London Borough of Croydon v D & Anor [2024] EWFC 438

[2024] EWFC 438Case No ZE23C50130In the East London Family CourtSitting in CroydonRe: LB Croydon v D (critical scrutiny of the paedeatric overview)Hearing Heard on 15.7.24 -28.8.24Judgment 20.9.24
Before
HHJ Kathryn Major sitting as a Deputy High Court Judge
Between
London Borough of CroydonApplicantMr and Mrs DRespondentA, H and Y through their Children’s guardianRespondentLondon Borough of CroydonApplicantMr and Mrs D1 st/ 2 nd RespondentsA, H and Y through their Children’s guardian3 rd/4 th/5 th Respondents for LA : Giles Bain leading Lily Cooke for Mother: Professor Delahunty KC leading Emily James for Father: Brendan Roche KC leading Alison Easton for Guardian: Alison Moore leading Kate ClaxtonDate 2024-09-20

Introduction

[1]I am concerned with three children: A aged 2yrs 5mths (dob 02.03.2022) and twins H and Y aged 20mths old having been born on the 21.11.2022. The LB Croydon seeks care orders for all three children. They base their case on the fact that on the balance of probability H and Y have suffered significant harm namely inflicted non accidental injuries whilst in the care of their parents.[2]I have heard from Mr Bain leading Lily Cooke on behalf of the LA; Professor Delahunty KC leading Emily James for the mother; Brendan Roche KC leading Alison Easton for the father and Alison Moore leading Kate Claxton for the children’s guardian. I am grateful to them all for their assistance in this case.[3]The parents are from Afghanistan. English is not their first language and as such I have been greatly assisted at court by two interpreters. It has been of notable benefit that at this hearing we were fortunate to secure the same interpreters for the entire hearing. I extend my thanks to both gentlemen for their work and insight into the nuances of the Afghan Dari language.[4]This judgment is supplemental to the simplified judgment provided to the parties and designed to aid easy translation and explanation for the parents. This judgment focuses in more detail on issues raised in the course of this hearing around vulnerability, interpretation and translation, cultural awareness and sensitivity which particularly impact a parent. It is also a case where, upon testing the medical evidence in rigorous cross examination, was found to be flawed and wholly unreliable. This case speaks to the importance of testing the medical evidence by an advocate with an interrogating mind and a thorough grasp of all of the material. Background incorporating the schedule of agreed facts[5]The parties were married on 30.08.2020. They have three children, A born 02.03.2022 and twins H and Y, born 21.11.2022.[6]The mother came to the UK from Afghanistan on 17.08.2021. The father’s mother (PGM) died in June 2021 and the mother’s mother (MGM) died a week later.[7]In relation to the mother’s pregnancy with A the following facts are agreed:a. The mother presented late for antenatal care at 26 weeks on 24.11.2022, following a fall in the shower on 15.11.2022 when she attended A&E and foetal movements were felt;b. A’s birth on 02.03.2022 was traumatic, requiring repeated attempts at emergency anaesthesia by epidural and C-section.c. The mother suffered with, and was treated for dizziness, during her pregnancy with A and after his birth, including by attempted blood transfusion.d. The mother breast fed A for two months after his birth and became pregnant with the twins whilst breastfeeding.[8]In relation to the mother’s pregnancy with the twins the following facts are agreed: e. An ultrasound on 21.09.2022 described a high-risk twin pregnancy of 20+4. f. The mother was admitted to Croydon University Hospital as an emergency on 19.10.22 due to Preterm Premature Rupture of Membrane (H) and was transferred to St George’s Hospital for specialist neonatal care. g. The mother remained at St George’s Hospitaluntil 02.11.2022,during which time she could not care for A who was 7 months old at the time. h. Due to missing A and the responsibility she felt to resume care of him she discharged against medical advice on 02.11.2022. This was a joint decision by the parents. i. The mother went into labour with the twins and was transported by ambulance to hospital on 20.11.2022. j. The twins were born at 29+2 by emergency C-section, D at 02.25am and Y at 02.30am on 21.11.2022.[9]H and Y were discharged from hospital on 27.01.2023 and attended CUH A&E on 18.03.2023. During this period the parents were subject to multiple sources of stress including:a. The state of the family accommodation, which was cold and damp, had mould on the walls in each room including the kitchen, bedroom and living room, no heating which therefore required an expensive electric heater to be used and at times and no hot water.b. The parents were very concerned about the impact upon the twins’ health of this environment in light of their prematurity and their breathing difficulties at birth.c. The parents’ relationship with their landlord deteriorated which added additional stress and the parents felt he was not supporting them in addressing the problems in their accommodation. The parents did not pay rent for January 2023, and they received an S21 eviction notice prior to 10.02.2023.