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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> EN (non accidental injury), Re [2015] EWFC B159 (03 July 2015) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B159.html Cite as: [2015] EWFC B159

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IN THE FAMILY COURT SITTING IN HULL
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF EN

		3rd July 2015

1. On the 6^th January 2015, EN , then aged 1 year and 10 months, was taken to hospital, presenting as distressed and unable to weight bear on her right leg. Examination and x-rays showed that EN had sustained a displaced spiral fracture to the mid shaft of her right femur. In addition, she was noted to have a number of bruises to her face, hands and body that the treating doctor was concerned could be indicative of non accidental injury. The explanation given by the mother at the hospital was considered by the hospital staff to be unlikely and the Local Authority (LA) was invited to carry out an investigation. EN was discharged from hospital to LA foster care (with her mother's consent) on the 15^th January 2015 and she has remained in foster care since that time. This judgement is delivered at the conclusion of a 2 day hearing which was listed to determine how the injuries to EN were caused and whether the threshold criteria pursuant to S31(2) Children Act 1989 are satisfied.

Background history

2. EN's parents are LN whom I shall refer to as "the mother" and PG whom within this judgement I shall refer to as "the father". The parents were known to social care prior to EN's birth due to concerns around domestic abuse. The mother has no other children but has tragically experienced 4 still births prior to EN. The father has older children who had been subject to child protection plans due to concerns about domestic violence between the father and his former partner.
3. Initial concerns raised in relation to the relationship between EN's parents were that the father appeared to be controlling of the mother and allegations had been raised by the maternal grandmother that the father was physically abusive to the mother and also manipulative. An initial assessment was commenced but EN arrived shortly after that assessment had started. The mother was noted to interact with EN in a very positive way and they were described as very well presented. The health visitor at the time had no concerns and the case was closed in February 2014 with a recording that "EN is thriving and Mother has been very protective over EN, having experiencing (sic) four still births. EN is mother's world and I feel assured as do other professionals working with the mother that she will protect EN." It is recorded that this was a view shared by the health visitor. The LA had no further involvement with the mother and EN prior to the presentation at the hospital on the 6^th January of this year.
4. In December 2014 the mother confirmed that the relationship between herself and the father had indeed featured serious violence with mother disclosing that on one occasion in March 2014 that the father had hit her in the face, breaking her nose and blackening her eye. This incident was reported to have occurred whilst the mother was holding EN. The mother did not separate from the father until November 2014. The mother, in the course of these proceedings, accepts that the relationship with the father was characterised by domestic violence and that EN was exposed to this violence. She accepts that she did not sufficiently safeguard EN by failing to separate from the father following the first incidence of domestic violence.
5. A parenting assessment has been carried out during the course of these proceedings and whilst this raises a number of concerns; the mother's history of potentially unsafe relationships, the mother's accepted lack of honesty with professionals in respect of both the domestic violence that she has experienced and the circumstances leading to EN's presentation at hospital; if the injuries to EN are found to be accidental, the other concerns are not matters that would prevent rehabilitation of EN back to her mother's care. In the event that I find that the injuries were inflicted injuries and that mother inflicted these injuries, the plan would not be for rehabilitation.

The evidence

6. At the commencement of this hearing, the LA had filed a revised threshold document in which it invites me to find the following matters:-

Fractured Femur

On 6^th January 2015 LN ("Mother") presented EN to hospital as she was in distress and unable to bear weight on her leg. A displaced spiral fracture to the mid shaft of EN's right femur was identified. No plausible explanation for the injury has been given by the Mother. A skeletal survey and blood tests did not support any pre-existing conditions which could have contributed to EN's fracture. The fracture is likely to have occurred between 3^rd January to 6^th January 2015. The fracture is more likely than not to be

a) Non accidental; and

b) Inflicted by the Mother; or

c) Inflicted by KC or by another third party from whom the Mother has failed to protect EN.

