IB & EB (Children) [2014] EWHC 369 (Fam)

[2014] EWHC 369 (Fam)

Case No TZ13C00046

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 30/01/2014

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF IB AND EB (CHILDREN)

Before

THE HONOURABLE MR JUSTICE BAKER

Between

DEVON COUNTY COUNCILApplicant

A MOTHER (1)Respondents

A FATHER (2)Intervener

IB AND EB (by their children’s guardian) (3) and (4)Respondent

SOUTHAMPTON HOSPITAL NHS TRUSTIntervener

Tina Cook QC and Katie Phillips (instructed by Local Authority Solicitor) for Applicant

Kate Branigan QC and Andrew Powell (instructed by Goodman Ray) for Mother

Paul Storey QC and Alexa Storey-Rea (instructed by Edward Hayes) for Father

Mark Whitehall (instructed by Nash and Co) for children, by their Guardian

Anthony Hand and Daniel Nother (instructed by Hempsons) for NHS Trust

Hearing Hearing dates: 15 th, 16 th, 22 nd, 23 rd,24 th,25 th,28 th,29 th,30 th, 31 st October, 1 st, 27 th,28 th November, 2 nd, 10 th,11 th,12 th,13 th,17 th December 2013, 6 th and 30 th January 2014

Approved Judgment

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable Mr. Justice Baker :

INTRODUCTION

[1]This is an exceptionally difficult case. It involves allegations that a small baby, E, sustained a series of unusual injuries inflicted by one of her parents in January 2013. Some of those injuries are said to have occurred while the child was in hospital. The child has an older sister, I, who at the age of 5 months sustained a fractured finger. At the time that was attributed to an unwitnessed accident but, following the injuries sustained by E, further scrutiny has now been directed at that incident. The local authority has therefore started care proceedings in respect of both children, seeking findings that the injuries sustained by both children were inflicted by one of their parents. It is said that the perpetrator was seeking to induce symptoms of illness or injury in the child. Furthermore, it is said that the other parent is culpable of failure to protect the children.

[2]The case has been transferred to the High Court and reserved to me. The proceedings have been bedevilled by difficulties about disclosure by the police and a hospital trust, and as a result the hearing has been adjourned several times and greatly delayed. It started on 15th October, and this judgment is now being delivered today, 30th January 2014, three and a half months later. Fortunately, the girls are placed under interim care orders with their paternal grandparents with whom they are plainly thriving. Nevertheless, the delay, and the reasons for the delay discussed below, are matters of great concern to this court.

BACKGROUND

[3]The girls’ father was born in 1991, the mother in 1992.

[4]During the mother’s childhood and adolescence, she had a number of issues with behavioural and emotional difficulties. She was referred to the local Child and Adolescent Mental Health Service (“CAMHS”) on several occasions. In 2006, aged 14, she went missing from home for several days. Her medical and CAMHS records revealed that she had issues about anger and was prone to extreme mood swings and violent outbursts at home. There were reports that she had been bullied at school. On two occasions, in June 2007 and November 2008, she took an overdose of Paracetamol. There were other occasions when she harmed herself, as demonstrated by scars seen on her arms. Her GP described her as having suspected obsessive compulsive traits. Matters deteriorated in 2009 to the point where the mother was received into local authority care for a period of 18 months.

[5]By comparison, the father’s childhood and adolescence were uneventful. He met the mother in mid 2010 and they started a relationship. In August 2010, the mother suffered a miscarriage. She became pregnant again almost immediately afterwards. In the course of the later police investigation in 2013, it was revealed that in the early stages of this pregnancy, the mother made various searches on her computer using criteria such as “is 19 too young to have a baby”, “giving a child up for adoption” and “painless ways to kill yourself”.

[6]On 26th May 2011, the mother gave birth to her first child, I. Mother and baby were discharged from hospital five days later. At around this time, the family moved into a flat, having previously lived with the father’s parents.

[7]On 30th June 2011, the father consulted his GP, inquiring about the possibility of relationship and anger management counselling for himself and the mother. Subsequently in police interview, the father denied that there had been any difficulties other than a ‘rough patch’ in the relationship. On 29th July, the mother was seen by her GP and diagnosed with suffering from significant post natal depression, scoring 28 out of 30 on the Edinburgh scale. She was prescribed one month’s supply of antidepressants, but thereafter did not seek medical attention for this condition again.

[8]In the months following her birth, I was taken to the doctor on a number of occasions. On 6th September, her parents reported to the GP that she was showing signs of gastro-oesophageal reflux, with projectile vomiting 2-3 times a day. In a phone call on 12th September, the mother told the GP that I “ has vomited a bit of blood”. When I was examined again at the surgery, the diagnosis of reflux was repeated. I was admitted to hospital overnight. The mother told the hospital that I had blood-stains and mucous in her vomit. The conclusion reached by medical staff at hospital was that I’s problems were caused by over feeding. It was thought that the red blood in the vomit had been probably due to a “Mallory-Weiss tear”. The parents were advised to observe carefully for further episodes of blood in her vomit.

[9]On 22nd October 2011, I, then aged 5 months, was taken to hospital with a head injury. The mother reported that this had been sustained in an unwitnessed fall while the father was at work. I had fallen from a swing chair one foot off the floor. There were no complications and I was discharged.

[10]On 10th January 2012, I was taken by mother to the GP with concerns about her little finger. The medical record states that her left little finger was “slightly warm and swollen” but fully mobile. There was no history of trauma and no specific tenderness when it was touched. The GP thought that it had possibly been sprained. Later that day, the mother took I to the GP again. The GP recorded that the finger had a “miniscule blister medially? inside”. I was observed to be still using the finger tip with a toy and the doctor concluded that a fracture was unlikely. The medical notes record that I was “well in herself when here” and that “mother is very caring towards her baby”. The doctors thought that I had a soft tissue infection and prescribed antibiotics. They were unable to convince the mother that it was an infection and recorded that she was “very anxious”. She was advised to call the duty doctor or to take the child to Accident and Emergency if the condition worsened. Later that evening, the mother called the out of hours service and reported that the finger was now looking worse and was “very painful”.

[11]On the following afternoon, I was taken to hospital where she was found to have a minimally displaced fracture to the proximal phalanx of her left little finger. Dr Adcock, the consultant paediatrician who examined I, felt that it was an “unusual injury”. As this was I’s second attendance at hospital with an unwitnessed injury, and having regard to the mother’s history of social and emotional problems, Dr Adcock decided to admit I and carry out a skeletal survey which revealed no further fractures. The mother was said to be resistant to the proposal to carry out such a survey. Initially, the parents gave no history of trauma but two days later recalled that I had been left briefly playing with a toy with wooden beads on elastic and that she had cried and been in discomfort on their return to the room.

[12]Although there was no clear mechanism of injury, the doctors concluded that I had sustained an unwitnessed accidental fracture to her left little finger. A plan was therefore made for a social care assessment and follow up. A social worker thereafter visited the family for a period of about 6 months, on occasions visiting jointly with the health visitor. On one occasion, the mother was challenging to the professionals, and was reported as being aggressive when they raised issues about her past, asserting that she felt “victimised”. She asked the professionals – social worker and health visitor – to leave the house.

[13]In early May 2012, the mother discovered that she was pregnant again. Initially, she requested a termination. She and the father visited an abortion clinic on one occasion but thereafter decided not to continue with that procedure. In September 2012, when the mother was about 4 months pregnant, she fell down the stairs. There was no adverse consequence of this incident observed at that stage.

[14]On 12th October, however, the mother gave birth to her baby, E, by emergency Caesarean section. E was at that stage only 28 weeks gestation. She suffered from problems associated with that degree of prematurity, including chronic lung disease and reflux. E remained in the neonatal unit at the Derriford Hospital in Plymouth for eight weeks, under the care of Dr Julia Lilley, consultant neonatologist. Initially, she suffered from mild respiratory distress and was maintained on intravenous fluids and ventilator support. Her condition improved in a few days and she was moved on to continuous positive airway pressure (CPAP), and then to high flow oxygen via nasal prongs, before being weaned off all support a few days later. During her stay in the neonatal unit, E suffered from some chronic lung disease of prematurity and received a low dose of supplemental oxygen. Her progress was further complicated by problems with impaired renal function, jaundice and a soft cardiac murmur. Routine screening for metabolic disorders was negative and X-rays carried out during her stay showed no abnormality of bone mineralisation. In a later police statement, Dr Lilley explained how E had shown the expected changes in her routine blood test caused by bone disease of prematurity. She was therefore started on phosphate supplements during her period as an inpatient, although these were discontinued before discharge as her blood test results had normalised. Dr Lilley also described how the mother and father presented as “normal concerned parents”. She recalled them visiting the hospital and being “very appropriate” with a young baby. It was noted that the mother presented as more anxious, whereas the father was “very much the calming factor”.

[15]At the age of eight weeks on 9th December 2012, E was discharged home in the care of her parents with a very low dose of supplemental oxygen. In her police statement, Dr Lilley explained that a thorough discharge process takes place with parents whenever a baby leaves hospital on oxygen therapy. In her statement in these proceedings, she reported that both parents engaged well with the discharge process, observing that “when E was discharged, she was breathing well, feeding well and her parents appeared confident with her care”. Thereafter, E was seen at home regularly with her parents by the neonatal outreach team and by Janet Wren, a children’s community specialist nurse. On 17th December, the nurse reported that there was slight subcostal recession, although no other work of breathing. From time to time, the parents were asked to record E’s progress by attaching her to an oxygen monitor for a 24 hour period and completing oxygen download forms. One such period was 27th – 28th December, although as Janet Wren was at that stage unwell, the machinery was left by another care worker. According to the parents, they duly completed the oxygen download monitoring over the next 24 hours. The following day on 28th December, I was taken to the GP with a history of coughing and being off her food and was prescribed antibiotics.

[16]On 2nd January 2013, Janet Wren returned to work. She telephoned the mother in the morning to arrange a visit at lunchtime in order to pick up the oxygen monitor and download form. When Janet Wren arrived at 13.00, the mother told her that she was concerned about E who had been vomiting on the previous night. In oral evidence, the mother said that she did not recall E vomiting. In particular, the mother was concerned about her breathing. She showed Ms Wren a video recording on her mobile phone showing E’s breathing being laboured and fast. It appeared that E had sub-costal recession. Ms Wren described this video film as “quite concerning”. She examined E and noticed that she indeed had sub-costal recession, together with some nasal flaring. E was still on the oxygen therapy and had a nasal cannula inserted. Her breathing rate was somewhat higher than normal and her oxygen saturation level was dipping below 95%, the level at which she should be seen by a doctor. Her heart rate was also raised. Ms Wren advised that E needed to be seen in hospital. She was told by the mother that the oxygen download had been completed. However, the recording log for the period 27th-28th December was missing and has never been produced.

[17]Both parents then took E to the Derriford Hospital. On examination, it was noted that her respiratory distress had abated and there was nothing abnormal seen. Accordingly she was discharged at 16.45. The mother subsequently deleted from her phone the video recording of E’s subcostal recession.

[18]According to the diary compiled later by the parents, between 20.00 and 21.00 that evening, the mother noticed when E was lying down that she was frothing at the mouth with a small amount of blood. Both parents said later in police interviews that the mother had been alone with the girls when the blood was first noticed, although in oral evidence the mother said that she could not recall being on her own. At 20.45 the same evening, the parents took E back to Derriford Hospital. They reported that she had been seen retching and frothing at the mouth with blood-tinged saliva. Staff Nurse Fisher observed “tiny specks of bright red fresh blood” in her saliva. E was therefore admitted to hospital overnight. The following morning, the 3rd, she appeared more settled. There were no further observations of frothing or bleeding from the mouth. In the medical notes of an examination at 19.30, however, it is recorded that she had a “congested red spot on the hard palate”. Curiously, this note was not referred to by any of the professionals involved in the case, medical or legal, until the consultant ENT surgeon instructed as an expert witness, Mr. Kuo, noticed it during his oral evidence. A diagnosis of reflux was made and E was commenced on ranitidine. She was discharged home at 19.30.

[19]On the following day, 4th January, at about 8 pm, the father went out for about 10 minutes to the shop across the road. In oral evidence, he said that when he left E had been asleep on the sofa. The mother said that, while he was out, she noticed secretions with blood in them coming from E’s mouth. In oral evidence, she said that E had been lying on a cushion on the sofa. She was not crying, and did not appear to be in pain, but the mother was very worried because of the blood. The father said that, when he returned, the mother was upstairs with both children. He later told the police that the mother had called him upstairs and he saw that E was frothing at the mouth again, but on this occasion with more blood. In interview, the father described its appearance “as if…you had a cut in the back of your mouth and you were spitting”. The father telephoned the hospital to say that E had had a recurrence of the bleeding in her saliva. E was then taken to hospital by her father, the mother staying at home with I. On arrival, the father showed the nurses a muslin cloth with fresh blood on it. Nurse Hazel Ferris examined E on admission and saw fresh blood in her mouth with secretions. A consultant, Dr Bouquet, examined E and noticed that her throat was red. E was admitted to hospital. In the early hours of the following morning, 6th January, a nasogastric tube was inserted, after an initial failed attempt. E was noted to have a croupy cough and wheezy chest.

[20]At 09.45 that morning, E was reviewed by Dr Lilley. There had been no bleeding reported over night, and the medical notes recorded that the reported signs and symptoms were considered to be consistent with infection. At about midday the mother arrived at the hospital. During the afternoon, there was a serious deterioration in E’s condition. At about 14.30, further blood was observed in her mouth. There is some uncertainty about whether it was the mother or father who reported the bleeding. A medical note suggests it was the father, but in her police interview the mother stated that it had happened while the father was out of the room. Previously, a doctor had observed E to be settled but within 20 minutes she was seen to be suffering from respiratory distress, stridor breathing and fresh blood in the mouth. An attempt at flexible nasendoscopy failed due to the presence of secretions. An ENT registrar was called to attend shortly before 16.00 hours. At this point, E was described as “mottled and cyanosed” with apnoeic laboured breathing, a severe reduction of saturation to 75% on nasal oxygen and a “see-saw breathing pattern”, as a result of which she was treated by a jaw thrust manoeuvre, in which the angle of the jaw is pushed forward so as to open the oropharyngeal space. After the jaw thrust was performed, her saturations returned to 100%, indicating (as I was later told in evidence by Professor Fleming, the paediatric expert witness) that the obstruction to her breathing was in the oropharynx. The registrar did not observe any fresh blood but did observe some dark brown colouring.

[21]At 16.25, E was examined by the ENT consultant who concluded that she needed airway support. The decision was taken to take her to theatre for further assessment. Once there, she was intubated and ventilated and then subjected to an upper airway laryngoscopy. In this examination, her larynx and hypopharynx were described as showing a “normal appearance”. The report of the intubation process stated:

“Size three endotracheal tube passed successfully with slight resistance. Rigid laryngoscopy used with tube in place show normal appearance of larynx and hypopharynx. Subglotic area and trachea could not be assessed.”

