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E (A Child) [2014] EWCA Civ 1754

Appeal brought by the mother of M against the making of an interim care order. Re S B [2010] 1 AC 678 considered. Appeal dismissed.

M was only seven days old at the time of the hearing but there had been discrete findings of fact made in earlier proceedings regarding C, a child of a different father. Having heard substantial evidence in relation to C, the judge had concluded that either one or both parents on two or three separate occasions caused multiple fractures to C's ribs without intending to do so and without realising what had occurred.

In response to a request for further clarification as to the findings, the judge confirmed that she did not exclude the possibility of recklessness in the way the child was handled, that the bruising to the side of his knees could not have been caused accidentally and that a competent carer should have realised what had happened. When the matter came before the same judge in respect of M, the judge confirmed that the perpetrator of the injuries to C must have been aware they were causing distress and that the non-perpetrating parent did not pick up on the distress. In light of these findings the judge found interim threshold crossed in respect of M.

M's mother appealed on the basis that none of the findings amounted to findings of fact sufficient to underpin a finding that the interim care order threshold was passed in respect of M, and that in terms of inflicting the injury the judge had not identified a single perpetrator.

The Court of Appeal considered the Supreme Court Judgment in the case of Re J (care proceedings: possible perpetrators) [2013] UKSC 9, [2013] 1 FLR 1373 which endorsed the approach taken in Re S B [2010] 1 AC 678 and confirmed that a finding that threshold was crossed based on the fact that there was a real possibility that the mother had injured a different child was not a permissible approach to a finding of likelihood of future harm.  The Court confirmed that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. The Court confirmed that cases such as Re S-B are extremely rare and distinguished between a Re S-B scenario where the only finding is that a past injury has occurred but the Court is unable to identify which of a number of people is the perpetrator, and most care cases which are not 'one off whodunit' cases but come instead with a multitude of facts.

In the present case, despite initially having substantial sympathy with the arguments put forward on behalf of the mother and notwithstanding the concerns raised about the way the judge explained the evidence and the findings she made, the Court was entirely satisfied that this was not a "one issue" case that fell within the narrow band of cases described in Re S B and Re J.  The Court found that the case was one with a wider context, involving a period of some four, five or six weeks with the family living in difficult circumstances and in which a number of quite significant injuries, including twelve rib fractures on no fewer than three occasions, were sustained by their child.  On that basis, the judge was entitled to consider that the S.38 injury threshold was satisfied in respect of M. Appeal dismissed.

Summary by Georgina Clark, barrister, Field Court Chambers

Neutral Citation Number: [2014] EWCA Civ 1754



Royal Courts of Justice
London WC2A 2LL

Tuesday, 4 November 2014

B e f o r e:





DAR Transcript of 
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(Official Shorthand Writers to the Court)
Mr S Heaney (instructed by Heaney Watson) appeared on behalf of the Appellant mother
S Birtles (instructed by Manchester City Council) appeared on behalf of the Local Authority
Mr B Singh Hayer
(instructed by Stephensons) appeared on behalf of the Father
Miss S Donaldson (instructed by Temperley Taylor) appeared on behalf of the Guardian
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1. LORD JUSTICE McFARLANE:  This is an appeal brought by the mother of a very young child against the making of an interim care order by Her Honour Judge Penna on 23 October 2014.  The child concerned is a girl, M, born on 16 October 2014, and therefore only seven days old at the time of the hearing. 

2. The case raises once again the difficult decision that falls to be taken by a Family Court, where there have been discrete findings of fact made in earlier proceedings regarding different children of one or other of a pair of parents who have subsequently separated, and one of them has gone on to become the parent, the mother in this case, of another child. 

3. Most recently the Supreme Court dealt with this matter of law in the case of Re J (care proceedings: possible perpetrators) [2013] UKSC 9, [2013] 1 FLR 1373.  It is not necessary in the course of this short judgment to rehearse in full the legal argument which is canvassed so widely in their lordships' judgments, but at the core of the court's consideration was the paradigm situation where this point might arise in an almost sterile and clinical sense, which was described in the judgment in the case of Re S B at paragraph 49, where Wilson LJ said this:

"The judge found the threshold was crossed in relation to W on the basis that there was a real possibility that the mother had injured J.  That, as already explained, is not a permissible approach to a finding of likelihood of future harm.  It was established in Re H [1996] AC 563 and confirmed in Re O [2004] 1 AC 523 that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities.  It is only once those facts have been found that the degree of likelihood of future events becomes the 'real possibility' test adopted in Re H.  It might have been open to the judge to find the threshold crossed in relation to W on a different basis, but she did not do so."