Bruising

On 6^th January 2015 EN was examined by Dr T and was found (in addition to the spiral fracture) to have multiple bruises to her body including the following injuries which are likely to have occurred [between 23^rd December 2014 and 6^th January 2015]:

i. Linked bruising to the soft cheek, right face and left jaw

ii. Bruising to left thigh (possible adult hand print mark

A skeletal survey and blood tests did not support any pre-existing conditions which could have contributed to EN's bruising. The above bruising is therefore more likely than not to be:-

a) Non accidental; and

b) Inflicted by the Mother; or

c) Inflicted by CK or another third party from whom the Mother has failed to protect EN.

Domestic Violence

The Mother's relationship with the Father was characterised by domestic violence. Until the Mother and Father's separation in November 2014 EN was exposed to such domestic violence and as a result will have suffered emotional harm.

7. The mother has already conceded that her relationship with the father was violent and that EN was exposed to that violence. The father has failed to attend this hearing or to instruct a legal representative. He attended an earlier hearing in April at which this finding of fact hearing was listed. I have also had sight of a letter sent to him by the LA confirming hearing dates. He has not attended and has not made contact with the court or the LA. He has not sought any contact with his daughter. I am satisfied that he is aware of these proceedings and this hearing and has chosen not to participate. The central issues to be determined at this hearing therefore were whether the injuries sustained by EN were inflicted non-accidentally; if so, who was responsible for inflicting them .
8. I have considered 2 lever arch folders of evidence filed, which include a number of statements from the mother, the reports from the treating staff at the hospital and some very high quality photographs of EN when she was admitted to hospital which show the bruises that she had; evidence collected by the police, including a transcript of the interview carried out with mother on the 25^th January 2015; EN's medical and hospital records; reports from medical experts specifically instructed for these proceedings, namely Dr Kathryn Halliday (Consultant Paediatric Radiologist) and Dr Russell Austin (Consultant paediatrician). I have also been provided with the report of Dr Susan King (Paediatric Radiologist) who was instructed by Humberside Police to prepare a report in respect of EN's fracture. Finally, I had the benefit of written submissions from advocates for all parties.
9. The following witnesses gave oral evidence at the hearing; Dr Austin, Staff Nurse F; Dr T; the mother and CK.

The law

10. In the case of Re JS [2012] EWHC 1370 Baker J sets out an extremely helpful summary of the legal principles to be applied. These principles have been agreed by the advocates as the appropriate principles and are the principles that I have applied and are set out below:-

i. First, the burden of proof lies with the LA. It is the LA that brings these proceedings and identifies the findings they invite the court to make. Therefore the burden of proving the allegations rests with them.

ii. Secondly, the standard of proof is the balance of probabilities (Re B [2008] UKHL 35). If the LA proves on the balance of probabilities that EN has sustained non-accidental injuries inflicted by her mother or another, this court will treat that fact as established and all future decisions concerning her future will be based on that finding. Equally, if the LA fails to prove that EN was injured by her mother or another, the court will disregard the allegation completely. As Lord Hoffmann observed in Re B:

"If a legal rule requires the facts to be proved (a 'fact in issue') a judge must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1."

iii. Third, findings of fact in these cases must be based on evidence. As Munby LJ, as he then was, observed in Re A (A Child) (Fact-finding hearing: Speculation) [2011] EWCA Civ 12:

"It is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation."

iv. Fourthly, when considering cases of suspected child abuse the court must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss P observed in Re T [2004] EWCA Civ 558, [2004] 2 FLR 838 at 33:

"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the LA has been made out to the appropriate standard of proof."

v. Fifthly, whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct. It is the court that is in the position to weigh up expert evidence against the other evidence (see A County Council & K, D, & L [2005] EWHC 144 (Fam); [2005] 1 FLR 851 per Charles J). Thus there may be cases, if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury, where a judge, having considered all the evidence, reaches the conclusion that is at variance from that reached by the medical experts.

vi. Sixth, in assessing the expert evidence I 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 (see observations of King J in Re S [2009] EWHC 2115 Fam).

vii. Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury) [2003] FCR 346).

viii. Eighth, the court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything.

