X and Y (Children), Re [2024] EWFC 443 (B)

IN THE FAMILY COURT
[2024] EWFC 443 (B)Hearing Hearing Dates: 4-8 and 11-15 November 2024
CASE NUMBER XXX
IN THE MATTER OF THE CHILDREN ACT 1989
AND CHILDREN: X and Y
BEFORE HIS HONOUR JUDGE DANCEY
(SITTING IN RETIREMENT)
Colin Morgan, instructed by A Local Authority, the Applicant
Alison Grief KC and Andrew Duncan, instructed by Woollens for A, the first Respondent
Sam King KC and Gemma Chapman, instructed by Brenden Fleming for B, the second Respondent
Alexa Storey-Rea and Rosie Vorri, instructed by Dutton Gregory for X and Y through their Children’s Guardian, the third Respondents
Judgment handed down 15 November 2024
JUDGMENT
His Honour Judge Dancey (sitting in retirement)
Introduction
Date 2024-11-15
[17]Second, it is of course open to a judge to attach very great, and even determinative, weight to his or her judicial assessment that a witness is truthful, but a preference given to that assessment over evidence pointing the other way must be reasoned so that it can be understood. Here, it is clear that the judge was greatly impressed by the oral evidence of the mother and Mr T, but he does not explain how that impression is to be reconciled with his finding that they had given false evidence to him and unreliable accounts to others on a number of matters. Nor is there an explanation of how his assessment of their evidence fed into his ultimate findings.[18]Third, the mechanism for the injury is not adequately explored. Even if the judge was entitled to accept that there had been a 'car door' incident, the accounts given by the mother and Mr T did not contain anything to underpin the notion that this apparently minor impact gave rise to a shearing force at anything other than a theoretical level. That problem is not addressed in the judgment. Nor is there any investigation of how it might be medically plausible for a child to sit down to a meal without any visible injury but to end the meal showing an obvious and alarming injury to her head as a result of an incident a day earlier.

Legal principles

[19]Fourth, the judgment does not resolve the conflicts in the evidence about when and how the bruising to the eyes was caused.[20]Finally, although the judge correctly directed himself on the civil standard of proof, his finding that there was "a real possibility that cannot be discounted" that the 'car door' incident caused the head injury suggests that by importing a concept from another context ('pool' findings) he was in fact rejecting the local authority's case because he was not sure of it. I also have difficulty with the assertion that the local authority was seeking to transfer the burden of proof to the mother and Mr T to prove their alternative explanation. In this case there was no mystery about what caused the injury: a significant shearing force. As to how the force arose, there were two realistic possibilities: the 'car door' incident or an undisclosed inflicted injury involving hair-pulling of some kind. The court's task was to analyse the relative likelihoods of each possibility and then to ask itself whether the local authority had made out its case to the civil standard. For the local authority to have pointed out difficulties with the 'car door' theory involved no reversal of the burden of proof.” 33). Of course, all cases depend on their own facts but there is a key message here about not losing focus on important evidence and, if the court is to reject consistent core medical evidence in favour of other factors as part of the totality of the evidence, the need to explain why it has done so. 34). Ms King KC refers me to what Peter Jackson LJ said in Re BR (Proof of Facts) [2015] EWFC 41: “9. When assessing alternative possible explanations for a medical finding, the court will consider each possibility on its merits. There is no hierarchy of possibilities to be taken in sequence as part of a process of elimination. If there are three possibilities, possibility C is not proved merely because possibilities A and B are unlikely, nor because C is less unlikely than A and/or B. Possibility C is only proved if, on consideration of all the evidence, it is more likely than not to be the true explanation for the medical findings. So, in a case of this kind, the court will not conclude that an injury has been inflicted merely because known or unknown medical conditions are improbable: that conclusion will only be reached if the entire evidence shows that inflicted injury is more likely than not to be the explanation for the medical findings.[10]Lastly, where there is a genuine dispute about the origin of a medical finding, the court should not assume that it is always possible to know the answer. It should give due consideration to the possibility that the cause is unknown or that the doctors have missed something or that the medical finding is the result of a condition that has not yet been discovered. These possibilities must be held in mind to whatever extent is appropriate in the individual case” 35). As Ms King KC also points out the court needs to consider the ‘outlier child’ and the wide range of responses that children demonstrate. As Lieven J observed in A Local Authority v AA & BB & Y [2022] EWHC 2321 (Fam):
“It remains important to acknowledge that there will be outlier, or unusual, cases.. This is a case where it is particularly important to bear in mind the various judicial dicta referred to above about considering the unusual or unlikely cause, and not simply following the medical evidence without question. I found Dr Hogarth's evidence very helpful in his appreciation that unlikely events necessarily happen, and there will be outliers to the normal clinical presentation.” 36). The evidence of the parents and other lay witnesses is crucial and it is important that an assessment is made of their credibility and reliability. 37). Witnesses may lie for a number of reasons – out of shame, to bolster a weak case, to protect somebody else and so on. The fact that a witness lies about one thing does not mean they have lied about everything. For a lie to be supportive of other evidence it must (a) be a deliberate untruth, (b) relate to a significant issue and (c) not be said for a reason that does not point towards guilt. It is for a party seeking to rely on a lie as supporting other evidence to identify these factors: Re A, B and C (Children) [2021] EWCA Civ 451; Re H (Children: Uncertain Perpetrators: Lies) [2024] EWCA Civ 1261 38). In B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 Peter Jackson LJ said this about witness demeanour: “No judge would consider it proper to reach a conclusion about a witness’s credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only ‘what happened in the past?’ but also ‘what may happen in the future?’, a witness’s demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable.” 39). Reliance on witness demeanour is not without controversy and the ability of judges (like anybody) to accurately assess witness credibility simply from demeanour has been questioned. See for example Lord Leggatt’s speech ‘Would you believe it?’: At a Glance Conference 2022 It is important that demeanour, if it is relied on at all, is part of the jigsaw and that allowance is made for the pressures of giving evidence. 40). And the question of recollection and the fallibility of memory is also important when considering witness reliability: Lancashire v R [2013] EWHC 3064 (Fam). 41). In S (A Child) [2014] EWCA Civ 25 Ryder LJ said this about the use of the phrase ‘non-accidental injuries’: “I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and/or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from say negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).” 42). In deciding whether injuries have been inflicted on a child it is important to consider the entire context, including societal and cultural factors. 43). In Re BR (Proof of Facts) (supra) Peter Jackson LJ referred to the NSPCC Common Assessment Framework and Patient UK Guidance for Health Professionals 25 which (as summarised in BR) set out the following risk and protective factors: Risk Factors • Physical or mental disability in children that may increase caregiver burden • Social isolation of families • Parents’ lack of understanding of children’s needs and child development • Parents’ history of domestic abuse • History of physical or sexual abuse (as a child) • Past physical or sexual abuse of a child • Poverty and other socioeconomic disadvantage • Family disorganization dissolution, and violence, including intimate partner violence • Lack of family cohesion • Substance abuse in family • Parental immaturity • Single or non-biological parents • Poor parent-child relationships and negative interactions • Parental thoughts and emotions supporting maltreatment behaviours • Parental stress and distress, including depression or other mental health Conditions • Community Violence Protective Factors • Supportive family environment • Nurturing parenting skills • Stable family relationships • Household rules and monitoring of the child • Adequate parental finances • Adequate housing • Access to health care and social services • Caring adults who can serve as role models or mentors • Community support 44). Peter Jackson LJ pointed out that: “In itself, the presence or absence of a particular factor proves nothing. Children can of course be well cared for in disadvantaged homes and abused in otherwise fortunate ones. As emphasised above, each case turns on its facts. The above analysis may nonetheless provide a helpful framework within which the evidence can be assessed and the facts established.” 45). In D and A (Fact-finding: Research literature) [2024] EWCA Civ 633 Baker LJ stressed the importance of considering positive family factors as part of the totality of the evidence. 46). The approach to the question whether there is a list of perpetrators and, if so, who should be in it is as follows: a) Is there a list of people who had the opportunity to cause the injury to the child? b) The question is not whether individuals can be taken off the list but rather should they be put on it. c) Within that list, can the judge identify the individual perpetrator by considering all of the available evidence and applying the balance of probabilities? d) If not, is there a real possibility that each individual on the list inflicted the injury: Re A (Children) (Pool of Perpetrators) [2022] EWCA Civ 1348; Re H (Children: Uncertain Perpetrators: Lies) (supra). 47). Because of the complexities of this case and the need for a holistic approach, I am going to structure this judgment not by setting out the medical evidence and the parent’s evidence in linear fashion as might be conventional but by way of a chronology which seeks to weave together the strands of the evidence, including importantly what the parents have said, to provide a sufficiently complete and coherent context for Y’s admission to hospital and medical findings. I then set out the medical evidence in respect of each set of injuries, considering the nature of the injuries found, timing, presentation and differential diagnoses. 48). The bundles in this case run to over 7,000 pages. I have read the material to which I have been directed. I cannot hope to set out in this judgment everything I have read and heard over the course of the last two weeks. I do however take it all into account. Chronology 49). The parents met in 2018, and married in 2021, by which time X was 9 months old. At that time B was working away from home for periods of 4 to 6 weeks. 50). There have been no concerns about the parents’ care of X. He did suffer a fractured clavicle with suspicion initially falling on the parents to the point that it was included in initial threshold, until it was realised the fracture occurred accidentally while X was in foster care. 51). A accessed her employer’s mental health service with anxiety and low mood in 2020, 2021 and again in 2023. In the bundle is a letter from her worker who has been A’s treating psychiatrist since 23 March 2023 in relation to her current care, but who also saw her on 19 January 2020 (before her pregnancy with X) when she first presented to her employer’s service following a referral from her GP. The psychiatrist then thought A was going through a mild depressive episode and prescribed anti-depressants. 52). On 4 June 2020 A (by now pregnant with X) was seen again and her working diagnosis was changed to ‘Anxiety Disorders – Unspecified’ after she reported a lifting of her mood following medication, getting engaged and becoming pregnant. She was discharged from the service on 2 July 2020 following three sessions of low-intensity psychotherapy and with a six-month prescription of anti-depressants. 53). A was referred to the service by her GP again on 17 March 2021 for continuing symptoms of low mood. On referral further anti-depressants were provided and that and the fact that B was home from work providing support meant that A did not feel she needed to take up the referral. 54). However, A was referred again on 21 June 2021 as the medication had not resolved her symptoms. Appointments were offered but A asked to be discharged from the service. 55). A self-referred to the service again on 23 January 2023 (when 5 months pregnant with Y) presenting with ‘Stress reaction [due] to pressure of work and child care. Reports feeling overwhelmed with her focus on career and being a mum while pregnant’. 56). A told me that she had been expecting too much of herself at this point, trying to do everything rather than making allowances for the fact she had care of a 2 year-old child and was pregnant. 57). A was discussed at a multidisciplinary meeting on 8 February 2023 when it was decided to arrange a psychiatric review with the psychiatrist as he had met with her previously. 58). The psychiatrist’s initial assessment on 6 March 2023 resulted in a working diagnosis of Adjustment Disorder in response to ‘a number of concurrent stressors affecting her work and family life’. It was agreed to ‘watch and wait’ before recommencing medication. A was discussed in a multidisciplinary team meeting on 8 March 2023 and placed on a waiting list for the Anxiety Management Group (low-intensity group psychotherapy). 59). Between 6 and 19 May 2023 there was a series of messages from A suggesting she was struggling to cope with X who she described in evidence as destructive and ‘creating chaos’. Her messages to B, which can be read as reaching out for support, did not get much in the way of response. Both parents accepted that B is something of a ‘closed book’ and did not really empathise with A, who clearly found it easier to discuss matters with the psychiatrist, with whom she got on well. A does not complain about lack of emotional support from B but I did not get much sense that he understood, or empathised with, her anxiety. 60). A’s pregnancy with Y was otherwise unexceptional. There was no use of alcohol, smoking or other substances. There was regular antenatal care and scans. Infection screening was normal. She sought prompt medical attention after a fall, concerned for the unborn child. 61). Y was born at 38 weeks + 4 days. Labour was induced due to reduced foetal movements and growth. He was lying in the womb spine to spine and was rotated. Two pulls were attempted using ventouse (suction cup) but the cap detached on the second pull. This left a cephalohematoma off centre left to the top of Y’s head which looks traumatic in the photographs but which resolved and disappeared in a few days. Mid-cavity forceps were used which resulted in easy vaginal delivery. 62). Y had bruising to his forehead and frontal area of his scalp and a small cut to his right cheek, but was otherwise noted to be in good condition on delivery, with good tone and colour, a strong cry within seconds, soft anterior fontanelle (indicating normal intracranial pressure), good Agpar scores (reflecting how well he was after birth) and being alert and active on handling. Head circumference was on the 50th centile. Y was routinely given vitamin K to prevent haemorrhagic disease. Blood gas showed no significant metabolic acidosis (if high that might indicate the baby was distressed and oxygen compromised). The delivery notes record ‘severe birth trauma’. This is discussed later. 63). Mother and baby were discharged from hospital some days later. Blood and hearing screening were normal. 64). A refers to Y being jaundiced at birth. This is not mentioned in Y’s medical records save for mention by the health visitor on 13 June 2023 – ‘jaundice resolved’. It is clear from the parents’ evidence that this was a live concern for them. The fact it is only mentioned in passing in the medical notes suggests that from a health professional perspective it was a relatively routine matter rather than one of real concern. 65). B was on paternity leave from a few weeks before Y’s birth until 3 July 2023 and shared care of him with A. They shared night feeds, with one of them doing two feeds and the other a third while B (who was more of a ‘morning person’) cared for both children on getting up, allowing A to catch up on sleep. 66). The maternal grandparents live abroad but came over to provide support between 24 May and 4 June and 16 to 20 June 2023 when they returned abroad. 67). The paternal grandparents live in the North of the country. 68). On 1 June 2023 there was a home visit by the midwife. A recalled Y being really unsettled, not feeding well and wanting to be held all the time. A raised this with the midwife but was told it was normal for a new baby. Dr Nawaz suggested possible irritability from the cephalohematoma. Nothing is noted by the midwife save the ventouse mark and measurements. 69). The midwife visited again on 3 June 2023 when A raised similar concerns and was again reassured. No concerns are mentioned in the notes. 70). On 4 June 2023 A’s parents went to stay with relatives, retuning to stay with the family on 16 June. 71). On 7 June 2023 Y projectile vomited over the dog while in B’s care. A was aware this had happened. 72). On 8 June 2023 the health visitor had no health concerns following an appointment. Y was noted to be feeding well and gaining weight. The parents say they again raised concerns about jaundice and feeding but on each occasion they did so they were just told it was normal for babies and so they accepted that was Y’s ‘normal’. 