H (A CHILD) [2014] EWHC 970 (Fam)

[2014] EWHC 970 (Fam)

Case No KD13C10058

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

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

Date 31/03/2014

Before

THE HONOURABLE MR JUSTICE BAKER

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF H (A CHILD)

Between

Z COUNTY COUNCILApplicant

A MOTHER (1)Respondents

A FATHER (2)Respondent

H (by his Children’s Guardian) (3)Respondent

Anthony Hand (instructed by A County Council Legal Services) for Applicant

Leslie Samuels QC and Christopher Poole (instructed by Child Law Partnership) for First Respondent mother

Kate Branigan QC and Alison Grief (instructed by Blackfords) for Second Respondent father

Margaret Pine-Coffin (instructed by Dutton Gregory) for Third Respondent by his Children’s Guardian

Hearing Hearing dates: 5 th to 7 th, 10 th to 14 th, 17 th to 19 th February, 3 rd to 5 th March 2014

Judgment

IMPORTANT NOTICE

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (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.

The Honourable Mr. Justice Baker:

INTRODUCTION

[1]On 6th May 2014, a 5-month-old baby girl, hereafter referred to as “V”, was taken to hospital in a state of complete collapse. Despite the strenuous efforts of medical staff, she died on the following day.

[2]Lengthy post-mortem examinations concluded that she had sustained a series of injuries on a number of occasions. Her parents were interviewed and subsequently charged with criminal offences arising out of her death, and are currently awaiting trial at the Crown Court.

[3]V had an older brother, hereafter referred to as “H”. Following V’s death, the local authority started care proceedings in respect of H, which have been transferred to me to determine. This judgment is delivered at the conclusion of a fact-finding hearing in those proceedings in which I have considered the circumstances and causes of V’s injuries and ultimate death.

BACKGROUND

[4]The father was born in 1985 and is therefore now aged 28. The mother was born in 1987 and is now 26. When she was a child, her mother, hereafter referred to as ‘the grandmother’, remarried a man hereafter called ‘the grandfather’ with whom the mother developed a close relationship. Over the years, the grandmother developed a serious drink problem. Plainly this became a matter of great concern for the grandfather and the mother and, as will become clear, reached a crisis point in the first half of 2013.

[5]The mother left school at 16 and has had several jobs including working for RBS where she met the father. The father left school at 15 and has been in continuous employment ever since in a series of jobs in financial services. He has had some disciplinary problems at work, including in the early part of 2013. Unlike the mother, who says she has never taken drugs, the father has regularly used recreational drugs throughout his adult life. Latterly, this use has consisted of smoking cannabis every day, and occasionally taking cocaine when he goes out at weekends. The father also drinks alcohol to excess on occasions, describing himself as a binge drinker. In oral evidence, he said that he went binge drinking once or twice a month. He said that he would not know how much he drank on those occasions “because I was quite stupid and on most of those occasions I would go past my limit and be paralytic.”

[6]The parents met at work and started a relationship but separated before the mother discovered she was pregnant. On 17th July 2009, she gave birth to a son, H. She and the father remained on good terms and, after the birth of the baby, the father had regular contact with H and quickly formed a close relationship with him. When H was about 18 months old, the parents resumed cohabitation and the father moved in to the property which the mother was renting.

[7]It is the unanimous evidence of the family members who gave evidence that the relationship between the father and H is extremely close. Cross examined by Miss Branigan QC on behalf of the father, the grandfather described the father as being H’s hero. He was, said the grandfather, “an amazing father”. He was very thankful that his daughter and the father had got back together. He agreed with Miss Branigan that the father and H were “best friends”. He said that H couldn’t wait for the father to come home for the evening. The grandmother described the father as “a brilliant father to H”. The mother also described the father and H as best friends. She thought that he was “a bloody good dad”.

[8]The father continued to take drugs, and it is clear from text messages passing between the couple and subsequently produced by the police in the course of these proceedings that this was a cause of anxiety for the mother. In addition, it is accepted that, on occasions, during arguments between the parents, the father was angry and verbally aggressive towards the mother, although not physically violent. The mother said that there had been arguments with the father but he had never hurt her. Sometimes the arguments were fuelled by drink. In oral evidence, the mother said that, if she and the father had a bad argument, he would tend to scream in her face. If they were having an argument, he could not talk to her. Instead he would shout. He would put his face next to her and scream at her and call her names, but never threaten her. The mother thought that this had probably happened a handful of times. In the text messages transcribed by the police, the mother refers in one message to the father having kicked a lock off the wall. The mother said that she did not recall what this was about. In oral evidence the maternal grandfather described an occasion when he had woken up hearing an argument between the parents. He saw the mother sitting on a chair and the father ‘in the mother’s face’. The grandfather added:

“his body language, actions, his whole demeanour – if I hadn’t put a stop to it, I don’t know what would have happened.”

[9]The text messages show, and the parties accept, that on occasions H witnessed some of these arguments. In one text message in November 2012, the mother refers to H being frightened about what he had seen, thinking that the father was going to hit the mother. The mother asserted in the message that the father needed to sort out his anger because it could get worse. In oral evidence, the mother said that, despite his anger, the father had never given her any cause for concern about his parenting.

[10]The father said in evidence that he and the mother argued about a whole range of things. It could start over a little thing and just escalate. Cross-examined by Mr Hand on behalf of the local authority, he said that the arguments had been two-sided but accepted that he had always found it difficult to cope with his emotions. He said that the mother knew how to get an emotional response out of him. He continued in answer to Mr Hand:

“nine times out of ten it would be anger, it would be shouting and I couldn’t stop it happening”

. He accepted that he was unable to stop himself getting angry in front of H. He said that, looking back on it, it was “disgusting behaviour”.

[11]On 16th December 2012, the mother gave birth to her second child, a daughter, V, by Caesarean section. In the early days of V’s life, when the mother was recovering from the operation, the father was responsible for most of the care of the baby. When V was seen by the midwife and health visitor in the first few weeks, no concerns were noted. On 5th February, at the six week post-natal check, the health visitor again had no concerns and noticed good interaction between parents and the baby.

[12]The parents’ case, confirmed by the grandparents, is that, when she was several weeks old, V started to become anxious and distressed when being held by anyone other than the mother or the grandmother. It is agreed by all family members that she became distressed when being held by the father but also that this happened when being held by the grandfather, and in fact by anyone except the mother and grandmother. On 14th February, the mother took V for her developmental check by the GP. The mother expressed concerns that the father was not forming much of an attachment with V, in contrast with his attachment with H. The mother was advised by the GP to be patient about this and that it might take time to achieve an attachment.

[13]Plainly, V’s reluctance to go to her father caused difficulties. In his evidence in chief, the father said that when V started to show reluctance to be held by him, he and the mother had put it down to his going back to work. Cross-examined by Mr Hand, he said that V’s adverse reaction to him had been difficult for him because he was “a hands-on parent”. He said that he had not got frustrated about this but accepted that it was upsetting. He said that he had been “hurt at not being able to do more as a parent.” The grandmother said in evidence that the mother had described herself as feeling like a single parent because V would not go to the father.

[14]At about the same time, the parents started noticing bruises on V’s face. It is their case that they thought that V was inflicting these bruises on herself. They saw her pinching her face and putting her fingers in her mouth and pressing her cheek between her finger in her mouth and thumb on the outside. In March, a conversation took place between the mother and CJ, a nurse who worked at H’s nursery. CJ subsequently told the police that she remembered the mother saying that she was quite worried as V kept hurting herself and getting scratches and bruises on her arms, legs and face. She said that the mother said that she could not get V weighed because she felt embarrassed about what other people might think of V’s injuries. The mother denies that she ever mentioned any marks on V’s arms or legs. She does, however, accept that she was concerned about the marks on V’s face, and on other occasions expressed reluctance about taking V out because of what other people might think.

[15]These marks were also seen by the grandparents. In oral evidence, the grandfather said that he would explain the marks on V’s face as a recurring bruise in the same position and that it was common to see a bruise on her face and this did not cause alarm. The grandmother expressed a somewhat different view. She said that the mother had told her that she had left V with the father on one occasion and, when she had returned, V had some bruises. The father had told her that she had pinched herself. The grandmother said that she did find this strange because she had never known a baby do that before. She said that the mother had been concerned about the baby bruising herself and she did not know what to do. The grandmother accepted that the mother became concerned about taking the baby out because she was worried about what people might think. The grandmother said that she had advised her to seek medical advice.

