IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: No.  PX14C00008
IN THE FAMILY COURT
Sitting at Peterborough

The Combined Court Centre  
Rivergate
Peterborough
Cambridgeshire
Date: Thursday, 12th June 2014

Before:

HIS HONOUR JUDGE GREENE
(In Private)

B E T W E E N :
				Re: N and V (Inflicted injuries: Rehabilitation)

		P CITY COUNCIL	Applicant

-  and  -

(1) AP
		(2) G	Respondents

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MR.  CASSIDY (instructed by The Legal Services Department of the Local Authority) appeared on behalf of the Applicant. 

MR. ALEXANDER appeared on behalf of the First Respondent.

MR. M. HENLEY appeared on behalf of the Second Respondent.

MR. LIEBRECHT appeared on behalf of the Guardian. 

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J U D G M E N T

JUDGE GREENE: 

1	These proceedings concern twin girls, N and V, born on 14th September 2012.  The children are represented in these proceedings by Mr. Liebrecht, through their Guardian.  The children’s mother is AP, represented by Mr. Alexander, and the father is G represented by Mr. Henley.   The proceedings were care proceedings brought by Peterborough City Council, represented by Mr. Cassidy, and were brought following N having suffered extensive bruising to her face on 16th January this year.  

2	The circumstances of that was such that there is no dispute that both of the girls were in the father’s sole care, and that if the injuries were not accidental, then the father is the only person who could have been responsible.  

3	The Local Authority seek a care order and a finding that the injuries were inflicted by the father or, in the alternative, that N was not properly supervised when it occurred.  When I say the Local Authority seek a care order, the care plan now involves placement with the grandmother under a special guardianship order.  For reasons which I will come on to, that plan is not able yet to proceed because of further assessments that are required.   

4	The father’s case was that what happened was purely accidental and so the threshold criteria set out in section 31 of the Children Act is in dispute because of course the court can only make or consider making a care order if satisfied that the child has suffered or is likely to suffer significant harm as a result of the care not being what it would be reasonable to expect a parent to give.  The burden of proving those matters throughout is on the Local Authority.  It is never a matter for the parent in care proceedings to disprove what is alleged.  The standard of proof is the ordinary civil standard of the balance of probabilities.  This case is unusual in being what is sometimes referred to as a single issue case.  There have never been any other concerns about this family.  There are no other  concerns about the mother or father or their care of either of their twin daughters.  On the contrary, in many ways they are an exemplary couple.  They are hard-working, devoted to each other and to their children.  It is clear from all the assessments that their house is well-kept, the children are clean and well-dressed, meeting all of their milestones and are very healthy.  They also have a very supportive extended family.  It is one of those cases in which, in considering the evidence as to what happened I also have to bear in mind the inherent unlikelihood of such a parent injuring the child. 

5	In dealing with the matter, I have read the bundle of documents and heard oral evidence from Dr. Chetcuti, who is a consultant paediatrician jointly instructed; from the social worker responsible for the case, her team manager, who prepared the final evidence and care plan in the social worker’s absence.  I then heard from the mother and the father through interpreters.  The interpreters that have been instructed in this case have performed their task in an excellent way that has enabled the proceedings to go ahead smoothly and without interruption.  I am very grateful to them. I also heard from the children’s Guardian.

6	The mother and father are both Polish  nationals, but have lived and worked here since 2005 and 2006 respectively.  Both say that this country is their habitual residence and that it is, therefore, their children’s.  So there was no issue here about jurisdiction. The parents met approximately three years ago and had been cohabiting since early 2012.  G has parental responsibility for both V and N.

7	The Local Authority care plan is that if the injuries are found to have been inflicted ,the girls should be placed with the paternal grandmother who has been positively assessed, as indeed has the maternal grandmother.  There is some further information, however, awaited from Poland where she normally resides, some of which has been received but not yet translated.  Both of the grandparents have been very supportive and cooperative throughout these proceedings.  Both came over from Poland to help the family and to take part in the assessments.  It is also right to say at this stage that both parents have been thoroughly cooperative with the Local Authority department throughout these proceedings. 

