In the Matter of N (A Minor) [2014] EWFC 54

[2014] EWFC 54

No. VO14C00004

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice,

Date 27 th November 2014

London.

Before

THE HONOURABLE MR JUSTICE KEEHAN

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RE: N (Minor)

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MS BAKER appeared on behalf of the local authority

MS CAVE appeared on behalf of mother

MS MIAN appeared on behalf of father

MS CHADWICK appeared on behalf of the guardian

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J U D G M E N T (As Approved)

[1]MR JUSTICE KEEHAN: This matter is listed for a fact-finding hearing in relation to one child, N, who was born on 28 May 2013 and is, therefore, seventeen months of age. He is the only child of M who is twenty-two years of age. N’s father is J who is twenty-seven years of age. J has two children from a previous relationship which ended in early 2012, they are R who is aged eight, and C who is aged four. The father I am told enjoys regular weekly contact with both children.

[2]The local authority issued an application for a Care Order in respect of N on 13 January 2014 as a result of his attendance at the Accident and Emergency Department of Russells Hall Hospital in the early hours of 1 January 2014.

[3]At the outset of this fact-finding hearing the local authority invited the court to find that N had been the subject of an abusive non-accidental injury at the hands of one or other of his parents. Having listened to all of the evidence, in particular that of the Consultant Paediatrician Dr Cartlidge, I was told at the beginning of submissions this afternoon that the local authority had modified its position and now accepted that this was an ill-advised resuscitative shake by the mother of N in circumstances which I shall describe in a moment. I indicated that I wholly agreed with the assessment and conclusions of the local authority, and I applaud the local authority for taking the very realistic and sensible course that it has taken in this case The Law

[4]I remind myself that in a fact-finding hearing where the local authority seeks findings against parents the burden of proof remains on the local authority throughout. The standard of proof is the simple balance of probabilities as explained by the Supreme Court in the case of Re: B

[2013] UKSC 33

. The Background

[5]The parents were married on 12 July 2012. As I have mentioned N was born on 28 May 2013 at which time the parents were living with the maternal grandparents in Ludlow. In or about early November 2013 they moved to their home in Tipton in the West Midlands. It is apparent that from about 21 December 2013 N developed a chest infection. His mother took him to the walk in centre on 22 December 2013 where the doctor prescribed amoxicillin, nurofen and paracetamol. The parents collected the prescription the following day and on Christmas Day 2013 the mother noticed that N had developed a rash on each cheek. On 27 December 2013 the mother took N to the Black Country Practice where she was advised to take him to hospital but she could not do so because she was without transport and the father was at work, in consequence the mother stopped giving N the amoxicillin. On 31 December 2013 I am told and accept that N was vomiting and biting his hands. The father was out at work from about 10 in the morning until about 9 in the evening. Mother says that N was put to bed that evening about 7.30 p.m. and she went to bed before 9 p.m. In the early hours of 1 January 2014 N awoke crying, he then suffered a collapse. The parents both rushed him in their car to the Accident and Emergency Department of Russells Hall Hospital where they arrived around about 2.30 in the morning. Later in the day he was transferred to the paediatric ward of the hospital.

[6]Dr Sharma, the Consultant Paediatrician, who is the named paediatrician for child protection, commenced a ward round at about 10 a.m. on 1 January 2014 where she saw the parents and saw N. She saw him again that day at sometime at about 3.15 in the afternoon. N underwent a CT head scan at about 12 o’clock on 1 January 2014. The following day, 2 January 2014, he was seen by an ophthalmologist who identified severe and multiple retinal bleeding. On 6 January 2014 he underwent an MRI scan. That imaging revealed that N had suffered acute subdural bleeding over the left frontal lobe and into the right (inaudible) interhemispheric region, he had suffered bilateral subdural effusions, he had suffered possible hypoxic-ischemic brain injury, there was a marginal enlargement of the subarachnoid space, there was no focal parenchymal brain injury but there were extensive retinal haemorrhages, there were no skull fractures and no other broken bones found.

[7]Dr Cartlidge in his substantive report to the court advises that the prognosis for N is:

“N improved quite quickly after the initial collapse although he then had troublesome seizures. There was radiological evidence of possible hypoxic-ischemic brain injury. He was progressing well on 11 March 2014. I doubt that N will suffer any marked long-term effects from the head injury but I cannot be certain that he will not have more mild effects such as learning difficulties.”