[16]The father says that, on a date in March 2013, when V was in her baby bouncer hanging on a door at the property, the bouncer fell to the ground, although there were no apparent injuries sustained by V as a result of this incident. On 28th March, V was taken by the mother to the practice nurse for immunisations. No reference was made to any marks on her face. On 7th April, V was admitted to hospital overnight with what was diagnosed as an upper respiratory tract infection. Again, no mention was made of the marks on her face. On 13th April, according to the parents, a cot mobile fell on V while she was in her cot, but again no injuries were sustained.

[17]At this time, the mother was attending a gym class known as “Bootcamp” about once a week. The mother accepted in cross-examination by Miss Branigan that she went to the Bootcamp gym session because she needed a break from V. She denied, however, that she found looking after V burdensome. She accepted that she was tired during the night feeds and she had found it frustrating on a couple of occasions when she had got up to feed the baby and the father was just going to bed and refused to help because he was getting up to work the next day. On 15th April, the father was looking after V while the mother was out for an hour at Bootcamp. During the course of this period, he texted her saying that V was making ‘that weird noise again’ and adding ‘she hates me LOL evil little girl’.

[18]The father took annual leave on three days between 22nd and 24th April. On 22nd April, the mother texted him saying, ‘V driving me insane, I actually could leave LOL’. On 24th April, the father again looked after V while the mother went out for a short period. On 25th April, V was seen by the practice nurse for further immunisations. Once again, the bruising on her face was not mentioned.

[19]Meanwhile, the grandmother’s drinking was getting worse. The grandmother in her oral evidence was very frank about her drink problem at this time. When she came to give oral evidence, she had been dry for ten months and was manifestly in much better health. In the early parts of 2013, however, she was in a poor state. She accepted that there had been times when she had not been sober and therefore could not help look after the children. She said that the mother would never have allowed her to look after the children if she had been drinking. She accepted that, when she was on a binge, she was not available to help the mother. By April, the situation had reached crisis point. The grandfather described how his wife’s drinking had got out of control so that he could not stay in the same house as her. The mother accepted that, when she was drinking, the grandmother had been “a nightmare”. As a result, the grandfather managed with great difficulty to find a rehabilitation unit to take her and with the mother’s assistance moved the grandmother into the unit on Sunday 28th April. On that date, the mother was away from the home for about six hours when V was looked after by the father.

[20]The mother said that during this day she had some difficult conversations with the grandmother, in one of which there was a scuffle. During the day, the grandmother sent a text message to the mother saying ‘well, you can’t take them kids away from me, because [the father] has hurt that baby’. The mother denied that she had said anything to the grandmother about the father causing the bruising or any other injury to V, although she accepts that she was concerned about the marks. Cross-examined by Miss Branigan about this text message, the mother agreed that the grandmother had been responding to something that she had said. She accepted the suggestion made by Miss Branigan that she may have told the grandmother that the father had said that she could not look after the children because of her drinking. In her evidence, the grandmother said that she did not recall sending any text message alleging that the father had injured the baby, adding that she was in a bad way and would often send texts “just to be nasty.” She said that the mother had never suggested to her that the father had hurt V. The father’s explanation for the grandmother’s text message in which she accused him of hurting V was that the mother had told the grandmother that every time V had been left in his care, she had discovered bruises when she got back. In other words, it is the father’s case that the mother had falsely accused him of injuring V and the grandmother had repeated this back in the drunken text.

[21]On 30th April, during the morning, a series of text messages passed between the parents. The documents produced by the police include a disclosure of transcripts of the first line of these text messages. As this disclosure is incomplete, the court has exercised great caution in interpreting the messages. It is clear from those texts, however, that the parties were expressing renewed anxiety about the marks on V.

[22]On 1st May, a Wednesday, the father texted a neighbour, from whom he regularly purchased cocaine, to enquire whether he was ‘getting any more of MD’. The local authority suggested that this was a reference to the drug MDMA, but the father stated that ‘MD’ was the name of a drug dealer. His neighbour replied that he did not have any available. The mother asserts that she was at her gym class at the time when these text messages were exchanged, so at that point the father would then have been looking after the children. In oral evidence, the father said (apparently for the first time) that he did in fact keep cocaine in the house.

[23]On 2nd May, the mother took V to see the family GP, Dr P, concerned that she might be suffering from a chest infection. The GP thought that there were no obvious signs of infection. In a subsequent statement to police, the GP said that he noticed V putting her hands to her cheeks and pinching and pulling them in a way that he described as ‘quite hard’. He thought that the pressure she used could have caused inflammation in her cheeks. Dr P told the mother that he was not concerned about these actions as it was something that teething babies may do. In his police statement, he said that he saw no bruising. He added that he considered the mother’s actions and questions to be appropriate.

[24]Over the following weekend, the parents and children went to stay at the grandparents’ home for the weekend. At that stage, the grandmother remained in the rehabilitation unit. On Sunday 5th May, because they thought she was unwell, the parents took V to the out of hours clinic at the hospital where she was examined by another GP, Dr H. In a subsequent police statement, Dr H said that the first thing she noticed when V was brought into the room was that she had two small almost symmetrical bruises on each cheek. She did not take any measurements but said in evidence that they were round or oval shape and she thought they were maybe less than 1 cm in diameter. Dr H asked the mother about these marks and was told that V pinched herself when she got angry. In her police statement, Dr H said that she did not consider this very likely. She diagnosed an upper respiratory tract infection but, after the parents had left, she asked for her notes to be faxed to the family’s GP, because of her concerns about the bruises.

[25]The precise events of the following morning, Monday 6th May, have been the subject of an intense focus during the hearing before me. I will consider the evidence about the early part of this morning below. At some point after 10 am, the mother went out for a manicure, and the grandfather and H went out to the shops. The father was therefore left at home caring for V. It is his case that, while he was feeding V, she had a choking episode and collapsed. The father’s account is that he was feeding V on the sofa cradling her in his arms. In the course of doing this, he sat her up on his knee and winded her. The second time that he did this, she burped and a clear mucous came out and she started choking. The father says that he then smacked her on the back. In his statement dated June 2013, the father said about the smack; “I immediately smacked her on the back. I had no idea how hard I did this. It was an instinctive smack as I tried to dislodge what V was choking on. The first smack on the back did not work and I did this again. I cannot remember how many slaps on the back I did, but V then went limp.” In oral evidence, he said he slapped her on the back two times, adding:

“it was pretty hard – I panicked”

. Within ten or fifteen seconds of that, V went limp. He then held her in his left arm, stood up and went into the kitchen to get his mobile phone and called for an ambulance. A transcript of the telephone call, timed at 10.47, has been produced for the hearing.

[26]Paramedics arrived within four minutes of the call. One of the ambulance technicians, PH, said that, when he asked the father what had happened, he was told that he had fed her about ten minutes previously and then put her down and gone out of the room and then come back to check her and found that she wasn’t breathing. The father denied in evidence that this is an accurate account of what happened when V collapsed, and other paramedics record him as saying that he had been feeding V with the bottle when she had choked and that he had tried to slap her back to resuscitate her while trying to call for help.

[27]V was taken to hospital by ambulance where she arrived at 11.13am. On arrival, a number of bruises and marks were seen on her face. Over the next 24 hours, great efforts were made to revive her. A number of examinations were carried out, including blood tests and CT scans, which revealed the presence of intracranial bleeding. However, all attempts to revive her failed, and she was pronounced dead at 19.00 hours on 7th May.

[28]Social services and the police had been informed about the incident. Thereafter, the police carried out extensive interviews of all family members. The local authority started care proceedings in respect of H and obtained an interim care order under which he was placed initially with relatives and then with a family friend with whom he remains. The police investigation was put on hold pending the outcome of the extensive pathological analysis. During that time, the parents remained together and the father continued to have a good relationship with members of the mother’s family.

[29]All that changed on 10th December 2013 when the parents were re-interviewed and informed about the findings of the post-mortem examination, in which it was concluded that the cause of death was an inflicted head injury and that in addition there was evidence of earlier bony fractures on at least two separate occasions. Subsequently, the father was charged with murder and remanded in custody, and the mother charged with allowing or permitting V to sustain injuries, following which she was remanded on bail. The criminal trial is listed for June 2014.

[30]At that stage, the family proceedings were transferred to the High Court, and in due course listed for a fact-finding hearing before me which took place in February 2014.

