AD & AM (Finding of Fact: Non-Accidental Injury) [2013] EWHC 4859 (Fam)

Case No UO12C00237

[2013] EWHC 4859 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 19/07/2013

Before

THE HONOURABLE MR JUSTICE COBB

Between

Re AD & AM (Finding of Fact: Non-Accidental Injury)Applicant

Re AD & AM (Finding of Fact: Non-Accidental Injury)

Aileen Downey (instructed by Local Authority Solicitor) for Applicant, London Borough of Newham

Michael Bailey (instructed by SJ Solicitors) for 1 st Respondent (mother)

Jonathan Bennett (instructed by Norman H. Barnet & Co.) for 2 nd Respondent (father)

Sally Bradley (instructed by Duncan Lewis Solicitors) for 3 rd and 4 th Respondents (children)

Hearing Hearing dates: 1-5 July, 19 July 2013

Judgment

The Honourable Mr Justice Cobb :

[1]At 9.48p.m. on 23 October 2012, a 999 call was placed from a family home in East London. The caller, now known to be the mother (“MB”), sought emergency services for a baby who was described as unconscious, who had for a time stopped breathing, and who was looking “extremely weak”; the baby, it was said, was “not moving at all”.

[2]The baby was AD (“AD”), aged 10 months old. Paramedics, who rapidly arrived at the scene, described AD as “moribund”. AD was transported urgently to Newham General Hospital where he was found to have suffered significant injuries, and required urgent life-saving treatment.

[3]Within proceedings brought under Part IV of the Children Act 1989 by the London Borough of Newham (“the Local Authority”) in respect of AD and his older sister AM (“AM”), I have been charged with the task of investigating the circumstances of AD’s injuries, specifically with a view to establishing: i) Whether the injuries were caused to AD accidentally, or non-accidentally; and ii) If non-accidentally, whether it is possible to determine who is likely to have perpetrated those injuries.

Background summary

[4]AD and AM are the two children of MB (hereafter “the mother”), aged 32, and FB (“the father”), aged 38. The family live at a home owned by the maternal family.

[5]The mother and father were both born in Nigeria, and are from the same area of that country; they were married there in 2008. Their respective fathers are close friends, who had been professional colleagues.

[6]The mother is a professional working in health care; before and after AM’s birth she had worked at a hospital in London. At the time of the key events, in October 2012, the mother was working part-time. The father is a double-graduate, but in October 2012 was not in employment; he was at that time assisting, for a couple of hours on two days each week, at a homeless charity.

[7]The maternal grandparents (“the maternal grandmother”; “the maternal grandfather”) live reasonably close to the parents, and by all accounts have been a regular presence in the children’s lives. They are indeed caring for AM and AD at present. The paternal grandfather (“the paternal grandfather”) lives with his wife in the United States, but – as will be apparent from the narrative below – was visiting the parents at the time of the critical events.

[8]I have endeavoured (in the paragraphs which follow) to give an account of those parts of the family history which are relevant to my enquiry. I have pieced this together from the evidence which I have read and heard. To a large extent, the history depends on the accounts given by the parents. Either one or both of the parents may have a substantial reason for lying about some of the events, to mask the truth about the true cause of the injuries to AD. In the circumstances, I have to treat their uncorroborated word with caution, and have searched where possible for consistency and for other indicators which point to the truth.

[9]AD was born in January 2012, the parents’ second child. The mother told me that she was elated to have two children, and in particular a baby boy. The father and maternal grandparents all told me in oral evidence that they thought that the mother was a very good and loving mother; the maternal grandfather described (evidence in chief) her as “very brilliant”, and the paternal grandfather called her a “wonderful young lady”. There was, in fairness, comparable praise within the family for the father.

[10]AD’s early feeding regime has been the subject of some scrutiny in these proceedings, given the suggestion made after his injuries had been discovered (and indeed the expert opinion offered: see Nussey) that he would have been likely to be vitamin D deficient at birth. Although the relevant nutritional information cannot be verified by the Parent Held Child Health Record (the Red Book), which is missing, it appears likely that he was breast and bottle fed, dietary supplement being offered by the infant ‘formula’. The parents report that when only a month or so old, AD suffered “extreme colic” and reflux, for which the GP prescribed Gaviscon.

[11]The issue of vitamin D deficiency in AD (and indeed a potential diagnosis of rickets) was, I believe, first raised by one of the treating experts at Great Ormond Street Hospital. It was when the mother consequently arranged for her own vitamin D levels to be tested, that this revealed an abnormally low level and, in October 2012, provoked an independent enquiry into this condition in these proceedings (see §56 et seq. below). What is known is that by May 2012 AD was believed to have attained appropriate levels of Vitamin D – the test in May 2012 shows normal levels of alkaline phosphatase (the only abnormal test was haemoglobin).

[12]AD’s early medical history has been professionally reviewed, and it can be shortly summarised here. During the first months of his life, the parents appropriately sought medical treatment for AD for a tongue-tie; this was surgically released on 31 May 2012 at Queen’s Hospital, Romford. On three occasions prior to 23 October 2012, AD was taken as an emergency patient to hospital: i) On 11 February 2012 he was taken to hospital because he was observed by the mother to be “grunting…and …cramping”; he was discharged after observations; ii) On 8 April 2012, he was taken to hospital after the parents thought that they heard him ‘gagging’ in his cradle; it was thought that he may have had a respiratory tract infection, and was discharged; iii) On 14 May 2012 the mother thought that she had heard two ‘loud gasps’ and worried that he had stopped breathing – an ambulance was called; the doctors was thought that AD had experienced a breath holding attack; he was admitted to hospital for a couple of days, and was believed to be anaemic (the mother told me that after this admission she started AD on ‘Wellkid’® as she was concerned about his depleted iron stores). The mother describes how she felt that AD was “disconnected” from her during the admission, and was worried about ‘staring’ episodes which were observed also by nurses.

[13]It has not been suggested by any of the doctors who have opined in this case that there is anything significant, let alone evidentially probative, to glean from the history recorded in §12 above (see specifically Dr Cartlidge).

