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.

IN THE FAMILY COURT 

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF MCR

Date: 22nd June 2016

Before: 
HHJ Pemberton

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Between:

A Local Authority
Applicant
And
D S
And
N G
And
The child
(Through their children’s Guardian)
Respondents
And
L M
Intervener

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Gaynor Hall for the Applicant
Jacqui Thomas for the Respondent Mother
James Goodwin for the Respondent Father
Julie Greenhalgh for the Respondent Child
Roger Price for the intervener

Hearing dates: 13th-17 June 2016

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JUDGMENT
1.	I am concerned with MCR who was born in 2014 and is now 23 months old.

2.	The child’s mother is DS (whom I shall refer to in this judgement as the mother). Her father is NG (referred to in this judgement as the Father). The Father was only confirmed as the child’s father through DNA testing during the course of these proceedings. He is not registered on her birth certificate.  He has applied for parental responsibility within these proceedings and on the first day of this hearing I approved an order in which a declaration of paternity was made and parental responsibility was granted (by consent).

3.	These are care proceedings brought by the Local Authority (LA) who invite me to determine a schedule of allegations that they have prepared following the child sustaining bruising on 1 August 2015 which is considered to be non-accidental.

Background history

4.	There is unfortunately limited information in my bundle is in respect of the mother’s own background. Much of the information I gathered was from the psychological report that was prepared in January 2012. Miss Thomas on behalf of mother, when filing her written closing submissions, has helpfully provided me with a copy of the Guardian’s report and chronology from the previous proceedings. I have tried as far as possible to check that my understanding of the history is as reflected in those documents.

5.	This mother had an extremely difficult and traumatic childhood. She was placed with her grandfather when she was only days old and was brought up by him and his partner. His partner, whom the Mother viewed as a mother figure, died when the mother was only five years old. Her grandfather entered into a new relationship. The Mother suffered further tragic loss when her grandfather also died when the Mother was only 11 years old. The Mother was then brought up by her grandfather’s partner whom she describes as being extremely physically abusive on a regular basis. The Mother has also described prolonged sexual abuse by her carer’s adult son which commenced prior to her 13th birthday. The Mother was eventually accommodated by the LA when she was approximately 15 years old.

6.	The child is the third child of the respondent mother.  Her eldest son, P, was born in 2007 when the mother was herself only 17 years old. The Mother subsequently entered into a relationship that featured significant physical abuse and violence. P was exposed to this violence and I understand he himself was the victim of some of this abuse and sustained physical injuries which at the time the mother attributed to a number of accidents. I’m not clear about the care arrangements for P following his birth but I understand that he was rehabilitated to her care in June 2011. The Mother felt unable to manage P’s behaviour which she described as violent and he was placed back with LA carers in August 2011 at the mother’s request. He was subsequently placed for adoption.

7.	The Mother second child is D who was born in 2011. Following D’s birth, the mother was assessed in a family assessment parenting unit. From the information recorded in the psychological assessment, it seems that concerns were raised during the residential assessment in relation to the Mother’ ability to meet her son’s needs and to engage with him.

8.	During the course of the proceedings relating to D, Dr Shaun Parsons prepared a psychological assessment of the mother in which he concluded that the mother “is an extremely ego centred individual who has extreme difficulty seeing events from the perspective of others”. He also described the mother as extremely impulsive. He refers to research that suggests that narcissistic and impulsive sensation seeking personality traits are very closely linked and associated with very negative experiences of being parented and childhood abuse. He observes that this mother had had no experience of positive and consistent parenting. He concluded that this mother would prioritise her own needs in nearly all circumstances before the needs of a child. He concluded that D would be at significant risk of emotional neglect, emotional harm and potential physical neglect if the support to the mother was reduced and she was caring for D in a community setting. He also concluded that if the mother met a partner who posed any form of risk to her or her child, she would struggle to protect a child from that risk.

9.	The conclusion of the proceedings relating to D was that he should be placed in his father’s care. I’m unclear about the up-to-date arrangements for those children and whether the mother has any ongoing contact with them.

10.	When the mother became pregnant with the child, a pre-birth assessment was carried out which concluded that a number of protective factors were now in place and that the mother had engaged well with appropriate services. A decision was made to seek an updated psychological assessment and the mother met with Dr Parsons on 15 July 2014 which I note was just two days before the child was born. His report is dated 17 July. In this second report Dr Parsons concludes that whilst the mother continues to demonstrate some narcissistic and impulsive sensation seeking personality traits, the behaviours associated with such traits are now much less maladaptive. He goes further and concludes that to some extent these are now adaptive. Based on the mother’s self-reporting, he notes that she has remained outside of relationships that have been characterised by domestic violence and has undertaken work with the freedom project to address issues in respect of abusive relationships. At the time that Dr Parsons was assessing the mother, the mother reported that she was not in any ongoing relationship.

11.	Dr Parsons did reflect that should the mother enter into a further close interpersonal relationship that was dysfunctional, this may cause her to engage in more maladaptive personality behaviours. This risk could be significantly reduced if the mother completes the freedom program. His conclusion was that the mother may potentially now be able to offer a good enough standard of care and he recommended a community-based parenting assessment.

12.	The LA accepted this advice, however for reasons that I am not entirely clear about, the child was discharged into foster care with her mother’s agreement on 20 July for a period of 18 days. The initial social work statement records that this was to enable assessments plans and recommendations to be completed. It is not entirely clear from the papers before me what actual assessment was carried out at this time. The records in this case have been extremely difficult to read and to follow and it is unfortunate that the LA have simply relied on its “plan and progress forms” rather than collating the assessment information into a comprehensive report. This is a matter I shall comment on further later in this judgement.