In oral evidence, Professor Fleming told me that this examination would not have included the posterior pharyngeal wall because that is not possible with a rigid laryngoscope. Subsequently, she underwent a chest x-ray which revealed that the ET tube and NG tube were satisfactorily in place but also that there was “persistent right upper lobe collapse”. E was moved to the high dependency unit at the hospital, but in view of her serious condition, it was decided to transfer her to the specialist unit at the Southampton General Hospital. She travelled there in the early hours of 6th January.

[22]On arrival, E was admitted to the Paediatric Intensive Care Unit (“PICU”). I have been supplied with a number of photographs of this unit and have had an opportunity to inspect it during my visit to the hospital on 10th January 2014. The unit contains 14 stations at which a bed or cot can be placed. At all points during her stay in the unit, E was either in a cot next to the nurse’s station or in a cot in the section of the unit reserved for respiratory cases (beds 11-14). The protocol in the unit is for 1:1 care – that is to say a nurse is allocated to care exclusively for a patient during her shift and is present at the side of the patient at all times, except when carrying out necessary functions such as collecting medications or during brief breaks, in which case he or she asks another nurse attending to a neighbouring patient to keep an eye on her patient. The unit is a busy place with a significant number of medical professionals present at all times. There are residential rooms available for parents to occupy while their child is on the PICU. The practice is for babies to remain in their cots at all times save when being attended to by the nurses and when being cuddled by the parents under the supervision of nursing staff.

[23]Following her arrival, a chest x-ray was carried out at 08.39. The consultant radiologist Dr Fairhurst reported:

“The tip of the ET tube lies at the carina. The tip of the enteric tube lies in the stomach. Consolidation persists in the right mid-zone [ie of the right lung]. The left lung is clear.”

Later that morning, the parents arrived from Plymouth. During the day E’s condition settled. At 15.20, the oral endotracheal tube was changed to a nasotracheal tube. A further chest X-ray carried out at 17.58 was reported by Dr Fairhurst in the following terms (inter alia): “There is now significant volume loss in the right upper lobe and overall aeration is generally reduced as compared with the day’s earlier film”.

[24]Overnight, E’s condition was described in the medical notes as “stable”. During the day of 7th January, she was extubated and fitted with “optiflow” a system of supported breathing via a nasal cannula. At one stage she was noted to be arching her back and distressed with a tracheal tug and subcostal recession. In the early evening, she was noticed to have an irregular breathing pattern with thick bubbly secretions. There was one episode of fresh blood from the mouth during the evening which the reviewing doctor felt was most likely to be caused by trauma from the extubation, although it was noted that this was also how she had presented in Plymouth. The parents were said to be resident - “had cuddles this evening and are fully up to date”.

[25]On 8th January, E was transferred to bed number 11 in the respiratory section of the PICU. At 10.10 she was noted to have an inspiratory stridor with lower costal and subcostal recession. Doctors concluded that her upper airway was swollen and she was treated with increased medication and optiflow. At 17.50, a ward round was conducted by a group of doctors including Dr Baldock and Dr. Hyde, consultants in paediatric intensive care medicine. The note of their examination includes:

“blood streaking on nasal suctioning.”

The note added that she had a strong cry and decreased work of breathing and that there was no stridor. In passing, I note that in a subsequent retrospective note prepared on 17th January Dr Hyde recorded that on 8th January at 10.10 “E developed a rapid onset stridor with subcostal recession and blood secretions.” This is repeated in a subsequent report prepared for the court. As set out above, however, the contemporaneous medical notes suggest that there was no blood seen at the time of the stridor recession at 10.10 that morning but rather that blood streaking was seen on nasal suctioning at 17.50 at a time when there was no stridor and a decreased work of breathing.

[26]In the early hours of 9th January, at 01.30, a nursing note records:

“blood from mouth present – only small amount – mum present – doctors aware”

. A note made at 05.30 records that the nasogastric tube had been causing problems all night and that as a result there had been difficulty achieving pressure in the CPAP. At that stage, an orogastric tube was inserted instead of the nasogastric tube. At 12.30 that day, Dr Walker, a specialist registrar in paediatric respiratory medicine, having reviewed E’s case, noted that it was an “unusual story” and added that, although the diagnosis was gastro-oesophageal reflux disease (“GORD”), it was “unusual to have fresh blood without tear with GORD”.

[27]At 15.30, a flexible bronchoscopy was performed, in which a 2.2 millimetre scope was passed through E’s nose, down the back of her throat and into her airways. The medical notes record the findings as:

“upper airway – arytenoids slightly swollen – relatively small glottis. Lower airway – no haemangiomas seen. Clear secretions.”

In a later police statement, Dr Walker confirmed that there were no traces of blood or any bleeding site seen during this examination. In oral evidence, he told me that, although he did not look in depth, he did not see any bleeding point in the larynx or pharynx, or anything abnormal. Following the bronchoscopy, Dr Walker recommended a change of medication and, as a broncho-alveolar lavage had previously grown bacteria, he prescribed a course of antibiotics. The medical notes record that the aim at that stage was to return E to Plymouth on the following day.

[28]Later that evening, it appears that E’s condition deteriorated again. The nursing notes record that she had more blood secretions. It is also noted that at one point E coughed up so much that she brought up her nasogastric tube. A new tube was therefore inserted. The notes continue:

“doctor and parents were present when blood was coughed up”

. The parents were said to be “very anxious as do not know what is causing blood”. Overnight E was agitated and upset.

[29]On 10th January, a paediatric gastric specialist examined E, noted the history of intermittent respiratory distress and that at the time of his examination that distress was minimal, and recorded his impression that the history was compatible with a “H-type fistula” which is often difficult to diagnose or possibly “silent reflux”. Later that morning, a further episode of blood-stained secretions occurred at a point when the parents were alone by E’s cot while the nurse was away photographing records at a time when there was only one other child in that section of the unit. The secretions were suctioned by an SHO, Dr. Knight, using a suction catheter. There is no contemporaneous note of this incident in the medical records, but Dr. Knight made a retrospective note about it on 17th January and subsequently made a police statement and gave evidence before me. She said that it is not the practice to record every occasion when a child is suctioned and on this occasion the secretions were similar to those that had been observed earlier and there was nothing significant. Dr. Knight described how the father had come to the doctors’ desk on the unit to alert her about the bleeding. At that point, there was no increased work of breathing and she was observed to be stable. E was not crying and not in obvious distress. The retrospective note added that the parents “appeared appropriate during this time”, although she described them as anxious about the plan to move E from the PICU onto a normal ward. Dr. Knight said in evidence that all parents are anxious about the step down from the highly-intensive regime in the PICU.

[30]On various occasions during this hospital admission, E was given physiotherapy to her chest. This involved a nurse or therapist either using cupped hands or fingertips to produce gentle oscillatory compression and expansion of the peripheral part of the lung in order to remove the secretions. The parents later said that they were surprised with the degree of force apparently used during physiotherapy, and Professor Fleming said that this is often upsetting for parents to watch, although, when the parents were asked to demonstrate in the witness box the physiotherapy they had seen being performed on E, it did not seem to me to be particularly vigorous.

[31]One occasion when physio was given to E was at about 11.00 on the 10th, by Nurse Jenkins. Like all the nurses, she formed a favourable impression of the parents. In her police statement, she described them as “lovely, nice and easy to talk to”, although the word “lovely” was crossed out, according to Nurse Jenkins at the suggestion of a police officer who (according to Nurse Jenkins) said he didn’t think it was the right word to use.

[32]On two occasions during the 10th and 11th, E was supplied with a makeshift pacifier consisting of a bottle teat filled with cotton wool. This incident has been the subject of extensive evidence during the hearing and is considered further below.

[33]At 18.30, E was transferred from the PICU to a ward on another floor of the hospital, G3. She was admitted to a section (which I inspected on my visit) with a number of other beds. On this ward, there was a lower level of nursing supervision than on the PICU. At that stage, E was receiving supplemental oxygen via a nasal prong. According to the letter on discharge from the PICU, the diagnosis was “RUL [right upper lung] pneumonia”. When examined at 19.30, she was found to have “widespread crackles” and occasional expiratory stridor. In a later police statement (dated 8th April 2013), Nurse Tatnall said that on 10th January after the handover meeting at the start of the evening shift, the buzzer was operated from next to E’s cot, and when she went to see her she found the mother holding E who was bleeding from the nose and mouth. Parents of other children were also present in the bay of the ward at this time. The father had left earlier to stay with a friend, and text messages passing between the parents provide a contemporaneous account of E’s deterioration during the evening, with the father asking questions and expressing sympathy and the mother reporting on E’s condition and the actions of the medical staff. At 22.10, doctors were asked to review because of the increased blood-stained secretions. The notes of the examinations record that the mother was present, that blood had run down onto E’s chest and clothing, that there was moderate subcostal recession, bilateral crackles and moderately hard work of breathing. The nursing notes record that she was “vomiting blood + +” and requiring continuous suctioning. E was prescribed adrenaline and put back onto optiflow and moved into the adjacent high dependency unit (“HDU”) where the level of nursing care was higher than on the main ward. This unit, also inspected by me on my visit, contains 6 bed spaces, and, according to one of the nurses who gave oral evidence, Nurse Roberts, is “pretty much always full”. There is a nursing station by the door looking into the room, and medication is kept in the room. E’s cot was placed in the corner at the opposite end of the room. The mother had remained with E during her stay on G3. After the move to the HDU, she stayed sleeping on G3 for the rest of the night.

[34]An examination at 02.00 on the 11th noted that she was now working hard (i.e. at breathing) and had inspiratory stridor. A chest x-ray at 05.58 was report by the consultant paediatric radiologist thus:

“the lungs are hyperinflated. The NG tube tip is projected beneath the bottom of the film. There has been partial re-expansion in the right upper lobe though there is now minor atelectasis in the left lower lobe. Bilateral perihilar infiltrates persist. No pneumothorax.”

An examination at 06.35 noted continuing signs of respiratory distress, including stridor, non-bloody secretions, and sternal recession, and similar symptoms were observed during the ward round at 10.00 when the intercostal recession was described as “severe”. It was noted that there was no diagnosis for the blood-stained secretions. The impression was recorded as “likely respiratory infection + with possible other underlying pathology”. During this period, text messages passing between the parents show that the mother had become angry with the father for not responding to her texts. He failed to respond to the texts but then turned up at the hospital without prior warning. The father said in evidence that he was not responding because he was playing a joke on the mother. At 12.00, doctors carried out a flexible nasendoscopy, the results of which are recorded thus:

“nose NAD [nothing abnormal detected] – no bleeding – pharynx NAD – very bulky arytenoids but not overtly malaicic. [Vocal] Cords appear normal and seem to move. No view of subglottis. Probably needs MLB [micro-laryngoscopy and bronchoscopy]”

. The doctor recorded that he would discuss this with Miss Ismail-Koch, the ENT surgeon.

[35]At 15.00, there was a further episode of noisy breathing which settled. The level of oxygen provided to E was increased. In a later police statement dated 9th April 2013, Nurse Roberts said that she had been allocated to care for E that day, that she had a student nurse working with her, that as E was “quite poorly” most of her time was spent with her that day, and “throughout the day we continued to observe her”, although in oral evidence she said that they would not be with the patient all the time. In her statement, she also described how, in order to deal with the increased wind caused by CPAP, she and the student nurse tried to place an orogastric tube but were unable to do so, although “this is not normally a problem”. In oral evidence, Nurse Roberts said that she had never experienced a problem passing an orogastric tube before. She then inserted a nasogastric tube for this purpose and succeeded without any problem. Curiously, neither I nor counsel have been able to find in the medical records any contemporaneous nursing note about these matters described by Nurse Roberts.

[36]At some point that afternoon or early evening, there was a further episode of blood in E’s mouth and recession. In a retrospective note prepared on 17th January, Dr. Hyde recorded that an incident of bleeding had occurred at 15.00 on the 11th, but I can find no contemporaneous record to confirm this timing. The examining doctor, Dr. Singh, a paediatric registrar, noted that someone said it was “just like always” and that the nurse did not see the beginning of this episode. His note is not timed, but in a statement he said that it must have been between 17.00 and 20.00 which were the times of his shift. This timing also tallies with Nurse Roberts’ statement in which she also confirms that it was the mother who drew attention to the bleeding. Capillary blood gas tests at 19.00 suggested some improvement, but at 20.00 there was a further episode of respiratory distress with sternal recession. There was no evidence of pneumothorax but some concern about aspiration. A further chest X-ray was carried out and the consultant radiologist reported:

“there remains increased density in the right upper lobe, with elevation of the right horizontal fissure, consistent with right upper lobe collapse. There is now increased airspace opacification adjacent to the left heart border, consistent with consolidation. The appearances are consistent with evolving infection.”

[37]At 22.00 that evening, E was readmitted to the PICU, to bed space 9, next to the nurses’ station. She was intubated and ventilated by Dr. Baldock, the consultant intensivist, who noted that her upper airway was very swollen and inflamed. He was only able to pass a 3.0 mm uncuffed tube through her vocal cords – he was unable to pass a 3.5 mm tube. The medical notes record the doctors’ impression as “most likely ongoing respiratory infection with acute deterioration secondary to upper airway obstruction. Still have not excluded H-type fistula.” A further chest X-ray noted that appearances were unchanged from the earlier film. E settled with the assistance of the ventilation and sedatives.

[38]Saturday 12th January was a quieter day for E. She remained in the PICU on a ventilator and was treated with steroids to alleviate the swelling of her airway. At 10.15 the tapes on the ET tube were changed as the tube was seen to be mobile. At 11.40 she was given physiotherapy on her chest. At 15.30, frank blood was seen in oral and nasal secretions.

[39]On Sunday 13th January, E remained in bed 9 on the PICU. She developed an audible leak around the ET tube, with a consequential loss of ventilation, and the medical staff discussed the possibility of replacing it with a nasal tube, but decided to postpone this until the following day. During the day, some swelling was noted around her neck, but this later improved. In the afternoon there were further blood-stained secretions.

[40]At 23.30, E “self-extubated”. The medical notes record that Dr. Baldock and Dr. Knight were present. There were some bloody oral secretions. Initially her work of breathing seemed good, and it was decided not to re-insert the tube but rather to try her on optiflow again. By 02.10 on the 14th, however, she “looked much worse”, with pooling of bloody secretions in the oropharynx, severe sternal recession and intermittent bradycardia and desaturations that were not assisted by suctioning. It was decided to re-intubate her. The medical records of this procedure state:

“Grade 1 [i.e. good] view ... Airway overall looks very swollen. Areyopiglotic folds swollen and may have a bleeding point. Blood seen on cords but no obvious bleeding point. 3.5 uncuffed ETT inserted without stylet but snug fit. Therefore decision not for nasal ETT.”

The nursing notes record that the nasogastric tube, which had been removed at the time of the extubation, was also replaced using a larger sized tube.

[41]At 11.20 on 14th, the case was reviewed by Professor Roberts, paediatric respiratory consultant, for the first time since E’s admission to Southampton. In his initial note of the review, he discussed a number of potential organic diagnoses, but later added this comment in the medical records:

“Respiratory – a differential diagnosis here is FII [factitious and induced illness] given episodic blood in upper airway. Most recent episode occurred when parents not on ward so less likely than organic pathology.”