[14]That said, I was interested to note that the maternal grandmother (a social worker) described AD (in her evidence in chief) as having had “all sorts of problems” from the time of his birth; she spoke with concern of the fact that he would not sit straight, but would always lean forward. She told me that the family had been worried about AD having “different things one after another”, adding “deep down we were not comfortable; we didn’t think he was ok …he wasn’t achieving his milestones, he was leaning forward, he would be so irritable…he wouldn’t want to make any effort to do things; he was lethargic” (ibid). She said that if anyone tried to encourage him to move he would cry. Later she said that he “didn’t enjoy making the effort” to mobilise (cross-examination from Ms Downey).

[15]The father also spoke about the fact that AD would “moan a little when we encouraged him to crawl…”; he could not crawl on all fours, but could roll on his tummy. The mother recalled that by the time of the key events (23 October), AD “could roll around at speed and was attempting to crawl. He was attempting to pull himself up, and could at least lift his bottom off the ground when an object was close to him”. When asked at the time about AD’s capabilities by the police, the parents are reported to have said that he could not pull himself up to stand.

[16]In September 2012, the mother returned to work following eight months of maternity leave. She changed employment to take up a post at a different hospital, specifically so that she could be closer to the family home, enabling her to participate to the fullest extent possible in family life. She worked full days on Mondays and Tuesdays and a half-day on Wednesdays.

[17]In the week prior to the key events, the mother told me that AD had been teething, and had had a cold. On one occasion he vomited while lying on the parents’ bed. He was otherwise, in the days prior to the 23 October 2012 said to be “in good health”.

[18]On Tuesday 23 October 2012, the mother rose and gave AD his bottle before going to work, as usual. The father spent the day looking after the children. The day appears to have been uneventful. The father texted the mother in the middle of the day to say that AD had eaten, albeit not as well as normally; the mother’s reaction to this text was that she was “was not so concerned” by this news. The father told me that during the day otherwise AD had “seemed fine” (evidence in chief).

[19]I now turn to what I shall hereafter refer to as the “4.30pm incident”. The father recounts that at about 4.30pm he left AD and AM in the master bedroom while he went to fill a bucket in the bath to wash AM. He left AD sitting on the floor, propped up and surrounded by pillows. He was out of the room only long enough for the bucket to part-fill with water. He then heard AD cry – “not screaming, but quite a loud cry”. On returning to the bedroom, he says that he found AD lying on his right-hand side on the floor. He said that he noticed that a Peppa Pig sit-on cart/scooter had moved; AD was lying close to the bed on his right hand side (facing away from the door), with his head about 12 to 15 inches from the table leg of the television table. AM (who had been sitting on the bed) was standing by the door. AD cried, he said for “a few minutes” (separately he estimated this at about 5-6 minutes). He said that he picked AD up, and carried him straight away downstairs; having left the bedroom he went downstairs without delay (AM following) and “by the time we were in the kitchen, he was not crying as loud; the crying stopped shortly after we got outside”. On this description I would be surprised if the crying was as long as 5-6 minutes.

[20]Although the father says that he told neither his father nor his wife of this incident until later, in fact the paternal grandfather stated in his written and oral evidence (and to the police) that the father had told him about it soon after he had returned home (i.e. soon after it had happened).

[21]Significantly, the father’s evidence before me contained the following comments:• “I didn’t suspect that anything serious had happened to him as I was able to calm him down in a relatively short time”;

• “at the time, my main concern was his feeding. I didn’t feel the need to tell her [the mother] as I was able to calm him relatively easily”;

• “I didn’t regard it to have been of such significance to tell my wife; I only mentioned it to my dad in passing”;

• “I did not think it was anything unusual. I thought that it was not more serious than he had toppled over from a sitting position. I thought that the toy had something to do with it”;

• “only after I was told about the fractures did I start to think about what had possibly happened at 4.30p.m.”.

[22]The mother recounted that the father phoned her at work at about 5p.m. to enquire when she would be home.

[23]I pause here to note that the mother herself first heard about the ‘4.30p.m. incident’ in the early hours of the morning of 24 October 2012 when she and the father were at Great Ormond Street Hospital. The father had not communicated a report of this event to the mother prior to that (in particular, he had not informed her when she had got back from work, although he had “mentioned” it to his father: see §20 above). This may suggest of course that he was trying to hide that something significant had happened at that time; or conversely that the incident was of no great significance and has been magnified in the minds (and histories) of the parents since the discovery of the serious injuries, desperate to find an ‘innocent’ explanation for the injuries with which AD was later to present at hospital. I return to this below.

[24]At about 5.30p.m. (or thereabouts; the paternal grandfather was rather vague about the time) the paternal grandfather arrived at the family home. When the father mentioned the ‘4.30p.m. incident’ to his father, the paternal grandfather said that he checked over AD’s head. The paternal grandfather told me that he thought that the right hand side of the head (which is the side the father said he had found AD resting on the carpet in the bedroom) felt “soft”, but in evidence acknowledged that(a) he did not compare it with the left side (which he did not in fact touch/feel), and

(b) he was unsure that this was not just the ordinary feel of the baby’s skull at that stage of development. In any event, and importantly, he said that there was “no reaction” from AD when he touched the right hand side; this would be likely to be inconsistent in my judgment with AD having suffered a major skull trauma to the right parietal bone by that time, and is in contrast the position in the hospital when AD reacted when the skull was touched.

[25]The mother returned from work. The precise timing of her return is given variously as 5.00p.m., 5.45p.m., 5.45-6.00p.m. (in the event, I do not regard this uncertainty as significant, though believe it to have been about 5.45p.m.). She said that the paternal grandfather was looking after AD when she returned. She assumed the care of AD at once and decided to make him some relatively instant food – porridge mixed with yoghurt. The mother described (witness statement) that he ate initially “enthusiastically” (this was also the father’s recollection), and “seemed to want several spoons” (in fact ate 6-8 or 10 spoonfuls) before declining more. He had been, she said, “quite hungry” at first. The paternal grandfather told me that one of the parents (he could not recall which) had told him that AD had eaten “well” at that point. She then gave him a little Lucozade diluted with water, and separately some diarolyte which he sipped. He vomited a little when he was being winded.