13.	I could not find a record in the papers before me as to when the child was returned to her mother’s care.  Due to the lack of information in the records before me, PS, practice supervisor, has prepared a statement to confirm some of that missing information. She has confirmed that the child was returned to her mother’s care on 7 August.

14.	The child’s placement with her mother was initially subject to a child protection plan but this was reduced to a child in need plan on 14 April 2015 “due to the significant progress made on the child protection plan by the Mother”.

15.	At some point between August 2014 and August 2015 the Mother commenced a relationship with the Intervenor. Again it was not at all clear to me when this relationship commenced and what discussion there was in terms of introducing him to the home of the Mother and the child. There is no written up assessment of him and very few references to him in the plan and progress forms which is the evidence on which the LA relies. 

16.	 PS in her statement does address some of the missing information in respect of the intervenor and the assessment of him that was undertaken. I can see from that statement that some joint assessment sessions were undertaken with the mother and the intervenor.

17.	A supervision record form was provided to me which is dated 9 February 2015. This confirms “the plan is progressing. No safeguarding issues identified.” It goes on to record “D is managing well. Plan is progressing, meeting health need and emotional and social needs. The issues are in relation to the history of the case and two children removed previously”. 

18.	The child protection review case conference on 14 April 2015 refers to work having been undertaken in respect of domestic abuse which does not appear to have raised any concerns. The mother is recorded as able to meet the needs of her daughter to a good standard and that she has been able to reflect upon her past parenting styles and the impact this has had on the children. She is recorded as having made positive changes in prioritising her daughter’s needs and the decision is made to remove the child’s name from the child protection register and to support the family instead through a child in need plan.

19.	The chronology filed by the LA records an incident on 6 May 2015 when the mother had contacted the out of hour’s team to advice that she had noted three small bruises to the child’s back. A duty social worker attended at the home but the chronology records “no concerns raised and information passed on to social worker”. The next recording relates to a visit made by SW2 the then allocated worker to the mother and the intervenor. It is recorded “parents were reassured that the social worker that checked the bruise was happy with the explanation given by the parents”.

20.	On 28 May 2015 the mother contacted the allocated social worker to report that the child had woken up that morning with a bruise on her head. The mother believed that the child must have done this during the night by hitting her head on the cot. A strategy meeting was held and it was agreed that a child protection medical should be carried out. The paediatrician who examined the child was unable to say if the injury was accidental or non-accidental. The LA decided to take no further action other than to continue working with the child as a child in need. There was a child in need meeting held on 20 July and the chronology records that no concerns are raised at this meeting.

21.	The trigger event that led to these proceedings occurred on 1 August 2015. The mother contacted the out of hours team to report that the child had bruising to the left side of her face. The mother was unable to account for how this had happened but described an incident the previous evening when a bang had been heard from the child’s cot, the child had been crying and had been sick.

22.	The mother agreed to take the child to the local hospital for assessment. The treating consultants at the hospital were concerned that the bruising to the child, in their view was more likely than not to be non-accidental and inflicted. Skeletal surveys and x-rays were carried out which showed no other injuries to the child. Due to the concerns raised by the hospital, the mother agreed to the child being discharged into foster care and the child was placed with her carers on 4 August. There was then an inexplicable delay before the LA issued these current proceedings on 29 October 2015. Further delay occurred during the course of the proceedings due to the necessity of expert reports and the case was then listed before me for this fact-finding hearing.

23.	I have set out that background in perhaps rather more detail than I usually would. This is in part to try to draw together the information from my bundle. The LA have chosen not to file a comprehensive assessment of the mother, nor is there a full and detailed chronology. The LA’s assessment in relation to both the mother and the intervenor was contained in computer-generated forms, most of which are referred to as “plan and progress forms.”

24.	The parenting assessment that the LA chose to put before the court is therefore contained in approximately 150 pages of these forms. Much of the information has been carried through from one form to the next by way of a “cut and paste". It has been hard to ascertain what parts of the plan have been completed. There is no analysis within the forms. There is no record of the meetings with the mother and the intervenor, work undertaken or how this has been analysed as part of the updated risk assessment. There is repeated reference to the parenting assessment being written up and shared with the psychologist for the purpose of obtaining an update but this has never occurred. There was nothing in the records to indicate why this had not occurred and indeed it was apparent from the records I had that the mother believed that such a report was to be obtained.

25.	As a result of the difficulties in ascertaining information from the forms filed by the LA, I asked that the team managers attend to explain the assessment and recording process.

26.	WS who was the supervising social worker for much of the relevant period attended at court. It became apparent from her evidence that there are a number of different systems and places in which information was recorded in relation to the family. There was no one place where the information was gathered together and more importantly in my view, analysed. I made clear to WS that in my view the records that I have seen are barely adequate as a method of case recording, do not come anywhere near to providing a comprehensive parenting assessment and are wholly inadequate and inappropriate as evidence to be put before a court. In order to attempt to assist the court and the parties, PS who was the team manager with responsibility for this case in the latter part of the relevant period offered to review all records held in respect of the family including records of visits made by the allocated social workers and draw this information together in a statement.

27.	This statement which I have referred to a number of times above, was produced on 16 June and collates information from the case notes of the social worker, the case notes of the children and family support worker, the child protection and child in need visits and from reports for case conference. This statement provides an overview of the LA evidence and work done. It addresses many of the issues that I have raised above in terms of the contacts with the family and the checks made in respect of the intervenor. I’m grateful to PS for preparing this statement which in conjunction with the case records and case conference notes which were filed during the course of this hearing, have gone some way to dealing with the gaps in the LA evidence. I am also grateful to Ms Hall for acknowledging in her closing submissions that the way in which the community-based assessment was recorded in this case was inadequate. I’m grateful for this acknowledgement and for the apology offered by the LA. Ms Hall is quite right in accepting on behalf the LA that the way in which the evidence was produced in this case was not acceptable. I intend to send a copy of this judgment to the director of social services and also the director of legal services so they can have some awareness of the difficulties raised in this case and I hope address on an internal basis how evidence should be produced. I would invite those with responsibility for preparing evidence for the court to consider the social work evidence template, (which has the approval of the President) as the most appropriate format to produce evidence for proceedings. I would also remind the LA of the contents of Practice Direction 27A contained within the Family Procedure Rules and in particular the documents that should not be included in a bundle at 4.1, together with the contents of  5.1 which provides that the bundle should not exceed 350 pages.

