Torbay Councl v A Mother & Ors [2014] EWHC 479 (Fam)

IMPORTANT NOTICEThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) 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 child and members of his 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.Case No TZ12C00928[2014] EWHC 479 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF JG (A CHILD)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/02/2014
Before
THE HONOURABLE MR JUSTICE BAKER
Between
TORBAY COUNCLApplicantA MOTHER (1)RespondentsA FATHER (2)RespondentJG (by his children’s guardian) (3)Respondent
Susan Campbell QC and Deborah Archer (instructed by Local Authority Legal Services) for ApplicantTina Cook QC and Mark Whitehall (instructed by WBW Solicitors) for MotherPaul Storey QC and Alexa Storey-Rea (instructed by Tozers LLP) for FatherKathryn Skellorn (instructed by Wollen Michelmore) for GuardianHearing Hearing dates: 20 th– 24 th January, 27 th to 31 st January, 5 th, 6 th and 14 th February 2014
JudgmentThe Honourable Mr. Justice Baker :
[1]These care proceedings concern a little boy called J, but this judgment will in fact focus on the short life of his younger brother, R, who died at the age of 38 days. The local authority asserts that R’s death resulted from injuries inflicted by his father. As a result, it is claimed that at the start of these proceedings shortly after R’s death, there was a likelihood that J would suffer significant harm in the care of his parents, so as to justify the making of a care or supervision order under s.31 of the Children Act 1989

