Mr Justice Hedley :
Introduction
- Having decided
to
give
this
judgment in open court, I must emphasise
that
nothing must be reported
which
might reasonably lead
to
the
identification of any child or parent in
this
case. I have gone into open court because
this
case raises a number of matters
which
I
think
should
be in
the
public domain. It involves
the
death of a child
said
to
be
the
result of
shaken
baby
syndrome.
It involves a degree of disagreement between eminent and highly responsible medical experts.
The
man at
the
centre of
this
has already been
tried
for and acquitted of both murder and manslaughter yet
the
family court is apparently retrying
the
same
issue
with
the
inevitable possibility of arriving at a different
view.
This
seems
to
me a good case in
which
the
workings
of
the
family court
should
be made public
so
that
proper public discussion can
take
place on
the
basis of known rather
than
speculative
procedures.
The
family proceedings have come about because
the
local
authority
seeks
a care order in respect of a child called
T
who
is now 15 months old. Her mother is
S
and her father
W,
the
man
to
whom
I have already referred.
T
is currently
subject
to
an interim care order
whilst
the
court decides her future.
The
mother had another child X.
W
was
not her father but at
the
material
time
he lived
with
the
mother and acted as a father
to
X. On 20th October 2002 X
suffered
fatal brain injuries from
which
she
died
the
following day. No universally acceptable explanation has ever been given for
these
injuries beyond
the
fact
that
they
appear
to
have been
sustained
whilst
in
the
care of
W.
- It
was
because of
this
that
these
proceedings
were
started
in relation
to
T.
Until it is known how X came
to
suffer
fatal injury, it is impossible
to
say
whether
T
is at risk of injury and, if
so,
how great
that
risk is or
whether
it is capable of
safe
management.
The
Criminal
Trial
and Civil Proceedings
- In 2003
W
was
acquitted of
the
murder or manslaughter of X. On
the
face of it
this
hearing has
tried
the
same
issue again;
why
is
that
and is it open
to
this
court
to
come
to
a different
view?
- In
the
criminal proceedings,
the
jury, having heard
the
admissible evidence, had
to
decide
whether
they
were
sure
that
this
man had used criminal
violence
to
this
child
which
brought about her death.
They
decided
that
they
were
not
sure:
no more
than
that
can be read into
the
verdict.
They
may have decided
that
he
was
in fact innocent or
they
may have decided
that
he
was
very
probably guilty but
that
they
could not be
sure
of it.
We
do not know.
Their
verdict
does not give us
the
answer nor could it.
- In family proceedings, however,
the
judge'
s
task
is quite different. In
the
end I
will
have
to
decide
whether
the
surviving
child
T
can be
safely
returned
to
one or both of her parents. In order
to
decide
that,
I need
to
reach
views
about
why
X died and
the
question I have
to
ask is
this:
what
was
the
most probable cause of her death?
That
is
very
different
to
the
question faced by
the
jury both in
terms
of its emphasis (
they
were
primarily concerned
with
W
as
the
defendant
whilst
I am primarily concerned
with
the
child) and in
terms
of
the
standard
of proof.
They
had
to
be
sure
of guilt; I have
to
determine
the
probabilities and give detailed reasons for my
view.
Moreover I have heard a much
wider
range of evidence
than
would
have been admissible in
the
criminal
trial.
- It
will
be apparent
then,
however odd it may
seem
at first blush,
that
I could give a different answer
to
the
one given by
the
jury yet both of us could have correctly answered
the
questions actually posed
to
us.
Truth
is an absolute but elusive concept and
the
law, in recognising
that,
deals
with
it in
terms
of
what
can be proved.
The
fact
that
something
cannot be proved does not mean it did not happen but only
that
it cannot be proved
to
the
requisite
standard
that
it did.
That
is
the
price
society
has
to
pay for human fallibility in
the
quest for
truth.
The
burden and
Standard
of Proof in Family Proceedings
- I
start
then
with
this
question of proof. Although
very
serious
issues are raised in family proceedings,
they
remain nevertheless civil proceedings.
They
are
subject
to
civil and not criminal rules of evidence and
the
civil law relating
to
proof.
That
said,
the
court can only make findings of fact
where
the
evidence justifies
these
findings: anxiety or concern as
to
risk
to
the
child, however great, cannot justify a finding in
the
absence of evidence.
Thus
in care proceedings
the
local
authority
as applicant must prove facts (known as
threshold
criteria)
which
justify
the
State's
intervention in family life pursuant
to
Section
31(2) Children Act 1989.
