A & Ors (Children : care proceedings), Re (Rev 1) [2014] EWHC 4859 (Fam)

[2014] EWHC 4859 (Fam)Case No MH14C00047
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Venue ManchesterDate Tuesday, 21 st October 2014
M60 9DJ
Before
THE HONOURABLE MR JUSTICE HAYDENIn the matter of:Re: A & ORS (Children)
Counsel for the Local Authority: MR VATER QC and MR BAILEY
Counsel for the Mother: MISS MEYER QC and MR Mackley
Counsel for the Father: Nkumbe Ekaney QC and MR Martin
Counsel for the Guardian: MR SINGH HAYER
Transcribed from the Official Tape Recording by
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JUDGMENT
[1]On 21st January 2014, the applicant Local Authority, O, issued care proceedings in relation to three children: BA, born 2nd September 2008, now aged 6 years; IFA, born 8th February 2012, now aged 2½ years; and MA, born 24th December 2012, now aged 18 months.[2]The children’s mother is NB and the father FS. The mother was born in Pakistan, a small agricultural village. She has an elder brother, MY, from whom I have heard in the course of this hearing, and two older sisters, MB and SB. The mother told Social Services and has reiterated in evidence before this court that she is very fond of and close to her sisters, particularly MB, who she described as having been very supportive of her during the course of her childhood. Mrs NB told the Social Services that she always had a great relationship, as she described it, with MY, her elder brother. She said he, “always looked out for her,” and, “continues to do so.” I believe I saw some of this relationship during the course of these proceedings.[3]Mrs NB told the Social Services that she moved to the United Kingdom for a better quality of life. Her father had, prior to his death, lived in the United Kingdom for approximately 20 years and from his earnings here in the UK was able to support his family financially in Pakistan. MY has now been here in the UK for approximately 16 years and I have little doubt that his presence here was a strong influence in Mrs NB’s own desire to come to the United Kingdom. From her arrival in the United Kingdom until the birth of her children, Mrs NB lived as part of her brother’s family. In that crowded and, no doubt, slightly chaotic home, it is clear that Mrs NB felt happy, nurtured and supported.[4]The father, FS, was also born in a small village in the Punjab of Pakistan. He has told the Social Services that his father was a police inspector and his mother a housewife. During the course of his evidence, he told me of a happy childhood in which he was never smacked or in any way physically chastised. He found even the suggestion of it to be unthinkable. He told Social Services he was loved and adored, both by his immediate and extended family, particularly, he said, close to his uncles as they had no children of their own. The father continues to maintain close ties with his family in Pakistan and also told the social workers that he communicates with them on a daily basis via Facebook, Skype, or on the telephone. At school, the father reports that he displayed good academic aptitude and it was there he developed an interest of which I have heard in poetry which he tells me continues to be an enthusiasm of his to this day. He told the social worker that he had a passion for music and has performed in the United Kingdom. Having completed school with the equivalent of grade As at GCSE, the father related having gone on to study for two years at college and gained qualifications in English, Urdu, history, and social studies. Though he was married in 2007 to NB, the father was unable to join is wife or son BA until 2010.[5]The family acquired Local Authority property. The home was run on essentially traditional Islamic lines. The mother saw it as her responsibility to keep the house clean, to prepare meals, and to look after the children. I have the sense that through these tasks she regarded herself as gaining validation as a wife. Though she did not say so explicitly, it was also clear to me that at her own home she missed the regular companionship of her brother, sister, and their families. Usually, she told me, she and her husband and the children would go to see the brother during the day on Saturday and it was very plain that the mother looked forward to those occasions.[6]Despite having lived in the UK for ten years, it is clear that the mother has learned very little English and, moreover, seems to have little social interaction outside of her own immediate family. I heard during the course of evidence of her relationship with neighbours, but certainly until 13th January this year when life changed for this family, the mother had only the most superficial of acquaintances with the neighbours.[7]The father’s role was a breadwinner. He worked hard at a local garment factory. In the latter part of 2012 and in early 2013, his work there, which appears to have been undertaken on some kind of subcontracting basis, was declining and so he took on an extra job at a restaurant. That job began on the weekend of 11th and 12th January and, on both of those dates, the father spent most of the day there. As a hard-working man, Mr FS plainly considered that he was entitled to some relaxation time outside the home. Two or three nights a week he told me he would meet with friends and discuss the burning religious, philosophical and political issues of the day, particularly Islamic issues. He told me that he would often sit chatting for a number of hours, sometimes as late as midnight. He could not recall, he said, whether he had been with his male friends on the night of 12th January. I sense that though he felt he made a significant contribution to the home, in fact, his contribution was relatively limited. However, I also think that he had some sense of wife’s social isolation and a determinedness to improve it because I note that it was he who very much encouraged her to learn to drive in part, I suspect, so that she might be able to visit her brother’s home more easily.[8]In addition, the oldest child BA was plainly proving a challenging child to his parents. I have been told that they frequently had disturbed nights and that he often required to be smoothed from head to toe with emollient oil as a consequence of his eczema. He did not enjoy school and was often reluctant to go, and here is a child who did not like even to walk very much, including to the school or mosque. For example, I heard on 30th January, which was not untypical, that he was transported back from school on the double buggy with his younger siblings. Although the mosque was only a few moments away, a taxi, it seems, was often called because he did not like to walk there. I suspect that much of this may have been in consequence of his eczema. The mother told me that she plainly found it very difficult to break these rather demanding expectations and although she deferred the task to the father from time to time, it is clear that he had no greater capacity to break the cycle than did she. Though eight years of age, BA had not made the short journey from his parents room into his own room, which stood empty in the house used only occasionally by the grandmother when she came to stay. Accordingly, I heard mother and father and three children shared the same bedroom with BA frequently unsettled and demanding during the course of the night.