Lancashire County Council v R & Ors [2008] EWHC 2959 (Fam)

[2008] EWHC 2959 (Fam)

Case No LA06C00141

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Date 4th December 2008

BLACKBURN DISTRICT REGISTRY

As from:

Preston Combined Court Centre

Openshaw Place

Ringway

Preston

Before

Mr Justice Ryder

Between

LANCASHIRE COUNTY COUNCIL

[1] R (a minor acting by his children’s guardian, Mrs A-G)

[2] S

[3] N

Stephen Cobb QC & Jonathan Buchan (instructed by LCC) for Local Authority

Miss Singleton QC & Miss Koral (instructed by Messrs Green & Co) for Mother

Miss Grocott QC & Miss Bowcock (instructed by Messrs Ratcliffe & Bibby) for Father

Miss Cross (instructed by Marsh & Co) for Guardian

Hearing Hearing dates:

10 th October 2008, 13 th– 17 th October 2008 & 5 th– 7 th November 2008

Judgment

[1]R is a child who was born on 31 May 2006. His mother I shall refer to as S and his father as N. They were born on 28 January 1984 and 22 March 1978 respectively. They are not married and have now separated. The local authority, Lancashire County Council made an application for a care order in respect of R on 18 August 2006 and R is represented in these proceedings by a children’s guardian, Mrs A-G. The precipitating circumstances that led to the local authority’s application are not in dispute and are as follows.

[2]R’s birth was not entirely uneventful. He was born by emergency caesarean section following a failed ventouse delivery. He was subsequently noted to have developed neonatal jaundice together with some scalp swelling and a superficial laceration related to the attempted ventouse delivery. R was described as being irritable and unsettled and was given oral paracetamol. Mr G the Consultant Obstetrician and Gynaecologist described him as making an “uneventful recovery”. R is referred to as a well baby in his obstetric notes and was discharged home on 7 June 2006 with no requirement for follow up treatment.

[3]Father notes in his witness statement that:

“We took R home and he never seemed to be a happy baby. I didn’t think he looked healthy”

. Mother has given a very similar account of R’s presentation and their recollection appears to be beyond dispute.

[4]Health professionals saw R on nine occasions during the period he was at home with his parents. The medical records corroborate that the parents’ perception was of an unsettled baby who cried a great deal:a. On 7 July 2006 R was seen at his GP’s surgery with a complaint of excessive crying. The discharge summary was “colic” and advice was given about winding.

b. On 13 July 2006 R was seen at his GP’s surgery for his six week check. He was noted to be crying “excessively”. Mother was advised to increase his water consumption to avoid constipation. The GP noted that she appeared to be “low in mood at this appointment”.

c. On 3 August 2006 R was examined at his GP’s surgery. Mother observed that he had been unwell since immunisation (on 27 July 2006) and he was constipated and unhappy. No abnormalities were found.

d. On 8 August 2006 R was seen by the nurse practitioner. He was constipated and Lactulose was prescribed.

[5]On 10 August 2006 both parents recall that R began projectile vomiting. The cause of this remains unknown. On 11 August 2006 he vomited in the morning. Father described R as being “grouchy”. Mother was aware that he was crying more than was usual. His parents took him for a walk in the afternoon and returned home at approximately 5:00pm. He remained in their joint care all evening except for a period of approximately 15 minutes when father cooked a meal in the kitchen and mother and R remained in the living room and the events as hereafter described.

[6]At some time after 7p.m., mother went into the back garden to feed the family’s pet ferrets. Neither parent describes any arguments, displays of aggression or tension during the evening. In the general context that R was ‘grouchy’, mother’s evidence up to the point where she left to go outside is not in issue and is as follows: N had R in his bouncy chair in front of him and N was watching television and talking to R. Both R and N were “fine”.

[7]Both parents agree that the patio doors to the back garden were closed to prevent the ferrets escaping into the house and that father was in the living room at the front of the house. A window in the kitchen, which faced on to the garden, was open.

[8]What then happened is described by father in his police interview as follows: “…… He (R) was sat in his bouncy chair, I was watching telly…… he got really grumpy. I tried his usual thing in his bouncy chair and it wouldn’t calm him down and I picked him up, had him in my usual position arm under him and then he was just crying a lot you know really hard as if he was in a lot of pain, and then he arched his back with his arms up….. he just looked like he was in that much pain and erm…. Well (S) heard him in the garden, that’s how hard he was screaming”.

[9]Mother agrees that she heard R scream:

“It was the sort of scream that made me want to go inside and check on him in case anything was wrong. (N) was stood in the lounge doorway. He looked worried and said something was wrong. He was holding R with one hand supporting him in the back and one under his bottom. R’s back was arched and his arms were in the air. His head was back. I ran to him and when I looked at R’s face it was greeny/grey in colour and his eyes were in slits”

. This accords with father’s description of R and has been referred to by everyone without any pejorative or technical significance as a collapse.

[10]R was taken to the Accident and Emergency Department at Lancaster Royal Infirmary at 8:18pm on 11 August 2006. He was transferred to Royal Manchester Children’s Hospital on 15 August 2006.

[11]There is no dispute as to the following medical facts which were established on examination:a. On radiological scanning on 12 August 2006 (CT) and 16 August 2006 (MRI) R was found to have a chronic subdural haematoma (SDH) which was then at least 2 to 3 weeks old (i.e. arising not later than mid July) over both cerebral hemispheres and which was slightly larger on the right than the left. He also had acute bleeding (an acute SDH) which was between 3 and 7 days old as at 16 August 2006 and which extended over both cerebral hemispheres, particularly in the left sided collection and also in the region of both posterior inter-hemispheric fissures.

b. R had exhibited a mild transient encephalopathy i.e. at the lower end of the spectrum of insult.

c. On ophthalmic investigation by Mr Ian Lloyd, Consultant Ophthalmologist, on 16 August 2006 R was noted to have extensive retinal haemorrhages in both eyes including a large pre-macular haemorrhage in the right eye and a smaller pre-macular haemorrhage in the left eye and multiple fading intra-retinal haemorrhages scattered throughout the retina in both eyes.

The Local Authority’s Case

[12]In order to introduce clarity into a necessarily detailed analysis of how R came to present in the way that he did between 11 and 16 August 2006 and from birth until then I shall set out the parties positions. The key issues were identified prior to the commencement of this fact finding hearing and are summarised in the form of a ‘Scott Schedule’. Having regard to the oral evidence which has been heard, the local authority now summarise their case as follows.

[13]The local authority say that it is possible that R sustained an SDH together with retinal haemorrhages at birth. If he did so, they say that these were asymptomatic and that it is statistically likely that the any signs had resolved within 4 weeks of his birth i.e. by about 28th June 2006.

[14]They allege that thereafter R sustained serious non-accidental head injuries on no less than two occasions:a. He sustained the first head injury on or around 7 July 2006; this caused an acute SDH which became a chronic SDH, which in turn took in fluid, expanded and caused head swelling. At the time of the first head injury, R showed non-specific signs of general malaise, was said by his parents to be crying differently (and according to mother, excessively) and was taken to the doctors.

b. The second head injury was caused on the evening of 11 August 2006. This caused additional i.e. separate subdural bleeding, and more obvious neurological symptoms including fitting. As a consequence of this second traumatic event, R collapsed.

c. At the time of and in the event which caused the second head injury, R also sustained extensive retinal and pre-macular bleeding.

[15]The local authority submit that it is quite proper for this Court to regard the combination of SDH, eye haemorrhage and (even transient) encephalopathy as a “strong pointer” to non-accidental head injury. They also submit that:a. The degree of force which would have caused either or both of the head injuries was excessive i.e. outside normal handling such that an observer (an objective bystander) would reasonably believe it would cause harm to the child;

b. The degree of force in the second incident was at least as great as that in the first; and

c. The overall picture of injuries identified as recent on 11 August 2006 has to be considered in that, they say, this was not just a case of a re-bleed into an area affected by chronic SDH; acute subdural blood was found in other areas of the subdural space, and in the posterior fossa. Furthermore, the degree of force applied was also indicated by the extent and type of retinal and pre-macular bleeding and the degree of neurological change.

[16]The local authority submit that it is likely that the father perpetrated the second alleged non-accidental injury on the evening of 11 August 2006 while the mother was outside the house.

[17]While the Local Authority recognise the inherent improbability of there being two perpetrators of serious abuse within the same household, they submit that it is not possible to say which of the parents perpetrated the first alleged non-accidental head injury; there being factors which point both ways. It is common ground that no-one other than the parents should be considered to be a possible perpetrator of either.

[18]As to the surrounding circumstances, the local authority say that on a number of occasions, R sustained bruising as a result of the care which he received from both his parents and more directly from his father. They say that it is axiomatic that if the care given to a baby of a matter of weeks old causes bruising then such bruising is ‘significant’ and in the nature of ‘harm’; it is also not what it would be reasonable to expect a parent to give. They submit that the principal perpetrator of the bruising was the father.

[19]The parental relationship into which R was born was turbulent, characterised by moodiness, and incidents of verbal and physical aggression. The mother noticed the bruising on R; she was worried about it, and increasingly suspicious as to its causation. From the very early days following their discharge from the hospital, the mother says she noted the rough way in which the father handled the baby, and she now asserts that this was unacceptable. By 16 July 2006 the mother was clearly suspicious of the father injuring the child. It is accepted that on that day she accused him: “come on, how did you do it then?”.

[20]If R went on to suffer serious injury at the hands of the father as alleged by the local authority then, they say, R’s mother culpably failed to protect him from suffering significant further harm while he was in their joint parental care.

The Mother’s Case

[21]R’s mother says that she has never perpetrated any injury upon R nor has she failed to protect him.

[22]She alleges that the perpetrator of all R’s injuries is the father and submits that she should not be left in the pool of possible perpetrators.

[23]She submits that the court should not make a finding that the chronic subdural collection demonstrated in R’s brain imaging on 11 August had its origin in an acute SDH caused by non accidental head injury (NAHI).

[24]She says and submits that although she will always feel responsible for what happened to R that should not be confused with a failure to protect him in any sense that either satisfies the threshold criteria in these proceedings or forms the basis for a criminal offence.

The Father’s Case

[25]At the outset of this hearing, father like mother accepted the existence of the acute and chronic SDHs and the eye haemorrhaging but denied that he was responsible for their causation. In particular, he denied that he shook R or caused shaking/impact head trauma.

[26]He submits that it is likely that the chronic SDH was the consequence of R’s difficult birth process and/or a re-bleed from an SDH ultimately caused within that process and that the acute SDH occurred either as a consequence of his innocent (i.e. non deliberate) use of a ‘bouncy chair’ to settle R or occurred when he was cooking the tea and the child was in the care of S. He made concessions about his rough handling of R which were not accepted by the local authority as being sufficient to cause a re-bleed from a chronic SDH, an acute SDH or any other injury that may be found by the court to be non-accidental.

[27]As to the bruising, he accepts that all but 2 of the bruises which were noted had been caused while R was in his own or mother’s care but asserts that none of the bruises were inflicted non-accidental injury. They were the consequence of accident or the conceded rough handling. The cause of the 2 bruises on R’s back which remained in issue was not pursued by the local authority.