That
properly reflects
the
approach also required by Articles 6 and 8 of
the
European Convention (ECHR).
The
classical
statement
of
the
law on
these
points is
to
be found in
the
speech
of Lord Nicholls of Birkenhead in
the
House of Lords case known as Re H and R (Child
Sexual
Abuse:
Standard
of Proof) [1996] 1 FLR 80. In
that
speech
Lord Nicholls lays down
the
approach outlined above. He makes it clear
where
the
burden of proof lies (page 95G),
that
these
remain civil proceedings (page 96A; he makes it clear
that
findings can only be based on proved facts and at page 99G-H, he
says
this:
"
The
legal burden of establishing
the
existence of
these
conditions rests on
the
applicant for a care order.
The
general principle is
that
he
who
asserts must prove. Generally, although
there
are exceptions, a plaintiff or applicant must establish
the
existence of all
the
preconditions and other facts entitling him
to
the
order he
seeks.
There
is nothing in
the
language or context of
section
31(2)
to
suggest
that
the
normal principle
should
not apply
to
the
threshold
conditions"
He deals
too
with
the
standard
of proof and in
the
now
well
known passage (page 96B-E) he
says
this:
"Despite
their
special
features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise
very
serious
issues, but
so
do other forms of civil proceedings.
The
balance of probability
standard
means
that
a court is
satisfied
an event occurred if
the
court considers
that,
on
the
evidence,
the
occurrence of
the
event
was
more likely
than
not.
When
assessing
the
probabilities
the
court
will
have in mind as a factor,
to
whatever
extent is appropriate in
the
particular case,
that
the
more
serious
the
allegation
the
less likely it is
that
the
event occurred and, hence,
the
stronger
should
be
the
evidence before
the
court concludes
that
the
allegation is established on
the
balance of probability. Fraud is usually less likely
than
negligence. Deliberate physical injury is usually less likely
than
accidental physical injury. A
step-father
is usually less likely
to
have repeatedly raped and had non-consensual oral
sex
with
his under age
stepdaughter
than
on
some
occasion
to
have lost his
temper
and
slapped
her. Built into
the
preponderance of probability
standard
is a generous degree of flexibility in respect of
the
seriousness
of
the
allegation.
Although
the
result is much
the
same,
this
does not mean
that
where
a
serious
allegation is in issue
the
standard
of proof required is higher. It means only
that
the
inherent probability or improbability of an event is itself a matter
to
be
taken
into account
when
weighing
the
probabilities and deciding
whether,
on balance,
the
event occurred.
The
more improbable
the
event,
the
stronger
must be
the
evidence
that
it did occur before, on
the
balance of probability, its occurrence
will
be established. Ungoed-
Thomas
J. expressed
this
neatly in In re Dellow'
s
Will
Trusts
[1964] 1
W.L.R.
451, 455: "
The
more
serious
the
allegation
the
more cogent is
the
evidence required
to
overcome
the
unlikelihood of
what
is alleged and
thus
to
prove it.""
He also draws attention
to
another matter. A criminal
trial
is, of course, governed by
the
rules of criminal evidence. In family proceedings
the
range of evidence available
to
a judge is much
wider.
Lord Nicholls makes
this
point (page 101A-C)
where
he
says
this:
"I must now put
this
into perspective by noting, and emphasising,
the
width
of
the
range of facts
which
may be relevant
when
the
court is considering
the
threshold
conditions.
The
range of facts
which
may properly be
taken
into account is infinite. Facts include
the
history of members of
the
family,
the
state
of relationships
within
a family, proposed changes
within
the
membership of a family, parental attitudes, and omissions
which
might not reasonably have been expected, just as much as actual physical assaults.
They
include
threats,
and abnormal behaviour by a child, and unsatisfactory parental responses
to
complaints or allegations. And facts,
which
are minor or even
trivial
if considered in isolation,
when
taken
together
may
suffice
to
satisfy
the
court of
the
likelihood of future harm.
The
court
will
attach
to
all
the
relevant facts
the
appropriate
weight
when
coming
to
an overall conclusion on
the
crucial issue."
These
are all factors binding on every
trial
judge conducting family proceedings.