THE ISSUES AND HEARING

[31]It is accepted that the injuries sustained by V are the consequence of at least three episodes of trauma. The principal issues to be determined are therefore (1) how V sustained injuries on three occasions and (2), if they were inflicted non-accidentally, the identity of the perpetrator. It is accepted that no explanation has been given by the parents as to how the injuries may have been sustained, save for the suggestion on behalf of the father that the episodes which he describes as having taken place on the morning of 6th May could provide a partial explanation, namely that the episode of choking could have caused a cessation of breathing leading to hypoxic-ischaemic damage, and his panic reaction, which (in some of his accounts) may have included some shaking, may have accidentally have caused intra-cranial bleeding.

[32]The written evidence put before me filled 12 lever arch files. The greatest proportion of paperwork consisted of over 2000 pages of documents produced by the police (some of which were not produced until after the date on which the hearing was due to start), plus in addition statements prepared specifically for these proceedings, medical records, social service records including contact notes, and reports from medical experts. The expert evidence falls into two categories. First, there is the evidence of the team of pathologists involved in conducting the post-mortem examination. The team consisted of Dr Russell Delaney, consultant forensic pathologist, Dr Daniel du Plessis, consultant neuro-pathologist, Dr John McCarthy, consultant ophthalmic pathologist, and Professor A. J Freemont, consultant histopathologist. Secondly, there are expert reports prepared specifically for these proceedings by Mr Jayaratnam Jayamohan, consultant paediatric neuro-surgeon, Dr George Rylance, consultant paediatrician and senior lecturer in child health, Dr Katharine Halliday, consultant paediatric radiologist, and Dr Neil Stoodley, consultant neuroradiologist.

[33]The hearing was originally listed for nine days but, because of late disclosure of information by the police, and severe delays in the production of the father from prison, it ultimately stretched over 12 days. Seventeen witnesses gave evidence in the following

[34]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.

[35]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.

[36]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. 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

[37]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 a 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.

THE INJURIES – EXPERT EVIDENCE

[38]In summary, the injuries sustained by V were i) Extensive bruising to the face and head, bruising under the scalp, and bruising to the chest and abdomen; ii) Bony fractures, consisting of eight fractures of the ribs of at least two different ages and fractures to the right parietal bone. iii) Very extensive injuries to the eyes, including extensive retinal haemorrhages in all four quadrants in each eye at multiple levels; iv) Intracranial and spinal bleeding,; v) Brain damage, consisting of multicentre axonal injury and hypoxic-ischaemic injury, coupled with axonal injuries of the spine. I now consider these injuries in turn, together with evidence of the experts about four issues that have arisen during the case, namely choking; resuscitative shaking; the possibility of a “lucid interval”, and the timing of the final traumatic event.

Bruises

[39]As mentioned above, Dr. H on 5th May observed 4 bruises on V’s face. On arrival at hospital on the 6th, bruises were also observed on her face and body. At post mortem, a number of marks and bruises were identified by Dr. Delaney. Some were attributable to medical procedures. There were also two bruises observed on the chest and abdomen. In his report, Dr. Rylance identified seven definite bruises to the face, including an oblique linear blue bruise, measuring 4.4 x 0.3 cm over the right side of the head. Internal areas of bruising were also identified upon reflection of the scalp, including internal bruising over the right side of the head beneath the linear surface bruise just described.

[40]Several of the experts were asked to comment upon the suggestion that V had inflicted injuries by pinching herself. Dr Delaney commented that, whilst it is possible for a five- month-old baby girl to pinch herself, this would have had the capacity to cause only minor surface injuries such as a scratch or reddening of the skin. Dr Delaney found it difficult to believe that this mechanism would result in deep bruising to the soft tissues as seen on V’s face. There was nothing in the medical history or post-mortem tests to suggest that she had an increased tendency to bruise.

[41]Dr Rylance in oral evidence also said that there was no organic reason for V to bruise more easily than any other child. He would not accept the possibility that she could have sustained bruising to the face in the way described by the family, that is to say that she had inflicted it herself. A child of this age would not have enough power to cause bruises to herself. He acknowledged that there had been independent evidence, in particular that of Dr P, that V had been observed pulling at her face. Dr Rylance did not accept that she could bruise her face in this fashion. Without an underlying coagulation deficiency, bruises of this sort had to be caused by impact breaking down the capillary tubes. There therefore had to be impact with sufficient force. Like Dr. Delaney, he said that V would not have the power to pinch herself with sufficient force to cause bruising at her age.

[42]Dr Rylance regretted that Dr H did not make any drawing of the bruises to indicate precisely where they were on V’s cheeks. On the basis of what he had read, he thought it possible that they could have been caused by the application of a finger, although he was unable to say any more without knowing exactly the location of the bruises.

Rib Fractures

[43]Histopathological examination by Professor Freemont revealed fractures of V’s ribs of two different ages, some 10-14 days old (i.e. sustained between 23rd and 27th April), others 3-5 days old (i.e. between 2nd and 4th May). In an addendum comment made by email, Professor Freemont said that the date range he had given in his report for each fracture was “a probability range for each fracture”. In oral evidence, he said that the fractures were most likely to have occurred towards the middle of the period given. He said that the likelihood of the fracture occurring on any specific date increases the further one gets from the middle point of the date range. He accepted in oral evidence that the timing of fractures varies from person to person and also there can be a variation within each individual person. He conceded that it was possible that the fractures occurred on one day either side of the window he had suggested but the probability of that occurring was extremely small. Thus 1st May was on the outer side of the given range for the second rib fractures. He considered this to be an outside possibility. He did not think that 30th April was a likely date for the later rib fractures. Professor Freemont was unable to identify any abnormality of the bone that might have made them weaker and therefore more likely to fracture.

[44]In his report, Dr Rylance advised that rib fractures are uncommon accidental injuries in children because they occur in situations of severe trauma. Rib fractures are caused by a compression of the chest and the force needed to cause such traumas is “very significant”. Dr Rylance added that fractures of the neck of the ribs as on the posterior left 6th and 7th ribs in V’s case are frequently seen in non-accidental injury of children who have been subjected to squeezing of the chest and forcible movement of the ribs backwards over the transverse processes of the spine which act as fulcrums in such incidents.

Skull Fractures

[45]V sustained three fractures of the right parietal bone in her skull. Professor Freemont advised that the three fractures were all of a similar age, all showing a vital reaction, with fibrous tissue formation, bone cell death and osteoclastic bone resorption at the line of the fracture together with a periosteal reaction on the surface of the adjacent bone. These features led him to conclude that the fractures were between 8-14 days old at the time of death, i.e. were sustained between 23rd and 29th April. Dr Stoodley saw a lucency on the CT scans at a location associated with the fractures identified by Professor Freemont. Dr Stoodley noted that the lucencies were not associated with any soft tissue swelling which supported Professor Freemont’s theory as to the ageing of the fractures.

[46]Dr Rylance pointed out that such fractures do not occur spontaneously and in almost every case relate to directly applied trauma through impact or compression.

Haemorrhages in and around the eyes

[47]Dr McCarthy, who conducted an ophthalmic pathological examination of V’s eyes, found that she had sustained “extremely severe” retinal haemorrhages affecting both eyes and of fresh recent appearance so as to suggest that they were less than 48 hours old at the date of death. The injuries were consistent with having occurred at or around the point in time when she collapsed on 6th May.

[48]Dr McCarthy advised that, from the point in time when these haemorrhages occurred, V would have had no vision whatsoever.

[49]The retinal haemorrhages were associated with extensive haemorrhages within the orbital connective tissues, within the dural sheath of each optic nerve and within the subdural space of each optic nerve. The haemorrhages extended from the cranial end of each optic nerve to the ocular insertion. Dr McCarthy advised that there are no anatomical or pathological disease processes known that would cause or contribute to any haemorrhage within the orbital connective tissues or within the optic nerves.

[50]In addition, further testing established the presence of extensive positive granular material within macrophages, located in the rectus muscles of both orbits and within the connective tissue of both orbits. This showed that there had been at least one earlier episode of significant orbital haemorrhage affecting each orbit at a point in time at least 72 hours before V died. This indicated that there had been a traumatic episode previously which had damaged the orbital connective tissues.

[51]In Dr McCarthy’s opinion, retinal haemorrhages and optic nerve haemorrhages of this degree and extent are considered to be caused by significant head impact trauma or significant head movement injury. In most cases, there is a combination of impact and movement trauma.

[52]In oral evidence, Dr McCarthy reiterated his view that a mechanical cause was the most likely explanation for these haemorrhages. He conceded that the subsequent hypoxic-ischaemic injury might be a contributory factor in the development of the bleeding, together with raised intracranial pressure, but he concluded that the majority of the bleeding had occurred at the time of the traumatic event. Dr McCarthy did not give any credence to the theory that blood could have tracked from the subdural spaces.