[28]In oral evidence father qualified his position by giving further detail of what he says happened on 11 August 2006 when R was in his sole care and S was in the garden and which he now accepts to be inappropriate handling. He still denies shaking or shaking/impact.

[29]He denies that if the court finds R’s mother to be responsible for non-accidental injury that he failed to protect R.

The Child’s Guardian

[30]Mrs A-G has not given opinion evidence during this hearing. She has very properly instructed her counsel to ask searching and often illuminating questions both as to the lay and medical evidence and makes no submissions on the facts in issue. I am grateful to her and to each of the advocates for the exceptional quality of their representation.

The Law

[31]There has been no disagreement about the law to be applied to the determination of the key issues in this case. It is perhaps helpful in light of recent reported decisions and press comment to describe it under convenient sub-headings as follows.

The standard of proof

[32]In Re B (Children)

[2008] UKHL 35

[2008] 2 FLR 141

Lord Hoffman said at para [2]:

“The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

[33]At para [32] Baroness Hale of Richmond said:

“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof”. and at para [70]: “…the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations under section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”

[34]As to the relevance of all of the facts, in what is now a well used but important passage in his speech to the House in In re H and Ors (Minors) (Sexual Abuse: Standard of Proof)

[1996] AC 563

, Lord Nicholls of Birkenhead said:

“Thus far I have concentrated on explaining that a court’s conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproven fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts including the history of members of the family, the state of relationships within a family, parental attitudes and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

[35]Insofar as it needs to be said, precisely the same process applies where the court is considering whether a primary fact in issue is proved. The court may have direct evidence of the primary fact and/or evidence of secondary facts which if found enable proper judicial inferences as to the existence of the primary fact to be made. It is in the consideration of all of the circumstances and the way in which they inform each other that the judicial fact finding function is based. Split fact finding hearings of necessity should be limited to discrete or serious issue cases where the proceedings can be expedited or delay contained by the separation of the key issues into separate hearings. To do otherwise undermines the fact finding process by removing important contextual material from the court’s consideration.

[36]Furthermore, the importance of oral evidence to the fact finding process should not be under estimated. As Baroness Hale said in Re B (supra) at para [31]:

“In this country we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent improbabilities, any contemporaneous documentation or records, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses…”

The identification of perpetrator

[37]The identification of the perpetrator is to be established, on the evidence, applying a simple balance of probabilities test. This proposition most recently derives from the speech of Baroness Hale in Re B (Children) (supra) in which she said at para [73]:

“It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.”

[38]As to the likelihood of there being more than one abuser in the household: there is no need for further judicial guidance, no ‘hard and fast’ rule; nor any need for there to be: each case must be viewed on its own facts. However, the essential coherence of the decisions of their Lordships’ House in Re B (supra), Lancashire County Council v B

[2000] AC 147

and Re O and N, Re B

[2004] 1 AC 523

was recognised by Baroness Hale at para [61] of Re B:

“The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and In re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child’s carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible”

[39]In particular, it should be remembered that uncertainty about a perpetrator’s identity does not prevent the threshold in section 31 of the 1989 Act being satisfied. One of the reasons for that is that the absence of a reasonable standard of parental care need not imply that the parents are at fault: Lancashire County Council v B (supra) per Lord Nicholls at 162C. Another is that all too frequently the court is unable to identify which of the child’s carers was responsible from the “fog of denials, evasions, lies and half truths…” (per Lord Nicholls at 165E to 166B). The consequence is that parents who may be wholly innocent and whose care may not have fallen below that of a reasonable parent face the possibility of losing their child (Lord Nicholls at 166G). No judge in this field of work can ever forget that dilemma.

[40]The corollary is that uncertain perpetration does not mean that the child concerned is not at risk. It should not be forgotten that in these cases harm has been found to have occurred and the court has considered the scientific and observational evidence both as to how the harm was caused and if appropriate by whom. There is often an inescapable interaction between the evidence as to cause and perpetration, the one informing the other by the questions which are raised. Accordingly, where the court concludes that there is both harm and an uncertain perpetrator or perpetrators of that harm, it is able to proceed on the basis that each of the possible perpetrators is just that, a possible perpetrator. This is necessary as a matter of legal policy to prevent a self defeating interpretation of the legislation. As Lord Nicholls said in In Re O and N, Re B (supra) at para [27]:

“…as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question.”

[41]Without wishing to re-import inherent improbability into the law other than as a question of common sense (see Lord Hoffman at para [15] and Baroness Hale at para [70] of Re B above), it must be recognised that there are cases where more than one perpetrator exists. An example can be found in the passing remark of Butler Sloss P. in North Yorkshire County Council v SA

[2003] 2 FLR 849

in which she said at para [33]:

“it is the important fact, recognised by the judge, that it was highly improbable, although possible, that two separate people would have shaken this baby and caused these injuries within the period of the first 11 weeks of M’s life. This has been the view of the local authority and the guardian.”

[42]If the court cannot decide as between the parents who has inflicted the injury which has been found as a fact the court might still express such views as it can about the history so as to remind itself in relation to evidence which it subsequently hears on the same issues or to assist in future assessment and planning. On this aspect the comments of Lord Nicholls para [35] of Re O & N; Re B (supra) remain valid:

“Rather, in cases of split hearings judges must be astute to express such views as they can at the preliminary hearing to assist social workers and psychiatrists in making their assessments and preparing the draft care plan. For their part social workers, I do not doubt, will have well in mind the need to consider all the circumstances when assessing the risk posed by a carer who is, but who is no more than, a possible perpetrator.”

[43]What the court cannot do is decide that one parent is the perpetrator but that the other parent cannot be excluded as the perpetrator: Re M (children) (fact-finding hearing: burden of proof)

[2008] EWCA Civ 1261

[2008] All ER(D) 187

(Nov). As a matter of logic on the binary approach to fact finding, the perpetrator is either one or the other or both or in the event that the court cannot decide between them: a pool of possible perpetrators.

[44]As mother contends that she should not be left in the pool of possible perpetrators of the first alleged NAHI it is also necessary to consider the test for inclusion in that pool. Having regard to the analysis above, I would hold that there is nothing in the opinions of their Lordships in Re B when considered alongside Lancashire County Council v B and In Re O and N, Re B which suggests that the existing analysis of this question in North Yorkshire County Council v SA (supra) needs to be re-considered.

[45]The test is set out at para [26] in the judgment of Butler-Sloss P. where she says:

“…it seems to me that the two most likely outcomes in ‘uncertain perpetrator’ cases are as follows. The first is that there is sufficient evidence for the court positively to identify the perpetrator or perpetrators. Secondly, if there is not sufficient evidence to make such a finding, the court has to apply the test set out by Lord Nicholls of Birkenhead as to whether there is a real possibility or likelihood that one or more of a number of people with access to the child might have caused injury to the child. For this purpose, real possibility and likelihood can be treated as the same test.”

[46]It necessarily follows that the deliberate use of the likelihood or real possibility test requires this court to apply that test having regard to the construction approved by Lord Nicholls in In re H (supra) at 585F and 590A and C:

“…likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored… …A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom… …There must be facts from which the court can properly conclude there is a real possibility”

The approach to expert evidence

[47]The general approach to expert evidence was authoritatively reviewed in the guidance given by Charles J in A County Council v K, D and L

[2005] EWHC 144 (Fam)

[2005] 1 FLR 851

. Additional guidance was offered by this court in Oldham Metropolitan Borough Council v GW and PW

[2007] EWHC 136 (Fam)

[2007] 2 FLR 597

and the most recent practice direction Experts in Family Proceedings Relating to Children (2008) 1 April provides detailed requirements which are to be complied with. The following principles relevant to this case can be relied upon.

[48]It is for the court to weigh the expert evidence alongside the lay and other observational evidence. The two types of evidence do not sit in isolation from one another; far from it. Even in a case where the experts all were to assert that non-accidental injury was but one of the possible explanations, it is still open to the court to find on the evidence as a whole that it is the probable explanation (as in Re B (Non-accidental Injury)

[2002] EWCA Civ 752

[2002] 2 FLR 1133

). As Charles J. said at para [39] of his judgment in A County Council v K, D and L :

“it is the court that is in the position to weigh the expert evidence against its findings on the other evidence, and thus, for example, descriptions of the presentation of a child in the hours or days leading up to his or her collapse, and accounts of events given by carers”

. And later at para [44] on the same theme:- “in cases concerning alleged non-accidental injury to children properly reasoned expert medical evidence carries considerable weight, but in assessing and applying it the judge must always remember that he or she is the person who makes the final decision”.

[49]It is both possible and proper for the court to reach a conclusion that the cause of an alleged injury or natural event is different from or does not accord with the conclusion or consensus reached by an expert or experts provided that the judicial conclusion is soundly based in evidence, findings of fact and reasoning including, where appropriate, reliance on new or emerging research (see paras [49], [57] and [63] of A County Council v K, D & L (supra).

[50]As Charles J. went on to say at para [89] it is helpful to identify the role of experts and the relationship of their opinion evidence to the standard of proof as follows:

“…in civil cases concerning children it might (a) assist all involved, (b) better reflect the roles of the expert and the judge, and (c) demonstrate that the expert is not the decision-maker as to whether the relevant death, injuries or harm is the result of non-accidental human agency and whether the threshold is satisfied, and does not have all the relevant information, if the medical experts were not asked to express a view as to the cause of the relevant death, injuries or harm on the balance of probabilities but were asked to: (i) identify possible causes of the relevant death, injuries or harm setting out in respect of each the reasons why it might be a cause and thus why it should be considered; (ii) state their views as to the likelihood of each possibility being the cause of the relevant death, injuries or harm and the reasons why they include or reject it as a reasonable (as opposed to a fanciful or merely theoretical) possible cause; (iii) compare the likelihood of the cause (or causes) identified as reasonable possibilities being the actual cause of the relevant injuries or harm; (iv) state whether they consider that a cause (or causes) is (are) the most likely cause (or causes) of the relevant death, injuries or harm and their reasons for that view; and (v) state whether they consider that a cause (or causes) is (are) more likely than not to be the cause (or causes) of the relevant death, injuries or harm and their reasons for that view.”

[51]Furthermore, this court said in Oldham Metropolitan Borough Council v GW and PW (supra) at para [23]:

“…the opinion evidence of experts is often the consequence of the assessment processes and techniques they use. It will almost certainly be the case that it is not appropriate to characterise (for example) a paediatric or psychiatric risk assessment as being a conclusion to which the civil standard of proof applies in just the same way that a social care assessment, for example in accordance with the Framework for the Assessment of Children in Need and their Families TSO (2000) is neither based upon nor results in a conclusion on the balance of probabilities: Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott Baker J. The task of determining facts to a standard of proof is for the court (see also Dingley v. Chief Constable of Strathclyde Police (2000) 55 BMLR (9 March 2000) per Lord Hope of Craighead at 120 and 122).”

[52]The opinion evidence given by experts including social workers is the inferences they make from observed facts, a function traditionally reserved for judges of fact and juries. The exclusionary rule of evidence that an opinion on the ultimate issue was not to be admitted in evidence has now long gone in children law and was explicitly relaxed for civil proceedings by section 3 of the Civil Evidence Act 1972. That does not mean that the court should permit the receipt of opinion evidence on key issues within the proceedings where the facts can be ascertained without it or where the court otherwise possesses or has access to the skill and expertise necessary to come to its conclusion.