- Nevertheless
the
question remains: if a court is in fact
trying
an issue
which
effectively includes an allegation of a
serious
criminal act, is
the
position any different? In
the
recent cases of Re LU (a child) and Re LB (a child) [
2004]
EWCA (Civ) 567 (at paragraph 13)
the
Court of Appeal have firmly decided
that
the
position remains just
the
same:
"
We
understand
that
in many applications for care orders counsel are now
submitting
that
the
correct approach
to
the
standard
of proof is
to
treat
the
distinction between criminal and civil
standards
as 'largely illusory'. In our judgment
this
approach is mistaken.
The
standard
of proof
to
be applied in Children Act cases is
the
balance of probabilities and
the
approach
to
these
difficult cases
was
laid down by Lord Nicholls in his
speech
in re H. ………..and
the
principles
set
out by Lord Nicholls
should
continue
to
be followed by
the
judiciary
trying
family cases and by magistrates
sitting
in
the
Family Proceedings Courts."
It follows
that
in
this
case I approach
this
case on
the
balance of probabilities reminding myself of
the
inherent improbability of a loving
step
father inflicting fatal
violence
on a child of 20 months of age and
thus
reminding myself of
the
cogency of
the
evidence
that
will
be required
to
overcome
that
improbability.
The
Court'
s
Approach in Family Proceedings
to
Disputed Medical Evidence
- In
this
case I have heard a
wealth
of medical evidence. For
the
most part it has all pointed in
the
same
direction and certainly
there
is effective unanimity on
the
primary findings made in respect of
the
injuries and cause of death of
this
child. Yet
there
is
some
disagreement. Moreover, it is recognised
that
some
medical issues in
this
case,
such
as
the
force required
to
produce
these
injuries, are genuinely controversial. It is also recognised
that
understanding in
this
area continues
to
develop and certainly
that
some
of
the
old certainties have now been
strongly
questioned. It follows
that
disagreement
should
come as no
surprise
even amongst doctors of
the
highest repute
such
as
that
undoubtedly enjoyed by all
the
experts in
this
case.
The
specific
disagreement
with
which
I am concerned in
this
case is
that
between Dr AS and Dr RS on
the
one hand and particularly Professor R, Dr J and Dr
S
on
the
other as
to
whether
the
father'
s
explanation proffered at
the
criminal
trial
(if
true)
could offer an explanation for
the
injuries
suffered.
All
the
doctors
were
agreed
that
in
the
absence of a reliable explanation
the
overwhelming probability favoured
some
form of non-accidental injury.
- In
the
case of Cannings [
2004]
EWCA Crim 1
the
Court of Appeal Criminal Division urged great caution
where
such
disagreement existed. Although
the
verdict
in
this
case preceded
the
decision in Cannings, it clearly is in line
with
it. However,
the
effect of Cannings in family proceedings
was
also considered by
the
Court of Appeal in Re LU, LB and is
set
out paragraphs 22-30.
The
lessons of caution are, of course,
to
be heeded but disagreement, however eminent
the
witnesses
involved, does not absolve
the
family judge from
the
responsibility of making a decision applying
the
civil
standard
of proof, as
the
Court of Appeal have
said:
"27. In
the
end
the
Judge must make clear findings on
the
issues of fact before
the
Court, resting on
the
evidence led by
the
parties and
such
additional evidence as
the
Judge may have required in
the
exercise of his quasi-inquisitorial function. All
this
is
the
prelude
to
a further and fuller investigation of a range of choices in
search
of
the
protection and
welfare
of
the
children. A positive finding against a parent or both parents does not in itself preclude
the
possibility of rehabilitation. All depends on
the
facts and circumstances of
the
individual case. In
that
context
the
consequences of a false positive finding in care proceedings may not be as dire as
the
consequence of
the
conviction of an innocent in criminal proceedings.
28.
So
it by no means follows
that
an acquittal on a criminal charge or a
successful
appeal
would
lead
to
the
absolution of
the
parent or carer in family or civil proceedings. It is also
worth
remembering
that
the
decision of
the
Court of Appeal (Criminal Division) in R
v
Cannings
turned
on
the
very
particular facts of
that
case.
29. In
summary
the
decision of
the
Court in R
v
Cannings has no doubt provided a useful
warning
to
judges in care proceedings against ill-considered conclusions or conclusions resting on insufficient evidence.
The
extent of
the
retrospective effect remains
to
emerge. However practitioners
should
be
slow
to
assume
that
past cases
which
have been carefully
tried
on a
wide
range of evidence
will
be readily reopened."
- It follows
that
I must examine
the
evidence and
see
what
(
to
the
requisite
standard
of proof) it establishes.
