“8. Each piece of evidence must be considered in the context of the whole. The medical evidence is important, and the court must assess it carefully, but it is not the only evidence. The evidence of the parents is of the utmost importance and the court must form a clear view of their reliability and credibility. 9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.” 20. The evidence of the parents and of any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them [ Re W and Another (Non-Accidental Injury) [2003] FCR 346]. 21. When seeking to identify the perpetrators of non-accidental injuries, the test of whether a particular person is in the pool of possible perpetrators is the balance of probabilities [ Re S-B (Children)[2009] UKSC 17 ], the first stage being to identify any person who had the opportunity. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child. The court must not assume that because Person A is more likely to have inflicted the injury than Person B that this establishes on the balance of probability that it was Person A. Where it is impossible for a judge to find on the balance of probabilities, for example that parent A rather than parent B caused the injury, neither can be excluded from the pool and the judge should not strain to do so [ Re D (Children)[2009] 2 FLR 668 and Re S-B (Children) ]. Where a perpetrator cannot be identified, the court should seek to identify the pool of possible perpetrators on the basis of the real possibility test, namely that if the evidence is not such as to establish responsibility on the balance of probabilities, it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case [ Re S-B (Children) at paragraph 43]. The need for care to be taken not to reverse the burden of proof when the court considers the pool of perpetrators was considered in B (Children: Uncertain Perpetrators)[2019] EWCA Civ 575 . [para 48] “ Centrally, it does not alter the general rule on the burden of proof. Where there are a number of people who might have caused the harm, it is for the local authority to show that in relation to each of them there is a real possibility that they did. No one can be placed into the pool unless that has been shown. This is why it is always misleading to refer to 'exclusion from the pool': see Re S-B at [43]. Approaching matters in that way risks, as Baroness Hale said, reversing the burden of proof. ” 22. Where there are only two possible perpetrators the court must survey the evidence as a whole as it relates to each individual in order to arrive at a conclusion about whether the allegation has been made out in relation to one or other on the balance of probabilities. Evidentially this will involve looking at them separately and together no doubt comparing the probabilities in respect of each of them. The question the court must ask is “ does the evidence establish that this individual probably caused this injury ” and not who is the more likely. [ Re B (a child)2018 EWCA civ 2127 , set out at paragraph 21.] 23. In this case the local authority advance a case of inflicted injury. The parents advance their case that this was accidental injury; there is no burden on them to do so still less to prove accidental cause. The possibility of other explanations also arises, although it is only lightly touched upon, as no party in particular the parents, suggests that any of the children are responsible. However, for instance in relation to the old subdural haematoma if I were to exclude the ‘stable’ accident or in relation to the humerus/scapula fractures if I were to exclude the trampoline accident that does not lead to the conclusion that on balance of probabilities they were the result of inflicted injury. In the Popi M case[1985] 1 WLR 948 Lord Brandon identified the dangers of the court reaching a conclusion by reliance on the exclusion of other possible causes. “My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: “How often have I said to You that, when You have eliminated the impossible, whatever remains, however improbable, must be the truth?”
“57. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman). 58. In my judgment what one draws from Popi M and Nulty Deceased is that: (i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence. (ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. (iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.” 25. In RvP (Children: Similar Fact Evidence)[2020] EWCA Civ1088 the Court of Appeal at paras 24-26 considers when and how the court should rely upon propensity/similar fact evidence: “24. This analysis, given in a civil case, applies also to family proceedings. There are two questions that the judge must address in a case where there is a dispute about the admission of evidence of this kind. Firstly, is the evidence relevant, as potentially making the matter requiring proof more or less probable? If so, it will be admissible. Secondly, is it in the interests of justice for the evidence to be admitted? This calls for a balancing of factors of the kind that Lord Bingham identifies at paragraphs 5 and 6 of O'Brien. 25. Where the similar fact evidence comprises an alleged pattern of behaviour, the assertion is that the core allegation is more likely to be true because of the character of the person accused, as shown by conduct on other occasions. To what extent do the facts relating to the other occasions have to be proved for propensity to be established?... 26. Again, this analysis is applicable to civil and family cases, with appropriate adjustment to the standard of proof. In summary, the court must be satisfied on the basis of proven facts that propensity has been proven, in each case to the civil standard. The proven facts must form a sufficient basis to sustain a finding of propensity, but each individual item of evidence does not have to be proved .” 26. The father submits that even if the court found that the father had been physically violent to the mother this would not support a propensity to be violent in general or in particular to have been violent towards Z. The court would also have to consider the evidence that the father had a loving relationship with Z which on the evidence is clearly a mutually loving relationship. 27. I do not consider that the allegations of domestic violence to the mother or to A is strictly similar fact, but it is more in the nature of propensity to violence. If the findings establish that prior to the injuries Z sustained there is evidence that the father had demonstrated a propensity to spontaneous violent behaviour that would be potentially relevant to both whether the injury was inflicted and if so by who. Lies/Withholding Information 28. It is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind at all times that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear, and distress. The fact that a witness has lied about some matters does not mean that he or she has lied about everything [ R v Lucas[1981] QB 720 ]. It is important to note that, in line with the principles outlined in R v Lucas , it is essential that the court weighs any lies told by a person against any evidence that points away from them having been responsible for harm to a child [ H v City and Council of Swansea and Others[2011] EWCA Civ 195 ]. 29. The Family Court should also take care to ensure that it does not rely upon the conclusion that an individual has lied on a material issue as direct proof of guilt but should rather adopt the approach of the Criminal Court, namely that a lie is capable of amounting to corroboration if it is (a) deliberate, (b) relates to a material issue, and (c) is motivated by a realisation of guilt and a fear of the truth [ Re H-C (Children)[2016] EWCA Civ 136 at paragraphs 97-100]. Both the mother and the father remind the court that lies about one aspect of the case, for instance domestic violence, should not lead the court to conclude that there is a lack of honesty about another category of allegations namely inflicting injury on Z. I have no difficulty in accepting this proposition. If the parents have been dishonest in various ways, it does not mean they have been dishonest in every respect and it does not mean their evidence can in effect be ignored. However conversely if I find them to be dishonest in a significant way on one category of allegation inevitably it will impact upon the weight that I’m likely to attribute to their evidence on other issues and thus the balance that is likely to emerge. The weight rightly to be given to the evidence of parents who are transparently honest and reliable might outweigh medical and other factual evidence leading to a local authority being unable to prove a case on the balance of probabilities. On the other hand, the same medical and other evidence might establish the local authority’s case when the parent’s evidence can be given little weight because it is transparently dishonest and unreliable. That does not reverse the burden of proof but is simply the outcome of the evaluative exercise of the weight to be given to the various pieces of evidence before the court. 30. I am also alert to the danger of placing too much weight on inconsistencies which may emerge from the giving of multiple accounts over time. In Lancashire County Council v The Children[2014] EWFC 3 (Fam) , Jackson J (as he then was) said: “ To these matters I would only add that in cases where repeated accounts are given of events surrounding injury and death, the court must think carefully about the significance or otherwise of any reported discrepancies. They may arise for a number of reasons. One possibility is of course that they are lies designed to hide culpability. Another is that they are lies told for other reasons. Further possibilities include faulty recollection or confusion at times of stress or when the importance of accuracy is not fully appreciated, or there may be inaccuracy or mistake in the record-keeping or recollection of the person hearing and relaying the accounts. The possible effects of delay and repeated questioning upon memory should also be considered, as should the effect on one-person hearing accounts given by others. As memory fades, a desire to iron out wrinkles may not be unnatural - a process that might in elegantly be described as ‘story-creep’ - may occur without any necessary inference of bad faith .” 