He discussed the case with Dr. Roe, the lead paediatric consultant for child protection, and with the hospital’s child protection team. He also spoke to the family’s GP in Devon who told him that there were no child protection concerns and she knew the family extremely well.

[42]It was at this point that Dr. Sarah Steele, the named child protection nurse, started a detailed manuscript running record, which was not disclosed until after the fact-finding hearing before me had started. All the references to conversations and actions involving Dr. Steele set out hereafter are taken from this document. She records that she had a series of conversations with Professor Roberts that afternoon. In one conversation, he is recorded as saying that “child has a one in ten chance of this being NAI”. Dr. Steele’s note continues:

“we must all fully explore this with an open mind, make no assumptions”

. Professor Roberts added:

“if more bleeding occurs without the parents being on the ward, then not NAI”, to which Dr. Steele has added: “unless staff involved???”

Meanwhile, at 16.00 Dr. Hyde recorded in the medical notes:

“elective re-intubation to change from size 3.5 to size 4 for endoscopy tomorrow. Ulcer on right side of mouth, not bleeding. Grade 1 view, size 4 passed easily.”

During the evening, there were several instances when E had bloody secretions from her nose. A further chest X-ray was performed but not reported on until the 16th.

[43]On the morning of 15th January, E was taken to theatre for the planned gastrointestinal endoscopy, bronchoscopy and microlaryngoscopy, performed by Dr. Afzal, paediatric gastroenterologist, and Miss Ismail-Koch and Miss Burgess, consultant paediatric ENT surgeons. While performing the endoscopy, Dr. Afzal found a foreign body in the oesophagus, later found to be cotton wool. An area of rawness was observed at the site where the cotton wool had been located. Below that point, the oesophagus looked normal and Dr. Afzal has stated that this effectively excluded erosive reflux as a cause of intestinal bleeding. The ENT surgeons then performed the bronchoscopy and microlaryngoscopy. In accordance with normal practice, part of this procedure was photographed, and late in the day (in circumstances described below) the pictures have been produced for the hearing before me. In this procedure, the doctors found a tear on the posterior pharyngeal wall, surrounded by sloughy material. The tear is clearly visible on the photographs and was described by Miss Burgess as “crescent-shaped”. The left-hand crico-arytenoid joint was stiff. Her left vocal cord was not moving and there was an area of oedema and erythema in the subglottis. There was sloughing of the anterior tracheal wall, said to be consistent with pressure from the ETT being pushed forward. In theatre, she was extubated because of trauma to the larynx and fitted with nasal CPAP.

[44]Professor Roberts immediately contacted Dr. Steele. According to her running record, he told her that “this explains everything i.e. it caused the external pressure on the upper trachea and larynx causing the stridor and the bleeding. Has a NG tube – foreign body moved + NG tube in – bleeding. It would traumatise the area and cause bleeding.” Dr. Steele’s note of their conversation includes as part of the plan – “PICU to be very vigilant and he will tell them” and that he would tell the staff to start the child protection safeguarding pro forma. It was agreed that Dr. Steele would set up a strategy meeting for the following morning and she then contacted Devon social services who said that they would contact the local police so that they could attend. Professor Roberts told her that E would have a skeletal survey. He also said that he would ask a colleague, Dr. Connett, another paediatric respiratory consultant, to take the case “for personal reasons”.

[45]At 15.00, Dr. Connett and Dr. Hyde spoke to the parents and told them about the cotton wool. They said that they did not have cotton wool in the house. Dr. Hyde noted that the parents were “visibly shocked that anyone could consider putting objects in a child’s mouth”. According to Dr. Steele’s running record, Dr. Connett told the strategy meeting the following day that the parents had been “genuinely shocked” when he introduced the possibility of NAI. At 16.00, Dr. Connett spoke to Dr. Steele about his conversation with the parents. He said that “family appear quite a genuine couple” who had not thought of NAI until he put it to them but had “then blamed their local hospital”. At 16.29, a sister on the PICU confirmed to Dr. Steele that a child protection pro forma was now in place. Dr. Steele’s running record states:

“I asked specifically for them (a) to monitor the parents (b) to document fully in pro forma.”

She was told that the parents were “appropriate” on the ward. In a further telephone call at 17.05, the Devon social worker informed Dr. Steele that the family were known to social services as a result of the earlier incident involving I. Dr. Steele received further information about the incident involving I from Janet Carter, the Devon health visitor.

[46]Meanwhile, E had been extubated and had a marked increased work of breathing and stridor which had resolved with the application of an oxygen face mask CPAP. She was then placed on a nasal CPAP and her condition stabilised. The parents left the hospital and spent the night with friends.

[47]According to a radiology report timed at 10.00 on the 16th, Dr. Argent, consultant paediatric radiologist, reported on the chest X-ray taken on the 14th:

“there is a fracture of the lateral aspect of the left sixth rib associated with some focal pleural thickening and a small pleural effusion. The fracture was not visible in previous radiographs but acute fractures may be occult. Findings discussed with clinical team.”

It seems, however, that there may be an error on the date of this report. There is no reference to the finding of a fracture in any other note made that day, in particular in the very full notes of the strategy meeting (see further below). The first note on the PICU records alerting staff to the presence of fractures is the note of Dr. Fairhurst timed at 09.30 on the following day, the 17th (also see below). The picture is complicated by the fact that I can find no record of any doctors’ examination of E conducted on the 16th. Some notes may be missing. By this stage, the nurses were using the child protection pro forma as requested by Dr. Steele. The nursing notes show that the parents arrived at 10.45 and stayed for the rest of the day. It was decided that they would not be told that the police would be attending the strategy meeting until after the meeting.

[48]The strategy meeting took place at 13.00 that afternoon. It was attended by a number of professionals, including Professor Roberts, Dr. Connett, Dr, Hyde, Miss Burgess, Miss Ismail-Koch, Dr. Steele, and Detective Sergeant Kingdon of the Devon and Cornwall Constabulary who took the chair. An extensive note of the meeting made by Dr. Steele is found in the medical notes, which were disclosed early on in these proceedings, and a further extensive note is found in Dr. Steele’s running record which was not disclosed until after the start of the hearing. From these notes, I extract the following points.(1) There was a long discussion about the cause of the tear to the posterior pharyngeal wall (described by Miss Ismail-Koch as a “deep, long flap”). There was disagreement amongst the doctors as to the cause of this tear, although Dr. Steele’s note in the medical records says that this “may have been caused during procedures” and her running record quotes someone at the meeting saying that “the tear could have been caused by a laryngoscope”.

(2) It was not known how long the foreign body had been inside E. It may have moved and caused escalation and de-escalation of the baby’s symptoms. Now it was out, she was getting better.

(3) The nurses observed that the parents had been appropriate on the ward and had shown genuine concern about E.

(4) Dr. Connett advised that “the event is likely to have happened on 2nd January as the baby would have symptoms with the foreign body and she first presented on 2nd January to Plymouth.”

(5) It was decided to instigate a s.47 investigation. The police and Dr. Connett would feed back to the parents on PICU. E was not to be discharged into the parents’ care at present, and I was to stay with extended family and be medically examined.

(6) At the end of the note in Dr. Steele’s running records, Dr. Connett is recorded as reiterating his concerns that there could have been more than one episode. Dr. Steele’s note adds that bleeding did occur on PICU when parents were not there and that Dr. Hyde said that movement of foreign body could set off the bleeding.

[49]After the meeting, Dr. Connett and Dr. Hyde, accompanied by a nurse but not the police, spoke to the parents and told them about the decisions of the strategy meeting. The parents were “appropriately distraught about the process of child protection investigations.” Later that evening, Dr. Steele spoke to a nurse on PICU, Nurse Du Preez, who was assigned to care for E that evening. According to Dr. Steele’s running record, the nurse told her that the mother had been upset and cross, that she had seen tension between the parents, that whereas the father had been appropriate on the ward, with hindsight the mother had asked odd questions and “had seemed to enjoy the whole situation on PICU”. When Nurse Du Preez gave evidence before me, however, she gave a different version of this conversation. Although she had observed the mother being upset and cross, she thought she had been “appropriate in the circumstances”. She recalled the mother asking what they expected to find in the bronchoscopy but at the time thought this seemed like a normal question any anxious parent would ask. More significantly, she did not recall saying that the mother seemed to be enjoying the whole situation on the PICU. Nurse Du Preez said that she would never have said this. Dr. Steele advised her to document very fully and contemporaneously all contacts and interactions involving the parents. During the evening, the father was by E’s cot, but the mother spent much of the time in the parents’ accommodation with a headache. There is no evidence that the mother was ever alone with E on this evening. Nurse Du Preez said in evidence that by this stage everyone on the unit was aware that there were concerns about child protection. She was present for all save 15 minutes when she left to photocopy some notes, at the request of Dr. Steele who was also on the unit for some time that evening. Nurse Du Preez asked two colleagues to keep an eye on E while she was away. In a retrospective note on the medical records made on 18th January, she said that those nurses had been “unable to have constant supervision of E”, but in a later police statement she said that those colleagues had told her that they had “never taken their eyes off” the parents while she was away. She told me in evidence that her colleagues had told her this after she had compiled the retrospective note. When she returned, both parents were by the cot. The mother was very distressed. The parents left the unit between 22.00 and 23.00.

[50]During the night, E showed signs of increased work of breathing, although her capillary blood gas measurements were reassuring. There were copious clear oral secretions, and by 06.30 she appeared to be increasingly distressed with her breathing with nasal flaring. At this stage she was still on a nasal cannula. A further chest X-ray was carried out at 08.22 and showed partial re-expansion of the right upper lobe but also fractures of the lateral aspects of the left fifth and sixth ribs. Dr. Fairhurst’s report continues:

“there is increasing pleural reaction in relation to these fractures as compared with the 14th … This suggests that these are acute injuries.”

In the PICU notes, Dr. Fairhurst is noted as saying there was no evidence of periosteal reaction in the films, and the fractures were not visible on the x-rays taken on the 6th, and further:

“concern raised that timing of these fractures may have occurred in hospital setting”

. A skeletal survey was performed. The parents visited E briefly for about fifteen minutes. The mother stroked E’s cheek but was asked not to do so by one of the nurses. At 10.30, Dr. Steele spoke to Dr. Hyde over the telephone (at a point when Dr. Connett was said to be on the ward). She noted that the concern again was non-accidental injury, and that it had “happened on our site here at UHS and therefore staff as well as parents are in the timeframe (therefore implications for child, staff, Trust)”. Dr. Steele was told that Dr. Connett was going to examine the airway now with a bronchoscope. She also noted:

“the big worry he [it is not clear if this is Dr. Hyde or Dr. Connett] wants to discuss with me is (1) how to keep baby safe (NB) (2) how to protect/monitor staff (3) who to alert”

. Dr. Steele’s notes include a detailed further plan including alerting social services, reconvening the strategy meeting, obtaining a list of all staff who had had any contact with the baby, preparing them for the fact that the police would need to take statements, keeping “very full and contemporaneous documentation”, and not leaving the parents alone with the baby. Dr. Steele then rang Devon social services and also spoke to DS Kingdon, who told her inter alia that the parents had made a formal complaint to the Derriford Hospital about the presence of the foreign body found in the oesophagus.

[51]At 13.05, Dr. Steele spoke again to Drs Hyde and Connett. There is a detailed note of their conversation in Dr. Steele’s running record. Dr. Connett told her that they are “becoming increasingly anxious and worried” as “on our watch the baby has been attacked multiple times” and they “fear for her life”. Staff have “been observing and monitoring but the baby has been harmed here, they think it is the parents”. Therefore, they “want the parents to leave the hospital asap” as they are “worried the parents may kill the baby”. Dr. Steele responded:

“we must keep an open mind as baby ?could have been harmed by staff as there is no definitive evidence that parents did it. We must not make any assumptions.”

Dr. Connett replied that his “anxiety is heightened because there is a disconnect between the actions and behaviour of the parents i.e. appropriate on ward, which is completely at odds with what is in front of them on the ward re the baby”. He was concerned that the baby had been repeatedly assaulted and believed that this would “continue and possibly escalate unless the parents are removed”. He pointed out that the child had had symptoms in three settings – home, Derriford and UHS – and that the common link was the parents. Dr. Connett also expressed concern that I should be kept safe.

[52]At 13.30, Dr. Connett carried out a fibre-optic bronchoscopy of E with Dr. Hyde in attendance. Dr Connett’s note in the medical records read as follows:

“There were a large number of secretions in the nasopharynx and the laryngeal inlet. There was an area of sloughing white material in the oropharynx posteriorly and adjacent to the laryngeal inlet on the right. The larynx was generally hyperanaemic and there was obvious swelling of the right arytenoid (posterior part of the entrance to the larynx). This was bright red and appearances suggested that there had been traumatic injury to the airway in this area. I was able to visualise the vocal cords which moved normally. I was able to pass the bronchoscope through the vocal cords and had good views of the sub-glottis, trachea and the left and right bronchus during spontaneous breathing. There was no airways inflammation, no collapse and no other lesions seen. The appearances of the laryngeal inlet are different to those characterised by the airway evaluation that occurred on 15th January. Whilst the area of slough overlying the mucosa on the posterior tear was seen, the marked oedema and redness of the arytenoids was not seen previously. The sub-glottic oedema and inflammation seen previously in the airway and consistent with previous intubation had resolved and the sub-glottis now appeared normal. The new appearances of redness and swelling of the laryngeal inlet is the only identifiable cause of the recent deterioration in respiratory status and looks to have arisen as a result of traumatic injury, (in the absence of any alternative explanation for these findings).”

[53]Unfortunately, this procedure was not recorded on film, either on video or still photographs. Dr Connett’s explanation for this omission in oral evidence was that the procedure had to be done as a matter of urgency on the ward and the machinery for recording was only available in the operating threatre. Dr. Hyde, on the other hand, said in evidence that the recording equipment is normally available as part of the machinery used in the bronchoscopy and it was only during the procedure on the 17th that it was discovered that there was no recording facility available in the machinery being used on this occasion. The consequence is that, whereas there is photographic evidence of the procedure on the 15th, which has been available for inspection by expert witnesses and the court, there is no such evidence of the procedure on the 17th and the two doctors who were present during the procedure disagree as to the reason for this omission.

[54]Dr. Connett updated Dr. Steele on the outcome of the bronchoscopy. Meanwhile, Dr. Fairhurst had reviewed the skeletal survey. There was no evidence of other bony injury and she had been unable to see the fractures observed on the earlier chest X-rays. She therefore arranged a further X-ray, together with CT scans and MR imaging. At 14.20 a further strategy meeting took place. According to Dr. Steele’s running record, Dr. Connett advised the meeting that the most likely cause of his latest findings was “direct trauma to the larynx, like a finger down the throat.” The meeting discussed further plans for safeguarding both E and I. Social services indicated that they would start care proceedings, and the police started their investigation. There was much discussion of the need to prepare full notes. At 18.28, Dr. Fairhurst reported on the CT scan of the chest which revealed multiple bilateral anterior and lateral rib fractures, with no evidence of periosteal new bone formation, suggesting that the fractures were acute and had “probably occurred in the last three to four days”. After being updated on developments, the parents left the hospital at 19.00 and did not thereafter return. Later that evening, medical staff experienced great difficulty passing a nasogastric tube. A series of nurses and junior doctors tried and failed, and the procedure was eventually carried out successfully by a consultant. E had previously been re-intubated and remained ventilated overnight to allow the swelling of her airways to settle.

