and therefore it may be more difficult for the carer to identify any difference in his symptoms of distress once he had been removed from the cot. She added, however, that she would still expect the carer to identify that his leg had been trapped and that they were applying inappropriate force. As for the third suggestion made by the parents – that M had hurt his leg while walking over toys in his baby walker – Dr Fairhurst was clear that this could not account for the injury since he would not be strong enough to inflict it on himself and that his response was not what she would have expected from a child who had just sustained such a fracture. In cross-examination, she said it was difficult to see how sufficient force would be applied in these circumstances because the point of a baby walker is to suspend the weight of the child. She could accept that there might be a degree of bending on the foot in the scenario proposed on behalf of the mother, but she did not believe that this would lead to a sufficient force being applied to cause a fracture. In her report, Dr Fairhurst therefore reached the conclusion that no plausible explanation had been offered for M’s tibial fracture and consequently the finding was highly suggestive of non-accidental injury.

At the time of his evidence, Dr. Cartklidge was still under the misapprehension that this was a metaphyseal fracture. Such a fracture was usually caused by a yanking or twisting of the adjacent joint, in this case the right ankle. Dr. Cartlidge was unaware that Professor Freemont’s examination had revealed that it was diaphyseal as opposed to metaphyseal. He was also influenced by the assertion in Professor Freemont’s report that the force involved was compressive, although expressing some scepticism about this. Dr Cartlidge thought that this would be unusual in an infant only able to pull to stand, but thought that M landing on the foot after falling or being dropped could produce such a force. He did not think that the fracture resulted from normal handling or rough play. He thought it very unlikely that the fracture was self sustained without a carer being aware that an accident had happened.

In his report, Dr. Cartlidge did not see how M could inflict the injury by himself with his foot down the slats of the cot, although the mattress did not fit the cot and if he got his bottom stuck it might provide sufficient leverage force. It was more likely that someone had yanked him out roughly and quickly. Dr Cartlidge thought that this might have been sufficient to cause the fracture by producing a bending mechanism. He could appreciate how it might happen if the person involved had not appreciated that the foot would not become free easily. The symptoms would not be obvious because M was not yet standing, and the signs would be non-specific to anyone not present when the injury was sustained. The signs would be non-specific to anyone not present when the injury was sustained. Cross-examined by Miss Cook, Dr Cartlidge agreed that the fracture could have been caused if M had been pulled out of the cot while his foot was trapped down the side of the cot bars, although he characterised such an event as careless. Professor Freemont thought that this might result in a fracture, but only if the baby was facing into the cot when he was removed.

In his evidence, Dr Cartlidge also suggested that, if M had fallen off the bed and in doing so his foot had become stuck in the wooden surround, it could have led to forces sufficient to cause the fracture, although merely falling off the bed by himself as demonstrated in the reconstruction video would not cause the fracture. In oral evidence, Dr. Fairhurst accepted that, if M had fallen from the bed and in the course of falling his foot had become trapped in the wooden frame of the bed as illustrated in the photographs, and he had then proceeded to fall to the floor, that could generate a sufficient force to lead to the fracture.

Professor Freemont thought that this was the type of motion that could result in the fracture. By this mechanism, his foot would be fixed creating a fulcrum behind the site of fracture. He thought that this was the type of fall which might result in a fracture although he was uncertain whether M’s weight would be sufficient for a fracture to result. There is however, no evidence that M’s foot did get trapped in the wooden bed frame as postulated by Dr Cartlidge.

In my judgment, however, the most striking feature of the expert evidence about the fracture was the unusual nature of the fracture. In his report, Professor Freemont concluded:

“This is a single very minor fracture at a single time point a few weeks before death. It was not associated with the child’s death, and it is not possible to say even whether this is an accidental or non-accidental injury, but there were none of the features typically associated non-accidental injury.”