[53]This is not the place to examine the multiplicity of commonplace circumstances in which opinion evidence is received by the court, including non expert opinion that is inextricably bound up in the observational evidence of witnesses who are giving evidence of their impressions and perceptions on the ultimate issue in the case. It is for the court, where necessary, to unravel the inferences drawn by experts from the reported facts which underlie them; to make a determination on the existence or otherwise of those facts and then the reasonableness of the inference drawn by considering the reasoning which supports it. Where a court accepts opinion evidence or is persuaded of one opinion as against another it is adopting the inference drawn. The court is then in a position to weigh all relevant facts and inferences drawn in its determination of the key issues to the civil standard of proof.

[54]It is perhaps prudent to repeat the cautions specifically expressed by the Court of Appeal in Re U (Serious Injury: Standard of Proof); Re B

[2004] EWCA Civ 567

[2005] Fam 134

[2004] 2 FLR 263

at paras [22] and [23]:

“(i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal; (ii) Recurrence is not in itself probative; (iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause; (iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice; (v) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”

[55]Accordingly, the cause of death, injury or harm which is not scientifically explained by opinion evidence to the satisfaction of the court is an equivocal or unknown cause. Unless the court has other evidence available to it which when taken together with any inferences which are accepted satisfies the civil standard then the cause (whether natural or by human agency or otherwise) is not established on the balance of probabilities and is not a fact. It is a logical consequence in such a circumstance that the only finding a court can make on the balance of probabilities is that the cause is unknown.

The approach to subdural and retinal haemorrhages

[56]In family cases, the most significant judgment on this issue is probably still the decision of Butler-Sloss P. in Re A and D (Non-Accidental Injury: Subdural Haematomas)

[2002] 1 FLR 337

. In the rapidly changing environment of scientific and in particular medical knowledge, this may be regarded as a little aged. Further, there is a danger in extrapolating too much from previously decided cases, given their particular reliance on the facts and given that the decisions are made on the basis of the then known research which continues to evolve. However, in that case Butler Sloss P. found at para [41] that:

“the degree of force required to cause subdural haematomas need not be as great as previously believed. It remains however equally clear that the force used must be out of the normal rough and tumble of family life and must be unacceptable and inappropriate and obviously so. Each case of course has to be decided on its own facts. This is likely to be an evolving area of research. Adding in the same paragraph: 57. The courts must however continue to deal with medical evidence on the basis of generally recognised medical opinion, giving due weight in the individual case to any advances in medical knowledge.”

Adding in the same paragraph:

[57]The proposition accepted by the President has withstood subsequent challenges to the law and developments in medicine. In particular, the decision in Re A and D still resonates with the more recent analysis of the Court of Criminal Appeal in R v Harris, Rock, Cherry and Faulder

[2005] EWCA Crim 1980

[2008] 2 FLR 412

from which the following two points of detail can be extracted: a. First, a clinically observed coincidence of SDH, retinal haemorrhages and encephalopathy (the ‘triad’) is a “strong pointer to NAHI” but it should not be treated as leading “automatically and necessarily” to a diagnosis of NAHI. (para [70]); b.

(a) where the triad is present – at para [76]:

“generally it is agreed that there is no scientific method of correlating the amount of force used and the severity of the damage caused. To state the obvious, it is not possible to carry out experiments on living children. Further, experience shows that the human frame reacts differently in different infants to the same degree of force.” (b) at para [77]: “common sense suggests that the more severe the injuries the more probable they will have been caused by greater force than mere ‘rough handling’. We note that the most recent Update from the Ophthalmology Child Abuse Working Party; Royal College of Ophthalmologists(2004) concludes: ‘It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.’” ‘It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child.’” (c) at para [78]: “as Mr Peter Richards, a very experienced neurosurgeon with a speciality in paediatrics, pointed out, if rough handling of an infant or something less than rough handling, commonly caused the sort of injuries which resulted in death, the hospitals would be full of such cases. In our view, this points to the fact that cases of serious injuries caused by very minor force such as might occur in normal handling or rough handling of an infant, are likely to be rare or even extremely rare.” (d) And at para [135]: “As Mr Richards said when asked a question in the context of the amount of force necessary to cause injuries, he agreed that the assessment of injuries is open to a great deal of further experimentation and information. He assented to the proposition ‘We don’t know all we should’”

The approach to propensity evidence

[58]Evidence has been led in this case as to events of domestic abuse between the parents in October and December 2005 and their relationship generally including mother’s emerging view as to the same. Again, there is no dispute between the parties as to the relevance of this evidence, if facts are found by the court.

[59]Such evidence may demonstrate that each parent has been or is capable of being physically aggressive or emotionally abusive to the other. The potential for harm to a child in such circumstances is self evident but in order to ensure that it is considered in every case, Parliament has enacted an amendment to the 1989 Act to provide for the same: by section 31(9) as introduced by section 120 Adoption and Children Act 2002 ‘harm’ explicitly includes impairment suffered from seeing or hearing the ill-treatment of another: in colloquial terms, domestic abuse.

[60]However, despite the above, what such incidents do not of themselves demonstrate is that either parent has the propensity to violence towards small children. A clear distinction is to be drawn between the relevance and admissibility of evidence which describes the harmful circumstances in which a child is being cared for and the same evidence when it is used to suggest that a person has a propensity to commit a particular act. In other words, the evidence will be very relevant to harm or its likelihood in section 31(2) and the court’s assessment of risk in section 1(3)(e) of the 1989 Act but not necessarily to perpetration. It may be forensically unwise for the court to attach much, if any, weight to this evidence if it is directed only to the question of propensity. This accords with the obiterdicta of Wall J. in Re CB and JB (Care Proceedings: Guidelines)

[1998] 2 FLR 211

@ 218, where he said:

“Evidence of propensity … is unlikely to be of any assistance in resolving a purely factual issue And later 62. Clearly, the local authority social workers will have been working with and observing the child’s parents and family members from the moment the child is received into its care. Nothing in what I have said above is designed to inhibit the local authority from putting in at the first stage factual evidence relating to the history of the case and the background of the parties, or relevant evidence of observation. Such evidence is usually necessary for a proper understanding of the case. Equally, the local authority will, as the case progresses, be carrying out a continuous assessment of the parents and their behaviour.”

[61]Since Re CB and JB there have been 2 public law case management practice directions which take account of revised Government guidance issued under section 7 of the Local Authority Social Services Act 1970 directed towards the completion of Framework assessments by social workers at the earliest opportunity (the latest of which is the Guide to Case Management in Public Law Proceedings (2008) April). Re CB and JB now has to be read in that context. Where it is both practicable and in the interests of the child (having regard to the child protection imperative in each case) such assessments can and should be prepared pre-proceedings and in any event as soon as possible after the commencement of proceedings. Having said with as much force as a court can that necessary child protection interventions must not be delayed by the completion of paperwork, no matter how necessary that paperwork may be to the recording of the basis for the decision, the availability of the evidence that is contained in such assessments is important to the working of inter-disciplinary child protection professionals groups acting in accordance with child protection procedures and to the court in determining child safety issues particularly at or around the commencement of proceedings. The court will normally direct such an assessment where for whatever reason it has not been completed and regardless of whether a split hearing is being contemplated. The necessarily provisional assessment of professionals who are awaiting the conclusion of the court as to the facts is a commonplace which does not prevent them disclosing in that assessment evidence about the “width of the range of (relevant) facts” referred to by Lord Nicholls in Re H (supra) at 591E–G.

And later

[62]Child protection is not undermined by the court asking for best practice assessment procedures to be demonstrated so that a parent, a child, this court and, where appropriate, the public might understand how and why a decision is made. To assert otherwise is to provide an intellectually flawed lifeboat for poor practice which is not in the interests of children. To leave a child in danger is just as unacceptable as to remove that child from home without good reason. Timely and informed decision making are the essence of the system. Child protection demands sufficient resources for speedy enquiry and inter-disciplinary disclosure of information and co-operation such that the relevant agency with a statutory duty can assess and act. Where that agency is a local authority with responsibility for children’s services the decision will be that of social work practitioners who will base their decision on a social care assessment informed by other specialist assessments where appropriate. Furthermore, the key social worker or team leader can expect to be tested on that assessment and the decision in court. To assert that a local authority can delay or in any sense hide behind the need to produce the paperwork records of their assessments and decisions before they take a necessary child protection step and/or apply to the court is not only dangerous but wrong. If it is happening it must stop. Fortunately for R, in this case the professionals acted together and appropriately. Having said which, the reason for this digression is that there was obvious surprise when I intimated that the key social worker should give evidence in this case. Even where a social worker relies on medical opinion it is he or she not the doctors who has the responsibility to make the decision which, if challenged, needs to be explained so that the court might decide whether it was appropriate in all the circumstances.

Expertise and research

[63]In addition to having access to reports produced by the clinicians to whom R was referred and to at least one expert who reported on the instructions of the police, the court has been fortunate to hear and/or read the opinions of a number of the most distinguished experts in their respective fields as follows:a. Dr Stephen Chapman, Consultant Paediatric Radiologist

b. Mr Ian Lloyd, Consultant Ophthalmic Surgeon and Paediatric Ophthalmologist

c. Mr Paul May, Consultant Paediatric Neurosurgeon

d. Mr Peter Richards, Consultant Neurosurgeon

e. Dr Hilary Smith, Consultant Paediatrician in Community Child Health

f. Dr Wellesley St Clair Forbes, Consultant Neuroradiologist

g. Dr Neil Stoodley, Consultant Neuroradiologist

[64]In each case they undertook their tasks in accordance with the court’s directions, the practice direction on experts and the authorities I have referred to. They expressed themselves in appropriately cautious terms and where possible they formed their own clinical judgement based upon the primary records of the relevant examinations, investigations and observations of the child and his parents. In particular, Dr. Smith personally examined R and met with the mother; she had the chance to have lengthy discussions of the issues directly with her. She did not speak with father. Mr. Lloyd examined R’s eyes; he was not working from the descriptions of others or from photographs. Each of the consultant neurosurgeons and consultant radiologists has had the benefit of the original scans and notes as if this had been a tertiary clinical referral to them. In this way, their forensic contribution appropriately matched their clinical practice and accordingly, this court had the benefit of the best evidence available.

[65]What is apparent from their evidence and from the review of recent research which was put before the court is that (as Bracewell J. put it in Re A (Non-Accidental Injury: Medical Evidence)

[2001] 2 FLR 657

) “the frontiers of medical science are constantly being pushed back and that the state of knowledge is increasing all the time”. It is right that the court reflects upon this as it was urged to do by Butler Sloss P. in Re U; Re B(supra) at para [23].