The
Background
to
the
Life of X
- X'
s
mother
was
herself brought up in care, having had
some
deeply
traumatic
home experiences before moving
to
supported
accommodation around about
the
age of 17.
She
became pregnant
with
X but after a difficult pregnancy
she
found X a "pretty easy child"
with
whom
she
believed
she
had a good and close relationship.
Whilst
X
was
very
young
the
mother entered into a relationship
with
W.
She
spoke
highly of
W's
relationship
with
X and other children,
something
that
was
widely
testified
to
in
the
criminal proceedings.
- It is right
to
record
that
nothing
was
found on X'
s
admission
to
hospital or at post-mortem
to
suggest
that
she
was
not essentially a
well
cared for child. I acknowledge
that
there
may be legitimate concerns at
the
emotional level but as
these
are
to
be addressed in
the
assessments
which
are
shortly
to
take
place, I
will
say
no more about
them
here
save
to
say
that
they
are connected
with
the
mother'
s
own life experiences.
- Furthermore I
think
it right
to
find, as
the
mother
said,
that
the
father
was
loving and gentle in his dealings
with
X and
specifically
that
there
was
nothing
to
alert her
that
it might have been unsafe
to
leave X
with
W,
nor indeed
was
anyone else aware of any
such
thing.
It is
true
that
there
have been
some
earlier incidents relating
to
X but
they
were
inconsequential in
themselves
and do not impugn
the
essential parenting capacity of either
the
mother or
W.
That
said,
I
should
add
that
it appeared
to
me
that
the
mother
wanted
to
believe
the
best of
W
and persisted in
that
desire even
when,
as
she
put it,
she
had been 'betrayed' by his lies about
the
fatal injuries
to
X.
That
raises a note of caution as do her lies about her contact
with
W
whilst
he
was
on remand but it
would
be unfair
to
the
mother
to
suggest
that
she
is
wilfully
blind
to
W's
deficiencies;
she
wants
to
think
the
best of him and I believe
that
their
relationship is as important
to
her as it clearly is
to
him.
The
Events
Surrounding
The
Fatal Injury
- On
the
evening of 19th October X had been put
to
bed by
W
as
was
usual.
She
woke
up
twice
during
the
night;
W
went
to
her once and perhaps on both occasions.
The
next morning
she
woke
as usual about 7am and
the
mother dealt
with
her. At about 9.15am
the
mother
went
out
to
the
shops
leaving X in
their
bedroom
with
W.
I
specifically
accept
the
mother'
s
assertions both
that
X had no
visible
mark of injury of note and also
that
she
seemed
fit and
well.
When
the
mother returned, X
was
already in
the
ambulance in a life
threatening
condition.
- After
the
mother had gone out,
the
next person
to
see
X (other
than
W)
was
a
woman
known as B.
She
lived in
the
same
block of flats and
was
well
regarded; indeed
someone
referred
to
her as
the
'Mum' of
the
block.
She
answered
the
door
to
W
who
was
carrying X.
She
noticed
that
X looked lifeless and
she
'phoned an ambulance immediately.
She
then
followed resuscitation instructions, relayed
to
her by her boyfriend, from
the
control room.
This
she
persisted in until
the
ambulance arrived. Meanwhile
W
was
too
distressed effectively
to
assist. B had done resuscitation before but never on a child. Her first
thoughts
were
that
the
child might have had meningitis and
the
doctors
who
first
saw
her
thought
the
same.
I am fully
satisfied
that
the
evidence
she
gave me
was
an essentially accurate account by a
witness
who
wanted
to
assist
the
court but
who
was
clearly
sympathetic
to
the
mother and
W.
Over
the
next 36 hours and more
she
and her boy friend attended hospital and did much
to
give
support.
It is essential
that
both of
them
appreciate
that
they
have nothing
to
reproach
themselves
for and much
to
take
pride in over
what
they
did on
this
occasion.
The
ambulance
team
promptly arrived. For
them
it
was
a first and inevitably distressing experience of dealing
with
a gravely ill child. I accept
the
evidence of both paramedics.
They
were
trying
to
use CPR during a fast and upsetting journey and I accept
that
it may not have been delivered in
textbook
style;
indeed it is hard
to
see
how it could have been.