73). There was a further incident of projectile vomiting in a pub on the same day. These were the only two incidents of projectile vomiting by Y until 3 July. The parents say they mentioned it to the health visitor, although there is no mention of it in the health records. 74). On 9 June 2023 A went out at about 14:30 for a social event leaving the children with B who took them out, returning home at 18:00. Shortly after 21:00 that evening A messaged B to say she had forgotten to take her ID so she couldn’t get into clubs. In the end B got the children up and took the ID to her. A accepted this was not her best decision and it should not have happened. 75). On 10 June 2023 A messaged B at 11:56: “Please don’t get angry with Y”. 76). A accepted Ms Storey-Rea’s point that this message was sent within an hour or so of B returning home after taking X swimming, suggesting that there hadn’t been a long build up before B became sufficiently frustrated with Y to warrant the message asking him not to get angry. 77). In her police interview on 6 July 2023 A was asked about the texts. She said she didn’t like the shouting, although when asked whether that was B shouting at the boys, she said she didn’t think he shouted at them and it was more like a coping thing for him. She did mention him getting angry and swearing at the children. 78). B told me that he did sometimes get frustrated (rather than angry) with Y not feeding well and crying. He accepted he shouted at him to ‘fucking stop crying’. It was loud enough for A upstairs and message him. It never went any further than shouting, he said. He described how he had worked hard to bond with X (given he was away with work during parts of his early life) and to find things that worked in his care. The things he had put into practice with X did not seem to be working with Y however and that frustrated him. 79). I also gathered from A’s evidence that part at least of B’s frustration was because he struggled to calmly meet the demands of X, by then by all accounts a very active toddler requiring full attention in his own right, and Y. She said B spoke to Y as though he should understand what B was saying and did not seem at times to understand he was just a baby. I accept this may just have been vocalising what he was thinking rather than trying to get Y to understand but it evidences his frustration levels. 80). At 06:58 on 13 June 2023 A messaged B: “You are really starting to annoy me, I know it’s frustrating, and you are tired, but you need to stop blaming the [children] for it. Y is a baby and requires constant attention, and it’s got to be on his terms. Start sleeping in the other room. If you are going to get annoyed by being woken up in the night/early morning.” 81). On the same day Y, at 2 weeks, was described at his new baby (Red Book) review as being well, recovering from birth with head circumference on the 25th centile. Again, he was feeding well. 82). The parents say that at each of these reviews they mentioned their concerns that Y was not taking full feeds and seemed unsettled but their concerns were repeatedly brushed aside as just what babies do. They were again reassured. 83). On 15 June 2023 A had a telephone review with her psychiatrist when he diagnosed an Anxiety Disorder on top of ‘Baby Blues’ due to her increasing symptoms of anxiety and tearfulness. Reviews were stepped up to fortnightly. A described heightened anxiety around risks of danger for the children (crossing the road, feeding the ducks near a pond, for example). 84). On 16 June 2023 A’s parents returned to stay with the family, leaving to return to abroad on 20 June. 85). At some point between 4 and 16 June or after 20 June there was an incident when B bent down and his mobile phone fell from his pocket onto Y’s chin causing a small cut. B could not remember when it happened, save that A’s parents were not there (hence the dating). He told the hospital on 4 July it had happened a week earlier. Nothing turns on this, but it is included for completeness. 86). On 19 June 2023 A and her parents went shopping while B cared for Y for a couple of hours. X was at nursery as usual. B says that Y fed and slept as normal with no change in his presentation or concerns. When asked in evidence, he could not think of anything that had happened to Y when in his care on that day. 87). On 20 June 2023 A noticed a small mark on Y’s stomach which looked like a bruise (although in evidence B said he thought it looked like a vein, while A described it as looking like a burst blood vessel). Neither of them has any idea how it was caused. A was concerned and took a photo of the mark which she sent to a friend asking for advice. A says this mark suddenly disappeared and did not fade as a bruise would. 88). According to A, there had also been a mark on Y’s leg or arm (she could not remember which) which had by then also suddenly disappeared. 89). On 21 June 2023 the parents took Y to the GP as they felt he was unsettled after feeding, vomiting, with irregular breathing, crunching his legs up and crying. A also says she was concerned about the mark on Y’s stomach and wanted to get it checked by the GP. Reflux was suspected and the GP suggested Gaviscon. There is no mention of physical examination at this appointment. Although both parents say the GP observed the mark on Y’s stomach and said it was nothing to be concerned about, there is no relevant record in the GP notes. 90). A was asked what had changed in Y’s condition or presentation to warrant going to the GP. She denied any ‘step change’ saying it was a continuation of ongoing concerns about being unsettled, not feeding well coupled with the mark seen the day before. 91). On 23 June 2023 A messaged a friend saying that Y did not like lying flat. She explained that had always been the case and this was nothing new. 92). On 25 June 2023 it seems A sent a voice message to B and may also have been calling to him to say he should feed Y as he was crying his ‘hungry cry’. B said that Y was crying so loud he could not hear the voice message or A calling to him. B messaged that he had tried giving Y his bottle, but he was screaming and out of breath. 93). On 26 June 2023 the midwife transferred care to the health visitor. Examination was normal and, although A says she again raised her concerns, the health visitor notes appear entirely positive. Y was noted to be feeding well and gaining weight. 94). On 29 June 2023 the psychiatrist saw A with a colleague. Their agreed impression was that A was suffering from an Anxiety Disorder alongside ‘Baby Blues’. They agreed to continue fortnightly reviews and A agreed to consider antidepressants. They did not meet again until 14 July, by which time Acute Stress Reaction was added to the diagnosis following the aftermath of the events of 2 to 4 July. 95). On 30 June 2023 the GP reviewed Y. It was not clear whether the Gaviscon had helped as Y would cry and grimace and was very windy. It was thought he might have colic or reflux and the parents were advised to monitor him with ongoing medication. Again, it is not clear whether there was physical examination beyond the abdomen. 2 July 2023 96). On 2 July 2023 Y woke at about 06:30 and B fed him either upstairs or down while A remained in bed. A messaged her mother at 07:53 that Y hadn’t slept and was awake every hour. B says that Y took a full 5oz feed of powdered milk and presented as normal. 97). B then placed Y in his vibrating chair in the living room. He was not strapped in as he was non-mobile. X was in the living room with Y playing with his toys. At a point a couple of hours later (so about 08:30) B went into the kitchen to tidy and sterilise Y’s bottles. He could not see into the living room from the kitchen. 98). Jumping forward slightly, following Y’s admission to hospital at 10:19 that morning, A messaged B from the hospital (at 10:32) because they needed to know when Y was last fed. B said he had been fed at 08:20 finishing at 08:45 and he had his Gaviscon or gripe water mixed into his milk. B confirmed it was important this information was accurate and was confident that it would have been right (although he missed the second feed from his statement). 99). When B returned to the living room some minutes later (he gives differing accounts as to how many minutes) he says he noticed Y had some sick dribbling out of his mouth. When he wiped it away Y did not react as he usually did. His skin was slightly paler than normal. B picked Y up and realised he was lifeless and unresponsive. B started CPR (two sets of 15 using two fingers around the middle of the chest with 2 breaths). When Y started to suck in air B says he ran upstairs, calling out to A to phone for an ambulance and carrying Y on his chest and over his shoulder. At this point B says Y started to respond more normally, with a couple of sharp deep breaths and then normal breathing. B told the police and me in evidence that Y only started breathing again as he ran upstairs with him. 100). A’s 999 call was recorded at 08:30: “he is really sucking in … he’s breathing, but it’s not like his eyes aren’t open or he is not … he has gone really limp … not responding at all … breathing sounds noisy”
. They were advised to put Y in the recovery position. 101). The ambulance arrived at 09:30. The history of vomiting milk and becoming unresponsive, floppy and stopping breathing was given. B described the CPR, saying he had given 2-3cm for compressions. Vital signs were taken. It was noted Y’s breathing was laboured. His tone was good and he was not cyanosed. He vomited once while with the paramedics. 102). One of the ambulance crew made a police statement. He described B as physically shaken and shocked and needing reassurance he had done the right things. He did not describe A’s reaction, perhaps because his colleague (who did not make a statement) dealt with her more. 103). Y was taken to hospital arriving at 10:19 where his respiratory rate (RR) was noted to be high and heart rate (HR) upper level of normal. No bruising was noted. His haemoglobin was 83 which Dr Jayamohan considered about 30 or 40 below normal. ALP (alkaline phosphatase – bone biochemistry enzyme) was raised. CRP (infection marker) and ECG were normal. Vital signs were not rechecked which Dr Nawaz thought unfortunate. Raised HR could result from crying or could indicate an underlying medical issue. A vasovagal episode (malfunction of the nervous system reducing blood flow to the brain) was suspected. There has been discussion whether in isolation this event was consistent with a Brief Resolved Unexplained Event (BRUE) or was just an unexplained event. 104). Y was discharged at 17:00 that day with a follow up appointment arranged. Both Mr Jayamohan and Dr Nawaz thought he should have been kept in overnight for observation even if scans were not needed. 105). At 22:45 that evening A phoned the hospital concerned that Y had fast noisy breathing, although he was feeding and responding well. She was advised to keep an eye on him. 3 July 2023 106). B returned to work on 3 July after paternity leave, taking X to nursery at about 07:30 and leaving A and Y at home. 107). A describes Y as unsettled overnight, wanting to be held with irregular breathing. At 10:28 A sent a message to friends saying Y was sickly, unsettled and not sleeping and she was thinking about taking him back to hospital but would keep an eye on him. 108). When B returned from work that afternoon A said there had been no real improvement. After B had collected X from nursery at about 17:30 and returned home A said she was going to take Y back to the hospital. B dropped them there at 19:00 and returned home with X. 109). The hospital noted concern that Y had been unsettled and refusing feeds since 06:00 with reduced urine output. Observations were within normal parameters for his age, he was afebrile and handled well. A described Y as being increasingly difficult to feed over the last few weeks and being upset and miserable. Gaviscon had not really made any difference. Y looked for food but then played with the bottle. He took 2oz. He handled well. Assessment of the fontanelle was not recorded. A reported that Y projectile vomited over the doctor, although this was not recorded in the notes. Cow’s milk allergy was suspected and special milk was prescribed. Again, Y was discharged, to the surprise of Dr Nawaz given his condition then and the day before. 110). Overnight A says Y continued to be unsettled, taking only a small amount of feed. 4 July 2023 111). On 4 July B left for work after dropping X at nursery at 07:30. He did not have interaction with Y before leaving. A said in her statement that Y was unsettled all day, she couldn’t put him down, he wouldn’t feed and when he had any milk he was immediately sick. His breathing was still irregular. A messaged her mother during the day saying he was unsettled and she had to keep cuddling him. 112). In evidence A described how she had planned to do jobs around the house but Y just did not want to be put down so she just sat on the sofa with Y and watching TV and updated her Instagram. She described a chilled out rather than stressful day with Y once he had settled with her. He would moan and groan but that was normal for him. Indeed, she said she was reassured by the opinion the day before that Y was milk intolerant and that an answer to his presentation may have been found so they could move forward. 113). B returned from work around midday. He described Y as presenting as his usual self. After lunch he took Y and the dog for a walk. Back at home he sat on the sofa in the living room with Y asleep on his chest for a couple of hours. At about 17:15 he took Y upstairs for A to look after him while he fetched X from nursery, returning at about 18:00 (A says he returned at 17:30). Neither parent was able to be more precise about the time B returned home with X from nursery. It is likely it was between 17:45 and 18:00. 114). In evidence B said he had put Y down in the ‘next-to-me’ crib next to the bed. When he came back he found Y in bed with A and took him from her to go downstairs. A did not have any specific memory of this as she was half asleep at the time, but accepted that she must have moved Y from the crib to the bed (the two are more of less level and the crib doesn’t have a side where it joins the bed) soon after B had placed him there. 115). B took Y downstairs and placed him in his Moses basket in the living room and made X his tea. He says Y started to cry but it was his usual cry. Then Y stopped crying and B says he thought he had fallen asleep, so he went into the kitchen to prepare Y’s milk for when he woke up. B says he was in the kitchen for about 5 minutes. X was in the living room or playroom. When B went back to Y he found he was not breathing again and he performed CPR and called upstairs to A. 116). A says she heard B shouting “help, it’s happening again”. She rushed downstairs to find Y in the living room floor with B performing CPR. 117). A called the ambulance at 18:14, so between 15 and 30 minutes after B returned home. She said Y was struggling to breathe but was awake. Then she said he was not breathing as B started CPR. A had to call back a few minutes later as she lost phone signal. By then Y had started to breathe but was “really struggling, breathing heavy and is a little bit grunty, but not extremely”. 118). B was advised to place Y on a hard surface and resuscitate. He had checked following resuscitation on 2 July and realised he had been doing it wrong (he told me he had halved the number of compressions to account for Y’s size which he should not have done). This time he gave about 200 compressions. The parents did not report seizure activity. 119). In a statement made on 25 January 2024 B said when he found Y unresponsive he held him under his armpits with his thumbs under his shoulders and hands round the back of his shoulders with his head supported/resting on his fingers. He then gave Y “a little shake” but said “I do not think his head was moving around. I tried to keep his head upright”. B did not think the force he used was excessive or could have caused injury. 120). The ambulance arrived at 18:23 and left at 18:39, arriving at the Emergency Department at 18:45. The paramedic assessment was: ‘Pt lying in the recovery position on the floor, grunting. Pale in colour. irregular breathing good air entry equal chest rise and fall. chest - pulmonary oedema, crackles. no recent coughs but pt has had rhinorrhea since Sunday. Pt had similar episode on Sunday and was transported to QA. No neuro deficit. Normal pupils. Pt drinking milk well but parents state he has been struggling to swallow. Good tone. Pt intermittently screams a high pitch scream, unsure if this is an injury no obvious injury found. Straightens limbs in response to pain (extension). Cries but consolable’ 121). RR was 56 and HR 150. Breathing was irregular. No bruising was noted. Blood glucose was normal. 122). The paramedic made a police statement in which he described A as completely distraught and in floods of tears, almost frozen. B was described as being ’unusually calm’. 123). Both Mr Jayamohan and Dr Nawaz are clear that at this point Y was a very unwell baby. It was not clear whether Y was having seizures but at his point his neurology was not normal. 124). Y arrived at the Emergency Department (ED) at 18:45. Apart from checking vital signs (which were normal) there is no record of any physical examination by the ED team. His GCS (Glasgow Coma Scale) score was 15 indicating that he was alert and responsive. He was noted to be sufficiently stable for transfer to the CAU (Children’s Admission Unit). 125). On arrival at CAU at 19:28 there were immediate concerns about Y’s condition. On assessment he was crying and intermittently apnoeic (stopping breathing), needing oxygen, pale and mottled (signs of poor circulation). He was irritable with bulging fontanelle. His temperature was normal. He was medicated and put on a ventilator (intubated). He remained intubated until 16 July 2023. There was extensor posturing (extending his limbs). There was no bruising. An urgent CT scan was undertaken. 126). Dr Nawaz notes a sudden deterioration in condition between ED and CAU. 127). Y was transferred that evening to the PICU (Paediatric Intensive Care Unit) at another Hospital. There he suffered seizures and required inotropic support and a blood transfusion. 