“The parents have cooperated with the professionals both from the medical and social care settings. They have given statements to the police reporting C’s fall... They have accepted the restrictions which have been placed on them and the care of the children. The parents want their children to return to their full-time care but understand that C has sustained a potentially life changing bleed to the brain and retinal haemorrhages… Both parents have been praying for C’s safe recovery and have attended all supervised contact sessions to be with her. The parents have attended all appointments pertaining to the children where it has been possible. They present as doting parents and have reported that their children have all been wanted children and therefore would not put any of them through any kind of harm. The mother is insightful about the emotional needs of her children and having discussed their separation from their parents she has been able to consider the long-term impact for them and if they will experience any trauma from the processes which have been put into place. … The family are dedicated to the welfare of the children and are clear in their understanding of why the parents’ contact is supervised, and whilst they do not accept that the parents hurt C, they accept there is a police investigation and Children Social Care involvement and wish to work with all agencies for the best interest of C, A and B.”
“167. Drawing all the medical evidence together it appears that: i. Prior to 9:47PM on11 May 2022 there was nothing that I have read or heard to indicate that C was unwell in any way. ii. At some time between 9:47PM and 10:25PM on11 May 2022 C suffered a head injury. iii. These injuries were identified as multifocal subdural bleeding (the largest collection being over the right cerebral convexity, with collections on the left and in the posterior fossa), global severe hypoxic ischaemic brain injury, a ligamentous injury to the cervical spine, a thrombosed bridging vein and multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina. Both optic discs were pink in slightly congested and there were prominent perimacular folds in both eyes.” “178. The medical evidence, therefore, points to the following conclusions: i. C’s subdural haematoma could have originated as a result of the fall but more probably were attributable to a single shaking event. ii. C became acutely encephalopathic at home sometime between 9:47PM and 10:25PM on11 May 2022 . iii. The multiple and extensive retinal haemorrhages extending from the posterior pole into the peripheral retina together with the prominent perimacular folds in both eyes could have been caused by raised intracranial pressure, though unlikely to have been caused by surgical intervention, but more probably were attributable to a shaking event between the times that I’ve stated above. iv. C suffered a thrombosed bridging vein. I accept that these are often seen in anterior to posterior motion head trauma. This motion avulses the subdural veins and some injured veins go on to thrombose or clot off. v. C suffered a severe, global hypoxic ischaemic brain injury. I accept that her brain was diffusely and globally abnormal. This injury is more probably attributable to a shaking event, again between the times I’ve stated above. vi. C also suffered a cervical spinal ligamentous injury. It is unlikely that this injury was caused by a fall but more attributable to a shaking event.”
“179. As I’ve already stated the court cannot consider the medical evidence in isolation. The evidence in this case cannot be assessed and considered in separate compartments. I therefore now consider the medical evidence alongside the other evidence, particularly the evidence given by the parents and the family members, and consider the wider canvas.”
“200. Whilst the immediate and extended family have given their oral evidence calmly without any heightened emotion I was concerned, collectively, by their reliability as witnesses. I exclude the father from this observation as I know he was not present at the time that C suffered her injuries though this court would have hoped, and still hope, that he appreciates the severity of the injuries suffered by C. I give myself a Lucas direction in so far as all the family members, including T but excluding the father, is concerned. 201. I am satisfied on a balance of probabilities that the mother and the intervenors were keen to show a united front when giving their oral evidence despite the fact that there were differing accounts as already stated. Why is that? The simple explanation is that they wish to protect the family member who was responsible for those injuries or protect themselves.”
“205. So, who was responsible for the injuries that C sustained? 206. The local authority in their threshold document has provided a list of those who had the opportunity to cause the injuries suffered by C. If I cannot identify the actual perpetrator on the balance of probability, I should consider whether there is a real possibility that each individual on the list inflicted the injury in question. Having considered the medical evidence and the lay evidence, I cannot identify the actual perpetrator. 207. Having considered each individual on the list I am unable to say that any one individual, so named, inflicted the injuries to C. I am very conscious that two of the extended family are members of a caring profession and have spent a great deal of their current working lives focusing on helping others. Similarly, the mother and maternal grandmother have raised children without any concerns from social services. 208. My findings do mean that each individual on the list remains a possible perpetrator.”
