Lancashire County Council v D & E [2008] EWHC 832 (Fam)

[2008] EWHC 832 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

PRESTON DISTRICT REGISTRY The Combined Law Courts

Openshaw Place

The Ringway

Preston

PR1 2LL

Friday 14 th March 2008

Before

THE HONOURABLE MR JUSTICE CHARLES

Between

LANCASHIRE COUNTY COUNCILApplicant

D & ERespondent

LANCASHIRE COUNTY COUNCIL Applicant

D & E Respondents

__________

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__________

Mr Hart appeared for Applicant.

Mr Storie & Mr George appeared for first Respondent.

Miss Singleton & Miss Grundy appeared for second Respondent.

Miss Fenton & Miss Hobson appeared for Guardian.

__________

APPROVED J U D G M E N T

Date Friday 14 th March 2008

APPROVED J U D G M E N T

[1]In accordance with my general practice, before embarking upon giving my reasons, I shall set out my overall conclusion now, so that the parents and others do not have to sit through this lengthy judgment trying to guess the outcome.

[2]My overall conclusions can be summarised as follows. In my judgment the local authority have not proved to the civil standard the facts they rely on to establish the threshold criteria in this case. I go further than that in my judgment, on the evidence in this case, I have concluded that that it is more likely than not that neither the Mother nor the Father have failed to disclose either:(1) that they injured R by shaking him with or without impact; or

(2) a deliberate or accidental event when they had care of ‘R’ which they think, or reasonably ought to think, caused his injuries.

[3]It follows that on the evidence I have concluded that it is more likely than not that ‘R’ was not the victim of such inflicted harm or such an event. In my view, from those findings it cannot be said on a balance of probabilities what the cause or causes of the injuries that ‘R’ suffers from are. I should add at this stage for the sake of completeness that I have also concluded that the Chaise Longue incident does not found the threshold on either of its limbs.

[4]I would add that if either or both of the parents do not want to sit and listen to the entirety of this judgment I would understand if they wished to leave the court. Introduction:

[5]If and when this judgment is transcribed, corrected and anonymised, it is to be a public document. There may be quite a number of corrections necessary to the transcript, given the time I have had available in which to prepare for this judgment. It should be a public document because, in my view, this case and cases like it raise points of genuine public interest and the reasoning and conclusions of the courts in respect of them should be put in the public domain.

[6]I shall refer to the second and third respondents as the Mother and the Father. They are not married they have two children a girl, ‘O’, born on the 20th August, 2005, and a boy ‘R’ born on the 25th of February, 2007.

[7]This is a fact-finding hearing relating to the cause of injuries to ‘R’. The injuries were identified after ‘R’ was taken to hospital on Thursday 5th of April, 2007, when he was almost six weeks old.

The injuries:

[8]‘R’s injuries are: (1) Injuries to and related to his brain and head; (2) Retinal haemorrhages to the left and right eye; and (3) A small left side parietal skull fracture. The brain injuries and retinal haemorrhages:

[9]I take this description from a report of Dr Stoodley. H says:

“Following his admission to hospital, neuro imaging investigation showed evidence of multi-focal subdural haemorrhage, subarachnoid haemorrhage and extensive and rapidly progressive hypoxic ischaemic brain damage as a brain injury”

. That was a passage cited helpfully by counsel for the local authority in his opening documents.

[10]The description of the retinal haemorrhages is taken from a report of Mr Lloyd and it was also so cited:

“The left eye had multiple intra retinal and occasional smaller macular blot haemorrhages. The right eye had a single intra retinal large blot haemorrhage”

. The skull fracture:

[11]This was a short linear fracture through the left parietal bone with no associated soft tissue swelling seen on the scans. The findings sought by the local authority:

[12]Brain head injuries and retinal haemorrhages. These injuries were inflicted and are therefore N. A. H. I.

[13]The skull fracture. No finding of inflicted injury is sought in respect of this and it is accepted the degree of force required to inflict it is uncertain. But I am asked to find that it was not caused as a result of a falling from a Chaise Longue or a cushion, which were accidental explanations offered by the Mother. No other cause is suggested by the local authority. Causation, nature and timing of the N. A. H. I:

[14]The brain injuries and the retinal haemorrhages were caused by a shaking or shaking and impact injury. The event resulting in the injuries is more likely than not to have occurred shortly before presentation at the G. P.’s surgery on 5th April, 2007. The degree of force required to cause the injuries is unknown. However:(a) it was not the result of normal handling or rough play; and

(b) the degree of force used was such that any person causing or witnessing it ought to have realised that it was inappropriate and was greater than that which would be generated by attempts to rouse an apparently unconscious child. Accordingly, any person causing or witnessing the event that caused the injuries realised, or ought to have realised, that it was inappropriate. Further, they were not caused by a fall from the Chaise Longue or any other fall as described by the Mother.

[15]In respect of the retinal haemorrhages, as at the 6th of April, 2007, they were no more than seven days old, and thus not birth related.

[16]So the case of the local authority is that the perpetrator acted in a way that he or she would have known, or ought to have known, was inappropriate and likely to be harmful to a small baby, and thus not something that he or she would be likely to forget. The reality of its case is that the perpetrator knew what he or she had done. Perpetration:

[17]The injuries sustained by ‘R’ were inflicted by the Mother and/or the Father. The perpetrator cannot be identified with greater precision. If either parent was present at the time of infliction of any of those injuries by the other, that parent has failed to protect the child by:(1) Failing to intervene to prevent the injuries being inflicted; and

(2) Concealing the truth as to how the injuries were inflicted. The latter part of this finding flows inevitably from the nature of the alleged cause, that is, shaking or shaking and impact.

[18]No findings are sought by reference to the guidance given by Lord Nicholls in Re. O & N

[2003] 1 FLR 1169

as to which of the parents is the more likely to have been the perpetrator. (See paragraph 32 of Lord Nicholls’ speech). The position of the Guardian:

[19]The Guardian did not take the stance of drawing the attention of the court to relevant matters to assist in the fact-finding exercises and through her counsel asked very few questions. She and her counsel and solicitors were instrumental in instructing experts and in arranging the chairing of the experts’ meetings. I also understand them to be responsible for the preparation of a helpful schedule of the medical views that was provided to the court. Rather than taking the above neutral stance, the Guardian invited me to make the findings sought by the local authority. In doing that she was taking a course that if her, or the local authority’s, submission was accepted had the result applying the approach set out in Re. O & N, that at the next stage of these proceedings welfare, and thus risk assessment and management would fall to be assessed on the basis that it is a fact that one of the parents inflicted ‘R’s’ head and brain injuries by shaking him. This result rules out, for example, consideration in the future of points discussed by the experts relating to this being a case in which the degree of force, and thus the shaking is less than that advanced by the local authority and the Guardian, or of the trigger event being an accident rather than a loss of control leading to a shaking, even if only for a moment.

[20]Neither the Guardian or the local authority assert the shaking they argue took place would be motivated by anything other than a momentary loss of control, but they do include, within the findings they seek, the point that there is a possibility that one of the parents witnessed the other one shaking the child and has remained silent about that. The position of the parents:

[21]They both deny causing harm to, or witnessing harm being inflicted on ‘R’. Apart from a few accidental instances described by the Mother, which she did not put forward as the cause of ‘R’s’ injuries, the parents have not identified an event or events that they say may have caused the injuries. There is no disagreement that ‘R’ has the injuries save that they recognise the limited disputes between the experts as to the existence of the skull fracture; the disputes relate to the causes of the injuries.

[22]As is not uncommon, the parents do not accuse the other of causing the injuries. The Mother, however, in evidence and in submission accepted the possibility that the Father may have harmed ‘R’, and the submissions put forward on her behalf provided a reasoned basis for this.

[23]Before and during the proceedings, the Father made it clear that he would not make any assertion that the Mother harmed ‘R’. In submissions and largely in response to my questions his counsel accepted that the Chaise Longue incident described by the Mother could have been the cause of the fracture, and possibly the trigger event to the brain, head and eye injuries.

[24]As will be apparent from what I have said, the Mother has described an incident when ‘R’ was in her care on the afternoon of the 3rd of April and fell from a Chaise Longue onto a floor which is concrete and covered by a thin carpet. The upshot of the stance of the parties:

[25]This is that the local authority and the Guardian were aware that the parents, who are best placed to describe and challenge events in the household, would not be testing and challenging the evidence of the other parent in any detail. They were and are also well aware that the impression of these parents from a number of sources, including: treating doctors, nurses, policemen, foster carers, those who have supervised contact and work colleagues, was of two loving and supporting parents who were deeply upset by the injuries to and illness of ‘R’. The point that these parents are generally and widely regarded as credible, hardworking, caring and supportive parents was not challenged.

[26]In broad terms, therefore, the task of the local authority in establishing the threshold, and the Guardian either in supporting that finding or through the eyes of the child and to promote his welfare by seeking to get to the truth, were faced with a difficult task of examining from the position of an outsider the events in this household to establish, or to assist the court in determining, the range of possibilities, their degrees of likelihood, and thus what, on an evidential basis and approach, as required by the cases, could be established as real possibilities, and then further as events that were more likely than not to have occurred, and thus the factual stepping stones and reasoning process relating to such findings.

[27]The local authority and the Guardian have to do these tasks without the advantages, or indeed, the burdens of being the decision-maker on issues of fact and credibility. Their roles are not easy, but they are roles that are not uncommon in litigation of this type. Their functions and roles are conducted against a backdrop and in proceedings that resolve very important factual issues for a family and where tragic results can flow from incorrect conclusions. My approach in law:

[28]Unsurprisingly I have taken the approach I set out in A Local Authority & K. D. & L.

[2005] 1 FLR 851

and in Schedule A to my recent judgments ina. A. &

b. B. Numbers 1 and 2 [2007] EWHC Family 2688 and 2395 concerning the first stage of care proceedings. I have been told that that case is due to be heard in the House of Lords on the 19th of May of this year however, in my view, I should proceed on the basis of the existing authorities and no one has suggested the contrary.

[29]In A. & B I refer to the potential for tragic results flowing from an incorrect finding relating to inflicted harm on a child, whether that finding is that the harm was, or was not, inflicted. In those cases I discuss earlier authorities, including Re. O. & N. to which I have already referred.

[30]I have also had particular regard to R v. Harris

(2005) EWCA Crim. 1980

in particular to paragraphs 55 to 100 and to the reasoning in the judgment in respect of the results of each of the appeals. Paragraphs 5 to 100 set out general propositions, the later paragraphs deal with their application and the analysis of facts in cases of this type in the criminal field.

[31]An earlier injury to ‘O’. As mentioned later ‘R’s’ older sister ‘O’ suffered a fracture to her arm when she was about ten months old. I have not heard factual or expert evidence directed to this enquiry and no findings were sought in respect of it. I make no criticism of that I simply raise it at this stage to make clear that I have therefore taken the approach to that injury – that is set out in paragraph 67 of K. D. & L - and therefore its only relevance is as a part of the history of this family. Expert evidence:

[32]My approach to the expert evidence is as set out in particular in paragraphs 54, 62 and 64 in K. D. & L. I add that the nature of the science and reasoning on which an expert opinion is based is relevant. Thus, and even leaving aside the warnings given in later cases, for example, R v. Cannings(2004) 1 FCR 193, it seems to me that the approach taken and the decision made in Re. B. (split hearing)

[2000] 1 FLR 334

in particular the passages at 339 D to 340 D and 340 H to 341D has to be read, and applied, against the background of the nature of the evidence of the radiologists on dating of the fractures, and thus its degree of certainty. Without further analysis that expert evidence led to the view that it was not a reasonable, as opposed to a fanciful, possibility that the child was seen without the fractures in the relevant window of time. The exercise of accepting the medical opinion, and its reasoning, but finding in favour of a conclusion that there was a reasonable possibility having regard to it, although not what the doctors thought was most likely, was not therefore open.

