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Home > Judgments > 2013 archive

Re AK and MK (Fact Finding) (Physical Injuries) [2013] EWHC 3158 (Fam)

Fact finding hearing in care proceedings to establish the cause of injuries suffered by a six month old girl.

Neutral Citation Number: [2013] EWHC 3158 (Fam)
Case No: FC13C00077
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/10/2013

Before :

MRS JUSTICE PAUFFLEY
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Re AK and MK (fact finding) (physical injuries)
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John Tughan for the Local Authority
Judith Pepper for the mother, TH
Tim Parker for the father, MK
Oliver Millington for the Children's Guardian


Hearing dates: 7th – 10th October 2013
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Judgment

MRS JUSTICE PAUFFLEY

This judgment consists of 90 paragraphs.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.


Mrs Justice Pauffley:
Introduction and issues
1. On 27th March 2013, a six month old baby girl was taken to hospital in South London because she was not moving her right arm after an apparent fall at home the previous evening. Subsequent examination revealed what were believed to be a number of bony injuries including multiple metaphyseal fractures – around the growing ends of several bones – and there were other injuries as well, notably bite marks and bruises. The hospital doctors referred the family to the local authority's social services department. The child and her older brother were accommodated and placed with foster parents. These proceedings were begun.

2. This hearing has been to resolve the several issues which arise as the result of events last March. They amount to the following – (i) Were the numerous metaphyseal fractures, as identified by the consultant radiologist, actually fractures or were they instead the early appearances of a mild form of Rickets? (ii) If there were metaphyseal fractures, is the parents' account of having given the child traditional massage, 'tel malish,' credible or did those injuries result from significant, excessive pulling and twisting forces? (iii) Did the transverse fracture to the baby's right arm result from an accident of the kind described by the mother or some other mechanism? (iv) Who inflicted bites upon the child; and is the father's confession of having done so credible? (v) How did the other bruises noted on paediatric examination, those which could not have been bites, arise?

3. Turning from the detail to the overall issue, it is as to whether the local authority has established its core assertion namely that the child suffered non accidental, that is inflicted injuries. If I am so satisfied in relation to that, then it will be necessary to seek to identify, if possible, the individual responsible for those injuries because of the importance of so doing for future planning and assessment. Plainly, if I can be satisfied – to the requisite standard on the basis of cogent evidence – that responsibility lies with one individual and that others should be excluded, then I should say so.

4. Some things should be made abundantly clear. Care proceedings are never begun because a local authority wishes to punish parents or cause them distress. Both the mother and the father, each of whom gave oral evidence for several hours, stood up and spoke at the end of their Counsels' final submissions. They emphasised how much they are suffering and implored me to come to a decision which would see the family reunited rather than further separated.

5. My only ambition at a hearing of this kind is to carry out a full and thorough investigation so as to discover the truth as to what happened. That is what this has been all about. If the child's injuries, as discovered by the doctors, were inflicted, rather resulting from some accident or arising from some medical condition, then it will be my job to try to ensure, for the future, that the children are adequately protected.

6. I make every effort, wherever possible, to keep families together. If I am able to find a way of safely doing so in this case, then I will do exactly that.  I am not blind to the anguish which each of these parents feels but my overriding responsibility is to their two children – to ensure their welfare needs are met and to protect them from harm.

Essential background
7. The essential background is this. The two children are AK, a boy, who was born in June 2011 so now aged 2 and a quarter; and MK who is just a little over a year old. She was born in September 2012. The children's mother is TH who is in her mid twenties. She is seven months pregnant and expects to give birth to the couple's third child in December.

8. The children's father is MKM; he is almost 30. The parents' relationship which, by all accounts, is strong and mutually supportive began in 2001 / 2002 when both lived in India. The father came to this country, initially as a student, in 2005. In 2009, the parents were married in India where AK was born two years later. On 14th November 2011, the parents and AK, as well as the father's brother, travelled to and set up home in this country. They have lived here ever since and were not known to the local authority until the hospital referral of 27th March.

9. AK's early life was unremarkable. He met all of his milestones; there was no anxiety about his health or development from any of the professionals with whom he came into contact.

10. MK was a full term baby born as the result of a normal delivery. She was well at birth; breast fed for the first five and a half months or so and then introduced to some formula feeds.

11. On 25th February 2013, when she was five months old, the mother took MK to the GP because, so she said to the doctor, AK had bitten MK on the left arm a few days beforehand. There was a bruising and a small lump or haematoma. The mother was advised that it is normal for siblings to bite one another, that there was no need for any treatment and that if it were to happen again, she should apply ice cubes to minimise any swelling. Just over a week later on 7th March, the mother drew another doctor's attention to MK's arm when at the surgery for an appointment of her own.

