Devon County Council v M & Ors [2018] EWFC 105 (B)

[2018] EWFC 105 (B)

IN THE FAMILY COURT SITTING IN PLYMOUTH

Hearing CASE HEARD ON :25th,26th,27th.28th and 29th September 2017

11 th, 12 th and 16 th October 2017 and 12 th, 13 th, 14 th 15 th and 16 th February 2018.

JUDGMENT HANDED DOWN ON : 4 th May 2018

Before

HER HONOUR JUDGE SEARLE

Between

Devon County CouncilApplicant

M FirstRespondent

F SecondRespondent

ARespondent

Through hisRespondent

Children’s GuardianRespondent

Devon County Council Applicant

M First Respondent

F Second Respondent

Through his

Children’s Guardian

Third Respondent

Representation for substantive hearing

Mark Whitehall, Counsel for Applicant

for First Respondent : Lisa Barraclough, Counsel

for Second Respondent ; Bill Higginson, Counsel

for Third Respondent : Jacqueline Ahmed , Counsel

Representation for judgment:

Sara Smith , Solicitor of Devon County Council for Applicant

for First Respondent : Lisa Barraclough, Counsel

for Second Respondent : Bill Higginson, Counsel.

for Third Respondent : Jacqueline Ahmed, Counsel.

This judgment is being handed down in private on 4 th May 2018.. The Judge has given permission for judgment (and any of the facts and matters contained in it) to be published on condition that in any report, no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name, current address or location [including school or work place]. In particular the anonymity of the children and the members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain.

Date 2018-05-04

[1]A is the son of M and F. On 13th March 2017A, who was then just under eight weeks old, was taken to hospital by ambulance. The ambulance had been called by the parents as a result of their noticing that A had become very unwell. At hospital he was found to have sustained a critical loss of brain function and cardiovascular failure, bilateral subdural collections, resulting from haemorrhages over both cerebral hemispheres, subdural collections bilaterally within the posterior fossa, subdural collection within the lumbar spinal cord, contusions to the brain substance and widespread bilateral hypoxic-ischemic injury. Upon discharge from hospital A was placed in the care of the local authority.

[2]The local authority’s case is that those injuries and rib fractures that were found, plus some earlier bruising, was caused by the mother or father. Findings sought/position of the parties.

[3]The findings that the local authority seek are set out in detail in a schedule at A20 in the bundle. In summary the findings sought are in relation to the following: (a) that there was bruising seen at the hospital on 24th January, that there was bruising on the left thigh. The local authority seeks the findings that the mother or father caused the bruising. There was also bruising that was seen in the March which was underneath the chin and the local seek findings that the mother or father caused that bruising non-accidentally.

[4]Secondly, with regard to the fractures to the posterior of the sixth and ninth ribs the local authority seek findings that those fractures were caused by the mother or father between 6th February and 1st March.

[5]Next, that there was critical loss of brain function, cardiovascular failure and the bilateral subdural collections resulting from haemorrhages over both cerebral hemispheres and the list that I have referred to above. The local authority seek findings with regard to all of the above that all of the above occurred as a result of A being forcibly shaken. In the alternative the local authority seek findings that any parent not inflicting any of those injuries failed to protectA from the other parent.

[6]The parents individually make similar responses as each other. Concerning the bruising, they accept that A had what looked like bruising, but each denies causing it. Concerning the fractures, they each deny being aware of the fractures and both accept that the findings of the medical investigators were that there were indeed fractures. Concerning the other injuries, they both accept the injuries and the conditions where the findings of the medical investigations, but each denies shaking or causing those injuries, by which I mean collectively the brain injuries. They deny responsibility for any injury toA and do not believe that the other parent caused that injury and so deny failure to protect.

[7]The mother and the father are not British nationals. The court has heard that they have had a good understanding of the English language, but in order that they have been able to understand even the most complex medical terms that this court has heard in evidence, both have had the benefit of assistance from Court Interpreters as required.

[8]The only other party that I have not mentioned is the guardian who, although not present throughout, has been represented during the hearing by counsel. All the parties have been represented by counsel. The listing of the case.

[9]This case has been heard over a number of dates. The first listing was for 10 days, five days from 25th September to 29th September and further dates on 11th and 12th October. On the 16th October, that is the eighth day, the case was adjourned so that geneticists might be instructed. The case came back before me part-heard on 12th February for a further five days. At the end of that week, after hearing all the evidence that was relied upon at the time, I made a direction that the representatives were to provide written submissions within the week. However, having reflected on the case and specifically the evidence of Dr Saggar, the geneticist, I considered that it was necessary for the court to have the results of further testing from Dr Saggar and gave those directions on 20th February. The case was, therefore, adjourned for such testing ofA’s parents to take place.

[10]Dr Saggar reported on 11th April At a telephone hearing on 16th April I was informed by the parties that no one sought any further reports or assessments or scans and that all parties were now content for the matter to progress to written submissions and judgment. The written submissions were filed on 25th April and this judgment is being delivered today on 4th May. The law.

[11]I remind myself of the legal principles set out in the case of Re JS [2012] EWHC and DCC v. EB and Others

[2013] EWCA 1968

and more recently Re S (Child No. 1) [2015] EWFC. In determining the issues at this fact-finding I apply those principles. Firstly, the burden of proof lies with the local authority. It is the local authority that brings these proceedings and seeks these findings and therefore the burden of proving those findings rests on them. I remind myself there is no pseudo burden upon any parent to come up with explanations.

[12]Secondly, the standard of proof is the balance of probabilities, which is Re B [2008]. If the local authority proves on the balance of probabilities that the child has sustained non-accidental injuries inflicted by one of his parents this court will treat that fact as established and all future decisions concerning his future will be based on that finding. Equally, if the local authority fails to prove that the child was injured by one of his parents the court will disregard the allegation completely. As Hoffman L observed in the case of Re B, if a legal rule requires the facts to be proved, that is a fact in issue, a judge must decide whether it happened or not. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one.

[13]Next, findings of fact in these cases must be based on evidence as Mumby LJ, as he then was, observed in Re A (A child) fact-finding hearing (speculation) [2011] EWCA, it is an elementary proposition that findings of fact must be based on evidence, including inferences that can properly be drawn from the evidence and not on suspicion or speculation.

[14]Next, when considering cases of suspected child abuse the court must take into account all the evidence and, furthermore, consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth Butler-Sloss observed, then President, in the case of Re T, evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof.

[15]Next, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. The roles of the court and the expert are distinct; it is the court that is in the position to weigh up expert evidence against the other evidence. See A County Council v. K, D and L [2005] EWHC. Thus, there may be cases if the medical opinion evidence is that there is nothing diagnostic of non-accidental injury where a judge, having considered all the evidence, reaches a conclusion which is at variance from that reached by the medical experts.

[16]Next, in assessing the expert evidence I bear in mind that cases involving allegations of shaking involve a multi-disciplinary analysis of the medical information conducted by a group of specialists each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others. This is the case of Re S [2009].

[17]Next, the evidence of the parents and 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. This is Re W and Another (non-accidental injury) [2003] FCR.

[18]Next, 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 that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that witness has lied about some matters does not mean that he or she has lied about everything. This is referred to as the Lucas Direction.

[19]Next, as observed by Dame Butler-Sloss, President, in Re U and Re B (supra), the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research may throw a light into a corner that is at present dark. I remind myself of the fact that this principle was also drawn from the decision of the Court of Appeal in the criminal case of R v. Cannings, when the Court of Appeal quashed the convictions of the mother. There was no evidence other than the repeated instance of her children’s breathing having ceased and there was serious disagreement between the experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable explanation. With regard to this latter point case law has emphasised the importance of taking into account to an extent that is appropriate in any given case the possibility of the unknown cause.

[20]That was articulated by Moses LJ in R v. Henderson, Butler and Others [2010] EWCA:

“Where a prosecution is able by advancing an array of experts to identify a non-accidental injury and the defence can identify no alternative cause it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude beyond reasonable doubt an unknown cause. As Cannings teaches us, even when on examination of all the evidence every possible known cause has been excluded the cause may still remain unknown.”

[21]I note that what is said by Hedley J, who was part of the constitution of the Court of Appeal in the Henderson case when he explored the point in Re R (Care proceedings - causation) [2011] EWHC:

“A temptation described is ever present in family proceedings too and in my judgment should be resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a disputed aetiology giving rise to significant harm a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof, it is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

[22]Finally, 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 whether there is a likelihood or a real possibility that he or she was the perpetrator. That is North Yorkshire County Council v. SA [2003]. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable where possible for the perpetrator of non-accidental injury to be identified both in the public interest and the interest of the child, although where it is impossible for a judge to find on a balance of probabilities, for example that parent A rather than parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so. Evidence.

[23]There is substantial written evidence before me set out in nine lever arch files. These include the local authority schedule and the parties’ responses, statements by the treating medical professionals, the GP, the health visitor, as well as statements from the parents, members of their family and work colleagues. There is police evidence, including interviews of the parents. I have seen several photographs, including the police photographs, the first three photographs taken of A by the mother and the second and third being the photographs that the mother took of the rash and bruise under A’s chin on 10th March and further there are internal shots of the parents’ flat. I have seen the medical records, including the GP records and hospital records, including CT scans and MRI scans and the medical colour photographs from both hospitals. As I have said, I have seen the photographs taken of A by the mother. I have seen a short film sequence of A at the swimming pool the same day that he was admitted to hospital. I have seen the police written evidence, in particular the interviews of the parents; the mother’s on 28th March at 12.02 and the father’s the same day at 4 p.m.

