Neutral Citation Number: [2011] EWHC 2754 (Fam)
Case No: AL11C00030
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/11/2011
Before :

THE HONOURABLE MR JUSTICE PETER JACKSON
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Between :

	A London Borough	Applicant	
	- and -		
	O (1)

A (2)

C (3)
(by his Children’s Guardian Carmel Shepherd)

J (4)
(by his Children’s Guardian Jaswin Kaur)

Respondents	
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Alison Grief and Michael Edwards (instructed by local authority solicitors) for the Applicant
Jo Delahunty QC and Judith Mayhew (instructed by Bretherton Law) for the First Respondent mother
Frances Oldham QC and Kate Tompkins (instructed by Tilley and Co.) for the Second Respondent father
Alex Verdan QC and Giles Bain (instructed by Lawrence and Co) for the Third Respondent brother
Alison Russell QC (instructed by Powell-Spencer and Co) for the Fourth Respondent brother
Hearing dates: 24 October to 11 November 2011
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JUDGMENT: Re A

Mr Justice Peter Jackson:
Index

1	Introduction

5	Narrative

26	The hearing

28	The law

30	Incident on 23 May 2010
30	M’s account
34	F’s account

35	Events of 11 February 2011
35	M’s account
54	F’s account
66	Electronic information 
74	The paramedics
80	At hospital
91	The police investigation

101	The injuries to B

105	Medical opinion
105	B’s general health
107	The bruise
109	Degree of force
113	Mechanism
129	Timing 

133	Evidence about C

143	The parties’ cases

149	Findings
149	B’s injuries
155	C’s behaviour and abilities
157	The independent evidence
163	The parents’ evidence
170	Responsibility for B’s injuries
181	M’s response 
	
184	The Coroner’s inquest

188	Conclusion

Introduction

1.	This judgment concerns the death of B, born on 28 January 2011.  He died in hospital in the early hours of 12 February 2011 as a result of severe head injuries sustained at home on the night of 11 February.  He was two weeks old.  

2.	This has been a fact-finding hearing, whose conclusions are relevant to the welfare of the two children that are the subject of these proceedings:
C	(5)		B’s brother 		17 August 2006 		
J	(9 months) 	B’s identical twin 	28 January 2011 
	 
3.	The findings also affect arrangements for a child that is expected in January 2012.

4.	The injuries to B could only have been caused by one or both of his parents (to whom I shall refer as M and F) or by C, who was then aged 4½.  

Narrative 

5.	M is aged 26 and is a British citizen.  F is now 35 and came to England in 1999 on a visitor’s visa.  He has no valid leave to remain here, his last application having been refused in September 2011. 

6.	The parents met in 2005 and C was born on 17 August 2006.  Shortly before the birth, M obtained a small first floor flat, consisting of four rooms: a bedroom, a bathroom, a living room and a kitchen.  F maintained his own address but was a frequent presence in the home.  

7.	In 2007, M and F went through a traditional marriage ceremony.

8.	In 2009, M became pregnant again.  The pregnancy was unplanned and M decided to have an abortion, which was performed in December 2009.  M told a midwife that her decision was made because she was concerned F would leave her as he had done previously and that she would not be able to cope on her own. 

9.	In September 2009, C started at nursery.  In April 2010, he was diagnosed as having an autistic spectrum disorder.  In September 2010 he started at school.
    
10.	In May 2010, M became pregnant with the twins.  

11.	On 23 May 2010 the police were called to the flat following an incident of domestic violence, to which I refer below.

12.	In January 2011, F formally moved into the family home, although this was not much of a change as he was already spending so much time there.   

13.	B and J were identical twins, born on 28 January 2011 by Caesarean section.  They were both healthy and were discharged home with M on 31 January. 

14.	On 3 February, the parents and children went out by car to register the twins’ birth and for M to visit the housing department to pursue her application.  Apart from that trip, which M found difficult, she and the twins remained in the flat until 11 February.

15.	On the night of 11 February, B was injured, and on the morning of 12 February he died.

16.	C and J were then placed with a paternal aunt.  M also lived there for a short time, with the children being under the aunt’s constant supervision. 

17.	On 18 February, the local authority (‘the LA’) began care proceedings in relation to C and J and these were immediately transferred to the High Court.   I gave directions on 25 February, 10 June and 8 July.

18.	The LA had concluded that it was not realistic to expect the aunt to supervise M’s contact with the children and on 25 February, M moved out and returned to her own flat, where she and F have lived since.

19.	The parents have had very regular supervised contact.

20.	On 18 May, the parents were married in a civil ceremony.  Permission, necessary because of F’s immigration status, had been granted by the Home Office on 23 March. 

21.	On 24 June the children moved to live with foster parents after the demands of looking after them as well as her own children proved too much for the aunt.

22.	On 29 July, B’s funeral took place.

23.	On 3 August a Coroner’s inquest was held, following which the police investigation came to an end.  I refer to the inquest below.  

24.	Medical evidence was gathered by the police investigation and for the purpose of these proceedings.  An experts’ meeting took place on 3 October.

25.	In March 2011, M became pregnant again; the baby is due in early January 2012.

The hearing

26.	During the course of 13 days, I read the relevant documents contained in five files and heard evidence from the following witnesses.  Where identified by full name, they gave evidence as expert witnesses.

Doctors 
Dr N, trainee paediatrician
Dr R, consultant paediatrician
Professor Anthony Risdon, consultant forensic paediatric pathologist 
Dr Safa Al-Sarraj, consultant neuropathologist
Dr John McCarthy, ophthalmic pathologist
Dr Patrick Cartlidge, consultant paediatrician
Mr Peter Richards, consultant paediatric neurosurgeon

Ambulance 
Mr T, first response unit
Ms A, ambulance crew

Police
PC B
TDC C 
DS A
DS K
DS L

School
Ms P, C’s special needs coordinator

Social worker
Ms S 

I also heard evidence from both parents.

27.	In the circumstances, C and J have been represented by different Guardians. 

The law

28.	In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children)(Care Proceedings: Standard of Proof) [2008] UKHL 35.  Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.

29.	Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.

Incident on 23 May 2010

The mother’s account

30.	The police records describe a call made by a neighbour of the parents.  Officers attended at 23.25.  M told them that F had just driven away with C and that he had beaten her up and thrown her around.  She thought he was drunk as she smelled alcohol on his breath.  They had been having a heated argument about her wish to return to work.  F had grabbed her hair and pulled it.  He then grabbed her by the throat and lifted her off her chair.  She then hit out at him in self-defence.  M said that she had wanted to separate four times in six years and that ‘this is the worst it has ever been’.  F had not returned with C two hours later. 

31.	However, on 4 June 2010, when the police spoke again to M, she said C was safe and well, that it had never happened before and that she didn’t want any police involvement.  There had been no assault, she was happy to have F at her home, and she would not make a statement.  The police took no further action.

32.	In her statement in these proceedings, made in March 2011, M says that she does not remember all the details, but does recall an argument about a water bill.  Her main memory is that during the course of the argument F grabbed her from behind by her hair and yanked her head backwards and forwards.  She retaliated by pulling his top and scratching his chest.  There was a lot of screaming and shouting.  She says that she was angry with F and that there is a possibility that she might have exaggerated what happened when speaking to the police.

33.	In her evidence during the hearing, M appeared to have difficulty in remembering the incident.  She could recall her hair being pulled, but not being yanked backwards and forwards, nor being grabbed by the throat and lifted off the chair.  Asked about F’s denial of violence in his statement, she said that he might not remember the incident.  She did not consider that she had been assaulted because she had not been injured.

The father’s account

34.	F says that the incident was nothing like as serious as M describes.  There was shouting but he did not pull her hair or assault her in any way.  He left with C to avoid the argument escalating.