[26]Shortly thereafter, it appeared, the mother sent the maternal grandmother a text message, about AD’s feeding; the maternal grandmother said that it was “unusual” for her daughter to text in this way. This raises a marker for me that the mother’s anxiety levels in the home on that evening were perhaps higher than usual.

[27]The mother said (and the father did not demur) that she took AD upstairs to start his bedtime routine at about 7p.m.

[28]The father and paternal grandfather went upstairs to pray in the master bedroom at some point in the evening; while it was routine (I am told) for the family to pray daily, the prayers normally took place downstairs. The fact that the prayers took place upstairs on this evening was not explored at the hearing. At that time, the father said that he thought that AD (then lying on the bed with the mother) “appeared more lively”. The father said that he believed that AD did not look so tired and attributed this to the fact that AD had recently eaten.

[29]The mother told me that she ran AD a bath (a baby bath which rests on the frame of the ordinary bath). She told me that she undressed him and put him in the bath; she said that he “kicked” his legs and “splashed” as he was lowered into the bath, partly playfully and partly responding to the sensation of the water (he was not as playful as usual, but did splash). He was in the bath, she said for about 10 minutes or so, before she lifted him out, massaged him, and dressed him for bed. She gave him some more diarolyte, and he took 40-60mls. She then placed him on the bed surrounded by pillows (including, she told me a large ‘maternity’ pillow) to stop him rolling off the bed. She is sure that at no time did he roll off the bed. The mother said that at about 8-8.30p.m. AD fell to sleep.

[30]The mother (and to a lesser extent the father and paternal grandfather) sought to give me the impression that AD was not quite himself during the evening – in particular “tired”, rather as he had been on a day in the week before (when, she said, he had vomited, see §17 above). She told me that other than being tired “there was nothing else unusual about him … not crying a lot”. Perhaps significantly, she acknowledged that over the course of the evening she “didn’t observe a deterioration” in him (a potentially relevant comment when considering the medical evidence).

[31]The mother then changed her own clothes, and occupied herself in and around the bedroom (including preparing a bottle of water for AD for later in the evening) before lying on the bed herself.

[32]The father and the paternal grandfather remained downstairs in the home, they told me, watching a football match on television.

[33]At about 9.15/9.30p.m. the mother says that she received a text from a former work colleague. About 15 minutes later she says that she heard two distinct and “loud gasps” from AD (notably the same language used to describe the incident on 14 May); she told me that “they were quite deep”, she lifted him up and she described him as being limp and floppy:

“his head was dipped; his head was loose”

. She noticed that he was not breathing. She screamed for her husband, and ran down the stairs shouting for help. The mother put AD into the recovery position; she said that he was not breathing. She attempted resuscitation procedures, and could hear the air filling his lungs; initially she did not think he was breathing spontaneously, and then felt that his breathing was “really shallow”. She had been doing CPR for a couple of minutes “before he came round”. Her husband called the ambulance. The paternal grandfather began to pray.

[34]Notable in the history which I have set out above is the absence of any account of an extraordinary event (save, they suggest, the ‘4.30p.m. incident) which was likely to cause, or caused, the significant and life-threatening injuries to the infant AD. Both parents deny inflicting injury upon their son.

Subsequent developments

[35]AD was taken initially by ambulance to Newham General Hospital arriving there in a matter of minutes. The mother travelled there with the paternal grandfather; the father stayed at home with AM. On arrival, he was noted to have a low Glasgow coma score (3/15: unconscious). When the seriousness of AD’s condition was ascertained, he was transferred overnight (23/24 October 2012) to Great Ormond Street Hospital. Later (7 November 2012) he was moved to The Royal London Hospital before being placed (3 December 2012) in the care of his maternal grandparents under written agreement.

[36]AM was placed with the maternal grandparents on the 23 October 2012, where she has remained.

[37]The parents spoke with the police at the hospital on the morning of the 24 October 2012. On 27 October 2012 the father was arrested and interviewed by the police; he was further interviewed again on 22 January 2013. The mother was also interviewed by the police twice – on 25 October 2012 and 9 January 2013. Both parents denied responsibility in these various interviews for causing the injuries to AD.

[38]The social services department of the Local Authority were informed of these events in the early hours of 24 October. They swiftly (and positively) assessed the maternal grandparents as carers for AM (and later AD) and participated in multi-disciplinary planning meetings in respect of the children. On 27 November 2012, they launched court proceedings, and at this stage have been instrumental in marshalling and testing the evidence before the court; they seek at this stage to demonstrate that the threshold are established for the making of Part IV orders in respect of the index children.

[39]Within the proceedings, on 28 November 2012, Christine Montgomery was appointed Children’s Guardian for the children; she and the children’s solicitor have played a key role in garnering the expert medical evidence pursuant to Part 25 FPR 2010 (as amended) from distinguished experts in the relevant fields.

The medical evidence

[40]Within these court proceedings (by Order made on 28 February 2013 by Hogg J), leave was obtained for the instruction of the following experts: i) Dr. Anslow, Consultant Paediatric Neuroradiologist; ii) Dr. Cartlidge, Consultant Paediatrician; iii) Dr. Joanna Fairhurst, Consultant Paediatric Radiologist; iv) Professor Hann, Consultant Paediatric Haematologist; v) Professor Nussey, Professor of Endocrinology; vi) Mr. Peter Richards, Consultant Paediatric Neurosurgeon.

[41]On 21 May 2013 a ‘meeting’ of the experts took place, chaired by the Children’s solicitor; the discussion has been transcribed. The final position of the court appointed experts has been distilled into a document entitled ‘Schedule of Agreement and Disagreement’ which has been updated throughout the hearing; this should be read for an overview of their opinions. The extensive medical records from the relevant hospitals have been available to me at this hearing; as it happens, the parties have not in fact needed to refer extensively to the source material.