In this case I am concerned that the mother has not been honest from the outset in respect of the accounts that she has given. She accepts that she failed when first giving a history at the hospital to give the same account that she later gave to the police in interview (in relation to the force she said she used to extract EN's leg from the cot bars). I remind myself of a point made in R v Lucas [1981] QB 720. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. I have borne in mind that a witness may lie for many reasons. The fact that a witness has lied about some matters does not mean that he or she has lied about everything. Nor does the lie in itself automatically lead to a conclusion that she is covering up a wrong doing.

ix. Ninth, as observed by Hedley J in Re R (Care Proceedings: Causation) [2011] EWHC 1715 Fam:

"There has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. 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 probabilities."

The court must resist the temptation identified by the Court of Appeal in R v Henderson and Others [2010] EWCA Crim 1219 to believe that it is always possible to identify the cause of injury to the child.

x. Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA [2003] 2 FLR 849. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children) [2009] 2 FLR 668, Re SB (Children) [2010] 1 FLR 1161).

Discussion

11. I have had the advantage of reading and hearing from a number of medical witnesses. Dr Halliday was jointly instructed by the parties. She reports that EN sustained a spiral fracture of the mid shaft of the right femur. That fracture according to Dr Halliday, was sustained sometime between the 3^rd January and the 6^th January 2015. The femur is the largest bone in the body, even in a young child and the amount of force required to break it is "considerable" and much more than one would normally use when handling a toddler.
12. Dr Halliday has considered the mother's statements and her account given to the police which was later confirmed in a further statement. This account is that EN had her leg stuck in the cot bars and that the mother twisted the leg from 10 o'clock to 12 o'clock which caused EN to scream. She then tried to pull the leg out by holding the thigh. She described that the leg got stuck at the knee so she then had to push from the calf. The mother suggests that the fracture occurred when EN initially got her leg stuck in the cot bars or alternatively when the mother tried to release the leg.
13. Dr Halliday discounts the mother's explanations. She states that they are not plausible. She is clear that the fracture could not have been caused by EN slipping and getting her leg stuck. Whilst it would be possible for an adult to break a child's femur if they were pulling extremely hard and agrees that the use of such force would be entirely inappropriate. She agrees with the consultant Paediatric radiologist from the hospital (Dr SH) who had also considered the account given by the mother. Dr Halliday had responded to say that she had never come across a situation of a child getting her leg stuck in the cot bars and that the measurements of the cot bars and the leg measurements make it impossible for the leg to pass through the cot bars to the thigh. Dr Halliday would have expected the cots bars to leave some sort of marks or bruising on the leg had this happened. Dr Halliday describes the amount of force necessary to break the femur would have been sufficient to almost lift the cot up.
14. Dr Halliday was not available to give oral evidence at this hearing and so it was agreed that further written questions would be put to her. She maintained her position that the mother's explanation was "very unlikely" and that the action described by the mother would not have caused EN's leg to fracture unless it was done with a degree of force which was excessive and inappropriate for handling a young child, even taking into account a state of panic in the mother.
15. Dr Halliday confirms that there are no radiological signs of rickets, osteogenesis imperfecta or any other such condition which would affect EN's bone strength or pre-dispose her to fractures. There is no evidence that EN bruises easily. Mother's clotting condition, even if inherited by EN would not cause bruising in infancy . This was confirmed by Dr Austin in his oral evidence. There is therefore no evidence that EN suffered from any underlying condition that would have impacted on her bone density or propensity to bruising.
16. Dr Austin had prepared a general paediatric overview on the joint instructions of the parties. He rejects mother's account and on the balance of probability concludes that the fracture must be a non accidental injury given the lack of plausible explanation. He expanded on this a little in his oral evidence to confirm that the presence of the bruising, some of which he has also concluded to be likely to be non accidental, adds to his conclusion in relation to the femur.
