“If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”
“I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.”
“All of their Lordships in Re Hwere clear that there was one standard of proof, the balance of probabilities. But Lord Nicholls went on to say this at p.586: “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur…Ungeoed-Thomas J expressed this neatly in In re Dellow’s Will Trusts[1964] 1 WLR 451 , 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’”
“ None of the parties in this case has invited the Supreme Court to depart from those observations, nor have they supported the comment that Re B “was a ‘sweeping departure’ from other authorities in the House of Lords in relation to child abuse, most obviously the case of Re H. All are agreed that Re B reaffirmed the principles adopted in Re H while rejecting the nostrum “the more serious the allegation, the more cogent the evidence needed to prove it” which had become a commonplace but was a misinterpretation of what Lord Nicholls had in fact said.”
“Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer.”
“In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”
“My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “How often have I said to You that, when You have eliminated the impossible, whatever remains, however improbable, must be the truth?”
“2. It is necessary to refer to the trial judge’s decision in The Popi M[1983] 2 Lloyd’s Rep 235 as it contained what the trial judge described as a striking and novel feature of the expert evidence – all experts put forward explanations of the cause of the loss which were acknowledged to be highly improbable; each explanation was supported as the most likely explanation only because any other hypothesis was regarded as almost (if not altogether) impossible. . . . 4. . . . The Popi M was a very unusual case and as these two appeals demonstrate, the difficulties identified in that case will not normally arise. In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judge two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is, as was accepted before us by the appellants, a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.”
“…although underwriters sued by shipowners for the total loss of a ship by perils of the sea are not under any obligation to plead in their defence, or to seek to prove at the trial, some alternative cause of loss against which the ship was not insured, they are perfectly entitled to do so if they wish. “ The same principle applies in fact-finding proceedings such as these. There is no pseudo-burden subtly shifted to the parents to prove a natural cause for S’ death. In Lancashire County Council v D and E[2010] 2 FLR 196 , FD, Charles J said: “[36] The exercise of identifying a perpetrator, or 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 fact.”
“There is, in my judgment, an obvious disadvantage to parents in an approach which requires that they provide an explanation for even the smallest bruise failing which there will be an automatic presumption that that bruise must have been an inflicted injury. Such an approach subtly changes the burden of proof and puts the onus on the parents to provide a credible explanation. As a matter of law, it is not for the parents to disprove the suggestion that the general bruising is non-accidental but for the local authority to prove that it is.”
“The expert advises but the Judge decides. The Judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the Judge suspends judicial belief simply because the evidence is given by an expert.”
“An expert is not in any special position and there is no presumption of belief in a doctor however distinguished he or she may be. It is, however, necessary for the Judge to give reasons for disagreeing with experts’ conclusions or recommendations. That, this Judge did. A Judge cannot substitute his own views for the views of the experts without some evidence to support what he concludes.”
“[23] …there is a broad measure of agreement as to some of the considerations emphasised by the judgment in R v Cannings that are of direct application in care proceedings. We adopt the following… (i) The cause of an injury or an episode that cannot be explained scientifically remains equivocal. (ii) Recurrence is not in itself probative. (iii) Particular caution is necessary in any case where the medical experts disagree, one opinion declining to exclude a reasonable possibility of natural cause. (iv) The court must always be on guard against the over-dogmatic expert, the expert whose reputation or amour propre is at stake, or the expert who has developed a scientific prejudice. (v) The judge in care proceedings must never forget that today's medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark.”
“At root the question in this appeal is whether the judge was entitled to prefer this empirical or factual evidence to Dr Gillett's prognosis derived from her psychological profile. The answer to that is yes. I do not think that it was helpful for the judge to embark upon a comparison with the direction which is given in criminal cases to jurors when they are dealing with expert evidence. Those directions no doubt are designed to remind jurors that the ultimate decision is for them, that the expert evidence must be evaluated and that if they disagree for a reason with the expert's conclusion they must do so, but that is to say no more than is the common coin of all litigation and jurors do not give reasons; judges do. In the context of a child care case, the judge is the decision maker, the expert is not. Where there is as here undisputed expert opinion evidence, the judge ought not to reject it without sound and articulated reason. This judge said at paragraph 171 that it was for him to weigh the evidence of Dr Gillett and the guardian in the context of all the evidence both oral and written in the case. To the extent that he parted company with the evidence or recommendations of Dr Gillett or the guardian, he recognised that he must give his reasons.”