[55]On 18th January, E’s condition was described as “stable”. There was one episode of respiratory distress noted with increased work of breathing. Another multidisciplinary meeting took place to discuss the plan. According to Dr. Steele, Dr. Connett reiterated his opinion that E has sustained five events in three different settings with the common denominator being the parents. In addition, he said that the parents were within the timeframe of the episodes of bleeding, although Dr. Steele’s notes added:

“(?apart from one occasion)”

. At 06.20 on the 19th, E coughed profusely with copious secretions, and then vomited dark blood-stained vomit. There were some episodes of bradycardia, but overall she was settled and alert. On the 20th, she was extubated onto optiflow, but remained with a nasogastric tube, although the tube was replaced when a hole was discovered.

[56]Meanwhile, on 18th January, the local authority had filed applications for care orders in respect of both children. At the first hearing on 21st January, both children were placed in the interim care of the authority. The order included the first of many disclosure orders against the Devon and Cornwall Constabulary, but I was told in final submissions by counsel for the police that this order was not served on the police for some time.

[57]In the following days, E’s condition continued to improve. The child protection arrangements continued and were documented in detail in Dr. Steele’s running record. One note which attracted attention during the hearing, when the running record was eventually disclosed, was an entry on 23rd January in which she recorded DS Kingdon as warning that the solicitor in Devon CC with conduct of the case “had undermined a recent criminal investigation re another case” and that “therefore he is concerned she has information, therefore police will arrest the parents tomorrow.” Later that day, E was discharged back to Derriford Hospital.

[58]On the following day, both parents were arrested and interviewed by the police. I was initially placed with foster carers, and was joined by E on her discharge from Derriford on 6th February. Following a positive assessment of the paternal grandparents, however, the children moved to live with themin early March. Since that date, both children have continued to be cared for by their grandparents, and it is agreed on all sides that the quality of care provided has been of a high standard. Contact with the parents has been supervised professionally, save for over Christmas 2013 when I made an order permitting contact on three days to be supervised by the grandparents at their home.

[59]Subsequent forensic analysis of the cotton wool found in E’s oesophagus revealed that it was distinguishable from a sample taken from the Derriford Hospital but indistinguishable from a sample taken from Southampton General Hospital and also from a sample taken from bag of cotton wool balls was found at the parents’ home, although the bag was unopened. It is possible that further tests might have established whether or not the cotton wool was “medical grade” and thus less likely to have originated from a domestic supply. So far as I am aware, however, no such tests have yet been carried out.

[60]On 1st February, the care proceedings were transferred to the High Court. On 7th February, the matter came before me for the first time. It came back before me on 1st March. On that occasion, I extended the time for police to comply with the earlier disclosure order.

[61]On 25th March, E underwent a further microlaryngoscopy and bronchoscopy at Derriford conducted by Mr. Rainsbury, consultant ENT surgeon. Some of the records of this examination, including photographs, were not produced by the police until part of the way through the hearing. The arytenoids were still rather more prominent and some inflammation was still visible, although the consensus of expert opinion at the hearing before me was that the inflammation was much less marked than that reported by Dr. Connett as having been seen on 17th January, and of a degree that would be compatible with reflux.

[62]On 11th April, I gave further directions including a further order for disclosure against the police. The order again included liberty to the police to apply to vary or discharge the order.

[63]On 16th April, Dr. Connett presented a lecture on this case to a group of professionals at UHS, including some staff who either had been interviewed or would shortly be interviewed by the police. The PowerPoint slides for the lecture have been disclosed. They appear to show that Dr. Connett was presenting as fact that E had been injured non-accidentally by one or both of her parents. Amongst the “learning points” identified in this presentation were that HDU and PICU were not safe environments for a child at risk of harm from their parents, and that instincts about parents cannot be trusted.

[64]The next hearing took place on 2nd May. The police having failed to comply with the previous orders, they duly attended with their legal representative and took part in negotiations outside court. The previous order was varied so as to give the police until 25th June to disclose “all statements, reports, transcripts and any other evidence they possess in respect of their investigation of the matter”. An order was also made for disclosure to the police of some of the documents in the care proceedings.

[65]At the next hearing on 4th July, I was informed that the police had not fully complied with the previous order. I therefore directed(1) the local authority to serve on the police a list of documents it was believed they had not yet disclosed;

(2) the police to either disclose these documents or provide a written explanation why this is not possible, and

(3) the officer in the case to attend court at a further hearing unless all documents in the list in (1) had been disclosed or the parties accepted the police’s explanation for non-disclosure. As usual, the police were given liberty to apply. On 17th July, the police served further documents on the local authority, including highly relevant material such as statements from the treating doctors. A few days later several hundred pages of further documents were disclosed. At the next hearing on 25th July, the police again attended with counsel and after negotiations and submissions, I ordered them to disclose certain further documents specified in the order “as and when such material becomes available to the officers” and again gave them liberty to apply. The scheme was therefore to provide for ongoing disclosure but subject to the police’s right to apply to court if they wished to withhold any particular document. Further documents were thereafter disclosed under this arrangement.

[66]At a final directions hearing on 3rd October, counsel representing the Southampton Hospital Trust, Mr Nother, attended to apply for leave to intervene in the proceedings to address any assertion that a member of the hospital staff had been responsible for the injuries. In the event, those representing the parents indicated that neither parent at that stage intended to make a positive assertion against any member of hospital staff that they were responsible for injuring E or seek any finding of fact against any member of staff, or bring a civil claim for compensation against the trust or any member of its staff. On that basis, I refused the Trust’s application but gave permission them to attend by way of a noting brief. At the same hearing, I directed the police to confirm that they had complied with the disclosure orders.

[67]On 10th October, the police wrote to the court seeking further disclosure of documents from the family proceedings.

ISSUES AND HEARING

[68]The findings sought by the local authority, as amended during the hearing, are in summary as follows:(1) On x-ray imaging dated 11th January 2012, I was found to have sustained a buckle fracture to the base of the proximal phalanx of her left little finger. The injury was sustained non-accidentally as a result of the actions of the mother or the father.

(2) E suffered multiple bilateral rib fractures, most likely to have been caused as a result of a single episode occurring between approximately the 10th January and 17th January 2013 as a result of an inflicted non-accidental injury as a result of an applied force other than routine handling or physiotherapy/therapeutic intervention, caused by either the mother or the father.

(3) The blood in E’s secretions on 2nd January, the more substantial bleeding as observed on the 4th January 2013 and the bleeding from the nose and mouth on the night of 10th into 11th January 2013 were all as a result of non-accidental trauma to her upper airway inflicted by either the mother or the father.

(4) The posterior pharyngeal tear within E’s throat observed on 15th January 2013 was as a result of a non-accidental injury caused by either the mother or the father and/or a non-therapeutic manoeuvre in which an object or a finger was introduced to E’s posterior pharynx deliberately or accidentally by either the mother or the father.

(5) The foreign body found in E’s oesophagus on 15th January was cotton wool which had been placed into her mouth and pushed into her oesophagus as a result of the non-accidental intervention of either the mother or the father.

(6) The increased redness and swelling of the laryngeal inlet and the very swollen right arytenoid observed on 17th January, which was responsible for her airway obstruction and respiratory distress at the time, were caused non-accidentally by either the mother or the father between 15th and 17th January.

(7) These injuries represent a pattern of induced illnesses or injuries and are likely to have been caused by the same person. Such a person poses a significant risk to any child in their care and for whom they have responsibility.

(8) The parent who is not the perpetrator of the injuries has closed their mind to the possibility of the other having caused the injuries and that closed mind prevents them from being able to protect their daughters.

[69]The hearing was listed to start in Exeter on 15th October. At the outset of the hearing, I was informed that the police had produced a CD containing still photographs of the endoscopy, bronchoscopy and microlaryngoscopy procedure carried out on 15th January. Plainly these photographs were of the utmost relevance, in particular for the expert witnesses. As a result, plans to call one of the expert witnesses, Mr. Kuo, by video link that afternoon had to be postponed. I expressed my great concern about this late disclosure to counsel who attended on behalf of the Devon and Cornwall Constabulary, and he agreed at my request to conduct a review of the police files to identify any further material that had not been disclosed in accordance with the court directions. Oral evidence was then given over two days by several witnesses (including Dr. Connett and Professor Fleming, whose evidence was not completed) and the court then adjourned because of other commitments until the following Tuesday.

[70]On Tuesday 22nd October, I was informed at the start of the day that the Southampton Hospital Trust had that morning produced about 300 pages of documents which, it was thought, were relevant but had not previously been disclosed. Of particular importance was Dr. Steele’s running record, the existence of which had been unknown to the parties and the court. I was told by counsel attending on behalf of the hospital trust that “the hospital did not know of the existence of these notes until this week.” Also disclosed were copies of PowerPoint slides used in Dr. Connett’s lecture on 16th April.

[71]I was also informed that counsel for the police had discovered a number of other documents which had not been disclosed in compliance with the earlier orders. Counsel for all parties understandably asked for time to study the new material from the hospital. It was already clear that the case would overrun its time estimate, and that the number of witnesses might increase. Later that day, at counsel’s request I adjourned the case for a further day to allow the parties to digest the new material. On the following afternoon, the hospital Trust indicated that it wished to renew its application for leave to intervene, on the grounds that there was a likelihood that one or other party might seek to argue that(1) an employee of the trust was responsible for one or more of the injuries sustained by E and/or

(2) the actions of the Trust’s employees had undermined the forensic process. I authorised disclosure of some documents from the care proceedings to the Trust to facilitate that application. On the next morning, the Trust’s application was granted unopposed. The evidence resumed for the rest of that day. On the following morning, Friday 25th October, counsel for the police (Mr. Godfrey) attended again. He accepted that the order for disclosure made on 24th July “could not have been clearer” as to the police obligations concerning disclosure, and that this had been supplemented by the order of 3rd October. He said he was concerned that the police had failed to comply with the order, and had therefore devoted several hours seeking to identify material that had not been disclosed. On behalf of the father, Mr Storey QC listed a number of categories of documents in respect of which he now sought a disclosure order. Counsel for the police agreed to such an order. I proceeded to hear further oral evidence for the rest of the day.

[72]On the next sitting day, Monday 28th October, the hearing was delayed because the court was informed that further disclosure was imminent. Later that day, I was informed that several hundred of pages of further documents had been disclosed by the police. At that stage, the documents were only available electronically and had not been analysed fully. Some of the documents had been disclosed previously, others not. It was agreed that the case would again have to be adjourned until the following day so that the parties could digest the latest material. This was particularly unfortunate as Professor Fleming had returned to resume his evidence. After further discussion, it was agreed that the case would resume on the following day. On the next morning, 29th October, there was yet a further development. I was told that there were further documents which the Trust had not disclosed, namely documents that had been generated in the course of discussions between counsel and some of the hospital staff, including staff who were witnesses in the proceedings. Counsel was concerned that these documents were relevant in particular to the use of cotton wool. After further discussion in court, the Trust agreed to disclose these documents. In addition, I was told that the police were now proposing to interview a number of other potential witnesses, and in some cases re-interview hospital staff. On behalf of the local authority, Miss Cook QC suggested that the court should invite the police to desist from re-interviewing witnesses until the conclusion of the fact-finding hearing. Mr. Storey expressed concern about the possibility of witnesses being re-interviewed and discussing with the police matters that had been raised when they had been questioned in this court.

[73]No party sought any further adjournment and the evidence continued on 29th. On the 30th, Professor Fleming returned and resumed his evidence. In the afternoon, counsel for the police returned to court accompanied by the investigating officers. I told them that, while I had no power to prevent the police investigating an allegation of criminal behaviour, I would be assisted if they could suspend any inquiries until the outcome of the fact-finding hearing. The police agreed to “pause” the inquiry. The hearing then continued until the end of the week which was the end of the eleven days originally allocated for the hearing. I was able to find eight further days in November and December, which was sufficient to complete the evidence but regrettably not submissions. Counsel therefore prepared written submissions over the Christmas period, and during the first week of January (still in the court vacation) I heard oral submissions and on a further day conducted a view of the relevant wards – PICU, G3 and its associated HDU – at the hospital in Southampton. I reserved judgment, a process which has been further delayed because of the need to re-analyse the history in careful detail.

[74]The problems caused in this case by the inadequacies of the police disclosure were very troubling. It is fair to say that the case came close at times to being completely derailed as a result. Attempts made by counsel on behalf of the police in written closing submissions (not Mr. Godfrey) to explain and excuse these failings were conspicuously unattractive. The fact is that the police repeatedly failed to comply with orders for disclosure, failed to take advantage of the provisions contained in the disclosure orders giving them liberty to apply, and then disclosed a substantial volume of material after the hearing had started, thereby necessitating a series of adjournments.

[75]This is merely the latest in a lamentable line of cases in which police forces have fallen short in this regard. To coin a phrase, this must now cease. Unless there is full compliance with orders for disclosure, there is a danger that the family court will be unable to fulfil its role of protecting children. I agree that one way of tackling this problem is to identify one individual in the police force who will be responsible for facilitating disclosure in these circumstances. Most importantly, all police forces must comply with the new Protocol on Disclosure.

[76]Southampton General Hospital and its governing Trust are also culpable in this regard. They failed to disclose some important material. In particular, Dr. Steele’s running record was highly relevant and obviously disclosable. Its existence seems to have come as a surprise to those representing the hospital in this case. Mr Hand contended that this reflected the difficulties that exist running a very large corporate structure, but this does not seem to me to be any excuse. I am concerned that hospitals need to develop better practices to ensure that all relevant material is identified and disclosed promptly, and I am assured by Mr. Hand that this hospital has learned lessons and is changing its practice, so that the running record will become a more formal, electronic document. I acknowledge the assistance that the Trust and its legal representatives have given to the court since it was joined as an intervenor.

[77]Having criticised the police and hospital, it is right that I should acknowledge the criticism both make as to the terms of some of the disclosure orders in this case. I accept that some of them were too widely drawn, and although the party against whom disclosure is sought can always apply for variation and discharge, the parties to family proceedings and the court must always strive to ensure that the disclosure sought is confined to what is relevant.