[66]The following research materials have been put before the court. In each case they will be referred to (without I hope any disrespect being occasioned) by the surname of the lead author:a. Taylor D et al (The Ophthalmology Child Abuse Working Party: Royal College of Ophthalmologists) Child abuse and the eye Eye 1999; 13: 3-10

b. de San Lazaro C et al Shaking infant trauma induced by misuse of a baby chair Arch. Dis. Child 2003; 88: 632-634

c. Whitby EHet al Frequency and natural history of subdural haemorrhages in babies and relation to obstetric factors The Lancet Mar 13, 2004; 362: 846-851

d. Whitby (2) EH et al Clinically silent subdural haemorrhages – NAI or not? Academic Radiology, University of Sheffield undated abstract and update on the 2004 research

e. Adams G et al Update from the ophthalmology child abuse working party: Royal College of Ophthalmologists Eye 2004; 18: 795-798

f. Newman B Inflicted childhood neurotrauma (shaken baby syndrome) Focus, Royal College of Ophthalmologists 2005; 33:

g. Hobbs C et al Subdural haematoma and effusion in infancy: an epidemiological study Arch. Dis. Child 2005 ; 90: 952-955

h. Child Protection Companion (1st ed) Royal College of Paediatrics and Child Health Apr 2006;

i. Looney CB et al Intracranial haemorrhage in asymptomatic neonates: prevalence on MR images and relationship to obstetric and neonatal risk factors Radiology 2007; 242: 535-541

j. Rooks VJ et al Prevalence and evolution of intracranial haemorrhage in asymptomatic term infants AJNR Am J Neuroradiol 2008; 29: 1082-1089

[67]The absence in this judgment of the citation of other well known research materials should not be taken to be indicative of any criticism of their contents or conclusions nor that they have been ignored. Their contents are either too well known for it to be necessary to cite the same or their facts too far removed from the key issues in this case.

[68]The Whitby, Rooks and Looney research has brought a new perspective to the understanding of the incidence of SDHs at birth. The experts were all carefully asked to consider this material. While they were anxious to point out that they will “never say never”, they did not, on the whole, indulge the questioner or the court with unhelpful speculation. For the reader of this judgment without an appetite for medical journals, the important parts of the research material adopted by the experts can be conveniently summarised as follows: Whitby:(a) 9 out of 111 babies scanned had suffered subdural haemorrhages at birth;

(b) One of those had suffered a traumatic ventouse delivery;

(c) None of those who had suffered SDH had been born by caesarean section (even the one described who was born by caesarean section after the failed ventouse);

(d) All were scanned after 4 weeks, and all of the haematomas had completely resolved by that time;

(e) The ‘interpretation’ of the study generally was that the presence of unilateral and bilateral SDH is not necessarily indicative of excessive birth trauma;

(f) All haemorrhages were “small”;

(g) The locations of SDH in asymptomatic babies differed from those reported in NAHI; in the Whitby study the SDH was infra-tentorial, whereas the SDH in NAHI cases tend to be supra-tentorial (bilateral or inter-hemispheric);

(h) In most cases, associated findings will lend support to a diagnosis of NAHI: such as bruises, retinal haemorrhages, and cerebral parenchymal changes; Whitby 2 (abstract)

(i) Clinically silent SDHs resolve spontaneously without detrimental effects and do not appear to re-bleed; de San Lazaro

(j) The test involved repeated “violent rocking” of the dummy in the baby bouncer giving rise to head accelerations of a similar order to values recorded for shaking in the arms;

(k) Forceful repetitive whiplash injury to the head was possible and that “shaking” trauma could have been induced without picking up the child; Rooks

(l) Analysis undertaken of 101 asymptomatic babies; 46 had SDH (assessed by MRI within 72 hours); [higher detection than Whitby explained by higher magnetic-field-strength scanner];

(m) All 46 showed haemorrhage in the supra-tentorial region in the posterior cranium;

(n) Most SDHs had resolved by 1 month and all had resolved by 3 months;

(o) SDH was most commonly seen in the posterior inter-hemispheric fissure, with SDH also noted posteriorly along the occipital lobes;

(p) The incidence of SDH was higher in neonates with cephalo haematoma and was also associated with a longer second stage labour;

(q) Most of the infants with SDH delivered by caesarean section had a trial of labour with oxytocin; Looney

(r) Of the 97 asymptomatic neonates scanned, 17 were found to have suffered SDH; all neonates with SDH were delivered vaginally.

[69]The experts introduced the court to the above research materials and have highlighted and applied the same in giving their opinions. They have expressed appropriate peer review of their contents, for example, as to the limited utility of the ‘baby bouncer’ research. In my judgement, none of the medical experts failed to consider the research data and in each case their opinions were both reasonable and within a range of opinion held by a respectable body of clinicians in their specialist field having regard to the research data that exists. In any event, the research materials and the expert opinions form only part of the overall evidence to be weighed by the court.

The Parents

[70]The court invited the parties to agree that having regard to the medical consensus and the opportunities that had been given and taken for there to be very full particularisation of both the allegations and their replies, it was appropriate for the parents to give their oral evidence first. They declined and neither the local authority nor the children’s guardian actively advocated or supported the idea. In deference to the previous case management difficulties which there had been, I did not direct the parties against their will. With the benefit of hindsight and now that I have had the opportunity to assess mother and father I am firmly of the view that it was appropriate for them to give evidence first and that to have done so would have been far better in the context of being able to direct questions to the forensic experts based upon what they were actually rather than theoretically saying to the court. Any Art 6 issues could easily have been raised by the parties and resolved by the court.

[71]There had already been a failed finding of fact hearing before a very experienced circuit judge who abandoned the proceedings and transferred them to the High Court because of significant evidential difficulties. Arising out of that process this court has had access to a concessions document which it is appropriate to recite in full: “FACTUAL CONCESSIONS BY THE FATHER 1. When R was no more than 10 days old the father, in attempting to pass the child to the mother in bed for a night feed, bumped him slightly too roughly down onto the bed. His handling of the child on that occasion was careless and inappropriate. 2. Whilst being bathed R slipped from his father’s hands banging his head on the side of the baby bath. Rt was 2 to 3 weeks old at the time (i.e. this occurred between the 14th and 21st June 2006). 3. At the age of approximately 5 and a half weeks (i.e. between the 5th and 12th July 2006) the father held R facing him with one hand under his bottom and the other behind his head/neck. The father was walking around with the child held in that position. The child’s head, not being properly supported, fell forwards making contact with the father’s collarbone. This resulted in a small bruise over the child’s left cheekbone. 4. On the 5th August 2006 R suffered a further small bruise over his left cheekbone in the same circumstances as are described in paragraph 3 above. 5. Between approximately 14th July 2006 and the 3rd August 2006, as he was carrying the child upstairs, the father slipped and fell on the top stair causing the child to scream for a short time. 6. The father occasionally used his foot to bounce R in a fabric covered baby bouncer. When he did so the child’s head and neck would, on occasion, come away from the bouncer before falling back against it. The force used by the father on those occasions was in excess of that which was reasonable given the child’s age. 7. The father accepts that in his general handling of the child he did not always support the child’s head and neck properly. He accepts that this caused concern on the part of the paternal grandparents and the maternal grandfather. 8. On the 1st August 2006 R suffered a tiny mark on his forehead above his right eye. He does not accept that he caused it. 9. When R was approximately six weeks old he sustained a tiny vertical red mark on the left side of his abdomen. This remained visible for approximately two days. He does not accept that he caused it. 10. On the 11th August 2006 mother was outside caring for ferrets for not more than 15 minutes prior to R’s collapse. 11. Father subsequently misled the Local Authority by denying that he had formed a relationship with a woman who had children. FACTUAL CONCESSIONS BY THE MOTHER 1. The mother accepts that in her general handling of the child she did not always support the child’s head and neck properly. She accepts that this caused concern on the part of the paternal grandparents and the maternal grandmother. 2. R sustained a small bruise over his left cheekbone when he was approximately 5 and a half weeks old. Mother does not accept that she caused it and has no independent explanation for it. 3. When R was approximately six weeks old he sustained a tiny vertical red mark on the left side of his abdomen. This remained visible for approximately two days. She does not accept that she caused it and has no independent explanation for it. 4. On the 1st August 2006 R suffered a tiny mark on his forehead above his right eye. She does not accept that she caused it and has no independent explanation for it. 5. On the 5th August 2006 R suffered a further small bruise over his cheekbone. Mother does not accept that she caused it and has no independent explanation for it.

[72]Father is a young man with an obvious anger management problem. He exudes a patently defensive attitude characterised by self justification and mock outrage. He is in equal measure an emotionally immature man whose lack of self esteem seems to underlie his words and actions. His oral evidence is of a man consumed by his need to be perceived by others as successful. He desires to be in control and to be successful in the eyes of others and parenting for him was no small matter. It was his opportunity to show his family and others a tangible symbol of his success as an adult. He was an unreliable witness.

[73]Sadly, in oral evidence, N gives all the impression of a man scared to death by the realities of child care and adult relationships. He would hold his child like a china doll. He was careless rather than careful. He did not have the experience to know how to care for a child and gave all the impression that he gained no experience and rather lived with a feeling of rising panic. He even demonstrated a sense of panic in his recollections of his care of R. He conceded his rough handling. He conceded that he caused accidental bruising to R and he gave two different and elaborate accounts of how he came to injure R on 11 August 2006.

[74]In order that it might be understood how the factual matrix of this judgment fits together I shall indicate that I have come to the clear conclusion that father injured R on the evening of 11 August 2006 when S was feeding the ferrets and that I do not accept that he has told me the whole truth about that. In addition, he had prior to that date caused other injury to R by his lack of care and recklessness. These conclusions have been reached having regard to all of the evidence which I shall now analyse.

[75]Mother appears to bea timid person but is in fact a controlling individual at least in her relationship with father. Despite this, she is one of the most suggestible adult witnesses I have ever seen. If any question is asked of her to which a simple yes or no can be given, she will give that answer but seemingly always based upon what she believes the questioner wants to hear. I had to give a warning within the proceedings that I could not rely on anything she said unless detailed evidence was adduced from her in answer to a question.

[76]Mother’s allegations against father have been considered by all other parties to be unreliable and I would agree with that general view. It was right of the local authority to eschew reliance on her allegations against the father made in the previous abandoned hearing in the county court. Her motivation is suspect and her evidence has to be treated with the utmost caution. Despite this I remind myself of the guidance given in R v. Lucas (Ruth)

[1981] QB 720

and R v. Middleton

[2000] TLR 293

namely that a conclusion that a person is lying or telling the truth about point A does not mean that he is lying or telling the truth about point B. I shall therefore consider the allegations she seeks to pursue on their merits.

[77]I can find little in oral evidence or the papers which suggests that mother was anything other than adequate in her practical child care which includes her taking R to the general practitioner and the hospital when it was appropriate to do so. It remains concerning that having separated from father and with no apparent intention to reconcile with him she should choose to make patently false allegations. I have come to the conclusion that she did so because she believed she was saying what others wanted to hear rather than to cover up her own failings i.e. knowing that she had not injured R on 11 August 2006 she elaborated her story to ingratiate herself with the local authority and others rather than to deflect blame on to father for her own acts and omissions. This is consistent with her general approach to evidence and her re-telling of the history of this case.

[78]Before examining in detail the cause of the subdural and retinal haemorrhaging, it is in my judgment helpful to consider and where appropriate determine the factual context of the relationship within which R was born. Having heard the parents in evidence and comparing what they said with the written materials I find as a fact the following context.

[79]Parental relationship: It is apparent that mother and father were a troubled match and that their relationship was a turbulent one peppered with instances of verbal and physical aggression, simmering discontent, and moodiness. Mother described the relationship as “rough” and I have no reason to doubt that this was accurate. She was clear in her evidence that at various points along the way she had wanted to separate from father or was giving serious consideration to the same.