31. I bear in mind the observations of Leggatt J in the Gestmin case[2013] EWHC 3560 (Comm) although in this case the danger does not arise so much from the passage of time but rather the profound importance of the matters under consideration, the stress upon the parents at the time the accounts were given and the risk of nuances being lost through the process of interpretation. I accept the mother’s submission that subjecting the parents evidence and that of others who have recorded what they said must be approached with caution and that apparent inconsistencies should not of themselves lead the court to conclude that the parents are unreliable or dishonest. Inevitably when recalling events which have happened some time ago or which were in themselves extraordinarily stressful the parents cannot be expected to be precise or entirely consistent. The same of course is true for other witnesses. As with most issues of evaluation of evidence it is of course always a question of fact and degree in which the consistency of evidence with previous accounts or with other evidence must be the subject of scrutiny and balance. 32. I have, in the particular circumstances of this case reminded myself when assessing and weighing the impression I form of the parents of the observations of Macur LJ in Re M (Children) [ 2013] EWCA Civ 1147 : [12] Any judge appraising witnesses in the emotionally charged atmosphere of a contested family dispute should warn themselves to guard against an assessment solely by virtue of their behaviour in the witness box and to expressly indicate that they have done so. 33. The need for caution in how one evaluates the credibility of a witness and the reliability of their evidence by reference to demeanour and the need for caution in the weight to be given to demeanour in the evaluation of evidence was also articulated by Leggatt LJ in Sri Lanka v Secretary of State for the Home Department[2018] EWCA 1391 . 35. In Re L-W (Children)[2019] EWCA Civ 159 the Court of Appeal allowed a mother’s appeal in respect of a failure to protect finding following a Fact Finding Hearing at which her partner had been found to have inflicted serious non-accidental bruising to her daughter. Lady Justice King said that courts at a fact finding hearing must not fall into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, a finding of failure to protect is almost inevitable - and should be alert to the danger of such a serious finding becoming a “bolt on” to the central issue of perpetration (see para 64). King LJ stated the following: “62. Failure to protect comes in innumerable guises. It often relates to a mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in cases where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child. 63. Such findings where made in respect of a carer, often the mother, are of the utmost importance when it comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children’s best interests will not be served by remaining with, or returning to, the care of that parent, even though that parent may have been wholly exonerated from having caused any physical injuries. Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming ‘a bolt on’ to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, “nearly all parents will be imperfect in some way or another”
“72. I repeat my exhortation for courts and Local Authorities to approach allegations of ‘failure to protect’ with assiduous care and to keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions. 73. Unhappily, the courts will inevitably have before them numerous cases where there has undoubtedly been a failure to protect and there will be, as a consequence, complex welfare issues to consider. There is, however, a danger that significant welfare issues, which need to be teased out and analysed by assessment, are inappropriately elevated to findings of failure to protect capable of satisfying the section 31 criteria. 74. It should not be thought that that the absence of a finding of failure to protect against a non-perpetrating parent creates some sort of a presumption or starting point that the child/children in question can or should be returned to the care of the non-perpetrating parent. At the welfare stage, the court’s absolute focus (subject to the Convention rights of the parents) is in relation to the welfare interests of the child or children.” 37. The mother submitted that the question of whether she had minimised abuse or failed to recognise a lurking risk is a matter for the welfare stage once the question of risk and from whom it emanated had been clearly determined. That certainly is a potential outcome depending on my findings. 38. The question which I raised in the course of submissions was the relevance of cultural or other issues which might bear upon the reasonableness of the actions or inactions of an individual who has been said to have failed to protect. For an individual brought up in a culture where violence to women and children is normalised or acceptable and where state authorities do not normally intervene to provide protection or support, or where the individual is a victim of serious domestic abuse and is disempowered as a result, is the court to apply some notional objective (by whose standards) threshold of what a parent might reasonably have been expected to do or does one apply a subjective standard; what was it reasonable for that parent to do. I was unable to hear detailed submissions on the issue and have not been in a position to formulate an approach which is anything other than case specific. In this case it seems to me in determining whether a parent has failed to protect their children one has to consider that parent in that situation. As Lady Justice King made clear the consequence of a finding of failure to protect is not binary but rather is a matter which would fall for further consideration within the paramount welfare evaluation. Factual Evidence 39. My summary of the evidence and many of my conclusions on it are contained within the very lengthy and separate Chronology: Appendix A. Experts meeting and the interplay of the formation of opinions 40. The consequence of the exchanges of the medical reports and the experts meeting inevitably informed the overall opinions that the experts finally came to and to some extent aspects of or the final sum of their opinions were based on the opinions of other experts rather than purely within their own field. They were cognisant of this fact and all at some stage accepted the interplay, were ready to identify the limits of their expertise and where a matter was within the field of another expert. There were some minor areas of disagreement which appeared either on paper or as a result of oral evidence; for instance Dr Offiah did not agree that axonal injury could not result from a stair fall as it appeared Prof Al-Sarraj had opined but on closer examination Prof Al-Sarraj’s opinion was not as definitive as it might have appeared to Dr Offiah and Mr Jayamohan and Dr Offiah were both of the view that a stair fall could explain the injuries to the skull and brain whereas Prof Al-Sarraj, at least initially seemed to rule that out. 41. In the experts meeting Dr Cary emphasised that neuropathology is the gold standard but in this case, what was seen on acute presentation was important. It was also noted that what Dr Offiah had seen on the radiology was trumped by what was seen at autopsy in terms of the presence of skin lacerations; although Dr Offiah was not inclined to accept this in respect of soft tissue injuries. Dr Cary said they found no deep injury underneath the discolouration on the right cheek whereas Dr Offiah’s report confirmed a soft tissue injury in that location. 42. The contents of the discussion between the experts is a source of much information and the discussion between the experts casts their subsequent evidence into perspective, in particular the extent to which their final views have been informed by the views of the others. Following the meeting their joint views were summarised in Tabular form. (Appendix B). Drs Offiah, Cleghorn and Kapoor did not participate in the meeting and so their views are either not incorporated or are included through the mechanism of Dr Offiah and Dr Cleghorn both subsequently answered the questions posed in the meeting. Expert Medical Evidence 43. Dr Cary provide a preliminary post-mortem report and after all the other fields (save Dr Kapoor) had reported he provided his final report. He also participated in the experts meeting and gave oral evidence on the 7 th July. His expertise is well evidenced, and he was ready to acknowledge the extent to which he relied on other specialties in reaching his overall opinion. He also recognised that his role in drawing together all of the various opinions was like putting the jigsaw together and that in the criminal arena he might have both a gatekeeper function but also at trial a role more akin to a determinative one on the cause of death. In its totality (and of course in summary) his evidence appears to me to be as follows. i) He conducted the special postmortem with Dr Liina Palm and he identified that this was a process he had helped to initiate and that he focussed on forensic issues and Dr Palm as a paediatric pathologist to look at natural conditions or congenital abnormality. The post-mortem was conducted between 10 AM and 15:00 hours on3 June 2020 at Great Ormond Street Hospital. ii) The old scarring from the burns was noted; Dr Cary observed he was concerned about how they had been caused but deferred to the views of the burns experts. Some non-burns related scars were present, but they were within the parameters of ordinary childhood injury. iii) Recent injury marks were found in the form of a) There are three small petechial marks just to the left of the midline of the forehead up to 0.2cm a piece. b) Irregular abrasion upper bridge of nose up to 0.8cm side by side and up to 0.3cm longitudinally, Slight abrasion across the lower outer aspect of the right nostril 0.3cm longitudinally and 0.2cm wide. Faint grey discolouration over the posterior right cheek. there was no evidence of deep injury beneath this c) Cluster of petechiae over the inner third of the right collar bone up to 1cm side by side and up to 0.8cm longitudinally. d) Slight healing abrasion over point of left elbow superficial 0.2 x 0.2cm. e) No laceration or abrasion to the rear of the scalp was noted. A minor abrasion might have healed. iv) The neurosurgery scar running from the high right frontoparietal region to the right tragus does not impinge on the injured area at the back of the head although the operation and the