In oral evidence, he conceded that he was not saying that it could not have been caused non-accidentally, but rather that it was not a fracture that was associated with non-accidental injury. He himself had never seen this type of fracture associated with non-accidental injury. In fact could not recall any case in which he had seen an isolated fracture of this nature in any circumstances.

At the outset of the hearing, the local authority invited the court to find that the majority of the bruises identified at post mortem were caused by rough handling and/or inflicted by B and/or A; that at the time the bruises were sustained, M would have been upset, and that the perpetrator of the injury and anyone observing the incident would have been aware of this. By the end of the hearing, however, there had been a small but significant shift in the local authority’s case.

The majority of the bruises and marks found on M at post mortem were on his face and head. The focus of the inquiry into the bruises before me was on two issues: (1) whether the bruises were present when M was put down in his cot at around lunchtime on 26^th January and (2) whether the various accounts provided by B and A could explain the bruises, remembering of course that the burden of proof remains at all points on the local authority to prove that they were inflicted by one or both of the parents.

As to the first question – whether the bruises were present when M was put down in his cot around lunchtime – it has been B’s case, consistently since she saw them in hospital, that that they were not. It has been A’s case that some bruises were present but not on the scale seen after he had died.

It is the mother’s case that when she put him in his cot there were no bruises on his face. She said that she would have seen the bruises if they had been there because she had been holding him for much of the weekend. When she was finally allowed to see M in hospital, she was shocked. He had a lot of bruising on his face which the mother said she had not seen before. In hospital, and again in her statement, she said that “it looked like he had been beaten up.” In the course of the hearing, B produced a copy of a photograph, which she said had been taken by A on the day before his death, showing M in his cot with no marks on his face. In his oral evidence, A said that he could not recall when the photograph was taken.

In her statement she said she could only think of three reasons why he would have these bruises when she found him in the cot, assuming they were not present when she put him down – first, if the father had hurt M at some point during the afternoon while she was asleep, although she thought this was unlikely because she would always wake when M woke, notwithstanding that she was extremely tired that day; secondly if the father had given cardiopulmonary resuscitation to M and bruised him in the process; thirdly, if the bruises had been caused by the ambulance or hospital staff trying to resuscitate him. Dr. Cartlidge, and also Dr. P the community paediatrician who served as the designated doctor for safeguarding, considered that resuscitation was a possible explanation for at least some of the bruises. Dr. Cook, on the other hand, thought that the bruises seen in this case could not have been caused by resuscitation. The presence of hypostasis over the anterior surfaces of the body indicated that M was dead when found by his mother. It was not possible to determine how long he had been deceased as hypostasis develops at variable rates after death, although the finding of further hypostasis in a posterior distribution indicated, that it had not become completely fixed at the time he was taken from his cot and resuscitation attempted. In Dr Cook’s opinion, M was already dead by the time anyone started resuscutation, and although the process of CPR might have caused some leakage of blood into bruises, the overall evidence suggests that this was unlikely to have a significant effect on their appearance. Dr Cook was therefore confident that all the bruises seen on M after death were present at the time of death although he acknowledged that it is much harder to say if they would have been visible at that time.

The evidence of the professionals who saw M after he collapsed is relevant to this issue. It is notable that none of the paramedics and ambulance technicians who attended M noticed any bruises or marks, notwithstanding the fact that they were working on him intensely for some time. Of course, they were not conducting any detailed examination, and their focus was trying to revive him. During these attempts, part of his face was covered by a bag valve mask. Nonetheless, one would expect the paramedics to notice some of the marks if they had been as prominent as they appear in the photos taken after death. A neighbour saw M being taken to the ambulance also noticed no sign of bruises on his face. The evidence of KG, the nurse who attended on M at hospital, was that she gradually became more aware of the marks. It was Dr. S, the consultant paediatrician on duty who examined M after pronouncing him dead, who first catalogued the various marks, .