128). In her child protection report dated 7 July 2023 the Paediatric Neurology Consultant said that she had spoken to the parents to get a history. They did not report any concerns about Y before 1 July when he did not sleep well. A showed the consultant a photo on her phone of the mark to Y’s abdomen. A described B preparing dinner on the evening of 4 July when he heard a grunting noise coming from Y’s cot and found him unresponsive. 129). The consultant discussed an MRI brain scan from 5 July with a consultant paediatric neuro radiologist Dr P a) there was a large amount of subdural blood on both sides of the brain which extended all the way down the spinal column; b) the blood was layered and of different intensities suggesting different ages; c) the right frontal haemorrhage in particular looked very recent (days); d) they could be certain the bleeding was more recent than 5 weeks and very unlikely therefore to have occurred around the time of birth; e) in addition to the subdural blood there was parenchymal haemorrhage in the right hemisphere in the frontal lobe which, in the absence of any scalp swelling or fracture, suggested the brain had moved with significant force within the cranium. 130). In the paediatric consultant Dr L’s opinion the MRI appearances were consistent with a diffuse axonal injury caused when the brain has moved with considerable force within the cranium, causing significant bleeding in the subdural spaces and within the brain itself. This, she said, would not occur with normal handling and was consistent with the infant being shaken on more than one occasion. 131). The rib fractures were also noted as being suspicious for inflicted injury but were not at that point timed. Normal bone mineralisation was noted. 132). The seriousness of Y’s condition implications were starkly set out by Dr L: ‘Y has had a severe traumatic brain injury. He is currently intubated and ventilated on paediatric intensive care and having seizures as a consequence of his brain injury. He is on more than three antiepileptic medications to try and stop the seizures but we are unable to stop them. We continue to provide treatment on all aspects of Y’s medical care and to manage the complications of his severe traumatic brain injury. The severity of the seizures is a reflection of the severity of the brain injury. If Y survives there is no doubt he will have significant neuro disability affecting all aspects of his life – his movement, his cognitive ability, his talking and feeding.’ 133). Following 12 days of intubation, Y was discharged from hospital on 10 August 2023 and has happily made a good recovery, although Mr Jayamohan says that long-term sequelae from the brain injury may not be apparent until assessment at 4 or 5 years old. 134). On 5 July 2023 the local authority started a section 47 child protection investigation. 135). On 6 July 2023 X underwent a child protection medical. There were no matters of concern. That day X was taken into police protection. 136). The parents were arrested on 5 July and interviewed under caution on 6 July. Both denied harming Y in any way. During a re-interview later that day when the results of the child protection medical were put to the parents it was pointed out fairly forcefully to B that if neither parent accepted responsibility for the injuries which had by then been discovered, both of them would remain under suspicion. B maintained he had done nothing wrong. 137). These proceedings were issued on 7 July 2023 and are therefore currently at week 70. Unopposed emergency protection orders were made in respect of both children on 10 July 2023 with interim care orders for the duration of the proceedings on 18 July 2023. 138). Upon discharge from hospital on 10 August 2023 Y was placed into the care of his grandparents in the North of the country (along with X) under the interim care orders. The parents have been driving hundreds of miles every weekend for supervised contact. 139). A police investigation is pending and the police have obtained reports from radiologist Dr Watt and neurosurgeon and Mr Calisto which have been disclosed into these proceedings. 140). The parents were interviewed under caution again on 16 May 2024 when the reports of Mr Calisto and Dr Watt were put to them. B maintained his position, answering some but not all the questions put to him. On legal advice A gave a ‘no comment’ interview. The medical evidence 141). In this section I will consider the medical evidence as it has developed. Rib fractures What injuries? 142). Dr Johnson had skeletal surveys dated 6 and 20 July 2023 from which he identified fractures of the anterolateral left 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ribs. 143). Dr Watt also had a chest radiograph from 5 July from which he identified healing fractures to the anterior left 4th to 8th ribs and a probable fracture of the anterior left 3rd rib with very early healing evident. These appeared unchanged in the survey of 6 July but with a suggestion of a fracture of the anterior margin of the left 2nd rib with very early healing evident. Mechanism 144). In Dr Johnson’s opinion, each fracture was the result of significant force being applied to the bone. The amount of force is unknown but is significant, excessive and greater than that used in normal care and handling of a child. 145). Typically, said Dr Johnson, such fractures result from significant and severe excessive squeezing compressive force applied to the chest. It is not shaking itself which causes fractures but the holding and squeezing of the chest. 146). Dr Johnson says rib fractures very rarely occur in life-saving cardiac massage where the chest is forcibly compressed by one-third of its diameter (and see below as to timing). 147). Dr Watt described, with the aid of a diagram, the rib cage as a tube which if compressed beyond a certain point (50%) in CPR may result in fractures (perhaps in 2-3% of cases). 148). We see from the skeletal surveys that the fractures are at a linear or similar point at each rib. Dr Watt explained that this does not indicate necessarily the point of compression but the point at which a rib will fracture followed by other ribs at the same point as the rib cage loses integrity at that point. 149). Dr Nawaz was clear in his opinion that the ‘shake’ as described by B in his January statement could not have been a mechanism for the rib fractures. Timing 150). Dr Johnson, relying on the extent of periosteal healing shown in the scans, put the fractures as occurring on a single occasion between 2 and 6 weeks before the scan performed on 6 July, which would put them at between birth on 29 May and 22 June 2023. 151). The survey of 20 July shows further evidence of healing response which did not change Dr Johnson’s opinion about timing. 152). Dr Watt explained that periosteal reaction (the healing process) is not seen until between 5 to 11 days following fracture. Because of the imprecise nature of fracture timing radiologists work in weeks rather than days. 153). Dr Watt put the fractures of the left 4th to 8th ribs at between 2 and 5 weeks old on 5 July (31 May to 21 June) but the fractures of the 2nd and 3rd ribs at between 1 and 3 weeks old on 6 July (15 to 29 June). 154). Any of this dating precludes the CPR performed by B on 2 and 4 July as a possible cause. 155). Dr Watt explained that because of the overlap between his timings it was possible that all the fractures had been caused at the same time (consistent with Dr Johnson’s opinion). Bones can, he said, heal at different rates within the same body, particularly where the degree of damage varied. The 2nd and 3rd ribs are, he explained, protected by the scapula (shoulder blade) and may therefore not have suffered as much damage as the other lower ribs. Dr Watt likened this to the different appearance of scabs on cuts to the skin depending on the depth of the cut. In evidence Dr Johnson agreed with this and maintained his view that the rib fractures had occurred at the same time. 156). Dr Nawaz timed the rib fractures to between 20 and 30 June by reference to Y’s altered presentation during that time, in particular repeated referrals to the GP and health visitor during that period with concerns about reflux or colic. Dr Nawaz agreed in evidence that this was not robust evidence as to timing. 157). These fractures could have happened at the same time as the fibula injury, but by a separate application of force. Presentation 158). At the time the fractures occurred Dr Johnson and Dr Watt (deferring to paediatric opinion) would have expected Y to be in pain and showing signs of distress lasting for some moments. 159). Dr Nawaz says that if the rib fractures were caused at birth it would have meant difficulty breathing, feeding and settling with pain and distress, none of which were reported until about 20 June when Y was taken to the GP. 160). Dr Nawaz distinguished two different presentations – (a) acute reaction to the fractures lasting perhaps minutes or hours when there would be intermittent crying and it should have been obvious to a parent who caused the injury that he was in pain and that they should seek medical attention and (b) over the next few days when he would still be in pain and not himself but displaying more non-specific symptoms which may have not have been understood as relating to pain. 161). Dr Nawaz said that for a non-perpetrating, non-witnessing, parent all they might see is an unsettled fractious baby with non-specific symptoms which could be understood as colic, for example.

Differential diagnoses

[162]Metabolic cause 162). Radiologically, Dr Johnson and Dr Watt found normal bone density with no evidence of underlying metabolic bone disease so that Y was at no increased risk of fracturing. 163). Professor Saggar identified a family history of hypermobility spectrum disorder (HSD) in A with good evidence for a diagnosis of HSD of the subtype hEDS but not of the most severe form. He reported that here was no significant evidence that Y had inherited this beyond some clinical indications. The diagnosis is clinical based on history and presentation and exclusion testing. Y’s connective tissue panel for Ehlers Danlos Syndrome (EDS) and Osteogenesis Imperfecta (OI) was normal. 164). Professor Saggar said that the inheritance risk for HSD may predispose Y to a greater degree of bruising and or bleeding for any given force. However, a degree of force, albeit lesser, would still be needed to cause fractures in infants with HSD; they do not occur spontaneously. The forces, even if lesser, would still need to be above those used in normal handling. And fractures in children with HSD would be no less painful than for children without HSD. 165). Initially in evidence Professor Saggar gave a number of reasons why there was no reason to significantly increase the theoretical 50% chance that Y had inherited HSD: a) HSD cannot be determined by test, only by examination of clinical presentation, which is difficult in infants and up to 5 years, with developing motor skills giving a base line; b) Y’s features on their own (hypertelorism (widely spaced eyes) with bilateral epicanthic folds (folds at the corners of the eyes)) were subtle non-specific signs which are not diagnostic, but which might slightly increase the risk of inheritance over 50%; c) Y’s Beighton Score of 4/9 (compared to A at 5/9 and B at 1/9) did not point away from it – a score of 6 being significant; d) he differentiated easy marking from easy bruising, the former just being a skin reaction caused by release of histamine in the skin, not bleeding; e) if a child had greater susceptibility to capillary bleeding that would be a constant symptom; f) there was no evidence that Y bruised easily, suggesting that forces had not re-occurred. 166). Professor Saggar agreed with Ms Grief KC that this is an evolving area of medicine with a lot more being learned in the last decade about how the brain sits in the head before narrowing down to the spinal cord and about HSD as an inflammatory disorder affecting collagen tissue. He accepted we still don’t know what we don’t know. 167). Ms Chapman asked Professor Saggar whether gene sequencing allowed him to rule out EDS. Professor Saggar said there was always a risk, but he had used a laboratory with a very good reputation and the risk of it being missed was less than 0.5%. 168). Ms Chapman then put to Professor Saggar a series of medical notes relating to Y’s admission to hospital between 5 and 15 July 2023 where bruises and marks are recorded, mostly to the arms and wrists. Having distinguished bruising, marks and mottling, Professor Saggar accepted this tipped the scales in favour of saying Y may on balance have inherited HSD. He maintained that position when it was pointed out to him that this was a period when Y had arterial lines and cannula inserted and removed during intubation, although he accepted that would often causing bruising and the wrist may be gripped hard. 169). Professor Saggar maintained however that there still had to be a force to cause fracture which could be a lesser force where there was HSD but still outside the parameters of normal handling. 170). Dr Watt told me that, although there is a recognised increased risk of fracture with hypermobility in later childhood and adulthood, no such increased risk had been identified in infants, whose bones are less ossified and more pliable. 171). This accorded with the studies identified by Professor Saggar about bone mineralisation loss in adults with EDS type 3 (now termed hEDS), with some evidence of loss in children as young as 5 years. However, those children did not present with fractures, certainly not pre-ambulatory and without connective tissue disorder. 172). Both Dr Johnson and Dr Watt noted that the anterior aspect of the 4th right rib appeared expanded in keeping with congenitally deformed rib or normal variant rather than fracture. This did not indicate any pre-disposition to fracturing. 173). From a paediatric perspective, while deferring to Professor Saggar’s expertise, Dr Nawaz found it difficult to accept the points identified by Professor Saggar were sufficient to say it was likely Y has HSD, although, if he did, Dr Nawaz accepted the proposition that lesser forces may be needed to cause injury: a) At the time bruises were noted in intensive care Y was extremely unwell and it was difficult to manage his seizures. He was on anti-epileptic and anti-biotic medication and that was not a context in which to make an assessment of bruising or condition of the skin. Unless it had been very obvious Dr Nawaz would not have placed too much weight on the bruising at that point. HSD is a not a life-threatening condition warranting urgent diagnosis. What should happen is re-assessment and review of the child once he is back in a normal environment. b) If it is correct that following discharge on 10 August 2023 Y has been living a normal healthy life with no evidence of easy bruising or fracture while he is starting to toddle, furniture cruise and, no doubt, fall, this is not a story that suggests unusual bone or vascular fragility and it does not sit well to use HSD as a mitigating factor. c) Dr Nawaz accepted that bone demineralisation could be radiologically silent and difficult to diagnose. Birth injuries 174). Nor, from a radiological perspective did Dr Johnson or Dr Watt consider the rib fractures were caused at birth. Dr Watt drew the analogy with CPR in terms of mechanism. Although x-rays are not routine for children at birth, when they were done following use of instrumentation or a difficult birth the prevalence of rib fractures was rare or ‘vanishingly small’, as Dr Watt put it. 175). Dr Nawaz also effectively ruled out birth injuries. While giving a paediatric overview, Dr Nawaz also had experience as a neo-natal consultant for 10 years down to 2013 and was well placed to speak about birth injuries. He told me that, although there are cases when babies suffer one or two rib fractures at birth, this is rare. Where the baby is large at delivery (macrosomia – over 3.5kgs) and/or there is shoulder dystocia (where the shoulder becomes stuck under the mother’s pubic bone) delivery can be more difficult and may result more typically in clavicle fracture, occasionally with one to two rib fractures (although the latter is not contingent on the former). However, in Y’s case: a) although there is reference in the delivery notes to severe trauma, that was likely to refer to the cephalhematoma rather than to the delivery more generally; b) Y was not a large baby – 2.88kgs and on the 25th centile; c) the difficult part of the delivery was extraction of the head, the rest of the body came out relatively easily; d) the use of ventouse and forceps and the presence of a cephalohematoma was a fairly routine scenario and did not explain rib fractures; e) delivery would not cause multiple rib fractures – Dr Nawaz had no experience of that number or pattern of rib fractures at birth; f) he agreed compressive forces were at play during the delivery as they always are but not such as to explain multiple rib fractures; g) had there been real concern about a potentially seriously traumatic delivery he would have expected somebody more senior (a consultant) to be called rather than the delivery being managed by a registrar; h) there may be underestimation around undetected rib fractures following birth, with x-rays not routinely being done when symptoms are non-specific and fractures are missed by both health professionals and carers; i) A did make a number of references over the first week or so to Y not feeding well and wanting to be held, which could be non-specific symptoms of pain potentially because of the cephalohematoma; j) Dr Nawaz’s reading of the medical records was that there was nothing out of the ordinary to suggest rib fractures; k) while he could not absolutely exclude the possibility, it was highly unlikely that the rib fractures happened at birth. 176). Dr Nawaz reported:
‘The scientific literature does comment on the possibility of underestimation of rib fractures in babies, and I accept this, but, in my opinion, [this] doesn’t overshadow the overwhelming evidence from large, published studies that rib fractures are rare in newborns and during the first year.’
