Gloucestershire County Council v JD & Ors

On 8 August 2016 B, then aged three months, was admitted to hospital suffering from life-threatening head chest and abdominal injuries. The uncontested medical evidence is that they were inflicted injuries consistent with shaking, serious impact, or squeezing by human agency. For the last two weeks I have been embarked on the process of seeking to establish how B came to sustain those injuries. Two individuals have been identified as the possible perpetrators.

B, together with her brother P now aged three, have been represented by their children’s Guardian Liz Cowan and Mr Gammon. JD their mother is one of the two perpetrators. She has been represented by Mr Hyde QC and Mr Jenkins. The children’s father AC is not one of the alleged perpetrators. He is represented by Ms Farquhar. JL, the family’s landlady, is the other possible perpetrator. She has been represented by Mr Norris via the Official Solicitor; she lacking capacity to conduct proceedings. The determination of who caused the injuries takes place within the context of care proceedings issued by Gloucestershire County Council who have been represented by Ms Wills- Goldingham QC and Herc Ashworth.

B was born prematurely at 30 weeks on 10 May 2016. On 8 August 2016 a lodger at the premises where the family were living called 999. B was admitted to the Gloucester Royal Hospital with reduced consciousness and unexplained bruising; she required resuscitation and her injuries were considered to be life-threatening. Further investigations revealed B had multiple fractures to her ribs, a capsular tear and laceration injury to her liver, a lesion in her spleen and trauma to both frontal lobes of her brain.

The injuries were considered to be inflicted injuries and as a result, care proceedings were commenced by the Local Authority. In a judgment delivered on 8 June 2017, His Honour Judge Marston concluded that the vast majority of her injuries had been inflicted by JL, the landlady of the premises where the family were living. He concluded that lies told by the mother did not shed light on whether she was the perpetrator. However he concluded in respect of JL that her lies were so consistent and pervasive that she must be trying to hide something and that she was trying to put the blame on the father and on the mother in particular in an attempt to protect herself. He accepted that an injury to her clavicle and her left sixth rib were caused accidentally by AC when B slipped when he was changing her and he grabbed her arm.

In his judgment, he said this:

At the time of the hearing JLwas suffering from psychiatric ill-health and was an inpatient in a psychiatric unit. Although some attempts had been made to engage her in the process the issue of her lack of capacity was not properly grasped and thus she was not represented by the Official Solicitor and was unable to give evidence at the hearing. Shortly after the judgment was delivered the Local Authority contacted the offices of the Official Solicitor, and requested a capacity assessment which at that stage concluded that she had fluctuating capacity and the psychiatrist recommended that she would benefit from a litigation friend and a reassessment. By 1 August 2017 a further psychiatrist instructed by the Official Solicitor concluded that JL lacked capacity which continued when further assessed on 22 January 2018. On 5 December 2017, the Local Authority applied to reopen the judgment of His Honour Judge Marston.

As the parents were exonerated, B returned to the mother’s care when the care proceedings were withdrawn and the interim care orders discharged on 10 August 2017. However, on 17 November 2017, she was seen by the health visitor who noted bruising on her face. When she was further examined, further extensive injuries were seen. The children were voluntarily accommodated under Section 20 and on 23 November the Local Authority issued a further application for care orders. Expert evidence was obtained from Dr Robinson and from Professor Kinsey. The Local Authority sought findings against the mother [ JD] in respect of the injuries B was found to have sustained in November.

The mother denied that she was responsible for any of the ‘November injuries’ and sought to explain their presence through overzealous play between B P and other children, objects being thrown at her by P or other children, B falling onto the floor furniture or toys, marks caused by allergy or self-inflicted marks. When B was seen on 29 November 2017 in the company of her foster carer all her bruising disappeared and there is no evidence of new bruises. A haematological abnormality was ruled out by blood testing carried out by Professor Kinsey.

The case was set down for a ten day a hearing before Mrs Justice Roberts to consider the November injuries and to determine the Local Authority’s application to reopen the judgment of His Honour Judge Marston. At the conclusion of that hearing Mrs Justice Roberts gave judgment concluding as follows:

Mrs Justice Roberts found that the mother had plainly not told the truth in respect of a number of aspects of the case. She also concluded that the mother had deliberately missed appointments because she was reluctant to allow healthcare professionals to observe the extent of the bruising that B had sustained. She observed that the mother lacked insight into the physical needs of her children in terms of basic medical attention and found that the mother demonstrated a cavalier and peculiarly insensitive lack of understanding or empathy for B’s needs. She concluded her lack of engagement in securing appropriate medical assistance for B amounted to physical neglect and emotional neglect as well. She found that the mother was under significant pressure and could become angry under pressure. Whilst she had shown love towards the children she concluded that she had caused most of the injuries noted. She also noted that the mother had withdrawn from the children since 8 March 2018 and concluded that this was a further indication of her inability to prioritise the children’s needs over her own.

In respect of the application to reopen the judgment of His Honour Judge Marston, Mrs Justice Roberts concluded that there should be a rehearing of the causation of the August 2016 injuries for the following reasons:

“… Once it became clear that she may have lacked capacity (and that much was selfevident after 20 February 2017 when the court was sent the letter informing the judge of JL’s admission to hospital under section 2 of the mental health act), it was not open to the court-in my judgment-to proceed to make findings against her in the absence of a litigation friend

…. On 6 April 2017 when the matter returned to court for further directions, the judge once again made orders which warned JL that findings might be made in her absence. She was admitted to hospital the next day following a section 2 assessment and detainment.

“It is for these reasons that I have found that the findings against JL must be set aside prior to any re-opening of the substantive enquiry into the events that gave rise to the catastrophic injuries which this child sustained in August 2016. In doing so, I make it plain that I am interfering to a minimum extent with any further decisions or findings which the Judge made in his Judgment of 8 June 2017. Any challenge to these decisions (and particularly those which affect the mother) will be the subject of the next stage of this enquiry. However, I am entirely satisfied that the next enquiry must proceed on the basis that JL continues to be represented by the Official Solicitor who has provided his consent so to act. The extent to which his client will be in a position to participate in that forensic enquiry will be a matter which will be kept under review in the intervening weeks. If JL ’s condition has not improved by the date of the next hearing, she will nonetheless have the opportunity through her legal representation to test the evidence and protect her interests through Counsel instructed for the purposes of that hearing. The essential safeguard was not available to her at the previous factfinding hearing and it is the reason why the findings made on that occasion cannot stand.

At paragraph 21 of her judgment Mrs Justice Roberts said:

“as I indicated at the PTR in April this year, I’m entirely persuaded that-should the mother be found to have caused this harm to her small daughter-this alone would present grounds to revisit the conclusions reached by His Honour Judge Marston.

It is clear from her judgment (see paragraph 125) that Mrs Justice Roberts considered that she had undertaken the first stage of the Re Z process. At the hearing I undertook in October I expressed the view that the hearing that was to take place at the end of November would essentially be a full rehearing subject to evidential constraints. The recital to the order contained the following:

Thus,since April 2018 it has been envisaged that the setting aside of any findings against JL would reopen the possibility of a finding that the mother herself was the perpetrator of the inflicted injuries.

Mr Hyde QC on behalf of the mother raised the issue as to whether I should embark upon a determination of whether the mother was responsible for the August 2016 injuries or whether the appropriate course is to conclude that it is impossible to determine on the balance of probabilities whether the mother or JL was the perpetrator of the injuries but that both remain in a pool of possible perpetrators. Mr Hyde QC has argued that the evidential landscape is now such that it is so different to that which was available in the months after August 2016 or indeed up to the point when His Honour Judge Marston gave judgment in June 2017 that it is now not possible for the mother to receive a fair hearing of the issue of whether she was on balance of probabilities the perpetrator. Mr Hyde QC argues that the fact that the other possible perpetrator cannot give evidence and be cross-examined and the absence of other evidence and the passage of time means that it would be a breach of the mother’s article 6 ECHR rights to a fair hearing to embark on the process of seeking to determine whether she was the perpetrator. It is also argued that it is not necessary to determine the perpetrator of those injuries given that the threshold is admittedly crossed in respect of the November 2017 injuries.

The case law on the circumstances in which it is appropriate to determine facts where the threshold is already established shows that it is a matter of fact and degree as to whether it is appropriate to determine further facts which go to threshold having regard to the other facts which have resulted in the threshold being crossed. The nature and extent of the November 2017 injuries a wholly different in magnitude to the August 2016 injuries. It is not simply a matter of pragmatic use of court time. The circumstances in which those injuries were sustained are of interest not only to B and P as they grow older, but also of potential relevance to the mother and any partner with whom she has a child in the future at but also of critical relevance to child protection authorities in relation to any child that the mother care for or have in the future. Equally they are critical to anybody involved with JL.