“. . . This is a very experienced judge for whom everyone would have the greatest possible respect. But the judge does have an obligation to give reasons why he should set aside the medical evidence, which was strong, in favour of his view that, because the grandmother and the other witnesses were clearly not lying, the medical evidence could not stand. He did not, for instance, deal at all with the explanation given by Dr Hall as to why, on the evidence of early healing, the injury had to be at least 7 days old. Mr Ames, in a valiant attempt to support the judge, has suggested that, because dating of injuries is an imprecise science, and that, in effect, is what both the radiologists have said, that the judge was entitled to prefer the impression of Dr Newson. I fear that will not do. In a case such as this where the expert evidence, and here the expert evidence of the radiologist was all one way, the judge is certainly entitled, if he has evidence that he can rely upon to the contrary, not to accept that evidence. In my view he did not have that evidence in this case. He did not, in particular, have evidence that made the uncontroverted medical evidence logically unsupportable. The judge failed to analyse the evidence and give any reasons. The credibility or otherwise of the lay witnesses on the facts of this case, in my view, cannot stand so high as to make the evidence of the two consultant radiologists of no effect.” 27. Otton LJ stated (at 340H): “The circumstances when judges of the High Court can reject the evidence of a body of medical opinion are rare. This situation was considered by the House of Lords in Bolitho (Deceased) v City & Hackney Health Authority[1998] AC 232 … per Lord Brown-Wilkinson at 243: “In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable … It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”” “In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion … But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of medical opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable … It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.””
“(iv) Evidence which is relevant to the assessment of the parents or other family members if and when the threshold criteria are established should not be permitted unless for some reason it is of direct relevance to the factual issue being tried. It is the essence of a split hearing that assessments of the parties and their capacity to parent their children need to be carried out on the basis of the facts found by the court. Ex hypothesi that can only be done after the court has decided both that the threshold criteria have been satisfied and the factual basis upon which they have been satisfied. (v) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue. There will in any event be before the court evidence from the local authority and the parents relating to the history of the case and the backgrounds of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment of a parent for the first stage of a split hearing is unlikely to have a complete knowledge of the facts. (vi) Furthermore, such a witness may, as here express opinions as to propensity or as to responsibility for a child’s injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child’s injuries (often the critical factual issue) remains the function of the judge. In my judgment, therefore, a psychiatric or psychological assessment of the parties should not be permitted at the first stage of a split trial unless the particular facts of the case demonstrate that such evidence is or is likely to be directly relevant to the factual issue to be tried. (vii) Expert evidence as to the assessment of risk once the threshold criteria have been established is, of course, another matter. But the essence of such as assessment is that the psychiatrist or psychologist makes his or her assessment on the basis of facts found by the court and parental reaction to them.”
“Of course the assessment of the father's credibility was primarily the judge's task. But the assessment of his core personality and the extent to which damage resulting from his early life experiences was disabling and permanent was primarily for the experts, whose professional training, qualification and clinical expertise equipped them for the task. In my judgment, given that the experts were unanimous on this vital aspect, it was not open to the judge to reject their conclusions, either on the basis of his own impressions of the father or upon the basis of the prejudice to the father's case caused by management decisions of the local authority and prison authority during the interlocutory stages. The assessment of the section 31 threshold could not admit of any redress to the father for that factor, nor could the assessment of considerations relevant to M's welfare.”
“The ability to tell a coherent, plausible and assured story, embellished with snippets of circumstantial detail and laced with occasional shots of life-like forgetfulness, is very likely to impress any tribunal of fact. But it is also the hallmark of the confidence trickster down the ages.”
“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over-much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, it is so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
“[Polymorphs] probably start to accumulate within minutes of the onset of the inflammatory stimulus, but their arrival can not be appreciated histologically for several hours. “ In his report he stated: “Injuries of all types initiate an acute inflammatory reaction as a means to try to limit the local spread of the causative agent and to try to repair any damage caused. In the first instance, this involves delivery to the site of phagocytic cells; the first to arrive are the polymorphs (polymorphonuclear leucocytes), and they reach the affected area via the circulation. Although the stimuli for the accumulation of polymorphs at the site of damage are produced extremely rapidly, it takes a finite period of time before the polymorphs begin to accumulate in histologically appreciable numbers. It is said that polymorph accumulation at the site of an injury may be apparent on microscopic examination as early as two hours after the injury was inflicted, but most authorities believe that they are not usually seen until 4-12 hours post trauma.”