[33]So as in K. D. & L,a part of the exercise I have to conduct is to identify from the expert evidence the range of possibilities. That can be a part of the reasoning process leading to a finding to the civil standard that does not accord with the conclusion that the medical experts think is the most likely or more likely than not. The medical evidence as to the existence of injuries and their possible causes, as identified by treating doctors, are very often the starting point for an examination of whether harm has been inflicted on a child. They together with the views of medical experts remain matters of central importance. But as I sought to make clear in K. D. & L., doctors and medical experts are not decision-makers in these proceedings and, as they accept, they do not have as much information as the court and cannot make findings of fact as to clinical descriptions given by the parents and the credibility of the parents.

[34]None of this was controversial before me as to the general approach, but there was some conflict as to how that approach should be applied, having regard to the respective roles of the parties, leading to an argument as to whether it would be procedurally unfair for me to make some of the findings sought by the local authority and supported by the Guardian.

[35]A natural progression of reasoning is to consider first what injuries there are, then to consider whether they were inflicted, and thus the range of possible causes. Those steps are not conducted by reference only to the medical opinion, albeit that there may often be no other relevant evidence as to the existence of injuries and consequent illness. Causation is different because as to that an important factor is the consideration of how, when and by whom an injury could have been inflicted becomes a necessary part of the analysis. To take an easy example: if a well-reasoned medical analysis leads to a conclusion that a child’s airways were blocked at a particular time, but it can be shown from a video, or third party personal surveillance that no one did or could have blocked the child’s airways during that period, that conclusion has to be revisited. I make this point because in my view at times the approach of both the local authority and the Guardian in this case came perilously close to an approach which, on the basis of the expert medical evidence, proceeded on the basis that: ‘R’ was the victim of a shaking injury because the medical opinion was that this was the most likely cause of his injuries, and the relevant exercise was to consider whether, given their care, and thus the opportunity they had to so injure ‘R’, the parents could show that they did not injure him.

[36]The exercise of identifying a perpetrator, or the pool of perpetrators, forms part of the exercise of considering whether there was an inflicted injury. In my view it is important to remember this because it removes or reduces an approach which considers the overall question from the standpoint that someone with the opportunity to injure a child has to show that he or she did not do so. Again, in my view, the approach of the local authority and the Guardian, at times, came perilously close to this. The correct position is that a medical view as to the most likely cause of injuries is that that cause is clearly established as a real possibility that has to be considered, in all the circumstances of the case, together with the other possibilities, in determining whether a child was the victim of an inflicted injury.

[37]If the assertions of the parents with the opportunity to injure a child that they did not do so are true, a medical conclusion that the most likely cause is inflicted injury would be wrong and therefore in determining whether such assertions are true or false the decision maker has to consider all the possibilities and circumstances of the case. On existing authorities, in these proceedings the truth or otherwise of such an assertion by parents is determined by an application of the civil standard, and if the court concludes that it is more likely than not that either or both of the parents did not injure ‘R’ by shaking him, then that is thereafter, as a matter of legal policy, treated as a fact.

[38]Ina. A. &

b. B. I expressed my view that, on the present authorities the court should strive to reach a finding applying the civil test. This accords with the approach urged by the Court of Appeal in Re. K.

[2005] 1 FLR 285

based on the proposition that the welfare of a child, and I add a sibling affected by the result of proceedings related to an inflicted injury, is promoted by a decision being made, if that is possible, to the civil standard as to the cause of the injury suffered by a child.

[39]As I also explain, a person can be excluded as a possible perpetrator and thus exonerated either:(a) by being excluded from the pool on a real possibility test; or

(b) by a finding that is more likely than not that he or she was not a perpetrator. The exercise does not, therefore, stop when the pool is established, rather the parties and the court have to go on and see whether or not it can be said of members of the pool that it is more likely than not that he or she injured the child. If it can then it is established that other members of the pool did not injure the child.

[40]Also as I explained in Re. A. & B., that exercise may result in a fog and the court not being able to say which of the identified perpetrators in the pool injured a child. But it may also result in a finding on the more likely than not test, that a pool member did not injure the child, or a re-visitation of the real possibility test which was used initially to include persons within the pool.

[41]In my view, it is most unlikely that the factual examination, and thus the forensic process relating to it, can properly rest only on a chain of reasoning based on(a) the view of medical experts that the most likely cause is shaking or shaking and impact, and

(b) the identification of the pool by reference to the carers of the child. That is likely only to be a step in the process, and there will a need to be a further examination of the pool and whether, given the existence of the pool, from those starting points based on role, opportunity and timing, the uncertainty and fog that creates (because the pool has more than one member) can be removed or cleared away applying a more likely than not approach. So here questions have to be asked and answered in respect of both the Mother and the Father whether, notwithstanding the possibility that they injured ‘R’, given their roles and opportunity, by reference to presence and timing, the events of the relevant day or period found the conclusion either that all the circumstances show that there is not a real possibility that he or she injured ‘R’ by shaking him with or without impact, or that it is more likely than not that he or she did not do so. An accidental explanation that has not been advanced by a parent:

[42]If an accidental explanation is not advanced by a parent then I accept that the court, and thus others, can nonetheless consider and explore whether there was or might have been an accident, as part of the function of striving to identify what has caused a child to suffer injury. (See, for example, Re K.

[2005] 1 FLR 285

.)But when no evidence is given as to the nature of or about an accident in chief or in cross-examination by the carers or others involved in the day-to-day life of a child, and it is not identifiable from other evidence, say medical evidence and deduction, in my view it is not open to the court to make a finding as to what the accident:(a) was; or

(b) might have been, and thereby define the parameters of an uncertainty or fog, and thus the range of what is more likely than not between (a) that accident and (b) an inflicted shaking injury. This is because the accident cannot be identified on an evidential basis as explained in Re. H. & R.

[43]It may be that in such a situation the court would often be driven to conclude on the balance of probabilities that the mechanism and cause of injuries is that identified as most likely by the medical experts, because that situation is reached if the court concludes that the possible perpetrators are not providing a full account, and therefore it would be difficult to say what they are hiding, or to conclude on an evidential basis that the medical view is not more likely than not to be the cause.

[44]But, in my view, in some cases a court may be able to make a finding that the undisclosed event that was the cause of injury and consequent illness could cover a range of events or degrees of force, and thus inflicted harm or undisclosed accident. Such a finding could well, I accept, in turn give rise to arguments on whether the threshold is satisfied by reference, for example, to actual harm caused by a negligent accident, or the likelihood of harm caused by the accident and its non-disclosure. Procedural fairness:

[45]This was raised in the context of what was put to the Mother in cross- examination and whether, because certain points were not so put, procedural fairness meant that I could not make the findings sought. It also, therefore, relates to whether I could, on a procedurally fair basis, make a finding that there was an accident that has not been put forward by the parents as a possible cause for the injuries. This possibility was advanced or floated by counsel for the Mother by reference to the possibility of there having been an accident whilst ‘R’ was in the care of the Father and in particular reference was made to a recording of the Father having said that the parents should fabricate such an accident (falling downstairs), so as to provide an explanation. But the Father made other suggestions as to other possible and fabricated accidents, one of which is similar to the Chaise Longue account. None of them were put to him as the, or a possible, cause of ‘R’s’ injuries by any of the parties, or indeed, by me. I return to this but in my view as to this possible finding floated on behalf of the Mother, the point is effectively one of lack of any proper evidential base for the finding rather than one of procedural fairness.

[46]In support of the point advanced by the Mother concerning the finding sought by the local authority (and the Guardian) against her, I was referred to Re. B

[2006] EWCA Civil 1186

in which the Court of Appeal concluded that, it was procedurally unfair for the judge to have reached a particular finding of dishonesty without it having been put to the witness. Whether, in that case, the local authority had invited the judge to make that finding, or in doing so the judge was acting on his own initiative, is not in my view clear. It is also not clear what was put in connection with the finding that the local authority did seek that the relevant account was exaggerated. I agree with counsel for the local authority that Re. B is not authority for the proposition that a local authority, through counsel, should put all, or a range of, possibilities to a parent in every case, or indeed, in many cases. This, however, was not the point made against him, rather the point made against him was that a general question as to whether the Mother had injured or done anything to injure the child (which she answered in the negative) and the other points made to her in cross-examination were insufficient as a matter of procedural fairness to enable the local authority to seek fairly a finding that against a background of the timings and events of the day, the Mother had shaken ‘R’ without expressly putting it to her, in that context.

[47]Re. B does not set out any principles or guidance as to what constitutes procedural unfairness, that concept is obviously an aspect of fairness and it, and thus the argument in this case, is inevitably fact sensitive. As appears later, in my view, this point does not have a relevance in this case because I am unconvinced by the way in which the local authority, with the support of the Guardian, seek the finding. I therefore do not have to go on to consider whether it would have been procedurally unfair to make the finding because of the extent of (or limits of) the cross examination.

[48]Fairness by reference to common law principles and Articles 6 and 8 is fact sensitive and value judgments arise as to what needs to be put in cross- examination. There are a number of authorities in various fields dealing with what fairness requires. See, for example, L v. The United KingdomECHR

[2000] 2 FLR 322

at 327 relating to fairness of proceedings and paragraph 119 of P. C. &. S. v. The United Kingdom which although dealing with a different aspect of the decision-making process, gives general guidance.

[49]That general guidance confirms the point, which has been made in other cases, that what constitutes fairness, including procedural fairness, depends on the subject matter of the relevant decision-making process. Also the citations I have referred to provide a link with the point made in Re. H. & R. as to the approach to be taken to finding facts, namely that the seriousness of the underlying issue is relevant to what needs to be done to render a process, looked at as a whole, a fair one pursuant to which conclusions, including a finding of fact, can be made. Timings, records and observations from records:

[50]On Thursday 5th April, 2007, a short time after the Mother had left the home with ‘O’ to take her to nursery, the Father took ‘R’ to the local GP’s surgery. When he arrived a member of staff called an ambulance. Nurses and two doctors came to give what assistance they could. I heard evidence from one of the doctors, Dr ‘H’.

[51]None of the people who made relevant notes in the hospitals were called. In some cases it is not easy to extract from the hospital notes when the discussions being recorded took place and who they were with. Some of the notes are also probably based on other notes and there are some inconsistencies between the relevant documents. Also there are no contemporaneous notes of the police interviews that took place on the 6th of April, 2007, which seem to contain some obvious inaccuracies pointing possibly to a condensation by the relevant policemen of what they were told. For example, there appears to be an inaccuracy as to the work the Father was doing on the 5th of April and where he had changed his clothes on that day, and it may be that that was simply a mistake, or it may be that the police were referring to something they had been told relating to an earlier day.

[52]I make these points simply to found the point that care needs to be taken with these notes. However, I accept, and again, this was not a matter of dispute, that these notes are setting out what the writer saw, or was told, to the best of that person’s ability. In other words, it is not disputed that the writers of these notes were doing the best they could to give an accurate account.