Events of 11 February 2011

The mother’s account

35.	In the morning, the twins woke at 05.30 or 06.00, and she fed them.  C then got up and F got him ready and walked him to his school nearby.  F then collected his car and went out to help someone fix his car.  

36.	She spent the morning at home with the twins.  At about noon C was returned from school by a teaching assistant.  The twins were awake and C was watching television.  She gave him his lunch and fed the twins.

37.	At about 15.00, the health visitor came to collect something that she had left inside one of the babies’ Red Books and M went outside to give it to her as she could not park.  Then they all had a nap in the living room.  It was unusual for C to have an afternoon sleep, but he may do if he is sickening for something.  She woke up because the twins were waking.  When C woke, he was scratching his stomach.  M checked him and suspected that he had chicken pox.  At 18.31 (timed by her mobile phone bill) she called F to ask him to buy calamine lotion and Piriton on his way home.  He walked to the pharmacy and she spoke to the pharmacist during the course of the call.  It was also during this call that F told her that he hurt his eye at work.

38.	M also called the community midwife service and eventually spoke to a paediatrician who told her that the twins should have immunity from chicken pox for about 6 months.  

39.	M says that she fed the twins and put them in their chairs at around 19.30.  The feed was normal and she had no concerns about them.  The twins were usually bathed in the living room, but they had been bathed the day before and were not due a bath that day.

40.	The twins were asleep in their chairs by the time F returned at about 20.00.  She believes that she clipped them in as a matter of habit, and snapped the tray down.  C was awake when F returned.  She was watching Eastenders.

41.	When F returned, M put the lotion on C and looked at F’s eye.  He would not agree to go to hospital.  As far as she was concerned, F did not go out again that evening. 

42.	She made C and F a meal. She also made up four bottles and put them in the fridge.  She then changed out of her dressing gown.  She wanted to see how she would manage with a trip outdoors.  Before leaving, she told F to watch the children closely, as she had seen C put a blanket on one of the twins earlier on.

43.	At about 22.15, she left the flat to go to Tesco.  She says that the twins were asleep in their swing chairs when she left and that C was in his sleeping suit playing or watching TV.  He was not wearing his glasses.  F had taken off his clothes and was watching TV and using the computer, perhaps listening to the radio.  She had not used the computer herself that day.  C’s normal bedtime was nine o'clock, but he was later that night because of his nap.  He was not tired when she left.  He is a very good sleeper and not a child who wakes in the night after going to sleep.  She thought he might go to sleep while she was away and the twins would wake up at some point, perhaps in about half an hour.  She did not expect F would go to sleep, but wondered whether his injury and the drink at dinner might have had a part to play.

44.	M described her trip to Tesco and her return to the flat at about 23.40.  In evidence she said:

I was outside the door of the flat when I heard crying. I was standing in the hall.  I put my bags down and opened the door with my key.  The door to the living room and bedroom were both half open.  I heard crying and I saw my babies on the floor. I looked at the swings but they were empty.  I thought I must be hallucinating.  Only J was crying.  B wasn't crying.  Then I saw C standing inside the living room door a bit to the left.  I picked up B.  I was screaming for F because I didn't understand.  I was not getting a response.  I walked towards the bedroom and he kind of came out.  We both like "what happened?"  He looked like he had just woken and didn't know what I was talking about.  I decided to call the ambulance, it took forever.  

45.	She described the position of the children, lying on their backs with B nearer the door with his head away from her and J lying in a line in the same way with his feet just beyond B's head.  C then walked to the left of them and stood over them.  He was wearing his suit but with the bottom half hanging loose behind him.  He was quite calm.  The twins were in their sleeping suits as before.  She said "look at B's head" or "look at the babies" and C said "look at the babies".

46.	She did not enter the bedroom or shake F’s legs in the way he describes.  He did not see her pick B up and she had not said "we're in trouble".  Asked about F’s account, she said that it may be his way of talking. 

47.	She called the ambulance within a minute of entering the flat.

48.	She said that a number of things had been moved from the time of her departure to the time the photographs were taken.  Items such as blankets, pillows and a carrier bag had been pushed from the sofa onto the floor.  Some biscuits and crumbs were on the floor.  Some baby care items had been taken off the table and were lying on the floor.  Two candles that she thought had been on the kitchen window ledge were on the floor, with fragments of red wax scattered about.  Washing had been pulled from the washing machine on the kitchen floor. The patch on the carpet was not wet, but was an old oil stain caused by C dropping a large bottle of cooking oil some time before.

49.	She confirmed that C loved having the twins around, and that there was no concern about his behaviour.   He is a caring and affectionate little boy, and had never been violent.  She had not seen him undo the harnesses on the swings, but he had opened the buckle on their car seat on the one occasion that they went out.  He did this by pressing a button on the front.  He cannot use the computer and is not allowed to touch it.  She described C climbing onto the kitchen work surface and burning himself on one occasion.

50.	She had no idea how the twins came to be on the floor, and (she said) nor did F.  She assumes that it was C because he was there when she returned.  She denied that there had been an argument between F and herself on the night of B’s death.  Everything was fine when she left.  She had no reason to worry about leaving the children in F’s care.  She would not protect F if she knew he had done something.  She had not done anything to B, nor seen anything being done to him.  She was unclear about whether or not she had mentioned the possibility of C banging B against a wall to Mr T or anyone else.  She didn’t understand why F had slept through and hadn’t heard anything.    She accepted that if he is lying about being asleep, then it meant that he knows something about how B was injured.  She had told the Coroner that it was not fair to C to decide that he had harmed his brother.  She relied on this court to help her to find out what had happened. 

51.	She said that she had been happy to become pregnant because she felt very empty after losing B.  She married F because the licence had been applied for before the twins were born and was only valid for three months.  Asked how she could have married F when B’s death was unexplained, she said that what F had told her was all that she had.  She did not know the medical evidence at that time.  She considered that if it was shown that F "had a hand in it" they could separate.

52.	She accepted that she had not told the full truth to her GP in 2009 in order to make sure that he referred her for a termination.  She had told him that she and F had been separated at that time.  However, she said that they had split up at times after arguments.

53.	She said that the issue for her was whether it was her son or her husband who had injured B.  When it was put her that she might have caused the injury, she said that this might be a possibility for others, but not for her.

The father’s account

54.	F can understand and speak basic English but gave evidence through an interpreter. 

55.	He got up by 09.00 and dropped C at school.  While he was doing that he had a call from a friend (a Mr A) who needed work done on his car.  He returned home and drove to his workplace, arriving at about 10.00.  Mr A did not in fact arrive until 16.00 or 17.00 and F waited for him at the garage.  When the car arrived he worked on changing the brake pads and was accidentally hit on the left eyebrow by a spanner while trying to loosen a nut, an event witnessed by Mr A.  He sustained a cut which bled badly.  He put TCP on it.  He was seen at hospital after B died and was noted to have a superficial laceration requiring no treatment.

56.	Mr A was to have been a witness but at the last moment the other parties and the court were informed that he would not be attending.  It was said that he had gone abroad.
  
57.	F says that he was at his workplace when he received M’s call at 18.31.  He confirmed that he had gone to the pharmacy as she had described.  He arrived at the flat at about 20.00.  M told him that he should go to hospital for the cut over his eye, but he refused.  He took off his overalls.  The twins were asleep in their swings.  C was in the living room.  His dinner was ready and he ate it sitting at the computer table.  He drank a bottle of Guinness from the fridge.  He was listening to the radio on the computer.  Before M left, she told him to watch out because C had put a blanket on one of the twins and because he had chicken pox.  When M left, he was finishing his dinner.  He knew that the twins’ bottles were in the fridge and that they were likely to need feeding while M was out.  He intended to have a bath when M returned.

58.	After no more than half an hour or so he took C to the bedroom.  He turned on the television.  He put C into the bed next to the wall and sat down on the opposite corner at the foot of the bed, which appears to be of the standard 4’6” width.  After a couple of minutes of tossing around, C went to sleep.