“Most of the macrophages involved in the inflammatory response are delivered by the circulation, and they tend to arrive somewhat later than most of the polymorphs.”
“As part of the inflammatory process considered above, the phagocytic cells which arrive at the site of a bruise also start to break down the red blood cells which have been extravasated, and, as part of that process, they “digest” the haemoglobin pigment from within the red cells and convert it, inter alia, into haemosiderin. The nature of the iron within the haemosiderin molecule is such that it can be stained, histochemically, by Perl’s stain. Most authorities agree with Betz and Eisenmenger that approximately three days need to elapse after the infliction of a bruise before any haemosiderin can be demonstrated histologically by a Perl’s stain.”
“The earliest recorded leucocyte reaction was recorded at 20 – 30 minutes, although more recent observations give times in both haemorrhages and wounds varying between one and 24 hours.”
“An established infiltrate of neutrophils would be expected to imply that a bruise occurred during life, as neutrophils are not present in normal skin; however, it has been observed that neutrophils emigration can occur after death in response to cytokines – at least in mice.”
“I have on each and every occasion been satisfied that his physical emotional and developmental care has been appropriate and of a high standard”
“Blood samples were taken including a blood gas which showed very severely metabolic acidosis and very high potassium consistent with a prolonged period of cardiac arrest”
“it was not bleeding”
“Histology Histological examination of the upper fraenulum shows fresh haemorrhage with a little associated fibrin. Neutrophils can be seen around adnexal structures. Within the bruise on the left palm there are similar changes with haemorrhages, oedema and neutrophils present around adnexal structures and within the fat. The tissue sample from the right palm is fragmented but confirms the presence of haemorrhage within the subcutaneous tissue associated with neutrophils. In a separate fragment neutrophils, blood and fat can be seen. Histological examination of the brown bruise on the back of the right hand showed further haemorrhage and neutrophils around adnexal structures. There is focal Perls positivity. The lesion from the left ear shows numerous small vessels some of which branch and others have blood within them. There is fibrin and associated haemorrhage but no inflammation. Patchy iron deposition can be seen. Within the right ear a similar lesion is present. There is haemosiderin laden macrophages associated but no evidence of recent haemorrhage. Microbiology Please see the report of Dr W for full details of the microbiological results. However, in summary, there are no microbiological findings to account for death. My conclusions are as follows: The Cause of Death Despite a detailed post-mortem examination including histological, microbiological, biochemical and toxicological analyses, no cause for S’s death has been determined. It is recognised that sudden and unexpected death can occur in infants for which a cause cannot be determined. Many of these deaths fall within the definition of sudden infant death syndrome. However, in this case S was older than the common age range for SIDS death and there were a number of injuries about the body which, although have undoubtedly not contributed to death, cause concern and therefore it is most appropriate to classify the death as unascertained. The Lesions in the Ears Within the left ear there was a fluctuant swelling which on sectioning showed haemorrhage. A similar nodule was present within the right ear. Histological examination of these lesions showed underlying vascular lesions which have developed as a consequence of a developmental anomaly and are therefore hamartomas. Within the smaller lesion on the right ear there was evidence that there had been some bleeding in the past as there was haemosiderin within macrophages. The left ear showed haemorrhage with some iron deposition. This may be as a result of recent bleeding or may simple represent the lack of resolution of an earlier episode of bleeding. The presence of bleeding has occurred as a consequence of some degree of trauma to the ears although given the presence of the underlying leison this may be relatively minor trauma in nature. The Fraenulum During resuscitation attempts in the Accident and Emergency Department, damage to the upper fraenulum was documented. At the time of the post-mortem there was an obvious recent tear with a little erythema evident macroscopically (injury 6). Microscopically the presence of fibrin and an acute inflammatory cell reaction with neutrophils which have migrated away from the vessel indicate that this injury has occurred during life and not as a result of