Issues to be determined

28.	The only issue to be determined at this hearing is whether or not the threshold criteria are satisfied in accordance with the schedule of findings prepared by the LA. The original schedule of findings was dated 26 April and invited the court to find that the Mother had fabricated induced illness in the child in a deliberate attempt to obtain contact with health services along with demands for possible investigations and treatment. This finding had arisen out of the evidence of two witnesses. The first was the allocated health visitor, Miss HV1 and the second was the jointly instructed consultant paediatrician, Dr Ann Marie Kelly. I shall come on to deal with their evidence later in this judgement.

29.	However at the outset of this hearing I asked the LA to clarify the findings that it sought and in particular how those findings went to threshold. The legal test as set out in section 31 of the Children Act is of course that the child concerned has suffered or was likely to suffer harm as a result the parenting being given to the child not being what it is reasonable to expect a parent to give. The LA’s case in respect of the allegation of fabricated induced illness related to the mother reporting the bruising to health professionals; reporting that the child was vomiting on a regular basis and misreporting information received from one professional to another professional. I asked the LA to reflect on these findings and in particular whether the LA was alleging that the mother had in fact inflicted the earlier bruises and whether the LA was alleging that the mother had actually induced vomiting in the child. The LA clarified that the finding that it sought related to the mother claiming that the child had symptoms which had not been independently observed and that the symptoms had been exaggerated in order to obtain attention from professionals. I invited the LA to consider in what way it alleged that the child had been harmed or potentially harmed by the behaviour alleged.

30.	The LA did reflect on the evidence and the findings that it sought and produced a new schedule of findings. The findings I am invited to make are set out at the end of this judgement. 

The Legal Principles 
i.	The burden of proof
The burden of proof is on the party making the allegations.  In this case that is the LA. The LA has the legal burden of proving that the threshold is passed in accordance with the schedule of findings it invites me to make. It is not for the mother or the intervenor to prove their innocence. 
ii.	Standard of Proof
I must decide disputed issues of fact by applying the civil standard of proof. Thus a disputed allegation only becomes a proven fact if it is more probable than not that the disputed event occurred. In Re B [2008] UKHL 35, Lord Hoffman said at paragraph 13 of the judgment: 
‘I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not’. 
I must find either that a disputed event did occur or that it did not.  Baroness Hale said as follows at paragraph 32 of the Re B judgment: ‘In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place.  If he finds it more likely than not that it did not take place, then it is treated as not having taken place.  He is not allowed to sit on the fence.  He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did.  But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof’. 
iii.	Evidence
In determining the facts I have to decide this case on the evidence that is before the court.  The issue of speculation was considered by the Court of Appeal in the case of Re A (a child) (fact finding: speculation) [2011] EWCA Civ 12, [2011] 1FCR 141.  In that case Munby LJ said at paragraph 26: ‘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.	The totality of evidence
The need to consider all the evidence before a court reaches a conclusion on a disputed issue of fact was stated by Dame Elizabeth Butler Sloss DBE in Re T (children) [2004] 2 FLR 838.  As she said, a judge has to 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 party bearing the burden of proof has been made out to the appropriate standard of proof.  Evidence should not be compartmentalised.
v.	Expert evidence
The evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental injury includes expert evidence.  In A County Council v KD & L [2005] EWHC 144 Fam. at paragraphs 39 to 44, Mr Justice Charles observed:-
“It is important to remember that (1) the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Later in the same judgment, Mr Justice Charles added at paragraph 49:-
“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

viii.	Parents’ evidence
The evidence of the mother and the intervenor 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.
vi.	Lies, Multiple Allegations and Cross-relevance
There is clearly an issue in this case in respect of lying as both the mother and the intervenor have accepted that they lied in the initial accounts they gave both to professionals and to the court. 
I am invited to find that they have lied to cover up a wrongdoing.  I have reminded myself of the direction given in the case of R v Lucas [1981] QB 720 and have considered the two stage analysis I must apply in relation to allegations that a party has lied.  First it is necessary to establish whether a lie has been told.  If a lie has been told, the court should then, secondly and separately, analyse why any proven lie was told.  Within that second limb of the self-direction, a judge should recognise that a witness may lie for many reasons.  For example, out of shame, humiliation, misplaced loyalty, panic, fear, distress, confusion, emotional pressure or a desire to conceal other misconduct.  
The fact that the witness has lied about some matters does not mean that he or she has lied about everything.  A lie is not in itself proof of “guilt”.
viii.	Identifying a perpetrator
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 a non-accidental injury, the court must be satisfied on the balance of probabilities. It is always desirable where possible for the perpetrator of a non-accidental injury to be identified, both for the public interest and in the interests of the child, although, where it is impossible for a judge to find on a 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”.

The evidence
31.	I have already commented in more detail than I usually would about the way in which the LA evidence has been presented in this case. It has been difficult at times to identify the LA evidence in respect of certain areas due to the way in which it has been recorded. Due to the LA’s failure to prepare children act statements which gather together all of the relevant information in respect of this family and the assessments undertaken, a great deal of time has been spent going through computer-generated forms and hearing additional evidence about the way in which records are kept at this LA. The court and the parties have had to deal with many additional documents being found during the course of this hearing including lengthy case conference minutes. In order to avoid any disadvantage to the mother and The intervenor in relation to anything that they had not had the opportunity to comment on previously due to the fact that the LA not presenting such information in a proper evidential format, where there is dispute in respect of this evidence, I have greatly reduced the weight I have placed on the LA records.