[80]She wanted to “get rid” of him before becoming pregnant in the summer of 2005 and did not like his bad temper, shouting, swearing, aggression or drinking. She asked him to leave a number of times including in the week before R was born. A few weeks after R was born she was again giving consideration to a separation. There is also evidence which I accept that at least at the hospital in June 2006 if not before and after, father also proposed that he leave mother.

[81]In my judgment, mother could have left father if she had chosen to do so and vice-versa. She was not overborne by father, as some mothers are, nor was he by her. The paternal grandfather said of the mother that he had seen her “boss” father around and that “9 times out of 10” he would do what she said. This was corroborated by mother herself who told the police and this court that for her part “he always wants to tell me what to do, I don’t let him though, except when I was pregnant, when I let him get away with more.” Mother revealingly indicated “If I thought something, I said it”. When asked whether she would ever be fearful of telling father something, she responded by saying “I’ve never been fearful”.

[82]Both father and mother said that father had a tendency to bottle things up. Mother spoke of father being “all right one minute, bad the next” a characteristic which she said and I accept persisted throughout the relationship including when R was at home with them.

[83]Arguments: The parents argued in the house, both before and more pertinently after R’s birth. As father told me:

“We did argue. We argued quite a lot. Not just after I had consumed alcohol. It was normally”

. He also suggested that when they argued they could be physically aggressive towards one another and that they “wound each other up”. There were arguments in the hospital immediately after R was born, father storming in and out of the ward, knocking a pile of tablets to the floor deliberately. Father admitted that he had arrived at the hospital somewhat ‘worse for wear’ having been “wetting the baby’s head” (revealingly, on his own) and then argued with the mother when she confronted him about his state.

[84]Both parents give fairly graphic evidence of the arguments which I accept. Mother said that father “shouts and throws things a lot” …(he) “shouts, he’s actually grabbed hold of me and spat in my face whilst he’s been shouting. He goes bright red and he stares a horrible stare and he spits whilst he shouts”. Father described “heated discussions” once or twice a week even when R was with them.

[85]Anger and its consequences: It is clear that the atmosphere into which R was brought was one in which the consequences of violence were apparent: I find as a fact that a hole was kicked or punched in a door by father and also that a box was damaged in a similar way. However, both parents had a temper. The situation was sufficiently bad in autumn 2005 that the parents sought a referral for anger management for the father. Father’s own account in the medical records was of “recent persistent stress and anxiety … unprovoked temper outbursts … is afraid and anxious as to what he may do in his aggressive outbursts”. I reject his oral evidence that the anger management referral was ‘all’ the maternal grandfather’s idea. At least at the point where the referral was made he had some insight into why it was necessary.

[86]I accept mother’s evidence that in October 2005 father had returned home one night having consumed too much alcohol. He urinated on a bedside table and was physically aggressive to her when she was understandably upset with him. At the time he ran off out of the house, although that is more a reflection of his self pity than his remorse. Despite his insight then as to his behaviour he minimised it in evidence to this court.

[87]Likewise, in December 2005 he was again drunk. He came home very late and was belligerent. He deliberately knocked over objects in the living room and mother kicked him in the genitals. I do not accept that this was in self defence but it certainly was at a time of acute frustration. Father alleged that mother had punched him and pushed him down the stairs. I accept that he fell down stairs but no more.

[88]Furthermore, father accepted that “when I have had a drink I can be not nice sometimes”. It is difficult to unravel who was responsible for what. There is a strong undercurrent that mother would bait father until his anger got the better of him. That is not an excuse but it is a fact.

[89]Drink: Mother believed and continues to believe that father has a drink problem. It is plain that at the very least his drinking habit was a source of considerable tension and disagreement between the parents, including in the period after R was at home with them. Father’s own evidence in chief was that in the period up to 11 August 2006 and before and after R was born he consumed between one and four cans of cider on three or four nights of the week. He said:

“it was not everynight; usually it was 2, more if they were on offer … I remember (S) said ‘It changed you’, ‘it changed your attitude’; whether it did or not, I don’t know.”

Although he later minimised his consumption, I accept his original evidence and it was common ground between them that after 2 cans, he crossed the line from being relaxed to being tipsy or drunk.

[90]On one occasion after R came home father accepts that he fell asleep while looking after him. He admitted that he was probably drunk and to have drunk more than one can:

“two to three cans ….could have been more …. could have been less”

. Mother had to kick him to wake him. R was crying and mother had been woken by his crying even though all the doors in the house were closed. She found R was on the settee next to father who she described as having “passed out”. Despite all of this, mother minimised the importance of father’s drinking when explaining it to the court.

[91]July – atmosphere in the home: As it may be relevant to the determinations this court has to make it is worthwhile considering the combined effect of all of the above in July 2006. The emotional effect on R can only have been adverse but he was not alone: mother presented to her general practitioner on 7 July 2006 as “extremely tired”. It is also apparent from the health visitor records that during July mother was said to be “low in mood” and “rather anxious”. She attributed this to “several issues” including “coming to terms with having a newborn baby”.

[92]None of this is of itself unusual. What was adding to this mother’s sense of low mood was her unhappiness at the state of the relationship with father. I am satisfied that this was one of the periods when she was thinking of leaving him. She told the court that there was a “considerable amount of tension” in the relationship between them and that her life was “miserable”. Father does not agree, he thought that they were “getting on reasonably well” and that it “never stopped her from being herself” . I do not doubt that that is and was his perception but it is wrong and is another example of father’s self absorbed thinking.

[93]In essence, therefore, both of the parents were controlling, argumentative and awkward. Father was also angry and physically aggressive. He was particularly so when he had consumed alcohol. Both parents subjected R to an environment where these were common features, in father’s case because he did not have the capability to recognise that anything was wrong unless it directly interfered with himself and in mother’s case either because of a deliberate choice to remain with father or her low mood or most likely a combination of the two.

Specific incidents and bruising:

[94]In the context of the environment in which R was being brought up there were a number of specific incidents about which the court is asked to make findings. In particular, R sustained bruising to the face on two occasions and also to his abdomen during the short period he was in the care of his mother and father. The Local Authority have taken the view that they should not pursue findings in relation to these marks. Mother denies causing them and requests the court to make findings to assist in the determination of R’s welfare. The local authority rely on what they describe as the unsatisfactory nature of father’s evidence about causation as being relevant to his credibility.

[95]In fact, little issue has been taken between the parties in relation to the causation of the bruising. The father explains his own responsibility for bruising to R’s face as a consequence of the manner in which he cared for R, which was periodically inept at best. In the court’s judgement it veered from careless to reckless. Mother was not directly responsible for any of the bruises but took no obvious action in relation to any of them or their unfolding sequence. Taking each incident in turn:

[96]Father‘dropping’ R onto the bed: A great deal was made of this minor incident. Undoubtedly, as mother said, father was not happy about being woken up and R needed feeding. Mother thought father handled R roughly but as I have concluded this was not unusual and is not to be taken on its own to be indicative of deliberation but rather inexperience, fear and a pre-occupation with his own needs or wishes. I accept that mother was limited in her mobility by the effects of the caesarean section and that she was in fact dependent upon father to hand her R. I have also come to the conclusion that as time went on she played on her wish for support and she enjoyed challenging father as part of her controlling nature. Father was meanwhile pre-occupied with his own attempt, futile in the event, to calm the child. He passed R round the corner of the bed and turned awkwardly with the consequence that R landed roughly on the bed. On this occasion he was no more than careless. Mother’s exaggeration of the whole incident after the event is summarised by her description of her distress which on the basis of her oral evidence I do not accept and her comment to the police that she felt she needed to “get R out of it”. That now has the effect of making the local authority question her ability to protect because even if she believed what she said she never acted on it.

[97]Waah incident and other shouting: This incident occurred. Father does not seek to deny it albeit he minimises the event and the effect. Mother said in her oral evidence that “(N) was stood a few feet in front of him; imitating the noise which R was making (‘waah’). There was no point in him doing it; R did not understand; I did not like it” …” He was getting agitated and annoyed with him for not stopping crying…he screamed at him…it was very, very loud”. Mother also described how father used to shout obscenities at R when R was crying. I accept mother’s evidence on this point.

[98]First mark on R’s left eye: Mother confirms in her evidence that father was caring for R at the time immediately before the mark was first noted. He says that R’s head fell forward while he was holding him and R hit his face on his cheekbone. The local authority submit that it is more than just puzzling that the injury to R’s eye which can be seen on a photograph dated 16 July 2006 was said to have been caused by R’s face colliding with father’s collarbone given that, on father’s account, R did not even cry in this incident. I agree. As to whether R would be expected to cry if he had injured himself to this extent: father himself accepts that the lack of crying is “odd” in the circumstances.

[99]In like manner to the court’s conclusion about father’s account of 11 August 2006 he admits to the happening of the event but cannot bring himself to describe the full extent of his responsibility. In my judgement to have caused a bruise on R’s bony prominence by the mechanism described that became obviously blue / turquoise would have necessitated a knock against R’s face equivalent to hitting a hard surface. I do not disbelieve father but I have no doubt that he must have been sufficiently rough as to have been reckless. The court’s judgement is coincident with the opinion expressed by Dr Smith.

[100]There is an issue about when the bruising was caused. I do not accept the invitation to try and age the bruising from photographs: a notoriously unreliable practice, but I do accept that it is unlikely that the bruise which was then described by father as a black eye was caused on the same day that it was first seen by the paternal grandparents. It is only mother who says this and both grandparents disagree with her. Yet again she tailored her evidence, but on this occasion I am clear that she did so to hide the fact that she had known of the bruise for a day or perhaps two and had not questioned its existence or brought it to anyone’s attention.

[101]Second mark on R’s face: This was a mark caused by less force and hence led to what looked like a bag or dark ring under R’s eye. Father says that the mechanism of accidental injury was the same. Father repeatedly tried to explain to the court his slightly unorthodox methods of holding R away from and facing himself like a rugby ball. I came to the conclusion that he had never handled a rugby ball but rather more importantly that he had no confidence in holding R and that this together with his rough style of handling, which was conceded, predisposed R to injury. If the first eye injury was reckless and the second careless it speaks volumes about father’s insight into the quality of care he provided. Again the court’s judgement about this mark accords with the opinion expressed by Dr Smith. Father did not appear to have gained any experience as he went along.

[102]Mark on R’s abdomen: This was a mark which according to the parents lasted for more than a day. Mother said that she suspected father had caused it and that he had squeezed R to stop him falling forwards. She challenged him after it was noticed by the grandparents and says that she did not get a satisfactory response. Father says that he does not know how it was caused but speculated that it might have been the car seat buckle. It appeared to be more than a temporary skin crease caused by clothing. None of the evidence was convincing and I have to conclude that the cause of the mark is unknown. Yet again mother’s protective response was equivocal.

[103]Father’s use of the bouncy chair: Both mother and paternal grandmother criticise father for being “too rough” with R when R was put in the bouncy chair. Mother said that she “would take him out of the bouncer because I did not like him in there”, and that father would be pre-occupied with the television or the play-station when R was in the chair. The bouncy chair was used by father to placate R. He developed a habit of rocking the superstructure of the chair with his foot. He would become pre-occupied with the television or the play station with the consequence that he rocked the chair excessively.