17. Dr Austin also comments on the bruises that were documented and photographed. He considers mother's explanation for the bruising (the bruise to the face caused by fall from trampoline, the other bruises occurring in usual toddler falls and trips). He is concerned that the bruising to the soft cheek and the right side of the face and left jaw are all linked and in his view appear to show a hand grip mark to the face. In his view it is a clear non accidental injury. Similarly in relation to the bruising noted on the left thigh (4 circular bruises that are 1x1cm and form an arc) he notes there is no satisfactory explanation and in his view looks like an adult hand print mark. It is a clearly patterned injury and a non accidental injury. The other bruising and marks he noted were likely to be accidental injuries due to their position and or the explanation given (in particular the injury to the longitudinal 3cm bruise noted on the right face and described by mother as having occurred when EN fell from her trampoline.
18. In his oral evidence he conceded that the absence of bruising to the right leg/thigh did make non accidental injury less likely but did not alter his overall view and conclusions. His report records that the bruising to the face was likely to be caused by a squeeze or grip to EN's face in the 10-14 days prior to the presentation at hospital (although he was clear in his evidence that the dating of bruises is notoriously difficult) and the bruising to the thigh would have been caused by "significant pressure" being applied, he suspects by an adult left hand. Whilst the absence of bruising around the right thigh/femur makes it less likely that this was an inflicted injury, such absence did not cause him to change his overall conclusions.
19. Dr T was the Paediatrician who first examined EN at the hospital. In his statement he records a number of factors that he felt were concerning and that lead to the involvement of the police and social care. In his summary he sets out that EN was noted to have a displaced spiral fracture of her right femur "a significant number of bruises and marks on different parts of her body."
20. He records that the history given by the mother to the hospital staff altered slightly with each telling. He was also concerned in respect of the mother's presentation when she attended at the hospital, describing her as shaking and in his and Nurse F's view, the mother was deliberately attempting to hide the bruising to EN's face from the medical professionals by shielding it with her hand. In his oral evidence to me he emphasises that he was concerned that there was a delay in presenting EN to the hospital and that in his view a reasonable parent would have called an emergency ambulance and would have administered some pain relief in the form of calpol or similar.
21. He also told me that he was struck by the mother's failure to ask questions in terms of the impact on EN of the injury to her femur. In his experience this was extremely unusual and caused him concern. He had never come across a parent whose child had sustained a significant injury who failed to ask such questions. He had not been asked previously to consider the account that mother gave to the police, the matter was stood down for him to consider this and he conceded that it was possible that the twisting described by the mother in trying to extricate the leg, could have caused the fracture if the amount of force was at 8 or 9. I found Dr T to be a clear and compelling witness and was satisfied that the concerns that he recorded and told me about were founded on his own experience and training and were not fanciful, nor overly influenced by Nurse F.
22. Nurse F was the nurse that dealt with EN when she first presented at triage and then remained with EN and her mother throughout that afternoon. She was the nurse who had raised the initial concerns with Dr T. She was an impressive witness both in terms of her oral evidence and in terms of her record keeping. She told me that it was not always possible to record a clear note on a child's hospital records so she carried a pen and paper with her to note important information down contemporaneously to assist her in writing up her notes when a more convenient time arose. She was concerned that mother was holding her hand over EN's face, concealing the scratches and bruises.
23. She records mother's account that she had gently removed EN's leg to release it from the cot bars. She records that EN had both of her legs through the cots bars. Nurse F records that mother did into initially mention that CK was present at the home and that this information only came to light later.