The
Injuries
Sustained
by X on 20th October 2002
There
is no dispute in
the
medical evidence as
to
the
actual injuries
sustained
by X. First
there
was
the
grave head injury comprising:
- Bilateral retinal haemorrhages, and
In addition
the
following
significant
findings
were
made:
In assessing
these
injuries it is important
to
remember both
that
emergency
treatment
of an unconscious child can be quite
violent
and
that
toddlers
will
often bear bruises of an entirely innocent origin. Other
than
bruising
to
the
forehead and mesentery,
the
medical evidence
was
noticeably cautious in its approach
to
the
timing
and causation of bruising.
The
Mechanism of
the
Head Injury
- Once again
the
medical evidence
spoke
with
one
voice.
These
injuries
were
the
product of an acceleration/deceleration injury
with
rotational forces.
That
was
most commonly associated
with
a
shaking
type
injury (hence
the
rather loose expression '
shaken
baby
syndrome')
unless
there
was
a history of an event
which
might result in
the
mimicking of
such
forces. It
was
this
last point
that
elicited
the
essential disagreement amongst
the
experts.
The
Causation of
The
Head Injury
There
was
agreement
that
the
forces required
to
produce
this
injury could indeed be mimicked.
W's
explanation, given both at
the
criminal
trial
and
to
me,
was
to
the
effect
that
X had been bouncing on
the
bed and had bounced off it falling in a
V
shape
on
to
her bottom and
that
her head had '
snapped
back' although he had prevented it from hitting
the
ground. Dr AS, an experienced and distinguished neuropathologist
was
of
the
view
that
this
explanation (if reliable and
true)
provided a "
small
percentage possibility" of explaining
the
injury. Dr RS, an experienced and respected forensic pathologist,
said
of it
that
it
was
"a reasonable explanation but I cannot go further". All
the
other experts
who
addressed
this
were
not prepared
to
say
that
this
explanation provided a
satisfactory
account of
these
injuries,
some
speaking
with
more force
than
others.
What,
however, all could agree on
was
that
in
the
absence of a reliable explanation,
the
overwhelming probability
was
that
these
injuries
were
the
result of
shaking.
It further emerged
that
two
further matters on
which
they
could also agree
were
that
these
injuries could have been
the
product of one movement provided
that
that
movement generated
sufficient
force and
that
there
would
have been no lucid interval between injury and collapse.
- It
was
the
issue of
the
force involved
that
was
the
most difficult. Doctors
simply
do not know
the
forces required
to
produce
these
injuries and for obvious reasons
there
can never be experimental data on
which
to
base research.
What
they
did agree on, however,
was
this:
the
forces required
would
at least require "more
than
normal handling" or "an incident in
which
a bystander
would
say
'
stop,
you
will
injure
that
child'". Again
there
was
agreement
that
these
injuries
typically
occur in children in
the
first year of life and
that,
not only
was
it most unusual
to
find
such
an injury in a child of
the
age of X, but it
would
require greater force because of
the
greater comparable
strength
of her neck muscles.
There
were
two
other features in
this
case
that
cloud
the
issue of force. First,
the
damage itself
will
not necessarily be a guide
to
the
force used. It had once been
thought
that
the
brain damage (
which
is
the
fatal component)
was
brought about by
shearing
injuries caused by different
sections
of
the
brain of different density being forcibly moved in relation
to
each other.
That
remains a possible mechanism but now it is recognised
that
much damage may in fact be caused by hypoxic/ischaemic changes
which
may
themselves
be caused by heart failure
which
deprives
the
brain of oxygenated blood. In
this
case X had been in cardiac arrest for 45 minutes and undoubtedly hypoxic/ischaemic damage
would
have been caused
thereby.
Secondly
there
was
an issue as
to
whether
retinal haemorrhages
were
present on admission at hospital. It is accepted
that
they
were
found later in
the
day on
transfer
to
the
second
hospital.
- At
the
first hospital X
was
seen
by Dr A a locum consultant paediatrician.
She
says
that
she
examined X
through
an ophthalmoscope and
saw
no haemorrhages.
She
was
not
specifically
looking for
them
and acknowledges
that
she
may have missed
them.
However,
she
would
not have expected
to
do
so
because
they
were
flame red haemorrhages, easy
to
see
had
they
been present. I accept
that
view
and
therefore
conclude
that
I cannot be
satisfied
that
retinal haemorrhages
were
present of
the
time
of admission
to
the
first hospital. In my
view
they
were
more probably caused by raised inter-cranial pressure due
to
the
brain
swelling
itself.
The
consequences of
that
are controversial.