resuscitation attempts. The histological appearances indicate that this lesion has not occurred around the time of death. These features have been described as early as two hours but it is generally held that these changes indicate that the injuries occurred four to eight hours prior to death. The Bruises The post-mortem examination has documented a number of bruises about the body. Some of these injuries (injury 15 and injury 22) are undoubtedly older as they were brown in colour and, in the case of injury 15, from the right hand, histological examination has shown the presence of Perl’s deposition indicating some degree of resolution. The presence of Perl’s positive iron suggests that the bruise on the back of the right hand has been present for at least approximately 3 days. The most concerning bruises, however, are those to the palms of the hands (injuries 13 and 16). The palm of the hand is a difficult place to cause bruising and as such significant trauma would be required to lead to the damage to the blood vessels which leads to the bleeding. Histological appearances of these lesions again indicate that they have occurred during life and not in the time immediately leading up to S's death. The ageing of these lesions is similar to that seen in the fraenulum. As it stands, I am unaware of any explanations having been provided for these injuries and in the absence of such explanations these injuries strongly suggest non-accidental injury. It is likely that these bruises were not apparent during the earlier examinations of the body as they were relatively deep bruises which have developed over a period of time. On the left forearm there were two purple/brown bruises with yellowing at the edges (injury 22). The colour of the bruising indicates that it has been present for a period of time greater than 18 hours. The positioning on the arm is suggestive of being caused by a "nip" or pinch. There were a number of other bruises to the body including the head and around the eyebrows. Whilst these all were minor injuries in themselves, no explanation for these injuries has been provided to my knowledge Summary and Conclusions S’s death remains unexplained. Although some features would suggest that S has died as a result of sudden infant death syndrome his age and the presence of the bruises around the body preclude its classification as sudden infant death syndrome and the death remains unexplained. A number of injuries has been documented with significant injuries to the hands and fraenulum which have undoubtedly occurred during S's life and most likely predate his death by a small number of hours. Whilst these injuries have not in any way caused S's death their very presence is seriously concerning.”
“At the post-mortem examination a number of bruises were documented on the palms and backs of both hands. One of the bruises on the back of the right hand was red/purple in colour and histological examination suggests that this bruise had been present for at least three days based on the presence of Perl's positive material. The bruising to the palms of the hands is concerning. The palms of the hand and the palmar aspects of the fingers are an unusual place to see bruising as due to the nature of the tissues involved bruising to the palm is difficult to cause. Given that there were also bruises present on the backs of the hands, the most likely cause of the bruising to the hands is some form of compressive blunt force. Possible mechanisms of injury include stamping or standing on the hands and also the trapping of the hands between unyielding surfaces. The injuries themselves had no specific features to indicate which of these were the most likely. The Injuries to the Fraenulum At the post-mortem examination there was a recent tear of the fraenulum of the upper lip. The most common cause of injuries to the fraenulum include a tangential blow or forceful introduction of an item into the mouth such as a feeding bottle, dummy or finger. Although injuries to the fraenulum can be caused during resuscitation attempts in this case, the histological findings indicate that this is not the case as the injury shows attempts at resolution and healing.”
“Not necessarily, because the examination that we carry out is very different to the examination carried out immediately after death. And with the injuries to the palms we know that deep bruising develops over a period of time in the same way as if you bang your leg you might not see a bruise for a day or two, If you bang your shin for instance the bruise is much more obvious much quicker. So bruising can develop over a period of time. That can still happen after death so although bruising might not be evident when the initial examination of the child is carried out by the time of post mortem which is by definition a number of hours later the injuries may then be obvious.”