Other accidental causes 177). The parents referred in their statements to an occasion when B massaged Y’s abdomen and A thought he was applying too much pressure (described as like getting toothpaste out of a tube). Nobody (expert or lay) suggests this could have caused the rib fractures. Brain/spinal injuries What injuries? 178). Dr Williams explained that the appearance of blood on MRI is more complex and variable than on CT scans. Aging haemorrhage is thus more complex and inaccurate on MRI but it does provide better soft tissue resolution. 179). I will consider Dr Williams findings in some detail, partly to show the development of the injuries over the course of the imaging as Mr Jayamohan considered that significant when considering timing. 180). Dr Williams reviewed a good quality CT scan of Y’s brain taken on 4 July 2023 and found: a) significantly, no scalp soft tissue swelling, superficial haematoma or skull fracture, suggesting there had not been forceful blunt cranial impact trauma against a hard unyielding surface or by a hard object; b) widespread, multifocal (at multiple sites) subdural collections seen over the vertebral convexities, anteriorly and posteriorly (front and back of the convex curves of the spine), within the interhemispheric fissure (the deep groove separating the brain’s left and right hemispheres), the supratentorial compartment (the upper part of the brain) and posterior fossa (the space deep in the skull near the back of the head containing the cerebellum and brainstem); c) these collections are small volume and do not exert any mass effect (compression of, or injury to, the brain); d) this bright/hyperdense blood is acute haemorrhage; e) anteriorly over each frontal lobe there is darker, lower-density, subdural fluid (but not as dark as cerebrospinal fluid (CSF)); f) there are no subdural membranes visible; g) small volume acute surface subarachnoid haemorrhage, especially superiorly over (above) the right frontal lobe; h) lower density fluid anteriorly in keeping with subdural effusions; i) no parenchymal contusion (bruise to the functional tissue of the brain); j) grey-white matter differentiation is preserved and there is no evidence of hypoxic-ischaemic injury (HII) (brain damage caused by lack of oxygen or blood flow); k) no hydrocephalus (build-up of CSF causing pressure within the skull). 181). Dr Williams reviewed a good quality MRI scan of 5 July (that seen by Dr L) and found: a) that the collections referred to at b) and c) (a mix of frank blood and subdural effusion) in the preceding paragraph had enlarged slightly since the CT but remained of low volume with no mass effect; b) evidence of clear frank subdural blood in keeping with early subacute blood product especially superiorly, posteriorly and in the posterior fossa; c) the blood is bright or hyperintense on T1 (thoracic spine) and dark or hyperintense on T2 in keeping with early subacute blood product; d) a small amount of blood at the junction of the subarachnoid and subdural spaces especially superiorly over each hemisphere (described by Mr Jayamohan as subarachnoid blood); e) this blood is related to curvilinear structures traversing the collections which are bright on T1 and dark on axial susceptibility-weighted imaging (SWI) in keeping with thrombosed subdural bridging veins (clotting of the veins which drain blood from the cerebral cortex into the venous sinuses); f) subdural fluid over each convexity anteriorly was not frank haemorrhage but more watery, although not appearing as CSF - these effusions had enlarged since the CT; g) several small areas of restricted diffusion in the superior right cerebral hemisphere raising the possibility of small areas of shearing injury; h) no cortical contusion; i) as before, no evidence of HII or hydrocephalus; j) extensive intraspinal subdural haematoma running from the mid-thoracic region into the lower lumbar canal, bright on T1 and dark on T2; k) no cord injury or compression. 182). Dr Williams review of an MRI scan dated 10 July 2023 resulted in the following findings: a) there had been maturation of the intracranial findings from the previous imaging; b) the subdural effusions had again increased in size; c) multifocal subdural blood was unchanged in distribution and appearance; d) thrombosed subdural bridging veins are again seen superiorly; e) the small areas of restricted diffusion are no longer visible but there were several faint areas of restricted diffusion on the posterior white matter on the right. 183). Finally, Dr Williams reviewed an MRI scan dated 12 July 2023 and found: a) continued enlargement of the subdural effusions but any mass effect on the brain was mild; b) traversed by bridging veins but no membrane identified; c) frank subdural blood remains in the posterior fossa and at the junction of the subdural and subarachnoid spaces superiorly (again bright on T1 and dark on T2). 184). Dr Williams described Y as having clinical features of acute encephalopathy (AE) on arrival at hospital on 4 July. That is a marker of global brain dysfunction with serious, potentially life-threatening, intracranial pathology. Causes may be intracranial infection/sepsis (the potential for which he was treated prophylactically with intravenous antimicrobials) and trauma. 185). Dr Williams explained the punctate (pinpoint) areas of restricted diffusion in the right hemisphere superiorly caused when cells become damaged and swell. These changes persist on imaging for around 7 days following initial injury and are explained by parenchymal shearing injury (shearing forces resulting in axonal (tissue) damage). Mechanism 186). Having considered the differential diagnoses set out below, Dr Williams concluded that the injury mechanism was likely to have involved shaking with backwards and forwards motion of the unsupported head and rotational forces leading to stretching and rupturing of the subdural veins crossing the subdural space resulting in subdural bleeding. The degree of force needed is not known but such findings would not be found in normal handling, typical domestic trauma or rough play. The minimum degree of force is such that an independent witness would regard it as likely to harm the child and would be obviously inappropriate. This, Dr Williams pointed out, does not mean that harm was caused intentionally or deliberately. And the carer causing the injury might not realise any change in behaviour was due to brain injury. 187). Dr Williams noted some reference to ‘layering’ of collections suggesting two episodes. He did not support this view. The pattern he saw on the imaging was the same as seen in cases where there had been a single event. Nothing pointed either to a single event or more than one and he could not exclude either. What he could say was that there had been at least one episode of shaking occurring around 4 July 2023. 188). Mr Jayamohan said that, in the absence of any bleeding disorder, the subdural and subarachnoid bleeding and the effusions are caused by trauma. While impact is a potential cause, the description of thrombosed cortical veins by Dr Williams would be in keeping with a shaking injury rather than an impact injury. 189). Mr Jayamohan raised a question about Dr Williams’ discussion of shearing of brain tissue, saying if Dr Williams was satisfied there was shearing then that may contribute to Dr William’s view about mechanism, but he left that to Dr Williams. 190). Mr Jayamohan said that thrombosed bridging veins are associated with trauma rather than shaking injury, usually falling off things outdoors, rarely indoor events and nothing explained by the parents. 191). Mr Jayamohan was asked about the collection of spinal fluid. He accepted that blood could travel from the head to the spine (as the dura into the spine is continuous) but the amount of blood collecting there and the relative lack of it in the upper spine suggested to him it originated in the spine rather than travelled there. Dr Jayamohan accepted that if the blood had tracked down to the lower spine there may have been blood traces in the upper spine which were not visible on the scan, although, given the amount of blood collecting in the lower spine, he did not like that as an explanation. 192). If, he said, we think about being held around the chest and shaking with uncontrolled movement of the head and pelvis, trauma to the dura and veins in the lower half of the spine is explained. Mr Jayamohan could not date the spinal fluid. 193). Dr Nawaz could not exclude the possibility that little shaking could cause brain injury but he thought it unlikely. In his view the brain injuries were highly likely to be non-accidental/inflicted and consistent with abusive head trauma, with the most likely mechanism being severe rapid acceleration-deceleration forces, namely shaking with or without impact. The bleeding to the brain was very likely related to the same mechanism causing the brain injury and may have contributed to but was not the main cause of his symptoms. No other plausible explanation had been put forward by the parents. Timing 194). Dr Williams explained that timing of a bleed is by reference to its brightness on CT imaging. Hyperdense haemorrhage is bright and typically within 7-10 days old, meaning that it has occurred up to 7 to 10 days prior to the imaging. Following this period, provided there has not been a recurrence of acute haemorrhage, the blood begins to mature, becoming progressively less bright, then becoming ‘isodense’ (looking like the normal brain) and finally ‘hypodense’ (a chronic state). 195). Other factors which can affect the appearance of blood on imaging include mixture with CSF if there has been a tear in the arachnoid membrane allowing CSF to enter the subdural space to mix with the blood (an effusion), causing the blood to appear less hyperdense. 196). Where a child suffers a brain injury such as a diffuse axonal injury (DAI) (see discussion under Presentation below) Dr Williams and Mr Jayamohan agree there would be a sudden and abrupt change in the child’s behaviour without any lag or lucid interval of normality. From the point of view of timing of a traumatic event therefore sudden change of behaviour or, in Y’s case, what is described as collapse, becomes highly significant. The event happened after the child was last seen behaving normally. 197). Dr Nawaz thought that Y’s head injury was likely sustained minutes before he was found unresponsive by B on the evening of 4 July 2023, alternatively, but less likely, on 2 July 2023. 198). Mr Jayamohan deferred to Dr Williams on timing where Dr Williams was able to give tighter timescales. Mr Jayamohan noted that the acute subdural effusions increased in size and therefore would have been present for no more than a day or two prior to initial imaging. 199). Mr Jayamohan said: a) clinical history is essential in considering timings; b) collapse requiring CPR on 2 and 4 July 2023 would both be in keeping with acute encephalopathies caused by shaking injuries; c) it is possible Y may have had a first collapse caused by shaking on 2 July, with the collapse on 4 July being caused by seizure activity, but from the history provided by the family it appears this was not so; d) it is more likely that the events from 2 July were caused by an initial shaking injury which led to Y becoming acutely unwell and remaining unwell into 4 July, but with the more substantial collapse on 4 July more likely being caused by a second traumatic event then, rather than as a consequence of trauma from 2 July; e) Y’s neurological injuries from 2 July would not have worsened but for a further event which he believed occurred on 4 July; f) he “did not like at all” the proposition of a single trauma on 2 July explaining Y’s presentation on 4 July. 200). Mr Calisto’s view too was that “the most likely presentation explanation in my view are two separate traumas on the 2nd and the 4th. I do not exclude there being one event on the 2nd, followed by a sudden seizure type event on the 4th, but my overall impression from the histories and findings I have seen would, in my opinion, favour two different events.”. 201). Mr Jayamohan was asked why he dismissed the possibility that Y’s presentation on 4 July was seizure activity resulting from an event on 2 July. Both this and repeated events were possibilities, he said. There was no evidence of cortical injury from 2 to 4 July. The scan of 4 July did not show significant effusions over the brain causing pressure, unlike the scan of 5 July. What he saw was fresh, not two days old. It did not fit with coming from 2 July. There was not a two-day waiting period to start an effusion. 202). However, Y’s haemoglobin on 2 July (83) was some 30 or 40 below normal which indicated there had already been bleeding. Absent bleeding elsewhere (and a nosebleed would not account for the lowered haemoglobin) Mr Jayamohan thought it logical that there had been bleeding in the head by the time of the blood test on 2 July and so both dates were contenders for two different traumas. 203). Referring to the more significant collapse on 4 July, Mr Jayamohan said that Y was a very sick baby. On 2 July he recovered rapidly and was discharged with review on 3 July and discharge again. There were no significant concerns about loss of brain consciousness. On 4 July Y needed intensive care. It was difficult to explain that history without a traumatic event on 4 July. 204). Dr Nawaz considered that the drop in haemoglobin on 2 July looked at in isolation could be entirely normal and did not, for him, tip the scales in favour of an incident. 205). Mr Jayamohan noted the parent’s history that Y had taken a 5oz (full) feed at 06:30 on 2 July. B says he finished his second feed at 08:45. The 999 call was at 09:30. Between those last times (08:45 and 09:30) there was a collapse. If the cause was shaking then the collapse to the point of needing resuscitation was most likely to be very closely associated with the timing of the shaking. If he took 5oz of feed he had not collapsed at that point. It may have been earlier than when B found him in his bouncer. 206). In response to a question from Ms Grief KC, Ms Jayamohan said that if the court accepted that A relinquished care of Y to B for feeds at 06:30 and 08:20 on 2 July and he was then discovered by B in a state of collapse, the chances of Y having suffered injury before care was relinquished to B was “as close to can be excluded as it comes”. 207). Mr Jayamohan agreed with Ms King KC (aligned with Mr Calisto) that, from the radiological presentation, all Y’s head injuries could have been caused on 4 July. Many of the symptoms between 2 and 3 July could be caused other than by brain dysfunction – vagal episode or reflux/milk intolerance (given the feeding difficulties then). 208). Dr Nawaz’s evidence about what might have happened around 2 to 4 July was tied in with discussion about BRUE, in respect of which see the discussion below. He accepted that, on its own, his condition on 2 July could be a BRUE but in context and retrospect that was not an appropriate diagnosis. 209). Dr Nawaz was clear that Y’s sudden deterioration and serious condition requiring intensive care on 4 July was consistent with a shake well within the preceding 24 hours. He was less clear whether there was a shaking incident on 2 July. Had there been he might have expected a more serious deterioration in condition at that point rather than the relatively low-level presentation and concerns such that he was discharged from hospital on both 2 and 3 July. Either he was shaken on 2 July or that incident remains unexplained. The safe thing to say, Dr Nawaz said, was that because of the overlap of symptoms it was difficult be sure whether there was one shaking or two. Presentation 210). Dr Williams said that the symptoms and signs of non-accidental head injury (NAHI) are varied, variable and non-specific ranging across a spectrum from just going quiet to vomiting, reduced levels of consciousness, abnormal movements and seizures to frank coma and, at the severest end of the spectrum, death. What distinguishes these cases is, says Dr Williams, not the size or extent of subdural bleeding but the severity of any associated brain injury, typically as a result of HII (not present in Y). Where bleeding is extensive and uncontrolled this may lead to mass exerting and raised intracranial pressure but this is not common and again was not present in Y to any significant degree. 211). The brain can also be injured directly by acceleration/deceleration forces which cause a shearing injury (DAI)) which Dr Williams did find in Y. These, he said, are ‘tip of the iceberg’ injuries, so that what is seen on imaging (sometimes nothing) does not truly represent the severity or totality of the actual injury. 212). Where there has been an episode of NAHI of sufficient severity it is likely, said Dr Williams, that there will, at the time of the traumatic event, be a change in behaviour of the child, the degree and magnitude of which will reflect the severity of the brain injury, as will the rate of progression of symptoms. 213). Mr Jayamohan noted that Y had been intubated for 12 days, which was unusual, and explained by ongoing brain injury and resulting seizure activity, indicating brain dysfunction. This is what caused him to be so unwell from 4 July. Had he not been intubated he would have suffered an HII. 214). Dr Nawaz said that Y’s clinical presentation on 4 July 2023 was likely to be related to the injury to his brain. His presentation at home and his subsequent deterioration in the emergency department were consistent with the timeframe and radiological findings. 215). It was clear, said Dr Nawaz, that from the time of his transfer from ED to CAU on 4 July and his first MRI Y was suffering seizures indicating abnormal neurology by that stage. He accepted the duration of his stay in ICU was likely because of the seizure activity which was difficult to manage because of the seriousness of the brain injury. 216). Dr Williams, Mr Jayamohan and Dr Nawaz, while acknowledging Y’s better than expected recovery so far, are guarded as to prognosis for full recovery. He may go on to develop cerebral palsy, developmental delay and epilepsy.