[24]I have also read the reports from the part 25 medical experts. Those are Dr Fairhurst, the consultant paediatric radiologist; Dr Peter Richards, the consultant paediatric neurosurgeon; Dr Ward, the consultant paediatrician; Dr Hogarth, the radiologist; and Dr Keenan, the consultant paediatric haematologist. I have also read the papers that the experts have produced. I have also seen a transcript of both of their experts’ meeting, one before the involvement of Dr Saggar and one when Dr Saggar was present. I have also seen transcripts of messages sent by the mother to the father’s brother and to her aunt.

[25]Due to necessary adjournments the initial evidence was heard as far back as last September. I have now been able to refresh my memory of the evidence given at that time by reading the transcripts of that evidence. I have also been helped and assisted by the written documents prepared by counsel. There were position statements and case summaries, a detailed forensic chronology prepared by counsel for the local authority. I have also been helped by reference to the Child Protection Companion and finally by the written submissions of all parties.

[26]I have heard oral evidence from the following witnesses: Dr Fairhurst, the consultant paediatric radiologist; Mr Peter Richards, a consultant paediatric neurosurgeon; Dr Ward, the consultant paediatrician; Dr Park, a paediatrician at the Royal Devon and Exeter Hospital, where A was admitted on 13th March; Dr Hogarth, a consultant neuro-radiologist; Dr Elderkin, the treating paediatrician of senior staff, associate grade, who saw A on 24th January; Dr Keenan, the consultant paediatric haematologist; Dr Price, the general practitioner; the consultant paediatrician who saw A on 24th January; Dr Fairhurst was recalled, Dr Ward was recalled.

[27]Dr Saggar then gave evidence as a part 25 witness. I have also seen and read his reports. Dr Ward, as I have mentioned, was recalled and on the last tranche of dates I also heard from Miss Brain, the health visitor, and the maternal great aunt. I also heard from the mother, who had started her evidence in October, the father and one of the managers of the hotel where the parents worked. It is from viewing and reading that evidence that I am able to draw up the background summary. Background summary.

[28]The parents both came to work in the United Kingdom at a hotel in Devon as they both had family working there and in 2013 they met and started their relationship.

[29]In March 2016 the parents moved from staff accommodation to their own home.

[30]In December 2016 the mother finished her work to start her maternity leave and in January 2017 the mother attended the Royal Devon and Exeter Hospital and in January A was born, eventually emerging after a birth assisted with ventouse. His Apgar scores were within normal ranges. On the next day he was able to return home with his parents.

[31]The mother’s statement stated that during the first week that A was at home she struggled physically. She was bruised and uncomfortable from the stitches, finding it difficult to walk. She hoped to breastfeed, but in the early days that was not so successful. So during that time it was the father who was on paternity leave who was doing most of the care. He had taken some holiday and added it to his paternity leave, so he was home for some three weeks, only going back to work on 5th February.

[32]During A’s first week at home the midwife visited. Upon giving the mother some advice concerned breastfeeding, breastfeeding became more successful. The father would bring A to mother’s bed for feeding. During these early days A was happier sleeping on the mother’s chest and so in order to make the situation easier, later in January they bought what is called a “Next to me” crib. This is with one side of the crib that clips to the side of the parents’ bed and can be seen in the photos of the interior of the parents’ flat.

[33]When A was weighed at about a week old, the mother was feeling better and was more active in her care.

[34]Late in January A was given his first bath by his parents. They did not notice any marks and it is likely at that time from considering the evidence of the maternal aunt that they consulted with her about this bathing. However, within days the maternal grandparents are staying and the paternal grandmother brings some medicine for colic-like symptoms. At 10 o’clock that day the mother and maternal grandmother notice marks on A’s leg. In her interview the mother says that she noticed it.

[35]The parents take A to see the midwife, who refers him to the Bramble Ward, phoning the ward at 4.40 that afternoon, and she informs the ward that she had sent a MASH referral form. By 5 p.m, A is on Bramble Ward and is being seen by the paediatrician. The body map shows that A has a linear bruise to the top outside of his leg. There are also two further two small bruises of one centimetre and four centimetres below his knee. That the marks are seen there is an obvious concern because A is a non-ambulant baby and with bruises and no explanation the doctor conducts the safeguarding examination.

[36]The doctor is Dr Elderkin and notes that A was not observed to have bruises when he was bathed the previous day. This is the only indication of how the timescales were relied on. It is noted that the mother is distressed and the parents were compliant with the need for A to return to hospital. Tests were ordered and A was kept in overnight.

[37]The next day a number of tests take place. By 7.30 that next evening it is recorded that A is settled, that the mother was very upset. The medical note recalls that the mother feels like she is being accused of bruising him. By 9.40pm that evening the parents are still there and the police officer has arrived to speak to the parents with a social worker and Dr Elderkin. By 10.40pm the father has left as there was only one bed for one parent to stay.

[38]The mother remains and she is breastfeeding. She is tearful and tells a nurse that she would worry about letting someone know if she had concerns about A again due to this being very upsetting. The nurse made it clear that if mother did have any concerns she must always seek advice. The mother did acknowledge this, but was still very upset. The nurse noticed that A had several white headed spots. These are then seen the next morning and are viewed as being benign.

[39]The next morning the consultant paediatrician was on call. His note that morning at 10.30 states that the pattern of bruising is not immediately suggestive of non-accidental injury. The baseline clotting tests have come back as normal. He organises a skeletal survey and a CT head scan at 11 o’clock. A strategy meeting is scheduled at 4 p.m. when all the results will be available. By 2.10 that afternoon the eye examinations come back as normal; there are no retinal haemorrhages. The CT scan and skeletal survey are also normal.

[40]The consultant paediatrician, comes back on duty that day and his note at 5p.m. recalls that the CT scan, the skeletal survey, the ophthalmology report, the clotting report (part 1) and the bone profile have all come back as normal and so the strategy meeting takes place. The consultant paediatrician said that there was an initial meeting between himself, the social worker and the police officer.

[41]He said that his conclusion was that this was bruising of a non-mobile infant and as such he had to consider non-accidental injury. He said that the social worker searched through the records and police investigations and had come up with nothing. He said that the social worker had said:

“Let’s go and speak to the parents”

. It seems that there was then a discussion between the professionals with the parents as to how the bruises could have occurred. It seems further that at some point it is suggested that the bruises could have been as a result of the seat belt rubbing. The parents dispute suggesting this and the doctor has no record or memory of who did suggest this.

[42]It seems to me very unusual that these professionals were having this discussion, effectively a safeguarding discussion, in front of the parents; but that is what happened. The professionals did not move away from the parents and decide what should happen, but in front of these parents the decision was made that A could be discharged home into their care, the plan being that there would be a follow-up meeting the next week. So he is discharged the evening of 25th.

[43]In her interview the mother said the process of taking A to hospital made her feel very bad, that she was worried that they were going to take A away. The mother in her interview was asked whether she had been told that they would take A away and she said not, but that the father was putting those ideas into her head.

[44]The next day there was a visit by the health visitor, Mrs Brain. She notes that the maternal family are still present. Her comment on her note is that the family is emotionally wrought and needed much supportive discussion and explanation. I note from A’s Red book that the mother said that she exclusively wanted to breastfeed and so there was talk about how to increase milk production. I further note the progress note , stating that it was difficult to be certain how the bruising had occurred and that “open and curious minds must be kept,” the plan being to work with the parents and professionals to keep A as safe as possible.

[45]On 29th January the same health visitor visits the home and weighs A. On 30th January the paternal grandmother and her partner visit and stay with the mother and father in their flat for about five days.

[46]On 1st February the consultant paediatrician sees A in outpatients and notes that the bruises on the leg have disappeared, but there is mild nappy rash, but he writes that he has no concerns and that the social worker will be visiting the home that afternoon. The doctor orders a repeat X-ray as per the protocol.

[47]On 2nd February A was again weighed. I note that the father returns to work after his paternity leave on 5th February.

[48]On 6th February the maternal grandparents return to their home..

[49]The mother says that from this time they had lots of friends coming to see A. She also tells the police that she got into a routine of feeds for A; that she would shower and dress then take him for a walk. The father, however, would still occasionally do the midnight feed. The mother mentions that on one such occasion when there were visitors A was seen to twitch, it being remarked upon as being unusual by the visitors.

[50]On 8th February the repeat X-ray takes place. No bony abnormality is seen and A still has mild nappy rash. The mother says she is using wet wipes. She is advised to use cotton wool and to return to the GP in three to four days if no improvement.

[51]On 16th February A is weighed again. This time the mother has taken him to the parish hall to be weighed. On 23rd February he is again weighed by the health visitor. There are issues of him not opening his bowels and being constipated.

[52]Then before the 1st March, which is the six week check, the father shows to the mother that there is now another bruise on A’s left leg. The father’s statement is that it was on his shin. The evidence of both parents is that the mother is having a bath and the father brings A in to ask her if she knows about the bruises. The mother in her statement offers a possible explanation for this, that she was moving his legs up and down to deal with his wind and that she would dance with him and was concerned that perhaps she moved too fast.

[53]There is no evidence that that bruise was ever shown to a professional. Perhaps the indication as to why it was not is in the father’s statement, when he writes:

“I had no idea how it happened either and didn’t know what to do. I started to think the worse, so if we took A to hospital he would be taken straight away us.”

The mother’s interview was similar and the court notes that the last time mother took A to hospital it was horrible for them and for A.

[54]1st March is the date of the six week check. The mother takes off A’s clothes and as she does so she sees that A has small marks on his right hand. She points these out to the doctor and the doctor asked the mother to come back the next week. The mother accepts in her interview that after the marks on the hand A had one further bruise and this was on his cheek. She claims she could explain this because when he was playing with his rattle he smashed the toy into his cheek.

[55]When A is seven weeks old, the mother returned to the doctor with A and his marks were seen to have disappeared.