BACKGROUND HISTORY

[2]The father was born in 1990 and therefore is now aged 23. The mother was born in 1993 and is therefore now 21.[3]The father suffers from some learning difficulties, summarised in a report prepared for these proceedings by Dr Susan Candy, a consultant clinical psychologist. Her assessment of his cognitive abilities revealed an uneven profile and therefore no overall IQ score. His verbal comprehension index falls in the average range, his perceptual reasoning abilities are in the low average range, but his processing speed and working memory abilities both fall within the exceptionally low range. Dr Candy concluded that the father does not have a learning disability but does have some specific learning difficulties consistent with dyslexia or other psychological processing problems. An assessment of his suggestibility and compliance indicated that these were well within the average range and do not raise any specific concerns. Furthermore, he demonstrated adequate understanding of, and ability to retain, the necessary information to make decisions and give instructions in respect of the issues in these proceedings, although he was somewhat confused about the role of the family proceedings as opposed to the potential criminal proceedings. In his evidence, the paternal grandfather confirmed that, in his experience, the father finds it difficult to describe accurately things that happened in the past. Dr Candy concluded that, although he had capacity to instruct his lawyers in these proceedings, his difficulties with working memory and processing speed indicated that he would require additional time to take in and think about issues arising during the proceedings.[4]Dr Candy’s findings have been in the forefront of my mind throughout this hearing. To assist the father, there have been regular breaks in the hearing, and his own evidence was adjourned early one afternoon when it became clear that there was a danger that, after several hours in the witness box, his difficulties were undermining the reliability of his evidence. I have taken his difficulties into account, not only in the conduct of the hearing, but also in my analysis of his evidence, and in particular his various accounts of how R sustained his fatal injuries, on which so much of this case turns.[5]Resuming the summary of the history of the case, the father’s parents separated when he was very young and for the first few years of his life he lived with his mother and her new partner. There is a suggestion in the papers that the father was abused during this period but this has never been properly investigated or proved. In his own evidence before me, the father alluded to this matter but was clearly uncomfortable talking about the matter, and it was unnecessary for the court to investigate it any further.[6]At the age of seven, the father moved to live with his own father and his new partner in Devon. His behaviour became very difficult and, following the involvement of social services, he moved to a special school. After a few years, he moved to a special boarding school to deal with his particular behavioural problems. In his evidence, the paternal grandfather said that the father had a rosy-view of his childhood. Since leaving school, the father has worked steadily and impressively in the retail industry. He manifestly enjoys his work.[7]The parents met in 2010 and started a relationship. In early 2011, the mother discovered she was pregnant. In June 2011, the parties separated. On 14th September, the mother gave birth to her first child, J. At that stage, she was still living with her own family. The parents then reconciled and the father moved into the family home.[8]In March 2012, the mother discovered that she was pregnant for a second time. Two weeks later, the father moved out of the home. Shortly afterwards, the mother consulted her GP expressing concerns about her relationship with her own brother who had his own behavioural difficulties, and with the assistance of social services she moved into her own flat, above a shop, and opposite another shop run by her father. In September 2012, the mother was admitted to hospital with vaginal bleeding but was discharged on the following day after investigations established that the baby was well. Later that month, the parents reconciled again and the father moved into the flat with the mother and J.[9]On 18th October 2012, the mother gave birth to her second son, R. His progress in hospital was good and he was discharged home. When seen by the health visitor on 31st October, he was growing normally and there were no concerns. The mother was seen to be handling R appropriately, he was appropriately clothed and clean. He was described as “a content baby with satisfactory weight gain”.[10]The parents agree that this was a happy period for the family. The father had been welcomed unconditionally by the mother’s parents. The family settled into a routine under which the father got up most nights to attend to R, whereas the mother continued to look after J who normally woke up whenever his younger brother woke for a feed. The second bedroom in the flat was full of the maternal grandparents’ belongings because they were in the process of moving accommodation. As a result, the family all slept in one room, with R sleeping in a wooden cot and J sleeping either in a travel cot or in bed with the parents. The mother agreed in oral evidence that the father was more than happy to get up at night to look after R. At this stage, the evidence is that the relationship between the parents was good, and they were generally happy being in the flat. The mother agreed in cross-examination that the father loved the boys.[11]R was seen again by the health visitor on 6th November and 13th November and his general condition was found to be good, although he was seen to have a scratch on the end of his nose. The mother, however, was thought to be suffering from post-natal depression, and she was therefore referred to the GP who saw her on 13th November. She told him that at that time she had thought about harming herself although she had no real intention of doing so. The GP referred the mother to the mental health service. On the following day, R was seen by the GP who examined him thoroughly and found no marks save for the scratch at the end of his nose. Nothing was said or seen that caused the GP any concerns. On 22nd November, R was seen again by the health visitor. His weight gain was still good but on this occasion he was thought to have signs of impetigo on his nose. The health visitor notes:
“a bit out of sorts today...still keen to feed, colour okay but has been pale”
. The mother reported that he had suffered from diarrhoea and vomiting. On the following day, the 23rd, the mother took R to the GP who described medication for impetigo. He noted that R was otherwise entirely well and seemed to be a normal healthy baby.[12]On the following day, Saturday 24th November, the mother spent the day at home with both children while the father went to work at the shop. The maternal grandmother visited briefly during the afternoon. At 6.30 pm, when the father returned from work, both boys were asleep, J on the sofa, R in his mother’s arms. Shortly afterwards, the mother went out to fetch a Chinese takeaway meal. During the night, according to the father, he got up about four times to attend to R.[13]On the following day, Sunday 25th, the father looked after R all day, preparing all his feeds. R slept through until about 11.30 am and then took a small amount of milk before falling asleep again. At 1 pm, the maternal grandmother arrived. A plan had been made for the mother, grandmother and J to go shopping, leaving the father at home with R. The father said, and the mother agreed in evidence, that he was entirely happy with this arrangement.[14]Shortly before they were due to leave, R woke up. The father got him out of the baby swing where he had been sleeping, took him into the bedroom and laid him on the bed. The grandmother later told the police that she went to the bathroom and when she came out she saw R lying on the bed in the bedroom with the father beside him. Previously, R had been wearing a sheepskin suit but the grandmother noticed that this had been removed and R was now wearing a green baby-gro. She assumed that it was the father who had changed his clothes. R was still crying whilst lying on the bed but the grandmother thought nothing of this as it sounded to her like his normal cry when he was hungry. The mother then gave the father a bottle of milk which he proceeded to give to R. The evidence is that he did this in an unusual position, crouching with one knee on the floor while holding the baby. When mother, grandmother and J left at about 3.15, the father was still feeding the baby.[15]The father has given a series of accounts about what happened after the mother and the others left the flat. These various accounts lie at the heart of this case, and I shall consider them in more detail below.[16]The mother and J returned to the flat at about 6 pm. The mother went into the bedroom to put her jacket away. She saw R lying on the bed but did not turn the light on. At 6.15 pm, the father went into the bedroom to collect a book. According to the mother, the father said on returning with the book:
“Oh R is still asleep, bless him”
. About one hour later, the mother went into the bedroom again where she found R white and unresponsive. She noticed that he was wearing a sleep suit with the hood up, and also a woollen hat. When she unzipped the sleep suit, she found that underneath he was wearing only a nappy.[17]The mother then ran across the road to the family shop to call the grandfather for help. At 7.09 pm, the father rang 999. The recording of the telephone call has been played in court. It indicates that the grandfather attempted cardio-pulmonary resuscitation on R with the assistance of the emergency services. The paramedics arrived at 7.12 pm. They found R lying on the floor of the living room in a state of cardiac arrest with a Glasgow score of 3 out of 15 and dilated pupils. The first responder took over from the grandfather in attempting to resuscitate the baby. The father took J away from the room and looked after him in the bedroom. There was evidence from one paramedic that he saw marks on R’s head during the attempts to resuscitate him but no marks were recorded on the ambulance recording sheets and the maternal grandfather said that he did not see any marks when carrying out the CPR. In the circumstances I do not think any weight can be attached to the paramedic’s evidence on this point. R was removed by ambulance from the property at 7.44 pm. Intensive efforts to revive him continued in the ambulance and after his arrival at hospital at about 8 pm. Those efforts were unsuccessful and he was declared dead at 9.17 pm.[18]One of the nurses at the hospital, Sharon Frawley, was assigned to attend to the body. In her police statement, she said that, when the decision was made to discontinue efforts to resuscitate, R went pale quickly and some marks on his forehead became more apparent. Shortly after midnight, R’s body was taken into the relatives’ room so that the parents and grandfather could have some time alone with the baby. R was handed to the mother to hold and she sat and cuddled him for a few minutes. Afterwards, the father held R. According to Nurse Frawley, he said:
“It doesn’t seem right that I held him when he was born and now I’m holding him and he is dead”
. Nurse Frawley described that he then started to look around R’s head. He was using his left hand to lift R’s head and as he did so he was looking around towards the back of the head, first on one side and then the other. When Nurse Frawley asked what was the matter, he replied:
“He seems to have some marks on his face. Has he got some marks on his head? I’m just checking.”
Nurse Frawley described how the father had seemed purposeful in what he was doing, using his left hand to raise R’s head forward and leaning over trying to look towards the back of his head. In her police statement, she said that she found his actions strange and she reported what she had seen to a paediatrician and then to a police officer. In oral evidence, she agreed with Mr Storey QC on behalf of the father that the father’s actions were not furtive but rather something he was doing openly in front of her.[19]Initially, there were no concerns that R’s death might have been inflicted. It was only when an initial post mortem examination discovered that he had sustained a fractured skull that suspicions were aroused. J was removed from the family under a police protection order and subsequently an emergency protection order was granted.[20]On 30th November, a post mortem examination was carried out by two pathologists, Professor Risdon and Dr Kiho. They in turn commissioned further histopathological studies. Meanwhile, the parents were both interviewed by police on 1st December and offered no explanation for the injuries. On 3rd December, however, the father attended the police station again after the paternal grandfather told a police liaison officer that the father wanted to speak to the police as he knew more about the circumstances of R’s death. Interviewed again under caution, the father indicated that R had struck the arm of the baby swing when he had taken him out to feed him on the afternoon of 25th November.[21]The local authority started care proceedings in respect of J. On 7th December, District Judge Arnold granted an interim care order, on the basis of a care plan which provided for J to be placed in local authority foster care.[22]On 21st December, the father attended the police station and was re-interviewed under caution. On this occasion, he described how he had dropped R after feeding him on the afternoon of 25th November. I have had the opportunity to consider the transcripts of all interviews, together with selected extracts of the DVD recordings.[23]Thereafter, the investigation was effectively put on hold pending the outcome of the post mortem examination. Ultimately, Professor Risdon and his team reported that, in addition to a fracture of the frontal bone of the skull, R had sustained bleeding within the skull and around the spine, and in his eyes. It was concluded that he had sustained a severe head injury involving rotational forces and an impact. At that point, the proceedings were transferred to the High Court and thereafter have been managed by me. The father was re-interviewed by the police in May.[24]Following R’s death and the father’s admission that he had withheld information about the events of the afternoon of 25th November, the parents had separated. During the course of 2013, however, it became clear that they continued to see each other on occasions. The mother alleges that, during some of these visits the father had become aggressive towards her. He had on occasions grabbed her mobile telephone and stopped her leaving his accommodation. In oral evidence, the father denied that he had been aggressive towards the mother, but he did accept that on one occasion he had tried to stop her leaving the flat and in the ensuing struggle he had pushed her backwards. He said that he did not want her to leave in a distressed state, that he had been trying to calm her down, and that he did not intend to push her as far as he had. “I was shocked at how far she had gone back. I didn’t intend to push her that far back. I only intended a little jolt. I was shocked how far back she went.” It should be noted that the mother is substantially larger than the father.[25]On 8th July, the father was charged with the murder of R. He was remanded in custody for six weeks. In evidence, he told me that he found his time on remand extremely difficult. At one point, he tried to hang himself. After six weeks, he was granted bail on certain conditions. Thereafter, he has had contact with J on only one occasion. The mother has continued to have contact on a supervised basis twice a week. The criminal trial is now listed for April 2014. Meanwhile, the care proceedings were timetabled through to a fact-finding hearing before me which took place in Plymouth starting on 20th January.