12. When, in the middle of March, the mother noticed another bite mark on one of MK's knees she says she assumed it had been caused by AK. She drew the mark to her husband's attention and he became upset, saying simply that she should apply ice cubes. The mother noticed other bite marks on the day before the incident which led to MK's admission to hospital on 27th March. In all, says the mother, there were four bite marks which did not look old. Again, she thought it may have been AK, her son, who had caused the marks.

Incident of 26th March 2013 – the mother's account from her written statement
13. In her written statement for these proceedings, the mother says that during the evening of 26th March at about 21.00, she was in the kitchen at the family home, stirring a pot on the stove when MK started to cry a lot. The baby was unstrapped in a car seat which was positioned on a smooth work surface, although the mother had her back turned because she was cooking. She had rocked the chair seat to calm MK down and had given it a "final hard push" so it would continue rocking whilst she finished cooking. She then heard something hit the floor – and suggests the car seat must have moved towards the edge of the work surface. The mother saw that MK and the car seat were on the floor. MK was lying on her left side; her left arm trapped under her body and she was crying. Her right arm was raised and not in the normal position. The mother says she panicked, reacted immediately by pulling MK's right arm towards her so as to lift her and then she placed her in her arms to comfort her.

14. When, after about 10 minutes, MK had calmed down the mother checked her head to make sure there were no signs of injury. At about 21.30, the mother called her husband who was out locally with friends. She also breast fed MK so as to soothe her. The father checked the baby over when he returned shortly before 22.00 finding no obvious external injuries. When MK awoke at about 23.00 the parents as well as the father's brother checked her. They noticed she was not moving her right arm and thought there was something wrong.  Perhaps because of the fall it might have become numb. They did not realise it was broken. During the night MW woke up several times.

15. At about 05.00 or 06.00 the next morning, the mother realised MW was in pain whenever her right arm was touched. She called the GP's surgery when it opened at 08.30 and was told to take MW to the Accident and Emergency department of the local hospital.

Medical investigations
16. MK's other injuries were discovered when she was examined by the hospital doctors, particularly a consultant paediatrician Dr H. There was also a skeletal survey, resulting in X ray reports from a paediatric radiologist at the local hospital, and a second opinion from Dr Karl Johnson, consultant paediatric radiologist at Birmingham Children's Hospital.

Parents' position
17. The parents' position may be shortly summarised. They accept that the threshold criteria are established though not as alleged by the local authority. The mother acknowledges she was careless in leaving MK unstrapped in the car seat, without adequate supervision; and that she should not have picked her up in panic by her right arm. She also acknowledges that her husband's actions in biting MK amount to significant harm. The father similarly concedes that by biting MK, as he says he did, he caused her significant harm and the threshold is therefore crossed.

18. In broader terms, the parents have presented at this hearing as a united and devoted couple. They have hardly had a bad word to say about each other. They hope against hope I will find there is an innocent, medical cause for the appearances which Dr Johnson has classified as metaphyseal fractures; that the mother's account of an accidental fall and panicked pull on MK's arm will be accepted as the most likely cause for the transverse fracture; that the father's confession of having bitten MK will be found to be truthful, reliable and plausible. Overall, their dearest wish is for the children to be returned to them and for there to be no continuing anxiety on the part of the local authority about the unborn baby.

Burden and standard of proof – legal guidelines
19. It is for the local authority to prove its case – in this instance that MK suffered non accidental injury. Neither the mother nor father has to prove anything. I remind myself that the test to be applied to the identification of perpetrators as to any other factual issue in the case is the balance of probabilities, nothing more and nothing less.

20. It is also established that there is no obligation upon a judge to decide who has harmed a child if he cannot. If he can, the judge should identify the probable perpetrator but he should not strain to do so. Where a judge is considering an 'uncertain perpetrator' finding, he must be satisfied in relation to each potential perpetrator that there is a 'real possibility' on the evidence that that individual inflicted the injuries.

21. An additional and very obvious reason for the making of clear findings in this instance is because of the imminent arrival of the couple's third child. Any assessment of risk for that child should proceed on the firmest foundation I am able to provide.

22. When considering issues of credibility, I remind myself that there are many reasons why a person in proceedings such as these might lie. They may do so for a whole host of motives. Not necessarily because they are culpable but, for example, to protect someone else; or in an attempt to bolster up a just cause, or out of shame or from a wish to conceal disgraceful behaviour from their family or the community in which they live. The mere fact that a potential perpetrator lies is not in itself evidence of guilt. It would almost never in this situation be sufficient evidence of blameworthiness to establish that someone had lied. 

23. I also remind myself – in connection with the medical evidence – that (i) the cause of an injury or an episode that cannot be explained scientifically remains equivocal; (ii) particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause; (iii) I must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice; (iv) I must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners which are at present dark.

Metaphyseal fractures or signs of early Rickets?
24. With all of those matters in mind I turn to the issues here. The first question is as to whether MK had sustained metaphyseal fractures as described by Dr Johnson or whether, instead, the appearances on X ray were those of early Rickets.