[56]The next day, A was again weighed. Both parents are present. The mother repeated the fact that she was almost afraid to have contact with A because of health professionals.

[57]It was the father who was observed dressing and undressing A and cuddling him lovingly. This observation of the mother led to concern on the part of the health visitor that the mother’s relationship with A might be affected.

[58]On 10th March the father was not feeling well enough to work so he stayed at home. At 12.43 the mother takes A for a walk in his pushchair. As she pushed A she had a telephone conversation with her aunt; it lasted about 40 minutes. She switches on the camera so that the aunt can see her surroundings and she takes a video of A.

[59]The father in his interview said he cannot remember the details of when he first saw the bruise that day, but he remembers watching TV when the mother returned with A. He recalls that A was crying that day, repeatedly crying, and in trying to calm him down he rocks him on his arm and in so doing he, the father, notices a bruise on A’s chin and a rash on his neck. He recalls taking A to the mother and asking her if she had seen the mark and asked her what was going on. She said she had not seen it before and does not know what is going on. The father says in his interview that they did not take A to the hospital straight away because he understood that the mother had mentioned that they were about to see a health inspector, by which I understand to be the health visitor.

[60]However, the mother takes a photograph. The mother was worried about it as she felt it did not seem normal and so decided to take the photograph, as she says, to show it to the health visitor when she next saw her. However, in her statement she says that she did not seek medical advice for a number of reasons. She said the first was because of the nightmare that the parents felt that they had gone through when they took A to hospital in January. She said in her statement she did not want to put A through that again and she did not want the father or herself to be under suspicion. Further, that she had recently taken A to the doctor for his six week check and the bruise seen then she was told was nothing to worry about when she returned on the seven week visit.

[61]However, although the mother does not seek medical advice, what she does do is show the bruise to her aunt that same day through Skype by sending a photo. The aunt gave evidence in court by video link. She said that the mother sent the photo of A’s chin at about 7.30 that same evening and that mother asked for her opinion as to what she thought it could be. The aunt said:

“I told her straight away it is heat rash and regarding the bruise it could potentially be as a result of A wearing a sweater.”

[62]The mother says in her interview that she wanted to ask the health visitor as she was supposed to see them at home. The aunt said that she had been aware of the bruising under the chin but was not aware that A had been taken to hospital for bruising in January, although it is the mother’s evidence that she had in fact contacted her aunt when A was discharged. She did say, however, that the mother had informed her about the problems that A had with regard to colic and it was she who had suggested to the mother that she should bend and stretch his legs. She said that the mother would regularly ask her opinion for advice with regard to the child, such as bathing him in the right way. Date of the trigger event on 13th March 2017.

[63]The father leaves the flat at about 7 o’clock in the morning to go to work. It was the aunt’s birthday and so as a treat for her, the mother sent a photo of A. It is a photo of A with flowers alongside his head. She goes out for a walk with A. She takes some photos for printing and while waiting for the photos to be printed she goes to the park, where she sees two friends. She says that having picked up the prints they return home. A is asleep. It is about 1.30. When he wakes up it is about 3 o’clock and he is fed.

[64]The father returns to the flat at about 3.00 to 3.15. It is the agreed evidence of the parents that the mother wanted them to take A swimming at the swimming pool where the father worked. That is the hotel to which I have already referred. So the mother and father take A to the swimming pool.

[65]They arrive at 4.25 p.m. I have seen the limited CCTV of this event. It is apparent that the parents initially introduce A to the swimming pool and then at 4.35 took him to the hydro spa, which the parents said was warmer. At 4.53 the parents and A are out of the spa pool and by 5.14 the mother appears to be giving A a bottle.

[66]The mother later tells the hospital that A was fed about 6 p.m. In her interview she said she fed him at 5 p.m. It is the father’s recollection that it was about 5 p.m.

[67]The whole of the court has seen that video. The father is the parent who holds A for the majority of the time. It is my observation that he holds him with the utmost care. At 5.21 p.m. the parents leave the pool area and return home.

[68]The mother’s oral evidence is that A was brought into the flat in his car seat and placed on the sofa in the sitting room. She cannot remember if A was placed on his front or his back and whether it was she who in fact brought A in. The father says he thinks it was the mother who brought A in and that A fell asleep on the sofa. He says he thinks that the mother wanted to cook and that he wanted to do a design for a tattoo for himself around A’s name and did so at the table in the corner of the room.

[69]It is the father’s evidence however, that before the mother went to cook she sat next to A and expressed some milk.

[70]The mother says that she goes into the kitchen and starts to prepare the pasta bake whilst the father was drawing at the table in the sitting room. The father says that A was sleeping on the couch belly down.

[71]The father recalls the mother coming into the room when he was drawing to prompt him to give A a bath but that he, the father, did not want to do so at that moment, so she went away and came back.

[72]This is the first confusing part of the parents’ account of that evening. What I glean from their evidence is that the father started filling the adult bath, whereas the mother had intended him to fill the baby bath. The father in his interview states that the mother asked him:

“Why are you not getting the bath ready?”

He said:

“I’m doing it. This is why there was some kind of disagreement and that we were disagreeing at that moment.”

[73]In their oral evidence neither parent would accept that there was any disagreement between them. The father later in his interview said that there was a normal discussion. The father says in interview that having agreed with the mother to give A a bath in the baby bath because he, the father, was in the middle of things he went to their bedroom in order to change into a robe.

[74]My observations are that the parts of his interview at J213, J214 and J215 are very confusing to read. At J216 he says that when mother challenged him about preparing the wrong bath A started to cry, that he, the father, went to settle A. He says he was still in normal clothes at this point, not in his robe. He says that he put A back on the sofa, being the sofa in the living room.

[75]He says that A was beginning to cry and believes that he went to calm him down. He says that he went to change then he heard the cry to which he responded that he would be coming. When asked as to where he goes when he hears that cry and says:

“Daddy’s coming,” the father says the following: “Look, I don’t remember very much, if I went from the bath tub or my bedroom. I was in the middle of something and I remember that to get ready I was in the robe. But then I remember to even think I must have gone back to the bedroom again.”

[76]He describes the cry as like a cry when A was very hungry. He cannot remember seeing the mother then, although later he says that when he opens the door the mother is already there. He does remember A being in A’s room, that is bedroom, but he does not know how A got into A’s bedroom. He said that A was crying and when they entered the room and looked at A, which he felt they did at the same time, that he was not breathing.

[77]The mother’s account is that she recalls A began to cry so she started warming up the water so as to warm up his bottle. She is not sure how far she got in that preparation as she says she then heard a cry that she had not heard before.

[78]In her interview she refers to it as a hysterical cry. In her oral evidence the mother claims that she cannot recall where A was when she picked him up. She recalls picking him up and he was not breathing and walking around and calling to the father. In her interview of 28th March she says:

“And I don’t remember now if I pick him up or F, because we both went there.”

In her interview she says:

“I don’t remember which one of us pick him up, but he started crying.”

[79]The mother’s evidence is similar to the father insofar as her evidence is confused when addressing the issue of A’s bath and where A was. The mother’s evidence is that at some stage when she was preparing A’s feed the father was to prepare A’s bath, but that she then asked him then to prepare a baby bath. She said that she was checking on A every few minutes when he was on the sofa.

[80]The unknown factor in the mother’s account is how A ended up in his cot in his own bedroom. The father claims it was not him. In the mother’s evidence it became apparent that she believed it was the father who picked him up and placed him on the cot bed. However, she later said that she believes that because that is what she would do if she was running the bath. Later in her evidence she became more and more unsure as to where A was when he was picked up. She said that when she held him he was screaming for about 10 seconds and then he went floppy. She recalls doing CPR on A. She accepts the father rang the ambulance and that A started to breathe again and that A was seriously ill by the time he went to hospital. She denies shaking him.

[81]Later in her evidence she says that she thought A was in his cot in his bedroom and she says she felt that it was the father that had persuaded her that he had not been in the cot. However, she said that speaking to the father had confused her. It can be seen how confusing their evidence has been. Although there is a medical record noting that both parents gave CPR, I am satisfied, having heard from the parents, that it was the mother who gave CPR and it was the father who called the ambulance.

[82]The ambulance is called at 7.53pm. As that call starts the mother is giving CPR and within seconds A is breathing, albeit that A emits a noise when he is breathing. The nurse on the telephone line assists and within minutes A has started crying.

[83]By 8.03pm that evening the ambulance crew are there. The history that the mother gives is similar to that, that the court has heard, that is the history she gives the ambulance crew. She mentions the bruising that has occurred in January. The only difference is that within the note from the ambulance crew there is no mention of A crying hysterically or at all. The account given was that F checked on A whilst running a bath and found A unresponsive.

[84]The examination of A by the ambulance team revealed that A was lying on a changing mat, the mother was next to him, A was crying loudly. He was found to be distressed, crying, with good muscle tone. The note of the team includes the words of “possible non-accidental injury”. Although breathing, the mother says that she asked for A to be taken to hospital, but the ambulance teams are clear that they were doing that anyway and the ambulance leaves for the hospital at 8.24pm. At 8.25pm they are in transit. At 8.51pm they arrive at the hospital. At 8.55pm he is in accident and emergency and by 9.40pm he is seen by the consultant Dr Cross where he records the history. The mother a having told him that A had had previous admission to hospital with unexplained bruising. On his note he queries whether there is non-accidental injury. Further notes written up indicate that the parents were in fact unsure whether A had stopped breathing, but the basic history was consistent, that the parents were starting to prepare a bottle and a bath for him.