“Summary and Conclusions S appears to have died early on (date) . His body was examined at post-mortem by DR. J and DR. W and a variety of pieces of tissue were retained for histology. I have been asked to comment upon the possible causes of the injuries to the hands and fraenulum and the timing of these injuries, in particular in relation to the point of death. The Injury to the Fraenulum This has occurred shortly prior to death. It has not occurred after death or during attempts at resuscitation. It could have been caused by the rough insertion of something such as a bottleinto the mouth, or alternatively by a blow to the area of the central part of the upper lip, possibly a slap. The histological appearances suggest that it probably occurred at least a few hours prior to death. The Bruising on the Hands In relation to the bruises on the back of the hands, these have again undoubtedly occurred in life. They were generally blue in colour suggesting they were recent and quite possibly had occurred around the same time as the injuries to the palms of the hand. One, however, was subjected to histology (Dr. J’s injury 15) and there does appear to be a little haemosiderin present although the quantity is small and the staining not of the very best quality. The presence of haemosiderin is said to indicate that the injury occurred generally a small number of days prior to death and it would therefore appear that this bruise at least is rather older than those on the palms of the hands (see below). The naked-eye and histological appearances of the bruising on the palms of the hands indicate that it has occurred during life, not during resuscitation and not after death. The histological appearances suggest that it only occurred a few hours prior to death. It is in general very difficult to bruise the palms of the hands because of the nature of the tissue which is relatively fibrous. It is not something that is easily done and does not occur after any sort of trivialtraumatic event. The sort of forces involved would make any event which produced this bruising memorable to witnesses. It is possible that the bruising was caused by the hands being bitten but the only part of the injury which has appearances to particularly suggest this is the row of three small blue bruises on the back of the right hand. The other bruises do not in any way show any specific type of pattern to indicate a particular cause. It is possible that they were caused by biting but if so a little surprising that the skin on the back of the hand was not broken. In my opinion it is more likely that some or all of the bruises were caused by the palm of the hand being hit forcefully whilst the back of the hand was resting against something, or alternatively the hands being trapped and squashed in something like a door. Bruising to the palms of the hands in infants is distinctly unusual. The absence of any memorable accidental explanation and the presence of bruising on the palms of both hands rather than simply one are both highly concerning features which make it extremely likely that these injuries were deliberately inflicted.”
“Despite a careful and detailed joint post mortem examination, no cause for death was identified; specifically, nothing was found morbid anatomically, histologically, biochemically, microbiologically, virologically or toxicologically to account for, or even to contribute to death. I would add that, in my opinion, none of the injuries considered below, either singly or in combination, contributed to death.”
“I have listed above, at pages 4-7, all the injuries identified at post mortem examination. In my opinion, ALL were sustained prior to death, and I am entirely satisfied that NONE was sustained after death, including during resuscitation attempts, particularly as I believe that the finding of a “stiff jaw” during the latter points towards death a while before the body was found. (his emphasis) It would, I think, be easiest if I were to consider S’s injuries under the headings and in the order used above:- A) Scalp The forehead bruises were relatively small (both 0.4 x 0.4 cm), but each clearly required significant local blunt force trauma for its production, especially as both involved the full thickness of the scalp. It is important to point out that bruises are invariably non-specific – i.e. they give no clue(s) as to their cause. Nevertheless, bruises of this size do tend to suggest to me that they may have been caused by finger tips – as in poking, prodding or firm gripping. In contrast, the bruise within the substance of the scalp in the left anterior temporal region was significantly larger (1.5 x 1 cm), suggesting that a greater amount of force is likely to have been involved in its production, and that something larger than a finger tip (for example, a thumb during gripping) is likely to have been responsible. As far as age is concerned, I do not think that any of these bruises was subjected to microscopic examination. As stated above, it is notoriously difficult to estimate ages of bruises from photographs, but I note that all were described as being purple/blue in colour, with no evidence of any colour change. Consequently, I think that it is likely that they probably occurred within 24 hours of death, and it is worth noting that this could, at least in theory, have been within a few minutes. I am entirely satisfied that these bruises were not caused during resuscitation or in any other way after death. B) Left Orbit These are small purple bruises (0.5 x 0.5 and 0.4 x 0.4 cm), and, as such, attract very similar comments to those seen in the forehead and considered immediately above. Consequently, I think that they too could have been caused by finger tips and that they are likely to have occurred within 24 hours of death. C) Upper Lip Fraenulum This was recently torn and, histologically, there is minimal but, I think, definite accumulation of polymorphs at the site of recent bruising. The microscopic identification of polymorph accumulation, even if minimal, is an extremely important observation, because it indicates, quite unequivocally, not only that this injury must have occurred before death, but also that it must have occurred several (at least two, and probably 4-12 hours) before death. In other words, this injury did NOT occur at or around the time of death, and it could NOT have happened during the resuscitation attempts. Tearing of the upper lip fraenulum usually follows an oblique or tangential blow (often a punch or a forceful slap) to the mouth which forces the upper lip to one side – thus stretching and, if sufficient force in involved, lacerating the fraenulum. Clearly, a significant amount of force is necessary to produce such an injury – far more than associated with the normal handling of an infant. It is said that deliberately forcing something into the infant’s mouth – for example, a bottle, a dummy or even a finger – can tear the upper lip fraenulum, but I agree with the comment in the document reporting the meeting that “work being undertaken in Cardiff seems to have gone against the bottle as a cause”
“I have not met the parents or examined either D or S2 myself and I was not involved in any of the care of S prior to his death or at the time of his death. Everything I know about this family is from the documents I have been sent. I have not discussed the case with any of those involved.”