[10]The family were experiencing financial difficulties and finding it a struggle to afford the basic items required for the twins and the family e.g. nappies, clothing, beds and buggy.[11]Both parents sought support from their GP for the stress they were experiencing: the mother on 17.01.2023, 06.02.2023 and 07.02.2023 when she was prescribed Sertraline 50mg daily and the father on 16.02.2023 when he was prescribed Sertraline 50mg daily.[12]The family experienced a number of periods of illness including:a. The father was unwell/had rheumatism on or about 16.01.2023 to the 21.01.2023b. H had constipation and experienced difficulties with her breathing which resulted in an ambulance being called and her attending A&E on 01.02.2023c. H was unwell with a likely viral illness on 13.02.2023d. Father became unwell with flu/Covid symptoms from 5-18.03.2023 and contact was made with the London ambulance on six occasions between 08 and 11.03.2023 for assistance;e. A became unwell with flu/covid symptoms and was diagnosed with Covid on 11.03.2023f. The mother was unwell with flu/Covid symptoms and was diagnosed with Covid on 11.03.2023g. H was unwell with flu/covid symptoms from 13.03.2023 and was diagnosed with Covid on 18.03.2023;h. Y was unwell and was diagnosed with Covid on 18.03.2023.[13]The parents have been able to work co-operatively and in partnership with multiple professionals including the health visitor, the foster carers for the children and the current allocated social worker.[14]The parents demonstrate a high level of commitment to contact, and the contact notesdemonstrate a warm and lovingrelationship between the children and their parents and the parents providing attuned and responsive care to them.[15]On 18.03.2023 mother was reliant on her husband for communication as she did not speak English, did not know her own address or phone number.[16]The mother’s memory is anchored in events as opposed to time or date.[17]The mother’s general cognitive ability, as estimated by the WAIS-IV UK, is in the borderline range (FSIQ = 74).[18]The mother presents as very duty-bound to ensure the home runs smoothly and that she fulfils her culturally expected role. Dr Bentley suggests she has been under enormous pressure to cope and try and meet the expectations of her, whether self-imposed expectations, or those influenced by others and / or her culture. The 18th March 2023[19]On the 18.03.2023 the mother attended at Croydon University hospital alone by ambulance with H at 0200hrs. Concerns were raised as to H’s presentation which aroused a suspicion that her injuries may be non-accidental. The father, who was at home, was asked to attend the hospital with both Y and A.[20]Upon clinical examination H was found to have 11 rib fractures: a buckle fracture to the right shoulder blade and a metaphyseal fracture to the shin bone. In addition, a number of ‘marks’ were observed on H’s body.[21]Y also presented with ‘marks’ to her body and following a skeletal survey was found to have a fracture to the right collar bone.[22]Awas examined but did not present with any injuries.

The Law – Burden of proof

[23]It is the civil standard of proof that the court must apply. That is the balance of probability or to put it another way “what is more likely”? In many cases I would say no more but on the facts of this case and the manner in which it has been litigated it bears some elaboration.[24]It is for the person (or body) asserting a fact to prove it to that standard. In this case the burden lies with the LA who have produced a schedule of findings they seek of non-accidental inflicted injuries that they invite the court to find proved on the civil standard.[25]They must prove their case for each individual child alleged to have been injured.[26]Further, I remind myself that it is the LA who frame their case and determine which witnesses to call to prove their case. It is fundamental that the LA have in mind their obligations set out in Re A (A child) [2015] EWFC 11. Namely, and with clarity, to identify the “fact” that is to be proved; the evidence relied upon to prove that “fact”; the witness/es who can speak to that “fact” and establish a causal link between the “fact” and the risk of significant harm test set out in s31 Children Act 1989.[27]The determination by the court of whether or not a “fact” is proved is binary. It either did or did not happen.[28]There is no obligation on Mr or Mrs D to disprovethe allegations. That would be to reverse the burden of proof. That means is they do not have to prove that there is some accidental explanation Re M (Fact Finding hearing: Burden of proof) [2013] 2FLR 874.[29]This is a case where both parents have put forward factual accounts which they say could have led to the injuries for H and Y. In such circumstances I remind myself that the burden of disproving a reasonable explanation put forward by the mother and father falls on the LA as per Re: S (Children) [2014] EWCA Civ 1447.[30]It is vital that all experts instructed in a case have a proper understanding of the operation of the burden of proof when considering the evidence and the potential explanations put forward by the parents.