[104]Protection: In so far as both mother and father did not act so as to separate from the other and thereby remove R from an environment which was harmful: they are equally responsible. In addition, I have come to the conclusions set out above about mother’s awareness of the bruising and her equivocal reaction to it. The mother said to the police in interview that she had had “her suspicions” about the causation of the injuries. I do not doubt that this was correct but she did nothing about it at the time. She did not display any overt protective mechanisms. It is all the more concerning that mother did not take the opportunity to mention her suspicions or relationship difficulties with the health visitor or the general practitioner at the time, particularly as(a) they knew of the background of domestic abuse and mother knew that they knew and

(b) there were occasions when she was on her own with professionals when she could have done so. They had given her specific advice about what to do, but she did not follow it. Mother went so far as to tell the health visitor on 25 July 2006 that “things were OK” and that her relationship problems were in the past when this was not true.

[105]This court never takes lightly an allegation of domestic abuse let alone a course of conduct both as to its effect on the victim and the child but the court’s understanding of the fears and dangers involved must be put into the context of the facts. In this case mother was not overborne and must bear responsibility for that which she saw and heard and her failure to act on the same.

[106]Having considered the parents’ relationship, the environment and the general care afforded to R it is now necessary to examine the rival contentions as to how the chronic and acute SDHs were caused.

[107]The Local Authority submits that R sustained a traumatic non-accidental head injury in early July which caused an acute SDH which, in due course, became a chronic SDH. They submit that father inflicted a second acute SDH in August. They submit that this is one of those cases where it may not be possible to identify one parent as the perpetrator of the first SDH but ask the court to consider the following analysis relevant to each parent: Mother Father Opportunity Opportunity Closely involved in the care of R Closely involved in the care of R Stresses in the parental relationship; this particularly affects M who was thinking of leaving F at about the time when we say it is likely that the first SDH was inflicted Stresses in the parental relationship M’s general low mood (which persisted for much of the period through to end-July) Alleged likely perpetrator of the second injury Inept parenting (not supporting head etc – see concessions) Inept parenting (not supporting head etc – see findings and concessions) M’s (admitted and observed) tiredness Possible impact of drink

[108]It is necessary to examine these contentions alongside the findings made and the expert and observational evidence that exists.

R’s birth: subdural and retinal haemorrhaging

[109]The experts described birth as a traumatic event for mother and child. It is arguably so in every case. In R’s case it was clinically more complicated than many and different attempts were made to achieve his delivery. It is apparent from the notes that ventouse was used, and two pulls were made in order to assist R down the birth canal. There is no clinically objective or reliable evidence that the midwifery team also used forceps, though plainly at one time it was considered and it is at least possible that they did.

[110]There is reference to R having a head ache after the birth (he was given paracetamol), he had a “superficial laceration” on his head caused by the ventouse cup and there is a reference to him being ‘jittery’ and having an ‘impacted’ head. His parents described R as having a ‘funny shaped head’ and the court heard this evidence from both the parents and the paternal grandparents. It is undoubtedly correct.

[111]After the delivery, R was regarded as being well save for the matters referred to at paragraphs 3 and 4 of this judgment which the court accepts.

[112]Having regard to the research material it is certainly possible that R sustained an SDH at birth; some of the experts considered that it was even probable. Observationally, there is no evidence for the same i.e. there is scant (non-specific) evidence of R displaying signs/symptoms which could or would be associated with neurological impairment as a consequence of an SDH, for example:a. He did not require resuscitation after the delivery and had normal Apgar scores;

b. He breastfed within 75 minutes of his birth;

c. He cried quickly and had normal respiration;

d. He was described as a “well-looking baby”;

e. He was described as “appearing hungry” while he was on the ward after his birth and was “feeding well” and “frequently” ;

f. His recovery was described as “uneventful”;

g. He had a “satisfactory” baby check after the delivery.

[113]Observational evidence would not of itself on the balance of probabilities rule out an SDH which fell into the category of one of the ‘silent’ SDHs as described in the Whitby research and in an opinion I regarded as reasonable in all the circumstances, Dr. Stoodley specifically commented that “I would not be at all surprised if he had a subdural haemorrhage at birth…”.

[114]The contrary indicators would include the agreed proposition that if the SDH was in the Whitby / Rookes / Looney category, it would have been expected to have been in the posterior region, not the front-parietal region which is regarded by the experts as an unusual situation for a birth injury. They would also expect a silent birth SDH to have resolved within a period of 4 weeks.

[115]Turning then to retinal haemorrhaging. It is not only possible but in my judgment probable that R suffered retinal haemorrhages at birth but that the absence of evidence of their existence on examination is not surprising nor is it indicative one way or the other of birth trauma sufficient to have caused a birth related SDH. As Mr. Lloyd commented in his report: “Normal birth and particularly assisted deliveries commonly produce retinal bleeding (in up to 60% of new born infants)”.

[116]He opined that retinal haemorrhages would ordinarily be expected to have completely resolved well within the 10 week time-frame of R’s care by his parents (i.e. by the time the eyes were later examined). He added:

“Occasionally large birth related sub-hyaloid haemorrhages can persist for longer than this. However the clinical picture observed on the 16th August 2006 was not of partially resolved sub-hyaloid haemorrhage but of multiple wide spread intra-retinal haemorrhages and relatively fresh sub-hyaloid and vitreous haemorrhage”

[117]In oral evidence Mr Lloyd was asked to give an opinion about the age of the haemorrhages he observed and the timeframe within which he would have expected birth related retinal haemorrhages to disappear. His evidence was persuasive and un-contradicted. He said:

“(It is) difficult to be exact and it depends on the type of haemorrhage, but looking at the birth date a blot and dot haemorrhage would take 2 – 6 weeks depending on its size. A pre-macular haemorrhage can hang around for up to three months. A resolving pre-macular haemorrhage looks very different to the ones I observed. It has several edges with white lines showing absorption. The retinal haemorrhages I saw in R did not look like that… …I am very much aware that we are not infallible and that there are always exceptions to every rule, but the presence of dot and blot haemorrhages and fresh pre-macular haemorrhages point to the recent onset of retinal bleeding.”

[118]Accordingly I find that it is likely that R sustained eye haemorrhages during the birth process but that these would have been expected to resolve between 2 weeks and at the latest 3 months after birth. The eye haemorrhages observed by Mr Lloyd on his examination on 16 August 2006 were likely to have been much more recent than birth and are not relevant to this key issue.

The chronic subdural haemorrhage

[119]None of the experts favoured the hypothesis of a ‘slow ooze’ or a ‘repeat seep’ of an acute SDH caused at birth. Having regard to the parents’ concessions about rough handling it was important to consider both these hypotheses and how the chronic SDH which did exist was formed.

[120]Most particularly, it was noted and agreed that the experts have not observed bloods of different ages in the subdural spaces. In the experts meeting, Dr. Chapman rejected this possibility by commenting [D255] that:

“what we don’t see on the scans are a whole series of subdural haematomas. We see one old one or bilateral ones which are old and then the recent ones. We don’t see a series of subdural haematomas as a result of episodes of poor handling during this child’s life.”

[121]This remained his unchallenged opinion and I accept it.

[122]In oral evidence,Dr. Stoodley was asked whether it is possible if a child sustained a bleed into the subdural space for it to continue to ooze blood over a long period of time to create a chronic collection. He replied that:

“It could possibly occur, but it but it is abnormal, as the brain would not grow.”

[123]He added that the hypothesis did not fit with what happened in R’s case and that he could give that opinion confidently. He added: “I can’t completely exclude it on the basis of ‘never say never’, but we are not seeing these cases. As Rooks says, incidents of birth related subdural haemorrhages are up to 47%. I don’t see those cases in my clinical practice, nor my medico legal practice”.

[124]Dr. Chapman commented that: “For there to be a re-bleed it has to be on the basis of a sizeable chronic subdural collection, rather than a small one that gets bigger and bigger. You would also see more layers like the rings on a tree stump and that’s not what you get in R’s case”.

[125]He was specifically asked whether if at birth R suffered some bleeding in the subdural space that might ooze and seep blood over a period of time to generate the not inconsiderable chronic collections later seen on the scans. He replied:

“No, it could only happen if R had a blood clotting disorder.”

[126]Mr. Richards commented on this in his report:

“I would therefore consider it highly unlikely that the process that caused the chronic subdural haematomas was well established by 7 July 2006 and had the acute bleeding been at birth I would have expected the process to be well established by then. I therefore consider it highly unlikely that events at birth led to the development of the chronic subdural haematomas.”

[127]In my judgment this is the definitive analysis. Although there had been some avoidance of the question of why and/or in what circumstances an acute SDH can become chronic that was not because the scientific mechanism is in issue, it is not, but rather because the pre-disposing factors or triggers are unknown. Whereas there is nothing known (or rather nothing made known to the court) which demonstrates why a birth related SDH is any more or less likely to develop into an chronic SDH than an acute SDH of any other aetiology, the appearance of this chronic SDH is such that it is unlikely to have developed from a birth SDH.

[128]The only evidence to the contrary was an opinion proffered by Mr May where he compared the incidence of a slow ooze/ repeat seep with the process that occurs in the elderly. In fairness to him (and he is a very careful witness who overtly considers all possibilities) I do not think it was intended to be more than a hypothesis for discussion, but for the sake of completeness I have considered it as if it deserved full weight. The other experts did not support such a comparison, commenting on the different structures and vulnerabilities of the skull and brain as between neonates and the elderly. Moreover, Mr May confirmed in cross-examination that if an acute SDH at birth had turned into a chronic SDH, any seepage over a period of time would have become more obvious before 11August 2006. Having regard to what the experts say, I regard the comparison between neonates and the elderly as no more than a speculative possibility and I have excluded it.

[129]As an example of his careful review of alternative possibilities, Mr May explained that if he confined his opinion to the cerebral findings both radiological and from the clinical history he would say that it was certainly possible that the application of ventouse forceps (sic) could result in subdural bleeding which, in the time frame from birth to presentation at 10 weeks, could have resulted in a gradual accumulation of a chronic subdural hygroma collection. This was the most positive expression of that possibility. Over time Mr May came to regard the hypothesis as theoretical and unlikely. The balance of opinion otherwise expressed ranged from “very, very unlikely” (Dr Stoodley), and “highly unlikely” (Mr Richards) to “extremely unlikely” (Dr Chapman).

[130]Is there any observational evidence including lay evidence which suggests otherwise? There is none that I can discern and the parents’ representatives have not themselves identified anything else that is relevant.

[131]Taking the medical and observational evidence together, there is at least a strong possibility that R sustained a birth related SDH but even if he did it is unlikely that that developed into the chronic SDH which was later observed. In that circumstance, the existence of a birth related SDH is irrelevant and the remaining possible causes for the chronic SDH must be examined. I find as a fact that the chronic SDH did not develop out of a birth related acute SDH and the possibilities that remain are an accidental or deliberate traumatic event or an unknown cause.

Other causes of the chronic SDH:

[132]Dr. Stoodley and Mr. Richards described the process of evolution of an SDH which includes the breaking down of the acute SDH, the increasing collection of fluids and the expansion of the collection of fluid causing swelling of the head. They were of the opinion that the time-frame for the breakdown of the SDH would be two to three weeks following the causative event. As the plates of the child’s skull are only loosely connected at this young age, the sutures allow for expansion of the head circumference, although some modest ventricular compression is possible. If a causative event occurred shortly before 7 July, then the head swelling would begin at the end of July and the presentation observed would be within the ‘radiological dating’ predicted by Dr Chapman.