movement of the scalp during the operation has caused sub-scalp bleeding. A separate area of sub-scalp bleeding in the right frontal area is noted; I think Dr Cary considered this might be linked to or affected by the operative intervention and how the scalp was moved. A diffuse sub-scalp haemorrhage over the occipital region running to the superior parietal region overall 11cm by 6cm more intense on the left than right; Associated with the impact to the back of the head. v) Then there is an occipital skull fracture running upwards about 1.2cm to the right of the midline from the right side of the foramen magnum. This fracture continues by curving around and passing into the posterior part of the right parietal bone, producing a flattened sigmoid shape. Overall, the fracture measures 12cm long. The evidence of Prof Mangham confirms an older fracture and a ‘refracture’ which also includes virgin bone meaning that this element of the fracture would require the same force as required to fracture unbroken bone. If it was purely refracture less force would be required. vi) The brain shows a small amount of residual subdural haemorrhage on the right side superior early. The spinal-cord shows subdural haemorrhage throughout its length. vii) There was no evidence from dissection of any deep injury (bruising) beneath the discoloured area of the face and no evidence from the points of the shoulders, outer aspect of the hips, elbows or knees of bruising to any prominences. viii) Slight area of subcutaneous bruising in the sacral region in the midline up to 2.5 cm longitudinally and up to 1 cm wide and some streaky bruising running down the right digastric muscle and over the end of the right sternohydroid muscle. The neck area is also a protected area so not likely caused from a fall downstairs. ix) There is no evidence of any natural disease or congenital abnormality that caused or contributed to death nor any toxicological cause or contribution to death. The cause of death is severe head injury. x) This head injury is characterised by the presence of a space-occupying subdural haemorrhage and extensive right occipital skull fracturing. In my opinion these findings are indicative of a substantial blunt impact at the back of the right side of the head. There is no evidence of any impact related laceration or patterned injury, making weapon type impact less likely, although this cannot be completely excluded. The absence of a laceration or split in the scalp makes an impact with the radiator unlikely as the sort of force that would be involved to then cause the skull fracture and brain injury would be expected to split or abrade the skin significantly which was not apparent at the post mortem. Whilst a minor abrasion might have healed a significant one would be expected to be present. The presence of blood noted by Dr Bokhari in the hair or pillow which he linked to a boggy or bloody swelling may not have come from the back of the head but come from her nose or mouth and tracked back into her hair. xi) An absence of bruising on prominences such as knees, elbows and shoulders makes a fall down the stairs implausible. Clothing may protect more from abrasions but not from bruising. The injuries noted to her face in the photo taken at home could be a couple of days old and are more consistent with a hand on the face (grappling) and nails scratching rather than a fall downstairs as they are in protected areas. Similarly, the abrasion on the collar bone is in a protected area and less likely to be caused in a stair fall than injury to the prominences. At this age young children falling on the stairs tend to tumble (because of their height and low centre of gravity: Z was 0.9m (75 th centile and 13kg)) and progressively dissipate energy. In the course of such tumbling bruises and / or abrasions tend to be seen on the bony prominences. In my opinion this is the sort of injury which results from direct impact such as through being thrown to the floor or forcibly dashed up against a wall or some other upright structure. Whilst from a purely radiological or neurological perspective the injuries sustained can be explained by a fall the overall constellation does not fit. xii) He accepted that not all falls downstairs would be tumbling falls although emphasise that matchstick falls were more likely with an adult than with a toddler of Z’s height and weight. He also accepted the possibility of a fall midway downstairs. A free flight from top to bottom with no dissipation of energy on the way down fits but that might fit with an adult fall but unlikely with a child fall. A trip whilst running ½ way down is conceivable but injury to the front of the face and skull would be more likely; this is not a referred injury to the back of the head. It is doubtful that a trip part way down with free flight and no contact until hitting the bottom would give sufficient time for the degree of rotation to impact the back of the head. xiii) It is possible that an unwitnessed fall could take place in a way which we cannot predict. Fatal accidents to children in the home are incredibly unlikely whilst stair falls are not and do not usually cause serious injury in children and a fatal injury exceedingly rare although that does not mean impossible. The case studies do show a range of outcomes in stairway falls and in some there are not visible soft tissue injuries. However, we can look below the skin for bruising under the skin. Experience tells us unusual events occur. Adults are more likely to suffer serious injury as their height means they are more likely to fall from top to bottom without dissipating energy on the way down by impacting on the walls or stairs themselves. He also considered that the earlier serious head injury indicated two exceptional events. xiv) There is also evidence of an older skull fracture described by Professor Mangham and timed as having occurred between 4 and 7 days prior to death. This older skull fracture showed evidence of re- fracture which would be consistent with being the result of the more recent impact head injury causing death. In my opinion it is likely that these older signs of head injury were also the result of substantial impact. xv) The presence of an older humeral fracture indicates that there has been a further significant injury episode. Such a fracture would require significant twisting forces to be applied to the right upper limb. As Professor Mangham points out this injury episode may also have been associated with the causation of the fracture to the spine of the right scapula described radiologically by Dr Offiah. A fracture of the scapular spine tends to require direct impact for its causation, and this could be an example of another inflicted impact from being thrown to the floor or against some upright structure. A trampoline can be dangerous and cause more serious injury as it magnifies the amount of energy involved because falls are from a greater height than usual with a child. The injury to the humerus and scapula are separate in the sense that the rotational forces which caused the humeral fracture cannot be transmitted through the joint to cause that sort of fracture to the scapula. Both injuries would be expected to cause pain; the upper arm would be used less and the scapula would cause pain when lying on it. xvi) The following was agreed in relation to the published research: a) Toddlers under the age of 4 were most likely to suffer head injuries from a stair fall; b) Head and neck injuries were the most common form of injuries suffered; c) In two of the three studies, only 12% and 55% of falls produced observed soft tissue injuries/abrasions or contusions; d) In one of the studies, 22% of head injuries were significant; and e) There was no clear difference in significance of injury between those toddlers falling down a full flight of stairs (11 or more) and falls from lower levels including up to 4 steps. 44. Dr Palm conducted the postmortem addressing the paediatric pathology side. One of the matters she reported was that microscopic examination showed the presence of haemosiderin pigment in the sacral subcutaneous bruise (plentiful) and in the right digastric muscle (sparse) indicative of at least 48 hours before death. No haemosiderin deposition was detected within the submandibular gland. 45. Dr Al-Sarraj provided his report in September 2020, attended the experts meeting and gave evidence on the 6 th July. The totality of his evidence seems to me to be as follows. i) Histological Findings a) Evidence of surgical intervention of craniotomy in the right dorsal dura. b) There is remnant subdural haematoma mixed with surgical material used for haemostasis. Histological examination of the subdural haematoma shows recent bleeding composed of well-preserved red blood cells with no evidence of macrophage infiltration or haemosiderin pigment deposition, therefore consistent with recent subdural haematoma of less than 48 hours duration. c) Fragments of thin extradural haematoma over the left dorsal dura. Histological examination shows recent bleeding composed of well-preserved red blood cells with focal neutrophil accumulation but with no significant macrophage infiltration or haemosiderin pigment deposition therefore in keeping with extradural haematoma of less than 48 hours duration. d) Extradural haematoma over the infratentorial dura. Histological examination shows mixed old and recent bleedings. The old bleeding shows healing process forming spindle-shaped fibroblasts with dense macrophage infiltration and haemosiderin pigment deposition. The appearances therefore are consistent with extradural haematoma of several days or more duration. This old haematoma is mixed with recent extradural haematoma composed of well-preserved red blood cells. e) Small amount of recent subdural haematoma in the thoracic segments of spinal cord composed of well-preserved red blood cells consistent with subdural haematoma of less than 48 hours duration. This is most likely extension of large intracranial subdural haematoma but he was not confident in this regard. f) Histological examination also shows minute microscopic accumulation of macrophages in the subdural space in a few locations of thoracic segments which raises the possibility of small minute old subdural haematoma. g) Brain swelling and evidence of herniation of right uncus. Histological examination shows necrosis and haemorrhage extending to the hippocampus. h) Contusions in the following areas: a. Dorso-lateral