In family proceedings, in particular, it is often the case that witnesses who are central to a factual allegation cannot be cross-examined. This will be particularly the case where an allegation is made by a child witness who the court concludes should not give evidence after a Re W hearing. However there may be cases where central witnesses have died or indeed where they have come to lack capacity and so cannot or should not give evidence. In the family court arena where hearsay evidence in the form of written statements is admissible as of right the contention that it would be a breach of a party’s article 6 right even to embark upon the evaluation of evidence in order to ascertain whether a conclusion on balance of probabilities could be reached seems to me to be a very high hurdle to leap. Of course, in evaluating the evidence and deciding whether a conclusion can be reached on the balance of probabilities the court must weigh all of the evidence including hearsay evidence and must take into account the fact that a party has not had the opportunity to challenge a witnesses account. That of course will be even more important where the witness is a central one; for instance as here the only other possible perpetrator.

The schedule of findings that the Local Authority rely upon sets out the following:

JL continues to be represented through the Official Solicitor. The Certificate of Capacity filed on 25 June 2018 (C230) opined “significant cognitive impairment affecting memory, orientation, attention and executive domains”. Since then she has then been assessed by Dr Sanikop over two and a half hours and he has also filed a Certificate of Capacity. In essence she lacks capacity and Dr Sanikop opines that she

EC and IM were both witness summonsed to attend court on 29 November 2018. Neither answered the summons. I asked the Local Authority to make enquiries to ascertain whether they had been served with the witness summons and their reasons for not attending. In fact, an email had been received by the court in the week commencing 19 November from EC which asserted that his wife was unwell and he was caring for her and therefore not able to attend court. Enquiries of IM’s home address revealed that she had allegedly returned to live in Portugal. At the time of writing this judgment enquiries of EC remain outstanding.

For the purposes of this hearing I have been provided with some eight lever arch files of documentation relating to the August 2016 injuries as well as several lever arch files dealing with the welfare aspects. I did not need to hear from any of the medical experts as their evidence was agreed and was largely contained in the note of their joint meeting and the transcript of their evidence from March 2016. I heard oral evidence from:

In the course of the hearing I was provided with further documents including a number of authorities, a summary of the agreed law, copies of various redacted and unredacted versions of statements already in the bundle and an ambulance service safeguarding log.

The parties have provided me with position statements or similar at the commencement of the hearing. They have also provided me with written closings to which they spoke during oral submissions. I am grateful to them for the assistance they have given in their written and oral submissions. The summary of their positions that follows inevitably cannot do justice to the full and detailed submissions made but I hope that I have captured the essential points that each party relies upon.

On behalf of the Local Authority Ms Wills-Goldingham QC and Mr Ashworth made the following points

Mr Hyde QC and Mr Jenkins outline closing submissions as well as an updated document which incorporated much of the opening note that had been prepared by Mr Hyde’s junior Benjamin Jenkins for the fact-finding hearing before His Honour Judge Marston in 2017. Mr Jenkins detailed analysis of the evidence and the deficiencies in

Ms Farquhar adopted a largely neutral position on behalf of the father. Given that no findings were sought against him in respect of the catastrophic injuries suffered by B she emphasised that the father’s interest was insofar as possible knowing what happened. She invited me to conclude that the father’s evidence in so far as it bore upon the events of the seventh and eighth of August 2016 was reliable. She submitted that the father’s evidence as to the circumstances in which they moved to JL ’s and the circumstances which existed whilst they were there was broadly corroborated by other evidence in relation to JL ’s drug use her financial dependence, the care provided to the children by the mother and JL and the events of the evening of 7 August 2016. She submitted that the absence of an account in his police interview his statement of what he saw on the morning of the eighth should not detract from the detail of his account and how it fits in with other known facts. She emphasises that he has nothing to gain by this account. His evidence to the police as to how the injuries may have been caused included ascribing possible blame to himself which suggests he is not seeking to blame others unjustifiably. His evidence as to his concerns for B and his desire to get to the truth demonstrate his sincerity.

Mr Norris on behalf of the Official Solicitor and JL submitted that the various components of the evidence pointed to the mother as the probable perpetrator of the injuries. He submitted that:

Mr Gammon on behalf of the children and the Guardian emphasises that from the children’s point of view it would be beneficial for them to have as clear an understanding of their history as possible. However he also reminds me that I should not strain to find a perpetrator if the evidence does not justify such a conclusion. The totality of the evidence points to there being one event of violence close to the point where B presented to medical services. The nature of the two possible perpetrators is

Even that lengthy summary of the parties’ positions cannot do full justice to the written and oral submissions I heard that I believe demonstrates the essential arguments deployed by each of the parties.

During this hearing I have been undertaking the second and third of the three stage approach set out by Mr Justice Charles in Birmingham-v-H and others 2005 EWHC 2885; an approach that has been endorsed by the James Munby P in re-ZZ 2014

In order to make a care or any public law order the Local Authority must prove that the situation justifies the intervention of the State. This means that the Local Authority must establish the statutory threshold set out in s.31(2) Children Act 1989.

The relevant date is 8 August 2016.

The Threshold is established by proving facts which establish the child is suffering significant harm and that the harm is attributable to the care given not being what it would be reasonable to expect a parent to give to him. In respect of the task of determining whether the ‘facts’ have been proven the following points must be borne in mind as referred to in the guidance given by Baker J in Re L and M (Children) [2013] EWHC 1569 (Fam) confirmed by the President of the Family Division in In the Matter of X (Children) (No 3) [2015] EWHC 3651 at paragraphs 20 – 24. See also the judgment of Lord Justice Aikens in Re J and Re A (A Child) (No 2) [2011]EWCA Civ 12, [2011] 1 FCR 141, para 26

The burden of proof is on the Local Authority. It is for the Local Authority to satisfy the court, on the balance of probabilities, that it has made out its case in relation to disputed facts. The parents have to prove nothing and the court must be careful to ensure that it does not reverse the burden of proof. As Mostyn J said in Lancashire vR 2013] EWHC 3064 (Fam), there is no pseudo-burden upon a parent to come up with alternative explanations [paragraph 8(vi)].

The standard to which the Local Authority must satisfy the court is the simple balance of probabilities. The inherent probability or improbability of an event remains a matter to be taken into account when weighing probabilities and deciding whether, on balance, the event occurred [Re B (Care Proceedings: Standard of Proof) [2008]UKHL 35 at paragraph 15]. Within this context, there is no room for a finding by the court that something might have happened. The court may decide that it did or that it did not [Re B at paragraph 2]. If a matter is not proved to have happened I approach the case on the basis that it did not happen.

Findings of fact must be based on evidence, and the inferences that can properly be drawn from the evidence, and not on speculation or suspicion. The decision about whether the facts in issue have been proved to the requisite standard must be based on all of the available evidence and should have regard to the wide context of social, emotional, ethical and moral factors [A County Council v A Mother, A Father and X,Y and Z [2005] EWHC 31 (Fam)].

The court is not limited to considering the expert evidence alone. Rather, it must take account of a wide range of matters which include the expert evidence but also include, for example, its assessment of the credibility of the witnesses and the inferences that can properly be drawn from the evidence. The court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. The court invariably surveys a wide canvas. A judge in these difficult

Thus, the opinions of medical experts need to be considered in the context of all of the other evidence. While appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. It is important to remember that the roles of the court and the expert are distinct and it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. It is the judge who makes the final decision. Cases involving an allegation of non-accidental injury often involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. When considering the medical evidence in cases where there is a disputed aetiology giving rise to significant harm, the court must bear in mind, to the extent appropriate in each case, the possibility of the unknown cause [R v Hendersonand Butler and Others [2010] EWCA Crim 126 and Re R (Care Proceedings:Causation) [2011] EWHC 1715 (Fam)]. Today's medical certainty may be discarded by the next generation of experts. Scientific research may throw a light into corners that are at present dark. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of

The evidence of the parents and of 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 [Re W and Another (Non-Accidental Injury) [2003] FCR 346].

It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. The Court of Appeal has recently considered the law where only two possible perpetrators are identified. In Re B (a child) [2018] EWCA Civ 2127 Lord justice Peter Jackson said,

When looking at how best to protect child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [Re S-B (Children) at paragraph 43]

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 at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [R v Lucas [1981] QB 720]. It is important to note that, in line with the principles outlined in R v Lucas, it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [H v City and Council of Swansea and Others [2011]EWCA Civ 195].