Intracranial bleeding

[53]In his post mortem report, Dr. Delaney reported that macroscopic examination of the meninges revealed bilateral clotted subdural haemorrhage over the cerebral hemispheres no more than a few millimetres thick. There were some intact bridging veins on the left side, but none visible on the right side, with a clot around the areas where the bridging veins were expected to be.

[54]From his microscopic examination, Dr Du Plessis identified bilateral “thin film” acute subdural haemorrhage, which he regarded as showing a stage of repair consistent with the period of 32 hours between V’s collapse and subsequent death. He noted that microscopic histology-based aging criteria were not precise so that the appearances could accommodate some ongoing bleeding following hospital admission. Equally, subdural bleeding slightly earlier than the period of collapse could not be excluded and could be as old as 48 hours or possibly 72 hours, although this was far more difficult to reconcile with the other pathology. The vast bulk of the subdural bleeding appeared to be far more recent than 48 hours before death. Dr Du Plessis thought that the most likely timing of the subdural bleeding was consistent with allied pathologies such as the most likely timing of the retinal haemorrhages. There was, in this case, no evidence of previous episodes of subdural bleeding.

[55]The subdural bleeding, referred to as bilateral thin film bleeds did not amount to a large space-occupying mass of the sort more typically associated with accidental head trauma, and which might have caused compression of the brain so as to contribute significantly to raised intracranial pressure. Some studies indicate that subdural bleeds of this thin film type are more supportive of non-accidental head injury, though in Dr Du Plessis’s opinion this did not rule out the possibility of accidental head injury. There was no evidence of a natural disease process, such as a pre-existing clotting disorder, which could plausibly have accounted for or contributed to the subdural bleeding.

[56]The pathological evidence was confirmed by the radiological opinion. Dr Stoodley advised that the initial CT scan carried out on 6th May showed evidence of high attenuation in the interhemispheric fissure on both sides extending inferiorly to layer on the upper surface of the tentorium, and also into the posterior fossa, all of which represented acute i.e. recent subdural bleeding.

[57]Dr Rylance advised that the commonest cause of subdural bleeding in infancy after the first two months of life is trauma. Such haemorrhages are generated in shaking injuries including non-accidental shaking injuries. There are other causes of subdural bleeding, but there were no signs to suggest that any of these causes were present in this case. Dr Stoodley confirmed that the mechanism of injury was likely to involve shaking. He advised that the majority of medical opinion is of the view that what is likely to be required to produce such injuries is the backwards and forwards movement of the unsupported infant head pivoting on the neck. The absolute degree of force required to produce any or all of the features attributed to a non-accidental injury is unknown, but Dr Stoodley points out that, as we do not see these features following normal handling, typical domestic trauma or rough play, it is safe to conclude that the minimum degree of force required is likely to be such that an independent witness would regard it as being likely to lead to harm.

[58]Recent research has shown that subdural bleeding occurs quite commonly at birth, perhaps in as many as 50 per cent of the population. To date, however, research studies have failed to identify any cases in which subdural blood caused at birth has continued after the age of 4 weeks. Dr Stoodley advised that there was nothing in the clinical history in V’s case which would lead him to suggest that any birth-related subdural bleeding could have persisted until the time of the acute admission. Furthermore, any birth-related subdural bleeding would not have appeared bright on the CT scan. Dr Stoodley added that, in any event, birth-related subdural bleeding would not account for other features present in this case, including other intracranial bleeding or the hypoxic-ischaemic brain injury present on the scans

[59]The court is aware of a minority view held by some doctors that severe hypoxia can cause subdural bleeding. The research papers suggesting this theory are cited by Mr Jayamohan in his report. He, however, does not subscribe to this view. He acknowledged that some children die and are found to have hypoxia and subdural haemorrhage. In his opinion, however, the causative link between these two findings is not shown and remains a hypothesis only. Mr Jayamohan advised that the finding of subdural haemorrhage in the presence of acute encephalopathy is closely linked with traumatic head injury. The exact mechanism is not known. Previously, it was thought that the cause of the typical thin films of subdural bleeding found in such cases was tearing of the bridging veins crossing the subdural space. Mr Jayamohan advised that the current view is that it is thought to be a reaction within the dura itself, containing as it does multiple blood vessels.

[60]From the CT scans, Dr. Stoodley also noted more linear areas of acute blood in the parafalcine region suggestive of blood in the subarachnoid space. On microscopic pathological examination, Dr Du Plessis noted that there was a very limited cranial subarachnoid haemorrhage detected in this case. It was possible that some of this haemorrhage constituted a primary traumatic injury, but also likely that the subsequent secondary hypoxic-ischaemic injury had contributed to this feature.

[61]Evidence of a possible cerebral venous thrombosis was found in this case. Dr Du Plessis though it entirely possible that the clots seen represented post-mortem rather than truly pathological ante-mortem clots. No conclusive evidence was found of thrombosis pre-dating V’s collapse and cardiac arrest. Any thrombosis occurring before her death was therefore more likely if not certainly to represent a secondary phenomenon, in the aftermath of the cardiac arrest and in the setting of a massively injured brain. Given the constellation of features in this case, Dr Du Plessis described it as “stretching credulity” to suggest thrombosis as providing a non-traumatic primary cause of V’s sudden deterioration and collapse.

[62]Dr Rylance conceded in his report that it could be argued that, given the fact that not all tests had been carried out on V before she died, an underlying temporary or hereditary coagulation defect had not been excluded. He thought, however, that the pattern and distribution of the bleeding in V’s case, and the associated fractures and brain tissue injury, negated this argument. An underlying coagulation defect was so remote a possibility given the other injuries that it could be excluded.

Spinal Bleeding

[63]There was also evidence of subdural and subarachnoid bleeding in the meninges around the spine. The spinal subdural haemorrhage showed a corresponding level of organisation as identified with the intracranial acute subdural bleeding and was therefore likely to be of a similar age. Dr Du Plessis noted that there was some evidence based on radiological studies that intracranial subdural bleeding can track down into the spinal compartment. Dr Du Plessis noted that research evidence had suggested that paediatric spinal subdural haemorrhage is far more closely associated with non-accidental rather than accidental injury.

[64]More obvious subarachnoid haemorrhage was noted around the spinal cord. Whilst this might support a traumatic cause, Dr Du Plessis was unable to exclude the possibility that it was attributable to underlying hypoxic ischaemic spinal cord injury. Evidence of in vivo epidural soft tissue bleeding was also identified. This was only to a limited extent and only identified at the lower thoracic – lumbosacral level. Again, although this could potentially reflect spinal trauma, it could also be found in situations of severe hypoxic-ischaemic stress. Dr Du Plessis therefore regarded this feature as unreliable evidence of direct spinal trauma.

[65]Dr Du Plessis also noted that bleeding had occurred in several nerve roots along the spinal cord. He thought that trauma related to overstretching of nerve roots could account for these bleeds. There was evidence of some macrophage activity but no haemosiderin was detected. These observations confirmed that these features had occurred in life. Trauma was again a possible cause although secondary bleeding consequent to profound hypoxic-ischaemic injury could not be excluded.

[66]Dr Rylance advised in his report that the spinal epidural, subarachnoid and subdural haemorrhage seen in V’s case was extremely rare. Each of these features in isolation is exceedingly rare in infancy and, together, remain very rare save when associated with similar intracranial haemorrhage in which case the cause is very significant trauma. Such bleeding can be caused by coagulation defects but will almost always be seen in association with bleeding elsewhere in those circumstances. Such bleeding can only be caused by forceful trauma involving the spinal cord and nerve roots within the spine. In Mr Jayamohan’s view, it would be very unlikely, in the absence of bony injury of the spine, for the actions described by the father as having been carried out in panic during the choking episode to explain the spinal blood findings. Dr Stoodley said that:

“we have yet to identify spinal subdural haemorrhage as a consequence of accidental head trauma.”

Spinal Axonal Injury

[67]Dr. Du Plessis reported that APP – immunostaining had demonstrated axonal injury involving most nerve roots in the spinal cord with a consistent, highly selective distribution restricted to points on nerve root attachment. The spinal cord itself showed no axonal injury. Dr Du Plessis thought that this highly selective pattern of axonal injury suggested a mechanical cause. Whilst hypoxic-ischaemic injury may also cause spinal nerve root axonal injury, in Dr Du Plessis’s experience this is not seen with such a very highly selective distribution. This was therefore further evidence supporting mechanical trauma although not constituting absolute confirmation of this mode of injury. Dr Rylance described that this was probably caused by a direct injury arising from failure of broken blood vessels acutely traumatised in a major accident or shaking injury.