25. The evidence of the medical experts, Dr Allgrove, consultant paediatrician and paediatric endocrinologist, and Dr Johnson has been of pivotal importance in this issue. In his written report, Dr Allgrove said this in relation to the potential for a metabolic cause for the appearances on MK's X rays – "The level of vitamin D of 29 nmol/L, although low, is not regarded as being in the deficient range and is usually not sufficient to cause significant rickets… It is of course only one measurement and it is possible that the vitamin D level had been lower than this in the days or weeks leading up to the injuries. However there is no reason to suppose that this was the case as the child, as far as I can ascertain, had not been given any additional vitamin supplements and had continued to be breast fed."

26. In his oral evidence, Dr Allgrove whilst accepting that MK's vitamin D levels might possibly have been higher when admitted to hospital than they had been previously, said he doubted there would have been a difference in her bones some two to three weeks previously. He referred to there having been "only some formula feeds – vitamin D levels might have come up slightly but (didn't) think they would have come up that much." He also said, in answer to one of Mr Parker's questions, that he thought there was evidence pointing towards vitamin D deficiency and that as a result, "she might have shown some slight changes on X ray." Dr Allgrove also said that "even if these were the appearance of early Rickets – there would have been no increase in MK's susceptibility to fractures." He did not believe she would have been at increased risk of fractures.

27. The issue as to whether the X ray appearances resulted from early Rickets or were, instead, metaphyseal fractures was discussed at the meeting of the experts  late in the evening on 26th September. On several occasions, (Miss Pepper has counted 7) Dr Allgrove raised his anxiety that what Dr Johnson had described as metaphyseal fractures might have been confused with Rickets. Dr Allgrove referred to the changes being "pretty symmetrical" and to the possibility that MK may have had mild early Rickets. Dr Johnson's response to that suggestion, at the meeting, was brief and in these terms – "Radiologically, I don't think there is anything to suggest inherent weakness of the bones… I don't think … this child has got Rickets … I think it is important …there is no other biochemical or clinical evidence to suggest the child has got anything underlying the bones."

28. In his oral evidence, Dr Allgrove said on several occasions that he would defer to the radiological opinion of Dr Johnson as to whether these were the appearances of Rickets or fractures. He did not believe his hypothesis could be dismissed but he is not a radiologist and therefore bows to Dr Johnson's opinion.

29. Dr Johnson began his evidence by saying he had looked again at the X rays on the morning after the experts' meeting. He continues to be of the opinion that MK had metaphyseal fractures and not early signs of Rickets. He identified six reasons for that conclusion. (1) That there was no metaphyseal irregularity around MK's wrists (one of the sites routinely X rayed when Rickets is suspected because they grow rapidly and therefore change most quickly). MK had a metadiaphyseal fracture of the left forearm but that, said Dr Johnson, is different. (2) That when there were follow up X rays, the changes around the femur had altered in a way which was more in keeping with healing fractures rather than Rickets. Dr Johnson did acknowledge though that in children with Rickets there would not be regular repeat X rays, as here; but that those children would be X rayed, typically, some weeks later. (3) The proximal humeri – and he had looked at the X rays again on the morning he gave evidence – in particular the right proximal humerus showed "a classical appearance of metaphyseal fracture;" and there were similar changes to the left proximal humerus. He described them as "bucket handle type fractures – an arc of bone which looks like the handle of a bucket." (4) That in Rickets, the appearances are of 'cupping and flaring', the ends of the bones are "wispy", they are widened and look irregular. Those were not evident here. (5) That in Rickets the growth plate, formed by the metaphysis and epiphysis, is widened. But here there was no widening. (6) That whilst there are bi lateral changes in MK's arms, knees and shin bones, the appearances are not identical. There is some similarity, in that there are changes on both sides, but they are neither symmetrical nor identical changes. 

30. For all of those reasons, Dr Johnson discounts the possibility that MK's X rays showed early signs of Rickets; and his view survived some searching but altogether appropriate probing during the course of cross examination. Towards the very end of his evidence, whilst answering questions about rib fractures, Dr Johnson said he was of the opinion, on the balance of probabilities, that MK had periosteal thickening of her 6th and 7th ribs suggesting healing rib fractures. He had "a slight doubt", his "level of certainty was less" and he did not have the "same level of confidence" in relation to the rib fractures as he does about the other injuries. He said he was "very, very confident that the rest (of the relevant X ray appearances) are metaphyseal fractures."

31. I bear in mind all of the factors very properly drawn to my attention by Dr Allgrove, Miss Pepper and Mr Parker. The mother was undoubtedly vitamin D deficient on 10th May (22 nmol/L) and MK was exclusively breast fed for the first five and a half months; she was born in the late summer and by March this year had lived through an English winter with little exposure to sunlight which would have assisted in elevating her vitamin D levels.

32. I note that when he gave his oral evidence, Dr Allgrove did not appear to be as emphatic in relation to his early Rickets hypothesis as appeared to be the case when participating at the experts' meeting. He was also at pains to stress his wish to defer to Dr Johnson.