Differential diagnoses

[218]Metabolic condition 217). From a radiological point of view Dr Williams saw no metabolic condition which might explain the head injuries. 218). Dr Sally Kinsey, haematologist, reported that Y does not suffer from any innate haematological disorders which may cause spontaneous bruising or bleeding or prolonged or excessive bleeding after a traumatic incident, nor was there any clotting abnormality. 219). Dr Jayamohan gave evidence before Professor Saggar and premised his opinion therefore on Professor Saggar’s report which concluded that there was no more than a 50% hypothetical risk that Y had inherited HSD. But assuming Y had inherited HSD, Mr Jayamohan said that related to capillary fragility and did not explain the effusions and very clear brain dysfunction. The court might, he said, decide that some of the bleeding was explained by capillary fragility but that would have to be seen in parallel with the other findings, not instead of them. If HSD had caused some bleeding, that was not related to the events of 2 or 4 July. 220). Mr Jayamohan explained that HSD may affect capillary fragility but not vein fragility nor the ability of blood to clot. Clotting (thrombosis) may be affected by holes or tears in blood vessels (which may be caused by collagen diseases) but this is not seen with HSD, unless Professor Saggar said otherwise (he didn’t). 221). Further, Mr Jayamohan pointed out, once the ventouse/forceps bruising had resolved, there was no history of bruising in the intermediate period (save for a mark on his abdomen which may or may not be a bruise), nor was there any suggestion of capillary or veinous fragility when Y was in hospital after 4 July having a lot of needles put in him – “real life excluded [vascular disorder] for Y”. 222). Professor Saggar on the other hand said that the greatest problem with HSD is capillary fragility leading to bruising, but it also affects the veinous system and can weaken bridging veins. It does not affect arteries. He stressed that many ambulatory children jump around and do gymnastics without presenting with bleeding and they may be more resistant. Further he did not accept that greater fragility within the bridging veins would increase the potential for thrombosis of the bridging veins, although that was not his expertise. He referred to clotting as a reaction rather than primary cause. Birth injuries 223). Dr Williams considered the possibility of birth injury, acknowledging that Y experienced a traumatic birth but noting that the ventouse and forceps marks seen were typical in children using these devices and that Y was born in good condition with little clinical concern regarding his appearance or demeanour. 224). Despite the cephalohematoma, which resolved within 2 weeks, the CT scan of 4 July showed no scalp soft tissue injury. 225). The subdural bleeding (which occurs in around 10 to 50% of births – the highest following failed instrumental deliveries – and mostly resolves by 4 weeks, or 6 weeks at the latest, so that it is no longer evident on scans) was much too recent and could not date back to birth. 226). Dr Williams was clear that birth could not be responsible for the enlarging subdural effusions, thrombosed bridging veins or recent intraspinal haemorrhage. 227). Mr Jayamohan was also asked about the possibility that any of the presenting head injuries could have been caused at birth. He accepted that more instrumentation would indicate a more traumatic birth and there was here a fair degree of intervention. There was considerable risk, more than 50%, of asymptomatic subdural injury. Brain dysfunction could cause symptoms such as projectile vomiting and grunting but there was no evidence of anything pressing on Y’s brain or old injury. There may have been an old bleed, absorbed usually within 4 weeks without causing any problems. The lack of membranes or old blood suggested no evidence of chronic bleed. 228). Dr Nawaz said if there had been brain injury at birth Y would have shown ongoing abnormal behaviour around feeding, drowsiness, movement and possible seizures. He discounted brain injury caused at birth. Brief Resolved Unexplained Events (BRUEs) 229). Both Dr Nawaz and Mr Jayamohan discussed BRUEs. Dr Nawaz explained them as having a premise of a short event with condition returning to baseline and normality. It is a retrospective diagnosis applied only once other explanations have been considered and excluded. Y’s parents continued to have concerns about his presentation after discharge from hospital on 2 July, phoning later that evening and taking him back the next day saying he was still unwell. In context it was unlikely that his condition on 2 July could properly be described as a BRUE as there was much else going on. Paediatricians, Dr Nawaz said, do not like BRUEs as they like to understand what is going on. He thought it better to describe what happened on 2 July as either the result of a shaking injury or an unexplained episode rather than labelling it a BRUE. He accepted that children may have more than one BRUE if that is the diagnosis. 230). Mr Jayamohan accepted when questioned that the collapse on 2 July could have been a BRUE save for Y’s low haemoglobin count of 83 g/L, some 30 or 40 below normal. This was not explained by a bleed elsewhere and not by a nosebleed if that happened. 231). Dr Nawaz accepted that Y’s presentation on 2 July could be consistent with a BRUE. He noted Y’s haemoglobin count at 83 g/L on 2 July, 84 on 4 July then 62 on 5 July. The first level of 83 on 2 July was low but that could be physiological in the first few months after birth. The drop to 62 was abnormal with the most likely explanation being blood loss. 232). Dr Nawaz agreed that a BRUE (or, I would accept, any unexplained collapse, whether or not a BRUE) would be a frightening event for a carer and parents are advised not to shake the baby in such a situation. 233). Mr Jayamohan said that, in isolation, it was reasonable to consider a BRUE on 2 July. He made the point that while Y may have presented with a BRUE on 2 July it did not remain unexplained following his collapse, examination and findings on 4 July. It was, he thought, unlikely that there would be two unrelated BRUEs on the two dates (although infants can present with numerous BRUEs). 234). Ms King KC also explored the possibility of a BRUE on 2 July with Mr Jayamohan, pointing out some applicable criteria – age, changes in consciousness, tone and breathing and the transient nature of the event. Mr Jayamohan accepted that symptoms of gastroesophageal reflux, a GCS of 13/15 and the need for resuscitation might all fit for a BRUE. 235). Dr Nawaz was asked by Ms King KC about a longitudinal study by Duncan and others A Prospective Study of Brief Resolved Unexplained Events: Risk Factors for Persistent Symptoms: Duncan et al Nov 2022 Hospital Paediatrics examining 124 subjects over a 2 month follow up period. 86% reported symptoms following discharge with 15% requiring re-admission to hospital. High anxiety was reported in what one might think was a relatively modest 31% of caregivers. The conclusion was that many infants admitted with BRUE have persistent symptoms and continue to access medical care, suggesting that current management systems insufficiently address persistent symptoms. 236). It was not clear that Dr Nawaz had seen the Duncan paper so with the court’s agreement Ms King KC put some questions to him by email after his evidence when he had had a chance to review the article. He maintained his position that neither 2 nor 4 July was a BRUE, making the point again that there was a medical reason for Y’s collapse ie head injury and so the event was not unexplained. Ms King KC said in submissions that this would normally have been the start of a conversation with Dr Nawaz. Absence of retinal haemorrhage 237). Dr Jayamohan accepted that retinal haemorrhages are typically seen in shaking cases but between 11 and 39% of abused children do not have them. I wondered why, if Y had suffered shearing forces sufficient to cause axonal injury, he had not also suffered retinal haemorrhage. Dr Jayamohan said he is not ophthalmologist and would not be looking at the eyes but he frequently dealt with cases where there had been clear trauma but no retinal haemorrhages. Absence was neither a pro nor con and formed no part of his assessment. Dr Jayamohan accepted it might influence the court’s decision, but not his neurological decision. Asphyxiation 238). Dr Nawaz thought the reported blood in Y’s nose could be a significant indicator of asphyxiation. Mr Jayamohan said that asphyxiation does not cause effusions, subdural bleeding or changes in white matter. The absence of HII militated against asphyxiation for any longer than seconds. Seizure activity and shearing injury 239). Mr Jayamohan was asked whether shearing injury could be caused by seizures. Seizures have many causes but result from trauma. Shearing injuries are associated with significant trauma. Mr Jayamohan said if Dr Williams said shearing injuries are not caused by seizures, only by trauma, that would exclude seizure as a possible cause. This was a question, he said to put to Dr Williams. 240). It was not planned to call Dr Williams to give oral evidence. Notwithstanding that, it transpired he had been scheduled to give evidence on 11 November when, in the witness template, the parents were due to start their evidence. Anxious to avoid delaying their evidence, questions were put to Dr Williams in the hope his attendance could be avoided. 241). Dr Williams provided an addendum report on 8 November as a result of which no party wished to call him for questioning. Dr Williams was asked whether the restricted diffusion and DAI could be caused by seizure activity following injury and, if so, whether that was possible or probable. In response he said: a) seizures cause cortical restricted diffusion but classically in the medial temporal lobes, not seen in Y; b) punctate areas of restricted diffusion are not associated with seizure activity; c) the pattern is more in keeping with a shearing injury; d) not all shearing injuries will be associated with haemorrhage; e) as the haemorrhages can be very small there can be a DAI with no or very limited imaging findings – ‘tip of the iceberg’; f) thus, the imaging is not consistent with seizure activity; g) shearing is the most likely cause; h) it is probable the findings are in keeping with DAI. Accidental trauma 242). Dr Williams also considered the possibility of accidental damage but considered that the pattern of multifocal intracranial subdural bleeding, subarachnoid haemorrhage, thrombosed subdural bridging veins, subdural effusions and a shearing injury, were highly unusual injuries in domestic accidental trauma the vast majority of which are low level. 243). Further he considered that spinal subdural haematoma was uncommon in accidental trauma. 244). Rather the pattern of injuries seen here would be associated with high force accidental traumas such as road accidents and falls from very large heights. 245). B had described running up the stairs with Y on 2 July. Mr Jayamohan said that if Y’s head was unsupported such that there was excess movement of his head essentially in a shaking movement that could be an appropriate mechanism for the head injuries. B’s description of a ‘little shake’ 246). Dr Williams discounted B’s description of a ‘little shake’ as lacking the necessary force and back-and-forward motion required to explain the injuries. He acknowledged that resuscitative shakes are a common response by carers to acute life-threatening events (ALTE, now BRUE), happening in around 1/3rd of such cases, but literature suggested that all infants recovered without neurological abnormalities by the time they arrived at hospital Surveillance study of apparent life-threatening events (ALTE) in the Netherlands: Semmokrot et al, Eur J Paediatr (2010) 169: 229-236 . This matched experience in practice. 247). Mr Jayamohan too was clear that B’s statement did not explain these injuries in any way. 248). Both Ms Grief KC and Ms King KC put to Mr Jayamohan a hypothetical question (because these were not B’s instructions) whether, if B said in fact that he panicked when Y collapsed and shook him in that panicked state, that might explain the effusion (or, one might suppose, an axonal injury). Mr Jayamohan accepted that might be a sufficient mechanism, depending on the degree of force used, repeating that he was not “here to determine intention”. Other possible causes 249). Dr Williams considered that X would not be able to inflict these injuries and nor could they be self-inflicted. The parties’ submissions The local authority 250). Mr Morgan started his written submissions by acknowledging that much of the evidence identifies B and A as loving parents with two very much wanted children whose basic care needs were met to a high standard and where many of the positive factors noted in Re BR were present. Where Ms King KC submitted that there was no evidence to suggest that B is the type of father ‘to impulsively attack his child and sadistically inflict injuries on him’, Mr Morgan was quick to say that such a suggestion had never formed part of the local authority’s case. He said the local authority had tried to be measured and proportionate about B’s frustrations and parenting when stressed. At most this was a case of loss of control. 251). Despite the positives, says Mr Morgan, this is a case where a 5 week-old baby suffered life threatening brain injuries in circumstances where one of his parents is aware how they were caused. There has been concealment and manipulation by that parent of the court, professionals and the other parent. 252). There was a high level of stress on the mother in her care of X before Y’s arrival and afterwards in the negative interactions with B evidenced by the messaging and what she said in her police interview. A’s ongoing issues with anxiety are relevant parts of the evidence as to the tensions within the home where she felt emotionally unsupported. Mr Morgan suggests that A tried to minimise the extent of her anxiety about B’s emotional regulation around the children by saying he responded positively when she spoke to him about it. Her evidence that she had no concerns about risk of physical injury in the context of B’s anger needed to be seen in the context of her rejection of any prospect that he had harmed Y, despite the medical evidence. 253). B accepted what A said about him shouting and swearing at the children, becoming angry (he said frustrated) and that he was not a cuddly person. Mr Morgan points to the messaging as evidence that B struggled to adapt to Y’s needs and demands on him to get up early to deal with feeds after nights when both parents were awake. There were more times, says Mr Morgan, when Y was left in B’s sole care than that ofa. A. 254). In relation to the rib fractures Mr Morgan submits: a) there is now no substantial issue between Dr Johnson and Watt about timing of the rib fractures which excludes B’s attempts at CPR on 2 and 4 July; b) they agree rib fractures rarely occur as a result of birth; c) they were agreed about the force necessary; d) at the time of the fractures Y would have been in obvious pain and distress (Dr Nawaz); e) given Dr Nawaz’s neonatal experience he is well placed to given an opinion about the rarity of rib fractures at birth and his clear view that there was nothing in the evidence to explain multiple fractures; f) according to Professor Saggar: i) even if Y has HSD there needed to be a precipitant force and mechanism more than normal handling to explain the fractures and he would not suffer less pain (Professor Saggar); ii) it is a contentious issue whether HSD could be associated with ‘lesser force’ fractures in babies; iii) children with bone density loss through demineralisation did not present with fractures; g) I should treat with caution, as did Dr Nawaz, Professor Saggar’s ready acceptance of apparent easy bruising or marking in hospital as indicating HSD, particularly given Y’s lack of propensity after discharge. 255). As to the brain injuries Mr Morgan submits: a) all experts (including Dr Calisto) are agreed on the likely mechanism as severe rapid acceleration/deceleration forces caused by Y being shaken; b) the DAI was not caused by seizures (Dr Williams) and is closely associated with abusive head trauma (Dr Nawaz) and usually seen outside, not in a domestic setting (Mr Jayamohan); c) according to Mr Jayamohan the spinal blood was not tracked from the head and he offered a mechanism for blood originating in the lower spine (uncontrolled movement of the pelvis); d) the experts agree that multi-focal intracranial subdural bleeding, subarachnoid haemorrhage, thrombosed bridging veins, subdural effusions and a shearing injury are all highly unusual injuries to encounter in an accidental trauma especially in a domestic setting; e) there was consensus as to timing – within 24 hours of the causative incident (Dr Nawaz) and the time of CPR being very closely associated with injury with an immediate effect of breathing difficulty, collapse and subsequent seizure activity (Mr Jayamohan). 