Brain Injury

[68]There was global hypoxic-ischaemic brain injury, described by Dr Du Plessis as “very widespread, almost omnipresent” and “devastating”. He said that the injury would have been consequent to an extended period of cardio-respiratory insufficiency. In addition, there was significant brain swelling. He noted that the initial CT scan carried out six hours after the cardiac arrest did not demonstrate significant brain swelling, in contrast to the discoveries at post-mortem. He described this as a feature of significance, as the severe brain swelling could not therefore be implicated as a major mechanism of the collapse and neurological deterioration. He noted that further CT imaging carried out five hours later showed more obvious significant brain swelling with compressed ventricles. He concluded that significant substantial brain swelling, with associated mass effect and raised intracranial pressure, appeared to be a process in the main developing and progressing after cardiac arrest and not preceding it. In oral evidence, he said that the contrasting picture in the succession of CT scans and then at post-mortem provided very strong support for brain swelling being a consequence rather than a cause of V’s collapse. Furthermore, this pattern of developing brain swelling prevented severely raised intracranial pressure being involved as a cause of secondary bleeding in this case, since the subdural bleeding was already evident in the first scans when the brain swelling had not yet become significant. There was some swelling discernible in the early scans, but this would not lead to pressure being critically elevated.

[69]Again, the pathological evidence was confirmed by the radiologist. Dr Stoodley advised that the first CT scan carried out on 6th May demonstrated that both cerebral hemispheres appeared darker than normal with reduced grey/white differentiation. Such appearances are typical of established hypoxic-ischaemic brain injury. The further CT scan carried out later that evening demonstrated the rapid progression of the generalised brain injury.

Choking

[70]In this context, the experts were asked to consider the possible relevance of the episode of choking described by the father. Dr Rylance described that the severe brain tissue injury sustained by V represented a period over which the brain had been starved of adequately oxygenated blood. Such an injury can occur following choking if this has prevented oxygen reaching the lungs. Dr Rylance noted, however, that there were no signs at post-mortem examination that this had occurred. In oral evidence, he elaborated on this opinion, pointing out that the signs typically seen at post-mortem were petechial bruising over certain parts of the body such as the shoulders, face, neck and the whites of the eyes. Another sign of choking seen at post-mortem is bleeding in the respiratory passages. An absence of such signs is not conclusive evidence, but Dr Rylance advised that one would normally expect to see some signs of choking, certainly if the incident had been such as to cause brain injury of the magnitude seen in this case. Dr Rylance advised that, although choking is not uncommon in children of V’s age, it is rare for them to stop breathing in these circumstances.

[71]Dr Rylance in oral evidence confirmed that the regurgitation of the stomach contents can cause spasm of the larynx in a child which temporarily occludes the breathing tubes. He added, however, that such an occurrence is temporary and, although it can cause a so-called life threatening event, it does not lead to brain damage or retinal haemorrhage. Dr Stoodley agreed. He observed in oral evidence that choking is an extremely common incident of early childhood. Even if it leads to an acute life threatening event, it does not generally lead to generalised hypoxic-ischaemic damage as seen in V’s scans.

[72]Mr Jayamohan also said that choking on milk is a cause of acute life threatening events and, in his view, the findings of severe hypoxic ischaemic injury as reported by the pathologists would be compatible with such an event. Mr Jayamohan added, however, that, in those circumstances, V would have suffered two separate unusual events – a trauma causing subdural haemorrhage and an episode of choking leading to hypoxic-ischaemic collapse. He considered this would be unusual but he could not conclusively rule it out. Dr. Stoodley agreed. He said that, as hypoxic ischaemia does not lead to subdural haemorrhage, to explain V’s subdural haemorrhages would have required a shaking episode without any associated brain injury and then a choking event of sufficient swelling to lead to very marked hypoxic-ischaemic brain injury which ultimately led to her death. He considered this to be “extraordinarily improbable.”

Resuscitative shaking

[73]As set out below, the father at one stage suggested that he might have shaken V in an attempt to revive her, although he subsequently retracted this suggestion in oral evidence. Dr Rylance considered that the normal shaking that a parent may describe employing as a panic measure would not be expected to lead to the retinal haemorrhages or the intracranial and intraspinal pathology evident in V. In oral evidence, he observed that the panic which follows when a child appears to be choking is understandable and fairly commonplace. What he did not think would normally be seen would be panic which leads to the extent of shaking sufficient to cause subdural haemorrhage. Dr Stoodley added that “the evidence we have is that resuscitative shaking doesn’t lead to anything.”

Lucid Interval

[74]Some of the experts were asked to consider whether V had experienced a so-called “lucid interval”, defined by Mr Jayamohan as a period of relative well being after a traumatic event. As Dr. Du Plessis described, the clinical effects of a head injury may not be immediately apparent. The majority of evidence suggested that infants who sustain lethal head trauma almost invariably experience neurological deterioration and loss of consciousness rapidly following head trauma. However, lucid intervals have been described in some cases of accidental lethal head injury, although the interval was usually measured in terms of minutes rather than days.

[75]For several reasons, the experts did not consider it likely that V had experienced a lucid interval in this case. First, as Dr. Du Plessis observed, the word “lucid” requires qualification. It was likely that the history would demonstrate a progression of symptomatology with a child becoming progressively more unwell. Secondly, as Dr. Du Plessis and Dr. Stoodley each observed, cases of lucid intervals are normally associated with extradural haematomas or larger space-occupying subdural haematomas which caused a gradual increase in intracranial pressure. The subdural bleeding in this case was not of this description. Thirdly, whilst it was, in Dr Stoodley’s view, possible to find hypoxic-ischaemic damage in cases of space-occupying subdural haemorrhage, the pattern of damage seen in such cases is localised as a result of the brain being squeezed by the subdural collection causing the cutting off of blood supply to certain areas of the brain. The pattern of generalised hypoxic-ischaemic damage in this case was not typical of that seen in cases in which a child has sustained a subdural bleed leading to a lucid interval followed by a subsequent collapse.

Timing of final traumatic event

[76]A factor to which all the doctors - Mr Jayamohan, Dr. Du Plessis, Dr. Rylance and Dr. Stoodley – attach considerable importance in this case was V’s overall presentation and her specific behaviour on the morning of her collapse on 6th May.

[77]The overall clinical picture suggested that the injury must have occurred shortly before she stopped breathing. This view was encapsulated by Dr. Stoodley in his report:

“In view of the nature of the associated brain injury, it follows, in my view, that, if an episode of non-accidental head injury occurs which is of significant severity to lead to the child’s admission to hospital, (1) there is likely to have been a change in behaviour of the child at the time of the causative event; (2) the multitude of change of behaviour will to some extent reflect the severity of the brain injury; (3) the child will not behave entirely normally after the causative event and (4) the greater progression of symptoms and signs will to some extent reflect the severity of the brain injury. ” (1) there is likely to have been a change in behaviour of the child at the time of the causative event; (2) the multitude of change of behaviour will to some extent reflect the severity of the brain injury; (3) the child will not behave entirely normally after the causative event and (4) the greater progression of symptoms and signs will to some extent reflect the severity of the brain injury. ”

[78]Dr Stoodley concluded that the causative event is likely to have occurred after the last time that the court can find as a fact that the child is behaving within the bounds of normality.

Conclusion on medical evidence

[79]The conclusion of Dr. Delaney and the team of pathologists at post mortem was that the cause of death was hypoxic-ischaemic encephalopathy resulting from non-accidental head injury. Dr. Du Plessis concluded:

“it is my opinion that the collective circumstantial, clinical, radiological and pathological features of this case, both in terms of the positive and the negative findings, confirm traumatic cranio-cervical injury as the mechanism of V’s cardio-respiratory arrest and subsequent devastating and ultimately fatal hypoxic-ischaemic brain injury, with no alternative verified cause of a non-traumatic nature. A non-accidental mode of fatal injury close to the time of collapse further has to be favoured in the absence of any plausible accidental account provided by carers.”

Dr Du Plessis thought that, while some features could be attributable to hypoxic-ischaemic change consequent upon a choking episode, the other signs were more likely to be attributable to trauma. Dr Du Plessis noted the presence of the “classic triad” of acute onset hypoxic-ischaemic encephalopathy, bilateral subdural bleeding of the brain and extensive retinal haemorrhage which was closely associated with traumatic head injury in young infants. He added that the triad could not be considered as an isolated finding in this case and had to be considered alongside the presence of evidence of earlier injuries to the eyes, multiple bony fractures and multiple areas of bruising.