“Features of injuries in children which give rise to suspicion that they are non-accidental: a. delayed presentation b. injuries on parts of the body which are not easily explained by a single accident c. injuries which appear to be of different ages d. injuries which occur at unusual sites for accidental injuries. Research has shown that non-accidental soft tissue injuries occur more commonly on the areas of the face, head, neck and trunk whereas genuine accidents more often injure the limbs. Injuries to the pinna of the ear are almost never seen as a result of true accidents but are not an uncommon site of non-accidental injury. e. injuries in a pre-mobile infant f. inadequate explanations g. changing or different explanations h. there are a few injuries which are particularly suggestive of non-accidental injury. Petechial (pinpoint) haemorrhages rarely arise due to accidents. Symmetrical petechiae on the cheeks can arise from vomiting, crying or choking. Petechiae There are a few injuries which are particularly suggestive of non-accidental injury. Slap marks sometimes cause petechial (pinpoint) haemorrhages whereas petechial haemorrhages associated with bruising rarely arise accidentally. In contrast, symmetrical petechiae on the cheeks can arise from vomiting, crying or choking. Pinprick or petechial haemorrhages can be a sign of a clotting disorder or indeed of meningococcal infection but if neither of those are the case, patechial bruising on the cheek of child who was fifteen months old at the time is most likely due to a slap. If there were petechial bruising on both cheeks and around the eyes and the child was unwell it could be due to strenuous vomiting or choking and is sometimes seen after very strenuous paroxysm of coughing. There is no indication that any of these applied to D at the time. Petechiae appear soon after trauma, within minutes or a few hours, not days. My experience from petechiae due to all four recognised causes (infection, coagulopathy, coughing or retching, and non-accidental injury) is that they fade and disappear rapidly. They always disappear within a week and sometimes they are fading by a few hours and disappear by a day. This sequence can therefore be faster than for larger bruises. Harmatomae It would be extraordinarily unusual in my experience for a child to suddenly develop a hamartoma overnight, a developmental abnormality, at the age of seven months quite spontaneously. I am not a pathologist but I wonder whether it is possible that the numerous small blood vessels which were seen under the microscope by Dr. J and which led her to conclude that these were a hamartoma could have developed as a consequence of the healing process following a trauma or some other problem giving arise to the ear swelling at seven months of age? Irrespective of possible causation, suffice to say that all the research shows that children under six months are very unlikely to sustain bruising and this is worth noting as part of the overall picture. It does not seem likely, in my experience of hundreds of children with vascular birth marks (hamartomas) that a bruise behind the ear could be due to a hamartoma of the pinna of the ear. Bruises In the body of my report I have set out that most of contemporary descriptions were either bruise or cauliflower ear. In my own personal experience over 25 years, I have only seen the kind of swelling and discolouration described in the photographs following traumatic injuries in older children and adults as a result of contact sports. I describe my experience now of two medico-legal cases when either the child concerned or a sibling had a skull fracture and where very abnormal appearances of the ear as described in this case were seen. One of these case were attributed to something called a pseudocyst of the auricle, a condition which neither I as an experienced paediatrician nor an experienced ear, nose and throat surgeon nor an experienced dermatologist had seen or considered. Given the appearance of blood at the time of post – mortem within the lesion within the ear, I think this idea of pseudocyst is even more implausible in the case of S. Dr J has raised a possibility of hamartoma but it does not seen to me that would fit either the temporal sequence or the appearances. Ageing of soft tissue injuries is notoriously difficult, even from colour photographs. I have personally published research demonstrating this. Contemporaneous ageing (ie from the appearances observed at the time, rather than from photographs) of genuine accidental injuries of known age is also difficult. Nevertheless, relative ageing in loose time frames is probably easier. Eg bruises containing yellow, brown or green colouration are likely to be older than bruises which appear red, blue or purple. This is due to changes in the colour of the haemoglobin pigment in red blood cells as it is broken down. Fraenulum In such a young infant the most likely cause of the torn fraenulum is force feeding. Dr J is clear that the injury was caused not at the resuscitation