I have seen the photographs taken by the police shortly M died, and also those taken at the post mortem. The bruises and marks identified and listed by Dr. Cook are very prominent. In oral evidence, Dr. Cook said that the bruises may have been more evident in a pale deceased child than in a living child, although, as she acknowledged, in expressing that view, Dr Cook was relying on general experience rather than her specific expertise as a pathologist. The appearance of marks and bruises may change post mortem as a result of increased pallor and the presence of hypostasis. Dr Cook expressed the view that many carers would not notice marks on a child if they had other things on which they were concentrating. She agreed that one should be very cautious from looking at photographs of bruises of a deceased child and extrapolating back to consider what the bruises would have looked like in life.

Looking at the specific bruises in this case, Dr Cartlidge thought that the absence of a yellow hue, for example in the bruise at the centre of the forehead, suggested the bruise was less than 48 hours old at the time of death, but the appearance of yellow hue in some of the other bruises indicated they were at least 24 hours old. He concluded, however, that, since the ageing of bruises is inherently imprecise, it follows that they could have been sustained at the same time or at different times. There is no evidence that M suffered from any medical condition that could have caused or contributed to the bruises.

In their police interviews, and again in their statements for these proceedings, B and A suggested that the principal reason why M suffered bruises was that he was mobile, allowed to crawl, and therefore bumping into things. In his police interview, A said that M was still getting to grips with his balance. He would sit up and fall to one side or fall backwards, and did hit his head quite a lot. When crawling, he would sometimes head butt the door frame. The father said that in the cot he was “a bit of an accident”. He would pull himself up then hold on with one hand but fall backwards. He would smack his ear and hit other parts of his face and would be left with little red marks. He had hit his throat, his nose, his eyes, “his head all the time”. A thought that this was the explanation for the bruises. He described how M had pulled a box of toys onto him including an apple toy which he described as “quite a lumpy toy”. He said that, when this happened M had cried because it hit him in the face. After this his face had been a bit red. A also told the police that M would lie on his toys for a long time and would sleep lying on a toy, and that this left marks on his face.

In their reconstruction interviews, B and A each demonstrated several ways in which M might have sustained bruises. B showed how M had tried to stand up in the cot holding the bars with both hands, then let go and had fallen backwards hitting his head on the bars while holding on with one hand; how he had fallen on toys in the cot; how he had trodden on a toy in the baby walker and he had struck his head while walking in the baby walker. A gave a similar, in fact a more detailed, demonstration showing for example how M fell in the cot against the bars, against a door adjacent to the cot, down the gap between the mattress and the end of the cot; how M had fallen in the cot in the same way as described by the mother namely letting go by one hand and falling backwards against the bars of the cot; how M had fallen off the bed; how M had crawled or shuffled along and banged his head on a small chest of drawers; how he had pulled a red toy box causing toys to fall out onto his head, in particular a red plastic apple; and how he had struck his head on the doorframe while crawling.

Dr Cartlidge said that an infant of M’s age, who was able to crawl and pull to stand, will sustain occasional bruises. In his report, however, Dr Cartlidge expressed the view that most of the bruises in this case were unlikely to be self-sustained for several reasons. First, they were a total of 14 bruises and Dr Cartlidge’s opinion was that it is unusual to find more than one or two bruises at this age. Secondly, some of the bruises were over the centre of the cheek, which is a soft part of the body not overlying a bony prominence. Most accidental bruises are over bony prominences. In his report, Dr Cartlidge expressed the view that M would have been briefly upset when the bruises were sustained and this would have been evident to a normally attentive carer. Such extensive bruising in an infant with such limited mobility is unusual and without an explanation Dr Cartlidge would expect a carer to be alarmed and to have sought an explanation. Overall, as he explained to Miss Ball, Dr Cartlidge said that he thought some of the bruises could have been sustained by a mobile child such as M. It was the totality of the bruises that made him more doubtful.