[80]Mr Jayamohan concluded that it is most likely that V suffered a traumatic brain injury, most likely involving a shaking type of event, with an impact, at some point at or just before she collapsed. Dr Stoodley agreed. As clinical investigations performed both before and after death had not found evidence of any naturally occurring medical condition which would reasonably account for either her clinical presentation or the injuries found, the evidence was strongly associated with head trauma.

[81]Dr Rylance concluded:

“When these different areas and injuries are grouped in part or in total, the only possible medical explanation is trauma of a significant shaking with or without impact as a cause of injury leading to death. …. It is apparent from the injury list and timing of described bruising and of the age of the fractures that V has suffered more than one episode of trauma.”

He concluded that V had probably suffered at least three episodes of trauma in the last 2-3 weeks of her life.

[82]Dr. Delaney observed that his conclusion as to the cause of death had to be considered in the context of a previous episode of head injury that resulted in skull fractures, an earlier episode of injury that had resulted in bleeding within the soft tissues of the eye sockets, and earlier episodes of injury that had caused rib fractures on at least two different occasions. In the absence of any satisfactory explanation for these injuries, it was Dr Delaney’s opinion that these multiple events represent non-accidental injury.

THE NON-MEDICAL EVIDENCE

[83]I turn to the evidence of the other witnesses and in particular the evidence of the family members. The three most important witnesses were, in the order of their oral evidence, the grandfather, the mother and the father.

[84]The grandfather was a clear and forthright witness who gave straightforward answers to all the questions posed. No substantial challenge was made as to his trustworthiness as a witness, and I find that he was credible and reliable. I have considered carefully whether he was giving partial evidence with a view to exonerating his daughter, but conclude that this was not the case. I find his evidence, cited below, as to the child’s demeanour on the morning on 6th May to be of particular importance.

[85]The mother was a more complex witness. She came across as a devoted mother, plainly devastated by the loss of her daughter. In many respects, I found her evidence to be plausible, but I have had considerable concern about the reliability of other parts of her evidence, in particular concerning the bruises. I shall reconsider this evidence, and its implications for the rest of the case, shortly.

[86]The father is plainly devoted to his son H and I am satisfied he loved his daughter. As a witness, I found him disarmingly frank about some matters, for example his drug taking and drinking habits, and about his temper. But his evidence was wholly unconvincing around the key question of the events of the morning of the 6th May, about which he has given a series of contradictory accounts. 6th May 2013

[87]I now turn to consider the events of the morning of 6th May leading to V’s collapse. The mother’s account is that she was up for much of the preceding night looking after V. At about 7 am, she got the father up and asked him to look after V. She then went back to bed until 9 am or 9.30 am when she got up and went out for a manicure.

[88]The grandfather’s account is that, when he got up on 6th May, the father and V were already up and in the lounge. The mother got up after him. He recalled the father mentioning a bad morning with V. He described this as “a ten-second walk through comment”. The grandfather himself saw nothing to indicate that V was still having a bad morning at that stage. He did not recall her crying that morning. He recalled V sitting on the father’s lap, on his left knee. He saw the father feed V that morning. This was the first time that he had seen V take a feed from the father since early February.

[89]The grandfather described how V had been watching television that morning. She seemed quite content. He remembered V sitting on her father’s knee looking up at the television. He recalled the father putting V in her baby chair, a new chair which had been bought the previous day. He remembered V sitting in the chair looking up at the television on the wall.

[90]At one point, H came into the room and kissed V. The grandfather remembered V looking up at H. He had seen the interaction between brother and sister many times before. Nothing happened that morning that seemed unusual. He saw V smiling at H.

[91]Cross-examined by Miss Branigan, the grandfather said that he had seen a content and happy baby sitting up watching the television. He recalled V seeing him walk into the room. He could see V watching television, and he could see her interaction with H as they had on dozens and dozens of occasions before. In answer to Miss Branigan, he said that, if the question was whether her eyesight was diminished in any way that morning, the answer was no. In his evidence, the father said that he thought that the grandfather had been lying when he said in evidence that V had followed him with her eyes when he walked across the room. I do not agree. I accept the grandfather’s evidence on this important aspect of the case.

[92]In contrast to the grandfather’s evidence, the father’s evidence concerning the events of 6th May was manifestly inconsistent, and unsatisfactory in a number of respects. In his various accounts, there have been a number of contradictions. His account has changed between his police interview on 8th May, his witness statement on 24th June, his response to threshold dated 3rd February and then in his oral evidence. His initial account to the police on 8th May was that he got up at about 9 am to find the grandfather caring for V and the mother still in bed. In his statement, he said that, when he got up, both the grandfather and the mother were already up, and he maintained that position in his response to threshold. It was not until his oral evidence that he conceded that he had been looking after V alone that morning until the grandfather woke up. On this account, he had primary care of V for several hours before her collapse. On behalf of the mother Mr Samuels QC submits, and I accept, that if V had been severely injured and blind by this time, he would surely have noticed.

[93]In addition, there is conflict between his account of what happened when V collapsed, and the account he is said to have given to the ambulance technician, PH. I found PH to be a reliable witness and I accept his evidence of what the father said, namely that he had fed her about ten minutes previously and then put her down and gone out of the room and subsequently come back to check her and found that she wasn’t breathing. The father is recorded as giving a different account to other paramedics, but the question remains as to the explanation for his account to PH. In evidence, the father said that he did not remember what he had said to the paramedics. He was surprised that they had got a sentence out of him.

[94]Thirdly, there are the father’s various statements about whether or not he shook V that morning. In his June statement, the father said; “there is a possibility that I could have shaken V because this might have been an instinctive thing to do in the circumstances of her choking, but I simply cannot say whether I did or did not because I genuinely cannot remember physically shaking V and I do not want to say that I did shake her if in fact I did not.” In the response to threshold drafted February 2014, his counsel stated: “Father has accepted that he may have shaken V as part of a panic response to her choking”, citing the passage of the statement quoted above. In his oral evidence, the father said that he did not shake V. Cross-examined by Mr Samuels, he said that it was while he was in Bullingdon Prison that he had time to think and realised that he had not shaken her.

[95]In his evidence, the father repeatedly referred to the fact that his memory of what had happened had been affected by the trauma of V’s collapse and tragic death. On his behalf, Miss Branigan submits that the effect of what happened that morning haunts the father and, for whatever reason, his memory is at best partial in relation to those events. I do not accept that the inconsistencies and changes in the father’s accounts can be explained in this manner.

[96]As set out above, the consensus of the experts’ opinion is that V sustained all her acute injuries immediately prior to the collapse. At that time, she was in the father’s care. The local authority therefore submit that the father must have been the perpetrator of the injuries sustained at that time. On his behalf, however, Miss Branigan and Miss Grief put forward an alternative theory. They suggest that the subdural haemorrhage, retinal haemorrhages and scalp bruising caused by a shaking/impact trauma were inflicted upon V in the early hours of the morning by the mother before she handed her over to the father. They rely on the fact that, unusually, V was willing to be helped by the father that morning. Save for this change, there were at that stage no clinically evident signs of the injuries that she sustained, although subdural blood leaking into the subarachnoid space may gradually have had a neurologically irritant effect. Thereafter, while she was being fed, V choked as a result of the blood leaking into the subarachnoid space causing neurological irritation. That choke in turn caused the oxygen supply to be cut off to her brain, causing hypoxic ischaemic damage and secondary neurological damage.

[97]The clear problem with this argument is that it fails to accommodate the expert consensus that V would not have been in any sense normal after sustaining the acute injuries, whereas on the evidence of all the adults, she was in fact normal (albeit somewhat under the weather) up to the moment that the grandfather and H left the house. In particular, there is clear evidence from the grandfather and the mother and to some extent the father himself, that V was behaving normally, was alert, and interacting with others in the house. On the father’s own account, she took some three ounces of milk that morning, something she would have been very unlikely to do if she had already sustained the injuries as proposed on the father’s behalf. I found the grandfather’s evidence of her interaction with H to be particularly compelling. I accept the account of V following people with her eyes across the room and also of how she watched television both on the father’s knee and in her chair. Miss Branigan submits that the evidence that she was normally sighted until the grandfather and H left the house must be treated with caution, but notwithstanding the fact that the evidence of the grandfather is that of a layman and not of a doctor, I accept his evidence.