[78]The documentation filed in this case ultimately filled some 24 lever arch files, a significant proportion of which were not disclosed prior to the start of the hearing. It is interesting to consider how the proposed new Bundles Practice Direction would have impinged on the preparation and filing of documents in this case. I record that I was greatly assisted by the availability of a core bundle in which many of the documents referred to during the hearing were stored. The 24 files of documents comprised: statements by the parties prepared for these proceedings; expert reports, in particular from Professor Peter Fleming, consultant paediatrician, Mr Michael Kuo, consultant paediatric otolaryngologist, and Dr. Andrew Watt, consultant paediatric radiologist; medical records from the Derriford and Southampton Hospitals, plus GP and health visitor records for the family members; social services records, and the disclosure by the police which eventually exceeded over 2,500 pages. At the hearing the following 26 witnesses gave evidence:(1) primary health care – Dr. Born (GP), Janet Wren (community specialist children’s nurse) and Janet Carter (health visitor);

(2) from the Derriford Hospital – Dr. Adcock and Dr. Lilley ;

(3) from UHS – Dr. Connett, Miss Burgess, Miss Ismail-Koch, Dr. Baldock, Dr. Walker, Dr. Afzal, Dr. Knight, Dr. Hyde, Matron Purcell, Nurses Tatnell, Roberts, Du Preez, Jenkins, Stranaghan, and Dr. Steele ;

(4) police – DS Kingdon ;

(5) experts – Professor Fleming, Dr. Watt and Mr. Kuo;

(6) family members – the mother and father. In addition, I had the benefit of a number of documents from counsel at various stages in the proceedings, culminating in voluminous closing submissions and appendices, totalling over 150,000 words. I pay tribute to the outstanding contribution made by the parties’ lawyers – counsel and solicitors in this case.

[79]I have mentioned elsewhere the crucial importance of experienced legal representation in these difficult public family law cases. This case presented special challenges, in particular(1) the highly unusual nature of E’s symptoms, injuries and medical history;

(2) the voluminous history, and

(3) the deplorable failure of the police and UHS to disclose substantial numbers of documents until after the start of the proceedings. It would have been impossible for this court to have coped without the assistance of all the solicitors and counsel for the parties, including those instructed to represent the Trust. I hope I may be forgiven for singling out counsel for the local authority. Miss Cook demonstrated the vital importance in these very difficult public law cases of the local authority being represented by leading counsel experienced in grappling with these types of problems, and of marshalling the case to be put before the court, and crucially in cross-examination, in particular of the experts and the parents. She was ably assisted by Miss Phillips who stoically but successfully took on the burden of keeping control of the ever-expanding documentation.

[80]One consequence of the late disclosure of material by the hospital and police was that the parties’ preparation of the case was unavoidably incomplete. Chronologies and case summaries prepared for the start of the hearing did not include information supplied in the several hundred pages of undisclosed documentation. Although all counsel sought to remedy this in their final submissions, I have thought it necessary to go through the medical notes myself to track E’s course through hospital. This has greatly added to the time taken for preparation of this judgment but was unavoidable, in particular given the fact that the local authority’s case in part turns on an interpretation of the pattern of E’s symptoms.

THE LAW

[81]The law to be applied in care proceedings concerning allegations of child abuse is well-established.

[82]The burden of proof rests on the local authority. It is the local authority that brings these proceedings and identifies the findings that they invite the court to make. Therefore, the burden of proving the allegations rests with them and to that extent the fact-finding component of care proceedings remains essentially adversarial.

[83]Secondly, as conclusively established by the House of Lords in Re B

[2008] UKHL 35

, the standard of proof is the balance of probabilities. If the local authority proves on the balance of probabilities that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will treat that fact as established and all future decisions concerning the children’s future will be based on that finding. Equally, if the local authority fails to prove that the injuries sustained by I and E were inflicted non-accidentally by one of her parents, this court will disregard the allegation completely.

[84]In this case, I have also had in mind that, in assessing whether or not a fact is proved to have been more probable than not, “Common-sense, not law, requires that in deciding this question, regard should be had to whatever extent is appropriate to inherent probabilities,” (per Lord Hoffman in Re B at paragraph 15)

[85]Third, findings of fact in these cases must be based on evidence. The court must be careful to avoid speculation, particularly in situations where there is a gap in the evidence. As Munby LJ (as he then was) observed in Re A (A Child) (Fact-finding Hearing: Speculation)

[2011] EWCA Civ. 12

, “It is an elementary proposition that findings of fact must be based on evidence, including inferences that can be properly drawn from the evidence and not on suspicion or speculation.”

[86]Fourth, when considering cases of suspected child abuse, the court “invariably surveys a wide canvas,” per Dame Elizabeth Butler-Sloss, P, in Re U, Re B (Serious Injury: Standard of Proof)

[2004] EWCA Civ. 567

, and must take into account all the evidence and furthermore consider each piece of evidence in the context of all the other evidence. As Dame Elizabeth observed in Re T

[2004] EWCA Civ.558

, “Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to the conclusion of whether the case put forward by the local authority has been made out to the appropriate standard of proof.”

[87]Fifth, amongst the evidence received in this case, as is invariably the case in proceedings involving allegations of non-accidental head injury, is expert medical evidence from a variety of specialists. Whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence. In A County Council v K D & L

[2005] EWHC 144 (Fam)

at paragraphs 39 and 44, Charles J observed, “It is important to remember(1) that the roles of the court and the expert are distinct and

(2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.” Later in the same judgment, Charles J added at paragraph 49, “In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

[88]Sixth, in assessing the expert evidence I bear in mind that cases involving a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem, the court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers, where appropriate, to the expertise of others (see observations of Eleanor King J in Re S

[2009] EWHC 2115

Fam).

[89]Seventh, the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. They must have the fullest opportunity to take part in the hearing and the court is likely to place considerable weight on the evidence and the impression it forms of them (see Re W and another (Non-accidental injury)[2003] FCR 346)

[90]Eighth, it is common for witnesses in these cases to tell lies in the course of the investigation and the hearing. The court must be careful to bear in mind that a witness may lie for many reasons, such as shame, misplaced loyalty, panic, fear and distress, and the fact that a witness has lied about some matters does not mean that he or she has lied about everything (see R v Lucas

[1981] QB 720

[91]Ninth, as observed by Dame Elizabeth Butler-Sloss Pin Re U, Re B, supra “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 would throw a light into corners that are at present dark.”

[92]This principle, inter alia, was drawn from the decision of the Court of Appeal in the criminal case of R v Cannings

[2004] EWCA 1

Crim. Linked to it is the important point, emphasised in recent case law, of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran

[2010] EWCA Crim. 126

, and in the family jurisdiction by Hedley J in Re R (Care Proceedings: Causation)

[2011] EWHC 1715 (Fam)

“there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden of proof is established on the balance of probabilities.”

[93]Finally, when seeking to identify the perpetrators of non-accidental injuries the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator (see North Yorkshire County Council v SA

[2003] 2 FLR 849

. In order to make a finding that a particular person was the perpetrator of non-accidental injury the court must be satisfied on a balance of probabilities. It is always desirable, where possible, for the perpetrator of non-accidental injury to be identified both in the public interest and in the interest of the child, although where it is impossible for a judge to find on the balance of probabilities, for example that Parent A rather than Parent B caused the injury, then neither can be excluded from the pool and the judge should not strain to do so (see Re D (Children)

[2009] 2 FLR 668

, Re SB (Children)

[2010] 1 FLR 1161

CREDIBILITY OF KEY WITNESSES

[94]Before turning to consider the evidence as to the specific injuries sustained by E, I must address issues of credibility which have arisen concerning three important witnesses. In the order they give evidence, they are Dr Connett, the mother and the father.

Dr Connett

[95]Dr Connett is manifestly a very experienced doctor entrusted with a high degree of responsibility within the team at Southampton. He plainly played a crucial role in the investigation of E’s injuries. He has been subjected to much criticism by counsel on behalf of the parents, in particular by Mr Storey. Those criticisms can be summarised as follows.(1) Upon being assigned responsibility for the case, he quickly concluded that E had been the subject of abuse at the hands of one or both of her parents, a theory which he pursued to the exclusion of all others.

(2) His failure to record the bronchoscopy carried out on 17th January was a dereliction of duty and influenced by his view of the cause of E’s injuries. The interpretation of that procedure is undermined by the absence of photographs, an absence for which there is conflicting evidence from Dr Connett and Dr Hyde.

(3) Dr Connett’s approach to the case has influenced the attitude of the staff at the hospital and coloured the evidence which they have given about this case.

(4) By giving a lecture illustrated by a PowerPoint at the hospital on 16th April, Dr Connett was contaminating both the police investigation and the proceedings in this court.

[96]These are serious criticisms directed at a professional clinician and it is right that I address them at this stage.

[97]I reject any insinuation that Dr Connett’s overall approach was unprofessional. It is important to note, as pointed out by Mr Hand on behalf of the Hospital Trust, that before Dr Connett became involved in the case, the clinicians involved, and in particular Professor Roberts, were increasingly of the view that this was or might be a case of factitious or induced illness. Dr Connett did not become involved until after the procedure on 15th January in which the cotton wool and pharyngeal tear were discovered. At that stage, any responsible clinician would have been considering the possibility of non-accidental injury and Dr Connett and his colleagues would have been failing in their duty if they had not taken urgent steps to address this possibility. Furthermore, given the possibility that the injuries had been sustained at hospital – a possibility increased following the discovery of the rib fractures – it is perfectly understandable that Dr Connett took a very serious view of the case.

[98]I do, however, think there is force in the criticism made of Dr Connett as to both the way in which he expressed his view and as to his apparent reluctance to consider any alternative cause. It is striking that Dr Steele’s running record shows that it is she who on several occasions has to remind the doctors, and in particular Dr. Connett, of the importance of keeping an open mind. In his oral evidence, Dr Connett eventually conceded that in some respects his language “may not have been entirely professional or appropriate”. I think he was right to make that concession. Furthermore, it is plain to me that his strong views strongly expressed as they were must have influenced the attitude of other staff and the general atmosphere on the wards concerned. I think there is a risk that some nurses and doctors may have been influenced in their evidence by Dr Connett’s forceful exposition of his views.

[99]As to the criticism about the bronchoscopy carried out on 17th January, I do not find any reason to question Dr. Connett’s motives. It is surprising that Dr Connett and Dr Hyde gave different excuses for the fact that the procedure was not recorded. Having considered this aspect of the evidence carefully, I do not conclude that either doctor has deliberately misled the court on this issue. I find that each doctor has honestly provided their differing recollections of the reasons why the procedure was not recorded. The significance of the absence of any recording to my mind is not the reason for the failure to record but rather the fact that no recording is available. Had it been recorded photographically, there would have been direct evidence available for inspection by the expert witnesses, Professor Fleming and Mr Kuo. I do, of course, have the consistent descriptions of the findings from the two clinicians. On such an important part of the case, however, it is unfortunate that the best evidence that would have been provided by recording of the procedure is not available for interpretation by the independent experts.

[100]Finally, there is the issue of the lecture on 16th April. On behalf of the Trust, Mr Hand makes a number of points in vigorous defence of Dr Connett. He points out that doctors work on a system of peer review and that there is also a need to prevent any past mistakes from happening again. This learning from past experience cannot entirely await the outcome of court proceedings. He contends that Dr Connett was not seeking to influence the views of others by giving this lecture, but rather simply providing his opinion from the perspective of his own involvement in E’s care and treatment. He points out that hardly any of those who have given evidence in this case actually attended the lecture. In any event, the original medical notes, and their interpretation by the independent experts, were obviously unaffected by the lecture.

[101]I do not think it necessary to divert further into the detailed submissions made by Mr Storey which impinge on issues such as infringement of the subjudice rule. Having reconsidered the evidence very carefully, I have concluded that, in this case, the lecture itself has not had a direct impact upon the evidence. It is, however, a concrete example of the point I had already made, namely as to Dr Connett’s overall influence upon the views and attitudes of other hospital professionals concerned in the case. As to the general point, whilst accepting Mr Hand’s submission as to the importance of peer review and learning lessons from cases, I think it is singularly unwise for any professional, doctor or lawyer, to give a lecture upon an ongoing case before that case is concluded. Manifestly, there is a risk that such a lecture may contaminate the investigation and proceedings.

The Mother

[102]Much attention has been focussed on the mother’s troubled background – her difficult teenage years with a history of absconding and self harm , culminating in a period in care. The local authority has also focussed on her conduct since I was born, in particular her history of post-natal depression, her attitude to professionals involved in assessing the family following I’s finger injury, her use of medical services generally and her behaviour before and during E’s admission to hospital in January 2013.

[103]Miss Cook and Miss Phillips also point to examples where the mother has been less than truthful or frank. One example is her denial to the police that she had ever suffered from post-natal depression. Another is her denial of any issues of concern about I (notwithstanding the finger injury and subsequent involvement of social services). Miss Cook and Miss Phillips contend that the mother’s lack of frankness continued in her oral evidence. They point in particular to parts of her evidence concerning events prior to E’s transfer to Southampton – for example, an inconsistency as to whether or not the father was present on the evening of 2nd January when it was noted that E was bleeding, and her failure to mention until cross-examination that the father had been out at the shops when the bleeding on 4th January started. Miss Cook and Miss Phillips question the mother’s reason for deleting the video recording shown to Janet Wren on 2nd January. They also point, amongst other examples to the mother’s reluctance to accept the possibility that either she or the father had the opportunity to cause the injuries. In addition, Miss Cook and Miss Phillips rely on the mother’s extreme anxiety and suggest that it is linked in some way psychologically to her background and her sense of being victimised.

[104]In response, Miss Branigan QC and Mr Powell on behalf of the mother point out that the mother’s GP, Dr Born, agreed that, although the mother is an anxious person, there is nothing remarkable in her use of medical services in respect of I. They submit that no proper attempt has been made to analyse I’s medical notes to see whether there is any substance in the suggestion that the mother made excessive use of those services. Since the finger injury, there have been no grounds for concern about the care given to I by her parents, in particular her mother. Equally, they point to the uniformly positive descriptions given by the wide range of professionals involved in this case as to the care and devotion shown by the mother to the children.

[105]Miss Branigan and Mr Powell submit that it would be wrong for this court to place any weight on the mother’s past behaviour as an indicator of personality problems or a propensity to harm a child. They submit that her evidence in relation to her past was open and honest and indicative of an ability to reflect on that behaviour and the light in which it casts her. The mother accepts that she has an anxious personality and that she becomes upset on occasions. I had plenty of opportunity to observe the mother’s anxiety in court which was very evident on many occasions during the hearing. Miss Branigan and Mr Powell submit that her anxiety is a very long way from amounting to any propensity to perpetrate violence or to inflict serial abuse on her child.

[106]However, making all allowances for her anxiety, I formed the impression at several points in her evidence that the mother was being less than frank with the court. This was particularly noticeable during Miss Cook’s cross-examination about the events of 2nd and 4th January.

The Father

[107]Mr Storey and Mrs Storey-Rea submit that, in the thousands of pages of documents in this case, there is not a single solitary word of criticism of the father’s character, demeanour or relationship with professionals. There is no suggestion of any propensity to violence. There is nothing to suggest that he is anything other than devoted to his family. All witnesses who have commented upon him have done so in favourable terms. In contrast to the mother with her anxious personality, the father is uniformly described as a calming influence. His counsel point to his history of working in caring for the elderly. As a witness, the father was manifestly very nervous. Unlike the mother, however, he was frank in accepting, for example, that he had the opportunity to injure E whilst denying of course that he had done so.

[108]Miss Cook and Miss Phillips sought to characterize the father as prone to minimise and to be protective of the mother. I found his attitude in this respect to be entirely unremarkable. I do not think he can be significantly criticized for his reluctance to acknowledge the possibility that his partner may have injured their children.