The family court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the criminal court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth [Re H-C (Children) [2016]EWCA Civ 136 at paragraphs 97-100].

In Lancashire County Council v The Children [2014] EWFC 3 (Fam), at paragraph 9 of his judgment and having directed himself on the relevant law, Jackson J (as he then was) said:

“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 reason. 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 accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one-person hearing accounts given by others. As memory fades, 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.”

All the evidence is admissible notwithstanding its hearsay nature, including Local Authority case records or social work chronologies which are hearsay, often second or third-hand hearsay. The court should give it the weight it considers appropriate: Children Act 1989 s.96(3); [Children (Admissibility of Hearsay Evidence) Order 1993]; [Re W (Fact Finding: Hearsay Evidence) [2014] 2 FLR 703].

When I turn to the evidence, I bear all these factors in mind in reaching my conclusions on whether the Local Authority have proved that B suffered inflicted injuries and who was responsible for them.

Attached is a detailed chronology, Appendix A, which sets out both the factual and procedural background to the case. Incorporated within the chronology is much of the documentary and oral evidence that I have read and heard. Insofar as I have needed to determine matters which relate to the background in which B was injured I have attempted to incorporate the evidence and my conclusions within the chronology. My assessment of the mother and JL and my conclusions in relation to their evidence are dealt with separately. A separate litigation chronology, Appendix B, charts the progress of proceedings from August 2016 to date.

Having identified that in determining the facts I must survey a broad canvas and must look at the totality of the evidence and how the constituent parts make up a whole I am also very conscious that the jigsaw is very much incomplete.

It is a most significant feature of this case that one of the key witnesses and one of the two possible perpetrators JL has not been able to give evidence. This of course is relevant both to her but also to the mother, the other parties and the court. She has not been able to give oral evidence in support of her own account that she had nothing to do with the injuries to B but rather was at all times acting out of concern for her and to protect her. However her incapacity has also deprived the mother in particular of the opportunity to test and challenge her evidence. Given some of the unusual features of the case in particular JL ’s admitted assault on the mother in the minutes before the ambulance arrived but also her drug misuse, her mental health, and medication use and their potential relevance to how B came to be injured have meant that the mother’s team have not been able to tease out inconsistencies, challenge the motivation for lies or to explore the possibility of irrational and violent behaviour. Inevitably considerable criticism has been directed at the mother in relation to inconsistencies in her account, lies she has told and violent acts she has committed to B. Had JL been in a position to give oral evidence it seems inevitable that some of the focus on the mother’s oral evidence and credibility issues would have been either diluted or to a greater degree balanced by similar points that would have been made about JL . Of course to a degree this must be speculation but the nature of the evidence is such that there is an evidential foundation for these points and in my overall assessment of the totality of the evidence and the weight that I give to it I must

In addition other significant witnesses have not been available. LB was the only other adult present in the house in the late morning of 8 August. He says he was present throughout although that seems unlikely given what he said to the 999 operator. However he was present during the minutes leading up to the arrival of the ambulance and appears to have been present in the house after the mother and B departed and for the two hours prior to the police arriving to collect P. He was clearly closer to JL than he was to the mother and father. They appear to have had a common interest in the drug scene. JL told the police that she knew he wanted to be as she put it “off grid”. It seems probable that between the departure of the ambulance and the arrival of the police that he and JL were cleaning up her home most probably to remove some of the drug related items that might have been there. What evidence might he have given as to JL ’s demeanour and conversations in that critical period. By 9 August he gave a statement to police which contained information which was more consistent with the mother’s account than with JL ’s and she had given an account probably late on 8 August. Did they speak between her giving her statement and LB giving his?

Other individuals who were required by the parties did not attend. IM appears to have moved abroad and did not answer the witness summons. Although her evidence was not directly relevant to the events of 8 August she gave important background or contextual evidence about the mother’s care of B. Likewise EC did not answer the witness summons. I am awaiting fuller information although have been informed that his wife is unwell. Although he was not present at the house on 8 August he was spoken to by the father very shortly after the father had spoken to the mother at around noon. He had also been involved in what he said was a long telephone conversation on the night of the 7^th. The mother and father were unable to rely on oral evidence from him which might have supported their case; conversely Mr Norris on behalf of JL was unable to challenge aspect of that evidence.

There are other gaps in the documentary evidence which have added to the difficulty in obtaining a full and clear picture. The absence of any material from the phones of the father and the mother and the subsequent destruction of the phones by the police is a surprising void in a case such as this. In his evidence before His Honour Judge Marston the father appeared to recall spontaneously that he may have taken a photograph of JL that morning given his surprise at what he says confronted him. However enquiries by the Local Authority with the police did not result in the production of any material but rather it seems confirmation that the phone had been destroyed. It would be bold indeed of the father to make such an assertion were he to have known both that the account of her condition was fabricated and that no such picture could exist. Given my conclusions on his general credibility in my view it is unlikely that he did make it up deliberately although of course it is conceivable that his memory was playing him. Furthermore there was no evidence as to what passed between the father and JL at the hospital when P was handed over to the father. It seems as though police were present and there is no police statement which sheds any light on either what was said or how each acted towards the other. In his oral evidence the father was asked about it and appeared to have difficulty recalling although was able to say that he had kissed P and had exchanged words with JL that he could not recall the detail of what was said although he said that she appeared to be running off.

Thus when trying to piece together the jigsaw in order to achieve that allencompassing holistic evaluation of the totality of the evidence I recognise that some of the key pieces of the jigsaw are either missing or damaged and that the picture which emerges is far from complete and where there are complete sections some of them are out of focus rather than clear. In other respects though complete and clear sections are present. In reaching my final conclusions as to whether the Local Authority have proved that the mother or JL probably caused B’s injuries or whether there is a real possibility that they might have I am conscious of the limitations in the evidence and the associated limitations that that has placed on both the mother and JL ’s ability to have a full hearing.

The mother gave evidence through an interpreter. Apart from some very minor issues in the spectrum of interpreters I thought he was careful and accurate. He explained that when the mother and father used the words “little girl “that it was an affectionate expression commonly used in Portuguese. Overall I thought the mother was able to give her evidence well through the interpreter. Her presentation came across as rather detached - there were rare flashes of emotion when some question required her to connect more closely with the subject matter; for instance when I insisted that she looked properly at the photographs of B’ bruised abdomen and try to explain how she had sustained those injuries. There has been no psychological assessment of the mother which might shed light on this appearance of detachment from her emotions. If it is a more general feature of her personality it might go some way towards explaining the concerns that various people have raised about her detachment (or lack of interest or lack of warmth) from B and P. She explained that she had been the victim of abuse herself at the hands of her mother in Portugal and that she herself had been put in a coma by her mother. This is not been verified one way or the other but nobody suggested it was fabricated. It again though was described in a detached unemotional manner which again suggests that the mother does not connect readily with her emotions or has disengaged herself from them. The account she gave in her oral evidence was largely consistent with the evidence she had given in 2017 and with her account in her witness statement and earlier in her police interview. She was pressed hard during cross examination on the events of the morning of 8 August but there was no significant alteration in her account. In the main she appeared to be able to hold her own although I thought there were occasions when she tired or appeared to flag or give up and so on occasions her responses were tinged with resignation. At times she paused and appeared to try to recall matters where I thought she was genuine rather than seeking the answer which she thought best presented her case. She

The mother has undoubtedly got problems with her credibility. Mrs Justice Roberts found and Mr Norris rightly emphasises that not only has the mother lied about important matters relating to the November 2017 injuries, but she has lied about her willingness to take B to medical professionals. She has been found by Mrs Justice Roberts to have inflicted nasty injuries on B on a number of occasions by the use of clearly inappropriate force which would have been distressing to B. She continues to date to deny that she inflicted those injuries notwithstanding those findings. Mr Norris rightly points out that the mother frankly accepts that she lied to the social worker in August when she gave the account of JL ’s Akita dog treading on B as being a possible explanation for her chest and abdominal injuries. This is particularly germane to the question of who inflicted the injuries and why this lie was peddled. It emerges from her evidence that other lies have also probably been told. She told the police that she had not called an ambulance because she did not have credit on her phone but this is rapidly exposed as a lie because she called the father. In her witness statement she said that B had been with JL overnight for nearly a week. This contradicted what she had said in police interview. In her oral evidence she also said that it was only for a couple of nights. The father also was clear (and the way he gave that evidence it appeared to me spontaneous and connected with his recollection) that JL had only looked after her for a couple of nights. JL herself said in her first statement that she was caring for B every night which appears both unusual but of course incompatible with anyone’s account of the morning of 8 August. At the time the mother made her statement the medical evidence as to when the injuries were caused was not clear and so the mother may have had a motive to maximise the amount of care that JL was providing. By that time the mother was of course aware of the contents of JL ’s second statement which was so very critical of the mother.