The law – evidence

[31]Cases such as these are determined on the evidence that the parties choose to put before the court. The court must not be tempted to fill in any gaps in the evidence. There is no role in the judicial determination for speculation or suspicion per Re: A (Children) [2018]EWCA Civ 1718.[32]It is a fact that often the oral evidence of a witness differs from their written account or report. Those variations need to be identified and evaluated both positively or negatively in the context of the evidence as a whole.[33]The court is in the unique position of being able to evaluate all of the evidence not just the expert evidence and has a duty “to weigh the expert evidence against the findings of the other evidence” as per A County Council v KD& L [2005] 1 FLR 851. That includes the duty to make a factual decision “based on all available materials i.e. be judged in context and not just upon medical or scientific materials no matter how cogent they may in isolation seem to be” as per A County Council v A mother and others [2005] EWHC Fam 31. This is particularly important in this case where the Local Authority’s case is almost entirely dependent on the expert medical evidence and where subject to forensic cross examination that expert evidence was successfully challenged.[34]I am grateful to the advocates in this case for having produced in evidence a ‘statement of agreed facts’. This avoided a number of witnesses having to attend court and allowed for proper focus on the facts and evidence in issue.[35]Finally, if an evidential account or “fact” is challenged that must be put to the witness asserting the “fact”. If the account is not challenged it is taken as being accepted. In this case in closing submissions the LA appeared to question whether the mother’s account of a fall in the hours before H’s admission to hospital even happened. This was not put to the mother in her evidence nor were several other matters that the court is asked to find. Child H[36]H is the oldest of the twins having been born at 02.25 on the 21.11.2022 by emergency Caesarean section. She was born prematurely at 29wk+ 2. Following confusion and misidentification of the twins it is now clear that it was H who experienced periods of ill health on a number of occasions before the 18.03.2023.[37]Both H and Y were discharged from hospital on the 27.2.2023 (prior to their EDD). Within days there were concerns about H’s health. Just five days later, on the 01.02.2023 an ambulance was called and H was taken to A&E. She was suffering with breathing difficulties and constipation.[38]The Health visitor on the 10.02.2023 was told about an incident on the 08.02.2023 when H had stopped breathing, at home.[39]H is noted as being unwell with a virus of some description around the 13.02.2023.[40]From the 13.03.2023 H was presenting as unwell and was subsequently diagnosed on the 18.02.2023 as having COVID.[41]We now know from the evidence that, contrary to what Dr Cleghorn states, that the Health Visitor, had undertaken the necessary adjustments for prematurity on the centile charts and that H, far from thriving had fallen to the 2nd centile.[42]Upon presentation at hospital H was examined and found to have the following injuries: i.) A buckle fracture of the right shoulder blade. ii.) Eleven rib fractures: 5th – 9th left ribs close to the spine and 5th – 8th right ribs close to the spine and 3rd -6th Left rib toward the side. iii.) A fracture of the metaphysis (the part of the long bone that joins the shaft to the knuckle) at the lower end of the left shin bone. The fractures were no more than about 2 weeks old on 21.03.2023.[43]At the time of presentation, a number of marks were noted as present on H’s body. A body map was prepared by Dr Alaa Hassan.[44]Upon examination, after admission H was identified and having a right eye retinal haemorrhage.[45]Mrs D in her evidence described H as being kind-hearted and sensible who gives her lots of hugs. Child Y[46]Y is described by her mother as the playful, naughty twin who is clever.[47]She was born 5mins after H at 02.30.[48]It appears that Y seems to have not suffered with health issues in the same way that H has, nor have there been the developmental concerns around the centile charts that there are for H.[49]That said, upon presentation at hospital on the 18.03.2023 she was found to have a fracture to the right collar bone. The fracture was dated as being no more than 2 weeks old as of the 21.03.2023. She also tested positive for COVID.[50]Y also presented with a number of marks to her body. A body map was prepared by Dr Shobana Guruviah and Dr Thomas. Child A[51]A is the eldest of the children having been born on the 02.03.2022. He was nearly 11mths old when the twins were discharged from hospital.[52]Anyone reading the initial report of Dr Cleghorn would be misled about A. In March 2023 he was a large robust 1year old who was cruising the room pulling himself up to a standing position. The photographic evidence shows that he is very large for his age and not the slight child on the 25th centile that Dr Cleghorn mistakenly records. In fact, he was charted as being on the 99.6 centile.[53]Additionally, he appears, from the videos that I have seen, to be an extremely fast and (unsurprisingly given his age) unwieldy crawler. I do take judicial notice that a child of his age has limited awareness and control as can be seen in the video clip with him flinging his hands at one of the twins face to steal the dummy.[54]I note that the parents referred to A as being jealous of the twins when they came home from hospital.[55]A did not present with any injuries or marks to his body. The issue for determination[56]Whether, as is advanced by the LA, both H and Y were deliberately injured by one or both of the parents, under pressure and stress, inflicting non accidental injuries upon them. In doing so the LA rely on the opinion of the medical experts. The parents account – child H[57]The parents have explained that H was a poorly child. That she had episodes of turning blue and had been taken to hospital by her parents on the first occasion but not on the second occasion due to comments made by the social worker that they were “making up illnesses for financial gain”. They were clear that they had been told at the hospital, prior to taking the twins home what do if she stopped breathing and how to undertake reviving her which included blowing into her mouth, CPR with two fingers of each hand on the front of her chest and then shaking her with their thumbs crooked under her arms and fingers spanned across her back.[58]On the afternoon of the night that H was taken to hospital Mrs D said that she fell on top of H when she passed out in the kitchen having gone to make some milk. She recalls H crying (but said the babies were always crying); checking her over; not seeing any injuries; soothing her with milk and settling her off to sleep. H then slept for some hours.