[53]Timings are: Thursday 5th April, 2007.• 13:28 the call was made for the ambulance the Father having arrived at the G. P’s surgery with ‘R’ very shortly before that call being made. 13:33, the ambulance arrived on the scene. 13:39 the ambulance left the GP’s surgery. By that stage the Mother was in the ambulance with ‘R’. She having returned home after taking ‘O’ to nursery, and having done some shopping, to find the front door of the house open and both the Father and ‘R’ not there. The Mother was told by a neighbour that there was a problem with ‘R’ and that the Father had rushed him to the GP.

• The Father did not go to hospital in the ambulance but returned home. One of the purposes of that was to get some shoes; it is common ground that he had rushed to the GP without putting his shoes on. He then drove to the hospital. 13:58 the ambulance arrived at the hospital. At two o'clock ‘R’ was examined by a doctor, it is thought Dr ‘RM’.

• There are then notes which give a composite view of examinations and comments for the period from two o'clock to 15:30. It is not easy to identify which parts of some of those notes relate to which occasions upon which the parents gave a history. The parents are shown as being present. It is possible in respect of one of the interviews that the Mother was not present she having returned home to get some nappies and things like that, and there was possibly some confusion in the minds of the those taking the note between the Father’s sister and the Mother.

• However, as I have said, those notes do set out the history that was provided at that stage. In general terms the history that was then provided is that there had been no problems identified up to ‘R’ being rushed to the GP’s surgery and that he was feeding through that day, had been normal and that he had taken at least two feeds.

• A lumbar puncture was performed. I am unsure of the time that it was performed but I put it in the afternoon. The reason for that was clearly and understandably that the immediate medical investigation was focussed on meningitis or infection.

• 16:42 there was a chest X-ray. At five o'clock ‘R’ was examined by Dr ‘WI’ a consultant paediatrician. There is reference to ‘R’ being mottled and having cool legs and to no sign of injury. At this point, there is a recording that there was a possibility of N. A. H. I., but as no sign of injury was seen, it was the recorded view of that paediatrician that at that stage it was not in ‘R’s’ best interest to investigate N. A. H. I. at that time.

• 17:30 the care was handed over to a Dr ‘D’ and at 18:00 a decision was made to do a CT scan.

• At 19:00 a CT scan was performed and at 19:09 the skull X-ray was performed. At around 20:00 hours Dr ‘D’ discussed the results of the CT scan with the parents and told them there was a fracture to ‘R’s’ head and a bleed. No explanation for the injury was given, but a further history was taken at this time, for example, relating to ‘O’ having had a fracture of her arm, the Mother’s hip fracture and concerns about bone fragility.

• So by that stage the possibility of non-accidental injury was clearly in contemplation and had been raised with the parents.

• At 20:50 ‘R’ was examined by Dr ‘D.’

• At 21:50 the nursing notes indicate that he looked brighter.

• At 22:10 he had convulsions lasting for fifteen minutes. Friday 6th April, 2007.

• At twenty-five past twelve ‘R’ was intubated and ventilated in theatre.

• At 1:22 he had a chest X-ray, it was normal.

• At 1:30 a further CT scan was performed.

• At four o'clock in the morning he left that hospital for a hospital in Leeds and at five o'clock in the morning he was admitted to that hospital in Leeds.

• At 6:10 there is a note that Dr ‘D.’ made a referral to social services.

• At 8:15 ‘R’ returned from theatre. There was no intervention but an arterial line had been inserted.

• At nine o'clock the care of ‘R’ was taken over by another consultant, Dr ‘C’, who may have spoken briefly to the parents at 8:30.

• At ten o'clock there was an examination by Dr ‘C.’

• At eleven o'clock Dr ‘C’ records that he is yet to take a history from the parents.

• At 11:47 there was a referral to the police by social services.

• Midday the parents were interviewed by Dr ‘C’, Dr ‘H’ and a Miss ‘B’ who take a history. In the course of that history the Mother mentioned that very shortly after he came from hospital after his birth, she had hit ‘R’s’ head on a table by catching his head in that way. It was also indicated that ‘O’ has helped to wind him, but apart from that the parents could recall no incident where there was any injury. It was explained to the parents that there was a need to investigate non-accidental head injury, and that the injury is likely to have happened the day before. It was also explained that ‘R’ may have permanent brain damage.

• The Mother’s oral evidence was that by this stage she had remembered and had in her mind the Chaise Longue incident. Her oral evidence was that this was something she had thought about when travelling between the two hospitals. Her evidence was that she simply could not get her words out to tell the doctors at that time. Because she thought that she may have killed ‘R’.

• At one o'clock the parents signed an agreement relating to the care of ‘O.’

• At 14:00 the Mother was interviewed by the police at a police station.

• At 14:05 there was an examination by an ophthalmologist and Retcam photographs were taken.

• At 15:00 a full skeletal survey was taken which showed no fractures other than the skull fracture.

• At 16:00 the police interviewed the Father at the hospital.

• At 17:00 there were X-rays taken of the skull. 7th April, 2007.

• 5:35 ‘R’ starts to have recurrent fits.

• 6:40 another CT scan was taken.

• Nine o'clock ‘R’ was still fitting.

• 17:00 hours the police speak to the parents at the hospital. There is only a limited account of that, but it is recorded in this context that the police view was that they appeared genuine and concerned.

• 23:20 the Father asked to see the CT scan and asked about the prospects of ‘R’s’ survival. 10th April, 2007.

• An MRI scan was performed on ‘R’. 11th April, 2007.

• ‘R’ was baptised. 13th April, 2007.

• 11:30 the police spoke to both parents. The Mother says that an incident on the Monday or Tuesday prior to the 5th took place when she was changing ‘R’ on the floor, she had left him briefly and on returning found that he had rolled over onto the floor.

• There are then some nursing notes relating to conversations that took place through the day. The first of those is timed at 13:30. There is then a renewal of the note at 17:30 and a further entry at 19:30. In the first note the nurse describes the incident the Mother had described to the police with ‘R’ rolling off a cushion that was supporting him on the floor as happening on “the day of this”, which could indicate the 5th of April, but the police manuscript of the note, which seems to be a contemporaneous note, records the Mother putting that event on the Monday or Tuesday of that week. (It seems to me, therefore, that little or no reliance can be placed upon this entry by the nurse to form the view that the Mother was giving a description to the nurse of that event occurring on the 5th of April, and indeed, no such reliance was put on it by any of the parties.)

• In the renewed note made by the nurse she puts the event as at the Monday or Tuesday. And the nursing note by reference to a timing of 19:30 records the nurse being told of a discussion between the Mother and the Father by the father in which he reported to her that the parents had discussed that the parents should say that ‘R’ had had a fall to provide an explanation, but that they did not do so. Before 19th of April, 2007 (on the Mother’s oral evidence).

• The Mother told her own mother that during the afternoon of Tuesday the 3rd of April ‘R’ had fallen of the Chaise Longue when he was in her care. This was the first disclosure made by the Mother of this incident. The mother also told the Father of this incident shortly thereafter.

• In her police interview on the 2nd of May the Mother said that she had told her own mother about this about two to three weeks ago which also confirms that dating. The Father could not remember whether he had been told about this before or after the meeting which took place on the 19th of April, 2007, between Dr ‘W’ and the parents. And that meeting was attended by the paternal grandmother and a history was given which does not include reference to the Chaise Longue incident. 19th April 2007.

• Parents and paternal grandmother give a history to Dr ‘W’ which did not include any reference to the Chaise Longue incident. 27th April, 2007.

• The Mother told the social worker about the Chaise Longue incident at a meeting during which she and the social worker were talking about taking ‘O’ into care. 2nd May, 2007.

• The Mother’s main police interview took place. In that she told the police of the Chaise Longue incident dating it as happening on Tuesday the 3rd of April.

• The Father’s main police interview. 7th June, 2007, the Father’s statement. 21st June, 2007, the Mother’s statement.

• September, 2007, the Mother gave a description of the Chaise Longue incident to Professor Bishop in which she refers to ‘R’ being “catapulted” from the Chaise Longue. History given by the parents prior to their oral evidence and other information available to me: Experts;

[54]Generally it was, in my view, correctly and properly accepted by the local authority that, when looking at the histories given by the parents in the immediate aftermath of the events of the 5th of April, due allowance needed to be given for the circumstances in which the parents were then in. Also it was acknowledged and accepted that the very initial accounts were given, against a backdrop of a medical investigation into meningitis or some other natural cause of the problem. However, as I have indicated from the timetable, the possibility of N. A. H. I. came to be considered fairly quickly within the timetable. It also has to be remembered that the parents, following information as to the extreme condition of their son, faced a journey from one hospital to another. A timetable for the 5th of April:

[55]I shall return to this again in a number of contexts.

[56]This is a brief overview and was not, as I understand it, challenged. ‘R’ woke at around 7:00 to 7:30 and was fed by his mother, and then went back to sleep. Around mid-morning - ten-to eleven – ‘R’ had another feed. After that, and this appears, for example, in the Father’s statement, there was a period in which the Mother chatted to the Father whilst sitting on the bottom of the stairs leading up to the attic, and he was doing some D. I. Y. attaching latches and handles to ‘O’s’ bedroom door. The common evidence of the parents was that during that conversation the Mother was holding ‘R’ in her arms, and they were engaged in a perfectly normal conversation. At this point, the evidence of the parents was that neither of them noticed anything wrong with ‘R’, it is then common ground on their account, and was not challenged, that ‘R’ was then placed in his Moses basket just within the parent’s bedroom over the landing from the door upon which the Father was working. At about 12:30 the Mother left to take ‘O’ to nursery.

[57]The Mother then went by car to the nursery. Her evidence is that she noticed that ‘O’ was asleep and she stopped in a lay-by to give her a few extra moments sleep before taking her into the nursery, the Mother says that she was checking messages on her mobile phone. She then went to drop ‘O’ off at the nursery. On the way home she visited a chemist to get a prescription. That took rather longer than she had expected but she got the prescription, and then she visited another shop making an appointment, and then returned home. As I have already indicated, on her return home she found that the Father and ‘R’ were not there. I will return to the Father’s account of what happened later, but the timetable indicates that he arrived at the doctor’s surgery very shortly before 1:28. The doctor’s surgery is not far from the house. It is his case, and this was not challenged, that he started to run to the surgery, holding ‘R’ in his arms having had some difficulty in getting out of the front door because it was blocked by a toolbox, but then stopped a passing motorist who took him to the doctor’s surgery. The description of accidents by the Mother:

[58]As I have indicated in going through the timetable, the Mother indicated at a very early stage that shortly after she had returned from giving birth to ‘R’ there was an occasion when his head was bumped on a table. Later, as I have explained in giving the timetable, she gave an account of an event when ‘R’ was sitting or lying on the floor being changed propped up by a cushion and, “he rolled off the cushion on to the floor”. Later she gave an account of her putting ‘R’ into the corner of the Chaise Longue, turning round to get something, turning back to find him on the floor. Her evidence was that when she put him on the Chaise Longue, she stood up from the Chaise Longue to get something. She dates that, in her accounts, on the 3rd of April during the afternoon when ‘O’ was I think having a sleep in her bedroom.