THE ISSUES AND HEARING

[26]The local authority seeks findings that R sustained injuries on the afternoon of 25th November that included a serious head injury that led to his death, plus further injuries to his eyes. On behalf of the local authority, Miss Campbell QC and Miss Archer add that:
“the court is asked to determine whether findings can be made in respect of the existence of additional earlier inflicted injuries”
. It is the local authority’s case that the injuries sustained on 25th November were inflicted by the father. Initially, the local authority contended that the mother could not be excluded from the pool of perpetrators, and in the alternative that, if the father was the perpetrator of the injuries, she had failed to protect R. At the conclusion of the hearing, however, the local authority indicated that it no longer pursued either finding against the mother.[27]The written evidence before the court includes, as is common in these cases, statements filed in these proceedings; a substantial volume of statements disclosed by the police; medical records; social services records; and reports from a number of expert witnesses, some instructed in the course of the police investigation, others as experts in these proceedings. The team of pathologists instructed in the course of the police investigation consisted of Professor Tony Risdon, consultant paediatric pathologist at Great Ormond Street Hospital, assisted by Dr Kiho, another consultant paediatric pathologist, Dr Thomas Jacqes, consultant neuro-pathologist and Dr John McCarthy, consultant histopathologist and ophthalmic pathologist at the Cheltenham General Hospital. The experts instructed in these proceedings were Dr Al-Sarraj, consultant neuro-pathologist at King’s College Hospital, Miss Gillian Adams, consultant ophthalmic surgeon, Professor Ian Hann, consultant haematologist, Mr Peter Richards, consultant neuro-surgeon at the John Radcliffe Hospital, Oxford, and Professor Peter Fleming, consultant paediatrician and professor of child health at Bristol University. In addition, as already mentioned, psychological reports on the parents were prepared by Dr Susan Candy.[28]The hearing took place over 12 days (some of which were curtailed for reasons unconnected with this case) between 20th January – 6th February 2014. For reasons set out above, there were regular breaks in the hearings to accommodate the father’s difficulties as identified by Dr Candy. Oral evidence was given by 22 witnesses comprising of eight experts (Professor Risdon, Professor Hann, Miss Adams, Dr Al-Sarraj, Dr Jacques, Mr Richards, Professor Fleming and Dr McCarthy); four paramedics and ambulance technicians; two police officers; Nurse Frawley; a health visitor; the maternal grandparents; the paternal grandparents; the mother and the father.[29]The court has again been greatly assisted by the very experienced counsel instructed on behalf of the parties who prepared helpful opening position statements, conducted examination and cross-examination and filed comprehensive closing submissions. Their work has been particularly helpful in this case.

THE LAW

[30]The law to be applied in care proceedings concerning allegations of child abuse is well-established. I have set it out in a number of reported cases, and have those principles, and the authorities from which they are derived, firmly in mind. What follows is a summary of those principles.[31]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. The standard of proof is the balance of probabilities. Findings of fact must be based on evidence and the court must be careful to avoid speculation. When considering cases of suspected child abuse, the court surveys a wide canvas and must take into account all the evidence and consider each piece of evidence in the context of all the other evidence. Cases involving allegations of non-accidental head injury will invariably include 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. It is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. 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. I bear in mind that medical opinion is evolving and that today’s medical certainty may be discarded by the next generation of experts and that scientific research may throw a light into corners that are at present dark. The court always bears in mind the possibility of the unknown cause. 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. In cases where a party or witness suffers from learning difficulties, the court must be extremely careful both to ensure that due consideration is given to those difficulties in the arrangements for the hearing, and in the assessment of that person’s evidence. 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). 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 although where it is impossible for a judge to identify the perpetrator on the balance of probabilities, he or she should not strain to do so. 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.

EXPERT EVIDENCE AS TO THE INJURIES

[32]The injuries sustained by R were, in summary: bruising to the head; a fracture of the frontal bone of the skull; intracranial and spinal bleeding and brain damage; damage to the eyes; and damage to the axons. I consider the expert medical evidence about these injuries in turn.

Bruising to the head

[33]Professor Risdon noted the following external evidence of bruising: i) A purple-red bruise measuring 2 x 1 cm situated on the right side of the forehead, whose lower margin extended to 0.5 cm above the lateral end of the right eyebrow; ii) A greyish area measuring 1 x 0.5 cm on the right cheek, 1 cm below the outer canthus on the right eye; iii) A bruise measuring 3.5 x 2 cm over the occipital region just to the right of the midline, visible only on reflection of the skull; and iv) A pinkish bruise measuring 1 x 0.5 cm over the middle phalanx of the left index finger. (It was accepted by the local authority that this bruise was not an injury inflicted non-accidentally.) During the examination, areas of bruising beneath the scalp were found that corresponded to the external lesions. In addition, Professor Risdon noted various other marks of indeterminate origin, said clinically to be attributable to impetigo, and also a number of other marks associated with medical intervention such as needle puncture marks.[34]Histological examination was carried on samples from the bruising to the head. In each case, intact red blood cells were identified but no haemosiderin. In oral evidence, Professor Risdon explained that, provided some circulation was occurring, an impact would lead to red blood cells leaking into surrounding tissue leading to bruising. If the heart had stopped, however, there was virtually no chance that the bruises on the head would have occurred. The absence of haemosiderin indicated that the bruises had occurred relatively recently, since haemosiderin requires two or three days with circulation to appear. The evidence suggests that the impact that caused the bruises occurred not more than two days prior to death.

Skull fracture

[35]Histological analysis of the left frontal bone showed an acute fracture with a little focal haemorrhage and fibrin deposition at the edges of the fracture, but no evidence of a cellular reaction. In oral evidence, Professor Risdon explained that the absence of any blood cells indicated that the injury had occurred very shortly before the child’s death. In his report, Mr. Richards said that skull bruising and skull fractures are features known to be associated with impact of the head with a hard surface. It does not indicate whether that impact is of a moving head striking an unyielding surface, such as in a fall, or a hard surface striking the head, such as in a blow. Mr Richards observed that in clinical practice it is not uncommon to see skull fractures in infants following falls from waist height or from kitchen work surfaces. Such falls can however, rarely be expected to cause significant brain injury, let alone fatal brain injury.[36]In oral evidence, Professor Fleming said that a skull fracture per se does not necessarily lead to an underlying injury. It is merely a marker of an impact sufficiently strong to break the bone. The frontal bone of the skull is the strongest part of the skull and a fracture indicated severe impact. Professor Fleming described it as “really quite unusual” to find such a fracture. In his experience, he could only think of a couple of times when children of this age had sustained such an injury, and in those circumstances there was a clear history. Normally, such a fracture would be accompanied by evidence of impact on the skin. Although there was a bruise in this case, it was, “relatively inconspicuous”. Professor Fleming though that the surface against which R’s head had come into contact would have been relatively flat although such an impact was unlikely to lead to a skull fracture because the skull is well designed to protect the brain. The severity of the fracture suggested that R would have lost consciousness. If he had not been unconscious, the fact that skull fractures are extremely painful means that there would have been a manifestation of the injury in the form of crying or possibly vomiting.