Some
say
that
their
absence
tells
you nothing about
the
forces applied
to
the
head. Others assert
their
relevance. Dr AS
thought
that
their
absence may
speak
of lesser forces being applied
to
the
head. Professor L, a paediatric ophthalmic pathologist,
thought
that
if
they
were
not
there
earlier
they
had in fact been caused by raised inter-cranial pressure. Dr RS
thought
that
their
absence "
slightly
enlarges
the
question mark against
shaking".
In my
view
I
should
adopt a cautious approach in
this
case and recognise
that
the
absence of retinal haemorrhages may
signify
lesser forces having been employed and
that
is a factor against rather
than
in
support
of a
shaking
injury. Nevertheless I must also remind myself
that
Dr RS
said
both
that
shaking
remained more probable
than
accident and further
that
in
the
absence of a reliable explanation "
the
overwhelming probability is a non-accidental head injury".
- I have
set
out here only
small
amounts of
the
medical evidence partly
to
prevent
this
judgment becoming of unwieldly length but mostly because
what
is
set
out encapsulates in my
view
the
evidence
which
I need
to
consider in order
to
arrive at my conclusions in
this
case.
Assessment of
W's
Evidence
- It is right
that
at
this
stage
I
should
set
out my assessment of
W's
evidence having heard all
the
evidence as
well
as his. It is
the
case
that
on his own account he has repeatedly lied about his involvement in
this
matter.
That,
as he recognised, inevitably colours any assessment.
- His first account, persisted in from
the
day of
the
injury until his arrest
some
5 months later
was
that
the
child had had a fit, been
sick
and fallen off
the
bed. He
said
that
that
was
the
first
thing
he
thought
of in his panic and
stuck
with
it even
when
pressed by
the
doctor at hospital. My
view
is
that
the
chaotic circumstances of X'
s
collapse are unlikely
to
produce a conscious fabrication but rather
the
truth
with
omissions. In his evidence
to
me he
said
that
even
when
interviewed by
the
police he
told
lies as
to
what
he had done (i.e.
that
the
child
was
sick
and he
was
wanting
an ambulance) as
well
as leaving out
the
impact
with
the
door
which
he believed
to
be
the
fatal injury. Once again I am more inclined
to
think
that
that
was
truth
with
omissions rather
than
conscious fabrications.
Then
he produced an explanation for
the
criminal
trial.
Even on his own account his explanations
were
until
then
designed
to
disguise
what
he believed
to
be
the
cause of fatal injury.
That
had been on any
view
a reason for his lie.
- I accept
that
his behaviour at
the
time
of
the
injury indicated
that
he
was
in huge distress and a great panic. I have no doubt
that
he
was
frantic
with
remorse
though
whether
that
was
for careless or deliberate conduct one could not
tell.
I accept
that
that
will
have impeded his ability
to
explain
what
had happened
which
is
why
I
think
that
what
he
said
was
more likely
to
be
truth
with
omissions
than
outright manufacture. It follows
that
I
think
it much more probable
that
the
child
was
indeed
sick
if not
very
much and
that
the
child did indeed
travel
from bed
to
floor and
thus
the
child
suffered
an acceleration/deceleration injury
with
rotation. I
think
it
very
probable
that
W
knew
that
something
very
serious
had happened and
that
W
was
going upstairs
to
seek
help
to
get an ambulance. I
think
it likely
that
the
child did
strike
her head accidentally on
the
door. I am quite unable
to
treat
W's
present account as reliable having regard
to
the
history of accounts given and
the
wholly
implausible reasons (
where
he actually gave
them
since
many
were
'I don'
t
know')
that
he gave for lying other
than
to
conceal
what
he
thought
was
the
fatal act. I do not, however, discount all his evidence as untrue. In particular I accept
that
he had behaved as a loving father
to
X during
the
time
he
was
with
her. He had cared for her if
somewhat
over-indulgently. In particular I accept
that
his evidence is motivated less by a fear for his own
skin
than
by losing
S
and
T
as I accept
that
he had been genuine in
thinking
that
S
and X
were
the
best
thing
that
had happened
to
him.
Conclusion on Causation of
The
Non-Fatal Injuries
- As I have
said,
she
was
observed
to
have a number of bruises. I am unable
to
reach any conclusion adverse
to
the
parents in respect of any of
the
bruises
save
perhaps
the
two
to
the
forehead. Given
the
inherent uncertainty of
timing
bruises my conclusion is
that
those
two
bruises are associated
with
the
events
surrounding
the
fatal injury, one perhaps as a result of an impact
with
a door,
the
other
with
the
floor. Further
than
that
I cannot go.