[59]The timetable I have given shows that the Mother disclosed this event, firstly, to her own mother, and there is a statement from her own mother describing the circumstances in which that occurred, then to the Father. The parents’ position is that the Father encouraged her not to disclose that account to the social worker or the police or the doctors. And on the Mother’s evidence a history was taken on the 19th of April in which that account was not included, but the falling from the cushion account was included. The timetable indicates that the Mother made this disclosure to the social worker on the 27th of April and has thereafter made it to the police and in her written statement. The descriptions of that account have been in varying terms, and this is a point which the local authority point to and rely on and to which I will return. The account as to how ‘R’ was:

[60]Looked at generally the accounts are that ‘R’ was a more difficult baby than ‘O’. He was colicky. There had been visits to the G. P. about his colic. The general perception given from the initial notes taken at the hospital, and indeed, the description given by the Father when he first arrived at the G. P’s was that, for ‘R’, he was fine up until the moment the Father found him in a state of collapse.

[61]The earlier descriptions include ‘R’ taking two reasonable or good feeds during the morning of the 5th of April: one early in the morning; and one at eleven-ish.

[62]The picture in those initial accounts is one broadly of a baby who, for that baby, was fine.

[63]In later statements which follow the disclosure relating to the Chaise Longue incident. For example, in the Father’s statement to the court and his police interview, more problems relating to ‘R’ are identified. For example, in the middle of Wednesday the 4th of April he points out that ‘R’ had mottled skin. This is a point which has not been pursued by any of the doctors and I note that there is reference to ‘R’ having mottled skin when he was in hospital. There are also more problems included as to the way he behaved with his colic. Also, and I will come back to it because it is a point the local authority rely on, the mother’s description of the feeds, and in particular the eleven o'clock feed, change in that that feed is described as, one in which he did not take much milk.

[64]The counsel for the Mother in their final written submissions gave an account under a heading:

“Evidence of wellness” which accords, I hope, with the description I have given and is one I accept to be accurate. They make the point that, notwithstanding the changes in description that occurred the overall picture of this child is of a child who for him was fine. For example, they point to the evidence in the police statements that when the Mother was leaving the house she had said something along the lines: “I don't like leaving him because he’s crying”

. Also there was evidence that there was an exchange between the parents along the lines of: “He may need feeding”.

[65]A point made, which I accept, was that that crying when the Mother was leaving the house was not identified by either parent as being something abnormal for ‘R’, particularly if you compare and contrast it with the crying of ‘R’ when he was in the ambulance which was something which the Mother had not witnessed before, that is, the ambulance going from the G. P. to the hospital.

[66]The description given by the G. P. is of a seriously unwell child who required resuscitation; which was given by the G. P. using the bag and mask. An equivalent description of a seriously unwell child is given by the hospital on his admission. The Father’s description of events on the 5th of April:

[67]Going through the documents these have developed. Again, a progression of their development was, in my view accurately, set out in the final submissions put in on behalf of the Mother. I shall not deal with this in great detail because, as I have indicated, the local authority do not seek to make a major point from these developments because they accept that the earlier accounts could naturally be compressed either by the Father or by the note taker, which it seems to me is a proper recognition by them of the circumstances in which the initial accounts were taken. The development and thus changes to the account has to be mentioned, however, because it is part of the history of this case. In broad terms the change from the records of the very early accounts is that in them the Father is not recorded as having taken ‘R’ downstairs before identifying that he was seriously unwell.

[68]Later he does include in varying terms a description of taking ‘R’ downstairs which was the account he gave in his oral evidence. There are some differences between that oral account and the accounts in his statement and in his police interview, but broadly there is consistency between the police interview, his statement and his oral evidence.

[69]The sequence of events he so describes after the mother left is as follows: he was completing his work on the door, cleaning up; he had probably popped in to look at ‘R’ once for sure and possibly twice and had not noticed anything wrong with him; he had heard him crying in a way that was normal for ‘R’; he tried to put ‘R’s’ dummy in his mouth, the purpose of that being to check whether or not he wanted a feed (if he sucked on it the information ‘R’ was giving, so the Father thought, was that he wanted a feed); ‘R’ did not suck on his dummy it just fell out of his mouth; the Father did not notice anything amiss with ‘R’.

[70]The Father then had a shower. After the shower in the process of getting dressed he took ‘R’ out of the Moses basket and laid him on the bed in the bedroom. At that stage he had not put his socks on. His plan was that he would take him downstairs. His oral evidence was to the effect (and this is not I think in the evidence or the police statements) that he would have a cuddle with ‘R’ and would feed him. His evidence was that ‘R’ was floppy and appeared to him to be in a deep sleep. He remained floppy when he carried him downstairs in his arms. His description of carrying the child was one in which he was supporting his weight below his bottom and holding his head.

[71]On arrival downstairs he put the child on the sofa, went to get a bottle, became concerned that the child was making no noise, returned to examine the child, and then realised that something was seriously wrong with him. He thought the child was not breathing. He made an attempt at resuscitation, blowing his breath into the child, and gave a description of hearing a sigh, as he thought, of his own breath came out of the child’s chest. His next action was to decide to get to the GP’s surgery as quickly as possible. The GP’s surgery being very local to the house.

[72]He ran out of the house holding the child. His evidence to my mind, understandably, was that through that period everything was a bit of a blur. It seems to me that that is an almost inevitable result whatever had happened immediately before.

[73]He ran into the street and started to run-up the road, stopped a passing motorist, could not remember how he had been holding the baby when stopping the motorist or running, but thought he had been clutching the baby to his chest using both hands and running. General observation

[74]I have already referred to general observations relating to the parents. As was known to the experts these give a picture of loving and caring parents.

[75]So the summary of description available to the experts was essentially of a child with no particular problems up to the moment of collapse who had caring and hardworking parents very committed to the day-to-day care of their children and improving their home. The expert evidence:

[76]Reports have been prepared for the purpose of these proceedings from the following: Professor Bishop who is a Professor of paediatric bone disease; Professor Hann who is a Paediatric Haematologist; Professor Patton who is a Consultant Clinical Geneticist; Dr Arthur who is a Consultant Paediatric Radiologist; Mr Lloyd who is a Consultant Ophthalmic Surgeon and Paediatric Ophthalmologist; Dr Stoodley who is a Consultant Neuro-radiologist and Mr May who is a Consultant Paediatric Neurosurgeon.

[77]I heard oral evidence from these experts other than from Professors Hann and Patton and Mr Lloyd. As to Mr Lloyd he was due to give evidence but by agreement he was stood down after Dr Stoodley had given his evidence. He gave evidence after Mr May. I am grateful to all of them for their help.

[79]In my view this case has been examined with care by all the experts from the viewpoints of their respective specialities. The clear upshot of their combined work and expertise is that a conclusion that ‘R’ was the victim of a shaking or shaking and impact injuries inflicted by an adult would be consistent with the constellation of injuries and features in this case, including those which were identified as being out of the ordinary, their medical reasoning based thereon and the other information available to them.

[80]Indeed the combined and shared view, on the basis of the information available to the experts, is that such an inflicted injury is the most likely cause of the injuries to ‘R’s’ brain and head.

[81]Of the experts who gave oral evidence it is Mr May and Dr Stoodley who are best able to give an overall view, by reference to their respective expertise. Of the two Dr Stoodley expressed that view with more firmness in his oral evidence, and his oral views were expressed more firmly than, although in my view not inconsistently with, his views in his earlier report. This strengthening of expression was, in my view, the result of reasonable responses to cross-examination and the freedom of expression that arises from oral exchange and description.

[82]Both Dr Stoodley and Mr May recognised in writing and orally that there are unusual features of this case that merit close attention and care. Of course the result of that attention and care given by the experts and their overall view as to what is the most likely cause (i.e. inflicted harm) do not mean that a finding that such inflicted harm is more likely than not to have occurred should be made.

[83]The medical evidence and conclusion, together with the reasoning underlying it, are, as I have explained, only parts of the overall picture or jigsaw, albeit important parts. Put at its simplest the court will have additional information and that information will include its findings relating to the evidence of the parents, and thus the events in the household and the observations of the clinical presentation of the child. The court will also have the considerable benefit of argument and analysis provided by the representatives of the parties. To my mind the benefit of that should not be underestimated.

[84]The progression of the expert thinking, to my mind understandably, given(a) the existence of the triad of brain injury, subdural and subarachnoid haemorrhages and retinal haemorrhages and also a skull fracture;

(b) the nature and speed of ‘R’s’ deterioration and the initial observations of him by the G. P. and on arrival in hospital; and

(c) initially the lack of any description of an accidental event that might be causative, the initial thinking and opinion of all the experts, whose expertise was relevant, was along the lines of a single causative incident on Thursday the 5th of April.

[85]However, in their initial reports and thinking a number of matters led the experts to express views to the effect that viewed from their area of expertise this case had some unusual features, as well as ones that merited further investigation and thought.

[86]Counsel for the Mother referred to some of these features as, “anomalies”. That was a useful, but perhaps inaccurate, shorthand because, as Dr Stoodley pointed out, none of the matters identified were anomalies in the sense that they were inconsistent with the overall conclusion reached as to what was most likely. Some can, however, be said to be anomalies within the dictionary meaning of the word. Unusual features:

[87]Points that triggered further investigation, thought and discussion are:a. The possibility that R had a bone disorder and from that and other things whether he also had any venous or genetic disorder, the latter also being prompted by the death of a cousin as a result of Gaucher’s Syndrome;

b. The lack of soft tissue swelling on the scans at the site of the fracture;

c. The lumbar puncture;

d. The pattern of the brain damage because it was concentrated on the left side;

e. The location and volume of the subarachnoid haemorrhage;

f. Thrombus;

g. The lack of any metaphyseal fractures, bruising, vein tearing or focal contusion and of any temperature;

h. That the Mother has a vitamin B12 deficiency which required a course of injection.

[88]To those I would add an unusual feature of a different type, namely the Father running with the child in his arms from the house and flagging down a car to take them to the GP’s surgery.

[89]Also I would add that perhaps another unusual feature of this case is the very high degree of praise for the parents and the close relationships they have formed with the foster carers.

[90]I also add at this stage that in an addendum report, the issues raised in this case also caused Dr Stoodley to raise the possibility that, some but not all of the abnormalities on our scans could possibly be explained on the basis of them being due to herpes simplex encephalitis. Genetic, blood and other disorders:

[91]Professors Patton and Hann addressed these from their own areas of expertise and with the other experts. The process effectively ruled out Gaucher’s Disease, Glutaric Aciduria, clotting defects, Ehlers-danlos or Marfan’s Syndrome. The Mother’s vitamin B12 deficiency also did not lead to the identification of a natural or medical cause for ‘R’s’ injuries. Bone disorder:

[92]The view of Professor Bishop is that “the Mother is clearly osteoporotic and ‘R’ should be treated as having Familial Osteoporosis which is a rare entity without an established genetic foundation; it is a descriptive rather than a diagnostic description. He has none of the clinical signs of Osteogenesis imperfecta and Ligamentus laxity does not appear at any site.

[93]In reaching this view Professor Bishop has had regard to a history of injuries to other members of the family and in particular to the Mother and ‘O’. These are that:a. The Mother has suffered the following fractures; i. to her left radius in 1988 when she was eleven; ii. to her right wrist in 2000 and to her left hip in 2005.

b. ‘O’ suffered a fracture to her left arm she was ten months old. This was referred to social services who did not pursue a child protection action and closed their file after being told the Mother had an inherited bone disorder. (Professor Bishop has concluded that ‘O’ is normal and does not need further investigation or review.)