Intracranial and spinal bleeding and brain damage

[37]In Professor Risdon’s post-mortem examination, a thin layer of fresh subdural haemorrhage was found extending over both hemispheres, into the inter-hemispheric fissure and around the base. The haemorrhage was partly fluid and partly clotted. There was also a little blood in the subarachnoid space. When the spinal cord was removed, Professor Risdon observed extensive fresh blood beneath the coverings of the cord.[38]The brain was fixed and sent, together with the spinal cord, for further expert neuropathological examination by Dr Jacques. He made the following findings: i) subdural haemorrhage over the brain with “evidence of organisation” – in oral evidence, he clarified this as meaning that there was evidence of both new and old subdural bleeding; ii) new and old subdural haemorrhage over the spinal cord; iii) acute subarachnoid haemorrhage over the brain and spinal cord; iv) acute white matter haemorrhage, with limited hypoxic-ischaemic damage; v) acute intraventricular haemorrhage, and vi) evidence of axonal injury to the “pyramids”, a word used interchangeably with the medulla and the “corticospinal tract” (which I shall consider separately)[39]Dr Jacques identified features both of a recent event, as shown by the acute haemorrhage, and also an earlier event, as shown by the older subdural bleeding and also the appearances of the corticospinal tract injury.[40]In his report, Dr Jacques expressed the opinion that the pattern of recent injury, particularly when taken in the context of retinal haemorrhage and injuries outside the nervous system, was more likely to be caused by trauma. Timing of the neuropathology is “not precise and needs to be correlated with the other findings and clinical history.” In oral evidence, Dr Jacques confirmed that the mechanism of the more recent injury was likely to be trauma and that the pattern was most commonly seen in inflicted non-accidental head injury. He said that the exact mechanism is a matter of controversy, namely as to whether it was shaking or shaking plus impact, but it was impossible to go any further based on the neuropathology alone. It was likely that this was a significant trauma of the sort which would cause a direct primary injury, but added “I’d be careful about being too dogmatic on that, on the basis of what I’ve seen down the microscope”. There was only limited evidence of hypoxic-ischaemic damage in this case. In those circumstances, Dr Jacques thought that the microscopic evidence was consistent with a relatively short period of survival between the traumatic incident and death.[41]So far as the older subdural bleeding was concerned, Dr. Jacques thought it more likely to have been attributable to an earlier episode of trauma, although he did not rule out the possibility that the older subdural bleeding had occurred at birth.[42]Dr. Al-Sarraj also carried out a histological examination of samples taken from R’s brain and spinal cord. His observations were very similar to those made by Dr Jacques. He found evidence of subdural bleeding of two different ages, the recent being “less than 48 hours old” and the duration of the older being between several days and several weeks. No precise timing could be offered and therefore it could be consistent with another episode of trauma or possibly related to birth. The more recent bleeding was composed of well preserved red blood cells and showed no evidence of any reactive changes and therefore most likely occurred less than 48 hours before the child’s collapse and death. He described the damage to the white matter as amounting to “oedema and shrunken neurones” in the cortex of the cerebral hemisphere and basal ganglia, suggestive of recent ischaemia.[43]Mr. Richards said that it was not possible to be specific as to the mechanism of the acute subdural bleeding. Acute subdural blood, particularly those involving the intracranial compartments and the spine, has been associated with acceleration/deceleration events such as those encountered during shaking of an infant. However, any movement that leads to impact is also likely to be associated with acceleration and deceleration, and acceleration/deceleration events can also end with impact.[44]Professor Fleming observed that the presence of evidence of older bleeding indicated a previous episode of trauma, although he noted that in a baby aged only 38 days at death, these findings might have been attributable to birth. Mr Richards accepted that the evidence of older subdural blood as seen under the microscope in this case with possible membrane formation, may be related to birth.[45]At this point, it is appropriate to consider the haematological evidence. Professor Hann noted that there is no recorded family history of easy bruising or unusual bleeding. This lack of familial problems, alongside the very young age of the child, makes it unlikely, in his opinion, that there was a bleeding disorder in this case, although it is not possible to rule out such disorders completely because no clotting tests were carried out. Furthermore, haematological tests do not address the possibility of collagen defects. The single blood count that was obtained is, in his view, near-impossible to interpret. In his first report, Professor Hann was unable to rule out the possibility of vitamin K deficiency, but subsequently saw medical records which confirmed that intra-muscular vitamin K had been given to the baby and this explanation was therefore discounted. In oral evidence, he confirmed that vitamin K deficiency was the most important factor to rule out. Other disorders were unlikely in this age group and unlikely to be associated with spontaneous bleeding. It was also extremely unusual for retinal haemorrhages to be present with such disorders. He accepted, however, that in some instances such disorders could lead to more prolonged bleeding as a result of an impact than would normally be the case.[46]On balance, I find it extremely improbable that R’s injuries or symptoms were attributable in any way to a haematological disorder.

Damage to the eyes

[47]The eyes were removed at post-mortem and sent to Dr McCarthy who reported the following findings: i) bilateral slight papilloedema (swelling of the optic discs); ii) a significant area of fresh limbal conjunctival haemorrhage on the left side; iii) extensive bilateral recent optic nerve sheath haemorrhage; iv) left uniocular pinpoint retinal haemorrhages and sub-haemorrhage anterior and just next to the ora with an occasional inner layer haemorrhage in the more posterior part of the retina; v) histopathological staining showing previous haemorrhage in the macular area of the left eye, and vi) bilateral cyclodialysis.[48]I consider the various observations made about these findings by Dr. Macarthy and Miss Adams.[49]Of the various causes of papilloedema, Miss Adams thought that the likeliest cause in this case was raised intracranial pressure, given the report by Dr Jacques of brain changes secondary to acute cerebral swelling. There was no evidence to support any other explanation.[50]Both Dr. McCarthy and Miss Adams thought that trauma was a possible cause for the conjunctival haemorrhage. Miss Adams suggested chest compression during CPR as an alternative cause. Dr. McCarthy thought that Miss Adams was right to raise this, but concluded that, in the context of the other findings, it was more likely to be due to direct impact.[51]Miss Adams said that optic nerve sheath haemorrhages are a pathological finding and are not seen clinically. Dr. McCarthy described this damage as “florid” and said that it was associated with impact injury to the head and also with movement injury of the head or a combination of these. Miss Adams recorded that such haemorrhage has been reported in fatal blunt accidental head trauma, inflicted head trauma (including resulting from acceleration/deceleration forces) and raised intracranial pressure. Given the presence of brain changes identified by Dr Jacques, Miss Adams thought there was evidence for raised intracranial pressure in this case. Dr. McCarthy thought that it was more likely to be caused by vascular damage through impact or significant head injury trauma, but recognised that raised intracranial pressure may explain this type of bleeding.[52]Dr. McCarthy reported that retinal haemorrhages were “unequivocally” present in the left eye and were of recent onset. These would be consistent with a recent traumatic event either as a result of impact injury to the head or movement injury or both. No retinal haemorrhages were seen in the right eye. Miss Adams said that possible mechanisms suggested for the pathogenesis of retinal bleeding are(a) direct injury to the eyes;(b) shaking (with or without impact), which by the effects of acceleration/deceleration during shaking produces traction of the vitreous jelly on the retina;(c) raised retinal venous pressure and(d) a variety of medical conditions listed by Miss Adams in her report, for which there is no evidence in this case. Miss Adams added that the timing of retinal haemorrhages is inexact. She thought that the finding of superficial haemorrhages suggest formation within a week before they were identified, whereas the finding of deeper haemorrhages suggested a time frame of causation of up to four weeks prior to identification. According to some research studies, some components of the retinal haemorrhages seen in this case have been found to be more typical of non-abusive than abusive head injury, for example, the fact that the haemorrhages were observed only in one eye.[53]Dr. McCarthy reported that there was some Perls positive iron staining identified in each retina and in the optic nerves, consistent with a previous episode of haemorrhage, possibly dating back to birth. Miss Adams was unable to comment on the histopathological evidence of older bleeding in the retina. She observed in oral evidence that retinal haemorrhages do occur at birth but was unable to say whether the evidence of old haemorrhage in this case dated back to that stage, deferring on this point to Dr McCarthy.[54]The unusual feature of this case was the finding of bilateral cyclodialysis. Miss Adams explained in her report that a cyclodialysis cleft is a disinsertion of the ciliary body from the scleral spur, producing a pathway between the anterior chamber and the suprachoroidal space. Causes of such clefts are surgical complication, part of a glaucoma operation, or trauma. In the absence of any evidence of glaucoma or a history of surgery, Miss Adams concluded that the likely cause of the cyclodialysis seen in R was trauma. Dr. McCarthy said that cyclodialysis was usually associated with direct ocular trauma at the front of the eye. There is no known association with either general head impact or with movement of the head.[55]In oral evidence, Miss Adams said that she did not recall coming across bilateral cyclodialysis as a result of trauma in any previous case, nor was she aware of it ever having occurred in cases of suspected non-accidental head injury in children. She thought that it could have been caused by two fingers being poked into the child’s eyes simultaneously. In a further discussion during cross-examination by Mr Storey, Miss Adams expressed the view that such an action would have been likely to cause other damage to and around the eye, which would have been discernible on examination, unless the poking had been inflicted to each eye from the side of the eye or had occurred some time previously so that the other signs had dispersed. Miss Adams was also prepared to consider the possibility that the cyclodialysis might have occurred at post-mortem, although pointing out that this was a matter to be put to the pathologists. Dr. McCarthy said that he had considered the possibility that this might be a post-mortem artefact – pseudocylcodiaslysis – but concluded that it was a real feature. He was only reporting what he had seen down the microscope and recognised that what he saw was a matter for interpretation and debate. He was unable to suggest any explanation other than direct trauma.[56]It was Miss Adams’s opinion that there is no unified explanation for all the injuries sustained by R, or even for all the ophthalmic findings. Summarising the latter, she accepted in cross-examination by Mr Storey that the older bleeding detected on histopathological examination could have dated back to birth and that, ignoring the cyclodialysis, all the other injuries to the eye could have been sustained as a result of one incident of trauma, either directly, or through the subsequent increased intra-cranial pressure, and any CPR administered following the traumatic incident. Dr. McCarthy’s conclusion was that there was clear evidence of traumatic injury causing damage to both optic nerves and also damage to both eyes. The pattern of injury was consistent with impact head injury with or without additional movement injury and the presence of cyclodialysis with conjunctival haemorrhage in the left eye would be consistent with direct ocular injury.