33. I also bear in mind, as I endeavour to understand the biochemical evidence and the relevance of vitamin D deficiency to MK's bone development, the written evidence of Dr H. She explained that "Due to the poor transference of …vitamin D into milk, exclusively breastfed infants are at higher risk of vitamin D deficiency than formula fed infants. However maternal adaptations during pregnancy and lactation and foetal adaptations provide the necessary Calcium relatively independent of vitamin D status. Maternal vitamin D deficiency may predispose newborn infants to neonatal hypocalcemia. However MK's calcium level was within the normal range on 27th March  2013 and therefore if her mother was vitamin D deficient it seems to have had little impact upon MK at the time she was seen in A&E."

34. The evidence of Dr Johnson was of prime importance in this issue. He was, as Mr Tughan submitted, a clear, thoughtful and conscientious witness. It is to his credit that he re-visited the X rays on the morning after the experts' meeting to satisfy himself that his first analysis was the correct one. His evidence was utterly persuasive; his experience and expertise in providing a paediatric radiological opinion is almost unrivalled. The Birmingham Children's Hospital where he is based is a major centre for children with metabolic bone disease. He routinely reviews the X rays of children with Rickets and all types of pathological disorders. He is held in high regard amongst the community of radiologists as the referral from Dr M, who provided the initial skeletal survey at the local hospital, demonstrates. I have no hesitation in concluding that Dr Johnson's opinion in relation to each of MK's bony injuries is both reliable and sound.

Is traditional massage, 'tel malish,' a credible explanation for her metaphyseal fractures? 
35. I turn them from the existence of the fractures, other than the transverse fracture of the right distal humerus (upper arm), to consider the mechanisms by which they occurred. Both parents put forward traditional massage as a possible explanation; and whilst of course they do not have to prove anything, they do, as Mr Parker correctly suggests, have a responsibility to assist me as much as they are able in gaining an understanding of how their daughter came to be injured.

36. In her written statement, the mother made two assertions – first that she and her husband had arguments in the past about the way in which he would play roughly with MK; and second that two or three times a week he would give traditional massages to the children and insist upon doing so, saying he could do them better and make MK stronger.

37. In her oral evidence, the mother said that "normally (she) would do the massages" and that MK would cry when she did so. Later she said that her husband had massaged MK's ribs "in a more firm way" than she did. She agreed with Mr Tughan that she had been the children's main carer and that during her second police interview she had described herself as having been with them for 24 hours a day. The mother also said that during the massages, they had not twisted the arms. There was a motion in which they "had gone around the arm and shoulder" and there had been a "slightly twist." Maybe said the mother "it had been a bit hard and that's why MK used to cry." A little later, the mother said she had given a full explanation – her husband used to play with MK, dangling her in the air, throwing her up in the air and catching her and she (the mother) used to massage her. Other than that, she has no explanation for the metaphyseal fractures.

38. The father's written statement suggests that the reason why he massaged the children was because it was "one of the activities" which he, the father, enjoyed. He said that to a Western eye the massage can seem hard and forceful but this is how it is done. MK would usually cry a lot when he massaged her but he did not believe that to be unusual or worrying and she settled afterwards – often having a long sleep.

39. In his oral evidence, he suggested that the reason he massaged the children was because he was "feeling (his wife) was not giving massages appropriately." His understanding of how they should be done comes from "back home" but no one had explained to him how to do it. He had "watched (his) sisters and the maid at home and learned through that." Asked about the force he'd used, the father said, "My force was there… I took the opportunity because my wife was not doing it properly. I was not satisfied – so I thought, 'Come on, take it; I will do that' I did it a bit hard. That is the difference between the massage I gave and (she) gave. My force was extra to the force used by the maid in India."

40. Later when asked about MK's reactions during massages, and having demonstrated upon a doll the firm stroking actions he'd used when carrying out the procedure, the father said he had never thought he was hurting his daughter. He said he was "really shocked" when fractures were discovered because she had "never shown any distress." A matter of seconds later, the father said MK would "suddenly shriek when (he had) massaged the chest… She cried a lot; she cried more yeah. I did not notice her crying out in pain… I did not feel she was showing pain. She was distressed. She was not showing pain."

41. According to Dr Johnson, at the times when the fractures occurred, MK would have been in pain and shown signs of distress. The initial distress would last some moments. Thereafter, the signs and symptoms could be variable. Dr Allgrove, at the experts' meeting, described how bones are covered by a layer of tissue, the periosteum, which contains a lot of nerve fibres which, if disrupted, causes pain.

42. That evidence is consistent with that which I've heard in many, many other similar cases over the years. The likely symptoms from both the rib and metaphyseal fractures are of pain and screaming at the time of injury and for several minutes thereafter followed by non-specific irritability on handling, dressing, bathing and so on over a period of a few days. The person with the baby at the time of injury would recognise the infant had been handled with excessive and inappropriate force and that the baby was in pain.