[94]Professor Bishop also took into account the fact that the Mother’s mother and grandmother have experienced problems in relation to their bones, and that he was told that the father had had a fracture to his skull when a toddler. As I understood it the injury to the Father was of no real relevance. The information as to that is based on what his mother has told him, it is not in the Father’s medical records but these only go back to when he was six.

[95]This view of Professor Bishop was accepted by the experts, and by the local Authority. I accept it too. The consequence of this view is that as Professor Bishop said that, it would be dangerous not to proceed on the basis that ‘R’ suffers from a bone fragility, and thus that less force would be needed to cause a fracture of his bones than it would in the case of a baby who does not have that fragility. Dr Arthur agreed. Their view was accepted by all the experts, and by the local authority and I accept it too.

[96]The fragility of ‘R’s’ bones is, therefore, an unusual feature of this case, and I accept that it establishes the point that there is a real possibility that ‘R’ has an underlying bony vulnerability and points arising from that real possibility. Existence of the skull fracture:

[97]Dr Stoodley was cautious as to whether there was a fracture, but as I understood it accepted the view of Dr Arthur and Professor Bishop that there was a very small fracture. I accept that evidence and find that there was one. The parents, although they pointed to the reservations of Dr Stoodley, also accepted, as I understood it, that there was such a small fracture.

[98]Given the bone fragility, it was accepted by the experts that this fracture could have been caused by a short distance fall from the Chaise Longue, and even from a cushion on the floor, although the latter was thought far less likely. Measurements were not given by the time they gave this evidence, and in my view the late introduction of evidence correcting the Mother’s description of the height of the Chaise Longue in her oral evidence (after the experts had given their evidence) lowering it from something over two-feet to fifteen inches did not, in my view, affect the view of the experts because they did not specify any distance of fall and because of the existence of the real possibility of bony vulnerability. The timing of the fracture:

[99]The lack of swelling on the scans led to discussion at the experts’ meeting to a large extent initiated by Dr Stoodley, as I understood it because of the lack of any indication of swelling at the point of the fracture on the scans, and because the pattern demonstrated by the scans of the haemorrhages does not fit with the pattern generally seen with an impact injury; that pattern is generally a concentration at the site of the impact injury or diagonally across the skull from it.

[100]It is not possible to date the skull fracture and looked at in isolation it could be a birth injury or have been caused at the time of the Chaise Longue incident described by the Mother, i.e. on Tuesday the 3rd of April.

[101]At the experts’ meeting an observation in the medical notes by a Dr ‘B H’ was not discussed. This observation could have founded a view there was some discolouration or a developing bruise that could have in turn have founded the view that the fracture occurred on the 5th of April rather than earlier, as seems to have been the general consensus of view reached at the experts’ meeting because of the lack of tissue swelling on the scans. The note made by Dr ‘B H’ was checked with him and his recollection conveyed in writing to the parties and the court, did not effectively advance the debate.

[102]The upshot of this is that the skull fracture cannot be timed from the scans and medical observation and could have taken place at any time after birth, and thus, for example, on the 3rd or the 5th of April.

[103]It was pointed out, and I accept, that a unifying diagnosis is sought medically and generally to my mind the seeking of such a diagnosis is justified. In this case it would point to the skull fracture taking place at the same time as the other injuries, but as I have indicated in the context of this case the experts have wavered as to this and have not reached that conclusion as to the most likely timing.

[104]Other points arose in reference to the skull fracture and the bony vulnerability, they can be indicated, for example, from the passage from near the end of Professor Bishop’s report. He said this: “I think that he does have a bone disorder that makes his bones more fragile than those of a normal infant, and it is possible that this contributed both to the skull fracture and to the failure of the skull to absorb and dissipate the force that caused the fracture with a consequent increase in the severity of the intracranial injury”.

[105]In his evidence, Professor Bishop said that that was speculation on his part but he did not withdraw that observation. As I understood him, his reference to speculation is that there is little or no work or case studies that can be relied on to form opinions concerning that possibility.

[106]The other experts also discussed these points. The points made by Professor Bishop could in fact go the other way because if the degree of force required to cause the fracture is less, then knock-on effects from something causing a fracture may be far less than in other children. Equally, however, the other side of the argument is that there may be a lack of in lay terms ‘cushioning’ which could mean that less force has more direct and widespread damaging effects on the brain and blood vessels of a child who suffers from this bony vulnerability.

[107]So the point was raised whether a knock-on effect arose from the conclusion of Professor Bishop as to the existence of bony vulnerability as to one or more of force, effect and force and mechanism of injury.

[108]I have already indicated the view of Dr Stoodley as to the normal pattern one would expect to see from an impact injury. That is not the pattern here, and I do not think he disputed that a possible, but in his view unlikely, explanation of that could flow from the problems relating to the bones and the knock-on effect of them. The lumbar puncture:

[109]It was accepted, and it seems to me that it is an established fact on the medical evidence, that lumbar punctures can and often do result in there being blood found in the subarachnoid space. Mr May gave evidence that he has had experience of some of that becoming symptomatic, but that experience related to teenagers. The general force of the opinion and common ground between the experts was this that the blood one would expect to see in the subarachnoid space flowing from a lumbar puncture was diverse, and you would not expect to see, and nobody had any experience of having seen, the amount of blood seen in R’s skull in the subarachnoid space following a lumbar puncture. As to that Mr May also pointed out that it is not normal practice to scan young children who have had a lumbar puncture, but it is, as I have said, a known phenomenon that children who have had a lumbar puncture can have bleeding in the subarachnoid space.

[110]The written reports of the experts do not refer to a condition or consequence referred to as ‘Coning’ which can flow from a lumbar puncture and can then lead to haemorrhaging in the head. This point was raised in oral evidence with Dr Stoodley who explained, to my mind convincingly, that in this case coning can be excluded. The pattern of the brain haemorrhage, because it was concentrated on the left side; the location and volume of the subarachnoid haemorrhage:

[111]In Dr Stoodley’s view, both of these points are unusual features in this case. He pointed that out in his first report. He remains of the view that they are unusual features but points out that they can be seen as being within the pattern of haemorrhaging one would expect on a shaking or shaking and impact injury. But he says that normally, one would expect to see the brain damage being more evenly distributed through the brain, and that in this case the subarachnoid haemorrhage is bigger than usual. Normally what is evident on the scans is small in amount and peripheral in distribution and seen in several different areas. That is not what is seen in this case. Thrombus:

[112]This was identified on the MRI scan. There was a debate as to whether it was primary, and therefore potentially a cause or secondary. Mr May thought that it could be primary but that it was probably secondary. Dr Stoodley was firmer in his view that it was secondary from reasoning which I accept is cogent, namely that it is seen as secondary to brain damage of the type and haemorrhaging of the type one has here. It is, however, and was identified and accepted to be, another unusual feature of this case. The lack of any metaphyseal fractures, bruising, brain tearing, focal contusion and of any temperature:

[113]If there had been any of those, apart from the reference to a temperature, it would have been a pointer towards a non-accidental injury. The bone fragility would also have to have been factored in when considering, for example, a fracture in relation to the degree of force that may have been needed to cause it. Also the bone fragility has to be factored in here because, as one has to proceed on the basis that this child has bone fragility, the act of gripping and shaking him might be more likely to cause fractures than in other children. Timing:

[114]The common, and as I understand it, generally accepted view of all the experts is that the best indicator of timing, by reference to a non-accidental head injury caused by shaking or shaking and impact, is the clinical symptoms of the child.

[115]Dr Stoodley mentioned in his addendum report a method of dating by reference to methaemoglobin. In this case that was based on the MRI scan on the 12th of April and gave a date, which was not absolute, from between about the 5th to the 9th of April, so it was supportive of the view that the injuries took place on the 5th of April.

[116]But the more compelling aspect of that conclusion is the essentially common view of the experts that if the injuries were caused by shaking or shaking and impact none of them would expect ‘R’ to have behaved normally, or in any way approaching normally, from very shortly after that traumatic event. So, for example, it is common ground, (and this was supported, for example, by another very experienced doctor who did one of the scans Dr ‘N’) and it was stated by both Dr Stoodley and Mr May that if there were a shaking or a shaking and impact injury of this child they would expect it to lead to a very rapid collapse and thus to a situation in which the child was demonstrating to the lay observer as not being himself and unwell.

[117]So, for example, he would not have fed, or it would be highly unlikely that he would have fed, whether that be a large feed or a small feed. The larger the feed the less likely it is that it would have occurred after the shaking or shaking and impact, but even a small feed would be a good indication that, at the time a child took it, the shaking or shaking and impact had not occurred.

[118]As to this I was also pointed to the evidence of both parents as to the difference in cry of R in the ambulance and at home.

[119]So I accept, as indeed was advanced by a number of the parties, that if this is a shaking, or a shaking and impact, injury it is more likely than not that it would have occurred very shortly before the collapse taking place, and thus the collapse being identified; and one would not expect the child to behave within the bounds of normality of the child after such an inflicted injury.

[120]Different considerations, however, as I see it from the medical evidence, arise if the causative event is not shaking, or shaking and impact. For example, if one takes first Dr Stoodley in his report he says, I quote:

“Furthermore, although subarachnoid haemorrhages can give rise to ischaemic change in the brain, that process usually occurs over days rather than hours, as was seen on R’s scan”

. So there he is indicating that in some circumstances that brain damage can take longer to materialise, although on the scans here rapidly developing change was seen on the scans which were of course taken after the collapse of the child.

[121]Also, and importantly in this context Mr May in his report says, and I quote: “In my opinion, it is possible that the injury described, ( - that is, the Chaise Longue incident - ) could have led to those intracerebral changes and presentation at the time on the 5th of April, however, it is more likely that the acute events precipitating the encephalopathic presentation and the extensive underlying changes seen on computerised tomography and MRI scanning, occurred much more closely in time to or immediately before the deterioration noted by the Father at approximately 1:10pm on the 5th of April, 2007”.

[122]As I understand it that view means that if, the cause is not shaking or shaking and impact, there is a real possibility in the sense that it is not fanciful that the relevant trigger or catalytic event could have taken place some time before the collapse.

[123]However I remind myself that it is clear, and accepted by all, that the overarching view of the experts is that the timing of the causative event is that it took place shortly before the collapse. But as I understand it that is linked to, but I accept not wholly dependent on, the conclusion that the trigger event is a traumatic one equivalent to a shaking or shaking and impact injury.

[124]At this stage I should also deal with the point that the haemorrhaging could have been present since birth. This was considered by the experts, but essentially rejected by them because the research indicates that haemorrhaging at birth is likely to have cleared up before this collapse.

[125]There was discussion by the experts as to what was meant by “lucid intervals”, “slow burn”, “taps being turned on”, and “pressure being built up”. None were dismissed as being unreasonable in the sense of being fanciful, but that did not alter what they thought was most likely.

[126]The retinal haemorrhages I have described. In that context Mr Lloyd said at paragraph 2.6 of his report that: “There is published work suggesting that retinal haemorrhages can rarely result from short distance falls. Typically such retinal haemorrhages are unilateral and occur on the same side as coexistence intracranial haemorrhage they are confined to the posterior area of the eye. The retinal haemorrhages in such cases are mild and do not extend to the peripheral retina. This is a similar clinical picture to that described in ‘R’, although ‘R’ also has a single retinal haemorrhage in his right eye”.