[85]On examination the doctor found A to be crying and irritable. He was admitted to a ward that evening and by 2 o’clock the next day he was again very distressed, with a high-pitch cry unless he was being held. He was monitored overnight. He was at times distress and his fontanelle was observed to be bulging. Dr Vagillio’s note indicates that sepsis as well as non-accidental injury were considered as possible at this time. Bloods were taken for testing. He was started on a spectrum of antibiotics in case of infection.

[86]At the examination at 5 o’clock in the morning the mother told Dr Vagillio that she did not want to bring A to hospital as she is afraid “that doctors are going to take A away from me.” She kept telling the doctor that she is not hurting A, but she is afraid that he is going to be taken away from her.

[87]Dr Park, the consultant paediatrician, saw A at 9.30 on 14th March. He observed A to be having seizures at that time, mainly affecting his upper and lower left limbs and eyes. Dr Park observed the bruise under A’s chin and the mother showed the doctor the photo that she had taken of it. This court notes that there is mention in the medical notes of a blanching rash under the chin, the evidence of Dr Ward being that if this was indeed a blanching rash it cannot have been a bruise.

[88]Blood tests revealed no abnormalities to support infection and renal ultrasound revealed no abdominal injuries.

[89]However at 12.30 in the afternoon the CT scans results revealed that A had bilateral frontal subdural collections with evidence of acute haemorrhages. The scans were compared with the CT scans that were taken in January and were observed to be new, that is, that the haemorrhages were not present in January.

[90]The report of Dr Cross refers to the injuries being suspicious of inflicted injury. I note that he notes in his notes that his interpretation written on 15th March is that it is ” highly suggestive” of inflicted injury. A MASH referral was made and Dr Parkhe later spoke to both parents about the findings and asked them if they had any explanation, which they did not. He explained that A would need to go to Bristol Children’s Hospital.

[91]He was moved to Bristol Children’s Hospital overnight, that is the night of 14th/15th March. At that time the results of the X-rays were not known. The results of the skeletal survey were made known on 15th March. This was obviously the initial X-ray, but it alerted the radiologist to a possible acute fracture in the posterior sixth and possible abnormalities in the posterior third, seventh, eighth rib. A future X-ray was required in two to three weeks’ time; this took place on 20th. Beside the further X-rays, the MRI scan was undertaken on the 15th, on the 16th. There were results from the CT of the head and on 16th, 19th and 20th March there were chest radiographs.

[92]On 21st March A was transferred back to Royal Devon and Exeter and on 28th the parents were interviewed under caution. A had an ophthalmologic review and was not found to have any retinal haemorrhages. An initial child protection conference review took place and on the 5th April and the 6th April there was a further skeletal survey.

[93]On 13th April A was made the subject of an interim care order and was discharged from the hospital into the care of foster carers.

[94]On 25th April the further ophthalmological review showed apparently normal vision. There was a further MRI at the Royal Devon and Exeter under general anaesthetic, which I will refer to when dealing with the expert evidence below.

[95]On 29th April A’s foster carers called an ambulance as his breathing appeared erratic and there was a tremor to both hands and he appeared to take longer than usual to wake up. A was discharged from hospital the next day. He showed no seizure activity and the foster carers were told that the incident could be normal baby movement. Expert evidence.

[96]Pursuant to the order of Mr Recorder Mayne-Thompson of 19th April, the following part 35 single joint experts were instructed. Mr Richards, Dr Keenan, Dr Hogarth, Dr Fairhurst, Dr Ward, I have already referred to their specialities.

[97]There is a significant amount of expert evidence in this case. Each expert produced at least one report and took part in the professionals meeting and then gave evidence at court.

[98]It is to be noted that at the time of the initial professionals meeting of 16th August the results and report of Dr Hogarth on the MRI scan that A had had in July were not available. The report of Dr Hogarth on those results was filed on 20th September and the case started on 25th September.

[99]In this judgment I will deal with the evidence expert by expert, referring to their report, their contribution to the experts’ meeting and what oral evidence they gave up to the evidence heard on the September/October dates. From then on I will deal with the further expert evidence as it was provided in date order. Dr Hogarth, consultant paediatric neuro-radiologist.

[100]His report is dated 23rd July 2017. In his report he reviewed the scans on A. He stated that the acute or fresh bleeds may remain hyper dense from the day of trauma up to 11 days after the injury. This means that the fresh bleeds on A’s scan could have occurred at any time up to 11 days before the CT scan was performed. In relying on the authority of Rook et al [2008] that the vast majority of birth-related subdural traumas will have been resolved by one month, and further relying on the fact that the large volume of subdural bleeds suffered by A were in areas not associated with birth-related subdural trauma, he gives the opinion that birth-related subdural trauma could be discounted. He stated that:

“The constellation of findings, which include multi-focal subdural haemorrhage, evidence of encephalopathy, and multiple rib fractures is highly suggestive of non-accidental injury. Acceleration and deceleration and rotational forces applied whilst vigorously shaking a baby is a widely recognised mechanism for producing multi-focal haemorrhages. The presence of intra-spinal subdural haematoma, as I note are here, has also been reported in cases of inflicted injury.”

[101]At the meeting in August he said that with regard to the CT scan on 14th March, noting the fresh blood from an acute bleed seen as white, that it was the view of himself and Mr Richards that the white image will change into a grey image in 10 days and therefore the image of the blood being white put the timeframe for the injury between 3rd or 4th March to 13th March. Dr Hogarth further said that the MRI scan on 15th March there seemed to be hypoxic-ischemic changes which are detectable for 10 days. So then again the timeframe at that stage was 3rd/4th March to 13th March.

[102]Dr Hogarth then states that taking a practical, clinical viewpoint where such severe signs are seen on the MRI scan of extensive hypoxic-ischemic changes, that in practical terms he would have expected to see a profound change in the state of the patient at that time. I remind myself at this point that the child was well enough to go to the swimming pool with his parents in the afternoon of that day and yet he collapsed later in the day.

[103]Dr Hogarth goes on to say that it would be unlikely that there had been an injury 10 days before the scan. He also said, looking at the scan of 16th March, that there was evidence of what he referred to as “blossoming haemorrhages” and he commented that these are usually seen further down the line. So this fits well into a pattern of something happening at the time of the initial scan of 14th March.

[104]Dr Ward agreed with that at the meeting. It was observed that unless there could be some movement on the time of the rib fractures it looked as if there could be more than one injury.

[105]Post that meeting and prior to giving evidence, Dr Hogarth produced his report of 20th September. That report referred to the fact that there had been a re-bleed. In that report he stated that the expected natural history for the healing and eventual resolution of subdural bleeds is that they slowly resolve over time. He goes on to say:

“Instead we now see evidence of large chronic bleeding into the collection since the March 2017 scans.”

He went on to write that in his view there were the following possibilities that the court may wish to consider:

“Firstly, the formation of locules within the subdural collections and the re-bleeding within them represents and unusual complication of subdural haemorrhage and does not necessarily imply an underlying condition. Mr Richard’s opinion will likely to be of key importance in relation to this question. Secondly, the failure of the subdural haemorrhages to resolve implies an undiagnosed or otherwise mysterious medical condition which is responsible for preventing normal healing mechanisms from operating effectively. Dr Keenan and Dr Fairhurst are likely to be of key importance in addressing this question.”

[106]In his oral evidence he referred to the re-bleed as a phenomenon in fact that was well-known, but that he had seen other cases where subdural haematoma had never healed. He said that formation of locules does not necessarily mean that there is an underlying condition.

[107]Concerning the scans, it was his opinion that the neuro-imaging of A’s skull and brain were not entirely normal as at 25th January. That the CT scans taken on 25th January, although not as accurate as the MRI, provided good evidence to exclude that there had been any intracranial bleed. He also reiterated that the colour of the bleed, white or grey, helped with regard to the timing going back to 3rd to 14th March. He also gave a view that the bleeding found on the spine was not leakage from the brain down to the spine but originated in the spine itself. This was because, in his words, there was a very, very large amount of blood and the amount of blood in the intracranial compartment is much less, but that either was possible. He said that whereas a finding of spinal haemorrhage has not been referred to as one of the triad of inflicted injury, it had been recognised by research as something that occurs in the context of inflicted injury. Dr Keenan, consultant haematologist.

[108]In his first report he recommends further testing, the Factor 8 assay and the platelet function testing. By the time of his second report he has seen the reports of Dr Fairhurst and Mr Richards, which he referred to. He refers to the further tests taking place. With regard to the platelet test he said there was no significantly decreased expression of platelet GP2B and that this result excluded the severe platelet disorders of Glanzmann thrombasthenia and Bernard Soulier disorder. He concluded that all clinically significant bleeding disorders have now been excluded, that some mild bleeding disorders have not been excluded, but mild disorders would not be the cause of serious internal bleeding.

[109]His oral evidence echoed his report. He said that the drop in haemoglobin between 13th March and 14th March is caused by blood loss, that it does not imply a bleeding disorder. He was taken through certain paragraphs of the Child Protection Companion and at the end of his evidence said that he could not exclude the unknown unknown, but that it was extremely unlikely that in this case there was an unknown unknown cause. Mr Peter Richards, consultant paediatric neurosurgeon.

[110]His main report was 30th June 2017. He also noted that there appeared to be fresh blood in three compartments of the fluid between the brain and the cerebrospinal fluid. He noted that there appeared to be fresh blood in the spinal MRI in the lumbar region and that on the CT scan of 16th March there was layered fresh blood at the back of the cerebral hemispheres and the posterior fossa. He also noted and that there appears to be haemorrhage in the brain substance bi-frontally and further there appeared to be hypoxic-ischemic change.

