A Council v Mother & Ors

"62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child.

Such findings were made in respect of a carer are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children's best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries.

Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming 'a bolt on' to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, "nearly all parents will be imperfect in some way or another". Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their longsuffering partners upon their release. That does not mean that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm. This professional and realistic approach allowed the Court to focus on what was, in reality, the only live issue, namely; was GL's history of violence sufficient to lead to a finding of failure to protect upon the mother's part?" Similar points were made in G-L-T (Children) [2019] EWCA Civ 717 .

I have considered all the evidence which I have read, watched and heard and it has all been taken into account in performing my analysis.

The standard of proof required to identify the perpetrator or perpetrators of R's injuries is the balance of probabilities and if I am able to identify the perpetrator to that requisite standard it is my duty to do so. R has a right to know who injured her and needs to know the truth, if possible. The perpetrator is self identified as the father. What was not resolved is how and when the injuries occurred.

Father's case is now predicated upon the basis that the tic/s and forceful compression are one and the same, that it was a very forceful tic which caused bruising and the rib fracture. It is clear that having deferred to each other's expertise where appropriate, the experts do not agree.

I have of course considered the direction in Lucas in relation to father. The reality is that he has lied throughout this matter, from the day that R suffered the fractured rib onwards. He has lied to the mother, to the professionals at the hospital, to the professionals in this matter, to his legal team, to the local authority, to the guardian and to the court. Suddenly he expects everyone to believe that he is telling the truth.

Where it is alleged that a person has lied, as here, the court must approach this allegation with considerable care, as highlighted in Lucas, above. Here the father has actually admitted lying throughout this matter in relation to all of R's injuries and indeed was unable to swear to the truth of his prior statements. Father claims to be telling the truth now, the Local Authority and the Guardian submit that he is not, that the injuries to R were caused not by a tic but by a momentary loss of control, father snapping when stressed and frustrated (possibly on more than one occasion). Having identified the alleged lies in issue, the court must ask itself whether the local authority has proved, on the simple balance of probabilities, that the alleged lie has been told. The court must accordingly seek to distinguish a lie from, for example, "story creep", mistake, confusion, memory failure or distortion arising from impairment. Once the court has undertaken that analysis it moves to consider why the proven (or accepted) lie has been told. This is important because people may lie for many different reasons - embarrassment, a sense of shame for having caused an injury accidentally, a desire to hide some other wrong-doing or a mistaken belief that lying might improve their position. Of course, it is also imperative that the court reminds itself that just because a person lies about one issue, it does not automatically follow that they have lied about everything. Father has consistently lied throughout.

Here it is claimed by father that he lied due to panic, shame and fear and to protect himself but in reality whilst it was partly for all of the reasons above including attempting to deflect blame for the injuries, mainly he lied to cover his guilt and he has continued to do so for almost x months.

It was submitted by the local authority that the father's version of events was "story creep" whereby he changed his story to fit in with the evidence of the experts; that the changes to his evidence followed the filing of the expert evidence and the experts meeting. Father actually admits that his evidence changed when he considered the evidence of the experts as possible explanations occurred to him. It is clear that he considered that Dr Ameen's report could exonerate him from blame but clarification in the professionals meeting and in evidence confirmed that the issue was not necessarily the tics themselves, but added pressure with or without a tic. At the time of the father's final statement he, in my judgment, believed that admitting to a very strong tic would be sufficient to explain the injuries, in particular to R's rib.

It is not just that father's evidence changed in relation to the force of the tic. Father's evidence also changed throughout in relation to R's behaviour – father having initially stated that R cried just the same after the tic and changing this to her cry having changed when he admitted knowing he hurt her. In the experts meeting it is clear that Dr Cardwell expected R's behaviour to be different following the fracture.

There were no proper explanations by father for any of the bruising which he has now admitted causing, not even in his response to threshold nor even in his late statement and it is only when giving evidence that he now rather conveniently claims that they were caused by separate tic incidents. The experts meeting minutes had confirmed that there were multiple occasions for the bruises with separate incidents of force and not necessarily caused by the rib fracture.