[42]I discuss in outline the issues, and my findings, on the medical evidence under the following headings: i) Description of injuries; ii) One or more than one event? iii) Degree of force required for each of the injuries; iv) Vitamin D and its relevance; v) Timing of injuries; vi) Parental accounts/histories.

[43]Description of injuries. The extensive investigations and assessments which followed AD’s admission to hospital revealed that he had suffered the following injuries: i) A linear parietal skull fracture; ii) An acute subdural haemorrhage; iii) An acute contusional intracerebral haematoma; iv) Associated boggy right-sided scalp swelling; v) Thoracolumbar vertebral compression fractures.

[44]There is general agreement (Dr. Anslow, Dr. Cartlidge, Dr Fairhurst and Mr Richards) that the skull fracture and brain injury are likely to have been caused by a hard impact with the right side of the head on an unyielding surface. The notion that the skull fracture may have been caused by focal impact was advanced (on paper at least) by Dr. Cartlidge; he was in my judgment, less sure about this when asked in oral evidence. The suggestion of a focal impact was discussed and rejected at the hearing by Dr. Fairhurst who indicated in her view that the presentation of the fracture was likely to have been caused by contact with a “completely flat surface or surface with some angle”. She went on to state that if the blow had been at a single focal point then she would have expected to see a depressed fracture with a “stellate” pattern of fractures radiating outwards, which she did not.

[45]Although Dr. Fairhurst was of the opinion that the wide separation of the fracture margins seen in the skull fracture is a feature more commonly seen in non-accidental injuries, Mr Richards did not agree. He felt that the separation of the fracture margins was probably caused or contributed to by the intra-cerebral swelling / increase in subdural collections and that the diastased fracture simply indicated a severe impact or incident, whether accidental or non-accidental. For present purposes, I do not need to resolve this possible difference of professional view. Both agree that the force needed to cause this injury would be considerable.

[46]Dr. Anslow, Dr. Cartlidge, Dr. Fairhurst and Mr. Richards all agreed that the thoracolumbar vertebral compression fractures could not arise out of normal handling and would have involved considerable force, and would have caused AD significant pain. The fractures probably occurred as a result of excessive flexion of the spine. When asked about this at the hearing, Dr. Fairhurst expressed the view that these injuries were “a different ‘kettle of fish’ from the skull fracture; they occur very rarely” (emphasis in the oral evidence) and that “a major event results in these fractures”. She postulated the circumstances in which an injury of this type might be suffered would be where a child was in a road traffic accident having being restrained in the vehicle only by a lap belt, adding that “we know that they occur where children fall from a great height onto their feet”. Whatever the event would be it would not be an event that “a parent would forget about”.

[47]One or more than one event? The experts instructed have considered the issue of whether these injuries would have been likely to have been caused in one or more than one event. Dr. Anslow, Dr Cartlidge and Mr Richards all agreed that the brain and skull injuries are likely to be caused by a single event on 23 October 2012, and likely to have been during the evening of that day (see Schedule of Agreement/Disagreement). Mr. Richards was asked about this at the hearing; he confirmed that it was “extremely unlikely that these occurred at different times”. Dr. Cartlidge too confirmed that the injuries were “likely to have been caused together”, although (it is noted – per Schedule of Agreement/Disagreement) considered “that the spinal fractures cannot be dated accurately.”

[48]I do not detect that the other instructed experts disagree with these views; they appear to indicate that from their own perspectives they are unable to confirm that view. Dr. Anslow and Dr. Fairhurst agree that radiological timing is imprecise and the spinal fractures cannot be dated accurately, but are likely to be recent.

[49]Dr. Fairhurst postulated in oral evidence an incident in which all the skull/brain injuries and the spinal injuries were inflicted in one manoeuvre.

[50]Taking the evidence overall, I do not regard it as likely that AD was subjected to two or more separate incidents of ill-treatment separated in time.

[51]Degree of force required. All the doctors agreed that the force required to cause these injuries would be “substantial and considerable” (reference Schedule of Agreement/Disagreement).

[52]There was some debate at the hearing as to the possibility of the skull/brain injuries being caused in a domestic fall: Dr. Cartlidge and Dr. Fairhurst in particular were asked to consider this. Dr. Fairhurst’s view was that “we know that falls of less than one metre are very unlikely to result in skull fracture”, and felt that “AD is not in a position to do this to himself”.

[53]Dr. Fairhurst added that the fracture to the vertebrae “can occur when a child is slammed down on a hard surface, or slammed against a wall”, and further that “a fall would have been highly unlikely to cause the skull fractures but would not have caused the vertebral fractures”. When asked by Mr Bailey about the possibility that the vertebrae injuries may have been caused in the professional resuscitation of the baby, she replied:

“I cannot think of any manoeuvre which would have necessitated hyper-flexion of the spine… it is an extremely forceful movement which causes the spine to flex… this is a very significant force”

[54]Reviewing the totality of the injuries, Mr. Richards opined that “I have not seen injuries of this severity from minor domestic accidents”.

[55]It was suggested to Dr. Cartlidge that AD may have fallen from a standing position by the Peppa Pig cart/scooter (notwithstanding that this would have been unprecedented – see §15 above and §71 below) onto the metal table leg, and that this would be consistent with the evidence of domestic falls causing injuries of this kind (i.e. 2 feet free-fall onto a hard surface). Dr. Cartlidge did not agree: “this is getting nowhere near the 2’ free fall which is the minimum; most clinicians would suggest 3’”; he observed fairly that AD would not be 2’ tall, and a fall would not be a ‘free fall’. He added: “that wouldn’t be sufficient to cause the injuries. Velocity is virtually insignificant. Even if he was being pushed I don’t think the force would have been sufficient to cause the injuries”.

[56]Causative/contributory factors: Vitamin D and its relevance. The researches undertaken around the evaluation of the key injuries include studies of the blood and endocrinology. It is not immaterial to observe that “The tests performed in this case represent the most comprehensive set that I have seen in reporting upon over 200 suspected NAI cases.”( Professor Hann). The results are important.

