Case No. ZE22C50109

128.The medical evidence is very important, and provides the main foundation of the local authority’s case in support of a non-accidental explanation. It establishes that, from a medical point of view, an abusive cause is more likely than an accidental cause. That is because:a.S’s injuries are of a type than can be (and not infrequently are) caused by forceful handling by an adult: usually a compressive squeeze in the case of the rib injuries, or potentially a blow; and in the case of the injury to the humerus, a pull with a twisting action; andb.If the injuries had occurred accidentally, the nature of the event and S’s response would be such that one would expect any person caring for him to be able to give a history of what had happened. 129.In contrast, a highly unusual event/ combination of circumstances would be required to produce S’s injuries accidentally and in a manner which went unnoticed by the parents. 130.I remind myself of Dr Oates’ important evidence that if it were common for toddlers or co-sleeping parents to cause injuries of this nature, hospitals would see them all the time – but in fact incidental (in this context, the word is exchangeable with accidental) rib fractures in small babies are very rare.131.The absence of an explanation of S’s injuries from either parent is, of course, a matter to which I have given very careful consideration throughout these proceedings and while preparing and writing this judgment. There are two possible reasons for the lack of an explanation. The first is guilty knowledge. The other is that the parents truly do not know how the injuries occurred. 132.These are loving, attuned, careful parents who looked after their first child from birth until toddlerhood with no concerns being raised about their care. None of the risk factors identified by Peter Jackson LJ in Re BR [2015] EWFC 41 are present. All of the protective factors are. 133.The evidence of Mrs N and Mrs O was of significance not just because they described the parents in such positive terms, but because it demonstrated the robust support network surrounding and available to them. Mrs N told me that she speaks to her daughter, usually on Facetime, every day. 134.The mother was at home alone with both children on weekdays after the father went back to work. However she was very well supported, and I am not sure that there were in fact many days when she did not have the company of another adult: the evidence of Mrs O and Mrs N made it clear that they were very much around and on hand, and they were by no means the only people who visited the mother, or were visited by her, during that time. Although the mother was on maternity leave the parents kept up T’s childcare routine, so T was at nursery on Tuesdays and Wednesdays, and spent Thursdays with Mrs N. It was therefore only on Mondays and Fridays that the mother had a full day with both children together. 135.The father had very little opportunity to injure S in his first few weeks of life. S was breastfeeding on demand; he was a hungry baby and sometimes would feed as frequently as every hour, or “cluster feed” for several hours at a time. As is quite common, the father’s main role was to care for and entertain T. The mother told me that, as when T had been a newborn, for S “mum was everything” and if there was a choice of either parent, he was always going to settle with her rather than with his father. I did not get the sense that either parent saw this as unusual or negative: their expectation, clearly, was that S’s relationship with his father would develop when he was a little older, as T’s had done: Mrs N described him as “T’s best mate”. Ms Badejo made the powerful point in submissions that if the father had trouble settling S, all he needed to do was hand him to his mother. There were few, if any, occasions when she was not on hand. 136.The medical evidence as to the timing of the first rib fracture is perhaps particularly difficult to reconcile with a non-accidental explanation, when set in the context of the evidence of this family’s life in the first few weeks after S’s birth. The father was on paternity leave for most of the relevant period, and the days were a combination of days at home getting used to being a family of four, and visits to and from family and friends. There was very little time when either parent was alone with the children. They were almost always together, and for much of the time in the company of others. 137.During the course of the parents’ evidence Mr Little for the local authority fully explored every possible piece of evidence that could possibly be interpreted in a manner that might point towards a finding that one or other of the parents had inflicted S’s injuries. It was entirely proper that he should do so and I have considered each piece of evidence carefully. They are as follows:a.The father is described by one of the FSWs in the hospital as saying hello to her but then not making eye contact. When this was put to him the father said that his focus was on his partner and son. b.The mother is recorded to have said to a nurse in hospital that the father gets “very stressed” when he cannot settle S. The mother could not remember saying this, but accepted she might have done. If she had said something along the lines of her evidence recorded in paragraph 135 above, this might have found its way into the medical notes in such a form. c.The police visited the father at home while the mother was in hospital with S. During the visit he gave them his phone and they told him they were on their way to visit the mother. The police records suggest that the officers were mildly surprised that after the visit, the father made it to the hospital before they did, and there is a suggestion that he may have been hoping to influence the mother’s account. The father’s answer, borne out by other documentation, is that after the police took his phone he immediately went to buy new ones for both himself and the mother, and took hers to the hospital. He asked, reasonably, if he had been motivated to influence her account why he would have stopped at Tesco’s to buy the phone. d.The local authority says that the father did not tell the mother that he discussed the possibility during the 111 call on 23 April that he had caused S’s injuries through excessive force when S was put in his sling. It seems fairly clear from the notes of the 111 call that the possibility of a traumatic injury (as opposed to an illness) was first raised by the call handler, and the father’s suggestion of the sling as a potential cause arose in response to that. In any case, I am not sure that it is correct that the parents did not discuss this in the brief period before the mother left with S for the hospital: neither could remember with any clarity the content of any conversation between them at that point. Even if it is, I do not see how it points towards the father’s guilt. e.The evidence of both parents was that they had not discussed the possibility of either causing the injuries to S until a couple of weeks before this hearing. That evidence, in my view, does not point in any particular direction. It has been clear to me throughout this hearing that neither parent believes the other caused the injuries. Either one of them is mistaken, or they are both right. 138.For obvious reasons, I can put little if any weight on any of this evidence. 139.In my judgement, it is difficult to square the parents’ actions on the evening of 22 April and the morning of 23 April with guilty knowledge on the part of either of them. Their initial response when S became unsettled was to see how he progressed; when he was no better in the morning, they called 111 for advice, and when that was given (and especially when they discovered that his arm was floppy) the mother rushed immediately to the hospital (the 111 call finished at 8.16 and the mother’s and S’s arrival at the hospital was registered at 9.03). There is no sense that either sought to prevaricate or stall once the possibility had been raised (by the 111 call handler) that S’s condition might be serious. Equally, the decision to wait out the night to see if S’s presentation changed is consistent with a shared assumption (the father told me that, inevitably, the parents were googling S’s symptoms) that the most likely explanation for S’s presentation was a cold or chest infection rather than an injury. 140.There is a further significant argument against a non-accidental cause for the first rib injury in particular. I think it highly likely, having considered the evidence relating to both parents, that if either had experienced a momentary loss of control, causing them to act in such a way as to cause S significant injury, he or she would have been horrified and immediately remorseful. I struggle with the idea that either parent could or would have allowed S to suffer pain without seeking medical attention for him2; or, even if they did, how they could have conducted themselves as normally as they clearly did, with third parties or with each other, over the following few weeks.141.I find it even harder to imagine that one of these parents, carrying the knowledge that they had injured their child, would then repeat similar behaviour. The remorse either must have felt at having caused the first injury would, in my judgement, have operated as a powerful protection against a subsequent loss of control. 142.So, while the existence of injuries caused on two separate occasions is a complicating feature when considering a potential accidental cause, it is, in my view, just as problematic when considering a scenario of inflicted injury.