Dr Cook, however, demurred. She expressed the view that the presence of bruising of different ages and the number of bruises present did not definitely indicate non-accidental injury. She observed that infants of this age fall frequently and that a few small bruises of varying age are not unexpected but rather indicate that the child is being allowed to explore his environment as he become more mobile. She conceded that the bruises to the face were perhaps rather more numerous than would normally be seen in a child of this age, in particular the cluster of bruises over the right cheek and jaw line, but she added that in and of themselves they could not be said with certainty to indicate non-accidental injury. In oral evidence, she reiterated her view that in terms of forensic pathology it is reassuring to see small bruises in a child of this age because “they must be allowed to explore their environment”. She thought that if a toy box had been pulled over and toys fell out it could have caused bruises to M. Equally, bruising could have resulted if he fell on the toys, or if he had struck his head while crawling. Dr Cook said that the totality of bruises was a factor which affected her view but she did not consider the bruises to be a very large number.

Although not suggested in the police interviews, or in their statements, it was suggested by and on behalf of the parents during the course of the hearing that the 7 or 8 bruises over the cheeks could have been inflicted while M’s head was being held to enable the nasal spray to be applied. Cross-examined by Miss Ball on behalf of mother, Dr. Cook accepted that the marks on the face could have resulted from a firm or over firm handling of the face for the purposes of the administration of a nasal spray. She added, however, that this did not negate her view as recorded above that the presence of the bruises and marks did not necessarily indicate non-accidental injury. Dr Cook pointed out that at eight months M was a mobile child and that when he was being held, forces would have been coming not only from the person holding him but also from the child himself.

Dr Cartlidge said that he thought it plausible that some of the bruises on M’s face could have been caused by his face being held for the application of a nasal spray, with the thumb causing one bruise on his left side and fingers causing the cluster of bruises on the right cheek. He pointed out that the child at this stage would be struggling. He was unable to quantify the level of force required to cause the bruises except to say that it would be excessive. He added, however, that in his view this would not take it beyond rough treatment and would not amount deliberate or neglectful which was his definition of non-accidental injury.

One significance of accepting that the facial bruising could have been caused when the nasal spray was applied is that it brings down the number of unexplained bruises. In cross-examination, Dr Cartlidge said that, if the court accepts the evidence as to the nasal spray, and as to the knocks caused whilst crawling around, having seen the reconstruction video he thought that this would account for all the bruises, subject to the mother’s evidence that she did not seen them before she found him lifeless in the cot.

In the light of this evidence, the local authority modified its position. In closing Miss Earley submitted that M had sustained bruising to his face by rough handling, that is to say in the course of the application of the nasal spray. She indicated that it was now no longer part of the local authority’s case that the other bruises had been inflicted.

In addition to the bruises on the face, M had been found to have other marks. A told the police that the little mark on the back of M’s head may have been attributable to the ring which he wore. The father said that he was neither saying nor denying that this had happened but thought it was a possible explanation because the ring was very sharp. In her statement, the mother agreed that the abrasion on his head could have been caused by the father accidentally cutting the top of his head with his ring, although she did not see this happen. Dr Cook was shown the ring worn by the father on his left finger. She thought that such a ring could have caused the abrasion on M’s head. Dr Cartlidge was also prepared to accept that the father’s ring could have caused the scratch on the top of M’s head, if the ring had jagged edges.

As for the abrasions or sore patches on his nose, the mother says that M’s nose had been running during the weekend and was therefore a bit sore. He also had the habit of rubbing his muslin comforter on his nose which sometimes would make it sore. She did not recall M’s nose actually having a cut or abrasion when she put him to bed. Dr. Cartlidge wondered whether the marks on the nose indicated impetigo or another infection. Dr Cook was very clear in her evidence that the mark on the nose was an abrasion and not impetigo. There was nothing to suggest impetigo was present in this case. In oral evidence, Dr Cartlidge also thought that grasping the nose during resuscitation was a potential explanation for the marks on the nose. Overall I conclude that the evidence as to the marks on the nose is insufficiently clear to support any finding.