[127]And then he went on to say:

“However, I am not aware of any issue of accidental damage consistent with the production of such injuries”

. He then refers to the fall from the cushion, which was then known to him, and that would not, in his view, be consistent with these injuries. He maintained that view at the experts’ meeting in the context of a fall from the Chaise Longue which was then known, or made known to him.

[128]Mr May, in a passage that was particularly referred to on behalf of the Mother, said this: “There were limitations applied to the retrospective study of cases of alleged non-accidental injury, and in particular skull fractures. There is, however, some evidence that fractures associated with non-accidental application of force are more likely to be multiple comminuted and diastased. Single linear parietal fractures are described to be more likely to be associated with an accidental injury”.

[129]So it was pointed out to me that there is some evidence to the effect that the nature of both the fracture and the retinal haemorrhages are consistent with accidental injuries. Mr May, as I have indicated, was of the view that the fracture could be caused by the fall from the Chaise Longue. He also referred to literature in which he was aware of three examples of children under twelve months suffering subdural and retinal haemorrhages from a short distance fall. The degree of force and the nature of the event:

[130]The finding sought by the local authority accords precisely with the description given by the experts in particular in the reports of Dr Stoodley, but signed up to by the experts at their meeting, although as to part of that description I note that Mr May was, in fact, silent. But, on the next question relating to the degree of force that is asked and addressed at the meeting both he and Dr Stoodley agreed, for example, that: “The degree of absolute force is unknown, but the pattern of injury seen is not seen following normal handling or rough play, and the minimum degree of force is likely to be such that an independent witness would recognise it as obviously inappropriate”.

[131]What Mr May was silent on was the most likely mechanism to account for the brain and eye injuries of shaking or shaking impact injury.

[132]In his oral evidence, Mr May concluded by saying that he would put the degree and describe the degree of force as, “beyond normal handling, but not much beyond it”.

[133]As I have indicated, I have added as an unusual feature the point that this child was in his father’s arms being run down the street until the father flagged down a passing car. The relevance and impact of that was not something which the experts were able to give any real view on because they do not know how the child was being handled at that time. It is also correct to point out that at that time the Father thought that the child was extremely ill and needed rushing to hospital which would be an indication that the relevant damage had already occurred.

[134]But, it is an unusual feature in this case which complicates it, because it could have an effect of changing the pattern Dr Stoodley would expect to see in respect of a shaking, or shaking and impact injury. Alternatively, it could of itself have some causative contribution. Where does that leave us in the context of the task that the court now has?

[135]The task I refer to is identifying reasonable causes for ‘R’s’ injuries in the sense of ones that cannot be ruled out as being fanciful. Clearly, shaking or shaking and impact is a real possibility in this case on the medical evidence, and it is the one which the doctors have concluded is most likely. They have supported that conclusion with logical and compelling reasoning.

[136]Taking the medical evidence as a whole and in particular the passages in the reports of Mr May and Dr Stoodley I have mentioned earlier disclosed accident alone and/or together with running down the street are not in my view ruled out as fanciful possibilities and therefore remain within the range of possible causes.

[137]Undisclosed accident that is beyond normal handling also remains for essentially the same reasons.

[138]More difficult it seems to me is whether an accidental event that is not out of the ordinary in the sense that it would not be identified by a parent as being something that could be causative of the injuries, or unknown natural cause, are real as opposed to fanciful possibilities in this case.

[139]In considering this, in my view it is appropriate to go back to the beginning in the approach that the experts took and to the points that led them all to identify and think about the abnormal features of this case and to describe it as, a difficult case, or as unusual or, as a case with unusual features.

[140]It was argued that the overall view of the experts, with its varying degrees of expressions, that the most likely cause was a shaking or shaking and impact injury was driven by a desire to find a unifying diagnosis or answer or perhaps more pejoratively was a parking of this case in the shaking or shaking and impact category. It was acknowledged by the doctors that a unifying diagnosis is sought. It seems to me that that is a sensible and understandable and proper procedure or approach.

[141]I reject both the description of “parking”, and also, as I indicated during submissions, a point that in some aspects it is fair to describe the doctors’ approach as, “being guesses”. Rather I pay tribute to the experts in this case who, in my view, from the starting point of their respective expertise were all carrying out the exercise I indicated was appropriate in K. D. & L. by identifying possibilities and assessing the degrees of likelihood of those possibilities.

[142]As I have already mentioned, that process, as is shown by the exchanges at the experts’ meeting and at the hearing leads to argument and assessment by reference to expertise and literature. That process of argument and assessment also leads, as is so demonstrated, to views being expressed and argued with varying degrees of force and persuasiveness. It seems to me inevitable that someone who thinks, for logical and compelling reasons, that X is the most likely answer or cause will be likely, when describing the position orally, to do so persuasively and in powerful terms; there is nothing unfair about that. Dr Stoodley is someone who is good at explaining his point of view and conclusion, and therefore acting as an advocate for his reasoning and overall conclusions. He is an impressive and persuasive witness. So is Mr May. The natural consequence of explaining what you think is the most likely result is that, when you have cogent reasoning to support it, you will produce a compelling case to support your view.

[143]It is for those reasons that it seems to me that it is not in any way criticising the approach or overall description of the experts for the court, when carrying out its task, to go back and look at and assess possibilities raised at the beginning of the exercise conducted by the medical experts and not simply to concentrate on the end of the exercise. As I have mentioned, if one does this in this case it can be seen that all of the experts thought this case to be a difficult one or one that had difficult aspects.

[144]It is also the case that their careful consideration of the case has clearly identified one abnormality namely that one should proceed on the basis that ‘R’ has a bone vulnerability, and, as I have indicated, that carries with it knock-on possibilities that in my view on the medical evidence taken as a whole should not be regarded as fanciful, although not supported by relevant case studies and literature documenting work and research.

[145]I accept that a number of the avenues of investigation opened by the doctors have been closed down. However, looking at the process as a whole, the question for me is whether the last two possibilities I have referred to, namely accidental handling which would not alert the handler that there was a problem, or something that is unknown, can properly be regarded as real possibilities, as opposed to fanciful ones from the medical perspective.

[146]First, they were not expressly ruled out. Indeed, it would be surprising if any of the experts had taken the stance that one could simply rule out an unknown cause or an unknown mechanism given an existing fragility and the absence of literature in respect of it relating to young children who have that, or a similar, fragility.

[147]The doctors in this case accept that you can “never say never”. But that general and correct proposition is not the way in which it seems to me that the last two possibilities should be included as real possibilities in this case.

[148]I accept that the last two possibilities I have mentioned are very low down in the degrees of likelihood as assessed medically. However, in my view, the unusual features of this case that have not been ruled out and the bony fragility and its possible “knock on” consequences found the conclusion that taking the medical evidence as a whole, they are from a medical perspective real and not fanciful, possibilities.

[149]At the heart of this conclusion are the following points: i. the initial approach raising the unusual features of this case; ii. the existence of a real possibility of bony fragility; iii. the possibilities and the unknown features that it is recognised that flow from the existence of that fragility; iv. the fine distinction between Mr May’s description of degree of force being: “Beyond but not much beyond normal handling” and normal handling; and more generally v. the development of science in respect of this area and again, more generally, vi. the recognised professional disputes in a number of connected and relevant matters concerning this area which are, for example, shown by the judgment in Harris.

[150]This means that a conclusion could be reached on the totality of the evidence that notwithstanding the well reasoned medical view that the most likely cause is shaking or shaking and impact, that it is more likely than not that this is not the case and the cause is more likely than not to be something not appreciated by either parent.

[151]I pause to repeat myself at this stage that none of the above, or the conclusion I have reached, is or should be taken to be a criticism in any sense of the approach of any of the experts in this case. Rather I have reached that conclusion accepting the force of the views and reasoning of the medical experts as to what they consider to be most likely and having regard to my analysis of the totality of(a) the medical evidence from their first introduction to this case through to the end of it, the experts’ meeting and the oral evidence of the experts and

(b) the other evidence. Indeed, I repeat my tribute to the approach taken by the experts and express my thanks to them for their analysis and assistance in this case. Further analysis

[152]I now turn to the question of whether on all the evidence it is more likely than not that ‘R’ was the victim of an inflicted injury by shaking or shaking and impact. If not, can a cause or causes of his injuries be identified on a more likely than not basis?

[153]Applying the approach at law I have referred to, the well-reasoned view of the medical experts shows that inflicted injury by shaking or shaking and impact with the degree of force described in the findings sought by the local authority, is plainly a real possibility. However, whether that real possibility turns out to be something that can be said to be more likely than not to be the case, has to be considered and assessed in all the circumstances of the case. In particular it has to be seen how it fits in with the events of the household and the evidence of the potential perpetrators.

[154]That exercise of “fitting in” is complicated by the point that one of the potential perpetrators may be, and indeed, it seems to me in this case probably is highly likely to be, someone who did not injure ‘R’ and who did not witness ‘R’ being injured or suffering an accident. I say that because of the generally held view of these parents, and, because it seems to me, having seen them give evidence, that it is extremely unlikely that if one of these parents had witnessed their child being injured by the other he or she would not say so.

[155]Standing back for a moment and taking a general view, if parents impress a court and others as credible witnesses, looked at in isolation, that is a factor in the overall factors to be taken into account which effectively reverses the degrees of likelihood placed upon the likely causative event identified by the medical experts. This creates the dilemma for the decision-maker who is weighing factors which do not involve a comparison of like with like.

[156]Also a finding, or an assertion of belief in the truth of the testimony of a witness, is not an absolute. The possibility of the decision-maker being wrong on that credibility issue is recognised, and is inherent, in the test that the decision-maker has to apply in a civil court.

[157]I was, it seems to me, properly and fairly reminded by the local authority that witnesses who appear generally to be credible and convincing may in fact not be giving a full and truthful account. I, of course, accept that. I also recognise and appreciate that there are difficulties flowing from the point, which I accept, that there are examples of otherwise excellent and caring parents having a momentary loss of control. Also, and I suspect more regularly, there are examples of parents being a party to accidents which can result in harm to a child. Equally, I recognise and accept that an aspect of human nature is that it can be difficult to disclose such matters.

[158]But these general points do not mean that a particular person has acted in that way, they are possibilities. Equally, it is possible that the parent has not acted in that way and is simply telling the truth to the best of his or her recollection.

[159]I now put these general comments into the more specific context of this case.

[160]I have already mentioned points relating to these parents. A point was raised relating to the Father’s history that there is some medical indication that as a younger man he drank rather more than he does now. There was also an issue of a criminal incident where he became involved with the police, this was a very minor incident relating to a wall. In my view correctly and properly neither of these matters were relied on by the local authority. In my view, they were plainly right to treat that history as history that had no present relevance.

[161]I have looked and made comments as to the general views held of these parents. It is clear and it is not disputed that they have worked hard renovating properties. The Father has clearly worked hard and responsibly in his employment where he started at the bottom and has now risen through the ranks in his company. There are glowing references about him from his work colleagues.

[162]I heard little as to the Mother’s work save for a vignette in evidence when she commented in response to a question that she had met the Father at the estate agency where she worked, it being said that he was looking for a house. Her comment was to the effect: “Well I think he was, but he certainly kept coming in”.