59.	F says that he then leant across the bed on his right elbow (and so towards C) and fell asleep himself.   

60.	The next F knew was that he was woken by M.  In his statement he describes her doing this by shaking his legs, but in his evidence he said this:

All I remember is my wife shouting and screaming.  I thought my wife was shaking me but I cannot recall exactly.  My wife asked me to come and see what C has done to the twins.  I started shouting "Oh my God!" at the top of my voice.  I went to the living room and saw that my wife had left her shopping.  She picked up B, I picked up J.  She started screaming.  I advised her to calm down.  I saw her pick B up, checking him, and saw his swollen head.  C was standing there quietly.  I was confused.  I can't recollect exactly what happened.  I was thinking "I should have kept an eye on the children, that's why this has happened".  She picked up the phone and called the ambulance because he was not breathing properly.

61.	F’s description of the twins’ positions on the floor differed from M’s.  He said he didn’t hear J crying at any point.  When he heard M’s shouts he was panicking, shaking.

62.	F says that he saw the ambulance light flashing through the window and went down to get Mr T.  He had difficulty understanding what Mr T was saying.  He did not say anything about the child being thrown against the wall.  He told him that he should hurry and that his son was dying.  

63.	He followed the ambulance to hospital about 20 minutes later, taking C with him.

64.	On further questioning, F agreed that C is a normal loving child.  Although his statement said that he had seen C opening the clips on the twins' swing seats and trying to undo them all the time, he had never seen this.  He had only seen C opening the buckle on his own car seat on the trip to the registry office.  He said that he was trying to say that C could open the twins' harnesses easily.  He said C could put on the computer at any time.  He could not say who had started the computer at 22.54.  It could have been C.

65.	He denied harming B and still feels pain at his loss.  He thanks God that J is alive.  He has never had any sympathy from anyone for his son’s death.  It is very painful that this happened after his wife had left the children with him.  He is deeply sorry for what happened.  If his wife had not come back, things might have got worse.  He rejected the scenario that he had caused the injuries to B by accident.  You could not put such young babies on the floor.  It must have been an accident involving C dropping B on to the floor.  Asked why he was sure it must have been C, and not M, who would have had the opportunity to cause the injury while he was asleep, he said it was because he trusted her.  

Electronic information

66.	An automatic number plate recognition (ANPR) search showed F’s car driving at 18.00 at a major junction about 10-15 minutes away from the family home, which F is likely to have passed on his way home.  The search showed M’s car driving at the same location (she would likely have passed the junction on her way to and from Tesco).  The timings were given as 20.16 and 21.16.  The car was not seen at any later time.  I refer to this evidence below.

67.	The family computer, which was in the living room, was examined by Dr G, a forensic computing specialist to establish what activity had taken place between 20.00 and midnight on 11 February.  

68.	At 20.39 the computer was switched on and there was internet activity until 22.23, at which point the computer (which enters a ‘sleep’ state after 20 minutes without use) entered a ‘sleep’ state.  

69.	At 22.27 M used an ATM machine to withdraw £10 at Tesco.

70.	At 22.54 computer use resumed.  The computer was roused from sleep by someone touching a key on the keyboard, or pressing the ‘on’ button briefly. 

71.	At 23.11 computer use ended and the computer entered ‘sleep’ state 20 minutes later.     

72.	At 23.15 M paid for goods at the Tesco checkout.  She had been seen on CCTV entering and leaving the store.

73.	At 23.21 M paid for petrol at Tesco.

The paramedics

74.	M’s ambulance call was at 23.41.  She told the operator that she had gone out shopping, leaving the children with F, and that when she came back the twins were on the floor: "it seems that my toddler has been throwing them around".  She thought F had fallen asleep and she assumed that C had put the babies on the ground because he had been standing over them when she returned.  She could not ask C what had happened because he is autistic.  B had a head injury and was not breathing normally.  

75.	At 23.43 a CAD message was forwarded by the operator to Mr T (first response unit).  The message on his screen read "Mum went shopping for an hour – left husband with children – came back and found twins on floor - ?autistic toddler threw them on floor". 

76.	At 23.48 Mr T arrived and saw F waiting outside the flat.  He says that he asked F what had happened and that F said: "my son threw my baby against the wall, what for I don't know".  Mr T had to ask three times because of difficulty in understanding F.  

77.	Mr T then went upstairs and found M holding B.  He says that she told him that she had come back from shopping and that her four-year-old had thrown the baby against the wall.  He said at first that the room was pitch-black, but that he could see that B was cyanosed.  On further questioning, Mr T accepted that his police statement did not accurately record the CAD message (which made no mention of a wall), that there was a possibility that he had misunderstood F, that the room may have been lit, and that when talking to M his attention had naturally been on B, who was extremely unwell. 

78.	At 23.53, fragments of the conversation in the flat were recorded in the 999 call.  An enhanced transcription shows M telling Mr T that she had gone shopping and left the twins with F, and that when she came back they were both on the floor and that it seemed like the toddler had thrown B around.

79.	At 23.57 the ambulance arrived and took M and the twins to hospital.  F and C followed in F’s car.  In the ambulance M told Ms A that she came home and found both babies lying on their backs.

At hospital

80.	The ambulance arrived at 00.13 on 12 February.  PC B was present when the ambulance arrived.  B was received by Dr N.  Mr T handed over to Dr N, explaining what he had seen and heard at the home address. 

81.	At 01.15, a CT scan revealed severe skull fractures, with the brain herniating out of the right sided fracture.  

82.	At 01.30 the consultant paediatrician, Dr R, arrived.  She noted that B’s head circumference was rapidly and visibly increasing. 

83.	About half an hour after arrival, when initial assessment of B had taken place, Dr N spoke to M and asked her what had happened.  Dr N’s notes, made up several hours later, record this: “Mum thinks it could have been the older sibling who could have hit the baby’s head on the wall.”  Dr N was at first confident that M had said this to her, but on further questioning she explained that the conversation took place in the room where B was being treated and that she now has no independent memory and relies on her notes.  She believed that M had spoken of a wall or a brick wall, and did not think she had mixed up the two accounts given to her by Mr T and by M, but she could not be sure about this.  Further, Dr N is recorded as telling a meeting on 16 February that M had confirmed what she had told the ambulance crew and again said that C had "swung the baby against a brick wall", but she could not now remember whether she had used these words or not.  

84.	PC B stayed with M at hospital for about an hour.  During that time M told her that she had gone out for about an hour and on returning found both babies on the floor of the living room.  F had been in the bedroom asleep.  The 4 year old son was in the living room with the babies.  F had had an injury to his head earlier in the day.  M did not say anything about B being thrown against a wall.  Had she done so, PC B would have noted it.  She felt that C’s behaviour was strange, in that he had no regard to anything but attracting his parents’ attention.

85.	At 01.30, M was also spoken to by TDC C.  M said that on her return she saw the twins lying on the floor, close to each other, about 3 metres away from the chairs.  J was crying but B was not.  M said that C was standing over the twins, saying "look at the babies".  M said she believed that C had thrown them there and that she thought this because C was the only one there and F was not in the room.  When she shouted for him he did not respond and when she walked towards the bedroom she met him coming out.  He had been sleeping and had just woken up.  TDC C confirmed that M had not been speaking of C in a blaming way or describing him as being violent, nor had she mentioned a wall, or stamping or swinging.

86.	At 01.30, F was spoken to at hospital by DS A.  He said that before M left, she had advised him to keep an eye on C, who had a fascination with the twins.  F then went into the bedroom with C and put him in the bed.  He covered him with a quilt and C then fell asleep.  F then lay next to him and fell asleep too.  The next thing he knew was being woken by M, who was shaking him and screaming for him to wake up.  The quilt was on the floor and C was not lying next to him any more.  F described going into the lounge and finding the babies on the floor.  He picked up J and M picked up B.  She rang 999.   