[9]All this important information regarding the background of the family is material which I must weigh in the balance against the broader canvass of the medical evidence and the parents’ accounts of what happened on 13th January 2014. It comes from the cross-examination of the mother largely supported by the father. It would have been very helpful if the social work assessment undertaken by the Local Authority had touched on some of these issues. Merely because a family is under stress does not mean that they are more or less likely to have injured a child, but the background circumstances can, in my judgment, be best explored in the assessment situation and not in the witness box. It also seems to me that in this relatively uncontroversial process, i.e. looking at the home circumstances and not the subject of the allegations, the social workers have a real opportunity to build up the kind of trust and constructive working relationships which may be required later in the case dependent on the court’s finding. The assessment here was, I regret to say, not merely superficial and irrelevant, but positively misleading. Most of the assessment is simple report that goes unchallenged. In section 2, there is the following observation:
“Mrs NB and Mr FS stated that the family was not under any stress or under any difficulties before the injury to MA.”
That appears to have been simply taken as a fact and not challenged in any way.[10]In a later section, rather ambitiously headed, “Conclusion and recommendation,” the report observes:
“The children are very content and happy in their parents’ care and no risk factors have been identified subject to the outcome of the fact finding hearing in respect of the injury to MA. We have not identified any social care concerns indicating the children should not be rehabilitated back to her parents’ care.”
[11]That these conclusions are so at variance with the evidence might partly be explained that there appears to have been only one session with the father on 24th June 2014 and one with the mother on 26th June, but I am bound to say that a very different reality to that described by the social workers emerged within minutes of the mother being cross-examined.[12]It is profoundly dispiriting that a case that has been before the court now for ten months should have lost the opportunity at least to utilise some of that period to try to establish the good, open, candid working relationships between social workers and parents that we have known now for more than 25 years are so frequently associated with successful outcomes for children. Such relationships are always important, but perhaps particularly so in cases of women from non-white British cultures who have become socially isolated. I emphasise that the regime of contact, court attendance, visits to solicitors, and the greater opportunities available to adults when released from the day to day responsibility of the care for children have all made these last ten months an artificial period for these parents. I have no doubt that, to some extent, the mother’s clear and earlier isolation was masked by her changed circumstances. All the more important therefore that some rigorous exploration of the reality of life before 13th January should have been undertaken. I set out the background of the family here at this stage in order to give context to what happened in January 2014.[13]On 7th January, MA had three immunisations at his general practitioner’s surgery. I pause there to observe that that fact alone to my mind illustrates the commitment of the parents to their children’s health, as well as their strong sense of responsibility. Mrs NB has described MA as being, “Not too well after the immunizations.” She has used a variety of terms, but what emerges is that he was sometimes perfectly well and happy and engaging in play, but at other times inclined to be “lethargic,” or as it was described through the translator “lazy.” There is absolutely no question of that word ‘lazy’ intending to be in any way pejorative. It plainly represents an Urdu word that does not translate easily into English.[14]For some of the time after 7th January, MA was off his food and the mother, she said, gave him Calpol. However, it is, I think, significant that this otherwise conscientious mother did not think it necessary to take MA back to his general practitioner. On 13th January, MA was apparently, “Still out of sorts.” It is that well used phrase that seems to me most accurately to capture what the mother was describing. However, in evidence, the mother told me that he had been rather better that day to the extent that she was able to give him chicken for his lunch. He ate, I was told, more than he had in recent days. Though the father had been at work over the weekend, he took BA to school at around 8.50 am. He went the short journey in the car. Mrs NB woke MA and his sister to give them breakfast. MA had milk for breakfast and though there was some earlier confusion about the times, the mother settled on 12.30 pm as the point at which the family enjoyed lunch together. It was then, at around that time, that MA ate his chicken with the family. The father left for work at about 12.50, leaving IFA and MA in the care of the mother.[15]In her most recent statement, which was made available on the first day of the hearing, the mother, I was told by Miss Meyer QC who appears on her behalf, wanted to have the opportunity to present her case as clearly as possible. She felt that her earlier statements and the translation and material therein, and those of the police interviews, had not truly done justice to her account. I rehearse the salient paragraphs from her statement from which she did not significantly depart in evidence. At paragraph 13:
“Sometime after lunch, MA was sick. I am sure that it was somewhere between 2.00 pm and 2.30 pm. I am certain as to the timing as it was sometime after my husband had gone to work and not long before I needed to leave to collect BA from school. I know that I am recorded in the police interview as having said that it was before lunch, before 12.00 pm, but I am certain that this is not the case. When I was interviewed by the police, I was tired and upset and I think I must have been confused. I am certain it was not before lunch as I know that my husband had gone to work when MA was sick. I also recall it being not long before I needed to get ready to go to school.”