4. The approach taken in Re S B which had been questioned in the Court of Appeal judgments in Re J was endorsed by Baroness Hale in the course of her judgment in Re J:

"50.In In re S B [2010] 1 AC 678, the 'real possibility' that the mother had harmed J was the only basis upon which the judge concluded that it was likely that W would suffer harm in the future. There was nothing else.  J had suffered bruises and all bruising to a tiny baby must be taken seriously.  But they had probably been caused on one occasion by one parent.  It could not be suggested that the other parent had failed to protect him.  What was impermissible, as stated in para 49, was to make this, and this alone, the basis for predicting that the mother was likely to harm W in the future.  It may well be that when the case was re heard, facts emerged from which it was possible to make such a prediction.

"51.Cases such as In re S B are vanishingly rare.  As McFarlane LJ pointed out in the Court of Appeal [2012] 3 WLR 952, para 109, the Lancashire case [2000] 2 AC 147, in respect of the child minder, was 'truly a one point case.  There were no other adverse findings made against the childminder' (he says 'other' but he must mean no adverse findings) (para 108).  Likewise, In re S B "was [a case] of a one off ('whodunnit') injury, there was no question of failure to protect and no finding of collusion" (para 111).  Even in In re F [2011] 2 FLR 856, there were no adverse findings against the father (para 112).  Most care cases are not 'one off whodunnit' cases.  They come with a multitude of facts.

"52.It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent.  No one has ever suggested that that fact should be ignored.  Such a fact normally comes associated with innumerable other facts which may be relevant to the prediction of future harm to another child.  How many injuries were there?  When and how were they caused?  On how many occasions were they inflicted?  How obvious will they have been?  Was the child in pain or unable to use his limbs?  Would any ordinary parent have noticed this?  Was there a delay in seeking medical attention?  Was there concealment from or active deception of the authorities?  What do those facts tell us about the child care capacities of the parent with whom we are concerned?

"53.Then, of course, those facts must be set alongside other facts. What were the household circumstances at the time?  Did drink and/or drugs feature?  Was there violence between the adults?  How have things changed since?  Has this parent left the old relationship?  Has she entered a new one?  Is it different?  What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned?  Does what happened several years ago to a tiny baby in very different circumstances enable us to predict the likelihood of significant harm to much older children in a completely new household?"

5. As can be seen there, Baroness Hale draws a distinction between the true one off case, where all the court has found is that a past injury has occurred and yet has been unable to identify which of a number of people is the perpetrator, and those cases which have a wider context, more than a single issue of what happened and "whodunnit", and where, in particular, the court is required to consider the factors listed by Baroness Hale at paragraph 52.

6. So much for the legal background, how does the point arise in connection with young M?  It arises because M has two older siblings.  They are a boy, E, born on 25 November 2011, and, more particularly, another boy, C, born on 8 August 2013.  Those two boys have become subject of care proceedings that were previously before Judge Penna.  The focus of the proceedings arose from the fact that the youngest child, C, had been found to have sustained a number of injuries during the first few weeks of his life.  He had been, initially at the time of his birth and subsequently, unfortunately, a child who had a range of medical complications. 

7. There were two consequences at least of that: firstly, that he remained as an inpatient in hospital beyond the normal time for discharge and was only discharged into his parents' care on 11 October 2013; and secondly, although he was fit for discharge, he required above normal care from the parents.  In particular they were required to have oxygen facilities close by for administration to him, as I understand it, not all the time, but from time to time, and they were also subject to very regular visiting from a neonatal midwife.  Again, as a consequence of his relatively poorly state, C is described by the judge in the course of a fact finding judgment as being a baby who was characterised by crying and whimpering through much of the period that the court was focussing upon.