[59]When H woke Mrs D, immediately, identified that her cry sounded different and her chest was moving in a different way. Mr D says this in his witness statement dated the 01.02.2023 “When my wife brought H into my room on 18 March, H’s face and lips were darker, and she was breathing badly. We followed the advice that we had been given by the nurse at the hospital. My wife and I first did chest compressions on the middle of H’s chest. I think we did these 4 or 5 times in total, maybe me twice and my wife three times. I blew in H’s mouth. When H’s breathing did not get better I told my wife to pick H up and shake her hard …. This is what we had been advised to do by the nurse at the hospital if the chest compressions did not work”.[60]In respect of marks to H Mrs D says she did not see any marks when she checked over her after the fall but did she the marks later that day at the hospital. The parents account – Child Y[61]Mrs D recalls an incident, that she is not able to date, when A pulled the basinet in which Y was sleeping over. Y toppled out and was stopped from falling by Mrs D grabbing her arm. The Mother[62]Mrs D is clearly devoted to her children. They are her life and her reason for being. Her Counsel described her as “born to be a mother, raised to be a wife”. Dr Bentley in the cognitive assessment of the mother identifies how significantly her identity is “entwined” with these dual roles. In evaluating her evidence, it is important that I do so in the context of her Afghan culture, heritage and upbringing; herdeference to elders and male family members; her vulnerability; isolation and total dependency on her husband when she moved to the UK. A woman who, at the time of H’s admission, had little or no personal autonomy and virtually no spoken or written English. The court has to avoid any conscious or unconscious bias by applying Western values and attitudes to her evidence and the nature of her relationship with the father.[63]Dr Bentley who prepared the cognitive assessment of the mother assessed her as having a borderline range IQ. I do however note the difficulties that she encountered with translation/ interpreters in preparing that report. In evidence she presented as functioning at a higher level than that. She was able to answer questions clearly and logically and was able to challenge and call out when a question was put in cross examination. In short Mrs D was more robust and forthright in her evidence than I had expected.[64]Notwithstanding that, I still regard Mrs D as being a vulnerable witness pursuant to PD3A. She was greatly assisted by the advocates using the “Advocacy for Vulnerable People and Children – 20 Principles of Questioning” guide. I am grateful to Ms Moore for supplying copies of that guidance for the advocates at court.[65]An issue which only became apparent during the final hearing is the extent to which Mrs D does not identify events by dates and times. Her chronological timeline is grounded in experiences and events. To that extend the court needs to exercise caution around her account when it concerns dates and times and where there is apparent contradiction.[66]The ability of Mrs D to give a proper account of what happened has also been inhibited and compromised by the poor and often incorrect interpretation of what she was telling professionals. It is a theme that runs through all of her evidence.[67]At the hospital she initially presented alone which would have been very overwhelming for her. She was provided with interpretation services via LanguageLine, a telephone interpretation service. This is a service, widely used in the NHS for any person who attends hospital and needs treatment where English is not their first language.[68]In this case the Local authority place weight on what was said by the mother at the hospital to the medical staff using LanguageLine. There are, in my judgment, a number of limitations and concerns about relying on the evidence from LanguageLine in respect of Mrs D.[69]Firstly, it is not a specialist medical interpretation service. The interpreters are not provided with any form of medical training around medical terms or language to enable them to provide an explanation of what they are being told by the medics. It is simply a literal translation. The extent to which they can adequately explain medical concepts and terminology to a lay vulnerable individual is therefore very much in question.[70]The interpretation also takes no account of the cognitive ability, educational standard or literacy of the person for whom the translation is being provided. It also has to be borne in mind that on 18.03.2024 at the hospital and at the police station nothing was known about the mother’s literacy, functioning, cognition and vulnerabilities. Given they were not known about they were not taken into account.[71]As a devout Afghan Muslim woman, there are a number of cultural issues around interpretation to consider particularly in using a male interpreter. Respect has been paid to issues of modesty for the mother at court. Her male interpreter sitting away from her and translating sequentially. It has proved almost impossible to secure a female Afghan Dari interpreter for her. The lack of a female interpreters, at all stages of this case, has other consequences. It is not culturally acceptable in Afghan culture for men to speak of or discuss intimate body parts with women. At the hospital Mrs D had a male interpreter from LanguageLine who is unrelated to her and effectively a stranger. More than that she was being asked questions about H of a highly personal and intimate nature and would no doubt have been uncomfortable and unable to fully engage. In those circumstances could the fullest of discussion and translation take place?[72]The use of LanguageLine as primary evidence of the first account a parent gives at hospital is concerning and problematic. The initial account with all its mistakes and inaccuracies, as in this case, becomes embedded. I am aware that a number of advocates in this case intend raising the issue with the FLBA committee and vulnerable witness team as to the approprtiateness of its use.[73]I do not accept that it was appropriate for the father to be invited, by the police, to interpret for the mother at the hospital in circumstances where there was reason to suspect that they jointly or separately had potentially injured H and Y. Further, it was in my judgment wrong for the Police to use Mr D as the interpreter when formally cautioning and arresting the mother; it can be seen from the translation of the body worn recording how poorly he was able to do this. Notably he himself has required the benefit of an interpreter for himself throughout these court proceedings.[74]Mrs D speaks and understands Afghan Dari. Farsi has frequently been the language elected by others for Mrs D despite it not being her primary language. This has resulted in misunderstanding and incorrect accounts being recorded and embedded in the evidence. This is of particular concern around the evolution of a timeline of “dates” apparently being given by the mother in circumstances when we know her difficulties in that regard.