8	To the Local Authority’s credit although the care plan was prepared by the team manager, they have been open about the fact that the social worker who is case-responsible disagrees with that care plan, and it is refreshing for the Local Authority to have been sufficiently responsible and open to have made that quite clear and allowed both to give evidence.

9	Looking now at the events leading up to this matter: it was at about 3.15 in the afternoon of 16th January of this year that N was taken by mother and father to Peterborough City Hospital Emergency Department.  She was found to have extensive bruising on both sides of her face.  She was 16 months old at the time. V her twin was also with mother and father.  She had no injuries at all. N had no other injuries, other than those to her face. There are photographs in the bundle of N’s injuries.  They are quite vivid.  Having said that, the colouration in the photograph in the bundle is distorted and I am grateful to Mr. Henley for having allowed me to see the digital photographs on his iPad, which were the photographs seen by Dr. Chetcuti.  

10	The medical description of those injuries is as follows.  There is a large area of round purple bruising on N’s left cheek, several areas of red marks on her left temple, two purple bruises on her right cheek and three red linear marks on the mandible (jaw) extending down to the neck.  The explanation given by G was that the mother had gone to work early that morning; that they each work shifts and whilst one is working, the other looks after the children.  So he was looking after the girls that morning.  He had given them breakfast, taken them out for a walk and changed them.  He was playing with the girls in the living room.  At about 12 noon he heard the sound of the refuse collection lorry and remembered the bin had not been put out. He went out of the house to do that, closing the door to the room in which he had been playing with the girls so that they were not able to get out into the street. He went out of the front door, leaving that open, and moved the bin about three metres to the street and returned.  He said that that only took a couple of minutes and as he came back into the house he heard N crying.  The living room leads into the dining room which then leads into the kitchen and all the doors between those rooms are left open.  So it appears that N had gone from the living room through to the kitchen in the time that G was away from that room.  He says that he found her crying face down in a pool of soup.  It was soup that mother had made the night before and that the heavy pan in which that soup had been made was on the kitchen floor next to her.  He had initially said to the medical staff and the police that he had been in the living room with V when he heard a crash and cry.  Since early in the proceedings he has admitted that that was a lie and said that he did not want to admit that he had gone out of the house at the time of the accident. Except for that, his story has been consistent throughout.  He said that N was crying loudly;  that she was on her front;  was waiving her arms about and moving her head.   He said it took him about 25 minutes or so to calm her down during which time he cleaned her up, changed her clothes, cleared up most of the spilled soup, and then put her to bed. 

11	At around 1 o’clock, so some half an hour later after putting N to bed he rang mother at work.   He had also texted her because her own mobile apparently cannot hear voice calls. He was put through to her manager who gave her permission to leave work in the circumstances.  She came straight home quickly, found N then asleep in her cot and did not wish to disturb her while she was asleep.  She could see marks on one side of her face. 

12	They both decided to take her to hospital.  Apparently they both decided on the story that G had been in the house with V rather than putting the bin out when the incident occurred.  They took her to the hospital soon after N awoke, arriving soon after 3 p.m. in the afternoon.  G gave an explanation to the medical staff of what he found and what he believed had happened.  The medical staff considered that the explanation given did not match or account for the injuries seen. They noted that the bruising was over an extensive area of both sides of her face; that the majority of the bruising was on soft tissue, rather than on the bony prominences of her face where children usually suffer injuries when they fall.   They considered that the injuries, therefore, were unlikely to have been caused by the single mechanism or accident described by G.

13	The hospital arranged for various tests to be carried out, including blood tests, CT brain scan and a skeleton survey.  All of those were normal.  There were no other injuries at all.