8. The cause for investigation by the court arose following C's presentation to hospital on 29 November 2013.  That in turn arose because the neonatal midwife had visited and had noticed an unusual bruise or mark on one or both of the child's knees, and she recommended that he should be seen at the hospital.  The father, who was the parent at home at the time, readily accepted that advice and took the boy round.  The mother was contacted and she went straight away to the hospital.  During the course of the examination at the hospital an X ray was taken of his upper body and that revealed multiple rib fractures. 

9. This court now has the detail behind those global terms, "bruising to the knees" and "multiple rib fractures", but as I will explain, that detail unfortunately does not surface within the words of the judge's various judgments on the subject. I rehearse it now for clarity's sake.  So far as the bruising is concerned, the court had evidence from a consultant paediatrician, Dr Rose.  He provided a written report for the court but was not called to give evidence, and in that respect his evidence was unchallenged.  He described the bruising in these terms:

" ... bruising on the lateral aspects of the knee, although the bruise to the left knee does extend to the kneecap.  It is most likely that these are fingertip bruises, with C's knees being grasped with excess force, causing damage to the capillaries and bruising."

Then later:

"The most likely explanation for the multiple bruises ... is non accidental injury, the bruises being caused by trauma inflicted by a third adult party."

10. So far as the fractures are concerned, the court had evidence from a well known paediatric radiologist, Dr Johnson.  He advised that there were no fewer than 12 different rib fractures identified on the various X rays.  Having examined the rate and development of the healing process as between the various fractures, he was confident in identifying three separate groups: first of all, a group of three fractures that he indicated were likely to have been sustained between 23 October and 20 November; then one single fracture in the window 6 November to 27 November; and finally eight fractures in the period 23 November to 4 December, but bearing in mind, as I have indicated, that C was admitted to hospital on 29 November, that window in all probability was shorter.

11. Those were the background injuries, and it is plain to understand the level of concern that their discovery generated.  The two boys were removed to care and the process of identifying what had occurred was set in train.  That process came to fruition in the fact finding hearing undertaken before Her Honour Judge Penna between 8 and 12 September.  At the conclusion of the process, the judge reserved her judgment and issued a draft, I think circulated by email, on 17 September.  I will in a moment turn to the detail of that draft, but in order to explain the sequence, I should add that all parties, save for the mother, sought to have some clarification from the judge on one or more matters: the father, and then in consecutive days the Local Authority and the guardian all submitted requests for clarification.  The judge was apparently then unavailable for two weeks, and on the first day that she was available, namely 8 October, the case came back before her.  Having heard submissions and considered the requests, she provided some clarification.  However, the case was back before her on a planned hearing on 10 October, two days later, and it is apparent that further clarification was given on that occasion. 

12. We have for our consideration the original electronic draft of the judge's judgment; we have a note which is agreed between counsel, but I do not think approved by the judge, of what she said on 8 October; and we have the court order which recites the various matters of clarification given on 10 October. 

13. Again, just to bring the process up to date, M was born, as I have indicated, on 16 October.  The mother was persuaded, as was the father, to agree to S.20 accommodation, and when she was able to be discharged from hospital on the following day, 17 October, she went to stay with foster carers, who, fortunately in this context, are the same carers who have the care of the older two children.  A week on, the mother indicated that she no longer agreed to S.20 accommodation, and thus it was on an emergency listing basis that the case came before Judge Penna on 23 October for a contested interim care order determination.  She made the interim care order on that day. 

14. With commendable speed, those acting for the mother contacted the Court of Appeal, directions were given, and the hearing was set up to take place today, 4 November, and for my part I am grateful to counsel and all those who assist them    and to Mr Heaney, solicitor advocate    for doing all they can to get the paperwork before this court.  Even with their best efforts, transmission had not achieved full receipt by my Lord and me by the time we sat this morning, but I think all are now satisfied that we have seen the relevant documentation.

15. The central focus of Mr Heaney's submissions on behalf of the mother is upon the judge's judgments, and it is necessary I am afraid to take some time explaining what the judge said about the injuries, because Mr Heaney's ultimate submission is that none of the findings that the judge made, even in the judgment as it came to be clarified on 8 and 10 October, amount to any findings of fact against his client, the mother, sufficient to underpin a finding that the interim care order threshold in S.38 of the Children Act 1989 was surpassed, and thus, he submits, the court had no jurisdiction to make an interim order in the case of M.