43. A non perpetrator who had not seen or heard the event that caused fractures might not recognise there had been an injury unless in relation to the metaphyseal fractures there was associated swelling or bruising which is uncommon. Symptoms of irritability lasting for a few days after the event might be misattributed to the infant being unwell for other reasons. A non perpetrator may not realise there were rib fractures or limb injuries.

44. I find that MK did sustain injuries in the form of metaphyseal and other fractures as the result of significant and excessive forces applied to the bones. In most instances, the mechanism would have been pulling and twisting, torsional forces. Others – notably to the left distal radius and the distal left humerus – occurred as the result of either a blow, impact or a bending and snapping action applied to the bone. In relation to the rib fractures, the mechanism was severe, excessive squeezing or compressive force applied to the chest. I accept, without hesitation, the advice of Dr Johnson which is that such fractures do not occur from the normal day to day processes of dressing, changing and caring for the child; nor do they happen when there is over exuberant play or rough handling.

45. The suggestions provided by the parents, either as to massages or inappropriate play do not provide remotely plausible accounts for MK's fractures when viewed against the backdrop of the medical evidence. Leaving aside for one moment the mechanism employed, neither parent has hinted in anything they have said or demonstrated that excessive force was used when MK's limbs were twisted or manipulated. The father's demonstrations were of firm, stroking or rubbing movements along the limbs and then over and around the joints. By no stretch of the imagination could he have caused MK's fractures using the methods and degree of force (or lack of it) as described.

46. Moreover, as even cursory examination of the parents' evidence reveals, there are marked inconsistencies in what each has said at different times and also as between them, sufficient to lead me to conclude that neither parent was telling the truth. A number of important questions remain to which I have not been provided adequate answers. Why did the father massage MK? Was it because it was an activity which he particularly enjoyed or was it that he did not feel the mother was capable of doing it properly? Did the mother, as she said, "normally" massage the children and, if so, was there anything wrong with her technique? Why, if the father did take over primary responsibility for this aspect of caring for the children, did he do so when his only experience of 'tal melish' was derived from watching others perform it in India? Perhaps most importantly of all, did MK exhibit any sort of pain reaction whilst she was being massaged? As to that, the father's evidence was particularly unsatisfactory; his account changed by the second. I was left thinking that he was making it up as he went along.

The cause of the transverse fracture to MK's right arm
47. I turn then to the next issue which is as to whether the account provided by the mother of MK's fall from the work surface followed by a panicked pull upwards by her right arm is likely to have been the cause of the transverse fracture.

48. There are a number of difficulties arising out of the mother's written account, as set out between paragraphs 13 – 15 above. Some may have resulted from her imperfect grasp of the English language particularly when she provided information to the hospital staff. Others would seem to have nothing to do with language problems. There are clear and irreconcilable inconsistencies in what the mother has said about the incident to different people at different times.

49. When the mother was first seen in hospital by Nurse S in Triage at 11.25, she is recorded as having said "1/7 ago child unattended in bouncy chair strapped in on floor. Mum heard baby cry, found baby on floor still attached to chair…"

50. Between 14.10 and 15.30 that same day, the mother gave a further and more detailed account to a hospital doctor. The record is in these terms – "yesterday evening child was in car seat on working surface – strapped in. Mum wasn't in room, but child does bounce and move chair quite violently. Mum heard bump and when she came in to room, car seat had tipped over. Child was laying on her right arm. Child not unsettled or swollen yesterday so did not attend A&E."

51. Still later that day, and in discussion with a Specialist Registrar, the history as provided by the mother was that at 21.00 "mum had left (the baby) unstrapped in car seat and placed her on kitchen worktop, mum had left the kitchen and heard a thud and ran into the kitchen to see MK on the floor with the car seat. Her right hand was bent backwards. MK was crying …"

52. At 18.30 on 27th March, so the same day, the mother told Dr H that "last night at 9pm (she had been) cooking in the kitchen. Child in car seat strapped in and placed on worktop near sink. Baby started rocking with hands and legs. Car seat rocked and fell off work top. Child cried immediately then didn't seem upset …"

53. In her oral evidence, the mother said in answer to Miss Pepper that the car seat had been on the work surface "exactly on top of the washing machine." The mother said, after the fall, "The car seat was lying just before (in front of) the washing machine and the baby was lying a little bit distance from the car seat. She was lying on her left hand side and I picked her up using her right arm. It was visible and the left arm was under her body. I picked her up just below her elbow on her forearm. She cried – yes. No, I've never heard her cry like that before … for about 10 minutes… She was screaming – a loud screaming noise, a shriek … I went close to her, bent down. Put my other hand beneath her to pick her up."

54. Asked in cross examination why it was that her account of the incident had changed, the mother said it was "Due to the language difficulty." She was not able to explain things because she could only speak a basic level of English.