As for the abrasion to scrotum, the mother said that she had seen a small scratch on the front of his testicle but was uncertain as to how this had happened. She had applied sudocreme and it was healing. She had not seen the other abrasion referred to in the medical report. She knew, however, from past experience that, if M had a dirty nappy, he could become sore quite quickly. She states that over the weekend she had become quite tired and may not have been quite as careful as normal about changing his nappy.

Dr. Cook in her report stated that the general condition of the body, with some dried crusted abrasions to the scrotum, although not indicating neglect, did suggest that the carers had been unfamiliar with the fine details of child care required for a young infant, or that the environment for raising the child was not ideal or that the parents were having difficulties for reasons of tiredness to care for the child to the best of their abilities. Dr Cartlidge expressed concern that no medical attention was sought for the abrasions of the scrotum. He thought that the marks on the scrotum could have been caused initially by nappy rash that became infected. He noted that the biological evidence showed that M had infection in his body, although no histological tests were taken of the scrotum area. Although he was only looking at a photograph, in contrast to Dr Cook who had examined the scrotum at post mortem, Dr. Cartlidge thought he was looking at an infected area of the scrotum. In contrast to the very small scratch in the perineum, which did not seem to be infected, he thought the scrotal rash had become infected leaving the lesion seen on the photograph. The mother had applied sudocreme which would have assisted the nappy rash but not have helped if this led to an infection. He acknowledged that Dr Cook had the advantage of seeing the lesion in person, whereas he was only looking at photographs. On the other hand, he sees many more children in the course of his practice.

On this point, I accept Dr Cartlidge’s opinion. On balance, I find that the scrotum had become infected. I further accept his view that in those circumstances he would have expected the parents to seek medical help.

I repeat that the local authority has not sought a finding that either A or B caused or contributed to M’s death. They have not challenged the parents’ account of what happened when he was put down to sleep around lunchtime or when B found him lifeless a few hours later. Dr Cook commented that the distribution of hypostasis was consistent with the history of M having been found apparently lifeless in a supine position in his cot with his head turned to the left, and then subsequently being moved for the purposes of attempting a resuscitation onto his back. The accounts given by the two adults about how he was put down and then found lifeless are broadly consistent, with two exceptions. First, the mother has given inconsistent accounts as to whether she touched M’s face when she saw him lying lifeless in the cot. I reiterate, however, that it is plain from her evidence however that she remains deeply traumatised by the events of that day and in particular her memories of M are at present distorted or blocked. Secondly, in oral evidence, whereas B has always said that M was put in the cot before she and A fell asleep, A said that when he went to sleep M was still in B’s arms and he did not see him being put in the cot. So far as I can see, this was the first time that he had mentioned that he did not see M being put down in the cot. It is notable, however, that A was not asked by the police to describe what had happened when M was put in the cot. Ultimately, I conclude that nothing turns on this point.

There is very little independent evidence about M’s condition in the period after Christmas. B’s sister L and A’s mother both visited the family on 21^st January. Neither noticed anything wrong. The midwife also had no concerns about M when he (and A) accompanied B to her appointment on the same date. The father said in his statement that in the weeks before M’s death “all seemed pretty usual and normal”.

It seems, therefore, that the deterioration in M’s condition occurred in the last few days of his life. Exactly when this happened is unclear. There is a difference in the accounts given by B and A as to M’s condition in the days leading up to his death. The mother says that, over the weekend that M died, he was “a bit under the weather” and wanted more cuddles and was not feeding well or sleeping well. He had a chesty cough and, although he did not have a fever, he was very clingy. The mother said that she thought about taking him to the doctor but decided just to keep an eye on him. She gave him Calpol twice on Saturday and once on Sunday morning. It was A’s evidence, however, that M had been sick on the previous Thursday and then again on several occasions in the following days. The father said that they thought this had come about after they had changed the milk formula. M had become very unsettled, didn’t want to do anything and was screaming. A described the screaming as “unbearable”. It was as if he had a bad gut ache. Asked to describe what had happened between midnight on Saturday/Sunday and Sunday lunchtime, A described how they had been up and down, maybe shutting their eyes for 5-10 minutes and then getting up again, making sure M is alright. He was still being sick during this time. Both parents describe M as having “heavy eyes” over the weekend.