Axonal injury

[57]The axonal injury was described by Dr Jacques as “eosinophilic spheroids in the pyramids” and by Dr Al-Sarraj as “axonal retraction balls”. These terms are used interchangeably. Like counsel, I shall adopt Dr. Al-Sarraj’s terminology.[58]In his oral evidence, Dr Al-Sarraj explained that axons are like bundles of wires going from the brain to the spinal cord. They are very long and vulnerable to being cut and damaged and subject to trauma. It has been shown that damage to axons occurs in a proportion of head injuries. When damaged, the axons will undergo a swelling process, forming a ball-like appearance. The ends of the damaged axons retract on both sides and form swelling. The ends of the broken wires accumulate ectoplasm and swell into ball-like structures. The presence of these balls indicates trauma. The damage may occur immediately as a result of the trauma, known as primary axotomy, or later, called secondary axotomy. Primary axotomy is caused by a very severe extensive trauma in which the axons are immediately cut. A lesser degree of trauma may not cause immediate cutting, but may cause secondary damage leading to the appearance of retraction balls.[59]Axonal retraction balls are consistent with traumatic axonal injury. Dr. Al-Sarraj described their appearances as being consistent with focal axonal injury suggestive of extensive hyper-extension and hyper-flexion (i.e. forward and backward movement) of the head and neck. The presence of axonal injury in the medulla has been demonstrated in 20 per cent of non-accidental head injury. He explained that, as the axons in the medulla are near to the structures responsible for cardio-respiratory management, such axonal injuries were associated with incidents of apnoea and cardiac arrest. Professor Risdon confirmed that the medulla, which lies at the top of the spinal cord and under the cerebellum, is an important area of the brain which controls life functions including heart rate and breathing. He said that damage to the area is very serious and can be fatal. Mr Richards thought that any damage in the medulla area was likely to have a significant effect. Dr Jacques said that damage to the axons is a mark of damage to the medulla but that this did not necessarily indicate the extent of, or consequences of, the damage. He said that it was extremely difficult to describe the type of clinical deficit to be expected from this type of axonal injury. Questioned by Mr Storey, Professor Fleming thought it possible that there could be damage to the axons which did not have a catastrophic effect. He could not say that it was not possible that R died with axonal damage rather than of it.[60]Much attention was devoted to the timing of the injury that led to the appearance of the axonal retraction balls. Dr. Al-Sarraj expressed the opinion that the appearances seen in the staining analysis which he carried out would take at least 13 hours to develop. In his report he concluded:
“the presence of axonal retraction balls in the pyramids of medulla indicates a minimum of 13-14 hours of survival. Accordingly, in my opinion, the head injury had occurred 13-14 hours (minimum) to 48 hours (maximum) before death and likely to be less than 24 hours.”
In oral evidence, however, Dr Al-Sarraj stated that the timing of head injury and axonal injury is “not perfect or exact”. He described this as “a very important point”. Although the presence of the axonal retraction balls indicated that the event had occurred at least 13 hours previously, he accepted that this timing was based on observations of adult brains. In general, axonal injury was not seen in children as it was in adults. He accepted that axons in children may not respond to trauma in the same way as they do in adults.[61]Dr Al-Sarraj accepted that timing was “not absolutely accurate and needed to be confirmed with other evidence and most importantly clinical evidence”. In cross-examination by Miss Campbell, he accepted that, if there are things in the clinical picture which go against the timing based on the presence of axonal retraction balls, that would have to be taken into account. Professor Risdon acknowledged there is a discrepancy between Dr Al-Sarraj’s timing and other evidence in the case, in particular the observations that the child appeared to be feeding normally during the 13 hours prior to his death. He though that, if Dr Al-Sarraj was right as to timing, there would have been a different clinical picture from the family. Dr. Al-Sarraj also agreed that the lack of evidence of ischaemia in this case was an indication of a shorter period between the incident and death than suggested by the axonal retraction balls.[62]After he had concluded his evidence, Dr. Al-Sarraj sent some research articles by email dealing with the timing of axonal injuries, including the timing of the appearance of axonal retraction balls. These were considered by Professor Fleming before he gave oral evidence. He noted that, whereas the older literature had suggested that it took 8-12 hours for axonal retraction balls to appear after the episode of trauma, the more recent papers submitted by Dr Al-Sarraj suggested that the time period could be much shorter, around 3-4 hours. Although he stressed he was not a neuropathologist, Professor Fleming thought that this timing would fit with the other symptoms in this case. He suggested that, because the opinion that at least 13 hours was required for the emergence of axonal retraction balls was derived from cases in which there was a clear clinical picture, he would question the applicability of that opinion as to timing where there is a clear clinical picture which did not fit.[63]Dr. Al-Sarraj suggested that it was possible that there were more than two episodes of trauma. This led Mr. Storey on behalf of the father to suggest that, if there had been an earlier injury which caused axonal damage, the fatal injury might have been sustained with a lesser degree of force than would otherwise be required. Dr Al-Sarraj was unable to say whether, if axonal retraction balls were present, a lesser degree of force would be necessary to bring about a fatal injury. Professor Fleming described the suggestion put by Mr Storey that, if there had been earlier axonal damage, a lesser degree of force would be required to lead to R’s death, as “appealing” although he did not have evidence to show that a minor injury to the brain stem makes a child more vulnerable to a subsequent injury to that area.[64]Professor Fleming stressed that timing of head injuries is a very imprecise science. He added that he had spent many years studying the brain stem and observed that it was a complicated area of the brain and the understanding of its complexities are only just beginning.

