B & R (Children), Re

Lord Justice Wall:

This is an application by the father for permission to appeal against an order made by Macfarlane J sitting, I think, in Nottingham on 17 December 2008. The father has five children whose ages range between nine and the youngest, I, who was born on 26 May 2006 so will be three at the end of this month.

It is, I think, necessary for me to set out the history of this case not in huge detail but simply so the context in which I come to consider the case of I can be fully understood. The father is Muslim and has lived in this country all his life. Unfortunately the children’s mother, his wife, has learning difficulties and in the summer of 2005 one of the middle children, a girl, A, was admitted to hospital. She had a recent fracture at the back of her skull; she had a healing fracture of her tenth rib, which was about four to six weeks old; she had a healing fracture of her upper arm, also about four weeks old; and she also had 18 marks on her body which included lacerations, scratches, scabs, bruises; and the frenulum, which links the gum to the lip, had been lacerated and was missing. Both big toes it appears had bruised nail beds. These were very serious injuries for a very small child, and both the father and his wife were prosecuted. Nobody suggests, and the judge certainly did not, that the father was physically responsible for the injuries. He did not inflict any of them. But he did fail, as I think he now with some regret accepts, he did fail to protect his daughter and he was convicted and sentenced to a term of community service. I think it reflects the fact that he did not inflict the injuries himself that he was given such a sentence. I am told his wife had a suspended sentence, and both are appealing although the appeals have not been heard. But on any view with injuries of this severity it was unsurprising that the local authority became involved and care proceedings were taken.

There was a hearing before Sumner J in November of 2006 which was what we call a fact-finding hearing. He investigated the injuries and the causation of the injuries and he made the findings that I have already indicated. The children’s mother accepted the injuries to A were non-accidental and, as I say, the judge acquitted the father of inflicting them but found the mother had, both in 2004, which is the most serious injury, I think, to the skull, and later. The result was that the judge made care orders in relation to all five children and may als