surface of right parietal lobe (at the level of splenium) associated with subarachnoid haemorrhage. Histological examination shows recent bleeding in the cortex with no reactive changes in the surrounding brain tissue. Therefore, the appearances are consistent with contusions of less than 48 hours duration. It is possible that this location is associated with the herniation and secondary damage to pressure-effect at edge of incised dura. b. Inferior surface of left frontal and temporal lobes. Histological examination of these contusions shows relatively older contusions. There are reactive changes, necrosis of neural tissue, macrophage infiltration and proliferated blood vessels. Therefore, the appearances are those of contusions of a few and probably several days duration, most likely more than 5-7 days. i) Small haemorrhage in the mid and posterior parts of corpus callosum. This is confirmed by histological examination which shows vacuolation and intense axonal injury. The appearances are consistent with vascular damage caused by pressure-effect and shifting of brain tissue from one side to another. j) Dusky discoloration of right calcarine cortex (occipital lobe). Histological examination confirms haemorrhagic infarction. Small haemorrhages in the midbrain and pons involving area around substantia nigra in the tectum and tegmentum and in the midline position. These are associated with vacuolation and intense accumulation of BAPP indicating axonal injury and consistent with dural haemorrhage caused by caudal displacement of brainstem due to increase in the intracranial pressure. k) Widespread axonal injury detected by formation of axonal retraction balls in the internal capsule and middle cerebellar peduncle and widespread accumulation of BAPP throughout the brain seen in two different patterns: a. Ill-defined areas with granules and filaments consistent with ischaemic damage to the axons and confirming the ischaemic damage to the brain described earlier; b. Well-defined rounded and fusiform globules and thickened, beaded filaments which raise the possibility of additional damage to the axons due to trauma. l) Mild and diffuse increase in number of activated microglia cells. ii) Brain examination confirms brain injury which had caused a large subdural haematoma. This had caused significant pressure-effect on the brain requiring surgical intervention of craniotomy to evacuate the subdural haematoma. The large subdural haematoma had caused increase in the intracranial pressure leading to brain herniation, shifting of brain tissue from right to left haemorrhagic infarction in the right occipital cortex and caudal displacement of brainstem leading to brainstem haemorrhage. iii) The increase in the intracranial pressure due to pressure-effect on the brain had also been further complicated by ischaemia (damage to the brain tissue due to lack of oxygen and blood supply), most significant in the right cerebral hemisphere but also present in other parts of the brain. iv) The neurosurgery had affected to some degree the ability to analyse the sub-dural haematoma and may also have affected the ischaemic damage and some other aspects of his findings but where he had drawn conclusions as to the probable cause this took that into account. v) There are recent contusions in the dorso-lateral aspect of right fronto-parietal region. This is demonstrated in the naked eye examination of the brain and also confirmed by microscopic examination. The appearances are consistent with small and localised damage to the cortex of the right fronto-parietal area of around 48 hours duration. It is possible that this could have been caused by direct impact injury. The other differential diagnosis is localised brain damage due to pressure-effect of incised edge of dura associated with herniation of brain tissue caused by increase in intracranial pressure. vi) There is widespread accumulation of BAPP in the brain indicating axonal injury. This appears to be of two different patterns. The majority is seen consistent with ischaemic damage to the axons and confirms presence of ischaemia described above but there are other patterns raising the possibility of traumatic damage to the axons seen in the corpus callosum, internal capsule, cerebral white matter, middle cerebellar peduncle and possibly pons. The possibility of additional traumatic damage to the axons supports severe traumatic brain injury which could be in keeping with traumatic diffuse axonal injury (DAI). The presence of axonal retraction balls (demonstrated in H&E stain) in at least two locations supports traumatic damage to the axons. However, the possibility that these are also caused by generalised ischaemia cannot be completely excluded. The traumatic nature of them is 75-80% likely. vii) The abovementioned features of recent traumatic brain injury which had caused the large right sided subdural haematoma, left sided extradural haematoma over left dorsal dura, possible contusions in the right fronto-parietal lobe and widespread axonal injury (damage to the brain structure itself) are all consistent with recent injury. There is mild and diffuse activation of microglia cells throughout the brain and spinal cord. Therefore, the appearances are in keeping with injuries of slightly more than 48 hours duration and timing of 54 hours survival (as indicated in clinical history). viii) In addition to the recent injuries described above, there are features of older traumatic brain injury. There is an extradural haematoma associated with the older skull fracture. In addition, there are contusions in the inferior surface of frontal and temporal lobes which on histological examination show features of a few to several days duration and most likely more than 5-7 days. Prof Al-Sarraj emphasised timing was not precise and he preferred a few to several days as giving numbers tended to lead to too close a focus on the number. He noted that there is no research on the effect of brain injury/ICU on the healing process and that the timing of an injury was in statistical terms more likely in the middle of the range but not knowing the shape of the bell curve made it imprecise and relying on the range better reflects the uncertainty in timing. Outside the range it eventually becomes so improbable as to be impossible or inconsistent. Delayed healing might have affected the acute injury but not the older one. There is also thin extradural haematoma over the infratentorial part of dura which also shows features of old healed bleeding of fibroblasts with macrophage infiltration and haemosiderin pigment deposition. There are areas of calcification. The appearances are difficult to time with precision but some of the appearances could be of a few to several days duration and therefore in keeping with timing of old contusions in the frontal and temporal lobes described above but there are other features such as the calcifications and bone formation which suggests older head injury. Nevertheless, the features of calcification and bone formation could be part of evolution and growing of dura in relation to the skull rather than being part of old bleeding. ix) The pathological findings show clear evidence of two distinct events; although the range for timing purposes may overlap there is no histological overlap but two distinct events where the healing processes in one individual show different stages. There is no continuum where you can have an overlap but two distinctly different events occurring. For the more recent injuries you can see well preserved blood cells where the outer shape and intensity are clearer, and they are well preserved whereas older blood cells have lost their clarity of definition and intensity. x) The older injuries to the lobes of the brain are consistent with contre-coup injuries sustained following a blow to the back of the head with the brain moving inside the skull and being injured in the frontal region. xi) The mechanism of recent head injury which had caused large subdural haematoma is likely to be an impact-related injury; references in the early report to the possibility of an instrument being involved was an example of a possible cause only. The subdural haematoma is considered as traumatic; no natural disease or other explanation was found. xii) I have noted Dr Cary's provisional view that there are no contusions correlated with falling down stairs (such as abrasions in elbows, shoulders and knees) which would imply that the impact is most likely intentional direct impact on the head. The presence of recent extradural haematoma over the left dorsal dura supports severe direct impact on the left side of the head. However, impact on the back of the head which could have caused the skull fracture in the occipital lobe (depending on timing of occipital lobe fracture) is another possibility. xiii) The nature of the trauma involves significant energy and acceleration and deceleration forces with probably rotational force. The probable traumatic damage to the axons supports the high severity of head injury which is less likely to be caused by tumbling down the stairs. Overall these aspects of the axonal injury (which were cross-checked in evidence at the suggestion of Mr Jayamohan) were in Prof Al-Sarraj’s view trauma related Their significance was that axonal damage in these compartments of the brain which are the best protected are consistent with high energy events like car crashes and falls from significant heights (over 3-4metres) but might also be found in accelerated falls (for instance from being punched or falling whilst running) or assaults with an implement. xiv) The published papers on injuries to children from falls, including in stairways (which are epidemiological rather than specific case studies) show children rarely suffer serious injury or death from a fall down stairs although of children toddlers are the most likely group to suffer a serious injury or (in the Behera paper) death. In the Sheffield paper only, children dropped on stairs suffered a skull fracture. The paper which identifies a number of deaths to children being associated with stairway falls does not identify whether the death was caused by head injury (although it was the commonest cause of death in that study) and one questions the reliability of the report that it was a stairway fall which led to death. Stairway falls rarely result in serious injury or hospitalisation let alone death. A tumbling fall down stairs is not likely to generate that energy, but some other fall might and if the head struck an object with a small surface area which might have concentrated the energy of the fall it might. That would need to be cross-referenced with the findings on the skull and scalp. He accepted in cross examination that the research papers painted a more mixed picture than that which had been depicted during the experts meeting and that there were examples of children with no soft tissue injuries or abrasions after a reported fall downstairs. He also accepted that one of the papers included 7% of the deaths arising from reported fall stand stairs. xv) As with all childhood traumatic brain injuries, further critical correlation with autopsy findings, clinical information, eye examination, neuroradiology examination and histological examination of fractures are all essential before final conclusion. 