32.	I have heard from a number of witnesses during the course of this hearing and have of course considered all of the papers contained in my bundle together with the additional documents that have been produced during the course of this hearing. I have also received helpful written submissions from the parties.

33.	The first witness I heard from was the health visitor, HV1. She confirmed her concerns that the mother was regularly reporting vomiting which was not supported by any independent observations by professionals (I note this is not quite correct as there are a number of occasions when it is recorded that the social worker or the health visitor have observed the child vomiting) and was not consistent with the child’s pattern of steady weight gain. It was HV1 that first raised a concern of the potential that the mother was suffering from fabricated or induced illness. HV1 conceded that she was initially a student health visitor when first involved with this family and qualified in December 2014. Prior to qualifying as a health visitor, she was of course already a qualified nurse. She told me that she was concerned that the mother was exaggerating the child’s symptoms and was, on at least one occasion trying to manipulate attention from the health visitor. She was concerned that when she offered to observe the mother feeding the child, she felt that the mother avoided such observation. She was also concerned that the mother had misreported discussions she had had with medical professionals. She described the mother as requiring a great deal of reassurance and support.

34.	Whilst HV1 had attended on some training in relation to fabricated or induced illness, she was not aware of the government’s guidance on safeguarding children in such situations. She had informed the social worker of her concerns but it seems that neither she nor the social worker progressed these concerns any further. HV1 had helpfully annexed a chronology of health visitor involvement to the statement that she had filed. 

35.	One of the concerns that the LA invites me to determine is that the child has been repeatedly over presented to health and social work professionals. HV1 was perhaps the health professional most involved with the family. The majority of the contacts that she had with the mother appear to be home visits which on the whole were prearranged home visits in accordance with the child protection plan. It is apparent that the mother has made a number of telephone calls to HV1 to discuss her concerns in respect of the child’s health but there do not appear to be additional health visitor appointments arranged.

36.	Whilst medical records have been filed, there is no comprehensive chronology prepared in respect of the child’s presentations to various health professionals and the outcome of such presentations. This is unfortunate as it makes it difficult to see both the number and outcome of medical presentations. The government guidance that I have already referred to specifically recommends the drawing up of a detailed medical chronology in order to confirm whether or not concerns of possible fabricated or induced illness require further evaluation or monitoring. 

37.	HV1 was a part of the core group and attended the regular meetings in respect of the child. She expressed her view at the review case conference in April 2015 where she reports “D has appeared to me the child’s health needs, through accessing health services when required, and listening to advice from health professionals. The child’s also up-to-date with her immunisations and she has attended the majority of her health appointments (ophthalmology authority’s, paediatrician and dietician). The child has always been clean and appropriately dressed, and has been consistently gaining weight between the ninth and 25th centile on the child growth charts, indicating that D is prioritising the child’s physical needs. All of the child’s development is age-appropriate”.

38.	She goes on to say “D appears to feel well presently and there are no concerns regarding her mental health at this time, which may have had an impact on her parenting skills. D has shown that she is able to prioritise the child’s needs over her own, and has proved since the last case conference that she has been able to provide the child with a warm and stimulating environment. D has always engaged well with professionals since the child’s birth and taken on advice that has been given to her."

39.	I found HV1 to be a careful and considerate health professional. I do not doubt that she had concerns that this mother was seeking advice on a very frequent basis and that HV1 was anxious about the potential for fabrication or exaggeration. On the whole I accept her evidence.

40.	The next witness I heard from was the supervising health visitor, HV2. She had also filed a statement which annexed a chronology of her involvement. Her involvement was more limited than her colleagues and she had mainly seen the mother at the well baby clinic. The mother had attended the well baby clinic on nine occasions over the course of the child’s first year. She raises no concerns in her statement or chronology in respect of the contacts the mother has made. 

41.	However her evidence is far more relevant in respect of the injuries sustained by the child on 1 August. HV2 happened to be at the hospital following the child’s admission and she met with the child and the Mother. She herself, following this visit, documented the bruising that she observed to the child’s face and she also recorded her discussion with the mother as to what had occurred on the evening of 31 July. The mother now accepts that the account she gave to HV2 and to the other professionals at the hospital and the police was untrue in one important aspect. The mother and the intervenor had told HV2 and the other professionals that they had been together in the home when they had heard a bang which they believed was when the child had sustained her injury. What they both now confirm and accept is that the intervenor was at home alone with the child when the bang was heard.

42.	HV2 involvement is important in another way, she has known this mother for a number of years as she was the health visitor for the Mother’s son D. Indeed the mother when she gave her evidence told me that she did try to tell the truth to her. She told me that she knew she could sit down and speak to her.

43.	I heard from two of the previous social workers in this case. There were no statements from either of these workers.  SW1 was the social worker that carried out the pre-birth assessment. She was the allocated worker until March 2015 and was responsible for the community-based assessment. She was unable to recall any specific conversations with HV1 and did not appear to recollect the conversation that HV1 had recorded in which she had raised concerns about possible fabricated or induced illness. She did not know if the mother had been observed feeding the child but knew that there had been a plan for this to take place.

44.	SW2 was the allocated worker from May to July 2015. I’m afraid that her oral evidence did not add much to the written records that were already before the court. SW2 had little recollection of this case or of steps that had been taken by herself or by other professionals. Neither SW1 nor SW2 were able to offer much assistance to the court by way of the oral evidence.