[57]First, no clotting disorders or bleeding disorders which are relevant to the causation of these injuries were identified (Professor Hann and Dr Cartlidge agree). Further, Professor Nussey had concluded that there was no evident endocrine disorder relevant to the causation of the injuries and no demonstrable metabolic bone disease.

[58]Secondly, Dr. Anslow, Dr. Fairhurst and Mr Richards all agreed that the skull fracture would not be affected by any bone fragility, but that less force would be needed to cause the vertebrae fractures, if there was such a disorder. Professor Nussey and Dr Cartlidge opined that if there was generalised bone fragility, this would also affect the skull.

[59]When asked about this in evidence, Dr. Fairhurst commented that “if the child had a significantly reduced bone density then they’ll be more likely to suffer fractures.” (emphasis in the oral evidence). She further indicated that there was “no radiological evidence of rickets. In the absence of this, we cannot say that there is an increased propensity to fracture.” She added that where there is a “sufficiently severe vitamin D deficiency, the child will be at a small increased risk of fracture, usually of other bones because they will be broken in falls. These are children with clear radiological evidence of rickets.”

[60]Professor Nussey concluded from his assessment that it was unlikely that vitamin D deficiency played a role in causing any, or any significant, bone fragility predisposing AD to fractures. The values for vitamin D, calcium, phosphate and alkaline phosphatase concentrations on 24 October 2012 were normal but were likely to have been affected by administered intravenous fluids. Dr Cartlidge agreed.

[61]At the hearing, Professor Nussey (giving evidence by telephone from Hong Kong) confirmed that he did not believe that AD had vitamin D rickets, there was “no sign” of this (ibid.) – later adding that the “tendency to fracture is not measured in frank rickets, let alone subtle”.

[62]Dr. Cartlidge opined that while AD was born vitamin D deficient, by May 2012 “he did not have rickets”; by 16 May 2012 he was on multi-vitamins and “I don’t think AD had rickets; his alkali phosphatase level was normal”. He has recently attempted calculations to demonstrate more scientifically the likely incidence of pre-injury vitamin D in the blood; these calculations tended to show some vitamin D “‘insufficiency”. Laudable though I find the attempts were to assist me, the results are necessarily imprecise given the absence of clear or comprehensive data (the figures on providing an incomplete picture).

[63]I note that the bone mineral density overall appeared somewhat reduced with “relatively poor bone mineralisation” on scan of 31 October 2012, but I accept the view of Dr. Cartlidge and Dr. Fairhurst that this is likely to be attributable to his relative immobility in the immediate and critical post-event / pre-scan period.

[64]Timing of injuries. The timing of the injuries was gleaned from the medical evaluations and the histories given.

[65]Mr Richards gave important evidence on this confirming the following: i) the event occurred, according to Mr Richards “very recently before the child was admitted to hospital … compatible with a couple of hours, 3, 2, or 1; it would have happened after the child was last seen to be behaving normally”. He added later that after the incident there would not have been any “normal behaviour”; ii) He opined that after the agonal event AD would have been behaving “extremely abnormally”; he would not have been likely to have been conscious, but if so he would have been “crying and inconsolable, and gradually deteriorating into a coma”; on the mother’s account (see §30 above) there was no history of him generally deteriorating; iii) Richards indicated that “I would consider it implausible that he would have fed after this injury”, and later “the account of bathing … not the actions of a child who had suffered the serious injury by then”.

[66]The Patient Report Form at was examined. This revealed an entry as follows:

“O/A at Hosp. Slight swelling noticed on ® temporal area which started to grow while in resus”

The arrival at hospital was recorded to be 22:06, and the handover 22:08.

[67]Mr. Richards regarded this record to be of some significance. Although scalp swelling:

“can occur within minutes but may take several hours…”

Mr. Richards described this as a “rapidly evolving situation”, and (in answer to questions from Judge) indicated that “this [reference to ‘started to grow’] would put the timing [of the incident] nearer to the time of the 999 call than further”. The observation at (set out at paragraph 66 above) is consistent also with the comments of the anaesthetist who noted at 10.48p.m. that the “scalp swelling was increasing in size”.

[68]Dr. Cartlidge indicated that, in his opinion, the injuries occurred “very shortly” before the admission to hospital; he added that “as soon as the intra-cranial injuries were caused he would have displayed profoundly abnormal symptoms”. When asked about the possibility that AD had displayed behaviour consistent with a ‘lucid’ interval he said that there were three possible (albeit in each case “rare”) reasons for a lucid period. In this case he thought that the only one which could apply is where there is an expanding amount of blood in the cerebral spaces, and the amount of blood “squashes the brain causing deterioration in brain function and the child becomes unwell”. However, he added “the thing against this possible incident in the afternoon [followed by a lucid interval] is that he had eaten and drunk…he may not have been completely well, but had been not far off normal; then there was a catastrophic deterioration in the evening. That is not the pattern.” This is not the mother’s account – see §65(ii)/30 above.

[69]He added: i) that after the skull fracture “anyone would have realised that he was severely unwell … I don’t believe that AD would have been reacting in any way like normal once he’d suffered these injuries.” ii) of the ‘4.30p.m. incident’ “there would be insufficient forces by any of the scenarios, and he was then feeding and playing in the bath … this is not consistent with severe head injury.”

[70]Parental accounts/histories. All experts who expressed a view on the issue (namely Dr. Anslow, Dr. Cartlidge, Dr. Fairhurst, and Mr. Richards) agreed that the most likely cause of the skull fracture, brain injury, and the compression vertebra fractures, was non-accidental, or an accident which the carer has chosen to conceal.