24. I have considered a statement from the social worker who has measured EN's leg width and the width of the current cots bars (the police had already taken photos and measurements of the cot that EN was sleeping in at her mother's home). EN was observed to easily place her leg through the cot bars at the foster carers' home. It is noted that these cot bars are 0.5cm wider than the cot bars that she had had in her mother's care.
25. The mother has filed a number of statements and I have considered the accounts she gave at the hospital and to the police. As set out above, the mother's explanation for the fractured femur has been that it occurred as a result of EN's leg getting stuck in the cot bars and her fracturing it herself or alternatively that the mother inadvertently fractured the femur in her attempts to release the leg. As I have set out above, the medics all reject these explanations.
26. There are a number of inconsistencies in the mother's accounts given to professionals and the court. Whilst I make allowance for mishearing and misrecording that may have occurred, as I have already stated, I was generally impressed with the quality of the evidence of both Dr T and Nurse F. A number of the inconsistencies therefore concern me.
27. When the mother initially gave her account in the hospital, Dr T and Nurse F both record that mother reports that EN had both legs through the cot bars. Mother disputes this. She does however accept that in her initial account to the medical staff she reported that she had removed the leg carefully and that this was not correct. In her oral evidence she told me that she had been mixed up when she attended at the hospital, that she was frightened and "her head was in bits."
28. I appreciate how stressful it will have been being at the hospital with EN who was clearly seriously injured, however, I do not find mother's explanation for failing to give a true account to be plausible. Indeed I would have expected that if mother had thought she may have inadvertently hurt EN in trying to rescue her from the cot, then she would have expressed remorse and regret that this had occurred unintentionally.
29. The mother has also been inconsistent in her evidence as to when she first heard EN crying and also the level of her crying or "screaming".
30. I am also concerned that the mother has been inconsistent in her accounts as to CK's presence at her home. It was not until her 3^rd statement, filed at the end of April, that the mother "remembered" that she had left EN in the care of CK for a short period of time on the 6^th January when she had gone to the shops to get a bandage, a course of action which in itself I find extremely surprising. Neither the mother nor CK mentioned this to the police, indeed the mother is specifically asked if she went to the neighbours or anything like that before attending at the hospital and she says no. if her later account is right, before EN is taken to the hospital, the mother leaves her alone in her distressed state with CK whilst she goes to buy a bandage in order to support EN's leg on the journey to the hospital. I find this account very troubling, in terms of the decision making exercised by both the adults (considering a bandage as necessary rather than urgent pain relief or an ambulance and EN being left with CK rather than with her mother when she was clearly in such a distressed state).
31. Mother's presentation in court was also of concern to me. Again, I take into account that these proceedings are stressful and distressing. However, her presentation was angry and hostile and in my assessment very defensive. I am also very concerned that despite me giving the mother a clear warning when her oral evidence had to be adjourned over lunchtime, that she must not attempt to discuss her evidence with anyone, she then attempted to telephone CK. He declined to answer her calls. I was informed of these calls after the lunchtime adjournment. The mother accepted that she had made the calls but was unable to explain why she had directly disregarded my warning.
32. When I consider all of the evidence in it's totality and my impression of the witnesses I have found it difficult to accept mother's account of the circumstances leading to EN's presentation. She has been at best economical with the truth and at worst has told downright lies. I accept the evidence of the experts that the explanation given by the mother as to how the injury to EN's leg occurred is unlikely.
33. I know and accept that EN was a much wanted baby for the mother and that she was seen by her as a "miracle baby" after she had suffered such tragic losses in other pregnancies. However, taking this whole tapestry of evidence and observations into account, I am satisfied that the injury to EN's femur is a non-accidental injury. In arriving at that conclusion, I bear in mind, of course, the words of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 at para 19, so far as concerns the use of that term. He said,