In her evidence to me the mother said that B had been sleeping in the room with her and the father for some days before the 8^th. She said P come and join her when he woke up. She thought she had given B her 7am (ish) feed. There was some considerable focus on the timing of feeds and how long past. This was of most relevance in relation to the period between 10am and 12 noon. Insofar as the mother’s evidence varied somewhat in what time feeds were given or how long they took I do not consider that this is significant. Individuals connection with time varies considerably in any event and unless there is any particular reason to be clock watching many people will be unaware of the precise time and will not be noting how

The mother said that B then recovered after being downstairs for a while and that she put her back upstairs. She was cross-examined on why she would have put B back upstairs when she had already had some concern about JL ’s behaviour as a consequence of what the father had told her that morning and her finding JL in B’s room shortly before. With the benefit of hindsight, it is understandable that the mother’s actions in putting B back upstairs would be challenge. However if one attempts to put oneself in the mother’s shoes on that morning before any serious concern had emerged putting B back upstairs is hardly unusual even if the mother had been told that JL might be a little the worse for wear or behaving slightly oddly. No one would have thought B would end up near to death that day.

She repeated that she was making food for P when she heard a cry from upstairs and she went upstairs to see what was happening. She said that B out of the Moses basket and was on the bed and JL was sitting next to it with her back towards the door. She said she could not see what JL was doing although her arms were moving. I did not take it from this that she was suggesting anything untoward at this stage. She said when she saw B she was very pale in the face with some bluish discolouration on her lips. She said that by the time the ambulance came her colour had deteriorated. There was some testing of what was said by the mother and JL at this point. The mother said in effect she said, ‘what’s up’?

The mother maintained her account that she was unaware of the marks or bruises on B until her Babygro was removed. She seemed to be saying this was when the paramedics were there. She also said that she was unaware of the bruise in B’s mouth until she saw it with JL .

The medical records contain an entry would say that the mother alerted the landlady to the problem. This is inconsistent with both the mother and JL ’s account. In her oral evidence the mother said that she recalled saying that to the doctor (although it wasn’t said to the doctor but to a language line interpreter). I am left unsure as to whether she did say this at all notwithstanding her saying she remembers saying it. It is inconsistent with every subsequent account and I think on balance is more likely to arise either from an interpretation difficulty or the pressure of the situation. I do not consider it to be significant.

The mother described the to-ing and fro-ing between her and JL . She said she used the word ‘ambulancia’ and that JL was talking putting sugar under her tongue. She also said that JL would not give B to her. Her account of why she had not called the ambulance was hard to follow. She plainly had a phone and a phone which had credit on it as she called the father. Thus the account she gave the police of not calling an ambulance because she had no credit was not true. It is during this phase that she describes again how JL was sitting on the sofa holding B and she was trying to get B from her and that JL punched her and kicked her in the stomach. A possible discrepancy in this account has given to His Honour Judge Marston was explored but I was satisfied that the mother had gestured during that hearing and this accounted for the apparent discrepancy. This aspect of the mother’s evidence at first blush might be dismissed as the fabrication of a desperate woman seeking to divert attention from herself and to create an image of another possible perpetrator behaving violently in order to raise the possibility that they had also hurt the baby. However we know that she is telling the truth on this not least because JL in her statement of 28 October agrees that she punched the mother. It was also corroborated by what the mother told the father when they spoke at around midday and also by what the father told EC when they spoke shortly thereafter.

It is not clear from the mother’s evidence, but nor is it clear from JL ’s how long this phase lasted. It certainly ended by agreement between both the mother and JL when LB appeared on the scene and he called the ambulance.

When the paramedics arrived and as set out in the chronology they found B to be very unwell. In their statements they expressed some worry about the mother’s attitude but that has dissipated to a considerable extent following their oral evidence and the safeguarding referral form. Their concerns about her explanations for the bruising injuries remained. In evidence she was unable really to offer any explanation for the mother than the rattle or blankets explanation. When pressed to look closely at the photograph of B she became emotional but still was unable to offer any explanation as to how B came by those injuries.

The mother’s accounts, or aspects of it, is also given

In her first police interview she gives a narrative account at G265 as contained in the chronology. The essential elements of that account have remained consistent throughout and it is broadly in keeping with the oral evidence that she has given. On peripheral matters she refers to the money going missing on the Sunday evening and there being a dispute with JL. She does not accuse JL of having caused the injuries. When the police explored the account with her [G276] there are some aspects which are inconsistent with her later account. She suggested that B being sick might have been connected with a bug that she herself had had. The police were clearly sceptical about JL having punched the mother. In her second police interview she also gave a narrative account [G404] (see chronology). Her answers to more detailed questions were again broadly consistent with other evidence she has given.

In her statement dated 22 February 2017, her account is broadly consistent with her other evidence. The additional detail which emerges in this account is she says that before the father left work at around 5am the father told her that the kitchen was a state and JL was passed out downstairs.

As I have already said the mother’s oral evidence is a mixed picture of truth, lies and lack of clarity arising from the passage of time, the intensity of events and I think some degree of obfuscation. But the totality has to be fitted with other contemporaneous evidence and other accounts in order to seek to discern the probable truth.

After some initial teething problems, the father was able to give evidence by video link with the assistance of the interpreter. In general I thought the combination of the interpreter and the video link worked well and the father was able to give good evidence. Overall he appeared to be trying to give as accurate an account as he could. He appeared to be quite child focused (for instance talking about the loss of the children’s possessions being more important than the adults and how he was sad for B that her mother was not seeing her). He was balanced in relation to the mother being neither overly hostile to her or obviously protective of her. He expressed sadness at the fact that she had been found to have hurt B. He made clear that much of what he had said was based on what he had been told by the mother and said that he had trusted her. On various occasions throughout his evidence he said that he wanted to know what happened, when he was unable to remember something he generally said so and explained that he didn’t want to mislead and on a number of occasions he either corrected himself or corrected counsel if they had made an error. In those ways I concluded that his oral evidence was in most ways honest. However it was equally clear that the passage of time had dulled his memory. There were many occasions when he said he could not remember or could not remember clearly and then occasionally some factual matter might spur his memory. However I do not think he now has a clear recall of what was said and done on 7 August, nor the morning of 8 August, nor precisely what was said on the telephone by the mother on 8 August or what was said at the hospital. A combination of the passage of time and perhaps the stress and distress of events on that day and subsequently mean that as at December 2018 his recall of events is more limited than it once was.

His account of the morning of the 8 August is contained in

his oral evidence to me was much more limited in ambit than the police interviews or his earlier oral evidence. At [G208] he set out a narrative account of the circumstances leading up to 8 August and the events of the day before and the day itself. He explained that he had not been in the house himself but said that he got up to go to work at 6am and that during the night B had woken up for a feed eaten and then gone through the normal procedure and she had gone back to sleep. He said that after leaving for work he would be checking on the mother and children by sending messages or by calling and that on the morning of the eight the last time he had called all was fine. He said just good gone downstairs with P and B was sleeping upstairs. He said JD heard the baby crying and she went upstairs and saw that JL was with B he was pale. He interpolated that JL ’s had punched and kicked JD before returning to the narrative of JL going downstairs and an ambulance coming. He said that the mother had called him and said B was not well and so he left his work and went to hospital. At the hospital he found the mother on the phone to somebody who was a translator. In the course of the interview the father was clearly anxious and concerned about what he should say. He did not seek to make accusations and was reticent about making allegations of any sort. He appears to have been somewhat reluctant to talk about JL and her drug use he was more inclined to look for explanations in what he might have done to B than to accuse others. He identified that he might have injured Bes shoulder when she fell from his lap. He wondered whether he had caused her internal injuries when he had massaged her stomach to deal with her colic. He said that he had left finger marks on B when bathing her as her skin appeared to be more sensitive although he did go on to say that they usually disappeared. When questioned on his account he repeated his narrative of B waking in the night and being fed by JD, him waking at six and leaving. He said he had to get the bus although it appears actually he was collected by a colleague that day. He said during his first interval he had called home and everything was fine.