256). Mr Morgan contrasts the parents’ description of Y during his first 5 weeks as having jaundice, being unsettled, not feeding well, having irregular breathing or grunting, projectile vomiting and having poor sleep with their descriptions during police interview and as recorded by the midwife and health visitor, with the suggestion that the more serious presentation now advanced is a retrospective characterisation of his condition to explain or contribute to his collapse. 257). In fact, says Mr Morgan, the change in Y’s condition seems to come around 21 June 2023 when A took him to the GP for the first time; this a potential indicator for the point at which Y may have suffered rib fractures. 258). Dr Nawaz does not suggest any underlying condition that might explain his presentation on 2 and 4 July 2023. He was not failing to thrive. 259). As to the suggestion of one or more BRUEs on 2 and/or 4 July Mr Morgan relies on Dr Nawaz’s interpretation of this as a retrospective diagnosis of exclusion, leaving unexplained cause. Such a diagnosis depends on the court investing a great deal of weight in B’s account, including that he did not shake Y. Dr Nawaz also said that the premise for a BRUE had to be return of overall condition to baseline and normal. He maintained his position in his email in response to questions. 260). Mr Morgan points to some inconsistencies or unsatisfactory aspects in B’s account of 2 July: a) in his police interview he said he was in the kitchen for 2 minutes before finding Y unresponsive; this stretched to 5-10 minutes in his initial statement; b) he told the police (and in oral evidence) that Y first sucked in air as he was running upstairs with him; in his initial statement he said that happened as he was performing CPR; c) varying accounts about whether he called out to A; d) why he stopped CPR as soon as he did; e) his description to the police of carrying Y upstairs against his chest and over his shoulder without any suggestion he had allowed Y’s head to flail, consistent with A’s description of how B was holding him when he came into the room; f) the paucity of detail in his account between 06:30 and just before 09:30 when the ambulance was called. 261). Both Dr Williams and Dr Nawaz raise the real possibility of a shaking injury on 2 July, although Dr Nawaz was cautious. Mr Jayamohan was more confident of shaking injuries on both days. Mr Morgan submits that a shaking injury on 2 July cannot be excluded and provides a better explanation in the wider context of Y having a significant number of rib fractures than a child having a BRUE or unexplained event and then going onto suffer significant brain injuries two days later. 262). If indeed B sought to resuscitate Y [by shaking] it is surprising he has not shared that given the alternative scenario of loss of control. 263). Mr Morgan points to the wider canvas evidence in relation to B’s anger and frustration, the evidence of A intervening and talking him down with a focus on what Y needed, the lack of any description by B of frustration with Y on A’s part and her begging him to tell her if he had done something without similar requests from him to her as justifying a finding of sole perpetrator rather than a pool. 264). In relation to a finding that neither parent accepted in evidence that the other parent could have caused Y’s injuries, Mr Morgan seeks an accurate record by the court of each parties’ positions for the purpose of the next stage in the proceedings. A 265). I can deal with Ms Grief KC and Mr Duncan’s written submissions briefly because they were premised on no finding being sought against A. She pointed to A’s efforts, despite the trauma of separation over 70 weeks from her children without knowing what caused Y to become so unwell, to assist the court with its enquiry. Ms Grief KC described A’s evidence as helpful, frank and honest. 266). Ms Grief KC points to the following protective factors regarding A: a) the lack of any evidence that A’s anxiety disorder/baby blues had ever impacted the children’s welfare; b) the way in which she had engaged with services demonstrated her awareness and ability to manage her own support needs; c) regular access pre and post birth to health care and medical appointments, advocating Y’s health needs despite reassurance by health professionals and discharge from hospital; d) a well-kept, clean and tidy house with plenty of children’s food, toys, bedding and clothing evident; e) attuned emotional care; f) lack of concerns about interactions between either parent and the children in contact post-removal and their commitment to travelling hundreds of miles to see them. 267). A finding is sought by the local authority that the non-perpetrator parent would not necessarily have been aware that Y had been injured. Ms Grief KC goes further and, praying in aid Dr Nawaz’s clear evidence, seeks a finding, given their binary nature, that A was not aware. 268). In relation to Professor Saggar’s evidence about HSD, Ms Grief KC submits: a) the diagnosis gives rise to the potential for greater bleeding than otherwise might be expected but not spontaneous bleeding; b) Professor Saggar agreed that a diagnosis of HSD would affect the capillaries and veinous system and agreed it could theoretically extend to the bridging veins, while expressing some caution as to forces engaged – it would not explain subdural effusions of axonal damage; c) Professor Saggar accepted a lesser force might be required to cause fracture, but still forces outside normal handling. 269). In relation to the finding sought that neither parent accepted the other could have caused the injuries, Ms Grief KC questions: a) the appropriateness or necessity of such a quasi-finding of failure to protect where failure to protect is not pleaded; b) the utility of such a finding in relation to threshold in circumstances where A’s evidence is accepted by the local authority as credible to the point it is used as part of their case that B can be identified as perpetrator; c) the accuracy of the finding sought where A was not denying B had the physical ability or opportunity to cause the injuries, or that he had actually caused them, but merely asserting that she did not honestly believe him capable of causing the injuries but was open to the possibility, evidenced by her begging him to tell her if he had done something. 270). In fact, says Ms Grief KC, there have been avenues and live issues that require exploring through this fact-finding process and A, who does not know what happened, is entitled to await the court’s determination before having to embrace the notion that her husband is capable of causing their baby’s injuries. 271). Ms Grief KC had not expected to need to supplement her written submissions orally to any great extent until she saw the submissions on behalf of the children’s guardian. These appeared to leave hanging a possible pool finding including A. Ms Grief KC questioned the appropriateness of such a submission without fore-warning and where the local authority sought no such finding. 272). Ms Storey-Rea made clear in her submissions that the guardian remained neutral as to findings while pointing out all potentially relevant evidence for the court’s consideration. 273). Ms Grief KC invites a clear and unambiguous finding that A is exonerated in relation to any of Y’s injuries. B 274). In their detailed submissions Ms King KC and Ms Chapman submit that: a) B has stood firm at all points, despite clear invitations to reflect on his position, that he has not injured Y; b) he maintains A did not do so; c) whatever happened, the injuries were not intentionally inflicted; d) the medical evidence is complex and presents the court with challenging questions; e) B can only set out his sequence of events and there is no burden on him to provide an explanation for how the injuries were sustained. 275). B accepts: a) there were rib fractures as described but not that they were inflicted – the court must look elsewhere for an explanation; b) that there were widespread multifocal acute subdural effusions anteriorly over each frontal lobe, subarachnoid haemorrhage, thrombosed subdural bridging veins and extensive intraspinal subdural haemorrhage extending from the mid-to-lower thoracic region into the sacral canal; there is less cogent evidence about the diffuse axonal/shearing injuries with a question mark raised by Mr Jayamohan about that being caused by seizure activity; c) he puts forward no incident which involved him shaking Y with the forces described to him in hospital as being equivalent to a car crash (including running up the stairs at speed on 2 July); d) on 4 July he panicked and tried to revive Y by a motion which involved shaking as first mentioned in response to a direct question from A; e) the preponderance of the medical evidence points to the probability that the force used giving rise to the head injuries was beyond any normal handling or play, while not being able to identify any occasion when he used such force. 276). Ms King KC further submits: a) if Y has HSD there may be greater propensity to bleed which may explain some of the bleeding in the head; b) the brain injury may have been caused by seizure activity following two BRUE-type/unexplained events leading to Y’s collapse; c) if the court concludes there was a shaking event, that is likely to have occurred on 4 July only and not on 2 July and, in that event, the court should confine itself to rib injuries and injuries sustained on 4 July; d) there is insufficient evidence to conclude that what happened on 2 July was other than an unexplained event or BRUE, (as appears to have been accepted by the local authority before their written submissions). 277). Ms King KC describes B as an uncomplicated, calm, stoical, steadfast, consistent and manifestly honest witness who volunteered information against his own interests and who, faced with A’s emotional response, has had to keep the ship steady in troubled waters. 278). He is clearly devoted to the children, there were no concerns about his care of X, the parents had additional support in the early weeks of Y’s life from the maternal grandparents, he had much to be grateful for – a good and loving relationship with his wife, no pressures outside the normal stresses of a new-born child and toddler in nursery, a job he enjoyed which provided flexibility in the first few weeks back at work. Despite the usual search of the parents’ phones there is no ‘smoking gun’ text. Referring to X as ‘idiot’ when he has done something silly is nothing more than letting off steam. There is nothing as a precursor to inflicting injury or suggesting B was at the end of his tether. 279). Nor is there anything in B’s character or past or life at home which suggest risk to a child in his care. It is, says Ms King KC, a leap too far to find that a parent expressing frustration vocally is likely to go on and inflict injury. There was no point when A had to physically intervene (and she said in evidence she would have done so had she thought it necessary). There were in fact only two occasions when she intervenes through messaging. There is no evidence from A (who the local authority accept is a credible witness) that Y was distressed or fractious or that B was frustrated or shouting on either 2 or 4 July. In fact, there is a complete absence of evidence to suggest any problem at all in the moments leading up to Y’s collapse on either date. 280). This wider canvas suggests a more likely version in which B found Y unresponsive before CPR, resuscitative shake and running up the stairs on 4 July (Mr Morgan pointed out there is in fact no evidence he ran up the stairs on 4 July). 281). Since his birth there have been increasing concerns about his wellness and behaviour around feeding, irregular breathing, being unsettled and projectile vomiting on two occasions, with colic and reflux suspected and finally milk intolerance. There were two GP appointments on 21 and 30 June and no attempt by B to hide Y from view. 282). In relation to HSD Ms King KC submits: a) at the start of his evidence Professor Saggar could not discount Y having HSD accepting that ‘absence of evidence is not evidence of absence’; b) he said it is very difficult to diagnose HSD on the basis of clinical assessment until the age of 5; c) by the end of his evidence he accepted the balance had tipped in favour of Y having HSD in a form related to EDS (and Ms King KC set out the indicative features – maternal HSD, hypertelorism and epicanthic folds, tapering fingers, slow growth in utero, mottled skin, red skin markings, vulnerability to easy marking and bruising); d) the marks to the abdomen and arm or leg mentioned by the parents are also in keeping with Professor Saggar’s description of marks reflecting skin hypersensitivity that disappear quickly without discolouring like a bruise.; e) Professor Saggar is the specialist in this area and his evidence is to be preferred to the more cautious approach adopted by Dr Nawaz; f) given the evolving nature of understanding what HSD might mean for a child and the understanding that it can manifest differently in different people, the implications of Y having HSD are unclear; g) the assertion by the local authority that there is insufficient evidence to find a propensity to fracture reverses the burden of proof; h) rather the court must consider this potential vulnerability to fracture in the context of all the evidence, medical and otherwise; i) even so, it is acknowledged that the causative event for both rib fractures and head/brain injuries would have to be memorable if injury were inflicted and no memorable event is proffered save for the collapses on 2 and 4 July themselves; j) B does not chase the medical evidence by latching onto the possibility of resuscitative shake, nor does he seek to implicate X. 283). In relation to the rib injuries: a) B continues to raise the potential compressive forces involved in the birth process, which may needed to be less forceful if Y has inherited HSD; b) while the radiologists’ window of 25 May to 22 June 2023 is accepted it is not accepted the evidence suggests change in Y’s presentation around 21 June 2023 with consistent evidence from both parents of issues ongoing from birth albeit getting worse; c) in relation to Dr Nawaz’s opinion that Y would at the time have been in pain and distress, if the compressive forces occurred at birth (as the radiological timing permits) the pain and distress may have gone entirely unnoticed, while following birth the parents were advised that Y might be in pain from the instrument delivery so that any consequential pain response may have been mistaken for him being generally unsettled from that; d) in relation to ongoing pain response: i) pain responses vary from child to child and at no point has Y been described as crying more upon handling; ii) he has presented as unsettled and irritable since birth with no change in this presentation to suggest a rapid worsening of health; iii) the only real change was new grunting noises (initially A said she thought he was snoring) which she researched and sent B a link; iv) it was A’s ‘mother’s intuition’ that led her not to accept the midwife and health visitor opinion that Y’s ongoing presentation was just normal; e) in relation to timing, the fractures are likely to have happened at the same time and could have happened at birth such that the parents would be unaware; f) this does no more than open the door to the possibility that the injuries occurred at birth which, although according to Drs Johnson, Watt and Nawaz is very unlikely, could be the explanation, especially when considering the possibility of the outlier child whose pattern of injury or physical condition defy expectations and the odds; g) there are several confounding features with the birth: i) it was not straightforward; ii) he was in the transverse position until a late stage in labour; iii) manual rotation was attempted prior to use of instruments; iv) two attempts at ventouse and thereafter forceps; v) the description of ‘severe birth trauma’; vi) compressive forces at play which were unclear because the labour notes are described by the hospital itself as poor; vii) significant visible swelling on the right occiput, marked bruising to the forehead and frontal area of the scalp and cephalohematoma; viii) A was told to expect pain as a result of the swelling to the head; ix) Dr Nawaz is giving an opinion based on poor notes and paucity of information; h) absent any evidence that Y was crying more than normal during the fracture window and given A’s evidence that Y did not like lying down throughout his presentation is more consistent with the fractures having been sustained at birth rather than from an inflicted injury after birth; i) while the number of fractures diminishes the prospect of them resulting from the birth process, this needs to be considered in the context of underestimates of birth rib fractures as accepted by Dr Nawaz. 