[8]N had been transferred because of his injuries to Birmingham Children’s Hospital in the early evening of 2 January 2014. He was ultimately discharged from hospital on 4 February 2014 where he was placed in local authority foster care and there he remained until late September this year when after assessment he was placed with his maternal grandparents where he remains. Evidence

[9]The court had the benefit of expert reports from Dr Chapman, the Consultant Radiologist; Mr Richards, the Consultant Paediatric Neurosurgeon; and Dr Cartlidge, the Consultant Paediatrician. No party required either Dr Chapman or Mr Richards to give evidence but Dr Cartlidge was called. He agreed with the consensus of the medical opinion in the experts’ meeting that took place a little while before this hearing, but at the conclusion of that meeting he expressed the view that he would like a more detailed account from the parents about N’s presentation prior to his collapse in the early hours of 1 January 2014. That was provided by both of the parents, the mother in a third statement, the father in a manuscript statement produced at court.

[10]Dr Cartlidge had the benefit of considering both of those statements overnight before he gave his evidence. He explained to the court that he was impressed with the nature of the description given by the mother and father of N’s presentation. It was evident that N had a bad cold, was very mucousy, was coughing and was clearly unsettled at the time that he awoke in the early hours of 1 January 2014. Dr Cartlidge took particular account of the fact that the mother described that immediately before his initial collapse N went bright red and then went very pale with a blue tinge and slight blue tinge around his lips.

[11]The position had been that the father had come from the bedroom downstairs into the living room with N, had been holding him and he is lying in his arms attempting to settle him. Some short time later the mother also came downstairs, she asked the father to pass N to her to see if her attempts to settle him would be any more successful. She held him under his arms, laid him on a mat and then he suddenly appeared to collapse. She, as she told me in her evidence, had always been concerned about N not breathing or suffering a cot death. He appeared deathly pale, she panicked and attempted to revive him by picking him up with both of her hands under his arms and shaking him for a few seconds. All that happened was that N’s eyes opened, she could only see the whites of his eyes and he was unresponsive.

[12]That, says Dr Cartlidge, is a sequence of events that one would entirely expect if a child had suffered a choking episode on mucous or the like, and mucous most likely, and then suffered a reflex anoxic episode, that is stopping breathing, the heart slows and if the child is held upright, as N was by his mother, the blood will drain from his head and he will remain unconscious. It was again entirely expected with that sequence of events that then N would suffer seizures, which he did because both parents describe throughout his journey to hospital him twitching. Furthermore, Dr Cartlidge said that if the child had suffered an initial collapse as described by both parents it would be entirely understandable that a parent would panic and fear their child was dead or seriously injured and would shake in an ill-advised attempt to resuscitate him.

[13]Initially considerable reliance was placed upon various accounts given principally by the mother to medical staff members at Russells Hall Hospital. It is right to note that it is recorded in the hospital notes that at about 4.10 in the morning the mother frankly gave an account of the events at home and admitted that she had shaken N. There appear in the hospital medical records, principally from the consultant and specialist registrars who examined N from the early hours of 1 January 2014 through to the mid-afternoon of that day, that a somewhat different account had been given, namely that the child had been found floppy and unresponsive in the parent’s arms. That account first appears in a note made by a specialist registrar at 3.50 in the morning. It is plain from the note that that account comes from an accident and emergency registrar not from the parents. Sadly there is not within the medical notes a note by that accident and emergency registrar of the source of his account passed on to the specialist registrar at 3.50 a.m. Thereafter it is wholly unclear, when that account is repeated throughout the notes, as to whether it was an account received from the parents or, as in my judgment appears more likely, it is a repetition of the history as recorded in the medical notes, and I conclude that that initial account set out by the specialist registrar of what was told to him by the accident and emergency registrar is of unknown provenance.

[14]There is an account recorded by a registrar on 2 January 2014 of speaking to the mother and taking a history which includes the following:

“At about 2 a.m. baby was downstairs with dad and mum upstairs. Baby crying, went downstairs, baby in dad’s arms trying to pacify him. Baby went floppy and pale, mum grabbed him and went to kitchen, splashed water in his face.”