In his police interview he described the incident on 31 July with the mother has being a little fight. He did not accept that there was any exchange of physical force. Given the evidence from JL, LB but perhaps most importantly the texts from JL to EC and the text from JL to RL together with the physical injuries that were observed by Rachel but also by the hospital it seems probable that the father was not being wholly truthful truthful about the full extent of the incident on 31 July. On the other hand the account given by JL and LB may be slightly overdramatised. Does that mean that he is lying about other matters? An incident of domestic abuse is likely to result in the perpetrator seeking to minimise or cover up what they have done. They are likely to be embarrassed or ashamed or afraid of the consequences if they admit the full extent of their behaviour. Seems to me that this is a more likely explanation for the father’s

In his second police interview he was by large responding to the evidence put to him by the police and his responses are broadly consistent with his earlier accounts. Their eyes some inconsistency over how much time JL cared for B. During the interview he appears to suggest she was looking after her quite a lot and that he trusted her but later in the interview he says that if JL is saying she looked after B more and more and more that that is a lie. He recounted the incident with the dog but made clear that this was something he had been told by the mother. In his evidence to me he he said that the mother had subsequently told him this was a lie. He comes across in his police interviews as being generally frank in his expression of his views and the evidence that he gives.

In his witness statement he repeated the essential elements of the account.

It was only when he gave oral evidence to His Honour Judge Marston that he recounted the house being in a state when he got up to go to work and JL being passed out. His oral evidence came after the mother had included that account in her statement. The manner in which she gave oral evidence as depicted by the transcript but more importantly the manner in which he gave evidence before me appeared to me a genuine recall of events he had experienced. Mr Norris is right to point out that in his evidence he prefaced it during the early part of his evidence by saying he wasn’t sure it was that day but then recalled clearly that it was that day. He again made the connection with having remembered that he took photograph of her passed out and in his evidence to His Honour Judge Marston when he recounted it it prompted him to laugh for which he apologised. That appeared to me to have a hallmark of him genuinely recalling JL passed out with red hair.

JL very sadly has been diagnosed with early onset dementia. She has therefore been unable to directly defend herself in response to the Local Authority’s allegations or for her account to be tested by the mother’s legal team. Given the mother’s account to police on 9 August and the fact that it emerged very early on that JL was clearly a person who had been closely involved with B’ care on 8 August and prior to that it is yet another oddity that she was not interviewed by police. Her initial short statement given it seems late on 8 August was supplemented by a very detailed statement given on 28 October 2016.

Her first statement contains the following account.

Mr Hyde QC observes that it is concerning that if JL did indeed see B in the state that she describes that she did not immediately call the mother or do anything more than observe her or tickle her. He also points out that the account is clearly tailored because it does not include the fact that JL punched the mother in the face.

JL gave a 29 page witness statement on 28 October 2016. I’m not clear how this statement came into being its length and the level of detail included within it together with the documents produced or referred to in it suggest that it was not the product of sitting down with DC McGurk that day but was rather a statement put together over some period and with considerable thought and care. As a result of JL not being interviewed by the police and not being able to give evidence neither her initial account or her subsequent statement have been tested either by the police in the form of an interview or in cross examination.

Aspects of both of her statements are consistent with the evidence of other witnesses or contemporaneous documents. Others in particular the events of 8^th of August standalone. In other respects her statement is silent on some matters of significance. Given the inability to test the evidence it is much harder to know what to make of JL ’s accounts. The length and detail of her October statement suggest either an incredibly meticulous and detailed memory, a degree of obsession or a partly created narrative. The language used in it at times feels overdramatised. She talks of incidents being horrendous or B’s hand being all bloody from her nails being cut, the father being proper spiteful in the way he jammed B’ bottle into her mouth. Although critical of the father she was also complimentary of his ability to learn. She was highly critical of the mother in terms of her childcare or ability to take advice from JL. The level of criticism she directs at the mother in terms of her interest in B or her capacity to care for her is not corroborated by anything the health professionals observed. His Honour Judge Marston thought this was a very significant feature and it forms a central component of his conclusion that JL was lying about the mother and that the reason underpinning that must have been connected with her desire to cover up her own actions and divert attention to the mother. She talks about how she took over the care of B who then made glowing progress being much happier and more alive than she had been before. Again this sounds like an exaggeration and does not find any parallels in the health professionals observations. She is critical of the mother’s willingness to engage with medical services; regrettably the red book which would demonstrate the involvement that B had with health services in the three weeks prior to 8 August is not available. In her statement she complains that the mother and father had not paid her rent because they wanted to spend the money on shopping. This is wholly at odds with the mother and father’s account and I think at odds with the father’s nature. It seems likely that she was aware by this stage through DC McGurk that they were accusing her of having stolen money from them. She deals with her dog and his attitude to children which suggests she had been made aware of the mother’s lie that the dog had trod on B.

She repeats her earlier assertion that she had had B all day on Sunday the 7^th. This seems neither likely or consistent with the mother and father’s accounts of that day and is an exaggeration. She says that the father became irritable in the course of the Sunday evening but does not say anything about why that might be. The other evidence shows that it is likely to be connected with his money going missing, the presence of a group of individual smoking drugs and the ill feeling that was generating together with JL ’s concern over their probable departure. In her statement she emphasises on a number of occasions that she couldn’t understand why the

The second statement in particular has an overdramatised quality to it. This does not necessarily mean that the core factual account is not true but is simply illustrated in florid language. On the other hand it may be an indication of a concerted effort to paint the mother and the father in a bad light and to ensure the focus of concern is directed at them. Having been unable to see JL give evidence it is almost impossible to gauge where the truth lies. The absence of any other contemporaneous corroborative evidence as to the period between 10am and midday makes the assessment of JL ’s account of that period and the mother’s account of that period a largely self-contained process. Of course, one can draw on other evidence which might illuminate how the individuals might be expected to behave. The overall picture though is so extraordinary and unusual that it is difficult to draw inferences by comparing it to what might usually be expected or by reference to common sense.

The failure to mention that she had punched the mother in her statement of 8 August can be equated to a lie. The suppression of information as much as the giving of false information can corroborate other in criminal evidence. But the Lucas rules apply like-for-like.

In her statement of 5 September 2016 RL says the following:

“...she explained that she had found B grey and that she had tried to comfort B. She also encouraged JD to do that same and got JD to put B inside her top for physical contact and warmth. She then told JD that she needed an ambulance as she thought B would die. JD pleaded with her not to and try to take B from her; she was tugging at the blanket but didn’t manage to take B in any way. L came home whilst this was going on and took one look at B and phoned an ambulance. Mum had to hide at a neighbour’s home with B as JD was running around and mum believed that JD was going to shut herself away with B. Mum said that when the paramedics arrived and removed B’s clothes she had fingerprint bruises on her torso. Mum told me that whilst the paramedics were there and putting B in the ambulance JD appeared to display concern and was crying saying my baby. Mum said that she went back inside and showed the paramedic the bruise on P’s back and so the paramedic took P to. Shortly after that the police arrived and took mum to the hospital where she sat with P and police.”.

RL’s account was given on 5 September and does not appear to be based on text messages but rather her then recollection of what her mother had told her on the morning of the 9^th. There are aspects which are in general terms consistent with both the mother and Ms ’s account. Interestingly she describes being told that Lee had come home (rather than having been at home). The suggestion that JL had to hide at a neighbour’s home does not fit with anything the mother and RL say; although JL does talk about trying to attract the attention of a neighbour. The account suggests that the mother put on a show for the ambulance crew.

RL gave evidence about her mother as a person but also spoke about her experience of her mother’s relationship with the mother father B and P in the just under three weeks prior to 8 August. In the limited parameters of the period over which she gave evidence and the issues on which she gave it I thought that she was attempting to give an accurate account. Clearly much of her evidence was either derived from what her mother had said to her or was to some degree influenced by what she had picked up from her mother. In a strange reversal of roles it appears that JL was hiding from RL both her financial difficulties but more importantly the extent to which she was abusing cannabis. It was clearly the case that RL had gained the impression both from her mother but also from her own experiences that the mother’s and the father’s parenting of B and P was a cause of concern. Having said that RL attributed this to cultural differences and the concerns were not so great that it caused her to do anything. Given that even then she had been working in a nursery for some two years had she been really concerned it seems probable that she would have raised her concerns with social services who were already involved in the family. Some of the concerns her mother raised appear to have been unfounded or exaggerated; notably the alleged bruising to B’s genitals. It was clear from RL ’s evidence that notwithstanding her mother’s concerns this became a non-issue. Although only one example it does suggest that JL was capable of either misinterpreting or overdramatising concerns. It seems clear from RL ’s account that her mother did become very quickly attached to B; perhaps the absence of her children created a void which was filled by B and P. The extent of her interest in them and her willingness to take on their care and her enlisting others suggests she had very quickly developed an attachment to them which is not entirely easy to understand. She clearly was concerned for them but equally did not raise any concerns with social services or the health visitor or a doctor all of whom were either visiting or a short call away. This might simply be a natural reticence to involve authority or might indicate that the stated concerns were actually not at the level JL ’s statement depicts. Given RL ’s evidence based on text messages corroborates a level of concern prior to 8 August it seems inconceivable that JL’s later statement about her concerns was entirely an artifice to deflect attention from herself onto the parents. There may have course be an element of playing up the concerns at a later date but they are clearly not entirely manufactured. RL gave her statement on 5 September some four weeks after. The account set out of how the mother explained that she had found B grey and tried to comfort her and encourage JD to do the same and put B inside her top for physical contact and warmth followed by her telling that she needed an ambulance is a very condensed version which is consistent with both JL ’s and with the mother’s accounts. The additional detail of her mother having told her that she thought B would die does not appear in JL ’s first statement nor does the suggestion that it was LB who took matters into his hands by phoning an ambulance. The suggestion that JL had to hide at a neighbour’s home finds no corroboration in any other statement. RL says that her mother told her that when the ambulance arrived JD appeared to display concern was crying saying my baby. Her mother appears to have told her that P went with the paramedics and that the mother followed shortly afterwards with the police. Given the passage of time and that the account is in any event a summary of what she recalls her mother saying to her in a telephone conversation it is of relatively limited help in understanding precisely what happened on the 8^th. Some parts are consistent with other accounts. There are some aspects for instance JL hiding at a neighbour’s home which can only come from JL and yet it does not appear in any other account. Either RL ’s memory is playing her false or her mother told her something which was not true. The absence of any reference to her mother punching JD also illustrates that this is far from a full account.