87.	DS A noted that C’s behaviour was unusual for a 4-year-old at that time of night in that he was hyperactive and noisy and not apparently tired.  He was fixated with F’s mobile phone and at one point climbed up the back of F’s chair to try and get it back.

88.	Arrangements were being made to transfer B to a specialist paediatric unit, but he died before this could take place.  He was pronounced dead at 03.25.

89.	At 03.05 a bruise was seen on B’s chest, which had not been visible on careful examination at 01.30.  

90.	C and J were placed with their aunt, who had arrived at the hospital earlier.

The police investigation

91.	At 03.15, TDC C and DS A inspected the family home, which had been sealed off.

92.	At sometime after 05.30, the parents were spoken to by DS K.  F said that C had fallen asleep first and that he himself had then fallen asleep on the bed.  M had then woken him up, saying "look what C has done".  M told DS K that C would look at and touch and kiss the twins, but would not hurt them.  

93.	At 07.30, M was formally interviewed by police at the police station.  She said that she had no idea where C’s behaviour had come from.  She described leaving F watching television, with C awake and the twins asleep.  They were fastened into their chairs with "a lock kind of mechanism".  When she returned, she heard crying.  At first she was not surprised, thinking that they were ready for a feed.  She then saw them on the living room floor, somewhere they had never been placed before.  C was looking over them.  She could see that something was wrong with B, so she picked him up and saw that he had a big swelling on his head.  She shouted for F and went towards the bedroom and he poked his head out of the door.  He said that he and C had been sleeping and he did not understand what had happened.  She called for an ambulance.  Washing had been pulled out of the washing machine in the kitchen.  

94.	At 08.44, F was formally interviewed by police at the police station.  He was not interviewed as a suspect and managed to give his account despite the lack of an interpreter.  He described the events of the day and explained the injury to his eyebrow and the visit to the pharmacist.  When M went out she told him to keep his eye on C.  He described watching C go to sleep and going to sleep himself, before being woken by M.  He saw the twins on the floor and thought "Oh, what happened?"  The ambulance was called.

95.	Between 08.00 and 10.50, the flat was searched and forensically examined by the crime scene manager.  No sign of disturbance to any walls was seen.  Hemastix tests at various locations were negative for any signs of blood.  No areas of impact were identified, nor was there any sign of the scene having been cleaned up. 

96.	During this period a video film of the property was made and still photographs were created from the video.  

97.	M was interviewed again on 21 March.  She described events earlier in the day.  She closely repeated her account of the scene when she returned to the flat.  Everything was in a mess, not how she had left it.  When asked about the sightings of her car earlier in the evening, she said that F may have gone out to buy a drink to have with his dinner.  She was shown one of the chairs.  She says that the twins usually have their harnesses on and that she was sure they did that night.  C had tried to take the twins out of their seats before.  When she left, F was sitting by the computer and watching television.  She had kept an open mind as to whether it was F or C that had injured B.

98.	F was interviewed under caution on 27 April.   A solicitor and an interpreter were present.  He gave a similar account to that given in his earlier interview.  He said he couldn't understand how it had happened.  He strongly denied harming B.  He described how strong C is and said that he believed that C did it.  

99.	DS L described the overall investigation.  These were significant aspects of his evidence:

•	It seems that there was no significant further examination of the flat after the morning of 12 February.  DS L accepted that his evidence to the Coroner, which was to the effect that the walls had been carefully forensically examined, might have somewhat overstated matters.

•	He felt that the automatic number plate recognition results that showed M’s car as being driven at 20.16 and 21.16 were possibly anomalous.  Some comment had been made to him by the operators about the accuracy of the system generally, though not to the extent of being hours out.  The results would better fit with M’s known journey to Tesco two hours later, and it was noted that there had been no sighting of her on that later occasion.

•	He said that M told him that she could not remember if the twins had been strapped into their chairs

•	Both parents were co-operative with inquiries.  Neither spoke in a blaming way about C.

•	A small number of neighbours were spoken to, but none had heard anything unusual on the evening in question.

•	The conclusion of the police inquiry was that M could be excluded.  Neither F nor C could be excluded, but in the context of a criminal investigation there was insufficient evidence to prove it was one or the other.

100.	Synthesising this information, a reliable working timeline on the evening of 11 February is as follows:

20.00	Approximate time of F return from work

20.39	Computer switched on

22.03	End of computer use (enters sleep mode 22.23)

22.00-22.15	M departure from flat (probably about 22.10)

22.27	M uses Tesco ATM

22.54	Computer awakened from sleep mode

23.11	Computer active again

23.31	Computer re-enters sleep mode

23.15	M pays at Tesco checkout

23.21	M pays for petrol

23.41	M makes 999 call

23.48	First response unit arrives

23.53	999 call ends 

23.57	Ambulance arrives

00.13	Ambulance reaches hospital

The injuries to B

101.	On 16 February, a post-mortem examination was performed by Dr W, under the supervision of Professor Risdon, revealing the following injuries:

•	Bilateral diastatic (i.e. separated) skull fractures

•	Significant soft tissue scalp swelling

•	A large haematoma under the scalp

•	Subdural haemorrhage

•	Haemorrhage around the optic nerves

•	A roughly circular bruise 4 x 3cm over the sternum

102.	Professor Risdon’s report describes the examination: 

On reflecting the scalp an extensive fresh dark red haematoma was present over the occipital, parietal and frontal scalp, most marked over the right side of the head.  Mixed with the blood in the haematoma was oedema fluid.  In total the haematoma measured up to 18 x 24 x 0.4 cm.

There was extensive fracturing of the vault of the skull on both sides, involving the parietal and occipital bones.  On the left a fracture line extended from the fronto-parietal to the occipito-parietal sutures, measuring 14 cm in total.  This fracture line was parallel with the sagittal suture and continued into the fronto-parietal and occipito-parietal sutures.  About two thirds of the way along this fracture line it was crossed by a vertical fracture extending from the sagittal sinus vertically downwards and measuring 14 cm in length.  These fracture lines crossed at right angles, separating the parietal bone into four fragments which were separated by distances of about 1 cm.  On the right-hand side there was a similar long fracture line (13 cm long) from the fronto-parietal to the occipital sutures, again as on the left-hand side running parallel to the sagittal sinus.  About two thirds of the way along was a fracture line at right angles to the first, extending to the sagittal suture and measuring 4.5 cm in length.  This fracture line extended into the occipito-parietal suture, separating the bones into separate fragments.  Further fracture lines extended backwards from the occipito-parietal sutures on each side.  The fracture lines did not extend to the base and the frontal bones were spared.

About 20 ml of fluid blood were present in the subdural space over both hemispheres of the brain, which weighed 435.9 g.  There appeared to be a little subarachnoid haemorrhage in patches over both hemispheres.  The brain was removed for further expert neuropathological examination.  Both eyes were removed for specialist examination.  A little fluid blood was present around both optic nerves.

The spinal cord was removed.  Fresh blood was present in coverings of the cord along the whole of its length.

103.	Specialist examination of the brain was carried out by Dr Al-Sarraj, who found severe damage:

•	A small recent localised intradural haemorrhage, indicating trauma

•	Multiple patches of subarachnoid haemorrhage

•	Lesion on the upper right mid-side of the brain (parietal lobe) with fragmentation of the tissue and multiple bleeding, the site and presentation indicating direct impact injury 

•	A small area of haematoma of the left temporal lobe, without fragmentation; the site is a common one for indirect countercoup injury following a blow to the opposite side.

•	Very early changes in the neurones (nerve cells) in the cerebral cortex

•	Small bleeds inside the brain substance at two locations: the corpus collosum and inside the ventricles.  These indicate severe diffuse head injury with the brain rattling inside the skull.  The changes are not easily understood except by sudden and violent acceleration and deceleration.