Further comments on medical evidence

[65]Professor Risdon concluded that R had died as a result of a complex head injury, comprising bruising to the forehead and occipital scalp, a linear frontal bone fracture, bilateral subdural haemorrhage, left sided retinal and bilateral optic nerve haemorrhages and encephalopathy, with further haemorrhage around the spinal cord. There was no evidence at post-mortem of any natural disease that might have caused or contributed to his death. There was evidence of trauma immediately before death – in particular, the fracture of the lower frontal bone was fresh with no evidence of a cellular reaction. The neuropathogy and ophthalmic pathology reports also identified evidence of earlier injuries, although some of those features could have dated back to birth, but could also have been the result of a previous similar but less forceful injury insufficient to cause death.[66]In his written report, Professor Fleming expressed the opinion that the extensive injuries identified in R at post mortem examination were consistent with, and strongly suggestive of, an episode of severe head trauma in the period immediately before his collapse and death. “The combination of an acute left sided frontal brain fracture, acute subdural and subarachnoid haemorrhage over the spinal cord and brain, acute white matter haemorrhage, acute intra-ventricular haemorrhage and axonal injury, together with the left sided retinal haemorrhage of recent origin and occipital and frontal bruising are strongly suggestive of an episode of head trauma involving a substantial and forceful impact affecting either the frontal region or both the frontal and occipital regions of the head, possibly combined with a rotational deceleration component.” Professor Fleming thought that the severity of the neuropathological findings at post mortem was such that it is highly likely that a child experiencing an injury of this severity would lose consciousness immediately, or almost immediately, and it was unlikely that he would regain consciousness or be able to feed after such an injury. The descriptions given by his mother and grandmother of his condition in the period before they left the flat on the afternoon of 25th November were not compatible with the possibility that the fatal injury had already occurred.[67]As stated above, the medical evidence must not be considered in isolation but rather in the context of all the other evidence. Of particular importance are the father’s various accounts about the events on the afternoon of 25th November after the mother, grandmother and J had left the home.

THE FATHER’S ACCOUNTS

[68]In his first interview on 1st December 2012, (in which he did not have the benefit of an advocate) the father gave the following account about the events that had occurred while the mother, grandmother and J were out shopping on 25th November. He described how he had started to give R his bottle before the mother left the flat at about 3.15 pm. He said that he had made sure that he was supporting his head whilst he fed him and had winded him during the feed. Afterwards, as R’s cot had contained some towels and other laundry, he decided to put R on the bed. Having done so, he carried on putting clothes away in drawers. At about 4.30, he heard the sound of R being sick. He went over to the bed and wiped R’s mouth and then winded him. He then changed him out of his baby-grow and vest and, being concerned that he might catch cold, put on R’s winter suit. At that point, R’s eyes started to close as if he was going to sleep. The father said that he then laid R down gently on the bed, then carried on for a short time tidying up but then left the room with the door ajar. He then watched a DVD until the mother returned. In answer to a specific question from the police officer, the father denied that he had ever dropped R. He told the police officer how the bar on the baby swing could sometimes fall down. He wondered whether it might have done so on this day, although he said that he had never seen it himself. He denied that it had fallen on R’s head when he had taken him out of the baby swing.[69]On 3rd December, the father was interviewed by the police for a second time, again without the presence of an advocate.. This occurred after he had been told by the mother that the police had said that R had a fractured skull, brain injury and spinal injuries. The father had then spoken to the maternal grandfather and told him that he had not been honest with the police and he knew more about R’s death. In the interview, the father explained that he did not want to withhold information or cover up for anything – “it’s just my head was just sort of like everywhere…like I was frightened”. He described how, when the mother had asked him to attend to R when he was crying in the living room at about 3 pm on 25th November, he had gone to lift him up out of his baby swing and as he did so, his head made contact with the bar on the swing. R had cried for a short while but then stopped and the father had “kind of brushed it off and didn’t really think anything more of it”. At the officer’s request, the father then demonstrated what had happened with the swing. A DVD recording of the interview has been shown to me in which the father is seen giving this demonstration. He said that he had not checked the back of R’s head after this incident. He said that, after this incident, matters had proceeded as he had described in his first interview. In addition, he referred to how, in the course of tidying up the room, he had cleared up the travel cot and moved it out so he could sort out the area where it had been standing.[70]The third interview took place on 21st December. On this occasion, an advocate was present. The father said that his description of what had happened with the baby swing was true but he wanted to add something which he should have said earlier but had failed to mention. He said that, after giving R his bottle, he stood up and walked round the bed. He was quite tired and lost his balance near the fireplace, put out his arm and as he did so he dropped the baby. He thought it possible that, when he fell, R may have hit the bed frame on the way down, although he did not see that happen. R landed on his back on the floor. The father said that he had been shocked when he realised that he had dropped him. He knew that he probably should have said something to someone but he was so scared. When he saw him on the floor, he had picked R up quite quickly because he was panicking and “I don’t know whether…me picking him up quickly… might have done anything to the injuries”. He had then checked R’s arms and legs and, seeing that R was moving them, he thought that he was alright. R then looked very sleepy so he put him on the bed. He then started putting things away and then heard R being sick, at which point he changed him out of the baby-grow as he described in the first interview. The father gave a demonstration of this account. Again, I have watched the DVD of the interview in which he gives the demonstration. Later in the interview, the father explained that, when he picked R up from the floor, he did not have his hands underneath his neck. At several points in the interview, the father stated that R had been sick after he had dropped him and then put him on the bed. He said that he was not sick straight away but not long after being dropped.[71]The father gave a fuller account of this incident in his statement in these proceedings:
“Soon after [the mother and grandmother] left, I stood up with R from where I had been kneeling. I was holding him supported in my left arm also with his bottle held in my left hand. I walked round the bed towards the fireplace to put R on the bed in order to be able to take towels and clothes out of his cot so that I could put him into his cot where I thought he would go back to sleep. Before I was able to put him on the bed I took the bottle from my left hand and went and placed that on top of the fireplace. As I got near the fireplace, I lost my footing. R was supported in my left arm with his head just above my shoulder facing behind me. As I lost my footing I fell towards the fireplace and instinctively put my right hand out to stop myself from falling backwards. I think I might also have closed my eyes and without knowing I must have let go of R. I must have put my hand on top of the mantelpiece because later I noticed that a photo in a frame had been knocked forward. I did not see R fall to the floor and as I told the police it might have been possible that he had hit his head on the bed frame as he fell. I realised that I was no longer holding R when I heard him crying. I looked down and saw R laying on his back on the floor. I could not believe that I had dropped him and I believe I was in shock. He was not crying hysterically but the cry was certainly more than a whine. I quickly picked him up and placed him on the bed. He was still crying a bit but not as much as he had been when he was on the floor. Because I was in shock and acting quickly, I did not support R’s head when I lifted him off the floor. I was worried that he may have hurt his arms or his legs when he fell and so I checked for broken bones. His arms and legs seemed fine. As I was doing this, he started to partially close his eyes and then he started to look to me as though he was going to sleep. He certainly looked sleepy. I laid him on the bed thinking that he would go to sleep. This could not have been any more than 5-10 minutes after I had dropped him. I continued to tidy the clothes away putting them into drawers in the bedroom while I heard what sounded like R being sick. I turned around and saw that R had been sick over his baby grow and his vest. It was not long after I had laid him on the bed. I went around to the bed where he was laying and cleaned him. I could not find a vest or a baby-grow and saw his winter warmer suit which I then put him into. He had been sick on his vest and his baby-grow and I believe that I put them in the laundry bag in the bathroom and I also believe that [the maternal grandmother] then washed them, possibly the following day. R looked very sleepy and it was just starting to get dark outside and so I drew the curtains and left him on the bed to go to sleep, turning the light out and went into the sitting room. I did not wish to wake him and I left the door ajar so I could hear if he woke up.”
[72]The father repeated this version in his oral evidence. He stood by his account of how R had struck his head on the baby swing as he was lifting him out and later of how he had dropped R in the bedroom. He denied that he had assaulted R.[73]He was asked in evidence why he had put R into the all in one suit and woolly hat after he was sick. He explained that he could not find any clothes other than the all in one and that he put on the woolly hat because it was cold. Cross-examined by Miss Campbell, he denied that he had put the woolly hat on R’s head to conceal injuries.[74]The father was asked in evidence about the travel cot. He explained that he had been wanting to sort out the bedroom for some weeks. It had been on the list of jobs that needed doing. He had collapsed it so that he could sweep the area where it had been standing. Then he had taken the collapsed frame of the travel cot to the spare room where he had lent on a chair and thrown it onto the pile of things in the room. He put the mattress from the travel cot behind the door. He said that his plan was to get the travel cot out again later and reassemble it close to the bed so that it would have been easier for the mother to get up to J at night. Cross-examined by Miss Campbell, he said that the travel cot had nothing to do with what happened to R. He denied hitting R against the travel cot or throwing him into it.[75]Miss Campbell asked the father why he had not checked R again after he fell asleep. He said that the main thing was that he did not want to disturb him. The door was ajar and the lounge door was open so that if R had cried, he would have heard him. He did not think of checking him again. He had not seen him bang his head. He denied that, when he was holding R’s body after he had died, he had checked his head in a suspicious manner.[76]He was asked to explain why he had not mentioned anything about dropping R before 21st December. He said that when he was at the hospital and it was mentioned that the police and social services were going to be called, he was scared. He had never been in trouble and he thought he would go straight to jail. He agreed that in the first interview he was trying to give the police officers the impression that he was being fully open. He only covered things up because he was scared. He agreed that he was not being completely truthful in the second interview. Again, he withheld information on this occasion because he was scared. He wanted to say something about dropping the baby but he was very nervous.