[71]The parents appear to hold fast to the possibility (though separately they are forced to concede it to be no more than that) that the injuries were caused in the ‘4.30p.m. incident’. However, it is to be noted that: i) The family emphasised that AD was loathed to mobilise himself from the sitting position, and would complain (“moan”or“cry”) if he was encouraged to do so (see §15 above); it would therefore be unusual for him to mobilise without encouragement; ii) The father had never encountered a situation where AD had spontaneously pulled himself to his feet while there was no adult in the room (i.e. and returned to find AD standing) (answer to questions from Judge); iii) The father had never seen AD pull himself up to the Peppa Pig cart/scooter; he had only ever seen him push it when he is sitting (answer to questions from Judge: and answers to police §15 above); iv) The mother gave the impression that he could little more than to lift his bottom off the ground when an object was close to him; she did not give the impression that he was capable of ‘cruising’ around the furniture which was postulated in the questioning of the experts; v) For AD to have acquired any height at all (and even then only his own height), he would have had to move swiftly from the sitting to the standing position in the short time it took his father to part-fill a bucket of water; this would be wholly contrary to the experience of the whole family, who found him a reluctant mover even when coaxed.

[72]It follows that it would have been unprecedented, and out of character, for AD to have moved from a sitting position, and pulled himself up to standing at the Peppa Pig toy without an adult in the room, only then for him to fall from a standing position.

[73]AD was not (according to the father) found on top of the table leg; he was found 12-15 inches away from the table leg. This would presuppose that he had hit his head and then rolled onto the same side. This seems unlikely.

[74]Dr. Fairhurst commented (and all other experts implicitly if not expressly agreed) that “no explanation has been offered which matches the injury”.

[75]None of the experts supported this account as an explanation for the injuries suffered by AD.

The parents evidence

[76]The parents both deny responsibility for causing injuries to AD either accidentally or non-accidentally. Apart from their account of the ‘4.30p.m. incident’ neither parent has advanced any description of an event which would explain these serious injuries.

[77]When the mother gave her evidence in chief, I allowed, indeed encouraged, her to give a free-flowing narrative of the events in the home of 23 October 2012. As she did so, I felt that her account of the period after the collapse (the arrival of the ambulance (“the blue flashing lights through the window above the door”), the events at the hospital (“the huge number of doctors”), how she felt, the emphasis on her distress (“the doctor said that AD had sustained multiple fractures to the head. I couldn’t imagine how that had happened. I remember falling to the ground in complete shock” (evidence in chief)) was considerably more detailed and emotive, and given with greater clarity, than her description of events before the collapse which was, by contrast, hesitant and vague. This was concerning.

[78]The mother acknowledged, and said that she understood, the import of the medical evidence, though was unable to explain the occurrence of the injuries. It was obvious, through her oral evidence and in the way in which he case was presented (and in particular the medical evidence was tested) that the mother was ‘on top’ of the medical issues; on at least one point she expressly indicated that she disagreed with the opinion of Professor Nussey (in relation to the impact of Gaviscon on vitamin D absorption).

[79]The mother indicated that “the only explanation is that something happened before I arrived home”, though (as she must surely have realised) this was inconsistent with the medical evidence.

[80]The father seemed to adhere (contrary to the medical evidence) to the existence of material metabolic bone disease; he felt that there could be an organic cause or contributor to the presentation of the fractures. He accepted that the ‘4.30p.m. incident’ seemed “implausible” but could not rule it out as impossible. He felt that one the “variables” was AD himself which (by implication) he did not consider that the experts had adequately considered.

[81]The father described the mother as an “exemplary” mother (“she couldn’t be more loving” (ibid.)) and told me that he “did not think for a minute that she would deliberately inflict any harm on AD”. He added “I have no reason to distrust her or suspect her. I have not asked her at all whether she has harmed AD… I had no reason to”. This evidence is concerning given the facts. The last answer recorded in the previous sentence (given to Ms Downey) is the most troubling; on the medical evidence the father plainly has proper reason to suspect her of causing the harm.

The applicable legal principles

[82]In determining the factual issues in this case, I apply the fundamental principles which follow.

[83]First, the burden of proving the allegations raised in this case lies at all times with the Local Authority.

[84]Secondly, the standard of proof is the balance of probabilities. As Lord Hoffman described this test in Re B (Care Proceedings: Standard of Proof)

[2008] UKHL 35

at §2 (per Lord Hoffman): “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”.

[85]Baroness Hale in the same case (§59) said:

“To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and their families from the intervention of the state, however well intentioned that intervention may be. It is to confuse the role of the local authority, in assessing and managing risk, in planning for the child, and deciding what action to initiate, with the role of the court in deciding where the truth lies and what the legal consequences should be. I do not underestimate the difficulty of deciding where the truth lies but that is what the courts are for.”

[86]Thirdly, findings of fact in these cases must be based on evidence, including inferences that can properly be drawn from the evidence but not on suspicion or speculation.

[87]Fourthly, the evidence is to be taken as a whole; in this case, there are multiple strands of material to weave together to create the factual tapestry. This has a resonance from Lord Nicholls’s speech in ReH (Minors) (Sexual Abuse: Standard of Proof),

[1996] AC 563

[1996] 2 WLR 8

[1996] 1 All ER 1

, sub nom Re H and R (Child Sexual Abuse: Standard of Proof)

[1996] 1 FLR 80

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

[88]The medical evidence and the factual evidence need to be considered together. Each aspect of the evidence informs the other. I adopt the reasoning of Charles J in A Local Authority v K, D and L

[2005] 1 FLR 851

[2005] EWHC 144 (Fam)

wherein he described the interplay of medical and factual evidence, re-inforcing the point that that the roles of the court and the expert are distinct (§39(i)), and that it is the court that is in the position to weigh the expert evidence against its findings on the other evidence (§39(ii)). In A v K, D and L, Charles J concluded (§63) that he was: “able to reach a conclusion as to cause of death and injury that is different to, or does not accord with, the conclusion reached by the medical experts as to what they consider is more likely than not to be the cause having regard to the existence of an alternative or alternatives which they regard as reasonable (as opposed to fanciful or simply theoretical) possibilities. In doing so I do not have to reject the reasoning of the medical experts, rather I can accept it but on the basis of the totality of the evidence, my findings thereon and reasoning reach a different overall conclusion”.