[111]He did not take issue with the reports of Dr Hogarth with regard to the brain and spinal imaging. He stated in the report that “it was unusual for babies to change suddenly from complete normality to profound critical abnormality with encephalopathy and cardiovascular instability. He stated that those processes which can cause such rapid deterioration such as infection have a period building up to them. Sudden cardiac events are unusual in infants. He opined that “whilst in itself it is not diagnostic of head injury, the sudden changes from normality to floppiness with poor breathing and poor circulation in the absence of any identifiable medical condition can be explained by A suffering a recent episode of head injury. He opined that the fresh subdural blood is abnormal and requires explanation.

[112]He discussed the chronic subdural haematomas, that visible subdural membranes are usually visible on the MRI scan and diagnostic of the fluid being chronic. Subdural haematomas were missed from the scans, but that of itself cannot exclude chronic subdural haemorrhages. He said that the expansion that he saw in A’s skull was not suggestive of chronic subdural haematoma. However, the factors, such as the increase in the volume between the CT and the MRI scans in March as well as the colour of the liquid, is suggestive of acute subdural bleed, but he could not exclude the possibility of it being a chronic subdural haematoma.

[113]He said that if it was considered that the fluid that was not fresh blood, that is an acute traumatic effusion, then we have a number of features, all of which can be explained by A suffering a recent head injury. Those were the sudden onset of encephalopathy and circulatory disturbance, the fresh subdural blood, the acute traumatic effusion and the cerebral contusions. He said that all features could be explained by A suffering a head injury about the time that he had become unwell.

[114]He said that it was recognised clinical practice that a child who changes suddenly and is found to have acute subdural haemorrhage/cerebral contusions/acute traumatic effusion may have suffered a head injury. He said that such events are also clinically associated with retinal haemorrhages, which were absent in this case, although that does not exclude the diagnosis.

[115]He said, therefore, in his report that his view as that it is likely that A’s acute illness was that he suffered a recent shaking injury. He said that he was fully aware of alternative theories, but that he was of the opinion that A’s presentation was as a result of him having suffered a recent head injury likely to have originated with a shake. He reported that the cardinal feature of head injury is that there will be a change from normality to abnormality.

[116]He reported that if the fluid in the subdural space was chronic subdural haematoma there were two implications: one, that some of the fresh blood that was identified could have occurred as a re-bleed into the pre-existing chronic haematomas. However, he also pointed out that there was fresh blood where there was not this fluid, including the posterior fossa and the spinal canal, and so re-bleeding could not explain the fresh bleeding in those parts. He said that spontaneous subdural bleeding is also usually symptomless and just found unexpectedly on imaging and is not associated with sudden acute encephalopathy or intracerebral contusion.

[117]The second explanation is that if it was a chronic subdural haematoma it would have started off as a fresh haematoma at some point. He said that statistically the commonest cause of fresh subdural bleeding is a shaking injury and it could be speculated that if this was chronic subdural haematoma it originated with a shaking event causing fresh subdural bleeding some weeks before. However, it has to be accepted that it is not the only cause of chronic subdural haematoma and it is recognised that fresh bleeding can occur at birth or from minor accidents. Here, however, the court has the advantage of the scans that were taken at the time of A’s admission to hospital in January when there was no evidence of subdural haematomas. So birth injury is discounted.

[118]With regard to the children that he sees with these injuries he refers to the category of children which I will refer to later in the context of the the three categories of children that he sees.

[119]At the professionals’ meeting he said the following: with regard to the CT scan, noting that the fresh blood from the acute bleed was seen as white, that it was the view of himself and Dr Hogarth that the white image would change in 10 days and therefore the timeframe was 4th to 13th March. However, he stated that the sudden change from normality to abnormality means that the 13th is the likeliest point of time of the injury being sustained.

[120]In oral evidence he said:

“We don’t know the minimal force used necessary to cause changes to the brain, but that it is not encountered in normal life.”

He said that the changes to the brain are not extreme, but the faster the brain was moving the more likely there would be problems.

[121]He agreed with the local authority that there was nothing to suggest that A was not in the category of children who are well loved, but where a parent or adult lost it for just a moment when tired and stressed.

[122]When asked questions by the mother’s counsel he said there was nothing in the first scan to suggest any abnormalities that would lead to an abnormally fast or slow rate of growth, saying that measuring head circumference was very inaccurate. He was asked about the twitching that mother had reported. He said that babies twitch. He said that although the mother had reported A to have been twitching prior to the first scan on 24th February, on that scan there was no indication of injury as there was on 14th March. It may well be that that 24th February is in fact 24th January.

[123]He was asked whether there could be a tiny focus of damaged cells that were not picked up in the scan of 24th January that could have generated the seizure or bleeding. He said no, the seizures were very common but they were not associated with contusional changes and that also seizures were not associated with bleeding. He did not accept there was a possibility that there was a weakness in A’s brain from birth or before the scan of the 24th because it would have been apparent on that scan.

[124]He reiterated the fact that if the fluid was chronic haematoma it would not explain the hypoxic changes in the brain, the acute onset of brain disturbance nor the contusion of changes in the brain.

[125]He was taken through the Child Protection Companion and the differential diagnoses. He accepted that retinal haemorrhages were present in 70 to 80 per cent of occasions where there were abusive head trauma, but said that he knew that they occur without retinal haemorrhages. Concerning the hypoxic-ischemic changes, he said that that would be as a result of lack of oxygen to the brain from the child not breathing or as a result of carbon monoxide and that usually happens in a very ill infant.

[126]He was asked about the result recorded by Dr Hogarth of the scan of 13th July and the fact that there had been further bleeding. He was challenged about the observation that he made at the experts’ meeting that “it shows that it is settled,” in other words that he would have expected that. He said it depends on the amount of brain damage. He accepted that the re-bleed and the locules was an unusual complication, but to him as a neurosurgeon in the context of an injury such as A’s it was not unusual.

[127]When asked whether the bleeding found in March could be as a result of a low level bleed over time, he said that that does not fit into the clinical picture of a well child who suddenly collapses.

[128]He was asked about the timing again and reiterated his view of the timing being closer to the time when A collapsed. It was put to him that A was not well, that he had been sick during the weekend before the collapse. He commented that however unwell A had been, he was certainly deemed by the parents well enough to take swimming. Dr Fairhurst, consultant paediatric radiologist.

[129]I now deal with her evidence. Her reports are of 9th July and an addendum report of 15th August and there is also a further report. Her initial report listed the scans that she had viewed. She said that she limited her comments to the skeletal imaging. Her opinion that there were fractures on the posterior aspects of the left sixth and ninth ribs, she referred to the fact that there was first visible soft callous on 13th March, focal callous on 16th and remodelling by 4th March. She said that the fractures were not visible on the follow-up X-rays on 8th February.

[130]She reported that she could not identify any other bony abnormality and found no radiological evidence that A was suffering from a condition that would predispose him to fractures. She said in her report that the fractures of the ribs do not occur from a direct blow but from a compressive force applied to the ribs as when the chest is squeezed as the infant is held around the chest during a shaking episode, that they require significant force well in excess of normal handling.

[131]She reported that in the absence of a plausible explanation, posterior rib fractures in a child of A’s age were more likely to be inflicted. Her report gives her opinion concerning the timing of the fractures and in her report she gave a window from 14th February to 27th February. This in evidence she corrected as meaning 13th to 27th February. In her addendum report the question as to whether the maximum possible period for the fractures to have been caused, she said it was between 6th February to 1st March. At the professionals’ meeting she reiterated that and said she was not comfortable to extend it beyond 1st March. She stated from the evidence that she heard at that meeting it would therefore seem that there were two separate episodes.

[132]Dr Fairhurst in her oral evidence in September said that it was with some reservations that she stretched the timeframe as far as she had, that it would have been extremely unusual for it to have started as early as 6th February or in fact as late as 1st March. She said that she had seen Dr Hogarth’s report of 20th September and the fact of the further subdural bleeds and that did not affect her conclusion of non-accidental injury. She said it was most unusual for babies to sustain rib fractures in the birth process and she also said that if rib fractures were as a result of the birth process she would have expected to have seen them in the earlier scans but they were not there. She said she would have expected to see periosteal reaction at 10 days after fracture but not the soft callous.

[133]She was asked about the follow-up X-rays on 8th February and she said that if there had been an acute recent fracture between 25th January and 8th February, for example on 5th February, she may not have seen the fracture itself on 8th February as at least 50 per cent of rib fractures are invisible and they only become visible because of the bony healing. So the fact that they cannot be seen on 8th cannot exclude that they were there.

[134]She did not accept that there was anything in the quality of the scan that would make it difficult for her to be confident of her opinion. She was asked about the different types of imagine, such as radionuclide imaging, and her view was that here there were confirmed rib fractures and that the extra radio dose was not justified. She said she had been further helped by the sequential images of 13th March, 16th March and 4th April, all of which she said:

“Absolutely follow the pattern of healing fractures and effectively excludes all other interpretations.”

She was asked about the absence of soft tissue swelling. She said it was only rarely seen in rib fractures.

[135]Concerning timing, she was asked about the Sanchez study from a paper that she had produced. She accepted that she had not used that process, but warned about placing too much reliance upon that report as it was based on a small group of children. She said that the process that the Sanchez method suggested was problematic insofar as it required the use of mini-callipers and also the need to use what she referred to as a “guesstimate “ in order to anticipate the arch of the rib – that is - what the arch of the rib would be without the callous.

[136]She was referred to the fact that initially it was suspected that there were other fractures and that she had now dismissed those as irregularities and asked whether she might suggest that the fractures were not fractures. She stated that she was not fallible, but that if she did have doubts she would express them. She said that with regard to the age of the child, the type of the bone, the type of the injury, she took all these matters into account. She said it was quite common just to see one or two fractures and the fact that there were not further fractures did not affect her views.