but before death. I have at one occasion seen a torn fraenulum in an older child who fell off a slide in the park. The torn fraenulum was associated with bruising of the lip and it was not an isolated finding. The degree of force required would be excessive and not that involved in normal feeding of a child. It is likely to be the result of a spoon or some type of cutlery or a feeding bottle being forced up between the top gum and the upper lip. This is a type of injury which is most classically seen in a boxer. Nosebleeds Nosebleeds in young infants are very rare. Mobility Between 2 ½ and 4 ½ months he would acquire the ability to be able to push himself up for from a prone position using his arms (but it is rather like a press up with his legs remaining on the bed) and this would be the greatest height which his head could fall at this age unless he was dropped by someone else. Few infants start crawling before 6 months. The earliest I have seen is 4 ½ months. About 50% of all infants can crawl at 7 months; 75% can do so at 10 months and 90% of all infants have mastered it at 11 months. 25% of infants can bear weight on their legs by 2 months and 90% by 4 ½ months; 25% of infants can roll over by 2 ½ months and 90% by 5 ½ months; 25% of infants can stand with support by 6 ½ months; 25% of infants can be pulled to a standing position by 8 months; 25% of infants can stand for 2 seconds by 9 months; 25% of infants can walk well by 11 ½ months.. Feet If some of these samples were from foot lesions, given no fungi were isolated but staphylococci were, it is possible that he did in fact have impetigo which could explain crusting, scabbing and bleeding and would not respond to antifungal treatment. This is the second case I have been involved in where a child under 8 months of age has presented with marked swelling and reddening of the ear and on both occasions the swelling contained blood. On one occasion the presenting child incurred a skull fracture and in this present case, the sibling had a skull fracture. I have never seen this appearance in any other children of this age. Everyone who has given contemporaneous descriptions in both cases described what appeared to be bruising or a cauliflower ear (typical of that seen from trauma in contact sports such as rugby). Expert witnesses in both cases have concurred that they have never seen such appearances other than due to trauma. However, in the first case, the court eventually attributed the appearances to a rare cause due to pseudocyst of the auricle (which itself may be a consequence of repeated slapping) and in this second case the possibility of a hamartoma has been suggested. I am concerned that I have never seen such appearances in my whole career in an infant due to natural causes, nor have I met or heard from anyone else who has. In contrast, in both of these two cases, there were other reasons to be concerned about trauma. I have seen some fairly bad cases of fungal foot infections in my time but nothing like this with such a degree of haemorrhage, certainly not in an infant. All I can say I have never seen such a severe fungal infection of the feet in a young infant and I have never seen such an infection accompanied by haemorrhage to this degree. Injuries to S At the time of his death, S had sustained 53 separate injuries. It is probably not going to be fruitful for me to go through each of these and state whether they are organic, accidental or non-accidental and likelihood of each possible cause. I set out at A to H above features of injuries in children which give rise to the suspicion that they are non accidental. All of these features are present at one time or another in relation to S.”
“Having seen the video and the photos, it does seem to me plausible that a child being carried at speeds of up to 25 miles per hour off road in such a buggy at S’s age without a cycle helmet could sustain significant trauma to his head and ears. Indeed, now almost three years after the event, this is in keeping with what I postulated throughout my report which was that I had only seen such traumatic injuries to the ears in older children who had been involved in contact sports or who had been struck on the ear.”
“…were a parent to cycle at even 10 to 15 miles per hour with a child of a few months in a buggy without a cycle helmet over rough terrain against the manufacturers’ recommendations and all common sense, as a paediatrician I would consider this reckless in the extreme and well below the standard of care I would expect any reasonable parent to deliver to their child. It would amount to the adult putting their pleasure and excitement and love of speed and sport over the most basic human duty to care appropriately for a young child. If such behaviour were to cause injury to a child and the adult were to continue or repeat the process on a number of occasions, that would be even more serious in my view but I would wish the court to be clear in my opinion as a paediatrician, even to do so once would amount to significant neglect.”