FURTHER DISCUSSION AND CONCLUSIONS

[77]I accept the medical evidence that R suffered an episode of severe head trauma in the period immediately before his collapse and death. The lack of significant evidence of ischaemia, and the lack of cellular reaction in the bone tissue surrounding the skull fracture, indicates that the trauma occurred shortly before death. I find that this traumatic episode accounts for the fracture, bruising, acute intracranial and spinal subdural bleeding, acute subarachnoid haemorrhage, optic nerve sheath haemorrhages and retinal haemorrhages. I also find that R sustained direct impact injury to the eyes that caused the conjunctival haemorrhage and the cyclodialysis . I acknowledge that this latter finding is extremely unusual, but I accept the evidence of Dr. McCarthy and Miss Adams as to causation.[78]As stated above, the local authority invites the court to consider whether findings can be made as to whether any earlier injuries were inflicted. The older bleeding could have been caused at birth or by another incident of trauma between birth and R’s final collapse. I find that the evidence is insufficient to justify a finding that the older bleeding was inflicted by an intermediate event. On balance, given the very young age of the child, and recent research findings as to the incidence of birth-related intracranial bleeding, I find that it more likely than not that the older bleeding in this case occurred at birth.[79]I have carefully considered the evidence as to axonal retraction balls. In the end, I have concluded that the evidence is insufficient to justify a finding that there was an intermediate incident between birth and the 25th November in which axonal damage was sustained. I have thought carefully about Dr. Al-Sarraj’s evidence as to timing of the axonal retraction balls but, in the end, having regard to all the evidence, I do not accept it. The research basis for Dr. Al-Sarraj’s opinion is not very strong. I have in mind in particular the uncertainty identified by Professor Fleming as to the scientific basis of the timing, together with his comment that understanding of this area is in its infancy. The research that has been carried out is based on adults not children, and Dr. Al-Sarraj accepted that there is little knowledge about what happens in neonates and young infants. Several witnesses, including Dr. Al-Sarraj himself, emphasised that assessment of timing of such signs is not exact. More importantly, if, as I find, the axonal injury would probably have had a serious effect on R’s condition, Dr. Al-Sarraj’s opinion as to the timing of the axonal injury is inconsistent with the clinical picture. R was seen by health professionals on five occasions in the last 19 days of his life. It seems that R was feeding well throughout his life. I have considered the fact that the father cared for R exclusively during the previous night and the whole of the 25th, and also the somewhat curious crouching position adopted by the father when he was feeding R as the mother and the others left flat, and whether this supports the suggestion that the child had sustained an injury some time earlier over that weekend. However, there is the clear evidence from the mother and the maternal grandmother that R seemed well at the point when they left the flat. In particular, I accept the evidence of the maternal grandmother that, shortly before she left the house, she heard and saw R lying on the bed in an apparently healthy condition. On the basis of that evidence, I find that R was well at that point and had not at that stage sustained any significant head injury. On balance, I conclude that it is more likely than not that the axonal damage was sustained in the course of the events that led to R’s collapse some time after 3.15pm on 25th November.[80]Mr Richards expressed the view that the descriptions given by the father of two events – the hitting of R’s head on the bar of the baby chair, and the fall in the bedroom – would not be expected to cause severe injury, let alone fatal injury. Mr Storey in cross-examination raised the possibility that the baby had struck the bed frame on his descent to the floor. Mr Richards agreed that this was an example of the type of complex forces that might be at play when a complex head injury is sustained, although he would have expected a change of behaviour from the moment of injury. In other words, Mr. Richards was not completely ruling out the father’s accounts as an explanation of the injury. Given the extent of the injuries, however, Mr Richards would have expected there to be a profound change in the baby’s state likely to cause immediate concern in a mentally competent carer.[81]Professor Fleming considered that the injuries identified at post mortem were unlikely to have occurred as a consequence of R being dropped from approximately shoulder height onto the bedroom floor as described by the father. The description given by the father of seeing R lying on his back immediately after hitting the floor was incompatible with this event being the cause of a frontal fracture which must have arisen as a consequence of direct trauma to the front of the head. When Mr Storey put to him the possibility that the child, having been dropped by the father, might have struck the bed frame on his way to the floor, Professor Fleming agreed that this could not be excluded as an explanation for the complex injuries, but only if the fall was accentuated by having the weight of an adult behind it. This does not feature in the father’s account of the alleged fall. In closing submissions, Mr. Storey argued that the fall as described by the father may well have involved an element of propulsion. I conclude that it is extremely unlikely that, even with an element of propulsion, the fall as described by the father could have caused the catastrophic injuries sustained by R. I also accept the evidence of Professor Fleming that the father’s description of the bar of the swing seat striking R’s head was not a credible explanation for the frontal fracture.[82]In assessing the father’s accounts, I have regard to all the submissions made on his behalf by Mr Storey and Mrs Storey-Rea. I accept that he was vulnerable and anxious with a sad history of having suffered emotional and perhaps physical harm. I accept that he was keen to please and very concerned about what people thought of him. He was, I find, desperate to take advantage of the opportunity he had now been given to look after a young family whom he plainly loved.[83]In particular, I have in the forefront of my mind the fact that the father suffered from learning difficulties as identified by Dr Candy, specifically difficulties with working memory and processing speed. This is of particular importance when considering his evidence concerning the events of 25th November. The court must be particularly cautious about interpreting his answers in cross-examination because of his particular difficulties. The position is complicated by the fact that the father is articulate and fluent, with a notably good and precise vocabulary. This court is well aware of the dangers of underestimating the significance of learning disability in these difficult cases. I accept Mr Storey’s submission that it is easy to misconstrue and misinterpret the answers given by somebody suffering from learning difficulties. I also bear in mind that he did not have the benefit of an advocate at the first two interviews on 1st and 3rd December.[84]Because of his learning difficulties, I completely discount the answers given by the father in a passage towards the end of his evidence on the first afternoon of his testimony during cross-examination by Miss Campbell. All counsel recognised that the father was becoming tired and incoherent at that stage in his evidence. In addition, I bear in mind that his learning difficulties are likely to have impinged upon his evidence at other times in ways that were not immediately apparent. I also have in the forefront of my mind the importance of the Lucas direction. Thus I do not attach any importance to lies which the father has told about other parts of his life, for example his drug taking. The fact that he may have lied about these matters does not, to my mind, carry any weight in my analysis of his account of the events of 25th November. Equally, I have thought very carefully about whether the reason why the father withheld information about what had happened on 25th November was because he was scared, as he insisted in evidence. I recognise that people do tell lies in panic or fear.