[89]This was expressed in different terms by the Court of Appeal in Re U (Serious Injury: Standard of Proof); Re B

[2004] EWCA Civ 567

[2005] Fam 134

[2004] 2 FLR 263

[2004] All ER (D) 197

(May), CA (@ §26).

[90]In considering whether I can or should endeavour to identify a perpetrator, I have borne in mind the comments of the Supreme Court in Re S-B (Children)

[2009] UKSC 17

at [35-37]. I have reminded myself that there is no obligation to do so; unlike a finding of harm, it is not a necessary ingredient of the threshold criteria. As Wall LJ put it in Re D (Care Proceedings: Preliminary Hearing)

[2009] EWCA Civ 472

[2009] 2 FLR 668

, at para [12], judges should not strain to identify the perpetrator as a result of the decision in ReB (above):

“If an individual perpetrator can be properly identified on the balance of probabilities, then … it is the judge’s duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification.”

[91]There is a value in promoting clarity if I am able to do so, so that future risks to the child and the strategies necessary to protect him from them can be more fully considered. Another important reason is that it will enable the professionals to work with the parent and other members of the family on the basis of my findings. As Baroness Hale said at [37]:

“Often, it is not only the parents, but the grandparents and other members of the family, who may be the best resource to protect the child in the future but who are understandably reluctant to accept that someone close to them could be responsible for injuring a child. Once that fact is brought home to them by a clear finding based upon the evidence, they may be able to work with the professionals to keep the child within the family.”

[92]In a case in which I have been reminded by some of the medical experts, and by the parents, that ‘nothing is impossible’ in medicine, I have reminded myself of the need to keep open the possibility of a finding that the cause of the injuries remains unascertained: in this respect I adopt the reasoning of Hedley J in Re R (Care Proceedings: Causation) [2011] EWCH 1715, at paragraph 19: “In my judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made” (§19). See also Moses LJ in R v Henderson; Butler; Oyediran

[2011] 1 FLR 547

, and Theis J in Islington LBC v Al Alas, Wray and Alas-Wray

[2012] EWHC 865

[2012] 2 FLR 1239

Findings

[93]In reaching my findings, I have faithfully applied the relevant principles of law, as I have set them out above; I remind myself that the parents do not have to prove anything, for it is the local authority which carries the burden of proof. I have endeavoured to distil the written and oral evidence and to extract from it only that which is reliable and relevant to my determination. I have, as Mr. Bailey and Mr. Bennett urge me, borne firmly in consideration the inherent improbability of a loving parent inflicting serious harm upon a baby. Both of these parents are intelligent and loving people; they are both from good professional families. There have been no concerns about the care of their children before the injuries to AD.

[94]The 4.30p.m. incident: In my judgment, there probably was an ‘incident’ at about 4.30p.m. in which AD became upset. On the evidence, it appears likely that the father left AM and AD unattended in the master bedroom for a short period at that time in order to prepare the bathroom for AM’s bath. I accept that when out of the room he heard AD crying, and returned to find him lying on his side. I suspect, though do not find, that AD had toppled over from a sitting, not a standing, position – perhaps reaching for the Peppa Pig truck which as he tried to reach it, moved further out of his way. I regard it as likely that AD cried out of shock/upset at toppling, than out of pain. I find that AD was soon (i.e. within a matter of a few minutes) consoled.

[95]The event, such as it was, was in my judgment wholly insufficient to cause the catastrophic injuries to this little boy.

[96]I accept that the father was a little worried about whether AD may have hurt himself, and therefore asked his father to check AD over; his father did so, and reassured him. On my assessment, the father chose not to 'let on' to his wife at the time that this incident had happened, not because he was hiding the infliction of grave injury upon AD, but because he believed that she would not have been happy to learn that the children had been left together unattended for any period of time (as she indeed later confirmed in oral evidence).

[97]When it was apparent later that evening that AD had suffered serious injuries, including fractures to the skull, the father, in conscience, told the mother about the ‘4.30p.m. incident’. Between them, and perhaps for different reasons, the parents then magnified this event into something it wasn't. For the father, it was an opportunity to carve an innocent explanation out of the history, permitting him to avoid the unpalatable alternative conclusion that it was likely that his wife was responsible for the injuries; for the mother, it represented a potentially plausible history which would mask a grim truth.

[98]After the 4.30p.m. incident, I find that AD was observed by family members to behave more or less normally; he ate (at least initially) enthusiastically 6-8 spoons of his tea, he drank fluids, he had a bath; on the evidence which I have heard he apparently caused none of the three adults any grave concern. I accept their evidence about this; had AD been presenting grossly abnormally (as all the doctors had advised he would have done after the serious injuries), they would – it seems to me – have been sure to tell me.

[99]I accept the clear medical evidence that this description is wholly inconsistent with a child who has, in the hour or two immediately beforehand (and in the absence of evidence of a deterioration thereafter), just sustained serious and life-threatening injuries.

[100]In any event, each doctor considered it unlikely that these injuries could be explained by a domestic incident, or accident; specifically, the injuries were not explained, as I find, by the circumstances which may have arisen in the ‘4.30p.m. incident’ – even if (contrary to expectation and experience) AD had been standing up by the Peppa Pig cart/scooter and toppled over.

[101]It follows that the injuries must have occurred later in the evening than 4.30p.m.

[102]Non-Accidental Injury: Having rejected the 4.30p.m. incident as having any relevance to my enquiry, I can confirm that no account has otherwise been volunteered by the parents (or paternal grandfather, also in the house) which begins to explain the cause of these very serious injuries.

[103]The medical evidence, taken as a whole, does not satisfy me that AD was vitamin D deficient, or even probably insufficient, at the relevant time as to have any relevance to the causation or extent of injury. Even if ‘insufficient’ or ‘deficient’, I accept Professor Nussey’s evidence that it was not of such a magnitude as to have played a significant role in bone fragility predisposing AD to any of the fractures (including the vertebral fractures). It is clear from the evidence which I have heard and read that AD did not have rickets. I therefore find that there was no medical condition predisposing AD to fracture. The degree of force required to inflict these serious injuries is therefore of the degree postulated (i.e. significant force) by those who have expressed an opinion about it in these proceedings.