[163]After ‘R’s’ collapse and his illness, there are glowing references relating to, and descriptions of, contact. There are favourable comments made by the police as to their impression. There are favourable comments made by doctors as to their impression. Excellent relationships have been built up with the foster carers, one of whom I think already knew the parents because he was a work colleague of the Father. The relationships between these parents and the foster carers is one in which the Mother said, and I accept, that she would wish the foster carers to continue to play an active part in the lives of the children. I accept that this is unusual. There was also a description of the parents leaving notes in the hospital chapel on leaving each night which was a very clear description of the emotional turmoil that these parents were going through and their overwhelming desire that their son would survive.

[164]All of that I accept, as the local authority remind me, does not mean that they are both telling the truth so far as all the events in this case are concerned. But in my view it is something that I should take into account in carefully examining what they told me and the way in which they gave their evidence.

[165]In this context I record that I was impressed by the dignity with which both of these parents gave their evidence. There were moments of humour in them giving their evidence which demonstrated to my mind the close bond between them and the close bond between them and their children. I have given one example, another is the description the Mother gave of the Father arriving with ‘O’ wearing the wrong clothes when he was looking after her, another was the description by the Father as to how the washing got done in this household.

[166]These and other little, as they were described in submission, vignettes in the evidence, are not in any way probative or determinative of themselves, but they are parts of the jigsaw which make up the impression that a witness gives. Often one simply just hears or reads that a witness made a good impression. It seems to me that often you have to analyse such a statement with a greater degree of care to form a view as to whether or not you think that witness is doing the best he or she can to give you an account of an event to the best of his or her recollection. In particular it is important in that context to look at the way in which the witness deals with issues that are of importance and issues in respect of which a case can be made against them. Again, I take some examples.

[167]So far as the Father is concerned, an oddity and a point which was put to him is why on earth did he pick the baby up at all if he was asleep? And why on earth did he pick the baby up before he had put his socks on? The way that he dealt with these points was not as somebody who was searching for an answer, rather he just said what he remembered. The same can be said as to the point whether or not the baby was propelled or catapulted from the Chaise Longue his answer was, “Well what’s the real difference?” And it seemed to me that that truly reflected his view.

[168]So far as the Mother is concerned, again her evidence as to matters which were prayed in aid of a finding that I should not accept that she was seeking to tell me the truth as she remembered it related to why she had not disclosed earlier the incident relating to the Chaise Longue. Again, it seemed to me that she gave her answers honestly and without searching for an explanation. For example, she was clear, and freely accepted, possibly against her interests given the arguments that were being advanced against her, that she appreciated from a very early stage that she should be telling people about the Chaise Longue incident. She did not assert that it was something that she had not remembered or thought relevant because it was insignificant, rather she accepted that very early on she knew she should be telling people about it but could not do so.

[169]In short, in my judgment they were both impressive witnesses who appeared to me to be trying to give me a full and honest account of what they remembered and why they reacted as they did.

[170]I therefore have to examine, in particular against a backdrop of the strength of the reasoning underlying the medical opinion as to the most likely cause of ‘R’s’ injuries, the matters that were put both in argument and in evidence to lead me to the conclusion that, notwithstanding those general impressions, these witnesses, or one of them, were not telling me the truth.

[171]I am going to carry out that exercise in stages. I shall start by asking whether there is a real possibility, based on the medical view as to the most likely cause of ‘R’s’ injuries that the Mother inflicted those injuries on ‘R’ in the context of the events of the day. So I shall consider whether it can be said, in all the circumstances, that there is a real possibility that the mother shook ‘R’ and alternatively whether it can it be said on the balance of probabilities that she did not?

[172]In this context, and for the purposes of this argument, the local authority correctly assert and rely on the point that, the collapse would have taken place very shortly after the shaking, and therefore you are looking to see when ‘R’ was last normal. In that context, therefore, it is important to look at the events of the day, as I have described them, when dealing with timing.

[173]The main lines of the local authority’s argument, and thus their questioning to lead me to a conclusion that there is a real possibility that the Mother so inflicted injury on ‘R’, related to the Chaise Longue incident and the variations in her descriptions of R’s feeding pattern on the morning of the 5th of April. The local authority’s case relating to the Chaise Longue incident is that it is an invention. Originally, or earlier in the documents provided to me by the local authority, there was an alternative put forward that if the Chaise Longue incident was causative, the Mother had been negligent. But that alternative was not pursued. The Guardian, in supporting the local authority through submissions, indicated that she was not completely in agreement with the assertion of the local authority that it was an invented story. Also I should record that I put to the Mother an alternative possibility namely that, rather than it occurring on the 3rd of April, the Chaise Longue incident occurred on the 5th of April.

[174]I do not accept the local authority’s argument in relation to the Chaise Longue incident. First, I do not accept, as is asserted by them, that it is inherently implausible. That seemed to be a position put forward on a mechanical basis which I do not accept. It seems to me that it is not implausible that a very young and immobile child of this age could be placed on the Chaise Longue and either because he was jolted when the Mother stood up, albeit the Mother is small that would have some effect on the springs of the Chaise Longue, or otherwise toppled over because he had not been placed correctly, and then rolled to the floor. I add that to my mind it is not implausible, even if the child is safely lodged in the corner of the chaise long if there is some other movement which changes that position. However, it does not seem to me that it is right to argue that point from a starting point that the child definitely was so safely secured within the corner of the Chaise Longue.

[175]I accept that if as she asserts this incident happened, in my view the Mother, in her descriptions of the incident and its aftermath, did not treat it in a way that others might have done, particularly having regard to the ‘bone problem’ within her family. To my mind a point to be made against her that she did not raise it with anybody at the time and thus before the tragic events of the 5th of April. That criticism was put to her by me, amongst others, and her attitude was:

“Well it had happened. I didn’t think anything had come from it and I didn’t think any more about it”

. There were problems so far as that response was concerned in that others were indicating that ‘R’ was perhaps behaving worse that evening or the next day. And thus it seems to me that this is a point which is an indicator that, perhaps, the account is not being accurately given or has been invented, but it has not caused me to reach that conclusion.

[176]I do not accept that the point that the mother told her own mother first of the incident takes one anywhere. It seems to me perfectly natural that she would disclose this incident to her own mother first in the circumstances she describes it. In that context a problem I am faced with is that the maternal grandmother was not required to give oral evidence. In that respect the local authority accept that the Mother did tell her mother about the incident, but the court did not have the benefit of hearing that person’s description of that incident orally in the context of questioning to support the contention that the incident is an invention, and has to take her description of the incident on paper. That description is one which accords with the Mother’s account and does not support the conclusion that mother invented the incident and tried it out first on, or first described it to, her own mother.

[177]I have already alluded to the Mother’s reasons for not disclosing this incident earlier. As I have indicated, her evidence was that she knew that she should be telling people about this incident from effectively the early hours of the 6th of April and to my mind her reasons for not doing so are understandable in the very distressing circumstances that then existed. She regrets it, realises it was a mistake, but it does seem to me that in her evidence the mother was describing her feelings and thoughts accurately and truthfully.

[178]Equally, it seems to me that the points raised by the local authority as to the changes in the language and the sense of the language used in the descriptions of the incident do not take one very far in this case. In fact it seems they take one nowhere because in my view they are natural developing or escalating descriptions of an event describing how a child came off a Chaise Longue, when the Mother did not actually see the event on her description of it. So, I rather join with the Father that I do not see much difference between catapulted and propelled in the context of this case in describing how or why ‘R’ fell from the Chaise Longue.

[179]Equally, I do not accept that anything can realistically be built upon the point that there is a similarity between this incident and matters discussed between the parents as to what they might say simply to explain the injury.

[180]To my mind, therefore it is more likely than not that the Chaise Longue incident is not invented, and I therefore reject that limb of the local authority’s argument.

[181]The next limb of the argument related to ‘R’s’ feeding pattern on 5 April. The local authority, to my mind very properly, pointed to the descriptions and the changes in them. There are, as I have mentioned, some difficulties, as to the reliance that can be placed upon the original notes. But I accept that there are inconsistencies in the descriptions given, and it seems to me that the differences can be said to be more marked after the Chaise Longue incident is brought to the fore. However, to my mind those inconsistencies do not lead me to doubt that the Mother is doing her best to give me a full and accurate account of ‘R’s’ feeding.

[182]But, even if I was with the local authority in respect of those two lines of argument, I have very considerable difficulty in seeing how, in all the circumstances of this case, it can be said in the context of the injury under contemplation and advanced by the local authority (namely a shaking or a shaking and impact injury) that they lead to, or found, an argument that there is a real possibility that this mother so injured ‘R’ on the 5th of April. This was dealt with in written submissions on behalf of the Mother. And, in agreement with those submissions, it seems to me that a very important point in the history, which was not challenged is the completely normal discussion between the mother and the father some time after eleven o'clock when ‘R’ had had a feed, albeit a limited feed. This is because on this hypothesis the Mother would have so injured ‘R’ before this. Even leaving that discussion out of account the hypothesis involves a conclusion that it is a real possibility that having so injured ‘R’ the Mother, on the evidence acting normally, then goes out leaving the child, takes ‘O’ to school, does some shopping, and then returns. It was described in submission that that is really off the Richter scale so far as how one would expect thismother to react if she had just so injured ‘R’ and I agree.

[183]If you postulate that this mother had done what is suggested to ‘R’ and you ask when that could have been done the answer would be, on the unchallenged history of the day, very shortly before the time that she was speaking to the Father sitting on the attic step, after which she put ‘R’ in his moses basket where he remained until after she left the house. So one has to postulate that having shaken ‘R’ she had such a period of complete normality and calm then behaved, on the face of it, normally and calmly.

[184]It was put to her why she parked in the lay-by? Her explanation was that, “O was sleeping”. It was not so far as I can remember actually put to her that the explanation was that she was distressed and upset at that point because she had done something to the baby. That was left in the air. To my mind her explanation is plausible and credible.

[185]Another weakness in the local authority’s argument is that no particular stress feature is identified in it as to why the Mother should, as their case is, have suddenly lost control during the course of the latter part of that morning of 5th April. So far as she was concerned this was a perfectly ordinary morning.

[186]The history and account of the morning is one that the parents agree, and to my mind correctly it was not suggested that it was an invention.

[187]Fitting the circumstances of this history to the medical view and standing back and asking: Is it a real possibility that shortly before she left the household the Mother had shaken ‘R’, or had been involved in some event which she knew had made him unwell or was likely to make him unwell? My answer is, no it is not, it simply does not fit.

[188]I now do the same exercise so far as the Father is concerned. Here there is no timing point or if I can call it “third party activity” which leads one to the same conclusion. This is because, on the timetable of the day given by the parents, he was alone with ‘R’ for a period of time from about 12:30 until shortly after 1 o'clock in which he could, as is postulated, have lost control and shaken ‘R’.

[189]That raises the difficult issue for the fact-finder as to whether in respect of what happened when he was alone with ‘R’ in the home he is, or is not, giving the court and others a full and truthful account. The way it is put against him by the local authority that he is not is by reference to the variations in his accounts of the morning of the 5th of April, and his evidence in respect of the Chaise Longue.

[190]As I have already indicated, and in my view properly, the local authority accept that a possible explanation for the initial truncated account given by the Father was the initial urgency and distress of the moment, both for him and the note taker. It is accepted that by the afternoon of the 6th of April correctly he was giving the extended account. That proper approach takes much of the sting from the point that is made, albeit to my mind still properly made, that the variations are an indication that the father is not giving a truthful account.