RL ’s depiction of her mother as a person and her descent into dementia seemed to me to be genuine; being told both from the heart and as a lived experience. The effect of her evidence was that it was very quickly apparent after her mother moved in with her that her mental health was deteriorating. Although RL said that her mother had seemed fine over Christmas this would not be inconsistent with the variable presentation that Dr Sanikop notes. It seems clear from her evidence that JL ’s mental health took a clear downward path from January 2017 onwards. What is not clear is what the pathway was prior to that point.

Dr Sanikop, a consultant in forensic psychiatry was instructed to prepare a report on behalf of the Official Solicitor. He has provided a lengthy and detailed report principally directed at answering questions as to her diagnosis and prognosis and her capacity to conduct proceedings and her ability to give evidence. The report does not specifically address the question of her state of mind in August 2016 or seek any opinion on whether any aspect of her behaviour is consistent with or inconsistent with her having been suffering from any psychiatric symptoms at that point in time. Dr Sanikop was able to interview JL and has had access to her notes as well as the family court bundle. The following are some of the salient points he makes.

The photographs taken on 8 August at the hospital taken together with the body map completed by Dr Montshiwa show the bruises that B had sustained. They are unpleasant and concerning to view. They show some 11 separate marks or bruises on her torso. In addition she had a bruise underneath her tongue.

The three experts conducted a telephone meeting with the Guardian’s solicitor on 8 February 2017. The meeting was between Dr David Robinson (consultant paediatrician), Dr Chapman (consultant radiologist), and Mr Peter Richards (consultant neurosurgeon). The expert also gave oral evidence on the 3^rd and 6^th of March 2017. A summary of their oral evidence appears at A34. The salient points of their evidence appear to be:

Thus the answers that I am searching for are to the following questions

In answering these questions and in the discussion that follows I draw upon all the evidence, analysis and conclusions on matters of fact great and small that are contained earlier in this judgment and in particular in the chronology. The extent of the documentary and oral evidence that has been heard on central and peripheral issues is huge. Even this lengthy judgment can only include reference to evidence which bears centrally upon the issues I am determining. I do however have in mind much else that I have read and heard although it cannot be incorporated in this judgment or chronology.

I am satisfied that the account given by the father, the mother and corroborated by EC of there being events on the evening of 7 August in which money was taken from the father and which led to some dispute with JL probably occurred. The father’s evidence together with EC’s recollection of the telephone call the night before (and where he could not have been got at before he gave his statement) supports this conclusion. If there had been a dispute with the father and if there were other individuals around smoking cannabis which I conclude there were, I infer from that both that JL was likely to be upset to some degree and participated in cannabis consumption to a greater degree than she might on a normal evening.

I have concluded that the totality of the evidence supports a conclusion that the father’s evidence of JL being passed out on the sofa and the house being in a state is likely to be accurate in broad terms. The fact of their having been a party, JL ’s text, the paramedics evidence and the two-hour clean-up prior to the police’s arrival all point to the likelihood of this being true. Taken together with my conclusions as to JL ’s upset and probable consumption of more than her usual amount of cannabis it would fit with her having fallen asleep on the sofa. How the taps came to be on and

However of course the fact that there may have been a big party the night before proves little on its own. JL may have had a very messy house and may have smoked cannabis on the night of the seventh; possibly a significant amount of cannabis. However that does not prove that she assaulted B. There is no evidence from Dr Sanikop that addresses the issue of whether the consumption of cannabis in combination with paroxetine and/or tramadol might lead to irrational, aggressive or other negative behaviours. Nor does Dr Sanikop address the question of whether the aggressive behaviour that is so clearly present in 2017/2018 might have had an early flare-up in August 2016. It is right that Dr Sanikop notes that a particular feature of JL 's psychiatric presentation was a fluctuating degree of cognitive awareness but he does not shed any light on whether this might have had some relevance to her behaviour on 8 August. By January 2017 she had lost her home and had had to move in with her daughter. Whilst at her daughter RL noted worrying behaviour. RL said that in her view her mother was fine at Christmas time and it was the eviction on or about 7 January that marked a turning point. In this respect I think it would be speculation to somehow seek to back count or predict anything in relation to JL 's psychiatric condition in August 2016. All one can say is that by then it is probable she had significant rent arrears which put her occupation of that property in jeopardy. It must have been a stress. It also seems probable that as a result of the meeting between social services and the mother and possibly JL seeing documentation that she was aware that the mother and father would not be staying long with her. This would have had a number of consequences. First of all it would lead to further financial pressure, secondly it would mean that P and B to whom she had become attached would be leaving. From what JL and RL have said it seems clear that she missed having children around her and say their departure would have been upsetting. If she was concerned about the parents care of the children whether at a lower level arising from cultural differences or at a higher level this might have added to her upset. Her misuse of tramadol apparently in conjunction with paroxetine together with her abuse of cannabis is likely to have had some effect on her mental state although it is impossible to delineate or identify any particular way in which this might be so. As I have already concluded it is probable that there had been a party of sorts during which she had consumed cannabis and probably more than she would usually consume in the course of a day. Thus on the morning of 8 August 2016 there are a number of factors which would be likely to have affected her state of mind that morning. One particular piece of evidence demonstrates how these matters may have affected her which I shall return to later.

The accounts of the mother and JL as to the precise sequence of events on 8 August is in fact not so far apart as might be expected. Both agree that the mother and P came downstairs after B’ 10am (roughly) feed. This probably puts the mother and P downstairs at 10:30 to 10:45 allowing for making up the bottle, feeding B, winding B (or assaulting B) changing her and settling her. They both agree that JL went upstairs to B’s bedroom and that after a short interlude the mother followed her up and found her with B in her Moses basket appearing to be poorly. JL had not heard anything prior to that point which indicates an assault by the mother upon B. The mother did not hear anything at this point (if her recollection is accurate) which indicates an assault by JL upon B. However if both of them agree that B appeared pale and unwell

Although the mother describes hearing a weird cry or in her oral evidence before His Honour Judge Marston a doglike cry this does not fit the sort of description that Dr Robinson the paediatrician said was likely to be Bes response to an impact which is the most likely cause of her injuries. It might perhaps be consistent with a severe squeeze which Dr Robinson says would have led to B being unable to breathe. I suppose if a child cannot breathe they are not likely to vigorously cry. JL does not describe any cry at all although if she were downstairs in the kitchen with the television on as she describes being part of her usual routine it is entirely possible that she would not have heard anything. However, if it was the mother who assaulted B it would have been done in the presence of P. The evidence demonstrates that P was in the same room as the mother and B from around 7am. Given that the medical evidence points to B having sustained the injuries within a couple of hours prior to the ambulance being called and given that all of the evidence from the mother father and JL suggests that at around 10am B was well P would have been in the same room as B at the time she sustained the injuries if it was the mother who inflicted them. Of course he may have been asleep and if B did cry by the time he awoke he may have understood her crying to be no more than normal distress. On the other hand if he were awake he would have witnessed an extremely violent incident in which his mother shook and/or squeezed and/or thumped his baby sister causing her to be extremely distressed for a period of time. The absence of any evidence from the mother or JL suggesting P was at any stage upset suggest that either he did not witness anything either because it did not happen in his presence or because if he was present he was asleep.