[109]The most that can be said against the father is that at times he seemed naïve and immature. This was perhaps most obviously illustrated by his account of the so called “joke” that he played on the mother when failing to respond to her text messages enquiring where he was on the morning of 11th January. It was not a good idea for him simply to turn up unannounced when he ought to have realised that the mother was in a state of high anxiety.

[110]Overall, however, I record at this point that I found the father to be a truthful and reliable witness. This is an important finding in my analysis of the case.

[111]With those assessments of the credibility of key witnesses in mind, I turn to consider the local authority’s allegations. It is convenient to consider the injuries under the following headings:(1) episodes of bleeding;

(2) the pharyngeal tear;

(3) the cotton wool;

(4) rib fractures;

(5) the swollen arytenoids etc found on 17th January;

(6) conclusions on E’s injuries;

(7) I’s finger. If I make findings that any of the injuries were deliberately inflicted , I shall then proceed to consider the three further issues: (1) the identity of the perpetrator; (2) whether the circumstances bring this case within the category of induced illness, and (3) whether the other parent is culpable of failing to protect the children.

BLEEDING EPISODES

[112]The chronology set out above cites the number of occasions between 2nd January and 15th January when E was observed to have episodes of bleeding or blood-stained secretions. Despite the exhaustive analysis of the history by clinicians, experts and lawyers, there is still a considerable amount of confusion and uncertainty about the cause and explanation of many of these incidents. In particular, the pattern of bleeding in hospital is at times obscured by the volume and complexity of the information. The impact of the numerous medical interventions on E by the many clinicians and nurses who were involved in her care is also an important factor. Not surprisingly, much of the focus of the parents’ lawyers, in particular Miss Branigan on behalf of the mother, has been directed at demonstrating the extent of this confusion and uncertainty.

[113]As the case progressed, however, the focus of the local authority case shifted to the period before E went to Southampton. This shift in focus became apparent, in particular, during Miss Cook’s effective and insightful cross-examination of Professor Fleming.

[114]Professor Fleming’s interpretation of the history in the period before E’s admission to Southampton evolved during the proceedings. In his written report, guided no doubt by the questions asked in the letter of instruction sent to him by the parties, he focussed on the later signs – the cotton wool, the pharyngeal tear, the rib fractures and the swollen arytenoids seen on 17th January. There was comparatively little in his report about the period before the admission to Southampton, although he did suggest that the pharyngeal tear might have occurred before E’s presentation to hospital on 2nd January. In the experts’ meeting, he was asked for the first time specifically about the cause of E’s initial respiratory distress and haemoptysis. As discussed below, Mr Kuo had expressed the view that pneumonia and aspiration was the probable cause. Professor Fleming disagreed. He pointed out that the initial presentation to hospital was not with the haemoptysis but rather because of signs of respiratory distress – increased nasal flaring, high rate of breathing and subcostal recession. These could well have represented signs of an infection but thereafter her condition seemed to improve. Later that day there was the first incident involving bleeding – apparently while she was sitting quietly with her mother – but, again, when she arrived at hospital, the respiratory distress had abated. Professor Fleming summarised this as “a very mild underlying respiratory illness that’s been seen twice by the doctors who didn’t feel that it was actually a serious issue – but then this acute episode in between”. At the experts’ meeting Professor Fleming also disagreed that acute aspiration is a common phenomenon in young infants. He thought it was extremely uncommon. He added:

“aspiration, when you get it, it doesn’t sort of come and go. If you’ve got aspiration, secretions and increased respiratory difficulty, then it persists and aggressively gets worse rather than this episodic nature.”

[115]He did not think that he had ever seen haemoptysis in this setting. The schedule of agreement and disagreement drawn up after the experts’ meeting recorded that, in answer to the question as to the possible causes of E’s initial respiratory difficulties and haemoptysis which led to her admission to the Derriford Hospital, he considered that “the available evidence was as equally compatible with an episode of acute trauma as with natural causes”.

[116]Then in his oral evidence in answer to Miss Cook, his position evolved again. He said that haemoptysis is very rare in infants, “except within the setting of trauma”. He then ruled out all other explanations. He had never seen such bleeding as a primary event in aspirative pneumonia. His accepted that bleeding in secretions in bronchial pneumonia was “uncommon but not rare”, but there was no evidence of severe bronchial pneumonia in this case because E recovered quickly. “So this was not a single, severe episode that got progressively worse with bleeding at the worse stage of the episode, this was mildly unwell baby who had a number of quite acute episodes superimposed on that.” This did not fit the pattern of a severe pneumonia sufficient to cause haemoptysis. Although bleeding in reflux was not rare, he had never come across bleeding from the upper airway as a result of reflux without inflammation of the oesophagus, but this could be ruled out in this case because Dr Afzal, after removing the cotton wool from the oesophagus in the endoscopy of 15th January, had found no evidence of reflux oesophagitis below the site at which cotton wool had been located. Professor Fleming thought that, given that the symptomatology had continued in the intervening period between the first bleeding episode and the procedure on 15th January, if the bleeding was due to reflux and damage to the mucosa, it was unlikely that the oesophagus would have been normal in Dr Afzal’s examination.

[117]Miss Cook then took Professor Fleming through the medical notes for the first two admissions to the Derriford Hospital in the first week of January. He noted that at the time of the second admission, on 4th January, the father had brought in a muslin cloth with blood on it. Professor Fleming thought it hard to imagine how this could have been caused by any of the postulated natural causes. He accepted the possibility that one explanation for the difficulty experienced by the nurses in passing the nasal gastric tube on 5th January might have been that the pharyngeal tear was already present. He further accepted that ,if there had been bloody secretions caused by trauma, leading to swelling, that would explain the respiratory difficulties seen in hospital on 5th January and also might explain the noises heard by nurses in the early hours of that day – a croupy cough and wheezy chest. Professor Fleming thought that the description of how the jaw thrust manoeuvre carried out on the afternoon of 5th January had increased E’s saturations indicating significant swelling or obstruction of some sort behind her oral cavity and specifically in the oropharynx, “because the jaw thrust does not do anything for the larynx or the nasopharynx”. For Professor Fleming, this established “for certain the obstruction was in the oropharynx”. Although E had been examined by a rigid laryngoscope at Derriford, that examination would not have enabled the doctor to see the posterior pharyngeal wall. These factors led Professor Fleming to reflect again on the possibility that the pharyngeal tear was present on 5th January.

[118]Thus, Professor Fleming’s assessment of the events of 2nd to 5th January evolved during the proceedings. Given the difficulties in this case, I do not find this surprising, nor a matter for criticism. On the contrary, it demonstrates the very great care which Professor Fleming devoted to his work in this case. At the conclusion of his evidence, however, it was his clear view on the balance of probabilities that the onset of bleeding and bloody secretions were attributable to trauma to the upper airway although he was unable to say that it was specifically because of the presence of a pharyngeal tear.

[119]Mr Kuo’s analysis of the cause of the bleeding prior to the Southampton admission also evolved during the course of the proceedings. In his report, he concluded:

“On the balance of probability, the initial respiratory difficulty and haemoptysis which necessitated admission to Derriford Hospital were attributable to aspiration pneumonitis. In essence, I agree with the diagnosis proposed by the doctors in Derriford Hospital. Haemoptysis is uncommon in infants and neonates and is often associated with pneumonia or pneumonitis. Trauma to the pharynx and epistaxes (nose bleeding) causing contamination of the upper aerodigestive tract with blood can give a similar picture but there would not be the associated breathing difficulties. ”

This remained his view during the experts’ meeting, as recorded in the schedule of agreement and disagreement. Then, just as she had with Professor Fleming, Miss Cook in cross-examination took Mr Kuo painstakingly through the early medical records from Derriford in the first few days of January. She demonstrated, and he agreed, that there were no observation of significant breathing difficulty associated with the early incidents of bleeding – as she put it, by 5th January “there is not the slightest hint of any breathing difficulties but we have had blood in the sputum at this point for 48 hours”. She put it to him that with aspirative pneumonia you would have the breathing difficulties first and then the blood. Mr Kuo deferred to Professor Fleming on this issue. Ultimately, Mr Kuo agreed in cross-examination that it was not a pneumonitis case, and that, if it had been, the quality of the bleeding would have been different from that seen, for example, on the muslin cloth brought in by the father. He also agreed with Professor Fleming’s evidence about the interpretation of the jaw-thrust manoeuvre.

[120]At this point, however, there occurred yet another twist in this extraordinary case. Mr Kuo suddenly drew attention during the course of his evidence to a medical note from 3rd January that, up to that point, had escaped everyone’s attention – “congested red spot on hard palate”. He commented that he did not know whether this was a point of trauma in the palate mucosa, adding “you can certainly bleed from that”. He thought such a spot could thereafter bleed sporadically and intermittently for a couple of days. It could have been caused by any direct injury to the palate.

[121]The Local Authority’s case is that the episodes of bleeding seen in the secretions on 2nd January, and the more expansive bleeding seen on 4th January, were both caused by trauma. Whether or not the initial respiratory distress recorded on the mother’s phone and shown to Janet Wren, and independently seen by Janet Wren on 2nd January, was caused by infection or trauma, the pattern of bleeding during this early period does not accord with a diagnosis of infection or other natural cause.

[122]So far as these earlier incidents of bleeding are concerned, I find Professor Fleming’s analysis in his oral evidence persuasive – in particular, his analysis of the inconsistent pattern of episodes of bleeding and respiratory distress – and, contrary to Miss Branigan’s final submissions, I do consider that Mr Kuo effectively abandoned his earlier interpretation of aspirative pneumonia during his cross-examination by Miss Cook.

[123]Of course, I do not take the evidence in isolation. Each piece of evidence has to be considered in the context of all the other evidence.

[124]I therefore turn to the evidence of E’s progress after her arrival at Southampton. I say immediately that I have found the picture from 6th January onwards to be much more confusing. There is force in Miss Branigan’s submission that E’s presentation during the entirety of her stay at hospital in Southampton is one which is not capable of any clear explanation. Here again, one striking feature is the pattern identified by Professor Fleming in which E’s respiratory condition fluctuated in a way which is not consistent with lung disease, and the episodes of bleeding, taken alongside the fluctuating pattern of respiratory difficulties, did not fit any naturally occurring pathology, as Dr Baldock, for example, observed in evidence. The father himself observed during his police interview that E “kept getting better and getting worse and getting better and getting worse”.

[125]Another striking aspect of E’s progress in Southampton, of course, was the sheer number of interventions that this small baby received from a large number of nurses and doctors, involving intubations, to assist with both her breathing and feeding, and examinations. In answer to a question from me, Professor Fleming described the level of intervention as “extremely uncommon”. There is no reason to doubt the dedication or professionalism of the hospital staff. But the fact is they were struggling to come to terms with identifying the diagnosis of this worrying problem, and were submitting E to a high number of interventions. It is the Local Authority’s case that some of the bleeding during the Southampton admission must have been attributable to further acts of abuse committed in the hospital. They have slightly shifted their ground on this point, initially asserting that the bleeding on 9th January was traumatic but then amending the schedule of findings to assert that the bleeding on 10th/11th January was a traumatic injury inflicted by one or other of the parents. Plainly, however, if, prior to the admission to Southampton, there was already a traumatic wound or lesion (such as a pharyngeal tear) it is likely that at least some of the bleeding seen at Southampton was caused by the re-opening of that wound. A basis of the Local Authority’s assertion that the bleeding on 10th/11th January was attributable to further episodes of trauma is that Professor Fleming and Mr Kuo thought that the gap between the proceeding interventions on 9th January and the onset of bleeding on 10th/11th January was too great to be attributable to those interventions.

[126]On the other hand, I bear in mind that E was now living in a very busy hospital with large numbers of staff and patients and family members. I visited the wards and saw for myself the numbers of staff and the degree of activity. This is particularly high and intense on the PICU and on the HDU but also to some extent on the ordinary ward G3. In my judgment, on the PICU and HDU it would be very difficult for a parent to inflict injuries as postulated by the local authority on a child without being detected – not impossible, but certainly very difficult. The sheer improbability of this weighs heavily in the balance when assessing the local authority’s allegation that further assaults took place in hospital.

[127]If, as the local authority have persuasively argued, the cause of the initial episodes of bleeding in the early days of January was trauma, and as a result a wound or lesion is present but undetected for 10 days, it makes it more likely in my judgment that all the subsequent episodes of bleeding were attributable to re-bleeding cause by the medical interventions – examinations and/or the intubations, both the act of inserting and removing endotracheal tubes and orogastric and nasogastric tubes, and the adjustment of the tubes or even perhaps the mere presence of the tubes alongside the damaged area.

PHARYNGEAL TEAR

[128]A tear to the posterior pharyngeal wall is extremely rare. Professor Fleming has only come across it on a couple of occasions in his long career. Mrs Burgess, one of the ENT surgeons who carried out the procedure on 15th January, said it was rare to see such a tear of this extent and depth.

[129]Miss Ismail-Koch said in her police statement (dated as recently as 10th October 2013) that the tear would have been caused by trauma. “I am unable to say what type of trauma. I have seen small and superficial lacerations on the posterior pharyngeal wall in other patients; but in my experience I have never seen a tear as extensive as E had caused by intubation or nasogastric tube insertion. This tear would have been consistent as to the source of bleeding witnessed in Southampton and Plymouth. Repeated trauma to this tear may have caused repeated episodes of bleeding.” In oral evidence, she described it as quite a deep laceration of a sort which she had not seen caused by medical instruments. In her statement, she said that the tear could have been there for several days. Asked in oral evidence to age the tear, however, she said “48 hours, maybe a bit longer, depending on how long it takes to heal. But not recent because of the slough around it.” Miss Burgess thought the tear had been there for at least 48 hours and could have taken two to three weeks to heal, depending on various factors such as further trauma, reflux, or infection. In oral evidence she said that the doctors had discussed whether the tear could have been caused by the tubes, but this was ruled out as they are “soft and rounded”. She added that, if you use the instruments properly, there should not be an injury.

[130]The explanations for the tear are that it was caused(1) accidentally, probably by a medical procedure;

(2) by other trauma during the admission to Southampton or

(3) by trauma before admission.

[131]I have already noted the large number of medical interventions which E underwent during her admission. Some of them led to complications, for example, the difficulties experienced inserting an orogastric tube on 11th January. But in most cases, the procedures were carried out without any complication by experienced medical staff. Several doctors who gave evidence – Dr Baldock, Dr Walker, Dr Hyde – were specifically asked whether the procedures they carried out might have caused the tear. They all deny that this was possible. I bear in mind that all medical staff are carefully trained in these procedures and that the tubes and equipment used by them (which I have inspected) are specifically designed to avoid this type of injury. On balance I think it very unlikely that the pharyngeal tear was solely attributable to any medical procedures. If, however, the tear was already present, it is possible, as both Professor Fleming and Mr Kuo accepted, that in the course of such a procedure (for example the passing of the nasogastric tube) the tear may have been reopened or enlarged.

[132]As Miss Cook and Miss Phillips acknowledge in their final submissions, both the experts and the treating clinicians struggled to give a clear picture as to a precise length of time for the presence of the tear. The picture is unclear because the impression from all the professionals was that this was not something they came across in this context often or at all. The one consistent feature as to the timing from each professional was that this was not a new or recent injury. Timing of the injury would be further complicated if the tear had been reopened or enlarged by an intervening event such as a medical procedure.