[75]In every alleged non accidental injury case, such as this, the court will focus on the accounts given by the parents, both individually and separately, from the initial admission through to trial. Those accounts will be scrutinised for contradictions and/or changes to the account over time particularly in light of the professional medical expert opinion. That exercise is extremely challenging in this case. It is only in the latter stages of the case that the full extent of the poor and inaccurate recording of, particularly, Mrs D evidence has come to light. This has involved the re-translation of a number of key police documents by a Dari interpreter. It is now clear that her answers were not transposed correctly even when dealing with the simplest of questions. By way of an example - when asked when something happened her answer of “I don’t know “was translated as “yesterday”.[76]Mrs D has had the benefit of an Afghan Dari speaking interpreter throughout the hearing and in giving evidence. She has been able to fully participate in this hearing. It does not however correct the earlier errors by multiple agencies who failed to identify the correct language/ provide adequate services for the mother to provide her account. It was notable that with the support of her interpreter she was able to give a flowing narrative account from the witness box.[77]She was appropriately emotional both during her own evidence and hearing other witnesses including covering her ears at one point when the injuries were being discussed. There were notable times in her evidence that she made concessions in cross examination accepting that she had “struggled” when she was unwell and “losing the ability to look after the children and her husband”.[78]Her evidence was credible and frank. None more so than when she was explaining her fall onto D on the afternoon of the 17.03.2023.The remorse and the shame she feels about that incident is, in my judgment, genuine and real. I believe her when she says that she did not have the courage to tell Mr D that she had blacked out and fallen on H. Her account of what happened later that day including both her and Mr D blowing in her mouth, performing CPR with two fingers and shaking her were credible. She was not challenged on her account of the sequence of events she sets out lead to the injuries. Nor was a case of failure to protect put to her by the LA.[79]Having had the benefit of seeing her give evidence. She was in my judgment an open and honest witness doing her best to assist the court whose account in my judgment can be relied upon. The Father[80]Mr D’ s presentation was very much in contrast to the mother. He spoke his evidence in a quite an unemotional monotone. He was, despite lengthy cross examination not provoked into anger or irritation. The substance of the LA case being that the pressures in the home were such that either parent simply snapped and caused the injuries.[81]He was pleasant enough in his description of Mrs D being “devout… raised properly…disciplined…..good manners…. Rock solid lady” but it was sadly devoid of any real sense of emotion or love.[82]The only sense of any emotion I had from him was when he told me that he was “angry” that Mrs D had passed out and fallen on D, but even that sense of anger was delivered without emotion.[83]Mr D was asked a number of personal questions by the LA designed to prove their case that there was tension in the relationship with Mrs D due to his ongoing intimate relationship with his ex-wife, Ms S, the mother of his 10-year-old son and/or that he was having sexual relationships with other women.[84]Once again, I caution myself about applying Western values to the gender relationship between Mr and Mrs D (or indeed Mr D and Mrs S) which viewed from that subjective prism appears patriarchal and unequal.[85]Mr D was very keen in his evidence to distance himself from having any physical interaction with any of the children within the 14 days prior to the 18.03.2023. This was a time when the entire household were ill with COVID. I do not accept his account that because Mrs D had different symptoms and did not test that she did not have COVID during this period. He was cross examined at length about what he and his wife were doing at that time and the vastly unequal burden of caring for the family that fell on Mrs D.[86]I question whether he was distancing himself to avoid awkward cross examination about what happened when the mother was absent from the home. However, having heard from him and understanding a little of the cultural context and gender based roles the parents undertook within the household, I find, he is simply telling the court what was happening at that time namely that he was self-isolating and working periodically and leaving everything else to the mother. The Health Visitor[87]Rarely if ever have I encountered a professional witness moved to tears when recounting her involvement with the family. Ms Stevenson was the Health Visitor for the twins. She clearly had a supportive, attuned, and empathic relationship with Mrs D. It was Ms Stevenson who identified the need for the mother to have a Dari interpreter, to enable her voice to be heard, and the need for services to engage with the family.[88]Unsurprisingly, she distanced herself from and was critical of the approach and attitude of the LA social worker who was vocal with her about her view that the parents were faking illnesses in order to secure better accommodation and “milking the system”. She spoke to an open and honest working relationship with the parents, which raised no professional concerns for her and of being welcomed into their home and provided with saffron tea and home made cake. The Clinicians - medical professionals at the hospital[89]The clinicians are witnesses of fact. They provide the primary evidence from admission to hospital. Their duty is to observe and treat the child without judgment or inquiry as to the cause of the injuries.[90]The court has had the benefit of hearing from Dr Patel, Dr Thomas, Dr Guruviah and Dr Hassan. All of these clinicians had some level of involvement with either H or Y at the time of admission or afterwards.[91]They were clear as to stick to the factual evidence and corrected any misattribution of ‘marks’ in their oral evidence.[92]The photographic evidence produced by those Doctors was poor and not produced in accordance with the Guidelines. Dr Keenan[93]The court has the benefit of the report from the Haematologist Dr Keenan that confirms there is nothing in the Haematological and blood clotting results that would mean these twins are more prone to bruising than any other child. Dr Nicola Cleghorn and the seminal role of the expert paediatrician[94]The medical expert who prepares the paediatric overview for the court is a key expert witness whose duties include:• to provide a concise medical chronology taken from the volume of available clinical medical data.• to clearly signpost the court to the relevant data.• to properly evaluate the evidence as to whether an injury was inflicted or not.