46. Dr Malcolmson, consultant Paediatric and perinatal pathologist provided a report following a macroscopic examination of Z’s eyes. He accepted that his was only part of the picture and that there was a gap in the science when it came to drawing conclusions about the precise presentation within the eyes in the context of a possible fall downstairs. i) There is very prominent optic nerve sheath haemorrhage bilaterally within the subdural pseudospace surrounding the optic nerves, associated with relatively mild bleeding within the substance of the dura and the adjacent orbital soft tissue. The subdural bleeding is especially prominent immediately posterior to the globes where focal subarachnoid haemorrhage is also noted. There is no obvious haemorrhage within extraocular muscles or non-optic intraorbital cranial nerves. ii) The retinae show occasional (more rarely in the left retina), small, intraretinal haemorrhages, focally involving the sub-internal limiting membrane (subILM) zone, the nerve fibre layer (NFL), plexiform layers and nuclear layers. Such haemorrhages are noted in the mid- and far peripheries with at least one haemorrhage in both eyes present at the ora serrata. A subretinal haemorrhage with focal retinal detachment is noted in the right eye. iii) There is haemorrhage at the optic nerve / scleral junctions in the regions of the vascular circles of Zinn and Haller bilaterally. iv) No evidence of congenital or other significant natural disease processes affecting the eyes either from his examination or from Dr Palm. v) The eye pathology findings in this case can be summarised as showing a small number of retinal haemorrhages in multiple retinal layers, predominantly in the mid- and far peripheries of both eyes. In addition, there is retinal oedema near the posterior poles, short of retinoschisis but associated with focal minimal haemorrhage on the right. Further, there is severe bilateral optic nerve sheath haemorrhage and haemorrhage at the optic nerve / scleral junctions. There is minimal recent haemorrhage within orbital fatty soft tissues around the optic nerve sheaths but no obvious haemorrhage within extraocular muscles or non- optic cranial nerves within the orbit. vi) No deposits of haemosiderin (a blood breakdown product) were detected in the retinae, optic nerve sheaths or orbital soft tissues. Accordingly, the eye pathology findings have been of relatively recent onset. A lack of haemosiderin deposition is consistent with an elapsed survival period of less than 2 to 3 days from the index incident to death. There is no study within this field which bears upon Prof Mangham’s view that bone healing can be repressed/delayed by severe brain injury and intensive care. vii) The pathological features present in these eyes are compatible with acute, severe traumatic head injury associated with a brief survival period of up to around 2 days or so. A pattern of relatively few, small retinal haemorrhages and more prominent bilateral optic nerve sheath haemorrhages is more compatible with blunt force impact trauma to the head rather than being especially supportive of an inertial / angular acceleration-type mechanism of injury. The haemorrhages are not from blood tracking into the eye either from the SDH or from the operation. The structure of the eye would not permit this. The haemorrhages are from the energy of the impact rupturing the vessels which serve the eye. viii) These sorts of injuries are associated with very high energy incidents; head-on collisions, t-bones, rolling over. They are not particularly indicative of accidental or non-accidental trauma although are less consistent with a low-level fall, including down stairs, unless some exceptional component is also present which takes it out of the expected energy in such a fall. The studies (such as they are) suggest that children rarely suffer very serious head injury of this sort or die from stair falls. The fact of eye injuries and their pattern in this case are less consistent with a fall down stairs; low level falls rarely associated with retinal haemorrhage and when they are they are at the posterior pole, few in number and superficial which is different to those found here. The optic nerve sheath damage in particular was indicative of high energy traumatic injury. In 14 years he had come across a handful of cases where injuries of this sort had occurred and were said to have occurred in a stair fall but there were features of those cases which called into question whether it was a stair fall. He accepted there was a need to be cautious about making assumptions as to mechanism as rarity of events did not mean they did not happen. Exceptional circumstances could be found in the speed of the impact or an impact not on a flat surface but a pointed surface which would increase the force on a small area of the head rather than it being dissipated on a flat surface. A knob or sharp edge of a radiator might fall into that category, but Dr Cary would be better placed to advise. ix) The fact that there is no evidence in the eyes of an earlier injury is not inconsistent with an earlier injury (skull fracture and sub-dural haematoma - if they are found to exist) as these sorts of injuries to the eye are associated with very high energy impacts and one can have skull fractures and SDH without associated eye injury. Skull fractures are not uncommon in domestic accidents. x) The location of the eye injuries and their symmetry across both eyes does not tell us much about where the point of impact was. 47. Mr Jayamohan, consultant paediatric neurosurgeon provided 2 reports, contributed to the experts meeting and provided a short addendum report following that. He gave oral evidence on the 6 th July. Taken in its totality his evidence is as follows. i) The clinical findings of this child were of very significant raised intracranial pressure on admission to hospital in a coma with sluggishly reacting pupils, growing dilation and then fixed pupils bilaterally, flexing and then posturing and at KCH she is non-reactive. She was immediately intubated and transferred to KCH within 2 hours. There is evidence of continuing neurological deterioration after admission. ii) The pattern of deterioration is not a straight-line but variable. In general terms if all the sub-dural collection seen on CT scan on admission was acute one would expect her to be immediately unconscious, not screaming or inter-acting, possibly vomiting although not all do if they are immediately unconscious. If the subdural collection represents acute bleeding into a pre-existing subdural collection then the deterioration would likely be a more progressive one where she might have had a reduced level of consciousness (and being clearly unwell) rather than being immediately unconscious, might have cried or screamed for a period of time (more likely to be minutes and unlikely to be half an hour) as her level of consciousness reduced, getting quieter and quieter may have begun vomiting immediately or at some later point and lasting over ½ hour. The observations as to her state at her appearance at hospital would tend to support the event occurring later in the window 9.09am - 10.52am. iii) The cause of this raised intracranial pressure can be seen on the initial scans. There is a large subdural collection over the right cerebral hemisphere with midline shift and the beginnings of ischaemic injury first affecting the right and then both cerebral hemispheres. The majority of the ischaemic damage is likely to be acute rather than operation related although some proportion might be. The scalp swelling seen at the back of the head is overlying a significant occipital skull fracture and the occipital bone is the strongest one over the skull vault. iv) The fact that the subdural collection was evacuated during the neurosurgery reduces our ability to identify what it was made up of and samples do not appear to have been collected for testing. It does not appear from the notes of the operation or from the appearance of the CT scans that there was an ongoing bleed (creating hyperacute blood). From its appearances on the CT scans this is most likely a mixture of fresh (acute) blood, very clearly seen at the top of the head in small separate discrete areas, but the majority is bleeding into an already present subdural collection. The subdural collection is not likely to be from some earlier subdural haematoma rebleeding as there is no evidence of membranes from the operation which might be the source of rebleeding. Nor is it likely to be from cerebro-spinal fluid as there is no evidence of an opening or tear of the arachnoid membrane which would be necessary for CSF to appear in the subdural space and in any event would have to occur against a pressure gradient. Nor is it likely to be an acute traumatic effusion; its size was inconsistent with this in his experience. Whilst not entirely ruling out other possible causes which might be consistent with a single injury he was clear that the most likely explanation for the subdural collection is an acute bleed into a pre-existing subdural haematoma. The appearance of the CT scan shows gradation from the acute blood (white) to the greyer colour which is blood which has begun to break down becoming less dense as it turns to liquid and the fresh blood can sink into it. v) Overall the evidence supports the conclusion that the subdural collection seen on CT scans is comprised of both fresh blood (radiologically less than 10 days old) and chronic subdural blood (older than 2 weeks old) which is distinguishable by the appearance of the fresh blood in the older collection. vi) Subdural haematomas