14	G was subsequently interviewed by the police and he went into more detail in those interviews.  He explained that the soup pan was on a tea towel on the work surface in the kitchen. A  photograph was produced showing that by way of a reconstruction.  The photograph shows the towel neatly folded.  G in evidence said that there was no particular reason for putting the pan on the towel.  The towel was just there and he was moving the pan from the hob whilst he was using the hob for preparing the children’s breakfasts. The pan containing the soup was a comparatively large pan.  It is shown in one of the photographs.  I am told that it was half full of soup, which mother had made the night before.  It would therefore have had some weight.  G said that when he found N she was crying loudly.  The pan was by her and the towel was partly underneath her, including underneath her face.   It is likely that at that stage the towel would not have been neat but may have been scrunched up in some way from the fall.  He said that she was banging her hands on the floor, clearly upset, banging her head and turning it from side to side. 

15	It was suggested on his behalf in cross-examination of Dr. Chetcuti that vigorous sideways movements of her head may have caused some bruising, if an object such as a pan was next to her face.  Dr. Chetcuti did not accept that suggestion, but in any event in evidence G himself said that the movements of her head were not forceful.  He described them as delicate.

16	G has said, of course, throughout that he did not actually see what happened; that he has imagined what may have happened from what he saw and his conjecture is that N must have pulled the towel that the pan was on, resulting in the pan coming off the surface, striking her in the face, knocking her to the ground with the possibility that the pan may have landed on her, or she may have landed on the pan.  Of course it is impossible to know if she landed on the pan which part of it.  It could have included landing on the handle which is relevant to the description of some of the bruises. 

17	G said that there were some toys on the floor in the kitchen, but neither he nor mother could say what those toys were, nor could either suggest a toy that the children had that could have matched any of the pattern of bruising that was seen on either side of her face. 

18	G also said that N’s face was very red.  For that reason it was difficult to see initially what the marks were, but he also suggested that some of them may have been allergic reaction to the soup.  Dr. Chetcuti was instructed as an independent joint expert . He was a very experienced paediatrician who also happened to be an allergy expert.  It was clear from his evidence that the injuries were not an allergic reaction.  He was quite clear about that and that they were not caused by heat or hot liquid.  In his view the injuries were unlikely to have been caused either by a fall to the floor or being hit by a falling pan, even landing on the pan.   Dr. Chetcuti, in my view, gave authoritative and balanced evidence dealing carefully with the questions raised.  He gave clear explanations for the theories or proffered explanations that he rejected. He was not able to suggest the precise mechanism that could account for all the pattern of injury in the circumstances that G put forward.  He said that he was unable to comprehend how these injuries could have occurred with the history that was given. 

19	In oral evidence he was an impressive witness and his oral evidence reinforced his report.  I was satisfied by his evidence taking into account and considering carefully the evidence given by G that the injuries seen could not have occurred simply by way of the accident suggested by G.

20	There are linear marks on the right side of N’s face.  Dr. Chetcuti said those marks were consistent with a slap and at another point he said the marks are typical of slap marks.  When I was later able to see the better quality photographs that Dr. Chetcuti had had access to, it was possible to see plainly the pattern of marks that I have heard medical evidence about in many cases where the skin is paler where fingers have touched and the red bruising appears between and around the fingers. He said that the unusual  marks on the left side of the face suggested that she may have been hit by or impacting against a firm object with a very uneven surface.   One possibility, therefore, being a forceful slap to the right side of N’s face, knocking the other side of her face against some uneven object.  Although it was accepted that a fall may have resulted in a bruise or some bruising, it would be more likely to have occurred to the forehead, nose or the bony parts of her face or head.  Bruising resulting from a fall was less likely to have occurred to the soft tissue areas, particular, of the cheeks. Although the pan or its handle was accepted as being items that could have caused bruises and a linear mark, he considered that it was unlikely that they could have caused these extensive marks.  Even if any marks were caused, as they may have been, by impact with the pan or its handle, or even with a hard toy, it was unlikely, in his view, and could not account for the totality of the injuries seen on both sides of N’s face, and in his view did not explain the linear marks.  So he concluded his evidence by confirming his view in his report that the more likely explanation was in his words ‘non-accidental injury’.  That was, of course, the view of the treating medics at the hospital, including the paediatrician there - all of whom agreed, as did Dr. Chetcuti, that the injuries were unlikely to have been caused by the fall or the pan.