“1. I was able to identify definite petechial haemorrhages on the face in the post mortem photographs and periumbilical bruising in an unusual linear pattern. 2. Blood samples taken from the parents and sibling of S were normal apart from an irrelevant finding of low iron stores in his sister D. 3. The blood results from S are grossly abnormal but extremely difficult to interpret. Blood taken during asystole is subject to defibrinationwhich is the probable cause of the extremely abnormal clotting tests. 4. The raised lymphocyte count in S probably reflects very severe illness but may be indicative of infection. In view of the possibly infected feet and positive cultures, the experts on infection in children can be asked to specifically exclude this as a causative factor in the death. 5. The blood tests rule out causes of bruising due to low platelets. The family studies make it very unlikely that von Willebrand disorder was present. They also make it unlikely but not impossible that the commoner albeit relatively rare severe disorders of clotting factor protein deficiency e.g. Haemophilia A & B were present in S. 6. The blood tests do not rule out the very rare disorders of platelet function, factor XIII deficiency and alpha 2 antiplasmin deficiency which are very unlikely due to rarity and lack of family history and lack of prior serious problems. If the Court decides to pursue these very unlikely possibilities, then parental testing could be carried out. These disorders can lead to very easy and sometimes spontaneous bruising.”
“Auricular haematoma and cauliflower deformation of the ear are most often observed in contact sports (boxing, wrestling and rugby). Artistic descriptions of damaged ears exist from 500BC. In the 19th century, questions were raised as to whether some cases of this condition had a non-traumatic cause. Several authors at that time commented on the occurrence of this condition in the so-called “insane”
“Baby S had a short (8 month) life with several visits to his doctor for various ailments including upper respiratory tract infection (URTI), ear swelling, and possible fungal infection in a foot. Other skin breaks/abrasions had been noticed, but none apparently infected. 16 days before death he presented again with an URTI, probably viral. He presented moribund at Hospital but could not be revived. Post mortem was not conclusive. Ante mortem and post mortem microbiology culture results did not reveal any suggestion of bacterial infection. In particular, nasopharyngeal secretions and nose swab, collected grew Staphylococcus aureus. This almost certainly represents colonisation in the absence of post mortem findings of respiratory tract infection, most commonly pneumonia. E coli, also grown from nasopharyngeal secretions is of unlikely significance. Blood cultures showed clear contamination at collection (a common problem) and no evidence of infection. Two wound swabs (?site) were reported as growing nothing of clinical significance and in the absence of post mortem signs of infection, were unlikely to be a source of systemic infection. Finally, a throat swab grew coliforms and post mortem lung tissue grew E coli, both of doubtful significance. The latter is a common post mortem finding and the former could reflect recent antibiotic treatment. There was, however, a mild systemic lymphocytosis and the CSF gram stain also suggested a lymphocytosis, raising the possibility of viral meningo encephalitis, possibly related to the prior URTI. It would be interesting to know whether the post mortem examination of the brain and meninges revealed any abnormality consistent with this. I note that limited pre mortem virology of conjunctiva, and post mortem virology of lung tissue was negative. I cannot comment further on this as I am not a Virologist. In conclusion, none of the microbiology cultures are suggestive of infection, so it is unlikely that his death was due to bacterial infection. This seems to be confirmed by the non-specific post mortem findings. Up to 20% of children carry Staphylococcus aureus in their noses as a normal commensal. While this can, and frequently does, become pathogenic and cause infection, there is no evidence this happened here. The only evidence of possible infection is the lymphocytosis which would, I believe, be compatible with a meningo encephalitis. Such a diagnosis is a possible cause of death but should have been obvious at post mortem. I am not a virologist, so cannot comment further on this aspect of the case. Finally, I don’t believe that the absence of ante mortem samples is a problem in trying to refute or confirm bacterial infection in this case.”
“There is a little distribution of neutrophils [after death] but not to the extent that we see here.”
“The LA invites the Court to consider the findings sought in relation to S’s death and to make such findings as it considers appropriate in the light of the expert and lay evidence.”
“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties. Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children. To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”