may resolve and disappear as the liquid is reabsorbed into the body or it may calcified giving the appearance of a second skull but without neurological consequences. They may grow membranes which can re-bleed. However, they may also remain present drawing liquid into them with pressure slowly increasing and causing minimal if any symptoms. If the pressure slowly increases, there may be slowly emerging neurological symptoms. The human brain however may simply accommodate a subdural collection without any neurological compromise. The subsequent acute bleed into the subdural space with the sudden changes which may have accompanied it and then led to the sudden rise in intracranial pressure and Z’s collapse. Had the previous subdural collection not been present the acute bleeding may have had less of an effect. vii) Dating the chronic subdural haematoma from a radiological perspective is difficult; all that one can say is that the CT scan appearance suggests it is older than 2 weeks, but it could be much older - dating back to the time Z was in Afghanistan. This would therefore date in the appearance of the majority of the blood as being a few weeks old in order for it to become liquid enough to see that appearance. This would be in keeping with a previous injury causing an old subdural blood clot, and again I am minded to consider the older history, in particular the potential 2m fall. While I would have expected Z to have shown some symptoms at this stage, they are not always present. viii) The amount of area the CT scans seem to show as being attributable to acute or chronic bleeding is not readily translatable into the actual volume is present in the skull. The fact that the brain expanded quickly back into the cavity after the subdural haematoma was evacuated in neurosurgery is more supportive of the brain having been compressed as a consequence of the acute blood rather than the brain having been compressed by a chronic subdural collection. In the latter scenario it would be expected that the brain would have adapted to the collection and would have taken longer to expand and fill the space vacated by the subdural haematoma. In addition, the amount of space seemingly taken by the subdural collection is likely to have resulted in clear and obvious change to Z’s neurological functions. This also would support a significant volume of the subdural collection being acute. ix) Z’s head circumference (75 th centile) is less consistent with her having sustained a head injury leading to a significant subdural collection although the absence of any records of her head circumference from Afghanistan is a limitation on what one can infer from this. If she had a chronic significant subdural collection it would likely have caused her skull to grow accordingly particularly if it occurred prior to 22 months when the skull bones in a child are becoming fused. Between 18-24 months the sutures are becoming sticky. If it was after 22 months the bones are more fused so there is less likelihood of the head size being affected. x) The extradural haematoma is associated with the earlier fracture. The fracture and haematoma and the lobe contusions identified by Prof Al-Sarraj (if they are linked in timing terms) would not necessarily have resulted in neurological consequences for Z albeit it would have been a significant event involving significant forces to fracture the skull. After a period of distress associated with the impact causing the fracture, she might have simply been quiet and unless the fracture was pressed, she would not necessarily have demonstrated any obvious pain or other behavioural change. xi) Overall, there appear to be three different ages of head injury supported by the radiological clinical and pathological findings: a) Old subdural blood greater than two weeks old but potentially dated at 5 to 10 weeks or even older. b) Skull fracture and extradural blood that is 5 to 7 days old. Frontal lobe contusions (to be dated by Prof Al Sarraj) of a few to several days old. c) Skull fracture/re-fracture and fresh bleeding into the extradural space and bleeding into the right subdural space. In addition, there is evidence of axonal injury to the structure of the brain. Some of this is linked to ischaemic damage arising from the swelling to the brain cutting off the blood supply and some also may be consistent with the neurosurgical intervention. There also appears to be axonal damage arising from trauma subject to Prof Al Sarraj confirming this. xii) A fall from 2 metres could explain the chronic sub-dural haematoma. The mechanism for the skull fracture and the extradural haematoma is a significant impact event sufficient to break the strongest bone in the skull, the occipital bone. xiii) The most recent injuries are caused by some form of traumatic impact of a significant sort involving significant energy. It could be accidental or non-accidental. A tumble down stairs will dissipate the energy so the impact at the bottom is lessened but a fall could occur in a way which doesn’t dissipate the energy. A throw would involve significant energy not being dissipated until impact but that is not to say that is a probable cause; it is one of a number of possibilities. A fall downstairs could involve rotational elements and could generate sufficient force on impact at the foot of the stairs to cause this injury depending on precisely how it happened and could cause traumatic axonal injury where the impact has caused tearing of the nerve fibres. You can get skull fractures from a standing fall in infants. It could not be ruled out, but all of the picture must be brought to bear. xiv) The evidence does not point to a shaking type event or any condition which might explain any of the findings. xv) The account given by the parents of the diminishing consciousness, vomiting are typical of raised intracranial pressure. 48. Mr Harish Kapoor, a consultant orthopaedic and trauma surgeon was instructed to give an opinion in respect of issues relating to the likely mechanisms for the causation of the fractures to the right humerus and right scapula, Z’s likely presentation thereafter and the likely awareness of the parents. Mr Kapoor has extensive clinical experience over many years of paediatric trauma. He was instructed because the experts meeting identified a need for input as to the mechanisms for the humerus and scapula injuries. Of all of the experts he was perhaps the most emphatic in his evidence and was somewhat defensive when challenged by counsel. However although his evidence might have benefited presentationally from a more detached delivery ultimately one cannot escape from the depth of experience that he brought to the case. I do not think his evidence needs to be approached with profound caution as submitted by the mother but rather it must be fitted into and judged alongside all the other evidence. It also seemed to me that in its content his opinions were objective but most importantly he was very clear in his conclusion that they were inconsistent with the explanation given by the parents and consistent with an abusive event. 49. He provided a report and gave oral evidence on 9 July. The salient points of his evidence appear to me to be as follows. i) The radiology images confirm a spiral fracture in the lower part of the right humerus. It is a complete fracture. It requires a significant twisting/torsional force to the arm. The treatment for the fracture would likely have been a cast to immobilise the fracture but some might have simply used an underclothing sling to immobilise. ii) The radiology confirmed a healing fracture to the spine of the scapula extending into the body with callus formation obliterating the fracture line. It would usually be treated by immobilisation via a underclothing sling. iii) The scapula is both a strong and a well-protected bone as the muscles act like cushions. It thus takes a lot of energy to fracture a scapula and they are rare accounting for 3 to 5% of shoulder injuries and being associated with high energy mechanisms. Motorcyclists being thrown from bikes or riders from horses were common victims of this sort of injury; in children it is very rarely encountered. Being impacted on the ground or a direct impact hit to the scapula could involve sufficiently high energy to cause this. This sort of fracture has a high specificity for likely abuse. The only other injury with a greater association with abusive causation is posterior rib fractures. Scapula fractures along with fractures to the spinous processes and sternum have the next highest association with abusive causation. iv) The radiology images confirm multi-laminated periosteal reaction in the humerus with a spiral fracture line which is nearly on the way to filling up but still visible on x-ray. The morphology of the fracture is still visible; thus the spiral nature can be seen and has not disappeared through complete healing. The fracture appears 4 to 6 weeks down the line with the range of opinion up to 12 weeks. Timing is inexact but a range can be estimated. Pathology can allow you to see how the bone is getting converted from lamellar bone to trabecular bone and the pathologists time ranges are within his range. v) Looking at the callus formation and healing in respect of the humeral fracture and the scapula fracture they appear of similar age. Whilst dating involves a range rather than identification of a precise date which does mean that these injuries could have been sustained separately the appearance of the healing stage reached in both points to them likely being part of the same event. vi) Mechanism: the likely explanation could be a violent twisting force applied to the arm and the child impacting against a hard surface likely wall or a floor. The most common fractures in children from trampoline falls are transverse fractures or compression type fractures. Mr Kapoor had not come across a spiral fracture arising from a trampoline accident although trampolines were a common source of child injuries. He accepted that trapping the arm on a part of the trampoline might lead to a rotational force being applied to the arm and thus a spiral fracture resulting. He did not consider that a spiral fracture of the arm and the fracture to the spine of the scapula could be a consequence of a fall on the trampoline because a child of Z’s size and height would be unlikely to generate a force capable both of fracturing her scapula and her humerus. He did not consider that for Z a fall from a