'The term 'non-accidental' injury is a catch-all for everything that is not an accident…the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or intent of a greater or lesser degree that may amount to negligence, recklessness, or deliberate infliction.'

34. I do not know how this injury occurred. The mother has offered only one set of circumstances as an explanation that has been deemed as unlikely by the treating medial professionals and expert witnesses. Whilst I am far from satisfied that the injury could have occurred by the mother trying to free the leg as she describes after it had become stuck in the cot, if I am wrong and her account is right, then I find that the force that she would have had to use, bearing in mind the evidence abut the level of force necessary to facture a femur would amount to negligent and reckless care which falls very far below the standard of parenting that a child can expect to receive from their parents.
35. In respect of the bruising , I accept the evidence of Dr Austin. The mother has been unable to offer any other credible explanation for the pattern of bruises seen on the face and the thigh. I do not accept that these bruises arose as a result of everyday toddler falls, nor do I accept that they were caused by a fall from the trampoline. I find that the bruises to the face and the thigh are inflicted injuries and I accept Dr Austin's analysis that the most likely cause was the application of pressure and force by an adult hand.
36. Having made these findings I must consider the findings that the LA invites me to make in respect of the person who caused these injuries. Essentially, the LA said there are 3 options, the injuries were caused by the mother, CK or some other unknown person from whom the mother has failed to protect. In it's closing submissions, the LA no longer invited me to make a finding against CK.
37. As set out above, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is likelihood or a real possibility that he or she was the perpetrator. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities.
38. When I apply that test it is absolutely clear to me that the mother falls within such a pool of potential perpetrators. She has been the main carer for EN and on her own account, she is the only person in the house or the room when EN sustained her injury to her femur. She has been EN's primary carer throughout her life. I have no hesitation in finding that she must fall within a potential pool of perpetrators.
39. The more difficult question for me has been whether there is any evidence that the injuries could have been perpetrated by a 3^rd party or by CK. When considering all of the evidence I come to the conclusion that the injuries are more likely than not to have been perpetrated by the same individual. I find it highly unlikely that EN was injured by 2 different perpetrators. There is no evidence before this court of a 3^rd party not as yet identified as being a potential perpetrator. Whilst I have considerable reservations about the evidence that the mother has given and how reliable she is as a witness, there is simply no evidence before me that the injury has been caused by an unknown third party and I reject that suggestions.
40. In respect of CK, the evidence that I have is that he was not left alone with EN until after the injury to her leg had been sustained. Prior to the 6^th January he had not had any contact with EN since 9^th December. Both mother and CK say that he never saw EN without CK's son N being present (I note that this is not correct as CK had seen EN on the morning of the 6^th January and N was not present then). Both the mother and CK state that other than the short period on the 6^th January when the mother went to buy a bandage, he was never left alone with EN. I have already expressed my concerns in terms of the reliability of the evidence of the mother. I am similarly troubled by aspects of Mr. K's evidence. As I have already stated, he did not see fit to mention to the police that he had been with EN and her mother on the morning of the 6^th January, nor did he mention that he had been left alone with EN whilst the mother went to the shop to buy a bandage. I found both of these omissions surprising. I am also troubled that CK did not appear concerned about the amount and appearance of the bruises to EN, particularly on her face. I have seen the photos and believe that any responsible adult should be concerned to see a child of this age with those marks. I note that the accounts of CK involvement with EN come from the mother and CK and is not independently verified by any other evidence – however, neither is there any evidence to contradict these accounts.
41. What therefore is the impact of the concerns I have in relation to this evidence? I find that CK may well be attempting to protect the mother in some sense of misplaced loyalty, however, I do not find that the concerns I have about the evidence of the mother and CK are sufficient to lead me to a conclusion that there is a likelihood or a real possibility that he was the perpetrator and is therefore within the pool of perpetrators. I simply do not have evidence that he had the opportunity to cause these injuries to her. I therefore do not make a finding that CK was responsible for the injuries to EN.
42. I make the following findings:-

i. Fractured Femur

On 6^th January 2015 the mother presented EN to hospital as she was in distress and unable to bear weight on her leg. A displaced spiral fracture to the mid shaft of EN's right femur was identified. No plausible explanation for the injury has been given by the Mother. A skeletal survey and blood tests did not support any pre-existing conditions which could have contributed to EN's fracture. The fracture is likely to have occurred between 3^rd January to 6^th January 2015. The fracture is more likely than not to be non accidental and inflicted by the Mother;

ii. Bruising

On 6^th January 2015 EN was examined by Dr T and was found (in addition to the spiral fracture) to have multiple bruises to her body including the following injuries which are likely to have occurred between 23^rd December 2014 and 6^th January 2015

a. Bruising to the soft cheek, right face and left jaw

b. Bruising to left thigh

The above bruising is more likely than not to be non accidental and inflicted by the Mother

iii. Domestic Violence

The Mother's relationship with the Father was characterised by domestic violence. Until the Mother and Father's separation in November 2014 EN was exposed to such domestic violence and as a result will have suffered emotional harm