• not to be speculative.• to correct errors in their own work and identify errors in the work of others.• to limit opinion evidence to their individual specialty.• to revisit past conclusion in the light of fresh evidence.• and not to remove evidence of relevance from the judge’s determination.[95]In their report and analysis, the Paediatrician draws together the clinical and other expert medical evidence and puts it in context and a comprehensible form for the court. Without doubt it is of seminal importance to the Family Court that they can have confidence in the practitioners undertaking that role in the knowledge that they will discharge their duty to the court with integrity and commitment. In circumstances where they fail to discharge their duty it risks children being removed, perhaps permanently, from parents who have done nothing wrong on the one hand, and on the other to leave children in the care of parents who have harmed them or pose a risk to them.[96]Dr Cleghorn is the expert instructed to conduct the paediatric overview in this case. Her report and addendum sets out her professional opinion that the totality of the medical evidence points to these children having suffered “inflicted non accidental injuries”. The report reads as subjective, closed minded and disbelieving of the parents account, to the limited extent to which Dr Cleghorn considered it. The Local authority’s case has always relied entirely on her evidence and somewhat surprisingly, given what is set out below, continue to ask me to do so in closing submissions.[97]Dr Cleghorn was subject to a detailed and forensic cross examination by Prof Delahunty KC on behalf of the mother. It was nothing short of a demolition of Dr Cleghorn’s evidence. No other party needed to cross examine after she had concluded. Dr Cleghorn conceded in cross examination that, in parts, her evidence was “appalling”. That there were multiple examples of her lack of “due diligence” in the preparation of her report, addendum report, and in terms of her preparation for and participation in the experts’ meeting for which she apologised.[98]Counsel for the child for in closing submissions refers to Dr Cleghorn’s evidence as “terrifying” and from a safeguarding perspective for children an utter “disaster”.[99]The fundamental error running through the whole of Dr Cleghorn’s evidence is the fact that she misidentified and confused the twins when reading the primary medical disclosure. She was unable to assist the court with providing an explanation as to how that may have occurred. It was not identified or corrected in advance of the experts’ meeting. Further, that at the time of giving evidence she had still not tracked back to see how that fundamental error had impacted her opinion in relation to each child despite correcting it in her addendum dated 10.06.2024. It is of seminal importance in this case because the babies had very different birth and post birth experiences, with H being the weaker and more vulnerable.[100]She had failed to undertake her own tracking or recording of the babies’ head circumferences or weight. Had she done so her error in confusing the twins may have been apparent. Despite this she criticised, incorrectly, the Health Visitor for not correcting for prematurity. Dr Cleghorn also had not picked up the differentiating birth marks on H and Y.[101]Dr Cleghorn also misinterpreted the primary evidence in respect of A, dismissing him as a possible cause of any of the marks on the girls. Her description of A as slight and being on the 25th centile was completely wrong and misleading. In fact, he was a very substantial child who as of 18.03.2023 was on the 99.6 centile. In cross examination she agreed that A could have caused injury bruising and scratches given his size, speed and lack of coordination.[102]She was not able to explain with any clarity which photographs taken by the hospital she referenced in her report and placed reliance upon.[103]There is no primary medical evidence from the treating clinicians that H and Y had any bruises on their bodies. Yet Dr Cleghorn refers not to ‘marks’ but ‘bruising’ and goes on to opine that they must have been inflicted by the parents. That is to reverse the burden of proof.[104]Dr Cleghorn failed to engage in her written evidence, or at the experts’ meeting with any consideration of a potential non-accidental cause or causes or the accounts provided by the parents. She was entirely closed minded and unenquiring. Under cross examination, having acknowledged her multiple failures, she conceded that Y’s fall from the basinet could have been the possible cause of the buckle fracture she sustained.[105]In relation to H she conceded that the fall as described by the mother and the subsequent attempts at resuscitation could have caused the injuries. Further she accepted that the retinal haemorrhage seen in H (which she had misattributed to Y and ignored) could have been caused by the same mechanism.[106]She failed to acknowledge the need for any further enquiry as to whether there were issues around Metabolic bone disease of prematurity (see below).[107]The impact of Dr Cleghorn’s evidence goes beyond her own individual evidence. Her errors and closed mind contaminate the professionals meeting. She closed down the conversation around the parents’ account of being told how to resuscitate H by shaking as being inherently unlikely. Their account and its credibility or otherwise is a matter for the court not Dr Cleghorn (of course, we know now that there have been serious issues of misunderstanding and failures in the provision of interpreting services for this family, especially the mother). The duty of the experts is to consider all possible mechanisms.[108]Dr Cleghorn’s evidence in cross examination is entirely at odds with her written report and opinion. It is entirely supportive of the case advanced by the parents as to the cause of the injuries to both babies.[109]Dr Cleghorn’s approach in this case is a cause for serious concern. There are real world consequences for children where the professional medical evidence is flawed, factually inaccurate and lacking in enquiry and analysis. Children could be removed from perfectly safe home environments or alternatively children at risk could remain placed with abusive carers. This case demonstrates the importance of advocates with a detailed knowledge of the case and the facts being able to robustly and critically cross examine experts and fully explore their client’s case. Dr Olsen -the radiologist[110]Dr Olsen’s oral evidence was also in stark contrast to his written evidence. The challenges and exchanges about the parent’s accounts that formed part of his cross examination with Professor Delahunty appeared to be being considered by him for the first time. He seemed at the time of the experts’ meeting to be limiting his enquiries to trying to find a single unifying event for the injuries to H.