On the night before he died, the mother fed him when he woke during the night, and gave him a bottle which he vomited back. She described to the police how he was coughing in the cot and started being sick. She lifted him up and held him so that he could bring it all up. Because he was choking, the father tapped him on the back and he vomited all over the floor and cot and over the mother. She thought that this was because of his having a cough rather than any form of stomach bug. Asked by the police if he had noticed anything different about M’s feeding on the Saturday night, A said that it sounded as though he was struggling to drink. He thought it might have been because his nose had been blocked up and he had a chesty cough.

The local authority submits that it was neglectful of the parents not to seek medical attention for M in the last few days of his life and in particular for the scrotal rash, vomiting and the cold from which he was suffering. On behalf of the parents (and in particular in the submission of Miss Ball for the mother) it is argued that, in all the circumstances, including the fact that they had recently charged his formula, that he was teething but did not have a fever, the parents’ decision not to seek medical advice was not unreasonable and did not amount to neglect. Miss Ball points to the observation by Dr Cook at post mortem that there was no evidence of neglect and the view expressed by Dr Cartlidge that he would not castigate the parents for not seeking medical advice on the basis of what he had been told by both sides.

During the hearing, there was discussion as to whether the cause of death might sudden infant death syndrome, sometimes known as cot death. Some features associated with this syndrome were present here. B put him down on his stomach with his head turned to his side. The reason why she had put him to sleep on his front was because he had been sick and she was concerned about him choking on his vomit. Research has shown that children placed on their fronts are at greater risk of cot death, although the research identified this as a factor with children at an age somewhat younger than eight months, since by that age children are able to roll over. Another factor associated with sudden infant death syndrome is overheating. In her police interview, the mother described the temperature in the room when she found M in a state of collapse as “pretty, quite hot”. The mother also described, and later demonstrated, how they had wrapped bedding round M in a swaddling fashion when they laid him down. The father gave a similar, though not identical, demonstration. When I saw the video reconstruction, I thought this might be a matter of some significance. Dr. Cartlidge, having seen the video at court, said had never seen a child wrapped in the way demonstrated by the mother although he thought that children of that age were usually able to wriggle out of such swaddling. I note, however, that the mother said that when she found M lifeless he was in the same position as when she put him down. Dr Cartlidge thought that if M had had a low grade fever, wrapping him in this fashion would become more dangerous. He could not be sure that M had not overheated although thought this was certainly a possibility. Overall, this evidence did give him concern about the possibility of overheating a contributory factor to M’s death.

Dr. Cook confirmed that research has suggested that overheating is a factor associated with cot death. However, she said that she could not ascertain from M’s post mortem examination whether overheating was a factor in his death, or whether it had occurred at all.

I have given this aspect of the case careful thought. Ultimately, however, I consider that the most that can be said is that these factors may have played some part in M’s death. Dr Cook confirmed that sudden infant death syndrome has a very specific set of criteria many of which are not satisfied in this case, although there were some factors present which are associated with it. This is really no more than speculation, and as set out above the court cannot make findings on such a basis. It is not possible for this court, on the basis of the totality of the evidence, to make any finding that the parents either caused or contributed to M’s death.

The court must not look at the evidence in isolation but rather consider each piece of evidence in the light of all the other evidence. Accordingly, having analysed all the different strands, I am now in a position to draw conclusions.