- I
turn
then
to
the
internal bruising found
to
the
Mesentery, a piece of
tissue
lying over
the
liver. Professor R and Dr J both believed
that
this
would
have required
the
sort
of force associated
with
a punch or kick. Dr RS believed
that
it
was
explicable in
terms
of a resuscitation injury (
something
he had
seen
in his experience) and indeed
that
was
his impression on first
seeing
it. He added
that
he
would
expect a kick or punch
to
cause damage
to
underlying organs (
there
was
none) but disagreement over
that
opinion remained. Given
what
I have heard about CPR (Cardio-Pulmonary Resuscitation), it must be more
than
a real possibility
that
significant
forces
were
accidentally applied
to
the
abdomen. In
those
circumstances I must conclude
that
Dr RS'
s
views
must be regarded as a reasonable (but not
the
only) explanation for
the
damage
to
the
Mesentery. I find
that
it is not proved
that
damage
to
the
Mesentery
was
caused by any aggressive act on
the
part of either parent and further
that
the
evidence does not
warrant
any finding
that
the
risk of future harm
to
any child at
the
hand of either parent is affected by
this
injury.
- In
the
second
hospital (confirmed at post-mortem)
three
anal 'fissures' (or 'cracks')
were
seen
which,
however, did not extend into
the
perianal
skin.
Dr MG, a consultant paediatrician,
saw
them
and
was
worried
that
they
might be
suggestive
of
sexual
abuse although not diagnostic of it.
That
concern
was
echoed by Dr H, a
well
recognised expert in
this
field,
though
he
would
not go
so
far as a positive diagnosis. Dr M, a consultant paediatric gastroentorologist
was
not concerned by
the
findings and believed
them
capable of a natural explanation. Dr RS
wondered
if
they
had been caused by
the
use of a rectal
thermometer
which
had certainly been employed.
- In
the
end
the
local
authority
(rightly in my
view)
did not
seek
any
specific
finding. I
was
asked, however,
whether
I could go further and
specifically
exclude
sexual
abuse as a possible explanation. In my judgment
the
evidence does not
warrant
a conclusion
that
any abusive act caused
these
fissures. Although abuse must remain as a possibility, it is not at all probable.
These
findings
should
not be used as any indicator
that
any child may be at risk of
sexual
abuse from either parent. I regard
the
explanation by Dr RS as at least as reasonable a possibility as any other as is
that
of Dr M.
Conclusions on Causation of Head Injuries
Where
the
medical experts are in agreement, I have accepted
their
evidence and
views.
As is apparent from
what
has been
said,
the
medical evidence is of one mind in concluding
that
in
the
absence of a reliable explanation
some
form of non-accidental
shaking
injury is
the
overwhelmingly probable cause of
these
injuries. As I have concluded
that
I could not rely on any explanation proffered by
W,
I am confronted
with
the
conclusion
that
far and away
the
most probable cause is indeed a non-accidental
shaking
injury.
- However, before making
that
finding, I
should
revert
to
the
evidence of Dr RS and Dr AS. I regarded it as
thoughtful
and impressive and do not feel able
to
reject
their
view
that
the
explanation given by
W,
provided
that
it
was
reliable in all material parts, could as a
small
but reasonable possibility account for
these
injuries.
That
said
both recognised
that
even in
those
circumstances
the
probabilities lay
the
other
way.
Had I been
satisfied
that
I could rely on
W,
I
would
have found it more difficult
to
be
satisfied
to
the
requisite
standard
that
this
was
a non-accidental injury, although I might
still
have been
so
satisfied.
- In coming
to
a final conclusion in
this
case
there
are
two
other factors
that
I must
take
into account. First, I have found
that
W
has no background history
to
suggest
propensity
to
such
behaviour, indeed quite
the
reverse.
Secondly
my conclusions in respect of
the
non-fatal injuries do not add any
support
to
the
view
that
the
head injuries
were
non-accidental. I
should
also remind myself
that
a
shaking
type
injury is
very
unusual in a child of
this
age.
That
said,
these
matters
were
known
to
Dr AS and Dr RS (indeed
the
finding in respect of
the
mesentery
was
based essentially on his evidence)
when
they
expressed
their
views
on
the
probability of
the
case.