[98]Miss Branigan’s argument as to how V may have came by her injuries is, with respect, highly implausible and I reject it. I find that V was not blind when the grandfather and H left the house that morning, that she had not sustained her injuries to her eyes at that stage, or indeed any of the devastating injuries which led to her collapse a few minutes later. The overwhelming evidence is that V suffered her fatal injury while in the sole care of her father. The father has given inconsistent accounts about a number of aspects. I find that V was behaving normally that morning. Looked at in isolation, the evidence about the 6th May strongly suggests that she suffered injuries as a result of an assault by the father after the others left the house.

[99]As set out above, however, the evidence must not be considered in isolation, and I turn to look at the earlier injuries sustained by V before making a final decision as to the perpetrator of the injuries sustained on 6th May.

Earlier injuries

[100]As set out above, the evidence shows that V sustained a number of injuries prior to her collapse on 6th May – earlier haemorrhages around the eye, rib fractures of two different ages, skull fractures and bruising on various dates from February onwards.

[101]Apart from the bruises, which were seen by a number of people over a period of over two months, no evidence has been adduced as to the circumstances in which these earlier injuries were sustained. Save for the expert analysis, there is nothing to indicate when the earlier haemorrhage around the eye, or any of the fractures, were inflicted. No evidence has been adduced of any accident that might account for them. As V was at all material times non-mobile, no accident could have befallen her without the knowledge of her carers. All medical explanations have been excluded. The only reasonable conclusion therefore is that the injuries were inflicted on her on at least two occasions. Nobody has said that they noticed anything about V to suggest that she was suffering any of these injuries. During the time windows in which they were sustained, a number of people had contact with her, but no one has suggested to me at this hearing that the perpetrator or perpetrators could have been anyone other than the parents. I am satisfied that the mother was the principal carer and that, for the majority of the times during these windows, she was looking after V. I am also satisfied, however, that during the time windows identified by the experts, there were occasions when the father had opportunities to inflict injuries – certainly on 26th April and 3rd May (when the mother was at Bootcamp) and on 28th April when the mother was helping the grandfather to move the grandmother to the rehabilitation unit – and in all probability on other occasions. There were occasions in each window when he was solely responsible for V.

[102]In contrast to the paucity of evidence about the fractures and earlier retinal haemorrhages, there is a great deal of evidence about the history of bruising suffered by V, and much of the hearing before me was devoted to this issue.

[103]There are a number of striking features about the evidence concerning the bruises. First, both the parents and the grandparents were clear that V exhibited bruises on her face repeatedly in the period from February to May. It was plainly a matter of concern which was discussed openly within the family. In particular, it was discussed between the parents in a series of text messages. Unfortunately, only part of these messages have been retrieved by the police and despite Miss Branigan’s submissions, I think it would be unwise to attach any significant weight to these partial transcripts.

[104]Secondly, neither parent took V to have her bruises examined by any medical professional. The mother frankly admits that she was reluctant to allow V to be seen by health professionals, in particular the health visitor, because she feared accusations that V’s bruises were attributable to abuse.

[105]Thirdly, on the other hand, the mother did raise her concerns about the bruises on several occasions – on her account in evidence, to a community midwife over the telephone whilst at the maternal grandmother’s house, and to CJ, the nursery nurse at H’s nursery on 28th March.

[106]Fourthly, up until 5th May, on the occasions when V was examined or at least seen by a medical professional, no professional noticed any bruises, nor did the mother mention her concerns about the bruises. Examples of these occasions were the immunisation on 28th March, the hospital admission on 7th April, and the further immunisations on 25th April. On 2nd May, V was seen by Dr P, who recalled her pulling at her face, but was not told about the bruises.

[107]Fifthly, when on 5th May V’s bruises were finally seen by a professional, namely Dr H, the out of hours GP at the hospital, she immediately felt concern. I note that this consultation came only a few days after V was seen by Dr P who reassured the mother that V’s habit of pulling at her face was normal. I also note that both parents attended the surgery on 5th May when she was seen by Dr H.

[108]Finally, the possibility that the bruises had been inflicted was, I find, a matter that was discussed between the mother and the grandmother. I am satisfied that it was a matter of regular discussion and that the grandmother encouraged the mother to seek medical advice. I also find that the circumstances were such as to place in the grandmother’s mind at least the suspicion that the father was responsible for the bruises, and that this explains the grandmother’s accusation in her text message to the mother on 28th April. Both the grandmother and the mother denied that they had discussed this possibility, maintaining that the grandmother’s allegations in the text had been simply malicious. I do not accept this suggestion. I think it probable that the possibility that the father was responsible had been discussed at some point between the mother and the grandmother when they were considering possible causes for the bruises.

[109]The local authority submits that the inference to be drawn from all this evidence is that both parents knew or at least suspected that V’s bruises were attributable to abuse. On behalf of the local authority, Mr Hand identifies two further matters which he submits are relevant to the analysis as to how the bruises were sustained. First, he points to V’s aversion to her father. He points out that the evidence suggests that her reluctance to go to her father (and others) is said to have started at around the time when the bruising first appeared. In my judgment, however, it would be speculation to conclude that this amounts to evidence that the father was the perpetrator of the bruises. Secondly, Mr Hand submits that the mother’s account of how she telephoned the community midwife and received advice that V should be fitted with scratch mittens was implausible. Both Mr Hand and Miss Branigan submit that this phone call was fabricated by the mother. I have carefully considered the evidence about this incident given by the mother and grandmother. I find it wholly improbable that the health professional would not have advised the mother to take V to be examined. I have considered the possibility that the mother has completely fabricated this conversation to buttress her case. No record has been produced of the telephone call being made, despite extensive searches. On balance, however, having considered the evidence of the mother and the grandmother, I find that the phone call did take place as stated by the mother, but I do find that she has not told the whole truth about the advice she was given.

[110]Overall, however, the evidence clearly shows that the mother was aware that the bruises appeared as if they had been inflicted by an adult. Plainly, this would be relevant to any question of failure to protect, considered below. The question at this stage is what light this evidence shed on the question of the perpetrator of V’s injuries.

Further discussion

[111]All parties put forward detailed arguments on the question of the perpetrator in their final submissions. I have carefully considered all these arguments and highlight the following matters.

[112]On behalf of the local authority, Mr Hand relies on the well established approach set out above, namely that, where an individual perpetrator can properly be identified on the balance of probabilities, it is the judge’s duty to try and identify him or her, but that, in carrying out this analysis, the court must not strain to identify the perpetrator. Mr Hand warns the court that it is all too attractive to say that if the father caused the final injuries, he must therefore have caused the earlier injuries. Although cases with more than one actual perpetrator are unusual, it would in this case he submits be unsafe to do anything other than leave both parents in the pool of perpetrators on the facts of this case.

[113]Mr Hand identifies a number of stress factors operating on both of the parents. The evidence shows that they were struggling with a baby who was not easy to care for. V was not a straightforward or happy baby. She was reluctant to go to the father and this would have been the cause of further frustration for him, but also it would have placed a greater burden on the mother. There was evidence of money problems. The father had ongoing drugs issues and would on occasions binge drink. The father also had some disciplinary problems at work.

[114]So far as the bruising is concerned, the local authority submits that the “overwhelming feeling” is that the mother, the parent with primary care, has something to hide about the bruising and knows more than she is letting on. The local authority therefore concludes that, overall, all that can safely be said is that both parents remain in the pool of perpetrators.

[115]On behalf of the father, Miss Branigan rightly submits that the evidence in relation to the father, as a father, is consistently and overwhelmingly positive. She points out that, for the first four weeks of V’s life, the father was described by the mother as acting as both mother and father to V because she herself had been incapacitated by her emergency caesarean section. During this period, the mother and other family members had nothing but praise for him in the way he cared for both children. Notwithstanding evidence of arguments and his temper, there is no suggestion that the father had ever been seen to lose his temper with the children. On the question of the stresses identified by the local authority, Miss Branigan acknowledges there were debts, plus difficulties at work, but submits that there was no convincing evidence that this was a significant source of stress. Miss Branigan acknowledges that the use of cocaine is a more serious matter but points that there is no direct suggestion that the children have ever been put at risk as a result of his drug habits. Although V was unwilling to go to anyone other than the mother and grandmother and that this caused upset to the father, Miss Branigan points to the father’s account that he did not find this frustrating so as to make him angry. Miss Branigan and Miss Grief submit that great caution must be exercised in seeking to impose a one dimensional trajectory to the emotions involved and described.