[85]Having carefully considered these points, however, I have reached the clear conclusion that the father’s accounts are implausible and untrue. I do not believe any of his accounts about the ways in which the injuries were sustained, either the story about the incident involving the baby swing, or his account of dropping R in the bedroom, either in his police interviews or in his oral evidence before this court. I did not believe the father’s account about the fall, nor his account of checking R for injuries after the fall, nor of his description of what happened thereafter.[86]I find considerable force in the analysis made by Miss Campbell and Miss Archer of the pattern of the father’s emerging accounts. I accept their submission that the father changed his story as he realised that he had to say more to explain the seriousness of the injuries as they emerged. I do not think that his learning difficulty would prevent him realising that he needed to say more. I also accept the submission made by Ms Skellorn on behalf of the guardian that the father’s narrative fails to provide an answer to the question why, once R’s state was discovered, the father did not launch into summoning help and telling the medical services what they so obviously needed to know to try to save R’s life. Given the catastrophic head injuries which, as I find, R suffered during the afternoon of 25th November, I think it is implausible that the father would not have realised something was wrong, and done something about it if the injuries had been sustained in the manner he suggests.[87]It is possible that the travel cot was involved in some way. It is difficult to understand why the father went to such lengths to collapse it and throw it onto the pile of belongings in the spare room, knowing that it would be required later that evening for J. It may be that forensic examination of the cot might shed some light on what happened. But I must avoid speculation on this matter.[88]As urged by Mr Storey, I have given a long hard look at why the father might have withheld his account from the authorities. Mr Storey submits that it is really only if the court concludes clearly that the fall did not happen and that the withholding of the story was therefore because it did not happen that the father can then be found to have caused R’s injuries in a non-accidental way. Having considered the evidence carefully, I do find that the fall did not happen and the reason why the father withheld his accounts is because he was culpable of inflicting the injuries.[89]Miss Campbell and Miss Archer submit that it is likely that the father realised that R was dying or badly injured in a way that would demonstrate his culpability should it be investigated and by his actions thereafter was trying to distance himself from being seen as the person responsible for the injuries. They suggest it was for that reason that he detracted attention away from R when the mother returned to the flat that evening. In effect, they invite the court to find that, having killed or seriously injured R, the father deliberately delayed the discovery of the body or injuries in an attempt to avoid detection of what he had done.[90]I do not think the evidence is significantly strong to justify a finding the father knew that he had killed R. I do find, however, that he realised that he inflicted an injury. I accept the evidence of Nurse Frawley that he was deliberately looking at the back of R’s head when holding the body in the relatives’ room at the hospital, and I find that he did that because he knew that R had sustained an injury to that area. I do not believe the father’s account that he did not realise that R had hurt his head. I also find that the reason he put on the woolly hat was not because he thought that R was cold, but because he wanted to conceal the marks on the head which he knew that R had sustained.[91]Again, I do not think the evidence is sufficiently strong to justify a finding that he deliberately delayed the discovery of the body. On balance, I find that, having inflicted the injuries, he left R to sleep in the hope that he would recover. However, having realised that R had been injured, the father ought to have called immediately for medical attention. It is possible that, had he done so, R would still be alive today.[92]It is impossible to say exactly how the father injured R. I accept the submission made by Miss Campbell and Miss Archer that the injuries to the head and eyes must have required more than one mechanism so that more than one application of force must have been inflicted on R. Various mechanisms were suggested in the course of the hearing, but this is no more than conjecture, and insufficient to support a finding. Even though the injuries were, as I find, inflicted, and that more than one application of force was involved, it does not necessarily follow that it was a deliberate and calculated act. It may have been through a momentary loss of temper and loss of control. I cannot make a finding on this. I do find, however, that he realised that he had injured R, and failed to call an ambulance when he knew or ought to have known that R needed medical assistance. This was a culpable failure which cannot be excused or explained simply by reference to his learning difficulties.[93]Because the father has not been truthful, it is impossible to make findings as to precisely how he injured his son, or precisely what was going through his mind when he did so. I accept the compassionate submissions by Miss Cook QC on behalf of the mother that the father has had a horrid and abusive past which understandably continues to affect him. I agree with Miss Cook that the father’s deep insecurities and desire to make a good impression and make loved ones be proud of him was palpable during his evidence. I hope that further assessments may provide a clearer explanation for the father’s actions on 25th November.[94]I therefore find, on a balance of probabilities, that R’s acute injuries were attributable to an episode of head trauma inflicted by the father on the afternoon of 25th November, that the signs of earlier bleeding were attributable to birth, and that R did not sustain injuries on any intermediate occasion.[95]In those circumstances, the threshold criteria for the making or an order under s.31 of the Children Act 1989 are satisfied.[96]The local authority indicated at the end of the hearing that it no longer pursued a finding that the mother was a possible perpetrator of the injuries, or that she culpably failed to protect R. In my judgment, that concession was properly made. I conclude that the mother was not responsible for the injuries suffered by R, either directly or through any failure to protect.[97]The fact that the threshold has been crossed means that this court has the power to make an order under s.31, including a care order or supervision order. In deciding what order to make the court will apply the principles in s.1 of the Act. J’s welfare is my paramount consideration. Initial assessments raised some concerns about the mother’s capacity to care for J. She continued to have contact with the father for a period. More recent assessments by the local authority have demonstrated that her situation has improved. Plainly she was devastated by R’s death, and suffered significant depression in the months following the tragedy. Although I am sure she will always bear the emotional scars of that tragedy, it is pleasing to read that she has been growing in self-confidence and has benefited from the counselling and other help she has received.[98]I have not been asked to make a final order at this hearing, but my clear view is that J should be returned to his mother’s care in the very near future. I agree that she remains a somewhat vulnerable young woman, but she has the benefit of extremely supportive parents, and in addition she will continue to be supported by the local authority and other agencies. In the circumstances, the local authority proposes the making of a supervision order. I do not yet have a firm recommendation from the guardian as to the appropriate outcome, but my provisional view is that an application of the s.1 criteria may justify the making of a supervision order for a period of 6 to 12 months. [Postscript – At the final hearing, the court made a child arrangements order, under which J lives with his mother, and a 12-month supervision order. In the criminal proceedings, the father pleaded guilty to a charge of manslaughter.]