55. I altogether accept, as emerges from the record of her police interview on 28th March, that the mother was initially uncertain as to the meaning of the word 'strap.' But so soon as the officer asked, "Did you put the straps on, so that she couldn't fall out?" the mother replied "Belt, no, no … because she is only of 6 months, she's unable to move by herself…"

56. I am bound to say I was left perplexed in relation to the mother's ability to use the English language. Her two police interviews, which lasted for more than two hours in total, were conducted almost exclusively in English. During the second an interpreter was present and translated on some five occasions.

57. The mother's statement for these proceedings is written in English though the mother suggested she had prepared the words at home and even then her Solicitor had had difficulty in understanding her. There was no occasion, so far as I can recollect, when the mother required the services of her interpreter during her evidence in chief or during the earliest parts of Mr Tughan's cross examination. It was only when he started to probe her various versions of events for MK's fall that the mother required almost every question, as well as her answers, to be translated.

58. There are though several other and more important difficulties in ascertaining and understanding what happened to MK that night. On the account she provided in evidence, the mother was cooking and standing in front of the cooker. She maintains that when the car seat fell to the ground, she heard the sound but, "No the car seat did not touch (her) at all… Nor did MK as she fell to the ground." In English, the mother went on to say, "How can it touch at that distance. Yes, she fell behind me, towards my back."

59. Superficially, there would appear to be nothing particularly problematic with that statement. But when account is taken of the police photographs, and there are several of the kitchen and the car seat, the mother's version of events becomes almost impossible to reconcile. I simply cannot accept that the car seat containing MK did not come in to any sort of contact with the mother's body if, as she says, she was standing in front of the cooker in that tiny kitchen. The car seat is of conventional proportions and occupies almost the entire width of the work surface which is adjacent to, close by and at right angles to the cooker. Anyone standing in front of the stove would have been able, I should have thought, to have touched the car seat as well as the baby with ease. Had they both fallen from the work surface whilst the mother was stirring a pot on the stove, it is overwhelmingly likely that they would have collided with some part of the mother's body – probably her right hip.

60. Then there are problems in understanding how the car seat came to fall in the first place. It was not a bouncy chair but a rigid car seat with a very slightly curved base. There was the potential, in my assessment, for only a very small degree of movement if pressure were applied to the front or back of the seat. Any rocking motion would have been slight; the potential for the chair to continue to move on its own or even as the result of MK's wriggling arms and legs would have been minimal. It could only move from front to back in any event. The notion that somehow the car seat moved across a smooth or slippery work surface on its own with MK inside is fanciful in the extreme. Still less credible is the mother's written account of having given the car seat a "final hard push" so it would continue rocking whilst she finished cooking. It does not add up at all.

61. There are other anxieties about the mother's account. Was she in the kitchen or not? Three times at hospital she suggested she was not there.  Only when she came to speak with Dr H, did the mother mention her presence in the same room. Did MK fall on her left or her right side? At hospital, the mother seemed to be suggesting a problem arising out of a fall on to MK's right arm. In these proceedings, her claim has been instead that something may have occurred as the result of a careless pull on MK's forearm.

62. Finally in relation to the fall and my anxieties about the accounts I'm asked to consider, the father's evidence about how the mother was upon his return to the house after the incident deserves explicit mention. In his written statement, dealing with the scene on his return home, the father says simply that MK "appeared to be calmly sitting on her mother's lap." On several occasions, during cross examination, the father was asked to describe how his wife was, her behaviour when he arrived home. He seemed to me to be completely stumped by the question. All he could offer was that she was "worried – not comfortable … but she did not say she was worried or not comfortable." I note, in passing, that the father had a similar difficulty when asked by the police to describe what his wife had said and how she was when he arrived home, saying he did not remember and later that she was upset and about to cry.

63. The father's account was puzzlingly and worryingly sparse on any kind of plausible detail as to how the mother was behaving when he returned to the flat.

64. Lastly in connection with the incident on 26th March, it is strange indeed that the parents did not take MK to A&E that evening. According to the mother's evidence, her daughter had screamed for 10 minutes in a way she had not heard before. It must have been entirely obvious that MK was in considerable pain. I cannot follow why – if this truly was an accident – the baby was not taken to hospital that night. After all, she had been to A&E in the past when she'd had a runny eye and, according to the father's evidence, on one occasion at night time because she had been "coughing very badly."

65. All in all, there are so many inconsistencies, unanswered questions, improbabilities arising out of the cramped layout of the kitchen and such thoroughly dubious evidence given by both parents, the mother in particular, that I am compelled to find the fracture was not an accident but an inflicted injury. The true account as to what happened, as yet, has not been supplied. 

Bite marks – is the father's confession credible?
66. The last major issue is as to which of the parents bit MK; and in that connection it becomes necessary to consider the father's confession of having caused all of the bite marks including those which Dr Martin, forensic odontologist has classified as 'possible' bite marks.