[16]In the following paragraph, the mother asserts as follows:
“When MA was sick, I was in the kitchen. I did not therefore see him being sick, but it appeared to be a large amount. It was on his clothes, a yellow seat, and the floor. I cleaned him up and changed his clothes. This involved changing his whole outfit, not just his jacket.”
[17]In her interview with the police, the mother had described herself as being disappointed and having, “Panicked when MA was sick.” In her statement, she asserts that at the time he was sick, she was, in fact, upset and worried and that had been what she truly had intended to convey to the police. She goes on to describe how having changed MA she then gave him some Calpol. She was clear he did not have a temperature, but in her statement she said that she was, “Worried that he was coming down with a cold.” She had apparently given him Calpol on other occasions since his immunisations on 7th January. She told me then how she put MA in the pushchair, which is a double buggy, and got to school to collect BA sometime around 3.10 to 3.15. The journey, she said, takes approximately ten to twelve minutes on foot. It was a January day and predictably cold. Equally predictably, BA did not want to walk home and so he was accommodated in the back of the pushchair with his brother and sister, with MA on BA’s knee in order, the mother said, to keep them both warm and sheltered.[18]The journey home was uneventful. When he got home, BA put the television and changed in preparation for going to the mosque at 4.45 pm. The mother relates how MA and IFA were playing happily with their toys in the front room. There is no sense at all that MA was in any way unwell at this point. In fact, if anything, the picture is, on the mother’s account, of a happy child. Before he went to the mosque, the mother had to get something for BA to eat and so she repaired to the kitchen and fixed BA some chicken, which he ate at a coffee table in the sitting room on a low yellow children’s chair which I have seen photographs of. BA, like other children, preferred to watch television while he ate. He is a slow, and I am told, rather fussy eater. When he finished, the mother collected his plate to wash it. She, IFA and BA went to the kitchen, leaving MA in the living room. On the mother’s account, she had only been in the kitchen for a few seconds when she heard a loud “thud” and a “cry.” She had told the police that she heard MA’s voice but, she said, this was another example, as I understand it, of a mistranslation. What she had intended to convey was not a voice, but a thud. When she went to see what had happened (her phrase), she described MA lying on his back straddled between the kitchen and the sitting room with his feet pointing into the kitchen.[19]In her statement, the mother described MA as, “Very sleepy with his arms stretched out and his eyes half open.” She was not sure whether he was breathing, but believed he was unconscious. She described him as stiff and said that she was upset and panicking. She telephoned her husband and, thereafter, her brother. She did not telephone the ambulance service and this has been subject of much attention. I do not consider it to be indicative of anything significant that she telephoned both her husband and her brother rather than the ambulance services given her poor level of English. However, given the mother’s description of MA to me in this court, and in her statement, I confess that I am troubled that this young woman, when she spoke to her brother and husband, did not ask them immediately to contact the ambulance. Her own description conveys the urgency of the situation.[20]When the husband and brother had arrived at the property, the ambulance was called and MA was taken to Hospital where he arrived at 17:19 hours. He was found there to have a decreased level of consciousness with a floppy right arm and leg. He had a CT scan of his brain which showed a left sided subdural haemorrhage. He was then transferred to the Royal Manchester Children’s Hospital for further specialist management. The mother is reported as telling the hospital that whilst in the front room, she heard a bang or a knock and then heard MA crying. She is reported as having said that she went into the front room and found MA on his back. Though she had not witnessed a fall, it is recorded that she speculated that MA had fallen while pulling himself to a standing position or cruising about the furniture as was his standard manner of mobility at that stage.[21]Dr Margaret Steggall, the consultant paediatrician responsible for his care, was concerned that MA had suffered a more serious injury than would have been expected from the account that the mother had given. Dr Steggall is a specialist in child protection issues. She requested the opinion of an ophthalmologist and MA was seen by Dr Bansall on 14th January in the high dependency unit in Manchester Children’s Hospital where there were found widespread bilateral and preretinal haemorrhages. The anterior portion of both eyes was found to be normal and Dr Bansall arranged for Dr Keddy, a paediatric ophthalmologist, to undertake a review. He too documented bilateral premacular haemorrhages with crescent shaped preretinal haemorrhages covering each disc with multiple retinal haemorrhages which is described as being multi-layered with rough spots.[22]On 16th January 2014, MA’s general condition appeared to deteriorate significantly and he had a left burr hole drilled to allow evacuation of a subdural haematoma. The block was described as being fresh blood under pressure with some darker older blood. A sample was sent for culture and no evidence of infection was found. As I have said, care proceedings were commenced on the basis that there were reasons for believing that MA suffered injury whilst in the care of his mother on 31st January 2014. MA was discharged into the care of his uncle and grandmother displaying, by this stage, residual weakness on his right side which was thought to be improving.