[133]I find force in the local authority’s submission that the pharyngeal tear could have been present before the 5th January. The success of the jaw thrust procedure carried out on that date suggests that the obstruction causing the breathing difficulties was in the oropharynx. Furthermore, as pointed out by Professor Fleming in his oral evidence, it is possible that the tear could have been missed during the bronchoscopy carried out on 9th January, since, as he said, the posterior pharyngeal wall is not one of the main places you are trying to look at during such procedures. In his evidence, Dr. Walker, who carried out the procedure, said that this was not an area that he would be particularly looking at during the procedure. I also accept the evidence, in particular of Mr Kuo, that it was possible that the pharyngeal tear could have been missed during the flexible nasal endoscopy carried out on 11th January. As Mr Kuo pointed out, the reason why such a tear might have been missed in such examinations is that it is an unusual finding so the operator would not be looking for it, but also because the mouth was not stented open on the procedures on 9th or 11th January in contrast with the procedure carried out on 15th. Likewise, a baby can not be asked to stick out its tongue in the way that an adult can so there is greater difficulty in carrying out the examination.

[134]It was certainly the view of at least some of the hospital medical staff that the discovery of the pharyngeal tear on 15th January, coupled with the presence of the cotton wool, was a sufficient explanation for all the symptoms of bleeding that had been witnessed. This reinforces the local authority’s suggestion that the pharyngeal tear was present from an early stage, prior to the admission to Southampton.

THE COTTON WOOL

[135]I turn to the next finding sought by the local authority – one that is, if possible, even more unusual than the pharyngeal tear – namely that the piece of cotton wool found in E’s oesophagus during the endoscopy performed on 15th January was lodged there as a result of a non-accidental intervention of one of her parents.

[136]During the hearing, the following facts have been clearly established about this incident.(1) Forensic examination has concluded that the components of the cotton wool found in her oesophagus were consistent with that used at the hospital in Southampton, but also available elsewhere.

(2) When retrieved from the oesophagus, the cotton wool was covered in debris and slough. From that, the doctors, in particular Mrs Burgess, concluded that it had been present for at least 24 hours.

(3) At the age of 10 weeks, E did not have the coordination to grab some cotton wool and put it in her mouth.

(4) A piece of cotton wool accidentally introduced into her mouth could not have worked its way down into her oesophagus by normal processes since, as Professor Fleming confirmed, at her age the swallowing mechanism was not fully developed.

[137]The questions to be determined on this issue are(1) how did the cotton wool get into her mouth;

(2) how did it get from her mouth to her oesophagus and

(3) if possible when did this happen.

[138]The possible ways in which the cotton wool might have got into her mouth are(1) from the makeshift pacifier;

(2) accidentally, during nursing or medical procedures or

(3) deliberately by a parent or other adult.

[139]Initially, some of the doctors and nurses seemed reluctant to accept that a makeshift dummy, using a teat filled with cotton wool, had been used in E’s care. As the investigation and hearing proceeded, however, it became manifestly clear that such a makeshift teat had indeed been used on two days during E’s admission to the hospital in Southampton, the 9th and 10th January, when she was on the PICU. The two nurses who accepted that this had indeed happened while they were on duty were Nurse Du Preez and Nurse Jenkins. Nurse Du Preez thought it had been gauze rather than cotton wool that had been used inside the teat and that the back of the teat had been partially sealed by tape. Nurse Jenkins, on the other hand, accepted that, at least on the day when she was on duty, cotton wool had been used and packed firmly in place in the teat, but that the back of the teat had not been sealed by tape. She accepted that the teat had been used as a comforter for several hours on 10th January. What happened to it is unclear. There is no record about it after she was transferred from the PICU to the normal ward G3, although the parents recall seeing it on G3 and in evidence the mother said that she had seen it in E’s cot there.

[140]In his report, Professor Fleming made a number of observations about this. In particular, he said:

“The use of makeshift dummies prepared in this way, the cotton wool being inserted in order to prevent the baby sucking excess air into their oesophagus and stomach, was in the past extremely common and despite having worked in infant wards and neonatal units where this practice was widely adopted over a period of very many years, I have never seen or heard of a baby accidentally ingesting cotton wool obtained from the bottle teat. The hole in the teat is far too small to allow cotton wool to pass through it except for the occasional strand. In order for a piece of cotton wool of the size identified in E to get into her oropharynx, it would, by necessity, have had to come from the back of the teat and unless a large piece of cotton wool was extremely loosely inserted into the back of the teat such that it was in danger of falling out spontaneously, it is very hard to imagine how a very small baby could obtain such a piece of cotton wool in their mouth without it being placed there by an older individual. ”

In oral evidence, he added that if the teat was in place, even had cotton wool come out of the back of the rim, the teat in the mouth would have prevented it from entering her mouth. A further point made by the local authority is that neither the mother or the father saw any of the cotton wool escaping from or protruding from the rim end of the teat.

[141]On behalf of the parents, Miss Branigan and Mr Storey invite the court to exercise caution when accepting the evidence of the nurses, bearing in mind the fact that there has plainly been discussion between hospital staff about what had happened, and the inevitable tendency of staff to be defensive about this issue. I have taken this into account, but, bearing in mind the evidence of Professor Fleming and the age of the child, I conclude that it is extremely unlikely that cotton wool from the makeshift dummy found its way into E’s mouth.

[142]I therefore conclude that the cotton wool was placed in E’s mouth by an adult. One possibility is that it was placed there in the course of nursing care or medical procedures, and then accidentally left in position. I have considered this option and thought again about the submissions made on behalf of the parents concerning the defensive attitude of the hospital staff and the possibility that a member of that staff could be concealing information. Having considered that possibility, I conclude that it is remote. Nurse Stranaghan told the court that the only use of cotton wool was to clean E’s bottom. It was not used for any purpose around her face, except with the makeshift dummy.

[143]If the cotton wool was placed in E’s mouth by an adult acting deliberately, the next question is how the cotton wool entered the oesophagus.

[144]As set out above, because of E’s age and immaturity, the cotton wool cannot have got into her oesophagus through the process of swallowing. It must therefore have been pushed into the oesophagus by some person. On this point, the possibilities are(1) that it was pushed there deliberately by one or other of the parents or

(2) that it was pushed inadvertently in the course of medical procedures.

[145]The second option has been exhaustively analysed by counsel, in particular by Miss Cook and Miss Phillips on behalf of the local authority. They rely in particular on the observation of Professor Fleming in his report:

“Whilst it is of course possible that a piece of cotton wool which had accidentally found its way into E’s mouth could have been pushed down into the oesophagus by the insertion of an orogastric or nasogastric tube, this seems inherently unlikely as in the process a piece of cotton wool the size removed from E would at the point it reached the oropharynx have provided substantial resistance to breathing and caused signs of obstructed air flow.”

[146]Miss Cook and Miss Phillips acknowledge the difficulties experienced in passing an orogastric and nasogastric tube, in particular in the hospital in Southampton on 11th January, but submit, relying on the evidence of Mr Kuo that, if the cotton wool had still been in the oral cavity at that point, it would in all probability have been seen during the flexible nasendoscopy performed earlier that day. Furthermore, they rely on Mr Kuo’s evidence that a nasogastric tube would have been too flexible to push the object downwards. On the other hand, Miss Burgess agreed in cross-examination by Mr. Storey that it was unknown whether the cotton wool had started somewhere else and been moved into the oesophagus by the instruments.

[147]In reply, Miss Branigan points out that there is no evidence of any description of either parent behaving in such a way as to raise the possibility that they were inserting or had inserted cotton wool into E’s oesophagus. There are in fact no observations of either parent handling cotton wool at all in the hospital. She points out that any number of individuals have had access to E during her admission in Southampton. She points out that findings of fact have to be based on the evidence and proper inferences from that evidence but cannot be based on speculation or suspicion. Given the local authority’s case to the effect that it is not known when the cotton wool entered the oesophagus, she submits that to make the finding invited by the local authority on this issue would fall squarely within the category of speculation or suspicion.

[148]I also take into account the sheer improbability that a parent would deliberately push a piece of cotton wool into a child’s oesophagus.

RIB FRACTURES

[149]Expert evidence concerning the rib fractures was provided by Dr Andrew Watt, consultant paediatric radiologist. His observations as to the presence and dating of the fractures was substantially the same as those of Dr Fairhurst, the consultant radiologist at Southampton who originally reported on the x-rays.

[150]In this case, there were an unusually large number of chest x-rays performed on E because of the ongoing concerns about her respiratory problems at Southampton. Dr Watt reports no evidence of fractures on the two x-rays carried out at different times on 6th January, nor on the three x-rays carried out at different times on 11th January. On the x-ray dated 14th January, he noticed some equivocal irregularity of the left sixth rib. On the chest x-ray dated 17th January, he noted fractures of the left fifth and sixth ribs laterally, with no evidence of callus formation. On the skeletal survey carried out later on 17th January, he noticed:

“The ribs and long bones appear somewhat osteopaenic with mild cortical thinning, best seen around the knees. The skull appears mildly scaphocephalic. There are fractures of the left fifth and sixth ribs laterally and the right third, fourth and fifth ribs laterally. None of the fractures show any evidence of callus formation.”

[151]In the CT scan of the chest carried out on 17th January, Dr Watt noticed fractures of the right second, third, fourth and fifth anterolaterally, and fractures of the left second, third, fourth, fifth and sixth ribs laterally. None of the fractures showed any evidence of healing of callus formation. On the second two chest x-rays carried out on 18th and 22nd January, Dr Watt again noticed no evidence or callus formation at the known fracture sites. X-rays carried out back at Derriford on 29th January show the healing fractures with evidence of soft callus formation consistent in Dr Watt’s view with a radiographic age of 1 – 3 weeks prior to the date of the x-ray.

[152]Dr Watt reminded the court that rib fractures heal by new bone callus formation which only becomes visible after 1 week in the majority of cases. Prior to this, rib fractures can be identified when they are separated but are often not seen until the healing process starts. In this case, the large number of x-rays taken enabled Dr Watt to narrow the time window when the fractures occurred. His opinion, refined in oral evidence, was that the earliest date on which they could have occurred was approximately 10th January, and the latest date was 14th January. In the circumstances, I agree with the submission made by Miss Cook and Miss Phillips that the fractures occurred between 10th and 14th January.

[153]The fractures are in a linear pattern, and in Dr Watt’s opinion this indicates that they are likely to be the result of one episode of chest trauma. Dr Watt advises that the mechanism of injury for this type of fracture is a compressive force to the chest from front to back. Dr Watt advises that rib fractures are identified in the literature as a type of injury that has a high specificity for non-accidental injury, although this is especially so for posterior fractures whereas the fractures in this case were anterolateral. In oral evidence, Professor Fleming described the distribution of these fractures as “very unusual” it was not a pattern that he had seen either in the context of accidental or non-accidental injury and he was unable to speculate as to the mechanism which could explain the fractures

[154]After sustaining a fracture, a child will demonstrate pain, but undisplaced fractures in infants can be variable in terms of symptoms as they commonly do not show significant clinical findings. Dr Watt would have expected a carer present at the time to have realised that an injury had taken place but would not expect a carer or any other person not present at the time to necessarily be able to identify that a significant injury had occurred or that an injury was now present.

[155]The x-rays demonstrated that E suffered a mild degree of osteopaenia. As she was born at 28 weeks, E was at risk of suffering from bone disease of prematurity and Dr Watt concluded on the basis of the radiographic evidcnce alone that it was probable that she was suffering from this condition to a degree. In oral evidence, he confirmed that it had been shown that there has to be between 25 and 40 per cent of bone loss before osteopaenia is detected radiologically, but it is not possible to say how that translates to bone strength. He agreed with Mr Storey in cross-examination that the more premature a baby is the more likely it is that she would suffer from bone disease of prematurity. He further agreed that the literature showed that fractures caused by such diseases particularly occurred between the ages of 10 weeks and 6 months. Rib fractures in particular are associated with premature birth but often go undetected. Dr Watt therefore included osteopaenia as a potential mitigating explanation for the presence of the rib fractures in E’s case. Osteopaenia is known to result in weakened bone strength which could predispose a baby to fractures occurring with otherwise normal handling, such as chest physiotherapy. As recorded above, E was given chest physiotherapy on a number of occasions during her stay in Southampton to alleviate the problem of respiratory arrest and secretions.

[156]Further expert opinion was provided on this topic by Professor Fleming, who addressed in particular the issue of osteopaenia in prematurity. He advised in his report that it has for many years been recognised that babies born extremely prematurely are at high risk of poor bone mineralisation as the ability to ingest, absorb and lay down the mineral content of normal bone is severely compromised by the difficulty in providing adequate calcium and phosphate nutrition in the post-natal period. The prevalence and severity of osteopaenia of prematurity can be reduced substantially by the early introduction of routine phosphate supplements in the feeds and by the use of supplemented feeds specifically developed for the pre-term infants. In this case, E was provided with routine phosphate supplements and special supplemented feeds. Research has attempted to quantify the relationship between related bio-chemical parameters such as blood alkaline phosphatase levels, and the risk of infants developing osteopaenia. In this case, Professor Fleming notes that E did not have extremely high levels of alkaline phosphatase at any time, nor did she have significantly low levels of phosphate during the early neonatal period. Research has shown, however, that, even in the absence of gross elevation of alkaline phosphatase or severly low levels of organic phosphate, some infants nevertheless had features of osteopaenia and developed rib fractures. Thus in this case Professor Fleming advises that the “relatively mild” radiological and biochemical indicators of potential osteopaenia must be considered alongside the rib fractures.

[157]In the experts’ meeting, Professor Fleming said that he had seen many children with less osteopaenia who had presented with fractures and, on the other hand, many children with far less dense bones who had not presented with fractures. The lack of correlation is one of the difficulties faced in clinics in assessing bones in growing ex-premature infants. Overall, there was nothing to rule out osteopaenia but there was nothing to suggest that E was at high risk. He added, however, that whilst it seemed unlikely to him that physiotherapy could cause a fracture even the presence of mild osteopaenia “we have too many gaps in our knowledge and understanding of bone strength and how it works for me to be able to say categorically that I am confident it wouldn’t have happened.” However, whilst he had seen fractures in children with osteopaenia that had been attributed to chest physiotherapy, he added:

“I have never seen this extent and this spread of fractures in a child with, at most, mild osteopaenia that was clearly related to chest physiotherapy.”

Dr Watt agreed. He had only previously seen this number of rib fractures in premature babies where they had severe bone disease. The two experts therefore agreed that, whilst physiotherapy was a possible explanation of E’s fractures, the more probable explanation was that this was an inflicted injury.