“209. Having determined that C’s injuries were inflicted, the local authority invite this court to conclude that the named individuals colluded to invent an explanation for the injuries and present it to the authorities in an attempt to deceive them into believing that C’s injuries had been caused accidentally. 210. At first blush, such a finding would seem an obvious conclusion to draw from the findings I have made but on closer inspection the key issue to consider is, where is the evidence to support such a finding? I did not hear any evidence to suggest that one or more of the family members had met or exchanged messages to invent an explanation. Was, for example, T or the maternal grandmother involved in such remote or face to face discussions? This court may be highly suspicious but mere suspicion is not enough to make a finding such as this. In some ways the finding is analogous to a ‘failure to protect’ finding sometimes sought by the local authority. As in those cases, such a finding should not be a bolt on to the main finding/s already proved. There has to be evidence of such a failure to protect and it is no different in a case where collusion is being alleged. Whilst this court may be suspicious of what discussions may have taken place it is impossible to say when, how and who were involved in such discussions. I find this allegation not proved on a balance of probabilities.”
“211. I therefore find on the balance of probabilities that: i. between 9:47PM- 10.25PM on11 May 2022 , C sustained multi focal subdural bleeding (the largest being over the right convexity, with collections on the left and in the posterior fossa), encephalopathy, a severe global hypoxic ischaemic brain injury, ligamentous damage to the cervical spine, a thrombosed bridging vein and multiple retinal haemorrhages extending from the posterior pole into the peripheral retina and prominent perimacular folds in either eye. ii. I cannot identify the perpetrator. iii. I do not find evidence of collusion between those named on the list. 212. I acknowledge that these are serious findings for the mother, her daughter, her sisters and C’s grandmother. Future assessments will have to determine whether C can be returned to the mother and father’s care. 213. The findings that I have reached should not prevent any social worker from keeping an open mind as to the future return of not just C but her two siblings to the care of her parents. Much will depend on their response to my judgment and how they propose C and her siblings can be protected in future if they were returned to their care. 214. I note that in so far as the maternal aunts are concerned, they have looked after their children, where appropriate, without any concerns by any agency. That is a significant factor to be borne in mind. Some are in responsible roles. I appreciate this judgment may have implications for their employment. I can only hope that their historically, trouble free time in their employment and the fact that they have looked after and cared for their children without any prior concerns are given serious consideration and weight by the relevant authorities. 215. The maternal grandmother has looked after C since the8 June 2022 . Whilst in her care, C has not come to any harm. I sincerely hope she will be allowed to continue to look after C despite this court’s finding. I appreciate that may be unusual in the light of my findings, but the grandmother had provided care to C for over 12 months and the risk of emotional harm in moving C from her care is a factor I consider to be very important.”
“27 In terms of Ground 4, the judge erred in his consideration of the abnormal brain injury and in his judgment failed to consider the evidence which indicated the abnormal brain injury might have been caused by an accidental fall. I was at all times aware of the mother’s case and the intervenors’ case regarding an accidental fall, however, I rejected that.” “47 It would be useful at this stage just to remind ourselves of the legal document that [counsel for the Guardian] provided to us, and it is p.6 of the bundle of authorities. It is an extract from the House of Lords in Re B [2008] where Baroness Hale she says this: “In the context of care proceedings, this point applies with particular force to the identification of the perpetrator. It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Someone looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was.”