284). In relation to the brain and spinal injuries Ms King KC submits: a) while the other head/spine injuries are accepted there is a lack of certainty about axonal injury having been proved to be as a result of shearing force; b) the experts were uniformly clear that the injuries could be attributable to 4 July; c) Dr Williams said the imaging appearances could be explained by one episode of trauma/shaking; d) Dr Calisto said the radiology was compatible with a single event and, while postulating about cause of the collapse on 2 July 2023, said there was no evidence to support multiple incidents; e) Dr Nawaz said it was more likely the head injury was sustained not long (minutes more likely) before he was found unresponsive by his father on the evening of 4 July alternatively but less likely on 2 July; f) while suggesting there may have been an additional shaking on 2 July, neither Mr Jayamohan nor Mr Calisto believe the injuries on 4 July were a continuation of an injury sustained on 2 July; g) A, despite being the sort of mother who would be alert to crying, heard nothing untoward on either 2 or 4 July. 285). The simple answer, says Ms King KC, is that Y collapsed on 2 July. This has been B’s unchanged and unvarnished position, unembellished by version creep or medical evidence chasing. Neither was B the first to postulate a BRUE, it having been mentioned by Dr Nawaz and Mr Calisto in their reports (although then discounted) and accepted as a possibility by Mr Jayamohan in his evidence, subject only to the low haemoglobin count. This was addressed by Dr Nawaz who thought the initial low count could be physiological. Mr Jayamohan had left the question of low blood count to Dr Nawaz to comment on. Dr Nawaz had done so confidently, making clear it was not determinative. 286). It was clear from the expert evidence that children can experience more than one BRUE. Mr Jayamohan said they are often related to a chronic underlying condition and the general unwellness observed by the parents could have been related to whatever caused the collapse on 2 July. 287). While Dr Nawaz had responded to Ms King KC’s questions about the Duncan paper saying that what was seen on 2 July was not a BRUE because of the continuing symptoms, nowhere in the paper is it suggested there had been a reclassification of the diagnoses originally made, even where there was a recurrence of the BRUE. In fact the research suggested the need to be alert to continuing symptoms and possible recurrence of BRUE. It was difficult to understand, says Ms King KC, why the local authority is so opposed to the idea of Y’s collapse on 2 July being a BRUE. Alternatively, Mr Jayamohan and Dr Nawaz indicated that the collapse on 2 July may remain unexplained and this the local authority has accepted as an equally likely event to shaking. 288). Ms King KC stresses the importance of cogent evidence for a finding that there was a shaking on 2 July and, given the lack of clear evidence and the adjusted position of the local authority, submits that the court must conclude there is insufficient basis for a finding of shaking on 2 July. 289). Ms King KC puts as a further alternative Mr Jayamohan’s acceptance of the motion of an unsupported head as B ran up the stairs with Y as a possible mechanism for the injuries on that day. 290). When B found Y on 2 July he was in a state of collapse. The court could accept his evidence that he did not call out to A immediately out of concern to keep the situation calm, particularly given her heightened distress noted by the ambulance crew (and how emotional she was in the witness box). 291). There were clearly continuing concerns about Y’s condition on 3 July which the experts’ accepted could equally be attributed to him as being unwell as injured. This was not the precursor to collapse on 4 July. 292). Ms King KC expressly accepts that it would be naïve not to acknowledge that the weight of the medical evidence is against B in respect of what happened on 4 July. But that is not the only evidence which the court must weigh in the balance: a) there was nothing in the evidence to suggest in the short time between B’s return home after collecting X (17:45 to 18:00) and the emergency call at 18:14 to suggest heightened tensions in the household; b) A did not hear any ruckus, raised voices or crying downstairs; c) both parents said Y was asleep or drowsy when B picked Y up from the bed and did not stir thereafter (although A was herself half asleep at this point); d) B did not feed Y immediately before his collapse; e) for B to have silently lost his temper within a few minutes when Y was lying recumbent in the baby chair defies logic and would be entirely out of keeping with all other aspects of his parenting; f) in fact, confronted with a child who could not be brought back to life with CPR and in a state of panic, B tried to rouse Y with what he thought, and still thinks, was a modest shake; g) it is understood that, even with a propensity to bleed, there would need to be an event which was out of the norm and involved extra flexion of the neck causing acceleration/deceleration of the head; h) the court is asked to accept that B has maintained his position in face of entreaties by the mother and the court to ‘come clean’; I would not characterise my invitation to B to reflect as an entreaty to ‘come clean’ as Ms King KC does but, in any event, he maintained his position to both A and the court and Ms King KC asks me to accept that is because he is describing what he remembers; i) and so I am asked to consider whether a further BRUE or unexplained event happened on 4 July too but this time without the quick recovery seen on 2 July and requiring more action; j) Dr Williams’ radiological opinion that a resuscitative shake does not explain the injuries will have to be considered against the other medical evidence, including that of clinical experts who see, examine and treat children and who say that such actions have been found to be a likely cause of brain injury; k) both Mr Jayamohan and Dr Nawaz said that motive was unimportant, only mechanism and forces were relevant to causation; l) on the question why B did not speak about the shake sooner, Ms King KC sets out a context in the days following 4 July when there was real concern Y might die, with the parents being told about the shake being a violent one akin to a car crash, most likely through loss of control; in this context it is unsurprising it is submitted that B did not recognise what he did as being relevant; m) this was also the context within which A later asked him questions with, according to A, B looking shocked at being asked and ‘crushed’ before mentioning the shaking motion on 4 July; n) Mr Jayamohan was clear that Y was so unwell from 4 July for such a prolonged period because of seizure activity, a view supported by Dr Nawaz who was confident that Y was fitting before he arrived at hospital indicating abnormal neurology; o) Mr Jayamohan also considered that seizure activity as an alternative explanation for diffuse axonal injury rather than shearing as valid and perhaps preferred, having seen similar areas of restricted diffusion potentially ascribed to seizure activity in other cases and his own clinical practice; p) this differential diagnosis was supported by the agreement between Mr Jayamohan and Dr Williams that there was no evidence of contusions; q) Mr Jayamohan was confident that seizures would not cause effusions or bleeding and, while he deferred to Dr Williams about the areas of restricted diffusions, he did not think that anything Dr Williams said would change his view about that; r) although Dr Williams maintained that shearing was the likely cause of the restricted diffusions he did not rule out the possibility and so the court is left with Mr Jayamohan having a view that seizure activity was the cause and Dr Williams accepting the possibility. 293). In conclusion, Ms King KC points to the real-life inherent improbability, in the face of significant complexities in the medical evidence, of the allegation that this father inflicted injuries on his child twice (or three) times in a manner wholly at odds with the circumstances we know about him and the family. 294). Ms King KC cites examples of other cases where EDS/HDS has been a factor in the challenge to medical evidence or where the case was considered an outlier: a) Devon CC v EB and WD and ED, JD and TD [2018] EWNC 968 (Fam) where Baker J (as he was) found, in a case with some similarities but where there was rather more acceptance in the expert evidence of organic cause, that threshold was not proved; b) Re FM (A Child: fractures: bone density) [2015] EWFC B26 where medical uncertainty around bone density and credible evidence of an alternative explanation led HHJ Bellamy to find threshold not proved; c) A Local Authority v M & Ors (Fact Finding) [2019] EWFC 33, a case in which Dr Saggar as he then was gave evidence about potential propensity to hEDS and veinous fragility, but where Morgan J concluded that the father had caused bleeds to the brain and spine in a state of panic on the child becoming unwell (with reference to the Semmekrot Dutch findings that more than 1/3rd of parents shook their children when they became profoundly unwell). 295). What all these cases had in common was a reminder of the need to consider medical evidence in the context of all the relevant and admissible evidence including parents with otherwise unblemished parenting records. 296). And so Ms King KC invites me to conclude that I cannot be satisfied that any of the injuries to Y were inflicted. Children’s Guardian 297). Because the guardian adopts a neutral position I will, without any disrespect, not set out Ms Storey-Rea and Ms Vorri’s submissions which helpfully summarise the evidence already rehearsed in context of the findings sought. There are two aspects I do need to deal with. 298). First, in relation to the evidence of Dr Williams, Ms Storey-Rea refers me to TUI UK Ltd v Griffiths [2023] UKSC 48 where the Supreme Court held that a party who challenged the evidence of a witness on a material point was obliged to cross-examine that witness. Where that did not happen the court should not have departed from the expert’s unchallenged conclusions. The Supreme Court set out a list of exceptions, none of which apply in this case. And so Ms Storey-Rea says that I should accept Dr Williams’ unchallenged conclusions. 299). In response Ms King KC says that I am not bound by Dr Williams’ conclusions, rather I must balance all the competing medical evidence and not be left with just one alternative. 300). I also need to deal with the point at the end of Ms Storey-Rea’s submissions which attracted criticism from Ms Grief KC. There Ms Storey-Rea asked a series of questions – is one of the parents lying, have they minimised the issues and stresses they were feeling, did A withdraw from some of the care of Y placing more responsibility on B, did they both agree in relation to 4 July that Y was unsettled, that there was no noise from him when picked up or crying when he was taken downstairs? 301). Further Ms Storey-Rea suggested that the timings were tight for causation, loss of control, reaction, CPR all taking place in 14 minutes (in fact the window was between 14 and about 30 minutes on the evidence). 302). Ms Grief KC’s criticism is that this leaves questions hanging in the air which are not findings sought by the guardian or by the local authority but raise suspicion about perpetrator, minimisation and collusion which, because of the local authority’s position, really have not been properly explored (although Mr Morgan also suggest minimisation by A of B’s emotional regulation). 303). Ms Storey-Rea says these matters are raised simply so that the court has all possibilities before it when considering the wide canvas. Analysis and findings Assessment of the parents 304). There was a stark contrast between the emotional presentation of the parents as witnesses, consistent with the picture of them outside court. a) A cognitive assessment of A showed her performing generally within normal range with a FSIQ of 83 and average verbal and non-verbal reasoning, but some general memory problems and difficulty dealing with new information which became evident during her evidence. She needed frequent breaks in her evidence. At a few points it became obvious she was struggling to process questions. b) She was very emotional in giving evidence and, at times, when listening to the evidence of others. c) This matched the observation of professionals that A became extremely distraught discussing what had happened to Y. She told me she cries every day and at very little. d) B presented as emotionally very composed, both when giving and listening to evidence. Although there was a description by the ambulance crew of him being very shocked on 2 July, on 4 July another crew described him as ‘unusually calm’. A told me had seen B upset and shedding tears but the general picture was one of stark contrast in their emotional response, outwardly at least. 305). Each of the parents has maintained a largely consistent position in explanations to health professionals, police interview, court statements and oral evidence. Each of them has essentially maintained complete denial of any responsibility for the injuries. The only real inconsistency has been B’s failure to mention until January 2024 that he may have shaken Y on 4 July, even if the description then given would not account for the injuries. Mr Morgan points to a number of other inconsistencies but nothing that cannot satisfactorily be explained by memory fallibility. 306). A explained how this had come out of discussion she had with B at a point when she had been doing some online research and she had asked him some open questions (possibly around December 2023) which led him to say that he had shaken Y to bring him round. He had not demonstrated to her how he had shaken him, although he said it was nothing like a demonstration they had been given at the hospital which had surprised and shocked them both. 307). Given the parents understood straightaway the clear medical opinion that Y had been shaken it is surprising that it took some 5 months before this was mentioned by B, despite Ms King KC’s explanation. 308). While both parents came over as credible witnesses, consistently and firmly denying responsibility, the stakes for them are high in terms of their future relationships with each other, the children and potential for criminal prosecution. A denial once given can be difficult to retract and positions become entrenched, even in the face of overwhelming medical evidence. A simple denial is easier to maintain consistently than an elaborate explanation. 309). Within A’s more emotional response there was a sense of a perpetual search by her to understand what had happened. Potentially I thought there was some cognitive limitation on her ability to process alternative explanations, including that B might have been responsible. She seemed to me genuinely at a loss to understand what had happened. I find it difficult to imagine that she was keeping up a pretence or maintaining a lie, or had the capacity to do so. 310). With B I sensed more dissociation from what was plainly a difficult subject. There are a number of possible reasons for that:(a) stoically needing to compensate for A’s emotional response and to ‘keep the ship steady’,(b) dissociating emotionally from painful matters which he genuinely does not understand or(c) dissociating himself from difficult events which he does know about. 311). Whereas with A I have a clear impression of a credible witness who honestly does not know what happened, I keep more of an open mind aboutb. B. 312). I also have reservations about the parents’ evidence about Y’s condition from birth. That is not to say they did not have concerns as many parents do in the weeks and months following birth, however the lack of any midwife or health visitor notes about parental concerns suggests to me a picture of lower-level concerns which, while possibly expressed at appointments, it was not felt warranted noting. There is potentially here an element of retrospective enhancing of concerns which I attribute more to A trying to rationalise what has happened to Y. I put this down more to fallibility and reliability than credibility. Positives and risks 313). Part of the landscape is the fact that pretty much all, if not all, of the positives and virtually none of the risks identified in Re BR are present in this case. So we have a supportive family environment (even if they do live some distance away), apparently nurturing parental skills, stable family relationships, good household rules and monitoring, no obvious money worries, adequate housing, regular access to health care, caring adults and community support through employers. 314). On the other side of the coin there is absence of lack of understanding of a child’s needs/development, domestic abuse or violence within the family or community, history of physical/sexual abuse as, or of, a child, poverty, family disorganisation or lack of cohesion, substance abuse, immaturity, single parents, poor parent-child relationships, negative parental thoughts and emotions (at least nothing I would say was out of the ordinary). 