[23]In the course of the care proceedings, the court has received reports from: Mr Peter Richards, consultant paediatric neurosurgeon; Dr Lucilla Butler, consultant ophthalmic surgeon at the Birmingham and Midland Eye Centre and an honorary senior clinical lecturer in ophthalmology at the University of Birmingham; Dr Stavros Stivaros, consultant paediatric neuroradiologist at the Royal Manchester Children’s Hospital; and Dr Peter Morrell, consultant paediatrician at the James Cook University Hospital in Middlesbrough. It is important here to trace the evolution of the expert’s thinking in order to best evaluate their ultimate conclusions. Furthermore, it illustrates the extent of the enquiry that has here been undertaken and what I believe has been a real and vibrant preparedness amongst a senior team of experts fully to consider the range of potential differential diagnoses.[24]In his report dated 11th May 2014, Dr Stivaros sets out his analysis of the imaging evidence of bleeding. In his report, he reminds us helpfully that the brain is surrounded by three membranes. The first of this is called the pia mater which is adherent to the surface of the brain. Outside of this is a second membrane called the arachnoid mater. Dr Stivaros compares this to a plastic back within which the brain and the pia sit. In normal individuals, cerebrospinal fluid (CSF), the fluid which, in effect, bathes the brain, can be seen to sit in the space between the pia and the arachnoid. Outside of the arachnoid is a further membrane known as the dura mater, which at some point is adherent to the skull bone. The space therefore which exists between the arachnoid and this outer membrane is, in reality, a potential space known as the subdural space. In normal individuals, fluid is not usually identified within the potential of the subdural space. Fluid only accumulates there as part of a pathological or illness process. The most usual cause for this, Dr Stivaros tells us, is either trauma, infection, or a metabolic abnormality. Nothing of what I have just set out is in any way controversial. When compiling his report, Dr Stivaros had not been provided with any history of infection, nor a bleeding, or metabolic abnormality relating to MA. Certainly by the time he gave his evidence before me, those deficiencies had been largely remedied. However, Dr Stivaros had noted that Dr Steggall in her report excluded metabolic causes such as type 1 glutaric aciduria and reported a normal clotting scheme.[25]The imaging showed to Dr Stivaros that there was left sided braining swelling with evidence of a previous reduction in oxygen supply to cells of the left hemisphere on MA’s brain to the extent that that had resulted in tissue damage. He considered that expert opinion to exclude possible bleeding/metabolic or infective causes of the retinal haemorrhaging on the left and right eyes should be obtained, but concluded that in the absence of any clotting, metabolic or infective abnormality, the likely cause of the findings on the imaging would be traumatic injury. He discounted birth related injury as a cause in this case and no party has sought to explore that further.[26]Mr Peter Richards, an extremely experienced paediatric neurosurgeon and a very well respected forensic expert, considered this to be a difficult case. The facts as he at least initially perceived them were of an apparently well child suffering a presumed fall which was unwitnessed, from either a standing height or possibly from a chair. Unusually, he commented:
“For falls of this nature, he suffered significant neurological abnormality, became acutely unwell, and with reduced level of consciousness and prolonged capillary refill time. In addition, there was a development of a right hemiplegia.”
Dr Richards emphasised how specialist neurological investigation identified left sided subdural collection causing slight compression of the right cerebral hemisphere with radiological evidence of this being at least partially acute blood and possibly some pre-existing chronic subdural collection.[27]It is, I think, important to set out Mr Richards’ initial views in full partly to do justice to them, but also because they are, to my mind, relevant in understanding the father’s reaction to the case more generally. Mr Richards observed; “It would be unusual for a low-level fall to cause any significant neurological disturbance. It would be unusual for a low level fall to cause acute subdural bleeding. It is outside of my direct experience, but from a neurological perspective, I am aware of mainstream ophthalmological opinion that it is unusual for low-level falls to cause significant retinal haemorrhages. There are therefore features in this case which would be unusual as a consequence of the presumed low level fall from either a standing toddler height or from a chair. However, it has to be accepted that given that most low level falls do not cause any neurological disturbance, and therefore special neuroradiological imaging and neuro-ophthalmological examination is not routinely carried out in well infants, there may be a higher incidence of acute subdural bleeding and acute retinal haemorrhaging following low level falls, but this can only be considered speculation.”[28]He goes on to expand the point:
“If there was pre-existing chronic subdural haemorrhage, it is well recognised that spontaneous re-bleeding, or re-bleeding following minor injuries, can occur. Therefore, if the court accepts that there was pre-existing chronic subdural fluid over the right cerebral hemisphere, this could explain the acute subdural haemorrhage from a presumed low level fall. The subdural collection was causing a small degree of compression of the right cerebral hemisphere and it is possible that the disturbance caused by this cerebral compression was sufficient to generate a seizure. This could explain the acute neurological deterioration immediately after the presumed fall. A mild degree of cerebral compression could explain the right hemiplegia and it is noticeable that once this was relieved by burr hole evacuation of the fluid, which was said to be under high pressure, the right sided weakness resolved. Therefore, whilst it is unusual for a toddler to suffer neurological deficit and acute subdural haemorrhage following a low level fall of this nature, if there was a pre-existing chronic subdural haematoma and the acute subdural haemorrhage expanded this to an extent that there was compression of the brain, it could explain the acute neurological deterioration and the right hemiplegia. This aspect of the clinical presentation may therefore be explained by a low level fall.”