[133]It is common ground that a traumatic event causing an SDH may provoke a range of symptoms. Dr. Stoodley and Mr. Richards confirmed that there are many non-specific signs of trauma which “range from going quiet for a while to going off feeds, vomiting, reduced levels of consciousness, abnormal movements and seizures to frank coma”. Dr. Stoodley explained the consensus as follows:

“It is not likely to be the subdural haemorrhages themselves which cause the signs and symptoms as we know that subdural haemorrhages can be clinically silent and the pattern of subdural bleeding seen in cases of NAHI where the child has relatively few symptoms and who gets better quickly is just the same as the pattern seen in infants who present moribund and go on to die. What differs between these groups is the degree of associated brain injury …”

[134]Mr. Richards in his oral evidence commented on the symptoms associated with an SDH at the lower end of the ‘symptom-scale’ as being “irritable, not feeling well, crying, not a happy baby, similar to tummy upset and wind”.

[135]R displayed symptoms of sickness in early July: he was taken to the general practitioner with a history of persistent and excessive crying and mother described his ‘continuous’ crying. He was found then to have a slightly tense anterior fontanelle. In the course of her evidence in chief, the mother said:

“on the 7th July he was crying and crying; I held him and that would not settle him; I changed him and that did not settle him; he was trying to tell us something was wrong; we just could not sort it.”

[136]In cross examination she said that this “persistent and excessive screaming” became prolonged. By the end of July mother believed R to be poorly with a cold and she told the police that the symptoms were “cold, sweaty, eyes slitty, puffy”. She became sufficiently worried about him by early August that she was up all night with him and slept with him on her chest.

[137]It is common ground between the parents that after that first week in July, R was “not his usual self”. Father described him as “more whingey” and “grouchy” and as having an “agitated” cry but did not remember the “continuous crying” and “excessive crying” described by the mother. He said that the crying “was not as intense as when he was grumpy”.

[138]Although the health visitor notes that as at 25 July 2006 R was not displaying any ‘concerning’ signs of illness:

“R was seen in the care of (S). R presented as sociable and alert to responses. He was reported to be bottle-feeding, well and his weight was … (on the) 75th percentile”; by shortly after the 27 July 2006, mother was describing him as behaving “like he shut off to everything”

. On 3 August 2006 she took him to the doctor again.

[139]These descriptions are consistent with the occurrence of an event causing an SDH on or about 7 July 2006. The subsequent symptoms (if related) are at the lower end of the description given to the court and would correspond with the evolution of a haematoma within the brain; the expanding subdural collection being associated with low-grade cerebral irritation.

[140]There is also some evidence of a change in R’s head circumference which could support the proposition that R sustained a traumatic event in July. In my judgment the evidence of increasing head circumference is unreliable as a diagnostic indicator because of the professional unease about the reliability of the measurements taken and can only be used to cross check to an otherwise reasoned opinion.

[141]Dr. Smith said that “to have three measurements in the first six weeks is more than you would normally get. I would not draw much from two measurements, but I can from three, and come to the tentative but reasonable conclusion that the head was growing normally”. Dr Chapman, Mr Richards and Mr May agree that if one looks at the trend of head circumference growth, that does not date back to birth but to after the first three measurements which were on the 75th centile whereas at the point of admission to hospital R’s head circumference was on the 90th centile. This suggests that an event causing the SDH would have been after the first three measurements.

[142]Accordingly, there is a body of opinion evidence which if I accept it supports a traumatic event rather than an unknown cause for an acute SDH which evolved into the chronic SDH. I have come to the conclusion that the opinions stated are reasoned and have not been undermined or contradicted. When taken in the context of the findings I have made about the environment in which R was being cared for there is sufficient evidence to find as a fact on the balance of probabilities that the chronic SDH was the result of a traumatic event rather than an unknown cause.

[143]As to the nature of that event, I am reminded of the evidence of the experts about the degree of force which would be required to cause an acute SDH with associated symptoms at the lower end of a spectrum of harm. Aside from the observations in the reported authorities which I have considered, Dr Chapman’s opinion was that the event would have been “outside of the normal handling of a young infant” and Mr Richards’ opinion was that the degree of force is “unknown but clinically we believe that it’s greater than acceptable and normal handling” . Dr Stoodley added that it is “such that an independent witness would recognise that it would be likely to lead to harm to the child” and Mr May agreed. I accept this evidence.

[144]There are 2 possible perpetrators in the pool: mother and father. I am asked to consider whether a perpetrator or perpetrators can be identified or whether both parents should remain in the pool of perpetrators on the basis there is a real possibility that either or both of them may be responsible.

[145]Neither mother nor father have described any event or course of events consistent with the evidence I have accepted. They both concede rough handling and father conceded accidental bruising. I do not believe that the incident where father dropped R in the bath through the careless use of baby oil is likely to be the causative event. Although theoretically possible as a causative event, the dating of the incident is only two to three weeks after birth and according to the experts advice that would be too early by two weeks. I accept that there is a fine dividing line as between an unknown cause and an established cause which was not and is not known to either or both of the parents where an event of this nature does not lead to florid symptoms. There is nothing which indicates that mother was ever reckless in her physical care of R whereas there is in relation to father. However, as respects this event there is insufficient evidence to conclude that father’s care was deliberately harmful.

[146]In my judgment in all the circumstances it is a reasonable judicial inference to conclude that on the balance of probabilities the chronic SDH was caused by father’s reckless handling of R. There is no doubt in my mind that the reckless handling was rough and beyond that which was acceptable. Having regard to the suspicions mother expressed but did not act upon (which did not include this event), I do not think mother observed the event which caused the first SDH and is not to be held responsible for a specific failure to protect in respect of this incident although I do think she exhibited a general failure to protect as set out earlier in judgment.

The acute subdural haemorrhage

[147]There is no doubt and I find as a fact that there is evidence of fresh bleeding seen first on the CT scans, and then on the MRI scan. It only became apparent in the oral evidence of Dr. Stoodley that the sites of the fresh bleeding were not all to be found in the areas of the chronic SDH. In my judgement, this is significant evidence. Dr Stoodley said that the fresh bleeding was also seen on the scans in the following areas within the skull:a. posterior fossa,

b. along the posterior falx, and

c. into the posterior inter-hemispheric fissure.

[148]Dr. Stoodley added that there was “no link” between the chronic SDH and the acute haemorrhages on R’s scans. As he said, not only is there fresh / acute bleeding into different spaces, the positioning is significant:

“bleeding into the posterior aspect of the cerebral hemisphere and the posterior inter-hemispheric fissure are very typical distributions in the context of non-accidental head injuries.”

[149]This had not previously been highlighted in any of the reports or in the discussion at the experts’ meeting although in fairness it is described in Dr Stoodley’s report. It is helpful in putting into context the discussions which did occur about ‘lesser degrees of force’ which might have been appropriate to cause a fresh acute bleed at the site of a chronic SDH. As Dr. Stoodley confirmed, the distribution of the bleeding assists in understanding the causation. He said that the rear inter-hemispheric fissure is a very unusual site to find blood as a consequence of accidents whereas it is usual for non-accidental injuries.

[150]Mr. Richards commented upon this in his oral evidence:

“It would be difficult, though not impossible for fresh blood to move to the posterior fossa. I think it likely that acute blood in the posterior fossa originated in the posterior fossa”

He later added:- “think of the head as a 3-storey house; the cerebral area is the top storey, the posterior fossa is the middle storey and the spinal canal is the lower; there is a very narrow channel between the cerebral area and the posterior fossa”.

[151]I accept their evidence.

[152]The evidence of both mother and father appears to correspond in that they say that there was a sudden change in R’s demeanour on the evening of 11August 2006; this is described variously in the documents, and by the mother in her oral evidence which on this aspect I found compelling:

“I heard a loud scream. I was at the other end of the garden; it was a horrible scream which I had not heard before; it was R. It was just a really loud scream. I think that the window was open. I shoved the ferrets out the way; make them think I was going one way… I went in; walked through double doors; (N) was standing in the living room front room; (N) is holding R and R has his back arched backwards. (N) has one hand at the top and the other at the bottom. His whole back was arched; bottom and middle of back; arched backwards. (N) said that there is something wrong with him. R’s face were a greeny grey colour; his lips were straight and his pupils were small. His chin was all up and his lips were all straight. I don’t know how he did it. I was stood looking, trying to work out; R started to relax; then he screamed again, and his arm were up like that (demonstrates); I then took him off (N); I thought that he was holding him funny; I sat down with him; he did not relax; (N) went out into the garden to put the ferrets away. I said that I don’t know what to do – phone 999 or what.”

[153]The experts are unanimous in their opinion that the event which caused the second SDH occurred very shortly i.e. minutes or even seconds before the sudden neurological change. This has been their consistent view throughout. Each was given the chance to support the idea of ‘lucid intervals’ and periods of “wellness” after the traumatic event but none would be drawn.

[154]What was that event?

[155]In the intervening minutes before the onset of sudden neurological change described by the parents, R was in the sole care of his father while mother was in the garden with the ferrets. Mother and father have different recollections or perceptions of R’s demeanour at the point at which mother left the room to go and tend to the ferrets. Mother’s evidence was that:

“(N) said that he needed to do the ferrets; R was gurgling/googling; baby-talk; he was fine; I was pleased when he settled. I held R when (N) had his tea; we were eating on the settee at that time.”

[156]Father’s evidence, by contrast, was that:

“I had R in front of me in the bouncy chair. I remember him crying at the time; he was quite whingey; it did not have the soothing calming effect. More vigorous than a person would see…. Difficult to describe how vigorous it was. I would have called it vigorous. More than normal. Same amount of force; same as before… At the top end of my vigorous rocking. This time (he usually likes the vigorous bouncing) it was not calming him at all.”

[157]Mother did not appear to me to be recollecting what happened with any clarity and I prefer father’s evidence up to the point where injury occurred.

[158]In the absence of mother, father wanted to watch the television and became engaged in his routine activity of trying to settle R by vigorous bouncing of the ‘bouncy chair’ in which he had placed R by the use of his foot. Father’s initial story was that he had used the ‘usual’ degree of force to bounce R. That is what he told the police. He subsequently said in evidence that while doing this R’s head had bounced forward from the back of the chair while he was watching television. He said this had happened on two occasions prior to the incident on 11 August when he had been engaged on the playstation and watching television. Father said that R remained ‘whingey and grumpy / grouchy’. He did not settle. He accepted that the degree of force occasioned was inappropriate but gave the clear impression in the demonstration he enacted that it was accidental i.e. his foot came off the metal leg and caused an undue amount of force which led to R’s head leaving contact with the back of the seat.

[159]Father’s final version of events came when he asked to be re-called and was as follows:

“On the day of the 11th, whilst (S) was out feeding the ferrets and I was bouncing R he was not calming down. I stopped bouncing him suddenly; his head came forward and bounced on his chest. I picked him out of the chair and 20 seconds later he started screaming.”