On one view that could be an inconsistent account, but given that it is a fairly brief account, given the fact that the mother does say that she grabbed the child and then shook him, I am not prepared to find that that is in fact an inconsistent account which indicates that the parents have changed their story in some way that they now give to the court. Such relatively weak evidence would not overturn or affect my otherwise view of the parents that they were giving a full and honest account to the court both in their statements and in their oral evidence.

[15]I was impressed with the evidence of both the mother and the father albeit for different reasons. The mother in her evidence gave a clear account of N waking. It was their usual but not invariable habit that if N woke at night they would both get up, the mother to go downstairs to make up a bottle for him. She heard that N was still crying, she went downstairs, N was cradled in his father’s arms. She asked the father to pass N over to her, he did, she placed him on his play mat. He then appeared collapsed, his condition changed dramatically, he went red in the face and then deathly pallor with a blue tinge around his lips. The mother then describes picking him up and shaking him for a few seconds, she saw his head go backwards and forwards, she saw his eyes open but could only see the whites of his eyes, he did not appear responsive. She ran into the kitchen and splashed water on his face in a further attempt to revive him, that was unsuccessful and then they both immediately got into the car and went to the hospital. I accept that the mother did tell a nurse early on that she had shaken N and she did not feel that she had to repeat every detail and every account on each and every separate occasion when she was seen by medical staff.

[16]The father, J, is plainly a quiet individual who tends to take the back seat in the terms of the running of the household, not unreasonably because he is out working five or sometimes six days per week, and I entirely accept his evidence about when he got back home at night he wants to play a full part in looking after N and to make up for the time that he had not been with him when he was at work. He gives an account, both in his written statements and in his oral evidence, which is entirely consistent with that given by the mother.

[17]The fact that both parents were present in the home and in the same room when N collapsed would be a most unusual event if this were an abusive non-accidental injury. Furthermore, I am satisfied that once N had collapsed the entire focus of both the mother and the father was to get N to hospital and to get medical treatment for him. They remained at the hospital certainly throughout the next twenty-four hours, there was a nurse as I understand it constantly with N, accordingly I find that any suggestion that the parents could have put their heads together to concoct a false story seems extremely unlikely, there simply was not the time. They were both in a state of shock as a result of what happened, the mother must have been not only shocked but feeling enormous great guilt as the realisation came to her over a period of hours that N was being investigated that it was her shaking of him that had caused his brain injuries, and as she movingly said to me in her evidence she has to live with that for the rest of her life.

[18]Accordingly, whilst I in no way criticise the hospital for the approach that they took suspecting non-accidental injury, and in no way criticise the local authority for initiating the child protection procedures that it did making N the subject of a care application and placing him in foster care, I am entirely satisfied, particularly on the basis of the evidence of Dr Cartlidge but also on the basis of the evidence of the parents, that this was an accidental injury. The mother may have been ill-advised to shake, but she did it with no malicious intent, quite the reverse, she did it because she thought she was helping her son. Both the mother, with the benefit of hindsight, and the father in the course of their evidence said words to the effect that the mother may have over reacted in terms of the vigour with which she shook N. Given that I accept that this was a resuscitative shake, it is being too critical in my view to criticise the mother for failing to judge to a nicety that which she did in the extreme panic which I accept she was in at that time. So accordingly I find that N’s injuries resulted from an innocent but ill-advised resuscitative shake by his mother in the early hours of 1 January 2014.

[19]That raises the question as to whether the threshold criteria of section 31(2) of the Children Act 1989 are satisfied.

(b) says:

“That the harm or likelihood of harm is attributable to 1) the care given to the child not being what it would be reasonable to expect a parent to give him.”

The local authority do not demur from my view that the mother’s actions were not at all unreasonable in the circumstances that the parents have described. It was, with the support of the evidence of Dr Cartlidge, entirely reasonable, albeit ill-advised. Accordingly I am satisfied the threshold criteria of section 31(2) of the 1989 Act are not satisfied in this case and accordingly in those circumstances I will dismiss the application for a Care Order with the consequence that N will in early course return to the care of his loving mother and father.

[20]Finally here I wish once more to pay tribute to the approach taken by the local authority in this matter which is entirely consistent with the evidence before the court and with the court’s own conclusions. __________________