[104]In the absence of a satisfactory account of a major accident, the medical evidence points overwhelmingly to these life-threatening injuries having been caused non-accidentally.

[105]On the evidence laid before me, I have reached the conclusion, unhesitatingly, that the injuries suffered by AD were non-accidental.

[106]The timing of the injuries and the perpetrator: I accept the mother’s account of giving AD his tea shortly after her return from work; this was observed by the father, and commented upon by the paternal grandfather. I have no proper cause to doubt this account.

[107]What happened after AD was then taken upstairs by his mother is far less clear. In my judgment it is likely to have been in this period that AD suffered his catastrophic injuries.

[108]The evidence indeed points clearly towards the injuries occurring very shortly (probably minutes) before the 999 call was made at 9.48p.m. on the evening of 23 October 2012. In so concluding, I have drawn in particular from the following: i) There is no evidence that AD was seriously unwell prior to 9.48p.m.; he was merely described by the father, paternal grandfather and mother as having been “tired”; his appetite was a minor, but not a significant, cause for concern at that time; he had after all eaten “enthusiastically” (at least initially) at c.6.00p.m.; ii) On the only occasion when the father observed AD upstairs in the period after 7.00p.m. (around the time when he and the paternal grandfather visited the bedroom for prayers), the uncontradicted evidence was that AD was seen to be “more lively” than he had been earlier in the evening; iii) The unambiguous medical evidence is that AD would have been significantly unwell immediately after the agonal events; there is a probability indeed that he would have been rendered unconscious by the incident in which he sustained his injuries; iv) There is no evidence that AD was significantly unwell until the mother brought him downstairs in a collapsed state screaming for help – the event which provoked the 999 call; v) The right-hand swelling of the scalp was seen to be “starting to grow” when AD was admitted into resus within minutes of the 999 call; this demonstrates a rapidly changing picture (Richards).

[109]It is further of importance that: i) There is no evidence that the father or paternal grandfather had sole care of AD in the period after the mother returned from work at approximately 5.45p.m. Had this been so, I believe that I would have been told about this (by the mother at least); ii) There is nothing which points to the mother, father and paternal grandfather colluding to conceal culpability of either the father or paternal grandfather for the injuries; iii) All the evidence points to the mother being alone with AD for most of the 2½ hour period from 7.00/7.15p.m. to 9.48p.m. (999 call).

[110]It follows that in my judgment it was the mother who inflicted these serious injuries to her infant son, AD.

[111]The possible mechanism of the injuries has been debated by the experts. In the absence of specific evidence on point, it would not be right for me to speculate on precisely how AD was injured. The forces applied were, on any view, significant; it is likely that his head came into direct contact (with substantial velocity) with a flat unyielding surface. It is likely that the vertebral fractures were caused with AD being slammed onto a surface, or thrown in such a manner that his body jack-knifed.

[112]The medical opinion is to some extent divided on whether there was one or more than one incident. I discount any suggestion that AD sustained two separate assaults separated by any significant period of time. It seems possible to me that the injuries were caused in two separate assaults at more or less the same time; it is more probable in my judgment that these injuries – the head and vertebrae injuries – were all caused in the same incident.

[113]It is equally improper for me to speculate on why a mother, otherwise described as loving and attentive, should gravely injure her baby. Whether the family’s general worries about AD’s development (see §14 above) were heightened that evening by an acute worry (misplaced or otherwise) or frustration about AD’s feeding (which caused the mother to send the text message to her mother “unusually” in the early evening: see §26 above) had got the better of the mother, causing her to lose control albeit momentarily is, it seems to me a possibility. But no more than a possibility. It is not for me to guess. The mother has not told me the truth about the events in the home on the evening of 23 October 2012, and I am unable to complete the story.

[114]It is not, in my judgment, likely that the injuries to AD will have been perpetrated upon him in silence. It is likely, in my view, that the incident will have generated some abnormal noise of some kind – either from the mother, or from AD (Dr. Fairhurst suggested that he may well have screamed or cried before becoming unconscious: Mr Richards suggested that if he was not immediately unconscious he would have been “inconsolable”), or in the process of inflicting the injury itself. There was no evidence of any of this from the father or paternal grandfather. I suspect, but do not find, that the father was aware of abnormal noise (he may not have understood its significance at the time), but has not told me.

[115]I must further record that I suspect, but do not find, that the father has not told me the whole truth about life in the home that evening either. Terrible events such as this I believe rarely happen (particularly where the perpetrator is otherwise a loving parent) without there having been some – even minor – contributing circumstantial factors, or a trigger, and/or warning signs (i.e. tensions in the home, stresses, tiredness…); these warning factors, or signs, may indeed not have been particularly obvious to the father, or necessarily viewed by him as significant, before the event in which AD was injured, but may only be apparent in retrospect. They may only be apparent now. This is an important issue which will need to be the subject of assessment in the intervening period prior to the welfare stage.

[116]The proceedings will now be listed for a determination (I believe on a date in November 2013) as to the future plans and arrangements for the children. At that hearing I shall be obliged to give paramount consideration to the welfare of the children. Plainly, in light of this judgment the protagonists will need to be assessed as to their ability to offer a loving, and importantly a safe, home for the children; counsel have agreed to discuss the form and ambit of the assessments, and the identity of the assessors, prior to the formal handing down of this judgment, and the associated directions hearing.

[117]I conclude this judgment by borrowing the comments of Baroness Hale in Re S-B (see §91 above); they seem to me to be particularly apposite. The close and extended members of this family are bound to be understandably reluctant to accept that the mother could be responsible for injuring AD in the way that I have found. But now that fact has been, or will be, brought home to them by what is my clear finding based upon the evidence, I hope that they may be able to work with the professionals to keep both children within family. [end]