16. Turning first, therefore, to what the judge said in her electronic draft judgment.  First of all, so far as the injuries are concerned, she simply summarises those in the second paragraph in these terms:

" ... bruising to his knees and faint bruising to his upper body ... and multiple rib fractures which in this non mobile baby must have been inflicted upon him."

So far as the faint bruising to the upper body is concerned, the judge went on to find that that was not sinister and it played no further part in the proceedings.

17. In the course of a lengthy description of the evidence that she had heard that then follows, the judge recorded that the parents, and in particular in this case the father, described how he would from time to time put baby C on the child's tummy so as to try to stimulate movement of the neck and legs in a way that he had understood was appropriate, and a potential explanation for the bruising on the knees was that in some way they had become abrased through the child moving his own knees in the course of this "tummy time." 

18. Having described that lay evidence, the judge summarised the medical evidence of Dr Johnson, and in particular said this:

"The opinion he voiced was formed on the balance of probabilities, and on that balance his view was that C was showing signs of three different sets of injuries.  None of those injuries is more serious than another.  Each was a significant event.  The person inflicting the injuries would know they had caused harm to C, although not necessarily the nature of that harm.  It is possible that there were one or two events causing the injuries, but he was as confident as he could be that there were three."

Pausing there, I am bound to say for my part, and I think I speak for my Lord as well, that having read that reference, and finding no other more precise reference in the judge's judgment, I had assumed that there were only three fractures.  However, it is plain that all parties knew that the total was 12 and that the judge would have had the figure of 12 fractures in her mind, and the timing of them as I have described when she was talking about the fractures.

19. Moving forward in the judgment, the judge was able to exclude from the pool of perpetrators the grandmother, about whom she spoke positively.  The judge again in her analysis returned to Dr Johnson's evidence and she simply says this:

"C was taken to hospital and underwent X rays on 27 September, with no fractures being detected.  So the injuries occurred at some point in the next two months, and I accept Dr Johnson's view in relation to their timing as indicated in his report."

Again, the detail in Dr Johnson's report was not in the judge's judgment, that is all she says, and it was only during the course of submissions today that the clarity as to the periods of time and their close proximity has been made known to this court, but again obviously it was known to the judge when she made her judgment.

20. Drawing matters together the judge concluded her analysis in these terms:

"I am prepared to accept on the balance of probabilities that C may well have caused the faint bruises to his face by hitting himself.  I also accept the view volunteered by Ms Taylor that the bruises to C's knees could have been caused when he was lying prone when having 'tummy time' with his father by C drawing up his knees.  I bear in mind that C was a very windy baby and that when troubled by wind he would draw up his knees.  I also bear in mind that he was a lively and active little baby, which appears to me to fit with the bruises to the knees when tummy time was undertaken."

21. The judge went on to focus on the ribs.  She spoke positively about the parents' willingness to accept advice and act on it, and the readiness with which they went to the hospital as soon as the midwife had advised them to do that.  She continued:

"These actions do not speak of a desire to avoid confronting C's condition as soon as concern was expressed.  I cannot backtrack from that point and identify when I can be satisfied on the balance of probabilities that one or other parent knew C had been injured and closed their eyes to that fact.  These parents were tired.  Matters may well have not struck them which on reflection might now be understood to be related to the injuries.  C was a grumpy, whingey, windy baby.  In that context the sound of his cry may not have conveyed a message which was different to all the other messages he was regularly conveying."

Again, having referred to Dr Johnson's evidence, she continues:

"[The father] volunteered that he used to trip when negotiating his way round C's oxygen tubes.  I will not speculate about the precise causation of the fractures, but it strikes me that these tired parents would each at some time have been holding C and found themselves slipping.  Their natural reaction would be to grip him tightly.  I find that upon at least two and possibly three separate occasions the gripping force used by one or other of these parents would have been excessive, without that being intended.  C would have been upset as a result, but it was not so very unusual for him to be upset that the parent would have realised what a serious event had occurred.