[116]In contrast, Miss Branigan submits that the stresses on the mother were particularly pertinent. She draws attention to the evidence that the mother sometimes struggled to discipline H and would telephone the father to talk to him in order to impose boundaries. Miss Branigan submits that the fact that V was unwilling to go to anyone other than the mother or the grandmother, whilst causing upset to the father, also had the consequence of adding to the pressure falling on the mother’s shoulders. Furthermore, Miss Branigan points out that the mother at this stage had to deal with the growing crisis of the grandmother’s severe alcohol problem. Miss Branigan and Miss Grief identify three factors arising from this stressor on the mother(1) the very fact of the drinking and the decline of her own mother and knowing the dreadful behaviour that would be likely to ensue upon everyone

(2) the cumulative effect of the corrosive behaviour on the mother from a young age

(3) the lack of any respite or support with V while the grandmother was drinking. Miss Branigan also points out that the crisis on 28th April included a scuffle between the mother and grandmother in which the mother reacted physically to the grandmother’s behaviour. Drawing all these threads together, Miss Branigan and Miss Grief submit that, on any account, the mother had an extremely stressful time looking after the children, even with the grandmother’s support. Once that had gone, she was completely alone.

[117]On behalf of the mother, Mr Samuels and Mr Poole submit, like Mr Hand, that the father was plainly the perpetrator of the injuries on 6th May, and contend that it is very unlikely that two people would have simultaneously been causing injuries to the same child. They submit that there is nothing in the mother’s background or parenthood to suggest that she could inflict injuries on her very own daughter, let alone on more than one occasion. The whole picture of her was of a loving and caring parent. The most that can be said against her is that she was under a degree of stress. They submit that this can be said of many if not most parents of young children. On behalf of the mother, Mr Samuels and Mr Poole rely on the father’s inability to control his emotions when arguing with the mother, his somewhat extreme reaction to V’s perceived rejection of him, and his cocaine use, all of which point strongly to him as a potential perpetrator of the earlier injuries. They suggest that his inability to deal with how V reacted to him provides a potential explanation as to why he became so frustrated with her that he caused her harm. They point out that it was only in his oral evidence that the father disclosed, both to the mother and to the court, that he was keeping cocaine at the house. CONCLUSIONS Perpetrator of the injuries

CONCLUSIONS

[118]I accept the evidence of the medical experts as to the likely explanation for V’s collapse on 6th May. I find that she sustained a constellation of catastrophic injuries in the period between the departure of the grandfather and H shortly after 10 am and the time of the ambulance call at 10.47 am. I accept the evidence that V was behaving normally prior to the departure of the mother, the grandfather and H from the house, and in particular that she was looking around her, watching television and interacting with others. Thirty minutes later she was lifeless, having sustained a range of injuries. I reject the suggestion that a choking incident accounted for any of the injuries, and I discount unknown cause as a realistic possibility in this case. This was a case of head injuries inflicted by another person, and the only person who could have inflicted them was the father. In this jurisdiction, as explained above, a finding can be made on the balance of probabilities. In these circumstances, however, I am sure beyond reasonable doubt that the father was responsible for the injuries sustained by V on the morning of 6th May.

[119]The circumstances in which these injuries came to be inflicted are unclear because the father has lied about them. It is possible that her injuries were inflicted in a momentary loss of control but it is also possible that it was a more substantial assault. I do not know. What is clear is that the father has a temper which he finds it very difficult to control. I am satisfied that, in circumstances which are at present unclear, he injured V in an act which involved both shaking and impact. It was an act of appalling violence on a small baby as a result of which she lost her life.

[120]My finding on this issue is also decisive in identifying the perpetrator of the other injuries. I have carefully considered the submissions by Mr Hand and Miss Branigan and do not automatically assume that my finding that the father perpetrated the injuries on 6th May means that he is necessarily responsible for all the earlier injuries. I have given very careful consideration to the question of culpability for the earlier injuries. I have thought long and hard as to whether the mother’s undoubted awareness of the significance of the bruises means that she was responsible for inflicting them and for the other injuries – the fractures and earlier haemorrhages around the eye. Ultimately, however, I find on a balance of probabilities that she was not. Although subject to a number of stressors, there is no evidence that the mother was capable of injuring her daughter. The scuffle with her own mother on 20th April is not in my view strong evidence that she has the propensity to lose control and inflict injuries. I accept Mr Samuels’ submission that there was nothing in the mother’s character or background to suggest that she could inflict injuries on her very young daughter. The most that can be said against her is that she was under a degree of stress, in common with many if not most parents of young children. In contrast, the father does have a history of anger and aggression, was under a variety of stresses and has, as I have found, demonstrated by his behaviour on 6th May that he has the capacity to lose control and injure a child.

[121]The mother’s behaviour concerning the bruises shows that she was aware that the bruises could have been sustained as a result of abuse. After giving careful thought to this matter, however, I reject the submission that this gives rise to a real possibility that she was responsible for inflicting them.

[122]On a balance of probabilities, I find that the father bruised V’s face on a number of occasions between February and May. It is possible that he did so by trying to feed her, but I make no findings as to that as this would be mere speculation. On the balance of probabilities, I find that on at least two further occasions the father assaulted V in a fashion that led to rib fractures, skull fractures and haemorrhages around the eye.

[123]In summary, the father violently assaulted his daughter on at least four occasions, causing a succession of serious injuries, and ultimately the dreadful injuries that led to her death.

Failure to protect

[124]I have exonerated the mother of responsibility for inflicting V’s injuries, but I find her culpable of a serious failure to protect her daughter.

[125]On any view, she knew the bruises were there and by her actions and admissions plainly realised that they looked as though they had been inflicted abusively. Plainly, she ought to have realised that they were inflicted and should have sought medical advice, as she was advised on several occasions. I have thought very carefully whether she did realise in fact that V was being abused. Ultimately, however, I have concluded on a balance of probabilities that she did not. Had she actually realised that abuse was taking place, I think it probable that she either would have sought medical advice or else kept completely quiet. The fact that she said to a variety of people that she was embarrassed to take V out because of what people might think leads me to conclude that she did not know that V was being abused. At most, I think it may have cross her mind, and she may have mentioned it to the grandmother who then repeated the assertion in the text message of 28th April.

[126]I do find, however, that she ought to have known that V was being abused and that she ought to have sought medical advice immediately. The evidence was literally staring her in the face. Instead, she deliberately kept V away from medical professionals for a number of weeks out of embarrassment.

[127]In her evidence, the mother frankly acknowledged her failure to protect her daughter. I believe her when she says that no one feels guiltier than she does and that she “gets it”. But the truth has to be spelt out if only for V’s sake. If the mother had acted as a reasonable parent, V would probably still be alive today.

[128]Mr Samuels concludes his submissions with a plea. He urges the court not to make findings that would deprive H of the opportunity of being brought up by his mother. This court strives as hard as possible to ensure that children are brought up by their parents. I do not rule out the possibility that H may return to his mother at some stage. But she has a lot of work to do before I will be persuaded that he can safely be returned to her care. [Postscript - The welfare portion hearing concluded eight months following the handing down of judgment from the finding of fact hearing. In those intervening eight months an assessment of H's needs was undertaken by a jointly instructed child and adolescent psychiatrist, and a risk assessment (including ability to protect) was carried out in respect of the mother and the maternal grandparents. The assessments of the adults were positive. Mother also undertook a domestic violence course, in particular aimed at heightening her ability to protect a child in her care. A few weeks prior to the IRH, H was placed under an ICO with the maternal grandparents. The mother was also present in the home and she was able to participate in H's day-to-day life. By the time of the IRH, the local authority's confidence in the mother had increased, and it put forward a plan for H to live with the mother initially at the grandparental home under a supervision order. This plan was agreed by the child's guardian, and a one-year supervision order was made together with a child arrangements order that H shall live with the mother. There was also an expectation for the mother to undertake further work to enhance and consolidate the changes she has made.]

order

Dr du Plessis; PH, the ambulance technician; Dr Rylance; Mr Jayamohan; Dr Stoodley; CJ, the nursery nurse; Dr M, one of the GPs at the family practice; NW, a practice nurse; Dr P, the family’s GP at the practice; Dr McCarthy; Professor Freemont; Dr Delaney; Dr H, the GP at the out of hours clinic; the grandfather; the grandmother; the mother and the father. Before the hearing, I received helpful documents in the form of case summaries, a chronology and position statements prepared by counsel, who also supplied me with closing submissions following the evidence. I am very grateful to counsel and their instructing solicitors for their assistance in this case. THE LAW