It is striking to note that the father has never previously mentioned the possibility of additional events causing bruises by tics. Further that the mother, who I consider to be an honest and truthful witness has never seen father tic-ing to such an extent that it could cause injuries or any other bruises or injuries to R over the x-month period from her birth until her removal. If the father was having constant tics and squeezing her as he says now, then it is likely according to Dr Ameen, that she would have had bruises before the [date] which would have been noticed by the mother. I can and do accept that the mother saw only one bruise on around [a date], and I consider it inconceivable that she missed bruises since R's birth. She would have mentioned them as a protective mother, as she mentioned the one bruise on R's back to father and to 111.

It seems to be a highly unlikely co-incidence that father also had severe tics causing bruising only around the time R was injured, and not in the x months since birth as well as the one-off rib-injuring tic, another co-incidence, at roughly the same time. Dr Ameen stated that he would have expected to see more injuries on different days with such tics, not a single injury with bruises around one single period of time. The evidence from father about bathing suggests that R had a bath every 2 days so there would be many opportunities for the mother to note any bruising since birth. She has reported none and I found her to be a truthful witness whose evidence I accepted. She was clearly bewildered by the father's admissions but even in her grief sought to be kind to him and not directly seek to blame him in her final submissions. I do not accept that she would have failed to act if she saw regular bruising, she would protect her child as she is clearly a doting and committed mother.

I am sure that she deeply regrets not noticing any other bruises at the time of admission to hospital or indeed questioning the father further about the bruise to the back, which she knew she had not inflicted herself, but put simply she trusted the father and had no reason to suspect that he had injured R. I accept her evidence about the shower and swaddling in a towel and not checking for injuries – it would not be normal to do so when you trust someone as she did the father. Additionally I do not criticise her for not seeking immediate medical attention for a small bruise alone, she did of course mention it to 111.

Even now father has not provided the court with any detailed explanation of when and how all of the bruises occurred and if the court accepts the opinions of the experts, then father's explanation for the fractured rib and at least some of the bruises is unsupported. He went to the lengths of filing a detailed timeline with photographs and yet failed to mention any injuries he had caused.

Of course I remind myself that the experts are to guide and assist the court and I should of course consider the whole canvas of evidence. Father willingly accepts the evidence of Dr Johnson and Dr Cardwell which fits with his own final explanation, at least to some extent. Even then, however, whilst there is a mechanism which could have been used to cause the fracture, the issue of force is deferred to Dr Ameen and Dr Cardwell does not accept father's explanation for at least some of the bruises. Mr Gorton for father urges me to disregard everything Dr Ameen said after his written report, both at the professionals meeting and in evidence. He has no legitimacy after the report, he stated, Dr Ameen was a "politician" who exceeded his authority, did not physically examine the father, dared to express opinions about bruising and his evidence was non-sensical and should be discarded. Despite these alleged misgivings about Dr Ameen, however, it was submitted that it is perfectly fine and acceptable for me to rely on his written report which father argues supports him. That approach is contradictory to say the least. If he was, as submitted by father, such a poor expert how can it be appropriate to rely on even the written report? I have already highlighted the fact that the father appears to hold the opinion that the written report supports his latest admissions but it simply does not and Dr Ameen stood firm to his opinion in the face of significant and forceful challenge. I have already commented on the issue of bruising and Dr Ameen's expertise as a general surgeon for many years.

I do not dismiss Dr Ameen's evidence, to the contrary I accept it. He was quite clear that father's demonstration and explanation for the fracture were a potential mechanism, but only if there was sufficient force/compression to R's chest. The simple difference between he and the father is that the father submits that his tic alone provided sufficient force, Dr Ameen does not consider this to be possible.

Much was made by Mr Gorton of father allegedly being a "prisoner" to his tics and there was reference on several occasions to him having a 1-minute arm spasm which could not be stopped by the GP. I note that this event actually took place 8 years ago, and question how it is relevant now, certainly there is no suggestion or evidence of repetition. I do not seek to minimise father's affliction with his tics but the only recent evidence of any significant tics recently comes from father himself self reporting, including an event allegedly reported to the hospital after R's injury had taken place according to counsel for R. No proof has been provided by the father to substantiate this incident or visit.