45.	Dr Anne Kelly is the jointly instructed paediatrician in this case. She has filed 4 reports.
She considers the injuries to the child’s face identified on 1 August and concludes that the child had a large area of bruising to her face; medical causes for such bruising have been excluded as have any underlying condition suffered by the child. She concludes that there are a number of factors which point towards these injuries being inflicted rather than accidental injuries, in particular the area of bruising which is not consistent with an accidental fall, inconsistencies in the accounts given by the mother as to the timing of the injury and also the mother’s report that the child took a bottle after the injury. She also considers the positioning of the bruises and the appearance of the bruises to be consistent with pressure being applied to the skin through slapping or squeezing and in her view, the bruising is consistent with the child having sustained multiple impacts. She also considers the context of the injury to be important, particularly the family history and the repeated incidence of injuries being noted in the months leading up to this incident.

46.	Dr Kelly gave oral evidence to me.  She was of course asked about the appearance of the injuries on 1 August. She repeated much of what was contained in her written report. She also told me that the injuries would have been very frightening and very painful for a child. She was clear that in her view the injuries observed represented several impacts being inflicted rather than one single impact. In Dr Kelly’s view, the child would have taken some time to settle after sustaining these injuries. She anticipated the child would have sobbed for some time and would have been in discomfort to such an extent that pain relief could have been considered. She was asked about the potential for the child to have fallen in her cot and confirmed that the bruising was not consistent with such a fall. She accepted the possibility that the multiple impacts could have happened close in time to each other.  Dr Kelly dismissed the suggestion that the petechaie identified could have been as a result of coughing or vomiting.

47.	In her written report, Dr Kelly also raises the concern that the mother’s reporting of earlier episodes of injury and ill-health may have been driven by her desire to gain medical attention. In her first report she refers to the relevance of the mother’s own background and in particular the fact that P had sustained facial bruising. Dr Kelly was of course asked about this in her oral evidence and conceded that she had not actually seen relevant evidence in respect of this mother’s older children. I understand that there was no allegation and no finding that the mother had injured P.

48.	In her oral evidence, Dr Kelly described an evolving picture of concern with this mother which in her view demonstrates a pattern of fabricated or induced illness. She described this started off at the mild end and was now moving towards the severe end given the injuries that it now been observed to the child.

49.	I note that Dr Kelly did not meet with the mother, indeed there was no reason for her to do so. I also note that whilst Dr Kelly told me that she had prepared a chronology for her own use, such a chronology has not been produced for the court and it is therefore difficult to see which contacts with the health services are deemed inappropriate. I recognise that Dr Kelly has significant experience both as a paediatrician and in terms of child protection assessment. However, it is hard for me to ascertain from her report and from her oral evidence whether she believes the mother was causing illness and injury to the child in order to achieve medical attention or was exaggerating the symptoms of vomiting (and perhaps exaggerating the appearance of the earlier bruising).

50.	I accept that this mother was not a first-time mother and that apparently both of her older children suffered with reflux although as I’ve already set out, it is hard for me to see how much actual care this mother provided to her two older children. Dr Kelly was clear that this was not a mother who was simply “overanxious”. 

51.	The LA referred me to a number of entries in the medical records where the mother appears to have exaggerated or possibly fabricated episodes of vomiting and has attended at the GP clinic to obtain anti reflux formula milk. She is also prescribed Gaviscon. The LA in its closing submissions submit that the mother does not take account of advice given by the health visitor but this appears to contradict the written reports and evidence of the health visitor that I have already referred to.

52.	Dr Parsons as I’ve already referred to was the jointly instructed psychologist in these proceedings. He had already assessed the mother in previous proceedings and as part of the pre-birth assessment for the child. He was instructed in March of this year and responded to additional questions in May. He was asked to report on whether the Mother had been able to bring about further changes in her parenting capacity and maintain the changes that he had already identified. He was also asked to update his risk assessment. The outcome of his assessment was largely dependent on whether or not the Mother had in fact inflicted the injuries to the child.

53.	If the Mother did not cause the injuries to her daughter then Dr Parsons considers that she has indeed made significant progress over the last 3 to 5 years, and gained insight into her own behaviour and her child’s needs. If she did cause the injuries, then in his view that would be consistent with her significant narcissistic personality traits and associated impulsivity. If the court were to find that she had engaged in this behaviour he notes that her denial and minimisation would make it extremely difficult to work with the mother in order to minimise risk for the future.

54.	In relation to the concerns about fabricated or induced illness, it is his view this a multidisciplinary approach should be taken, and the factual basis established to determine that injuries are non-accidental and illnesses have been induced and do not have another medical explanation.

55.	Dr Parsons was asked to consider the mothers further statement in which she accepted that she had not been open and honest in her original accounts. In his view, this behaviour is consistent with her narcissistic personality traits and may make it difficult to work with the Mother in an open honest and constructive manner in the future in order to effect change. Nobody required Dr Parsons to attend court for the purpose of challenge and I therefore accept the written reports that he has produced.

The mother’s evidence

56.	The Mother had filed two relatively short statements within these proceedings. The first is dated 19th of January 2016. In that statement, she gives an account of herself and the intervenor watching television together and hearing a bang from the child’s bedroom between 8.30 and 9 PM. When she went to see to the child, she described her as screaming in her cot, standing up and clearly in pain. This is essentially the account she gives to the medical professionals and police at the time of presenting the child to the hospital.

57.	When she speaks to HV2 on 3 August, she describes seeing redness to the child’s cheek which is also something she repeats in her first Children Act statement.

58.	In the second statement, the mother gives a significantly different account. In this second statement she records that she was not present when a bang was heard from the cot and that in fact the intervenor was caring for the child on his own at the time that this occurred. She reports the intervenor telling her about this when she returned home and her going up to check the child. In her statement she says that she initially gave a false account because she was “scared of the social services and thought they might criticise me for leaving the child with the intervener”. Later on in her statement she says that she was also afraid of the intervener’s reaction if she told the truth.