•	Ischemic damage to axons all over the brain and the brain stem structure.  These might also have been caused by trauma, but that cannot be known. 

•	Recent haematoma in the pontomedullary junction at the back of the head, a sensitive area, and consistent with trauma

•	Recent extradural and subarachnoid bleeding at the cervical, thoracic and lumbar levels of the spinal cord

•	Injury to axons of the spinal cord at cervical and thoracic level

104.	Specialist examination of the eyes was carried out by Dr McCarthy.  He found extensive fresh haemorrhage in the extradural, intradural and subdural spaces of each optic nerve, but no retinal haemorrhages.  The presence of extensive damage to the nerve in the absence of retinal haemorrhages is somewhat unusual.

Medical opinion

B’s general health

105.	Dr Cartlidge advises that B was a healthy infant prior to the injury.  He did not have any medical condition that made him more susceptible to skull fractures or intracranial injuries.  

106.	All are agreed that death was due to severe head injury.  Dr Cartlidge, with whom other witnesses agree, says that B would have become unconscious immediately and would not have cried out at the pain that he would otherwise have experienced.  There would have been an obvious, immediate and extremely frightening change in the baby’s condition from the moment of injury.

The bruise 

107.	Dr R considered that this might have been caused by the resuscitation attempts, although it was not at the point on the chest where pressure would normally be applied.  

108.	Professor R did not feel able to hazard an opinion as to the cause of the bruise.

Degree of force

109.	All doctors emphasised that the absence of experimental evidence made it impossible to give scientific information about the amount of force required to cause these injuries, but all were agreed that it would be severe.  Injuries of this gravity are very rare (neither very experienced paediatrician had ever seen their like in a living child) and are normally only seen after very severe road traffic accidents.  
 
110.	Nor, according to Mr Richards, is it possible to say whether B’s infancy would make his skull more or less likely to fracture in response to a given force.  On the one hand it was less strong than an older child’s skull, while on the other it was more flexible.  Professor Risdon was of the same opinion. 

111.	Dr Cartlidge and Dr McCarthy were more inclined to emphasise the vulnerability of the head because of B’s extreme youth.  The head is designed to withstand substantial birth force, but not to withstand impact. 

112.	Dr R said that her department commonly sees linear fractures, but not multiple fractures without a history.  She said that it was impossible to exclude the injury being caused by a 4-year-old but that it would require significant force.

Mechanism

113.	Professor Risdon reports that the head injury, with its long front to back fractures, was caused by crushing.  The post-mortem findings alone do not make it possible to say whether impact was also involved.  Support for there having been one or more impacts is found in the advice of Dr Al-Sarraj, which Professor Risdon accepts.  However, the findings are not easily explained by impact trauma alone, because the fractures are bilateral and similar.

114.	Professor Risdon emphasised how extremely rare these findings are.  He could only recall one remotely similar case in his lengthy experience: it had been accepted by a jury that head injuries of this kind might have been caused by a child jumping on to the head of a baby from a top bunk, no such event having been described.

115.	He was not prepared to exclude the possibility of the injuries being caused by a child stamping or jumping on the baby’s head.  He noted that the context did not contain previous evidence of violence to children, nor any forensic evidence of assault on the baby by an adult.

116.	Dr Al-Sarraj advises that the evidence of impact injury was very clear on the basis of the brain appearances, while the findings from the spinal cord were less clear.  However, extradural bleeding in the spinal cord is likely to be associated with trauma (e.g. stretching, perhaps as a result of violent movement of the brain, which is part of the same structure), and while the subarachnoid and axonal damage may equally be due to ischemia, when taken together with the extradural bleeding the appearances in the spine point to a traumatic cause.  

117.	Dr Al-Sarraj further notes that the pattern of brain injury does not always correspond with that of skull injury.  The existence of a left-sided haematoma of this nature may be related to the left-sided fracture, but it may also be a countercoup injury following a blow to the right side.   On the other hand the extent of the right-sided damage to the brain is an indication of impact to that side of the head.

118.	He further advises that on the basis of his examination, the appearances were more likely to be due to impact and violent movement than to a crushing force alone.  Crushing by steady pressure might explain the fractures but would be more likely to cause focal damage and would not explain the diffuse damage to the brain and spinal cord.  He accepted that a heavy jump from a good distance might explain the changes to the brain and could not rule out the injury being caused to the head in a static position but felt that an injury sustained to the moving head was more likely, consistent with the head being hit against a hard surface once or more than once.   

119.	Dr McCarthy reports that the findings in the eyes are consistent with significant head trauma and particularly with crush head trauma.  Based on ophthalmic findings in isolation, the injuries are consistent with compression alone but some movement of the head cannot be excluded.  Multiple severe movements of the head, such as shaking produces, are very unlikely because of the absence of retinal injury, which is associated with shaking.  He considered that the evidence of skull and brain pathology would give the more reliable indicator of possible mechanisms.

120.	Dr Cartlidge considers that the head injury was a single event caused by a crushing mechanism, this being more likely than two impacts because (1) the skull fractures are strikingly symmetrical, indicating a similar direction of force on each side of the head, (2) a mechanism of crushing force with the head being compressed against the floor is easily envisaged, and because (3) two or more impacts would be unlikely to have a similar direction of force.

121.	He agrees with Mr Richards that the primary impact was to the right side of the head.  He is of the view that there must be a crushing element and that impact alone without some continued crushing force is most unlikely.  He cannot discriminate between the head having been still and the head having been propelled into a hard object.   Had the head struck an untextured hard object, external marks would not necessarily be seen. 

122.	He considers that the most obvious mechanism would be someone standing, stamping, jumping or falling on to the side of the head.  The absence of external scalp damage makes a stamp or jump or a kick by a shoe-wearing adult unlikely.

123.	An adult could in his view cause this degree of injury by standing, stamping or jumping on to the child, or perhaps by falling on to the child, depending on the mechanism of fall.   The possibility of the baby being sandwiched between an adult who had been pushed and a hard object (e.g. a wall) could not be excluded, but is problematic, because the adult’s reflexes would probably save the child.

124.	As to whether the injury could have been caused by C, he thought that of the possibilities (falling onto B, standing on B, dropping B, stamping or jumping on him), only jumping, probably with both feet, could in his view generate the necessary force.  The impact would have to be to the side of the head, with force on the parietal prominence, not on the forehead.  This makes it more likely that if the child was on the floor, he would be on his front, as the face would then be to the side.  If he was on his back the face would be to the front or oblique, and these fractures would not result from pressure on the forehead.  There would not necessarily be visible external injuries.  

125.	Dr Cartlidge was clear that C is not strong enough to have swung B against the wall.

126.	Mr Richards said that the pattern of fractures was very unusual.  It was most likely caused by impact with crushing – a blow with continuation of the force.  The extensive brain changes on the right side suggest impact to that side, if impact was involved.  He could not say whether the head had been static or moving.

127.	The extent of the fractures was similar, if not more severe, than those suffered by a child falling from a first-floor window or being ejected from a fast-moving car.  Mr Richards speculated that the damage could have been caused by an adult stamping, jumping or standing on the head, or by the child being thrown or hit against a wall.  He had no experience such an injury being caused by a child being crushed by a falling adult.

128.	Asked whether C might have caused the injuries, Mr Richards thought that the only conceivable mechanism would have been an accurate jump from height onto the head.

Timing

129.	Dr Al-Sarraj conducted a number of tests, the most specific of which related to the early signs of neuronal ischemia.  This showed that the damage to the brain occurred a few hours before death.  Dr Al-Sarraj gave the bracket for maximum survival at 4-6 hours, emphasising that this was a scientific estimate and not an accurate measure.

130.	Dr Cartlidge estimated that B was unlikely to have survived his injuries for more than about 30 to 60 minutes without medical attention.  The clinical features do not contradict the history of B being normal at about 22.30 and moribund at about 23.40.  He was very likely injured within about 30 minutes of the arrival of the ambulance, by which point he was near death.