21	I have taken into account the evidence that N is a very active toddler.  There are many descriptions of her being very lively. In particular she is described as throwing tantrums, banging her head or head butting and throwing herself to the floor when she did not get her way.  This was described in nursing records on 19th January.   There does not, however, appear to be any report of injuries from her acting in that way.  G in his evidence confirmed that she did behave in that way, but agreed that she had not caused herself injury by doing so. 

22	In any event, it was clear from the medical evidence that had she caused injury by acting in that way it would not have been on her cheeks.  It would be more likely to be on the forehead or other bony parts of the face or head. 

23	I have carefully considered the submissions made by Mr. Henley on G’s behalf in considering those bruises and how they may have been caused. 

24	When the mother returned home she said that G was shaky and crying; and that he was extremely distressed.  The description of the extent of his distress raises questions as to whether it was more than might have been expected from a pure accident; even one where father felt guilty for a moment’s lack of close supervision or carelessness.    G said that he felt guilty that he was unable to prevent N being injured. 

25	So far as the admitted lie which the parents made up, namely that he had been in the house and heard the bang and the cry, I remind myself that people may lie for a variety of reasons and the fact  that they do so does not necessarily mean that they are guilty of whatever it is that they are accused of doing.   So I bear that in mind in considering the evidence.  So in analysing the totality of the evidence I have heard concerning the injuries, I am driven to the conclusion that the medical evidence is overwhelming but that one has only to augment it by visualising what is suggested and using common sense and lengthy experience to reach the conclusion that all of these injuries could not have been caused by N pulling a pan of soup over on to her.  In coming to that conclusion I have tried, as indeed suggested by Mr. Henley, to assume that something of that nature did cause the injuries and to imagine a combination of mechanisms, even unlikely ones, that might have caused these injuries, to see whether I could conclude that this may have been an unusual freak set of circumstances and entirely innocent.  I have gone to those lengths in trying to visualise or imagine how this could have happened because I accept that G is a loving father who would not deliberately hurt his daughter.  I also accept that N is a boisterous adventurous girl who is very active and could well have done what has been described.  So I accept the possibility that she could have gone into the kitchen, grabbed the towel, possibly losing balance so her whole weight pulled the towel and the pan.  But even in doing so and imagining the various combinations of ways of her falling and the pan falling, no such permutation or combination of events can explain all of these injuries.  

26	The only conclusion, therefore, open to me is that the alleged accident does not account for all of the injuries, even if it did happen.  Something else caused the linear marks on N, and also the unusual red marks on the other side of her face, on the cheek.  On the evidence I find that it is more likely than not that something happened that resulted in G hitting N across her face in a momentary lapse.  It is not necessary for me to reach any conclusion as to why.  It may be that when he came back into the house and found that the calm scene he had left minutes before had descended into noisy chaos it was too much for him at that particular moment.  Mother had spent some time and effort the night before making the soup which was now all over the kitchen floor.  Possibly  N had been behaving as has been described on numerous other occasions with tantrums and head banging and being difficult to manage with her sister at the same time.   It may be that this was the final straw and he momentarily lost control.  This is, of course, conjecture.  I cannot be sure of the trigger.  I do not accept the argument that the injuries could not have been caused by a loss of control because any injury would have been far greater.  These were serious bruises from a heavy blow.  I equally reject the submission made that it was unlikely to have been a particularly heavy blow because of the lack of retinal haemorrhages. 
27	I should make it clear that having considered all of the evidence, and heard G and the mother in evidence, that I do not believe that G at any time intended to hurt N.  All of the evidence shows that he is a good, loving father, indeed as mother has always believed him to be.  All of the assessments have indicated that same character. 