315). Really the only potential risk identified is A’s diagnosis of anxiety and low mood which was relatively mild and, given the local authority’s position about perpetrator, no longer particularly relevant. The only relevance of this, in my judgment, is the additional pressure A’s condition may have placed on B and added to his level of frustration with the children. 316). A further important positive of course is that Y is not B and A’s first child. There are no concerns about the care they have given to X and, in particular, there are no indications of him being harmed during his early weeks and months. 317). Against that I bear in mind that B was away for a number of weeks at a time during X’s early weeks, leaving A to care for him. The amount of time he spent with X may have meant less build-up of frustration (although he told me he had to work to bond and find ways of adapting to his step development whenever he came home). I also note A’s evidence that B’s frustration seemed to relate to a struggle to meet the demands of a toddler and new born baby. 318). I remind myself of the importance of factoring this in when I consider the evidence holistically. While it does not exclude the likelihood of Y having suffered inflicted injury in the home, it does reduce the inherent probability of it happening. The medical evidence 319). The overwhelming and consistent medical view is that Y suffered a significant shaking injury on 4 July and rib fractures as a result of significant compressive force to his chest some weeks before that. 320). There is a less consistent view about what happened on 2 July to cause Y’s admission to hospital then and continued symptoms on 3 July. Mr Jayamohan believes it likely there was another shaking injury then, Dr Nawaz considers an unexplained cause equally possible. 321). There has been much discussion about BRUEs. 322). The difference between Drs Johnson and Watt about timing of the fractures of the 2nd and 3rd ribs is resolved, it seems to me by Dr Johnson’s acceptance of Dr Watt’s opinion that those ribs, protected by the scapula, may have suffered less damage and therefore less periosteal reaction. 323). I share Dr Nawaz’s discomfort with Professor Saggar’s ready acceptance of bruises and marks noted on Y while intubated for the reasons he gave. Nonetheless, the possibility that Y has inherited HSD is more than hypothetical. It started, hypothetically, at 50% and increased from there not just because of his presentation during a time of medical crisis (which I agree with Dr Nawaz is not the time to make assessment) but also because of some other clinical presentations. Because the possibility increases above 50% on Professor Saggar’s evidence that becomes a probability and I accept for the purpose of making my findings that Y has inherited HSD. 324). There was a difference between Mr Jayamohan and Professor Saggar about the consequence of HSD. Both agreed it may affect capillary fragility. Mr Jayamohan did not think it would affect veins or bridging veins whereas Professor Saggar said it could. Neither considers it is relevant for thrombosis (clotting). Mr Jayamohan was clear that HSD would not explain the effusions and very clear brain dysfunction. 325). Whether Mr Jayamohan or Professor Saggar is right about the effect of HSD on the veinous system, I accept Mr Jayamohan’s clear evidence of its limited relevance to the brain injuries seen in Y. 326). While I accept Ms King KC’s point that Dr William’s unchallenged report is but part of the medical evidence, he expresses a clear opinion that Y suffered axonal injury as a result of shearing forces. Mr Jayamohan, while preferring seizure activity as an explanation, does not discount shearing. 327). I have considered alongside this that: a) Y did not present with retinal haemorrhages and I have wondered whether that might indicate lesser forces were used, conscious that Mr Jayamohan did not consider absence of retinal haemorrhages relevant; b) Y did not present with any outward sign of injury, finger mark bruising around the chest for example (and I note in Re ED (supra) that Baker J was struck by the absence of any outward sign of abuse); c) the scan of 20 July, two weeks after the event, did not reveal any new rib fractures (given that periosteal reaction starts 5 to 11 days after fracture). 328). Notwithstanding those factors I have come to the conclusion that Dr Williams’ opinion is to be preferred, not because it is unchallenged evidence but because it is clearly expressed as a probability and not discounted by Mr Jayamohan. 329). I also accept Mr Jayamohan’s opinion that the large collection of blood seen in the lower spine originated there rather than tracked from the head. He was clear that, although traces of blood in the upper spine might not be visible after tracking he would have expected, given the volume of the blood collection in the lower spine, to have seen some traces. He gave a plausible explanation of uncontrolled movement of the pelvis which fits with other evidence of what happened on 4 July. 330). In relation to the question whether the rib fractures could have been caused at birth or whether they were inflicted later I take into account: a) the absence of any presentation reported by the parents or by any health professionals (in particular the GP on 21 June, although there did not seem to be physical examination beyond the mark to the abdomen) which might have suggested seven rib fractures; b) the positives about the family discussed above; c) that radiological timing alone allows for either possibility; d) that there is evidence of frustration tipping into anger sufficient to cause B to shout and swear at the children; e) that there probably was a change in Y’s condition and presentation on or around 20 June that caused A to want to take him to the GP; f) I accept A’s evidence that Y was reluctant to lie down from the start and this was not a changed presentation; g) no evidence of bone de-mineralisation; h) however, acceptance that Y inherited HSD meaning that lesser forces may be needed to fracture, although outside the parameters of normal handling; i) that this was not a straightforward birth, as discussed above; j) notwithstanding that the clear medical opinion maintained that this pattern of rib fractures would not be caused at birth with the risk being ‘vanishingly small’; k) the clear consensus medical opinion that the fractures were caused by a signifincat compressive force or squeezing of the chest; l) there is no suggestion of a collapse before 2 July requiring resuscitation of explaining a ‘panic shake’; m) if Y was shaken on 4 July, as the medical evidence clearly suggests he was, this would make inflicted rib injury less improbable. 331). Because I need to consider the entire canvas holistically (avoiding a linear approach) I will come back to findings about the rib fractures once I have considered the evidence about brain injury and so can consider all the evidence together. 332). It remains unclear what happened on 2 July 2023. The experts allow for the possibility of an unexplained event. I am not sure how much I am helped by the argument around whether this was a BRUE or just an unexplained event. There is a danger of losing focus on the core evidence. 333). The only thing that can safely be said about 2 July is that Y became unresponsive. The medical evidence is unclear whether that was because of a shake or unexplained cause (BRUE or otherwise). Although Mr Jayamohan seemed to think both 2 and 4 July were contenders for traumatic injury, in the end the consensus seemed to be ‘we don’t know with any certainty’. A finding of shaking on 2 July is not pursued by the local authority with any vigour, although it seems to remain open as a possibility. 334). What I can be clear about is that Y was shaken on 4 July and by B. What I am less clear about is why. 335). The consensus medical evidence is that the brain and spinal injuries (including the axonal injury as I find it) were caused by rapid and forceful acceleration/deceleration forces. I also accept there were shearing forces for the reasons I have given. I allow for the possibility that the forces needed to cause bleeding might be reduced by HSD but, as Mr Jayamohan made clear, that does not explain the effusions, very clear brain dysfunction (once seizure activity is ruled out) thrombosed bridging veins or axonal injury. 336). These injuries are not accounted for by any explanation proffered by the parents. The shake described by B clearly would not produce enough forces. Nor, in my judgment would the action of running up the stairs. Mr Jayamohan was prepared to accept theoretically that movement of an unsupported head was the right mechanism but I cannot see the forces required to produce injuries of this severity could be caused by running up the stairs carrying a child. Nor does it explain the uncontrolled movement of the pelvis which would have been resting against B’s body. 337). The timescales for inflicting the injuries were relatively tight (between about 15 and 30 minutes) but there was plainly sufficient opportunity. 338). Even allowing for the absence of retinal haemorrhage, new rib fractures and outward signs of bruising to the chest, the medical evidence is sufficiently certain as to shaking that I find on balance that on 4 July Y was shaken using forces that went well beyond normal handling. This was an inflicted injury. 339). The more difficult question is why. 340). In considering this question the following matters are relevant: a) again, positives about the father and the household already identified and the inherent improbability of him intentionally inflicting injury or doing so through loss of control; b) again, the evidence of his frustration caring for the children to the point that A did intervene (and it would be naïve to imagine that the two texts marked the only occasions that he shouted or swore at the children); c) A’s evidence that she heard nothing out of the ordinary until B shouted for help; d) the parents’ evidence that Y was sleepy when B picked him up and was not fed before he collapsed, suggesting lack of reason for becoming frustrated with him at that point; e) noting in relation to c) and d) that A was half asleep when this was going on; f) acknowledgement by the experts that they can only speak to mechanism, not intention; g) whether it is more likely that B would have admitted to a ‘panic shake’ than a ‘loss of control’ shake; h) whether, having concluded that B shook Y but has concealed the facts, this points more to loss of control than a panic shake; i) whether B also inflicted the rib fractures and, if so, why; j) taking into account the possibility of inflicted rib fractures through loss of control or inappropriate handling and panic shaking at least two weeks later on 4 July; k) the fact that there was an unexplained event/BRUE on 2 July and the possibility of another on 4 July is not discounted by the medical evidence; l) the prevalence of parents shaking children when unexplained events occur to try and rouse them. 341). I have come to the conclusion having considered all these matters in the round that: a) B inflicted the rib fractures on or around 19 June 2023; i) there was a change of Y’s presentation around this time warranting a first GP’s appointment, although the symptoms for fracture were non-specific and not identified therefore by the GP let alone A; ii) given my finding that Y inherited HSD and the consensus medical opinion that follows, I find that the fractures were caused by a single compressive force to Y’s chest inflicted by B using lesser force than might normally be needed to cause such fractures but clearly more than would be expected in normal handling and reasonable parenting; iii) I am unable to be more specific about the precise mechanism save that, given the absence of any other injury, shaking is unlikely; iv) Y will have been in pain and distress and B will have known that he had done something wrong; b) B shook Y on 4 July causing all the brain and spinal injuries identified in the medical evidence and in respect of which findings are sought by the local authority: i) because HSD is only relevant to bleeding in this context, the overall severity of the injuries is not accounted for by inherited HSD; ii) this means that no lesser force caused the injuries. 342). Because B has not been forthcoming in relation to these injuries it is difficult to reach a conclusion about why he caused them. It might be tempting to think the worst and assume loss of control. There is however force in Ms King KC’s submissions about the inherent improbability of this given what we know about B. I remind myself that people lie for different reasons. It is not difficult to understand (but not excuse) a parent who causes serious injury lying about it to avoid loss of relationships and risk of prosecution. The stakes are high. And once a lie has been told it can be difficult to retract, even under the sort of pressure that the police and A have exerted and in giving evidence to the court. 343). It does not follow, in my judgment, from the conclusion that B has lied about causation that it must have been loss of control or even that is more probable. I still have to look at this question in the context of all that we know as I have set out above, including the fact that lesser forces may have caused the rib fractures and that Y may have suffered collapse before being shaken on 4 July. 344). I remind myself too that it is for the local authority to prove its case in respect of this part of the findings. 345). On this basis, and taking into account the matters I have set out at paragraph 340 above my findings as to why are as follows: a) the rib fractures may either have been caused by loss of control or inappropriate handling; i) I balance the evidence of B’s frustration against the lack of any evidence of propensity to violence; ii) I take into account that in all other respects save what happened on 4 July his parenting is not criticised, indeed the local authority expressly acknowledge him to be a loving and committed parent as evidenced by the many photographs I was shown at the end of the evidence and by everything else we know; iii) the possibility of lesser, but still inappropriate, forces lends itself to inappropriate handling as a reason; iv) it is for the local authority to prove loss of control; v) this is tied in with my conclusion about why he shook Y; b) although the balance is a fine one, I am not satisfied that the local authority have proved that B lost control, rather I find that he caused the rib fractures through unintentional inappropriate handling; c) for the avoidance of doubt this was at least negligent and wrong and so falls squarely within the definition of inflicted injury given by Ryder LJ in Re S (supra); d) the shaking on 4 July was either loss of control or a panic response in an attempt to rouse Y; i) the shake was plainly a severe one; ii) there is nothing in terms of mechanism to distinguish a loss of control shake from a panic shake (otherwise the experts might be able to speak to intention); iii) B’s lie about causation does not mean a finding of loss of control; iv) a) i) and ii) above are equally relevant here; v) having found an unexplained collapse on 2 July, a further collapse on 4 July (and it really does not matter whether it was a BRUE or another unexplained event) is possible; vi) the absence of any evidence of reason to lose control at that point; vii) lack of evidence from A (a credible witness) of disturbance sufficient to rouse her from half sleep; viii) again, a reminder that it is for the local authority to prove loss of control; e) on balance I conclude that loss of control is not proved and that it is at least as likely that B shook Y in a panic to rouse him and unintentionally caused the brain and spine injuries; f) this again keeps the injuries within the Re S definition of inflicted injuries and unreasonable parenting so as to meet threshold. 346). Those are my findings in relation to B. 347). So far as A is concerned, I find as follows: a) she is exonerated from causation of any of the injuries to Y; b) she did not know about the injuries before they were discovered on 4 July; c) nor was there any reason that she should have known; d) there is no question of failure to protect; e) her position that she did not believe B capable of causing the injuries was a reasonable one to maintain pending completion of the medical evidence and the court’s findings and does not, in my judgment present any risk to the children around failure to protect in the future. Next steps 348). I anticipate the local authority will now undertake a risk assessment regarding B, who has indicated his intention to leave the family home to enable such assessment to be undertaken and permit rehabilitation of the children to their mother’s care as soon as that can safely be done. 349). I thank all the advocates for their very considerable assistance in what has been a complex and most difficult case. 350). That concludes this judgment.