[29]Mr Richards had concluded his report by emphasising that he found this to be a difficult case. He said that it may well have been on 30th January 2014 that MA was subject to an injury where he was shaken with excessive force. The exact force, of course, he said could not be quantified, but it is likely to have been handling greater than encountered in normal life and noticeably so to a mentally competent witness or perpetrator. However, he also considered that the acute event of 30th January could indeed be related to a low level fall if it was considered the dark fluid released from the subdural space by surgery was pre-existing chronic subdural haematoma. However, he counselled that if that were the case, the origin of this chronic subdural haematoma had also to be considered and raised a possibility that in the weeks before 13th January, MA might have been subject to a shaking injury as, said Mr Richards, such an event is statistically likely to be the commonest cause of a subdural haematoma.[30]There are, of course, also here the so-called triad of features most commonly associated with shaking injury. MA suffered an acute encephalopathic illness associated with the right hemiplegia. He was found to have acute subdural haematoma causing compression of the left cerebral hemisphere, possibly a chronic subdural over the left hemisphere, and bilateral retinal haemorrhages. It is against this background that the experts had to evaluate the more unusual features of the case.[31]To complete the journey of this evolution of the medical history, it is important to report that Dr Lucilla Butler considered a wide range of possible factors identified in the course of the court process which it was thought were potential explanations of the retinal findings. Pointedly, Dr Butler points out that retinal haemorrhages in themselves are not diagnostic of any particular problem or condition. They need, she reminds us, to be considered in the context of the child as a whole. She identified the number of conditions which can give rise to retinal haemorrhaging.[32]Dr Butler investigated possible alternative explanations for retinal haemorrhages which included: coagulation defects, both potentially inherited, or otherwise acquired; the significance, if any in the case, of retinal haemorrhages following normal vaginal delivery; retinopathy or prematurity related causes; and the possibility of retinal haemorrhages related even to vaccinations. On the latter point, she emphasises, as do I, that there is no reported association between childhood vaccinations such as MA had received on 7th January 2014 and retinal haemorrhages. Metabolic diseases and abnormalities of blood vessels within the retina were also considered. Ultimately, Dr Butler concluded that there was no support for the explanation of a short distance fall of the type the mother speculates upon having not in fact, she states, seen anything herself. Dr Butler concluded that in the absence of any medical cause or reported accidental trauma, MA most likely suffered an unreported shaking or acceleration/deceleration injury. She concluded, as was subsequently endorsed by Dr Stivaros and Mr Richards, that if that was the cause, MA’s collapse was likely to have followed very closely upon it.[33]Dr Morrell, consultant paediatrician, was finally asked to conduct a wide ranging review of the medical notes, the statements, and the reports of the other experts I have mentioned. He conducted a broad survey of any possible metabolic disorders or other genetic disorders potentially consequent on the parent’s consanguineous marriage. I do not want further to burden this judgment with the extent of the survey undertaken other than to say that it was regarded by all the other medical experts as extensive and ultimately persuasive. Menkes disease, galactosaemia, methylmalonic aciduria, a disorder associated with intracranial haemorrhage but here excluded by your intestine for organic acids, coagulation disorders to which I will return, each was discounted, as too was Ehlers-Danlos syndrome, occasionally but rarely associated with subdural haematomas. Dr Morell agreed with the other experts that, ultimately, the likely explanation and, indeed, the only one that unifies the symptomatology was a shaking injury.[34]In some respects, therefore, it might be thought that no further exploration of the medical evidence is required given the level of agreement. There had, however, been two experts’ meetings in accordance with what is now good practice in cases of this kind. The first had taken place on 8th May 2014 and the second on 3rd September 2014. The minutes of both are included within the papers and have been endorsed by all those present as accurate. Mr Richards had been plainly unhappy with the overall picture. At the notes of the telephone conference on 22nd May he is recorded as saying as follows:
“From my perspective, as a neurosurgeon, it could all be explained by a simple straight forward loss of control momentary shaking of X, but in view of the things that have unfolded, the unusual degree of restriction, the unusual fact that you had a mass producing subdural that the surgeon felt appropriate to remove, the fact that when they did remove it it was specifically said there was old blood... Now, I was not there, I did not see it, but it is in the operation notes and the consanguineous parents, these just raise some questions that you, you know... that little crow is on your shoulder saying, ‘Are you sure? Are you sure?’”
Dr Stivaros echoed Mr Richards’ concerns and talked of having:
“A few little alarm bells ringing that maybe we could potentially be missing something here.”