- Having given my closest and most anxious attention
to
this
case I have concluded
that
the
overwhelming probability in
this
case is
that
these
head injuries are
the
consequence of a non-accidental acceleration/deceleration injury
with
rotational forces.
What
I now need
to
do is
to
see
how far I can
translate
that
conclusion into an account of
what
actually happened in
that
bedroom on
the
morning of 20th October, 2002.
What
Actually Happened
The
plain
truth
is, of course,
that
only
W
can answer
this
question. All I can do is
to
try
to
reconstruct events
so
far as I can
taking
account both of
what
I have found proved and
the
probabilities
that
flow from
that.
The
essential framework is
this.
W
genuinely loved X and cared for her.
W
was
as a general rule gentle and competent in his care of her.
W
was
utterly distraught as a consequence of
what
happened and in
those
circumstances
was
far more likely
to
tell
the
truth
with
crucial omissions
than
he
was
actively
to
concoct a fabricated
story.
Hence my conclusions
set
out above
that
the
child
was
sick,
that
the
child
travelled
from bed
to
floor
with
some
force and
that
in its immediate aftermath
W
knew
that
something
very
serious
had happened. I can place no reliance upon or confidence in his present explanation .
- I am quite convinced
that
W
had no malevolent intent
towards
X in
that
he had no active intention of hurting her.
Thus
my
views
on murder
would
be exactly
the
same
as
those
of
the
jury. On
the
other hand I am quite
satisfied
that
any bystander present in
that
room
would
have realised
that
what
he did
would
undoubtedly cause injury (albeit not grave injury)
to
the
child. I
think
the
probabilities are
that
he pushed
the
child away from himself
with
such
force
that
she
rose above
the
height of
the
bed before falling in
such
a
way,
probably a
V
shape,
as
to
produce
the
acceleration/deceleration injury
with
rotational forces
which
has been described in
the
medical evidence. I
think
the
force used might
well
have caused
the
bystander
to
describe a
throw
but I am
satisfied
that
that
was
not
W's
intent. I am quite
satisfied
that
his action
was
culpable in
that
it
was
an action performed by him
that
he
should
have realised
was
potentially dangerous. It may be
that
this
finding is
technically
inconsistent
with
the
Jury'
s
acquittal of manslaughter but I am
sympathetic
to
a reluctance
to
expose him
to
criminal punishment in
the
circumstances of
this
case.
This
was
an uncharacteristic reaction, albeit a
serious
and culpable over-reaction,
to
a
situation.
Whether
that
situation
was
more
than
a child being or
threatening
to
be
sick,
I have no
way
of knowing.
Was
the
Mother Culpable for
What
Happened
to
X?
- Although
she
did herself no favours in lying about her contact
with
W
whilst
he
was
on remand,
the
only fair conclusion based on
this
judgment is
to
exonerate
the
mother from all blame for
the
death of X or for
the
other injuries found. In my
view
she
presents no risk of physical harm
to
T
herself.
The
only issue is
whether
she
can
satisfactorily
protect
T
and
to
that
end it
will
be necessary
to
see
what
she
makes of
this
judgment and in particular its conclusions in relation
to
W.
Its effect is, of course, not necessarily
to
exclude
W
from
T's
life but it
will
require an assessment of risk in addition
to
the
assessment of
the
capacity of
the
parents
to
meet
the
emotional needs of
T.
Conclusion
- As
was
implicit in
the
early part of
this
judgment, I do not claim
to
have divined
truth.
I have reached conclusions based on
what
I believe
to
have been proved
to
the
requisite
standard
by
the
evidence. I have done
so
with
the
perspective of
the
surviving
child uppermost in my mind. I do not mean
that
my conclusions of fact have been influenced by any consideration of her
welfare
(
that
consideration is for
the
future);
what
I mean is
that
the
purpose of
this
hearing has not been
to
try
either
the
mother or
W
but
to
determine
whether
facts exist
to
justify
state
intervention in
the
life of
T
and also
the
factual matrix
within
which
the
welfare
inquiry is now
to
be undertaken.
- I am amply
satisfied
that
the
criteria for intervention are made out both in
the
causation of head injury and in
the
deliberate misleading by
W
of
the
treating
doctors,
the
police and
social
services
over
what
happened
to
X.
The
focus now moves
to
the
welfare
of
T
and
the
careful consideration of
whether
she
can be returned
to
the
care of one or both of her parents. I propose now
to
adjourn into chambers
to
consider
the
details of
what
is
to
happen next in
this case.