I accept the mother’s evidence as to the state of her relationship with A. I reject the submission made by Miss Cook and Mr Challenor on behalf of the father that this was merely a case of low grade conflict as found with many couples. On the surface their relationship was happy and that they were seen by others to be on warm and intimate terms. At that time, B spoke warmly of their relationship. I accept her evidence, however, that in reality their relationship was not as it seemed. I find that A was controlling and possessive, and on occasions violent. I find that he restricted her use of the mobile phone (the records demonstrate that she hardly used her phone during her time with A) and that on occasions he locked her in the bedroom. I find that he raised the question of X’s paternity on a number of occasions and was irrationally jealous. Specifically, I find that he slapped her on the occasion in September 2013 when they were arguing about the paternity of the child she was carrying, and I also find that later in March or April in the course of an argument he put his hands round her neck. I find that that he resented the strong influence of her mother and sisters and tried to keep her away from them. It does not seem that B had much contact with friends during this period.

As a result, this young, immature, vulnerable mother, with a history of depression for which she was no longer taking medication, and who hitherto had been dependent on her family for support, was completely isolated and reliant on A. She was unable to take steps to access the professional support she needed. She lacked the mental and emotional strength to break free of A’s control and put her son’s needs before her own. Although A was fond of M, I find that he did not give the priority to the needs of B and her baby that their vulnerability required. I accept the evidence that he was a regular user of cannabis and spent money on the drug which could have been used to support the family for which he had taken on responsibility.

In this context, M’s needs were not always given the priority they deserved. It was careless of B and A to allow him to crawl around the flat bumping into furniture so that he sustained a new bruise every day. It was equally careless of them not to replace the mattress in the cot with one that fitted so that he was not repeatedly falling down between the slats. It was careless of them to allow him to fall off the bed several times. Sooner or later he was likely to sustain an injury as a result. I find that both parents smoked on occasions in the flat and that was why the ashtrays by each side of the bed were full. Although M remained on the books of his former GP, he was not registered with a local doctor. No health visitor saw him for three months before his death. No medical help was sought for his persistent runny nose, the infected abrasion on his scrotum or the illness which he suffered in the last few days of his life. On this point, I accept the evidence of A that he was sick on the Thursday 23^rd January and on other occasions in the days leading to his death. I find that B has minimised the extent of his ill-health during this period. The truth is that M was not at all well in the last few days of his life. I take into account the comments of Dr Cartlidge and I accept that there was no evidence of neglect at post mortem. On the contrary, he was described as well-nourished. Nevertheless, accepting as I do A’s account of M’s condition in the last few days of his life, I find that A and B should have sought medical attention for him before or over the weekend, having regard to the various medical problems from which he was suffering, and that it was unreasonable of B and A not to do so. Whether their failure to seek medical advice in this period contributed to his death is a matter of speculation. The evidence is insufficient to warrant such a finding.

As for the bruises, I find that they were present when M died and had been present for some time prior to that. I find they were there when the mother put him down in the cot, although in the light of the evidence of the paramedics and KG, and the expert evidence of Dr. Cook, I accept that they would not have been nearly as prominent and visible as they were after he died. Why has the mother therefore said that they were not visible? I have considered whether she has deliberately misled the court about this, but it is equally likely in my view, given her traumatic condition, that she has convinced herself that they were not present. On balance, I do not draw any adverse inference against either parent from B’s denial that the bruises were present before M was found lifeless in the cot.

As to causation of the bruises, Miss Cook and Mr. Challenor submit that the court must take into account the possibility that M suffered from a rare condition that predisposed him to easy bruising, and contend that this has not been ruled out in this case. They remind me of the need to bear in mind the possibility of the unknown cause. They submit that it is possible that the injuries were caused by A in the process of frantic attempts at resuscitation, but this seems improbable, given the evidence of Dr. Cook that the bruises would already have been present at death, albeit not necessarily as visible as at post mortem.