Dr Butler expressed her reservations in relation to the retinal haemorrhages marshalled by Miss Meyer in her arguments on behalf of the mother. Dr Butler states:
“I have not been able to find any means of having any indication of when these haemorrhages occurred. That is what I am struggling with. I cannot say to you that at least some of these haemorrhages occurred within one to five days from the images that were taken when the eyes were examined. I think, having had another look this afternoon at the RetCam pictures that were sent to me, looking to see if I can see any of the same shape nerve fibre layer haemorrhages, they are the ones that go away very quickly. I cannot, in all honesty, convince myself that I can, with the certainty that the court needs, and that is the difficulty. There is one patch I have seen which might, but it is not a very good image. Then I think I would have to say that I doubt if it really was a nerve fibre layer haemorrhage. So these haemorrhages I am seeing now could have happened some time before presentation. I can’t tell you when. I don’t know if there are any nerve fibre layer haemorrhages there to start with.”
[35]Following this meeting, a series of questions were presented by the lawyers. The MRI scanning of MA’s blood vessels into the neck and brain were undertaken and Dr Morrell filed the report that I have just been at pains to outline. A further meeting was convened. This was a meeting that considered all the reports and the core medical evidence in meticulous detail. However, what is ultimately clear is that each expert came to the decided view that trauma was the most likely explanation and, therefore, that the mother’s account was unlikely or very unlikely. The relevance of the parents’ consanguineous relationship had effectively been discounted. The fact of the unilateral subdural was regarded as unusual, but not inconsistent with the preferred conclusions. Mr Richards told me that the unilateral nature of the subdural was more consistent with a throw than a shake and there remains the real possibility therefore to my mind, as foreshadowed by Dr Stivaros right at the beginning of the enquiry, that what was occurring here was a shake followed by a throw.[36]To borrow Mr Richards’ metaphor and to adopt it, the crow had flown from the shoulder, though I think it is fair to say that it was for him still in sight. Those who practice in this area of law and medicine are acutely aware that opinions in these cases must be arrived at by a process of exclusion, balanced alongside recognised patterns and presentations. Studies in shaking injury cases have, of necessity, significant and inevitable limitations. It is for this reason and at this stage, i.e. when the medical view is that the likely cause is inflicted trauma and not before, that the broader canvass and, in particular, the evidence of the carers becomes significant.[37]Mr Richards, whilst aligning himself with the consensus view, emphasises that whatever the phrase used, ‘very unlikely’ or ‘extraordinarily improbable’, it is never correct to discount an explanation such as given here as “impossible” even where there has been an extensive exclusionary survey of the options, and notwithstanding the recognised markers of significant subdural haemorrhages, encephalopathic presentation, and retinal haemorrhaging. Nor is the forensic process ultimately any more conclusive. Judges can only ultimately construct a tapestry from the available thread. It is the combination of rigorous medical enquiry and searching investigation of the facts that informs ultimate findings to the requisite standard of proof, that is the balance of probabilities, nothing more nor less.[38]Here, the history reveals a family who have never previously come to the attention of the Social Services, one in which all the children are plainly much loved and cared for and where there is good and well established evidence of healthy strong attachment between the children and both parents, itself a contra indicator of physical abuse. Moreover, and particularly in the context of a loving family such as this, I regard the shaking of a 13 month old child to the extent that he has been left with permanent brain damage is an inherent improbability in and of itself. I factor that into the constellation of features to be weighed without, of course, permitting it to distort the test to be applied.[39]Miss Meyer has, on behalf of the mother, put the entire process of reasoning here meticulously and economical to the assay. She distils her essential points in her closing submissions. She emphasises that the so-called triad when complete is not diagnostic or, as she put to the various medical witnesses, in any way pathognomonic of a shaking injury. She observes that for each individual sign relied upon there is still an element of uncertainty. She notes in particular, firstly, the evidence of Mr Richards to the effect that there may well be a higher incidence of acute subdural and retinal haemorrhages following low level falls. Secondly, that Dr Butler was unequivocal in her inability to date the retinal haemorrhages. It is not a given therefore, submits Miss Meyer, that these date from the time of the subdural and the encephalopathy. Accordingly, at least theoretically, the triad cannot unequivocally be found to be present as a result of an incident on 13th January 2014. Thirdly, it is emphasised that it has not been possible for the experts to identify the source of the bleed within MA’s head. Therefore, it follows that whilst reliance is apparently placed on the diffuse nature of the bleed to suggest inflicted injury, Dr Stivaros, it is contended, was unable to indicate whether the bleed came from one vessel, or more than one vessel. Fourthly, it is highlighted that Dr Morrell observed in oral evidence that in connection with the postulated mechanism of a shake, nobody precisely knows what disturbs the respiratory centre of the brain and, by implication therefore, the encephalopathy/ischaemic damage elements of the triad. Finally, again from the evidence of Mr Richards, it is submitted that an individual’s response to the circumstances resulting in head injury cannot be predicted. Mr Richards had observed in evidence that:
“No two head injuries are alike. It may depend on a light difference in angle of the head. [He postulated an example where] You can have a car crash where the same forces will be involved and two people in the car might get hurt and two might walk away.”