28	Mother said in her evidence that she could not believe that father could have hit N because only a monster could do that; but of course that is not so.  The Guardian, agreed that many excellent parents can, on the wrong day with the wrong set of circumstances, be driven to breaking point and feel like lashing out.  In those circumstances most parents are able to stop themselves; some may lash out at an inanimate object rather than the child, and some may lash out towards the child but hit a protected part of their body, such as a nappy.  So in many of those cases it is likely that no-one else may ever know that it happened.   But many parents who have had the sole care of two boisterous toddlers may recognise that feeling and say “There but for the grace of God go I.”

29	I think it likely that this was a very unfortunate combination of circumstances for for father that led to this incident, where he lashed out and the blow, probably unintentionally, connected with N’s face, possibly knocking it against the towel or against something else which caused the marks on the other side of her face.  That is the more likely explanation of the pattern of injuries.  She may already have fallen and had some bruising.  It is also consistent with the injuries seen and Dr. Chetcuti’s analysis of them.  That is consistent with G’s description of how N herself reacted afterwards by not wanting him to touch her face.   It also may be consistent with his own extreme distress at what would otherwise have been simply an unfortunate accident with no lasting injury.

30	I do find the threshold criteria in section 31 of the Children Act met, accordingly, on that basis. That does not of course mean that orders must be made because the welfare of the children is my paramount consideration.  I have therefore gone on to consider what, if any, order should be made, applying the welfare checklist in section 1 of the Children Act.  I take account of the very, very favourable impression that mother and father have made on all those who carried out the assessments and the Guardian, and also based upon my own impression of both parents. 

31	I understand and accept the reasons why mother has found it very difficult to accept that G could have hurt N.  I do not criticise her for having that difficulty.  I do not accept  the conclusion reached in the care plan that because of her lack of acceptance, that there is a risk of further injury if the children were returned to her.  I believe that the children should be returned to their mother as soon as possible.  That would initially have to be on the basis of G leaving the family home.  I would hope that his doing so would be on a temporary basis.  I formed the view that what happened was a one-off out of character episode and that it is very unlikely that G would ever hurt either child again.   It is, as I have said, a very unusual case in that respect.  There is no doubt in my mind that what has happened and all of the agonies that this family have gone through since the commencement of these proceedings, or indeed since N was injured, have deeply affected both of them, but in particular G knowing that he hurt and traumatised N.

32	I believe that, after the sort of work described by the Guardian, father could safely return to the family home so that they can all be reunited. It is implicit, therefore, from what I have said that I reject the Local Authority care plan, having carefully considered all of the evidence put forward in support of it, in particular the evidence of the team manager.  It is my view that in the unusual circumstances of this case further injury is not highly likely, as she puts it, but indeed highly unlikely.  

33	Accordingly it would be, in my view, disproportionate and not in the children’s interests for any alternative other than rehabilitation to mother to be pursued.  I also believe that she and father will do as they have said and separate until it is safe for him to return.  G, in my view, and I accept the evidence of the social worker and guardian, needs some time to reflect upon what has happened and to engage in some work to try and consider what triggered this out of character incident.

34	There is, of course, no situation that is risk-free. I have considered the evidence of the team manager very carefully.  I have also considered the alternatives and concluded that the benefits of rehabilitation outweigh any risk of repetition;  that the detriment of being kept away from mother is unacceptable and unjustified in this case.   My view, and it is also the view of the social worker and the Guardian, is that that course should be pursued;  that if the Local Authority will change its care plan, the reintroduction and rehabilitation might be better achieved under a care order;  that if the Local Authority will not change its care plan, my view is so clear about these children going home that I would instead make a supervision order, and order their return, relying upon the assessment of the Guardian that the parents, in making the arrangements for return, would act in the girls’ best interests and do so in a measured way.

35	If the Local Authority is prepared to amend its care plan, then I bring to their attention the recent decision of Baker J. in Re DE (A child) reported earlier this week in which amongst other things he makes the comment that where a care plan provides that a child should live with its parents, the care plan and recital in the care order should state that the Local Authority should give at least 14 days’ notice of removal of the child, save in an emergency. 

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