67. This aspect of the matter ranks amongst the most bizarre I've encountered in a fact finding exercise. What I am asked to accept and find as a fact is that the father bit MK on three different occasions and that when he last bit her, he did so four times. On each occasion, bruises resulted and MK was caused pain.

68. The prelude to this part of the case lies in what was said by the mother and also the father about the cause of the bite marks when first asked to explain them. At the GP's surgery on 25th February, the mother said she thought the bite and associated lump had been caused by AK as the result of sibling jealousy. At hospital on 27th March, the mother as well as the father told Dr H that AK was responsible for the bite marks. The mother said he had bitten MK on both legs two days before she had been brought to A&E. The father said that AK had bitten MK in the past and the GP had reassured them that was normal. When challenged by Dr H that the bites were too large to be those of a toddler and that they were of different ages, the father could not account for them.

69. In the course of their first police interviews on 28th March, both parents maintained that the bites had been caused by AK. The mother said she had "seen (her) son biting her." She said she "knew" and she was "sure." But when asked if she would provide a dental impression to assist in the investigation, the mother declined and did not give a reason. In evidence, she suggested that was because she believed she would have to remain longer in a police cell and therefore refused. She did not say that to the police.

70. At all events, when the father was first interviewed by the police he, too, said that AK had inflicted all of the bite marks; that his wife had told him their son was responsible and they had explained to him he should not do such a thing.

71. The father requested a second interview with the police on about 11th April, so about a fortnight after the first. He was re-interviewed on 24th April and admitted in relation to the bite marks that he was responsible for all of them. He told the police he had done so, "in love and affection, it's actually bonding, it's an act of family play and there was no intention to harm her."

72. In his written statement, the father said that when he bit MK it was not because he was angry or wished to hurt her; he was just playing. That first time he did not think he had bitten her too hard. When his wife had taken MK to the GP, he (the father) was embarrassed that it had happened, did not tell his wife and thought the problem would go away. He described how MK had whimpered a little but settled and quickly relaxed. Similar descriptions were given of the other occasions when he bit MK – the father sought to maintain that "these were all intended to be tender gestures, she is such a lovely plump baby but (he) should have realised that (her bruises) meant (he) was biting too hard for play and should not have done it."

73. In evidence, the father said he had never discussed the bites with his wife because he thought, had he done so, he would have lost his dignity and respect in her eyes. Curiously, very curiously, the father said the mother had told him she'd seen AK biting MK. The father went on to say he had not wanted to harm her. It had "all been done in love and affection only" although she had cried when he'd bitten her. He went on, "Once I had bitten her, I feel bad … could not control myself. I wanted to play and spend time with her; it was extra love. I bit her again and again. I was never cross with her. It was never done out of anger."

74. As Dr Martin has advised – if expert advice is needed as to this – "It is generally considered that for biting to leave lesions that are still visible the next day, sufficient force would have to be applied such as to cause pain and discomfort and the biter would have been aware of this from the reaction of the baby." He also concludes that "biting is generally considered to be a voluntary act and bite marks are seldom, if ever, accidental in nature."

75. In his final remarks and after his Counsel had made submissions, the father pleaded with me in these terms – "I should not have done that to my babies. Don't take my children from my life. I am suffering. Again, I did that biting. I am not covering for anyone. Please consider, I have more feelings than my wife. Both children love me. I will not do that to any baby. I am worried about the third child also."

76. I observe, as I did during the hearing, that repeatedly biting a baby so hard as to cause multiple bruises, almost inevitably, leads on to questions as to whether that individual is or is not sane. Explanations of the kind the father has given do not ring true at all. A toddler who bites a baby ordinarily causes great anguish to the baby's parents because of the pain inflicted and resulting bruise. Anyone of us can experiment upon ourselves so as to find out how much pain a moderately forceful bite will cause. A bite sufficient to bruise involves trauma to the skin and underlying tissue. It simply defies belief that this well educated, loving and intelligent father would have bitten his five month old daughter so badly that the mother felt it necessary to take  the child to the doctor and then he went on to bite her again and again.

77. Mr Parker suggested that although this may be very difficult to understand, that does not mean it did not happen. He submits it may have been, as the father describes, a loving impulse. The father's explanations for having bitten MK are, in my assessment, quite ludicrous. No one would inflict pain repeatedly upon a small and defenceless baby out of an abundance of love.

78. In that regard, it is interesting to note what the mother has said about the father's interaction with MK and the bites inflicted by him. She said, "I always saw him having love and affection for her. I never saw him look at her with a hateful look. I never saw him bite her and never heard her cry out." Three times more, during the course of her evidence, the mother said she had never seen the father look at MK "with hatred." She also said that "normally if someone loves someone they will not cause them pain."