I have considered these submissions carefully, but ultimately concluded that, having regard to the totality of the evidence, I accept the local authority’s revised position. It is based, of course, on an explanation given by B and A at a relatively late stage. There is some discrepancy between them as to the details, although ultimately both agreed that they had both held M’s face when administering the nasal spray. I have considered Dr. Cartlidge’s opinion that this conduct was neither deliberate nor neglectful. In my judgment, however, this was undoubtedly rough handling amounting to care which a reasonable parent would not have given and which would have caused some pain and discomfort to the child. This fits with the general picture of an isolated couple struggling to cope with the demands of a new baby.

I endorse the local authority’s sensible decision not to pursue the suggestion that the remaining bruises were inflicted by either B or A, although I do find that the frequency with which he suffered bruises is indicative of a degree of carelessness, notwithstanding the opinion expressed by Dr Cartlidge.

I turn to the tibial fracture. The most striking element of the evidence about the fracture is the highly unusual nature of the injury. Despite his great experience – seeing several hundreds of fractures a month, Professor Freemont has never seen a fracture in this location as an isolated injury. It is an unusual fracture, located very close to the metaphysis but not, on Professor Freemont’s analysis, involving the metaphysis itself. This is one very minor fracture at a single time point a few weeks before death. It was not associated with the death, and it is not possible to say even whether this is an accidental or non-accidental injury. Although Professor Freemont did not exclude the possibility that it was non-accidental, there were none of the features typically associated with non-accidental injury. The evidence as to the forces involved, and exactly how they might have arisen or been applied, is insufficiently clear to support any finding. Dr. Fairhurst and Dr. Cartlidge did not rule out the possibility that the fracture had occurred accidentally. Although the examination carried out by Dr. Fairhurst and Professor Freemont did not identify any evidence of underlying bone disease, Miss Cook and Mr. Challenor point out that other tests for bone deficiency and other rare conditions have not been carried out. Given the unusual nature of this fracture, they contend that this is a significant omission. Again, they remind me of the need to bear in mind the possibility of the unknown cause.

In their police interviews, and in the reconstruction video recordings, B and A described various events which might account for the injury to the leg. At that point, the existence of the fracture was unknown. It is conceivable that they were anticipating that evidence of such an injury would found, but on balance I consider this unlikely. I accept the evidence of B and A – given at a time when they did not know about the existence of a fracture – that he had appeared to be protecting his foot from weight-bearing. On balance I think it unlikely that they would have mentioned this if they had inflicted a fracture.

On a balance of probabilities, I find the local authority has not proved that the fracture to his tibia was sustained by the application of excessive force by B or A.

Furthermore, I do not make any finding that B and A were culpable in failing obtain medical help in respect of the ankle. I accept the expert opinion that, as he was not ambulant there would have been less evidence that he had sustained an injury. I also accept the couple’s evidence that after a short period, he seemed to recover.

Overall, however, the various findings amount in my judgment to a clear case of neglect. I do not find that B or A caused or contributed to M’s tragic death, but I do find that in a number of respects as summarised above they did not provide him with the level of care that a reasonable parent would have provided.

I have therefore made some but by no means all of the findings sought by the local authority. I anticipate that the parties will now wish to reflect and consider, first, whether, in the light of my findings concerning M, the threshold criteria under s.31 are satisfied in respect of X and secondly, if so, what orders should now be made. As the question of whether threshold is crossed remains a live issue, I am not proposing to make any detailed observations here about the eventual outcome. At this stage, I confine myself to two comments. First all children should wherever possible be brought up by one or other parent. My prima facie view is that the limited findings I have made do not exclude that option for X, although I repeat I am not in a position to make a decision about his future today.Secondly, no one who has sat through this hearing could fail to be affected by the extreme anguish demonstrated by the parents at re-living the terrible events on 26^th January 2014. It seems to me that each parent in their different ways is in need of professional counselling and therapy to help them come to terms with the tragedy. I urge those who are advising them and helping them professionally to explore ways in which this can be achieved as soon as possible.