131.	Mr Richards reports that the CT scan shows an extremely severe head injury, with damage throughout the brain, indicating that B was going to die.  The scan does not assist with timing, other than showing changes that were recent.  Based on the child’s clinical state, the visibly increasing head swelling seen by Dr R, and the CT scan, he assessed the injury as occurring within a few hours of the observations.  It depended on whether B’s condition was constant from the moment of injury, in which case Dr Cartlidge’s more specific estimate might be right, or declining, in which the period could be longer.  Based on experience, he could not draw conclusions from measurements of heart rate, breathing rate or oxygen saturations, as these are variable and do not pin down the time that had passed since injury.  He said that a neurosurgeon is at least as well placed to advise as a paediatrician.   Overall Mr Richards concluded that the injuries were caused within a few hours of death and after B was last seen as normal. 

132.	 Professor Risdon said that the injuries were so severe that the child was extremely unlikely to survive for longer than an hour or so without life support.  However, circumstantial evidence was a surer guide to timing than pathology.  Particularly with a very unusual injury, the overall context was essential.

Evidence about C

133.	C’s nursery referred him for assessment.  He was assessed by an educational psychologist in February 2011 who found him to have significant difficulties with social understanding, language and communication.  In April 2010, a specialist clinic diagnosed that he has an autistic spectrum disorder.  He has poor eyesight and wears glasses.  

134.	In September 2010, he started at mainstream school, mornings only until February 2011 but full-time since then.  

135.	C’s motor development is normal, though he has been noted to have some slight delay in fine motor skills.  His weight and height are on the 75th centile.  In February 2011, when he was 4½, he weighed 19 kg, which is average for a 5-year-old.

136.	In December 2010, C was assessed to be functioning at the level of a two-year-old child and to have significant learning difficulties.  It was recommended that he receive a statement of special educational needs, but in fact the LA’s SEN service have informed the parents that his needs are being met at his current school, where he receives significant additional support.  

137.	Evidence was given by Ms P, the school special needs co-ordinator.  She has known C well since September 2010.   She describes C as "a lovely boy, smiley, cheerful and willing to comply with directions".  He likes routine and can have tantrums if he does not get what he wants.  Change can upset him but he quickly recovers.  He has some level of interest in social interaction.  He can play in an obsessive way and be fixated with particular toys.  There was no significant change in behaviour after the birth of the twins.  He has never caused the school any concern for the safety of other children, nor been aggressive, violent, erratic or unpredictable, nor has M ever described him as behaving in that way at home.  He has not been seen to jump around on furniture at school.

138.	Ms S, C’s current social worker, describes him as an active, playful 5-year-old who needs additional guidance and one-to-one support but is not more difficult to manage than an average 5 year-old.  He can have tantrums, like a younger child.  She notes that he has some difficulty in fine motor skills, and is not able to put on shoes with Velcro straps.  

139.	Neither parent has suggested that C has ever behaved in an erratic or dangerous way.  They have described him as being interested and loving towards the twins.  They report that he has had more tantrums since being in foster care.

140.	C’s foster parents, who have a 4-year-old son of their own, do not report any erratic or dangerous behaviour by C.

141.	Records of C’s contact with his parents show that he does become boisterous at times, jumping about on furniture and occasionally pushing the supervisor.  Ms S did not regard this as being out of the ordinary for a boy of his age, and nor have the parents expressed concern.  

142.	The police considered whether C could be interviewed about the events of 11 February.  Having consulted C’s school and taken specialist advice, it was concluded that C should not be interviewed.

The parties’ cases

143.	The LA at the outset very properly presented a case that allowed for B’s injuries to have been caused by either parent or by C.  Having heard the evidence, it submits that a finding can properly be made against F alone.  It is also critical of M’s refusal to confront the real prospect that F was responsible, raising concerns about her capacity to protect the children in future.

144.	M denies responsibility for the injuries, or knowledge of how they occurred, or of being neglectful in leaving the children with F.  She does not assert a positive case against F or C.  She does not accept criticism of her response to events.

145.	F asserts that the court can be satisfied that the injuries were caused by boisterous behaviour by C, perhaps as a result of jumping onto B from furniture.  He relies on the absence of any previous concern about his parenting: for him to be responsible would represent behaviour that came out of the blue.

146.	On behalf of C, a finding that F was responsible for the injuries is sought.  F's account is described as incredible and M’s evidence as unsatisfactory, although not in such a way as to make it likely that she caused the injuries herself.  C’s Guardian invites the court to reach conclusions that are as clear as possible as a basis for future orders.

147.	On behalf of J, an analysis of the evidence was presented, without any particular case being advanced.  The analysis draws attention to shortcomings in the evidence of both parents, and the weight of the argument points in the direction of F as being responsible for B’s injuries.

148.	The parties’ detailed opening and closing submissions are contained on the court record and I have taken account of them in full.

Findings of fact

B’s injuries

149.	B died as a result of catastrophic, extensive and brutal injuries sustained in a home setting.  They are at or beyond the extremity of the experience of any of the immensely experienced doctors who have advised, or indeed the experience of the court.

150.	Severe force would be required to cause such injuries.  It would not be safe to assume that the degree of force might be less for a baby of B’s age than had he been an older infant.

151.	The injuries were caused by crushing force, probably following impact to the right side of the head.  They were not caused by shaking or by one impact alone.  An impact/crushing mechanism better explains the findings than multiple impacts.  The evidence of all experts was of considerable assistance, but I particularly accept the combined opinions of Dr Al-Sarraj and Mr Richards on this question.

152.	I find that the only realistically possible way in which C could have caused B’s injuries would have been by jumping on him from height.  It is unlikely, though not completely impossible, that a two-footed jump from ground level could have caused the injuries, and extremely unlikely that C could have caused them by stamping on B with one foot, however hard.

153.	Although it is impossible to be categoric, it is very probable that the fatal event occurred no more than an hour before the ambulance call, and quite probably well within that time.  I found the evidence of Dr Cartlidge helpful on this question.  The way in which his views evolved during his evidence was a sign of careful thinking and he should not be criticised for it.  

154.	No conclusions can be drawn about the bruise on B’s chest.

C’s behaviour and abilities

155.	C has never displayed any propensity to aggressive or reckless behaviour.  His normal behaviour towards B and J has been gentle and inquisitive.  His autistic spectrum disorder does not increase the likelihood of his having injured B by acting violently or carelessly.  His observed physical behaviour is fairly normal for a four-year-old, and for the purpose of this enquiry, I find no reason to treat him as being likely to behave differently from any other child of his age. 

156.	Having considered the evidence, and examined the child seat, I conclude that it would not be impossible for C to open the clips of the harness, but that it would represent a considerable achievement for him to manage it.

The independent evidence

157.	The records created during the course of M’s trip to Tesco demonstrate that she was there between 22.27 and 23.21.  

158.	No conclusions can be drawn about the ANPR results.  Given that

1)	F may well have been driving in the area in his car at around 20.00 and was not recorded then;

2)	M was undoubtedly driving in the area about two hours after the sightings of her car but was not recorded then; 

3)	It is unlikely on the evidence as a whole that M made two trips that night;

4)	The evidence of DS L suggests the possibility of some inaccuracy in timing, although not on this scale;

the information is inadequate to enable me to be satisfied that either parent was at the given point at 18.21 or 20.16 or 21.16.  In any event, although a finding that the ANPS results were accurate would significantly contradict the evidence of the parents, this would not enable any reliable conclusions to be drawn in consequence. 

159.	In contrast, the evidence in relation to the family computer is significant.  It was activated at 22.54 and remained active for a quarter of an hour.  It was probably activated by F, but it makes no difference if it was activated by C touching the keyboard. 