But if the mother did hear a weird cry - and it was mentioned to the language line interpreter or hospital at either 14:00pm or 14:50pm - what might that be connected with. Might JL have picked B up which if she was already injured may have caused her to cry? Is the cry connected with the infliction of injury? As outlined above this seems less likely given Dr Robinson’s description of B’s likely reaction to the infliction of the injuries although it might be consistent with a squeeze.

It is yet another of the curiosities of the evidence that LB in his statement gives an account of the lead up to the calling of the ambulance which is far more consistent in its account of events with the mother’s than it is with JL 's. It seems reasonably clear that after the ambulance left, he and JL remained in the property together until the police arrived to collect P and JL. For a couple of hours therefore they were in the property. One does not need to speculate very much to imagine the situation. It seems probable that they would have been concerned about the possibility of police attending. It appears likely that both would have wished to minimise the presence of drugs in the premises. It may be that the premises were in a state of disarray which they wanted to rectify. During that time it is likely that they talked about earlier events. How was it that LB came to say to the police that B had been unwell earlier in the morning and that later in the morning the mother and JL were arguing upstairs about her. It is either a figment of his imagination or it is derived from JL. It is of course perfectly possible that it is a misunderstanding of what JL told him but it also might be that it is what JL told him. If that is so it is of course consistent with what the mother said but not consistent with what JL said. His account of how they JL came down running downstairs with the mother following trying to take the baby from JL also fits more easily with the mother’s account of their being a dispute as they were going down the stairs than with JL ’s who says that there was never any dispute upstairs with her running down the stairs (albeit she does say the mother started to go upstairs) and that both she and the mother were in the hallway with her going out of the front door by the time LB arrived home. I have concluded that the totality of the evidence leads me to conclude that JL was in some ways acting irrationally on the morning of the eighth. Therefore, the possibility that she may have given LB an account in that two-hour window and later that night given a different account as appears in her statement to the police is something which would be possible.

The totality of the evidence and inferences that I consider it reasonable to draw from known facts lead me to conclude that the mother’s account of their being two instances when JL was upstairs is more likely to be the case than B having remain downstairs throughout. That is not to say that there are not outlying pieces of evidence which are not consistent with this conclusion. However, there are other pieces of evidence which would not be consistent with the conclusion that B remain downstairs throughout. That regrettably is a feature which permeates many aspects of this case.

Thus by about 11:30am B was upstairs with her mother and JL and a dispute was developing over what should be done. Here the mother’s account and JL ’s account diverges with the mother alleging that she was the one who thought B should be taken to hospital and JL suggesting that sugar be put under her tongue whilst JL says she was becoming frantic with concern over B the mother was giving improbable explanations for the tongue and chest bruising and the mother was saying B did not need to go to see a doctor.

While some of the marks are attributable to the severe chest injuries B suffered at least four are not, nor is the bruising to B’s tongue. Although the bruising is not dated it seems reasonable to conclude that the bruising to her tongue cannot have been a result of something that happened after 10am that morning. Why did the mother not notice during the 10am feed that B had a bruise in her mouth. This was not explored by anyone during cross examination. Whilst I can understand that it 3am in the morning or possibly even 7am a feed might take place either in the dark or with very limited light this is less likely at 10am, although I suppose if P was still asleep the mother might have fed B with the curtain still closed. The mother’s account of the normal routines involved B being bathed every day. Although both R and EC expressed concerns that P occasionally hit B on the head no one had seen him do anything to her in the days immediately preceding 8 August. The mother’s explanation of bruising arising from how B lay on covers or from hot food dropping on her chest I agree are improbable. Given Mrs Justice Roberts’s later findings I conclude that some of the marks seen on B can only be explained by rough handling most probably by the mother both in respect of feeding with a bottle (which is a common cause of bruising under the tongue) and in respect of two or three of the bruises which are not associated with the serious chest injuries B sustained.

Although the balance of the paramedic evidence supports the conclusion that the mother was concerned and that part of the problem is recorded in the eight paramedic statements arose from a lack of understanding of the need for B to go to hospital the totality of the evidence from the paramedics and from JL points more towards the mother not appreciating the seriousness of B’s condition which would be more consistent with her not feeling it necessary to seek medical advice. That supports the conclusion that JL ’s account of the mother’s reluctance to call an ambulance and her desire to seek medical help is the more probable. But then why did the mother give an account in her first interview and has stuck to it subsequently that it was she who was concerned and that it was JL who did not want to seek medical attention? Again is this a deliberate lie and if so is it a lie within Lucas territory or a lie which corroborates other evidence pointing to the mother as the perpetrator? In her fear was the mother seeking to demonstrate to the police that she was always concerned? Was this fear of being uncovered as the perpetrator or fear of being unjustly identified? Was she reluctant to have B seen by doctors because she knew that she had some minor bruising which she had caused? The latter is certainly likely having regard to Mrs Justice Roberts findings but does it go further than that and support the conclusion that the mother had inflicted a serious assault on B and was hoping for the best but seeking to keep her from medical attention?

It is in the context of the dispute between the mother and JL over what should happen to B that one of the most curious features of the case takes place. That is the assault by JL upon the mother. There is nothing from anything the mother or father or RL or EC that identifies JL as being somebody who behaves aggressively or violently and who one might predict would act violently under stress. However we know for a fact that she did punch the mother. I have also concluded that she did at least push the mother away with her foot - this has subsequently come to be described as a kick. For JL to have punched the mother, whilst JL was holding B is in my view something nobody who knew her would have predicted and is an act of violence which was wholly out of place in the situation that the mother and JL were in. Whilst I am able to accept that this was a distressing and escalating situation as described by Mr Norris I cannot accept that her response was in any sense reasonable or justified. It is more the act of an individual acting irrationally than of an individual acting rationally. It therefore supports the contention that JL ’s state of mind that morning was for one reason or a constellation of reasons not her usual one. Whilst this act of violence towards the mother took place it does not of course follow that JL was also responsible for an assault upon B. Punching and ‘kicking’ the mother in the course of a highly charged half-hour is plainly very different to shaking and/or squeezing or punching a tiny baby for no apparent reason. Mr Hyde QC floated the possibility that JL may have deliberately hurt B in some sort of misguided attempt to delay the departure of the mother and father and their children either because she had become obsessed with the children or needed the money or a combination of the two. The possibility that JL deliberately harmed B for any purpose I conclude can be discounted. There is absolutely nothing in her background which remotely supports the contention that she might behave violently towards a child. In fact quite the contrary. If anything the evidence suggests she is likely to be overly anxious albeit her evidence in relation to her concerns over B and P has I have concluded been magnified as a consequence of what I think is a tendency to overdramatise on her behalf and between August and October her ‘need’ to fix responsibility for B’s injuries at the parents door. What the assault on the mother does give rise to though is the real possibility that JL was somehow behaving irrationally and unpredictably that day for reasons which it is not possible to reach a clear conclusion on.

So has the Local Authority established that it was probably the mother who inflicted these terrible injuries on B? Or has the Local Authority established that it was probably JL who was responsible? If the perpetrator is not established on the balance of probabilities is there a real possibility that either or both might have been responsible?

The length of this judgment in itself perhaps illustrates that determining what happened, evaluating what inferences might properly be drawn and reaching conclusions even on the balance of probabilities in this case has not been easy. The combination of what we know, what we know we don’t know together with the possibility of things that we don’t know we don’t know have made the evaluation particularly problematic for everybody; the parties, the police and myself.

If one were to compartmentalise the evaluation clear answers might emerge. If the ultimate test were out of the two who is the more likely to have done this, by reference to aspects of the evidence and to the court’s experience of inflicted injuries on babies one might say it was more likely that the mother had inflicted the injuries than JL . However the compartmentalised approach, an approach which looks only at who is the more likely perpetrator is plainly the wrong approach. An approach which surveys a very broad canvas, which weaves all of the evidence together in all of its facets, which draws appropriate inferences from the evidence and from common sense and which incorporates the likelihood of one rather than the other being the perpetrator is the correct approach.