trampoline onto a hard surface could be from a height sufficient to fracture the scapula which requires a considerable degree of energy or force. For an athletic teenager using the trampoline to generate significant height a fall onto a hard surface might generate sufficient force to fracture the scapula. If the arm were trapped on the way down it would reduce the energy making the scapula fracture thereafter unlikely. He could not envisage a means by which the scapula fracture could be sustained first with the spiral fracture of the humerus following. vii) Consequences. a) A complete fracture of the lower part of the humerus would be expected to be extremely painful when the fracture occurred and thereafter during normal handling and movement. The pain would be at its peak over the first two or three days as the healing process began and then would slowly tail off over the next three weeks or so. By about week four the healing process would have knitted the bone together and the pain would have disappeared or been negligible. The area around the fracture site would be swollen fairly rapidly after the fracture and bruising would be likely to emerge and be visible within two days. The bruising would most likely be above the elbow as the complete fracture would bleed into the surrounding tissues. The blood might track down via the cubital fossa which joins the upper and lower arm, and so bruising around the elbow or the upper part of the forearm would be possible. b) The fracture to the scapula would be painful on movement. Swelling would be likely as a result of the bleeding from the fracture line. Bruising could emerge but they might be hidden by the layers of muscle. viii) Presentation. The humeral fracture would likely be acutely painful in particular to massage or to movement. Crying for one or two minutes is not what you would expect you would expect it to endure for much longer. This is not a buccal or green stick fracture. Most children would present with a pseudo-paralysis picture and would not allow use of or handling of the arm. Pseudo paralysis is often the presenting symptom in clinics particularly where an accident has not been witnessed. It is often difficult to sleep with fractures as spontaneous movement of the arm or shoulder would trigger pain although children can reach a state of exhaustion where they might sleep through it. They would be likely to avoid sleeping on their side either because of the pain it would cause by lying on the right arm or the gravitational pull on the fractured limb if lying on the left. The most comfortable position would be sleeping on the back. Dressing a child by raising their arms to put a vest on or moving their arms through a sleeve would be likely to be very painful initially and extremely distressing and painful for the 2 to 3 weeks thereafter. The child would be likely to avoid use of the arm for eating, drinking or playing although it is possible that movement only of the lower part of the arm below the elbow with the upper arm remaining static might not cause pain. Active play such as on the trampoline would be avoided as it would cause pain from the erratic movements on the arm or shoulder. The child would probably be transportable in a buggy without experiencing pain. Lifting a child under the arms into a bath or otherwise would be likely to provoke pain. ix) A concerned parent would expected to notice the lack of use which would be obvious and the pain experienced and to present the child for medical help. Hospital departments remained open to deal with such injuries during Covid lockdown. x) Parents accounts. The swelling in the arm mentioned by the father is consistent with the injury but one would expect loss of function. The bruising noted by the mother and father is also consistent with the injury but the stated lack of loss of function is not. Restricted movement in the arm is also to be expected. Massaging cream into the bruised area would have been likely to cause considerable pain. xi) Scientific Papers. The Farrell paper from the Journal of the American Academy of paediatrics is not a very useful guide in relation to this case. It does not deal with multiple fractures, it excludes possible abusive injury, was mainly concerned with less serious injuries and it is a retrospective survey which is the least useful form of paper. He considered that the papers observations that a proportion of children did not cry after the injury were unhelpful as it did not identify what sort of fracture they had sustained. Mr Kapoor reluctantly accepted that it confirms that a small number of serious or unstable fractures (4-5%) had still demonstrated normal use of their fractured limb but he said that was not his experience. He also accepted that if the injuries were sustained on separate occasions, they would fall within the single injury province covered by this paper. However, he was fairly clear that he considered the two injuries were sustained together and noted that that 92% of the children were seen at hospital within a day of the injury being sustained and the presentation at hospital. 50. Dr Cleghorn provided an initial report and a final report. She was unable to attend the experts meeting and her final report in effect endorses the conclusions which emerged from the experts meeting. She did not add in any meaningful way to the conclusions reached in the experts meeting or what she had included in her initial report. She was not called to give evidence. i) Subdural haemorrhages are significantly associated with abusive head trauma as are extradural haemorrhages. Subarachnoid haemorrhages are seen in both abusive and accidental head trauma. However, multiple subdural haemorrhages, particularly if bilateral, involving the area between the two sides of the brain, or in the back of the brain are more likely to be non-accidental. Multiple subdural haemorrhages of differing ages are more likely to be non-accidental. ii) It is possible to have a head injury causing intracranial haemorrhage and present with minimal signs, however the recalled event from mother is well over a year before Z presented with her fatal injury. It would be unlikely that an intracranial haemorrhage was still present over a year later and this is unlikely to be the cause of the older haemorrhages present in May 2020. iii) It is possible to fall downstairs and not have any other bruises; trauma can occur without causing bruising. It is also possible that a fall downstairs could result in the head injury. However, my understanding of the intracranial injuries seen in Z is that they were extensive. The research evidence outlined above states that the presence of subdural and subarachnoid and extradural haemorrhages in Z and that there are subdural haemorrhages of differing ages would suggest that her injuries are more likely to be non-accidental from one or more forceful traumatic events. iv) It is possible that she was conscious at home for a short period of time and became more unconscious but most of the research evidence suggests that children who suffer a non-accidental head injury which leads to death will usually deteriorate very quickly following the traumatic event. v) There is nothing recorded in the records I have had sight of to suggest that Z did not show distress at unpleasant or painful stimuli. When she presented with her scalds it was noted that she was in distress and she was prescribed pain relief. She is therefore unlikely to have a congenital insensitivity to pain and would be expected to be distressed if she experienced a traumatic event. Fractures of the arm, as with all fractures, are extremely painful, both when the fractures occur but also during normal handling and movements by the child e.g. when getting dressed. Pain from fractures occurs not only from the episode but also from movement of the broken areas against each other. With fractures of the limbs, immobilisation of the limb through a cast is often enough to reduce any painful sensation. I am not aware that Z presented at any time to health professionals with concerns about her arm - if this is the case then as she would not have had any cast put on and so I would expect that she found manipulation of her arm painful until the ends of the fracture became sufficiently stuck together However, as it would have been painful for Z to move her arm following the fracture (as outlined above), I would expect that parents would have noticed, either that Z was not using her arm in the days after the injury or was in pain and distressed when her arm was manipulated for example when dressing. 51. Professor Mangham, consultant histopathologist was instructed to examine two specimens and to advise on the presence or absence of fractures and if present to give an estimate of their age at the time of death. Taken together his written report and his oral evidence provide the following opinion. i) Macroscopic and x-ray examination shows an obvious full thickness fracture measuring 60mm and crossing the occipital/parietal suture with slight displacement. ii) Macroscopic and x-ray examination of the distal humerus shows an un-displaced/minimally displaced spiral fracture with callus formation. iii) Histological examination is regarded as the gold standard because it enables microscopic examination of the healing response at cellular level. It showed the following. a) Section A1 (see marked x-rays) shows a complete fracture running perpendicular to the skull surfaces. Evidence of a variety biochemical responses indicate that the fracture occurred between 36 and 72 hours prior to death. As it appears the fracture occurred at the same time as a significant brain injury which would have impacted upon the body’s response to the fracture, together with the intensive medical treatment there is a delay to the healing process and so the timing of the fracture can be extended by 12 hours and so the fracture is likely to have occurred between 48 and 84 hours prior to death. b) Section A2. As A1 save the bone either side of the fracture has separated. c) Sections A3-5. Shows a comminuted fracture involving and running alongside an accessory suture. Early new bone formation and other biochemical responses indicate this fracture occurred between four and seven days prior to death. The timeframe is not extended by delays in the healing process as it is not suggested that there was a significant brain injury at the time and intensive medical treatment did not commence until 27 May. There are features