160.	In examining how B came by his injuries, I am in the end not assisted by reports of statements made by the parents that night, or by reports of their demeanour.  Collectively, the parents had 12 discussions in stressful circumstances during the course of the night:

•	M to 999 operator
•	F to 999 operator
•	F to Mr T
•	M to Mr T
•	M to Ms A
•	M to PC B
•	M to Dr N
•	M to TDC C
•	F to DS A
•	M and F to DS K
•	M interview
•	F interview

161.	Looking at these discussions overall, I am not in a position to find that either parent referred to B having been thrown against the wall.  The account of this comes only from Mr T and Dr N.  Having carefully considered their evidence, I am quite sure that they both genuinely believe that they heard reference being made to a wall, and they may be right, but the possibility for confusion or contamination is too great for me to rely on that information: see paragraphs 77 and 83 above.  Nor, for completeness, can I be satisfied that F referred to a wall (as opposed to "the world") in his later interview, not referred to above.

162.	I am not satisfied that the patch on the living room floor was wet.  If it was, it would surely have been noted and investigated by the crime scene manager.

The parents’ evidence

163.	I find that the parents had a violent argument on 23 May 2010.  It involved significant violence by F towards M, as described by her to the police at the time.  It also involved more minor violence by M toward F.  I reject M’s statement that she exaggerated the incident and I reject F’s denial of violence.  The incident does not establish a propensity to injure children, but it demonstrates three things: F’s capacity to be violent on occasion, the parents’ capacity to be untruthful, and M’s tendency to make excuses for F.

164.	In contrast, having heard the account of the parents alongside all the other evidence, I accept M’s account of events at home on 11 February up to the time of F’s return.  

165.	It has not been established that the parents had a disagreement that evening.  I make no finding about how the cut to F’s head was caused.

166.	I find that M left the flat at about 22.10, that she returned at about 23.35, and that she made the 999 call within a couple of minutes of entering the flat.

167.	It was the first time that the three children had been out of M’s care and that F had had responsibility for them in M’s absence.  

168.	The only reliable information about what happened during M’s 1½ hour absence is that 

1)	the computer was active for a quarter of an hour during the middle of this period, indicating that F and C were up and about in the flat until sometime after 23.00, and that

2)	by the end of the period the twins had been removed from their seats.  

169.	I have carefully considered the photographs taken the following morning and M’s evidence about the state of the flat when she returned: see paragraph 48.  At first, I believed that this might offer clues to whether C might be responsible for the injuries.  In the end, I have been unable to derive much assistance from this information:

1)	Detailed evidence given by M about this is not likely to be dependable when her focus was on what had happened to the twins.  

2)	The photographs show the scene after the departure to hospital.  There will have been considerable commotion before then, not necessarily associated with the period before M’s return.  For example, it would not be at all surprising if C had pulled things off the sofa at any time, or if items on the changing table were moved by F when changing J’s nappy after M’s return.  In the end, M was not able to be clear that the candles had in fact been in the kitchen at the point that she left.  Nor is the presence of a couple of toys and DVDs on the floor significant.  

Responsibility for B’s injuries

170.	I find that B was in good health when M departed and that he was injured in her absence.  In reaching this conclusion, I take account of the following matters:
 
1)	Although other aspects of M’s evidence were unsatisfactory, her description of her departure and return was credible.

2)	It would be extraordinarily unlikely for M to have left B in a gravely injured state and gone on a relatively leisurely shopping trip.

3)	I do not regard it as strange for a person in M’s condition to have wanted to make a trip of this kind at that time.  It is the sort of trip that she might be expected to have made as a way of getting out of the house and testing her capacity and it was made at a time when she had the opportunity to leave the children with F.  

4)	On the medical evidence, it is unlikely that B had been injured as early as 22.10.

5)	I discount the possibility of M having injured B on her return with or without F’s knowledge.  Considering that the ambulance call was made 20 minutes after M paid for the petrol, and that the journey would take 15 minutes or so, and that M was recovering from an operation, the window of opportunity would have been tiny.

6)	Having listened to the 999 call, I find nothing in it to cast doubt on the genuineness of M’s account.

7)	M’s account of the events of the evening has been consistent throughout.

171.	I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.

172.	I turn to consider whether F’s explanation that C caused B’s injuries is credible.  If it is not, the inescapable conclusion is that they were caused by F. 

173.	For C to have injured B in the way suggested by F calls for the combination of a large number of circumstances of varying degrees of individual improbability:

1)	Neither twin waking up by the time F says he took C to the bedroom (about 23.00 or later), despite them approaching the time of their next feed.  

2)	C going almost straight to sleep, although M says that as a result of his long nap that afternoon he was not tired when she left him about an hour earlier.

3)	F (who had done no more than an hour’s work that day and whose head was hurting and who was waiting for M’s return so that he could have a bath) then falling asleep unintentionally within half an hour of M’s return, which was itself overdue. 

4)	C waking up, even though he is not a child that normally wakes in the night.

5)	C unexpectedly deciding to leave the room, rather than choosing to wake his father.

6)	C extricating himself from under a quilt without disturbing F, who would have been beside him, if not actually touching him, despite the most likely route via the foot of the bed being obstructed by a pile of objects, including a plastic bag, toys and a large suitcase: see the photograph at J796.  These obstructions would have made undetected departure considerably more difficult.  There is no other way for C to have got out of the bed without encountering similar hurdles: see the photographs at J797-798.  

7)	C going into the living room, the door of which is no more than 5 metres from the door of the bedroom, both doors remaining open.

8)	C lifting the tray on one twin’s chair.

9)	C succeeding in unclipping the harness, although he was not wearing his glasses.

10)	C lifting the other twin out of his chair, then or later, and putting him on the floor, something he had never seen his parents do.

11)	C lifting the tray on that twin’s chair.

12)	C succeeding in unclipping the other harness.

13)	C lifting the other twin out of his chair, then or later, and putting him on the floor.

14)	C placing B on his front on the floor.

15)	C jumping barefoot on to the side of B’s head from some piece of furniture, though none suggests itself from an examination of the photographs; or even more improbably, C causing the injury by jumping on to B’s head from floor level. 

16)	C causing no injury whatever to J.

17)	C moving B onto his back.

18)	C arranging the twins in a line, head to toe, as described by M. 

19)	C not returning to F at any stage in this protracted sequence.

20)	F, knowing that he was in sole charge of the children, sleeping through C’s movements, despite being used to waking up to feed the twins at night. 

21)	F sleeping through whatever crying there was from the twins (it is likely to have continued for several minutes unless B was injured just as M was arriving home), when M could hear J crying from outside the flat.

22)	C, having necessarily been boisterous when causing the injuries, being quite calm on M’s arrival home.

174.	I next consider the quality of F’s evidence.  I take account of the fact that it was harder for me to assess than it might have been if we shared a language.  Added to this, F was a rather undemonstrative witness who had the benefit of a demonstrative interpreter.  However, in the end, I have found it possible to reach a firm conclusion about F’s credibility.

175.	I found F to be an unconvincing witness.  His evidence was unsatisfactory in a number of specific respects, of which these are just examples:

1)	In his witness statement he said that “I have seen C undo the clips on a different car seat.  I have also seen him undo the swing seat ones.  He tries to undo them all the time.”  In evidence he said that these statements about the swing seats were not true. 

2)	In the same statement, he described being woken by M: “She was in the bedroom shaking my legs.”  In evidence he changed this to fall in with M’s clear denial of entering or even looking into the bedroom.

3)	His description of panicking and shouting “Oh my God!” at the top of his voice before he even knew what had happened to B makes no sense.

4)	His denial of any violence towards M in May 2010 has already been noted.  

176.	In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries.  Lies may be told for other reasons.  The burden of proving responsibility remains on those that allege it.  