In relation to bruising, there are actually very limited differences between the medical opinions. Again it is simply the case that father submits they were caused by his tics; the experts do not fully agree. Dr Cardwell does not rule out inflicted injury and opines that whilst it is it is feasible that 2 of the bruises are "more typical of fingertip bruising" at least 2 and possibly 3 of the bruises are not explained by father's explanation or demonstration. Further the number and areas of bruising cause concern about child abuse particularly when linked with the rib fracture.

I have considered the totality of evidence and evaluated it on the balance of probabilities. At the time of the injuries, this was a father under stress, and struggling with a colicky baby. He was also having tics but his evidence suggests that these happen 1000 times each day and he will to a degree be used to them and their effects. In my judgment eventually his frustration, stress and failure to cope led to R being injured.

I do not accept that the injuries were all caused by a tic/tics, however great those tics allegedly were. It is too much of a coincidence, unsupported by evidence and indeed not accepted as a cause by the totality of the medical expert evidence. This is a father who has lied and lied throughout these proceedings, to everyone involved and his credibility is extremely low. He was a poor witness and seriously lacks credibility. I accept the submissions of Ms Begum for the local authority and Ms Noon for R that this was a father who could not cope and suffered a momentary loss of control and squeezed R too tight, fracturing her rib, possibly whilst also having a tic but that the tic alone was not to blame. It was not deliberate but was reckless and caused by stress and failing to cope.

He knew that he had injured her but wholly failed to check her health, to tell the mother or to seek any assistance, medical or otherwise. Instead he deliberately chose to protect himself and firstly did not admit what he had done and later lied again and again about what he had done. This included slowly "creeping" his story in line with the medical evidence and possible explanations for the fracture, increasing the alleged strength of the tic and the pressure in the hope that he would not be found out.

In addition, the father caused bruising to R, some likely during the events following the rib fracture according to his evidence and the video demonstrations when R was no doubt traumatised for a period of time and even harder to console and some in the days before. It is impossible to be precise with dating the bruises but Dr Cardwell was very clear that father had failed to explain the true basis for the bruises, particularly those numbered (ii) and (iv). The others were potentially caused by fingertips but the true mechanisms are not clear even with father's final evidence where he admits causing the bruises over different days/times. Certainly there is no evidence that anyone other than the father inflicted the bruising.

In summary, I find that the injuries were non-accidental in nature with bruises (i) and (iii) potentially be explained by fingertip bruises although still caused by rough, inappropriate and excessive pressure and not by normal handling. This was inappropriate parenting when he was struggling and trying to calm R after fracturing her rib (as he admits) rather than seeking help and admitting what he had done. On the balance of probabilities I find that all injuries occurred during the short period of time when R was suffering with colic.

The father has caused significant harm to R and to her mother with his lies and deceit throughout the almost x months since R's injury was discovered. He has caused mother to doubt herself and she has been exposed to being placed in the pool of perpetrators and had to hear that adoption was a potential outcome for R. He has undoubtedly caused emotional harm to R by her separation from her loving and caring mother and physical harm apart from the injuries by having to undergo blood testing. Even now I cannot accept that he has been truly honest about the events which caused the injuries but I do not need to make precise findings as to the exact version of events. It is sufficient for me to find as I have stated.

There is no evidence that the mother was aware of the risks posed by father with his tics, or with his loss of control or stress; she has never seen any significant tic and in any event, I am not satisfied that this was the cause of R's injuries. I am satisfied that the mother has not failed to protect R.

I make the following findings, having applied the civil burden of proof and considered all of the evidence

Findings sought:

Finding (2) I make this finding against father but not against mother

Finding (3) I do not make this finding

Failure to Protect

Finding (4) I make this finding against father but not against mother but in the following amended terms:

Finding (5) I make this finding against father but not against mother

I make the findings as stated.

HHJ Hesford

Date 31 May 2024