59.	The Mother has given oral evidence to me. I have taken into account how stressful it must be for her to give such evidence and that the stakes are indeed so high for her. I accept that she has been presented with evidence during the course of this hearing which should have been presented earlier such as the case conference minutes although I acknowledge the LA point that the mother was present at the case conferences and should have received the minutes outside of these proceedings in any event. However, in taking all of that into account, I found her evidence in respect of the August bruising to be far from satisfactory.

60.	One of the areas explored with both the Mother and The intervenor was at what point they came together to decide to give a false version of events to professionals. The mother told me in her evidence that this was on the journey to the hospital. I’m afraid I found her reasoning for giving such a false account to be far from compelling. Neither she nor the intervenor were able to recount the context of the conversation in which they decided to give a false account. I cannot understand why they felt a false account should be necessary. There is no evidence that the intervenor was not allowed to care for the child and indeed the concerns of the professionals were at a much reduced level by this time. Even if, during a time of panic, they had failed to disclose that the intervenor had been alone with the child, I cannot understand why the mother’s first statement would repeat an account that she now says is incorrect. This statement was filed some five months after the child had sustained her injury and was filed after the mother and the intervenor had separated. She told me that this was because by this stage everybody was preoccupied with the issue of factitious illness. Whilst I was not responsible for case managing this case at that time, I think this is unlikely given that Dr Kelly’s report was not received until February.

61.	I’m also concerned that the Mother did not mention her relationship with the intervenor when she met with Dr Parsons. Her statement is silent as to the history of this relationship and as I have already set out, it was hard to ascertain from the LA evidence the history of the relationship.   The Mother told me in the witness box that the relationship commenced in June 2014. She did not disclose this relationship at the time to Dr Parsons or to any of the professionals working with her. 

62.	She told me that she married the intervenor on 5 November 2015. I find this to be a troubling aspect of the case. By this time, the Mother knew that her daughter been removed because of suspected inflicted injury. She had already had experience of a partner who had inflicted injuries on her son. Looking at the entire history she had provided, her daughter had also sustained bruising on two earlier occasions which appeared to be unexplained. I therefore cannot understand why the Mother was not more cautious and indeed suspicious of the injuries she was noting to her daughter. If her latter account is now correct and there was a short period of time on the evening before the child was found to have sustained significant facial bruising, when The intervenor was alone with the child I find it incredible that she would not only remain a relationship with him but would go on to marry him. I was struck in the witness box that the Mother referred to herself as Mrs M and referred to the intervenor as her husband. If as the Mother tells me, she has not caused the injuries to her daughter but accepts that they have been inflicted, it would seem to me that she should reach the inevitable conclusion that the intervenor had caused these injuries. Why then would she go on to marry him? 

63.	She repeatedly told me during the course of her evidence that the child had been her priority. However in her first statement she tells me that the intervenor had less patience with the child and would get “stressed and stroppy reasonably quickly”. She told me that he had seemed distant from the child for about three months prior to 1 August and did not seem to want to spend time with her or play with her. He had also stopped bathing her and putting her to bed. She described him frequently absenting himself from the home. As I have already stated, this is a woman who has attended the freedom program, has lost a child at least in part due to abuse from a former partner and who tells me that she was putting her daughter first and as her priority. I find it hard to accept that her description of the intervenor’s behaviour is correct and if indeed it is, I find it hard to accept why she did not take action to protect herself and the child. During this time, she has reported that her mental health was stable and that she felt well in herself.

64.	In her second statement, she described that she was quite fearful of the intervenor by the time that they separated and describes an occasion when he had hit the outside the house. The intervenor in his evidence told me about an occasion when he had “flipped out and punched a bedroom door and left a hole in it”.  He told me that he got mad and hit things, he had hit walls on occasions. He got mad about different things, sometimes in relation to his mother and sometimes issues with D. He accepted that he may well have issues with anger management. It seems that the reality of this relationship was far removed from the picture that the couple were trying to present to professionals of a calm and mutually supportive relationship.

65.	I have found the mother’s evidence in respect of the bruising sustained by the child both in August and earlier in the year, to be unsatisfactory and to be hard to accept.

66.	The mother and the intervenor both describe the child as vomiting on a regular basis. Some of the evidence focused on the different terms used. Health professionals would describe the regurgitation of milk as positing although on occasions they also use the term vomiting. For a parent I’m prepared to accept that what is witnessed by the parent appears to be a child vomiting and producing more than simply a regurgitation of a milk feed. It is apparent that this child did vomit and that this was witnessed by the health visitor and the social worker. There is no evidence that the mother had in anyway caused this vomiting.

67.	The LA also raise concerns in respect of the mother seeking treatment in respect of the child’s nystagmus. This was first identified by a health visitor. A referral was made to an ophthalmologist. The mother reported that the child may need glasses in the future. This is not recorded in the evidence received from Dr Ali the ophthalmologists or from the orthoptist. The mother is also recorded as raising a concern that the child may need a brain scan in respect of the nystagmus and that she reported that the condition was worsening. Again this was refuted by the orthoptist. The mother reports that there been occasional misunderstandings both in the information she has received and information she has reported. There is no evidence that in relation to the nystagmus that the child has been subjected to unnecessary treatment or investigation that would be harmful to her.

The evidence of the Intervenor 

68.	The intervenor was the final witness I heard from. Again there are aspects of his evidence that caused me concern. He does not accept the expert view that the injury to the child was inflicted and still maintains that the injury was caused by her falling in her cot. He accepts that he has also lied to professionals and to the court. He together with the mother gave an account of the bang being heard whilst he and the mother were together watching television. This is the account he gives in his first statement the court dated 20th of January 2016. In this statement he does not mention the child being distressed when he goes up to see her after hearing the bang. In his second statement he does refer to her as crying and in both statements he refers to the child as being sick when he picks up. He describes her as settling almost immediately, something that he confirmed in his oral evidence. Dr Kelly was very clear in her evidence that it is extremely unlikely that she would have settled so quickly after sustaining such injuries. 