[137]She was asked about the differential diagnoses for fractures as set out in the Child Protection Companion and she accepted the list and was taken through that list. She accepted them as possible differential diagnoses, but not in this case. She did say that she was aware of isolated reports of rib fractures during chest physiotherapy when there was sudden compression. The variables of the timing of the soft callous was also put to her, but that did not affect her timescales.

[138]She did not agree that vitamin D deficiency was a more likely reason for fractures. When asked about whether it was possible to scan a child for bone density she said that there would be very little point as there was no data for the normal range of bone density. She also said that the scans would not reveal any lack of bone density in A, as she accepted that, bone density might have to be compromised by 20 to 40 per cent before it was picked up radiologically. She said a 20 per cent reduction would not make a huge reduction, but it might at 40 per cent. However, she stated that: “To our knowledge”, if the bones do not look of reduced density then even they are on available testing, if that density is not enough to show up on conventional X-rays it is very unlikely to mean that the child is at risk of fracture. So if you cannot see it on plain film our knowledge to date would suggest that the child is not at that stage at risk of fracture, and this was the case here”.

[139]With regard to the question as to whether the rib fractures could have occurred during the birth process, she said had there been a fracture at birth she is not aware of any rib fracture that would heal without evidence of that healing in the sense of new bone formation. She said:

“We have an X-ray that was taken three weeks after birth and that showed no evidence of anything being amiss with those two ribs.”

She said:

“I would at three weeks have expected to see that unless it is being postulated that the healing of such fracture was so accelerated that the healing was complete and the rib had remodelled in the space of three weeks, which would be, to say the least, extraordinary.”

Here, of course, the X-ray of 8th February, some three weeks after his birth, showed no fractures.

[140]I would add that she was asked about a case which had been reported in the tabloids which had suggested that she had been incorrect in her opinion concerning a child within a legal case such as this. She said that she was waiting a judgment which would vindicate her position. There was no further evidence other than this comment on these questions before me to undermine her professionalism. I note that Dr Fairhurst was a jointly appointed expert. Dr Ward, consultant paediatrician.

[141]Her report is dated 25th August and is hugely detailed a comprehensive report of some 84 pages. Within the report she reviews the reports of Dr Park, the consultant on duty on 13th March, and the part 25 report of Dr Fairhurst, the part 25 report of Mr Richards, the part 25 report of Dr Keenan and his addendum report, the neuro-radiology report of Dr Hogarth of 23rd July. Dr Hogarth’s report of 25th September on the scan of 13th July was not yet available.

[142]Her views and opinions within the report are in accord with other experts. When considering the bruises she opines that there is no evidence of any underlying medical condition which would masquerade or predispose to easy bruising in A. She comments that the finding of unexplained bruising in a pre-mobile child is significant, stating that the report of multiple episodes of unexplained bruising in A was a forerunner of a more serious injury.

[143]She said that with regard to bruising that A was seen to have on 25th January, that is the linear bruise, that that would have been, in her view, caused by blunt impact trauma and with regard to the smaller bruises, the possibility of being caused by forceful gripping.

[144]With regard to the mark/bruise found in A’s hand, she said it was not plausible that such marks could be caused by A himself and she preferred the theory that an adult had caused them.

[145]With the mark and bruise caused under A’s chin, she comments that this was in a protected area and is more consistent as a result of direct pressure over the affected area by forceful gripping of squeezing.

[146]When considering the subdural haemorrhage hypoxic brain injury, she said that the constellation of injuries in A is consistent with inertial forces due to structures inside the brain being set in motion.

[147]She was asked about whether the absence of retinal haemorrhages in A were a significant feature that was absent. This questioning she accepted as a reference to what she referred to as “the triad”. She accepted that if a child has the triad, that is subdural haemorrhage encephalopathy and retinal haemorrhages, then you should think of non-accidental injury. She said the triad is diagnostic of such, that studies show 60 to 85 per cent of children with non-accidental injuries will have retinal injuries, but this means that there is a significant percentage of them that do not have retinal haemorrhages, therefore the absence of them does not mean that non-accidental injury is less likely.

[148]She considered the differential diagnosis such as birth trauma and she discounted that as a result of the scans in January.

[149]With regard to the bleeding disorder, considering this, she said that careful and very detailed assessment of clotting and coagulation had not revealed any underlying evidence of pathology. She considered that the injury coincided with the sudden deterioration of A’s wellbeing.

[150]When considering the healing rib fractures she considered all the differential diagnoses and came to the opinion that she had found no evidence of any medical condition which would account to predispose to skeletal injury.

[151]In answering the specific questions she stated that in her opinion A’s injuries were non-accidental. She said that there are several factors which bring her to that conclusion. The factors being that he was a child who prior to the head injury was presented for bruising; that at the time of the head injury there were multi-focal subdural haemorrhages; that there are additional spinal haemorrhages and upon Dr Fairhurst indicating at the meeting, that as a result of her opinion with regard to timing there must be two separate episodes. It was therefore the view of Dr Ward that there should be at least one before this.

[152]In her oral evidence in September she deferred to Mr Richards as to the view of the re-bleed and she said that he sees many more children with intracranial bleeds. She did not see anything that might cause causation of injuries of birth and that the Apgar scores were fine.

[153]She was asked to look at the bundle of photographs but unfortunately in September she did not have those with her and it was then decided that she would have to come back to answer those questions. She said she would accept the issue that one could not date bruises from the photos. She was asked to comment on the fact that A had been discharged in January back into mother’s care and she responded that there was strong opinion that doctors should not be happy to discharge a child of this age with bruising.

[154]She said that the platelet level tests were normal and that would rule out any earlier problems. She said that a localised area of bruising was not consistent with infection but was consistent with trauma.

[155]She returned to give evidence in October. By that time the social worker had spoken to the foster carers, who had confirmed that the areas on A’s chest surrounding his areola were different colours and they agreed with the parents’ assertion that the colour of the skin of A’s chest was very light.

[156]Dr Ward returned to court in October with the colour photographs. She was asked with regard to the bruising. She indicated that in her evidence she felt that the court should consider genetic testing and this was because of certain factors in the case. She said that the fact that she had heard that the mother had been diagnosed with Ehlers-Danlos Syndrome concerned her in the context that she, Dr Ward, had been aware that there is a court case where vascular-type EDS had been associated with subdural haemorrhages. She felt it was important to explore whether A had vascular EDS syndrome.

[157]The other unusual factor was the fact that there had been a further re-bleeding that had taken place in the brain. I remind myself of the order that I made and it records that I, with all parties’ agreement, directed that there should be the genetic testing of A and that was partly due to the change in emphasis of Dr Ward’s evidence, highlighting the atypical elements of A’s presentation. So that was the state of the evidence in October. The mother had in fact started to give her evidence at that point. The evidence post Dr Saggar’s first report.

[158]Dr Saggar’s report was dated 23rd January. It reported that a clinical test took place which examined over 4000 genes, including those for connective tissue disorders, fracture susceptibility, developmental delay and many other conditions. The results of the gene test analysis did not identify any mutational gene change which would explain the presentation of cerebral bleeding in A. However, an anomaly was found. A was found to have a recessive FN1 gene. The report informs that single copy changes in FN1 gene, which is what was present here, had been associated with a form of kidney disease, skeletal dysphasia, which is characterised by a normal skeleton, it being of short stature, Dr Saggar noting that A was not of short stature.

[159]Dr Saggar stated in his report that in his opinion the family history and possibility that A may have inherited aspects of hyper-mobile Ehlers-Danlos Syndrome from the mother may at best explain the skin bruising but would not in his opinion explain the fractures and would not explain the sudden onset of deterioration presumed due to the acute cerebral event.

[160]Dr Saggar in his report opines that the skeletal survey of A should be reviewed to see if there are any features or markers to suggest if there are any radiological findings. In response to specific questions he stated that it was possible that A had inherited hyper-mobility from his mother, but at best it would only explain easy bruising after handling. Two, that the genetic testing had identified a gene change that may result in SND, but there needed to be further information.

[161]As to the question of further testing he felt that there should be and he reiterated this as the experts’ meeting that took place on 25th January. Dr Fairhurst stated that even if the FN1 gene was pathological and if A did have SND, despite all the clinical and radiological features which suggest he does not have them, it would have no influence on his propensity to fracture and would not explain the posterior rib fractures. She stated that the name of skeletal dysplasia corner fracture variant refers to the appearance of fragments of bone in the metaphases, but that these were not fractures, just an unusual manifestation in the way that metaphyseal parts were ossifying. She was clear in terms of testing the parents that this would be irrelevant. Dr Saggar’s report, however, was that he expressed caution.

[162]The meeting was followed on 30th January by the report of Dr Fairhurst, where she had reviewed the images and was clear that SND did not feature within A’s presentation.

[163]By the time the hearing was back in February the court had received the following: the MRI scan of 9th November; the statement of the social worker, having spoken to the foster carers; Dr Saggar’s report; Dr Fairhurst’s report; and the transcript of the experts’ meeting of 25th January. When the matter came back to court the court heard evidence from Dr Saggar, Dr Ward, Dr Fairhurst, Miss Brain, the health visitor, the maternal aunt, one of the managers from the father’s employment and the mother and father.

[164]There was also the statement of the social worker which states that having spoken to the foster carers, they say that they have not seen any significant or unexplained bruising or marks on A. The statement referred to A having a bruise on his arm where he had had an injection. That in contact A had hit himself in the mouth with his rattle and no mark was visible. That a bruise the size of a 5p piece was seen on his chin and the foster carer indicated that they were not aware of it, but it could have occurred during tummy time “as he did not hold his head up very well”.