"I therefore find that either one or both parents on two or three separate occasions caused the fractures to C's ribs without intending to do so and without realising what had occurred.  Each parent had suffered from lack of sleep and on top of that the mother had given birth not tremendously long before and could well have been emotionally unsteady.  There was no shortage of reasons why they may have been clumsy in their handling of C."

That is where the judgment concludes.

22. Pausing there, I ask rhetorically whether those findings would have supported a finding of the threshold criteria being satisfied in the case with respect to the two boys.  No criticism is made of the two parents so far as the child sustaining bruising, and an indication that the rib fractures could have occurred during slipping of the parents in a way that would not have alerted them to anything untoward occurring.  In that context, it is easy to understand why a number of the parties sought clarification from the judge.

23. Moving on then to that first clarification on 8 October.  From the note we have, the following points need rehearsing.  The judge first of all stated:

"The judgment does not progress beyond the injuries to C's ribs being caused as a result of mishandling at the time of an accident. 

"Having been pressed, it may assist if I state that I do not exclude the possibility of recklessness in the way the child was handled due to tiredness.  It is my view that either through an accident or reckless handling, excessive squeezing force was applied twice and quite possibly three times in the way C was handled by his parents.

"I am unable to differentiate between the parents.  It could have been either or both of them that handled in this way."

24. The judge then went on to look at the bruising on the knees and said this:

"The submissions made remind me that there was bruising not just to the middle of his knees but also to the side.  The side of his knees could not have been injured by drawing them up.  It must have been caused by excessive force by a adult hand.

"C would have been upset both when the rib fractures and when bruises occurred.  His upset in relation to the bruises would have been less extreme.  When his ribs were broken, he would have been very upset.  This would have lasted for some minutes.  A competent carer should have realised that what had happened went beyond every day whingeyness and his usual health challenges.  However, I do not find that these young tired parents deliberately closed their minds to what had happened.  They simply did not appreciate the significance of what had been caused and what they had done.  In that respect, their parenting skills were not perfect and it will be for the Local Authority to consider whether that deficiency is such as to be part of a basis for the threshold criteria in these proceedings."

That is the end of the note.

25. Finally it is necessary to recite some matters from the order on 10 October, where further clarification was given.  At paragraph 2, the judge says:

"In response to the request for clarification, the court indicated that in its judgment, the rib fractures to C occurred through his having been handled by either or both of his parents in a manner that was either accidental or reckless through tiredness."

Then below that at paragraph 4:

"The court indicated that when the ribs were broken, C would have been very upset, and such upset would have lasted for some minutes.  A competent carer should have realised that what had happened went beyond the every day 'whingeyness' that a baby facing health challenges might face."

Then this at 6 and 7:

"The court found that neither parent has given an account of an accident or accidents which could explain the causation of the rib fractures.

"The court indicated that in its judgment the bruising to the lateral area of C's knees must have been caused by excessive force being applied to the area by an adult hand.  Neither parent has offered an explanation for that area of injury."

26. So on the basis of those findings, Mr Heaney was able to make submissions to the same judge, Judge Penna, on 23 October, when the question of the interim threshold for M was considered.  It is not necessary I think in this judgment to recite S.38, which sets out the interim threshold.  In simple terms, the court had to find there were reasonable grounds for believing that the substantive threshold in S.31 would be made out.  That said, however, the factual basis so far as M's short life is concerned on this point was well established, because the fact finding process was at that stage complete.

27. Mr Heaney's submission was first of all that in terms of inflicting the injury, the judge had not identified a single perpetrator, it was a pool of perpetrators with the two parents as the only identified members of that pool.  Each, therefore, was found to be someone about whom there was a "real possibility" that they were the perpetrator, but there had not been a finding that, in the mother's case, she had caused any of the injuries. 

28. Secondly, Mr Heaney's submission was that the findings of other parental culpability fell short of findings of fact that would support a conclusion that M was likely to suffer significant harm in the mother's care, simply because of the quality of the findings that I have described and the words used by the judge in describing whether or not the other parent who had not caused injury would or would not know that anything untoward had occurred.