69.	I am also concerned that the intervenor raises for the first time, in his second statement dated 15 June, that the mother would "scream really loudly for the child to shut up". He described that she would shout at her in the morning when the child was crying.

70.	The intervenor was clear to me in his evidence that he saw the child as his daughter and indeed both parents record his anxiety when the question of DNA testing was raised. I am concerned therefore that he did not raise this potentially significant piece of information until such a late stage. I also found his explanation for agreeing to give a false account to the professionals to be unconvincing. Both the mother and the intervenor told me that it was on the way to the hospital whilst they had the Mother’s eight-year-old nephew with them that they discussed what they would say to professionals about the child’s injuries. I am troubled in respect of this evidence. I do not accept the reasons the Mother gave for feeling the need to lie to professionals. In my view this is a clear concerted attempt to mislead professionals. I cannot see any reason for such an attempt other than to cover up what both the Mother and the intervenor knew had occurred within the home to cause the child’s injuries.

71.	The intervenor presented to me as a troubled young man who clearly has ongoing loyalty to the Mother. He appeared to be candid in accepting that he has problems in managing his anger and has occasionally hit out, striking doors and walls. I accept the submission that this evidence appeared to be given in a frank and open way. However when I consider the totality of the intervenor’s evidence I found his evidence in respect of the child’s injuries and the events around the beginning of August 2015 to be unconvincing. If he did not injure the child, then I find as a matter of fact that he must have known what had occurred to her to cause the injuries.

The Children’s Guardian

72.	The Children’s Guardian had prepared an initial analysis but given that this was a fact-finding hearing, had not filed evidence for the purpose of this hearing. A short position statement was filed during the course of this hearing indicating the Guardian’s concerns in respect of the apparent number of presentations to medical professionals that the child had had. I did ask the parties to consider whether anybody had any questions for the Guardian. She was not required to give evidence although I accept that the mother does not accept any of the evidence that suggests that the child has been inappropriately presented to medical professionals or provided with medical treatment.

73.	Turning then to the findings that the LA invites me to make, these are set out below together with the findings I make in respect of each matter.-
i.	the child was presented at hospital on the 1 August 2015 with large areas of bruising to the left hand side of her face measuring 11cm x 9cm, which involved her left forehead, temporal regions, upper eyelid, below her eye, the soft area of her cheek and the upper part of her left ear.
This is a matter of fact and is not disputed by any of the parties. It is clearly supported by the evidence before me and I make this finding as sought.

ii.	These injuries are more likely than not inflicted, non-accidental injuries.
The only party that disputes this finding is the intervenor. It is still his case that the injuries occurred when the child suffered some sort of a witnessed fall in her cot on the night of 31 July. Dr Kelly has clearly dealt with this possibility and has firmly rejected it given the appearance of the injuries and in particular the location of the injuries. I find I prefer the evidence of Dr Kelly and make this finding as drafted.

iii.	The child suffered both physical and emotional harm when the injuries were inflicted upon her.  

Dr Kelly gave clear evidence that the injuries that the child had sustained would have been both painful and frightening. I have no hesitation in accepting that evidence and making this finding as drafted.

iv.	The pool of perpetrators for inflicting such injuries is the Mother and the Intervenor.  From that pool of perpetrators the person who did not injure the child has failed to protect her from the person who did cause the injuries to her.

As I have set out above, the test as to whether a particular person is in the pool of possible perpetrators is set out in the case of North Yorkshire v SA. The question is whether there is a likelihood or a real possibility that he or she was the perpetrator. Given that I have found that the injuries to the child were inflicted and given that the people caring for her at the time that she was injured while her mother and the intervenor, they are both clearly in the pool of perpetrators. I have considered whether there is anything in the evidence that assists me in determining whether I can find that one person inflicted injuries but given the unsatisfactory nature of both the mother and the intervenor’s evidence, I am unable to determine who caused the injuries. I am however satisfied that the person who did not cause the injuries is aware of what occurred and was probably present at the time that the injuries were inflicted. I’m therefore satisfied that there was a real failure to protect and that has continued through a failure to be open and honest with professionals and the court. I therefore make this finding as drafted.

v.	the Mother mental health needs have impacted upon the parenting she has provided to the child in that she has repeatedly over-presented the child to health and social work professionals and has exaggerated symptoms in the child for example:-
(a) In June 2015 the Mother reported that the orthoptist had suggested that a brain scan for the child should be considered in respect of her nystagmus and that the nystagmus was worsening and that she would need glasses in the future, which was incorrect;
(b) On various dates the Mother has reported repeated vomiting, including projectile vomiting which has not been witnessed by professionals who have noted the child to be thriving, hydrated and meeting her developmental milestones.
The parties were all aware that I had considerable concerns at the way in which the LA case was pleaded at the outset and in particular the original schedule of findings which invited me to find that the mother had fabricated induced illness in the child. As I have set out above, the LA reflected on this and amended the schedule. I have considered very carefully the evidence that the LA invites me to rely upon in support of this finding.