[165]Dr Saggar gave evidence-in-chief. He said he could not find any genetic reason for the sudden collapse and bleeding on the brain. He said concerning the bruising that that was different, that the mother has a connective tissue disorder and as she has hyper-mobility there as at least a 50 per cent chance that the child would have it. He accepted, however, that even if it was assumed that A was vulnerable to easy bruising he could still be subject to abusive bruising. He accepted that bruising was unusual in a very young child and one had to assume that it was as a result of injury or genetic susceptibility. He also stated that if there had been no further bruising since the initial presenting features then it was unlikely that A has an inherited susceptibility to easy bruising and therefore there would have to be an alternative cause for the earlier bruising; that it was possible that A has inherited connective tissue disorder.

[166]Much of his evidence dealt with questions about the recessive gene and the impact of that. It was soon accepted that whatever A had, he did not have SND. Dr Saggar said that he could not recall any other case with the child having such a recessive gene and in summary his evidence at the highest was that if this recessive gene in A was found in his parents it was, in his words, “no nothing situation,” in other words it would not suggest that genetics had any impact on A’s other injuries. If, however, it was de novo, that is that he had not inherited it from either parent, then there would be uncertainly as to the impact that gene had on A’s injuries, but what was known was that this recessive gene was not SND.

[167]Dr Ward gave evidence that the child may bruise more easily with the application of force, but here there had been frequent bruising when the child was not mobile. She said that she was a clinician and familiar with the spectrum of bruisability. She said: “I agree that not every knock would cause a bruise,” but she would have expected to have seen more since he was in foster care. She was asked about whether the level of force was abusive with regard to the bruising and she said she could not say that, but expressed caution against speculation.

[168]She said there was no medical explanation for the bruising on A pre-March and that he had been extensively tested for coagulation problems. She gave evidence there was no medical cause for the rib fractures and that he had normal bone biochemistry. She said there was no medical cause for the subdural bleeds and the clotting tests and extended clotting tests and Factor 13 platelet function tests had all been normal and infection was ruled out.

[169]With regard to the hypoxic-ischemic injury she said that the mainstream opinion was that subdural haemorrhages when pictured together is consistent with non-accidental injury.

[170]When asked about the possibility of mechanism she suggested that the injuries were as a result of rotational acceleration, deceleration injury, where the child has a large head and poor muscle control that the shaking causes damage. She said that the evidence is that if a child is thrown down on a soft surface -- and here there is no evidence of collision with a hard surface -- there is a sudden cessation of movement which will cause more damage than the shaking mechanism alone.

[171]She said that the prognosis for A at the moment was too early.

[172]When asked about the issue of the hyper-mobility she would have expected, as I have said, to have seen an increase in the amount of bruising.

[173]She was asked whether there was any condition where the child bruised when very young but grew out of it. She said that there was a condition but those were associated with the appearance of petechiae, which was what was seen here. Miss Barraclough for the mother pointed out that certain of the treating doctors had described the marks as petechiae.

[174]She was asked about the FN1 gene and claimed not to be an expert on that, but she was concerned not to speculate.

[175]She referred to the findings of the College of Pathology of 2009 and the reference to the classical triad. She said that in 40 per cent of cases spinal haematoma was seen to be a significant feature.

[176]Dr Fairhurst gave evidence; I do not need to add more, save to say that was clear that SND was not a feature. Further application.

[177]It was in the context of Dr Saggar’s evidence that an application was made by the mother and father for further testing of the parents, as suggested by Dr Saggar. Although I initially indicated that I would deal with such applications within my judgment on the fact-findings, I did consider that on balance the court would be helped if it was possible to have evidence whether or not the recessive gene was inherited from A’s parents or whether it was de novo.

[178]I therefore directed that the parents should be tested and there was a further report and that report came in on 11th April. That report states that the parental testing has revealed that the FN1 gene was inherited from the father, who has apparent normal stature and no significant family history relating to the clinical features associated with FN1 mutations. The FN1 variant, therefore, is not relevant to any of the connective tissue features seen in the mother and is not relevant to the catastrophic presentations of this child. Referring to Dr Saggar’s previous evidence, there is therefore a no nothing result.

[179]This section of the judgment concludes the expert evidence. Comment.

[180]With regard to the injuries to the ribs and the brain images, as can be seen from above I have heard a considerable amount of expert evidence. I have been referred to all the evidence expert by expert because I remind myself that I should consider not only the evidence as it refers to each injury but also the evidence in the context of the other injuries and the evidence about those.

[181]The presentation of this mother and this father are of loving parents. The CCTV at the swimming pool is a visual record. It would never have been anticipated that the CCTV would be scrutinised save for the events of later that day . It shows a caring couple caring for their baby. The father is tender in his care for A. The opening by the local authority counsel on cross-examination of the father was that everyone accepted that he and the mother love A very much. That that was the view of the local authority who seek the findings is a prompt, if one was ever needed, that this court must scrutinise the evidence that the local authority rely on for the findings and consider the weight that can be attached to that evidence.

[182]Here the parents given no explanation for the injuries, therefore they are not claiming it is accident. Therefore the options open for this court are that the injuries were caused as a result of a non-accidental injury, which is the case of the local authority; that the injuries were caused by known medical reasons or lastly that the injuries were caused by unknown medical cause.

[183]The mother and father have both been represented by experienced counsel. No stone has been left unturned when testing the evidence of the experts. Exceptionally in this case the court has had the benefit from a geneticist. Part of the reasons I acceded to that request was that I wanted to know whether the results of such testing could in any way create a uncertainty about the expert medical evidence that I had heard, but it did not. The results of the genetic testing of Dr Saggar is no longer put forward as an uncertainty about the relevance of the recessive FN1 genes to the rib fractures or the brain injuries.

[184]However, even with that result, it is not enough for me to conclude that just because there is expert evidence that that is good enough, I have to scrutinise the evidence. I need to examine the evidence and determine the weight I can give it. I must also consider whether, looking at all the evidence, I can be satisfied that the expert evidence can be relied on or whether there are features or uncertainties in it that may suggest that there is an unknown cause. But the expert evidence as medical evidence is consistent and weighty. Even in the father’s submissions I note that he states in broad terms- that what makes it this case complex and difficult -- is the medical evidence about A and the qualities of the parents.

[185]I now look at one part of that, the medical evidence. Concerning the ribs, do the rib fractures exist? I have seen the report of Dr Apsy, the consultant radiologist who reviewed the X-ray on 14th March and on 15th March where it is reported that there is callous. I am satisfied from Dr Fairhurst’s oral evidence of the expertise that she brings to the readings of the X-rays. I am satisfied that these rib fractures exist. I am satisfied on the balance of probabilities that these were not birth injuries -- that is the rib fractures. I accept the evidence of Dr Fairhurst that if they have the healing process would have been visible on the X-ray of 8th February and none was visible.

[186]I accept the experience of Dr Fairhurst that the visible scans do not suggest any problem with bone density or propensity to fracture. I note that it accords with the evidence of Dr Ward, whereas Dr Ward gave evidence there was no medical cause in her opinion for the rib fractures, that he had normal bone biochemistry.

[187]I accept the evidence of Dr Fairhurst concerning the suggestion how the injuries might occur, that is the compression of the chest during shaking. I accept the evidence that the force required to cause such is significant and in excess of normal handling. I note her evidence that the UK CPR on an infant whereby a chest is compressed has never been reported to cause fractures in infants. I note that the evidence of Dr Fairhurst chimes with that of Dr Ward, that fractures are thought to result from forceful compression rather than direct impact. As the infant is grasped the perpetrator’s palms are usually situated laterally with the thumbs positioned anteriorly and fingers posteriorly. Compression of the chest is from front to back with levering over the fulcrum of the transverse process of the spine. The fact that there is agreement between the experts is persuasive.

[188]I accept the expertise and the timing that Dr Fairhurst gives to these injuries. I am satisfied that I can rely on her opinion and that therefore the timeframe is between 6th February 1st March when these were sustained. It is because of her evidence that the local authority says that the injuries to the ribs occurred prior to the intracranial injuries. In view of the comments made by Dr Fairhurst concerning the problems and flaws in the Sanchez method I am satisfied that there was no need for further attempt at timing using that method. I accept the evidence in her report that there would be an acute pain on rib fracture, but that having passed it would be difficult to detect. Brain injury.

[189]In considering the medical evidence as a whole, I am impressed by the fact that there is so much agreement between these experts at the top of their professions. There is agreement as to what they see on the scans; there is agreement between Drs Hogarth, Richards and Ward as to the likely timing of the head injury; they agreeing that the most likely time is when A is changed from normality to abnormality in his presentation; there is agreement between Drs Richards and Ward as to likely mechanism and cause for these injuries, that is through shaking. I accept the oral evidence of Dr Richards that the bleed recorded in July is in accordance with the anticipated progress of a serious head injury.

[190]The general opinion is that there is no known medical cause but, moreover, that the injuries are the sort that can be explained within the knowledge of these experts. I refer to the evidence of Drs Richards, Hogarth and Ward that I have referred to above. It is the agreed view that the brain injuries A suffered are in accordance with their own experience of children who have suffered head injuries. I am satisfied that they have considered the differential diagnosis and that these do not undermine the views of these part 25 experts.

[191]Their views being that A did suffer a non-accidental injury and that he did suffer critical loss of brain function and cardiovascular failure, that there were bilateral subdural collections resulting from haemorrhages over both cerebral hemispheres. Further that the subdural collections bilaterally within the posterior fossa and the subdural collection within the lumbar spinal cord, the contusions to the brain substance and the widespread bilateral hypoxic-ischemic injury and further acute bleeding, that all of that was as a result of non-accidental injury and that he was shaken. I am satisfied that although the twitches had been observed by the family and others that they were not an indicator of any other medical condition.

[192]Having appraised the strong evidence that the cause of the brain injury was non-accidental injury, I now consider the issue of the parents. The parents.