[158]In submissions, Miss Branigan points to what she describes as “the overwhelming difficulty for the court”, namely that there is no report on the level of distress from E which would have been expected at the time the fractures were inflicted, nor any reported distress on subsequent handling. This is of particular significance because E was being repeatedly handled by a number of nurses and other professionals in hospital during the window when the fractures occurred. For some of this period, she was sedated and/or intubated and therefore might not have demonstrated any symptoms of pain or distress. Nonetheless, for significant periods during the time window, she was not sedated and nothing was seen. When she was on PICU, the vast majority of the handling of E, including all routine cares and physiotherapy, was undertaken by nursing or medical staff. In reply, Miss Cook points to the fact that, during the period when E was on ward G3, the degree of nursing supervision was much less, and the parents were able to handle her more freely. So far as the lack of distress is concerned, Miss Cook simply points to the fact that it is beyond doubt that these fractures were sustained so that the court is not assisted by the lack of pain response as an indicator of the timing or causation of the rib fractures.

[159]On behalf of the father, Mr Storey added that it was difficult to see how the parents could have caused the fractures without this being detected by a member of staff or by another patient.

[160]On behalf of the local authority, Miss Cook and Miss Phillips rely on the fact that, by the time of her discharge from the Derriford neo-natal unit, there were no biochemical markers to suggest osteopaenia so that her supplemental feeds had been stopped. During her stay in Southampton, E was in the care of specialist nurses on all three wards. The nurses were trained in physiotherapy techniques. Nurse Du Preez, who carried out physiotherapy on E and also gave evidence, said that the force applied was equivalent to that used when winding a baby after feeding. Although the parents expressed concern (although not at the time) about the degree of force used, the demonstration given by the father of what he had seen did not suggest a particularly vigorous use of force.

[161]The local authority’s case is that, even if one were to accept that E may have had a mild degree of osteopaenia, there was nothing to account for the significant extensive bilateral fractures that she sustained between 10th and 14th January. The court should exclude the suggestion that this could have occurred as a result of normal handling or therapy and conclude that this was an injury inflicted by one of the parents.

SWOLLEN ARYTENOIDS AND OTHER SIGNS ON 17TH JANUARY

[162]The examination on 17th January by Dr Connett and Dr Hyde revealed that E had increased redness and swelling of the laryngeal inlet and in particular a very swollen right arytenoid which was causing obstruction to her airway. These signs had not been present on 15th January. The local authority therefore asserts that they were caused by a further act of intentional inflicted trauma between 15th and 17th January. Professor Fleming and Mr Kuo have both expressed the view that the likeliest explanation for this sign is trauma.

[163]There are, however, four significant difficulties in making this finding sought by the local authority.

[164]The first is the lack of photographs of this procedure. Much has been made of this point and, as already indicated, I absolve Dr Connett of any improper motive arising out of this failure. But for whatever reason the fact remains that no photographs of this procedure are available to be examined by the experts in this case or the court.

[165]Secondly, E had swelling of her arytenoids on other occasions, including several weeks later on 25th March when examined by Mr Rainsbury. It was thought that this might attributable to a medical cause (reflux) although the swelling is much less marked than that seen on 15th January.

[166]Thirdly, I take into account the large number of examinations and intubations performed on E during her admission to hospital in Southampton and remind myself again that the level of intrusion was described by Professor Fleming as extremely uncommon. In his report, Professor Fleming said:

“Although damage to the larynx can be cause by inexpert or repeated laryngoscopy and intubation, the damage is most commonly seen around the vocal cords and the portion of the trachea immediately below the vocal chords. Trauma from repeated intubation very rarely affects the arytenoids or the aryepiglottis folds.”

No further procedure had been performed on E after 15th January. Mr Kuo thought that the examination on 15th January would have been “pretty gentle” and that E would have subsequently been given doses of steroids to ensure that such swelling did not occur. Furthermore, E’s condition improved after 15th January before deteriorating again before the procedure on the 17th was carried out.

[167]Nevertheless, it seems to me that the procedure carried out on 15th January, which included endoscopy and laryngoscopy and bronchoscopy, was a significant procedure which was significantly intrusive, against the “extremely uncommon” history of repeated examinations and intubations over the proceeding 10 days. I therefore consider it possible that the swelling was attributable to the succession of examinations and intubations given to E during her admission to hospital in Southampton.

[168]Finally, it is manifestly clear that, following the findings made on the 15th January, the finger of suspicion was being pointed firmly at the parents. Child protection procedures were put in place. The degree of suspicion and the activity of the hospital staff is fully described in Dr Steele’s running log. E was on the PICU with a high level of monitoring. My inspection of the PICU left me with the clear impression that it would be very difficult for a parent to inflict an injury to a child’s throat in the unit at any time. Given the suspicion that surrounded the parents after 15th January, there would have been little if any opportunity for one or other of the parents to have inflicted this injury during the period between the 15th and 17th January procedures.

I’S FINGER

[169]In his report, Dr Watt identifies I’s finger fracture as a “buckle fracture of the base of the proximal phalanx of the left little finger”, consistent with an indirect bending force being applied to the little finger. He and Professor Fleming agree that it is a very unusual injury for a child of I’s age at the time, given her lack of mobility. Professor Fleming has seen it once or twice in 30 or 40 years as a treating paediatrician and Dr Watt, two or three times in about 10 years. Professor Fleming pointed out that they may be more common than is realized given the low incidence and reluctance to x-ray children’s fingers. According to Dr. Watt, such fractures are more commonly found in older, mobile children who may fall onto their hands.

[170]The local authority rely in particular on the fact that this was perceived as an unexplained accident, a conclusion to which Dr. Adcock adhered when she gave evidence before me. The experts, Professor Fleming and Dr. Watt, agreed that the most likely cause was an unwitnessed accident but that did not exclude non-accidental injury as a possibility. The local authority point out that this was in fact the second unexplained accident that I had experienced, following her head injury a few months earlier. Miss Cook and Miss Phillips also rely on the fact that the account of I playing with a toy with wooden beads on elastic and crying and being in discomfort was not given until some time after the fracture was discovered. They also submit that it was odd that the mother was insistent that the finger may be fractured when the doctors advised that it probably was not, and also odd that she was difficult about the suggestion that I undergo a skeletal survey, given the fact that she had been so determined to press her concerns about the finger.

[171]The local authority ask the court to recall the context in which this injury occurred. They point to the mother’s difficult history, an aspect to which the professionals at the time paid careful attention, and to more recent issues – the evidence that suggests that the mother had some history of post-natal depression, and had been stressed living with the father’s parents. Miss Cook and Miss Phillips also point to the father’s approach to the GP seeking counselling and anger management. All of these features, however, date from some months before I’s injury. More immediately, she had received a reminder of unhappy experiences when a girl, who had bullied her at school, had seen her in the street and been verbally abusive.

[172]On behalf of the mother, Miss Branigan and Mr. Powell rely on the experts’ conclusion, submit that there is no evidence that would enable the court to reach the conclusion that this is an inflicted, non-accidental injury, and invite the court to conclude that the finding sought “does not begin to get off the ground”. They submit that it makes no sense that a parent would repeatedly present their child for examination knowing that they had inflicted the very injury in respect of which medical assistance is sought. Mr Storey and Mrs Storey-Rea stress the thoroughness of the investigation carried out by Dr. Adcock before she reached her conclusion, and the observation of Dr. Watt that, given that investigation and conclusion, it was difficult for him now to conclude otherwise.

[173]But for the subsequent events that occurred involving E, it is very unlikely that the inquiry into I’s fractured finger would have been re-opened. In view of what subsequently transpired, however, it is undeniably correct that this court must review the incident as part of its survey of the wider canvas. As Butler-Sloss P observed in Re U, Re B , the court must have regard to the relevance of each piece of evidence to other evidence and exercise an overview of the totality of the evidence in order to come to its conclusion.

CONCLUSIONS AS TO INJURIES

[174]As set out above, so far as the earlier incidents of bleeding are concerned, I find Professor Fleming’s analysis in his oral evidence persuasive and I do consider that Mr Kuo effectively abandoned his earlier interpretation of aspirative pneumonia. Other than trauma, all other known explanations for the bleeding have been excluded. I bear in mind, of course, the possibility of the unknown cause. On balance, however, I am satisfied to a high degree of probability that the bleeding seen on 2nd January and 4th January was attributable to trauma, and that the trauma led to swelling which thereafter contributed to the child’s respiratory distress.

[175]If, as I find, the cause of the initial episodes of bleeding in the early days of January was trauma, and as a result a wound or lesion was present but undetected for 10 days, it makes it more likely in my judgment that all the subsequent episodes of bleeding were attributable to re-bleeding caused by the medical interventions – examinations, intubations, and the adjustment of the tubes, or even perhaps the mere presence of the tubes alongside the damaged area.

[176]Having considered all the evidence separately and together, I conclude on a balance of probabilities that the pharyngeal tear was present before E’s admission to hospital on 4th January, and that it was this that caused the trauma that caused this bleeding seen on 2nd and 4th January. Professor Fleming and Mr. Kuo considered that this was a possibility, as did the clinicians who conducted the laryngoscopy and bronchosopy on 15th January, and other clinicians at the hospital. I have considered but on balance rejected the suggestion that it was inflicted in the course of a medical procedure. I accept, however, that such procedures probably exacerbated and enlarged the wound.

[177]In the absence of any history of accident or conceivable innocent explanation to account for the presence of the tear, I conclude that it was inflicted by one of the parents. I shall consider the issue of perpetrator below.

[178]I have thought long and hard about the finding of cotton wool in the oesophagus. Ultimately, I conclude that the evidence is too unclear to enable me to find how the cotton wool found its way into E’s mouth or into her oesophagus. Having carefully considered all the submission made on this issue, and revisited all the evidence, I find that the local authority has not proved that the cotton wool was either put in her mouth or pushed into the oesophagus by the deliberate action of one or other of the parents. It is possible that this occurred, but the local authority has not persuaded me on the balance of probabilities that this is what happened.

[179]As to the rib fractures, after lengthy and careful consideration, I again conclude that the local authority has not satisfied me on a balance of probabilities that they were inflicted by the parents. It is possible that they were but it is at least equally possible that they could have arisen in the course of the various medical procedures. The presence of osteopaenia to a degree at which it is detectible radiologically means that there was a significant volume of bone loss. The impact of this on bone strength is uncertain. Given the degree of handling of the baby by a variety of people in hospital, and the unusual nature of the injuries, which, being anterior-lateral, are not in the position normally associated with non-accidental injury, I find that there is too much uncertainty about the fractures to enable me to make the finding sought by the local authority.

[180]I reach a similar conclusion about the injuries seen in the procedure carried out on 17th January. Having regard to the factors identified above, I conclude the local authority has not proved on the balance of probabilities that the swelling to arytenoids and other signs seen were attributable to acts of further trauma inflicted by one of the parents between the 15th and 17th January. I find in particular that the local authority has not proved that the parents had any opportunity to injure the child during that period.

[181]I have carefully reviewed the history of I’s fractured finger. Although there was suspicion at the time of the injury and immediately afterwards that it may have been inflicted non-accidentally, the conclusion ultimately reached by the clinicians who treated I was that it was an unexplained accident. Now the local authority submit that the finding must be reconsidered in the light of subsequent events concerning E. I agree, but having reviewed the history of I’s injury in the light of my analysis of the evidence concerning E’s injuries, and bearing in mind the views of the experts in this case, I again find that the local authority has not proved on a balance of probabilities that I’s fractured finger was inflicted non-accidentally.

THE PERPETRATOR

[182]I remind myself that the test for a finding as to the identity of the perpetrator of injuries to children is the balance of probabilities, and that the test of whether a particular person is in the pool of possible perpetrators is whether there is a likelihood or a real possibility that he or she was the perpetrator.

[183]Here, the local authority does not invite the court to make a finding as to perpetrator, merely that it was either the mother or the father. Nevertheless, it is incumbent on the court, in the interests of the children, to analyse the evidence and, if possible, make a finding.

[184]In this case, I am satisfied to a high degree of probability that the E’s pharyngeal tear was inflicted by the mother. Both parents agreed that the mother was alone with the children when the evidence of blood was first noticed on 2nd January. Importantly, the father was clearly absent from the home on 4th January, albeit for a short period, when E started bleeding from the mouth. I agree with Mr. Storey that it is therefore so unlikely to have been the father who was responsible so as to enable the court to exclude him as a perpetrator. As stated above, I found the father to be an essentially truthful witness, and I believed him when he said that he did not injure his child. In contrast, I found the mother to be less than frank in her cross-examination about the events of 2nd and 4th January.

[185]The circumstances in which the mother came to cause the tear, and her motives for doing so, are unclear, but I am satisfied that she did so, and that as a result E suffered significant harm.

INDUCED ILLNESS

[186]At the outset, it was the local authority’s case that the pattern of injuries sustained by the children indicated that this was a case of induced illness or injury. In closing submissions, Miss Cook and Miss Phillips identified a number of features from the history in support of this contention. I have considered all of these points. They rely in particular on the observation made by Professor Fleming that “the combination of observations which were not all available at the same time, and putting them together one raises the possibility of the fabricated or induced illness”. They also cite the evidence of Professor Roberts, who was the first clinician to raise the possibility of induced illness. They point to the mother’s unsettled history, including incidents of self harm, and her anxiety. They also cite some odd incidents in the history such as the fact that the parents had lost the record of the oxygen download carried out 27th December, and the video-recording of E’s breathing difficulties on 2nd January.

[187]Crucially, however, the local authority’s case on this issue turned on the interpretation of a pattern of behaviour. Given my findings on the individual allegations of abuse, which though serious are substantially fewer than sought by the local authority, I do not think that the allegation of induced illness is proved on a balance of probabilities. It is possible that the mother may have inflicted the pharyngeal tear in order to mimic the symptoms of illness, but equally there may be other interpretations. I apprehend that there will be further assessments in which the issue of the mother’s motivation for this behaviour will be fully analysed. In the circumstances, it is neither necessary nor desirable at this stage for the court to make a finding as to why this injury was inflicted.

FAILURE TO PROTECT

[188]The local authority seeks a finding that the parent who is not the perpetrator of the injuries has closed their mind to the possibility that the other has caused the injuries and that closed mind prevents them from being able to protect their daughters at this time. Specifically so far as the father is concerned, Miss Cook and Miss Phillips submit that he minimises, is protective of the mother, and was unwilling to be open or honest.

[189]On behalf of the father, Mr. Storey submits that there must be some knowledge or intent associated with a failure to protect. Given the complexity of the evidence, the unusual nature of the injuries, the difficulties which the clinicians and experts found in piecing together the picture, the fact that this hearing has taken so long to investigate the matter, the twists and turns in the evidence, he submits that it is impossible to find that the father either knew of or ought to have known that his children were at risk or that the mother might be a threat to their safety. I agree.

[190]I have already indicated that I accept the father’s evidence. At no point during his evidence did I have any sense that he was either covering up for the mother or turning a blind eye to her behaviour. I find that he genuinely had no idea that she had injured E, nor in the circumstances can he be criticised for not raising any suspicions. The fact that he has stood by his partner up to now does not mean that he has up to this point failed to protect them. It remains to be seen what will now happen in the light of this judgment.

[191]The parties will need time to digest this long judgment and I shall therefore now adjourn the case to a date to be fixed a few weeks hence when the future of the proceedings can be further considered. In the interim, the current arrangements for the care of the children will continue.

Cited in 14 later judgments

and 5 more of the most senior