[160]In cross examination the following evidence emerged:a. R was ‘whingey’ all day;

b. Father agreed that ‘whinginess’ “raises tension” in parental carers;

c. R was still ‘whingey’ when mother went out to feed the ferrets; R was by that time in his bouncy chair;

d. Father rocked R in the chair in the same way as he had done many times before;

e. The rocking did not seem to pacify R; on the contrary, R became more upset;

f. Father was concentrating on his television programme; he was not paying R much attention;

g. Father lifted his foot off the wire strut which was the one at 45º to the ground;

h. The whole chair moved forward with R;

i. R’s head went forward and then back to the “normal place in the chair”;

j. There was only one motion forwards (not repeated);

k. There was a period of time between that event, and the scream/arching of back at which F unclipped R from the seat, lifted him out, and walked once or twice around the room;

l. Father was vague about R’s presentation in that period, though said that he thought he was still “crying and whingeing” as before; he could not remember if he got more whingey.

m. Father denied having momentarily “lost it”; and

n. He categorically denied shaking or indeed any other event which could have caused these serious injuries.

[161]Having heard father give his account twice and carefully watched his changing demeanour and language, this court has no doubt that these events occurred. When father was asked by the court to reflect on the evidence he had given and in particular in relation to what happened next, for example, whether there had been an angry or urgent snatch of the child from the chair which could have caused R’s head to flex backwards and forwards, father replied “I cannot remember. I think I would have remembered something like that”. His reply was strangely equivocal.

[162]Although I accept father’s final account so far as it goes, I am very clear that he has not told me all he knows. This is not the truth, the whole truth and nothing but the truth. The local authority submit that his final account does not explain the severity of the injuries sustained and in that regard it is necessary to consider what the experts say about the degree of force required to produce an acute SDH and also the eye haemorrhages which were discovered.

[163]Dr. Stoodley’s evidence was that:

“forces do appear to be engaged (if the head is lifted off the back of the bouncer) but they are lesser forces. What appears not to be described is what the majority of medical opinion indicates is required which is the repetitive movement of the infant’s unsupported head. What most people believe is that the head needs to go down onto the chest, and then go back so that the head is on the infant’s back … (demonstrates) which is what we do not have here”

He added: 166. The description given by the father does not appear to me to have the requisite degree of movement of the unsupported neck as to cause such injury.

[164]I remind myself that none of the experts heard or saw father’s final account and demonstration but in my judgement their opinions are reasoned and can be applied by the court. Dr. Smith reminded the court that “rotational” forces are important. She opined that inadvertent misuse of the baby bouncer would not be likely to be enough to cause R’s injuries whereas “using the baby bouncer as a catapult” might. On the evidence then available to her, she commented that “father’s description does not account for the kind of misuse to cause these injuries”.

[165]Mr. Richards said:

“no-one knows the minimum degree of force. I would not say that it is impossible for the injuries to be caused in this way, but based on events in the normal world where babies bounce out of bouncers, and are in car seats in crashes [and do not sustain injuries] I would not say so. There has to be a significant severe memorable event. I would not expect the baby bouncer to cause these injuries though I agree that I could not say that it is impossible.” “I do not accept that the baby bouncer caused these injuries. I say that it is unlikely on the basis of my clinical experience”

He added:

[166]Only Mr. May gave any credence to the possibility that the fresh/acute bleeds could be caused by R being bounced over-vigorously in the bouncy chair but he would not go further than to say that it was ‘compatible’ or ‘consistent’ with the injuries. Indeed in his written report he said that:

“The appropriate or inappropriate use of a baby bouncer has been described in a single case report some years ago in which a very vigorous application resulted in acute bleeding, but I think this is a highly unlikely explanation”

[167]All of this is consistent with the expert evidence on the same topic accepted by Butler Sloss P. in Re A and D (supra).

[168]Dr. Stoodley said in oral evidence that he was aware of one other case where a child had suffered SDH as a consequence of the actions of his parent and a bouncy chair. In that case:

“…the adult placed his foot on the metal bit and catapulted the child across the room”

. Dr. Chapman added in his oral evidence that: “everybody who has had a baby has had a bouncy chair. If it was that easy to make the chair bounce forward, these chairs would carry a health warning and there would be something in the medical literature”.

[169]There was unanimity in the expert opinion that father’s original descriptions of the incident would not have been the cause of the acute SDH. In my judgement and having regard to what he subsequently said and the principles the experts have explained, father’s account still fails to describe the full circumstances of the event which caused the acute SDH.

The eye haemorrhages

[170]The research guidance which informed the expert evidence to this court is the Royal College of Ophthalmologists’ working party update report of 2004. This contains the following advice at page 796:

“It is highly unlikely that the forces required to produce retinal haemorrhage in a child less than 2 years of age would be generated by a reasonable person during the course of (even rough) play or an attempt to arouse a sleeping or apparently unconscious child”

[171]Despite the language of that advice, Mr Lloyd is not dogmatic and considered his opinions from first principles and on the facts having regard to the examinations he performed. I accept his reasoned opinions. He had the advantage of having seen R on three occasions. He reported his opinions as follows:

“extensive retinal haemorrhages in both eyes. His right eye fundus had a large pre-macular haemorrhage … and there was a break through of this blood into the vitreous cavity. There were multiple fading intra-retinal haemorrhages scattered throughout the retina – out as far as the equator. There were no superficial nerve fibre layer haemorrhages evident. The left eye fundus also had a smaller pre-macular haemorrhage with some breakthrough of haemorrhaging into the vitreous cavity. Again there were multiple fading intra-retinal haemorrhages scattered throughout the retina. These extended as far as the equator. There were no signs of nerve fibre layer haemorrhages.”

[172]In the experts meeting in September 2007 he said that:

“the large pre-macular haemorrhages are markers of severe injury … you do not see this clinical picture after an accidental injury. Pre-macular haemorrhaging is a marker for severe injury.”

[173]He remained of that opinion in oral evidence and added:

“This involves something a parent would not forget, for example a parent falling on top of a child, a child being in a significant road traffic accident or being thrown from a buggy.” “It is difficult to date retinal haemorrhages of this type. If you have two episodes of retinal bleeding, it is difficult to separate them out. I would emphasise that the pre macular haemorrhages [seen on 16th August] did not have the appearance of old resolving haemorrhages”

[174]He declined to accept that father’s original account of the incident of R in his rocking chair was consistent with his examination findings. His written opinion, from which he did not depart in the experts meeting or in oral evidence, was that:

“the most likely cause of R’s initial clinical picture is non-accidental inflicted neuro-trauma. There is some evidence to suggest that accidental trauma can occasionally give rise to retinal bleeding. However there is little or no evidence that minor accidental trauma can produce extensive retinal bleeding of this nature”

And he said in oral evidence:

“I examine hundreds of children a month, most of whom are bounced up and down by their dads in a baby bouncer. I don’t believe that is the mechanism that causes bleeding. It would have to be a very acute and sudden rise in pressure to cause retinal bleeding. I don’t believe that the forces you describe in the baby bouncer explain the force required”

. And he said in oral evidence:

[175]As to the timing he said that because of the absence of superficial nerve fibre layer haemorrhages in his opinion the damage must have been caused a few days earlier:

“… on the 16th August when R’s eyes were examined that there were no sign of superficial nerve fibre layer haemorrhages. Now normally when children suffer retinal haemorrhages as a result of a shaking or shaking impact injury then haemorrhages of several different types occur but the superficial ones which look flame shaped or splinter shaped disappear pretty rapidly usually within a week. It is quite consistent with the observations that there weren’t any haemorrhages on the 16th August of that nature with an injury on the 11th. Often haemorrhages of the superficial type will disappear in a few days so I would say that it is quite possible that the injury occurred on the 11th August”

The causes of the acute SDH and the eye haemorrhages

[176]I find as a fact that father’s account does not explain either an acute SDH or the extensive eye haemorrhages and even less so both. It may be that a lower spectrum insult could be consistent with the description of the transient neurological or encephalopathic change which R suffered but even as to that possibility on the facts of this case there was no support from the experts.

[177]While it is a reasoned hypothesis that a lesser degree of force would have been required to have caused re-bleeds into the area of the chronic SDH I accept that the acute injuries were not caused by a ‘lesser degree of force’ than that involved in the first SDH for the following reasons:a. there was bleeding to other areas unaffected by the chronic SDH;

b. R suffered encephalopathic / neurological changes which would not have been caused by bleeding into the chronic spaces;

c. R suffered extensive eye haemorrhages.

[178]Having regard to the opinions this court has heard and accepted I have come to the conclusion that father not only inappropriately bounced R in his chair while being pre-occupied with his own entertainment but that he went further and in an incident which was more than merely careless or reckless he caused the second SDH and the eye haemorrhages which were later discovered on examination. The incident involved handling that anyone would have realised was outside of that which is acceptable and as a minimum it must have included subjecting R to forces which caused his unsupported head to move backwards and forwards. It does him no credit that he refuses to acknowledge what he did. Mother was not present when father perpetrated the injuries and accordingly she did not fail to protect R in respect of this incident other than in the general sense that she had remained living with N and had not previously acted on her suspicions.

Unusual features: parallel features

[179]For the sake of completeness it is necessary to acknowledge that the parties have explored some unusual medical characteristics of R during the course of this hearing. In the event I am satisfied that none of these characteristics taken individually or together explain the occurrence of the subdural or eye haemorrhages. I accept the opinion of Dr Smith that these are conditions or physical presentations which are merely coincident and occur “in parallel”. By definition, things which exist in parallel do not connect. They are as follows:a. Sub-galeal swelling: Dr. Smith acknowledged that the swelling is unexplained; it was not picked up on any of the CT scans, even in October when people were apparently able to palpate it. Dr. Smith was clear that this is a ‘parallel’ condition which does not suggest a vulnerability to SDH;

b. Other swelling: Likewise, Dr. Smith could not hypothesise any link between the ‘boggy swelling’ and the SDH save that the swelling might have affected the measurement of R’s head circumference;

c. October 2006 admission: In October 2006, R was admitted with further bleeding into the chronic collection; this was largely asymptomatic although R was reported to be staring which was not thought to be clinically significant. Again R had an increased head circumference which was thought to be entirely predictable in light of the expanding collection inside his skull.

[180]The expert opinion based on clear research materials which the court accepts is that a simple re-bleed into the chronic collection could have been the product of normal handling. Accordingly, this episode does not assist in explaining the degrees of force likely to have been involved in the ‘first’ or ‘second’ injury.

Conclusions

[181]On the balance of probabilities, the Court concludes that R was subjected to repeated harm while in the care of his mother and father. That harm was significant.

[182]Father was responsible for each of the major incidents of NAHI. The injuries were inflicted on the child by a parent whose capacity to handle his own temper and mood appear to have been seriously inhibited and in a household where eruptions of verbal and occasional physical aggression were not uncommon.

[183]Mother’s position and responsibility can be no less than her own acknowledgement that:

“I was naïve. I didn’t see what was happening in front of me. I did not believe that babies got hurt”

[184]In my judgement it goes further than naivety because she ought to have been on notice that R was being increasingly seriously harmed by his father and she suspected as much.

[185]Without doubt the threshold for this court’s intervention in section 31 of the 1989 Act is crossed. It is both necessary and proportionate that R remains subject to an interim care order during any further assessments which might be proposed until this court makes its final welfare determination. Judgment ends.