79. In the final analysis, I find this aspect of the case to be completely impenetrable. I do not accept the father's account as to why MK was bitten.  Two possibilities immediately arise. Either he is lying so as to protect the mother or he is lying about his motivation in order to render his abusive conduct more palatable. Maybe this is all about dignity and loss of respect if not for the individual who inflicted the bites then for the entire family.   Whatever the reasons, I am as sure as I can be that the father is not telling the truth. On the current state of the evidence, they have both lied and to a number of people about this issue – the mother's account of having seen AK biting his sister must have been a blatant lie; so, too, the father's initial explanations about AK's responsibility.

Cause of those bruises which were not bite marks
80. The very last matter for discussion is as to the cause of those bruises which could not have been bites. Three were found when MK was examined at hospital. A green / brown bruise on her jaw line, less than 1 cm in diameter, which the mother said she could definitely remember but had no explanation for. A 1 cm in diameter bruise just below the umbilicus (tummy button) and another 1 cm brown bruise at the top of MK's left thigh. Neither parent can shed any light upon how MK came to have those bruises.

81. Dr H suggests they are consistent with fingertip bruising. But the mechanism, I observe, involves trauma – a knock, a hard poke, some impact sufficient to break the blood vessels under the skin. Six month old babies are not sufficiently mobile to knock and injure themselves. The strong probability is that one or other, or maybe even both, of the parents was responsible for causing those bruises.

Social factors
82. In response to Mr Parker's submission that social factors might militate against the assertion that MK's injuries were inflicted, I should mention the following. I altogether accept that to all outward appearances the parents' relationship was loving and supportive. So far as anyone knew, there was no sign of discord or stress. AK has always been a healthy little boy.

83. It has to be recognised though that the mother, in particular, had many responsibilities to fulfil when MK was born. In September 2012, AK was only 15 months old. His physical needs must have been almost as significant as those of MK. He and the mother had only arrived in this country some 10 months earlier. So far as I'm aware, the parents' wider family members, with the exception of the father's brother, remain in India. The family occupied a two bedroomed flat; the father's brother had one bedroom. The parents and their two children all slept in the other bedroom. The father's two jobs took him out of the home for long periods. On two days each week he would leave at 09.30, return for two hours in the middle of the day, and then work on throughout the evening, coming home at 22.00. As the events of 26th March apparently reveal, he would sometimes be out locally with his friends late on in the evening even when he was not working.

84. I imagine the mother was under a great deal of stress and pressure as 'a 24 hour mother' though neither she nor the father has said anything to suggest that was so. Maybe, again, dignity and the potential for loss of respect prevent them from being candid.

The essential threads of my findings
85. Lastly, and overall at the end of this critically important hearing, it is necessary to draw the essential threads of my findings about MK's injuries together. I am disappointed, for the children's sakes, that it has not been possible for me to identify which parent, if it was only one, harmed MK. In the vast majority of cases, it turns out to have been one parent rather than both. Here, arising out of the very many obvious, even accepted, lies told by both the mother and the father I have been prevented from fulfilling my responsibilities to the children as I would have wished.

86. My global finding is that MK was injured in a variety of ways, as medical examination revealed, and that all of her injuries were inflicted rather than accidental. She had numerous metaphyseal fractures affecting her joints. I am altogether satisfied she did not suffer from early Rickets. There was a transverse fracture of her right arm. She was bitten on multiple occasions on many, many parts of her body. She had bruises which were also inflicted. None of the explanations offered by the parents has been even remotely adequate to explain MK's injuries either as having occurred accidentally, from misguided massages or out of an excess of love. Each of them, self evidently, could have inflicted the injuries. It would be entirely unsafe at this juncture to exclude either parent. Moreover, there is no credible evidence which would enable me to come to such a conclusion.

87. The truth has not emerged. If it had, however embarrassing, however much there might have been a loss of dignity and respect, there would have been the potential for making progress towards safe reunification of the children within their family. Professionals can and do work with frank and clear admissions. They are unable to assist unless they know more or less the whole truth as to what went wrong in the past.

88. It is not yet too late but the window of opportunity is closing. Unless within a few weeks from now, the parents open up and provide the real facts as to what happened between February and March of this year, no one will be able to help them. The central question is as to how the children can be protected from harm in the future. If the authorities and I do not have a clue as to what really happened we cannot take the necessary steps to stop anything similar happening again.

Threshold criteria – inflicted injuries and 'failure to protect'
89. The threshold, for s.31 purposes, is definitively crossed in relation to both children. MK, as I have found, has suffered significant harm in that her many physical injuries were inflicted by one or other or potentially both of her parents. AK may be a little older and less vulnerable but he, too, would be at risk of substantial physical harm for so long as there is continuing uncertainty as to which parent inflicted MK's injuries. Both children, as the result of my findings, are likely to suffer significant harm if a public law order is not made.

90. There continues to a serious risk of physical assault and if only one of the parents, in fact, inflicted MK's multiple injuries then the other has signally failed to protect her from harm. Neither of them can be viewed, currently, as a protective parent. In addition, as the result of the way in which they have presented their evidence at this hearing, I am impelled to find that they have colluded with one another to suppress the truth.