There is much in the evidence which points to the mother as being the probable perpetrator. She has already been found to have injured her daughter on several occasions; albeit injuries of a wholly different order of magnitude or manner of infliction to these. She has already been found to have lied in order to cover up her assaults upon her daughter. She has lied in relation to these injuries notably fabricating an account of JL ’s large Akita dog treading on B’ chest. This lie though does not seek to blame JL but seeks to offer an ‘innocent’ explanation for B’s injuries which perhaps is more consistent with the mother’s explanation than with seeking to cover her tracks. If she knew what she had done would she not have offered an explanation consistent with B being shaken and thumped rather than trodden on. It does not of itself therefore corroborate other evidence that points to the mother as the perpetrator. She has been found to have lied by Mrs Justice Roberts and not to have been a credible witness in other respects by Mrs Justice Roberts. As Mr Norris points out all of this supports the conclusion that it was probably the mother. However I have myself concluded that the mother’s credibility is a mixed picture where she has told lies yes but has also told truths on important issues. She certainly had the opportunity being the principal carer for B that morning. But P was also in her care. Could these injuries had been inflicted in the presence of P and without his being aware of and distressed by the events? The mother is capable of getting angry so found Mrs Justice Roberts. The parents were living in a very difficult situation in a house in which they were unhappy because of the drug use and the presence of others including JL with whom they had issues. Any young mother caring for two small children in such circumstances would be likely to be tired and stressed at times. Taken together that situation would provide a fertile ground for the sort of momentary loss of control often seen in shaken baby cases where in frustration and a flash of anger at a baby not taking her feed or some other minor behaviour a parent causes grievous injuries to their baby by shaking or throwing them. But these injuries were not just a shake. B was either subjected to a very serious impact to her chest and abdomen in the form of a punch or similar or she was squeezed so brutally that it broke her ribs and damaged her internal organs. What appeared on paper to be a real issue over the mother seeking to obstruct B being taken to hospital dissipated to a considerable degree when the paramedics gave evidence and when the safeguarding referral form emerged. What had appeared to corroborate JL ’s account of the mother being obstructive was not borne out by the totality of the paramedic evidence which rather supported a conclusion that the mother was genuinely concerned but did not understand the severity of the paramedics’ concerns. Taking all of the evidence and arguments,

What of JL? There is much also that points to her as a possible perpetrator. Does it reach the threshold of the probable perpetrator? There is powerful evidence that she was in an unusual state of mind that morning which finds its most obvious illustration in her assaulting the mother. Does this mean that she might have behaved irrationally and violently towards B? A serious assault on a vulnerable baby is manifestly different to the circumstances in which she assaulted the mother. The mother was downstairs with P and yet she had nothing at this point which would indicate an assault upon B; this being the most likely point at or by which B had sustained her injuries. The mother denies being in the toilet which might have masked any noise from upstairs. On JL ’s own account she was alone with B for a period of time when B was first noted to be unwell. Why if B was so unwell when she first entered the room did she not immediately call the mother but wait for five minutes? On the other hand, she appears to have had little regard for the mother’s maternal qualities and on first seeing B no doubt it might be reasonable to have thought that nothing was seriously amiss. Is JL ’s account of how B remain downstairs in the care of the mother after that point and which I have found to be either untrue or an erroneous recollection an attempt to divert attention away from the extent to which JL was alone with B on that day? On the mother’s account though when she saw JL upstairs with B it was shortly after she heard a cry, a cry which was not consistent with the infliction of the serious injuries in the moments beforehand. If the injuries were not inflicted then what would be the purpose in JL making up an account of her not having been upstairs again? Does LB’s statement which puts JL upstairs with the mother and which tends to corroborate the mother’s account indicates that JL told him something different to that which she included in her initial account? If so again what inference in Lucas terms can properly be drawn from this? What of the exaggerated account contained within 28 October 2016 statement and the very considerable criticism of the mother and the father contained within that? Is it as His Honour Judge Marston found a deliberate attempt to seek to incriminate the parents and to divert suspicion away from her? In the context of JL being aware that she was the other person in the frame alongside the parents that she would have ramped up the level of concerns is perhaps not surprising and does not in my view indicate a fabrication which corroborates her having committed the assault. Given that there is evidence from RL and from contemporaneous sources that JL did have some concerns about the quality of parenting being given to B it seems to me that the criticism of the parents may be explicable simply through anxiety to ensure that she wasn’t wrongly accused as much as being an attempt to prevent her being properly accused. Taking all of the evidence, drawing what inferences are legitimate allowing for the lies or exaggerations she has told (or the suppression of the truth) taking account of who of the two is more likely to be the perpetrator I conclude that the Local Authority has not established on the balance of probabilities that JL did inflict the injuries on B. However the totality of

I am acutely conscious of the unsatisfactory nature of any conclusion which fails to identify the perpetrator of such serious injuries to a baby. I am troubled that I am unable to reach a clear conclusion but this is a classic case where I would be straining to identify the perpetrator having regard to my analysis above. The combination of the evidence which exists, together with the evidence which has not been available and the inability to test in particular the evidence of JL and LB has of course had an impact on the process of the evaluation of the evidence and undoubtedly has contributed to my inability to identify a perpetrator on the balance of probabilities.

At the outset Mr Hyde QC submitted that it was potentially an abuse of process to undertake a fact-finding exercise in the circumstances in which we found ourselves. I rejected that on the basis that the court owed it to the children in particular but also to the parties and more broadly to the process of justice to at least embark on the process to see whether a perpetrator could fairly be identified. I said then that it may be an easy route out simply to identify that there was a real possibility that the mother and JL might have caused the injuries but I did not consider that that would do justice to the very serious issues concerned. Having undertaken that very full investigation into how B’s injuries were caused I am satisfied that no reasonably sized stone has been left unturned during the two weeks that I have been enquiring into this. I decline to speculate on whether a different outcome might have been possible either at an earlier stage or with different evidence. Thus all that can sensibly be done to get to the bottom of this has now been done.

Only one person knows the truth of what happened to B that day. For the purposes of these proceedings but also for the purposes of the lives of B and P and the father going forwards I’m afraid I can only tell them that there is a real possibility that B was seriously injured by her mother but there is also a real possibility that she was seriously injured by JL with whom they were lodging.

That is my judgment.

APPENDIX A

LA application under s.31 CA 1989 (BI-16).

CMO1. HHJ Marston ICO granted.

HHJ Marston. Further disclosure order against the Police (B55-56).

HHJ Marston. JL directed to attend court on Monday 16 January 2017 to hear whether she wishes to intervene in the current proceedings. Order to be served by LA personally as soon as practicable and in any event by 12 noon Thursday 12 January 2017 (B57-8).

LA Schedule of Findings. Injuries caused by M, F or JL (A2-3).

HHJ Marston. LA to serve JL personally with an order requesting her to attend on 2 February 2017 to hear whether she wishes to intervene in the current proceedings (B65-6).

SW spoke with RL, JL’s daughter. RL said that JL was “not in a good way” and suffering from anxiety and depression (C130).

JL personally served with order and documents 2.02.17. Recorded that she “was extremely distressed and in a highly emotional and hysterical state” (C161).

JL admitted to Priory Ward under s.2 MHA (Letter 20.02.17). [C161a]

HHJ Marston.

HHJ Marston. JL attended and gave instructions to her solicitor and counsel representing her pro bono but then disappeared before the case called on. Case adjourned to 6.04.17.

Position Statement by Counsel for LA seeking clarification of findings (A8-

Document filed by Solicitor for LA (19.37) questioning whether the Court had ever considered the issue of capacity under parts 12 and 15 FPR, PD12A and PD15B.

HHJ Marston. Permission to appeal refused.

Capacity assessment of JL obtained by LA from Dr Fear. Dr Fear’s view was that JL does have capacity but “ward staff report that her mental state fluctuates from day to day – this may affect capacity. She would benefit from a litigation friends and a reassessment if there are any doubts” (C234-7).

HHJ Marston. LA sought leave to withdraw care proceedings (A 18-20). M agreed to remain in the current placement with the children until 14.08.17.

LA issued further application under s.31 CA 1989 (B1-16).

HHJ Wildblood QC. Court made ICO (B50-50B).

Further capacity assessment of JL, condition appears to be progressive (C148151).

CM03. Baker J. Court declared that HL does not have capacity and is, therefore, a protected party. OS appointed as her litigation friend, subject to consent.

Hearing Roberts J time estimate 1 day. CMO number 5, Roberts J (B85-B90).

CMO number 6, Roberts J.

CMO number 7. Roberts J. (B90a-B90b)

Negative certificate as to capacity to conduct proceedings in respect of JL

Roberts J Judgment stating there should be a re-hearing of the allegations of non-accidental injury in 2016.

Report relating to the immigration status of the children by Phil Haywood of

SW Claire Lidgett viability assessment not recommending further assessment of Ms Teresa Alexandra da Silva Belo or her partner José Maria Peixoto Valente. (C278a-C278f)

Psychiatric report of Dr Sanikop on JL.

ICACU response to order dated 2.11.18. (C323-C340)

Rehearing starts