Dr Kelly raised the concern that there were significant indicators that this mother was over exaggerating symptoms in the child in seeking unnecessary medical attention. I have set out already some concerns I have about the way in which she reached this conclusion is and in particular the lack of a comprehensive chronology detailing the child’s presentations and any treatment she had received. I am satisfied that the child was a child who vomited as many babies of her age do. This was witnessed by professionals. It may well be that the mother exaggerated the frequency, volume and force of the vomiting but the LA has produced no evidence to me of any harm suffered by the child if the symptoms were indeed exaggerated in the mother’s reporting.
In relation to the nystagmus, again this is a condition that the child did suffer from. The LA invite me to find that the mother misreported the information and advice that are being given to her by the consultant involved in the child’s care. The LA do not appear to be saying that the mother was demanding a brain scan but simply reporting that one had been mentioned. Dr Kelly confirmed that brain scans are sometimes considered for this condition. Again it may be that the mother has not accurately reported the information she has been given. However when I come to consider the harm or potential harm that the child has been placed at I am far from satisfied that the threshold criteria is crossed in relation to this matter. The LA have not produced evidence of medication that was prescribed that caused or had the potential to cause the child harm. I accept that if the pattern of over presentation with medics continued then there was a potential that the child would have been harmed by such attention to her medical needs which was perhaps not necessary, however there is no evidence before me that any work been done with the mother to address why she was perhaps overanxious about the child’s symptoms or how such anxieties could be managed. In actual fact the LA and health visiting services took no steps despite the fact they had identified this as a potential concern. I have considered again as invited to do on behalf the mother, the decision of the president in in Re A [2015] EWFC 11 and in particular the need to link the alleged facts with the harm or risk of harm it is alleged the child is at risk of suffering. The LA have not satisfied me that the mother’s actions in this regard have caused or placed the child at risk of significant harm.
vi.	The Mother and the Intervenor have failed to work openly and honestly with professionals as to when the intervenor has been the sole carer for the child. 
The mother and the intervenor have both accepted that they were not open and honest with professionals or with the court as to the time that the intervenor was caring for the child on 31st of July. The professionals were concerned in exploring and investigating how the child’s injuries had been caused and how she could best be protected. I am satisfied that this failure to work openly and honestly has caused and placed the child at risk of further harm.
Following the oral evidence of the parties, the LA confirmed that it sought two additional findings as set out below: –
vii.	There has been domestic violence in the relationship between the Mother and the Intervenor consisting of regular verbal arguments whilst the child was present in the home causing the child emotional harm and placing her at risk of physical harm.
This finding arises largely out of the evidence of the intervenor and were not matters that were put to the Mother. The Mother herself had disclosed in her written statements that the intervenor was adopting a controlling attitude (about which she does not provide any further detail) and also that he was checking her phone, cross-examining her about where she had been. She also told me in her statement about an instant when he lost his temper and punch the bedroom door. She describes how he would get stressed and stroppy reasonably quickly although does not give further detail about this.

In her second statement she tells me “by the time we separated I was quite fearful of him". She also describes an occasion where he kicked the wall repeatedly at her home and repeatedly tried to contact her by telephone.

I have considered the presidents endorsement in the case of Re A of the words of His Honour Judge Jack in the North East Lincolnshire case. The LA have produced no evidence of domestic violence and the allegations that they refer to should in my view be more properly categorised as domestic abuse. It is apparent that the intervenor at times was unable to manage his temper and control his anger. The mother reports that she was frightened by his behaviour. I am satisfied that if he was behaving in a way which she found frightening this would also have been frightening for a young child and would have placed the child at risk of emotional harm. I therefore find that there has been domestic abuse in the relationship between the Mother and the Intervenor consisting of regular verbal arguments whilst the child was present in the home causing the child emotional harm and placing her at risk of further emotional harm.

viii.	The Mother and the Intervenor have failed to work openly and honestly with professionals in respect of the domestic violence within their relationship.
As I do not have the LA’s assessment of The intervenor or the records of the work done with the mother and The intervenor in respect of domestic abuse, I do not know what was discussed with them as to what would constitute “domestic violence" or more importantly in the light of my above finding, domestic abuse. I do not know what discussion there was with this couple as to how such behaviour may harm a child. I am therefore not satisfied that the LA have produced sufficient evidence to enable me to make this finding and I therefore do not make it.

74.	This case now needs to be timetabled through to a final hearing as quickly as possible. The child has spent nearly half her life in foster care, she needs her future determining. I had asked for the availability of Dr Parsons to be checked I will hear submissions from the parties as to whether or not he should be asked to prepare any addendum report. I note that his most recent report addresses the possibility that the Mother could be found to have caused the injuries, as she now has. He records “in my view, if the Mother caused the bruising, then based upon my previous assessment and my current assessment of her personality structure, there would in fact be a high risk of further similar injuries occurring in the future, particularly given the past history of the Mother’s care of children and difficulties that occurred with her older children”. He goes on that her denial of having cause the injuries would mean that “it will be impossible to engage in any form of therapeutic engagement to reduce risk, and nor would it be possible for there to be any form of other professional intervention, such as social work intervention, to safely manage the risks that the Mother would pose to a child in her care”.

75.	 I would propose that the mother should file a position statement in response to this judgement in terms of her acceptance or otherwise of the findings I have made. The LA should produce a comprehensive assessment of the information it holds in respect of mother taking into account the parenting assessment that is contained within the plan and progress forms, and analysing all of the information held in respect of this mother both in terms of the historical concerns and the findings that I have now made. It should consider whether in the light of the mother’s response to this judgement, that parenting assessment needs updating in any way.

76.	The assessment of the Father is well underway. I would hope that the LA will be able to produce its final evidence in this case by the end of July and the case be listed for hearing as soon as possible thereafter. If needs be, in order to avoid delay, I would be prepared to release this case to another judge.

77.	The LA needs to give serious consideration to what documents now need to be in the court bundles. All of section F, G and I should be removed from the bundle and there should be careful consideration in respect of what documents are relevant from the other sections. 

78.	I would invite the LA to provide for me, contact details of the Director of Social Services and the Director of legal Services and I will invite a response from them as to steps that will be taken to remedy the issues that have arisen in this case.