[193]With regard to the evidence with regard to the injuries it is strong and consistent. The parents seem to be so loving, how could these parents harm this child? Pool of perpetrators.

[194]Am I satisfied that on the balance of probabilities that these parents are in the possible pool of perpetrators? I remind myself that in order to be satisfied I have to be satisfied on the balance of possibilities that there is a likelihood or a real possibility that each of them, the mother and the father, were the perpetrator. I have heard how much they love this child, but the sad facts are that on occasions loving parents do have moments of loss of control and out of frustration possibly, as much as anything else, parents might shake and harm a baby. I am satisfied on the balance of probabilities that A suffered his head injuries from a shaking incident. His parents were the only ones there. I am satisfied that they are in the pool of possible perpetrators.

[195]Mr Richards within his report indicates three categories. The last category he said was the majority present as children with an isolated head injury or head injury plus non-life threatening extra-cranial injuries that could be explained by a shaking event. He stated that the majority of clinical practitioners who routinely care for actually ill infants accept that such events could have occurred during a momentary loss of control on the part of the carer, who had not planned to injure the child.

[196]Here, of course, we have two occasions. I am not considering the bruises at present, but we have loving parents, but during both time brackets in relation to both the rib injuries and the brain injuries the parents were present. The likely time of the infliction of the broken ribs is wide, but I note that it starts around the time that the mother is effectively on her own and for much of the time A starts to have problems with wind and colic.

[197]The father is away working during his shifts. Having said that, the father continued to help with the night time feeds and was at home when he was not working.

[198]With regard to the likely time when the brain injury occurred this is much shorter. I accept that it is likely to be at the time when A goes from well to unwell and that is when the parents are the only sole carers. It is in the context of the weight and the consistency of the medical evidence that I am clear that both the mother and the father have to be in the possible pool of perpetrators. However, I remind myself that it is desirable where possible for the perpetrator of non-accidental injury to be identified. However, where it is impossible for the judge to find that on the balance of probabilities that parent A rather than parent B did it that neither can be excluded that the judge should not strain to do so.

[199]Concerning the ribs I cannot go any further. Because the time of when the rib injury occurred is so broad I have not had specific information with regard to what either the mother or the father was doing at the time. All I know is that they were the main carers.

[200]However, with regard to the brain injuries, because the timing is so short, I have been keen to get as much information from both parents on what actually happened. However, neither was able to provide real clarity to the court as to what went on. I remind myself of the fact that the father in September told his legal representatives during conference that:

“It was me, it was me, I said I did shake A, that I didn’t want to do any of this, that I didn’t know how bad any of this was, but I didn’t know about the rib fractures. I said that I know people might wonder why my relationship with M is intact. I said that M didn’t have anything to do with this. I said that I know that it is stated that one caused this and the other one should know, but I said that I hurt him and M was never present so how would she know when something was wrong with him?”

[201]The father in his statement said that that meeting ended with his lawyers making him understand that he had to be clear about what he was doing and realise the consequence of his actions. The father in his statement said that he then spoke to his mother, his brother, a male friend, the paternal grandmother and a female friend and that as a result of those discussions when he saw his solicitors on 8th September he withdrew his confession.

[202]In my experience such a confession, even a fleeting confession, is very unusual in the background of such a case as this. The father’s evidence was he felt enormous pressure at that time and felt if he made that confession at least A could be with one of them.

[203]The mother’s response to this confession is that it was in a way something that she was not surprised about because she too had been thinking about taking responsibility and taking the blame.

[204]I have reflected on this confession. I do not feel it helps me with regard to what happened. Both the mother and the father have had great difficulties recalling what happened to A on the evening of 13th March, even to the extent of who put him where. When reading the interview of the mother there is suggestion that she had been clear in her recollection and yet talking to the father had confused her. What I am clear about is that they were both there, that no other adult was and that from the time when A was well enough to go swimming to the time when he was so ill the ambulance was called that it was just them there.

[205]So therefore I find that in relation to the rib fractures that were sustained by A that they were inflicted by either the mother or the father, who are in the pool of perpetrators, on an occasion between 6th February to 1st March.

[206]Concerning the brain injuries as listed, I find that they were sustained by A as a result of being inflicted in a single shaking incident by one of his parents on the evening of 13th March. I have considered whether the parent who did not inflict the injuries knew about it and I make no finding.

[207]Concerning the rib, these incidents would have been an incident of a moment and I am not satisfied that the non-abusive parent would have been present to have witnessed it and if not witnessed that the non-abusive parent would have had enough information that the resultant crying was as a result of the broken rib.

[208]With regard to the brain injury, it was a small flat that the parent were in and yet the parents were at times in different rooms without either of them witnessing what the other was doing. It is my view again that this shaking was a matter of a moment and the non-abusive parent would not have known why that baby was crying so loudly. Bruising.

[209]It will be noted that as yet I have not dealt with the issue of bruising. I have recited at length the evidence with regard to bruising. The starting point is that any bruise on any non-ambulant baby is suggestive of non-accidental injury, as per Dr Ward, and I note the evidence of Dr Ward that if findings are made concerning the rib fractures and brain injuries that there is more likelihood that an interpretation should be made that the bruises are non-accidental.

[210]However, it is my duty to scrutinise the evidence concerning the bruises in exactly the same way as I have done the more serious injuries. I cannot just accept that just because they were bruises that I find one or other of these parents lost control on two further separate occasions and that they bruised the child on those occasions.

[211]I have considered the evidence of the bruising. The local authority seeks findings concerning two occasions, these were the bruises seen in January and also in March. I have referred to the evidence of Dr Ward, her starting point is that without medical reason or other explanation bruises are not found on non-ambulant babies. She is satisfied concerning the photographs of the marks on A in January were bruises. She opines that the line mark is likely to be as a result of linear pressure and the fingertips as a result of a pinching. With regard to A’s chin she says that supposed bruise and the petechiae are in protected areas and would have been likely to have been caused by pressure.

[212]However, I note that when the mark under the chin was seen in March it was referred to as a blanching mark. Dr Ward said in her evidence that a mark that blanches would not be a bruise. So is it a bruise or not?

[213]The next concern I have is with regard to Dr Saggar’s evidence. With regard to Dr Saggar he is satisfied that the mother has hyper-mobility. In the summary of 23rd March he said that in his opinion the family history and the possibility that A might have inherited aspects of hyper-mobile Ehlers-Dalos Syndrome might at best explain the skin bruising but not the more serious injury.

[214]This prompted much questioning. He said it was possible, a 50 per cent chance, that A had inherited that condition from his mother. He accepts that even if it was assumed that A was vulnerable to easy bruising he could still be subject to abusive bruising. He accepted that bruising was unusual in a very young child and that one had to accept that it was as a result of injury or genetic susceptibility. He also stated that if there had been no further bruising since the initial presenting features then it was unlikely that A has inherited susceptibility to easy bruising and that therefore there would have to be an alternative cause for the earlier bruising.

[215]So had there been further bruising? It is true there is a statement that the social worker made upon speaking to the foster carers, it does not set out a list of bruises, yet I have concerns about that observation. When I read the statement it was apparent that the majority of marks that had been observed had been as a result of medical procedures or could be explained. However, there is the mention of one mark that interests me; it is a reference to the bruise on A’s chin. It was noticed and pointed out by the father and when brought to the attention of the foster carers they said they assumed it would been caused what they refer to as “tummy time” by which I understood thatA would have been on his stomach and it was commented by the foster carers to have had a problem raising his head. What concerns me about this piece of evidence is primarily is it was not noticed by the foster carers until it was pointed out.

[216]What other marks on him might have been missed? The evidence that has been produced was retrospective, in other words it was not a case that each day A was scrutinised for bruises and a form filled in, it was in retrospective a general update. Dr Ward comments that it would be very strange for a child who showed bruising when non-ambulant would suddenly stop exhibiting bruising when it was mobile, but I am not satisfied that I can be clear what bruises or marks A had on him post the hospital.

[217]There is another factor concerning the bruising and that is the fact that the bruises were brought to the attention of others by the parents. The bruising of 24th January was brought to the attention of the hospital; the bruising of the hand of 1st March was brought to the attention of the GP; the bruising of the chin was brought to the attention of the aunt on 10th March.

[218]There has been criticism about these parents about being secretive and not bringing bruises to the attention of medical staff, but it is my view that their evidence with regard to the bruises is compellable. They were frightened by the risk of losing A, that is why they did not bring the further bruises to the hospital’s attention. But that does not necessarily mean that they were not bringing marks to the attention because they caused them.

[219]I heard from the aunt and I was impressed with that evidence. I am clear that the mother was asking the aunt a sincere enquiry with regard to the bruise. Does that mean that I should be more suspicious of the father? I consider it very relevant in this case that the parents’ evidence about the bruises is clear and consistent; it is not like their evidence with regard to the brain injury. Further, the evidence with regard to the bruising is not simple evidence that they could easily recite.

[220]So for those reasons, the factors, I am not satisfied that the likelihood that the mark under the chin was a bruise.

[221]Secondly, the evidence of Dr Saggar creates a possibility of A inheriting a condition and that as a consequence that undermines the medical and expert evidence that the bruise seen on 24th January was a bruise.

[222]Thirdly, the account from the parents means that I am not satisfied on the balance of probabilities to make any findings with regard to bruises.

[223]There therefore remains the conclusion of this judgment that in my view that there have been two very, very short moments of loss of control. I am not able to indicate who it was, it was the mother or father, but that these are loving parents and there were two occasions of very short duration.

[224]That is the end and I can only apologise that this is a very long judgment, but I felt that it was necessary because of the process in order to go through everything. - - - - - - - - - -