[111]The parents’ account was never properly scrutinised at the experts meeting. As a consequence, the oral evidence of Dr Olsen was vastly different to his written report. He conceded that the sequence of events put forward by the parents namely: Mrs D’ s fall onto H when she passed out and later the CPR and shaking in an attempt to revive her could have accounted for the constellation of injuries to H both in terms of force, mechanism and timeframe.[112]The LA continue to rely on Dr Olsen. Lack of evidence around Metabolic bone disease of prematurity (MBDP)[113]All of the written and oral evidence and the cross examination has been based on the premise that H and Y had bones of normal density and strength. The experts have changed their minds and concede that the accounts provided by the parents could have caused the injuries to both babies non accidentally. The issue that the medical experts have not furthered or advanced is whether either child was a greater risk of bones being broken due to MBDP.[114]It is painfully obvious that Dr Cleghorn had not professionally considered the issue of MBDP in her written evidence. There was no proper analysis of the twin’s alkaline phosphate levels; no retrospective attempt to correct her error of mixing up the twins ante-natal and post-natal history to reconsider the issue of MBDP; and no recording around the twin’s weight. Even in oral evidence she was keen to dismiss the issue including by suggesting the Health Visitor had not corrected their weights for prematurity. Of course, if she had read the Health Visitor’s evidence she would have known that the weights had all been adjusted for prematurity.[115]Ultimately, she was forced to concede that she could not rule out the presence of MBDP and that it required an expert review.[116]The case has been brought and proceeded on the basis that MBDP could be identified, and any questions addressed by the instructed experts. Had there been a rigorous objective evaluation of evidence at the experts’ meeting it is likely that this gap in the evidence would have been identified. It was not until receipt of the incredibly unhelpful, patronising response from Dr Johnson to written questions in June 2024 that she identified the need for an endocrinologist or embryologist. It goes to the core of an expert’s duty to the court to identify area that are beyond their specialism at an early stage and certainly no later than the experts’ meeting. Discussion[117]It is for the LA to prove its case. It is for the LA to disprove a reasonable explanation.[118]The LA do not accept the parental account. The LA invites me, in closing submissions, to find that they have proved their case and to make positive findings as per the schedule of allegations without amendment. They state that the court can be satisfied that it is more likely than not that the injuries were inflicted as a consequence of a loss of control.[119]They invite me in consideration of the wider canvas to find that the parents had the opportunity to injure both H and Y and that it is likely given the “significant pressures” in the home at the time of the injuries; namely the poor condition of the home, parental ill health with COVID and Mrs D caring for the children and her husband to the point of exhaustion.[120]It seems to me that they have not, in submissions, taken stock of the evidence, particularly the expert medical evidence, upon which they rely, following cross examination and the concessions made by Dr’s Cleghorn and Olsen. They submit that on the evidence I can find that there must have been a unifying action causing H’s injuries or a number of incidents where each parent lost control and handled H and Y outside reasonable handling and caused significant injury.[121]Looking at the evidence in its totality I do not consider that the LA has met the burden of proof in respect of the injuries to either of the children. There are a number of reasons: Injuries to H[122]The medical evidence now supports the sequence of events as to what happened on the 17and 18.03.2023 provided by the parents as being a possible cause of the injuries to H. This is on the basis that the twins had normal bone density. This explanation of the fall and later resuscitation has to been seen in the light of the wider evidence around H, her fragility and Mrs D’ s own health.[123]The detailed narrative provided by the parents of H’s pre-existing breathing difficulties and resuscitation involving, on the parents’ account shaking H, at hospital on the 01.02.2023 and their account of her breathing difficulties on the 08.02.2023 is grounded in fact and was not challenged by the LA. This presents the court with a context around the events of the 18.03.2023. On two previous occasions the parents had treated breathing issues this way. And I pause to note on the 08.02.2023 H was successfully revived, and the ambulance did not need to attend.[124]In evidence, the parents were both clear firstly about what happened at the hospital and secondly about what they had been told to do in the event that H had any future breathing difficulties. They both carefully demonstrated, from the witness box, the actions they took including using the first two fingers on each hand to compress the chest from the front and then lifting and shaking H when the compressions did not work. It would no doubt have been a panicked frantic and frightening event for them.[125]Given the obvious language difficulties and now documented issues with translation it is entirely possible that the parents did not properly understand what they were being told “to do” or “not do” when this was demonstrated at the hospital.[126]The description of the faint by Mrs D was compelling. The detail around H being on her lap in the living room, her feeling very unwell and going to the kitchen to make some milk. Then:
“it was like someone had put their hands over my eyes and it went black”
. She was asked about how she fell? How she landed? Which part of her was in contact with H? Which part of H’s body was in contact with her? Whether or not her hand hit H’s face? Unsurprisingly, given her dead faint she was not able to answer these questions or the follow up one about her recollection as she came round. I do not draw an adverse inference from that. Further, I am alive to an account that H fell ‘with’ her mother rather than ‘on’. Given, the difficulties around interpretation little weight can be placed on the inconsistency it seems to me given that that the substance of mother’s case, throughout, is that she passed out and fell.[127]The account of H settling after the injury and being soothed with milk and falling asleep is entirely consistent with the medical evidence. In any event failure to seek prompt medical assistance is not part of the LA case nor was it put to the mother in cross examination.