[40]Miss Meyer rehearses extensively the putative differentials which I have now taken some time to work through. I should though address the proposition that the subdurals were causative of the ischaemic damage which was undoubtedly present. Here, with respect to Miss Meyer, it is important to embrace all of Mr Richards’ evidence on the point, not merely his concessions to the hypothesis. Certainly, the description of MA’s health from the mother in the period between 7th January and 13th January could indeed, it was acknowledged, be compatible with episodic spiking intracranial pressure contributing to the collapse and the finding scene thereafter. However, conversely, firstly as Miss Meyer acknowledges, the expectation in such circumstances would be intracerebral as opposed to subdural bleed. Perhaps most significantly and this Miss Meyer saysis as Mr Richards puts it, the significance of that which is not there as much as that which is. Collapse attributable to raised intracranial pressure would have revealed itself in a child who was manifestly and obviously unwell, especially in the period leading up to his collapse. Mr Richards simply did not recognise that scenario from the history given. Moreover, I heard, and he did not for it was a departure from the mother’s written case, that, in her view, MA on 13th January 2014, as I have already observed, in fact appeared to her to be better than he had been for some days. The lunch of chicken that he had enjoyed was, according to the mother, more than he had eaten for some time. Whether or not that was true, it is, in any event, irreconcilable with a developing encephalopathy and rising intracranial pressure. The existence of any pre-existing subdural collection therefore becomes redundant.[41]One final theory advanced which requires comment is the proposition that underlying this presentation might be as yet undiagnosed Von Willebrand disease. That comes from a paper published in 2011 by Arne Stray-Pederson et al, peer reviewed, and accepted on 12th June initially in 2010. It concerned an eleven month old girl presented to hospital with what is described as a massive subdural haematoma and bilateral retinal haemorrhages following an allegedly minor fall. There were no external signs of bruising and no prior bleeding tendency was reported. Although initial analyses were normal, repeated testing of the coagulation fibrinolysis system led to a diagnosis of mild Von Willebrand disease type 1. It was concluded that minor head trauma, as described by the parents in the presence of such a coagulation disorder, could explain the findings. Police charges against the parents initially accused of child abuse were withdrawn. Retinal haemorrhages in infants with Von Willebrand disease have not previously been reported. This case highlights the importance of considering Von Willebrand as a possible contributory factor in case of infant head injury.[42]Miss Meyer put such a proposition to each of the relevant experts. Each, to my mind, was in a position comprehensively to discount it. Firstly, there had in that case been an earlier transfusion which might have masked the findings. Secondly, there was no ischaemic brain damage present. Thirdly, as Dr Butler observed, albeit slightly outwith her area of expertise, MA had earlier been circumcised and she considered that Von Willebrand disease was likely to have demonstrated itself clinically in such an event.[43]I turn now to the lay evidence. The doctors ultimately reject, subject to the caveats I have outlined, the mother’s account of events leading to MA’s collapse. That they do so does not mean that I must. In the courtroom, the reliability of an account is tested by conventional forensic strategy. For example, is it a consistent account given from the start? Is it supported by external factors, such as a recording of a telephone call or attendance at school? Is it an account which has its own logical internal consistency? The demeanour of the witness, both in evidence in chief and in cross-examination, will also be relevant. Does the witness ultimately present as a witness of truth? In that evaluation, of course it is important never to lose sight of the fact that in cases involving allegations of injury to a child by a parent, the warnings in R v Lucas [1981] 1QB 720 can rarely be more apposite. Further, as Mr Justice Charles sensibly extrapolated from Lucas, the fact that a witness or even two witnesses may have contrived a lie over one point does not irredeemably condemn their evidence on other issues. The process, whilst fallible, is more subtle than that.[44]If, as I do here for reasons I will turn to shortly, I reject the mother’s evidence, the congruence of my own assessment determined on forensic principles with the expert consensus predicated on medical evidence, permits each to reinforce the other, but it does not establish an unbreakable logical nexus. Ultimately, the process is one of reconstruction in which an unknown aetiology must always remain. The crow on the shoulder, as Mr Richards termed it, should always be regarded as a welcome visitor.[45]In Re: R (A child) [2011] EWHC 1715, Mr Justice Hedley heard a case in which he was required to determine causation of subdural haematomas in a three month old baby. In that case, at paragraph 9 he stated as follows:
“These issues, however, are not confined to this jurisdiction. They occupy much time of the judge and jury in the Crown Court. There too these issues cause great anxiety and difficulty. In the case of Henderson & Ors [2010] EWCA Crim 1269, the Court of Appeal Criminal Division sought to address these matters. Conspicuous effort was made to ensure that the experience of the Family Court was fed into that court’s consideration. It may be worth reflecting on the words of Lord Justice Moses which introduce the judgment of the court in that case.”
[46]Lord Justice Moses said the following and I agree with Mr Justice Hedley that it is always constructive to have it in mind. He says this:
“There are few types of case which arouse greater anxiety and controversy than those in which it is alleged that a baby has died as a result of being shaken. The controversy to which such cases give rise should come as no surprise. A young baby dies whilst in the sole care of a parent or child-minder. That child can give no clue to clinicians as to what has happened. Experts, prosecuting authorities, and juries must reconstruct, as best they can, what has happened. There remains a temptation to believe that it is always possible to identify the cause of injury to a child. Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”
[47]The temptation there described is ever present in family proceedings too and, says Mr Justice Hedley, should be as firmly resisted here as the courts are required to resist in criminal law:
“In other words, there has to be factored into every case which concerns a disputed etiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor 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.”