[191]It was argued that his evidence in respect of the Chaise Longue also leads one to the conclusion that he is hiding something. The first point made there is the inherent plausibility point and so it was said it would have been obvious to him that the incident did not happen. It is clear that I do not accept that because this is not obvious to me.

[192]Also it is said that the Father failed to give a proper disclosure or explanation of that disclosure by the Mother. That is true he did not do so. It is also true that his view was that the Mother should not disclose and thus advance the Chaise Longue incident as a possible explanation. There are unsatisfactory features of that response and attitude which he accepted in his oral evidence. I agree, as the local authority pointed out, that there are a number of possible causes for that namely(i) he recognises it was not a credible story;

(ii) he did not want to expose the Mother; and/or

(iii) he knew it was untrue because he knew the truth as to ‘R’s’ injuries.

[193]This issue, namely the possibility or likelihood that the father had shaken ‘R’ after the Mother had left the home was also raised in the final submissions put in on behalf of the Mother. These included a detailed account of the Father’s differing accounts which I have referred to. They also raised the existence of a possible stress or trigger factor to him losing his temper with ‘R’. This related to the DIY he was doing namely putting on handles and latches to the door of ‘O’s’ bedroom. His evidence was that this was a job which he found difficult. It was put to him that it was something that he found annoying. I think his response was that it was challenging.

[194]It was also put to him that it would have been annoying for him to stop doing the work and have a chat with the mother.

[195]In these contexts he was reminded that in some of his later accounts of the events of the household he referred to ‘R’ crying with colic and it was pointed out that in some cases such crying can cause annoyance and be a trigger to a loss of temper and a momentary loss of control by an adult.

[196]In my view those matters provide the basis for an argument, which has force, that the father is not telling the truth and giving a full account of what happened when he was in the sole care of ‘R’ on the 5th of April. He accepted, through his evidence-in-chief, that those arguments existed because he recognised and sought to explain what he would do if the court, by reference to arguments of that type, was to conclude that he had injured ‘R’.

[197]Notwithstanding the force of those arguments, I have concluded that I should not accept them, and that having regard to his evidence as a whole I have concluded that it is more likely than not that the Father did not shake ‘R’ as a result of a momentary loss of control, or otherwise. The argument was in my view correctly put on the basis of a momentary loss of control.

[198]This conclusion, of course, flows from an assessment of his evidence in all of the circumstances of the case. I have already alluded to exchanges between him and counsel relating to a number of its aspects. To my mind, in line with all of his evidence, when he was dealing with those aspects of the case in respect of which he faced the difficulties I have mentioned he did so in a dignified and calm way. He did not at any stage seek, for example, to confess and avoid. He did not at any stage give the impression that he was trying to fit something to a circumstance, or to give a favourable answer to a question. Put the other way round at all stages, during the examination of him with a view to determining whether or not he was hiding something, he gave the impression of doing the best he could to provide a full and truthful account.

[199]For example, I put to him the point that he did not encourage the Mother to disclose the Chaise Longue incident because he knew what had actually happened. His reaction, as I gauged was of someone who did not really follow that train of thought at all. It was not a denial. He did not seek to give an explanation. He just gave the impression that he did not really see what it was all about. He gave no indication in dealing with this, or in relation to any of the other questions directed to this issue, that he was trying to hide something.

[200]At this stage of the analysis, as a process of reasoning, I have focussed on the case put by the local authority by reference to the most likely cause identified by the doctors and thus shaking or shaking and impact as I have described it. But, as I have indicated, it seems to me that in the exercise that the court has to carry out it should also consider the point put that there may be some other undisclosed cause of this injury.

[201]The only cause of an accidental nature put forward as a possibility by the parents is the Chaise Longue incident, and it seems to me that I therefore have to ask myself: Is it more likely than not that one or both of the parents are not disclosing an event that they know was or could be the cause? An affirmative answer has a beguiling attraction because it seems to me a natural reaction is that it is easier to understand, given the general description of these parents, that an accident could occur rather than a momentary loss of control. That generality has a countervailing point that perhaps it would easier to disclose the accident than it would the momentary loss of control.

[202]As I have indicated earlier, in this context it seems to me, as in all others, I must act on the evidence and not on speculation. There is no evidence-in-chief, or any evidence arising out of cross-examination, of any relevant event, apart from the Chaise Longue incident. So, as I have already indicated, in my judgment it is not open to me to identify an unidentified accidental event on an evidential basis and any finding would have to be limited to a range or description of causative events.

[203]Additionally, if I was to consider that I was not being told of such an event, it would mean that I was not accepting that I was being given a full and accurate account by one or more of the parents. That would have an impact on my earlier conclusions that it is at least more likely than not that the Mother did not shake ‘R’, and that it is more likely than not that the Father did not do so.

[204]If my conclusion was that the Father was not giving me a full account to the best of his ability, it seems to me, for the reasons I have given earlier, that the range or description of the causative event would have to include that described by the doctors as, “the most likely” (i.e. shaking, or shaking and impact) and indeed if that was my conclusion on his evidence it seems to me that the medical view would probably found the conclusion that was more likely than not to be the cause and a wider range to include undisclosed accident should be excluded from the description of the cause assessed to the civil standard (more likely than not).

[205]The position would be less clear so far as the Mother is concerned given the force of the points I have made relating to timing and the events of the day and the unlikelihood that the parents would be inventing this history.

[206]I therefore have asked myself whether it is more likely than not that ‘R’ was injured as a result of an event (outside normal behaviour, perhaps just outside), or an incident or accident that the parent who so behaved or witnessed it would appreciate, or reasonably ought to appreciate, was or might be the cause of ‘R’s’ injuries.

[207]The Mother, has given a number of accounts of accidental incidents, which I have referred to, they include:(i) knocking R’s head;

(ii) falling from the cushion; and

(iii) falling from (being propelled or catapulted from) the Chaise Longue. It seems to me inherently unlikely that she would not be including, even if only in a down played manner, another accident that might have been causative should one be known to her. The timing points of the day and her behaviour on it are also factors against a conclusion that she is not disclosing such an accident or event on 5th April.

[208]So far as the Father is concerned, the position in my view is more difficult, but essentially for the same reasons that I have concluded when focussing on the point whether or not he is not telling me about a shake, that he also is being truthful and/or is not hiding from me another event, incident or accident which he would have appreciated was or might be the cause of the injuries suffered by his son.

[209]That is the reasoning that has led me to reach the conclusions I have set out at the very beginning of this long judgment. As I hope is apparent I have not reached a conclusion simply on the basis that the local authority has failed to prove its case, and having striven to do so, as in my view I am bound to do, I have been able to reach findings to the civil standard (more likely than not).

[210]I return to the Chaise Longue incident. As I have indicated, the local authority did not seek findings in respect of this other than that it was invented. I have refused to make that finding therefore it seems to me that I have to consider whether or not findings of fact should be made in respect of that incident. I raised the point whether it took place on the 3rd or on the 5th April. As to that, again, essentially, for the reasons I have already given, it seems to me that it would be perverse for me to say that I accept that the Mother has been giving me full and truthful accounts in all other aspects but to reject her evidence as to her timing of that incident. Therefore I accept her evidence as to the timing of that incident.

[211]To my mind it cannot be said that on a more likely than not basis that that incident was causative of any of ‘R’s’ injuries. Equally, to my mind, it is properly categorised as ‘an accident’ and would not satisfy the attribution provision in section 31 Children Act 1989.

[212]Further, albeit that the Mother recognises that she merits criticism for not disclosing the incident earlier, I have already dealt with the circumstances relating to that, and that failure to disclose does not seem to me to establish a likelihood of harm for the purposes of section 31 Children Act

[213]That deals with the fact-finding exercise. Tailpiece

[214]I have a short tailpiece to this judgment it goes back to the issues that were raised during the course of the hearing relating to procedural fairness.

[215]In this context, I recognise that hindsight is a wonderful thing also I have already recognised in a different context the advantages that flow from the forensic process in the identification of issues.

[216]Having regard to the way in which the local authority put and argued its case I can understand why counsel for the local authority put his questions in the way that he did because they were the questions and answers which he used to found his argument.

[217]To my mind a gap in that argument and approach existed because of a failure to deal with what I have described as, “the fitting in”, of the events of the day to the real possibility being urged by the local authority in respect of the Mother and the asserted inability to differentiate between the Mother and the Father as potential perpetrators to the extent that one of them could be excluded as a possible perpetrator.

[218]It seems to me that this created a real gap in the cross-examination.

[219]To my mind, if the local authority were going to argue as they continued do, that the Mother should be included as a possible perpetrator on the basis that she had inflicted a shaking or a shaking and impact injury on ‘R’ late in the morning of the 5th of April, and thus that that was a real possibility, part of their function was to expressly test the Mother on that aspect of it by express reference to the timings and events of the day described by the parents.

[220]I, like counsel for the Mother at the end of her cross-examination, was unaware of precisely how the matter was going to be put against the Mother. It was plain that the intervention then made by the Mother’s counsel was to flag up that it seemed that no point was being made against the Mother that she was a perpetrator of such an injury. That understanding or impression, which I confess I shared, is to my mind indicative that the case that there was a real possibility that the Mother had so acted (or that it could not be found that it was more likely than not that she did not so act) was not fully and properly put.

[221]The case could have been put in a number of ways, for example in writing at an earlier stage although such a “pleaded case” would probably have been the basis for questioning linking the asserted possibility to the events and timing of the day.

[222]This conclusion that such questions should have been put is not a conclusion that it is incumbent upon local authorities to put every possibility, or indeed, many possibilities in cases of this type. Rather it is one that in this case the Mother should have been expressly challenged to support the argument that was put it remained a real possibility, in all the circumstance of this case, that she was the perpetrator of an injury in the manner identified as, “the most likely cause”, by the doctors.

[223]It follows in my view, although again I accept that this is not an easy task immediately after a long cross-examination by counsel for the local authority, that counsel for the Guardian should have put such points if, as turned out to be the case, the Guardian was seeking or inviting the court to make the same findings of fact as the local authority.

[224]Having made those criticisms I would also like to record that I am grateful for the assistance I have received from counsel for the local authority, counsel for the Guardian, and indeed, all counsel in this case. As to the approaches taken by the local authority and the Guardian, I invite them to consider them having regard to(i) the approach to be taken in law in cases of this type and

(ii) my comments as to how close it seemed to me their submissions came to what, in my view, would be an incorrect approach.

[225]Further, so far as the Guardian is concerned I would invite her to consider carefully whether with hindsight it would have been better in this case, given in particular what she knew personally of the parents and the general impression of these parents, to have taken a stance of neutrality, rather than supporting or asking for particular findings against these parents. This an approach that is often adopted and leads to the Guardian carrying out a close investigation of the events, and thus, for example, whether or not there were other potential causes which, notwithstanding the medical conclusion in all the circumstances of the case, became the most likely, or the more likely than not solution.

[226]In my view the thinking of a Guardian as to the stance he or she should adopt at the fact finding stage relating to inflicted injury should have regard to the consequences on the law as it presently stands to a finding that the cause of an injury is inflicted harm by shaking or shaking and impact.

[227]So I simply invite the local authority, the Guardian and their counsel to consider my comments with a view to deciding whether they should inform decisions made by them in the future. I will correct the transcript when I get it.

[229]My findings mean that the threshold is not established in this case.

Cited in 29 later judgments

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