[128]This fainting needs to be seen in the context of the mother with a documented history of dizziness and passing out both here in the UK, and in Afghanistan. This element of her case was never challenged. She was very unwell at the time of this incident as were the whole family and yet the burden of caring for her husband and three children under 2 years of age fell solely on the mother’s shoulders. She had passed out on the bus going to get the shopping and, on her own account her “batteries were empty”, she was weary to the point of exhaustion. In such circumstances it is entirely likely this faint occurred and is not fabricated. In any event it is only in closing submissions that the LA seeks to cast doubt of this ever occurring. It was never put to Mrs D that she was making this up.[129]The account of H being shaken is consistent with the clinical observation of her as having a retinal haemorrhage. A factor not discussed or considered by the experts.[130]The account put forward by the parents of a “shake” in the context of assisting H when she stopped breathing was something that was being openly discussed with the Health Visitor on the 10.02.2023 during an unannounced joint visit with the social worker. It is recorded that Mrs D tells them “On 8/2/23 whereby H was sleeping soundly on the mat on the floor when she suddenly turned blue and was not breathing. Mr D blew into her face and had to shake her. This then resolved and H turned to a normal colour”. Whilst advice was given by the Health Visitor about the parents not calling an ambulance in such circumstances she did not tell them that they should not shake H.[131]The wider canvas of the care of the children is in stark contrast to the allegations of injuries. The descriptions of observations both by the health visitor and in contact are exceptionally positive. There is a loving bond and attachment, affection and warmth. Furthermore, even though money was very tight and the home conditions in terms of mould were unhealthy Mrs D ran a tidy and clean home with the focus of using what funds thy had for the benefit of the children and being “welcoming, hospitable, engaging and receptive”.[132]The family have never denied access to healthcare professionals and the children were up to date with immunisations and no concerns were raised. Mrs D, especially, was very open and honest in her interactions with the professionals including at the hospital and police station. There were no concerns raised by the health professionals.[133]Given that Dr Cleghorn cannot rule out MBDP, lesser force may have been required to cause the fractures.[134]There is no evidence that the LA can point to to demonstrate a loss of control; multiple episodes of serious injuries over a two-week period or a single violent incident requiring forces akin to a car accident.[135]This is a LA who have had unprecedented access to the parties’ phones, social media and messaging. There is nothing in that evidence that supports the LA case. In fact it reinforces the parents’ account of concern over the health of the children, particularly H.[136]H was clearly struggling with her health prior to the events of the 17/18.03.2023.On the balance of probability, it is more likely that the injuries, to H, were sustained in accordance with the account provided by the parents. Injuries to Y[137]Grabbing Y as she fell from the tumbling basinet, as described by Mrs D, is, according to Dr Olsen and Dr Cleghorn in cross examination, an action of sufficient force and mechanism to cause the right shoulder fracture to Y. It was never put to the mother that she had lost control in grabbing Y in such circumstances. Indeed, it would be the most natural thing for a mother to do to grab a falling child.[138]Once again this is an account volunteered by the mother and not engaged with by the experts until the hearing.[139]The LA say that even if this occurred it was not within the window of the 7-21.03.2023. They point to the Health Visitor record of the 10.02.2023 as evidence that the basinets were not in use after that date. That they say categorically places the event outside the timeline identified by Dr Olsen and therefore cannot account for Y’s injuries. However, that account reads as follows:
“the second bedroom where there was lot of clutter stored such as Moses basket stands, dismantled cot and clothes…..it was reported that the Little Village Charity brought a cot yesterday which Mr D will put together, however, he requires a mattress for it. This will then allow A to have his own cot and Y and H can share one. All of this speaks to future intent. Further the Health visitor record of the 03.03.2023 refers to Y being “asleep in her crib”
. I am not satisfied on the balance of probability that as a matter of fact the basinets were not used from the 10.02.2023.[140]Dr Olsen was also able to confirm that a fall from the sofa could also result in the injuries sustained by Y.[141]Again, there is nothing in the LA evidence to support a finding that this is an inflicted injury.[142]On the balance of probability, I find that the injury to Y’s shoulder was caused accidentally when she was saved from falling from the basinet. ‘Bruises’ to both H and Y[143]The Local authority evidence case on bruising is reliant upon the evidence of Dr’s Patel, Hassan, Guruviah, and Thomas at the hospital and the paediatric overview by Dr Cleghorn. The LA were evidently blindsided by Dr Patel’s responses when it became clear that she neither authored the report nor had involvement of the body maps. They then called the registrars who undertook the examination of the twins. None of them identified bruises.[144]Dr Cleghorn took that clinical evidence and in her opinion set out not only were the ‘marks’ ‘bruises’ but also that they must have been inflicted due to a lack of accidental explanation from the parents.[145]Bruising, was also, stated in closing submissions to mirror the sites of the fractures. That is factually inaccurate.[146]We also now know that some of the ‘marks‘ observed are in fact Mongolian blue spot birth marks.[147]The photographic evidence is particularly unhelpful. There are a number of poor-quality photographs of the twins. When they were taken and by whom was far from clear. They do not comply with the guidelines in terms of lighting, measurement or on occasion being able to identify which part of the body was being photographed. The only reliably dated images are those from the 21.03.2023 taken by the police, 4 days post admission and after the children had been handled by a number of staff and H had been subject to procedures. In total they are of little evidential value.[148]There is no evidence before me to prove that the marks identified are in fact bruises.

Conclusion

[150]This is a case where the LA has continued to pursue findings that the injuries could only have been caused non-accidentally by violence and lack of control. They have not been willing to critically analyse the accounts of the parents. They have not properly engaged with the written expert medical evidence nor critically have they paused to consider the contradictory oral evidence of those same experts and the impact it has on undermining their case.[151]They have not met the evidential burden placed on them.[152]The allegations are not proved.[153]That is my judgment.

Cited in 1 later judgment