suggestive of a re-fracture at this site which would be in keeping with the more recent fractures seen in the vicinity. d) Complete, non-displaced spiral fracture involving the distal meta-diaphoresis. A relatively mature healing response is evident with bony callus and reunion. The appearance indicates the fracture occurred between five and 10 weeks prior to death. e) The bone away from the fracture sites appears normal. iv) The near overlap between the ranges 48-84 hours (Fracture A1/A2) and 4-7 days (Fracture A3-5) do not support a possible single event. The ranges can be represented by a bell curve where the timing of the fracture is most probable in the middle of the range reducing to the lowest level of probability at the edge of the range. Although mathematically the ranges might overlap at the lowest level of probability the histological evidence demonstrates that the nature or stage of the healing processes at the fracture sites are distinctly different and so they occurred at different points in time. We are not identifying points in time but ranges. v) The skull fracture and re-fracture would have been caused by blunt force impact. There is no evidence of a penetrating injury. The nature of bone is such that an earlier impact would not have left the unfractured skull vulnerable to fracture with a lower level of force or energy involved than would be involved in re-fracturing an existing fracture. Although bone heals at a sub- macroscopic level and so one can theorise that bone might be weakened at a sub- macroscopic level it is not accepted that bone can be weakened in the way that metal can. The skull fracture at A1/A2 was of virgin bone and would require the same level of force as was required to cause the earlier fracture at A3/5. The occipital bone is one of the stronger bones in the skull, the parietal bone is not so strong. The impression is that the more recent fracture line propagated to the point it met the previous fracture site and then either because it met an edge or because the energy was dissipated because the existing fracture had more give and could absorb energy it terminated there. vi) The spiral shaft fracture to the humerus indicates that there was a twisting element to the causative force. This fracture would have been caused by significant force. The twisting force can arise from the limb remaining static and the body moving around it as in skiing injuries. It may be reasonable to assume that the fracture occurred at the same time as the described right scapular fracture and this would help with the interpretation of the mechanism of causation of these fractures. vii) The conclusions as to timing from the neuro pathological examination and from the bone radiological examination come to very similar timings which gives great confidence in the conclusions. They were reached independently and overlap closely in their ranges. 52. Dr Offiah a consultant paediatric radiologist provided two reports and gave oral evidence. He was unable to attend the experts meeting i) The neuroradiological imaging undertaken on Z on hospital admission to Darent Valley Hospital on27 May 2020 demonstrates acute/recent (subdural) blood mixed with non-acute (ie. non- contemporaneous) (subdural) blood overlying the left and the right side of the brain (the left and the right cerebral hemispheres and the left and right cerebellar hemispheres). Such bleeding can cause mass effect on the underlying brain tissue within the confines of the closed "box" of the skull and, as a consequence, such mass effect can compound the original primary brain insult with secondary deleterious effects such as compromise of normal blood supply to brain tissue, ultimately with a depletion of necessary oxygen and nutrients to brain tissue and subsequent devitalisation of various parts of the brain (ie. parts of the brain begin to die). Where there has been haemodynamic/circulatory collapse, the primary brain insult is further compounded similarly by compromise of blood supply to an already compromised brain. This compromised blood supply to the brain is evident on the initial CT head scan performed on Z on27 May 2020 with severely compromised blood supply to a large part of the right side of the brain at the front and the back and to some of the left side of the brain at the front - these areas of the brain have started to "die" because of this reduction in blood supply caused by brain shifts (so-called mass effect) caused by the large right subdural haemorrhage. There is also evidence of reduced blood supply to a part of the brain stem (called the midbrain) and some bleeding into the right side of this part of the brainstem because of the diminished blood supply caused by the brain shifts associated with the large right sided subdural haemorrhage. ii) There are very small areas of acute cortical haemorrhagic contusion evident affecting some areas of the left and right cerebral hemispheres, particularly the frontal and sub-frontal regions and some of the temporal lobe parenchyma (particularly on the right). These features look suggestive radiologically of acute contre coup brain injury on a background of non-acute, pre-existing intracranial trauma and skull fractures. iii) Bleeding in the right frontal lobe of the brain (ie. within the brain tissue itself) seems to represent a post-surgical episode of bleeding associated with the neurosurgical intervention and was not present pre-operatively. iv) There are extensive skull fractures affecting predominantly the back and the top of the back of the skull of Z on the initial CT scan performed on27 May 2020 at Darent Valley Hospital. The radiological appearances of these skull fractures affecting the back of the skull look complex and look predominantly like non-acute fractures which are on the opposite side to an epicentre of significant acute/recent scalp injury on the left. It is difficult to unequivocally identify radiologically acute fractures of the skull although it is possible that there may have been some acute disruption of some of what look like non-acute fractures as well as some acute disruption of some of the developmental ossification lines and sutures of the occipital skull. The presence of non-acute looking localised extradural and peri-cranial haemorrhagic changes associated with some of the non-acute looking right occipital fractures also seems radiologically highly suggestive of a predominantly non-acute (subacute or chronic) cause of some of the skull fractures. Radiologically, the skull fractures - probably predominantly non-acute - look consistent with a blunt traumatic causation and therefore, in my opinion, highly suggestive of non-contemporaneous blunt traumatic impacts to the back of the head at separate different time-points. The presence of an early type of "growing fracture" appearance of some of the right occipital fractures radiologically as well as diastasis of the sagittal and coronal sutures suggest that the intracranial pressure may have been abnormally raised for longer than an acute period of time and supports the radiological impression of a component of chronic right subdural haemorrhage ie. a component of pre-existing subdural blood which had been present for more than a short acute period of time. v) There is an approximately 6 cm acute/recent right parietal scalp soft tissue haematoma (i.e. scalp bruising and swelling) demonstrated at the vertex. This is associated with an approximately 2 cm recent/acute-looking abrasion/contusion of the overlying skin of the right parietal scalp. There is an approximately 10 cm left parieto-occipital scalp soft tissue haematoma associated with an approximately 1.3 cm area of cutaneous soft tissue injury (which is somewhat age-indeterminate but could be recent) affecting the left parietal scalp skin. There is extensive predominantly right-sided lower occipital but predominantly suboccipital acute/recent scalp soft tissue haematoma present. There are old healed lacerations 2.3cm and 4cm in length. 53. In his second report which addressed the questions put to the experts meeting he concluded as follows: i) Injuries identified a) Acute skull fracture b) Acute sub-dural haemorrhage c) Older skull fracture d) Multifocal areas of soft tissue injury to the scalp of different ages e) Older subdural haemorrhage to the right side of the brain into which acute sub-dural bleeding has occurred f) Spiral fracture of the right humerus g) Fracture to the blade of the right scapula ii) Timing/Ageing of injuries a) Skull fractures: one acute (less than 2 days old); one at least 3 days old b) Acute bleed most likely sometime between 17-27 May, possibly 25 -27 May bleeding into an older sub-acute SDH c) Separate sub-acute intracranial extradural haematoma related to older sub-acture occipital fracture. iii) There is evidence of healed scalp laceration consistent with an injury to Z in Afghanistan. iv) The acute injuries could be explained by a fall down stairs but this does not explain the subacute SDH and EDH. They are consistent with blunt force traumatic mechanism with multifocal sites of acute head injury. The older injuries would be consistent with a blunt force traumatic mechanism. 54. The salient points which emerged from his oral evidence seemed to me to be these: i) He emphasised that his evidence was one part of a multidisciplinary picture. He emphasised that Prof Mangham’s histopathological evidence in relation to the dating of the skull fractures was the gold standard. He did not necessarily agree that the pathology reports trumped the CT scans in respect of soft tissue injuries particularly when they are older and healed or healing. He was confident that the soft tissue injuries he had identified were there notwithstanding any contrary opinion of the pathologists. ii) In relation to the neuropathology reports he noted that one had to bear in mind that the samples and the investigation arising from them post-dated operative intervention. The CT scans showed the picture prior to operative intervention. iii) He acknowledged the difficulty in dating subdural haemorrhages and that research confirm that even the estimates or windows could be affected by many factors as Mr Woodward-Carlton reminded me he said “ It is an estimation and a range - it is never going to be a smoking gun.”
“yes he beat me badly” "30 mins ago" "At home" “Used his hands and feet to kick me and beat me badly” "If you arrest him he is coming to beat me more. Please take the signature from him not to beat me any more”