177.	Nonetheless, in the present case there are a very limited number of possible explanations for untruthfulness on the part of F.  It might have arisen from shame at a failure to supervise the children, allowing C to injure B.  However, as F has in fact alleged that C is responsible, this is not a likely explanation.  It might have arisen from shame at having injured B accidentally, for example by standing on him.  When I asked him about this possibility, F completely denied that this had happened.  The only other explanation for untruthfulness would be because F had assaulted B and is unwilling or unable to admit it.

178.	My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries.  A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole.  I reject F’s case. 

179.	I find that F caused B’s injuries.  I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.  I do not accept that he fell asleep at all, and doubt that C did either.  I think it highly unlikely that C removed the twins from their seats and find that they were probably removed by F.  What precisely happened is known only to F, who refuses to reveal it, and possibly to C, who cannot describe it.  I decline to speculate on how the event occurred.  The only plausible aspect of F’s account was his description of his feelings of guilt, but these do not spring from guilt at neglecting to supervise C, but from knowledge of what he did to B.  

180.	It is difficult to imagine such injuries being caused accidentally, and as F gives no such account, it has to be assumed that they were caused deliberately in what must have been a terrifying assault.  As matters stand, F has not only caused the death of one child but has thrown the blame on another; it is even possible that he arranged the twins on the floor to make it look as if C was responsible.  Unless and until what happened is understood, there must be a risk of repetition.  

M’s response

181.	M is not to be criticised for leaving the children with F, whatever the circumstances of her departure.  B’s death could not have been foreseen, and her distress at having left the children that night is genuine.  Up to that night, she had not failed to protect them.

182.	The position since then is different.  While M did not fail to protect, she has undoubtedly failed to protest.   She has doggedly turned her face away from the likelihood that F was involved.  She has never even suggested that he might have injured B, instead choosing to marry him and become pregnant by him without even waiting to hear the medical opinions, let alone the court’s conclusions.  While continually asking others to help her to find out what happened, she has made no meaningful effort to do so herself.  It is not enough to say “I don’t understand why F slept through and didn’t hear anything”, and then leave it to others to explain how that could possibly have been.
    
183.	M’s actions cannot remotely be compared to F’s, and some understanding and sympathy is due.  She has lost a child in tragic circumstances, been separated from her other children, and is now pregnant again.  However, by her response to B’s death, she has let him and the other children down.  She has put her own dependence on F ahead of the interests of her children.  This cannot continue if she is going to parent C, J and the expected child safely without F’s involvement.
    
The Coroner’s inquest

184.	On 3 August 2011, HM Coroner held an inquest into the causes of B’s death.  No legal representation was present.  Very limited evidence was taken from Professor Risdon and DS L.  Neither parent gave evidence.  The Coroner entered a verdict that B’s death was an accident caused by C.  The police marked the case as ‘no crime’ as a result of the verdict.

185.	No party has invited me to attach any weight to this verdict, no doubt for these reasons:

1)	On 15 July, the LA wrote to the Coroner informing him that a 3-week hearing was due to begin in the High Court on 24 October and asking him to consider adjourning the inquest.  No reply was received.  The decision to hold an inquest on the eve of a much more detailed investigation in this court seems unaccountable, particularly as there was no reason to press ahead.

2)	Although the LA was not a properly interested person, C was, but his position was not represented.  In the circumstances, the process by which he was named in the verdict seems self-evidently unfair.

3)	This court has a transcript of the inquest, running to just 18 pages.  The Coroner established with Professor Risdon and DS L that the injuries to B could have been caused by C (and in fairness to the Coroner, Professor Risdon at one point went so far as to say that it was probable).  However the Coroner for some reason dismissed the obvious alternative possibility that the injury might also have been caused by one of the parents, and in particular by F.  Relevant parts of the transcript read as follows:

PROFESSOR RISDON: (to the Coroner) … I mean this was a very unusual injury so obviously there was a very thorough investigation in which I was involved in giving advice; and clearly the time interval over which this occurred means that there would be very little opportunity of either of the parents have done this.  ... And I mean that I've been asked this, is it conceivable that a four-year-old child could have produced this injury, and although I will say that it is extraordinarily unlikely for a child of this age to do this, there are instances in literature where this sort of injury has been brought about by the child. And from what I understand of the evidence there isn't another really clear alternative.  So I mean on the balance of probabilities the suggestion that this might have been the other child, although one hesitates to say it, I would say I think that's probably what happened.  But clearly I can't say with absolute certainty.
…

PROFESSOR RISDON: (to M) … in all honesty, we do not know that the suggestion that's been put forward that the little boy might have been involved, one can't exclude that possibility, that's all I can say.
…

DS L: (to the Coroner) … I was able to establish that certainly is possible and very definitely prior to this happening, [M] have left the house ... I find no evidence whatsoever that any other adult had, could have been involved and that left me with two possibilities, bearing in mind that clearly this child couldn't have self-inflicted injury, that the injury would have been at the hands of the father or in some way inflicted by the sibling, [C].   
…

THE CORONER: (to DS L)  Yes, so we are left with an extremely awkward position that the four-year-old boy in this case may have inflicted these injuries?

DS L:  Yes
…

THE CORONER: (to the parents) … I think I have to record that the injuries were caused by his brother, aged four.  Does that seem fair to you?  Otherwise, what we are left with is a position that he sustained injuries which were inconsistent with a simple fall and a conclusion might be from someone looking at this that his parents may have caused those injuries.  Do you see my difficulty?  

MOTHER:  Yes.

THE CORONER: What I am minded to record is that on the 11th February 2011 B was found having sustained serious injuries to his head.  The injuries were consistent with the use of force beyond that which might occur in a simple fall and were caused by his brother, aged four.  Does that seem fair to you?

MOTHER: It is not fair, but –

FATHER: Just not fair.

MOTHER:  Yes.

THE CORONER:  I do not have another choice, do I?

MOTHER: I can only, yes.

FATHER: Yes.
…

186.	For these reasons, the LA, supported by C’s Guardian, submits that the Coroner’s verdict was fundamentally flawed.  It is not for me to determine that submission, but I well understand its basis.  I will direct that a copy of this judgment is sent by the LA to HM Coroner.   I also give permission for the judgment to be disclosed in the course of any attempt that may be made to rectify the verdict.  Such an application would now be narrowly out of time, and as such could only be entertained in exceptional circumstances.  I hope that the circumstances that I have described in relation to this inquest are and would be considered to be exceptional.

187.	I acknowledge that the functions of the Coroner and the family court are quite different.  However, the verdict in this case did nothing to make M confront the obvious possibility that F was responsible for B’s fatal injuries, and was clearly unhelpful to the position of the children with whom I am concerned.

Conclusion

188.	The parties will now need a short period of adjustment followed by a process of intense discussion and assessment.  Any proceedings taken in relation to the new baby shall be transferred directly to this court, consolidated with these proceedings and reserved to me if available.   Ms Shepherd will resume her role as Guardian to both two children and will no doubt be appointed to represent the interests of the new baby.  Likewise, I expect the LA will want to ensure that Ms S, who has been present throughout this hearing, continues as social worker for all three children.   

189.	The LA has put forward proposals for the next steps that must be taken.  Subject to any matters of detail raised by the parties, I will approve those plans, which will be incorporated in my order.  The order will also fix any necessary dates for the final resolution of these proceedings.

190.	Although there are bound to be challenges to any parent in looking after two or three children in such difficult circumstances, the focus of the work with M should be on issues of safety and separation.  I have heard nothing in these proceedings to suggest that she is not a competent parent in normal circumstances.

191.	I express the thanks of the court to all the witnesses who assisted in this inquiry.  A copy of the judgment should be sent by the LA to the expert witnesses and to Dr R and DS L. 
   
192.	All parties have been expertly represented, making the court’s task easier than it would otherwise have been.  I would particularly thank Ms Grief and Mr Edwards and the team that instructs them for the efficient way in which the case has been prepared and presented.
 
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