“The simple balance of probabilities test should be applied.” 48 So what does that mean for the intervenors? The court is not looking at the improbability of an event. That is not the legal test. The legal test is whether the local authority have managed to prove threshold on a balance of probabilities and to sit and speculate as to whether how improbable an event is, in my view not the appropriate course. So, I make reference to that dispute in p.19, (a) makes the point that I failed to take into account the improbability of a family member leaving the sitting room to take the baby, who was behaving in an annoying manner, elsewhere and had to calm them down. I do not speculate on that point, but what I can deal with is whether the local authority have proved their case on the balance of probabilities and nothing else. 49 In terms of Ground 15, the argument that was suggested here is that in determining a finding of inflicted injury did not necessarily involve a finding of collusion against all the relevant family members. I failed to take into account the necessary occurrence of collusion further increased the improbability of the account. Well, I am probably not going to take it as far as that. The local authority have to prove threshold. One of the aspects of threshold is that the intervenors had colluded. It is a very easy statement to make. In my judgment I recall making a similar comparison to failure to protect. Sometimes it is an add-on by the local authority and there are numerous cases which make it quite clear this should not be an add-on and in my view it is the same point about collusion. It has been raised, but it has not been proved. It has not been proved with evidence. In my view, that was not proved. It takes it no further than that. Collusion implies that there would be more than one of you involved in discussions. Whether that is telephone or whether by ordinary occasion(?), the local authority have not been able to prove that, and that is it. I do not have to look at the improbability of other events and analyse, “Have the local authority managed to prove that?”
“4. At the conclusion of my deliberations, I dismissed the permission to appeal application. I ordered a transcript and therefore I do not intend to repeat all that I said during the course of the hearing. 5. I would, however, like to confirm that in so far as Paragraph 14 (a) of the ‘Clarification’ document is concerned I took the opportunity of listening to the digital recording and confirmed that the mother said that the child was tapping the stool and not clapping. The relevant paragraphs of my judgment are 184 and 185. Any impression given in my judgment suggesting or implying that the mother was inconsistent in so far as ‘clapping’ is concerned is not valid. I have considered this point of clarification and have concluded that it does not alter the findings I have made. 6. In respect of Paragraph 14 (d) (i) of the ‘Clarification’ document I listened to the digital recording and can confirm that the grandmother’s oral evidence was that she thought it was T who went to make milk. The relevant paragraph of my judgment was 191. I incorrectly stated that it was the maternal aunt, Aunt 2. I have considered this point of clarification and have concluded that it does not alter the findings I have made. 7. In respect of Paragraph 14(e) (i) of the Clarification document I accept that there was no reference to the evidence of the maternal aunt, Aunt 1 in the analysis of the family member’s evidence. I confirmed that I had a detailed note of her oral evidence and before yesterday’s hearing I considered her written evidence. The mere fact that I did not include her evidence in my final analysis does not alter the findings I have made. 8. The remaining points of clarification and the permission to appeal application are contained within the transcript.”
“202. So what conclusions can I draw from the lay evidence? 203. I start with the premise that individuals when describing an incident will not always see and record events as seen by others. In this case there are widely differing accounts given on various occasions for example as demonstrated by T and her grandmother. There are other accounts given by the family members that I have mentioned already which differ with what had been said or written earlier. Those differing accounts cast doubt on the veracity of some of the evidence I heard and placing weight on how C sustained her alleged fall. 204. When I come to consider the wider canvas evidence, I am drawn to conclude on a balance of probabilities that C suffered her injuries as a result of a single episode of shaking rather than a fall. Mr Newton suggested I consider the improbability of such an event taking place in front of a lounge full of family members and children. It would be inconceivable. I agree that such an event seems highly improbable but as stated already it is not the court’s task to determine how C’s injuries were sustained. The task is to determine whether the local authority has proved its case on threshold on a balance of probability. The local authority suggest that C was subjected to a single shaking episode which in all likelihood took place outside the lounge area. I am not in a position to confirm where C sustained her injuries, but I am satisfied on a balance of probability that it took place somewhere at the parents’ home between 9:47pm to just before the call to the ambulance. Anything beyond that is speculation.”