29. The judge dealt with these matters and gave a short ex tempore judgment on the 23 October.  She had the inestimable benefit of being the same judge who had heard all the evidence and had made the findings at the fact finding process.  Had another judge taken on this case, the difficulties arising from the lack of clarity of her initial judgments would have been acute.  But the judge did add to our knowledge of her view of the facts in this way at paragraph 5 of her ex tempore judgment:

"At the time of the fact finding exercise I was not able to reach a clear conclusion about the state of knowledge of the parents in regards to the injuries underwent and I was not confident of their ability to distinguish general 'whingeyness' against distress resulting from inflicted injury although the perpetrator must have been aware of that they were causing distress.  On at least three separate occasions, C was squeezed so tightly that he suffered fractures to his ribs."

It seems to me that the judge there has inflated her previous findings by saying that the perpetrator of the injuries "must" have been aware that they were causing distress.

30. Moving on, the judge deals with the point at the centre of the case, the Re J point, in this way at paragraphs 8 and 9:

"The mother argues the case of Re S B, which makes it clear that the fact that someone in the pool of potential perpetrators cannot be carried forward from that situation to a further situation to have threshold finding in respect of a further child.  That case is followed by Re J which makes it clear that a case where there is a single issue of who is the perpetrator is to be distinguished from the case where a pool is to be considered.  C's injury was the issue which led to the proceedings, not a single issue.  The court is looking at a course of conduct over a period of time resulting in a number of injuries and a household where the facts are significant injury was not picked up by the non injuring parents and referred to professionals.

"Given those circumstances, it is clear to me that there are reasonable grounds for believing that M would be at risk of significant harm attributable to the lack of reasonable parental care were she entrusted to the care of the mother at present, because the mother's role within what happened to C does not mean that she is not entirely without criticism in that scenario."

Here, it seems to me, for the first time, the judge is more plain as to the culpability of the non perpetrating parent.  The judge says in terms that the mother:

" ... did not pick up the distress which he had suffered and realise how serious it was.  She did not realise what it was telling her."

31. The judge also, albeit in short terms, distinguishes the present case from the case of Re S B, the single issue case, and the observations made with regard to that by Baroness Hale in Re J.  In paragraph 8 it seems to me that the judge is plainly saying that this is not a single issue case, it is the case of a course of conduct over a period of time resulting in a number of injuries in a household where the injuries were not picked up by the non injuring parent and referred to professionals, and on that basis the interim threshold was found.

32. Turning to consider the merits of this appeal, my initial approach to this case was to be in substantial sympathy with the arguments put forward on behalf of the mother.  Despite the great respect I have for this judge, I am bound to say she has neither helped herself, nor, more particularly, the family and the professionals, and then in turn this court, in explaining the evidence that she had heard and the findings that she came to make.  It is surprising in a judgment given in family proceedings where unchallenged evidence from a pediatrician describes "fingertip bruising" to a young baby's knees that that phrase does not surface within the judgment.  It is also surprising that the scale of the rib fractures, namely some 12 in all, and spread as they were in fairly close proximity but in groups, is not more precisely particularised by the judge.

33. Those two factors separately, the character of the bruising and the grouping of the rib fractures, are significant, and therefore should have been described by the judge in her judgment.  Taken together, they represent no fewer than 14 separate sites of injuries, and three or four occasions when some form of unwarranted and excessive force was used by the parents, all of this taking place in a small household, under stress, in the circumstances described by the judge.  Although those circumstances come out from the judgment, the character of the injuries, as I have indicated, does not.

34. Also, as will be plain from the quotations I have made, the judge's original judgment to my mind really raises an open question of whether she was finding any culpable behaviour in relation to the parents' care of young C.  The judge goes on to provide clarification, but it is more than that.  In relation to the bruising to the knee, in my reading of the papers, the judge changes her conclusion.  She moves from a benign, innocent interpretation accepted by her, that the baby may have in some way have abrased his knees himself through movement during "tummy time", to concluding, as she does in the note of the clarification on 8 October, that this was an injury to the knees which "must have been caused by excessive force by an adult hand". 