[48]Mr Vater QC and Mr Bailey, appearing on behalf of the Local Authority, have prepared a helpful schedule listing what it is contended are inconsistencies in the mother’s accounts, or in accounts relayed by others purporting to rely on what they have been told directly by her. There are approximately a dozen examples not all of which survive when put rigorously to the assay as Miss Meyer has emphasised. There is also a need for great caution when peeling back the difficulties in translation from Urdu to English. It is simply not necessary for me to resolve each one of these alleged inconsistencies. They mainly revolve around whether the mother “saw” or “heard” the alleged fall. I do, however, make the obvious observation that the number of occasions in which there is apparent inconsistency is troubling particularly because the given history will always be an extremely important factor in understanding the symptomatology. I can, however, make clear findings regarding the conversation between the mother and her brother MY.[49]There are three significant passages in his very recent statement dated 8th October 2014. At paragraph 3, he states as follows:
“I was in the library at around, I think, 3.30 pm to 4.00 pm on the afternoon of 13th January 2014. I cannot be sure of the time. I can’t say it was definitely that time. I received a call on my mobile phone from my sister NB who is MA’s mother. She said MA was ill, but she wasn’t sure what had happened to him. She said his face had changed colour and was a blue-ish green colour and that he had fallen from a chair.”
[50]At paragraph 4, Mr MY stated that he believed his sister had phoned her husband first and then him:
“He called the ambulance in my presence. My sister’s ability to speak English is limited and she was distressed. She did not say anything about what had happened other than she had gone into the kitchen to get some milk and MA had fallen from the chair. I saw the chair he fell from, which is cream coloured, not a baby chair.”
[51]Finally, at paragraph 7:
“When we arrived at the Hospital, there was a lady we met there who I’m not sure whether she was a doctor or a nurse. She spoke to my sister in Urdu about what had happened to MA. I cannot remember exactly what was said, except that my sister said she had gone into the kitchen and the baby had fallen from the chair. I wish to confirm that I did not act as an interpreter for my sister and brother-in-law whilst we were at the hospital. Both of them have limited ability to speak English. They can speak and understand a little.”
[52]Mr MY denied the accuracy of these three crucial passages suggesting that there have been, as I understand it, a misunderstanding by the lawyer who had taken the statement down on his behalf. This would, to my mind, have been difficult to sustain given Mr MY’s demonstrated ability to read English, but it foundered completely when Mr Singh Hayer on behalf of the children drew Mr MY’s attention to the fact that in the original of the statement drafted in Urdu, Mr MY had been sufficiently meticulous enough to amend the errors in the statement on reading it through. I have no doubt that the mother gave her brother the accounts he related. This is manifestly a close relationship. To Mr MY’s credit, he readily conceded that he and the mother had discussed the evidential difficulty that they were facing in consequence of his statement during the course of this hearing.[53]I am satisfied that his retraction is a false one designed to assist the mother. Equally, I am satisfied that the mother initially gave a different account to that which she is now advancing. I find that she has, with some subtlety, changed her account when she realised it was unlikely to survive medical scrutiny. It became no longer an account but, in effect, a hypothesis. I confess I have also found it difficult to understand how it is said that MA came to be found straddling the kitchen and the sitting room. For his legs to be in the kitchen and his head in the sitting room, he would presumably have had to have fallen backwards whilst in the kitchen where the mother, of course, claims she was. The mother’s inconsistencies on these crucial issues illuminate ultimately, in my view, a lack of truthfulness and, for the reasons that I have said, serve in effect to reinforce the medical consensus.[54]I do not stop my analysis of the evidence here. Experience has shown that injuries of this kind often reveal recognisable stress factors in the carer’s domestic life and circumstances. This evidence needs to be considered with very particular care. It has no independent probative value of its own, but it may, in my judgment, serve to reinforce other findings where it is consistent with them. No doubt the evidential value will vary from case to case. I find that there were a number of striking stress factors in the parents’ household.(i) The mother regarded the responsibility of caring for the house and children as hers, a view partly rooted in her cultural background.(ii) Though the father sought to give support, for example, by transporting BA to school, his work commitments and, to some extent, his social commitments rendered this of limited effect.(iii) Neither parent had developed an effective strategy for managing BA who undoubtedly, for a complexity of reasons, had become a child who absorbed much of his parents’ energy by day and night.(iv) The mother was on a daily basis isolated with limited social network outside of her brother’s home.(v) On the weekend prior to MA’s collapse on 30th January, the father had taken new employment which left the mother managing alone for the whole of the weekend.(vi) At around that time, the mother had to manage MA in a general condition of being out of sorts as well as his consistently demanding elder brother.(vii) On 13th January, MA had been sick and required a complete change of clothes. The mother was facing a long day and evening unaided.(viii) Due to the father’s employment, the mother had not been able to go to her brother’s house that weekend. It is not difficult to understand in this context how a mother, exhausted and at the end of her tether, facing a third day caring for demanding children largely alone, might momentarily lose control. This, I conclude, having reviewed the whole of the available evidential canvass here, is what happened on 13th January 2014 with, sadly, such profound consequences. [Judgment ends]