35.  Again, so far as the culpability of the two parents, if they were not aware of the injuries themselves, is concerned, that develops first of all from the neutral position as it was at the conclusion of the first judgment to the suggestion that "a competent carer" should have realised what was happening, the implication being that these parents were less than "competent", and moving on to finding that neither parent could give an explanation for the causation of the bruising or the rib fractures to finally the judge's stated conclusions on 23 October, to which I have made reference, in which she to my eyes for the first time expressly says that she finds that the mother was culpable in that she failed to pick matters up and act upon and report them.

36. As the hearing has developed, one has moved from the understanding that I had at the beginning of the process, which is of a more limited number of injuries, which did not include fingertip bruising or the number of fractures that we have, to being struck by the scale of the injuries, but then moving on in my understanding back to the judge's description of her view of these matters, having heard the parents give evidence, which is to provide a context within which these two parents could have behaved in a way that led to their child being injured but not to attribute any blame to them in terms of them directly inflicting injury upon the child.  So far as that is concerned, her findings seem to remain that the perpetrator may well not have realised that he or she was inflicting harm at the time, and was not acting in a way anything other than being reckless, which would be culpable, or accidental through tiredness. 

37. So as this hearing has developed, the notion that, if they inflicted the injuries, the parents might have been ignorant of doing so, has led me to consider the role of the parent who failed to notice what was going on.  That parent failed to spot the bruising, to question how this child could have a bruise in the way that the neonatal midwife did, to notice the crying or uneasiness of the child after the rib fractures, to notice what the other partner was doing; their role has actually achieved greater prominence in my mind, and thus it seems to me that the judge moved to greater clarity about that matter in her judgment.

38. I need to draw this judgment to a conclusion.  Mr Heaney was entirely right to seek to raise this point, given the unhelpful lack of clarity in the judge's judgment.  Equally, the judge herself gave permission to appeal, and that is why the matter is before us today, but having now gone into the detail in the way that I have described, I am entirely satisfied that this is not a "one issue" case that falls neatly or squarely, or at all, within the narrow band of cases described in the law reports in Re S B and Re J.  This is a case with a wider context, a period of some four, five or six weeks with this small family living in difficult circumstances with an unhappy, poorly child, with greater demands on them as parents than would normally be the case, and in which a number of quite significant injuries were sustained by their child. 

39. On that basis, the judge was entitled, in my view, to consider that the S.38 injury threshold was satisfied, and given that that is the basis upon which the case was squarely put, I would dismiss the appeal.

40. Before leaving the case, however, I would repeat the observation that I made during the course of the latter part of this hearing.  The lawyers rightly have concentrated on this important legal argument at this stage.  The case came before Judge Penna with respect to this young baby on an urgent basis, and an interim care order was made.  Normally in these cases the focus is not upon whether an interim care order is to be made, but upon the quality of the care plan and what is to be done to try to support the mother and allow her to have as much time as possible with the baby, both because of the general thrust that European Convention law requires, but also because experience shows that in cases such as these    particularly I would say with findings such as these    it does not follow as night follows day that the child will be permanently separated from the mother.  Indeed, rehabilitation must be a prospect, and so the interim care plan, how M is to be looked after, how much time she spends with her mother and her father in this interim period, is likely to be of crucial importance to her welfare.

41. Finally this in that regard: the mother may feel she and her lawyers have pushed forward and she has now come to court and she has in some way lost the hearing in London, and that is an inevitable outcome of my decision to dismiss the appeal.  But she should not see it in that way.  She is playing a long game.  She is M's mother and she should build bridges, if necessary, with the social workers, work with them, and co operate with whatever they require in seeing what she can do to be supported in having M back in her care.  So this is now a time for people to draw back from legal argument and get on with looking at M's welfare and working together to come up with the best plan for her going forward.

That is my judgment.


42. At the end of no less than four consecutive judgments in this case, the judge came to the conclusion about the mother that even if she was not the perpetrator of the relevant injuries, she did not pick up the distress which this baby had suffered or realise how serious it was. She, the mother, did not realise what the baby was telling her. 

43. When this conclusion is set against the facts that no less than 14 injuries    12 of which were serious    occurred to this very young and vulnerable baby over a short period of time on no less than four occasions, it seems to me quite impossible for this court to conclude that the judge's final conclusion, as I have set it out, was wrong.